Amd §§310, 311, 311-a, 312-a, 313, 314, 315 & 316-a, add Art 28 §§821 - 826, Exec L; amd §§143, 163 & 139-j,
St Fin L; amd §2879, Pub Auth L; amd §8, Pub Bldg L; amd §121, Chap 261 of 1988
Relates to minority and women business enterprises; extends the provisions of article 15-a of the executive law; provides for punishment for fraud related to minority and women business enterprises (Part ).
NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A8414
SPONSOR: Bichotte TITLE OF BILL: An act to amend the executive law, the public build-
ings law, the state finance law and the public authorities law in
relation to the reauthorization of the minority and women-owned business
enterprise program and to amend chapter 261 of the laws of 1988, amend-
ing the state finance law and other laws relating to the New York state
infrastructure trust fund, in relation to the effectiveness thereof; and
providing for the repeal of certain provisions upon expiration thereof
(Part __);
PURPOSE:
This bill would. extend the effectiveness of provisions of law relating
to participation by minority and women-owned business enterprises (MWBE)
in state contracts and would expand upon those provisions based upon the
findings of the 2016 Disparity Study.
SUMMARY OF PROVISIONS AND STATEMENT IN SUPPORT:
Article 15-A of the Executive Law authorizes the Department of Economic
Development's Division of Minority and Women-owned Business Enterprises
("MWBE") to promote employment and business opportunities on state
contracts for minorities and women owned businesses. Under this statute,
state agencies and authorities are charged with establishing business
participation goals for minorities and women. This authorization and
the requirements of the program will expire on December 31, 2019. This
bill would extend the sunset provision to December 31, 2024.
In addition, this bill would expand upon the requirements of the MWBE
program based upon the findings of the 2016 Disparity Study (the
"Study"). As required by statute, the Study was conducted to ensure that
the MWBE program continues to meet the constitutional requirements
established by the United States Supreme Court, and its progeny, in City
of Richmond v. J.A. Croson, Co., 488 U.S. 469 (1989). Under Croson, the
Supreme Court held that diversity program must be narrowly tailored to
achieve a compelling governmental interest. Id At 493. The Study
provides the strong factual predicated needed to support program. Id. at
510. In keeping with the requirement s set forth in Croson, the Study
found continued evidence of statistically significant underutilization
of available MWBEs and provides support for the continuation of the MWBE
program. The Study also provided several recommendations to enhance and
improve upon the program. Based upon those recommendations and to
address other more technical issues, the bill seeks to make several
amendments, which include, but are not limited to, the following:
- Increases agency and authority discretionary purchasing threshold to
$500,000;
- Increases the personal net worth to $15 million and provides the
Director the authority to set the personal net worth ("PNW") requirement
for MWBE certification via regulation, excludes holding companies from
PNW;
- Creates a workforce program; with goals for minority group members and
women;
- Enhances opportunities for MWBE prime contractors by establishing
bidding credits for low-bid construction projects of up to $1 4 million
and increases the size 'of procurements that can include bidding credits
each year with inflation;
- Expands the authority of the Statewide Advocate to audit agencies and
investigate complaints from MWBEs of violations of Article 15
-A by agencies and contractors;
- Requires agencies to take into account findings of most recent Study
in setting goals and removes references to the 2010 Study;
- Provides Director with enhanced authority to define commercially
useful function;
- Requires Tax & Finance and DOL to share records with the Division; and
- Makes other additional technical changes
EFFECTIVE DATE:
This act shall take effect on the one hundred eightieth day after it
shall have become a law, provided, however, that the provisions of
section twelve of this act shall apply to any state contracts executed
and entered into on or after January 1, 2020 and shall exclude such
contracts that have been previously awarded or have pending bids or
pending requests for proposals issued prior to such date, and shall not
apply to projects that have commenced project design prior to such date;
provided, further, that: (a) the amendments to article 15-A of the exec-
utive law, made by sections one, two, three, four, five, six, seven and
eight of this act, shall not affect the expiration of such article and
shall expire and be deemed expired therewith; (b) the amendments to
section 163 of the state finance law, made by section nine of this act,
shall not affect the expiration and repeal of such section, and shall
expire and be deemed repealed therewith; (c) the amendments to section
139-j of the state finance law, made by section eleven of this act,
shall not affect the expiration and repeal of such section, and shall
expire and be deemed repealed herewith; and (d) section fourteen of this
act shall expire and be deemed repealed December 31, 2024.
STATE OF NEW YORK
________________________________________________________________________
8414
2019-2020 Regular Sessions
IN ASSEMBLY
June 16, 2019
___________
Introduced by M. of A. BICHOTTE -- (at request of the Governor) -- read
once and referred to the Committee on Ways and Means
AN ACT to amend the executive law, the public buildings law, the state
finance law and the public authorities law in relation to the reau-
thorization of the minority and women-owned business enterprise
program and to amend chapter 261 of the laws of 1988, amending the
state finance law and other laws relating to the New York state
infrastructure trust fund, in relation to the effectiveness thereof;
and providing for the repeal of certain provisions upon expiration
thereof (Part __);
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 PART __
2 Section 1. Paragraph (e) of subdivision 7, paragraph (b) of subdivi-
3 sion 8, subdivision 13, paragraph (e) of subdivision 15, subdivisions
4 16, 19, 21 and 22 of section 310 of the executive law, paragraph (b) of
5 subdivision 8 as added by chapter 261 of the laws of 1988, paragraph (e)
6 of subdivision 7 and paragraph (e) of subdivision 15 as amended by chap-
7 ter 22 of the laws of 2014, subdivision 13 as amended by chapter 506 of
8 the laws of 2009, subdivision 16 as added by section 3 of part BB of
9 chapter 59 of the laws of 2006, and subdivisions 19, 21 and 22 as added
10 by chapter 175 of the laws of 2010, are amended to read as follows:
11 (e) an enterprise owned by an individual or individuals, whose owner-
12 ship, control and operation are relied upon for certification, with a
13 personal net worth that does not exceed [three] fifteen million [five
14 hundred thousand] dollars, and such other amount as the director shall
15 set forth in regulations, as adjusted annually on the first of January
16 for inflation according to the consumer price index of the previous
17 year; and
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD12034-01-9
A. 8414 2
1 (b) [Hispanic] Hispanic/Latino persons of Mexican, Puerto Rican,
2 Dominican, Cuban, Central or South American of either Indian or Hispanic
3 origin, regardless of race;
4 13. "State contract" shall mean: (a) a written agreement or purchase
5 order instrument, providing for a total expenditure in excess of twen-
6 ty-five thousand dollars, whereby a contracting agency is committed to
7 expend or does expend funds in return for labor, services including but
8 not limited to legal, financial and other professional services,
9 supplies, equipment, materials or any combination of the foregoing, to
10 be performed for, on behalf of, or rendered or furnished to the
11 contracting agency; (b) a written agreement in excess of one hundred
12 thousand dollars whereby a contracting agency is committed to expend or
13 does expend funds for the acquisition, construction, demolition,
14 replacement, major repair or renovation of real property and improve-
15 ments thereon; and (c) a written agreement in excess of one hundred
16 thousand dollars whereby the owner of a state assisted housing project
17 is committed to expend or does expend funds for the acquisition,
18 construction, demolition, replacement, major repair or renovation of
19 real property and improvements thereon for such project.
20 (e) an enterprise owned by an individual or individuals, whose owner-
21 ship, control and operation are relied upon for certification, with a
22 personal net worth that does not exceed [three] fifteen million [five
23 hundred thousand] dollars, and such other amount as the director shall
24 set forth in regulations, as adjusted annually on the first of January
25 for inflation according to the consumer price index of the previous
26 year; and
27 16. "Statewide advocate" shall mean the person appointed by the
28 [commissioner] director to serve in the capacity of the minority and
29 women-owned business enterprise statewide advocate and procurement
30 ombudsman.
31 19. "Personal net worth" shall mean the aggregate adjusted net value
32 of the assets of an individual remaining after total liabilities are
33 deducted. Personal net worth includes the individual's share of assets
34 held jointly with said individual's spouse and does not include the
35 individual's ownership interest in the certified minority and women-
36 owned business enterprise, the individual's equity in his or her primary
37 residence, ownership interest in a holding company established for the
38 exclusive and sole purpose of leasing machinery, equipment, or vehicles
39 exclusively to the certified minority or women-owned business enterprise
40 that is majority owned by the minority group member or woman relied upon
41 for certification, and the holding company does not own any other assets
42 of any kind, or up to [five] seven hundred fifty thousand dollars of the
43 present cash value of any qualified retirement savings plan or individ-
44 ual retirement account held by the individual less any penalties for
45 early withdrawal.
46 21. "The [2010] disparity study" shall refer to the disparity study
47 commissioned by the [empire state development corporation] department of
48 economic development, pursuant to section three hundred twelve-a of this
49 article, and published on [April twenty-nine] June thirtieth, two thou-
50 sand [ten] seventeen.
51 22. "Diversity practices" shall mean the contractor's practices and
52 policies with respect to:
53 (a) utilizing or mentoring certified minority and women-owned business
54 enterprises in contracts awarded by a state agency or other public
55 corporation, as subcontractors and suppliers; and
A. 8414 3
1 (b) entering into partnerships, joint ventures or other similar
2 arrangements with certified minority and women-owned business enter-
3 prises as defined in this article or other applicable statute or regu-
4 lation governing an entity's utilization of minority or women-owned
5 business enterprises.
6 § 2. Paragraphs (f) and (i) of subdivision 3 and the opening paragraph
7 of subdivision 4 of section 311 of the executive law, paragraph (f) of
8 subdivision 3 as added by chapter 261 of the laws of 1988, paragraph (i)
9 of subdivision 3 as added by section 1 of part BB of chapter 59 of the
10 laws of 2006 and the opening paragraph of subdivision 4 as amended by
11 chapter 361 of the laws of 2009, are amended and a new paragraph (d-1)
12 is added to subdivision 3 and two new paragraphs (d) and (e) are added
13 to subdivision 4 to read as follows:
14 (d-1) to require all contracting state agencies to develop a four-year
15 growth plan to determine a means of promoting and increasing partic-
16 ipation by minority-owned and women-owned business enterprises with
17 respect to state contracts and subcontracts. Every four years, beginning
18 September fifteenth, two thousand twenty, each contracting state agency
19 shall submit a four-year growth plan as part of its annual report to the
20 governor and legislature pursuant to section one hundred sixty-four of
21 this chapter.
22 (f) to prepare and update [periodically], no less than annually, a
23 directory of certified minority and women-owned business enterprises
24 which shall, wherever practicable, be divided into categories of labor,
25 services, supplies, equipment, materials and recognized construction
26 trades and which shall indicate areas or locations of the state where
27 such enterprises are available to perform services;
28 (i) to streamline the state certification process to accept federal
29 and municipal corporation certifications;
30 (j) to make publicly available records of all waivers of compliance
31 reported pursuant to paragraph (b) of subdivision six of section three
32 hundred thirteen of this article on the division's website.
33 The director [may] shall provide assistance to, and facilitate access
34 to programs serving certified businesses as well as applicants to ensure
35 that such businesses benefit, as needed, from technical, managerial and
36 financial, and general business assistance; training; marketing; organ-
37 ization and personnel skill development; project management assistance;
38 technology assistance; bond and insurance education assistance; and
39 other business development assistance. The director shall maintain a
40 toll-free number at the department of economic development to be used to
41 answer questions concerning the MWBE certification process. In addition,
42 the director may, either independently or in conjunction with other
43 state agencies:
44 (d) conduct outreach events, training workshops, seminars, and other
45 such educational programs throughout the state, including all regional
46 offices, to state agencies, external stakeholders, and the public, to
47 promote awareness and utilization of minority and women-owned business
48 enterprises; and
49 (e) identify and establish mentorship opportunities and other business
50 development programs to increase capacity and better prepare MWBEs for
51 bidding on contracts with state agencies upon successful completion of
52 the mentorship opportunity. Such mentorship opportunities shall be
53 intended to ensure that mentor and mentee are connected based on a
54 commercially useful function.
55 § 3. Section 311-a of the executive law, as added by section 4 of part
56 BB of chapter 59 of the laws of 2006, is amended to read as follows:
A. 8414 4
1 § 311-a. Minority and women-owned business enterprise statewide advo-
2 cate. 1. There is hereby established within the [department of economic
3 development] division of minority and women's business an office of the
4 minority and women-owned business enterprise statewide advocate. The
5 statewide advocate shall be appointed by the commissioner with the
6 advice of the small business advisory board as established in section
7 one hundred thirty-three of the economic development law and shall serve
8 in the unclassified service of the director. [The statewide advocate
9 shall be located in the Albany empire state development office].
10 2. The advocate shall act as a liaison for minority and women-owned
11 business enterprises (MWBEs) to assist them in obtaining technical,
12 managerial, financial and other business assistance for certified busi-
13 nesses and applicants. The advocate shall receive and investigate
14 complaints brought by or on behalf of MWBEs concerning certification
15 delays and instances of violations of [law] the requirements of this
16 article by contractors and by state agencies. The statewide advocate
17 [shall] may assist certified businesses and applicants in the certif-
18 ication process. Other functions of the statewide advocate shall be
19 directed by the commissioner. The advocate may request and the director
20 may appoint staff and employees of the division of minority and women
21 business development to support the administration of the office of the
22 statewide advocate.
23 3. The statewide advocate [shall establish a toll-free number at the
24 department of economic development to be used to answer questions
25 concerning the MWBE certification process] shall conduct periodic audits
26 of state contracting agencies' compliance with the requirements of
27 section three hundred fifteen of this article, such audits shall include
28 a review of the books and records of state contracting agencies concern-
29 ing, among other things, annual agency expenditures, annual partic-
30 ipation of minority and women-owned business enterprises as prime
31 contractors and subcontractors in state contracting agencies' state
32 contracts, and documentation of state contracting agencies' good faith
33 efforts to maximize minority and women-owned business enterprise partic-
34 ipation in such agencies' contracting.
35 4. The statewide advocate shall investigate complaints by certified
36 minority-owned business enterprises or women-owned business enterprises
37 concerning a procuring governmental entity's failure to comply with the
38 requirements of section three hundred fifteen of this article.
39 5. The statewide advocate shall report to the director and commission-
40 er by November fifteenth on an annual basis on all activities related to
41 fulfilling the obligations of the office of the statewide advocate
42 including, but not limited to: (a) the number of complaints investi-
43 gated; (b) the resolution of complaints, as applicable; and (c) informa-
44 tion regarding audits conducted pursuant to this subdivision. The
45 [commissioner] director shall include the unedited text of the statewide
46 advocate's report within the reports submitted by the department of
47 economic development to the governor and the legislature.
48 § 4. Section 312-a of the executive law, as amended by section 1 of
49 part Q of chapter 58 of the laws of 2015, is amended to read as follows:
50 § 312-a. Study of minority and women-owned business [enterprise
51 programs] enterprises. 1. The director of the division of minority and
52 women-owned business development [in the department of economic develop-
53 ment] is authorized and directed to recommission a statewide disparity
54 study regarding the participation of minority and women-owned business
55 enterprises in state contracts since the amendment of this article to be
56 delivered to the governor and legislature no later than August
A. 8414 5
1 fifteenth, two thousand [sixteen] twenty-three. The study shall be
2 prepared by an entity independent of the department and selected through
3 a request for proposal process. The purpose of such study is:
4 (a) to determine whether there is a disparity between the number of
5 qualified minority and women-owned businesses ready, willing and able to
6 perform state contracts for commodities, services and construction, and
7 the number of such contractors actually engaged to perform such
8 contracts, and to determine what changes, if any, should be made to
9 state policies affecting minority and women-owned business enterprises;
10 [and]
11 (b) to determine whether there is a disparity between the number of
12 qualified minorities and women ready, willing and able, with respect to
13 labor markets, qualifications and other relevant factors, to participate
14 in contractor employment, management level bodies, including boards of
15 directors, and as senior executive officers within contracting entities
16 and the number of such group members actually employed or affiliated
17 with state contractors in the aforementioned capacities, and to deter-
18 mine what changes, if any, should be made to state policies affecting
19 minority and women group populations with regard to state contractors'
20 employment and appointment practices relative to diverse group members.
21 Such study shall include, but not be limited to, an analysis of the
22 history of minority and women-owned business enterprise programs and
23 their effectiveness as a means of securing and ensuring participation by
24 minorities and women, and a disparity analysis by market area and region
25 of the state. Such study shall distinguish between minority males,
26 minority females and non-minority females in the statistical analysis;
27 and
28 (c) such study shall also include an analysis of the utilization on
29 state agency contracts of businesses owned by an Indian nation or tribe,
30 as such term is defined in section two of the Indian law, whether a
31 disparity exists between availability of such businesses to participate
32 on state agency contracts and utilization, and, if so, the feasibility
33 of authorizing an Indian nation or tribe owned businesses to become
34 certified as a participant in the minority and women-owned business
35 enterprise program.
36 2. The director of the division of minority and [women-owned] women's
37 business development is directed to transmit the disparity study to the
38 governor and the legislature not later than August fifteenth, two thou-
39 sand [sixteen] twenty-three, and to post the study on the website of the
40 department of economic development.
41 § 5. Section 313 of the executive law, as amended by chapter 175 of
42 the laws of 2010, is amended to read as follows:
43 § 313. Opportunities for minority and women-owned business enter-
44 prises. 1. Goals and requirements for agencies and contractors. Each
45 agency shall structure procurement procedures for contracts made direct-
46 ly or indirectly to minority and women-owned business enterprises, in
47 accordance with the findings of the [two thousand ten] disparity study,
48 consistent with the purposes of this article, to attempt to achieve the
49 [following] recommended results with regard to total annual statewide
50 procurement in the following industries:
51 (a) construction industry for certified minority-owned business enter-
52 prises[: fourteen and thirty-four hundredths percent];
53 (b) construction industry for certified women-owned business enter-
54 prises[: eight and forty-one hundredths percent];
A. 8414 6
1 (c) construction related professional services industry for certified
2 minority-owned business enterprises[: thirteen and twenty-one hundredths
3 percent];
4 (d) construction related professional services industry for certified
5 women-owned business enterprises[: eleven and thirty-two hundredths
6 percent];
7 (e) non-construction related services industry for certified minori-
8 ty-owned business enterprises[: nineteen and sixty hundredths percent];
9 (f) non-construction related services industry for certified women-
10 owned business enterprises[: seventeen and forty-four hundredths
11 percent];
12 (g) commodities industry for certified minority-owned business enter-
13 prises[: sixteen and eleven hundredths percent];
14 (h) commodities industry for certified women-owned business enter-
15 prises[: ten and ninety-three hundredths percent];
16 (i) overall agency total dollar value of procurement for certified
17 minority-owned business enterprises[: sixteen and fifty-three hundredths
18 percent];
19 (j) overall agency total dollar value of procurement for certified
20 women-owned business enterprises[: twelve and thirty-nine hundredths
21 percent]; and
22 (k) overall agency total dollar value of procurement for certified
23 minority, women-owned business enterprises[: twenty-eight and ninety-two
24 hundredths percent].
25 1-a. The director shall ensure that each state agency has been
26 provided with [a] an electronic copy of the [two thousand ten] disparity
27 study.
28 1-b. Each agency shall develop and adopt agency-specific goals based
29 on the findings of the [two thousand ten] disparity study.
30 1-c. The goals set pursuant to subdivision one of this section shall
31 be consistent with the findings of the disparity study.
32 2. The director shall promulgate rules and regulations [pursuant to
33 the goals established in] based on subdivision one of this section and
34 the findings of the disparity study that provide measures and procedures
35 to ensure that certified minority and women-owned businesses shall be
36 given the opportunity for maximum feasible participation in the perform-
37 ance of state contracts and to assist in the agency's identification of
38 those state contracts for which minority and women-owned certified busi-
39 nesses may best bid to actively and affirmatively promote and assist
40 their participation in the performance of state contracts so as to
41 facilitate the agency's achievement of the maximum feasible portion of
42 the goals for state contracts to such businesses.
43 2-a. The director shall promulgate rules and regulations that will
44 accomplish the following:
45 (a) provide for the certification and decertification of minority and
46 women-owned business enterprises for all agencies through a single proc-
47 ess that meets applicable requirements;
48 (b) require that each contract solicitation document accompanying each
49 solicitation set forth the expected degree of minority and women-owned
50 business enterprise participation based, in part, on:
51 (i) the potential subcontract opportunities available in the prime
52 procurement contract; [and]
53 (ii) the availability, as contained within the study, of certified
54 minority and women-owned business enterprises to respond competitively
55 to the potential subcontract opportunities as reflected in the divi-
A. 8414 7
1 sion's directory of certified minority and women-owned business enter-
2 prises; and
3 (iii) the findings of the disparity study;
4 (c) require that each agency provide a current list of certified
5 minority business enterprises to each prospective contractor or direct
6 them to the division's directory of certified minority and women-owned
7 business enterprises for such purpose;
8 (d) allow a contractor that is a certified minority-owned or women-
9 owned business enterprise to use the work it performs to meet require-
10 ments for use of certified minority-owned or women-owned business enter-
11 prises as subcontractors;
12 (e) establish criteria for agencies to credit the participation of
13 minority and women-owned business enterprises towards the achievement of
14 the minority and women-owned business enterprise participation goals on
15 a state contract based on the commercially useful function provided by
16 each minority and women-owned business enterprise on the contract;
17 (f) provide for joint ventures, which a bidder may count toward meet-
18 ing its minority and women-owned business enterprise participation;
19 [(f)] (g) consistent with subdivision six of this section, provide for
20 circumstances under which an agency may waive obligations of the
21 contractor relating to minority and women-owned business enterprise
22 participation;
23 [(g)] (h) require that an agency verify that minority and women-owned
24 business enterprises listed in a successful bid are actually participat-
25 ing to the extent listed in the project for which the bid was submitted;
26 [(h)] (i) provide for the collection of statistical data by each agen-
27 cy concerning actual minority and women-owned business enterprise
28 participation; [and
29 (i)] (j) require each agency to consult the most current disparity
30 study when calculating agency-wide and contract specific participation
31 goals pursuant to this article; and
32 Such rules shall set forth the maximum personal net worth of a minori-
33 ty group member or woman who may be relied upon to certify a business as
34 a minority-owned business enterprise or women-owned business enterprise,
35 and may establish different maximum levels of personal net worth for
36 minority group members and women on an industry-by-industry basis for
37 such industries as the director shall determine. Such regulations
38 relating to the classification of the industry-by-industry personal net
39 worth thresholds above the fifteen million dollar threshold shall
40 consider the personal net worth of the owners of both certified and
41 non-certified businesses, including but not limited to, prime contrac-
42 tors and subcontractors, as well as any such other factors needed to
43 establish such thresholds. The provisions of the regulations pertaining
44 to personal net worth shall, to the extent practicable, be implemented
45 by June thirtieth, two thousand twenty and shall consider adjustments
46 for inflation annually on January first of the previous year according
47 to the consumer price index.
48 3. Solely for the purpose of providing the opportunity for meaningful
49 participation by certified businesses in the performance of state
50 contracts as provided in this section, state contracts shall include
51 leases of real property by a state agency to a lessee where: the terms
52 of such leases provide for the construction, demolition, replacement,
53 major repair or renovation of real property and improvements thereon by
54 such lessee; and the cost of such construction, demolition, replacement,
55 major repair or renovation of real property and improvements thereon
56 shall exceed the sum of one hundred thousand dollars. Reports to the
A. 8414 8
1 director pursuant to section three hundred fifteen of this article shall
2 include activities with respect to all such state contracts. Contracting
3 agencies shall include or require to be included with respect to state
4 contracts for the acquisition, construction, demolition, replacement,
5 major repair or renovation of real property and improvements thereon,
6 such provisions as may be necessary to effectuate the provisions of this
7 section in every bid specification and state contract, including, but
8 not limited to: (a) provisions requiring contractors to make a good
9 faith effort to solicit active participation by enterprises identified
10 in the directory of certified businesses [provided to the contracting
11 agency by the office]; (b) requiring the parties to agree as a condition
12 of entering into such contract, to be bound by the provisions of section
13 three hundred sixteen of this article; and (c) requiring the contractor
14 to include the provisions set forth in paragraphs (a) and (b) of this
15 subdivision in every subcontract in a manner that the provisions will be
16 binding upon each subcontractor as to work in connection with such
17 contract. Provided, however, that no such provisions shall be binding
18 upon contractors or subcontractors in the performance of work or the
19 provision of services that are unrelated, separate or distinct from the
20 state contract as expressed by its terms, and nothing in this section
21 shall authorize the director or any contracting agency to impose any
22 requirement on a contractor or subcontractor except with respect to a
23 state contract.
24 4. In the implementation of this section, the contracting agency shall
25 (a) consult the findings contained within the disparity study evidencing
26 relevant industry specific [availability of certified businesses]
27 disparities in the utilization of minority and women-owned businesses
28 relative to their availability;
29 (b) implement a program that will enable the agency to evaluate each
30 contract to determine the [appropriateness of the] appropriate goal
31 [pursuant to subdivision one of this section] for participation by
32 minority-owned business enterprises and women-owned business
33 enterprises;
34 (c) consider where practicable, the severability of construction
35 projects and other bundled contracts; and
36 (d) consider compliance with the requirements of any federal law
37 concerning opportunities for minority and women-owned business enter-
38 prises which effectuates the purpose of this section. The contracting
39 agency shall determine whether the imposition of the requirements of any
40 such law duplicate or conflict with the provisions hereof and if such
41 duplication or conflict exists, the contracting agency shall waive the
42 applicability of this section to the extent of such duplication or
43 conflict.
44 5. (a) Contracting agencies shall administer the rules and regulations
45 promulgated by the director in a good faith effort to [meet] achieve the
46 maximum feasible [portion of the agency's goals] participation by minor-
47 ity and women owned business enterprises adopted pursuant to this arti-
48 cle and the regulations of the director. Such rules and regulations:
49 shall require a contractor to submit a utilization plan after bids are
50 opened, when bids are required, but prior to the award of a state
51 contract; shall require the contracting agency to review the utilization
52 plan submitted by the contractor and to post the utilization plan and
53 any waivers of compliance issued pursuant to subdivision six of this
54 section on the website of the contracting agency [within a reasonable
55 period of time as established by the director]; shall require the
56 contracting agency to notify the contractor in writing within a period
A. 8414 9
1 of time specified by the director as to any deficiencies contained in
2 the contractor's utilization plan; shall require remedy thereof within a
3 period of time specified by the director; shall require the contractor
4 to submit periodic compliance reports relating to the operation and
5 implementation of any utilization plan; shall not allow any automatic
6 waivers but shall allow a contractor to apply for a partial or total
7 waiver of the minority and women-owned business enterprise participation
8 requirements pursuant to subdivisions six and seven of this section;
9 shall allow a contractor to file a complaint with the director pursuant
10 to subdivision eight of this section in the event a contracting agency
11 has failed or refused to issue a waiver of the minority and women-owned
12 business enterprise participation requirements or has denied such
13 request for a waiver; and shall allow a contracting agency to file a
14 complaint with the director pursuant to subdivision nine of this section
15 in the event a contractor is failing or has failed to comply with the
16 minority and women-owned business enterprise participation requirements
17 set forth in the state contract where no waiver has been granted.
18 (b) The rules and regulations promulgated pursuant to this subdivision
19 regarding a utilization plan shall provide that where enterprises have
20 been identified within a utilization plan, a contractor shall attempt,
21 in good faith, to utilize such enterprise at least to the extent indi-
22 cated. A contracting agency may require a contractor to indicate, within
23 a utilization plan, what measures and procedures he or she intends to
24 take to comply with the provisions of this article, but may not require,
25 as a condition of award of, or compliance with, a contract that a
26 contractor utilize a particular enterprise in performance of the
27 contract.
28 (c) Without limiting other grounds for the disqualification of bids or
29 proposals on the basis of non-responsibility, a contracting agency may
30 disqualify the bid or proposal of a contractor as being non-responsible
31 for failure to remedy notified deficiencies contained in the contrac-
32 tor's utilization plan within a period of time specified in regulations
33 promulgated by the director after receiving notification of such defi-
34 ciencies from the contracting agency. Where failure to remedy any noti-
35 fied deficiency in the utilization plan is a ground for disqualifica-
36 tion, that issue and all other grounds for disqualification shall be
37 stated in writing by the contracting agency. Where the contracting agen-
38 cy states that a failure to remedy any notified deficiency in the utili-
39 zation plan is a ground for disqualification the contractor shall be
40 entitled to an administrative hearing, on a record, involving all
41 grounds stated by the contracting agency. Such hearing shall be
42 conducted by the appropriate authority of the contracting agency to
43 review the determination of disqualification. A final administrative
44 determination made following such hearing shall be reviewable in a
45 proceeding commenced under article seventy-eight of the civil practice
46 law and rules, provided that such proceeding is commenced within thirty
47 days of the notice given by certified mail return receipt requested
48 rendering such final administrative determination. Such proceeding shall
49 be commenced in the supreme court, appellate division, third department
50 and such proceeding shall be preferred over all other civil causes
51 except election causes, and shall be heard and determined in preference
52 to all other civil business pending therein, except election matters,
53 irrespective of position on the calendar. Appeals taken to the court of
54 appeals of the state of New York shall be subject to the same prefer-
55 ence.
A. 8414 10
1 6. (a) Where it appears that a contractor cannot, after a good faith
2 effort, comply with the minority and women-owned business enterprise
3 participation requirements set forth in a particular state contract, a
4 contractor may file a written application with the contracting agency
5 requesting a partial or total waiver of such requirements setting forth
6 the reasons for such contractor's inability to meet any or all of the
7 participation requirements together with an explanation of the efforts
8 undertaken by the contractor to obtain the required minority and women-
9 owned business enterprise participation. In implementing the provisions
10 of this section, the contracting agency shall consider the number and
11 types of minority and women-owned business enterprises [located] avail-
12 able to provide goods or services required under the contract in the
13 region in which the state contract is to be performed, the total dollar
14 value of the state contract, the scope of work to be performed and the
15 project size and term. If, based on such considerations, the contracting
16 agency determines there is not a reasonable availability of contractors
17 on the list of certified business to furnish services for the project,
18 it shall issue a waiver of compliance to the contractor. In making such
19 determination, the contracting agency shall first consider the avail-
20 ability of other business enterprises located in the region and shall
21 thereafter consider the financial ability of minority and women-owned
22 businesses located outside the region in which the contract is to be
23 performed to perform the state contract.
24 (b) Upon the issuance of all waivers of compliance as provided in
25 paragraph (a) of this subdivision, the contracting agency shall: (i)
26 report the issuance of the waiver to the director; and (ii) publish on
27 the contracting agency's website on a monthly basis, if practicable, but
28 no less than on a quarterly basis: (1) information identifying the
29 contract, including the value of the contract; (2) the name of the
30 contractor receiving the waiver; (3) the date of the waiver; and (4) the
31 specific contract provisions to which the waiver applies.
32 7. For purposes of determining a contractor's good faith effort to
33 comply with the requirements of this section or to be entitled to a
34 waiver therefrom the contracting agency shall consider:
35 (a) whether the contractor has advertised in general circulation
36 media, trade association publications, and minority-focus and women-fo-
37 cus media and, in such event, (i) whether or not certified minority or
38 women-owned businesses which have been solicited by the contractor
39 exhibited interest in submitting proposals for a particular project by
40 attending, or having attended, a pre-bid conference, if any, scheduled
41 by the state agency awarding the state contract with certified minority
42 and women-owned business enterprises; and
43 (ii) whether certified businesses which have been solicited by the
44 contractor have responded in a timely fashion to the contractor's solic-
45 itations for timely competitive bid quotations prior to the contracting
46 agency's bid date; and
47 (b) whether [there has been] the contractor provided timely written
48 notification of subcontracting opportunities on the state contract to
49 appropriate certified businesses that appear in the directory of certi-
50 fied businesses prepared pursuant to paragraph (f) of subdivision three
51 of section three hundred eleven of this article; and
52 (c) whether the contractor can reasonably structure the amount of work
53 to be performed under subcontracts in order to increase the likelihood
54 of participation by certified businesses.
55 8. In the event that a contracting agency fails or refuses to issue a
56 waiver to a contractor as requested within twenty days after having made
A. 8414 11
1 application therefor pursuant to subdivision six of this section or if
2 the contracting agency denies such application, in whole or in part, the
3 contractor may file a complaint with the director pursuant to section
4 three hundred sixteen of this article setting forth the facts and
5 circumstances giving rise to the contractor's complaint together with a
6 demand for relief. The contractor shall serve a copy of such complaint
7 upon the contracting agency by personal service or by certified mail,
8 return receipt requested. The contracting agency shall be afforded an
9 opportunity to respond to such complaint in writing.
10 9. If, after the review of a contractor's minority and [women owned]
11 women-owned business utilization plan or review of a periodic compliance
12 report and after such contractor has been afforded an opportunity to
13 respond to a notice of deficiency issued by the contracting agency in
14 connection therewith, it appears that a contractor is failing or refus-
15 ing to comply with the minority and women-owned business participation
16 requirements as set forth in the state contract and where no waiver from
17 such requirements has been granted, the contracting agency may file a
18 written complaint with the director pursuant to section three hundred
19 sixteen of this article setting forth the facts and circumstances giving
20 rise to the contracting agency's complaint together with a demand for
21 relief. The contracting agency shall serve a copy of such complaint
22 upon the contractor by personal service or by certified mail, return
23 receipt requested. The contractor shall be afforded an opportunity to
24 respond to such complaint in writing.
25 § 6. Section 314 of the executive law, as added by chapter 216 of the
26 laws of 1988, subdivision 2-a as amended by chapter 175 of the laws of
27 2010, subdivision 2-b as added by chapter 409 of the laws of 2018,
28 subdivision 4 as amended and subdivision 5 as added by chapter 399 of
29 the laws of 2014, is amended to read as follows:
30 § 314. Statewide certification program. 1. The director shall promul-
31 gate rules and regulations providing for the establishment of a state-
32 wide certification program including rules and regulations governing the
33 approval, denial or revocation of any such certification including revo-
34 cations for convictions for fraudulently misrepresenting the status of
35 minority or women-owned business enterprises. Such rules shall set forth
36 the maximum personal net worth of a minority group member or woman who
37 may be relied upon to certify a business as a minority-owned business
38 enterprise or women-owned business enterprise with a minimum personal
39 net worth threshold of fifteen million dollars, and may thereafter
40 establish different maximum levels of personal net worth for minority
41 group members and women on an industry-by-industry basis for such indus-
42 tries as the director shall determine. Such regulations relating to the
43 classification of the industry-by-industry personal net worth thresholds
44 above the fifteen million dollar threshold shall consider the personal
45 net worth of the owners of both certified and non-certified businesses,
46 including but not limited to, prime contractors and subcontractors, as
47 well as any such other factors needed to establish such thresholds. Such
48 rules and regulations shall include, but not be limited to, such matters
49 as may be required to ensure that the established procedures thereunder
50 shall at least be in compliance with the code of fair procedure set
51 forth in section seventy-three of the civil rights law.
52 2. For the purposes of this article, the office shall be responsible
53 for verifying businesses as being owned, operated, and controlled by
54 minority group members or women and for certifying such verified busi-
55 nesses. The director shall prepare a directory of certified businesses
56 for use by contracting agencies and contractors in carrying out the
A. 8414 12
1 provisions of this article. The director shall periodically, but no less
2 than annually, update the directory.
3 2-a. (a) The director shall establish a procedure enabling the office
4 to accept New York municipal corporation certification verification for
5 minority and women-owned business enterprise applicants in lieu of
6 requiring the applicant to complete the state certification process. The
7 director shall promulgate rules and regulations to set forth criteria
8 for the acceptance of municipal corporation certification. All eligible
9 municipal corporation certifications shall require business enterprises
10 seeking certification to meet the following standards:
11 (i) have at least fifty-one percent ownership by a minority or a
12 women-owned enterprise and be owned by United States citizens or perma-
13 nent resident aliens;
14 (ii) be an enterprise in which the minority and/or women-ownership
15 interest is real, substantial and continuing;
16 (iii) be an enterprise in which the minority and/or women-ownership
17 has and exercises the authority to control independently the day-to-day
18 business decisions of the enterprise;
19 (iv) be an enterprise authorized to do business in this state;
20 (v) be subject to a physical site inspection to verify the fifty-one
21 percent ownership requirement;
22 (vi) be owned by an individual or individuals, whose ownership,
23 control and operation are relied upon for certification, with a personal
24 net worth that does not exceed [three] fifteen million [five hundred
25 thousand] dollars and such other amount as the director shall set forth
26 in regulations, as adjusted annually for inflation according to the
27 consumer price index; and
28 (vii) be an enterprise that is a small business pursuant to subdivi-
29 sion twenty of section three hundred ten of this article.
30 (b) The director shall work with all municipal corporations that have
31 a municipal minority and women-owned business enterprise program to
32 develop standards to accept state certification to meet the municipal
33 corporation minority and women-owned business enterprise certification
34 standards.
35 (c) The director shall establish a procedure enabling the division to
36 accept federal certification verification for minority and women-owned
37 business enterprise applicants, provided said standards comport with
38 those required by the state minority and women-owned business program,
39 in lieu of requiring the applicant to complete the state certification
40 process. The director shall promulgate rules and regulations to set
41 forth criteria for the acceptance of federal certification.
42 2-b. The director shall establish a procedure enabling an applicant
43 who was a military service member to prove his or her race or ethnicity,
44 date of birth, place of birth and verification of address for purposes
45 of certification of the applicant's business as a minority-owned busi-
46 ness by submission of the DD Form 214 issued to the applicant by the
47 United States department of defense upon such applicant's retirement,
48 separation, or discharge from active duty in the armed forces of the
49 United States, provided the DD Form 214 contains such information, in
50 lieu of requiring the applicant to otherwise prove his or her race or
51 ethnicity. The director shall promulgate rules and regulations to set
52 forth criteria for the acceptance of the DD Form 214 by the office.
53 2-c. (a) Each business applying for minority or women-owned business
54 enterprise certification pursuant to this section must agree to allow:
55 (i) the department of taxation and finance to share its tax information
A. 8414 13
1 with the division; and (ii) the department of labor to share its tax and
2 employer information with the division.
3 (b) Such information provided pursuant to paragraph (a) of this subdi-
4 vision shall be kept confidential by the division as such information is
5 kept by the department of taxation and finance or the department of
6 labor and use of such information shall be limited to the certification
7 application process, or other uses approved or consented to by the busi-
8 ness enterprise or applicant.
9 3. Following application for certification pursuant to this section,
10 the director shall provide the applicant with written notice of the
11 status of the application, including notice of any outstanding deficien-
12 cies, within [thirty] twenty-one days. Within [sixty] forty-five days of
13 submission of a final completed application, the director shall provide
14 the applicant with written notice of a determination by the office
15 approving or denying such certification and, in the event of a denial a
16 statement setting forth the reasons for such denial. Upon a determi-
17 nation denying or revoking certification, the business enterprise for
18 which certification has been so denied or revoked shall, upon written
19 request made within thirty days from receipt of notice of such determi-
20 nation, be entitled to a hearing before an independent hearing officer
21 designated for such purpose by the director. In the event that a request
22 for a hearing is not made within such thirty day period, such determi-
23 nation shall be deemed to be final. The independent hearing officer
24 shall conduct a hearing and upon the conclusion of such hearing, issue a
25 written recommendation to the director to affirm, reverse or modify such
26 determination of the director. Such written recommendation shall be
27 issued to the parties. The director, within thirty days, by order, must
28 accept, reject or modify such recommendation of the hearing officer and
29 set forth in writing the reasons therefor. The director shall serve a
30 copy of such order and reasons therefor upon the business enterprise by
31 personal service or by certified mail return receipt requested. The
32 order of the director shall be subject to review pursuant to article
33 seventy-eight of the civil practice law and rules.
34 4. The director may, after performing an availability analysis and
35 upon a finding that industry-specific factors coupled with personal net
36 worth or small business eligibility requirements pursuant to subdivi-
37 sions nineteen and twenty of section three hundred ten of this article,
38 respectively, have led to the significant exclusion of businesses owned
39 by minority group members or women in that industry, grant provisional
40 MWBE certification status to applicants from that designated industry,
41 provided, however, that all other eligibility requirements pursuant to
42 subdivision seven or fifteen of section three hundred ten of this arti-
43 cle, as applicable, are satisfied. Any industry-based determination made
44 under this section by the director shall be made widely available to the
45 public and posted on the division's website.
46 5. With the exception of provisional MWBE certification, as provided
47 for in subdivision twenty-three of section three hundred ten of this
48 article, all minority and women-owned business enterprise certifications
49 shall be valid for a period of [three] five years.
50 § 7. Section 315 of the executive law, as added by chapter 261 of the
51 laws of 1988, subdivision 3 as amended and subdivisions 4, 5, 6, and 7
52 as added by chapter 175 of the laws of 2010, is amended to read as
53 follows:
54 § 315. Responsibilities of contracting agencies. 1. Each contracting
55 agency shall be responsible for monitoring state contracts under its
56 jurisdiction, and recommending matters to the office respecting non-com-
A. 8414 14
1 pliance with the provisions of this article so that the office may take
2 such action as is appropriate to [insure] ensure compliance with the
3 provisions of this article, the rules and regulations of the director
4 issued hereunder and the contractual provisions required pursuant to
5 this article. All contracting agencies shall comply with the rules and
6 regulations of the office and are directed to cooperate with the office
7 and to furnish to the office such information and assistance as may be
8 required in the performance of its functions under this article.
9 2. Each contracting agency shall provide to prospective bidders a
10 current copy of the directory of certified businesses, and a copy of the
11 regulations required pursuant to sections three hundred twelve and three
12 hundred thirteen of this article at the time bids or proposals are
13 solicited.
14 2-a. To the extent practicable, upon completion of the restrictive
15 period of a procurement, each contracting agency when notifying a
16 contractor of a winning bid award shall also notify any minority or
17 women-owned business enterprise identified in the contractor's submitted
18 utilization plan of such contractor's receipt of the winning bid award.
19 3. Each contracting agency shall report to the director with respect
20 to activities undertaken to promote employment of minority group members
21 and women and promote and increase participation by certified businesses
22 with respect to state contracts and subcontracts. Such reports shall be
23 submitted [periodically, but not less frequently than annually, as
24 required by the director,] no later than May fifteenth of every year and
25 shall include such information as is necessary for the director to
26 determine whether the contracting agency and any contractor to the
27 contracting agency have complied with the purposes of this article,
28 including, without limitation, a summary of all waivers of the require-
29 ments of subdivisions six and seven of section three hundred thirteen of
30 this article allowed by the contracting agency during the period covered
31 by the report, including a description of the basis of the waiver
32 request and the rationale for granting any such waiver and any instances
33 in which the contract agency has deemed a contractor to have committed a
34 violation pursuant to section three hundred sixteen of this article and
35 such other information as the director shall require. Each agency shall
36 also include in such annual report whether or not it has been required
37 to prepare a remedial plan, and, if so, the plan and the extent to which
38 the agency has complied with each element of the plan.
39 4. The division of minority and women's business development shall
40 issue an annual report which: (a) summarizes the report submitted by
41 each contracting agency pursuant to subdivision three of this section;
42 (b) contains such comparative or other information as the director deems
43 appropriate, including but not limited to goals compared to actual
44 participation of minority and women-owned business enterprises in state
45 contracting and a listing of annual participation rates for each agency,
46 the total number of certified minority and women-owned businesses for
47 that reporting year, and the total dollar value of state expenditures on
48 certified minority and women-owned business contracts and subcontracts
49 for that reporting year, to evaluate the effectiveness of the activities
50 undertaken by each such contracting agency to promote increased partic-
51 ipation by certified minority or women-owned businesses with respect to
52 state contracts and subcontracts; (c) contains a summary of all waivers
53 of the requirements of subdivisions six and seven of section three
54 hundred thirteen of this article allowed by each contracting agency
55 during the period covered by the report, including a description of the
56 basis of the waiver request and the contracting agency's rationale for
A. 8414 15
1 granting any such waiver; (d) describes any efforts to create a database
2 or other information storage and retrieval system containing information
3 relevant to contracting with minority and women-owned business enter-
4 prises; and (e) contains a summary of (i) all determinations of
5 violations of this article by a contractor or a contracting agency made
6 during the period covered by the annual report pursuant to section three
7 hundred sixteen-a of this article and (ii) the penalties or sanctions,
8 if any, assessed in connection with such determinations and the ration-
9 ale for such penalties or sanctions. Copies of the annual report shall
10 be provided to the commissioner, the governor, the comptroller, the
11 temporary president of the senate, the speaker of the assembly, the
12 minority leader of the senate, the minority leader of the assembly and
13 shall also be made widely available to the public via, among other
14 things, publication on a website maintained by the division of minority
15 and women's business development.
16 5. Each agency shall include in its annual report to the governor and
17 legislature pursuant to section one hundred sixty-four of [the executive
18 law] this chapter: (a) its annual goals for contracts with minority-
19 owned and women-owned business enterprises; (b) the number of actual
20 contracts issued to minority-owned and women-owned business enterprises;
21 [and] (c) a summary of all waivers of the requirements of subdivisions
22 six and seven of section three hundred thirteen of this article allowed
23 by the reporting agency during the preceding year, including a
24 description of the basis of the waiver request and the rationale for
25 granting such waiver[. Each agency shall also include in such annual
26 report]; (d) whether or not it has been required to prepare a remedial
27 plan, and, if so, the plan and the extent to which the agency has
28 complied with each element of the plan; (e) which expenditures are
29 exempt from participation goals and the rationale for such exemption;
30 and (f) every four years, beginning September fifteenth, two thousand
31 twenty, each agency shall include in such annual report its four-year
32 growth plan pursuant to section three hundred eleven of this article.
33 6. Each contracting agency that substantially fails to [meet the
34 goals supported by the disparity study,] make a good faith effort as
35 defined by regulation of the director, to achieve the maximum feasible
36 participation of minority and women-owned business enterprises in such
37 agency's contracting shall be required to submit to the director a reme-
38 dial action plan to remedy such failure.
39 7. If it is determined by the director that any agency has failed to
40 act in good faith to implement the remedial action plan, pursuant to
41 subdivision six of this section within one year, the director shall
42 provide written notice of such a finding, which shall be publicly avail-
43 able, and direct implementation of remedial actions to:
44 (a) assure that sufficient and effective solicitation efforts to women
45 and minority-owned business enterprises are being made by said agency;
46 (b) divide contract requirements, when economically feasible, into
47 quantities that will expand the participation of women and minority-
48 owned business enterprises;
49 (c) eliminate extended experience or capitalization requirements, when
50 programmatically and economically feasible, that will expand partic-
51 ipation by women and minority-owned business enterprises;
52 (d) identify specific proposed contracts as particularly attractive or
53 appropriate for participation by women and minority-owned business
54 enterprises with such identification to result from and be coupled with
55 the efforts of paragraphs (a), (b), and (c) of this subdivision; and
A. 8414 16
1 (e) upon a finding by the director that an agency has failed to take
2 affirmative measures to implement the remedial plan and to follow any of
3 the remedial actions set forth by the director, and in the absence of
4 any objective progress towards the agency's goals, require some or all
5 of the agency's procurement, for a specified period of time, be placed
6 under the direction and control of another agency or agencies.
7 § 8. Section 316-a of the executive law, as added by chapter 175 of
8 the laws of 2010, is amended to read as follows:
9 § 316-a. Prohibitions in contracts; violations. Every contracting
10 agency shall include a provision in its state contracts expressly
11 providing that any contractor who willfully and intentionally fails to
12 comply with the minority and women-owned participation requirements of
13 this article as set forth in such state contract shall be liable to the
14 contracting agency for liquidated or other appropriate damages and shall
15 provide for other appropriate remedies on account of such breach. A
16 contracting agency that elects to proceed against a contractor for
17 breach of contract as provided in this section shall be precluded from
18 seeking enforcement pursuant to section three hundred sixteen of this
19 article; provided however, that the contracting agency shall include a
20 summary of all enforcement actions undertaken pursuant to this section
21 in its annual report submitted pursuant to subdivision three of section
22 three hundred fifteen of this article.
23 § 8-a. Subdivision 1 of section 143 of the state finance law, as
24 amended by chapter 43 of the laws of 1969, is amended to read as
25 follows:
26 1. Notwithstanding any inconsistent provision of any general or
27 special law, the board, division, department, bureau, agency, officer or
28 commission of the state charged with the duty of preparing plans and
29 specifications for and awarding or entering into contracts for the
30 performance of public work [shall] may require the payment of a fixed
31 sum of money, not exceeding one hundred dollars, for each copy of such
32 plans and specifications, by persons or corporations desiring a copy
33 thereof. Any person or corporation desiring a copy of such plans and
34 specifications and making the deposit required by this section shall be
35 furnished with one copy of the plans and specifications. Notwithstand-
36 ing the foregoing, where payment is required it shall be waived upon
37 request by minority- and women-owned business enterprises certified
38 pursuant to article fifteen-A of the executive law or by service-disa-
39 bled veteran-owned business enterprises certified pursuant to article
40 seventeen-B of the executive law. Such payment may also be waived when
41 such plans and specifications are made available and obtained electron-
42 ically or in any non-paper form from the board, division, department,
43 bureau, agency, officer or commission of the state.
44 § 9. Subdivision 6 of section 163 of the state finance law, as amended
45 by chapter 569 of the laws of 2015, is amended and a new subdivision 6-d
46 is added to read as follows:
47 6. Discretionary buying thresholds. Pursuant to guidelines established
48 by the state procurement council: the commissioner may purchase services
49 and commodities in an amount not exceeding eighty-five thousand dollars
50 without a formal competitive process; state agencies may purchase
51 services and commodities in an amount not exceeding fifty thousand
52 dollars without a formal competitive process; and state agencies may
53 purchase commodities or services from small business concerns or those
54 certified pursuant to articles fifteen-A and seventeen-B of the execu-
55 tive law, or commodities or technology that are recycled or remanufac-
56 tured[, or commodities that are food, including milk and milk products,
A. 8414 17
1 grown, produced or harvested in New York state] in an amount not exceed-
2 ing [two] five hundred thousand dollars without a formal competitive
3 process and for commodities that are food, including milk and milk
4 products, grown, produced or harvested in New York state in an amount
5 not to exceed two hundred thousand dollars, without a formal competitive
6 process.
7 6-d. Pursuant to the authority provided in subdivision six of this
8 section, state agencies shall report annually on a fiscal year basis by
9 July first of the ensuing year to the director of the division of minor-
10 ity and women-owned business development the total number and total
11 value of contracts awarded to businesses certified pursuant to article
12 fifteen-A of the executive law, and with respect to contracts awarded to
13 businesses certified pursuant to article seventeen-B of the executive
14 law such information shall be reported to the division of service-disa-
15 bled veteran-owned business enterprises for inclusion in their respec-
16 tive annual reports.
17 § 10. Subparagraph (i) of paragraph (b) of subdivision 3 and paragraph
18 (a) of subdivision 8 of section 2879 of the public authorities law,
19 subparagraph (i) of paragraph (b) of subdivision 3 as amended by chapter
20 174 of the laws of 2010 and paragraph (a) of subdivision 8 as amended by
21 chapter 844 of the laws of 1992, are amended to read as follows:
22 (i) for the selection of such contractors on a competitive basis, and
23 provisions relating to the circumstances under which the board may by
24 resolution waive competition, including, notwithstanding any other
25 provision of law requiring competition, the purchase of goods or
26 services from small business concerns [or] those certified as minority
27 or women-owned business enterprises, or goods or technology that are
28 recycled or remanufactured, in an amount not to exceed [two] five
29 hundred thousand dollars without a formal competitive process;
30 (a) Each corporation shall annually submit its report on procurement
31 contracts to the division of the budget and copies thereof to the
32 department of audit and control, the department of economic development,
33 the senate finance committee and the assembly ways and means committee.
34 Such report shall include the total number and total dollar value of
35 contracts awarded to certified minority and women-owned business enter-
36 prises pursuant to subparagraph (i) of paragraph (b) of subdivision
37 three of this section.
38 § 11. Paragraph (a) of subdivision 3 of section 139-j of the state
39 finance law is amended by adding two new subparagraphs 10 and 11 to read
40 as follows:
41 (10) Complaints by minority-owned business enterprises or women-owned
42 business enterprises, certified as such by the division of minority and
43 women's business development, to the minority and women-owned business
44 enterprise statewide advocate concerning the procuring governmental
45 entity's failure to comply with the requirements of section three
46 hundred fifteen of the executive law;
47 (11) Communications between the minority and women-owned business
48 enterprise statewide advocate and the procuring governmental entity in
49 furtherance of an investigation of the minority and women-owned business
50 enterprise statewide advocate pursuant to section three hundred twelve-a
51 of the executive law.
52 § 12. Subdivision 6 of section 8 of the public buildings law, as
53 amended by chapter 840 of the laws of 1980, is amended to read as
54 follows:
55 6. All contracts for amounts in excess of five thousand dollars for
56 the work of construction, reconstruction, alteration, repair or improve-
A. 8414 18
1 ment of any state building, whether constructed or to be constructed
2 must be offered for public bidding and may be awarded to the lowest
3 responsible and reliable bidder, as will best promote the public inter-
4 est, by the said department or other agency with the approval of the
5 comptroller for the whole or any part of the work to be performed, and,
6 in the discretion of the said department or other agency, such contracts
7 may be sublet; provided, however, that no such contract shall be awarded
8 to a bidder other than the lowest responsible and reliable bidder,
9 except for certain contracts awarded to minority or women-owned business
10 enterprises as provided herein, without the written approval of the
11 comptroller. When a proposal consists of unit prices of items specified
12 to be performed, except for certain contracts awarded to minority or
13 women-owned business enterprises as provided herein, the lowest bid
14 shall be deemed to be that which specifically states the lowest gross
15 sum for which the entire work will be performed, including all the items
16 specified in the proposal thereof. The lowest bid shall be determined by
17 the commissioner of general services on the basis of the gross sum for
18 which the entire work will be performed, arrived at by a correct compu-
19 tation of all the items specified in the proposal therefor at the unit
20 prices contained in the bid. Provided, however, that where a responsi-
21 ble and reliable bidder certified as a minority-owned business enter-
22 prise or women-owned business enterprise pursuant to article fifteen-A
23 of the executive law submits a bid of one million four hundred thousand
24 dollars or less, as adjusted annually for inflation beginning January
25 first, two thousand twenty, the bid of the minority or women-owned busi-
26 ness enterprise shall be deemed the lowest bid unless it exceeds the bid
27 of the lowest bidder by more than ten percent.
28 § 13. The opening paragraph of subdivision (h) of section 121 of chap-
29 ter 261 of the laws of 1988, amending the state finance law and other
30 laws relating to the New York state infrastructure trust fund, as
31 amended by section 1 of part OOO of chapter 59 of the laws of 2018, is
32 amended to read as follows:
33 The provisions of sections sixty-two through sixty-six of this act
34 shall expire and be deemed repealed on December thirty-first, two thou-
35 sand [nineteen] twenty-four, except that:
36 § 14. The executive law is amended by adding a new article 28 to read
37 as follows:
38 ARTICLE 28
39 WORKFORCE DIVERSITY PROGRAM
40 Section 821. Definitions.
41 822. Workforce participation goals.
42 823. Reporting.
43 824. Enforcement.
44 825. Powers and responsibilities of the division.
45 826. Severability.
46 § 821. Definitions. As used in this article, the following terms shall
47 have the following meanings:
48 1. "Contractor" shall mean an individual, a business enterprise,
49 including a sole proprietorship, a partnership, a corporation, a not-
50 for-profit corporation, or any other party to a state contract, or a
51 bidder in conjunction with the award of a state contract or a proposed
52 party to a state contract.
53 2. "Department" shall mean the department of labor.
54 3. "Director" shall mean the director of the division of minority and
55 women's business development.
A. 8414 19
1 4. "Disparity study" shall mean the most recent study of disparities
2 between the utilization of minority group members and women in the
3 performance of state contracts and the availability of minority group
4 members and women to perform such work by the director pursuant to arti-
5 cle fifteen-A of this chapter.
6 5. "Division" shall mean the department of economic development's
7 division of minority and women's business development.
8 6. "Minority group member" shall mean a United States citizen or
9 permanent resident alien who is and can demonstrate membership in one of
10 the following groups:
11 (a) Black persons having origins in any of the Black African racial
12 groups;
13 (b) Hispanic/Latino persons of Mexican, Puerto Rican, Dominican,
14 Cuban, Central or South American of either Indian or Hispanic origin,
15 regardless of race;
16 (c) Native American or Alaskan native persons having origins in any of
17 the original peoples of North America;
18 (d) Asian and Pacific Islander persons having origins in any of the
19 Far East countries, South East Asia, the Indian subcontinent or the
20 Pacific Islands.
21 7. "State agency" shall mean (a)(i) any state department, or (ii) any
22 division, board, commission or bureau of any state department, or (iii)
23 the state university of New York and the city university of New York,
24 including all their constituent units except community colleges and the
25 independent institutions operating statutory or contract colleges on
26 behalf of the state, or (iv) a board, a majority of whose members are
27 appointed by the governor or who serve by virtue of being state officers
28 or employees as defined in subparagraph (i), (ii) or (iii) of paragraph
29 (i) of subdivision one of section seventy-three of the public officers
30 law.
31 (b) a "state authority," as defined in subdivision one of section two
32 of the public authorities law, and the following:
33 Albany County Airport Authority;
34 Albany Port District Commission;
35 Alfred, Almond, Hornellsville Sewer Authority;
36 Battery Park City Authority;
37 Cayuga County Water and Sewer Authority;
38 (Nelson A. Rockefeller) Empire State Plaza Performing Arts Center
39 Corporation;
40 Industrial Exhibit Authority;
41 Livingston County Water and Sewer Authority;
42 Long Island Power Authority;
43 Long Island Rail Road;
44 Long Island Market Authority;
45 Manhattan and Bronx Surface Transit Operating Authority;
46 Metro-North Commuter Railroad;
47 Metropolitan Suburban Bus Authority;
48 Metropolitan Transportation Authority;
49 Natural Heritage Trust;
50 New York City Transit Authority;
51 New York Convention Center Operating Corporation;
52 New York State Bridge Authority;
53 New York State Olympic Regional Development Authority;
54 New York State Thruway Authority;
55 Niagara Falls Public Water Authority;
56 Niagara Falls Water Board;
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1 Port of Oswego Authority;
2 Power Authority of the State of New York;
3 Roosevelt Island Operating Corporation;
4 Schenectady Metroplex Development Authority;
5 State Insurance Fund;
6 Staten Island Rapid Transit Operating Authority;
7 State University Construction Fund;
8 Syracuse Regional Airport Authority;
9 Triborough Bridge and Tunnel Authority;
10 Upper Mohawk Valley Regional Water Board;
11 Upper Mohawk Valley Regional Water Finance Authority;
12 Upper Mohawk Valley Memorial Auditorium Authority;
13 Urban Development Corporation and its subsidiary corporations.
14 (c) the following only to the extent of state contracts entered into
15 for its own account or for the benefit of a state agency as defined in
16 paragraph (a) or (b) of this subdivision:
17 Dormitory Authority of the State of New York;
18 Facilities Development Corporation;
19 New York State Energy Research and Development Authority;
20 New York State Science and Technology Foundation.
21 8. "State contract" shall mean: (a) a written agreement in excess of
22 one hundred thousand dollars whereby a state agency is committed to
23 expend or does expend funds for the acquisition, construction, demoli-
24 tion, replacement, major repair or renovation of real property and
25 improvements thereon; and (b) a written agreement in excess of one
26 hundred thousand dollars whereby the owner of a state assisted housing
27 project is committed to expend or does expend funds for the acquisition,
28 construction, demolition, replacement, major repair or renovation of
29 real property and improvements thereon for such project.
30 9. "Subcontractor" shall mean any individual or business enterprise
31 that provides goods or services to any individual or business for use in
32 the performance of a state contract, whether or not such goods or
33 services are provided to a party to a state contract.
34 § 822. Workforce participation goals. 1. The director, in consulta-
35 tion with the department, shall develop aspirational goals for the
36 utilization of minority group members and women in each construction
37 trade, profession, and occupation.
38 (a) Aspirational goals for the utilization of minority group members
39 and women must set forth the expected participation of minority group
40 members and women in each construction trade, profession, and occupation
41 and shall be expressed as a percentage of the total hours of work to be
42 performed by each trade, profession, and occupation based on the avail-
43 ability of minority group members and women within each construction
44 trade, profession, and occupation.
45 (i) The aspirational goals shall set forth separate levels of expected
46 participation by men and women for each minority group, and for Cauca-
47 sian women, in each construction trade, profession, and occupation.
48 (ii) The director may establish aspirational goals for the expected
49 participation of minority group members and women for municipalities
50 where the director deems feasible and appropriate.
51 (iii) The director shall, in establishing the aspirational goals,
52 consider the findings of the most recent disparity study and any rele-
53 vant data published by the United States Census Bureau.
54 (b) The director shall update the aspirational goals on a periodic
55 basis, no less than biannually.
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1 2. State agencies shall, for each invitation for bids, request for
2 proposals, or other solicitation that will result in the award of a
3 state contract, set forth the expected degree of workforce participation
4 by minority group members and women.
5 (a) Each workforce participation goal established by a state agency
6 shall set forth the expected level of participation by minority group
7 members and women in the performance of each trade, profession, and
8 occupation required in the performance of the contract.
9 (b) Goals for the participation of minority group members and women
10 shall set forth separate goals for each of the following groups in each
11 construction trade, profession, and occupation:
12 (i) Black men;
13 (ii) Black women;
14 (iii) Hispanic men;
15 (iv) Hispanic women;
16 (v) Native American men;
17 (vi) Native American women;
18 (vii) Asian men;
19 (viii) Asian women;
20 (ix) Caucasian women.
21 (c) In establishing workforce participation goals, state agencies
22 shall consider factors including, but not limited to:
23 (i) the findings of the most recent disparity study;
24 (ii) any relevant data published by the United States Census Bureau;
25 and
26 (iii) if applicable, any aspirational goal established by the divi-
27 sion.
28 (d) In any case, where a state agency establishes a workforce partic-
29 ipation goal on an invitation for bids, request for proposals, or other
30 solicitation that will result in the award of a state contract for
31 construction that deviates from the aspirational goal for work or
32 service in the county or municipality in which the work or service will
33 be performed, the state agency shall document numerical evidence demon-
34 strating that the application of the aspirational goal would not be
35 practical, feasible, or appropriate.
36 3. Every contractor responding to an invitation for bids, request for
37 proposals, or other solicitation that will result in the award of a
38 state contract subject to workforce participation goals pursuant to this
39 section shall agree to make a good faith effort to achieve such work-
40 force participation goal or request a waiver of such goal.
41 (a) A contractor that certifies that it will make a good faith effort
42 to achieve a workforce participation goal shall provide with its
43 response to the applicable invitation for bids, request for proposals,
44 or other solicitation:
45 (i) A certification stating that the contractor will make a good faith
46 effort to achieve the applicable workforce participation goal and will
47 contractually require any subcontractors to the contractor to make a
48 good faith effort to achieve the applicable workforce participation goal
49 in any subcontracted work;
50 (ii) The level of anticipated participation by minority group members
51 and women as employees to the contractor, or, if the state agency has
52 specifically indicated that such documentation is not required as part
53 of the response to the invitation for bids, request for proposals, or
54 other solicitation, a date certain for the submission of such documenta-
55 tion after the award of the state contract;
A. 8414 22
1 (iii) A list of all subcontractors anticipated to perform work on the
2 state contract and the level of anticipated participation by minority
3 group members and women as employees to each subcontractor, or, if the
4 state agency has specifically indicated that such documentation is not
5 required as part of the response to the invitation for bids, request for
6 proposals, or other solicitation, a date certain for the submission of
7 such documentation after the award of the state contract; and
8 (iv) Such other information as the contracting state agency shall
9 require.
10 (b) A contractor that requests a waiver of a workforce participation
11 goal shall provide with its response to the applicable invitation for
12 bids, request for proposals, or other solicitation:
13 (i) Numerical evidence setting forth why the achievement of the work-
14 force participation goal is not practical, feasible, or appropriate in
15 light of the construction trades, professions, and occupations required
16 to perform the work of the state contract;
17 (ii) Documentation of the contractor's efforts, and any efforts by
18 subcontractors to the contractor, to promote the inclusion of minority
19 group members and women in construction trades, professions, and occupa-
20 tions required in the performance of the state contract;
21 (iii) The level of anticipated participation by minority group members
22 and women in each of the construction trades, professions, and occupa-
23 tions required in the performance of the work of the state contract;
24 (iv) A list of all subcontractors anticipated to perform work on the
25 state contract and the level of anticipated participation by minority
26 group members and women as employees to each subcontractor; and
27 (v) Any other relevant information evidencing that the contractor's
28 achievement of the workforce participation goal would not be practical,
29 feasible, or appropriate.
30 4. A state agency may not award a state contract to a contractor
31 unless the contractor has (i) certified that it will make a good faith
32 effort to achieve the applicable workforce participation goal and
33 provided documentation of the workforce anticipated to perform the work
34 of the state contract or (ii) submitted a waiver request which the state
35 agency deems to reflect the maximum feasible participation of minority
36 group members and women in each of the construction trades, professions,
37 and occupations required in performance of the work of the state
38 contract.
39 (a) In the event that a contractor submits a certification or waiver
40 request that is accepted by the state agency, the state agency shall
41 establish in the state contract the expected level of participation by
42 minority group members and women in each of the construction trades,
43 professions, and occupations required in performance of the work of the
44 state contract, require that the contractor make good faith efforts to
45 achieve such workforce participation goals, require that the contractor
46 require any subcontractors to make a good faith effort to achieve the
47 applicable workforce participation goal in any subcontracted work.
48 (b) In the event that a contractor fails to submit a certification,
49 waiver request, or any other information required by the state agency,
50 or the state agency determines that a contractor's waiver request does
51 not demonstrate that the applicable workforce participation goal is
52 impractical, unfeasible, or inappropriate, the state agency shall notify
53 the contractor of the deficiency in writing and provide the contractor
54 five business days to remedy the noticed deficiency. A state agency may
55 reject any bid or proposal of a contractor that fails to timely respond
A. 8414 23
1 to a notice of deficiency or to provide documentation remedying the
2 deficiency to the satisfaction of the state agency.
3 (c) Where failure to remedy any notified deficiency in the workforce
4 utilization plan is a ground for disqualification, that issue and all
5 other grounds for disqualification shall be stated in writing by the
6 contracting state agency. The director shall establish via regulation,
7 rules for state contracting agencies aimed at the measurement, reduction
8 and elimination of erroneous business disqualifications including a
9 process affording a contractor notice and an opportunity to be heard
10 related to such disqualifications.
11 § 823. Reporting. 1. State contracts shall require contractors to
12 submit, and to require any subcontractors to submit, to the contracting
13 state agency reports documenting the hours worked by employees of the
14 contractor and any subcontractors in the performance of the work of the
15 state contract. Such reports shall be submitted no less frequently than
16 monthly for state contracts for construction. Such reports shall iden-
17 tify in the aggregate the race, ethnicity, gender, and trade, profes-
18 sion, or occupation of each employee performing work on a state
19 contract.
20 2. State agencies shall submit periodic reports to the director, or
21 the designee of the director, concerning the participation of minority
22 group members and women in state contracts let by such agencies and such
23 state agencies' compliance with this article. Such reports shall be
24 submitted at such time, and include such information, as the director
25 shall require in regulations. State agencies shall make available their
26 facilities, books, and records for inspection, upon reasonable notice,
27 by the director or the director's designee.
28 3. The department shall provide such assistance as the director shall
29 require in carrying out the requirements of this section.
30 § 824. Enforcement. 1. Where it appears that a contractor cannot,
31 after a good faith effort, meet the workforce participation goals set
32 forth in a particular state contract, a contractor may file a written
33 application with the contracting state agency requesting a partial or
34 total waiver of such requirements. Such request shall set forth the
35 reasons for such contractor's inability to meet the workforce partic-
36 ipation goal, specifically describe the reasons for any deviations from
37 the anticipated workforce participation goal set forth in the contrac-
38 tor's bid or proposal leading to the award of the state contract, and
39 describe the efforts by the contractor and any subcontractors to achieve
40 the maximum feasible participation of minority group members and women
41 in the performance of the work of the state contract. Where the contrac-
42 tor's inability to achieve the workforce participation goal on a state
43 contract is attributable to the failure of one or more subcontractors to
44 make good faith efforts to achieve the maximum feasible participation of
45 minority group members and women in the performance of the work of the
46 state contract, the contractor shall identify such subcontractor or
47 subcontractors to the contracting state agency.
48 2. A state agency shall grant a request for a waiver of workforce
49 participation goals on a state contract where:
50 (a) The contractor demonstrates that the contractor and its subcon-
51 tractors made good faith efforts to achieve the workforce participation
52 goal on the state contract, and that insufficient minority group members
53 or women were available in the construction trades, professions, and
54 occupations required to perform the work of the state contract; or
55 (b) The contractor contractually required each of its subcontractors
56 to make a good faith effort to achieve the maximum feasible partic-
A. 8414 24
1 ipation of minority group members and women in the performance of the
2 subcontracted work, periodically monitored such subcontractors' deploy-
3 ment of minority group members and women in the performance of the
4 subcontracted work, provided notice to such subcontractors of any defi-
5 ciencies in their deployment of minority group members and women in the
6 performance of such subcontracted work, and could not achieve the work-
7 force participation goal for one or more construction trades,
8 professions, or occupations without the good faith efforts of such
9 subcontractors.
10 § 825. Powers and responsibilities of the division. 1. The director
11 shall post to the website of the division on or before October first of
12 each year the aspirational goals for the utilization of minority group
13 members and women in construction required pursuant to section eight
14 hundred twenty-two of this article.
15 2. The director shall promulgate rules and regulations for the imple-
16 mentation of this article, including, but not limited to, procedures for
17 the submission of certifications and workforce utilization plans by
18 contractors, criteria for granting waivers of workforce participation
19 goals, and the contents of reports by state agencies concerning their
20 implementation of the requirements of this article.
21 3. The division shall, from time to time, review the facilities,
22 books, and records of state agencies to ascertain the accuracy of their
23 reports and their compliance with the requirements of this article. The
24 department shall provide such assistance as the director shall require
25 in carrying out the requirements of this section.
26 § 826. Severability. If any clause, sentence, paragraph, section or
27 part of this article shall be adjudged by any court of competent juris-
28 diction to be invalid, the judgment shall not affect, impair or invali-
29 date the remainder thereof, but shall be confined in its operation to
30 the clause, sentence, paragraph, section or part of this article direct-
31 ly involved in the controversy in which the judgment shall have been
32 rendered.
33 § 15. Severability. If any clause, sentence, paragraph, subdivision,
34 section or part contained in any part of this act shall be adjudged by
35 any court of competent jurisdiction to be invalid, such judgment shall
36 not affect, impair, or invalidate the remainder thereof, but shall be
37 confined in its operation to the clause, sentence, paragraph, subdivi-
38 sion, section or part contained in any part thereof directly involved in
39 the controversy in which such judgment shall have been rendered. It is
40 hereby declared to be the intent of the legislature that this act would
41 have been enacted even if such invalid provisions had not been included
42 herein.
43 § 16. This act shall take effect on the one hundred eightieth day
44 after it shall have become a law, provided, however, that the provisions
45 of section twelve of this act shall apply to any state contracts
46 executed and entered into on or after January 1, 2020 and shall exclude
47 such contracts that have been previously awarded or have pending bids or
48 pending requests for proposals issued prior to such date, and shall not
49 apply to projects that have commenced project design prior to such date;
50 provided, further, that:
51 (a) the amendments to article 15-A of the executive law, made by
52 sections one, two, three, four, five, six, seven and eight of this act,
53 shall not affect the expiration of such article and shall expire and be
54 deemed expired therewith;
A. 8414 25
1 (b) the amendments to section 163 of the state finance law, made by
2 section nine of this act, shall not affect the expiration and repeal of
3 such section, and shall expire and be deemed repealed therewith;
4 (c) the amendments to section 139-j of the state finance law, made by
5 section eleven of this act, shall not affect the expiration and repeal
6 of such section, and shall expire and be deemed repealed therewith; and
7 (d) section fourteen of this act shall expire and be deemed repealed
8 December 31, 2024.
