senate Bill S118

2013-2014 Legislative Session

Provides for the awarding of state contracts for professional services under the minority and women-owned business enterprise program

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Archive: Last Bill Status - In Committee


  • Introduced
  • In Committee
  • On Floor Calendar
    • Passed Senate
    • Passed Assembly
  • Delivered to Governor
  • Signed/Vetoed by Governor

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Assembly Actions - Lowercase
Senate Actions - UPPERCASE
Jan 08, 2014 referred to finance
Jan 09, 2013 referred to finance

S118 - Bill Details

See Assembly Version of this Bill:
A4454
Current Committee:
Law Section:
Executive Law
Laws Affected:
Amd ยงยง310, 311, 312-a, 313 & 313-a, Exec L
Versions Introduced in 2011-2012 Legislative Session:
S6753, A10139

S118 - Bill Texts

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Provides for the awarding of state contracts for professional services under the minority and women-owned business enterprise program.

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BILL NUMBER:S118

TITLE OF BILL:
An act
to amend the executive law, in relation to including the provision of
professional services in the minority and women-owned business
enterprise program

PURPOSE:
Provides for the awarding of state contracts for professional services
under the minority and women-owned business enterprise program.

SUMMARY OF PROVISIONS:
Section 1 amends the executive law to include a definition of
professional services contract and adds a new subdivision 23 defining
professional services.

Section 2 amends the executive law to include professional services in
the annual report on state MWBE contracts.

Section 3 requires professional services be considered in future
disparity studies.

Section 4 establishes agency goals for MWBE professional services
expenditures.

Section 5 establishes that professional services be considered in
relevant future rules and regulations

Section 6 establishes an effective date.

JUSTIFICATION:
Historically, businesses owned by women and minorities have been
subjected to a pattern of systematic discrimination that has stunted
their growth and left fledgling enterprises without an adequate
network of established support. While New York has taken great
strides to remedy this historic disparity, there is much work left to
do.

In 1988, Article 15-A of the Executive Law created what is now the
Division of Minority and Women's Business Development (the
"Division"). The goal was to promote equality of economic
opportunities for minority and/or women owned business enterprises
("MWBEs") and to eliminate barriers to their participation in state
contracts.

While the Division's work helped foster a marked improvement, the
State was compelled to redouble its efforts in the wake of a 2006
study demonstrating a still significant disparity in the
awarding of public contracts. By the 2009-2010 fiscal year, this
renewed effort helped bring New York's discretionary spending total
on contracts with MWBEs to more than $9 Billion.

However, this incredible progress has been largely achieved through
procurement and construction service contracts without sufficient
attention to contracts for professional services such as


architecture, accounting, legal services and financial planning.
Diversification of contracts for professional services, which are
among the most well-compensated, prestigious and stable fields, must
be a cornerstone of a truly effective MWBE Program, In spite of
widespread commitment to the advancement of diversity initiatives,
both publicly and in the private sector, white women and employees of
color continue to be under-represented in the professions. For
instance, less than 10% of all licensed attorneys in the U.S. are
people of color. One possible explanation for this
under-representation is the "pipeline theory," which posits that
stagnation is partially attributable to the limited availability of
similarly situated role models and dearth of access to professional
development opportunities. This legislation would help ensure that
the state plays a vital role in the encouragement of burgeoning women
and minority owned professional service enterprises.

LEGISLATIVE HISTORY:
2011-12: S.6753

FISCAL IMPLICATIONS:
To be determined.

EFFECTIVE DATE:
This act shall take effect on the first of January next succeeding the
date on which it shall have become a law; provided 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 expire therewith. Provided,
further, that, effective immediately, any rules and regulations
necessary to implement the provisions of this act on its effective
date are authorized and directed to be completed on or before such
date.

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                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                   118

                       2013-2014 Regular Sessions

                            I N  S E N A T E

                               (PREFILED)

                             January 9, 2013
                               ___________

Introduced  by  Sen. PERALTA -- read twice and ordered printed, and when
  printed to be committed to the Committee on Finance

AN ACT to  amend  the  executive  law,  in  relation  to  including  the
  provision  of  professional  services  in the minority and women-owned
  business enterprise program

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section  1.  Subdivision  13  of  section 310 of the executive law, as
amended by chapter 506 of the laws of 2009, is amended and a new  subdi-
vision 23 is added to read as follows:
  13.  "State  contract" shall mean: (a) a written agreement or purchase
order instrument, providing for a total expenditure in excess  of  twen-
ty-five  thousand  dollars, whereby a contracting agency is committed to
expend or does expend funds in return for labor, services including  but
not  limited  to  legal,  financial  and  other  professional  services,
supplies, equipment, materials or any combination of the  foregoing,  to
be  performed  for,  or rendered or furnished to the contracting agency;
(b) A WRITTEN AGREEMENT, PROVIDING FOR A TOTAL EXPENDITURE IN EXCESS  OF
FIVE  THOUSAND  DOLLARS,  WHEREBY  A  CONTRACTING AGENCY IS COMMITTED TO
EXPEND OR DOES EXPEND FUNDS IN RETURN FOR PROFESSIONAL  SERVICES  TO  BE
PERFORMED FOR, OR RENDERED OR FURNISHED TO THE CONTRACTING AGENCY; (C) a
written  agreement  in  excess of one hundred thousand dollars whereby a
contracting agency is committed to expend or does expend funds  for  the
acquisition,  construction,  demolition,  replacement,  major  repair or
renovation of real property and improvements thereon; and  [(c)]  (D)  a
written  agreement in excess of one hundred thousand dollars whereby the
owner of a state assisted housing project is committed to expend or does
expend funds for the acquisition, construction, demolition, replacement,
major repair or renovation of real property and improvements thereon for
such project.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD00318-01-3

S. 118                              2

  23. "PROFESSIONAL SERVICES" SHALL MEAN THE PROVISION  OF  SERVICE  FOR
WHICH  THE PROVIDER OF SUCH SERVICE IS REQUIRED TO HOLD A LICENSE ISSUED
PURSUANT TO TITLE EIGHT OF THE EDUCATION LAW OR ARTICLE FIFTEEN  OF  THE
JUDICIARY LAW.
  S  2.   Paragraphs (d), (e) and (f) of subdivision 3 of section 311 of
the executive law, paragraphs (d) and (e) as amended by  chapter  55  of
the  laws  of 1992 and paragraph (f) as added by chapter 261 of the laws
of 1988, are amended to read as follows:
  (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  reports  with  the
division of minority and women's business development as to the level of
minority  and  women-owned  business  enterprises  participation  in the
awarding of agency contracts for goods [and], services AND  PROFESSIONAL
SERVICES;
  (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  of  minority  and women-owned business enterprises
participating in each agency's contracts for goods [and],  services  AND
PROFESSIONAL SERVICES 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  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) 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,  PROFESSIONAL
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;
  S  3. Paragraph (a) of subdivision 1 of section 312-a of the executive
law, as amended by chapter 175 of the laws of 2010, is amended  to  read
as follows:
  (a)  to  determine  whether there is a disparity between the number of
qualified minority and women-owned businesses ready, willing and able to
perform state contracts for commodities, services, PROFESSIONAL SERVICES
and construction, and the number of such contractors actually engaged to
perform such contracts, and to determine what changes, if any, should be
made to state  policies  affecting  minority  and  women-owned  business
enterprises; and
  S  4.  Paragraphs  (j)  and (k) of subdivision 1 of section 313 of the
executive law, as added by chapter 175 of the laws of 2010, are  amended
and two new paragraphs (l) and (m) are added to read as follows:
  (j)  overall  agency  total  dollar value of procurement for certified
women-owned business  enterprises:  twelve  and  thirty-nine  hundredths
percent; [and]
  (k)  overall  agency  total  dollar value of procurement for certified
minority, women-owned business enterprises: twenty-eight and  ninety-two
hundredths percent[.];
  (L) PROFESSIONAL SERVICES FOR CERTIFIED MINORITY-OWNED BUSINESS ENTER-
PRISES: FIFTEEN PERCENT; AND

S. 118                              3

  (M)  PROFESSIONAL  SERVICES  FOR CERTIFIED WOMEN-OWNED BUSINESS ENTER-
PRISES: FIFTEEN PERCENT.
  S  5.  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. The director  shall
promulgate  rules  and regulations setting forth measures and procedures
to require all contracting agencies,  where  practicable,  feasible  and
appropriate, to assess the diversity practices of contractors submitting
bids or proposals in connection with the award of a state contract. Such
rules  and regulations shall take into account: the nature of the labor,
services, PROFESSIONAL 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  arti-
cle;  and such other factors as the director deems appropriate or neces-
sary to promote the award of state contracts to contractors having sound
diversity practices. 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 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  regu-
lations  required  hereunder  only  after  consultation  with  the state
procurement council established by section one hundred sixty-one of  the
state finance law.
  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  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 expire therewith. Provided, further, that,
effective immediately, any rules and regulations necessary to  implement
the  provisions  of  this  act  on its effective date are authorized and
directed to be completed on or before such date.

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