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(a) The OSDI Director shall attempt to achieve this chapter’s overall aspirational goals and remedial objectives through the most effective available means that are least burdensome to non-MBEs. Therefore, prior to imposing any race- or gender-conscious remedy on a given contract, the OSDI Director shall make a written determination that:

(1) The race- and gender-neutral remedies set forth in Article II of this chapter, either individually or collectively, are ineffective in remedying the statistically significant disparities identified in a particular contracting class for a specific racial, ethnic or gender as set forth in this chapter;

(2) Considering those race- and gender-conscious remedies that are likely to remedy discrimination that has been demonstrated by a strong basis in evidence in the most recent disparity study, a specific remedy is: (a) least burdensome to prospective non-MBE participants in the subject solicitation or contracting opportunity; and (b) most narrowly tailored to achieve its intended purpose; and

(3) A particular race- or gender-conscious remedy is the most appropriate for the specific type of prime contract or subcontract(s) under consideration.

(b) Whenever the OSDI Director determines to apply any race- and gender-conscious remedy described in this article to a solicitation or contract, the OSDI Director’s written determination pursuant to subsection (a) of this section shall be incorporated into the IFB, RFP or comparable document. In the event that the originating department and the OSDI cannot agree on the race- and gender-conscious remedy, the Chief Procurement Officer shall make the determination.

(c) Race- and gender-conscious remedies are provided exclusively to eligible MBEs and are intended to encourage greater prime and subcontract participation by these firms.

(d) The race- and gender-conscious remedies provided in this chapter apply only to prime contracts of less than $1,000,000 in value. (Res. 2023-2325; REG-PROC-SD-2017-004 § VI(C))