S T A T E O F N E W Y O R K
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4168--A
Cal. No. 313
2009-2010 Regular Sessions
I N A S S E M B L Y
January 30, 2009
___________
Introduced by M. of A. COOK, TOWNS, DESTITO, MILLMAN, JACOBS, BOYLAND,
CLARK, MAGNARELLI, BRODSKY, SCHROEDER -- Multi-Sponsored by -- M. of
A. CAHILL, ESPAILLAT, FARRELL, GALEF, GLICK, GOTTFRIED, GUNTHER,
HEASTIE, HEVESI, HOOPER, JOHN, MORELLE, NOLAN, PEOPLES-STOKES, PHEF-
FER, RAMOS, STIRPE, WRIGHT -- read once and referred to the Committee
on Governmental Operations -- reported from committee, advanced to a
third reading, amended and ordered reprinted, retaining its place on
the order of third reading
AN ACT to amend the executive law, in relation to minority and women-
owned business enterprises
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Subdivision 3 of section 311 of the executive law, as added
by chapter 261 of the laws of 1988, paragraphs (d) and (e) as amended by
chapter 55 of the laws of 1992, paragraphs (g) and (h) as amended and
paragraph (i) as added by section 1 of part BB of chapter 59 of the laws
of 2006, is 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;
(b) to develop standardized forms and reporting documents necessary to
implement this article;
(c) to conduct educational programs consistent with the purposes of
this article;
(d) to review periodically 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] ANNUAL reports with
the division of minority and women's business development as to the
level of minority and women-owned business enterprises participation in
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD01222-02-0
A. 4168--A 2
the awarding of agency contracts for goods and services INCLUDING BUT
NOT LIMITED TO THE NUMBER OF STATE CONTRACTS AWARDED TO CERTIFIED MINOR-
ITY-OWNED 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;
(e) on January first of each year report to the governor and the
chairpersons of the senate finance and assembly ways and means commit-
tees 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 BUSINESS 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 contracting 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 comptroller 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) to prepare and update periodically a directory of certified minor-
ity and women-owned business enterprises which shall, wherever practica-
ble, be divided into categories of labor, services, supplies, equipment,
materials and recognized construction trades and which shall indicate
areas or locations of the state where such enterprises are available to
perform services, AND TO USE THIS INFORMATION TO CREATE A STATE REGISTRY
TO ENABLE APPROPRIATE STATE CERTIFIED MINORITY AND WOMEN-OWNED BUSINESS
ENTERPRISES TO BE NOTIFIED OF CONTRACT AND SUBCONTRACT OPPORTUNITIES;
(g) 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) notwithstanding the provisions of section two hundred ninety-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 para-
graph (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) to streamline the state certification process to accept federal
and municipal corporation certifications.
S 2. Subdivision 1 of section 313 of the executive law, as added by
chapter 261 of the laws of 1988, is 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 participation in the performance of
state contracts and to identify those state contracts for which certi-
fied 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 busi-
nesses AND ENCOURAGE JOINT VENTURES, PARTNERSHIPS AND MENTOR-PROTEGE
RELATIONSHIPS BETWEEN PRIME CONTRACTORS AND MINORITY AND WOMEN-OWNED
BUSINESS ENTERPRISES. Such rules and regulations as they pertain to any
particular agency shall be developed after consultation with the
A. 4168--A 3
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.
S 3. Paragraph (a) of subdivision 4 of section 313 of the executive
law, as amended by chapter 429 of the laws of 2009, is amended to read
as follows:
(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, when bids are required,
but prior to the award of a state contract; shall require the contract-
ing 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 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 contrac-
tor to apply for a partial or total waiver of the minority and women-
owned business enterprise participation requirements pursuant to subdi-
visions 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 minority and women-owned business enterprise partic-
ipation requirements or has denied such request for a waiver; and shall
allow a contracting agency to file a complaint with the director pursu-
ant to subdivision eight of this section in the event a contractor is
failing or has failed to comply with the minority and women-owned busi-
ness enterprise participation requirements set forth in the state
contract where no waiver has been granted.
S 4. Subdivision 3 of section 314 of the executive law, as added by
chapter 261 of the laws of 1988, is amended to read as follows:
3. Following application for certification pursuant to this section,
the director shall provide the applicant with written notice of the
status of the application, including notice of any outstanding deficien-
cies, within thirty days. Within sixty days of submission of a final
completed application, the director shall provide the applicant with
written notice of a determination by the office approving or denying
such certification and, in the event of a denial a statement setting
forth the reasons for such denial. Upon a determination denying or
revoking certification, the business enterprise for which certification
has been so denied or revoked shall, upon written request made within
thirty days from receipt of notice of such determination, be entitled to
a hearing before an independent hearing officer designated for such
purpose by the director. In the event that a request for a hearing is
not made within such thirty day period, such determination shall be
deemed to be final. The independent hearing officer shall conduct a
hearing and upon the conclusion of such hearing, issue a written recom-
mendation to the director to affirm, reverse or modify such determi-
nation of the director. Such written recommendation shall be issued to
the parties. The director, within thirty days, by order, must accept,
reject or modify such recommendation of the hearing officer and set
A. 4168--A 4
forth in writing the reasons therefor. The director shall serve a copy
of such order and reasons therefor upon the business enterprise by
personal service or by certified mail return receipt requested. The
order of the director shall be subject to review pursuant to article
seventy-eight of the civil practice law and rules. RECERTIFICATION
SHALL BE REQUIRED EVERY THREE YEARS.
S 5. This act shall take effect immediately, provided, however that
the amendments to article 15-A of the executive law made by sections one
through four of this act shall not affect the expiration of such article
and shall expire therewith.