S T A T E O F N E W Y O R K
________________________________________________________________________
8681
2009-2010 Regular Sessions
I N A S S E M B L Y
June 3, 2009
___________
Introduced by M. of A. WRIGHT, FARRELL, MILLMAN, JEFFRIES, AUBRY, PERRY,
TITUS, PRETLOW -- read once and referred to the Committee on Corpo-
rations, Authorities and Commissions
AN ACT to amend the public authorities law, in relation to establishing
the metropolitan transportation authority small business mentoring
program; and providing for the repeal of such provisions upon expira-
tion thereof
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Legislative findings. Historically, in the construction
industry, there have been significant obstacles to the ability of small
businesses to compete for public work contracts. These include the lack
of sufficient construction management expertise to compete for and
perform public work contracts and prime contractor and statutory public
work contracting requirements that may present insurmountable obstacles
to a small, inexperienced business including requirements with respect
to bonding, insurance and competitive bidding.
It is hereby declared that there is a public purpose in initiating a
mentoring program to be implemented by the metropolitan transportation
authority for itself and its affiliates and subsidiaries that will
afford participating small businesses with the opportunity to obtain
public work construction management experience and training by providing
the small businesses with the mentoring services of an experienced
construction firm and with the opportunity to compete with certain other
small businesses in the program for the award of designated public work
contracts.
It is also hereby declared to be in the public interest of the state
of New York to authorize the metropolitan transportation authority and
its affiliates and subsidiaries to allocate a portion of their funds for
the purpose of retaining on a competitive basis successful construction
management firms to act as mentors to small businesses participating in
the mentoring program, to provide such small businesses training to
facilitate their growth into successful bidders and performers on public
work contracts. It is also in the public interest for the state of New
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD14142-01-9
A. 8681 2
York to provide for certain exceptions to the provisions of the public
authorities law, the state finance law, and the insurance law to enable
the metropolitan transportation authority and its affiliates and subsid-
iaries to designate specific public work contracts for award through the
mentoring program to competing small businesses participating in the
program and to waive or modify otherwise applicable requirements for
advertised and sealed competitive bidding, bonding, and insurance for
such designated public work contracts.
S 2. The public authorities law is amended by adding a new section
1265-b to read as follows:
S 1265-B. METROPOLITAN TRANSPORTATION AUTHORITY SMALL BUSINESS MENTOR-
ING PROGRAM. 1. DEFINITIONS. AS USED IN THIS SECTION, UNLESS THE CONTEXT
REQUIRES OTHERWISE: (A) "AUTHORITY" MEANS THE METROPOLITAN TRANSPORTA-
TION AUTHORITY AND ITS SUBSIDIARIES CONSISTING OF THE LONG ISLAND RAIL
ROAD COMPANY, METRO-NORTH COMMUTER RAILROAD COMPANY, METROPOLITAN SUBUR-
BAN BUS AUTHORITY, STATEN ISLAND RAPID TRANSIT OPERATING AUTHORITY, MTA
BUS, MTA CAPITAL CONSTRUCTION COMPANY, AND FIRST MUTUAL TRANSPORTATION
ASSURANCE COMPANY, AND ITS AFFILIATES CONSISTING OF THE NEW YORK CITY
TRANSIT AUTHORITY, TRIBOROUGH BRIDGE AND TUNNEL AUTHORITY, AND MANHATTAN
AND BRONX SURFACE TRANSIT OPERATING AUTHORITY;
(B) "EXECUTIVE DIRECTOR" MEANS THE EXECUTIVE DIRECTOR OF THE AUTHORITY
AND ITS SUBSIDIARIES AND AFFILIATES;
(C) "SMALL BUSINESS" MEANS A BUSINESS IN THE CONSTRUCTION TRADES WHICH
(I) IS INDEPENDENTLY OWNED AND OPERATED; (II) HAS ANNUAL REVENUES NOT
EXCEEDING A FISCAL LIMITATION OF FIVE MILLION DOLLARS OR SUCH LESSER
AMOUNT AS ESTABLISHED BY THE AUTHORITY PURSUANT TO THESE PROVISIONS; AND
(III) MEETS ADDITIONAL CRITERIA AS OTHERWISE ESTABLISHED BY THE EXECU-
TIVE DIRECTOR IN CONSULTATION WITH THE MEMBERS OF THE MTA SMALL BUSINESS
MENTORING PROGRAM ADVISORY COMMITTEE. THE CHAIR OF THE COMMITTEE SHALL
BE THE CHIEF DIVERSITY OFFICER OF THE MTA. THE AUTHORITY SHALL ESTABLISH
A DETAILED DEFINITION IN GENERAL AND SPECIFIC TO DIFFERENT SEGMENTS OF
THE CONSTRUCTION INDUSTRY TO THE EXTENT NECESSARY TO REFLECT DIFFERING
CHARACTERISTICS OF SUCH SEGMENTS BASED ON THE CRITERIA USED BY THE
UNITED STATES SMALL BUSINESS ADMINISTRATION FOR LOANS TO SMALL BUSI-
NESSES AS SET FORTH IN SECTIONS 121.301 THROUGH 121.305, OR FOR AWARDING
GOVERNMENT PROCUREMENTS AS SET FORTH IN SECTIONS 121.401 THROUGH
121.413, OF SUBPART A OF PART 121 OF CHAPTER I OF TITLE 13 OF THE CODE
OF FEDERAL REGULATIONS AS AMENDED, AND SUCH OTHER CRITERIA AS DETERMINED
BY THE AUTHORITY;
(D) "SMALL BUSINESS MENTORING PROGRAM" IS A PROGRAM ESTABLISHED BY THE
AUTHORITY PURSUANT TO THESE PROVISIONS TO PROVIDE SMALL BUSINESSES
ACCEPTED INTO THE PROGRAM WITH THE OPPORTUNITY:
(I) FOR UP TO FOUR YEARS, TO COMPETE FOR AND, WHERE AWARDED, TO
PERFORM CERTAIN AUTHORITY PUBLIC WORK CONTRACTS TO BE DESIGNATED BY THE
AUTHORITY FOR INCLUSION IN THIS PROGRAM UNDER THIS SUBPARAGRAPH, WITH
THE ASSISTANCE OF AN AUTHORITY-PROVIDED MENTOR, WHICH SHALL BE A FIRM
COMPETITIVELY SELECTED BY THE AUTHORITY THAT HAS EXTENSIVE CONSTRUCTION
MANAGEMENT AND MENTORING EXPERIENCE, WITH THE MENTOR TO PROVIDE THE
SMALL BUSINESS WITH ADVICE AND ASSISTANCE IN COMPETING FOR AND MANAGING
AUTHORITY PUBLIC WORK CONTRACTS; AND
(II) FOR A SMALL BUSINESS MENTORING PROGRAM PARTICIPANT WHICH THE
AUTHORITY HAS DETERMINED HAS SUCCESSFULLY COMPLETED THE PROGRAM UNDER
SUBPARAGRAPH (I) OF THIS PARAGRAPH, FOR UP TO FOUR ADDITIONAL YEARS, (A)
ADDITIONAL OPPORTUNITIES TO COMPETE WITH OTHER DESIGNATED SMALL BUSI-
NESSES IN THE PROGRAM FOR CERTAIN PUBLIC WORK CONTRACTS TO BE DESIGNATED
FOR INCLUSION UNDER THIS SUBPARAGRAPH AND, WHERE AWARDED, TO PERFORM
A. 8681 3
SUCH AUTHORITY PUBLIC WORK CONTRACTS, WITH THE FURTHER ASSISTANCE OF AN
AUTHORITY-PROVIDED MENTOR, WHICH SHALL BE A FIRM COMPETITIVELY SELECTED
BY THE AUTHORITY THAT HAS EXTENSIVE CONSTRUCTION MANAGEMENT AND MENTOR-
ING EXPERIENCE, WITH THE MENTOR TO PROVIDE THE SMALL BUSINESS WITH
ADVICE AND TECHNICAL ASSISTANCE IN COMPETING FOR AND MANAGING AUTHORITY
PUBLIC WORK CONTRACTS, AND (B) AUTHORITY-PROVIDED ASSISTANCE, AS DETER-
MINED BY THE AUTHORITY, FOR SUCH A SMALL BUSINESS TO OBTAIN BONDING FOR
PUBLIC WORK CONTRACTS THAT ARE COMPETITIVELY AWARDED PURSUANT TO
PROVISIONS OF LAW OTHER THAN THIS SECTION.
(E) "SMALL BUSINESS MENTORING PROGRAM CONTRACT" MEANS A NON-FEDERALLY
FUNDED AUTHORITY PUBLIC WORK CONTRACT DESIGNATED BY THE AUTHORITY, IN AN
ESTIMATED AMOUNT OF NOT MORE THAN ONE MILLION DOLLARS FOR CONTRACTS
UNDER SUBPARAGRAPH (I) OF PARAGRAPH (D) OF THIS SUBDIVISION AND THREE
MILLION DOLLARS FOR CONTRACTS UNDER SUBPARAGRAPH (II) OF PARAGRAPH (D)
OF THIS SUBDIVISION, FOR WHICH BIDS OR PROPOSALS ARE TO BE INVITED AND
ACCEPTED ONLY FROM BUSINESSES THAT ARE ENROLLED IN THE SMALL BUSINESS
MENTORING PROGRAM AND HAVE BEEN SELECTED BY THE AUTHORITY TO COMPETE FOR
THE CONTRACT.
2. SMALL BUSINESS MENTORING PROGRAM. (A) PURSUANT TO THESE PROVISIONS,
THE AUTHORITY MAY ESTABLISH A SMALL BUSINESS MENTORING PROGRAM. IN
CONNECTION THEREWITH, THE AUTHORITY MAY DETERMINE THE CRITERIA PURSUANT
TO WHICH A SMALL BUSINESS SHALL BE ELIGIBLE FOR AND SELECTED TO PARTIC-
IPATE IN THE PROGRAM UNDER SUBPARAGRAPHS (I) AND (II) OF PARAGRAPH (D)
OF SUBDIVISION ONE OF THIS SECTION, THE NUMBER OF PARTICIPANTS TO
PARTICIPATE IN EACH SUCH COMPONENTS OF THE PROGRAM, THE CRITERIA FOR THE
COMPETITIVE SELECTION OF THE FIRMS THAT WILL PROVIDE SMALL BUSINESSES
WITH MENTORING SERVICES, THE ASSIGNMENT OF A MENTOR TO A SPECIFIC SMALL
BUSINESS IN THE SMALL BUSINESS MENTORING PROGRAM, AND THE FUNDING FOR
THE PROGRAM.
(B) UNDER THE SMALL BUSINESS MENTORING PROGRAM, THE EXECUTIVE DIRECTOR
OR THE EXECUTIVE DIRECTOR'S DESIGNEE IS AUTHORIZED, NOTWITHSTANDING ANY
OTHER PROVISION OF LAW:
(I) TO DESIGNATE WHICH ELIGIBLE PUBLIC WORK CONTRACTS SHALL BE SMALL
BUSINESS MENTORING PROGRAM CONTRACTS UNDER SUBPARAGRAPHS (I) AND (II) OF
PARAGRAPH (D) OF SUBDIVISION ONE OF THIS SECTION, RESPECTIVELY;
(II) TO ESTABLISH STANDARDS FOR QUALIFYING SMALL BUSINESS MENTORING
PROGRAM PARTICIPANTS TO COMPETE FOR A SMALL BUSINESS MENTORING PROGRAM
CONTRACT, PROVIDED THAT NO LESS THAN THREE QUALIFIED SMALL BUSINESSES IN
THE PROGRAM MUST SUBMIT RESPONSIVE OFFERS TO PERFORM THE CONTRACT;
(III) TO DETERMINE WHEN BIDS OR PROPOSALS FOR A SMALL BUSINESS MENTOR-
ING PROGRAM CONTRACT SHOULD BE RESTRICTED TO SMALL BUSINESS MENTORING
PROGRAM PARTICIPANTS WHICH, PRIOR TO THE RECEIPT OF BIDS OR PROPOSALS,
HAVE BEEN QUALIFIED BY THE AUTHORITY FOR SUCH COMPETITION;
(IV) TO COMPETITIVELY SELECT, DESIGNATE AND CONTRACT WITH ONE OR MORE
EXPERIENCED CONSTRUCTION MANAGEMENT FIRMS THAT, UNDER THE GENERAL SUPER-
VISION OF THE AUTHORITY, WILL PROVIDE MENTORING SERVICES TO THE SMALL
BUSINESSES PARTICIPATING IN THE SMALL BUSINESS MENTORING PROGRAM, AND TO
ASSIGN SUCH MENTORS ONE OR MORE DESIGNATED SMALL BUSINESSES PARTICIPAT-
ING IN THE PROGRAM;
(V) FOR SMALL BUSINESS MENTORING PROGRAM CONTRACTS, EXCEPT AS SET
FORTH HEREIN, TO WAIVE REQUIREMENTS FOR THE SOLICITATION AND AWARD OF A
PUBLIC WORK CONTRACT PURSUANT TO SECTIONS TWELVE HUNDRED NINE, TWELVE
HUNDRED SIXTY-FIVE-A AND TWENTY-EIGHT HUNDRED SEVENTY-NINE OF THIS CHAP-
TER AND ANY OTHER PROVISION OF LAW AND FOR OBTAINING A PERFORMANCE,
PAYMENT OR OTHER GUARANTEE BOND PURSUANT TO SECTION ONE HUNDRED THIRTY-
SEVEN OF THE STATE FINANCE LAW AND ANY OTHER PROVISION OF LAW, AND TO
A. 8681 4
WAIVE REQUIREMENTS FORBIDDING THE AUTHORITY FROM DESIGNATING AN INSUR-
ANCE COMPANY OR OBTAINING INSURANCE FOR A CONTRACTOR PURSUANT TO SECTION
TWO THOUSAND FIVE HUNDRED FOUR OF THE INSURANCE LAW OR ANY OTHER
PROVISION OF LAW; AND
(VI) FOR SMALL BUSINESSES THAT HAVE BEEN ACCEPTED INTO THE SMALL BUSI-
NESS MENTORING PROGRAM UNDER SUBPARAGRAPH (II) OF PARAGRAPH (D) OF
SUBDIVISION ONE OF THIS SECTION, IN ADDITION TO THE BENEFITS OF SUCH
PROGRAM AND NOTWITHSTANDING ANY OTHER PROVISION OF LAW, TO PROVIDE TECH-
NICAL ASSISTANCE IN OBTAINING BID, PAYMENT AND PERFORMANCE BONDING FOR
AUTHORITY PUBLIC WORK CONTRACTS THAT ARE NOT SMALL BUSINESS MENTORING
PROGRAM CONTRACTS, FOR WHICH THE SMALL BUSINESS IS OTHERWISE QUALIFIED.
3. WITHDRAWAL OF DESIGNATION OF SMALL BUSINESS MENTORING PROGRAM
CONTRACTS. (A) IF THE TOTAL NUMBER OF QUALIFIED SMALL BUSINESS MENTORING
PROGRAM PARTICIPANTS THAT RESPOND TO A COMPETITION AND ARE CONSIDERED
CAPABLE OF MEETING THE SPECIFICATIONS AND TERMS OF THE INVITATION TO
COMPETE IS LESS THAN THREE, OR IF THE EXECUTIVE DIRECTOR OR THE EXECU-
TIVE DIRECTOR'S DESIGNEE DETERMINES THAT ACCEPTANCE OF THE BEST OFFER
WILL RESULT IN THE PAYMENT OF AN UNREASONABLE PRICE, THE AUTHORITY MAY
REJECT ALL OFFERS AND WITHDRAW THE DESIGNATION OF THE CONTRACT AS A
SMALL BUSINESS MENTORING PROGRAM CONTRACT.
(B) IF THE AUTHORITY WITHDRAWS THE DESIGNATION OF CONTRACT AS A SMALL
BUSINESS MENTORING PROGRAM CONTRACT, THE FIRMS, IF ANY, THAT MADE OFFERS
SHALL BE NOTIFIED. INVITATIONS TO COMPETE CONTAINING THE SAME OR
REWRITTEN SPECIFICATIONS AND TERMS SHALL THEN BE RE-ISSUED AS A SMALL
BUSINESS MENTORING PROGRAM CONTRACT FOR ONE OR MORE ADDITIONAL CONTRACT
PERIOD.
4. CONSTRUCTION MANAGER MENTORS. A MENTOR SHALL PROVIDE SERVICES AND
ASSISTANCE TO A SMALL BUSINESS AS DESIGNATED BY THE AUTHORITY, WHICH MAY
INCLUDE THE FOLLOWING: (A) PROVIDE BUSINESS TRAINING IN THE SKILLS
NECESSARY TO OPERATE A SUCCESSFUL CONSTRUCTION BUSINESS AND TO COMPETE
FOR AND PERFORM A PUBLIC WORK CONTRACT;
(B) PROVIDE TECHNICAL ASSISTANCE TO THE SMALL BUSINESS TO ASSESS THE
OUTCOME IF THE SMALL BUSINESS COMPETES FOR BUT IS NOT AWARDED A
CONTRACT;
(C) IF THE SMALL BUSINESS MENTORING PROGRAM CONTRACT IS AWARDED TO THE
SMALL BUSINESS, PROVIDE GUIDANCE, ADVICE AND TECHNICAL ASSISTANCE TO THE
SMALL BUSINESS IN THE PERFORMANCE OF THE CONTRACT;
(D) PROVIDE OTHER TECHNICAL ASSISTANCE TO THE SMALL BUSINESS TO FACIL-
ITATE LEARNING, TRAINING AND OTHER ISSUES WHICH MAY ARISE.
5. THE AUTHORITY MAY DELEGATE TO THE EXECUTIVE DIRECTOR OR THE EXECU-
TIVE DIRECTOR'S DESIGNEE, THE AUTHORITY'S RESPONSIBILITIES SET FORTH
HEREIN.
6. THE SMALL BUSINESS MENTORING PROGRAM CONTRACTS AUTHORIZED BY THIS
LEGISLATION SHALL, FOR THE INITIAL YEAR OF THE PROGRAM, BE IN AN AGGRE-
GATE AMOUNT OF NOT LESS THAN TEN MILLION DOLLARS, AND SHALL NOT EXCEED
ONE HUNDRED MILLION DOLLARS, WITH THE MAXIMUM AMOUNT IN FUTURE YEARS TO
BE SET BY THE EXECUTIVE DIRECTOR.
S 3. This act shall take effect January 1, 2010 and shall expire
December 31, 2019 when upon such date the provisions of this act shall
be deemed repealed; provided that such expiration shall not apply to
pending and awarded public work contracts and provided further that
effective immediately, the addition, amendment or repeal of any rule,
regulation or standard necessary for the implementation of this act on
its effective date are authorized and directed to be made and completed
on or before such effective date.