S T A T E O F N E W Y O R K
________________________________________________________________________
4425
2011-2012 Regular Sessions
I N A S S E M B L Y
February 3, 2011
___________
Introduced by M. of A. P. RIVERA, DESTITO, TOWNS, PERRY, CLARK, MILLMAN,
PEOPLES-STOKES, ROBINSON, NOLAN, SCHROEDER -- Multi-Sponsored by -- M.
of A. JACOBS -- read once and referred to the Committee on Govern-
mental Operations
AN ACT to amend the economic development law, the executive law, the
state finance law and the public authorities law, in relation to fund-
ing certain mandates set forth in the economic development law,
strengthening certain provisions of the executive law as it relates to
increasing procurement opportunities for minority and women-owned
business enterprises, and strengthening reporting and compliance by
state agencies and contracts within article 15-A of the executive law
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. The economic development law is amended by adding a new
section 118-a to read as follows:
S 118-A. FUNDING OF MANDATES. NOT LESS THAN FIFTEEN MILLION DOLLARS OF
MONIES FROM THE BUDGET OF THE EMPIRE STATE DEVELOPMENT CORPORATION,
FOLLOWING APPROPRIATION BY THE LEGISLATURE FOR THIS PURPOSE AND THE
FURTHER ALLOCATION BY THE COMMISSIONER, SHALL BE MADE AVAILABLE ANNUALLY
TO FUND THE MANDATES SET FORTH IN SECTION ONE HUNDRED EIGHTEEN OF THIS
ARTICLE, SPECIFICALLY INCLUDING THE PROVISION OF TECHNICAL ASSISTANCE
AND ENTERPRISE ASSISTANCE PROGRAMS PURSUANT TO SUBDIVISIONS SEVEN,
EIGHT, NINE AND TEN OF SECTION ONE HUNDRED EIGHTEEN OF THIS ARTICLE.
S 2. Subdivision 3 of section 313 of the executive law, as amended by
chapter 175 of the laws of 2010, is amended to read as follows:
3. Solely for the purpose of providing the opportunity for meaningful
participation by certified businesses in the performance of state
contracts as provided in this section, state contracts shall include
leases of real property by a state agency to a lessee where: the terms
of such leases provide for the construction, demolition, replacement,
major repair or renovation of real property and improvements thereon by
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD04150-01-1
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such lessee; and the cost of such construction, demolition, replacement,
major repair or renovation of real property and improvements thereon
shall exceed the sum of one hundred thousand dollars. Reports to the
director pursuant to section three hundred fifteen of this article shall
include activities with respect to all such state contracts. Contracting
agencies shall include or require to be included with respect to state
contracts [for the acquisition, construction, demolition, replacement,
major repair or renovation of real property and improvements thereon,]
such provisions as may 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 KNOWN TO BE
CERTIFIED MINORITY OR WOMEN-OWNED BUSINESS ENTERPRISES OR 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 article; and (c) requiring the contractor
to include the provisions set forth in paragraphs (a) and (b) of this
subdivision 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 subcontractor except with respect to a
state contract.
S 3. Subdivision 3 of section 315 of the executive law, as amended by
chapter 175 of the laws of 2010, is amended to read as follows:
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, but not less frequently than] annually[, as
required by the director] WITH QUARTERLY UPDATES, and shall include such
information as is necessary for the director to determine whether the
contracting agency and contractor have complied with the purposes of
this article AND SUCH SPECIFIC INFORMATION AS THE DIRECTOR MAY REQUEST,
including, without limitation, a summary of all waivers of the require-
ments of subdivisions six and seven of section three hundred thirteen of
this article allowed by the contracting agency during the period covered
by the report, including a description of the basis of the waiver
request and the rationale for granting any such waiver. Each agency
shall also include in such annual report whether or not it has been
required to prepare a remedial plan, and, if so, the plan and the extent
to which the agency has complied with each element of the plan.
S 4. Section 315 of the executive law is amended by adding a new
subdivision 8 to read as follows:
8. EACH STATE AGENCY, AUTHORITY OR MEMBER CORPORATION'S PERFORMANCE IN
ACHIEVING THE MINORITY AND WOMEN-OWNED BUSINESS ENTERPRISE PARTICIPATION
AND OTHER DIVERSITY GOALS ESTABLISHED BY THIS ARTICLE SHALL BE PERIOD-
ICALLY REVIEWED AND EVALUATED BY THE DIRECTOR. IN THE EVENT THAT THE
DIRECTOR FINDS THAT A STATE AGENCY, AUTHORITY OR MEMBER CORPORATION HAS
NOT MADE REASONABLE, GOOD FAITH EFFORTS TO SET OR ACHIEVE REASONABLE
DIVERSITY GOALS FOR A PERIOD OF ONE YEAR FOLLOWING NOTICE OF NON-COMPLI-
ANCE BY THE DIRECTOR, THEN THE DIRECTOR SHALL HAVE THE POWER TO PARTIC-
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IPATE IN THE CONTRACTING APPROVAL PROCESS OF SUCH STATE AGENCY, AUTHORI-
TY OR MEMBER CORPORATION UNTIL SUCH TIME AS THE DIRECTOR DEEMS SUCH
STATE AGENCY, AUTHORITY OR MEMBER CORPORATION TO BE IN COMPLIANCE WITH
THIS ARTICLE. SUCH POWER SHALL INCLUDE THE RIGHT TO PREVENT ANY STATE
AGENCY, AUTHORITY OR MEMBER CORPORATION DEEMED TO BE NON-COMPLIANT AS
SET FORTH ABOVE FROM MAKING CONTRACT AWARDS UNLESS THE DIRECTOR HAS
DEEMED SUCH AWARD TO BE IN COMPLIANCE WITH THIS ARTICLE.
S 5. Paragraph j of subdivision 1 of section 163 of the state finance
law, as added by chapter 83 of the laws of 1995, is amended to read as
follows:
j. "Best value" means the basis for awarding contracts for services to
the offerer which optimizes quality, cost and efficiency, among respon-
sive and responsible offerers AND WHICH ALSO TAKES INTO ACCOUNT THE
DIVERSITY PRACTICES OF EACH OFFERER. Such basis shall reflect, wherever
possible, objective and quantifiable analysis.
S 6. Subdivision 1 of section 163 of the state finance law is amended
by adding a new paragraph k to read as follows:
K. "DIVERSITY PRACTICES" MEANS THE OFFERER'S PRACTICES WITH RESPECT
TO: (I) APPOINTING, HIRING AND RETAINING MINORITY GROUP MEMBERS (AS
DEFINED IN ARTICLE FIFTEEN-A OF THE EXECUTIVE LAW) AND WOMEN IN SENIOR
MANAGEMENT POSITIONS OF THE OFFERER, INCLUDING AT THE LEVEL OF BOARD OF
DIRECTORS OR ITS COMPARABLE MANAGEMENT LEVEL BODY, AND AS SENIOR EXECU-
TIVE OFFICERS WITHIN THE OFFERER'S ORGANIZATION; (II) HIRING, TRAINING,
DEVELOPING, PROMOTING AND RETAINING MINORITY GROUP MEMBERS AND WOMEN
EMPLOYEES; (III) UTILIZING CERTIFIED MINORITY AND WOMEN-OWNED BUSINESS
ENTERPRISES, AS DEFINED IN ARTICLE FIFTEEN-A OF THE EXECUTIVE LAW OR ANY
OTHER STATUTES OR REGULATIONS GOVERNING THE PARTICIPATION OF MINORITY
AND WOMEN-OWNED BUSINESS ENTERPRISES IN CONTRACTS AWARDED BY A STATE
AGENCY OR OTHER PUBLIC CORPORATION, AS SUBCONTRACTORS AND SUPPLIERS;
(IV) ENTERING INTO PARTNERSHIPS, JOINT VENTURES OR OTHER SIMILAR
ARRANGEMENTS WITH CERTIFIED MINORITY AND WOMEN-OWNED BUSINESS ENTER-
PRISES AS DEFINED IN ARTICLE FIFTEEN-A OF THE EXECUTIVE LAW OR OTHER
APPLICABLE STATUTE OR REGULATION GOVERNING AN ENTITY'S UTILIZATION OF
MINORITY OR WOMEN-OWNED BUSINESS ENTERPRISES; AND (V) UTILIZING SUBCON-
TRACTORS OR OTHER PARTNERS THAT DEMONSTRATE A SIGNIFICANT COMMITMENT TO
AND PROGRESS IN ATTRACTING, RETAINING AND PROMOTING DIVERSE TEAMS,
INCLUDING MINORITY GROUP MEMBERS AND WOMEN WITH RELEVANT DOMAIN EXPERI-
ENCE IN SENIOR MANAGEMENT OR STAFFING POSITIONS.
S 7. The opening paragraph of subparagraph (iv) of paragraph (b) of
subdivision 3 of section 2879 of the public authorities law, as amended
by chapter 383 of the laws of 1994, is amended to read as follows:
as used in this subparagraph, the term "professional firm" shall be
defined as any individual or sole proprietorship, partnership, corpo-
ration, association, or other legal entity permitted by law to practice
the professions [of architecture, engineering or surveying] OR OFFER
SERVICES RELATED TO ACCOUNTING, ARCHITECTURE, ASSET MANAGEMENT, ENGI-
NEERING, SURVEYING, FINANCIAL, LEGAL OR OTHER PROFESSIONAL SERVICES.
S 8. Paragraphs (k), (l), (m), (n), (o) and (p) of subdivision 3 of
section 2879 of the public authorities law, as relettered by chapter 174
of the laws of 2010, are relettered paragraphs (l), (m), (n), (o), (p)
and (q) and a new paragraph (k) is added to read as follows:
(K) REQUIREMENTS THAT THE EVALUATION CRITERIA FOR AWARDING ANY
PROCUREMENT CONTRACT OTHER THAN CONTRACTS REQUIRED BY LAW TO BE AWARDED
TO THE LOWEST RESPONSIBLE BIDDER PURSUANT TO SEALED BIDS INCLUDE AN
ASSESSMENT OF THE PROPOSER'S DIVERSITY PRACTICES. FOR PURPOSES OF THIS
PARAGRAPH, "DIVERSITY PRACTICES" SHALL MEAN THE PROPOSER'S PRACTICES
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WITH RESPECT TO: (I) APPOINTING, HIRING AND RETAINING MINORITY GROUP
MEMBERS (AS DEFINED IN ARTICLE FIFTEEN-A OF THE EXECUTIVE LAW) AND WOMEN
IN SENIOR MANAGEMENT POSITIONS OF THE OFFERER, INCLUDING AT THE LEVEL OF
BOARD OF DIRECTORS OR ITS COMPARABLE MANAGEMENT LEVEL BODY, AND AS
SENIOR EXECUTIVE OFFICERS WITHIN THE OFFERER'S ORGANIZATION; (II)
HIRING, TRAINING, DEVELOPING, PROMOTING AND RETAINING MINORITY GROUP
MEMBERS AND WOMEN EMPLOYEES; (III) UTILIZING CERTIFIED MINORITY AND
WOMEN-OWNED BUSINESS ENTERPRISES, AS DEFINED IN ARTICLE FIFTEEN-A OF THE
EXECUTIVE LAW OR ANY OTHER STATUTES OR REGULATIONS GOVERNING THE PARTIC-
IPATION OF MINORITY AND WOMEN-OWNED BUSINESS ENTERPRISES IN CONTRACTS
AWARDED BY A STATE AGENCY OR OTHER PUBLIC CORPORATION, AS SUBCONTRACTORS
AND SUPPLIERS; (IV) ENTERING INTO PARTNERSHIPS, JOINT VENTURES OR OTHER
SIMILAR ARRANGEMENTS WITH THE CERTIFIED MINORITY AND WOMEN-OWNED BUSI-
NESS ENTERPRISES AS DEFINED IN ARTICLE FIFTEEN-A OF THE EXECUTIVE LAW OR
OTHER APPLICABLE STATUTE OR REGULATION GOVERNING AN ENTITY'S UTILIZATION
OF MINORITY OR WOMEN-OWNED BUSINESS ENTERPRISES; AND (V) UTILIZING
SUBCONTRACTORS OR OTHER PARTNERS THAT DEMONSTRATES A SIGNIFICANT COMMIT-
MENT TO AND PROGRESS IN ATTRACTING, RETAINING AND PROMOTING DIVERSE
TEAMS, INCLUDING MINORITY GROUP MEMBERS AND WOMEN WITH RELEVANT DOMAIN
EXPERIENCE IN SENIOR MANAGEMENT OR STAFFING POSITIONS.
IN THE CASE OF CONTRACTS REQUIRED BY LAW TO BE AWARDED TO THE LOWEST
RESPONSIBLE BIDDER PURSUANT TO SEALED BIDS, IN THE EVENT OF DETERMI-
NATION THAT TWO OR MORE BIDDERS HAVE PROVIDED BIDS THAT ARE ROUGHLY
EQUAL ANY DETERMINATION OF RESPONSIBILITY OR OTHER "TIE BREAKING"
FACTORS SHALL TAKE INTO ACCOUNT THE RESPECTIVE BIDDERS' RECORD OF
COMPLIANCE UNDER ARTICLE FIFTEEN-A OF THE EXECUTIVE LAW OR OTHER APPLI-
CABLE STATUTES OR REGULATIONS GOVERNING THE PARTICIPATION OF MINORITY
AND WOMEN-OWNED BUSINESS ENTERPRISES IN CONTRACTS AWARDED BY A STATE
AGENCY OR OTHER PUBLIC CORPORATION.
S 9. Subdivision 6 of section 2879 of the public authorities law, as
amended by chapter 174 of the laws of 2010, is amended to read as
follows:
6. Each corporation, as part of the guidelines established pursuant to
subdivision three of this section, shall establish policies regarding
the preparation of publicly available reports on procurement contracts
entered into by such corporation. Such policies shall provide, at the
minimum, for the preparation of a report [no less frequently than annu-
ally] TO BE PUBLISHED ON AN ANNUAL BASIS WITH QUARTERLY UPDATES, summa-
rizing procurement activity by such corporation for the period of the
report, including a listing of all procurement contracts entered into,
all contracts entered into with New York state business enterprises and
the subject matter and value thereof, all contracts entered into with
certified minority or women-owned business enterprises and the subject
matter and value thereof, all referrals made and all penalties imposed
pursuant to section three hundred sixteen of the executive law, all
contracts entered into with foreign business enterprises, and the
subject matter and value thereof, the selection process used to select
such contractors, all procurement contracts which were exempt from the
publication requirements of article four-C of the economic development
law, the basis for any such exemption and the status of existing
procurement contracts. WITH RESPECT TO CONTRACTS ENTERED INTO WITH
MINORITY OR WOMEN-OWNED BUSINESS ENTERPRISES, SUCH CORPORATION SHALL
MAKE REPORTS TO THE DIVISION AS SET FORTH IN SECTION THREE HUNDRED
FIFTEEN OF THE EXECUTIVE LAW.
S 10. Severability clause. If any clause, sentence, paragraph, subdi-
vision, section or part of this act shall be adjudged by any court of
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competent jurisdiction to be invalid, such judgment shall not affect,
impair, or invalidate the remainder thereof, but shall be confined in
its operation to the clause, sentence, paragraph, subdivision, section
or part thereof directly involved in the controversy in which such judg-
ment shall have been rendered. It is hereby declared to be the intent of
the legislature that this act would have been enacted even if such
invalid provision had not been included herein.
S 11. This act shall take effect on the ninetieth day after it shall
have become a law; provided that the amendments to article 15-A of the
executive law made by sections two, three and four of this act shall not
affect the expiration of such article and shall be deemed expired there-
with; and provided further that the amendments to section 163 of the
state finance law made by sections five and six of this act shall not
affect the repeal of such section and shall expire and be deemed
repealed therewith.