Provides veterans with access to certain economic programs and incentives; expands the population served by the division of minority and women's business development to include veterans; makes conforming changes to various provisions of law to reflect the inclusion of veterans.
STATE OF NEW YORK
________________________________________________________________________
5968
2013-2014 Regular Sessions
IN SENATE
October 25, 2013
___________
Introduced by Sen. MARCHIONE -- read twice and ordered printed, and when
printed to be committed to the Committee on Rules
AN ACT to amend the executive law, the economic development law, the New
York state urban development corporation act, the facilities develop-
ment corporation act and the New York state medical care facilities
finance agency act, in relation to providing veterans with access to
certain economic programs and incentives, and to expanding the popu-
lation served by the division of minority and women's business devel-
opment; to amend the state finance law, the retirement and social
security law, the public authorities law, the arts and cultural
affairs law, the banking law, the environmental conservation law and
the general municipal law, in relation to making conforming changes;
and to amend the administrative code of the city of New York, in
relation to providing veterans with access to certain economic
programs and incentives
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. This act shall be known and may be cited as "OORAH! An ACT
2 Opening Opportunities, Resources and Access for Heroes".
3 § 1-a. The article heading of article 15-A of the executive law, as
4 added by chapter 261 of the laws of 1988, is amended to read as follows:
5 PARTICIPATION BY MINORITY GROUP MEMBERS [AND],
6 WOMEN AND VETERANS WITH RESPECT TO STATE CONTRACTS
7 § 2. Subdivisions 1, 4, 9, 10, 19 and 22 of section 310 of the execu-
8 tive law, subdivisions 1 and 9 as added by chapter 261 of the laws of
9 1988, subdivisions 4 and 10 as amended by chapter 55 of the laws of 1992
10 and subdivisions 19 and 22 as added by chapter 175 of the laws of 2010,
11 are amended and a new subdivision 15-a is added to read as follows:
12 1. "Certified business" shall mean a business verified as a minority
13 [or women-owned], women or veteran-owned business enterprise pursuant to
14 section three hundred fourteen of this article.
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD11675-05-3
S. 5968 2
1 4. "Director" shall mean the director of the division of minority [and
2 women's], women and veterans' business development in the department of
3 economic development.
4 9. "Utilization plan" shall mean a plan prepared by a contractor and
5 submitted in connection with a proposed state contract. The utilization
6 plan shall identify certified minority [or women-owned], women or veter-
7 an-owned business enterprises, if known, that have committed to perform
8 work in connection with the proposed state contract as well as any such
9 enterprises, if known, which the contractor intends to use in connection
10 with the contractor's performance of the proposed state contract. The
11 plan shall specifically contain a list, including the name, address and
12 telephone number, of each certified enterprise with which the contractor
13 intends to subcontract.
14 10. "Office" shall mean the division of minority [and], women's and
15 veterans' business development in the department of economic develop-
16 ment.
17 15-a. "Veteran-owned business enterprise" shall mean a business enter-
18 prise, including a sole proprietorship, partnership or corporation that
19 is:
20 (a) at least fifty-one percent owned by one or more United States
21 citizens or permanent resident aliens who are honorably discharged
22 United States veterans;
23 (b) an enterprise in which the ownership interest of such veterans is
24 real, substantial and continuing;
25 (c) an enterprise in which such veteran ownership has and exercises
26 the authority to control independently the day-to-day business decisions
27 of the enterprise;
28 (d) an enterprise authorized to do business in this state and inde-
29 pendently owned and operated;
30 (e) an enterprise owned by an individual or individuals, whose owner-
31 ship, control and operation are relied upon for certification, with a
32 personal net worth that does not exceed three million five hundred thou-
33 sand dollars, as adjusted annually on the first of January for inflation
34 according to the consumer price index of the previous year; and
35 (f) an enterprise that is a small business pursuant to subdivision
36 twenty of this section.
37 A firm owned by a minority group member who is also a veteran may be
38 certified as a minority-owned business enterprise, a veteran-owned busi-
39 ness enterprise, or both, and may be counted towards either a minority-
40 owned business enterprise goal or a veteran-owned business enterprise
41 goal, in regard to any contract or any goal, set by an agency or author-
42 ity, but such participation may not be counted towards both such goals.
43 Such an enterprise's participation in a contract may not be divided
44 between the minority-owned business enterprise goal and the veteran-
45 owned business enterprise goal. A firm owned by a woman who is also a
46 veteran may be certified as a women-owned business enterprise, a veter-
47 an-owned business enterprise, or both, and may be counted towards either
48 a women-owned business enterprise goal or a veteran-owned business
49 enterprise goal, in regard to any contract or any goal, set by an agency
50 or authority, but such participation may not be counted towards both
51 such goals. Such an enterprise's participation in a contract may not be
52 divided between the women-owned business enterprise goal and the veter-
53 an-owned business enterprise goal.
54 19. "Personal net worth" shall mean the aggregate adjusted net value
55 of the assets of an individual remaining after total liabilities are
56 deducted. Personal net worth includes the individual's share of assets
S. 5968 3
1 held jointly with said individual's spouse and does not include the
2 individual's ownership interest in the certified minority [and women-
3 owned], women or veteran-owned business enterprise, the individual's
4 equity in his or her primary residence, or up to five hundred thousand
5 dollars of the present cash value of any qualified retirement savings
6 plan or individual retirement account held by the individual less any
7 penalties for early withdrawal.
8 22. "Diversity practices" shall mean the contractor's practices and
9 policies with respect to:
10 (a) utilizing certified minority [and women-owned], women and veter-
11 an-owned business enterprises in contracts awarded by a state agency or
12 other public corporation, as subcontractors and suppliers; and
13 (b) entering into partnerships, joint ventures or other similar
14 arrangements with certified minority [and women-owned], women or veter-
15 an-owned business enterprises as defined in this article or other appli-
16 cable statute or regulation governing an entity's utilization of minori-
17 ty [or women-owned], women or veteran-owned business enterprises.
18 § 3. The section heading, subdivision 1, paragraphs (a), (d), (e) and
19 (f) of subdivision 3 of section 311 of the executive law, the section
20 heading, subdivision 1, and paragraphs (d) and (e) of subdivision 3 as
21 amended by chapter 55 of the laws of 1992, and paragraphs (a) and (f) of
22 subdivision 3 as added by chapter 261 of the laws of 1988, are amended
23 to read as follows:
24 Division of minority [and], women's and veterans' business develop-
25 ment. 1. The head of the division of minority [and], women's and veter-
26 ans' business development shall be the director who shall be appointed
27 by the governor and hold office at the pleasure of the commissioner. It
28 shall be the duty of the director of the division of minority [and],
29 women's and veterans' business development to assist the governor in the
30 formulation and implementation of laws and policies relating to minority
31 [and women-owned] women and veteran-owned business enterprises.
32 (a) to encourage and assist contracting agencies in their efforts to
33 increase participation by minority [and women-owned], women and veter-
34 an-owned business enterprises on state contracts and subcontracts so as
35 to facilitate the award of a fair share of such contracts to them;
36 (d) to review periodically the practices and procedures of each
37 contracting agency with respect to compliance with the provisions of
38 this article, and to require them to file periodic reports with the
39 division of minority [and], women's and veterans' business development
40 as to the level of minority [and women-owned], women and veteran-owned
41 business enterprises participation in the awarding of agency contracts
42 for goods and services;
43 (e) on January first of each year report to the governor and the
44 chairpersons of the senate finance and assembly ways and means commit-
45 tees on the level of minority [and women-owned], women and veteran-owned
46 business enterprises participating in each agency's contracts for goods
47 and services and on activities of the office and effort by each
48 contracting agency to promote employment of minority group members
49 [and], women and veterans, and to promote and increase participation by
50 certified businesses with respect to state contracts and subcontracts so
51 as to facilitate the award of a fair share of state contracts to such
52 businesses. The comptroller shall assist the division in collecting
53 information on the participation of certified business for each
54 contracting agency. Such report may recommend new activities and
55 programs to effectuate the purposes of this article;
S. 5968 4
1 (f) to prepare and update periodically a directory of certified minor-
2 ity [and women-owned], women and veteran-owned business enterprises
3 which shall, wherever practicable, be divided into categories of labor,
4 services, supplies, equipment, materials and recognized construction
5 trades and which shall indicate areas or locations of the state where
6 such enterprises are available to perform services;
7 § 3-a. Paragraph (c) of subdivision 4 of section 311 of the executive
8 law, as added by chapter 361 of the laws of 2009, is amended to read as
9 follows:
10 (c) seek to maximize utilization by minority [and women-owned], women
11 and veteran-owned business enterprises of available federal resources
12 including but not limited to federal grants, loans, loan guarantees,
13 surety bonding guarantees, technical assistance, and programs and
14 services of the federal small business administration.
15 § 4. The section heading and subdivisions 1, 2 and 3 of section 311-a
16 of the executive law, as added by section 4 of part BB of chapter 59 of
17 the laws of 2006, are amended to read as follows:
18 Minority [and women-owned], women and veteran-owned business enter-
19 prise statewide advocate. 1. There is hereby established within the
20 department of economic development an office of the minority [and
21 women-owned], women and veteran-owned business enterprise statewide
22 advocate. The statewide advocate shall be appointed by the commissioner
23 with the advice of the small business advisory board as established in
24 section one hundred thirty-three of the economic development law and
25 shall serve in the unclassified service of the director. The statewide
26 advocate shall be located in the Albany empire state development office.
27 2. The advocate shall act as a liaison for minority [and women-owned],
28 women and veteran-owned business enterprises [(MWBEs)] (MWVBEs) to
29 assist them in obtaining technical, managerial, financial and other
30 business assistance for certified businesses and applicants. The advo-
31 cate shall investigate complaints brought by or on behalf of [MWBEs]
32 (MWVBEs) concerning certification delays and instances of violations of
33 law by state agencies. The statewide advocate shall assist certified
34 businesses and applicants in the certification process. Other functions
35 of the statewide advocate shall be directed by the commissioner. The
36 advocate may request and the director may appoint staff and employees of
37 the division of minority [and women], women's and veterans' business
38 development to support the administration of the office of the statewide
39 advocate.
40 3. The statewide advocate shall establish a toll-free number at the
41 department of economic development to be used to answer questions
42 concerning the [MWBE] MWVBE certification process.
43 § 5. The section heading and paragraph (a) of subdivision 1 of section
44 312 of the executive law, as added by chapter 261 of the laws of 1988,
45 are amended to read as follows:
46 Equal employment opportunities for minority group members [and], women
47 and veterans.
48 (a) The contractor will not discriminate against employees or appli-
49 cants for employment because of race, creed, color, national origin,
50 sex, age, disability or marital status, and will undertake or continue
51 existing programs of affirmative action to ensure that minority group
52 members [and], women and veterans are afforded equal employment opportu-
53 nities without discrimination. For purposes of this article affirmative
54 action shall mean recruitment, employment, job assignment, promotion,
55 upgradings, demotion, transfer, layoff, or termination and rates of pay
56 or other forms of compensation.
S. 5968 5
1 § 6. Section 312-a of the executive law, as amended by chapter 175 of
2 the laws of 2010, is amended to read as follows:
3 § 312-a. Study of minority [and women-owned], women and veteran-owned
4 business enterprise programs. 1. The director of the division of minori-
5 ty [and women-owned], women and veteran-owned business development in
6 the department of economic development is authorized and directed to
7 recommission a statewide disparity study regarding the participation of
8 minority [and women-owned], women and veteran-owned business enterprises
9 in state contracts since the amendment of this article to be delivered
10 to the governor and legislature no later than February fifteenth, two
11 thousand [sixteen] fifteen. The study shall be prepared by an entity
12 independent of the department and selected through a request for
13 proposal process. The purpose of such study is:
14 (a) to determine whether there is a disparity between the number of
15 qualified minority [and women-owned], women and veteran-owned businesses
16 ready, willing and able to perform state contracts for commodities,
17 services and construction, and the number of such contractors actually
18 engaged to perform such contracts, and to determine what changes, if
19 any, should be made to state policies affecting minority [and women-
20 owned], women and veteran-owned business enterprises; and (b) to deter-
21 mine whether there is a disparity between the number of qualified minor-
22 ities [and], women and veterans ready, willing and able, with respect to
23 labor markets, qualifications and other relevant factors, to participate
24 in contractor employment, management level bodies, including boards of
25 directors, and as senior executive officers within contracting entities
26 and the number of such group members actually employed or affiliated
27 with state contractors in the aforementioned capacities, and to deter-
28 mine what changes, if any, should be made to state policies affecting
29 minority [and], women and veteran group populations with regard to state
30 contractors' employment and appointment practices relative to diverse
31 group members. Such study shall include, but not be limited to, an anal-
32 ysis of the history of minority [and women-owned], women and veteran-
33 owned business enterprise programs and their effectiveness as a means of
34 securing and ensuring participation by minorities [and], women and
35 veterans, and a disparity analysis by market area and region of the
36 state. Such study shall distinguish between minority males, minority
37 females and non-minority females, and between minority veterans and
38 non-minority veterans, and female veterans and male veterans, in the
39 statistical analysis.
40 2. The director of the division of minority [and women-owned], women
41 and veteran-owned business development is directed to transmit the
42 disparity study to the governor and the legislature not later than
43 February fifteenth, two thousand [sixteen] fifteen, and to post the
44 study on the website of the department of economic development.
45 § 7. Section 313 of the executive law, as amended by chapter 175 of
46 the laws of 2010, is amended to read as follows:
47 § 313. Opportunities for minority [and women-owned], women and veter-
48 an-owned business enterprises. 1. Goals and requirements for agencies
49 and contractors. Each agency shall structure procurement procedures for
50 contracts made directly or indirectly to minority [and women-owned],
51 women and veteran-owned business enterprises, [in accordance with the
52 findings of the two thousand ten disparity study,] consistent with the
53 purposes of this article, to attempt to achieve the following results
54 with regard to total annual statewide procurement:
55 (a) construction industry for certified minority-owned business enter-
56 prises: fourteen and thirty-four hundredths percent;
S. 5968 6
1 (b) construction industry for certified women-owned business enter-
2 prises: eight and forty-one hundredths percent;
3 (b-1) construction industry for certified veteran-owned business
4 enterprises: a percentage to be determined by the disparity study
5 described in subdivision one of section three hundred twelve-a of this
6 article;
7 (c) construction related professional services industry for certified
8 minority-owned business enterprises: thirteen and twenty-one hundredths
9 percent;
10 (d) construction related professional services industry for certified
11 women-owned business enterprises: eleven and thirty-two hundredths
12 percent;
13 (d-1) construction related professional services industry for certi-
14 fied veteran-owned business enterprises: a percentage to be determined
15 by the disparity study described in subdivision one of section three
16 hundred twelve-a of this article;
17 (e) non-construction related services industry for certified minori-
18 ty-owned business enterprises: nineteen and sixty hundredths percent;
19 (f) non-construction related services industry for certified women-
20 owned business enterprises: seventeen and forty-four hundredths percent;
21 (f-1) non-construction related services industry for certified veter-
22 an-owned business enterprises: a percentage to be determined by the
23 disparity study described in subdivision one of section three hundred
24 twelve-a of this article;
25 (g) commodities industry for certified minority-owned business enter-
26 prises: sixteen and eleven hundredths percent;
27 (h) commodities industry for certified women-owned business enter-
28 prises: ten and ninety-three hundredths percent;
29 (h-1) commodities industry for certified veteran-owned business enter-
30 prises: a percentage to be determined by the disparity study described
31 in subdivision one of section three hundred twelve-a of this article;
32 (i) overall agency total dollar value of procurement for certified
33 minority-owned business enterprises: sixteen and fifty-three hundredths
34 percent;
35 (j) overall agency total dollar value of procurement for certified
36 women-owned business enterprises: twelve and thirty-nine hundredths
37 percent; [and]
38 (j-1) overall agency total dollar value of procurement for certified
39 veteran-owned business enterprises: a percentage to be determined by
40 the disparity study described in subdivision one of section three
41 hundred twelve-a of this article;
42 (k) overall agency total dollar value of procurement for certified
43 minority, women-owned business enterprises: twenty-eight and ninety-two
44 hundredths percent; and
45 (l) overall agency total dollar value of procurement for certified
46 minority, women, veteran-owned business enterprises: a percentage to be
47 determined by the disparity study described in subdivision one of
48 section three hundred twelve-a of this article.
49 1-a. The director shall ensure that each state agency has been
50 provided with a copy of the two thousand ten disparity study and there-
51 after the two thousand fifteen disparity study.
52 1-b. Each agency shall develop and adopt agency-specific goals based
53 on the findings of the two thousand ten disparity study and thereafter
54 the two thousand fifteen disparity study.
55 2. The director shall promulgate rules and regulations pursuant to the
56 goals established in subdivision one of this section that provide meas-
S. 5968 7
1 ures and procedures to ensure that certified minority [and women-owned],
2 women and veteran-owned businesses shall be given the opportunity for
3 maximum feasible participation in the performance of state contracts and
4 to assist in the agency's identification of those state contracts for
5 which minority [and women-owned], women and veteran-owned certified
6 businesses may best bid to actively and affirmatively promote and assist
7 their participation in the performance of state contracts so as to
8 facilitate the agency's achievement of the maximum feasible portion of
9 the goals for state contracts to such businesses.
10 2-a. The director shall promulgate rules and regulations that will
11 accomplish the following:
12 (a) provide for the certification and decertification of minority [and
13 women-owned], women and veteran-owned business enterprises for all agen-
14 cies through a single process that meets applicable requirements;
15 (b) require that each contract solicitation document accompanying each
16 solicitation set forth the expected degree of minority [and
17 women-owned], women and veteran-owned business enterprise participation
18 based, in part, on:
19 (i) the potential subcontract opportunities available in the prime
20 procurement contract; and
21 (ii) the availability, as contained within the study, of certified
22 minority [and women-owned], women and veteran-owned business enterprises
23 to respond competitively to the potential subcontract opportunities;
24 (c) require that each agency provide a current list of certified
25 minority, women and veteran-owned business enterprises to each prospec-
26 tive contractor;
27 (d) allow a contractor that is a certified [minority-owned or women-
28 owned] minority, women or veteran-owned business enterprise to use the
29 work it performs to meet requirements for use of certified [minority-
30 owned or women-owned] minority, women or veteran-owned business enter-
31 prises as subcontractors;
32 (e) provide for joint ventures, which a bidder may count toward meet-
33 ing its minority [and women-owned], women and veteran-owned business
34 enterprise participation;
35 (f) consistent with subdivision six of this section, provide for
36 circumstances under which an agency may waive obligations of the
37 contractor relating to minority [and women-owned], women and veteran-
38 owned business enterprise participation;
39 (g) require that an agency verify that minority [and women-owned],
40 women and veteran-owned business enterprises listed in a successful bid
41 are actually participating to the extent listed in the project for which
42 the bid was submitted;
43 (h) provide for the collection of statistical data by each agency
44 concerning actual minority [and women-owned], women and veteran-owned
45 business enterprise participation; and
46 (i) require each agency to consult the most current disparity study
47 when calculating agency-wide and contract specific participation goals
48 pursuant to this article.
49 3. Solely for the purpose of providing the opportunity for meaningful
50 participation by certified businesses in the performance of state
51 contracts as provided in this section, state contracts shall include
52 leases of real property by a state agency to a lessee where: the terms
53 of such leases provide for the construction, demolition, replacement,
54 major repair or renovation of real property and improvements thereon by
55 such lessee; and the cost of such construction, demolition, replacement,
56 major repair or renovation of real property and improvements thereon
S. 5968 8
1 shall exceed the sum of one hundred thousand dollars. Reports to the
2 director pursuant to section three hundred fifteen of this article shall
3 include activities with respect to all such state contracts. Contracting
4 agencies shall include or require to be included with respect to state
5 contracts for the acquisition, construction, demolition, replacement,
6 major repair or renovation of real property and improvements thereon,
7 such provisions as may be necessary to effectuate the provisions of this
8 section in every bid specification and state contract, including, but
9 not limited to: (a) provisions requiring contractors to make a good
10 faith effort to solicit active participation by enterprises identified
11 in the directory of certified businesses provided to the contracting
12 agency by the office; (b) requiring the parties to agree as a condition
13 of entering into such contract, to be bound by the provisions of section
14 three hundred sixteen of this article; and (c) requiring the contractor
15 to include the provisions set forth in paragraphs (a) and (b) of this
16 subdivision in every subcontract in a manner that the provisions will be
17 binding upon each subcontractor as to work in connection with such
18 contract. Provided, however, that no such provisions shall be binding
19 upon contractors or subcontractors in the performance of work or the
20 provision of services that are unrelated, separate or distinct from the
21 state contract as expressed by its terms, and nothing in this section
22 shall authorize the director or any contracting agency to impose any
23 requirement on a contractor or subcontractor except with respect to a
24 state contract.
25 4. In the implementation of this section, the contracting agency shall
26 (a) consult the findings contained within the disparity study evidencing
27 relevant industry specific availability of certified businesses;
28 (b) implement a program that will enable the agency to evaluate each
29 contract to determine the appropriateness of the goal pursuant to subdi-
30 vision one of this section;
31 (c) consider where practicable, the severability of construction
32 projects and other bundled contracts; and
33 (d) consider compliance with the requirements of any federal law
34 concerning opportunities for minority [and women-owned], women and
35 veteran-owned business enterprises which effectuates the purpose of this
36 section. The contracting agency shall determine whether the imposition
37 of the requirements of any such law duplicate or conflict with the
38 provisions hereof and if such duplication or conflict exists, the
39 contracting agency shall waive the applicability of this section to the
40 extent of such duplication or conflict.
41 5. (a) Contracting agencies shall administer the rules and regulations
42 promulgated by the director in a good faith effort to meet the maximum
43 feasible portion of the agency's goals adopted pursuant to this article
44 and the regulations of the director. Such rules and regulations: shall
45 require a contractor to submit a utilization plan after bids are opened,
46 when bids are required, but prior to the award of a state contract;
47 shall require the contracting agency to review the utilization plan
48 submitted by the contractor and to post the utilization plan and any
49 waivers of compliance issued pursuant to subdivision six of this section
50 on the website of the contracting agency within a reasonable period of
51 time as established by the director; shall require the contracting agen-
52 cy to notify the contractor in writing within a period of time specified
53 by the director as to any deficiencies contained in the contractor's
54 utilization plan; shall require remedy thereof within a period of time
55 specified by the director; shall require the contractor to submit peri-
56 odic compliance reports relating to the operation and implementation of
S. 5968 9
1 any utilization plan; shall not allow any automatic waivers but shall
2 allow a contractor to apply for a partial or total waiver of the minori-
3 ty [and women-owned], women and veteran-owned business enterprise
4 participation requirements pursuant to subdivisions six and seven of
5 this section; shall allow a contractor to file a complaint with the
6 director pursuant to subdivision eight of this section in the event a
7 contracting agency has failed or refused to issue a waiver of the minor-
8 ity [and women-owned], women and veteran-owned business enterprise
9 participation requirements or has denied such request for a waiver; and
10 shall allow a contracting agency to file a complaint with the director
11 pursuant to subdivision nine of this section in the event a contractor
12 is failing or has failed to comply with the minority [and women-owned],
13 women and veteran-owned business enterprise participation requirements
14 set forth in the state contract where no waiver has been granted.
15 (b) The rules and regulations promulgated pursuant to this subdivision
16 regarding a utilization plan shall provide that where enterprises have
17 been identified within a utilization plan, a contractor shall attempt,
18 in good faith, to utilize such enterprise at least to the extent indi-
19 cated. A contracting agency may require a contractor to indicate, within
20 a utilization plan, what measures and procedures he or she intends to
21 take to comply with the provisions of this article, but may not require,
22 as a condition of award of, or compliance with, a contract that a
23 contractor utilize a particular enterprise in performance of the
24 contract.
25 (c) Without limiting other grounds for the disqualification of bids or
26 proposals on the basis of non-responsibility, a contracting agency may
27 disqualify the bid or proposal of a contractor as being non-responsible
28 for failure to remedy notified deficiencies contained in the contrac-
29 tor's utilization plan within a period of time specified in regulations
30 promulgated by the director after receiving notification of such defi-
31 ciencies from the contracting agency. Where failure to remedy any noti-
32 fied deficiency in the utilization plan is a ground for disqualifica-
33 tion, that issue and all other grounds for disqualification shall be
34 stated in writing by the contracting agency. Where the contracting agen-
35 cy states that a failure to remedy any notified deficiency in the utili-
36 zation plan is a ground for disqualification the contractor shall be
37 entitled to an administrative hearing, on a record, involving all
38 grounds stated by the contracting agency. Such hearing shall be
39 conducted by the appropriate authority of the contracting agency to
40 review the determination of disqualification. A final administrative
41 determination made following such hearing shall be reviewable in a
42 proceeding commenced under article seventy-eight of the civil practice
43 law and rules, provided that such proceeding is commenced within thirty
44 days of the notice given by certified mail return receipt requested
45 rendering such final administrative determination. Such proceeding shall
46 be commenced in the supreme court, appellate division, third department
47 and such proceeding shall be preferred over all other civil causes
48 except election causes, and shall be heard and determined in preference
49 to all other civil business pending therein, except election matters,
50 irrespective of position on the calendar. Appeals taken to the court of
51 appeals of the state of New York shall be subject to the same prefer-
52 ence.
53 6. Where it appears that a contractor cannot, after a good faith
54 effort, comply with the minority [and women-owned], women and veteran-
55 owned business enterprise participation requirements set forth in a
56 particular state contract, a contractor may file a written application
S. 5968 10
1 with the contracting agency requesting a partial or total waiver of such
2 requirements setting forth the reasons for such contractor's inability
3 to meet any or all of the participation requirements together with an
4 explanation of the efforts undertaken by the contractor to obtain the
5 required minority [and women-owned], women and veteran-owned business
6 enterprise participation. In implementing the provisions of this
7 section, the contracting agency shall consider the number and types of
8 minority [and women-owned], women and veteran-owned business enterprises
9 located in the region in which the state contract is to be performed,
10 the total dollar value of the state contract, the scope of work to be
11 performed and the project size and term. If, based on such consider-
12 ations, the contracting agency determines there is not a reasonable
13 availability of contractors on the list of certified [business] busi-
14 nesses to furnish services for the project, it shall issue a waiver of
15 compliance to the contractor. In making such determination, the
16 contracting agency shall first consider the availability of other busi-
17 ness enterprises located in the region and shall thereafter consider the
18 financial ability of minority [and women-owned], women and veteran-owned
19 businesses located outside the region in which the contract is to be
20 performed to perform the state contract.
21 7. For purposes of determining a contractor's good faith effort to
22 comply with the requirements of this section or to be entitled to a
23 waiver therefrom the contracting agency shall consider:
24 (a) whether the contractor has advertised in general circulation
25 media, trade association publications, and [minority-focus and women-fo-
26 cus] minority-focused, women-focused and veteran-focused media and, in
27 such event, (i) whether or not certified minority [or women-owned],
28 women or veteran-owned businesses which have been solicited by the
29 contractor exhibited interest in submitting proposals for a particular
30 project by attending a pre-bid conference; and
31 (ii) whether certified businesses which have been solicited by the
32 contractor have responded in a timely fashion to the contractor's solic-
33 itations for timely competitive bid quotations prior to the contracting
34 agency's bid date; and
35 (b) whether there has been written notification to appropriate certi-
36 fied businesses that appear in the directory of certified businesses
37 prepared pursuant to paragraph (f) of subdivision three of section three
38 hundred eleven of this article; and
39 (c) whether the contractor can reasonably structure the amount of work
40 to be performed under subcontracts in order to increase the likelihood
41 of participation by certified businesses.
42 8. In the event that a contracting agency fails or refuses to issue a
43 waiver to a contractor as requested within twenty days after having made
44 application therefor pursuant to subdivision six of this section or if
45 the contracting agency denies such application, in whole or in part, the
46 contractor may file a complaint with the director pursuant to section
47 three hundred sixteen of this article setting forth the facts and
48 circumstances giving rise to the contractor's complaint together with a
49 demand for relief. The contractor shall serve a copy of such complaint
50 upon the contracting agency by personal service or by certified mail,
51 return receipt requested. The contracting agency shall be afforded an
52 opportunity to respond to such complaint in writing.
53 9. If, after the review of a contractor's minority [and women owned],
54 women and veteran-owned business utilization plan or review of a period-
55 ic compliance report and after such contractor has been afforded an
56 opportunity to respond to a notice of deficiency issued by the contract-
S. 5968 11
1 ing agency in connection therewith, it appears that a contractor is
2 failing or refusing to comply with the minority [and women-owned], women
3 and veteran-owned business participation requirements as set forth in
4 the state contract and where no waiver from such requirements has been
5 granted, the contracting agency may file a written complaint with the
6 director pursuant to section three hundred sixteen of this article
7 setting forth the facts and circumstances giving rise to the contracting
8 agency's complaint together with a demand for relief. The contracting
9 agency shall serve a copy of such complaint upon the contractor by
10 personal service or by certified mail, return receipt requested. The
11 contractor shall be afforded an opportunity to respond to such complaint
12 in writing.
13 § 8. Section 313-a of the executive law, as added by chapter 175 of
14 the laws of 2010, is amended to read as follows:
15 § 313-a. Diversity practices of state contractors. The director shall
16 promulgate rules and regulations setting forth measures and procedures
17 to require all contracting agencies, where practicable, feasible and
18 appropriate, to assess the diversity practices of contractors submitting
19 bids or proposals in connection with the award of a state contract. Such
20 rules and regulations shall take into account: the nature of the labor,
21 services, supplies, equipment or materials being procured by the state
22 agency; the method of procurement required to be used by a state agency
23 to award the contract and minority [and women-owned], women and veter-
24 an-owned business utilization plans required to be submitted pursuant to
25 sections three hundred twelve and three hundred thirteen of this arti-
26 cle; and such other factors as the director deems appropriate or neces-
27 sary to promote the award of state contracts to contractors having sound
28 diversity practices. Such assessment shall not in any way permit the
29 automatic rejection of a bid or procurement contract proposal based on
30 lack of adherence to diversity practices. Each bid or proposal shall be
31 analyzed on an individual per bid or per proposal basis with the
32 contractor's diversity practices considered as only a part of a wider
33 consideration of several factors when deciding to award or decline to
34 award a bid or proposal. The director shall develop the rules and regu-
35 lations required hereunder only after consultation with the state
36 procurement council established by section one hundred sixty-one of the
37 state finance law.
38 § 9. Subdivisions 2 and 2-a of section 314 of the executive law,
39 subdivision 2 as added by chapter 261 of the laws of 1988 and subdivi-
40 sion 2-a as amended by chapter 175 of the laws of 2010, are amended to
41 read as follows:
42 2. For the purposes of this article, the office shall be responsible
43 for verifying businesses as being owned, operated, and controlled by
44 minority group members [or], women or veterans and for certifying such
45 verified businesses. The director shall prepare a directory of certified
46 businesses for use by contracting agencies and contractors in carrying
47 out the provisions of this article. The director shall periodically
48 update the directory.
49 2-a. (a) The director shall establish a procedure enabling the office
50 to accept New York municipal corporation certification verification for
51 minority [and women-owned], women and veteran-owned business enterprise
52 applicants in lieu of requiring the applicant to complete the state
53 certification process. The director shall promulgate rules and regu-
54 lations to set forth criteria for the acceptance of municipal corpo-
55 ration certification. All eligible municipal corporation certifications
S. 5968 12
1 shall require business enterprises seeking certification to meet the
2 following standards:
3 (i) have at least fifty-one percent ownership by a minority [or a
4 women-owned], women or veteran-owned enterprise and be owned by United
5 States citizens or permanent resident aliens;
6 (ii) be an enterprise in which the minority [and/or women-ownership],
7 women and/or veteran-ownership interest is real, substantial and contin-
8 uing;
9 (iii) be an enterprise in which the minority [and/or women-ownership],
10 women and/or veteran-ownership has and exercises the authority to
11 control independently the day-to-day business decisions of the enter-
12 prise;
13 (iv) be an enterprise authorized to do business in this state;
14 (v) be subject to a physical site inspection to verify the fifty-one
15 percent ownership requirement;
16 (vi) be owned by an individual or individuals, whose ownership,
17 control and operation are relied upon for certification, with a personal
18 net worth that does not exceed three million five hundred thousand
19 dollars, as adjusted annually for inflation according to the consumer
20 price index; and
21 (vii) be an enterprise that is a small business pursuant to subdivi-
22 sion twenty of section three hundred ten of this article.
23 (b) The director shall work with all municipal corporations that have
24 a municipal minority [and women-owned], women and veteran-owned business
25 enterprise program to develop standards to accept state certification to
26 meet the municipal corporation minority [and women-owned], women and
27 veteran-owned business enterprise certification standards.
28 (c) The director shall establish a procedure enabling the division to
29 accept federal certification verification for minority [and
30 women-owned], women and veteran-owned business enterprise applicants,
31 provided said standards comport with those required by the state minori-
32 ty [and women-owned], women and veteran-owned business program, in lieu
33 of requiring the applicant to complete the state certification process.
34 The director shall promulgate rules and regulations to set forth crite-
35 ria for the acceptance of federal certification.
36 § 10. Subdivisions 3, 4, 5 and 7 of section 315 of the executive law,
37 subdivision 3 as amended and subdivisions 4, 5 and 7 as added by chapter
38 175 of the laws of 2010, are amended to read as follows:
39 3. Each contracting agency shall report to the director with respect
40 to activities undertaken to promote employment of minority group members
41 [and], women and veterans and promote and increase participation by
42 certified businesses with respect to state contracts and subcontracts.
43 Such reports shall be submitted periodically, but not less frequently
44 than annually, as required by the director, and shall include such
45 information as is necessary for the director to determine whether the
46 contracting agency and contractor have complied with the purposes of
47 this article, including, without limitation, a summary of all waivers of
48 the requirements of subdivisions six and seven of section three hundred
49 thirteen of this article allowed by the contracting agency during the
50 period covered by the report, including a description of the basis of
51 the waiver request and the rationale for granting any such waiver. Each
52 agency shall also include in such annual report whether or not it has
53 been required to prepare a remedial plan, and, if so, the plan and the
54 extent to which the agency has complied with each element of the plan.
55 4. The division of minority [and], women's and veterans' business
56 development shall issue an annual report which: (a) summarizes the
S. 5968 13
1 report submitted by each contracting agency pursuant to subdivision
2 three of this section; (b) contains such comparative or other informa-
3 tion as the director deems appropriate, including but not limited to
4 goals compared to actual participation of minority [and women-owned],
5 women and veteran-owned business enterprises in state contracting, to
6 evaluate the effectiveness of the activities undertaken by each such
7 contracting agency to promote increased participation by certified
8 minority [or women-owned], women or veteran-owned businesses with
9 respect to state contracts and subcontracts; (c) contains a summary of
10 all waivers of the requirements of subdivisions six and seven of section
11 three hundred thirteen of this article allowed by each contracting agen-
12 cy during the period covered by the report, including a description of
13 the basis of the waiver request and the contracting agency's rationale
14 for granting any such waiver; (d) describes any efforts to create a
15 database or other information storage and retrieval system containing
16 information relevant to contracting with minority [and women-owned],
17 women and veteran-owned business enterprises; and (e) contains a summary
18 of (i) all determinations of violations of this article by a contractor
19 or a contracting agency made during the period covered by the annual
20 report pursuant to section three hundred sixteen-a of this article and
21 (ii) the penalties or sanctions, if any, assessed in connection with
22 such determinations and the rationale for such penalties or sanctions.
23 Copies of the annual report shall be provided to the commissioner, the
24 governor, the comptroller, the temporary president of the senate, the
25 speaker of the assembly, the minority leader of the senate, the minority
26 leader of the assembly and shall also be made widely available to the
27 public via, among other things, publication on a website maintained by
28 the division of minority [and], women's and veterans' business develop-
29 ment.
30 5. Each agency shall include in its annual report to the governor and
31 legislature pursuant to section one hundred sixty-four of [the executive
32 law] this chapter its annual goals for contracts with minority-owned
33 [and], women-owned and veteran-owned business enterprises, the number of
34 actual contracts issued to minority-owned [and], women-owned and veter-
35 an-owned business enterprises; and a summary of all waivers of the
36 requirements of subdivisions six and seven of section three hundred
37 thirteen of this article allowed by the reporting agency during the
38 preceding year, including a description of the basis of the waiver
39 request and the rationale for granting such waiver. Each agency shall
40 also include in such annual report whether or not it has been required
41 to prepare a remedial plan, and, if so, the plan and the extent to which
42 the agency has complied with each element of the plan.
43 7. If it is determined by the director that any agency has failed to
44 act in good faith to implement the remedial action plan, pursuant to
45 subdivision six of this section within one year, the director shall
46 provide written notice of such a finding, which shall be publicly avail-
47 able, and direct implementation of remedial actions to:
48 (a) assure that sufficient and effective solicitation efforts to
49 women, veteran and minority-owned business enterprises are being made by
50 said agency;
51 (b) divide contract requirements, when economically feasible, into
52 quantities that will expand the participation of women, veteran and
53 minority-owned business enterprises;
54 (c) eliminate extended experience or capitalization requirements, when
55 programmatically and economically feasible, that will expand partic-
56 ipation by women, veteran and minority-owned business enterprises;
S. 5968 14
1 (d) identify specific proposed contracts as particularly attractive or
2 appropriate for participation by women, veteran and minority-owned busi-
3 ness enterprises with such identification to result from and be coupled
4 with the efforts of paragraphs (a), (b), and (c) of this subdivision;
5 and
6 (e) upon a finding by the director that an agency has failed to take
7 affirmative measures to implement the remedial plan and to follow any of
8 the remedial actions set forth by the director, and in the absence of
9 any objective progress towards the agency's goals, require some or all
10 of the agency's procurement, for a specified period of time, be placed
11 under the direction and control of another agency or agencies.
12 § 11. Section 316 of the executive law, as amended by chapter 175 of
13 the laws of 2010, is amended to read as follows:
14 § 316. Enforcement. Upon receipt by the director of a complaint by a
15 contracting agency that a contractor has violated the provisions of a
16 state contract which have been included to comply with the provisions of
17 this article or of a contractor that a contracting agency has violated
18 such provisions or has failed or refused to issue a waiver where one has
19 been applied for pursuant to subdivision six of section three hundred
20 thirteen of this article or has denied such application, the director
21 shall attempt to resolve the matter giving rise to such complaint. If
22 efforts to resolve such matter to the satisfaction of all parties are
23 unsuccessful, the director shall refer the matter, within thirty days of
24 the receipt of the complaint, to the division's hearing officers. Upon
25 conclusion of the administrative hearing, the hearing officer shall
26 submit to the director his or her decision regarding the alleged
27 violation of the contract and recommendations regarding the imposition
28 of sanctions, fines or penalties. The director, within ten days of
29 receipt of the decision, shall file a determination of such matter and
30 shall cause a copy of such determination along with a copy of this arti-
31 cle to be served upon the contractor by personal service or by certified
32 mail return receipt requested. The decision of the hearing officer shall
33 be final and may only be vacated or modified as provided in article
34 seventy-eight of the civil practice law and rules upon an application
35 made within the time provided by such article. The determination of the
36 director as to the imposition of any fines, sanctions or penalties shall
37 be reviewable pursuant to article seventy-eight of the civil practice
38 law and rules. The penalties imposed for any violation which is premised
39 upon either a fraudulent or intentional misrepresentation by the
40 contractor or the contractor's willful and intentional disregard of the
41 minority [and women-owned], women and veteran-owned participation
42 requirement included in the contract may include a determination that
43 the contractor shall be ineligible to submit a bid to any contracting
44 agency or be awarded any such contract for a period not to exceed one
45 year following the final determination; provided however, if a contrac-
46 tor has previously been determined to be ineligible to submit a bid
47 pursuant to this section, the penalties imposed for any subsequent
48 violation, if such violation occurs within five years of the first
49 violation, may include a determination that the contractor shall be
50 ineligible to submit a bid to any contracting agency or be awarded any
51 such contract for a period not to exceed five years following the final
52 determination. The division of minority [and women's], women's and
53 veterans' business development shall maintain a website listing all
54 contractors that have been deemed ineligible to submit a bid pursuant to
55 this section and the date after which each contractor shall once again
56 become eligible to submit bids.
S. 5968 15
1 § 12. Section 316-a of the executive law, as added by chapter 175 of
2 the laws of 2010, is amended to read as follows:
3 § 316-a. Prohibitions in contracts; violations. Every contracting
4 agency shall include a provision in its state contracts expressly
5 providing that any contractor who willfully and intentionally fails to
6 comply with the minority [and women-owned], women and veteran-owned
7 participation requirements of this article as set forth in such state
8 contract shall be liable to the contracting agency for liquidated or
9 other appropriate damages and shall provide for other appropriate reme-
10 dies on account of such breach. A contracting agency that elects to
11 proceed against a contractor for breach of contract as provided in this
12 section shall be precluded from seeking enforcement pursuant to section
13 three hundred sixteen of this article; provided however, that the
14 contracting agency shall include a summary of all enforcement actions
15 undertaken pursuant to this section in its annual report submitted
16 pursuant to subdivision three of section three hundred fifteen of this
17 article.
18 § 13. Section 317 of the executive law, as added by chapter 261 of the
19 laws of 1988, is amended to read as follows:
20 § 317. Superseding effect of article with respect to state law. The
21 provisions of this article shall supersede any other provision of state
22 law, which expressly implements or mandates an equal employment opportu-
23 nity program or a program for securing participation by minority [and
24 women-owned], women and veteran-owned business enterprises, concerning
25 action to be taken by any party to a state contract, to which the
26 provisions of this article apply; provided, however, that the provisions
27 of any state law, not as hereinabove superseded, which expressly imple-
28 ment or mandate such programs shall remain unimpaired by the provisions
29 of this article, except that the provisions of any such law shall be
30 construed as if the provisions of subdivisions five, six, seven and
31 eight of section three hundred thirteen and section three hundred
32 sixteen of this article were fully set forth therein and made applicable
33 only to complaints of violations under such provisions of law occurring
34 on or after September first, nineteen hundred eighty-eight; provided,
35 further, that nothing contained in this article shall be construed to
36 limit, impair, or otherwise restrict any state agency's authority or
37 discretionary power in effect prior to the enactment of this article to
38 establish or continue, by rule, regulation or resolution, an equal
39 opportunity program or a program for securing participation of minority
40 [and women-owned], women and veteran-owned business enterprises with
41 regard to banking relationships, the issuance of insurance policies or
42 contracts for the sale of bonds, notes or other securities; and,
43 provided further, that nothing contained in the immediately preceding
44 proviso shall be construed to create, impair, alter, limit, modify,
45 enlarge, abrogate or restrict any agency's authority or discretionary
46 power with respect to an equal opportunity program or a program for
47 securing participation of minority [and women-owned], women and veter-
48 an-owned enterprises.
49 § 14. Section 4-a of the executive law, as added by chapter 175 of the
50 laws of 2010, is amended to read as follows:
51 § 4-a. Chief diversity officer. A chief diversity officer for the
52 state shall be appointed by the governor and shall receive a salary to
53 be fixed by the governor within the amount appropriated therefor. The
54 chief diversity officer's responsibilities shall include the following:
S. 5968 16
1 1. Advise and assist the governor in formulating policies relating to
2 workforce diversity and minority [and], women's and veterans' business
3 enterprises;
4 2. Work with the director of the division of minority [and], women's
5 and veterans' business development to prepare an annual plan for ensur-
6 ing full compliance with article [fifteen-a of the executive law]
7 fifteen-A of this chapter by state agencies and the use of diversity
8 practices by such agencies;
9 3. Advise the governor and the agencies regarding any measures neces-
10 sary to ensure full compliance with article [fifteen-a] fifteen-A of
11 this chapter and use of diversity practices by state public authorities;
12 4. Serve as a member of the state procurement council established
13 under section one hundred sixty-one of the state finance law;
14 5. Serve as the governor's liaison with organizations representing
15 minority [and women-owned], women and veteran-owned business enterprises
16 and other organizations related to diversity in the state workforce and
17 in state contracting;
18 6. Serve as the governor's liaison to the small business advisory
19 council for issues related to the creation of a diverse workforce and
20 state procurement practices relating to minority [and women-owned],
21 women and veteran-owned business enterprises;
22 7. Review and consult with the director of minority [and], women's and
23 veterans' business development regarding policies relating to minority
24 [and women-owned], women and veteran-owned business enterprise contract
25 specialists at state agencies; and
26 8. Engage in other actions assigned to him or her by the governor
27 relating to diversity in hiring or promotion of the state workforce and
28 in encouraging diversity practices and compliance with article
29 [fifteen-a] fifteen-A of this chapter in procurement.
30 § 15. The article heading of article 4-A of the economic development
31 law, as added by chapter 55 of the laws of 1992, is amended to read as
32 follows:
33 DIVISION OF MINORITY [AND], WOMEN'S AND VETERANS' BUSINESS DEVELOPMENT
34 § 16. Section 115 of the economic development law, as added by chapter
35 55 of the laws of 1992, is amended to read as follows:
36 § 115. Definitions. As used in this article, the following terms shall
37 have the following meanings:
38 1. "Division" shall mean the division of minority [and], women's and
39 veterans' business development created by this article.
40 2. "Technical assistance" shall mean assistance and services designed
41 to improve the efficiency, effectiveness and viability of a minority [or
42 women-owned], women or veteran-owned business enterprise, including, but
43 not limited to, management assistance, problem solving, the development
44 of business and marketing plans, market analysis, financial planning,
45 regulatory compliance, safety and security measures, export assistance,
46 procurement assistance, application assistance, state program assist-
47 ance, referral to private and public financing sources, contracting
48 assistance, and other forms of assistance which the commissioner deems
49 necessary and appropriate.
50 § 17. Section 116 of the economic development law, as added by chapter
51 55 of the laws of 1992, is amended to read as follows:
52 § 116. Office of minority [and], women's and veterans' business devel-
53 opment; transfer. All the functions and powers possessed by and all the
54 obligations and duties of the governor's office of minority [and],
55 women's and veterans' business development office, created and estab-
56 lished in the executive law [pursuant to and by chapter two hundred
S. 5968 17
1 sixty-one of the laws of nineteen hundred eighty-eight], are hereby
2 transferred and assigned to, assumed by and devolved upon the department
3 of economic development.
4 § 18. Section 117 of the economic development law, as added by chapter
5 55 of the laws of 1992, is amended to read as follows:
6 § 117. Division of minority [and], women's and veterans' business
7 development. There is hereby created within the department of economic
8 development a division of minority and [women-owned], women and veter-
9 an-owned business development. The director of such division shall be
10 appointed by the governor, shall report directly to the commissioner on
11 the activities of the division, and shall hold office at the pleasure of
12 the commissioner. The commissioner may appoint such officers, employees,
13 agents, consultants and special committees as he or she may deem neces-
14 sary to carry out the provisions of this article and prescribe their
15 duties.
16 § 19. Section 118 of the economic development law, as added by chapter
17 55 of the laws of 1992 and subdivision 7 as further amended by section
18 15 of part GG of chapter 63 of the laws of 2000, is amended to read as
19 follows:
20 § 118. Power and duties. In addition to the power and duties conferred
21 by section one hundred sixteen of this article, the division shall have
22 the additional power and duty to:
23 1. Coordinate with all state agencies performing functions affecting
24 the operations of minority [business enterprises, and women-owned],
25 women and veteran-owned business enterprises, and veteran-owned business
26 enterprises as such terms are defined in section two hundred ten of this
27 chapter;
28 2. Receive complaints and inquiries of operators of minority [and
29 women-owned], women and veteran-owned business enterprises and refer
30 them to the appropriate federal, state or local agency for appropriate
31 action on such complaints;
32 3. Solicit recommendations from the operators of minority [and women-
33 owned], women and veteran-owned business enterprises for improving
34 existing state programs and refer such recommendations to the governor,
35 the legislature and appropriate state agencies or authorities;
36 4. Advise and make recommendations to the commissioner and the legis-
37 lature on matters affecting the minority [and women-owned], women or
38 veteran-owned business enterprises of the state and promote and encour-
39 age the protection of the legitimate interests of minority [and women-
40 owned], women or veteran-owned business enterprises within the state;
41 5. Conduct investigations, research, studies and analyses of matters
42 affecting the interests of minority [and women-owned], women and veter-
43 an-owned business enterprises;
44 6. Study the implementation of the laws affecting minority [and
45 women-owned], women and veteran-owned business enterprises and recommend
46 to the commissioner new laws and amendments of laws for the benefit of
47 minority [and women-owned], women and veteran-owned business enter-
48 prises; and review pending legislation affecting minority [and women-
49 owned], women and veteran-owned business enterprises and report its
50 findings to the commissioner;
51 7. Provide technical assistance and information to minority [and
52 women-owned], women and veteran-owned business enterprises in the state
53 on economic development programs administered by the department, includ-
54 ing, but not limited to: (a) the empire zones program, established
55 pursuant to article eighteen-B of the general municipal law, (b) the
56 industrial effectiveness program, established pursuant to article seven
S. 5968 18
1 of this chapter, (c) the economic development skills training program,
2 established pursuant to article eight of this chapter, and (d) the
3 entrepreneurial assistance program, established pursuant to article nine
4 of this chapter;
5 8. Provide technical assistance and information to minority [and
6 women-owned], women and veteran-owned business enterprises in the state
7 on economic development programs administered by agencies other than the
8 department, including, but not limited to programs administered by the
9 urban development corporation, the job development authority and the
10 science and technology foundation;
11 9. Be responsible for conducting minority [and women-owned], women and
12 veteran-owned business enterprise assistance programs and for coordinat-
13 ing the activities of all other state agencies acting within the scope
14 of this section; and
15 10. Carry out the activities to implement the minority [and women-
16 owned], women and veteran-owned business enterprise assistance programs,
17 to the extent practicable, within amounts appropriated therefor by;
18 (a) collecting and maintaining information identifying certified
19 minority [and women-owned], women and veteran-owned business enterprises
20 within New York state;
21 (b) collecting, maintaining, and providing information to potential
22 users identifying existing contracting and procurement opportunities
23 within and outside New York state;
24 (c) maintaining, providing and marketing a compilation of existing
25 programs providing assistance for minority [and women-owned], women and
26 veteran-owned business enterprises;
27 (d) identifying special needs and problems facing minority [and
28 women-owned], women and veteran-owned business enterprises within New
29 York state;
30 (e) contacting institutions, organizations and commercial enterprises
31 that are potential consumers of minority [and women-owned], women and
32 veteran-owned business products and services; urging their expanded
33 consumption of such goods and services;
34 (f) facilitating the establishment of minority [and women-owned],
35 women and veteran-owned business enterprises; and
36 (g) providing information concerning local and regional opportunities
37 for minority [and women-owned], women and veteran-owned business enter-
38 prises.
39 § 20. Subdivisions 1, 3 and 6 of section 120 of the economic develop-
40 ment law, subdivision 1 as amended by chapter 361 of the laws of 2009
41 and subdivisions 3 and 6 as added by chapter 55 of the laws of 1992, are
42 amended to read as follows:
43 1. There is hereby created in the division of minority [and], women's
44 and veterans' business development a minority [and women-owned], women
45 and veteran-owned business enterprise advisory board. The board shall
46 consist of twelve members to be appointed by the governor. The governor
47 shall designate a chairperson from the members of the advisory board, to
48 serve as such at the pleasure of the governor. In appointing the members
49 of the advisory board the governor shall ensure that six of the members
50 are individuals who are currently involved in the ownership and/or oper-
51 ation of a minority [or women-owned], women or veteran-owned business
52 enterprise or who have extensive experience in minority [and women-
53 owned], women and veteran-owned business enterprise ownership and/or
54 operation, and that at least two of the members are individuals repres-
55 enting banking, community development financial, insurance or surety
56 bonding institutions.
S. 5968 19
1 3. The advisory board shall meet regularly at least one time in each
2 year. Special meetings may be called by its chairperson and shall be
3 called by the chairperson at the request of the director of the division
4 of minority [and], women's and veterans' business development.
5 6. The board shall have the power and duty to:
6 (a) advise the commissioner in carrying out the functions, powers and
7 duties of the division, as set forth in this article;
8 (b) advise the commissioner, the governor, and the legislature
9 concerning recommended legislation necessary to foster and promote the
10 prosperity, expansion and development of minority [and women-owned],
11 women and veteran-owned business enterprises within the state;
12 (c) advise the commissioner, the governor, and the legislature
13 concerning existing laws, rules, regulations and practices of state
14 agencies which are counter-productive or inimical to the prosperity,
15 expansion and development of minority [and women-owned], women and
16 veteran-owned business enterprises within the state;
17 (d) advise the commissioner, the governor, and the legislature
18 concerning the development of inter-governmental cooperation among agen-
19 cies of the federal, state and local governments and cooperation between
20 private industry and government so as to assure the optimum development
21 of minority [and women-owned], women and veteran-owned business enter-
22 prises; and
23 (e) serve as a catalyst for creating and maintaining a minority [and
24 women-owned], women and veteran-owned business enterprise consciousness
25 in New York state.
26 (f) establish procedures for making annual awards to be known as "New
27 York State Minority [and Women-Owned], Women and Veteran-Owned Business
28 Excelsior Awards". These non-monetary awards shall be given in recogni-
29 tion of unusual performance by persons, firms and organizations which
30 are engaged in the operation of a New York state minority [and women-
31 owned], women and veteran-owned business enterprise or which are engaged
32 in activities to assist minority [and women-owned], women and veteran-
33 owned business enterprises in the state. The board may nominate up to
34 five award winners annually and forward such names to the governor for
35 consideration. The governor may designate award winners from these nomi-
36 nees. Current members of the advisory board are not eligible as nomi-
37 nees.
38 § 21. Section 210 of the economic development law is amended by adding
39 a new subdivision 6 to read as follows:
40 6. "Veteran-owned business enterprise" shall mean any business enter-
41 prise which is at least fifty-one per centum owned by, or in the case of
42 a publicly owned business at least fifty-one per centum of the stock of
43 which is owned by, citizens or permanent resident aliens who are veter-
44 ans where such ownership interest is real, substantial and continuing
45 and where such persons have the authority to independently control the
46 day-to-day business decisions of the entity.
47 § 22. Paragraph (h) of subdivision 6 of section 133 of the economic
48 development law as added by section 5 of part BB of chapter 59 of the
49 laws of 2006, is amended to read as follows:
50 (h) advise the commissioner on recommendations for the selection of a
51 minority [and women-owned], women and veteran-owned business enterprise
52 statewide advocate as set forth by section three hundred eleven-a of the
53 executive law.
54 § 23. Subdivision 1 of section 231 of the economic development law, as
55 amended by chapter 352 of the laws of 2009, is amended to read as
56 follows:
S. 5968 20
1 1. The department, through its regional offices, is authorized: (a) to
2 serve as a center for information regarding economic development
3 resources available from state, federal and local agencies; (b) to
4 provide outreach to businesses, with attention to small and medium-sized
5 businesses, including minority [and women-owned], women and veteran-
6 owned business enterprises, for financial and technical assistance
7 offered by state economic development agencies, authorities, or other
8 economic entities; (c) to serve as a regional center to accept applica-
9 tions for state economic development programs; (d) to coordinate the
10 economic development programs and activities of state agencies and
11 authorities within each region including, but not limited to, outreach
12 to businesses, technical assistance services, skills training assist-
13 ance, sharing of information, strategic economic development plans and
14 programs, to provide or arrange for assistance in compliance with feder-
15 al, state, and local rules, regulations, permits, and licenses, and
16 other measures to enhance regional economic development and eliminate
17 duplication of services; (e) to provide or arrange for assistance to
18 persons, firms, agencies, partnerships or corporations, either public or
19 private, in applying for assistance from state economic development
20 programs or for necessary licenses and permits or seeking to comply with
21 federal, state and local rules and regulations; (f) to review and
22 comment, within their knowledge and expertise, with respect to applica-
23 tions for state assistance in a timely manner and form prescribed by the
24 commissioner; (g) to distribute literature and marketing material
25 describing the facilities, advantages and attractions of the region for
26 business; (h) to provide economic development information, planning
27 services and technical assistance to counties and municipalities within
28 the region; (i) to provide information and assistance in the certif-
29 ication of minority [and women-owned], women and veteran-owned business
30 enterprises; (j) to provide or arrange for assistance to private sector
31 employers, whether operating for profit or not for profit, and to organ-
32 izations and associations of such employers in developing and implement-
33 ing innovative and flexible employee compensation, assistance and bene-
34 fit programs to enhance competitiveness and meet emerging demographic
35 and market conditions; and (k) to provide information and assistance to
36 small businesses on environmental compliance requirements of federal and
37 state law and pollution prevention opportunities in furtherance of poli-
38 cies and programs established in article twenty-eight of the environ-
39 mental conservation law and in coordination with the pollution
40 prevention and environmental compliance coordinating council established
41 in article twenty-eight of the environmental conservation law, including
42 programs operated by the department, the department of environmental
43 conservation or other state or local agencies from which technical
44 assistance, or loans, grants or other financial assistance for compli-
45 ance and pollution prevention may be obtained; and in providing such
46 information and assistance, to promote pollution prevention approaches.
47 § 24. Paragraph (i) of subdivision 3 of section 22-c of the state
48 finance law, as amended by section 1 of part O of chapter 59 of the laws
49 of 2009, is amended to read as follows:
50 (i) An explanation of any actions proposed to be taken to achieve
51 increased opportunity for meaningful participation in the performance of
52 state contracts by minority [and women-owned], women and veteran-owned
53 business enterprises in accordance with article fifteen-A of the execu-
54 tive law, including a compliance report to be submitted by July first of
55 each year commencing with the two thousand five--two thousand six fiscal
56 year and for each subsequent year thereafter that includes: all the
S. 5968 21
1 items of information required in accordance with regulations promulgated
2 by the director of the division of minority [and], women's and veterans'
3 business development in the department of economic development under
4 article fifteen-A of the executive law; goals for participation by
5 certified minority [or women-owned], women or veteran-owned business
6 enterprises for such fiscal year; and a description of the types of
7 expenditures, projects or contracts.
8 § 25. Paragraphs c and d of subdivision 2 of section 5 of the state
9 finance law, as added by chapter 171 of the laws of 2010, are amended to
10 read as follows:
11 c. Within the discretion of the deferred compensation board and in
12 accordance with and subject to its fiduciary duty and obligations to the
13 deferred compensation plan for state employees and to the members and
14 beneficiaries of such plan and such other investment limitations as may
15 be prescribed by this chapter, the deferred compensation board is
16 authorized to establish an [MWBE] MWVBE asset management and financial
17 institution strategy including reasonable goals for utilization of
18 [MWBE] MWVBE asset managers, [MWBE] MWVBE financial institutions and
19 [MWBE] MWVBE professional service firms, which shall include, but shall
20 not be limited to, the following objectives:
21 (i) conducting procurement procedures in a manner that will assure the
22 inclusion of [MWBE] MWVBE asset managers in any request for proposal or
23 search process for asset management services undertaken in accordance
24 with the rules and regulations and of the board;
25 (ii) subject to best execution policies, developing a strategy to (1)
26 conduct trades of public equity securities with [MWBE] MWVBE financial
27 institutions and (2) conduct trades of fixed-income securities through
28 [MWBE] MWVBE financial institutions;
29 (iii) conducting procurement procedures in a manner that will assure
30 the inclusion of [MWBE] MWVBE financial institutions and other [MWBE]
31 MWVBE professional service firms in procurements for services that
32 include accounting, banking, financial advisory, insurance, legal,
33 research, valuation and other financial and professional services that
34 are undertaken in accordance with the rules and regulations of the
35 board;
36 (iv) cooperating with other fiduciary controlled entities and state
37 agencies and offices to identify [MWBE] MWVBE asset managers, [MWBE]
38 MWVBE financial institutions and [MWBE] MWVBE professional service
39 firms.
40 As used in this section, the terms "[MWBE] MWVBE asset manager",
41 "[MWBE] MWVBE financial institutions", "[MWBE] MWVBE", "fiduciary-cont-
42 rolled entities" and "best execution" shall have the meanings specified
43 in section one hundred seventy-six of the retirement and social security
44 law.
45 d. The board is also authorized to:
46 (i) periodically provide notice of the existence of such strategy so
47 that [MWBE] MWVBE asset managers, [MWBE] MWVBE financial institutions
48 and other [MWBE] MWVBE professional service firms are made aware of the
49 opportunities made available pursuant to this strategy;
50 (ii) within sixty days of the end of each fiscal year following the
51 effective date of this paragraph, the board shall report to the gover-
52 nor, legislature and the chief diversity officer of the state of New
53 York on the participation of [MWBE] MWVBE asset managers, [MWBE] MWVBE
54 financial institutions and [MWBE] MWVBE professional service providers
55 in investment and brokerage transactions with or as providers of
56 services for the deferred compensation plans, including a comparative
S. 5968 22
1 analysis of such activity relative to such activity with all asset
2 managers, financial institutions and professional service providers for
3 the relevant period and on the progress and the success of the efforts
4 undertaken during such period to achieve the goals of such strategy.
5 Each report shall be simultaneously published on the website of the
6 deferred compensation plans for not less than sixty days following its
7 release to the governor and the other recipients named above;
8 (iii) work with the other fiduciary-controlled entities to create a
9 database of such [MWBE] MWVBE entities; and
10 (iv) periodically, but not less than annually, hold a conference to
11 promote such strategy in conjunction with the other fiduciary-controlled
12 entities.
13 § 26. Subdivisions 4, 6 and 7 of section 176 of the retirement and
14 social security law, as added by chapter 171 of the laws of 2010, are
15 amended to read as follows:
16 4. The term "[MWBE] MWVBE asset manager" shall mean an asset manager
17 in any of the following asset classes: public equity or fixed income
18 securities, hedge funds, fund of hedge funds, private equity (including
19 venture capital), fund of private equity funds, real estate investment
20 funds, fund of real estate funds, or any other asset class for which an
21 applicable fiduciary-controlled entity engages external asset managers
22 that is (a) a [MWBE] MWVBE; and (b) a registered investment advisor or
23 exempt from such registration and (c) certified pursuant to the
24 provisions of subdivision three of section four hundred twenty-three-c
25 of this chapter.
26 6. The term "[MWBE] MWVBE" for the purpose of engaging in business
27 with the fiduciary-controlled entities covered by this section, means a
28 business enterprise, including without limitation, a sole proprietor-
29 ship, partnership, limited partnership, limited liability partnership,
30 limited liability company, corporation or other similar entity whether
31 domestic or foreign, that is:
32 (a)(i) at least fifty-one percent owned by (A) one or more minority
33 group members, or (B) one or more women, or (C) one or more veterans in
34 each case, who have significant experience in asset management, broker-
35 age, other financial services or related professional services such as
36 accounting, valuation or legal services, or (ii) substantially owned
37 and/or operated by women, veterans or minority group members who have
38 significant experience in asset management, brokerage, other financial
39 services or related professional services such as accounting, valuation
40 or legal services;
41 (b) an enterprise in which such minority [or], women or veteran owner-
42 ship or operation is real, substantial and continuing;
43 (c) an enterprise in which such minority [or], women or veteran owner-
44 ship or operation has and exercises the authority to control independ-
45 ently the day-to-day business decisions of the enterprise;
46 (d) an enterprise authorized to do business in this state; and
47 (e) an enterprise certified by the state comptroller pursuant to
48 section four hundred twenty-three-c of this chapter.
49 7. The term "[MWBE] MWVBE financial institution" shall mean (a) as it
50 relates to brokerage services, a registered broker dealer that is an
51 [MWBE] MWVBE certified pursuant to the provisions of subdivision three
52 of section four hundred twenty-three-c of this chapter and (b) as it
53 relates to any other financial services, an [MWBE] MWVBE certified
54 pursuant to the provisions of subdivision three of section four hundred
55 twenty-three-c of this chapter that provides banking, financial advi-
S. 5968 23
1 sory, insurance, financial research, valuation or other financial
2 services.
3 § 27. Section 423-c of the retirement and social security law, as
4 added by chapter 171 of the laws of 2010, is amended to read as follows:
5 § 423-c. [MWBE] MWVBE asset management and financial institution stra-
6 tegy. 1. Within the discretion of the state comptroller and in accord-
7 ance with and subject to his or her fiduciary duties and obligations as
8 trustee of the common retirement fund and to the members, retirees and
9 beneficiaries of such fund and such other investment limitations as may
10 be prescribed by this chapter, the comptroller is authorized to estab-
11 lish an [MWBE] MWVBE asset management and financial institution strategy
12 including reasonable goals for utilization of [MWBE] MWVBE asset manag-
13 ers, [MWBE] MWVBE financial institutions and [MWBE] MWVBE financial and
14 professional service firms, which strategy shall include, but shall not
15 be limited to, the following objectives:
16 (a) investing assets of the common retirement fund with [MWBE] MWVBE
17 asset managers;
18 (b) subject to best execution: (i) conducting trades of public equity
19 securities with [MWBE] MWVBE financial institutions; and (ii) conducting
20 trades of fixed-income securities through [MWBE] MWVBE financial insti-
21 tutions;
22 (c) allocating investments of assets of the common retirement fund
23 either through: (i) direct investments in the equities and debt securi-
24 ties of [MWBEs] MWVBEs; or (ii) indirectly through special programs
25 involving [MWBE] MWVBE asset managers; and
26 (d) awarding contracts for accounting, banking, financial advisory,
27 insurance, legal, research, valuation and other financial and profes-
28 sional services to [MWBE] MWVBE financial institutions and other [MWBE]
29 MWVBE professional service firms.
30 2. The comptroller is also authorized to: (a) periodically advertise
31 the existence of the strategy established in this section so that [MWBE]
32 MWVBE asset managers, [MWBE] MWVBE financial institutions and other
33 [MWBE] MWVBE professional service firms are made aware of the opportu-
34 nities made available pursuant to such strategy;
35 (b) within sixty days of the end of each fiscal year following the
36 effective date of this section, the state comptroller shall report to
37 the governor, legislature and the chief diversity officer of the state
38 of New York on the participation of [MWBE] MWVBE asset managers, [MWBE]
39 MWVBE financial institutions and [MWBE] MWVBE professional service
40 providers in investment and brokerage transactions with or as providers
41 of services for the common retirement fund, including a comparative
42 analysis of such activity relative to such activity with all asset
43 managers, financial institutions and professional service providers for
44 the relevant period and on the progress and success of the efforts
45 undertaken during such period to achieve the goals of such strategy.
46 Each report shall be simultaneously published on the website of the
47 common retirement fund for not less than sixty days following its
48 release to the governor and the other recipients named above;
49 (c) work with the other fiduciary-controlled entities to create a
50 database of such [MWBE] MWVBE entities; and
51 (d) periodically, but not less than annually, hold a conference to
52 promote such strategy in conjunction with the other fiduciary-controlled
53 entities.
54 3. (a) The state comptroller shall establish and adopt a certification
55 process and guidelines for the sole purpose of identification and
56 reporting on [MWBE] MWVBE firms providing asset management, brokerage,
S. 5968 24
1 or other financial or professional services as such term is defined in
2 subdivision six of section one hundred seventy-six of this chapter. Such
3 certification shall differentiate and the comptroller shall maintain
4 separate categories for [MWBE] MWVBE asset managers meeting the criteria
5 of subparagraph (i) of paragraph (a) of subdivision six of section one
6 hundred seventy-six of this chapter and [MWBE] MWVBE asset managers
7 meeting the criteria of subparagraph (ii) of paragraph (a) of such
8 subdivision.
9 (b) Such certification process shall include, but need not be limited
10 to, a request for the following information relating to each managing
11 principal, principal, operating principal, chief financial officer,
12 operating vice-president, vice-president, partner, owner and employee
13 associated with a prospective [MWBE] MWVBE entity:
14 (i) title;
15 (ii) position;
16 (iii) ownership percentage;
17 (iv) ethnicity;
18 (v) gender; and
19 (vi) length of service.
20 § 28. Section 147 of the state finance law, as added by chapter 360 of
21 the laws of 2009, is amended to read as follows:
22 § 147. Mentor-protege program. 1. In every state agency, department
23 and authority which has let more than ten million dollars in service and
24 construction contracts in the prior fiscal year, the chief executive
25 officer of that agency, department or authority shall develop a mentor-
26 protege program to foster long-term relationships between approved
27 mentor firms, and small business concerns and minority [and
28 women-owned], women and veteran-owned businesses certified pursuant to
29 article fifteen-A of the executive law, in order to enhance the capabil-
30 ities of small and minority [and women-owned], women and veteran-owned
31 business concerns, improve their success in contracting with the state
32 or receiving subcontracts under a state contract, and to create sources
33 of reliable contractors and subcontractors ready to perform larger jobs
34 and responsibilities. Participation in the program shall be voluntary
35 for both the mentor firm and the protege firm.
36 2. The chief executive officer of each agency, department or authori-
37 ty, in consultation with the division of minority [and], women's and
38 veterans' business development and the division for small-business shall
39 develop requirements for:
40 (a) approval of contractors participating in the program established
41 pursuant to subdivision one of this section, to be known, for the
42 purposes of such program, as "mentor firms". Mentor firms must demon-
43 strate commitment and ability to assist protege firms, including favora-
44 ble financial health, good character, and experience in contracting with
45 the state. Once approved, a mentor firm must annually certify that it
46 continues to possess good character and a favorable financial position.
47 Incentives for mentor firms to participate in the program may include:
48 (i) where contracts are awarded by best value, additional evaluation
49 points as specified in the request for proposal; and (ii) where protege
50 firms are certified minority [and women-owned], women and veteran-owned
51 businesses, credit towards fulfillment of minority [and women-owned],
52 women and veteran-owned business participation requirements, including
53 without limitation additional credit towards fulfillment of minority
54 [and women-owned], women and veteran-owned business subcontracting
55 participation goals based on costs incurred by a mentor firm in provid-
S. 5968 25
1 ing assistance to a certified minority [and women-owned], women and
2 veteran-owned business protege firm.
3 (b) approval for small and certified minority [and women-owned], women
4 and veteran-owned business concerns receiving assistance under the
5 program established pursuant to subdivision one of this section, to be
6 known, for the purposes of such program, as "protege firms". A protege
7 firm may have only one mentor at a time and may participate in the
8 mentor-protege program for a maximum of five years.
9 (c) a process by which each mentor firm, before providing assistance
10 to a protege firm under the program, shall enter into a mentor-protege
11 agreement regarding the assistance to be provided by the mentor firm,
12 for a period as determined by the chief executive officer of the agency,
13 department or authority. A mentor firm may provide a protege firm with
14 assistance and training in general business management; financial
15 management, engineering, safety and technical matters; bonding assist-
16 ance or bonding waivers; subcontracts; rent-free use of facilities
17 and/or equipment; joint venture arrangements; and any other assistance
18 as determined by the chief executive officer of the agency, department
19 or authority. Mentor-protege agreements shall be approved by the chief
20 executive officer of the agency, department or authority, and shall
21 provide that either party may terminate the agreement with thirty days
22 advance notice and notice to the chief executive officer. No determi-
23 nation of affiliation or control may be found between a protege firm and
24 its mentor firm based on the mentor-protege agreement or any assistance
25 provided pursuant to such agreement.
26 § 29. Subdivision 7 of section 2777 of the public authorities law, as
27 added by chapter 686 of the laws of 1993, is amended to read as follows:
28 7. It is hereby found and declared that it has been and remains the
29 policy of the state of New York to promote equal opportunity in employ-
30 ment for all persons, without discrimination on account of race, creed,
31 color, national origin, sex, age, disability or marital status, to
32 promote equality of economic opportunity for minority group members
33 [and], women and veterans, and business enterprises owned by them, and
34 to eradicate the effects of private and governmental discrimination
35 which has erected and continues to maintain barriers that unreasonably
36 impair access by minority [and women-owned], women and veteran-owned
37 business enterprises to state contract opportunities.
38 Recent reviews and analyses of contracting in New York, including the
39 study by the division of minority [and], women's and veterans' business
40 development of the department of economic development entitled "Opportu-
41 nity Denied! A Study of Racial and Sexual Discrimination Related to
42 Government Contracting in New York State," confirm through direct
43 evidence of racial and sexual discrimination in and by New York state
44 sufficient to justify race and sex conscious remedies. For the purpose
45 of furthering the state's compelling interest in eradicating the effects
46 of racial and sexual discrimination therefore, it is necessary and prop-
47 er that article fifteen-A of the executive law, concerning participation
48 by minority group members [and], women and veterans and business enter-
49 prises owned by them, shall apply to the Albany county airport authori-
50 ty.
51 § 30. Subdivisions 3 and 6 of section 2879 of the public authorities
52 law, subdivision 3 as amended by chapter 564 of the laws of 1988, para-
53 graph (b) of subdivision 3 as amended by chapter 45 of the laws of 1994,
54 subparagraph (iv) of paragraph (b) of subdivision 3 as amended by chap-
55 ter 383 of the laws of 1994, paragraph (m) of subdivision 3 as added by
56 chapter 862 of the laws of 1990, paragraph (n) of subdivision 3 as
S. 5968 26
1 amended by chapter 531 of the laws of 1993, paragraphs (o) and (p) of
2 subdivision 3 as added by chapter 844 of the laws of 1992, subparagraph
3 (i) of paragraph (b) of subdivision 3 and subdivision 6 as amended,
4 paragraphs (f), (g), (h), (i) and (j) of subdivision 3 as added and
5 paragraphs (k), (l), (m), (n), (o) and (p) of subdivision 3 as relet-
6 tered by chapter 174 of the laws of 2010, are amended to read as
7 follows:
8 3. The guidelines approved by the corporation shall include, but not
9 be limited to the following:
10 (a) A description of the types of goods purchased, and for procurement
11 contracts for services, a description of those areas of responsibility
12 and oversight requiring the use of personal services and the reasons for
13 the use of personal services in such areas.
14 (b) Requirements regarding the selection of contractors, which shall
15 include provisions:
16 (i) for the selection of such contractors on a competitive basis, and
17 provisions relating to the circumstances under which the board may by
18 resolution waive competition, including, notwithstanding any other
19 provision of law requiring competition, the purchase of goods or
20 services from small business concerns or those certified as minority [or
21 women-owned], women or veteran-owned business enterprises, or goods or
22 technology that are recycled or remanufactured, in an amount not to
23 exceed two hundred thousand dollars without a formal competitive proc-
24 ess;
25 (ii) describing when the award of procurement contracts shall require
26 approval of the board by resolution, provided that any contract involv-
27 ing services to be rendered over a period in excess of one year shall
28 require the approval of the board by resolution and an annual review of
29 the contract by the board;
30 (iii) setting forth responsibilities of contractors;
31 (iv) as used in this subparagraph, the term "professional firm" shall
32 be defined as any individual or sole proprietorship, partnership, corpo-
33 ration, association, or other legal entity permitted by law to practice
34 the professions of architecture, engineering or surveying.
35 The corporation shall not refuse to negotiate with a professional firm
36 solely because the ratio of the "allowable indirect costs" to direct
37 labor costs of the professional firm or the hourly labor rate in any
38 labor category of the professional firm exceeds a limitation generally
39 set by the corporation in the determination of the reasonableness of the
40 estimated cost of services to be rendered by the professional firm, but
41 rather the corporation should also consider the reasonableness of cost
42 based on the total estimated cost of the service of the professional
43 firm which should include, among other things, all the direct labor
44 costs of the professional firm for such services plus all "allowable
45 indirect costs," other direct costs, and negotiated profit of the
46 professional firm. "Allowable indirect costs" of a professional firm are
47 defined as those costs generally associated with overhead which cannot
48 be specifically identified with a single project or contract and are
49 considered reasonable and allowable under specific state contract or
50 allowability limits.
51 (c) An identification of those areas or types of contracts for which
52 minority [or women-owned], women or veteran-owned business enterprises
53 may best bid so as to promote and assist participation by such enter-
54 prises and facilitate a fair share of the awarding of contracts to such
55 enterprises. For the purposes of this section, a minority business
S. 5968 27
1 enterprise means any business enterprise, including a sole proprietor-
2 ship, partnership or corporation that is:
3 (i) at least fifty-one percent owned by one or more minority group
4 members or in the case of a publicly-owned business at least fifty-one
5 percent of the common stock or other voting interests of which is owned
6 by one or more minority group members;
7 (ii) an enterprise in which the minority ownership is real, substan-
8 tial and continuing;
9 (iii) an enterprise in which the minority ownership has and exercises
10 the authority to control independently the day-to-day business decisions
11 of the enterprise; and
12 (iv) an enterprise authorized to do business in New York state, inde-
13 pendently owned and operated, and not dominant in its field.
14 (d) For the purposes of this section, a minority group member means a
15 United States citizen or permanent resident alien who is and can demon-
16 strate membership in one of the following groups:
17 (i) Black persons having origins in any of the Black African racial
18 groups not of Hispanic origin;
19 (ii) Hispanic persons of Mexican, Puerto Rican, Dominican, Cuban,
20 Central or South American of either Indian or Hispanic origin, regard-
21 less of race;
22 (iii) Asian and Pacific Islander persons having origins in any of the
23 Far East, Southeast Asia, the Indian sub-continent or the Pacific
24 Islands; or
25 (iv) Native American persons having origins in any of the original
26 peoples of North America.
27 (e) For the purposes of this section, a women-owned business enter-
28 prise means a business enterprise, including a sole proprietorship,
29 partnership or corporation which is:
30 (i) at least fifty-one percent owned by one or more United States
31 citizens or permanent resident aliens who are women or in the case of a
32 publicly-owned business at least fifty-one percent of the common stock
33 or other voting interests of which is owned by United States citizens or
34 permanent resident aliens who are women;
35 (ii) an enterprise in which the ownership interest of women is real,
36 substantial and continuing;
37 (iii) an enterprise in which the women ownership has and exercises the
38 authority to control independently the day-to-day business decisions of
39 the enterprise; and
40 (iv) an enterprise authorized to do business in New York state, inde-
41 pendently owned and operated, and not dominant in its field.
42 (e-1) For the purposes of this section, a veteran-owned business
43 enterprise means a business enterprise, including a sole proprietorship,
44 partnership or corporation which is:
45 (i) at least fifty-one percent owned by one or more United States
46 citizens or permanent resident aliens who are veterans or in the case of
47 a publicly-owned business at least fifty-one percent of the common stock
48 or other voting interests of which is owned by United States citizens or
49 permanent resident aliens who are veterans;
50 (ii) an enterprise in which the ownership interest of veterans is
51 real, substantial and continuing;
52 (iii) an enterprise in which the veteran ownership has and exercises
53 the authority to control independently the day-to-day business decisions
54 of the enterprise; and
55 (iv) an enterprise authorized to do business in New York state, inde-
56 pendently owned and operated, and not dominant in its field.
S. 5968 28
1 (f) Requirements for the designation of one or more senior staff of
2 the corporation to oversee the corporation's programs established to
3 promote and assist: (i) participation by certified minority [or women-
4 owned], women or veteran-owned business enterprises in the corporation's
5 procurement opportunities and facilitation of the award of procurement
6 contracts to such enterprises; (ii) the utilization of certified minori-
7 ty [and women-owned], women and veteran-owned business enterprises as
8 subcontractors and suppliers by entities having procurement contracts
9 with the corporation; and (iii) the utilization of partnerships, joint
10 ventures or other similar arrangements between certified minority [and
11 women-owned], women and veteran-owned business enterprises and other
12 entities having procurement contracts with the corporation. Such staff
13 shall be familiar with the procurement of the types of construction,
14 financial, legal or professional services utilized by the corporation,
15 report directly to the corporation's executive director, president or
16 chief executive officer and either directly or through their designees
17 participate in the procurement process.
18 (g) Requirements for providing notice, in addition to any other notice
19 of procurement opportunities required by law, to professional and other
20 organizations that serve minority [and women-owned], women and veteran-
21 owned business enterprises providing the types of services procured by
22 the corporation.
23 (h) Procedures for maintaining lists of qualified certified minority
24 [and women-owned], women and veteran-owned business enterprises, includ-
25 ing professional firms that have expressed an interest in doing business
26 with the corporation and ensuring that such lists are updated regularly.
27 The corporation shall also consult the lists of certified minority [and
28 women-owned], women and veteran-owned business enterprises maintained by
29 the department of economic development pursuant to article fifteen-A of
30 the executive law.
31 (i) The establishment of appropriate goals for participation by minor-
32 ity [or women-owned], women or veteran-owned business enterprises in
33 procurement contracts awarded by the corporation and for the utilization
34 of minority [and women-owned], women or veteran-owned enterprises as
35 subcontractors and suppliers by entities having procurement contracts
36 with the corporation. Statewide numerical participation target goals
37 shall be established by each authority based on the findings of the two
38 thousand ten disparity study and thereafter the two thousand fifteen
39 disparity study.
40 (j) Requirements to conduct procurements in a manner that will enable
41 the corporation to achieve the maximum feasible portion of the goals
42 established pursuant to paragraph (i) of this subdivision and that elim-
43 inates barriers to participation by minority [and women-owned], women
44 and veteran-owned business enterprises in the corporation's procure-
45 ments. Such procurement requirements shall include the following:
46 (A) Measures and procedures to ensure that certified businesses shall
47 be given the opportunity for maximum feasible participation in the
48 performance of state contracts and to assist in the corporation's iden-
49 tification of those state contracts for which certified businesses may
50 best bid to actively and affirmatively promote and assist their partic-
51 ipation in the performance of state contracts so as to facilitate the
52 corporation's achievement of the maximum feasible portion of the goals
53 for state contracts to such businesses;
54 (B) Provisions designating the division of minority [and women-owned],
55 women and veteran-owned business development to certify and decertify
56 minority [and women-owned], women and veteran-owned business enterprises
S. 5968 29
1 for all corporations through a single process that meets applicable
2 state and federal requirements;
3 (C) A requirement that each contract solicitation document accompany-
4 ing each solicitation set forth the expected degree of minority [and
5 women-owned], women and veteran-owned business enterprise participation
6 based, in part, on:
7 I. the potential subcontract opportunities available in the prime
8 procurement contract; and
9 II. the availability of certified minority [and women-owned], women
10 and veteran-owned business enterprises to respond competitively to the
11 potential subcontract opportunities;
12 (D) A requirement that each corporation provide a current list of
13 certified minority business enterprises to each prospective contractor;
14 (E) Provisions relating to joint ventures, under which a bidder may
15 count toward meeting its minority business enterprise participation
16 goal, the minority [and women-owned], women and veteran-owned business
17 enterprise portion of the joint venture;
18 (F) Provisions under which the corporation may waive obligations of
19 the contractor relating to minority [and women-owned], women and veter-
20 an-owned business enterprise participation after a showing of good faith
21 efforts to comply with the requirements of this act pursuant to the
22 waiver provisions contained in subdivision six of section three hundred
23 thirteen of the executive law;
24 (G) A requirement that the corporation verify that minority [and
25 women-owned], women and veteran-owned business enterprises listed in a
26 successful bid are actually participating to the extent listed in the
27 project for which the bid was submitted;
28 (H) In the implementation of this section, the contracting corporation
29 shall:
30 I. consider, where practicable, the severability of construction
31 projects and other bundled contracts;
32 II. implement a program that will enable the corporation to evaluate
33 each contract to determine the appropriateness of the goal pursuant to
34 paragraph (i) of this subdivision;
35 III. consider compliance with the requirements of any federal law
36 concerning opportunities for minority [and women-owned], women and
37 veteran-owned business enterprises which effectuates the purpose of this
38 section; and
39 IV. consult the most recent disparity study pursuant to article
40 fifteen-A of the executive law.
41 (k) A listing of the types of provisions to be contained in procure-
42 ment contracts, including provisions concerning the nature and monitor-
43 ing of the work to be performed, the use of corporate supplies and
44 facilities, the use of corporate personnel and any other provisions.
45 (l) Provisions regarding procurement contracts which involve former
46 officers or employees of the corporation.
47 (m) Procedures regarding procurement contracts which are exempt from
48 the publication requirements of article four-C of the economic develop-
49 ment law.
50 (n) Policies to promote the participation by New York state business
51 enterprises and New York state residents in procurement contracts,
52 including, but not limited to:
53 (i) providing for the corporation to collect and to consult the spec-
54 ifications of New York state business enterprises in developing specifi-
55 cations for any procurement contract for the purchase of goods where
56 possible, practicable, feasible and consistent with open bidding, except
S. 5968 30
1 for procurement contracts for which the corporation would be expending
2 funds received from another state. The corporation shall, where feasi-
3 ble, make use of the stock item specification forms prepared by the
4 commissioner of general services, and where necessary, consult with the
5 commissioner of the office of general services, in developing such spec-
6 ifications and make such determinations; and
7 (ii) with the cooperation of the department of economic development
8 and through cooperative efforts with contractors, providing for the
9 notification of New York state business enterprises of opportunities to
10 participate as subcontractors and suppliers on procurement contracts let
11 by the corporation in an amount estimated to be equal to or greater than
12 one million dollars and promulgating procedures which will assure
13 compliance by contractors with such notification. Once awarded the
14 contract such contractors shall document their efforts to encourage the
15 participation of New York state business enterprises as suppliers and
16 subcontractors on procurement contracts equal to or greater than one
17 million dollars. Documented efforts by a successful contractor shall
18 consist of and be limited to showing that such contractor has (a) solic-
19 ited bids, in a timely and adequate manner, from New York state business
20 enterprises including certified minority [and women-owned], women and
21 veteran-owned business, or (b) contacted the New York state department
22 of economic development to obtain listings of New York state business
23 enterprises, or (c) placed notices for subcontractors and suppliers in
24 newspapers, journals and other trade publications distributed in New
25 York state, or (d) participated in bidder outreach conferences. If the
26 contractor determines that New York state business enterprises are not
27 available to participate on the contract as subcontractors or suppliers,
28 the contractor shall provide a statement indicating the method by which
29 such determination was made. If the contractor does not intend to use
30 subcontractors on the contract, the contractor shall provide a statement
31 verifying such intent; and
32 (iii) except for procurement contracts for which the corporation would
33 be expending funds received from another state, the corporation shall
34 include in all bid documents provided to potential bidders a statement
35 that information concerning the availability of New York state subcon-
36 tractors and suppliers is available from the New York state department
37 of economic development, which shall include the directory of certified
38 minority [and women-owned], women and veteran-owned businesses, and it
39 is the policy of New York state to encourage the use of New York state
40 subcontractors and suppliers, and to promote the participation of minor-
41 ity [and women-owned], women and veteran-owned businesses where possi-
42 ble, in the procurement of goods and services; and
43 (iv) with the cooperation of the community services division of the
44 department of labor and through cooperative efforts with contractors,
45 providing for the notification of New York state residents of employment
46 opportunities arising in New York state out of procurement contracts let
47 by the corporation in an amount estimated to be equal to or greater than
48 one million dollars; and promulgating procedures which will assure
49 compliance by contractors with such notification by requiring contrac-
50 tors to submit post-award compliance reports documenting their efforts
51 to provide such notification through listing any such positions with the
52 community services division, or providing for such notification in such
53 manner as is consistent with existing collective bargaining contracts or
54 agreements; and
55 (v) including in each set of documents soliciting bids on procurement
56 contracts to let by the corporation a statement notifying potential
S. 5968 31
1 bidders located in foreign countries that the corporation may assign or
2 otherwise transfer offset credits created by such procurement contract
3 to third parties located in New York state; providing for the assignment
4 or other form of transfer of offset credits created by such procurement
5 contracts, directly or indirectly, to third parties located in New York
6 state, in accordance with the written directions of the commissioner of
7 economic development; and providing for the corporation to otherwise
8 cooperate with the department of economic development in efforts to get
9 foreign countries to recognize offset credits assigned or transferred to
10 third parties located in New York state created by such procurement
11 contracts; and
12 (vi) promulgating procedures which will assure compliance with the
13 federal equal employment opportunity act of 1972 (P.L. 92-261), as
14 amended, by contractors of the corporation.
15 (o) For the purposes of this section, a "New York state business
16 enterprise" means a business enterprise, including a sole proprietor-
17 ship, partnership, or corporation, which offers for sale or lease or
18 other form of exchange, goods which are sought by the corporation and
19 which are substantially manufactured, produced or assembled in New York
20 state, or services which are sought by the corporation and which are
21 substantially performed within New York state.
22 (p) For the purposes of this section, a "New York resident" means a
23 natural person who maintains a fixed, permanent and principal home
24 located within New York state and to which such person, whenever tempo-
25 rarily located, always intends to return.
26 6. Each corporation, as part of the guidelines established pursuant to
27 subdivision three of this section, shall establish policies regarding
28 the preparation of publicly available reports on procurement contracts
29 entered into by such corporation. Such policies shall provide, at the
30 minimum, for the preparation of a report no less frequently than annual-
31 ly, summarizing procurement activity by such corporation for the period
32 of the report, including a listing of all procurement contracts entered
33 into, all contracts entered into with New York state business enter-
34 prises and the subject matter and value thereof, all contracts entered
35 into with certified minority [or women-owned], women or veteran-owned
36 business enterprises and the subject matter and value thereof, all
37 referrals made and all penalties imposed pursuant to section three
38 hundred sixteen of the executive law, all contracts entered into with
39 foreign business enterprises, and the subject matter and value thereof,
40 the selection process used to select such contractors, all procurement
41 contracts which were exempt from the publication requirements of article
42 four-C of the economic development law, the basis for any such exemption
43 and the status of existing procurement contracts.
44 § 31. Section 6-129 of the administrative code of the city of New
45 York, as amended by local law number 1 of the city of New York for the
46 year 2013, is amended to read as follows:
47 § 6-129. Participation by minority-owned [and], women-owned and veter-
48 an-owned business enterprises and emerging business enterprises in city
49 procurement.
50 a. Programs established. There are hereby established a program, to be
51 administered by the department of small business services in accordance
52 with the provisions of this section, designed to enhance participation
53 by minority-owned [and], women-owned and veteran-owned business enter-
54 prises in city procurement and a program, also to be administered by
55 such department in accordance with the provisions of this section,
S. 5968 32
1 designed to enhance participation by emerging business enterprises in
2 city procurement.
3 b. Policy. It is the policy of the city to seek to ensure fair partic-
4 ipation in city procurement; and in furtherance of such policy to fully
5 and vigorously enforce all laws prohibiting discrimination, and to
6 promote equal opportunity in city procurement by vigorously enforcing
7 the city's contractual rights and pursuing its contractual remedies. The
8 program established pursuant to this section is intended to address the
9 impact of discrimination on the city's procurement process, and to
10 promote the public interest in avoiding fraud and favoritism in the
11 procurement process, increasing competition for city business, and
12 lowering contract costs.
13 c. Definitions. For purposes of this section, the following terms
14 shall have the following meaning:
15 (1) "Agency" means a city, county, borough, or other office, position,
16 administration, department, division, bureau, board or commission, or a
17 corporation, institution or agency of government, the expenses of which
18 are paid in whole or in part from the city treasury.
19 (2) "Agency chief contracting officer" means the individual to whom an
20 agency head has delegated authority to organize and supervise the agen-
21 cy's procurement activity.
22 (3) "Availability rate" means the percentage of business enterprises
23 within an industry classification that are owned by minorities, women,
24 veterans or individuals who are socially and economically disadvantaged
25 willing and able to perform agency contracts.
26 (4) "Bidder" means any person submitting a bid or proposal in response
27 to a solicitation for such bid or proposal from an agency.
28 (5) "Bidders list" or "proposers list" means a list maintained by an
29 agency that includes persons from whom bids or proposals can be solicit-
30 ed.
31 (6) "City" means the city of New York.
32 (7) "City chief procurement officer" means the individual to whom the
33 mayor has delegated authority to coordinate and oversee the procurement
34 activity of mayoral agency staff, including the agency chief contracting
35 officers and any offices that have oversight responsibility for procure-
36 ment.
37 (8) "Commercially useful function" means a real and actual service
38 that is a distinct and verifiable element of the work called for in a
39 contract. In determining whether an MBE, WBE, VBE or EBE is performing a
40 commercially useful function, factors including but not limited to the
41 following shall be considered:
42 (a) whether it has the skill and expertise to perform the work for
43 which it is being utilized, and possesses all necessary licenses;
44 (b) whether it is in the business of performing, managing or supervis-
45 ing the work for which it has been certified and is being utilized; and
46 (c) whether it purchases goods and/or services from another business
47 and whether its participation in the contract would have the principal
48 effect of allowing it to act as a middle person or broker in which case
49 it may not be considered to be performing a commercially useful function
50 for purposes of this section.
51 (9) "Commissioner" shall mean the commissioner of small business
52 services.
53 (10) "Construction" means construction, reconstruction, demolition,
54 excavation, renovation, alteration, improvement, rehabilitation, or
55 repair of any building, facility, physical structure of any kind.
S. 5968 33
1 (11) "Contract" means any agreement, purchase order or other instru-
2 ment whereby the city is committed to expend or does expend funds in
3 return for goods, professional services, standard services, or
4 construction.
5 (12) "Contractor" means a person who has been awarded a contract by a
6 city agency.
7 (13) "Direct subcontractor" means a person who has entered into an
8 agreement with a contractor to provide services or perform work that is
9 required pursuant to a contract with a city agency.
10 (14) "Director" means an individual designated by the mayor to perform
11 the oversight functions of the director described in this section, who
12 either reports directly to the mayor or is a commissioner.
13 (15) "Directory" means a list prepared by the division of firms certi-
14 fied pursuant to section 1304 of the charter.
15 (16) "Division" shall mean the division of economic and financial
16 opportunity within the department of small business services.
17 (17) "EBE" means an emerging business enterprise certified in accord-
18 ance with section 1304 of the charter.
19 (18) "Geographic market of the city" means the following counties:
20 Bronx, Kings, New York, Queens, Richmond, Nassau, Putnam, Rockland,
21 Suffolk and Westchester within the State of New York; and Bergen,
22 Hudson, and Passaic within the state of New Jersey.
23 (19) "Goal" means a numerical target.
24 (20) "Graduate MBE," "graduate WBE," "graduate VBE," or "graduate EBE"
25 means an MBE, WBE, VBE or EBE which shall have been awarded contracts by
26 one or more agencies within the past three years where the total city
27 funding from the expense and capital budgets for such contracts was
28 equal to or greater than fifty million dollars and whose size has
29 exceeded the size standards established for its industry by the United
30 States small business administration for three years.
31 (21) "Human services" means services provided to third parties,
32 including social services such as day care, foster care, home care,
33 homeless assistance, housing and shelter assistance, preventive
34 services, youth services, and senior centers; health or medical services
35 including those provided by health maintenance organizations; legal
36 services; employment assistance services, vocational and educational
37 programs; and recreation programs.
38 (22) "Indirect subcontractor" means a person who has entered into an
39 agreement with a direct subcontractor to provide services or perform
40 work that is required pursuant to the direct subcontractor's contract
41 with a contractor.
42 (23) "Industry classification" means one of the following classifica-
43 tions:
44 (a) construction;
45 (b) professional services;
46 (c) standard services; and
47 (d) goods.
48 (24) "Joint venture" means an association, of limited scope and dura-
49 tion, between two or more persons who have entered into an agreement to
50 perform and/or provide services required by a contract, in which each
51 such person contributes property, capital, effort, skill and/or know-
52 ledge, and in which each such person is entitled to share in the profits
53 and losses of the venture in reasonable proportion to the economic value
54 of its contribution.
55 (25) "MBE" means a minority-owned business enterprise certified in
56 accordance with section 1304 of the charter.
S. 5968 34
1 (26) "Minority group" means Black Americans; Asian Americans, and
2 Hispanic Americans, provided that the commissioner shall be authorized
3 to add additional groups to this definition upon a finding that there is
4 statistically significant disparity between the availability of firms
5 owned by individuals in such a group and the utilization of such firms
6 in city procurement.
7 (27) "Non-certified firm" means a business enterprise that has not
8 been certified as an MBE, WBE or EBE in accordance with section 1304 of
9 the charter or VBE.
10 (28) "Person" means any business, individual, partnership, corpo-
11 ration, firm, company, or other form of doing business.
12 (29) "Professional services" means services that require specialized
13 skills and the exercise of judgment, including but not limited to
14 accountants, lawyers, doctors, computer programmers and consultants,
15 architectural and engineering services, and construction management
16 services.
17 (30) "Qualified joint venture agreement" means a joint venture between
18 one or more MBEs, WBEs, VBEs, and/or EBEs and another person, in which
19 the percentage of profit or loss to which the certified firm or firms is
20 entitled or exposed for participation in the contract, as set forth in
21 the joint venture agreement, is at least 25% of the total profit or
22 loss.
23 (31) "Scope of work" means specific tasks required in a contract
24 and/or services or goods that must be provided to perform specific tasks
25 required in a contract.
26 (32) "Standard services" means services other than professional
27 services and human services.
28 (33) "Utilization rate" means the percentage of total contract expend-
29 itures expended on contracts or subcontracts with firms that are owned
30 by women, veterans, minorities, or individuals who are socially and
31 economically disadvantaged, respectively, in one or more industry clas-
32 sifications.
33 (34) "WBE" means a women-owned business enterprise certified in
34 accordance with section 1304 of the charter.
35 (35) "VBE" means a veteran-owned business enterprise.
36 d. Citywide goals. (1) The citywide contracting participation goals
37 for MBEs, WBEs, VBEs and EBEs, which may be met through awards of prime
38 contracts or subcontracts as described in subdivision j of this section,
39 shall be as follows:
40 For construction contracts:
41 Category: Participation goal:
42 Black Americans 8% of total annual
43 agency expenditures on such contracts
44 Asian Americans 8% of total annual agency
45 expenditures on such contracts
46 Hispanic Americans 4% of total annual agency
47 expenditures on such contracts
48 Women 18% of total annual agency
49 expenditures on such contracts
50 Veteransa percentage to be determined
51 by the commissioner in accordance
52 with the provisions of paragraph
53 four of this subdivision
54 Emerging 6% of total annual agency expenditures
55 on such contracts
56 For professional services contracts:
S. 5968 35
1 Category: Participation goal:
2 Black Americans 12% of total annual agency
3 expenditures on such contracts
4 Hispanic Americans 8% of total annual agency
5 expenditures on such contracts
6 Women 37% of total annual agency
7 expenditures on such contracts
8 Veteransa percentage to be determined by the
9 commissioner in accordance with the
10 provisions of paragraph four of this
11 subdivision
12 expenditures on such contracts
13 Emerging 6% of total annual agency expenditures
14 on such contracts
15 For standard services contracts:
16 Category: Participation goal:
17 Black Americans 12% of total annual agency
18 expenditures on such contracts
19 Asian Americans 3% of total annual agency
20 expenditures on such contracts
21 Hispanic Americans 6% of total annual agency
22 expenditures on such contracts
23 Women 10% of total annual agency
24 expenditures on such contracts
25 Veteransa percentage to be determined by the
26 commissioner in accordance with the
27 provisions of paragraph four of this
28 subdivision
29 Emerging 6% of total annual agency expenditures
30 on such contracts
31 For goods contracts under one hundred thousand dollars:
32 Category: Participation goal:
33 Black Americans 7% of total annual agency
34 expenditures on such contracts
35 Asian Americans 8% of total annual agency
36 expenditures on such contracts
37 Hispanic Americans 5% of total annual agency
38 expenditures on such contracts
39 Women 25% of total annual agency
40 expenditures on such contracts
41 Veteransa percentage to be determined by the
42 commissioner in accordance with the
43 provisions of paragraph four of this
44 subdivision
45 Emerging 6% of total annual agency expenditures
46 on such contracts
47 (2) (a) The division and the city chief procurement officer shall
48 develop a citywide utilization plan for procurements of goods.
49 (b) Agencies shall develop agency utilization plans pursuant to subdi-
50 vision g of this section. The citywide goals shall not be summarily
51 adopted as goals for all annual agency utilization plans; rather, goals
52 for such plans may be set at levels higher, lower, or the same as the
53 citywide goals, subject to the approval of the commissioner as described
54 in paragraph three of subdivision g of this section. When setting its
55 goals, each agency shall consider the citywide goals, the size and
56 nature of its own procurement portfolio, and the availability of MBEs,
S. 5968 36
1 WBEs, VBEs and EBEs with the capacity to perform the specific types and
2 scale of work for which the agency anticipates it will solicit procure-
3 ments during the year. Agencies shall seek to ensure substantial
4 progress toward the attainment of each of these goals in as short a time
5 as practicable.
6 (3) The citywide goals shall not be summarily adopted as goals for
7 individual procurements; rather, as set forth in subdivision i of this
8 section, goals for such procurements may be set at levels higher, lower,
9 or the same as the citywide goals. In setting such goals, each agency
10 shall take into account the citywide goals and the agency's annual
11 utilization plan, the size and nature of the procurement, and the avail-
12 ability of MBEs, WBEs, VBEs and EBEs with the capacity to perform the
13 specific types and scale of work involved in its procurements.
14 (4) (a) No later than 2015, the commissioner, in consultation with the
15 city chief procurement officer, shall, for each industry classification
16 and each minority group, review and compare the availability rates of
17 firms owned by minorities [and], women and veterans to the utilization
18 rates of such firms in agency contracts and direct subcontracts, and
19 shall on the basis of such review and any other relevant information,
20 where appropriate, revise by rule the citywide participation goals set
21 forth in this subdivision and determine appropriate contracting percent-
22 age goals for veterans. In making such revision, the commissioner shall
23 consider the extent to which discrimination continues to have an impact
24 on the ability of minorities [and], women and veterans to compete for
25 city contracts and subcontracts. The commissioner shall submit the
26 results of such review and any proposed revisions to the participation
27 goals to the speaker of the council at least sixty days prior to
28 publishing a proposed rule that would revise participation goals. Such
29 review shall thereafter be conducted at least once every two years.
30 (b) No later than 2015, the commissioner shall review information
31 collected by the department to determine the availability and utiliza-
32 tion of EBEs, and shall on the basis of such review and any other rele-
33 vant information, where appropriate, revise by rule the citywide partic-
34 ipation goals set forth in this subdivision and include veterans in such
35 goals. Such revised goals shall be set at a level intended to assist in
36 overcoming the impact of discrimination on such businesses. Such review
37 shall be conducted in 2015 and at least once every two years thereafter.
38 e. Responsibilities of the division.
39 (1) The division shall create and maintain and periodically update
40 directories by industry classification of MBEs, WBEs, VBEs and EBEs
41 which it shall supply to all agencies, post on its website and on other
42 relevant city websites and make available for dissemination and/or
43 public inspection at its offices and other locations within each
44 borough.
45 (2) The division shall make its resources available to assist agencies
46 and contractors in (i) determining the availability of MBEs, WBEs, VBEs
47 and EBEs to participate in their contracts as prime contractors and/or
48 subcontractors; and (ii) identifying opportunities appropriate for
49 participation by MBEs, WBEs, VBEs and EBEs in contracts.
50 (3) The division shall develop and maintain relationships with organ-
51 izations representing contractors, including MBEs, WBEs, VBEs and EBEs,
52 and solicit their support and assistance in efforts to increase partic-
53 ipation of MBEs, WBEs, VBEs and EBEs in city procurement.
54 (4) The division shall coordinate with city and state entities that
55 maintain databases of MBEs, WBEs, VBEs and EBEs and work to enhance city
56 availability data and directories.
S. 5968 37
1 (5) The division shall keep agency M/WBE and VBE officers informed of
2 conferences, contractor fairs, and other services that are available to
3 assist them in pursuing the objectives of this section.
4 (6) The division shall conduct, coordinate and facilitate technical
5 assistance and educational programs for MBEs, WBEs, VBEs and EBEs and
6 other contractors designed to enhance participation of MBEs, WBEs, VBEs
7 and EBEs in city procurement. The division shall further develop a
8 clearinghouse of information on programs and services available to MBEs,
9 WBEs, VBEs and EBEs. The division shall conduct meetings with MBEs,
10 WBEs, VBEs and EBEs to discuss what agencies look for in evaluating bids
11 and proposals. The division shall also educate prime contractors on
12 opportunities to partner or subcontract with certified MBEs, WBEs, VBEs
13 and EBEs.
14 (7) The division shall develop standardized forms and reporting docu-
15 ments for agencies and contractors to facilitate the reporting require-
16 ments of this section.
17 (8) The division shall direct and assist agencies in their efforts to
18 increase participation by MBEs, WBEs, VBEs and EBEs in any city-operated
19 financial, technical, and management assistance program.
20 (9) The division shall study and recommend to the commissioner methods
21 to streamline the M/WBE, VBE and EBE certification process.
22 (10) Each fiscal year the division, in consultation with the city
23 chief procurement officer, shall audit at least 5% of all open contracts
24 for which contractor utilization plans have been established in accord-
25 ance with subdivision i of this section and 5% of all contracts awarded
26 to MBEs, WBEs, VBEs, and EBEs to assess compliance with this section.
27 All solicitations for contracts for which contractor utilization plans
28 are to be established shall include notice of potential audit.
29 (11) The division shall assist agencies in identifying and seeking
30 ways to reduce or eliminate practices such as bonding requirements or
31 delays in payment by prime contractors that may present barriers to
32 competition by MBEs, WBEs, VBEs and EBEs.
33 (12) The division shall encourage prime contractors to enter joint
34 venture agreements with MBEs, WBEs, VBEs and EBEs.
35 (13) (a) The division shall, upon reviewing applications for certif-
36 ication and recertification, determine whether a firm qualifies as a
37 graduate MBE, WBE, VBE or EBE.
38 (b) The division shall promulgate regulations establishing a process
39 by which a certified MBE, WBE, VBE or EBE may challenge a determination
40 that it qualifies as a graduate MBE, WBE, VBE or EBE.
41 (c) At any time more than two years after the division has determined
42 that a firm qualifies as a graduate MBE, WBE, VBE or EBE, the firm may
43 apply to have such designation lifted. The division shall lift the
44 designation if the firm demonstrates that it has been below the size
45 standards established by the United States small business administration
46 for its industry for a period of two years or more.
47 f. Responsibilities of agency M/WBE and VBE officers. Each agency head
48 shall designate a deputy commissioner or other executive officer to act
49 as the agency M/WBE and VBE officer who shall be directly accountable to
50 the agency head concerning the activities of the agency in carrying out
51 its responsibilities pursuant to this section, including the responsi-
52 bilities relating to EBE participation. The duties of the M/WBE and VBE
53 officer shall include, but not be limited to:
54 (1) creating the agency's utilization plan in accordance with subdivi-
55 sion g of this section;
56 (2) acting as the agency's liaison with the division;
S. 5968 38
1 (3) acting as a liaison with organizations and/or associations of
2 MBEs, WBEs, VBEs and EBEs, informing such organizations and/or associ-
3 ations of the agency's procurement procedures, and advising them of
4 future procurement opportunities;
5 (4) ensuring that agency bid solicitations and requests for proposals
6 are sent to MBEs, WBEs, VBEs and EBEs in a timely manner, consistent
7 with this section and rules of the procurement policy board;
8 (5) referring MBEs, WBEs, VBEs and EBEs to technical assistance
9 services available from agencies and other organizations;
10 (6) reviewing requests for waivers and/or modifications of partic-
11 ipation goals and contractor utilization plans in accordance with para-
12 graphs 11 and/or 12 of subdivision i of this section;
13 (7) working with the division and city chief procurement officer in
14 creating directories as required pursuant to subdivision k of this
15 section. In fulfilling this duty, the agency M/WBE and VBE officer shall
16 track and record each contractor that is an MBE, WBE, VBE or EBE and
17 each subcontractor hired pursuant to such officer's agency contracts
18 that is an MBE, WBE, VBE or EBE, and shall share such information with
19 the director, the commissioner, and the city chief procurement officer;
20 (8) for contracts for which contractor utilization plans have been
21 established pursuant to subdivision i of this section, monitoring each
22 contractor's compliance with its utilization plan by appropriate means,
23 which shall include, but need not be limited to, job site inspections,
24 contacting MBEs, WBEs, VBEs and EBEs identified in the plan to confirm
25 their participation, and auditing the contractor's books and records;
26 (9) monitoring the agency's procurement activities to ensure compli-
27 ance with its agency utilization plan and progress towards the partic-
28 ipation goals as established in such plan;
29 (10) providing to the city chief procurement officer information for
30 the reports required in subdivision l of this section and providing any
31 other plans and/or reports required pursuant to this section or
32 requested by the director and/or the city chief procurement officer; and
33 (11) participating in meetings required pursuant to subdivision m of
34 this section.
35 g. Agency utilization plans.
36 (1) Beginning May 15, 2006, and on April 1 of each year thereafter,
37 each agency which, during the fiscal year which ended on June 30 of the
38 preceding year, has made procurements in excess of five million dollars,
39 without counting procurements that are exempt pursuant to paragraph two
40 of subdivision q of this section, shall submit an agency utilization
41 plan for the fiscal year commencing in July of the year when such plan
42 is to be submitted to the commissioner. Upon approval by the commission-
43 er such plan shall be submitted to the speaker of the council. Each
44 such plan shall, at a minimum, include the following:
45 (a) the agency's participation goals for MBEs, WBEs, VBEs and EBEs for
46 the year, provided however, that when setting its goals, each agency
47 shall consider the citywide goals, the size and nature of its own
48 procurement portfolio (excluding contracts described in paragraph two of
49 subdivision q of this section), and the availability of MBEs, WBEs, VBEs
50 and EBEs with the capacity to perform the specific types and scale of
51 work for which the agency anticipates it will solicit procurements
52 during the year;
53 (b) an explanation for any agency goal that is different than the
54 participation goal for the relevant group and industry classification as
55 determined pursuant to subdivision d of this section;
S. 5968 39
1 (c) a list of the names and titles of agency personnel responsible for
2 implementation of the agency utilization plan;
3 (d) methods and relevant activities proposed for achieving the agen-
4 cy's participation goals; and
5 (e) any other information which the agency or the commissioner deems
6 relevant or necessary.
7 (2) An agency utilization plan shall set forth specific participation
8 goals for MBEs, WBEs, VBEs and/or EBEs for purchases of professional
9 services, standard services, construction and goods valued at or below
10 twenty thousand dollars, and for purchases of professional services,
11 standard services, construction and goods valued at or below one hundred
12 thousand dollars. When setting its goals for such purchases, in addition
13 to the factors set forth in paragraph (1) of this subdivision, each
14 agency shall specifically consider the potential for such purchases to
15 provide opportunities for MBEs, WBEs, VBEs and EBEs to develop greater
16 capacity, thereby increasing competition for city procurements.
17 (3) An agency utilization plan may be amended from time to time to
18 reflect changes in the agency's projected expenditures or other relevant
19 circumstances and resulting changes in such agency's participation
20 goals. Such amendments shall be submitted to the commissioner, the city
21 chief procurement officer and the speaker of the council at least thirty
22 days prior to implementation.
23 (4) Prior to approving individual agency utilization plans, the
24 commissioner, in consultation with the city chief procurement officer,
25 shall consider whether such plans viewed in the aggregate establish any
26 goals exceeding the corresponding citywide goals set forth in subdivi-
27 sion d of this section. If any aggregated goals are found to exceed the
28 corresponding citywide goal, the commissioner shall require agencies to
29 adjust their goals so that plans, viewed in the aggregate, do not estab-
30 lish goals exceeding the citywide goals. Nothing in this paragraph shall
31 be construed to limit the awards of contracts and subcontracts that may
32 be made to MBEs, WBEs, VBEs and EBEs without using goals.
33 (5) The commissioner, in consultation with the city chief procurement
34 officer, shall, no later than July 31 of each year, publish on the divi-
35 sion's website a plan and schedule for each agency detailing the antic-
36 ipated contracting actions for the upcoming fiscal year that form the
37 basis for the agency utilization plan of each such agency. The plan and
38 schedule shall include information specific to each prospective invita-
39 tion for bids, request for proposal, or other solicitation, including,
40 but not limited to, the specific type and scale of the services and/or
41 goods to be procured, the term of the proposed contract, the method of
42 solicitation the agency intends to utilize, and the anticipated fiscal
43 year quarter of the planned solicitation.
44 h. Achieving agency participation goals.
45 (1) Each agency head shall be directly accountable for the goals set
46 forth in his or her agency's utilization plan.
47 (2) Each agency shall make all reasonable efforts to meet the partic-
48 ipation goals established in its agency utilization plan. Agencies
49 shall, at a minimum, use the following methods to achieve participation
50 goals:
51 (a) Agencies shall engage in outreach activities to encourage MBEs,
52 WBEs, VBEs and EBEs to compete for all facets of their procurement
53 activities, including contracts awarded by negotiated acquisition, emer-
54 gency and sole source contracts, and each agency shall seek to utilize
55 MBEs, WBEs, VBEs and/or EBEs for all types of goods, services and
56 construction they procure.
S. 5968 40
1 (b) Agencies shall encourage eligible businesses to apply for certif-
2 ication as MBEs, WBEs, VBEs and EBEs and inclusion in the directories of
3 MBEs, WBEs, VBEs and EBEs. Agencies shall also encourage MBEs, WBEs,
4 VBEs and EBEs to have their names included on their bidders lists, seek
5 pre-qualification where applicable, and compete for city business as
6 contractors and subcontractors. Agencies are encouraged to advertise
7 procurement opportunities in general circulation media, trade and
8 professional association publications and small business media, and
9 publications of minority [and], women's and veterans' business organiza-
10 tions, and send written notice of specific procurement opportunities to
11 minority [and], women's and veterans' business organizations.
12 (c) All agency solicitations for bids or proposals shall include
13 information referring potential bidders or proposers to the directories
14 of MBEs, WBEs, VBEs and EBEs prepared by the division.
15 (d) In planning procurements, agencies shall consider the effect of
16 the scope, specifications and size of a contract on opportunities for
17 participation by MBEs, WBEs, VBEs and EBEs.
18 (e) Prior to soliciting bids or proposals for contracts valued at over
19 ten million dollars, other than contracts for capital projects valued at
20 over twenty-five million dollars and contracts that are exempt pursuant
21 to paragraph two of subdivision q of this section, an agency shall
22 submit the bid or proposal to the city chief procurement officer for a
23 determination whether it is practicable to divide the proposed contract
24 into smaller contracts and whether doing so will enhance competition for
25 such contracts among MBEs, WBEs, VBEs and EBEs and other potential
26 bidders or proposers. If the city chief procurement officer determines
27 that it is both practicable and advantageous in light of cost and other
28 relevant factors to divide such contracts into smaller contracts, then
29 he or she shall direct the agency to do so.
30 (f) Agencies shall examine their internal procurement policies, proce-
31 dures and practices and, where practicable, address those elements, if
32 any, that may negatively affect participation of MBEs, WBEs, VBEs and
33 EBEs in city procurement.
34 i. Participation goals for contracts for construction and professional
35 and standard services.
36 (1) Prior to issuing the solicitation of bids or proposals for indi-
37 vidual contracts, agencies shall establish participation goals for MBEs,
38 WBEs, VBEs and/or EBEs. Such goals may be greater than, less than or the
39 same as the relevant citywide goal or goals established pursuant to
40 subdivision d of this section. Taking into account the factors listed in
41 this subdivision, an agency may establish a goal for a procurement that
42 may be achieved by a combination of prime contract and subcontract
43 dollars, a combination of construction and services performed pursuant
44 to the contract, and/or a combination of MBEs, WBEs, VBEs and/or EBEs.
45 Alternatively, an agency may establish specific goals for particular
46 types of services, and/or goals for particular types of certified firms.
47 In determining the participation goals for a particular contract, an
48 agency shall consider the following factors:
49 (a) the scope of work;
50 (b) the availability of MBEs, WBEs, VBEs and EBEs able to perform the
51 particular tasks required in the contract;
52 (c) the extent to which the type and scale of work involved in the
53 contract present prime contracting and subcontracting opportunities for
54 amounts within the capacity of MBEs, WBEs, VBEs and EBEs;
55 (d) the agency's progress to date toward meeting its annual partic-
56 ipation goals through race-neutral, gender-neutral and other means, and
S. 5968 41
1 the agency's expectations as to the effect such methods will have on
2 participation of MBEs, WBEs, VBEs and EBEs in the agency's future
3 contracts; and
4 (e) any other factors the contracting agency deems relevant.
5 (2) A contracting agency shall not be required to establish partic-
6 ipation goals for
7 (i) procurements described in subdivision q of this section; or
8 (ii) when the agency has already attained the relevant goal in its
9 annual utilization plan, or expects that it will attain such goal with-
10 out the use of such participation goals.
11 (3) For each contract in which a contracting agency has established
12 participation goals, such agency shall state in the solicitation for
13 such contract that bidders and/or proposers shall be required to agree
14 as a material term of the contract that the contractor shall meet the
15 participation goals unless such goals are waived or modified by the
16 agency in accordance with this section. A contractor that is an MBE,
17 WBE, VBE or EBE shall be permitted to count its own participation toward
18 fulfillment of the relevant participation goal, provided that the value
19 of such a contractor's participation shall be determined by subtracting
20 from the total value of the contract any amounts that the contractor
21 pays to direct subcontractors. A contractor that is a qualified joint
22 venture shall be permitted to count a percentage of its own partic-
23 ipation toward fulfillment of the relevant participation goal. The value
24 of such a contractor's participation shall be determined by subtracting
25 from the total value of the contract any amounts that the contractor
26 pays to direct subcontractors, and then multiplying the remainder by the
27 percentage to be applied to total profit to determine the amount to
28 which an MBE, WBE, VBE or EBE is entitled pursuant to the joint venture
29 agreement. Notwithstanding any provision of this paragraph to the
30 contrary, a contractor's achievement of participation goals shall be
31 determined as described in paragraph two of subdivision j of this
32 section.
33 (4) For each contract in which participation goals are established,
34 the agency shall include in its solicitation and/or bidding materials a
35 referral to the directories prepared by the division pursuant to this
36 section.
37 (5) For each contract for which participation goals are established,
38 the contractor shall be required to submit with its bid or proposal a
39 contractor utilization plan indicating:
40 (a) whether the contractor is an MBE, WBE, VBE, EBE, or a qualified
41 joint venture;
42 (b) the percentage of work it intends to award to direct subcontrac-
43 tors; and
44 (c) in cases where the contractor intends to award direct subcon-
45 tracts, a description of the type and dollar value of work designated
46 for participation by MBEs, WBEs, VBEs and/or EBEs, and the time frames
47 in which such work is scheduled to begin and end.
48 When the contractor utilization plan indicates that the bidder or
49 proposer does not intend to meet the participation goals, the bid or
50 proposal shall not be deemed responsive unless the agency has granted a
51 pre-award request for change pursuant to paragraph 11 of this subdivi-
52 sion.
53 (6) (a) For each contract for which a contractor utilization plan has
54 been submitted, the contracting agency shall require that within thirty
55 days of the issuance of notice to proceed, and at least once per year
56 thereafter, the contractor submit a list of persons to which it intends
S. 5968 42
1 to award subcontracts within the next twelve months. In the event that a
2 contracting agency disapproves a contractor's selection of a subcontrac-
3 tor or subcontractors, the contracting agency shall allow such contrac-
4 tor a reasonable time to propose alternate subcontractors.
5 (b) The contracting agency may also require the contractor to report
6 periodically about the contracts awarded by its direct subcontractors to
7 indirect subcontractors.
8 (7) For each contract for which a contractor utilization plan has been
9 submitted, the contractor shall, with each voucher for payment, and/or
10 periodically as the agency may require, submit statements, certified
11 under penalty of perjury, which shall include, but not be limited to,
12 the total amount the contractor paid to its direct subcontractors, and,
13 where applicable pursuant to subparagraph (1) of paragraph (1) of subdi-
14 vision j of this section, the total amount direct subcontractors paid to
15 indirect subcontractors, the names, addresses and contact numbers of
16 each MBE, WBE, VBE or EBE hired as a subcontractor by the contractor or
17 any of the contractor's direct subcontractors, as well as the dates and
18 amounts paid to each MBE, WBE, VBE or EBE. The contractor shall also
19 submit, along with its voucher for final payment, the total amount it
20 paid to subcontractors, and, where applicable pursuant to subparagraph
21 (1) of paragraph (1) of subdivision j of this section, the total amount
22 its direct subcontractors paid directly to their indirect subcontrac-
23 tors; and a final list, certified under penalty of perjury, which shall
24 include the name, address and contact information of each subcontractor
25 that is an MBE, WBE, VBE or EBE, the work performed by, and the dates
26 and amounts paid to each.
27 (8) If payments made to, or work performed by, MBEs, WBEs, VBEs or
28 EBEs are less than the amount specified in the contractor's utilization
29 plan, the agency shall take appropriate action in accordance with subdi-
30 vision o of this section, unless the contractor has obtained a modifica-
31 tion of its utilization plan pursuant to paragraph 12 of this subdivi-
32 sion.
33 (9) When advertising a solicitation for bids or proposals for a
34 contract for which a participation goal has been established, agencies
35 shall include in the advertisement a general statement that the contract
36 will be subject to participation goals for MBEs, WBEs, VBEs and/or EBEs.
37 (10) In the event that a contractor with a contract that includes a
38 contractor utilization plan submits a request for a change order the
39 value of which exceeds the greater of ten percent of such contract or
40 $500,000, the agency shall review the scope of work for the contract,
41 and the scale and types of work involved in the change order, and deter-
42 mine whether the participation goals should be modified.
43 (11) Requests from bidders or proposers for changes in participation
44 goals.
45 (a) A bidder or proposer may request that an agency change the partic-
46 ipation goal or goals established for the procurement on the grounds
47 that goals are unreasonable in light of the availability of certified
48 firms to perform the services required, or by demonstrating that it has
49 legitimate business reasons for proposing a lower level of subcontract-
50 ing in its utilization plan.
51 (b) If the contracting agency determines that the participation goals
52 established for the procurement are unreasonable in light of the avail-
53 ability of certified firms to perform the services required, it shall
54 revise the solicitation and extend the deadline for bids and proposals.
55 (c) Subject to subparagraph (d) of this paragraph, the contracting
56 agency may grant a full or partial waiver of the participation goals to
S. 5968 43
1 a bidder or proposer who demonstrates that it has legitimate business
2 reasons for proposing the level of subcontracting in its utilization
3 plan. The contracting agency shall make its determination in light of
4 factors that shall include, but not be limited to, whether the bidder or
5 proposer has the capacity and the bona fide intention to perform the
6 contract without any subcontracting, or to perform the contract without
7 awarding the amount of subcontracts represented by the participation
8 goals. In making such determination, the agency may consider whether the
9 utilization plan is consistent with past subcontracting practices of the
10 bidder or proposer, whether the bidder or proposer has made efforts to
11 form a joint venture with a certified firm, and whether the bidder or
12 proposer has made good faith efforts to identify portions of the
13 contract that it intends to subcontract. The city chief contracting
14 officer shall notify the council of any such waiver granted with respect
15 to a registered contract in the quarterly report required pursuant to
16 subdivision 1 of this section.
17 (d) The agency M/WBE and VBE officer shall provide written notice of
18 requests for a full or partial waiver of the participation goals to the
19 division and the city chief procurement officer and shall not approve
20 any such request without the approval of the city chief procurement
21 officer, provided that the city chief procurement officer, upon adequate
22 assurances of an agency's ability to administer its utilization plan in
23 accordance with the provisions of this section, may determine that
24 further approval from the city chief procurement officer is not required
25 with respect to such requests for an agency's contracts or particular
26 categories of an agency's contracts. The city chief procurement officer
27 shall notify the speaker of the council in writing in the quarterly
28 report required pursuant to subdivision 1 of this section following the
29 registration of a contract for which a request for a full or partial
30 waiver of a participation goal was granted, provided that where an agen-
31 cy has been authorized to grant waivers without approval of the chief
32 procurement officer, such notice shall be provided to the speaker of the
33 council by the agency. Such notification shall include, but not be
34 limited to, the name of the contractor, the original participation goal,
35 the waiver request, including all documentation, and an explanation for
36 the approval of such request.
37 (12) Modification of utilization plans at contractor's request or
38 agency's initiative. (a) A contractor may request modification of its
39 utilization plan after the award of a contract. Subject to subparagraph
40 (b) of this paragraph, an agency may grant such request if it determines
41 that such contractor has established, with appropriate documentary and
42 other evidence, that it made all reasonable, good faith efforts to meet
43 the goals set by the agency for the contract. In making such determi-
44 nation, the agency shall consider evidence of the following efforts, as
45 applicable, along with any other relevant factors:
46 (i) The contractor advertised opportunities to participate in the
47 contract, where appropriate, in general circulation media, trade and
48 professional association publications and small business media, and
49 publications of minority [and], women's and veterans' business organiza-
50 tions;
51 (ii) The contractor provided notice of specific opportunities to
52 participate in the contract, in a timely manner, to minority [and],
53 women's and veterans' business organizations;
54 (iii) The contractor sent written notices, by certified mail or
55 facsimile, in a timely manner, to advise MBEs, WBEs, VBEs or EBEs that
56 their interest in the contract was solicited;
S. 5968 44
1 (iv) The contractor made efforts to identify portions of the work that
2 could be substituted for portions originally designated for partic-
3 ipation by MBEs, WBEs, VBEs and/or EBEs in the contractor utilization
4 plan, and for which the contractor claims an inability to retain MBEs,
5 WBEs, VBEs or EBEs;
6 (v) The contractor held meetings with MBEs, WBEs, VBEs and/or EBEs
7 prior to the date their bids or proposals were due, for the purpose of
8 explaining in detail the scope and requirements of the work for which
9 their bids or proposals were solicited;
10 (vi) The contractor made efforts to negotiate with MBEs, WBEs, VBEs
11 and/or EBEs as relevant to perform specific subcontracts, or act as
12 suppliers or service providers;
13 (vii) Timely written requests for assistance made by the contractor to
14 the agency M/WBE and VBE liaison officer and to the division; and
15 (viii) Description of how recommendations made by the division and the
16 contracting agency were acted upon and an explanation of why action upon
17 such recommendations did not lead to the desired level of participation
18 of MBEs, WBEs, VBEs and/or EBEs.
19 (b) The agency M/WBE and VBE officer shall provide written notice of
20 requests for such modifications to the division and the city chief
21 procurement officer and shall not approve any such request for modifica-
22 tion without the approval of the city chief procurement officer,
23 provided that the city chief procurement officer, upon adequate assur-
24 ances of an agency's ability to administer its utilization plan in
25 accordance with the provisions of this section, may determine that
26 further approval from the city chief procurement officer is not required
27 with respect to such requests for an agency's contracts or particular
28 categories of an agency's contracts. The city chief procurement officer,
29 shall notify the speaker of the council in writing within seven days of
30 the approval of a request for modification of a utilization plan,
31 provided that where an agency has been authorized to grant modifications
32 without approval of the chief procurement officer, such notice shall be
33 provided to the speaker of the council by the agency. Such notification
34 shall include, but not be limited to, the name of the contractor, the
35 original utilization plan, the modification request, including all
36 documentation, and an explanation for the approval of such request.
37 (c) An agency may modify the participation goals established for a
38 procurement when the scope of the work has been changed by the agency in
39 a manner that affects the scale and types of work that the contractor
40 indicated in its contractor utilization plan would be awarded to subcon-
41 tractors.
42 (d) The agency M/WBE and VBE officer shall provide written notice to
43 the contractor of its determination that shall include the reasons for
44 such determination.
45 (13) For each contract in which a contracting agency has established
46 participation goals, the agency shall evaluate and assess the contrac-
47 tor's performance in meeting each such goal. Such evaluation and assess-
48 ment shall be a part of the contractor's overall contract performance
49 evaluation required pursuant to section 333 of the charter.
50 j. Determining credit for MBE, WBE, VBE and EBE participation.
51 (1) An agency's achievement of its annual goals shall be calculated as
52 follows:
53 (a) The dollar amount that an agency has paid or is obligated to pay
54 to a prime contractor that is an MBE, WBE, VBE or EBE, reduced by the
55 dollar amount the contractor has paid or is obligated to pay its direct
56 subcontractors upon their completion of work, shall be credited toward
S. 5968 45
1 the relevant goal. Where an agency has paid or is obligated to pay a
2 prime contractor that is both an MBE and a WBE, such amount shall be
3 credited toward the relevant goal for MBEs or the goal for WBEs. Where
4 an agency has paid or is obligated to pay a prime contractor that is
5 both an MBE or WBE and a VBE, such amount shall be credited toward the
6 relevant goal for MBEs or WBEs, as applicable, or the goal for VBEs.
7 (b) Except as provided in subparagraph (c) of this paragraph, the
8 total dollar amount that a prime contractor of an agency has paid or is
9 obligated to pay to a direct subcontractor that is an MBE, WBE, VBE or
10 EBE shall be credited toward the relevant goal. Where such a contractor
11 has paid or is obligated to pay a direct subcontractor that is both an
12 MBE and a WBE, such amount shall be credited toward the relevant goal
13 for MBEs or the goal for WBEs. Where such a contractor has paid or is
14 obligated to pay a direct subcontractor that is both an MBE or WBE and a
15 VBE, such amount shall be credited toward the relevant goal for MBEs or
16 WBEs, as applicable, or the goal for VBEs.
17 (c) In the case of contracts of the types identified pursuant to
18 subparagraph (l) of this paragraph, the total dollar amount that a prime
19 contractor of an agency has paid or is obligated to pay a direct subcon-
20 tractor that is an MBE, WBE, VBE or EBE, reduced by the dollar amount
21 the direct subcontractor has paid or is obligated to pay its indirect
22 subcontractors upon completion of work, shall be credited toward the
23 relevant goal. Where such a contractor has paid or is obligated to pay a
24 direct contractor that is both an MBE and a WBE, such amount shall be
25 credited toward the relevant goal for MBEs or the goal for WBEs. Where
26 such contractor has paid or is obligated to pay a direct contractor that
27 is both an MBE or WBE and a VBE, such amount shall be credited toward
28 the relevant goal for MBEs or WBEs, as applicable, or the goal for VBEs.
29 (d) In the case of contracts of the types identified pursuant to
30 subparagraph (1) of this paragraph, the total dollar amount that a
31 direct subcontractor of the prime contractor has paid or is obligated to
32 pay to an indirect subcontractor that is an MBE, WBE, VBE or EBE shall
33 be credited toward the relevant goal. Where such a contractor has paid
34 or is obliged to pay an indirect contractor that is both an MBE and a
35 WBE, such amount shall be credited toward the relevant goal for MBEs or
36 the goal for WBEs. Where such a contractor has paid or is obligated to
37 pay a direct contractor that is both an MBE or WBE and a VBE, such
38 amount shall be credited toward the relevant goal for MBEs or WBEs, as
39 applicable, or the goal for VBEs.
40 (e) For requirements contracts, credit shall be given for the actual
41 dollar amount paid under the contract.
42 (f) Where one or more MBEs, WBEs, VBEs or EBEs is participating in a
43 qualified joint venture, the amounts that the joint venture is required
44 to pay its direct subcontractors shall be subtracted as provided in
45 subparagraph (a) of this paragraph, and then a percentage of the remain-
46 ing dollar amount of the contract equal to the percentage of total
47 profit to which MBEs, WBEs, VBEs or EBEs are entitled pursuant to the
48 joint venture agreement shall be credited toward the relevant goal.
49 Where such a participant in a joint venture is both an MBE and a WBE,
50 such amount shall be credited toward the relevant goal for MBEs or the
51 goal for WBEs. Where such a contractor has paid or is obligated to pay
52 a direct contractor that is both an MBE or WBE and a VBE, such amount
53 shall be credited toward the relevant goal for MBEs or WBEs, as applica-
54 ble, or the goal for VBEs.
S. 5968 46
1 (g) No credit shall be given for participation in a contract by an
2 MBE, WBE, VBE or EBE that does not perform a commercially useful func-
3 tion.
4 (h) No credit shall be given for the participation in a contract by
5 any company that has not been certified as an MBE, WBE, VBE or EBE in
6 accordance with section 1304 of the charter.
7 (i) In the case of a contract for which the contractor is paid on a
8 commission basis, the dollar amount of the contract may be determined on
9 the basis of the commission earned or reasonably anticipated to be
10 earned under the contract.
11 (j) No credit shall be given to a contractor for participation in a
12 contract by a graduate MBE, WBE, VBE or EBE.
13 (k) The participation of a certified company shall not be credited
14 toward more than one participation goal.
15 (1) The city chief procurement officer may identify types of contracts
16 where payments to indirect subcontractors shall be credited toward the
17 relevant participation goals.
18 (2) A contractor's achievement of its participation goals established
19 in its utilization plan shall be calculated as follows:
20 (a) A contractor's use of direct subcontractors and their indirect
21 subcontractors toward achievement of each goal established in its utili-
22 zation plan shall be calculated in the same manner as described for
23 calculating the achievement of agency utilization goals as described in
24 paragraph (1) of this subdivision, except that a contractor's use of a
25 subcontractor that is both an MBE and a WBE, or is an MBE or WBE and
26 also a VBE, shall not be credited toward the contractor's achievement of
27 more than one goal;
28 (b) A contractor that is an MBE, WBE, VBE or EBE shall be permitted to
29 count its own participation toward fulfillment of the relevant partic-
30 ipation goal, provided that the value of such a contractor's partic-
31 ipation shall be determined by subtracting from the total value of the
32 contract any amounts that the contractor pays to direct subcontractors,
33 and provided further that a contractor that is both an MBE and a WBE, or
34 is an MBE or WBE and also a VBE, shall not be credited for its partic-
35 ipation toward more than one goal;
36 (c) No credit shall be given to the contractor for the participation
37 of a company that is not certified in accordance with section 1304 of
38 the charter before the date that the subcontractor completes the work
39 under the subcontract.
40 (d) A contractor that is a qualified joint venture shall be permitted
41 to count a percentage of its own participation toward fulfillment of the
42 relevant participation goal. The value of such a contractor's partic-
43 ipation shall be determined by subtracting from the total value of the
44 contract any amounts that the contractor pays to direct subcontractors,
45 and then multiplying the remainder by the percentage to be applied to
46 total profit to determine the amount to which an MBE, WBE, VBE or EBE is
47 entitled pursuant to the joint venture agreement; provided that where
48 such a participant in a joint venture is both an MBE and a WBE, or is an
49 MBE or a WBE and also a VBE, such amount shall not be credited toward
50 more than one goal.
51 k. Small purchases.
52 Whenever an agency solicits bids or proposals for small purchases
53 pursuant to section three hundred fourteen of the charter, the agency
54 shall maintain records identifying the MBEs, WBEs, VBEs and EBEs it
55 solicited, which shall become part of the contract file.
56 l. Compliance reporting.
S. 5968 47
1 (1) The city chief procurement officer, in consultation with the divi-
2 sion, shall prepare and submit quarterly reports to the speaker of the
3 council as described in this section. Preliminary reports containing
4 information for the fiscal year in progress shall be submitted to the
5 speaker of the council by January first, April first, and July first of
6 each year, and a final report containing information for the preceding
7 fiscal year shall be submitted to the speaker of the council by October
8 first of each year. The reports, which shall also be posted on the divi-
9 sion's website, shall contain the following information, disaggregated
10 by agency:
11 (a) the number and total dollar value of contracts awarded, disaggre-
12 gated by industry classification and size of contract, including but not
13 limited to, contracts valued at or below twenty thousand dollars,
14 contracts valued above twenty thousand dollars and at or below one
15 hundred thousand dollars, contracts valued above one hundred thousand
16 dollars and at or below one million dollars, contracts valued above one
17 million dollars and at or below five million dollars, contracts valued
18 above five million dollars and at or below twenty five million dollars,
19 and contracts valued above twenty five million dollars;
20 (b) for those contracts for which an agency set participation goals in
21 accordance with subdivision i of this section:
22 (i) The number and total dollar amount of such contracts disaggregated
23 by industry classification, size of contract and status as MBE, WBE,
24 VBE, EBE, or non-certified firm, and further disaggregated by minority
25 and gender group, and the number and dollar value of such contracts that
26 were awarded to firms that are certified both as MBEs and WBEs, or as an
27 MBE or WBE and also a VBE;
28 (ii) the number and total dollar value of such contracts that were
29 awarded to qualified joint ventures and the total dollar amount attri-
30 buted to the MBE, WBE, VBE or EBE joint venture partners, disaggregated
31 by minority and gender group, size of contract and industry classifica-
32 tion, and the number and dollar value of such contracts that were
33 awarded to firms that are certified both as MBEs and WBEs, or as an MBE
34 or WBE and also a VBE;
35 (iii) The number and total dollar value of subcontracts approved
36 during the reporting period that were entered into pursuant to contracts
37 for which participation requirements under this section have been estab-
38 lished (including both contracts awarded during the current reporting
39 period and those awarded in earlier reporting periods that remain open
40 during the current reporting period), and the number and total dollar
41 amount of such subcontracts awarded to MBEs, WBEs, VBEs and EBEs, disag-
42 gregated by minority and gender group, size of subcontract and industry
43 classification, and the number and dollar value of such subcontracts
44 that were awarded to firms that are certified both as MBEs and WBEs, or
45 as an MBE or WBE and also a VBE;
46 (iv) a list of the requests for full or partial waivers of partic-
47 ipation requirements for such contracts made pursuant to paragraph 11 of
48 subdivision i of this section and the determinations made with respect
49 to such requests, and the number and dollar amount of those contracts
50 for which such waivers were granted, disaggregated by industry classi-
51 fication; and
52 (v) a list of the requests for modification of participation require-
53 ments for such contracts made pursuant to paragraph 12 of subdivision i
54 of this section and the determinations made with respect to such
55 requests, and the number and dollar amount of those contracts for which
S. 5968 48
1 such modifications were granted, disaggregated by industry classifica-
2 tion;
3 (c) a detailed list of each complaint received pursuant to paragraph 1
4 of subdivision o of this section which shall, at a minimum, include the
5 nature of each complaint and the action taken in investigating and
6 addressing such complaint including whether and in what manner the
7 enforcement provisions of subdivision o of this section were invoked and
8 the remedies applied;
9 (d) a detailed list of all non-compliance findings made pursuant to
10 paragraph 4 of subdivision o of this section and actions taken in
11 response to such findings;
12 (e) the number of firms certified or recertified in accordance with
13 section 1304 of the charter during the six months immediately preceding
14 such report;
15 (f) the number and percentage of contracts audited pursuant to
16 [section] paragraph 10 of subdivision e of this section and a summary of
17 the results of each audit.
18 (g) a summary of efforts to reduce or eliminate barriers to competi-
19 tion as required pursuant to paragraph 11 of subdivision e of this
20 section;
21 (h) a list of all solicitations submitted to the city chief procure-
22 ment officer pursuant to subparagraph [e] (e) of paragraph 2 of subdivi-
23 sion h of this section and a summary of the determination made regarding
24 each such submission; and
25 (i) any other information as may be required by the director and/or
26 the commissioner.
27 (2) The annual reports submitted in October shall, in addition,
28 contain a determination made by the director and the commissioner, as to
29 whether each agency has made substantial progress toward achieving its
30 utilization goals and whether the city has made substantial progress
31 toward achieving the citywide goals established pursuant to subdivision
32 d of this section.
33 (3) If an agency that has submitted an agency utilization plan pursu-
34 ant to subdivision g of this section fails to achieve its utilization
35 goal, the agency head shall prepare and submit to the director, the
36 commissioner, the city chief procurement officer, and the speaker of the
37 council by October first a performance improvement plan which shall
38 describe in detail the efforts such agency intends to undertake to
39 increase M/WBE and VBE participation.
40 (4) The data that provide the basis for the reports required by this
41 subdivision shall be made available electronically to the council at the
42 time the reports are submitted.
43 m. Agency compliance.
44 (1) Each agency shall submit to the commissioner and the city chief
45 procurement officer such information as is necessary for the city chief
46 procurement officer to complete his or her reports as required in subdi-
47 vision l of this section. The director, the commissioner, and the city
48 chief procurement officer shall review each agency's submissions. The
49 director shall convene the agency M/WBE and VBE officers for those agen-
50 cies that have submitted utilization plans pursuant to subdivision g of
51 this section as often as the director deems necessary, but no less
52 frequently than once per quarter, in order to have agency M/WBE and VBE
53 officers (i) discuss the results of the reports required in subdivision
54 1 of this section; (ii) offer detailed information concerning their
55 effectuation of their performance improvement plans and any additional
56 efforts undertaken to meet goals established in agency utilization
S. 5968 49
1 plans; (iii) share the practices that have yielded successes in increas-
2 ing M/WBE and VBE participation; and (iv) devise strategic plans to
3 improve the performance of those failing to meet goals established in
4 agency utilization plans. No less frequently than twice per year, agency
5 heads for those agencies that have submitted utilization plans pursuant
6 to subdivision g of this section shall join such quarterly meetings.
7 Whenever it has been determined that an agency is not making adequate
8 progress toward the goals established in its agency utilization plan,
9 the director, the commissioner, and the city chief procurement officer
10 shall act to improve such agency's performance, and may take any of the
11 following actions:
12 (a) require the agency to submit more frequent reports about its
13 procurement activity;
14 (b) require the agency to notify the director, the commissioner, and
15 the city chief procurement officer, prior to solicitation of bids or
16 proposals for, and/or prior to award of, contracts in any category where
17 the agency has not made adequate progress toward achieving its utiliza-
18 tion goals;
19 (c) reduce or rescind contract processing authority delegated by the
20 mayor pursuant to sections 317 and 318 of the charter; and
21 (d) any other action the director, the commissioner, and the city
22 chief procurement officer deem appropriate.
23 (2) Noncompliance. Whenever the director, the city chief procurement
24 officer, or the commissioner finds that an agency has failed to comply
25 with its duties under this section, he or she shall attempt to resolve
26 such noncompliance informally with the agency head. In the event that
27 the agency fails to remedy its noncompliance after such informal
28 efforts, the director and the city chief procurement officer shall
29 submit such findings in writing to the mayor and the speaker of the
30 council, and the mayor shall take appropriate measures to ensure compli-
31 ance.
32 (3) Failure by an agency to submit information required by the direc-
33 tor, the division, or the city chief procurement officer, in accordance
34 with this section, including but not limited to the utilization plan
35 required pursuant to subdivision g of this section, shall be deemed
36 noncompliance.
37 n. Pre-qualification. An agency establishing a list of pre-qualified
38 bidders or proposers may deny pre-qualification to prospective contrac-
39 tors who fail to demonstrate in their application for pre-qualification
40 that they have complied with applicable federal, state and local
41 requirements for participation of MBEs, WBEs, VBEs and EBEs in procure-
42 ments. A denial of pre-qualification may be appealed pursuant to appli-
43 cable procurement policy board rules.
44 o. Enforcement.
45 (1) Any person who believes that a violation of the requirements of
46 this section, rules promulgated pursuant to its provisions, or any
47 provision of a contract that implements this section or such rules,
48 including, but not limited to, any contractor utilization plan, has
49 occurred may submit a complaint in writing to the division, the city
50 chief procurement officer and the comptroller. The division shall
51 promptly investigate such complaint and determine whether there has been
52 a violation.
53 (2) Any complaint alleging fraud, corruption or other criminal behav-
54 ior on, the part of a bidder, proposer, contractor, subcontractor or
55 supplier shall be referred to the commissioner of the department of
56 investigation.
S. 5968 50
1 (3) Contract award.
2 (a) When an agency receives a protest from a bidder or proposer
3 regarding a contracting action that is related to this section, the
4 agency shall send copies of the protest and any appeal thereof, and any
5 decisions made on the protest or such appeal, to the division and the
6 comptroller.
7 (b) Whenever a contracting agency has determined that a bidder or
8 proposer has violated this section, or rules promulgated pursuant to its
9 provisions, the agency may disqualify such bidder or proposer from
10 competing for such contract and the agency may revoke such bidder's or
11 proposer's prequalification status.
12 (4) Contract administration.
13 (a) For each contract for which participation requirements have been
14 established under this section, at least once annually during the term
15 of such contract, the contracting agency shall review the contractor's
16 progress toward attainment of its utilization plan, including but not
17 limited to, by reviewing the percentage of work the contractor has actu-
18 ally awarded to MBE, WBE, VBE and/or EBE subcontractors and the payments
19 the contractor has made to such subcontractors.
20 (b) Whenever an agency believes that a contractor or a subcontractor
21 is not in compliance with this section, rules promulgated pursuant to
22 its provisions or any provision of a contract that implements this
23 section, including, but not limited to any contractor utilization plan,
24 the agency shall send a written notice to the city chief procurement
25 officer, the division and the contractor describing the alleged noncom-
26 pliance and offering the contractor an opportunity to be heard. The
27 agency shall then conduct an investigation to determine whether such
28 contractor or subcontractor is in compliance.
29 (c) In the event that a contractor has been found to have violated
30 this section, rules promulgated pursuant to its provisions, or any
31 provision of a contract that implements this section, including, but not
32 limited to any contractor utilization plan, the contracting agency
33 shall, after consulting with the city chief procurement officer and the
34 division, determine whether any of the following actions should be
35 taken:
36 (i) enter an agreement with the contractor allowing the contractor to
37 cure the violation;
38 (ii) revoke the contractor's pre-qualification to bid or make
39 proposals for future contracts;
40 (iii) make a finding that the contractor is in default of the
41 contract;
42 (iv) terminate the contract;
43 (v) declare the contractor to be in breach of contract;
44 (vi) withhold payment or reimbursement;
45 (vii) determine not to renew the contract;
46 (viii) assess actual and consequential damages;
47 (ix) assess liquidated damages or reduction of fees, provided that
48 liquidated damages may be based on amounts representing costs of delays
49 in carrying out the purposes of the program established by this section,
50 or in meeting the purposes of the contract, the costs of meeting utili-
51 zation goals through additional procurements, the administrative costs
52 of investigation and enforcement, or other factors set forth in the
53 contract;
54 (x) exercise rights under the contract to procure goods, services or
55 construction from another contractor and charge the cost of such
S. 5968 51
1 contract to the contractor that has been found to be in noncompliance;
2 or
3 (xi) take any other appropriate remedy.
4 (5) To the extent available pursuant to rules of the procurement poli-
5 cy board, a contractor may seek resolution of a dispute regarding a
6 contract related to this section. The contracting agency shall submit a
7 copy of such submission to the division.
8 (6) Whenever an agency has reason to believe that an MBE, WBE, VBE or
9 EBE is not qualified for certification, or is participating in a
10 contract in a manner that does not serve a commercially useful function,
11 or has violated any provision of this section, the agency shall notify
12 the commissioner who shall determine whether the certification of such
13 business enterprise should be revoked.
14 (7) Statements made in any instrument submitted to an agency pursuant
15 to these rules shall be submitted under penalty of perjury and any false
16 or misleading statement or omission shall be grounds for the application
17 of any applicable criminal and/or civil penalties for perjury. The
18 making of a false or fraudulent statement by an MBE, WBE, VBE or EBE in
19 any instrument submitted pursuant to these rules shall, in addition, be
20 grounds for revocation of its certification.
21 (8) A contractor's record in implementing its contractor utilization
22 plan shall be a factor in the evaluation of its performance. Whenever a
23 contracting agency determines that a contractor's compliance with a
24 contractor utilization plan has been unsatisfactory, the agency shall,
25 after consultation with the city chief procurement officer, file an
26 advice of caution form for inclusion in VENDEX as caution data.
27 p. Procurements by elected officials and the council.
28 (1) In the case of procurements by independently elected city offi-
29 cials other than the mayor, where these rules provide for any action to
30 be taken by the director or the city chief procurement officer, such
31 action shall instead be taken by such elected officials.
32 (2) In the case of procurements by the council, where these rules
33 provide for any action to be taken by the director or the city chief
34 procurement officer, such action shall instead be taken by the speaker
35 of the council.
36 q. Applicability. Agencies shall not be required to apply partic-
37 ipation requirements to the following types of contracts:
38 (1) those subject to federal or state funding requirements which
39 preclude the city from imposing the requirements of this subdivision;
40 (2) those subject to federal or state law participation requirements
41 for MBEs, WBEs, disadvantaged business enterprises, VBEs, and/or EBEs;
42 (3) contracts between agencies;
43 (4) procurements made through the United States general services
44 administration or another federal agency, or through the New York state
45 office of general services or another state agency, or any other govern-
46 mental agency.
47 (5) emergency procurements pursuant to section three hundred fifteen
48 of the charter;
49 (6) sole source procurements pursuant to section three hundred twen-
50 ty-one of the charter;
51 (7) contracts for human services; and
52 (8) contracts awarded to not-for-profit organizations.
53 r. Comptroller. The comptroller shall randomly examine contracts for
54 which contractor utilization plans are established to assess compliance
55 with such plans. All solicitations for contracts for which contractor
S. 5968 52
1 utilization plans are to be established shall include notice of poten-
2 tial comptroller examinations.
3 § 32. Paragraphs (a), (b) and (c) of subdivision 12 of section 3.07 of
4 the arts and cultural affairs law, as amended by chapter 255 of the laws
5 of 1988, are amended to read as follows:
6 (a) All contracts for design, construction, services and materials
7 pursuant to this section of whatever nature and all documents soliciting
8 bids or proposals therefor shall contain or make reference to the
9 following provisions:
10 (i) That the contractor will not discriminate against employees or
11 applicants for employment because of race, creed, color, national
12 origin, sex, age, disability, or marital status, and will undertake or
13 continue existing programs of affirmative action to ensure that minority
14 group persons [and], women and veterans are afforded equal opportunity
15 without discrimination. Such programs shall include, but not be limited
16 to, recruitment, employment, job assignment, promotion, upgrading,
17 demotion, transfer, layoff, termination, rates of pay or other forms of
18 compensation, and selection for training and retraining, including
19 apprenticeship and on-the-job training;
20 (ii) That the contractor shall request any employment agency, labor
21 union, or authorized representative of workers with which it has a
22 collective bargaining or other agreement or understanding and which is
23 involved in the performance of the contract to furnish a written state-
24 ment that it will not discriminate because of race, creed, color,
25 national origin, sex, age, disability or marital status and it will
26 cooperate in the implementation of the contractor's obligations here-
27 under;
28 (iii) That the contractor will state, in any solicitations or adver-
29 tisements for employees placed by or on behalf of the contractor in the
30 performance of the contract, that all qualified applicants will be
31 afforded equal employment opportunity without discrimination because of
32 race, creed, color, national origin, sex, age, disability or marital
33 status;
34 (iv) That the contractor will include the provisions of subparagraphs
35 (i) through (iii) of this paragraph in every subcontract or purchase
36 order in such a manner that such provisions will be binding upon each
37 subcontractor or vendor as to its work in connection with the contract
38 with the agency.
39 (b) The council shall establish appropriate measures, procedures and
40 guidelines to ensure that contractors and subcontractors undertake mean-
41 ingful programs to employ and promote qualified minority group members
42 [and], women and veterans. Such procedures may require after notice in
43 a bid solicitation, the submission of a minority [and], women and veter-
44 ans workforce utilization program prior to the award of any contract, or
45 at any time thereafter, and may require the submission of compliance
46 reports relating to the operation and implementation of any workforce
47 utilization program adopted hereunder. The council may take appropriate
48 action, including the impositions of sanctions for non-compliance to
49 effectuate the provisions of this subdivision and the monitoring of
50 compliance with this subdivision.
51 (c) (i) In the performance of projects pursuant to this section,
52 minority [and women-owned], women and veteran-owned business enterprises
53 shall be given the opportunity for meaningful participation. For
54 purposes hereof, minority business enterprise shall mean any business
55 enterprise which is at least fifty-one per centum owned by, or in the
56 case of a publicly owned business, at least fifty-one per centum of the
S. 5968 53
1 stock or other voting interest is owned by citizens or permanent resi-
2 dent aliens who are Black, Hispanic, Asian, American Indian, Pacific
3 Islander, or Alaskan native, and such ownership interest is real,
4 substantial and continuing and has the authority to independently
5 control the day to day business decisions of the entity for at least one
6 year; [and] women-owned business enterprise shall mean any business
7 enterprise which is at least fifty-one per centum owned by, or in the
8 case of a publicly owned business, at least fifty-one per centum of the
9 stock to other voting interests of which is owned by citizens or perma-
10 nent resident aliens who are women, and such ownership interest is real,
11 substantial and continuing and has the authority to independently
12 control the day to day business decisions of the entity for at least one
13 year and veteran-owned business enterprise shall mean any business
14 enterprise which is at least fifty-one per centum owned by, or in the
15 case of a publicly owned business, at least fifty-one percentum of the
16 stock to other voting interests of which is owned by citizens or perma-
17 nent resident aliens who are veterans, and such ownership interest is
18 real, substantial and continuing and has the authority to independently
19 control the day to day business decisions of the entity for at least one
20 year.
21 The provisions of this subdivision shall not be construed to limit the
22 ability of any minority business enterprise to bid on any contract.
23 (ii) In order to implement the requirements and objectives of this
24 section, the council shall request, as appropriate, the assistance of
25 other state agencies to monitor the contractors' compliance with
26 provisions hereof, provide assistance in obtaining competing qualified
27 minority [and women-owned], women and veteran-owned business enterprises
28 to perform contracts proposed to be awarded, and take other appropriate
29 measures to improve the access of minority [and women-owned], women and
30 veteran-owned business enterprises to these contracts.
31 § 33. Subdivision 33 of section 454 of the banking law, as amended by
32 chapter 679 of the laws of 2003, is amended to read as follows:
33 33. Notwithstanding any other provision of this article to the contra-
34 ry, to participate in the minority - [and women-owned], women - and
35 veteran-owned business development and lending program[, as established
36 in section 16-c of section 1 of chapter 174 of the laws of 1968, consti-
37 tuting the urban development corporation act,] to the extent that such
38 program allows participation by credit unions.
39 § 34. Section 52-0113 of the environmental conservation law, as added
40 by chapter 512 of the laws of 1986, is amended to read as follows:
41 § 52-0113. Minority [and women-owned], women and veteran-owned business
42 enterprise program.
43 1. a. In the performance of projects pursuant to this article minority
44 [and women-owned], women and veteran-owned business enterprises shall be
45 given the opportunity for meaningful participation. The department or
46 the office shall establish measures and procedures to secure meaningful
47 participation and identify those contracts and items of work for which
48 minority [and women-owned], women and veteran-owned business enterprises
49 may best bid to actively and affirmatively promote and assist their
50 participation in the projects, so as to facilitate the award of a fair
51 share of contracts to such enterprises; provided, however, that nothing
52 in this article shall be construed to limit the ability of the depart-
53 ment or office to assure that qualified minority [and women-owned],
54 women and veteran-owned business enterprises may participate in the
55 program. For purposes hereof, minority business enterprise shall mean
56 any business enterprise which is at least fifty-one per centum owned by,
S. 5968 54
1 or in the case of a publicly owned business, at least fifty-one per
2 centum of the stock of which is owned by citizens or permanent resident
3 aliens who are Black, Hispanic, Asian or American Indian, Pacific Islan-
4 der or Alaskan natives and such ownership interest is real, substantial
5 and continuing and have the authority to independently control the day
6 to day business decisions of the entity for at least one year; [and]
7 women-owned business enterprise shall mean any business enterprise which
8 is at least fifty-one per centum owned by, or in the case of a publicly
9 owned business, at least fifty-one per centum of the stock of which is
10 owned by citizens or permanent resident aliens who are women, and such
11 ownership interest is real, substantial and continuing and have the
12 authority to independently control the day to day business decisions of
13 the entity for at least one year and veteran-owned business enterprise
14 shall mean any business enterprise which is at least fifty-one per
15 centum owned by, or in the case of a publicly owned business, at least
16 fifty-one per centum of the stock of which is owned by citizens or
17 permanent resident aliens who are veterans, and such ownership interest
18 is real, substantial and continuing and have the authority to independ-
19 ently control the day to day business decisions of the entity for at
20 least one year.
21 The provisions of this paragraph shall not be construed to limit the
22 ability of any minority [or women-owned], women or veteran-owned busi-
23 ness enterprise to bid on any contract.
24 b. In the implementation of this section, the department or the office
25 shall consider compliance by any contractor with the requirements of any
26 federal, state, or local law concerning minority [and women-owned],
27 women and veteran-owned business enterprises, which may effectuate the
28 requirements of this section. If the department or the office determines
29 that by virtue of the imposition of the requirements of any such law, in
30 respect to capital project contracts, the provisions thereof duplicate
31 or conflict with such law, the department may waive the applicability of
32 this section to the extent of such duplication or conflict.
33 c. Nothing in this section shall be deemed to require that overall
34 state and federal requirements for participation of minority [and
35 women-owned], women and veteran-owned business enterprises in programs
36 authorized under this article be applied without regard to local circum-
37 stances to all projects or in all communities.
38 2. In order to implement the requirements and objectives of this
39 section, the department and the office shall establish procedures to
40 monitor the contractors' compliance with provisions hereof, provide
41 assistance in obtaining competing qualified minority [and women-owned],
42 women and veteran-owned business enterprises to perform contracts
43 proposed to be awarded, and take other appropriate measures to improve
44 the access of minority [and women-owned], women and veteran-owned busi-
45 ness enterprises to these contracts.
46 § 35. Section 957 of the general municipal law is amended by adding a
47 new subdivision (u) to read as follows:
48 (u) "Veteran-owned business enterprise" shall have the same meaning
49 as provided in section three hundred ten of the executive law.
50 § 36. Subdivisions (a), (g) and (t) of section 959 of the general
51 municipal law, subdivision (a) as amended by section 2 of part R of
52 chapter 57 of the laws of 2010 and subdivisions (g) and (t) as amended
53 by section 3 of part S1 of chapter 57 of the laws of 2009, are amended
54 to read as follows:
55 (a) After consultation with the director of the budget, the commis-
56 sioner of labor, and the commissioner of taxation and finance, promul-
S. 5968 55
1 gate regulations, which, notwithstanding any provisions to the contrary
2 in the state administrative procedure act, may be adopted on an emergen-
3 cy basis, governing (i) criteria of eligibility for empire zone desig-
4 nation, provided, however, that such criteria be approved by the direc-
5 tor of the budget; (ii) the application process; (iii) the certification
6 by the commissioner as to the eligibility of business enterprises for
7 benefits referred to in section nine hundred sixty-six of this article,
8 which shall be governed by criteria including, but not limited to: (1)
9 whether the business enterprise, if certified, is reasonably likely to
10 create new employment or prevent a loss of employment in the zone, (2)
11 whether such new employment opportunities will be for individuals who
12 will perform a substantial part of their employment activities in the
13 zone, (3) whether certification will have the undesired effect of caus-
14 ing individuals to transfer from existing employment with another busi-
15 ness enterprise to similar employment with the business enterprise so
16 certified, and transferring existing employment from one or more other
17 municipalities, towns or villages in the state, or transferring existing
18 employment from one or more other businesses in the zone, (4) whether
19 such enterprise is likely to enhance the economic climate of the zone,
20 (5) whether the commissioner of labor establishes that such business
21 enterprise, during the three years preceding the submission of an appli-
22 cation for certification, has engaged in a substantial violation or a
23 pattern of violations of laws regulating unemployment insurance, workers
24 compensation, public work, child labor, employment of minorities [and
25 women], women and veterans, safety and health, or other laws for the
26 protection of workers as determined by final judgment of a judicial or
27 administrative proceeding; (6) whether such business meets the require-
28 ments of the cost benefit analysis as established in paragraph (p) of
29 section nine hundred fifty-seven of this article, and (7) if the commis-
30 sioner of labor establishes that the business enterprise has been found
31 in a criminal proceeding to have violated, in the previous three years,
32 any of the laws referred to in subparagraph five of this paragraph or
33 regulations promulgated pursuant to such laws, the conditions of any
34 permit issued thereunder, or similar statute, regulation, order or
35 permit condition of any other government agency, foreign or domestic,
36 such business shall not be certified; provided, however, that a business
37 enterprise that has shifted its operations, or some portions thereof,
38 from an area within New York state not designated as an empire zone or
39 zone equivalent area to an area so designated shall not be certified to
40 receive such benefits except where such shift is entirely within a muni-
41 cipality and has been approved by the local governing body of such muni-
42 cipality or in situations where it has been established, after a public
43 hearing, that extraordinary circumstances exist which warrant the relo-
44 cation of a business, in whole or part, into an empire zone or a zone
45 equivalent area from another municipality and the municipality from
46 which the business is relocating approves of such relocation; or where
47 such shift in operations is from a business incubator facility operated
48 by a municipality or by a public or private not-for-profit entity which
49 provides space and business support services to newly established firms;
50 and (iv) the decertification by the commissioner, upon the recommenda-
51 tion of the commissioner of labor, so as to revoke the certification of
52 business enterprises for benefits referred to in section nine hundred
53 sixty-six of this article with respect to an empire zone or zone equiv-
54 alent area upon a finding that the business enterprise has committed
55 substantial violations of laws for the protection of workers including
56 all federal, state and local labor laws, rules or regulations; and (v)
S. 5968 56
1 the decertification by the commissioner so as to revoke the certif-
2 ication of business enterprises for benefits referred to in section nine
3 hundred sixty-six of this article with respect to an empire zone or zone
4 equivalent area upon a finding of any one of the following: (1) the
5 business enterprise made material misrepresentations of fact on its
6 application for certification or in any of its business annual reports,
7 or the business enterprise failed to disclose facts in its application
8 for certification that would constitute grounds for not issuing a
9 certification; (2) the business enterprise has failed to construct,
10 expand, rehabilitate or operate or invest in its facility substantially
11 in accordance with the representations contained in its application for
12 certification; (3) the business enterprise has failed to create new
13 employment or prevent a loss of employment in the empire zone or zone
14 equivalent area; (4) where applicable, the business enterprise has
15 failed to submit an annual report after it has applied for zone tax
16 benefits or program assistance based on new hires or investments or
17 failed to submit other information when due; (5) the business enter-
18 prise, if first certified pursuant to this article prior to the first
19 day of August, two thousand two, caused individuals to transfer from
20 existing employment with another business enterprise with similar owner-
21 ship and located in New York state to similar employment with the certi-
22 fied business enterprise or if the enterprise acquired, purchased,
23 leased, or had transferred to it real property previously owned by an
24 entity with similar ownership, regardless of form of incorporation or
25 organization; (6) the business enterprise has failed to provide economic
26 returns to the state in the form of total remuneration to its employees
27 (i.e. wages and benefits) and investments in its facility greater in
28 value to the tax benefits the business enterprise used and had refunded
29 to it; or (7) the business enterprise has changed ownership or moved its
30 operations out of the empire zone; said regulations shall provide that
31 whenever any business enterprise is decertified with respect to an
32 empire zone: (A) the date determined to be the earliest event constitut-
33 ing grounds for revoking certification shall be the effective date of
34 decertification; (B) its certified single enterprise, if any, may also
35 be decertified; and (C) the commissioner shall notify the commissioner
36 of taxation and finance that such decertification has occurred, and such
37 notification should include the effective date of such decertification
38 and the zone or zone equivalent area to which such decertification
39 applies; with respect to any business enterprise whose certification has
40 been revoked pursuant to subparagraph five or six of this paragraph,
41 that revocation (I) will be effective for a taxable year beginning on or
42 after January first, two thousand eight and before January first, two
43 thousand nine and for subsequent taxable years, unless the business
44 enterprise is subsequently re-certified pursuant to part 11 of title 5
45 of the New York state codes, rules and regulations for a business enter-
46 prise for which a review is required to be conducted pursuant to subdi-
47 vision (w) of this section in calendar year two thousand nine, and (II)
48 thereafter will be effective for the taxable year during which the
49 commissioner makes his or her determination (prior to any appeal) to
50 revoke the certification of a business enterprise and for subsequent
51 taxable years;
52 (g) Coordinate, with the local empire zone administrative board and
53 state agencies and authorities, the provision of business development
54 programs and services for each empire zone in order to stimulate the
55 creation and development of new small businesses, including new small
56 minority-owned [and], women-owned and veteran-owned business enter-
S. 5968 57
1 prises, and may request and shall receive from any department, division,
2 board, bureau, commission, agency or public authority of the state such
3 assistance as may be necessary;
4 (t) Coordinate with the urban development corporation the creation of
5 a special category of assistance for zones within the regional economic
6 development partnership program, which will make available economic
7 development assistance grants for zone programs and activities, includ-
8 ing, but not limited to, planning, service coordination, and local
9 institutional capacity building for human resource development necessary
10 for economic revitalization; planning and development of small business
11 incubators; job placement and preparedness programs for zones residents;
12 education and training programs for zone businesses; child care programs
13 and projects supportive of business development; technical assistance
14 for minority [and women-owned], women and veteran-owned business devel-
15 opment; training for zone officials; business and tourism development
16 and marketing programs; and other innovative programs and activities in
17 support of economic and community development within the zones;
18 § 37. Paragraphs (iii) and (xii) of subdivision (a) of section 963 of
19 the general municipal law, as amended by chapter 708 of the laws of 1993
20 and further amended by section 15 of part GG of chapter 63 of the laws
21 of 2000, are amended to read as follows:
22 (iii) undertake efforts to ensure meaningful participation by minori-
23 ty-owned [and women-owned], women and veteran-owned business enterprises
24 in empire zone activities;
25 (xii) provide within the zone, or contract with a new or existing
26 community-based local development corporation or entity to provide,
27 strategic economic development planning for the zone, marketing and
28 promotion of the zone, assistance to companies in applying for available
29 benefits, preparation of applications for financing assistance and other
30 technical assistance services; coordination of the delivery of state and
31 local programs within the zones; and operation of such other economic
32 development assistance programs in furtherance of the empire zone devel-
33 opment plan as may be appropriate. Provided, however, within the amount
34 appropriated therefor and allocated by the director of the budget, the
35 commissioner, through annual administrative contracts, shall, to the
36 maximum extent feasible, make equally available financial support,
37 through contracts or other means, to assist with the administrative
38 expenses of the local zone administrative bodies or community-based
39 development organizations. No funds shall be made available for this
40 purpose unless the amount to be provided has been matched by private or
41 governmental sources, other than state sources, in amounts at least
42 equalling that to be provided by the state. Such matching funds shall be
43 earmarked and used exclusively for the local administration of the zone
44 program or for activities of the zone program. At least fifty percent of
45 such matching funds shall be in cash, provided that the commissioner may
46 waive this requirement for communities with populations of twenty-five
47 thousand or less, and provided, further, that any amounts appropriated
48 for minority [and women-owned], women and veteran-owned business devel-
49 opment within the zones shall be distributed by the commissioner pursu-
50 ant to a competitive proposal solicitation process.
51 § 38. Subdivision (c) of section 964 of the general municipal law, as
52 amended by chapter 708 of the laws of 1993 and further amended by
53 section 15 of part GG of chapter 63 of the laws of 2000, is amended to
54 read as follows:
55 (c) Each empire zone capital corporation shall, to the maximum extent
56 feasible, undertake measures and procedures to ensure meaningful partic-
S. 5968 58
1 ipation by minority-owned [and], women-owned and veteran-owned business
2 enterprises in the activities and investments of such corporation. Each
3 such corporation shall additionally, to the maximum extent feasible,
4 undertake measures and procedures to ensure meaningful participation by
5 locally owned business enterprises in the activities and investments of
6 such corporation.
7 § 39. Subparagraph 7 of paragraph f of subdivision 3 of section 970-r
8 of the general municipal law, as amended by section 1 of part F of chap-
9 ter 577 of the laws of 2004, is amended to read as follows:
10 (7) the financial commitments the applicant will make to the brown-
11 field opportunity area for activities including, but not limited to,
12 marketing of the area for business development, human resource services
13 for residents and businesses in the brownfield opportunity area, and
14 services for small [and], minority [and women-owned], women and veter-
15 an-owned businesses.
16 § 40. Section 3 of section 1 of chapter 174 of the laws of 1968,
17 constituting the New York state urban development corporation act, is
18 amended by adding a new subdivision 31 to read as follows:
19 (31) "Veteran business enterprise". A business enterprise which is at
20 least fifty-one percent owned, or in the case of a publicity-owned busi-
21 ness at least fifty-one percent of the common stock or other voting
22 interests of which is owned, by United States citizens or permanent
23 resident aliens who are veterans, regardless of race or ethnicity, and
24 such ownership interest is real, substantial and continuing and such
25 veterans have and exercise the authority to independently control the
26 day to day business decisions of the enterprises.
27 § 41. The second undesignated paragraph of subdivision 1 of section 12
28 of section 1 of chapter 174 of the laws of 1968, constituting the New
29 York state urban development corporation act, as added by section 1 of
30 part EE of chapter 60 of the laws of 2011, is amended to read as
31 follows:
32 The empire state new market corporation, a community development enti-
33 ty certified by the United States Department of the Treasury Community
34 Development Financial Institutions Fund and a corporate subsidiary of
35 the corporation, by resolution, may direct any of its directors, offi-
36 cers, or employees to form limited liability companies pursuant to
37 section 203 of the limited liability company law for the sole purpose of
38 certifying and performing as community development entities that would
39 be eligible to receive an allocation of tax credits under the new
40 markets tax credit program. No limited liability company formed pursu-
41 ant to this section shall merge or consolidate. Each limited liability
42 company shall act solely in relation to projects selected by the corpo-
43 ration, or a corporate subsidiary of the corporation. Each limited
44 liability company shall be empowered to receive an allocation of tax
45 credits from a federal allocation to the corporation, or a corporate
46 subsidiary of the corporation, under the new markets tax credit program
47 and to do any other act or things incidental to or connected with the
48 foregoing purposes or in advancement thereof. The corporation, or a
49 corporate subsidiary of the corporation, shall be the managing member of
50 each limited liability company created by the corporation. In determin-
51 ing which projects to allocate tax credits to under the new markets tax
52 credit program, the corporation shall prioritize projects demonstrating
53 one or more of the following goals or benefits: (a) creating or retain-
54 ing jobs in low income communities; (b) increasing the provision of
55 goods and services for low income community residents which would other-
56 wise not be available at the same price or quality; (c) supporting
S. 5968 59
1 minority [and women-owned], women and veteran-owned or controlled busi-
2 nesses; (d) expanding housing opportunities for low income community
3 persons; (e) supporting environmentally sustainable outcomes; and (f)
4 supporting efforts that otherwise benefit low income community residents
5 by leveraging further investment in their communities. Provided
6 further, such projects shall be limited to projects that would be
7 authorized under this act and shall be subject to approval by the board
8 of the urban development corporation. The corporation shall publish
9 information regarding the process used to select projects to receive the
10 new markets tax credits and provide a copy to the temporary president of
11 the senate, the speaker of the assembly, the minority leader of the
12 senate and the minority leader of the assembly. The corporation shall
13 strive for regional diversity in the allocation of tax credits under the
14 new markets tax credit program. The corporation shall include in the
15 information required to be submitted annually in accordance with the
16 provisions of subdivision 1 of section 2800 of the public authorities
17 law information regarding assistance provided by it or its subsidiary
18 under the new markets tax credit program, and shall provide financial
19 information with respect to any subsidiary administering the program in
20 the corporation's financial reports, including its certified audited
21 financial statements.
22 § 42. Paragraph (c) of subdivision 9 of section 16-a of section 1 of
23 chapter 174 of the laws of 1968, constituting the New York state urban
24 development corporation act, as amended by chapter 477 of the laws of
25 2002, is amended to read as follows:
26 (c) of minority [or women-owned], women or veteran-owned enterprises
27 or enterprises owned by dislocated workers, such workers as defined in
28 the Workforce Investment Act (P.L. 105-220); and
29 § 43. Section 16-c of section 1 of chapter 174 of the laws of 1968,
30 constituting the New York state urban development corporation act, as
31 added by chapter 169 of the laws of 1994, subparagraphs (i) and (ii) of
32 paragraph (a) subdivision 2 as further amended by section 15 of part GG
33 of chapter 63 of the laws of 2000, is amended to read as follows:
34 § 16-c. Minority- [and women-owned], women- and veteran-owned business
35 development and lending program.
36 (1) Minority- [and women-owned], women- and veteran-owned business
37 development and lending program. (a) There is hereby created a minori-
38 ty- [and women-owned], women- and veteran-owned business development and
39 lending program for the purpose of providing financial and technical
40 assistance to minority [and women-entrepreneurs], women and veteran
41 entrepreneurs.
42 (b) For the purposes of this section the following words or terms
43 shall mean as follows:
44 (i) "minority-owned business enterprise" or "minority-owned business"
45 shall mean the same as "minority business enterprise" as defined in
46 subdivision three of section two hundred ten of the economic development
47 law.
48 (ii) "women-owned business enterprise" or "women-owned business" shall
49 mean the same as "women-owned business enterprise" as defined in subdi-
50 vision five of section two hundred ten of the economic development law.
51 (iii) "veteran-owned business enterprise" or "veteran-owned business"
52 shall mean the same as "veteran-owned business enterprise" as defined in
53 subdivision six of section two hundred ten of the economic development
54 law.
55 (iv) "incubator" shall mean a facility providing low-cost space, tech-
56 nical assistance and support services, including, but not limited to,
S. 5968 60
1 central services shared by tenants of the facility, to minority- [and
2 women-owned], women- and veteran-owned business enterprises.
3 (c) Assistance shall not be provided under this section for:
4 (i) the purchase or rehabilitation of real property for speculative
5 purposes;
6 (ii) payment of any tax or employee benefit arrearage;
7 (iii) residential construction, renovation or development
8 construction, except for assistance to minority [and], women and veteran
9 contractors under subdivision four of this section;
10 (iv) educational institutions and proprietary education firms, except
11 licensed child care facilities;
12 (v) hospitals or residential health care facilities;
13 (vi) overnight lodging facilities;
14 (vii) refinancing of debt or equity invested in an enterprise or
15 project.
16 (d) The corporation is authorized to:
17 (i) establish programs in conjunction with locally, and community
18 based entities to decentralize lending for small loans and loans to
19 start up minority- [and women-owned], women- and veteran-owned busi-
20 nesses;
21 (ii) establish a comprehensive program for minority [and], women and
22 veteran contractors, which may include assistance through loans, bonding
23 assistance and technical assistance;
24 (iii) establish a program to provide loans to established minority-
25 [and women-owned], women- and veteran-owned businesses and for minority-
26 [and women-owned], women- and veteran-owned businesses, including loans
27 to such businesses seeking to acquire or expand a franchise;
28 (iv) provide loan guarantees to financial institutions and make linked
29 deposits into federally and state chartered credit unions for the
30 purpose of encouraging private financial institutions to make loans to
31 minority- [and women-owned], women- and veteran-owned businesses;
32 (v) establish a program to create incubators to assist small and high
33 risk minority- [and women-owned], women- and veteran-owned businesses to
34 grow and prosper;
35 (vi) promote equity investment in minority- [and women-owned], women-
36 and veteran-owned businesses; and
37 (vii) establish a comprehensive technical assistance program in coop-
38 eration with the department of economic development to assist minority-
39 [and women-owned], women- and veteran-owned businesses and potential
40 [minority and women-entrepreneurs] minority-, women- and veteran-entre-
41 preneurs.
42 (2) Minority [and], women and veteran revolving loan trust fund. For
43 the purpose of establishing programs in conjunction with locally and
44 community based entities to decentralize lending for small loans and
45 loans to start up minority- [and women-owned], women- and veteran-owned
46 businesses, the corporation shall establish minority [and], women and
47 veteran revolving loan trust fund accounts and related administrative
48 expenses trust fund accounts.
49 (a) Each minority [and], women and veteran revolving loan trust fund
50 account shall be administered by one or more of the following types of
51 entities that provide services to community businesses and have as one
52 of their primary purposes the provision of services and assistance to
53 minority- [and women-owned], women- and veteran-owned businesses:
54 (i) empire zone capital corporations established pursuant to section
55 nine hundred sixty-four of the general municipal law;
S. 5968 61
1 (ii) community-based local development corporations or industrial
2 development agencies that serve a municipality in which an empire zone
3 has been established pursuant to article eighteen-B of the general
4 municipal law and have as their primary purpose assistance to minority-
5 [and women-owned], women- and veteran-owned businesses located or to be
6 located in such empire zone; or
7 (iii) local and community development corporations, industrial devel-
8 opment agencies, or other not-for-profit entities, representative of the
9 community.
10 (b) To be eligible to administer a minority [and], women and veteran
11 revolving loan trust fund account, the entity must also: (i) have staff
12 with sufficient expertise to analyze applications for financial assist-
13 ance, to regularly monitor financial assistance to clients, and to
14 provide management or technical assistance to clients; and (ii) have
15 established a loan committee composed of six or more persons experienced
16 in business management, commercial lending or in the operation of a
17 for-profit business, at least one-half of whom shall be experienced in
18 commercial lending, at least [one-third] one-quarter of whom shall be
19 minority persons and at least [one-third] one-quarter of whom shall be
20 women and at least one-quarter of whom shall be veterans. Such loan
21 committee shall review every application, determine the feasibility of
22 the proposed project and the likelihood of repayment of the requested
23 financing and shall recommend to the governing body of the entity such
24 action on the application as the loan committee deems appropriate. The
25 corporation shall identify entities eligible to administer minority and
26 women revolving loan trust fund accounts through a competitive statewide
27 request for proposal process.
28 (c) Any entity selected to administer a minority [and], women and
29 veteran revolving loan trust fund account shall be eligible to draw
30 funds from the account as needed to provide the following types of
31 financial assistance to minority- [and women-owned], women- and veter-
32 an-owned businesses upon certification to and acceptance by the corpo-
33 ration that such assistance complies with rules and regulations promul-
34 gated by the corporation: (i) working capital loans, provided that the
35 amount of the loan does not exceed thirty-five thousand dollars and the
36 term of the loan does not exceed five years; and (ii) loans for the
37 acquisition and/or improvement of real property and for the acquisition
38 of machinery and equipment provided that the amount of the loan does not
39 exceed fifty thousand dollars and the term of the loan does not exceed
40 the useful life of the equipment or property.
41 (d) (i) Notwithstanding any provision of law to the contrary, the
42 corporation may establish an administrative expenses trust fund account
43 for the benefit of each entity selected to administer a minority [and],
44 women and veteran revolving loan trust fund account. The initial deposit
45 of funds to an administrative expenses trust fund account shall be an
46 amount determined by the corporation but shall not exceed twenty-five
47 thousand dollars.
48 (ii) An entity selected to administer a minority [and], women and
49 veteran revolving loan trust fund account may use the funds in the
50 administrative expenses trust fund account for costs incurred by it in
51 the start up and administration of the financial assistance program
52 authorized pursuant to this subdivision.
53 (iii) The corporation shall deposit into each administrative expenses
54 trust fund account:
55 (A) all income earned from the moneys on deposit in the corresponding
56 minority [and], women and veteran revolving loan trust fund account
S. 5968 62
1 during the first year of the entity's administration of said account;
2 and
3 (B) beginning with its second year in administering a minority [and],
4 women and veteran revolving loan trust fund account, said amounts may be
5 used for costs incurred by the entity in administering the minority
6 [and], women and veteran revolving loan trust fund account; and
7 (C) repayments of interest on loans made from the corresponding minor-
8 ity [and], women and veteran revolving loan trust fund account.
9 (iv) Funds from the administrative expenses trust fund account may be
10 used for costs incurred at any time by an administering entity in its
11 administration of a minority [and], women and veteran revolving loan
12 trust fund account pursuant to this section.
13 (v) Funds deposited in an administrative expenses trust fund account
14 shall be disbursed by the corporation to the entity that administers the
15 corresponding minority [and], women and veteran revolving loan trust
16 fund account on a periodic basis and shall be expended by the entity in
17 accordance with an annual budget and any updates of same, approved by
18 the corporation.
19 (e) Any entity selected to administer a minority [and], women and
20 veteran revolving loan trust fund account shall pay to the corporation
21 for deposit any repayments received in connection with financial assist-
22 ance provided from its account. Payments consisting of the repayment of
23 the principal amount of a loan shall be deposited by the corporation
24 into the minority [and], women and veteran revolving loan trust fund
25 account from which the loan was made. The interest earned by the corpo-
26 ration from the investment of moneys in each minority [and], women and
27 veteran revolving loan trust fund account during and after the second
28 year of a selected entity's administration of said account shall be
29 deposited by the corporation into the corresponding minority [and],
30 women and veteran revolving loan trust fund account and used to provide
31 the financial assistance to minority- [and women-owned], women- and
32 veteran-owned businesses as authorized pursuant to this section.
33 (f) The provisions of subdivisions eight, nine, and fourteen through
34 nineteen of section sixteen-a of this act pertaining to the regional
35 revolving loan trust fund shall also be applicable to the minority
36 [and], women and veteran revolving loan trust fund, provided that: where
37 the term "regional corporation" appears therein it shall be interpreted
38 to mean an entity selected to administer a minority [and], women and
39 veteran revolving loan trust fund account, and "regional revolving loans
40 trust fund" shall mean a minority [and], women and veteran revolving
41 loan trust fund, and where the term "this section" appears therein it
42 shall mean this section sixteen-c.
43 (g) The corporation may provide funds from an appropriation for the
44 minority- [and women-owned], women- and veteran-owned business develop-
45 ment and lending program to any entity selected to administer a minority
46 [and], women and veteran revolving loan trust fund for the purposes of
47 recapitalizing such account and the entity's corresponding administra-
48 tive expenses trust fund account following an evaluation by the corpo-
49 ration of the entity's administration and use of such accounts.
50 (h) Notwithstanding any provision of law to the contrary, the corpo-
51 ration shall establish a minority [and], women and veteran revolving
52 loan trust fund to pay into such fund any moneys made available to the
53 corporation for such fund from any source, including moneys appropriated
54 by the state and any income earned by, or increment to, the account due
55 to the investment thereof, or any repayment of moneys advanced from the
56 fund. The corporation shall not commingle the moneys of such fund with
S. 5968 63
1 any moneys held in trust by the corporation, except for investment
2 purposes.
3 (3) Micro-loan program. (a) For the purposes of this subdivision
4 "micro-loan" shall mean a loan of under seven thousand five hundred
5 dollars.
6 (b) The corporation shall, pursuant to requests for proposals, enter
7 into agreements for other types of locally, community or regionally
8 administered loan programs than those set forth in subdivision two of
9 this section, including micro-loan programs to be administered by local
10 development corporations, local industrial development organizations,
11 municipalities and not-for-profit organizations, to provide micro-loans
12 to small and high risk minority- [and women-owned], women- and veteran-
13 owned businesses located within their respective service areas, provided
14 that loan review committees are established by such administering enti-
15 ty, including women, veterans and minority persons experienced in busi-
16 ness management, business development, commercial lending, entrepreneur-
17 ship, or in the operation of a for-profit business.
18 (c) Agreements entered into pursuant to paragraph (b) of this subdivi-
19 sion shall be governed by paragraphs (d) through (h) of subdivision two
20 of this section, and minority [and], women and veteran revolving loan
21 trust fund accounts and administrative expenses trust fund accounts
22 shall be established in a similar fashion for entities selected to
23 administer micro-loan funds pursuant to this subdivision.
24 (4) Minority [and], women and veteran contracting program. For the
25 purpose of establishing a comprehensive program to assist minority
26 [and], women and veteran contractors, the corporation may provide loans,
27 loan guarantees, technical assistance and bonding assistance, the corpo-
28 ration may enter into cooperative agreements with cities, counties,
29 municipalities, authorities, agencies, federally and state chartered
30 credit unions in New York state and federally insured banking organiza-
31 tions and financial institutions for such purposes.
32 (a) To be eligible for a contractor loan, the borrower must have
33 either (i) a construction contract with, or a contract to provide goods
34 or services to, a governmental entity or authority, (ii) a subcontract
35 on a government-sponsored construction contract, (iii) a contract or
36 subcontract on a government sponsored residential project, or (iv) a
37 contract or subcontract on a construction project previously approved by
38 the corporation pursuant to section ten of this act.
39 (b) The corporation shall provide technical assistance specifically
40 oriented to [minority and women-owned] minority-, women- and veteran-
41 owned government contractors as part of its comprehensive technical
42 assistance program.
43 (c) The corporation is authorized to provide assistance through the
44 creation of, or assistance to, a minority [and], women and veteran bond-
45 ing guarantee program to enable minority [and], women and veteran
46 contractors and subcontractors to meet payment or performance bonding
47 requirements.
48 (i) Through such program, assistance in the form of working capital
49 loans and loan guarantees pursuant to subdivision six of this section
50 may also be provided to minority [and], women and veteran contractors
51 and subcontractors who have secured contracts by participating in the
52 program.
53 (ii) The corporation shall either establish criteria for the bonding
54 guarantee program and for any required escrow funds which shall include
55 detailed provisions for eligibility; or if the corporation is providing
S. 5968 64
1 assistance to a program other than one established by the corporation,
2 review and approve the criteria established for such other program.
3 (5) Direct financial assistance for minority- [and women-owned],
4 women- and veteran-owned businesses. For the purpose of establishing a
5 program to provide direct financial assistance to minority- [and women-
6 owned], women- and veteran-owned businesses, the corporation is author-
7 ized to provide assistance in the form of:
8 (a) Business development loans and loan guarantees pursuant to subdi-
9 vision six of this section to eligible enterprises for the acquisition
10 or improvement of real property, machinery, equipment or working capi-
11 tal, provided that to be eligible for a business development loan, the
12 borrowers must have been in business for at least three years and
13 provided that the loans must be in an amount equal to or in excess of
14 fifty thousand dollars;
15 (b) Franchise loans to eligible enterprises seeking to acquire or
16 expand franchises of nationally recognized corporations, provided that
17 disbursements by the corporation of such loans shall be conditioned on
18 obtaining such franchises;
19 (c) Equity assistance for eligible [minority and women-owned] minori-
20 ty-, women- and veteran-owned enterprises to match equity contributions
21 to such enterprises by financial institutions and community development
22 equity capital funds, provided, however, that such assistance shall be
23 targeted to start-up and early stage enterprises in the manufacturing,
24 retail and service sectors located in economically distressed areas.
25 (6) Deposits and loan guarantees. For the purpose of encouraging
26 private financial institutions to make loans to eligible enterprises
27 pursuant to this section for any of the eligible projects pursuant to
28 subdivisions four and five of this section, the corporation is author-
29 ized to:
30 (a) Make linked deposits of funds into federally and state chartered
31 credit unions in New York state, in order to encourage such organiza-
32 tions to make small loans to [minority and women-owned] minority-,
33 women- and veteran-owned businesses; and
34 (b) Provide loan guarantees to private financial institutions for
35 loans made to eligible minority- [and women-owned], women- and veteran-
36 owned businesses pursuant to this subdivision for eligible projects,
37 provided that the guarantee shall be at least fifty percent backed by
38 funds of the corporation. Any such loan guaranteed by the corporation
39 shall be made to borrowers that are approved by the corporation and
40 substantially meet the underwriting criteria the credit union or finan-
41 cial institution customarily applies to similar borrowers for similar
42 loans supported by similar guarantees, and no guaranteed loan funds
43 shall be disbursed until the corporation has received, reviewed and
44 concurred, in writing, with the recommendation of the credit union or
45 banking or financial institution to make a loan.
46 (7) Minority [and], women and veteran small business incubator
47 program. (a) The corporation shall establish a minority [and], women and
48 veteran small business incubator program for the purpose of providing
49 financial support for the creation of incubators to nurture [minority
50 and women-owned] minority-, women- and veteran-owned business enter-
51 prises with growth potential.
52 (b) Under this subdivision the corporation is authorized to provide
53 low-interest loans and grants for construction financing and permanent
54 financing of up to seventy-five percent of project costs up to a maximum
55 of six hundred fifty thousand dollars per project, provided that the
56 total amount of grant assistance provided pursuant to this paragraph
S. 5968 65
1 shall not exceed twenty percent of an appropriation provided for the
2 purposes of this section.
3 (c) Incubator projects eligible for such assistance shall involve the
4 renovation or reconstruction of existing facilities or the acquisition
5 of equipment, except that construction shall be allowable in cases in
6 which an applicant can demonstrate to the satisfaction of the corpo-
7 ration that an existing facility is unavailable in the area to be served
8 by the new incubator facility.
9 (d) Incubator projects are not eligible to receive loans for the
10 purpose of covering operating costs or supplying incubator support
11 services, except that incubators in their first eighteen months of oper-
12 ation may receive one-time grants not to exceed forty thousand dollars,
13 which costs may include administrative costs of employing a resident
14 administrator/advisor to the incubator, provided that the corporation
15 shall not expend a sum greater than two hundred fifty thousand dollars
16 in any one state fiscal year, or so much as may be specifically appro-
17 priated for this purpose.
18 (e) Eligible incubator projects shall be required to demonstrate to
19 the corporation's satisfaction:
20 (i) public or private support and involvement sufficient to complete
21 the renovation of existing facilities or the construction of new facili-
22 ties and the acquisition of equipment;
23 (ii) significant community support for the project;
24 (iii) the existence of prospective tenants for such incubator space;
25 (iv) demand for such incubator space, which may include evidence of
26 the unavailability of suitable space for prospective tenants at appro-
27 priate rental or lease costs in the community in which such prospective
28 tenants are located; and
29 (v) the inability of the project to occur without financial assistance
30 from the corporation.
31 (f) The corporation shall establish criteria for eligibility for fund-
32 ing for incubator projects, including but not limited to the following:
33 (i) the project must be designed to provide low-cost space and support
34 services to incubator tenants, coordination with other sources of
35 assistance and flexible leasing arrangements for tenants;
36 (ii) the project sponsors must provide a management plan and a busi-
37 ness plan for operating the incubator satisfactory to the corporation;
38 and
39 (iii) the project gives preference for incubator space and assistance
40 to minority- [and women-owned], women- and veteran-owned businesses
41 which currently receive, or have received, assistance from the corpo-
42 ration pursuant to this section and to incubator projects proposed to be
43 located in economically distressed areas.
44 (8) Minority- [and women-owned], women- and veteran-owned business
45 technical assistance program. (a) The corporation shall establish a
46 comprehensive technical assistance program within the minority [and],
47 women and veteran business development office, in cooperation with the
48 department of economic development's division of minority- [and women-
49 business], women- and veteran-business development established pursuant
50 to article four-A of the economic development law, to provide technical
51 assistance to minority- [and women-owned], women- and veteran-owned
52 business enterprises and to prospective minority- [and women-business],
53 women- and veteran-business entrepreneurs through third party service
54 providers, which assistance shall include, but not be limited to: (i)
55 technical assistance in development and execution of business plans,
56 including the formation of, acquisition of, management of, or diversifi-
S. 5968 66
1 cation of a minority- [or women-owned], women- or veteran-owned business
2 enterprise; (ii) technical assistance with applications for obtaining
3 funds from public and private financing sources; (iii) technical assist-
4 ance in the development of a working capital budget; (iv) referrals to
5 other providers of technical assistance to minority- [and women-owned],
6 women- and veteran-owned businesses and minority [and], women and veter-
7 an entrepreneurs, where appropriate, including the entrepreneurial
8 assistance program established pursuant to article nine of the economic
9 development law; and (v) technical assistance through education programs
10 directed primarily at women , veteran and minority entrepreneurs.
11 (b) Technical assistance may be provided through direct corporate
12 support, through grants to or contracts with service providers or
13 governmental entities, and minority- [and women-owned], women- and
14 veteran-owned business enterprises and individuals.
15 (9) Priorities. The corporation shall give priority to applications
16 for assistance pursuant to this section in which the business seeking
17 such assistance indicates a commitment to first consider persons eligi-
18 ble to participate in federal job training partnership act (P.L. 97-300)
19 programs.
20 (10) Non-application of certain provisions. The provisions of section
21 ten and subdivision two of section sixteen of this act shall not apply
22 to assistance or projects authorized pursuant to this section.
23 (11) Rules and regulations. The corporation shall, assisted by the
24 commissioner of economic development and in consultation with the
25 department of economic development, promulgate rules and regulations in
26 accordance with the state administrative procedure act. Such rules and
27 regulations shall be consistent with the program plan required by subdi-
28 vision nineteen of section one hundred of the economic development law.
29 No funds shall be disbursed under this program until such rules and
30 regulations have been reviewed and approved by the corporation. All
31 assistance and projects funded under this program shall be funded in
32 accordance with the rules and regulations in effect on the date the
33 completed application for such assistance shall be received by the
34 corporation.
35 (12) Minority [and], women and veteran business development and lend-
36 ing account. Notwithstanding any provision of law to the contrary, the
37 corporation shall establish within the treasury of the corporation a
38 minority [and], women and veteran business development and lending
39 account, and shall pay into such account any moneys which may be made
40 available to the corporation for this purpose from any source including,
41 but not limited to, moneys appropriated by the state and any repayment
42 of principal and interest on loans made by the corporation pursuant to
43 the minority- [and women-owned], women- and veteran-owned business
44 development and lending program. Funds in the minority [and], women and
45 veteran business development and lending account, including funds from
46 the repayment of principal and interest on loans made by the corpo-
47 ration, may be used for any form of assistance authorized hereunder. The
48 amounts deposited in the minority [and], women and veteran business
49 development and lending account may not be interchanged with any other
50 account, but may be commingled with any other account for investment
51 purposes. All loans disbursed by the corporation shall be repaid into
52 the account. The corporation shall enter into a written agreement with
53 the director of the budget for repayment, to the state comptroller to
54 the credit of the capital projects fund, of all moneys in the account
55 after a period of time to be determined by the corporation and the
56 director of the budget. The corporation shall transfer to the minority
S. 5968 67
1 [and], women and veteran business development and lending account: all
2 moneys appropriated or reappropriated by New York state for the minority
3 [and], women and veteran revolving loan trust fund that have not been
4 committed prior to the effective date of the appropriation for the
5 program in the current fiscal year, or become uncommitted subsequent to
6 the effective date of the program's appropriation for the current fiscal
7 year; and all repayments of principal and interest on loans made by the
8 corporation which are currently on deposit in, or payable to, the minor-
9 ity [and], women and veteran business development and lending account.
10 (13) Standardization. The corporation shall streamline the review and
11 approval process for projects and wherever possible standardize all
12 relevant attendant documentation and legal documents.
13 (14) Approval cycle. The corporation shall approve eligible loans or
14 grants on at least a four-month cycle and shall give priority consider-
15 ation to the comparative degree of economic distress within the areas in
16 which the project is located. Other factors to be considered by the
17 corporation shall include the impact of the project on the employment
18 and economic condition of the community and the financial feasibility of
19 the project.
20 (15) Repayment. Notwithstanding the provisions of section forty-a of
21 the state finance law and any other general or special law, no written
22 agreement under this program shall require repayment at any time or on
23 any terms inconsistent with the provisions of this act or the New York
24 state project finance agency act; except, however, that the corporation
25 may make grants to projects using funds appropriated for this purpose
26 and that the repayment provision may not apply to such grants.
27 (16) Reports. The chairman of the corporation shall submit to the
28 director of the budget, the speaker of the assembly and the temporary
29 president of the senate an evaluation of the effectiveness of the
30 program prepared by an entity independent of the corporation. The corpo-
31 ration shall select the program evaluator through a request for proposal
32 process. Such evaluation shall determine whether the assistance provided
33 has enhanced the economic condition of assisted companies or communi-
34 ties, and shall make recommendation for improvements which would make
35 the program more effective. Such evaluation shall be submitted by
36 September first, nineteen hundred ninety-five and September first every
37 two years thereafter.
38 § 44. Subparagraphs (viii) and (x) of paragraph (e) of subdivision 7
39 of section 16-d of section 1 of chapter 174 of the laws of 1968, consti-
40 tuting the New York state urban development corporation act, as added by
41 chapter 169 of the laws of 1994, are amended to read as follows:
42 (viii) export, marketing, procurement and subcontracting assistance to
43 small and medium-sized industrial firms, including minority- [and
44 women-owned], women- and veteran-owned businesses, and to flexible manu-
45 facturing networks, and programs to assist regional and multi-county
46 business marketing and procurement programs;
47 (x) business planning, management assistance and counseling, and
48 financial packaging assistance to small and medium-sized industrial
49 firms, including minority- [and women-owned], women- and veteran-owned
50 businesses, flexible manufacturing networks, and new enterprises and
51 small businesses, including the establishment of neighborhood-based
52 business service centers designed to deliver comprehensive technical
53 assistance to new and small businesses in specific communities and
54 neighborhoods;
55 § 45. Subparagraph (ii) of paragraph (h) of subdivision 7 of section
56 16-d of section 1 of chapter 174 of the laws of 1968, constituting the
S. 5968 68
1 New York state urban development corporation act, as added by chapter
2 169 of the laws of 1994, is amended to read as follows:
3 (ii) support for business development projects of women, members of
4 minority groups, veterans or dislocated workers;
5 § 46. Clause (B) of subparagraph (i) of paragraph (h) of subdivision 8
6 of section 16-d of section 1 of chapter 174 of the laws of 1968, consti-
7 tuting the New York state urban development corporation act, as added by
8 chapter 169 of the laws of 1994 and as further amended by section 15 of
9 part GG of chapter 63 of the laws of 2000, is amended to read as
10 follows:
11 (B) community based local development corporations, industrial devel-
12 opment agencies, or other not-for-profit entities which serve a munici-
13 pality in which an empire zone has been established and which, as one of
14 their primary purposes, provide services and assistance to business
15 enterprises located or to be located in such empire zone, including
16 minority- [and women-owned], women- and veteran-owned businesses;
17 § 47. Paragraph (b) of subdivision 14 of section 16-d of section 1 of
18 chapter 174 of the laws of 1968, constituting the New York state urban
19 development corporation act, as added by chapter 169 of the laws of
20 1994, is amended to read as follows:
21 (b) Submit to the director of the budget, the speaker of the assembly
22 and the temporary president of the senate an evaluation of the effec-
23 tiveness of the urban and community development program prepared by an
24 entity independent of the corporation. The corporation shall select the
25 program evaluator through a request for proposal process. Such evalu-
26 ation shall discuss the variety and types of programs supported by the
27 corporation under this program; and, as appropriate, the extent to which
28 the program has served to create and maintain jobs; the extent to which
29 the program has helped to increase the vitality of local communities;
30 the extent to which the program is coordinated with other related state
31 and local assistance programs; the extent to which the program serves
32 minorities [and], women and veterans; the extent to which the program
33 serves urban and rural areas; the extent to which the program serves
34 economically distressed and highly distressed areas; the extent to which
35 the program has helped to increase the capacity of local governments and
36 organizations to undertake economic development activities; and such
37 other components as the commissioner of economic development shall deem
38 appropriate; and shall make recommendations for improvements which would
39 make the program more effective. Such evaluation shall be submitted by
40 September first, nineteen hundred ninety-five and by September first
41 every two years thereafter.
42 § 48. Paragraph (h) of subdivision 1 of section 16-e of section 1 of
43 chapter 174 of the laws of 1968, constituting the New York state urban
44 development corporation act, as added by chapter 169 of the laws of
45 1994, is amended to read as follows:
46 (h) "Revolving loan fund account grants" shall include: (i) grants to
47 provide the local match for federally funded community-based loan funds;
48 (ii) grants to capitalize and recapitalize regional revolving loan trust
49 fund accounts pursuant to section sixteen-a of this act; and (iii)
50 grants to recapitalize minority [and], women and veteran revolving loan
51 trust fund accounts established pursuant to section sixteen-c of this
52 act.
53 § 49. Subparagraph (i) of paragraph (c) of subdivision 5 of section
54 16-e of section 1 of chapter 174 of the laws of 1968, constituting the
55 New York state urban development corporation act, as added by chapter
56 169 of the laws of 1994, is amended to read as follows:
S. 5968 69
1 (i) business development by women, minorities, veterans or unemployed
2 persons;
3 § 50. Subparagraphs (vi) and (ix) of paragraph (c) of subdivision 10
4 of section 16-e of section 1 of chapter 174 of the laws of 1968, consti-
5 tuting the New York state urban development corporation act, as added by
6 chapter 169 of the laws of 1994, are amended to read as follows:
7 (vi) management and procurement assistance to small business, includ-
8 ing minority- [and women-owned], women- and veteran-owned businesses;
9 (ix) assistance to expand the capacity of existing entities adminis-
10 tering minority [and], women and veteran revolving loan funds to deliver
11 services;
12 § 51. Subdivision 13 of section 16-e of section 1 of chapter 174 of
13 the laws of 1968, constituting the New York state urban development
14 corporation act, as added by chapter 169 of the laws of 1994, is amended
15 to read as follows:
16 (13) Regional loan fund account grants. Assistance from this program
17 may be provided for grants of up to five hundred thousand dollars to
18 capitalize, and up to two hundred thousand dollars to recapitalize,
19 regional revolving loan trust fund accounts established pursuant to
20 section sixteen-a of this act and up to two hundred thousand dollars to
21 recapitalize minority [and], women and veteran revolving loan trust fund
22 accounts established pursuant to section sixteen-c of this act; and up
23 to two hundred thousand dollars to provide the local match for appropri-
24 ately federally-financed community-based loan funds.
25 § 52. Paragraph (d) of subdivision 18 of section 16-e of section 1 of
26 chapter 174 of the laws of 1968, constituting the New York state urban
27 development corporation act, as added by chapter 169 of the laws of
28 1994, is amended to read as follows:
29 (d) The participation of minority- [and women-owned], women- and
30 veteran-owned businesses;
31 § 53. Subdivision 1 of section 16-f of section 1 of chapter 174 of
32 the laws of 1968, constituting the New York state urban development
33 corporation act, as added by chapter 169 of the laws of 1994, is amended
34 to read as follows:
35 (1) Program created. There is hereby created a state bonding guaran-
36 tee assistance program to enable small businesses, and minority-owned
37 [and], women-owned and veteran-owned business enterprises, certified as
38 a minority-owned [or], women-owned or veteran-owned business enterprise
39 pursuant to article fifteen-A of the executive law, to meet payment
40 and/or performance bonding requirements by providing additional finan-
41 cial backing needed to induce a surety company to issue a bond for
42 construction projects, including but not limited to, government spon-
43 sored, transportation related construction projects. For purposes of
44 this section, the term small business shall have the same meaning as
45 defined in section one hundred thirty-one of the economic development
46 law. Such program shall give preference to minority-owned [and], women-
47 owned and veteran-owned business enterprises and shall:
48 (a) Make available funds to surety companies providing bonds to small
49 businesses and [minority- owned or] minority-owned, women-owned or
50 veteran-owned business enterprises in an amount equal to a percentage
51 not to exceed fifty percent of the face value of bonds issued by the
52 surety.
53 (b) Provide technical assistance in completing bonding applications
54 for small businesses and minority-owned [or], women-owned or veteran-
55 owned business enterprises seeking to become eligible for bonding in
56 preparation for bidding on construction projects, including transporta-
S. 5968 70
1 tion related projects. The corporation shall provide and may refer such
2 businesses to the department of economic development for technical
3 assistance as such businesses may need, including but not limited to:
4 (i) a review of the applicants' market and business competitive strat-
5 egy;
6 (ii) consultation and review of the development and planned implemen-
7 tation of a working capital budget;
8 (iii) assistance with applications for the receipt of funding from
9 other financial sources and providing referrals to other appropriate
10 public and private sources of financing; and
11 (iv) assistance from the regional offices of the department of econom-
12 ic development, pursuant to article eleven of the economic development
13 law, and the entrepreneurial assistance program, pursuant to article
14 nine of such law, and any other such program receiving state funds from
15 this act or the department of economic development or any other state
16 agency that is intended to provide technical assistance to small busi-
17 nesses and minority-owned [and], women-owned and veteran-owned small
18 business enterprises.
19 § 54. Paragraph (g) of subdivision 1 of section 16-i of section 1 of
20 chapter 174 of the laws of 1968, constituting the New York state urban
21 development corporation act, as amended by chapter 471 of the laws of
22 2001, is amended to read as follows:
23 (g) Assistance to local or regional organizations to facilitate
24 financing for small- and medium-sized business, including minority-
25 [and], women-owned and veteran-owned business enterprises through flexi-
26 ble financing programs, including, but not limited to, loan loss reserve
27 and revolving loan programs, working capital loans, working capital loan
28 guarantees, or other flexible financing programs that leverage tradi-
29 tional financing;
30 § 55. Subparagraph (i) of paragraph (c) of subdivision 2 of section
31 16-k of section 1 of chapter 174 of the laws of 1968, constituting the
32 New York state urban development corporation act, as amended by chapter
33 103 of the laws of 2011, is amended to read as follows:
34 (i) provide a plan to the corporation or its agent for the marketing
35 of the capital access program to small businesses, including those in
36 highly distressed areas and to minority- [and], women-owned and veter-
37 an-owned businesses, with appropriate lending objectives identified by
38 the financial institution for such areas and businesses;
39 § 56. Subparagraph (i) of paragraph (e) of subdivision 2 of section
40 16-l of section 1 of chapter 174 of the laws of 1968, constituting the
41 New York state urban development corporation act, as added by chapter
42 471 of the laws of 2001, is amended to read as follows:
43 (i) innovative activities and programs designed to encourage value-ad-
44 ded small business development and growth in rural areas, including
45 cottage and crafts industries; group marketing of local products;
46 women-owned industries; veteran-owned industries; natural resources
47 development; and tourism. Such activities and programs shall also
48 include projects pertaining to agriculture and agribusiness development
49 to stimulate the development and implementation of new and alternative
50 production, processing, storage, distribution and marketing technologies
51 and improvements for New York food, agricultural and forest products.
52 Projects promoting strengthened farm management practices shall also be
53 eligible for assistance;
54 § 57. Paragraph (g) of subdivision 1 of section 16-m of section 1 of
55 chapter 174 of the laws of 1968, constituting the New York state urban
S. 5968 71
1 development corporation act, as added by section 1 of part N of chapter
2 84 of the laws of 2002, is amended to read as follows:
3 (g) Assistance to local or regional organizations to facilitate
4 financing for small- and medium-sized business, including minority-
5 [and], women-owned and veteran-owned business enterprises through flexi-
6 ble financing programs, including, but not limited to, loan loss reserve
7 and revolving loan programs, working capital loans, working capital loan
8 guarantees, or other flexible financing programs that leverage tradi-
9 tional financing;
10 § 58. Subparagraph (i) of paragraph (e) of subdivision 7 of section
11 16-o of section 1 of chapter 174 of the laws of 1968, constituting the
12 New York state urban development corporation act, as added by chapter
13 186 of the laws of 2007, is amended to read as follows:
14 (i) provide jobs for low income people or are owned by low income
15 people, women, veterans or minority entrepreneurs; or
16 § 59. Paragraph (b) of subdivision 1 of section 16-q of section 1 of
17 chapter 174 of the laws of 1968, constituting the New York state urban
18 development corporation act, as added by section 2 of part QQ of chapter
19 57 of the laws of 2008, is amended to read as follows:
20 (b) Support for the attraction or expansion of a business, including,
21 but not limited to, those primarily engaged in activities identified as
22 a strategic industry, and minority-owned [and], women-owned and veter-
23 an-owned business enterprises as defined by subdivisions (c) and (g) of
24 section nine hundred fifty-seven of the general municipal law.
25 § 60. Subdivisions 3 and 11 of section 16-t of section 1 of chapter
26 174 of the laws of 1968, constituting the New York state urban develop-
27 ment corporation act, as amended by section 1 of part II of chapter 59
28 of the laws of 2013, are amended to read as follows:
29 3. Program loans to small businesses shall be targeted and marketed to
30 [minority and women-owned] minority-, women- and veteran-owned enter-
31 prises and other small businesses that are having difficulty accessing
32 traditional credit markets. Program loans to small businesses shall be
33 used for the creation and retention of jobs, as defined by the corpo-
34 ration, including: (a) working capital; (b) the acquisition and/or
35 improvement of real property; (c) the acquisition of machinery and
36 equipment, property or improvement; or (d) the refinancing of debt obli-
37 gations. There shall be two categories of loans to small businesses: a
38 micro loan that shall have a principal amount that is less than twenty-
39 five thousand dollars and a regular loan that shall have a principal
40 amount not less than twenty-five thousand dollars. Prior to receiving
41 program funds, the lending organization must certify to the corporation
42 that such loan complies with this section and rules and regulations
43 promulgated for the program and that the lending organization has
44 performed its obligations pursuant to and is in compliance with this
45 section, the program rules and regulations and all agreements entered
46 into between the corporation and the lending organization. The program
47 funds amount used by the lending organization to fund a program appli-
48 cant loan shall not be more than fifty percent of the principal amount
49 of such loan. The program funds amount used by the lending organization
50 to fund a program applicant loan shall not be greater than one hundred
51 and twenty-five thousand dollars. Minority- [and women-owned], women-
52 and veteran-owned business enterprises and other small businesses who
53 access such program loans under this subdivision shall not be precluded
54 from accessing such short-term financing loans provided under subdivi-
55 sion eleven of this section.
S. 5968 72
1 11. Notwithstanding anything to the contrary in this section, the
2 corporation may provide at least five hundred thousand dollars in
3 program funds pursuant to this section to lending organizations for the
4 purpose of making short-term financing available to minority- [and
5 women-owned], women- and veteran-owned business enterprises and other
6 small businesses performing contracts to provide construction or profes-
7 sional services for state procurement purposes. Such loans shall be used
8 to underwrite the cost of labor, materials, and equipment directly asso-
9 ciated with (1) the contract being financed or (2) a contract that has
10 been satisfied for which the business is awaiting payment from the
11 state. The program funds amount used by the lending organization to fund
12 a program applicant loan shall not be more than eighty percent of the
13 principal amount of such loan. The program funds amount used by the
14 lending organization to fund a program applicant loan shall not be
15 greater than one hundred twenty-five thousand dollars. Minority- [and
16 women-owned], women- and veteran-owned business enterprises and other
17 small businesses who access such short-term financing loans under this
18 subdivision shall not be precluded from accessing such program loans
19 provided under subdivision three of this section.
20 § 61. Subparagraph (xvi) of paragraph (b) of subdivision 2 of section
21 16-v of section 1 of chapter 174 of the laws of 1968, constituting the
22 New York state urban development corporation act, as added by section 1
23 of part C of chapter 59 of the laws of 2013, is amended to read as
24 follows:
25 (xvi) a plan to recruit minority- [and women-owned], women- and veter-
26 an-owned businesses for location and participation with the incubator
27 program.
28 § 62. Paragraph 1 of subdivision (c) of section 30 of section 1 of
29 chapter 174 of the laws of 1968, constituting the New York state urban
30 development corporation act, as amended by chapter 732 of the laws of
31 1990, is amended to read as follows:
32 (1) In addition to any other requirements imposed by the act or other-
33 wise regarding evaluations of programs administered by the corporation,
34 each evaluation shall include an analysis of the job creation effect of
35 such program, the number of small businesses that received assistance,
36 the number of [minority and women-owned] minority-, women- and veteran-
37 owned firms that received assistance, the number of projects undertaken
38 in distressed and highly distressed communities, and, if applicable, the
39 repayment experience of borrowers of funds from the corporation.
40 § 63. Paragraph 2 of subdivision (e) of section 30-a of section 1 of
41 chapter 174 of the laws of 1968, constituting the New York state urban
42 development corporation act, as added by section 2 of part M1 of chapter
43 62 of the laws of 2003, is amended to read as follows:
44 (2) require projects to be financed out of the empire state economic
45 development fund be approved generally in amounts which are proportional
46 to amounts appropriated for the urban and community development program,
47 and the [minority and women-owned] minority-, women and veteran-owned
48 business development and lending program;
49 § 64. Section 38 of section 1 of chapter 174 of the laws of 1968,
50 constituting the New York state urban development corporation act, as
51 amended by chapter 169 of the laws of 1994, is amended to read as
52 follows:
53 § 38. Small business and minority-owned [and], women-owned and veter-
54 an-owned business enterprises transportation capital assistance and
55 guaranteed loan program. 1. To provide financial assistance to small
56 business and minority-owned [and], women-owned and veteran-owned busi-
S. 5968 73
1 ness enterprises engaged in government sponsored, transportation related
2 construction projects, the corporation shall establish a small business
3 and minority-owned [and], women-owned and veteran-owned business enter-
4 prise transportation capital assistance revolving loan fund which shall
5 provide loans or loan guarantees to small business and minority-owned
6 [and], women-owned and veteran-owned business enterprises. For purposes
7 of this section: (a) the term small business shall have the same meaning
8 as defined in section one hundred thirty-one of the economic development
9 law and (b) the term project shall mean a project of state agency or
10 authority that sponsors transportation related construction projects and
11 participates in this program and any definition of project contained
12 elsewhere in this act shall not apply.
13 2. Such loans, or loan guarantees for loans made by federally and
14 state chartered credit institutions, financial institutions, and feder-
15 ally insured banking organizations to small business and minority-owned
16 [and], women-owned and veteran-owned business enterprises, shall be used
17 to (a) enable such businesses, through the acquisition, leasing or
18 improvement of real property, machinery or equipment, or through the
19 provision of working capital to secure service, commodity or
20 construction contracts; (b) restore working capital to such businesses
21 which have successfully completed work under a contract but whose
22 liquidity has been adversely affected by problems resulting from delayed
23 payments; and (c) ensure the completion of the work associated with a
24 governmental service, commodity or construction contract in order to
25 prevent default on such contract.
26 3. (a) To be eligible for such loans or loan guarantees (i) a minori-
27 ty-owned [or], women-owned or veteran-owned business enterprise must be
28 certified as a minority-owned [or], women-owned or veteran-owned busi-
29 ness enterprise pursuant to article 15-A of the executive law; and (ii)
30 a small business or a minority-owned [or], women-owned or veteran-owned
31 business enterprise shall have a contract or sub-contract to provide
32 goods or services related to a government sponsored, transportation
33 related construction project.
34 (b) Only such business enterprises referred to the corporation by a
35 written application of a state agency or authority that sponsors trans-
36 portation related construction projects shall be eligible for program
37 assistance. Such assistance shall be provided to such an enterprise only
38 in connection with its performance as a contractor or sub-contractor on
39 a specific transportation related project of the referring agency or
40 authority. In order for such an agency or authority to refer such enter-
41 prises to the corporation, such agency or authority shall enter into a
42 master agreement with the corporation covering procedures and require-
43 ments for providing program assistance. The corporation shall determine
44 whether or not to approve such an agency's or authority's written appli-
45 cation for program assistance to such a business within twenty business
46 days of the corporation's receipt of such application. If it approves
47 the application, the corporation will provide assistance pursuant to the
48 applicable master agreement.
49 4. The corporation shall give preference to minority-owned [and],
50 women-owned and veteran-owned business enterprises in making such loans
51 and loan guarantees and shall establish such other criteria as it may
52 deem necessary for this program and for any required amount that shall
53 be held in reserve for any guarantees made under this program.
54 5. Notwithstanding any inconsistent provision of law, general, special
55 or local, including pursuant to capital projects budget appropriations
56 or reappropriations, where applicable, the corporation is hereby author-
S. 5968 74
1 ized to enter into such agreements as may be necessary for the operation
2 and administration of a small business and minority-owned [and], women-
3 owned and veteran-owned business enterprises transportation capital
4 assistance and guaranteed loan program.
5 6. The corporation is authorized to establish a revolving loan fund
6 account into which funds may be received and from which funds may be
7 expended for the aforementioned purposes.
8 7. The provisions of section ten and subdivision two of section
9 sixteen of this act shall not apply to assistance provided under this
10 program.
11 § 65. Paragraph (a) of subdivision 1 of section 9-a of section 1 of
12 chapter 359 of the laws of 1968 constituting the facilities development
13 corporation act, as added by chapter 58 of the laws of 1987, is amended
14 to read as follows:
15 (a) The contractor will not discriminate against employees or appli-
16 cants for employment because of race, creed, color, national origin,
17 sex, age, disability, or marital status, and will undertake or continue
18 existing programs of affirmative action to ensure that minority group
19 persons [and], women and veterans are afforded equal opportunity without
20 discrimination. Such programs shall include, but not be limited to,
21 recruitment, employment, job assignment, promotion, upgrading, demotion,
22 transfer, layoff, termination, rates of pay or other forms of compen-
23 sation, and selections for training or retraining, including apprentice-
24 ship and on-the-job training.
25 § 66. Section 9-b of section 1 of chapter 359 of the laws of 1968
26 constituting the facilities development corporation act, as added by
27 chapter 58 of the laws of 1987, is amended to read as follows:
28 § 9-b. Minority [and women-owned], women and veteran-owned business
29 enterprise program. 1. (a) Minority [and women-owned], women and veter-
30 an-owned business enterprises shall be given the opportunity for mean-
31 ingful participation in all contracts executed by the corporation pursu-
32 ant to the provisions of this act other than contracts the cost of which
33 is borne solely by a municipality or municipalities. The corporation
34 shall establish measures and procedures to secure meaningful partic-
35 ipation and identify those contracts and items of work for which minori-
36 ty [and women-owned], women and veteran-owned business enterprises may
37 best bid to actively and affirmatively promote and assist their partic-
38 ipation in the projects, so as to facilitate the award of a fair share
39 of contracts to such enterprises; provided, however, that nothing in
40 this act shall be construed to limit the ability of the corporation to
41 assure that qualified minority [and women-owned], women and veteran-
42 owned business enterprises may participate in the program. For purposes
43 hereof, minority business enterprise shall mean any business enterprise
44 which is at least fifty-one per centum owned by, or in the case of a
45 publicly owned business, at least fifty-one per centum of the stock of
46 which is owned by citizens or permanent resident aliens who are Black,
47 Hispanic, Asian or American Indian, Pacific Islander or Alaskan natives
48 and such ownership interest is real, substantial and continuing and have
49 the authority to independently control the day to day business decisions
50 of the entity for at least one year; and women-owned business enterprise
51 shall mean any business enterprise which is at least fifty-one per
52 centum owned by, or in the case of a publicly owned business, at least
53 fifty-one per centum of the stock of which is owned by citizens or
54 permanent resident aliens who are women, and such ownership interest is
55 real, substantial and continuing and have the authority to independently
56 control the day to day business decisions of the entity for at least one
S. 5968 75
1 year; and veteran-owned business enterprise shall mean any business
2 enterprise which is at least fifty-one per centum owned by, or in the
3 case of a publicly owned business, at least fifty-one per centum of the
4 stock of which is owned by citizens or permanent resident aliens who are
5 veterans, and such ownership interest is real, substantial and continu-
6 ing and have the authority to independently control the day to day busi-
7 ness decisions of the entity for at least one year.
8 The provisions of this paragraph shall not be construed to limit the
9 ability of any minority [or women-owned], women or veteran-owned busi-
10 ness enterprise to bid on any contract.
11 (b) In the implementation of this section, the corporation shall
12 consider compliance by any contractor with the requirements of any
13 federal, state, or local law concerning minority [and women-owned],
14 women or veteran-owned business enterprises, which may effectuate the
15 requirements of this section. If the corporation determines that by
16 virtue of the imposition of the requirements of any such law, in respect
17 to contracts, the provisions thereof duplicate or conflict with this
18 section, the corporation may waive the applicability of this section to
19 the extent of such duplication or conflict.
20 (c) Nothing in this section shall be deemed to require that overall
21 state and federal requirements for participation of minority [and
22 women-owned], women and veteran-owned business enterprises in programs
23 authorized under this act be applied without regard to local circum-
24 stances to all projects or in all communities.
25 2. In order to implement the requirements and objectives of this
26 section, the corporation shall establish procedures to monitor the
27 contractors' compliance with provisions hereof, provide assistance in
28 obtaining competing qualified minority [and women-owned], women and
29 veteran-owned business enterprises to perform contracts proposed to be
30 awarded, and take other appropriate measures to improve the access of
31 minority [and women-owned], women and veteran-owned business enterprises
32 to these contracts.
33 § 67. Paragraph a of subdivision 1 of section 16-a of section 1 of
34 chapter 392 of the laws of 1973, constituting the New York state medical
35 care facilities finance agency act, as added by chapter 58 of the laws
36 of 1987, is amended to read as follows:
37 a. The contractor will not discriminate against employees or appli-
38 cants for employment because of race, creed, color, national origin,
39 sex, age, disability, or marital status, and will undertake or continue
40 existing programs of affirmative action to ensure that minority group
41 persons [and], women and veterans are afforded equal opportunity without
42 discrimination. Such programs shall include, but not be limited to,
43 recruitment, employment, job assignment, promotion, upgrading, demotion,
44 transfer, layoff, termination, rates of pay or other forms of compen-
45 sation, and selections for training or retraining, including apprentice-
46 ship and on-the-job training.
47 § 68. Section 16-b of section 1 of chapter 392 of the laws of 1973,
48 constituting the New York state medical care facilities finance agency
49 act, as added by chapter 58 of the laws of 1987, is amended to read as
50 follows:
51 § 16-b. Minority [and women-owned], women and veteran-owned business
52 enterprise program. 1. a. In the performance of projects pursuant to
53 this act minority [and women-owned], women and veteran-owned business
54 enterprises shall be given the opportunity for meaningful participation.
55 The agency shall establish measures and procedures to secure meaningful
56 participation and identify those contracts and items of work for which
S. 5968 76
1 minority [and women-owned], women and veteran-owned business enterprises
2 may best bid to actively and affirmatively promote and assist their
3 participation in the projects, so as to facilitate the award of a fair
4 share of contracts to such enterprises; provided, however, that nothing
5 in this act shall be construed to limit the ability of the agency to
6 assure that qualified minority [and women-owned], women and veteran-
7 owned business enterprises may participate in the program. For purposes
8 hereof, minority business enterprise shall mean any business enterprise
9 which is at least fifty-one per centum owned by, or in the case of a
10 publicly owned business, at least fifty-one per centum of the stock of
11 which is owned by citizens or permanent resident aliens who are Black,
12 Hispanic, Asian or American Indian, Pacific Islander or Alaskan natives
13 and such ownership interest is real, substantial and continuing and have
14 the authority to independently control the day to day business decisions
15 of the entity for at least one year; and women-owned business enterprise
16 shall mean any business enterprise which is at least fifty-one per
17 centum owned by, or in the case of a publicly owned business, at least
18 fifty-one per centum of the stock of which is owned by citizens or
19 permanent resident aliens who are women, and such ownership interest is
20 real, substantial and continuing and have the authority to independently
21 control the day to day business decisions of the entity for at least one
22 year; and veteran-owned business enterprise shall mean any business
23 enterprise which is at least fifty-one per centum owned by, or in the
24 case of a publicly owned business, at least fifty-one per centum of the
25 stock of which is owned by citizens or permanent resident aliens who are
26 veterans and such ownership interest is real, substantial and continuing
27 and have the authority to independently control the day to day business
28 decisions of the entity for at least one year.
29 The provisions of this paragraph shall not be construed to limit the
30 ability of any minority [or women-owned], women or veteran-owned busi-
31 ness enterprise to bid on any contract.
32 b. In the implementation of this section, the agency shall consider
33 compliance by any contractor with the requirements of any federal,
34 state, or local law concerning minority [and women-owned], women and
35 veteran-owned business enterprises, which may effectuate the require-
36 ments of this section. If the department or the office determines that
37 by virtue of the imposition of the requirements of any such law, in
38 respect to contracts, the provisions thereof duplicate or conflict with
39 this act, the agency may waive the applicability of this section to the
40 extent of such duplication or conflict.
41 c. Nothing in this section shall be deemed to require that overall
42 state and federal requirements for participation of minority [and
43 women-owned], women and veteran-owned business enterprises in programs
44 authorized under this act be applied without regard to local circum-
45 stances to all projects or in all communities.
46 2. In order to implement the requirements and objectives of this
47 section, the agency shall establish procedures to monitor the contrac-
48 tors' compliance with provisions hereof, provide assistance in obtaining
49 competing qualified minority [and women-owned], women and veteran-owned
50 business enterprises to perform contracts proposed to be awarded, and
51 take other appropriate measures to improve the access of minority [and
52 women-owned], women and veteran-owned business enterprises to these
53 contracts.
54 § 69. This act shall take effect on the sixtieth day after it shall
55 have become a law; provided however,
S. 5968 77
1 a. the amendments to article 15-A of the executive law made by
2 sections one-a, two, three, three-a, four, five, six, seven, eight,
3 nine, ten, eleven, twelve and thirteen of this act shall not affect the
4 expiration of such article and shall expire therewith;
5 b. the amendments to the second undesignated paragraph of subdivision
6 1 of section 12 of section 1 of chapter 174 of the laws of 1968, consti-
7 tuting the New York state urban development corporation act, made by
8 section forty-one of this act shall not affect the expiration and repeal
9 of such paragraph and shall be deemed to expire and be repealed there-
10 with;
11 c. the amendments to paragraph (g) of subdivision 1 of section 16-i of
12 section 1 of chapter 174 of the laws of 1968, constituting the New York
13 state urban development corporation act, made by section fifty-four of
14 this act shall not affect the expiration of such paragraph and shall be
15 deemed to expire therewith.
