|SAME AS||SAME AS S06575|
|COSPNSR||Titus, Peoples-Stokes, Dickens, Wright, Blake, Jacobson, Weinstein, Taylor, Simotas, Otis, Vanel, Rodriguez, Seawright, Reyes|
|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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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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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 [ five14 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. LBD12034-01-9A. 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 [ five23 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; andA. 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 economic3 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 advocate9 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 the24 department of economic development to be used to answer questions25 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 [ enterprise51 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 AugustA. 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 hundredths3 percent]; 4 (d) construction related professional services industry for certified 5 women-owned business enterprises[ : eleven and thirty-two hundredths6 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 hundredths11 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 hundredths18 percent]; 19 (j) overall agency total dollar value of procurement for certified 20 women-owned business enterprises[ : twelve and thirty-nine hundredths21 percent]; and 22 (k) overall agency total dollar value of procurement for certified 23 minority, women-owned business enterprises[ : twenty-eight and ninety-two24 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 to33 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; [ and29 (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 theA. 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 contracting11 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 reasonable55 period of time as established by the director]; shall require the 56 contracting agency to notify the contractor in writing within a periodA. 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 madeA. 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 theA. 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 hundred25 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 informationA. 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, as24 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 forA. 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 executive18 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 annual26 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 the34 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; andA. 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 respondA. 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.