Insights

Effective October 1, 2015, the applicability of the State's nondiscrimination, affirmative action and supplier diversity program (formerly the "set-aside program") statutes has been extended to municipalities and quasi-public agencies pursuant to recent legislation¹.

The state's nondiscrimination, affirmative action and supplier diversity program laws were enacted to help small contractors, minority business enterprises, non-profit organizations and individuals with disabilities be considered for and awarded state contracts for goods and services. These provisions will now apply to municipal public works contracts and contracts for quasi-public agency projects in addition to the state and state agency contracts previously covered.

Municipal public works contracts are the portions of contracts in excess of $50,000 for the construction, rehabilitation, conversion, extension, demolition or repair of public buildings, highways or other changes or improvements in real property, financed in whole or in part by the state, including state matching expenditures, grants, loans, insurance or guarantees.

Contracts for quasi-public agency projects are contracts for the construction, rehabilitation, conversion, extension, demolition or repair of a building or other changes or improvements in real property financed in whole or in part by a quasi-public agency using state funds, including state matching expenditures, grants, loans, insurance or guarantees.

Contractors awarded municipal public works contracts and contracts for quasi-public agency projects must include language in their contracts stating that they will not discriminate on the basis of any protected class under Connecticut law and will comply with certain affirmative action requirements of Connecticut law. Additionally, such contractors must set aside at least 25% of the total value of the state's financial assistance for such contract for award to subcontractors who are small contractors, and 25% of the portion set aside for small businesses shall be set aside for awards to subcontractors who are minority business enterprises.

In connection with such contracts, municipalities and quasi-public agencies are now required to, among other requirements:

1. state in requests for proposals and solicitations for bids that the contractor shall be required to comply with the nondiscrimination and affirmative action provisions of C.G.S. Sections 4a-60 and 4a-60a;
2. include the state's antidiscrimination and affirmative action language in contracts and require contractors to state that they are "affirmative action-equal opportunity employers";
3. require contractors to state that they comply with other antidiscrimination and affirmative action provisions and to agree to include the required antidiscrimination and affirmative action language in their subcontracts;
4. require contractors to agree and warrant to make good faith efforts to employ minority business enterprises as subcontractors and suppliers; and
5. refrain from entering into contracts with contractors who have failed to comply with the requirements of the antidiscrimination, affirmative action and supplier diversity laws of the state.

In addition, contractors with fifty or more employees awarded municipal public works or quasi-public agency project contracts in excess of $50,000 in any fiscal year must now develop and file an affirmative action plan with the Commission on Human Rights and Opportunities. Municipalities and quasi-public agencies shall be responsible for withholding 2% of the total contract price per month from any payment made to a contractor who has failed to develop an affirmative action plan and receive approval from the Commission.

The Department of Administrative Services administers the Supplier Diversity Program certifying small businesses and minority enterprises. Municipalities and quasi-public agencies can access the department's resources, including its database of currently certified vendors under the Supplier Diversity Program.