S T A T E O F N E W Y O R K
________________________________________________________________________
4094
2009-2010 Regular Sessions
I N A S S E M B L Y
January 30, 2009
___________
Introduced by M. of A. MILLMAN, DESTITO, PEOPLES -- Multi-Sponsored by
-- M. of A. BENJAMIN, BING, BOYLAND, CAHILL, CAMARA, CHRISTENSEN,
CLARK, DelMONTE, EDDINGTON, FARRELL, FIELDS, GOTTFRIED, GREENE,
GUNTHER, HOOPER, HYER-SPENCER, JACOBS, JAFFEE, JEFFRIES, JOHN, KOON,
LIFTON, LUPARDO, MAISEL, McENENY, NOLAN, PHEFFER, J. RIVERA,
P. RIVERA, ROBINSON, SWEENEY, TOWNS, WALKER, WEISENBERG -- read once
and referred to the Committee on Governmental Operations
AN ACT to amend the executive law, in relation to participation by
minority group members and women with respect to certain state
contracts; and to amend the state finance law, in relation to estab-
lishing a mentor-protege program for small and minority and women-
owned business concerns and in relation to performance and payment
bond requirements
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Subdivisions 3 and 4 of section 311 of the executive law,
as added by chapter 261 of the laws of 1988, paragraphs (d) and (e) of
subdivision 3 as amended by chapter 55 of the laws of 1992, paragraphs
(g) and (h) of subdivision 3 as amended and paragraph (i) of subdivision
3 as added by section 1 of part BB of chapter 59 of the laws of 2006,
are amended to read as follows:
3. The director shall have the following powers and duties:
(a) to encourage and assist contracting agencies in their efforts to
increase participation by minority and women-owned business enterprises
on state contracts and subcontracts so as to facilitate the award of a
fair share of such contracts to them AND TO PROVIDE ON THE DIVISION'S
WEBSITE A LIST OF EACH CONTRACTING AGENCY'S MINORITY AND WOMEN-OWNED
BUSINESS ENTERPRISES CERTIFICATION OUTREACH SEMINARS;
(b) to develop standardized forms and reporting documents necessary to
implement this article;
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD03888-02-9
A. 4094 2
(c) to conduct educational OUTREACH programs TO ENCOURAGE THE CERTIF-
ICATION OF MINORITY AND WOMEN-OWNED BUSINESS ENTERPRISES consistent with
the purposes of this article;
(d) to review [periodically] QUARTERLY the practices and procedures of
each contracting agency with respect to compliance with the provisions
of this article, and to require them to file [periodic] QUARTERLY
reports with the division of minority and women's business development
as to the level of minority and women-owned business enterprises partic-
ipation in the awarding of agency contracts for goods and services
INCLUDING BUT NOT LIMITED TO THE NUMBER OF STATE CONTRACTS AWARDED TO
CERTIFIED MINORITY-OWNED OR WOMEN-OWNED BUSINESS ENTERPRISES, THE MAXI-
MUM DOLLAR AMOUNT OBLIGATED PURSUANT TO ALL THOSE CONTRACTS, AND THE
TOTAL EXPENDITURES MADE PURSUANT TO ALL SUCH CONTRACTS; THE NUMBER OF
STATE CONTRACTS AWARDED TO CERTIFIED MINORITY OR WOMEN-OWNED BUSINESS
ENTERPRISES, THE MAXIMUM DOLLAR AMOUNT OBLIGATED PURSUANT TO ALL THOSE
CONTRACTS, AND THE TOTAL EXPENDITURES MADE PURSUANT TO ALL SUCH
CONTRACTS; THE NUMBER OF STATE CONTRACTS AWARDED WHICH INCLUDE A UTILI-
ZATION PLAN FOR BUSINESS PARTICIPATION BY CERTIFIED MINORITY OR
WOMEN-OWNED BUSINESS ENTERPRISES, THE MAXIMUM AMOUNT OBLIGATED PURSUANT
TO THOSE CONTRACTS, AND THE TOTAL EXPENDITURES MADE PURSUANT TO ALL SUCH
CONTRACTS; THE NUMBER OF STATE CONTRACTS AWARDED UPON WHICH A WAIVER WAS
GRANTED FROM GOALS REQUIRED BY THE CONTRACTS FOR BUSINESS PARTICIPATION
BY CERTIFIED MINORITY OR WOMEN-OWNED BUSINESS ENTERPRISES, AND THE MAXI-
MUM AMOUNT OBLIGATED PURSUANT TO THOSE CONTRACTS; THE NUMBER OF STATE
CONTRACTS AWARDED WHICH REQUIRED GOALS FOR EMPLOYMENT OF MINORITY GROUP
MEMBERS AND WOMEN; AND THE NUMBER OF STATE CONTRACTS AWARDED FOR WHICH
WAIVERS OF EMPLOYMENT GOALS REQUIRED BY THE CONTRACTS HAVE BEEN GRANTED;
(e) on January first of each year report to the governor, THE TEMPO-
RARY PRESIDENT OF THE SENATE, THE SPEAKER OF THE ASSEMBLY, THE MINORITY
LEADERS OF THE SENATE AND THE ASSEMBLY, and the chairpersons of the
senate finance and assembly ways and means committees on the [level]
ACTUAL VERSUS PROJECTED LEVELS of minority and women-owned business
enterprises participating in each agency's contracts for goods [and],
services AND CONSTRUCTION, INCLUDING BUT NOT LIMITED TO THE NUMBER OF
STATE CONTRACTS AWARDED TO CERTIFIED MINORITY-OWNED OR WOMEN-OWNED BUSI-
NESS ENTERPRISES, THE MAXIMUM DOLLAR AMOUNT OBLIGATED PURSUANT TO ALL
THOSE CONTRACTS, AND THE TOTAL EXPENDITURES MADE PURSUANT TO ALL SUCH
CONTRACTS, and on activities of the office and effort by each contract-
ing agency to promote employment of minority group members and women,
and to promote and increase participation by certified businesses with
respect to state contracts and subcontracts so as to facilitate the
award of a fair share of state contracts to such businesses. The comp-
troller shall assist the division in collecting information on the
participation of certified business for each contracting agency. Such
report may recommend new activities and programs to effectuate the
purposes of this article;
(f) THE DIRECTOR SHALL LIST IN THE DIVISION'S ANNUAL REPORT THE NAMES
OF NON-COMPLIANT AGENCIES AND THE EXTENT OF THEIR NONCOMPLIANCE IN
SUBMITTING ITS QUARTERLY MINORITY AND WOMEN-OWNED BUSINESS ENTERPRISE
UTILIZATION REPORTS; AND, SHALL IMPLEMENT A MASTER LIST OF ALL THE STATE
AGENCIES REQUIRED TO FILE QUARTERLY COMPLIANCE REPORTS AND SHALL ATTACH
SUCH LIST TO THE DIVISION'S ANNUAL REPORT.
(G) to prepare and update [periodically] QUARTERLY a directory of
certified minority and women-owned business enterprises which shall,
wherever practicable, be divided into categories of labor, services,
supplies, equipment, materials and recognized construction trades and
A. 4094 3
which shall indicate areas or locations of the state where such enter-
prises are available to perform services, AND TO USE THIS INFORMATION TO
CREATE AN INTERNET BASED, CENTRALIZED STATE REGISTRY TO ENABLE APPROPRI-
ATE STATE CERTIFIED MINORITY AND WOMEN-OWNED BUSINESS ENTERPRISES TO
ACCESS CONTRACT AND SUBCONTRACT OPPORTUNITIES;
[(g)] (H) to appoint independent hearing officers who by contract or
terms of employment shall preside over adjudicatory hearings pursuant to
section three hundred fourteen of this article for the office and who
are assigned no other work by the office;
[(h)] (I) notwithstanding the provisions of section two hundred nine-
ty-six of this chapter, to file a complaint pursuant to the provisions
of section two hundred ninety-seven of this chapter where the director
has knowledge that a contractor may have violated the provisions of
paragraph (a), (b) or (c) of subdivision one of section two hundred
ninety-six of this chapter where such violation is unrelated, separate
or distinct from the state contract as expressed by its terms; and
[(i)] (J) to streamline the state certification process to accept
federal and municipal corporation certifications.
4. The director [may] SHALL provide assistance to certified businesses
as well as applicants to ensure that such businesses benefit, as needed,
from technical, managerial and financial assistance and other business
development programs. In addition, the director [may] SHALL, either
independently or in conjunction with other state agencies:
(a) develop a clearinghouse of information on programs and services
provided by entities that may assist such businesses; and
(b) review bonding and paperwork requirements imposed by contracting
agencies that may unnecessarily impede the ability of such businesses to
compete.
S 2. Subdivision 5 of section 312 of the executive law, as added by
chapter 261 of the laws of 1988, is amended to read as follows:
5. The director shall promulgate rules and regulations to ensure that
contractors and subcontractors undertake programs of affirmative action
and equal employment opportunity as required by this section. Such rules
and regulations as they pertain to any particular agency shall be devel-
oped after consultation with contracting agencies. Such rules and regu-
lations [may] SHALL require a contractor, after notice in a bid solic-
itation, to submit an equal employment opportunity program [after bid
opening and prior to the award of any contract] AT THE TIME BIDS ARE
SUBMITTED, and [may] SHALL require the contractor or subcontractor to
submit compliance reports relating to the contractor's or subcontrac-
tor's operation and implementation of any equal employment opportunity
program in effect as of the date the contract is executed. The contract-
ing agency [may recommend to the director that] SHALL HAVE THE RIGHT TO
RECOMMEND THAT the director take appropriate action according to the
procedures set forth in section three hundred sixteen of this article
against the contractor for noncompliance with the requirements of this
section. The contracting agency shall be responsible for monitoring
compliance with this section.
S 3. Subdivisions 1 and 2 and paragraph (a) of subdivision 4 of
section 313 of the executive law, as added by chapter 261 of the laws of
1988, are amended to read as follows:
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] INCREASED participation in the
performance of state contracts and to identify those state contracts for
which certified businesses may best bid to actively and affirmatively
A. 4094 4
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 AND ENCOURAGE JOINT VENTURES, PARTNERSHIPS,
AND MENTOR-PROTEGE RELATIONSHIPS AS DEFINED IN SECTION ONE HUNDRED
FORTY-SEVEN OF THE STATE FINANCE LAW, BETWEEN PRIME CONTRACTORS AND
MINORITY AND WOMEN-OWNED BUSINESS ENTERPRISES. Such rules and regu-
lations 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. Contracting agencies shall include or require to be included with
respect to state contracts for the acquisition, construction, demoli-
tion, replacement, major repair or renovation of real property and
improvements thereon, such provisions as [may] SHALL 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 arti-
cle; and (c) requiring the contractor to include the provisions set
forth in paragraphs (a) and (b) above 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 binding 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 subcon-
tractor except with respect to a state contract.
(a) Contracting agencies shall administer the rules and regulations
promulgated by the director to ensure compliance with the provisions of
this section. Such rules and regulations: shall require a contractor to
submit a utilization plan [after bids are opened] AT THE TIME BIDS ARE
SUBMITTED, when bids are required[, but prior to the award of a state
contract]; shall require the contracting agency to review the utiliza-
tion plan submitted by the contractor AND TO POST THE UTILIZATION PLAN
AND ANY WAIVERS OF COMPLIANCE ISSUED PURSUANT TO SUBDIVISION FIVE OF
THIS SECTION ON THE WEBSITE OF THE CONTRACTING AGENCY within a reason-
able 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; [may] SHALL require the
contractor to submit [periodic] QUARTERLY 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 enter-
prise participation requirements pursuant to subdivisions five and six
of this section; shall allow a contractor to file a complaint with the
director pursuant to subdivision seven 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
A. 4094 5
eight of this section in the event a contractor is failing or has failed
to comply with the minority and women-owned business enterprise partic-
ipation requirements set forth in the state contract where no waiver has
been granted.
S 4. Section 315 of the executive law, as added by chapter 261 of the
laws of 1988, is amended to read as follows:
S 315. Responsibilities of contracting agencies. 1. Each contracting
agency shall be responsible for monitoring state contracts under its
jurisdiction, and recommending matters to the office respecting non-com-
pliance with the provisions of this article so that the office [may]
SHALL take such action as [is appropriate] STATED IN SUBDIVISION THREE
OF SECTION THREE HUNDRED SIXTEEN OF THIS ARTICLE. EACH CONTRACTING AGEN-
CY SHALL HAVE THE RIGHT TO RECOMMEND THAT THE DIRECTOR IMPOSE A SANC-
TION, PENALTY, OR FINE FOR THREE OR MORE VIOLATIONS OF SUBDIVISION ONE
OF SECTION THREE HUNDRED SIXTEEN OF THIS ARTICLE, to insure compliance
with the provisions of this article, the rules and regulations of the
director issued hereunder and the contractual provisions required pursu-
ant to this article. All contracting agencies shall comply with the
rules and regulations of the office and are directed to cooperate with
the office and to furnish to the office such information and assistance
as may be required in the performance of its functions under this arti-
cle.
2. Each contracting agency shall provide to prospective bidders a
current copy of the directory of certified businesses, and a copy of the
regulations required pursuant to sections three hundred twelve and three
hundred thirteen of this article at the time bids or proposals are
solicited.
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 as required by the director.] EACH CONTRACTING
AGENCY WHEN NOTIFYING A CONTRACTOR OF A WINNING BID AWARD SHALL ALSO
NOTIFY ANY MINORITY OR WOMEN-OWNED BUSINESS ENTERPRISES AFFILIATED WITH
SUCH CONTRACTOR, PER THE CONTRACTOR'S SUBMITTED UTILIZATION PLAN, OF
SUCH CONTRACTOR'S RECEIPT OF THE WINNING BID AWARD.
4. (A) EACH CONTRACTING AGENCY SHALL PREPARE A QUARTERLY REPORT AND
SUBMIT COPIES TO THE COMMISSIONER OF ECONOMIC DEVELOPMENT, THE COMMIS-
SIONER OF GENERAL SERVICES, AND THE DIRECTOR AS TO THE LEVEL OF MINORITY
AND WOMEN-OWNED BUSINESS ENTERPRISES PARTICIPATION IN THE AWARDING OF
AGENCY CONTRACTS FOR GOODS AND SERVICES, INCLUDING BUT NOT LIMITED TO,
THE NUMBER OF STATE CONTRACTS AWARDED TO CERTIFIED MINORITY OR
WOMEN-OWNED BUSINESS ENTERPRISES; THE MAXIMUM DOLLAR AMOUNT OBLIGATED
PURSUANT TO ALL THOSE CONTRACTS, AND THE TOTAL EXPENDITURES MADE PURSU-
ANT TO ALL SUCH CONTRACTS; THE NUMBER OF STATE CONTRACTS AWARDED WHICH
INCLUDE A UTILIZATION PLAN FOR BUSINESS PARTICIPATION BY CERTIFIED
MINORITY OR WOMEN-OWNED BUSINESS ENTERPRISES, THE MAXIMUM AMOUNT OBLI-
GATED PURSUANT TO THOSE CONTRACTS, AND THE TOTAL EXPENDITURES MADE
PURSUANT TO ALL SUCH CONTRACTS; THE NUMBER OF STATE CONTRACTS AWARDED
UPON WHICH A WAIVER WAS GRANTED FROM GOALS REQUIRED BY THE CONTRACTS FOR
BUSINESS PARTICIPATION BY CERTIFIED MINORITY OR WOMEN-OWNED BUSINESS
ENTERPRISES, AND THE MAXIMUM AMOUNT OBLIGATED PURSUANT TO THOSE
CONTRACTS; THE NUMBER OF STATE CONTRACTS AWARDED WHICH REQUIRED GOALS
FOR EMPLOYMENT OF MINORITY GROUP MEMBERS AND WOMEN; AND THE NUMBER OF
STATE CONTRACTS AWARDED FOR WHICH WAIVERS OF EMPLOYMENT GOALS REQUIRED
BY THE CONTRACTS HAVE BEEN GRANTED;
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(B) IN ADDITION, EACH CONTRACTING AGENCY SHALL BE RESPONSIBLE FOR THE
COST OF AN INDEPENDENT AUDIT RESULTING FROM THE AGENCY'S REPEATED
VIOLATIONS OF THIS SECTION.
5. WITHIN THIRTY DAYS AFTER COMPLETION, A COPY OF THE QUARTERLY MINOR-
ITY AND WOMEN-OWNED BUSINESS ENTERPRISE REPORT SHALL BE TRANSMITTED TO
THE COMMISSIONER OF ECONOMIC DEVELOPMENT, THE COMMISSIONER OF GENERAL
SERVICES, AND THE DIRECTOR. A CONTRACTING AGENCY, WHICH HAS NOT LET MORE
THAN TWO MILLION DOLLARS IN SERVICE AND/OR CONSTRUCTION CONTRACTS WITHIN
THE APPLICABLE PERIOD MAY APPLY TO THE COMMISSIONER OF ECONOMIC DEVELOP-
MENT, AND THE DIRECTOR FOR A WAIVER OF THE REQUIRED ANNUAL REPORT. THE
WAIVER APPLICATION SHALL BE MADE ON SUCH FORM AS THE COMMISSIONER OF
ECONOMIC DEVELOPMENT AND THE DIRECTOR MAY PRESCRIBE.
6. IF A CONTRACTING AGENCY SHALL FAIL TO FILE OR SUBSTANTIALLY
COMPLETE, AS DETERMINED BY THE COMMISSIONER OF ECONOMIC DEVELOPMENT AND
THE DIRECTOR, THE REPORT REQUIRED BY THIS SECTION, THE DIRECTOR SHALL
PROVIDE NOTICE TO THE CONTRACTING AGENCY. THE NOTICE SHALL STATE THE
FOLLOWING:
(A) THAT THE FAILURE TO FILE A REPORT AS REQUIRED IS A VIOLATION OF
THIS SECTION, OR IN THE CASE OF AN INSUFFICIENT REPORT, THE MANNER IN
WHICH THE REPORT SUBMITTED IS DEFICIENT;
(B) THAT THE CONTRACTING AGENCY HAS THIRTY DAYS TO COMPLY WITH THIS
SECTION OR PROVIDE AN ADEQUATE WRITTEN EXPLANATION TO THE COMMISSIONER
OF ECONOMIC DEVELOPMENT AND THE COMMISSIONER OF GENERAL SERVICES AND THE
DIRECTOR OF THE CONTRACTING AGENCY'S REASONS FOR THE INABILITY TO
COMPLY; AND
(C) THAT THE CONTRACTING AGENCY'S CONTINUED FAILURE TO PROVIDE EITHER
THE REQUIRED REPORT OR AN ADEQUATE EXPLANATION WILL RESULT IN AN INDE-
PENDENT AUDIT OF THE CONTRACTING AGENCY, THE COST OF WHICH SHALL BE
BORNE BY THE CONTRACTING AGENCY.
S 5. 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] VIOLATIONS AND ENFORCEMENT. 1. IT SHALL BE A
VIOLATION FOR ANY PERSON OR ENTITY TO:
A. INTENTIONALLY USE OR ACQUIRE AN MWBE NAME THROUGH DECEIT OR OTHER
DISHONEST MEANS IN ORDER TO NEGOTIATE A LOWER BID FROM A NON-MWBE.
B. SUBMIT TO THE DEPARTMENT OF ECONOMIC DEVELOPMENT, DOCUMENTS OR
OTHER MATERIAL AS EVIDENCE OF A GOOD FAITH EFFORT TO COMPLY WITH THE
PROVISIONS OF THIS ARTICLE WITHOUT, IN FACT, HAVING ENTERED INTO ANY
CONTRACT, AGREEMENT, SUBCONTRACT, OR SUB-AGREEMENT WITH AN MWBE FOR THE
USE OR PURCHASE OF SUCH BUSINESS ENTERPRISE'S GOODS OR SERVICES IN THE
PERFORMANCE OF THE AWARDED STATE CONTRACT.
C. FAIL TO PROVIDE AN MWBE WITH SUFFICIENT INFORMATION OR OTHER
REQUIRED SUPPORTING DOCUMENTATION IN ORDER FOR THE MWBE TO PREPARE A
PROPER BID.
2. 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 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 Arbitration Association for proceeding
thereon. Upon conclusion of the arbitration proceedings, the arbitrator
A. 4094 7
shall submit to the director his or her award regarding the alleged
violation of the contract and recommendations regarding the imposition
of sanctions, fines or penalties. The director shall either: (a) adopt
the recommendation of the arbitrator; or (b) determine that no sanc-
tions, fines or penalties should be imposed; or (c) modify the recommen-
dation 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 recommenda-
tions, shall file a determination of such matter and shall cause a copy
of such determination along with a copy of this article to be served
upon the respondent by personal service or by certified mail return
receipt requested. The award of the arbitrator shall be final and may
only be vacated or modified as provided in article seventy-five 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. The determination of the director as to the imposition of
any fines, sanctions or penalties shall be reviewable pursuant to arti-
cle seventy-eight of the civil practice law and rules.
3. THE DIRECTOR SHALL IMPOSE A SANCTION, PENALTY, OR FINE ON ANY
INDIVIDUAL OR ENTITY THAT HAS THREE OR MORE VIOLATIONS OF THIS ARTICLE
WITHIN FIVE YEARS. SUCH FINE SHALL BE PAID BY SUCH INDIVIDUAL OR ENTITY.
SUCH FINE SHALL BE REMITTED AND DEPOSITED INTO A FUND, TO BE MANAGED BY
THE COMMISSIONER OF ECONOMIC DEVELOPMENT. SUCH FUNDS SHALL BE USED TO
SUBSIDIZE THE FACILITATION OF THE PROVISIONS OF THIS ARTICLE. OTHER
SANCTIONS SHALL INCLUDE BARRING SUCH ENTITY OR INDIVIDUAL FROM CONTRACT-
ING WITH SUCH AGENCY FOR A PERIOD NOT TO EXCEED FIVE YEARS.
S 6. The state finance law is amended by adding a new section 147 to
read as follows:
S 147. MENTOR-PROTEGE PROGRAM. 1. IN EVERY CONTRACTING AGENCY WHICH
HAS LET MORE THAN TEN MILLION DOLLARS IN SERVICE AND CONSTRUCTION
CONTRACTS IN THE PRIOR FISCAL YEAR, THE CONTRACTING AGENCY SHALL DEVELOP
A MENTOR-PROTEGE PROGRAM TO FOSTER LONG-TERM RELATIONSHIPS BETWEEN
APPROVED MENTOR FIRMS, SMALL BUSINESS CONCERNS, AND MINORITY AND WOMEN-
OWNED BUSINESSES CERTIFIED PURSUANT TO ARTICLE FIFTEEN-A OF THE EXECU-
TIVE LAW, IN ORDER TO ENHANCE THE CAPABILITIES OF SMALL AND MINORITY AND
WOMEN-OWNED BUSINESS CONCERNS, IMPROVE THEIR SUCCESS IN CONTRACTING WITH
THE STATE OR RECEIVING SUBCONTRACTS UNDER A STATE CONTRACT, AND TO
CREATE SOURCES OF RELIABLE CONTRACTORS AND SUBCONTRACTORS READY TO
PERFORM LARGER JOBS AND RESPONSIBILITIES. PARTICIPATION IN THE PROGRAM
SHALL BE VOLUNTARY FOR BOTH THE MENTOR FIRM AND THE PROTEGE FIRM.
2. THE CHIEF EXECUTIVE OFFICER OF EACH AGENCY, DEPARTMENT OR AUTHORI-
TY, IN CONSULTATION WITH THE DIVISION OF MINORITY AND WOMEN'S BUSINESS
DEVELOPMENT AND THE DIVISION FOR SMALL-BUSINESS SHALL DEVELOP REQUIRE-
MENTS FOR:
(A) APPROVAL OF CONTRACTORS PARTICIPATING IN THE PROGRAM ESTABLISHED
PURSUANT TO SUBDIVISION ONE OF THIS SECTION, TO BE KNOWN, FOR THE
PURPOSES OF SUCH PROGRAM, AS "MENTOR FIRMS". MENTOR FIRMS MUST DEMON-
STRATE COMMITMENT AND ABILITY TO ASSIST PROTEGE FIRMS, INCLUDING FAVORA-
BLE FINANCIAL HEALTH, GOOD CHARACTER, AND EXPERIENCE IN CONTRACTING WITH
THE STATE. ONCE APPROVED, A MENTOR FIRM MUST ANNUALLY CERTIFY THAT IT
CONTINUES TO POSSESS GOOD CHARACTER AND A FAVORABLE FINANCIAL POSITION.
INCENTIVES FOR MENTOR FIRMS TO PARTICIPATE IN THE PROGRAM MAY INCLUDE:
(I) WHERE CONTRACTS ARE AWARDED BY BEST VALUE, ADDITIONAL EVALUATION
POINTS AS SPECIFIED IN THE REQUEST FOR PROPOSAL; AND (II) WHERE PROTEGE
FIRMS ARE CERTIFIED MINORITY AND WOMEN-OWNED BUSINESSES, CREDIT TOWARDS
A. 4094 8
FULFILLMENT OF MINORITY AND WOMEN-OWNED BUSINESS PARTICIPATION REQUIRE-
MENTS, INCLUDING WITHOUT LIMITATION ADDITIONAL CREDIT TOWARDS FULFILL-
MENT OF MINORITY AND WOMEN-OWNED BUSINESS SUBCONTRACTING PARTICIPATION
GOALS BASED ON COSTS INCURRED BY A MENTOR FIRM IN PROVIDING ASSISTANCE
TO A CERTIFIED MINORITY AND WOMEN-OWNED BUSINESS PROTEGE FIRM.
(B) APPROVAL FOR SMALL AND CERTIFIED MINORITY AND WOMEN-OWNED BUSINESS
CONCERNS RECEIVING ASSISTANCE UNDER THE PROGRAM ESTABLISHED PURSUANT TO
SUBDIVISION ONE OF THIS SECTION, TO BE KNOWN, FOR THE PURPOSES OF SUCH
PROGRAM, AS "PROTEGE FIRMS". A PROTEGE FIRM MAY HAVE ONLY ONE MENTOR AT
A TIME AND MAY PARTICIPATE IN THE MENTOR-PROTEGE PROGRAM FOR A MAXIMUM
OF FIVE YEARS.
(C) A PROCESS BY WHICH EACH MENTOR FIRM, BEFORE PROVIDING ASSISTANCE
TO A PROTEGE FIRM UNDER THE PROGRAM, SHALL ENTER INTO A MENTOR-PROTEGE
AGREEMENT REGARDING THE ASSISTANCE TO BE PROVIDED BY THE MENTOR FIRM,
FOR A PERIOD AS DETERMINED BY THE CONTRACTING AGENCY. A MENTOR FIRM MAY
PROVIDE A PROTEGE FIRM WITH ASSISTANCE AND TRAINING IN GENERAL BUSINESS
MANAGEMENT; FINANCIAL MANAGEMENT, ENGINEERING, SAFETY AND TECHNICAL
MATTERS; SUBCONTRACTS; JOINT VENTURE ARRANGEMENTS; AND ANY OTHER ASSIST-
ANCE AS DETERMINED BY THE CONTRACTING AGENCY. MENTOR-PROTEGE AGREEMENTS
SHALL BE APPROVED BY THE CHIEF EXECUTIVE OFFICER OF THE AGENCY, DEPART-
MENT OR AUTHORITY, AND SHALL PROVIDE THAT EITHER PARTY MAY TERMINATE THE
AGREEMENT WITH THIRTY DAYS ADVANCE NOTICE AND NOTICE TO THE CHIEF EXECU-
TIVE OFFICER. NO DETERMINATION OF AFFILIATION OR CONTROL MAY BE FOUND
BETWEEN A PROTEGE FIRM AND ITS MENTOR FIRM BASED ON THE MENTOR-PROTEGE
AGREEMENT OR ANY ASSISTANCE PROVIDED PURSUANT TO SUCH AGREEMENT.
S 7. Subdivision 1 of section 137 of the state finance law, as sepa-
rately amended by section 17 of part MM of chapter 57 and by chapter 619
of the laws of 2008, is amended to read as follows:
1. In addition to other bond or bonds, if any, required by law for the
completion of a work specified in a contract for the prosecution of a
public improvement for the state of New York a municipal corporation, a
public benefit corporation or a commission appointed pursuant to law, or
in the absence of any such requirement, the comptroller may or the other
appropriate official, respectively, shall nevertheless require prior to
the approval of any such contract a bond guaranteeing prompt payment of
moneys due to all persons furnishing labor or materials to the contrac-
tor or any subcontractors in the prosecution of the work provided for in
such contract. Whenever a municipal corporation issues a permit subject
to compliance with section two hundred twenty of the labor law, such
permittee or its contractor or subcontractors furnishing workers shall
post a payment bond subject to this section. Provided, however, that all
performance bonds and payment bonds may, at the discretion of the head
of the state agency, public benefit corporation or commission, or his or
her designee, be dispensed with for the completion of a work specified
in a contract for the prosecution of a public improvement for the state
of New York for which bids are solicited where the aggregate amount of
the contract is under one hundred FIFTY thousand dollars and provided
further, that in a case where the contract is not subject to the multi-
ple contract award requirements of section one hundred thirty-five of
this article, such requirements may be dispensed with where the head of
the state agency, public benefit corporation or commission finds it to
be in the public interest and where the aggregate amount of the contract
awarded or to be awarded is less than two hundred thousand dollars. THE
HEAD OF THE STATE AGENCY, PUBLIC BENEFIT CORPORATION OR COMMISSION, OR
HIS OR HER DESIGNEE, SHALL ADJUST THE AGGREGATE CONTRACT AMOUNTS LISTED
IN THIS SUBDIVISION EVERY YEAR TO ACCOUNT FOR INCREASES IN THE COSTS OF
A. 4094 9
CONSTRUCTION. ADVERTISEMENTS FOR BIDS SHALL PROVIDE INFORMATION ON THE
REQUIREMENTS FOR, OR DISPENSATION OF, PERFORMANCE AND PAYMENT BONDS.
Provided further, that in a case where a performance or payment bond is
dispensed with, twenty per centum may be retained from each progress
payment or estimate until the entire contract work has been completed
and accepted, at which time the head of the state agency, public benefit
corporation or commission shall, pending the payment of the final esti-
mate, pay not to exceed seventy-five per centum of the amount of the
retained percentage.
S 8. Subdivision 4 of section 139-f of the state finance law, as
amended by chapter 83 of the laws of 1995, is amended to read as
follows:
4. Notwithstanding any other provision of this section or other law,
requirements for the furnishing of a performance bond or a payment bond
may be dispensed with at the discretion of the head of the state agency
or corporation, or his or her designee, where the public owner is a
state agency or corporation described in subdivision one-a of this
section and the aggregate amount of the contract awarded or to be
awarded is under fifty thousand dollars and, in a case where the
contract is not subject to the multiple contract award requirements of
section one hundred thirty-five of this article, such requirements may
be dispensed with where the head of the state agency or corporation
finds it to be in the public interest and where the aggregate amount of
the contract awarded or to be awarded is under [two] THREE hundred thou-
sand dollars. THE HEAD OF THE STATE AGENCY, PUBLIC BENEFIT CORPORATION
OR COMMISSION, OR HIS OR HER DESIGNEE, SHALL ADJUST THE AGGREGATE
CONTRACT AMOUNTS LISTED IN THIS SUBDIVISION EVERY YEAR TO ACCOUNT FOR
INCREASES IN THE COSTS OF CONSTRUCTION. ADVERTISEMENTS FOR BIDS SHALL
PROVIDE INFORMATION ON THE REQUIREMENTS FOR, OR DISPENSATION OF,
PERFORMANCE AND PAYMENT BONDS. Provided further, that in a case where a
performance or payment bond is dispensed with, twenty per centum may be
retained from each progress payment or estimate until the entire
contract work has been completed and accepted, at which time the head of
the state agency or corporation shall, pending the payment of the final
estimate, pay not to exceed seventy-five per centum of the amount of the
retained percentage.
S 9. The opening paragraph of section 139-g of the state finance law,
as amended by chapter 636 of the laws of 2003, is amended to read as
follows:
In every state agency, department and authority which has let more
than two million dollars in service and construction contracts AND STATE
ASSISTED PROJECT CONTRACTS in the prior fiscal year, the chief executive
officer of that agency, department or authority shall, with respect to
those contracts AND STATE ASSISTED PROJECT CONTRACTS let by his OR HER
agency, department or authority:
S 10. The opening paragraph of subdivision (b) of section 139-g of the
state finance law, as amended by chapter 636 of the laws of 2003, is
amended to read as follows:
identify all small-business and certified women and minority-owned
business concerns which, in the judgment of the chief executive officer
of that agency, department or authority, can bid on those contracts AND
STATE ASSISTED PROJECT CONTRACTS which are usually and customarily let
by that agency, department or authority, OR IN WHICH THAT AUTHORITY
PROVIDES A GRANT OR LOAN OR TAX EXEMPT FINANCING, with a reasonable
expectation of success. Such chief executive officers shall carry out
the provisions of this subdivision:
A. 4094 10
S 11. Section 139-g of the state finance law is amended by adding a
new subdivision (e) to read as follows:
(E) FOR THE PURPOSES OF THIS SECTION, THE FOLLOWING WORDS SHALL HAVE
THE FOLLOWING MEANINGS:
(I) "STATE ASSISTED PROJECT CONTRACT" SHALL MEAN ANY WRITTEN AGREEMENT
ARISING OUT OF A STATE ASSISTED HOUSING PROJECT OR STATE ASSISTED
ECONOMIC DEVELOPMENT PROJECT OR STATE ASSISTED HIGHER EDUCATION PROJECT
OR STATE ASSISTED HOSPITAL OR HEALTH CARE FACILITY PROJECT, FOR WHICH
THE TOTAL PROJECT COST EXCEEDS TWO MILLION DOLLARS AND FOR WHICH THE
PROJECT OWNER IS COMMITTED TO SPEND OR DOES EXPEND FUNDS FOR THE ACQUI-
SITION, CONSTRUCTION, DEMOLITION, REPLACEMENT, MAJOR REPAIR, OR RENO-
VATION OF REAL PROPERTY AND IMPROVEMENTS THEREON FOR SUCH PROJECT.
(II) "STATE ASSISTED HOUSING PROJECT" SHALL MEAN THOSE PROJECTS WHICH
RECEIVE FROM THE NEW YORK STATE HOUSING FINANCE AGENCY TAX-EXEMPT
FINANCING FOR ALL OR PART OF THE TOTAL PROJECT COST.
(III) "STATE ASSISTED ECONOMIC DEVELOPMENT PROJECT" SHALL MEAN THOSE
PROJECTS WHICH RECEIVE FROM THE NEW YORK FOUNDATION OF SCIENCE TECHNOLO-
GY AND INNOVATION, OR THE URBAN DEVELOPMENT CORPORATION AND ITS SUBSID-
IARIES A GRANT OR LOAN OR TAX-EXEMPT FINANCING FOR ALL OR PART OF THE
TOTAL PROJECT COST.
(IV) "STATE ASSISTED HIGHER EDUCATION PROJECT" SHALL MEAN THOSE
PROJECTS WHICH RECEIVE FROM THE DORMITORY AUTHORITY OF THE STATE OF NEW
YORK A GRANT OR LOAN OR TAX-EXEMPT FINANCING FOR ALL OR PART OF THE
TOTAL PROJECT COST.
(V) "STATE ASSISTED HOSPITAL OR HEALTH CARE FACILITY PROJECT" SHALL
MEAN THOSE PROJECTS WHICH RECEIVE FROM THE DORMITORY AUTHORITY OF THE
STATE OF NEW YORK A GRANT OR LOAN OR TAX-EXEMPT FINANCING FOR ALL OR
PART OF THE TOTAL PROJECT COST.
S 12. This act shall take effect immediately, provided however, the
amendments to article 15-A of the executive law made by sections one
through five of this act shall not affect the expiration of such article
and shall expire therewith.