Requires contracting agencies to contact minority and women-owned business enterprises when such enterprise is listed on a utilization plan and when a contract is awarded; mandates that the contractor use such enterprise identified on the utilization plan, unless such enterprise cannot perform or is no longer state certified.
NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A3518A
SPONSOR: Bichotte Hermelyn TITLE OF BILL:
An act to amend the executive law, in relation to requiring contracting
agencies to contact minority and women-owned business enterprises when
such enterprise is listed on a utilization plan and when a contract is
awarded
PURPOSE:
This bill would require contractors to submit a utilization plan at the
time it submits a bid and specifies timeframes when work assignment and
payments to MWBES must be received and made, respectively.
SUMMARY OF SPECIFIC PROVISIONS:
Section one amends subdivision 5 of section 313 of the Executive Law to
require contracting agencies to review and post utilization plans and
related waivers for contracts with minority and women-owned business
enterprise goals.
Section one further requires contracting agencies, within five business
days after an award letter is sent to the contractor, to submit an award
notification letter to each minority and women-owned business enterprise
listed on the utilization plan.
* The bill provides that a minority or women-owned business enter-
prise listed on the original utilization plan may not be amended or
changed by the contractor after submission to the contracting agency
without good cause shown and written approval of the contracting
agency.
* The bill requires the contracting agency to notify the contractor
in writing within ten days of any deficiencies in the utilization
plan and requires such deficiencies to be remedied within seven
days.
* The bill requires the contractor, after award of a contract, to
execute a subcontractor's agreement and provide a work assignment to
each subcontractor listed in the bid, proposal, utilization plan, or
other subcontractor disclosure submitted to the contracting agency
within forty-five days of the award.
* The bill requires the contractor, after receiving payment on the
contract, to make payments to each subcontractor, including any
minority-owned or women-owned business enterprise subcontractor, for
work performed under the contract within twenty days of receiving
payment from the contracting agency. The bill provides that a
contractor shall not be disqualified where the contractor has made a
good faith effort to make timely payment.
* The bill allows a subcontractor to notify the contracting agency
of a violation of the prompt payment requirement and requires the
contracting agency to notify the contractor to correct such defi-
ciency within ten days.
* The bill also clarifies when certified minority-owned, women-
owned, and dually certified minority and women-owned contractors may
self-certify and perform work under a contract to meet applicable
MWBE goals.
Section two provides that the act shall take effect immediately,
provided that the amendments to subdivision 5 of section 313 of the
Executive Law shall not affect the repeal of such section and shall be
deemed repealed therewith.
JUSTIFICATION:
New York's minority and women-owned business enterprise program is
intended to ensure that certified MWBEs have meaningful access to state
contracting opportunities. However, concerns remain that MWBEs may be
listed on utilization plans during the bidding or approval process but
later removed, replaced, or not given a meaningful opportunity to
perform the work contemplated under the contract.
This bill addresses that concern by requiring contracting agencies to
notify MWBEs listed on utilization plans when a contract is awarded and
by limiting post-submission changes to the utilization plan unless there
is good cause and written approval from the contracting agency. This
approach helps prevent improper substitution while preserving flexibili-
ty for legitimate circumstances where a listed MWBE is unable to
perform, becomes unavailable, or another good-cause basis exists.
The bill also strengthens subcontractor accountability by requiring
contractors to execute subcontractor agreements and provide work assign-
ments within a clear timeframe after contract award. In addition, the
bill establishes a prompt payment requirement for all subcontractors,
including MWBE subcontractors, once the contractor has been paid by the
contracting agency. This ensures that the protections in the bill are
not limited only to MWBEs, while still advancing the bill's central goal
of protecting MWBE participation in public contracting.
By improving notice, transparency, utilization-plan accountability, and
prompt payment protections, this legislation will help ensure that
subcontractors are treated fairly and that MWBEs listed on state
contracts receive a genuine opportunity to perform the work for which
they were identified.
PRIOR LEGISLATIVE HISTORY:
2023-24: A01266; Referred to governmental operations
2021-22: A07778; Referred to governmental operations
FISCAL IMPLICATIONS:
None.
EFFECTIVE DATE:
This act shall take effect immediately.
STATE OF NEW YORK
________________________________________________________________________
3518--A
2025-2026 Regular Sessions
IN ASSEMBLY
January 28, 2025
___________
Introduced by M. of A. BICHOTTE HERMELYN, SIMON, ZINERMAN, SEAWRIGHT,
JACKSON, COLTON, WALKER, GONZALEZ-ROJAS, HYNDMAN, SANTABARBARA -- read
once and referred to the Committee on Governmental Operations --
recommitted to the Committee on Governmental Operations in accordance
with Assembly Rule 3, sec. 2 -- committee discharged, bill amended,
ordered reprinted as amended and recommitted to said committee
AN ACT to amend the executive law, in relation to requiring contracting
agencies to contact minority and women-owned business enterprises when
such enterprise is listed on a utilization plan and when a contract is
awarded
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Paragraphs (a) and (b) of subdivision 5 of section 313 of
2 the executive law, as amended by chapter 40 of the laws of 2023, are
3 amended and six new paragraphs (b-1), (b-2), (b-3), (b-4), (b-5) and (e)
4 are added to read as follows:
5 (a) Contracting agencies shall administer the rules and regulations
6 promulgated by the director in a good faith effort to achieve the maxi-
7 mum feasible participation by [minority] both minority-owned and [women
8 owned] women-owned business enterprises adopted pursuant to this article
9 and the regulations of the director prior to the contractor's inception
10 of the scope of work outlined in an awarded contract. Such rules and
11 regulations: shall require a contractor to [submit a] utilize the minor-
12 ity and women-owned business enterprises listed on the utilization plan
13 [after] submitted when bids are opened, [when bids are required, but
14 prior] provided that the minority-owned or women-owned business enter-
15 prise is still certified with New York state. Prior to the award of a
16 state contract[; shall require] with minority and women-owned business
17 enterprise goals the contracting agency [to] shall review the utiliza-
18 tion plan submitted by the contractor and [to] shall post the utiliza-
19 tion plan and any waivers of compliance issued pursuant to subdivision
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD07242-02-6
A. 3518--A 2
1 six of this section on the website of the contracting agency[; shall
2 require the]. Within five business days after an award letter is sent to
3 the contractor, the contracting agency shall submit an award notifica-
4 tion letter to the minority and women-owned business enterprise
5 listed on the utilization plan. The minority and women-owned business
6 enterprise listed on the original utilization plan at the time of
7 submission shall not be amended or changed by the contractor after
8 submission to the contracting agency for approval without good cause
9 shown and the written approval of the contracting agency. The contract-
10 ing agency shall be required to notify the contractor in writing within
11 [a period of time specified by the director] ten days as to any defi-
12 ciencies contained in the contractor's utilization plan[;] and shall
13 require remedy thereof within [a period of time specified by the direc-
14 tor; shall require the contractor to submit compliance reports relating
15 to the operation and implementation of any utilization plan;] seven days
16 of such notification. The contracting agency shall not allow any auto-
17 matic waivers but shall allow a contractor to apply for a partial or
18 total waiver of the minority and women-owned business enterprise partic-
19 ipation requirements pursuant to subdivisions six and seven of this
20 section; shall allow a contractor to file a complaint with the director
21 pursuant to subdivision eight of this section in the event a contracting
22 agency has failed or refused to issue a waiver of the minority and
23 women-owned business enterprise participation requirements or has denied
24 such request for a waiver; and shall allow a contracting agency to file
25 a complaint with the director pursuant to subdivision nine of this
26 section in the event a contractor is failing or has failed to comply
27 with the minority and women-owned business enterprise participation
28 requirements set forth in the state contract where no waiver has been
29 granted.
30 (b) The rules and regulations promulgated pursuant to this subdivision
31 regarding a utilization plan shall provide that where enterprises have
32 been identified within a utilization plan, a contractor shall attempt,
33 in good faith, to utilize such enterprise [at least to the extent indi-
34 cated], unless such enterprise cannot perform under the contract or such
35 enterprise is no longer certified by the state. A contracting agency may
36 require a contractor to indicate, within a utilization plan, what meas-
37 ures and procedures [he or she] the contractor intends to take to comply
38 with the provisions of this article[, but may not require, as a condi-
39 tion of award of, or compliance with, a contract that a contractor
40 utilize a particular enterprise in performance of the contract].
41 (b-1) After the contracting agency awards a contract, the contractor
42 shall execute a subcontractor's agreement and provide a work assignment
43 to each subcontractor listed in the bid, proposal, utilization plan, or
44 other subcontractor disclosure submitted to the contracting agency with-
45 in forty-five days of such award.
46 (b-2) After receiving payment on the contract, the contractor shall
47 make payments to each subcontractor, including any minority-owned or
48 women-owned business enterprise subcontractor, for work performed under
49 the contract within twenty days of receipt of each payment received from
50 the contracting agency, provided that such payment shall not be deemed
51 late where the contractor has made a good faith effort to make timely
52 payment and the subcontractor is unavailable, refuses to accept payment,
53 has failed to provide necessary payment information, or where there is a
54 good faith dispute regarding the work performed or amount owed. A
55 subcontractor may notify the contracting agency of any violation of this
56 paragraph by the contractor, and the contracting agency shall then noti-
A. 3518--A 3
1 fy the contractor to correct such deficiency within ten days of notifi-
2 cation. The failure of the contractor to make such payments to a subcon-
3 tractor shall result in disqualification, and the contracting agency
4 shall re-award such contract to the next lowest bidder or eligible
5 bidder, unless the contractor has made a good faith effort to make time-
6 ly payment to each subcontractor.
7 (b-3) A contractor which is a certified minority-owned business may
8 self-certify and perform under the contract to meet the contract's
9 minority-owned business enterprise goals.
10 (b-4) A contractor which is a certified women-owned business may self-
11 certify and perform under the contract to meet the contract's women-
12 owned business enterprise goal only, and it must utilize a certified
13 minority-owned business enterprise to perform under the contract to meet
14 the contract's minority-owned business goals.
15 (b-5) A contractor which is a dually certified minority-owned and
16 women-owned business enterprise may self-certify and perform under the
17 contract to meet the contract's minority-owned and women-owned business
18 enterprise goals.
19 (e) This subdivision shall apply to all public contracts where a
20 public agency issues a request for proposals, notwithstanding whether
21 the contract could otherwise be awarded through the agency's discretion-
22 ary contract award process or the non-existence of a discretionary
23 contract award process within the public agency.
24 § 2. This act shall take effect immediately; provided, however, that
25 the amendments to subdivision 5 of section 313 of the executive law made
26 by section one of this act shall not affect the repeal of such section
27 and shall be deemed repealed therewith.
