Amd §163, St Fin L; amd §§313 & 310, Exec L; amd §103, Gen Muni L
 
Requires utilization of minority and women-owned business enterprises as subcontractors as a condition when awarding sole source procurement contracts; relates to the issuance of waivers of the obligation to comply with the minority and women-owned business enterprise participation requirements of a contract if such contract is a single source or sole source procurement contract; requires municipalities to require contract award recipients to utilize the services of minority and women-owned business enterprises; makes conforming changes.
NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
 
BILL NUMBER: A5488
SPONSOR: Bichotte Hermelyn
 
TITLE OF BILL:
An act to amend the state finance law, in relation to requiring utiliza-
tion of minority and women-owned business enterprises as subcontractors
as a condition when awarding sole source procurement contracts; to amend
the executive law, in relation to the issuance of waivers of the obli-
gation to comply with the minority and women-owned business enterprise
participation requirements of a contract if such contract is a single
source or sole source procurement contract; to amend the general munici-
pal law, in relation to requiring municipalities to require contract
award recipients to utilize the services of minority and women-owned
business enterprises; to amend the executive law, in relation to making
conforming changes; and providing for the repeal of certain provisions
upon expiration thereof
 
PURPOSE OR GENERAL IDEA OF BILL:
The purpose of this bill is to amend the state finance law and executive
law so that the sole source procurement process will include the solic-
itation of minority and women-owned business enterprises.
 
SUMMARY OF SPECIFIC PROVISIONS:
Section 1 paragraph b subdivision 10 of section 163 of the state finance
law is amended adding a new subparagraph (iii)
(iii) All single source or sole source procurement contracts made pursu-
ant to the provisions of this paragraph shall require that the award
recipient comply with the provisions of article fifteen-A of the execu-
tive law relating to minority and women-owned business enterprise
participation when contracting with subcontractors. Subdivision 6 of
313 of the executive law as amended by chapter 175 of the laws of 2010.
A good faith effort will be made by the contractor to find qualified
MWBEs in the region, if in good faith it is found that there is not
reasonable availability of MWBEs that are able meet the criteria set
forth by a contractor as it relates to the total dollar value of
contract, the scope of work to be performed, and the project size and
term, the contract can apply for a waiver. The contractor will then be
able to consider other business enterprises in the region.
(b) A contracting agency shall not issue a total waiver of the obli-
gation to comply with the minority and women-owned business enterprise
participation requirements, however, that if the contracting agency
determines there is not a reasonable availability of contractors on the
list of certified business to furnish services for the project, the
contracting agency may issue a partial waiver of compliance to the
contractor.
3. Section 103 of the general municipal law is amended by adding a 15
new subdivision 17 to read as follows: 17. All contractors are expected
to comply with provisions of section three hundred thirteen of the exec-
utive law; however in the event that they are not able to comply, a
waiver can be requested.
§ 4. Subdivisions 2, 3 and 13 of section 310 of the executive law,
subdivisions 2 and 3 as added by chapter 261 of the laws of 1988 and
subdivision 13 as amended by chapter 506 of the laws of 2009, are
amended to read as follows: For the purposes of this article, "state
contract" shall include municipal contracts.
 
JUSTIFICATION:
The bill will require that when a contractor is sourcing for sole source
or single source procurement vendors,that a good faith effort will be
made to include minority and women-owned business enterprises. If
reasonable availability of MWBEs is not found in the region, a contrac-
tor will be able to consider other business enterprises in the region,
and thereafter MBEs outside the region.
 
PRIOR LEGISLATIVE HISTORY:
2019-2020: A1491
2017-2018: A240
2015-2016: A9700
 
FISCAL IMPLICATIONS:
None.
 
EFFECTIVE DATE:
This act shall take effect immediately and shall expire on the same date
and in the same manner as article 15-a of the executive law.
STATE OF NEW YORK
________________________________________________________________________
5488
2021-2022 Regular Sessions
IN ASSEMBLY
February 19, 2021
___________
Introduced by M. of A. BICHOTTE HERMELYN, HYNDMAN, WALKER, SEAWRIGHT,
SOLAGES, GOTTFRIED, JEAN-PIERRE, COOK -- read once and referred to the
Committee on Governmental Operations
AN ACT to amend the state finance law, in relation to requiring utiliza-
tion of minority and women-owned business enterprises as subcontrac-
tors as a condition when awarding sole source procurement contracts;
to amend the executive law, in relation to the issuance of waivers of
the obligation to comply with the minority and women-owned business
enterprise participation requirements of a contract if such contract
is a single source or sole source procurement contract; to amend the
general municipal law, in relation to requiring municipalities to
require contract award recipients to utilize the services of minority
and women-owned business enterprises; to amend the executive law, in
relation to making conforming changes; and providing for the repeal of
certain provisions upon expiration thereof
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Paragraph b of subdivision 10 of section 163 of the state
2 finance law is amended by adding a new subparagraph (iii) to read as
3 follows:
4 (iii) All single source or sole source procurement contracts made
5 pursuant to the provisions of this paragraph shall require that the
6 award recipient comply with the provisions of article fifteen-A of the
7 executive law relating to minority and women-owned business enterprise
8 participation when contracting with subcontractors.
9 § 2. Subdivision 6 of section 313 of the executive law is amended by
10 adding a new paragraph c to read as follows:
11 (c) A contracting agency shall not issue a total waiver of the obli-
12 gation to comply with the minority and women-owned business enterprise
13 participation requirements of a contract if such contract is a single
14 source or sole source procurement contract as described in section one
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD06465-01-1
A. 5488 2
1 hundred sixty-three of the state finance law; provided, however, that if
2 the contracting agency determines there is not a reasonable availability
3 of contractors on the list of certified business to furnish services for
4 the project, the contracting agency may issue a partial waiver of
5 compliance to the contractor.
6 § 3. Section 103 of the general municipal law is amended by adding a
7 new subdivision 17 to read as follows:
8 17. All contracts awarded pursuant to the provisions of this section,
9 including single source or sole source procurement contracts, shall
10 require the contract recipient to comply with the provisions of section
11 three hundred thirteen of the executive law, to the extent that such
12 provisions apply; provided, however, that a contract recipient granted a
13 waiver of compliance as provided in section three hundred thirteen of
14 the executive law shall be deemed to be in compliance with such
15 provisions.
16 § 4. Subdivisions 2, 3 and 13 of section 310 of the executive law,
17 subdivisions 2 and 3 as added by chapter 261 of the laws of 1988 and
18 subdivision 13 as amended by chapter 96 of the laws of 2019, are amended
19 to read as follows:
20 2. "Contracting agency" shall mean; (a) a state agency which is a
21 party or a proposed party to a state contract or, in the case of a state
22 contract described in paragraph (c) of subdivision thirteen of this
23 section, shall mean the New York state housing finance agency, housing
24 trust fund corporation or affordable housing corporation, whichever has
25 made or proposes to make the grant or loan for the state assisted hous-
26 ing project; and (b) a municipality which is a party or a proposed party
27 to a municipal contract.
28 3. "Contractor" shall mean an individual, a business enterprise,
29 including a sole proprietorship, a partnership, a corporation, a not-
30 for-profit corporation, or any other party to a state or municipal
31 contract, or a bidder in conjunction with the award of a state or munic-
32 ipal contract or a proposed party to a state or municipal contract.
33 13. "State contract" shall mean: (a) a written agreement or purchase
34 order instrument, providing for a total expenditure in excess of twen-
35 ty-five thousand dollars, whereby a contracting agency is committed to
36 expend or does expend funds in return for labor, services including but
37 not limited to legal, financial and other professional services,
38 supplies, equipment, materials or any combination of the foregoing, to
39 be performed for, on behalf of, or rendered or furnished to the
40 contracting agency; (b) a written agreement in excess of one hundred
41 thousand dollars whereby a contracting agency is committed to expend or
42 does expend funds for the acquisition, construction, demolition,
43 replacement, major repair or renovation of real property and improve-
44 ments thereon; and (c) a written agreement in excess of one hundred
45 thousand dollars whereby the owner of a state assisted housing project
46 is committed to expend or does expend funds for the acquisition,
47 construction, demolition, replacement, major repair or renovation of
48 real property and improvements thereon for such project. For the
49 purposes of this article, "state contract" shall include municipal
50 contracts as described in subdivision twenty-four of this section.
51 § 5. Section 310 of the executive law is amended by adding a new
52 subdivision 24 to read as follows:
53 24. "Municipal contract" shall mean: (a) a written agreement or
54 purchase order instrument, providing for a total expenditure in excess
55 of twenty-five thousand dollars, whereby a municipal contracting agency
56 is committed to expend or does expend funds in return for labor,
A. 5488 3
1 services including but not limited to legal, financial and other profes-
2 sional services, supplies, equipment, materials or any combination of
3 the foregoing, to be performed for, or rendered or furnished to the
4 municipal contracting agency; (b) a written agreement in excess of one
5 hundred thousand dollars whereby a municipal contracting agency is
6 committed to expend or does expend funds for the acquisition,
7 construction, demolition, replacement, major repair or renovation of
8 real property and improvements thereon; and (c) a written agreement in
9 excess of one hundred thousand dollars whereby the owner of a municipal
10 assisted housing project is committed to expend or does expend funds for
11 the acquisition, construction, demolition, replacement, major repair or
12 renovation of real property and improvements thereon for such project.
13 § 6. This act shall take effect immediately; provided, however, that
14 section three of this act shall expire on the same date and in the same
15 manner as article 15-A of the executive law pursuant to subdivision (h)
16 of section 121 of chapter 261 of the laws of 1988, as amended; provided,
17 however, that the amendments to sections 310 and 313 of the executive
18 law made by sections two, four and five of this act shall not affect the
19 expiration of such sections and shall be deemed expired therewith;
20 provided, further that the amendments to paragraph b of subdivision 10
21 of section 163 of the state finance law made by section one of this act
22 shall not affect the repeal of such section and shall be deemed repealed
23 therewith or shall be deemed repealed upon the expiration of article
24 15-A of the executive law, whichever shall occur first.