|SAME AS||SAME AS S06418-A|
|COSPNSR||Jacobson, Taylor, Blake, Vanel, Simotas, Wright, Dickens, Rodriguez, Seawright|
|Amd §§311 & 324, add §1206, NYC Chart; amd §2590-h, Ed L; amd §1743, Pub Auth L|
|Relates to opportunities for small businesses and businesses owned by women and minorities.|
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NEW YORK STATE ASSEMBLY
MEMORANDUM IN SUPPORT OF LEGISLATION
submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A8407 SPONSOR: Bichotte
TITLE OF BILL: An act to amend the New York city charter, the educa- tion law and the public authorities law, in relation to opportunities for small businesses and businesses owned by women and minorities   PURPOSE OR GENERAL IDEA OF BILL: This bill would authorize the changes to be made to the New York City Minority and Women Owned Business Enterprise program and to establish a Minority and Women Owned Business Enterprise program mentoring program in the New York City Department of Design and Construction.   SUMMARY OF PROVISIONS: Section 1 contains legislative findings that disparity studies conducted by New York State and New York City demonstrate the continuing effects of discrimination on businesses owned by minorities and women in the market where the City conducts it procurements, and that it continues to be appropriate for the City of New York to establish and implement reasonable procedures to secure the meaningful participation of minority and women-owned businesses ("MWBEs") in its procurement process, includ- ing but not limited to measures already authorized by state and local legislation and rules and the measures authorized in this act. Section 2 amends section 311 of the New York City Charter, which currently allows the Procurement Policy Board to adopt rules for City agencies to make procurements of goods and services for up to $150,000 from MWBEs without a formal competitive process. The amendments would add construction procurements and raise the limit to five hundred thou- sand dollars. Section 3 amends section 324 of the New York City Charter, which currently authorizes agencies to use prequalified lists of vendors in accordance with criteria established by the Procurement Policy Board. The amendment would add a firm's status as an MWBE or EBE to the crite- ria that may be used in creating such lists. Section 4 would add a new section 1206 to Chapter 55 of the New York City Charter, which contains the authority of the Department of Design and Construction. The amendment would authorize DDC to establish a mentoring program for MWBEs modelled on the mentoring program that the MTA has established pursuant to section 1265-b of the Public Authorities Law. Section 5 would amend Education Law § 2590-h(36)(a), which currently provides for the Chancellor to develop procurement rules that include measures to enhance the ability of MWBEs to compete for contracts and ensure their meaningful participation in the procurement process. The amendments would specify that the City School District has the authority to use the same measures as are available to the City pursuant to the General Municipal Law, the City Charter and the Administrative Code, and that the measures would be available for MWBEs certified by the State or the City, as well as for EBEs. Section 6 would amend Public Authorities Law § 1743(2)(b) to provide that in addition to the measures the School Construction Authority has already implemented, it may also use the same measures as are available to the City pursuant to the General Municipal Law, the City Charter and the Administrative Code. Section 7 is the effective date.   JUSTIFICATION: The most recent disparity studies conducted by both the State of New York and the City of New York demonstrate that discrimination affecting MWBEs that seek to do business in the market where the City does its procurements persists. The City has undertaken many efforts to address this, including the setting of participation goals for MWBEs pursuant to our Local Law 1 program, the use of discretionary spending authority the State Legislature enacted in Chapter 504 of 2017, and the use of the best value technique authorized by the General Municipal Law and the City Charter. The Administration has also launched a Contract Financing Loan Fund and Bond Collateral Assistance Fund to improve access to capi- tal for MWBEs in the private market place. MWBE-certified worker cooper- atives will be among the firms that benefit from this policy change, which may also incentivize more worker co-ops to apply for certif- ication. The proposed amendments would significantly enhance the City's ability to make faster progress toward addressing the impact of discrim- ination.   PRIOR LEGISLATIVE HISTORY: New bill   FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS: None to the State   EFFECTIVE DATE: This act shall take effect immediately and shall apply to any contract entered into, renewed, modified or amended on or after such date, provided that the amendments to paragraph a of subdivision 36 of section 2590-h of the education law made by section 5 of this act shall not affect the expiration and reversion of such paragraph pursuant to section 34 of chapter 91 of the laws of 2002, and shall expire and be deemed repealed therewith.
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STATE OF NEW YORK ________________________________________________________________________ 8407 2019-2020 Regular Sessions IN ASSEMBLY June 16, 2019 ___________ Introduced by M. of A. BICHOTTE -- read once and referred to the Commit- tee on Ways and Means AN ACT to amend the New York city charter, the education law and the public authorities law, in relation to opportunities for small busi- nesses and businesses owned by women and minorities The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. Legislative findings. The legislature finds that disparity 2 studies conducted by the state and the city of New York demonstrate the 3 continuing effects of discrimination on businesses owned by minorities 4 and women in the market where the city conducts its procurements. 5 Therefore, it continues to be appropriate for the city of New York to 6 establish and implement reasonable procedures to secure the meaningful 7 participation of minority and women-owned businesses, as well as emerg- 8 ing business enterprises, in its procurement process, including but not 9 limited to measures already authorized by state and local legislation 10 and rules and the measures authorized in this act. 11 § 2. Paragraph 1 of subdivision i of section 311 of the New York city 12 charter, as amended by chapter 19 of the laws of 2018, is amended to 13 read as follows: 14 1. agencies may make procurements of goods [ and], services and 15 construction for amounts not exceeding [ one] five hundred [ fifty] thou- 16 sand dollars from businesses certified as minority or women-owned busi- 17 ness enterprises pursuant to section thirteen hundred four of the char- 18 ter without a formal competitive process. 19 § 3. Subdivision a of section 324 of the New York city charter, as 20 amended by local law number 17 for the year 2004, is amended to read as 21 follows: 22 a. Agencies may maintain lists of prequalified vendors and entry into 23 a prequalified group shall be continuously available. Prospective 24 vendors may be prequalified as contractors for the provision of partic- EXPLANATION--Matter in italics (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD11067-09-9A. 8407 2 1 ular types of goods, services and construction, in accordance with 2 general criteria established by rule of the procurement policy board 3 which may include, but shall not be limited to, the experience, past 4 performance, ability to undertake work, financial capability, responsi- 5 bility, and reliability of prospective bidders, and their status as a 6 certified minority and women owned business enterprise pursuant to 7 section thirteen hundred four of the charter, and which may be supple- 8 mented by criteria established by rule of the agency for the prequali- 9 fication of vendors for particular types of goods, services or 10 construction or by criteria published in the City Record by the agency 11 prior to the prequalification of vendors for a particular procurement. 12 Such prequalification may be by categories designated by size and other 13 factors. 14 § 4. The New York city charter is amended by adding a new section 1206 15 to read as follows: 16 § 1206. Mentoring program. 1. The department of design and 17 construction may establish a mentoring program for small businesses and 18 minority and women owned business enterprises that have been certified 19 pursuant to section thirteen hundred four of the charter in the 20 construction trades. The department of design and construction may 21 determine the criteria pursuant to which a business shall be eligible 22 for and selected as a mentee business participating in the components of 23 such a program under paragraph c of subdivision five of this section, 24 the number of mentee businesses to participate in each such component of 25 such a program, the criteria for the competitive selection of the firms 26 that will provide mentoring services, and the assignment of a mentor to 27 a specific mentee business. 28 2. The department of design and construction shall be authorized, 29 notwithstanding any other provision of law: 30 a. to designate which eligible contracts shall be mentoring program 31 contracts under subparagraphs one and two of paragraph c of subdivision 32 five of this section, respectively; 33 b. to establish standards for qualifying mentee businesses to compete 34 for a mentoring program contract, provided that no less than two quali- 35 fied mentee businesses in the program must submit responsive offers to 36 perform the contract; 37 c. to determine when bids or proposals for a mentoring program 38 contract should be restricted to mentee businesses that, prior to the 39 receipt of bids or proposals, have been qualified for such competition; 40 d. to competitively select, designate and contract with one or more 41 experienced firms that, under the general supervision of the department 42 of design and construction, will provide mentoring services to the 43 mentee businesses, and to assign such mentors one or more designated 44 mentee businesses; 45 e. to assist mentee businesses that have been awarded mentoring 46 program contracts to obtain any surety bond or contract of insurance 47 required of them in connection with such contract only, notwithstanding 48 any provision of section two thousand five hundred four of the insurance 49 law to the contrary; and 50 f. in addition to the benefits of such program and notwithstanding any 51 other provision of law, to provide mentee businesses technical assist- 52 ance in obtaining bid, payment and performance bonding for contracts 53 that are not mentoring program contracts, for which the businesses are 54 otherwise qualified. 55 3. If the total number of qualified mentee businesses that respond to 56 a competition and are considered capable of meeting the specificationsA. 8407 3 1 and terms of the invitation to compete is less than two, or if the 2 department of design and construction determines that acceptance of the 3 best offer will result in the payment of an unreasonable price, the 4 department of design and construction shall reject all offers and with- 5 draw the designation of the contract as a mentoring program contract. If 6 the department of design and construction withdraws the designation of 7 the contract as a mentoring program contract, the mentee businesses, if 8 any, that made offers shall be notified. 9 4. A mentor shall provide services and assistance to a mentee business 10 as designated by the department of design and construction, which may 11 include the following: 12 a. provide business training in the skills necessary to operate a 13 successful business and to compete for and perform a contract; 14 b. provide technical assistance to the mentee business to assess the 15 outcome if the mentee business competes for but is not awarded a 16 contract; 17 c. if the mentoring program contract is awarded to the mentee busi- 18 ness, provide guidance, advice and technical assistance to the mentee 19 business in the performance of the contract; and 20 d. provide other technical assistance to the mentee business to facil- 21 itate learning, training and other issues which may arise. 22 5. As used in this section: 23 a. "Small business" means a business which (1) is independently owned 24 and operated; and (2) has annual revenues not exceeding a fiscal limita- 25 tion of five million dollars or such lesser amount as established by the 26 department of design and construction pursuant to this section. 27 b. "Mentoring program contract" means a contract designated by the 28 department of design and construction, in an estimated amount of not 29 more than one million five hundred thousand dollars for contracts under 30 subparagraph one of paragraph c of this subdivision and three million 31 dollars for contracts under subparagraph two of such paragraph, for 32 which bids or proposals are to be invited and accepted only from busi- 33 nesses that are enrolled in a mentoring program and have been selected 34 by the department of design and construction to compete for the 35 contract. 36 c. "Mentoring program" is a program established pursuant to this 37 section to provide mentee businesses with the opportunity: 38 (1) for up to four years, to compete for and, where awarded, to 39 perform certain contracts designated for inclusion in the mentoring 40 program, with the assistance of a competitively selected mentor firm 41 that has extensive management and mentoring experience, with the mentor 42 providing the mentee business with advice and assistance in competing 43 for and managing contracts; and 44 (2) for a mentee business that the department of design and 45 construction has determined has successfully completed the program under 46 subparagraph one of this paragraph, for up to four additional years, (A) 47 additional opportunities to compete with other designated mentee busi- 48 nesses in the program for certain contracts to be designated for inclu- 49 sion under this subparagraph and, where awarded, to perform such 50 contracts, with the further assistance of a competitively selected 51 mentor firm that has extensive management and mentoring experience, with 52 the mentor providing the mentee with advice and technical assistance in 53 competing for and managing contracts, and (B) assistance, as determined 54 by the department of design and construction, for such a mentee business 55 to obtain bonding for contracts that are competitively awarded pursuant 56 to any other provision of law.A. 8407 4 1 6. Commencing on October first, two thousand twenty, the department of 2 design and construction shall submit an annual report to the governor 3 and the legislature that contains the following information for the 4 preceding city fiscal year: 5 a. the total number and total dollar value of mentoring program 6 contracts; and 7 b. mentoring program participation rates. 8 § 5. Paragraph (a) of subdivision 36 of section 2590-h of the educa- 9 tion law, as amended by chapter 345 of the laws of 2009, is amended to 10 read as follows: 11 (a) Such policy shall specifically include: 12 (i) a competitive sealed bidding process for the awarding of contracts 13 in which sealed bids are publicly solicited and opened and that a 14 contract is awarded to the lowest responsive, responsible bidder; 15 (ii) processes for awarding contracts using alternatives to compet- 16 itive sealed bidding where competitive sealed bidding is not practicable 17 or not advantageous, in which case the most competitive alternative 18 method of procurement, which is appropriate under the circumstances, 19 shall be used consistent with the requirements of subparagraph (vii) of 20 this paragraph; 21 (iii) measures to enhance the ability of minority and women owned 22 business enterprises pursuant to section thirteen hundred four of the 23 New York city charter and a certified business as defined in section 24 three hundred ten of the executive law, including firms certified pursu- 25 ant to article fifteen-A of the executive law and firms certified as 26 minority and women owned business enterprises pursuant to section thir- 27 teen hundred four of the New York city charter, to compete for contracts 28 and to ensure their meaningful participation in the procurement process. 29 The school district shall have the authority to use the same measures, 30 to enhance minority and women owned business enterprise participation as 31 are available to the city of New York pursuant to article five-A of the 32 general municipal law, section thirteen hundred four of the New York 33 city charter, paragraphs one and two of subdivision i of section three 34 hundred eleven of the New York city charter, and section 6-129 of the 35 administrative code of the city of New York; 36 (iv) the manner for administering contracts and overseeing the 37 performance of contracts and contractors; 38 (v) standards and procedures to be used in determining whether bidders 39 are responsible; 40 (vi) circumstances under which procurement may be used for the 41 provision of technical, consultant or personal services; 42 (vii) requiring written justification for the basis, including the 43 efficiency, benefit, and necessity, for awarding a contract using 44 procurement methods other than competitive sealed bidding including 45 competitive sealed proposals and sole source contracts, and for awarding 46 technical, consultant, or personal services contracts, franchises, revo- 47 cable consents, or concessions. Such written justification shall be 48 filed with the comptroller of the city of New York along with the corre- 49 sponding contract, franchise, revocable consent, or concession; 50 (viii) maintaining a file for every contract franchise, revocable 51 consent, and concession containing information pertaining to the solic- 52 itation, award and management of every such contract or agreement. Such 53 file shall contain copies of each determination, writing or filing 54 required by this subdivision and shall be open to public inspection with 55 adequate protection for information which is confidential;A. 8407 5 1 (ix) a process for the filing of all contracts, franchises, revocable 2 consents, and concessions with the comptroller of the city of New York; 3 (x) a process for emergency procurement in the case of an unforeseen 4 danger to life, safety, property or a necessary service provided that 5 such procurement shall be made with such competition as is practicable 6 under the circumstances and that a written determination of the basis 7 for the emergency procurement shall be required and filed with the comp- 8 troller of the city of New York when such emergency contract is filed 9 with such comptroller; and 10 (xi) procedures for the fair and equitable resolution of contract 11 disputes. 12 § 6. Paragraph b of subdivision 2 of section 1743 of the public 13 authorities law, as added by chapter 562 of the laws of 1990, is amended 14 to read as follows: 15 b. The authority shall establish and implement reasonable procedures 16 to secure the meaningful participation of minority and women owned busi- 17 ness enterprises in its procurement process. In addition to procedures 18 it has already adopted for such purpose, the authority may use the same 19 measures, to enhance minority and women owned business enterprise 20 participation, as are available to the city of New York pursuant to 21 article five-A of the general municipal law, section thirteen hundred 22 four of the New York city charter, paragraphs one and two of subdivision 23 i of section three hundred eleven of the New York city charter, and 24 section 6-129 of the administrative code of the city of New York. 25 § 7. This act shall take effect immediately and shall apply to any 26 contract entered into, renewed, modified or amended on or after such 27 date; provided that the amendments to paragraph (a) of subdivision 36 of 28 section 2590-h of the education law made by section five of this act 29 shall not affect the expiration and reversion of such subdivision pursu- 30 ant to section 34 of chapter 91 of the laws of 2002, as amended and 31 shall be deemed to expire therewith.