senate Bill S1330

Authorizes political subdivisions to award public contracts to participants of a MWBE program at a cost premium not to exceed ten percent of the lowest bid

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Bill Status


  • Introduced
  • In Committee
  • On Floor Calendar
    • Passed Senate
    • Passed Assembly
  • Delivered to Governor
  • Signed/Vetoed by Governor
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actions

  • 06 / Jan / 2011
    • REFERRED TO LOCAL GOVERNMENT
  • 04 / Jan / 2012
    • REFERRED TO LOCAL GOVERNMENT

Summary

Authorizes political subdivisions to award public contracts to participants of a minority and women owned business enterprise program at a cost premium not to exceed ten percent of the lowest bid.

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Bill Details

See Assembly Version of this Bill:
A1906
Versions:
S1330
Legislative Cycle:
2011-2012
Current Committee:
Senate Local Government
Law Section:
General Municipal Law
Laws Affected:
Amd §104-a, Gen Muni L
Versions Introduced in Previous Legislative Cycles:
2009-2010: S3185, A6807
2007-2008: A11672

Sponsor Memo

BILL NUMBER:S1330

TITLE OF BILL:

An act
to amend the general municipal law, in relation to authorizing political
subdivisions to award public contracts to participants of a minority and
women owned business enterprise program at a cost premium not to exceed
ten percent of the lowest bid as an available remedy to a demonstrated
disparity

PURPOSE:

To ensure MWBE certified businesses can compete for local procurement
opportunities.

SUMMARY OF PROVISIONS:

Amends Section 104-a of the general municipal law to provide that when
purchasing goods, services or construction for public use on
contracts less than one million a municipality may award the contract
as reasonably competitive when (1) a study has found that there is or
has been a disparity between the availability and the utilization of
MWBEs in the award of contracts by such political subdivision or
district therein;
and (2) the bid does not exceed the lowest bid by more than ten percent.

JUSTIFICATION:

Many MWBEs are losing contracts by very small margins (a few
percentage points). Though localities like the City of New York,
which have increased its certified MWBE firms by over 40% from
December 2006 to December 2007, the number of firms who win contracts
remain very low, despite the goals set forth in NYC Local law 129 and
the goals and utilization plans set forth by the individual agencies.
Due to General Municipal Law § 103, localities cannot require
agencies to award contracts to anyone but a lowest responsible
bidder. This constrains localities from developing a stronger program
that might result in more contract awards to certified MWBEs.

As many MWBEs are losing bids by very narrow margins, legislation that
would allow the localities to give certified firms a small price
preference could help address this problem. State Finance law
165(3) (b) (i) already allows for such a price preference for the
state purchase of recycled goods (state agencies may purchase
recycled commodities at a cost premium not to exceed ten percent of
what a non-recycled commodity would cost or not to exceed 15% for
commodities with over 50% secondary materials generated from NY waste
stream). Legislation that mirrors STF §165, would allow
municipalities to give certified MWBEs a small price preference when
awarding qualifying contracts.

LEGISLATIVE HISTORY:

2009/10 - S.8575/A.6807 Passed Senate
2007/08 - S.8575/A.11672


FISCAL IMPLICATIONS:

None to the State; local impact would depend on how the law is
implemented by a municipality.

EFFECTIVE DATE:

This act shall take effect on the 30th day after becoming law.

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

                                  1330

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                             January 6, 2011
                               ___________

Introduced  by  Sens.  DILAN,  DIAZ,  HASSELL-THOMPSON -- read twice and
  ordered printed, and when printed to be committed to the Committee  on
  Local Government

AN  ACT  to  amend the general municipal law, in relation to authorizing
  political subdivisions to award public contracts to participants of  a
  minority and women owned business enterprise program at a cost premium
  not  to exceed ten percent of the lowest bid as an available remedy to
  a demonstrated disparity

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

  Section  1.  Section 104-a of the general municipal law, as amended by
chapter 468 of the laws of 1994, is amended to read as follows:
  S 104-a. Purchasing [of products] for public use.  1.  Notwithstanding
the  provisions  of section one hundred three of this [chapter] ARTICLE,
when purchasing products the officer, board or agency of  any  political
subdivision  or  of  any  district  therein charged with the awarding of
public contracts may, wherever recycled products meet contract  specifi-
cations  and  the  price  of  such  products  is reasonably competitive,
purchase such products. For the purpose of  this  [section]  SUBDIVISION
and  until  July  first, nineteen hundred ninety-six, "recycled product"
shall mean any product which has been manufactured from secondary  mate-
rials, as defined in subdivision one of section two hundred sixty-one of
the  economic  development  law,  and  meets  secondary material content
requirements adopted by the office of general services  [under  subdivi-
sion  one of section one hundred seventy-seven of the state finance law]
for products available to the political subdivision  or  district  under
state  contract  or,  if no such contract for such product is available,
any product which meets  the  secondary  material  content  requirements
adopted by the political subdivision or district thereof with respect to
a  specific  commodity  procurement  by  such  entity. On and after July
first, nineteen hundred ninety-six, "recycled product" shall  mean,  for

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD02925-01-1

S. 1330                             2

the  purposes  of this [section] SUBDIVISION, any product which is manu-
factured from secondary materials, as  defined  in  subdivision  one  of
section two hundred sixty-one of the economic development law, and which
meets  the  requirements  of  subdivision  two of section 27-0717 of the
environmental conservation  law  and  regulations  promulgated  pursuant
thereto.  For  the  purpose  of  this [section] SUBDIVISION, "reasonably
competitive" shall mean that the cost of the recycled product  does  not
exceed  a  cost  premium  of  ten percent above the cost of a comparable
product that is not a recycled product or, if at least fifty percent  of
the  secondary materials utilized in the manufacture of that product are
generated from the waste stream in New York state, the cost of the recy-
cled product does not exceed a cost premium of fifteen percent above the
cost of a comparable product that is not a recycled product.
  Whenever such officer, board or agency shall  purchase  or  cause  the
purchase  of  printing on recycled paper pursuant to this section, he or
she shall require the printed material to  contain  the  official  state
recycling  emblem  established  pursuant  to  subdivision two of section
27-0717 of the environmental conservation law and regulations promulgat-
ed pursuant thereto if such paper has been approved by the department of
environmental conservation as satisfying the requirements of such  stat-
ute and regulations, or, if such paper has not been so approved, require
the  printed material to include a printed statement which indicates the
percentages of pre-consumer and post-consumer recycled material  content
of such paper.
  2. NOTWITHSTANDING THE PROVISIONS OF SECTION ONE HUNDRED THREE OF THIS
ARTICLE, WHEN PURCHASING GOODS, SERVICES OR CONSTRUCTION FOR PUBLIC USE,
THE  OFFICER,  BOARD  OR  AGENCY  OF ANY POLITICAL SUBDIVISION OR OF ANY
DISTRICT THEREIN CHARGED WITH THE  AWARDING  OF  PUBLIC  CONTRACTS  THAT
EMPLOY A MINORITY OR WOMEN OWNED BUSINESS ENTERPRISE (MWBE) PROGRAM, MAY
AWARD  ANY  CONTRACT  VALUED  AT  NO  MORE THAN ONE MILLION DOLLARS TO A
PARTICIPANT OF SUCH PROGRAM EVEN IF SUCH PARTICIPANT IS NOT  THE  LOWEST
BIDDER  FOR SUCH CONTRACT, PROVIDED, HOWEVER THAT SUCH AWARD MAY ONLY BE
MADE TO THE LOWEST MWBE BID THAT IS REASONABLY  COMPETITIVE.    FOR  THE
PURPOSE  OF  THIS  SUBDIVISION,  AN "MWBE PROGRAM" SHALL BE DEFINED AS A
PROGRAM DESIGNED TO INCREASE PARTICIPATION OF MWBES IN PUBLIC  CONTRACT-
ING  THAT IS BASED ON A STUDY IN WHICH IT WAS FOUND THAT THERE IS OR HAS
BEEN A DISPARITY BETWEEN THE AVAILABILITY AND THE UTILIZATION  OF  MWBES
IN  THE  AWARD  OF  CONTRACTS  BY SUCH POLITICAL SUBDIVISION OR DISTRICT
THEREIN. FOR THE PURPOSE OF THIS SUBDIVISION,  "REASONABLY  COMPETITIVE"
SHALL MEAN THAT THE MWBE BID DOES NOT EXCEED THE LOWEST BID BY MORE THAN
TEN PERCENT.
  S  2.  This  act shall take effect on the thirtieth day after it shall
have become a law.

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