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A08414 Summary:

BILL NOA08414
 
SAME ASSAME AS S06575
 
SPONSORBichotte
 
COSPNSRTitus, Peoples-Stokes, Dickens, Wright, Blake, Jacobson, Weinstein, Taylor, Simotas, Otis, Vanel, Rodriguez, Seawright, Reyes
 
MLTSPNSR
 
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 ).
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A08414 Memo:

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.
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A08414 Text:



 
                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;

        A. 8414                            20
 
     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.

        A. 8414                            21
 
     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.
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