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A08549 Summary:

BILL NOA08549C
 
SAME ASSAME AS S07578-C
 
SPONSORBurdick
 
COSPNSRGallagher, Meeks, Seawright, Santabarbara, Englebright, Giglio JM, Hevesi, Sayegh, Lawler, Woerner, Gonzalez-Rojas, Sillitti, Stern, Ra, DeStefano, Giglio JA, Simon, Epstein, McDonald
 
MLTSPNSRCook
 
Amd §162, St Fin L
 
Relates to preferred source status for entities that provide employment to certain persons; provides for the repeal of certain provisions upon the expiration thereof.
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A08549 Actions:

BILL NOA08549C
 
12/13/2021referred to governmental operations
01/05/2022referred to governmental operations
03/25/2022amend and recommit to governmental operations
03/25/2022print number 8549a
05/18/2022amend (t) and recommit to governmental operations
05/18/2022print number 8549b
05/19/2022amend and recommit to governmental operations
05/19/2022print number 8549c
05/24/2022reported referred to ways and means
05/31/2022reported referred to rules
06/01/2022reported
06/01/2022rules report cal.549
06/01/2022substituted by s7578c
 S07578 AMEND=C MANNION
 12/08/2021REFERRED TO RULES
 01/05/2022REFERRED TO PROCUREMENT AND CONTRACTS
 03/24/2022AMEND AND RECOMMIT TO PROCUREMENT AND CONTRACTS
 03/24/2022PRINT NUMBER 7578A
 04/26/20221ST REPORT CAL.828
 04/27/20222ND REPORT CAL.
 05/02/2022ADVANCED TO THIRD READING
 05/23/2022AMENDED ON THIRD READING (T) 7578B
 05/24/2022AMENDED ON THIRD READING 7578C
 05/31/2022PASSED SENATE
 05/31/2022DELIVERED TO ASSEMBLY
 05/31/2022referred to ways and means
 06/01/2022substituted for a8549c
 06/01/2022ordered to third reading rules cal.549
 06/01/2022passed assembly
 06/01/2022returned to senate
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A08549 Memo:

NEW YORK STATE ASSEMBLY
MEMORANDUM IN SUPPORT OF LEGISLATION
submitted in accordance with Assembly Rule III, Sec 1(f)
 
BILL NUMBER: A8549C
 
SPONSOR: Burdick
  TITLE OF BILL: An act to amend the state finance law, in relation to preferred source status for entities that provide employment to certain persons; and providing for the repeal of certain provisions upon the expiration ther- eof   PURPOSE: To modernize the preferred source statute   SUMMARY OF PROVISIONS: Section one modernizes multiple terms within the preferred source stat- ute including references to "workshops" and "severely" disabled. It also creates new thresholds for what percentage of a preferred source contract must be performed by disabled, or otherwise qualified, persons to receive preferred source status. The threshold for discretionary spending is increased and outdated reporting requirements are removed. Finally, it clarifies what entities are captured by the statute and expands when the program would be triggered. Section two provides for an immediate effective date.   JUSTIFICATION: § 162 were enacted over forty-five years ago with minimal changes being made since 1995. This legislation is intended to provide some much-needed modernization to better reflect how procurement is effectuated in the twenty-first century. Archaic terms such as workshop and severely disabled are used throughout showing a lack of connection to today's world. The preferred source program currently relies on multiple guidance docu- ments from its overseeing agency and this legislation seeks to codify those practices for ease of use and transparency. The program is also hampered by a low discretionary purchasing threshold that is at least $200,000 lower than other comparable thresholds in other parts of State Law. Finally, the use of corporate partners has been in place for over a decade and its reference as a pilot program in the current statute belies the reality that the pilot, was sun settled many years ago. Corporate partnering provides significant competitive integrated employ- ment opportunities. Additionally, the requirement for utilizing preferred sources should be expanded to those receiving workforce devel- opment grants to increase opportunities for disabled workers across the State. If you are receiving significant workforce development dollars from the State there is no reason to leave these underserved communities out of your supply chain diversification- goals. Doing so cuts across the very notion of why the State decided to create a preferred source program all those years ago.   LEGISLATIVE HISTORY: This is a new bill.   FISCAL IMPLICATIONS: There are no fiscal impacts to the State.   EFFECTIVE DATE: This act shall take effect immediately; provided that section one of this act shall expire and be deemed repealed three years after such effective date and this act shall not apply to any contracts or requests for proposals issued by government entities before such date.
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A08549 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                         8549--C
 
                               2021-2022 Regular Sessions
 
                   IN ASSEMBLY
 
                                    December 13, 2021
                                       ___________
 
        Introduced  by  M. of A. BURDICK, GALLAGHER, MEEKS, SEAWRIGHT, SANTABAR-
          BARA, ENGLEBRIGHT,  J. M. GIGLIO,  HEVESI,  SAYEGH,  LAWLER,  WOERNER,
          GONZALEZ-ROJAS, SILLITTI, STERN, RA, DeSTEFANO, J. A. GIGLIO, SIMON --
          Multi-Sponsored  by  -- M. of A. COOK -- read once and referred to the
          Committee on Governmental Operations -- recommitted to  the  Committee
          on  Governmental Operations in accordance with Assembly Rule 3, sec. 2
          -- committee discharged, bill amended, ordered  reprinted  as  amended
          and  recommitted to said committee -- again reported from said commit-
          tee with amendments, ordered reprinted as amended and  recommitted  to
          said  committee -- again reported from said committee with amendments,
          ordered reprinted as amended and recommitted to said committee
 
        AN ACT to amend the state finance law, in relation to  preferred  source
          status  for  entities  that provide employment to certain persons; and
          providing for the repeal of certain  provisions  upon  the  expiration
          thereof
 
          The  People of the State of New York, represented in Senate and Assem-
        bly, do enact as follows:
 
     1    Section 1. Paragraphs d, e and f of subdivision 2, subparagraph  (iii)
     2  of paragraph a and the opening paragraph of paragraph b of subdivision 4
     3  of  section 162 of the state finance law, paragraphs d and e of subdivi-
     4  sion 2 as amended and paragraph f of subdivision 2 as added  by  chapter
     5  501 of the laws of 2002, subparagraph (iii) of paragraph a and the open-
     6  ing  paragraph of paragraph b of subdivision 4 as added by chapter 83 of
     7  the laws of 1995, are amended to read as follows:
     8    d. Commodities and services produced by any qualified charitable  non-
     9  profit-making  agency for other [severely] disabled persons approved for
    10  such purposes by the commissioner of education,  or  incorporated  under
    11  the laws of this state and approved for such purposes by the commission-
    12  er of education;
    13    e.  Commodities  and services produced by a qualified veterans' [work-
    14  shop] entity providing job and employment-skills  training  to  veterans
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD13840-06-2

        A. 8549--C                          2
 
     1  where  such a [workshop] entity is operated by the United States depart-
     2  ment of veterans affairs and is  manufacturing  products  or  performing
     3  services within this state and where such [workshop] entity  is approved
     4  for such purposes by the commissioner of education; or
     5    f.  Commodities and services produced by any qualified charitable non-
     6  profit-making [workshop] entity for veterans approved for such  purposes
     7  by the commissioner of education, or incorporated under the laws of this
     8  state and approved for such purposes by the commissioner of education.
     9    (iii) When commodities are available, in the form, function and utili-
    10  ty  required by, a state agency or political subdivision or public bene-
    11  fit corporation having their own purchasing agency, and such commodities
    12  are not available pursuant to subparagraphs (i) and (ii) of  this  para-
    13  graph,  said  commodities  shall then be purchased from a qualified non-
    14  profit-making agency for other [severely] disabled persons, a  qualified
    15  special  employment  program  for  mentally  ill persons, or a qualified
    16  veterans' [workshop] entity; provided,  however,  the  preferred  source
    17  shall perform fifty percent or more of the work;
    18    When  services  are  available,  in  the  form,  function  and utility
    19  required by, a state agency or political subdivision or  public  benefit
    20  corporation  having their own purchasing agency, equal priority shall be
    21  accorded the services rendered and offered for sale  by  qualified  non-
    22  profit-making  agencies for the blind and those for the other [severely]
    23  disabled, by qualified special  employment  programs  for  mentally  ill
    24  persons  and  by  qualified  veterans'  [workshops]  entities; provided,
    25  however, the preferred source shall perform fifty percent or more of the
    26  work. In the case of services:
    27    § 2. Subdivisions  6, 7 and 8 of section 162 of the state finance law,
    28  subdivisions 6 and 8 as added by chapter 83 of   the   laws   of   1995,
    29  paragraphs a and d of subdivision 6 as amended by section 164 of subpart
    30  B  of  part C of chapter 62 of the laws of 2011, paragraph e of subdivi-
    31  sion 6 as amended by chapter 265 of the laws of 2013, subdivision  7  as
    32  amended  by  chapter 426 of the laws of 2002 and paragraph a of subdivi-
    33  sion 8 as amended by chapter 95 of the laws of 2000, are amended to read
    34  as follows:
    35    6. Prices charged by agencies for the blind, other [severely] disabled
    36  and veterans' [workshops] entity.
    37    a. Except with respect to the correctional industries program  of  the
    38  department  of  corrections  and  community supervision, it shall be the
    39  duty of the commissioner to determine, and from time to time review, the
    40  prices of all commodities and to  approve  the  price  of  all  services
    41  provided  by  preferred  sources as specified in this section offered to
    42  state agencies, political subdivisions or  public  benefit  corporations
    43  having  their own purchasing office. The commissioner's price review and
    44  approval shall not be required for any purchases below one hundred thou-
    45  sand dollars.
    46    b. In determining and revising  the  prices  of  such  commodities  or
    47  services, consideration shall be given to the reasonable costs of labor,
    48  materials  and  overhead  necessarily incurred by such preferred sources
    49  under efficient methods  of  procurement,  production,  performance  and
    50  administration;  however, the prices of such products and services shall
    51  be as close to prevailing market price as practicable, but in  no  event
    52  greater  than  fifteen  percent  above[,]  the  prevailing market prices
    53  [among responsive offerors] for the same or  equivalent  commodities  or
    54  services.
    55    c.  Such qualified charitable non-profit-making agencies for the blind
    56  and other [severely] disabled may make purchases of materials, equipment

        A. 8549--C                          3
 
     1  or supplies, except printed material,  from  centralized  contracts  for
     2  commodities  in  accordance  with  the  conditions  set by the office of
     3  general services; provided that the qualified charitable non-profit-mak-
     4  ing  agency for the blind or other [severely] disabled shall accept sole
     5  responsibility for any payment due the vendor.
     6    d. Such qualified charitable non-profit-making agencies for the  blind
     7  and other [severely] disabled may make purchases of materials, equipment
     8  and  supplies directly from the correctional industries program adminis-
     9  tered by the commissioner  of  corrections  and  community  supervision,
    10  subject  to  such rules as may be established from time to time pursuant
    11  to the correction law; provided that the qualified  charitable  non-pro-
    12  fit-making  agency  for  the  blind  or  other [severely] disabled shall
    13  accept sole  responsibility  for  any  payment  due  the  department  of
    14  corrections and community supervision.
    15    e.  The  commissioner  of  the  office of children and family services
    16  shall appoint the New York state commission  for  the  blind,  or  other
    17  non-profit-making  agency,  other than the agency representing the other
    18  [severely] disabled, to facilitate  the  distribution  of  orders  among
    19  qualified non-profit-making charitable agencies for the blind. The state
    20  commissioner  of  education  shall  appoint  a non-profit-making agency,
    21  other than the agency representing the blind, to facilitate the distrib-
    22  ution of orders among qualified  non-profit-making  charitable  agencies
    23  for   the  other  [severely]  disabled  and  the  veterans'  [workshops]
    24  entities. The state commissioner of mental health shall  facilitate  the
    25  distribution of orders among qualified special employment programs oper-
    26  ated  or  approved  by  the office of mental health serving mentally ill
    27  persons.
    28    f. The commissioner may  request  the  state  comptroller  to  conduct
    29  audits and examinations to be made of all records, books and data of any
    30  agency  for  the  blind  or  the  other [severely] disabled, any special
    31  employment program for mentally ill persons or any veterans' [workshops]
    32  entity qualified under this section to determine the costs  of  manufac-
    33  ture  or  the  rendering  of  services  and the manner and efficiency of
    34  production and administration  of  such  agency  or  special  employment
    35  program  or  veterans' [workshop] entity with relation to any product or
    36  services purchased by a state agency or political subdivision or  public
    37  benefit  corporation  and to furnish the results of such audit and exam-
    38  ination to the commissioner for such action as he or she may deem appro-
    39  priate under this section.
    40    7. Partnering with preferred sources. [The commissioner of the  appro-
    41  priate appointing agency as identified in paragraph e of subdivision six
    42  of  this  section,  shall  conduct  one  or more pilot studies whereby a
    43  private vendor may be accorded preferred source status for  purposes  of
    44  this  section. The pilot studies shall seek to ascertain the benefits of
    45  partnerships  between  private  industry  and  those  entities  accorded
    46  preferred  source  status as specified in this section. Preferred source
    47  status under a  partnering  arrangement  may]  Private  vendors  may  be
    48  accorded  preferred source status but only [be accorded] when a proposal
    49  to a soliciting agency for commodities or services  includes  a  binding
    50  agreement  with  one  or  more of the entities accorded preferred source
    51  status under this section. The binding agreement shall provide that:
    52    (i) The preferred source shall perform the majority of the work neces-
    53  sary to such offering, and
    54    (ii) The partnering proposal includes bona fide long  term  employment
    55  opportunities  for  persons  who  [could  otherwise  be new clients] are

        A. 8549--C                          4
 
     1  clients of an entity [previously] accorded preferred source status here-
     2  in, and
     3    (iii) The partnering proposal offers the solicited services or commod-
     4  ities  at a price less than the price that otherwise would be charged by
     5  [a] the preferred source.
     6    8. [a. The commissioner of the  appropriate  appointing  agency  shall
     7  report by December thirty-first, two thousand four, to the governor, the
     8  chairperson  of  the  senate  finance  committee, the chairperson of the
     9  assembly ways and means committee and the director of  the  budget,  the
    10  results and findings of each pilot study conducted, pursuant to subdivi-
    11  sion  seven  of  this section, and include recommendations for improving
    12  partnering with preferred sources.
    13    b.] The council shall  report  to  the  governor,  legislative  fiscal
    14  committees  and  the  director  of  the budget by December thirty-first,
    15  nineteen hundred ninety-five and thereafter annually,  a  separate  list
    16  concerning  the  denial  of  any  application made pursuant to paragraph
    17  [(b)] b of subdivision three of  this  section,  the  reasons  for  such
    18  denial,  whether  such  denial was appealed to the commissioner, and the
    19  final decision by the commissioner on such application.
    20    § 3. The state procurement council shall submit a report  by  December
    21  31,  2024,  to the governor, the speaker of the assembly, and the tempo-
    22  rary president of the senate on the direct labor workforce  employed  in
    23  the  provision  of  preferred source commodities and services, including
    24  but not limited to objectives for direct labor to be  provided  under  a
    25  preferred  source  agreement  by  persons  who are blind, veterans or by
    26  people with disabilities, participation levels of persons who are blind,
    27  veterans or by people with disabilities in preferred  source  contracts,
    28  and recommendations for improving partnering with preferred sources.
    29    § 4. This act shall take effect immediately; provided that section one
    30  of  this  act shall expire and be deemed repealed three years after such
    31  effective date; and provided further that this act shall  not  apply  to
    32  any  contracts  or  requests for proposals issued by government entities
    33  before such date.
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