S T A T E O F N E W Y O R K
________________________________________________________________________
6593
2011-2012 Regular Sessions
I N A S S E M B L Y
March 22, 2011
___________
Introduced by M. of A. P. RIVERA -- read once and referred to the
Committee on Governmental Operations
AN ACT to amend the executive law, in relation to making subcontractors
subject to the provisions of law applicable to minority and women-
owned business enterprise contracts
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Subdivision 1 of section 312 of the executive law, as added
by chapter 261 of the laws of 1988, is amended to read as follows:
1. All state contracts and all documents soliciting bids or proposals
for state contracts shall contain or make reference to the following
provisions:
(a) The contractor AND SUBCONTRACTORS will not discriminate against
employees or applicants for employment because of race, creed, color,
national origin, sex, age, disability or marital status, and will under-
take or continue existing programs of affirmative action to ensure that
minority group members and women are afforded equal employment opportu-
nities without discrimination. For purposes of this article affirmative
action shall mean recruitment, employment, job assignment, promotion,
upgradings, demotion, transfer, layoff, or termination and rates of pay
or other forms of compensation.
(b) At the request of the contracting agency, the contractor AND THE
SUBCONTRACTORS shall request each employment agency, labor union, or
authorized representative of workers with which it has a collective
bargaining or other agreement or understanding, to furnish a written
statement that such employment agency, labor union or representative
will not discriminate on the basis of race, creed, color, national
origin, sex, age, disability or marital status and that such union or
representative will affirmatively cooperate in the implementation of the
contractor's AND THE SUBCONTRACTOR'S obligations herein.
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD10138-03-1
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(c) The contractor AND ALL SUBCONTRACTORS shall state, in all solic-
itations or advertisements for employees, that, in the performance of
the state contract, all qualified applicants will be afforded equal
employment opportunities without discrimination because of race, creed,
color, national origin, sex, age, disability or marital status.
S 2. Section 313-a of the executive law, as added by chapter 175 of
the laws of 2010, is amended to read as follows:
S 313-a. Diversity practices of state contractors AND SUBCONTRACTORS.
The director shall promulgate rules and regulations setting forth meas-
ures and procedures to require all contracting agencies, where practica-
ble, feasible and appropriate, to assess the diversity practices of
contractors, AND THEIR SUBCONTRACTORS, submitting bids or proposals in
connection with the award of a state contract. Such rules and regu-
lations shall take into account: the nature of the labor, services,
supplies, equipment or materials being procured by the state agency; the
method of procurement required to be used by a state agency to award the
contract and minority and women-owned business utilization plans
required to be submitted pursuant to sections three hundred twelve and
three hundred thirteen of this article; and such other factors as the
director deems appropriate or necessary to promote the award of state
contracts to contractors AND SUBCONTRACTORS having sound diversity prac-
tices. Such assessment shall not in any way permit the automatic
rejection of a bid or procurement contract proposal based on lack of
adherence to diversity practices. Each bid or proposal shall be analyzed
on an individual per bid or per proposal basis with the contractor's AND
ITS SUBCONTRACTOR'S diversity practices considered as only a part of a
wider consideration of several factors when deciding to award or decline
to award a bid or proposal. The director shall develop the rules and
regulations required hereunder only after consultation with the state
procurement council established by section one hundred sixty-one of the
state finance law.
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, and shall include such information as is
necessary for the director to determine whether the contracting agency
and contractor AND THEIR SUBCONTRACTORS have complied with the purposes
of this article, including, without limitation, a summary of all waivers
of the requirements 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 316 of the executive law, as amended by chapter 175 of
the laws of 2010, is amended to read as follows:
S 316. Enforcement. Upon receipt by the director of a complaint by a
contracting agency that a contractor OR SUBCONTRACTOR has violated the
provisions of a state contract which have been included to comply with
the provisions of this article or of a contractor OR SUBCONTRACTOR that
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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 six 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 division's hearing officers. Upon conclusion of the administrative
hearing, the hearing officer shall submit to the director his or her
decision regarding the alleged violation of the contract and recommenda-
tions regarding the imposition of sanctions, fines or penalties. The
director, within ten days of receipt of the decision, shall file a
determination of such matter and shall cause a copy of such determi-
nation along with a copy of this article to be served upon the contrac-
tor OR SUBCONTRACTOR by personal service or by certified mail return
receipt requested. The decision of the hearing officer shall be final
and may only be vacated or modified as provided in article seventy-eight
of the civil practice law and rules upon an application made within the
time provided by such article. The determination of the director as to
the imposition of any fines, sanctions or penalties shall be reviewable
pursuant to article seventy-eight of the civil practice law and rules.
The penalties imposed for any violation which is premised upon either a
fraudulent or intentional misrepresentation by the contractor OR SUBCON-
TRACTOR or the contractor's OR SUBCONTRACTOR'S willful and intentional
disregard of the minority and women-owned participation requirement
included in the contract may include a determination that the contractor
OR SUBCONTRACTOR shall be ineligible to submit a bid to any contracting
agency or be awarded any such contract for a period not to exceed one
year following the final determination; provided however, if a contrac-
tor OR SUBCONTRACTOR has previously been determined to be ineligible to
submit a bid pursuant to this section, the penalties imposed for any
subsequent violation, if such violation occurs within five years of the
first violation, may include a determination that the contractor OR
SUBCONTRACTOR shall be ineligible to submit a bid to any contracting
agency or be awarded any such contract for a period not to exceed five
years following the final determination. The division of minority and
women's business development shall maintain a website listing all
contractors AND SUBCONTRACTORS that have been deemed ineligible to
submit a bid pursuant to this section and the date after which each
contractor OR SUBCONTRACTOR shall once again become eligible to submit
bids.
S 5. Section 316-a of the executive law, as added by chapter 175 of
the laws of 2010, is amended to read as follows:
S 316-a. Prohibitions in contracts; violations. Every contracting
agency shall include a provision in its state contracts expressly
providing that any contractor OR SUBCONTRACTOR who willfully and inten-
tionally fails to comply with the minority and women-owned participation
requirements of this article as set forth in such state contract shall
be liable to the contracting agency for liquidated or other appropriate
damages and shall provide for other appropriate remedies on account of
such breach. A contracting agency that elects to proceed against a
contractor OR SUBCONTRACTOR for breach of contract as provided in this
section shall be precluded from seeking enforcement pursuant to section
three hundred sixteen of this article; provided however, that the
contracting agency shall include a summary of all enforcement actions
undertaken pursuant to this section in its annual report submitted
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pursuant to subdivision three of section three hundred fifteen of this
article.
S 6. This act shall take effect on the first of January next succeed-
ing the date on which it shall have become a law; provided, however,
that the amendments to article 15-A of the executive law, made by
sections one, two, three, four and five of this act, shall not affect
the expiration of such article and shall be deemed to expire therewith.