S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  11527

                          I N  A S S E M B L Y

                              June 22, 2010
                               ___________

Introduced by COMMITTEE ON RULES -- (at request of M. of A. Cook, Towns,
  Destito, Silver, Farrell, Peoples-Stokes, Aubry, Brodsky, Christensen,
  Crespo,  DelMonte,  Espaillat,  Hyer-Spencer, Jaffee, Lifton, Millman,
  Pretlow, Ramos,  Reilly,  P. Rivera,  Russell,  Weinstein,  D. Weprin,
  Wright)  --  (at request of the Governor) -- read once and referred to
  the Committee on Governmental Operations

AN ACT to amend the executive law and the state finance law, in relation
  to expanding  opportunities  for  women  and  minority-owned  business
  enterprises  and  increasing competition and diversity in procurements
  by the state and its public authorities; and to amend chapter  261  of
  the  laws of 1988 amending the state finance law and other laws relat-
  ing to the New York state infrastructure trust fund,  in  relation  to
  the effectiveness of article 15-A of the executive law

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. Legislative findings. New York state ("the state") declares
that it is the public policy of the state to promote and  encourage  the
continuing  economic development of minority and women-owned businesses,
that minority  and  women-owned  businesses  participate  in  the  state
procurement  process  as  both  prime contractors and subcontractors and
that the state procurement process operate  and  award  contracts  in  a
manner  that  is  free from discrimination and bias against minority and
women-owned businesses that are ready, willing and  able  to  engage  in
business with the state.
  The  state  first adopted its Minority and Women-Owned Business Enter-
prise Program in 1988 to address the significant underrepresentation  of
minority  and women-owned   businesses in state contracts, despite rela-
tively large populations of minorities and women throughout  the  state.
The  program,  chaptered  within  article  15-A  of  the  executive law,
supported the state's commitment to promote equal opportunity in employ-
ment for all persons, without discrimination on account of race,  creed,
color,  national  origin,  sex,  age,  disability  or marital status, to
promote equality of economic opportunity for minority group members  and
women,  business  enterprises  owned  by  them, and to eradicate through

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
              

                                                           LBD17551-10-0

A. 11527                            2

effective programs the barriers that have unreasonably  impaired  access
by  minority  and  women-owned business enterprises to state contracting
opportunities.
  In 2006, a disparity study was commissioned by the empire state devel-
opment corporation, pursuant to executive law section 312-a, to evaluate
whether  minority  and  women-owned  businesses in the state contracting
marketplace had  full  and  fair  opportunities  to  compete  for  prime
contracts and associated subcontracts. Published on April 29, 2010, "the
State of Minority and Women-Owned Business Enterprise: Evidence From New
York"  ("the  2010  disparity  study"),  found strong evidence of large,
adverse, and statistically significant disparities between minority  and
women participation in business enterprise activity in the state's rele-
vant  market  area  and  the  actual current availability of those busi-
nesses. The study further concluded that said disparities could  not  be
explained  solely,  or  even mostly, by differences between minority and
women-owned businesses and non-minority and women-owned  business  popu-
lations in factors untainted by discrimination, and that the differences
therefore  gave  rise to a strong inference of the presence of discrimi-
nation. The findings of the study are hereby adopted by the legislature.
  The legislature further finds that the Assembly conducted hearings  on
the efficiency and effectiveness of services to minority and women-owned
businesses and on the effectiveness of article 15-A of the executive law
in  Utica,  New  York on February 23, 2005, in New York City on March 3,
2005, and in Syracuse, New York on October  25,  2005;  it  conducted  a
hearing on the efforts by public authorities to attract and retain women
and  minority-owned  businesses  in securing contracts for construction,
goods, and services on June 11, 2002 in Albany, New York, and a  hearing
on  access  to surety bonding on state contracts for small, minority and
women-owned businesses on April 14, 2005 in New York City.   The  Senate
conducted  hearings  on  the efficiency and effectiveness of services to
minority and women-owned business and on the  effectiveness  of  article
15-A  of  the  executive  law at the Legislative Office Building hearing
rooms in Albany, New York on February 12, 2009, on Minority  and  Women-
Owned   Business   Enterprise   participation  opportunities  in  public
finance/asset management, and on March 3, 2010 on the reform of  article
15-A of the executive law.
  At  these  hearings,  testimony was received that supplemented and was
consistent with the anecdotal evidence set forth in the  2010  disparity
study  that  women  and  minority-owned  businesses participate in state
procurements at significantly lower percentages than their  numbers  and
expertise  would  indicate  would  be  expected if no discrimination had
existed and  provided  anecdotal  evidence  of  continuing  patterns  of
discrimination.
  The  legislature  further finds that in order to redress the discrimi-
nation documented by the study it is necessary to  implement  a  program
that  identifies  businesses  owned  by minorities and by women and that
actively promotes the participation of  such  businesses  in  the  state
procurement  process.    The legislature further finds that it is in the
best interests of the economic development of the  state  to  enact  the
2010  Business  Diversification  Act  to  redress discrimination against
minority and women-owned business enterprises in the state marketplace.
  S 1-a. Short title. This act shall be known and may be  cited  as  the
"2010 Business Diversification Act".
  S  2.  Subdivisions  7  and 15 of section 310 of the executive law, as
added by chapter 261 of the laws of  1988,  are  amended  and  five  new
subdivisions 18, 19, 20, 21 and 22 are added to read as follows:

A. 11527                            3

  7.  "Minority-owned  business enterprise" shall mean a business enter-
prise, including a sole proprietorship, partnership or corporation  that
is:
  (a)  at  least  fifty-one  percent owned by one or more minority group
members;
  (b) an enterprise in which such minority ownership is  real,  substan-
tial and continuing;
  (c)  an  enterprise in which such minority ownership has and exercises
the authority to control independently the day-to-day business decisions
of the enterprise; [and]
  (d) an enterprise authorized to do business in this  state  and  inde-
pendently owned and operated[.];
  (E)  AN ENTERPRISE OWNED BY AN INDIVIDUAL OR INDIVIDUALS, WHOSE OWNER-
SHIP, CONTROL AND OPERATION ARE RELIED UPON FOR  CERTIFICATION,  WITH  A
PERSONAL NET WORTH THAT DOES NOT EXCEED THREE MILLION FIVE HUNDRED THOU-
SAND DOLLARS, AS ADJUSTED ANNUALLY ON THE FIRST OF JANUARY FOR INFLATION
ACCORDING TO THE CONSUMER PRICE INDEX OF THE PREVIOUS YEAR; AND
  (F)  AN  ENTERPRISE  THAT  IS A SMALL BUSINESS PURSUANT TO SUBDIVISION
TWENTY OF THIS SECTION.
  15. "Women-owned business enterprise" shall  mean  a  business  enter-
prise,  including a sole proprietorship, partnership or corporation that
is:
  (a) at least fifty-one percent owned by  one  or  more  United  States
citizens or permanent resident aliens who are women;
  (b)  an  enterprise  in  which the ownership interest of such women is
real, substantial and continuing;
  (c) an enterprise in which such women ownership has and exercises  the
authority  to control independently the day-to-day business decisions of
the enterprise; [and]
  (d) an enterprise authorized to do business in this  state  and  inde-
pendently owned and operated[.];
  (E)  AN ENTERPRISE OWNED BY AN INDIVIDUAL OR INDIVIDUALS, WHOSE OWNER-
SHIP, CONTROL AND OPERATION ARE RELIED UPON FOR  CERTIFICATION,  WITH  A
PERSONAL NET WORTH THAT DOES NOT EXCEED THREE MILLION FIVE HUNDRED THOU-
SAND DOLLARS, AS ADJUSTED ANNUALLY ON THE FIRST OF JANUARY FOR INFLATION
ACCORDING TO THE CONSUMER PRICE INDEX OF THE PREVIOUS YEAR; AND
  (F)  AN  ENTERPRISE  THAT  IS A SMALL BUSINESS PURSUANT TO SUBDIVISION
TWENTY OF THIS SECTION.
  A FIRM OWNED BY A MINORITY GROUP MEMBER WHO IS ALSO  A  WOMAN  MAY  BE
CERTIFIED  AS  A MINORITY-OWNED BUSINESS ENTERPRISE, A WOMEN-OWNED BUSI-
NESS ENTERPRISE, OR BOTH, AND MAY BE COUNTED TOWARDS EITHER A  MINORITY-
OWNED  BUSINESS  ENTERPRISE  GOAL  OR  A WOMEN-OWNED BUSINESS ENTERPRISE
GOAL, IN REGARD TO ANY CONTRACT OR ANY GOAL, SET BY AN AGENCY OR AUTHOR-
ITY, BUT SUCH PARTICIPATION MAY NOT BE COUNTED TOWARDS BOTH SUCH  GOALS.
SUCH  AN  ENTERPRISE'S  PARTICIPATION  IN  A CONTRACT MAY NOT BE DIVIDED
BETWEEN THE MINORITY-OWNED BUSINESS ENTERPRISE GOAL AND THE  WOMEN-OWNED
BUSINESS ENTERPRISE GOAL.
  18.  "LESSEE" SHALL MEAN AN INDIVIDUAL, A BUSINESS ENTERPRISE, INCLUD-
ING A SOLE PROPRIETORSHIP, A PARTNERSHIP, A CORPORATION, A  NOT-FOR-PRO-
FIT  CORPORATION,  OR  ANY OTHER PARTY TO A LEASE WITH A STATE AGENCY AS
DEFINED IN SUBDIVISION ELEVEN  OF  THIS  SECTION,  OR  A  RESPONDENT  IN
CONJUNCTION  WITH  THE AWARD OF SUCH A LEASE OR A PROPOSED LESSEE WITH A
STATE AGENCY AS DEFINED IN SUBDIVISION ELEVEN OF THIS SECTION.
  19. "PERSONAL NET WORTH" SHALL MEAN THE AGGREGATE ADJUSTED  NET  VALUE
OF  THE  ASSETS  OF  AN INDIVIDUAL REMAINING AFTER TOTAL LIABILITIES ARE
DEDUCTED. PERSONAL NET WORTH INCLUDES THE INDIVIDUAL'S SHARE  OF  ASSETS

A. 11527                            4

HELD  JOINTLY  WITH  SAID  INDIVIDUAL'S  SPOUSE AND DOES NOT INCLUDE THE
INDIVIDUAL'S  OWNERSHIP  INTEREST  IN   THE   CERTIFIED   MINORITY   AND
WOMEN-OWNED  BUSINESS  ENTERPRISE, THE INDIVIDUAL'S EQUITY IN HIS OR HER
PRIMARY RESIDENCE, OR UP TO FIVE HUNDRED THOUSAND DOLLARS OF THE PRESENT
CASH  VALUE  OF  ANY  QUALIFIED  RETIREMENT  SAVINGS  PLAN OR INDIVIDUAL
RETIREMENT ACCOUNT HELD BY THE INDIVIDUAL LESS ANY PENALTIES  FOR  EARLY
WITHDRAWAL.
  20.  "SMALL  BUSINESS" AS USED IN THIS SECTION, UNLESS OTHERWISE INDI-
CATED, SHALL MEAN A BUSINESS WHICH HAS A SIGNIFICANT  BUSINESS  PRESENCE
IN  THE  STATE, IS INDEPENDENTLY OWNED AND OPERATED, NOT DOMINANT IN ITS
FIELD AND EMPLOYS, BASED ON ITS INDUSTRY, A CERTAIN NUMBER OF PERSONS AS
DETERMINED BY THE DIRECTOR, BUT NOT TO EXCEED THREE HUNDRED, TAKING INTO
CONSIDERATION FACTORS WHICH INCLUDE, BUT ARE  NOT  LIMITED  TO,  FEDERAL
SMALL  BUSINESS ADMINISTRATION STANDARDS PURSUANT TO 13 CFR PART 121 AND
ANY AMENDMENTS THERETO.   THE DIRECTOR  MAY  ISSUE  REGULATIONS  ON  THE
CONSTRUCTION OF THE TERMS IN THIS DEFINITION.
  21.  "THE  2010  DISPARITY  STUDY"  SHALL REFER TO THE DISPARITY STUDY
COMMISSIONED BY THE EMPIRE STATE DEVELOPMENT  CORPORATION,  PURSUANT  TO
SECTION  THREE  HUNDRED TWELVE-A OF THIS ARTICLE, AND PUBLISHED ON APRIL
TWENTY-NINE, TWO THOUSAND TEN.
  22. "DIVERSITY PRACTICES" SHALL MEAN THE  CONTRACTOR'S  PRACTICES  AND
POLICIES WITH RESPECT TO:
  (A)  UTILIZING CERTIFIED MINORITY AND WOMEN-OWNED BUSINESS ENTERPRISES
IN CONTRACTS AWARDED BY A STATE AGENCY OR OTHER PUBLIC  CORPORATION,  AS
SUBCONTRACTORS AND SUPPLIERS; AND
  (B)  ENTERING  INTO  PARTNERSHIPS,  JOINT  VENTURES  OR  OTHER SIMILAR
ARRANGEMENTS WITH CERTIFIED MINORITY  AND  WOMEN-OWNED  BUSINESS  ENTER-
PRISES  AS  DEFINED IN THIS ARTICLE OR OTHER APPLICABLE STATUTE OR REGU-
LATION GOVERNING AN ENTITY'S  UTILIZATION  OF  MINORITY  OR  WOMEN-OWNED
BUSINESS ENTERPRISES.
  S  3. The executive law is amended by adding a new section 4-a to read
as follows:
  S 4-A. CHIEF DIVERSITY OFFICER. A  CHIEF  DIVERSITY  OFFICER  FOR  THE
STATE  SHALL  BE APPOINTED BY THE GOVERNOR AND SHALL RECEIVE A SALARY TO
BE FIXED BY THE GOVERNOR WITHIN THE AMOUNT  APPROPRIATED  THEREFOR.  THE
CHIEF DIVERSITY OFFICER'S RESPONSIBILITIES SHALL INCLUDE THE FOLLOWING:
  1.  ADVISE AND ASSIST THE GOVERNOR IN FORMULATING POLICIES RELATING TO
WORKFORCE DIVERSITY AND MINORITY AND WOMEN'S BUSINESS ENTERPRISES;
  2. WORK WITH THE DIRECTOR OF THE  DIVISION  OF  MINORITY  AND  WOMEN'S
BUSINESS DEVELOPMENT TO PREPARE AN ANNUAL PLAN FOR ENSURING FULL COMPLI-
ANCE  WITH  ARTICLE FIFTEEN-A OF THE EXECUTIVE LAW BY STATE AGENCIES AND
THE USE OF DIVERSITY PRACTICES BY SUCH AGENCIES;
  3. ADVISE THE GOVERNOR AND THE AGENCIES REGARDING ANY MEASURES  NECES-
SARY  TO  ENSURE  FULL COMPLIANCE WITH ARTICLE FIFTEEN-A OF THIS CHAPTER
AND USE OF DIVERSITY PRACTICES BY STATE PUBLIC AUTHORITIES;
  4. SERVE AS A MEMBER OF  THE  STATE  PROCUREMENT  COUNCIL  ESTABLISHED
UNDER SECTION ONE HUNDRED SIXTY-ONE OF THE STATE FINANCE LAW;
  5.  SERVE  AS  THE  GOVERNOR'S LIAISON WITH ORGANIZATIONS REPRESENTING
MINORITY AND WOMEN-OWNED BUSINESS ENTERPRISES  AND  OTHER  ORGANIZATIONS
RELATED TO DIVERSITY IN THE STATE WORKFORCE AND IN STATE CONTRACTING;
  6.  SERVE  AS  THE  GOVERNOR'S  LIAISON TO THE SMALL BUSINESS ADVISORY
COUNCIL FOR ISSUES RELATED TO THE CREATION OF A  DIVERSE  WORKFORCE  AND
STATE  PROCUREMENT  PRACTICES RELATING TO MINORITY AND WOMEN-OWNED BUSI-
NESS ENTERPRISES;

A. 11527                            5

  7. REVIEW AND CONSULT WITH THE DIRECTOR OF MINORITY AND WOMEN'S  BUSI-
NESS DEVELOPMENT REGARDING POLICIES RELATING TO MINORITY AND WOMEN-OWNED
BUSINESS ENTERPRISE CONTRACT SPECIALISTS AT STATE AGENCIES; AND
  8.  ENGAGE  IN  OTHER  ACTIONS  ASSIGNED TO HIM OR HER BY THE GOVERNOR
RELATING TO DIVERSITY IN HIRING OR PROMOTION OF THE STATE WORKFORCE  AND
IN ENCOURAGING DIVERSITY PRACTICES AND COMPLIANCE WITH ARTICLE FIFTEEN-A
OF THIS CHAPTER IN PROCUREMENT.
  S  3-a.  Paragraph  a  of  subdivision  1  of section 161 of the state
finance law, as added by chapter 83 of the laws of 1995, is  amended  to
read as follows:
  a.  The state procurement council shall continuously strive to improve
the state's procurement process.  Such council shall consist  of  [nine-
teen] TWENTY members, including the commissioner, the state comptroller,
the  director of the budget, THE CHIEF DIVERSITY OFFICER and the commis-
sioner of economic development, or  their  respective  designees;  seven
members  who  shall be the heads of other large and small state agencies
chosen by the governor, or their  respective  designees;  and  eight  at
large  members  appointed  as  follows: three appointed by the temporary
president of the senate, one of whom shall be a representative of  local
government  and  one  of whom shall be a representative of private busi-
ness; three appointed by the speaker of the assembly, one of whom  shall
be  a  representative  of  local  government  and one of whom shall be a
representative of private business; one appointed by the minority leader
of the senate; and, one appointed by the minority leader of  the  assem-
bly; and two non-voting observers appointed as follows: one appointed by
the  temporary  president of the senate and one appointed by the speaker
of the assembly. The non-voting observers shall be provided, contempora-
neously, all documentation and materials  distributed  to  members.  The
council  shall  be  chaired  by the commissioner and shall meet at least
quarterly.
  S 4. Section 312-a of the executive law, as added by section 6 of part
BB of chapter 59 of the laws of 2006, is amended to read as follows:
  S  312-a.  Study  of  minority  and  women-owned  business  enterprise
programs.  1.  The  director of the division of minority and women-owned
business development  in  the  department  of  economic  development  is
authorized and directed to [commission] RECOMMISSION a statewide dispar-
ity  study regarding the participation of minority and women-owned busi-
ness enterprises in state contracts since the [enactment]  AMENDMENT  of
this  article  TO  BE DELIVERED TO THE GOVERNOR AND LEGISLATURE NO LATER
THAN FEBRUARY FIFTEENTH,  TWO  THOUSAND  SIXTEEN.  The  study  shall  be
prepared by an entity independent of the department and selected through
a request for proposal process. The purpose of such study is:
  (A)  to  determine  whether there is a disparity between the number of
qualified minority and women-owned businesses ready, willing and able to
perform state contracts for commodities, services and construction,  and
the  number  of  such  contractors  actually  engaged  to  perform  such
contracts, and to determine what changes, if  any,  should  be  made  to
state  policies affecting minority and women-owned business enterprises;
AND (B) TO DETERMINE WHETHER THERE IS A DISPARITY BETWEEN THE NUMBER  OF
QUALIFIED  MINORITIES AND WOMEN READY, WILLING AND ABLE, WITH RESPECT TO
LABOR MARKETS, QUALIFICATIONS AND OTHER RELEVANT FACTORS, TO PARTICIPATE
IN CONTRACTOR EMPLOYMENT, MANAGEMENT LEVEL BODIES, INCLUDING  BOARDS  OF
DIRECTORS,  AND AS SENIOR EXECUTIVE OFFICERS WITHIN CONTRACTING ENTITIES
AND THE NUMBER OF SUCH GROUP MEMBERS  ACTUALLY  EMPLOYED  OR  AFFILIATED
WITH  STATE  CONTRACTORS IN THE AFOREMENTIONED CAPACITIES, AND TO DETER-
MINE WHAT CHANGES, IF ANY, SHOULD BE MADE TO  STATE  POLICIES  AFFECTING

A. 11527                            6

MINORITY  AND  WOMEN GROUP POPULATIONS WITH REGARD TO STATE CONTRACTORS'
EMPLOYMENT AND APPOINTMENT PRACTICES RELATIVE TO DIVERSE GROUP  MEMBERS.
Such  study  shall  include,  but  not be limited to, an analysis of the
[impact  of  court decisions regarding the use of quotas and set-asides]
HISTORY OF MINORITY AND WOMEN-OWNED  BUSINESS  ENTERPRISE  PROGRAMS  AND
THEIR EFFECTIVENESS as a means of securing and ensuring participation by
minorities and women, and a disparity analysis by market area and region
of  the  state.    SUCH  STUDY SHALL DISTINGUISH BETWEEN MINORITY MALES,
MINORITY FEMALES AND NON-MINORITY FEMALES IN THE STATISTICAL ANALYSIS.
  2. The director of the division of minority and  women-owned  business
development  is directed to transmit the disparity study to the governor
and the legislature not later than [eighteen months after the  effective
date  of this subdivision] FEBRUARY FIFTEENTH, TWO THOUSAND SIXTEEN, and
to post the study on the website of the department of economic  develop-
ment.
  S  5. Section 313 of the executive law, as added by chapter 261 of the
laws of 1988, paragraph (a) of subdivision 4 as amended by  chapter  429
of the laws of 2009, is amended to read as follows:
  S 313. Opportunities  for  minority  and  women-owned  business enter-
prises. 1. [The director shall promulgate  rules  and  regulations  that
provide  measures  and  procedures  to  ensure that certified businesses
shall be given the  opportunity  for  meaningful  participation  in  the
performance of state contracts and to identify those state contracts for
which  certified  businesses  may best bid to actively and affirmatively
promote and assist their  participation  in  the  performance  of  state
contracts  so  as  to  facilitate  the  award  of  a fair share of state
contracts to such businesses. Such rules and regulations as they pertain
to any particular agency shall be developed after consultation with  the
contracting  agency.  Nothing in the provisions of this article shall be
construed to limit the ability of any certified business to bid  on  any
contract.
  2.]  GOALS  AND REQUIREMENTS FOR AGENCIES AND CONTRACTORS. EACH AGENCY
SHALL STRUCTURE PROCUREMENT PROCEDURES FOR CONTRACTS  MADE  DIRECTLY  OR
INDIRECTLY  TO MINORITY AND WOMEN-OWNED BUSINESS ENTERPRISES, IN ACCORD-
ANCE WITH THE FINDINGS OF THE TWO THOUSAND TEN DISPARITY STUDY, CONSIST-
ENT WITH THE PURPOSES OF THIS ARTICLE, TO ATTEMPT TO ACHIEVE THE FOLLOW-
ING RESULTS WITH REGARD TO TOTAL ANNUAL STATEWIDE PROCUREMENT:
  (A) CONSTRUCTION INDUSTRY FOR CERTIFIED MINORITY-OWNED BUSINESS ENTER-
PRISES: FOURTEEN AND THIRTY-FOUR HUNDREDTHS PERCENT;
  (B) CONSTRUCTION INDUSTRY FOR CERTIFIED  WOMEN-OWNED  BUSINESS  ENTER-
PRISES: EIGHT AND FORTY-ONE HUNDREDTHS PERCENT;
  (C)  CONSTRUCTION RELATED PROFESSIONAL SERVICES INDUSTRY FOR CERTIFIED
MINORITY-OWNED BUSINESS ENTERPRISES: THIRTEEN AND TWENTY-ONE  HUNDREDTHS
PERCENT;
  (D)  CONSTRUCTION RELATED PROFESSIONAL SERVICES INDUSTRY FOR CERTIFIED
WOMEN-OWNED  BUSINESS  ENTERPRISES:  ELEVEN  AND  THIRTY-TWO  HUNDREDTHS
PERCENT;
  (E)  NON-CONSTRUCTION  RELATED SERVICES INDUSTRY FOR CERTIFIED MINORI-
TY-OWNED BUSINESS ENTERPRISES: NINETEEN AND SIXTY HUNDREDTHS PERCENT;
  (F)  NON-CONSTRUCTION  RELATED   SERVICES   INDUSTRY   FOR   CERTIFIED
WOMEN-OWNED  BUSINESS  ENTERPRISES:  SEVENTEEN AND FORTY-FOUR HUNDREDTHS
PERCENT;
  (G) COMMODITIES INDUSTRY FOR CERTIFIED MINORITY-OWNED BUSINESS  ENTER-
PRISES: SIXTEEN AND ELEVEN HUNDREDTHS PERCENT;
  (H)  COMMODITIES  INDUSTRY  FOR  CERTIFIED WOMEN-OWNED BUSINESS ENTER-
PRISES:  TEN AND NINETY-THREE HUNDREDTHS PERCENT;

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  (I) OVERALL AGENCY TOTAL DOLLAR VALUE  OF  PROCUREMENT  FOR  CERTIFIED
MINORITY-OWNED  BUSINESS ENTERPRISES: SIXTEEN AND FIFTY-THREE HUNDREDTHS
PERCENT;
  (J)  OVERALL  AGENCY  TOTAL  DOLLAR VALUE OF PROCUREMENT FOR CERTIFIED
WOMEN-OWNED BUSINESS  ENTERPRISES:  TWELVE  AND  THIRTY-NINE  HUNDREDTHS
PERCENT; AND
  (K)  OVERALL  AGENCY  TOTAL  DOLLAR VALUE OF PROCUREMENT FOR CERTIFIED
MINORITY, WOMEN-OWNED BUSINESS ENTERPRISES: TWENTY-EIGHT AND  NINETY-TWO
HUNDREDTHS PERCENT.
  1-A.  THE  DIRECTOR  SHALL  ENSURE  THAT  EACH  STATE  AGENCY HAS BEEN
PROVIDED WITH A COPY OF THE TWO THOUSAND TEN DISPARITY STUDY.
  1-B. EACH AGENCY SHALL DEVELOP AND ADOPT AGENCY-SPECIFIC  GOALS  BASED
ON THE FINDINGS OF THE TWO THOUSAND TEN DISPARITY STUDY.
  2. THE DIRECTOR SHALL PROMULGATE RULES AND REGULATIONS PURSUANT TO THE
GOALS  ESTABLISHED IN SUBDIVISION ONE OF THIS SECTION THAT PROVIDE MEAS-
URES AND PROCEDURES TO ENSURE THAT CERTIFIED  MINORITY  AND  WOMEN-OWNED
BUSINESSES  SHALL  BE GIVEN THE OPPORTUNITY FOR MAXIMUM FEASIBLE PARTIC-
IPATION IN THE PERFORMANCE OF STATE CONTRACTS AND TO ASSIST IN THE AGEN-
CY'S IDENTIFICATION OF THOSE STATE  CONTRACTS  FOR  WHICH  MINORITY  AND
WOMEN-OWNED  CERTIFIED  BUSINESSES MAY BEST BID TO ACTIVELY AND AFFIRMA-
TIVELY PROMOTE AND ASSIST THEIR  PARTICIPATION  IN  THE  PERFORMANCE  OF
STATE  CONTRACTS  SO  AS  TO  FACILITATE THE AGENCY'S ACHIEVEMENT OF THE
MAXIMUM FEASIBLE PORTION OF THE GOALS FOR STATE CONTRACTS TO SUCH  BUSI-
NESSES.
  2-A.  THE  DIRECTOR  SHALL  PROMULGATE RULES AND REGULATIONS THAT WILL
ACCOMPLISH THE FOLLOWING:
  (A) PROVIDE FOR THE CERTIFICATION AND DECERTIFICATION OF MINORITY  AND
WOMEN-OWNED BUSINESS ENTERPRISES FOR ALL AGENCIES THROUGH A SINGLE PROC-
ESS THAT MEETS APPLICABLE REQUIREMENTS;
  (B) REQUIRE THAT EACH CONTRACT SOLICITATION DOCUMENT ACCOMPANYING EACH
SOLICITATION  SET  FORTH THE EXPECTED DEGREE OF MINORITY AND WOMEN-OWNED
BUSINESS ENTERPRISE PARTICIPATION BASED, IN PART, ON:
  (I) THE POTENTIAL SUBCONTRACT OPPORTUNITIES  AVAILABLE  IN  THE  PRIME
PROCUREMENT CONTRACT; AND
  (II)  THE  AVAILABILITY,  AS  CONTAINED WITHIN THE STUDY, OF CERTIFIED
MINORITY AND  WOMEN-OWNED BUSINESS ENTERPRISES TO RESPOND  COMPETITIVELY
TO THE POTENTIAL SUBCONTRACT OPPORTUNITIES;
  (C)  REQUIRE  THAT  EACH  AGENCY  PROVIDE  A CURRENT LIST OF CERTIFIED
MINORITY BUSINESS ENTERPRISES TO EACH PROSPECTIVE CONTRACTOR;
  (D)  ALLOW  A  CONTRACTOR  THAT  IS  A  CERTIFIED  MINORITY-OWNED   OR
WOMEN-OWNED  BUSINESS  ENTERPRISE  TO  USE  THE WORK IT PERFORMS TO MEET
REQUIREMENTS FOR USE OF CERTIFIED MINORITY-OWNED OR WOMEN-OWNED BUSINESS
ENTERPRISES AS SUBCONTRACTORS;
  (E) PROVIDE FOR JOINT VENTURES, WHICH A BIDDER MAY COUNT TOWARD  MEET-
ING ITS MINORITY AND WOMEN-OWNED BUSINESS ENTERPRISE PARTICIPATION;
  (F)  CONSISTENT  WITH  SUBDIVISION  SIX  OF  THIS SECTION, PROVIDE FOR
CIRCUMSTANCES UNDER  WHICH  AN  AGENCY  MAY  WAIVE  OBLIGATIONS  OF  THE
CONTRACTOR  RELATING  TO  MINORITY  AND  WOMEN-OWNED BUSINESS ENTERPRISE
PARTICIPATION;
  (G) REQUIRE THAT AN AGENCY VERIFY THAT MINORITY AND WOMEN-OWNED  BUSI-
NESS  ENTERPRISES  LISTED IN A SUCCESSFUL BID ARE ACTUALLY PARTICIPATING
TO THE EXTENT LISTED IN THE PROJECT FOR WHICH THE BID WAS SUBMITTED;
  (H) PROVIDE FOR THE COLLECTION OF  STATISTICAL  DATA  BY  EACH  AGENCY
CONCERNING  ACTUAL  MINORITY AND WOMEN-OWNED BUSINESS ENTERPRISE PARTIC-
IPATION; AND

A. 11527                            8

  (I) REQUIRE EACH AGENCY TO CONSULT THE MOST  CURRENT  DISPARITY  STUDY
WHEN  CALCULATING  AGENCY-WIDE AND CONTRACT SPECIFIC PARTICIPATION GOALS
PURSUANT TO THIS ARTICLE.
  3.  SOLELY FOR THE PURPOSE OF PROVIDING THE OPPORTUNITY FOR MEANINGFUL
PARTICIPATION BY  CERTIFIED  BUSINESSES  IN  THE  PERFORMANCE  OF  STATE
CONTRACTS  AS  PROVIDED  IN  THIS SECTION, STATE CONTRACTS SHALL INCLUDE
LEASES OF REAL PROPERTY BY A STATE AGENCY TO A LESSEE WHERE:  THE  TERMS
OF  SUCH  LEASES  PROVIDE FOR THE CONSTRUCTION, DEMOLITION, REPLACEMENT,
MAJOR REPAIR OR RENOVATION OF REAL PROPERTY AND IMPROVEMENTS THEREON  BY
SUCH LESSEE; AND THE COST OF SUCH CONSTRUCTION, DEMOLITION, REPLACEMENT,
MAJOR  REPAIR  OR  RENOVATION  OF REAL PROPERTY AND IMPROVEMENTS THEREON
SHALL EXCEED THE SUM OF ONE HUNDRED THOUSAND  DOLLARS.  REPORTS  TO  THE
DIRECTOR PURSUANT TO SECTION THREE HUNDRED FIFTEEN OF THIS ARTICLE SHALL
INCLUDE ACTIVITIES WITH RESPECT TO ALL SUCH STATE CONTRACTS. Contracting
agencies  shall  include or require to be included with respect to state
contracts for the acquisition,  construction,  demolition,  replacement,
major  repair  or  renovation of real property and improvements thereon,
such provisions as may be necessary to effectuate the provisions of this
section in every bid specification and state  contract,  including,  but
not  limited  to:  (a)  provisions  requiring contractors to make a good
faith effort to solicit active participation by  enterprises  identified
in  the  directory  of  certified businesses provided to the contracting
agency by the office; (b) requiring the parties to agree as a  condition
of entering into such contract, to be bound by the provisions of section
three  hundred sixteen of this article; and (c) requiring the contractor
to include the provisions set forth in paragraphs (a) and (b) [above] OF
THIS SUBDIVISION in every subcontract in a manner  that  the  provisions
will  be  binding  upon each subcontractor as to work in connection with
such contract. Provided, however, that no such provisions shall be bind-
ing upon contractors or subcontractors in the performance of work or the
provision of services that are unrelated, separate or distinct from  the
state  contract  as  expressed by its terms, and nothing in this section
shall authorize the director or any contracting  agency  to  impose  any
requirement  on  a  contractor or subcontractor except with respect to a
state contract.
  [3.] 4. In the implementation of this section, the contracting  agency
shall  (A)  CONSULT  THE  FINDINGS  CONTAINED WITHIN THE DISPARITY STUDY
EVIDENCING RELEVANT INDUSTRY SPECIFIC AVAILABILITY  OF  CERTIFIED  BUSI-
NESSES;
  (B)  IMPLEMENT  A PROGRAM THAT WILL ENABLE THE AGENCY TO EVALUATE EACH
CONTRACT TO DETERMINE THE APPROPRIATENESS OF THE GOAL PURSUANT TO SUBDI-
VISION ONE OF THIS SECTION;
  (C) consider  WHERE  PRACTICABLE,  THE  SEVERABILITY  OF  CONSTRUCTION
PROJECTS AND OTHER BUNDLED CONTRACTS; AND
  (D)  CONSIDER  compliance  with  the  requirements  of any federal law
concerning opportunities for minority and  women-owned  business  enter-
prises  which  effectuates  the purpose of this section. The contracting
agency shall determine whether the imposition of the requirements of any
such law duplicate or conflict with the provisions hereof  and  if  such
duplication  or  conflict exists, the contracting agency shall waive the
applicability of this section to  the  extent  of  such  duplication  or
conflict.
  [4.]  5. (a) Contracting agencies shall administer the rules and regu-
lations promulgated by the director IN A GOOD FAITH  EFFORT  to  [ensure
compliance  with the provisions of this section] MEET THE MAXIMUM FEASI-
BLE PORTION OF THE AGENCY'S GOALS ADOPTED PURSUANT TO THIS  ARTICLE  AND

A. 11527                            9

THE  REGULATIONS  OF  THE  DIRECTOR.   Such rules and regulations: shall
require a contractor to submit a utilization plan after bids are opened,
when bids are required, but prior to the  award  of  a  state  contract;
shall  require  the  contracting  agency  to review the utilization plan
submitted by the contractor and to post the  utilization  plan  and  any
waivers  of compliance issued pursuant to subdivision [five] SIX of this
section on the website of the contracting  agency  within  a  reasonable
period  of  time  as  established  by  the  director;  shall require the
contracting agency to notify the contractor in writing within  a  period
of  time  specified  by the director as to any deficiencies contained in
the contractor's utilization plan; shall require remedy thereof within a
period of time specified by the director; shall require  the  contractor
to  submit  periodic  compliance  reports  relating to the operation and
implementation of any utilization plan; shall NOT  ALLOW  ANY  AUTOMATIC
WAIVERS  BUT  SHALL  allow  a contractor to apply for a partial or total
waiver of the minority and women-owned business enterprise participation
requirements pursuant to subdivisions [five and] six AND SEVEN  of  this
section;  shall allow a contractor to file a complaint with the director
pursuant to subdivision [seven] EIGHT of this section  in  the  event  a
contracting agency has failed or refused to issue a waiver of the minor-
ity  and  women-owned  business enterprise participation requirements or
has denied such request for a waiver;  and  shall  allow  a  contracting
agency  to  file  a  complaint with the director pursuant to subdivision
[eight] NINE of this section in the event a contractor is failing or has
failed to comply with the minority and women-owned  business  enterprise
participation  requirements  set  forth  in  the state contract where no
waiver has been granted.
  (b) The rules and regulations promulgated pursuant to this subdivision
regarding a utilization plan shall provide that where  enterprises  have
been  identified  within a utilization plan, a contractor shall attempt,
in good faith, to utilize such enterprise at least to the  extent  indi-
cated. A contracting agency may require a contractor to indicate, within
a  utilization  plan,  what measures and procedures he or she intends to
take to comply with the provisions of this article, but may not require,
as a condition of award of,  or  compliance  with,  a  contract  that  a
contractor  utilize  a  particular  enterprise  in  performance  of  the
contract.
  (c) Without limiting other grounds for the disqualification of bids or
proposals on the basis of non-responsibility, a contracting  agency  may
disqualify  the bid or proposal of a contractor as being non-responsible
for failure to remedy notified deficiencies contained  in  the  contrac-
tor's  utilization plan within a period of time specified in regulations
promulgated by the director after receiving notification of  such  defi-
ciencies  from the contracting agency. Where failure to remedy any noti-
fied deficiency in the utilization plan is a  ground  for  disqualifica-
tion,  that  issue  and  all other grounds for disqualification shall be
stated in writing by the contracting agency. Where the contracting agen-
cy states that a failure to remedy any notified deficiency in the utili-
zation plan is a ground for disqualification  the  contractor  shall  be
entitled  to  an  administrative  hearing,  on  a  record, involving all
grounds  stated  by  the  contracting  agency.  Such  hearing  shall  be
conducted  by  the  appropriate  authority  of the contracting agency to
review the determination of  disqualification.  A  final  administrative
determination  made  following  such  hearing  shall  be reviewable in a
proceeding commenced under article seventy-eight of the  civil  practice
law  and rules, provided that such proceeding is commenced within thirty

A. 11527                           10

days of the notice given by  certified  mail  return  receipt  requested
rendering such final administrative determination. Such proceeding shall
be  commenced in the supreme court, appellate division, third department
and  such  proceeding  shall  be  preferred  over all other civil causes
except election causes, and shall be heard and determined in  preference
to  all  other  civil business pending therein, except election matters,
irrespective of position on the calendar. Appeals taken to the court  of
appeals  of  the  state of New York shall be subject to the same prefer-
ence.
  [5.] 6. Where it appears that a contractor cannot, after a good  faith
effort,  comply  with  the  minority and women-owned business enterprise
participation requirements set forth in a particular state  contract,  a
contractor  may  file  a written application with the contracting agency
requesting a partial or total waiver of such requirements setting  forth
the  reasons  for  such contractor's inability to meet any or all of the
participation requirements together with an explanation of  the  efforts
undertaken  by the contractor to obtain the required minority and women-
owned business enterprise participation. In implementing the  provisions
of  this  section,  the contracting agency shall consider the number and
types of minority and women-owned business enterprises  located  in  the
region  in which the state contract is to be performed, the total dollar
value of the state contract, the scope of work to be performed  and  the
project size and term. If, based on such considerations, the contracting
agency  determines there is not a reasonable availability of contractors
on the list of certified business to furnish services for  the  project,
it  shall issue a waiver of compliance to the contractor. In making such
determination, the contracting agency shall first  consider  the  avail-
ability  of  other  business enterprises located in the region and shall
thereafter consider the financial ability of  minority  and  women-owned
businesses  located  outside  the  region in which the contract is to be
performed to perform the state contract.
  [6.] 7. For purposes of determining a contractor's good  faith  effort
to  comply  with the requirements of this section or to be entitled to a
waiver therefrom the contracting agency shall consider:
  (a) whether the  contractor  has  advertised  in  general  circulation
media,  trade association publications, and minority-focus and women-fo-
cus media and, in such event, (i) whether or not certified  minority  or
women-owned  businesses  which  have  been  solicited  by the contractor
exhibited interest in submitting proposals for a particular  project  by
attending a pre-bid conference; and
  (ii)  whether  certified  businesses  which have been solicited by the
contractor have responded in a timely fashion to the contractor's solic-
itations for timely competitive bid quotations prior to the  contracting
agency's bid date; and
  (b)  whether there has been written notification to appropriate certi-
fied businesses that appear in the  directory  of  certified  businesses
prepared pursuant to paragraph (f) of subdivision three of section three
hundred eleven of this article; and
  (c) whether the contractor can reasonably structure the amount of work
to  be  performed under subcontracts in order to increase the likelihood
of participation by certified businesses.
  [7.] 8. In the event that a contracting agency  fails  or  refuses  to
issue  a  waiver  to  a contractor as requested within twenty days after
having made application therefor pursuant to subdivision [five]  SIX  of
this  section  or  if the contracting agency denies such application, in
whole or in part, the contractor may file a complaint with the  director

A. 11527                           11

pursuant  to section three hundred sixteen of this article setting forth
the facts and circumstances giving rise to  the  contractor's  complaint
together  with a demand for relief. The contractor shall serve a copy of
such  complaint  upon  the  contracting agency by personal service or by
certified mail, return receipt requested. The contracting  agency  shall
be afforded an opportunity to respond to such complaint in writing.
  [8.]  9.  If,  after  the  review of a contractor's minority and women
owned business utilization plan  or  review  of  a  periodic  compliance
report  and  after  such  contractor has been afforded an opportunity to
respond to a notice of deficiency issued by the  contracting  agency  in
connection  therewith, it appears that a contractor is failing or refus-
ing to comply with the minority and women-owned  business  participation
requirements as set forth in the state contract and where no waiver from
such  requirements  has  been granted, the contracting agency may file a
written complaint with the director pursuant to  section  three  hundred
sixteen of this article setting forth the facts and circumstances giving
rise  to  the  contracting agency's complaint together with a demand for
relief.  The contracting agency shall serve a  copy  of  such  complaint
upon  the  contractor  by  personal service or by certified mail, return
receipt requested. The contractor shall be afforded  an  opportunity  to
respond to such complaint in writing.
  S  6.  The  executive  law is amended by adding a new section 313-a to
read as follows:
  S 313-A. DIVERSITY PRACTICES OF STATE CONTRACTORS. THE DIRECTOR  SHALL
PROMULGATE  RULES  AND REGULATIONS SETTING FORTH MEASURES AND PROCEDURES
TO REQUIRE ALL CONTRACTING AGENCIES,  WHERE  PRACTICABLE,  FEASIBLE  AND
APPROPRIATE, TO ASSESS THE DIVERSITY PRACTICES OF CONTRACTORS SUBMITTING
BIDS OR PROPOSALS IN CONNECTION WITH THE AWARD OF A STATE CONTRACT. SUCH
RULES  AND REGULATIONS SHALL TAKE INTO ACCOUNT: THE NATURE OF THE LABOR,
SERVICES, SUPPLIES, EQUIPMENT OR MATERIALS BEING PROCURED BY  THE  STATE
AGENCY;  THE METHOD OF PROCUREMENT REQUIRED TO BE USED BY A STATE AGENCY
TO AWARD THE CONTRACT AND MINORITY AND WOMEN-OWNED BUSINESS  UTILIZATION
PLANS REQUIRED TO BE SUBMITTED PURSUANT TO SECTIONS THREE HUNDRED TWELVE
AND  THREE  HUNDRED  THIRTEEN OF THIS ARTICLE; AND SUCH OTHER FACTORS AS
THE DIRECTOR DEEMS APPROPRIATE OR NECESSARY  TO  PROMOTE  THE  AWARD  OF
STATE  CONTRACTS  TO CONTRACTORS HAVING SOUND DIVERSITY PRACTICES.  SUCH
ASSESSMENT SHALL NOT IN ANY WAY PERMIT THE AUTOMATIC REJECTION OF A  BID
OR PROCUREMENT CONTRACT PROPOSAL BASED ON LACK OF ADHERENCE TO DIVERSITY
PRACTICES.   EACH BID OR PROPOSAL SHALL BE ANALYZED ON AN INDIVIDUAL PER
BID OR PER PROPOSAL BASIS  WITH  THE  CONTRACTOR'S  DIVERSITY  PRACTICES
CONSIDERED  AS  ONLY  A PART OF A WIDER CONSIDERATION OF SEVERAL FACTORS
WHEN DECIDING TO AWARD OR DECLINE TO AWARD  A  BID  OR  PROPOSAL.    THE
DIRECTOR SHALL DEVELOP THE RULES AND REGULATIONS REQUIRED HEREUNDER ONLY
AFTER  CONSULTATION  WITH  THE  STATE PROCUREMENT COUNCIL ESTABLISHED BY
SECTION ONE HUNDRED SIXTY-ONE OF THE STATE FINANCE LAW.
  S 7. Subdivision 3 of section 315 of the executive law,  as  added  by
chapter 261 of the laws of 1988, is amended and four new subdivisions 4,
5, 6 and 7 are added to read as follows:
  3.  Each  contracting agency shall report to the director with respect
to activities undertaken to promote employment of minority group members
and women and promote and increase participation by certified businesses
with respect to state contracts and subcontracts. Such reports shall  be
submitted  periodically,  BUT  NOT  LESS  FREQUENTLY  THAN  ANNUALLY, as
required by the director, AND  SHALL  INCLUDE  SUCH  INFORMATION  AS  IS
NECESSARY  FOR  THE DIRECTOR TO DETERMINE WHETHER THE CONTRACTING AGENCY
AND CONTRACTOR HAVE COMPLIED WITH THE PURPOSES OF THIS ARTICLE,  INCLUD-

A. 11527                           12

ING, WITHOUT LIMITATION, A SUMMARY OF ALL WAIVERS OF THE REQUIREMENTS OF
SUBDIVISIONS  SIX  AND  SEVEN  OF SECTION THREE HUNDRED THIRTEEN OF THIS
ARTICLE ALLOWED BY THE CONTRACTING AGENCY DURING THE PERIOD  COVERED  BY
THE  REPORT,  INCLUDING A DESCRIPTION OF THE BASIS OF THE WAIVER REQUEST
AND THE RATIONALE FOR GRANTING ANY SUCH WAIVER.  EACH AGENCY SHALL  ALSO
INCLUDE  IN  SUCH  ANNUAL  REPORT WHETHER OR NOT IT HAS BEEN REQUIRED TO
PREPARE A REMEDIAL PLAN, AND, IF SO, THE PLAN AND THE  EXTENT  TO  WHICH
THE AGENCY HAS COMPLIED WITH EACH ELEMENT OF THE PLAN.
  4.  THE  DIVISION  OF  MINORITY AND WOMEN'S BUSINESS DEVELOPMENT SHALL
ISSUE AN ANNUAL REPORT WHICH: (A) SUMMARIZES  THE  REPORT  SUBMITTED  BY
EACH  CONTRACTING  AGENCY PURSUANT TO SUBDIVISION THREE OF THIS SECTION;
(B) CONTAINS SUCH COMPARATIVE OR OTHER INFORMATION AS THE DIRECTOR DEEMS
APPROPRIATE, INCLUDING BUT NOT  LIMITED  TO  GOALS  COMPARED  TO  ACTUAL
PARTICIPATION  OF MINORITY AND WOMEN-OWNED BUSINESS ENTERPRISES IN STATE
CONTRACTING, TO EVALUATE THE EFFECTIVENESS OF THE ACTIVITIES  UNDERTAKEN
BY  EACH  SUCH  CONTRACTING AGENCY TO PROMOTE INCREASED PARTICIPATION BY
CERTIFIED MINORITY OR  WOMEN-OWNED  BUSINESSES  WITH  RESPECT  TO  STATE
CONTRACTS AND SUBCONTRACTS; (C) CONTAINS A SUMMARY OF ALL WAIVERS OF THE
REQUIREMENTS  OF  SUBDIVISIONS  SIX  AND  SEVEN OF SECTION THREE HUNDRED
THIRTEEN OF THIS ARTICLE ALLOWED BY EACH CONTRACTING AGENCY  DURING  THE
PERIOD  COVERED  BY  THE REPORT, INCLUDING A DESCRIPTION OF THE BASIS OF
THE WAIVER REQUEST AND THE CONTRACTING AGENCY'S RATIONALE  FOR  GRANTING
ANY SUCH WAIVER; (D) DESCRIBES ANY EFFORTS TO CREATE A DATABASE OR OTHER
INFORMATION STORAGE AND RETRIEVAL SYSTEM CONTAINING INFORMATION RELEVANT
TO  CONTRACTING  WITH MINORITY AND WOMEN-OWNED BUSINESS ENTERPRISES; AND
(E) CONTAINS A SUMMARY OF (I) ALL DETERMINATIONS OF VIOLATIONS  OF  THIS
ARTICLE  BY  A CONTRACTOR OR A CONTRACTING AGENCY MADE DURING THE PERIOD
COVERED BY THE ANNUAL REPORT PURSUANT TO SECTION THREE HUNDRED SIXTEEN-A
OF THIS ARTICLE AND (II) THE PENALTIES OR SANCTIONS, IF ANY, ASSESSED IN
CONNECTION WITH SUCH DETERMINATIONS AND THE RATIONALE FOR SUCH PENALTIES
OR SANCTIONS.  COPIES OF THE ANNUAL REPORT  SHALL  BE  PROVIDED  TO  THE
COMMISSIONER,  THE GOVERNOR, THE COMPTROLLER, THE TEMPORARY PRESIDENT OF
THE SENATE, THE SPEAKER OF THE ASSEMBLY,  THE  MINORITY  LEADER  OF  THE
SENATE, THE MINORITY LEADER OF THE ASSEMBLY AND SHALL ALSO BE MADE WIDE-
LY  AVAILABLE  TO  THE  PUBLIC VIA, AMONG OTHER THINGS, PUBLICATION ON A
WEBSITE MAINTAINED BY THE DIVISION  OF  MINORITY  AND  WOMEN'S  BUSINESS
DEVELOPMENT.
  5. EACH AGENCY SHALL INCLUDE IN ITS  ANNUAL REPORT TO THE GOVERNOR AND
LEGISLATURE  PURSUANT TO SECTION ONE HUNDRED SIXTY-FOUR OF THE EXECUTIVE
LAW ITS ANNUAL GOALS FOR CONTRACTS WITH MINORITY-OWNED  AND  WOMEN-OWNED
BUSINESS  ENTERPRISES,  THE NUMBER OF ACTUAL CONTRACTS ISSUED TO MINORI-
TY-OWNED AND WOMEN-OWNED BUSINESS ENTERPRISES;  AND  A  SUMMARY  OF  ALL
WAIVERS  OF  THE  REQUIREMENTS  OF SUBDIVISIONS SIX AND SEVEN OF SECTION
THREE HUNDRED THIRTEEN OF THIS ARTICLE ALLOWED BY THE  REPORTING  AGENCY
DURING  THE  PRECEDING YEAR, INCLUDING A DESCRIPTION OF THE BASIS OF THE
WAIVER REQUEST AND THE RATIONALE FOR GRANTING SUCH WAIVER.  EACH  AGENCY
SHALL  ALSO  INCLUDE  IN  SUCH  ANNUAL REPORT WHETHER OR NOT IT HAS BEEN
REQUIRED TO PREPARE A REMEDIAL PLAN, AND, IF SO, THE PLAN AND THE EXTENT
TO WHICH THE AGENCY HAS COMPLIED WITH EACH ELEMENT OF THE PLAN.
  6. EACH CONTRACTING AGENCY THAT SUBSTANTIALLY FAILS TO MEET THE  GOALS
SUPPORTED BY THE DISPARITY STUDY, AS DEFINED BY REGULATION OF THE DIREC-
TOR,  SHALL BE REQUIRED TO SUBMIT TO THE DIRECTOR A REMEDIAL ACTION PLAN
TO REMEDY SUCH FAILURE.
  7. IF IT IS DETERMINED BY THE DIRECTOR THAT ANY AGENCY HAS  FAILED  TO
ACT  IN  GOOD  FAITH  TO IMPLEMENT THE REMEDIAL ACTION PLAN, PURSUANT TO
SUBDIVISION SIX OF THIS SECTION WITHIN  ONE  YEAR,  THE  DIRECTOR  SHALL

A. 11527                           13

PROVIDE WRITTEN NOTICE OF SUCH A FINDING, WHICH SHALL BE PUBLICLY AVAIL-
ABLE, AND DIRECT IMPLEMENTATION OF REMEDIAL ACTIONS TO:
  (A) ASSURE THAT SUFFICIENT AND EFFECTIVE SOLICITATION EFFORTS TO WOMEN
AND MINORITY-OWNED BUSINESS ENTERPRISES ARE BEING MADE BY SAID AGENCY;
  (B)  DIVIDE  CONTRACT  REQUIREMENTS,  WHEN ECONOMICALLY FEASIBLE, INTO
QUANTITIES  THAT  WILL   EXPAND   THE   PARTICIPATION   OF   WOMEN   AND
MINORITY-OWNED BUSINESS ENTERPRISES;
  (C) ELIMINATE EXTENDED EXPERIENCE OR CAPITALIZATION REQUIREMENTS, WHEN
PROGRAMMATICALLY  AND  ECONOMICALLY  FEASIBLE,  THAT WILL EXPAND PARTIC-
IPATION BY WOMEN AND MINORITY-OWNED BUSINESS ENTERPRISES;
  (D) IDENTIFY SPECIFIC PROPOSED CONTRACTS AS PARTICULARLY ATTRACTIVE OR
APPROPRIATE FOR  PARTICIPATION  BY  WOMEN  AND  MINORITY-OWNED  BUSINESS
ENTERPRISES  WITH SUCH IDENTIFICATION TO RESULT FROM AND BE COUPLED WITH
THE EFFORTS OF PARAGRAPHS (A), (B), AND (C) OF THIS SUBDIVISION; AND
  (E) UPON A FINDING BY THE DIRECTOR THAT AN AGENCY HAS FAILED  TO  TAKE
AFFIRMATIVE MEASURES TO IMPLEMENT THE REMEDIAL PLAN AND TO FOLLOW ANY OF
THE  REMEDIAL  ACTIONS  SET FORTH BY THE DIRECTOR, AND IN THE ABSENCE OF
ANY OBJECTIVE PROGRESS TOWARDS THE AGENCY'S GOALS, REQUIRE SOME  OR  ALL
OF  THE  AGENCY'S PROCUREMENT, FOR A SPECIFIED PERIOD OF TIME, BE PLACED
UNDER THE DIRECTION AND CONTROL OF ANOTHER AGENCY OR AGENCIES.
  S 8. Subdivision 2-a of section 314 of the executive law, as added  by
section  2  of  part BB of chapter 59 of the laws of 2006, is amended to
read as follows:
  2-a. (a) The director shall establish a procedure enabling the  office
to  accept New York municipal corporation certification verification for
minority and women-owned  business  enterprise  applicants  in  lieu  of
requiring the applicant to complete the state certification process. The
director  shall  promulgate  rules and regulations to set forth criteria
for the acceptance of municipal corporation certification. All  eligible
municipal  corporation certifications shall require business enterprises
seeking certification to meet the following standards:
  (i) have at least fifty-one percent  ownership  by  a  minority  or  a
women-owned  enterprise and be owned by United States citizens or perma-
nent resident aliens;
  (ii) be an enterprise in which  the  minority  and/or  women-ownership
interest is real, substantial and continuing;
  (iii)  be  an  enterprise in which the minority and/or women-ownership
has and exercises the authority to control independently the  day-to-day
business decisions of the enterprise;
  (iv) be an enterprise authorized to do business in this state; [and]
  (v)  be  subject to a physical site inspection to verify the fifty-one
percent ownership requirement[.];
  (VI) BE OWNED  BY  AN  INDIVIDUAL  OR  INDIVIDUALS,  WHOSE  OWNERSHIP,
CONTROL AND OPERATION ARE RELIED UPON FOR CERTIFICATION, WITH A PERSONAL
NET  WORTH  THAT  DOES  NOT  EXCEED  THREE MILLION FIVE HUNDRED THOUSAND
DOLLARS, AS ADJUSTED ANNUALLY FOR INFLATION ACCORDING  TO  THE  CONSUMER
PRICE INDEX; AND
  (VII)  BE  AN ENTERPRISE THAT IS A SMALL BUSINESS PURSUANT TO SUBDIVI-
SION TWENTY OF SECTION THREE HUNDRED TEN OF THIS ARTICLE.
  (b) The director shall work with all municipal corporations that  have
a  municipal  minority  and  women-owned  business enterprise program to
develop standards to accept state certification to  meet  the  municipal
corporation  minority  and women-owned business enterprise certification
standards.
  (c) The director shall establish a procedure enabling the division  to
accept  federal  certification verification for minority and women-owned

A. 11527                           14

business enterprise applicants, PROVIDED  SAID  STANDARDS  COMPORT  WITH
THOSE  REQUIRED  BY THE STATE MINORITY AND WOMEN-OWNED BUSINESS PROGRAM,
in lieu of requiring the applicant to complete the  state  certification
process.  The  director  shall  promulgate  rules and regulations to set
forth criteria for the acceptance of federal certification.
  S 9. Section 316 of the executive law, as added by chapter 261 of  the
laws of 1988, is amended to read as follows:
  S 316. Enforcement.  Upon  receipt by the director of a complaint by a
contracting agency that a contractor has violated the  provisions  of  a
state contract which have been included to comply with the provisions of
this  article  or of a contractor that a contracting agency has violated
such provisions or has failed or refused to issue a waiver where one has
been applied for pursuant to subdivision [five]  SIX  of  section  three
hundred  thirteen  of  this  article or has denied such application, the
director shall attempt  to  resolve  the  matter  giving  rise  to  such
complaint.  If efforts to resolve such matter to the satisfaction of all
parties are unsuccessful, the director shall refer  the  matter,  within
thirty  days  of  the  receipt  of the complaint, to the [American Arbi-
tration Association for proceeding thereon] DIVISION'S HEARING OFFICERS.
Upon conclusion of the [arbitration proceedings] ADMINISTRATIVE HEARING,
the [arbitrator] HEARING OFFICER shall submit to the director his or her
[award] DECISION regarding the alleged violation  of  the  contract  and
recommendations  regarding  the imposition of sanctions, fines or penal-
ties. [The director shall either:  (a) adopt the recommendation  of  the
arbitrator;  or  (b)  determine  that  no  sanctions, fines or penalties
should be imposed; or (c) modify the recommendation of  the  arbitrator,
provided  that  such  modification  shall  not  expand upon any sanction
recommended or impose any new sanction, or increase the  amount  of  any
recommended  fine  or penalty.] The director, within ten days of receipt
of the [arbitrator's award and recommendations] DECISION, shall  file  a
determination  of  such  matter  and shall cause a copy of such determi-
nation along with a copy of this article to be served upon the [respond-
ent] CONTRACTOR by personal service or by certified mail return  receipt
requested.  The  [award]  DECISION  of  the [arbitrator] HEARING OFFICER
shall be final and may only be vacated or modified as provided in  arti-
cle  [seventy-five]  SEVENTY-EIGHT  of  the civil practice law and rules
upon an application made within the time provided by  [section  seventy-
five  hundred  eleven of the civil practice law and rules] SUCH ARTICLE.
The determination of the director as to the  imposition  of  any  fines,
sanctions  or penalties shall be reviewable pursuant to article seventy-
eight of the civil practice law and rules. THE PENALTIES IMPOSED FOR ANY
VIOLATION WHICH IS PREMISED UPON  EITHER  A  FRAUDULENT  OR  INTENTIONAL
MISREPRESENTATION  BY  THE  CONTRACTOR  OR  THE CONTRACTOR'S WILLFUL AND
INTENTIONAL DISREGARD OF  THE  MINORITY  AND  WOMEN-OWNED  PARTICIPATION
REQUIREMENT  INCLUDED  IN  THE CONTRACT MAY INCLUDE A DETERMINATION THAT
THE CONTRACTOR SHALL BE INELIGIBLE TO SUBMIT A BID  TO  ANY  CONTRACTING
AGENCY  OR  BE  AWARDED ANY SUCH CONTRACT FOR A PERIOD NOT TO EXCEED ONE
YEAR FOLLOWING THE FINAL DETERMINATION; PROVIDED HOWEVER, IF A  CONTRAC-
TOR  HAS  PREVIOUSLY  BEEN  DETERMINED  TO BE INELIGIBLE TO SUBMIT A BID
PURSUANT TO THIS SECTION,  THE  PENALTIES  IMPOSED  FOR  ANY  SUBSEQUENT
VIOLATION,  IF  SUCH  VIOLATION  OCCURS  WITHIN  FIVE YEARS OF THE FIRST
VIOLATION, MAY INCLUDE A DETERMINATION  THAT  THE  CONTRACTOR  SHALL  BE
INELIGIBLE  TO  SUBMIT A BID TO ANY CONTRACTING AGENCY OR BE AWARDED ANY
SUCH CONTRACT FOR A PERIOD NOT TO EXCEED FIVE YEARS FOLLOWING THE  FINAL
DETERMINATION. THE DIVISION OF MINORITY AND WOMEN'S BUSINESS DEVELOPMENT
SHALL  MAINTAIN  A WEBSITE LISTING ALL CONTRACTORS THAT HAVE BEEN DEEMED

A. 11527                           15

INELIGIBLE TO SUBMIT A BID PURSUANT TO THIS SECTION AND THE  DATE  AFTER
WHICH EACH CONTRACTOR SHALL ONCE AGAIN BECOME ELIGIBLE TO SUBMIT BIDS.
  S  10.  The  executive law is amended by adding a new section 316-a to
read as follows:
  S 316-A. PROHIBITIONS  IN  CONTRACTS;  VIOLATIONS.  EVERY  CONTRACTING
AGENCY  SHALL  INCLUDE  A  PROVISION  IN  ITS  STATE CONTRACTS EXPRESSLY
PROVIDING THAT ANY CONTRACTOR WHO WILLFULLY AND INTENTIONALLY  FAILS  TO
COMPLY  WITH  THE MINORITY AND WOMEN-OWNED PARTICIPATION REQUIREMENTS OF
THIS ARTICLE AS SET FORTH IN SUCH STATE CONTRACT SHALL BE LIABLE TO  THE
CONTRACTING AGENCY FOR LIQUIDATED OR OTHER APPROPRIATE DAMAGES AND SHALL
PROVIDE  FOR  OTHER  APPROPRIATE  REMEDIES  ON ACCOUNT OF SUCH BREACH. A
CONTRACTING AGENCY THAT ELECTS  TO  PROCEED  AGAINST  A  CONTRACTOR  FOR
BREACH  OF  CONTRACT AS PROVIDED IN THIS SECTION SHALL BE PRECLUDED FROM
SEEKING ENFORCEMENT PURSUANT TO SECTION THREE HUNDRED  SIXTEEN  OF  THIS
ARTICLE;  PROVIDED  HOWEVER, THAT THE CONTRACTING AGENCY SHALL INCLUDE A
SUMMARY OF ALL ENFORCEMENT ACTIONS UNDERTAKEN PURSUANT TO  THIS  SECTION
IN  ITS ANNUAL REPORT SUBMITTED PURSUANT TO SUBDIVISION THREE OF SECTION
THREE HUNDRED FIFTEEN OF THIS ARTICLE.
  S 11. Severability. If any clause,  sentence,  paragraph,  section  or
part  of  this act shall be adjudged by any court of competent jurisdic-
tion to be invalid, the judgment shall not affect, impair, or invalidate
the remainder thereof, but shall be confined in  its  operation  to  the
clause,  sentence,  paragraph,  section  or  part  of  this act directly
involved in the controversy  in  which  the  judgment  shall  have  been
rendered.
  S  12. The state financial system is authorized and directed to assist
the director of the office of minority and women's business  development
in the implementation of this act.
  S  13.    The opening   paragraph of subdivision (h) of section 121 of
chapter 261 of the laws of 1988, amending  the  state  finance  law  and
other  laws relating to the New York state infrastructure trust fund, as
amended by chapter 628 of the laws  of  2003,  is  amended  to  read  as
follows:
  The  provisions  of  section  sixty-two  through sixty-six of this act
shall expire on December thirty-first, two thousand [eighteen]  SIXTEEN,
except that:
  S  14.  This act shall take effect on the ninetieth day after it shall
have become a law; provided however, that the amendments to article 15-A
of the executive law made by  sections  two,  four,  five,  six,  seven,
eight, nine, and ten of this act shall not affect the expiration of such
article  and shall be deemed to expire therewith; provided, further that
the director of the division of minority and women's  business  develop-
ment  shall  be  authorized  to commence the rulemaking process required
pursuant to sections five and six of this act  prior  to  the  effective
date of this act; and provided further that any minority business enter-
prise  and  women's business enterprise certified prior to the effective
date  of  this  section  shall  not  be  subject  to  any  certification
restriction  provided  for  in  this  act until such time as the certif-
ication is renewed.