S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   7778
 
                        2021-2022 Regular Sessions
 
                           I N  A S S E M B L Y
 
                               May 21, 2021
                                ___________
 
 Introduced  by  M.  of A. BICHOTTE HERMELYN -- read once and referred to
   the Committee on Governmental Operations
 
 AN ACT to amend the executive law, in relation to requiring  contracting
   agencies to contact minority and women-owned business enterprises when
   such enterprise is listed on a utilization plan and when a contract is
   awarded

   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. Paragraphs (a) and (b) of subdivision 5 of section  313  of
 the  executive  law,  as  amended by chapter 96 of the laws of 2019, are
 amended and six new paragraphs (b-1), (b-2), (b-3), (b-4), (b-5) and (d)
 are added to read as follows:
   (a) Contracting agencies shall administer the  rules  and  regulations
 promulgated  by the director in a good faith effort to achieve the maxi-
 mum feasible participation by [minority] BOTH MINORITY-OWNED and  [women
 owned] WOMEN-OWNED business enterprises adopted pursuant to this article
 and  the  regulations  of  the  director PRIOR TO THE PRIME CONTRACTOR'S
 INCEPTION OF THE SCOPE OF WORK OUTLINED IN  AN  AWARDED  CONTRACT.  Such
 rules  and  regulations:  shall require a PRIME contractor to [submit a]
 UTILIZE THE MINORITY AND WOMEN-OWNED BUSINESS ENTERPRISES LISTED ON  THE
 utilization  plan [after] SUBMITTED WHEN bids are opened, [when bids are
 required, but prior] PROVIDED THAT  THE  MINORITY-OWNED  OR  WOMEN-OWNED
 BUSINESS ENTERPRISE IS STILL CERTIFIED WITH NEW YORK STATE. PRIOR to the
 award of a state contract[; shall require] WITH MINORITY AND WOMEN-OWNED
 BUSINESS  ENTERPRISE  GOALS the contracting agency [to] SHALL review the
 utilization plan submitted by the PRIME contractor and [to]  SHALL  post
 the  utilization  plan  and any waivers of compliance issued pursuant to
 subdivision six of this section on the website of the contracting  agen-
 cy[; shall require the]. WITHIN FIVE BUSINESS DAYS AFTER AN AWARD LETTER
 IS  SENT TO THE PRIME CONTRACTOR, THE CONTRACTING AGENCY SHALL SUBMIT AN
 AWARD NOTIFICATION LETTER  TO  THE  MINORITY  AND  WOMEN-OWNED  BUSINESS
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD06047-03-1

 A. 7778                             2
 
 ENTERPRISE  LISTED ON THE UTILIZATION PLAN. THE MINORITY AND WOMEN-OWNED
 BUSINESS ENTERPRISE LISTED ON THE ORIGINAL UTILIZATION PLAN AT THE  TIME
 OF  SUBMISSION  SHALL  NOT BE AMENDED OR CHANGED BY THE CONTRACTOR AFTER
 SUBMISSION TO THE CONTRACTING AGENCY FOR APPROVAL. THE contracting agen-
 cy SHALL BE REQUIRED to notify the PRIME contractor in writing within [a
 period  of  time specified by the director] TEN DAYS as to any deficien-
 cies contained in the contractor's utilization plan[;] AND 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;] SEVEN DAYS OF
 SUCH NOTIFICATION. THE CONTRACTING AGENCY 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 six and  seven  of  this  section;
 shall  allow a contractor to file a complaint with the director pursuant
 to subdivision eight of this section in the event a  contracting  agency
 has  failed or refused to issue a waiver of the minority 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 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], UNLESS SUCH ENTERPRISE CANNOT PERFORM UNDER THE CONTRACT OR SUCH
 ENTERPRISE IS NO LONGER CERTIFIED BY THE STATE. A contracting agency may
 require  a contractor to indicate, within a utilization plan, what meas-
 ures 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].
   (B-1)  AFTER  THE  CONTRACTING  AGENCY  AWARDS  A  CONTRACT, THE PRIME
 CONTRACTOR SHALL EXECUTE A SUBCONTRACTOR'S AGREEMENT AND PROVIDE A  WORK
 ASSIGNMENT  TO  THE MINORITY AND WOMEN-OWNED BUSINESS ENTERPRISES LISTED
 IN THE UTILIZATION PLAN WITHIN FORTY-FIVE DAYS OF SUCH AWARD.    FAILURE
 TO  COMPLY WITH THIS REQUIREMENT SHALL RESULT IN DISQUALIFICATION OF THE
 PRIME CONTRACTOR AND THE CONTRACTING AGENCY SHALL RE-AWARD THE  CONTRACT
 TO THE NEXT LOWEST BIDDER OR ELIGIBLE BIDDER.
   (B-2)  AFTER  RECEIVING  THE  FIRST PAYMENT ON THE CONTRACT, THE PRIME
 CONTRACTOR SHALL MAKE PAYMENTS TO THE MINORITY AND WOMEN-OWNED  BUSINESS
 ENTERPRISE  FOR  WORK PERFORMED UNDER THE CONTRACT WITHIN TWENTY DAYS OF
 RECEIPT OF EACH PAYMENT RECEIVED FROM THE CONTRACTING AGENCY. A MINORITY
 AND WOMEN-OWNED BUSINESS ENTERPRISE MAY NOTIFY THE CONTRACTING AGENCY OF
 ANY VIOLATION  OF  THIS  PARAGRAPH  BY  THE  PRIME  CONTRACTOR  AND  THE
 CONTRACTING  AGENCY  SHALL  THEN  NOTIFY THE PRIME CONTRACTOR TO CORRECT
 SUCH DEFICIENCY WITHIN TEN DAYS OF  NOTIFICATION.  THE  FAILURE  OF  THE
 CONTRACTOR  TO  MAKE SUCH PAYMENTS TO THE MINORITY AND WOMEN-OWNED BUSI-
 NESS ENTERPRISE SHALL RESULT IN  DISQUALIFICATION  AND  THE  CONTRACTING
 AGENCY  SHALL RE-AWARD SUCH CONTRACT TO THE NEXT LOWEST BIDDER OR ELIGI-
 BLE BIDDER.
   (B-3) A PRIME CONTRACTOR WHICH IS A CERTIFIED MINORITY-OWNED  BUSINESS
 MAY  SELF-CERTIFY  AND PERFORM UNDER THE CONTRACT TO MEET THE CONTRACT'S
 MINORITY-OWNED BUSINESS ENTERPRISE GOALS.

 A. 7778                             3
 
   (B-4) A PRIME CONTRACTOR WHICH IS A CERTIFIED WOMEN-OWNED BUSINESS MAY
 SELF-CERTIFY AND PERFORM UNDER  THE  CONTRACT  TO  MEET  THE  CONTRACT'S
 WOMEN-OWNED  BUSINESS ENTERPRISE GOAL ONLY, AND IT MUST UTILIZE A CERTI-
 FIED MINORITY-OWNED BUSINESS ENTERPRISE TO PERFORM UNDER THE CONTRACT TO
 MEET THE CONTRACT'S MINORITY-OWNED BUSINESS GOALS.
   (B-5)  A PRIME CONTRACTOR WHICH IS DUALLY CERTIFIED MINORITY-OWNED AND
 WOMEN-OWNED BUSINESS ENTERPRISE MAY SELF-CERTIFY AND PERFORM  UNDER  THE
 CONTRACT  TO MEET THE CONTRACT'S MINORITY-OWNED AND WOMEN-OWNED BUSINESS
 ENTERPRISE GOALS.
   (D) THIS SUBDIVISION SHALL APPLY  TO  ALL  PUBLIC  CONTRACTS  WHERE  A
 PUBLIC  AGENCY  ISSUES  A REQUEST FOR PROPOSALS, NOTWITHSTANDING WHETHER
 THE CONTRACT COULD OTHERWISE BE AWARDED THROUGH THE AGENCY'S DISCRETION-
 ARY CONTRACT AWARD PROCESS  OR  THE  NON-EXISTENCE  OF  A  DISCRETIONARY
 CONTRACT AWARD PROCESS WITHIN THE PUBLIC AGENCY.
   §  2.  This act shall take effect immediately; provided, however, that
 the amendments to subdivision 5 of section 313 of the executive law made
 by section one of this act shall not affect the repeal of  such  section
 and shall be deemed repealed therewith.