senate Bill S2597

2013-2014 Legislative Session

Provides opportunities for veteran-owned business enterprises

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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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Actions

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Assembly Actions - Lowercase
Senate Actions - UPPERCASE
Jan 08, 2014 referred to veterans, homeland security and military affairs
returned to senate
died in assembly
Jun 13, 2013 referred to veterans' affairs
delivered to assembly
passed senate
Jun 12, 2013 ordered to third reading cal.1320
committee discharged and committed to rules
May 07, 2013 reported and committed to finance
Jan 22, 2013 referred to veterans, homeland security and military affairs

Votes

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Jun 17, 2013 - Rules committee Vote

S2597
23
1
committee
23
Aye
1
Nay
0
Aye with Reservations
0
Absent
1
Excused
0
Abstained
show Rules committee vote details

Jun 12, 2013 - Rules committee Vote

S2597
23
1
committee
23
Aye
1
Nay
0
Aye with Reservations
0
Absent
1
Excused
0
Abstained
show Rules committee vote details

May 7, 2013 - Veterans, Homeland Security and Military Affairs committee Vote

S2597
11
0
committee
11
Aye
0
Nay
1
Aye with Reservations
0
Absent
0
Excused
0
Abstained
show Veterans, Homeland Security and Military Affairs committee vote details

Veterans, Homeland Security and Military Affairs Committee Vote: May 7, 2013

aye wr (1)

Co-Sponsors

S2597 - Bill Details

See Assembly Version of this Bill:
A2876
Current Committee:
Law Section:
Executive Law
Laws Affected:
Add Art 17-A ยงยง369 - 369-e, Exec L
Versions Introduced in 2011-2012 Legislative Session:
S6627, A9892

S2597 - Bill Texts

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Provides opportunities for veteran-owned business enterprises.

view sponsor memo
BILL NUMBER:S2597

TITLE OF BILL: An act to amend the executive law, in relation to veter-
an-owned business enterprises

PURPOSE: To promote the participation of veteran-owned business enter-
prises in the performance of state contracts.

SUMMARY OF PROVISIONS:

Section one of this bill creates a new Article 17-A of the Executive Law
for participation by veterans with respect to state contracts.

Section 369 defines a veteran as any resident of New York, who has
served on active duty in the United States army, navy, air force,
marines, coast guard, and/or reserves, or the army national guard, air
national guard, New York guard or naval militia and who is currently in
service or has been honorably discharged or furloughed to the reserves
and sets forth other definitions in regards to veteran-owned businesses
within the article.

Section 369-a highlights the opportunities available to veteran-owned
businesses, as it establishes that 3% of contracts awarded by agencies
and contractors in specific industries must be granted to veteran-owned
businesses.

Section 369-b creates a state-wide certification program to verify those
business that qualify as veteran-owned enterprises.

Section 369-c highlights the responsibilities of contracting agencies
with respect to monitoring compliance with this article.

Section 369-d creates the enforcement mechanism for this article.

Section 369-e contains a severability clause.

Section two sets the enacting date.

JUSTIFICATION: The United States is fortunate to have many brave men
and women fighting overseas to protect our freedom. Unfortunately, many
of our returning veterans are having difficulty entering the workforce,

This bill will reward service to our country by promoting small business
ventures undertaken by veterans, and setting aside three percent of
state contracts to employ and utilize such enterprises.

LEGISLATIVE HISTORY: S-6627 (2012)

FISCAL IMPLICATIONS: None.

EFFECTIVE DATE: This act shall take effect immediately.

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

                                  2597

                       2013-2014 Regular Sessions

                            I N  S E N A T E

                            January 22, 2013
                               ___________

Introduced  by  Sen. MARTINS -- read twice and ordered printed, and when
  printed to be committed to the Committee on Veterans, Homeland Securi-
  ty and Military Affairs

AN ACT to amend the executive law, in relation to veteran-owned business
  enterprises

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

  Section  1.  The executive law is amended by adding a new article 17-A
to read as follows:

                              ARTICLE 17-A
             PARTICIPATION BY VETERANS WITH RESPECT TO STATE
                                CONTRACTS
SECTION 369.   DEFINITIONS.
        369-A. OPPORTUNITIES FOR VETERAN-OWNED BUSINESS ENTERPRISES.
        369-B. STATEWIDE CERTIFICATION PROGRAM.
        369-C. RESPONSIBILITIES OF CONTRACTING AGENCIES.
        369-D. ENFORCEMENT.
        369-E. SEVERABILITY.
  S 369. DEFINITIONS. AS USED IN THIS ARTICLE, THE FOLLOWING TERMS SHALL
HAVE THE FOLLOWING MEANINGS:
  1.  "CERTIFIED  BUSINESS"  SHALL  MEAN  A  BUSINESS  VERIFIED   AS   A
VETERAN-OWNED  BUSINESS  ENTERPRISE  PURSUANT  TO  SECTION THREE HUNDRED
SIXTY-NINE-B OF THIS ARTICLE.
  2. "CONTRACTING AGENCY" SHALL MEAN A STATE AGENCY WHICH IS A PARTY  OR
A PROPOSED PARTY TO A STATE CONTRACT OR, IN THE CASE OF A STATE CONTRACT
DESCRIBED  IN  SUBDIVISION NINE OF THIS SECTION, SHALL MEAN THE NEW YORK
STATE HOUSING FINANCE AGENCY, HOUSING TRUST FUND CORPORATION OR AFFORDA-
BLE HOUSING CORPORATION, WHICHEVER HAS MADE  OR  PROPOSES  TO  MAKE  THE
GRANT OR LOAN FOR THE STATE ASSISTED HOUSING PROJECT.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD06439-01-3

S. 2597                             2

  3.  "CONTRACTOR"  SHALL  MEAN  AN  INDIVIDUAL,  A BUSINESS ENTERPRISE,
INCLUDING  A  SOLE  PROPRIETORSHIP,  A  PARTNERSHIP,  A  CORPORATION,  A
NOT-FOR-PROFIT CORPORATION, OR ANY OTHER PARTY TO A STATE CONTRACT, OR A
BIDDER  IN  CONJUNCTION WITH THE AWARD OF A STATE CONTRACT OR A PROPOSED
PARTY TO A STATE CONTRACT.
  4. "DIRECTOR" SHALL MEAN THE DIRECTOR OF THE DIVISION OF VETERAN-OWNED
BUSINESS DEVELOPMENT IN THE DEPARTMENT OF ECONOMIC DEVELOPMENT.
  5.  "VETERAN"  SHALL  MEAN A RESIDENT OF THIS STATE, WHO HAS SERVED ON
ACTIVE DUTY IN THE UNITED STATES ARMY, NAVY, AIR FORCE,  MARINES,  COAST
GUARD,  AND/  OR  RESERVES  THEREOF, AND/OR THE ARMY NATIONAL GUARD, AIR
NATIONAL GUARD, NEW YORK GUARD AND/OR THE NEW YORK  NAVAL  MILITIA,  AND
WHO  IS  CURRENTLY IN SERVICE, OR HAS BEEN RELEASED FROM SUCH SERVICE BY
HONORABLE DISCHARGE, OR WHO HAS BEEN FURLOUGHED TO THE RESERVE.
  6. "VETERAN-OWNED BUSINESS ENTERPRISE" SHALL MEAN  A  BUSINESS  ENTER-
PRISE,  INCLUDING  A  SOLE  PROPRIETORSHIP, PARTNERSHIP, CORPORATION, OR
LIMITED LIABILITY COMPANY THAT IS:
  (A) AT LEAST FIFTY-ONE PERCENT OWNED BY A VETERAN;
  (B) AN ENTERPRISE IN WHICH SUCH VETERAN OWNERSHIP IS REAL, SUBSTANTIAL
AND CONTINUING;
  (C) AN ENTERPRISE IN WHICH SUCH VETERAN OWNERSHIP  HAS  AND  EXERCISES
THE AUTHORITY TO CONTROL INDEPENDENTLY THE DAY-TO-DAY BUSINESS DECISIONS
OF THE ENTERPRISE;
  (D)  AN  ENTERPRISE  AUTHORIZED TO DO BUSINESS IN THIS STATE AND INDE-
PENDENTLY OWNED AND OPERATED;
  (E) AN ENTERPRISE OWNED BY AN INDIVIDUAL OR INDIVIDUALS, WHOSE  OWNER-
SHIP,  CONTROL  AND  OPERATION ARE RELIED UPON FOR CERTIFICATION, WITH A
PERSONAL NET WORTH THAT DOES NOT EXCEED THREE MILLION FIVE HUNDRED THOU-
SAND DOLLARS, AS ADJUSTED ANNUALLY ON THE FIRST OF JANUARY FOR INFLATION
ACCORDING TO THE CONSUMER PRICE INDEX OF THE PREVIOUS YEAR; AND
  (F) AN ENTERPRISE THAT IS A SMALL  BUSINESS  PURSUANT  TO  SUBDIVISION
FOURTEEN OF THIS SECTION.
  7. "STATE AGENCY" SHALL MEAN:
  (A) (I) ANY STATE DEPARTMENT; OR
  (II)  ANY  DIVISION,  BOARD, COMMISSION OR BUREAU OF ANY STATE DEPART-
MENT; OR
  (III) THE STATE UNIVERSITY OF NEW YORK AND THE CITY UNIVERSITY OF  NEW
YORK,  INCLUDING  ALL  THEIR CONSTITUENT UNITS EXCEPT COMMUNITY COLLEGES
AND  THE  INDEPENDENT  INSTITUTIONS  OPERATING  STATUTORY  OR   CONTRACT
COLLEGES ON BEHALF OF THE STATE; OR
  (IV)  A BOARD, A MAJORITY OF WHOSE MEMBERS ARE APPOINTED BY THE GOVER-
NOR OR WHO SERVE BY VIRTUE OF  BEING  STATE  OFFICERS  OR  EMPLOYEES  AS
DEFINED  IN SUBPARAGRAPH (I), (II) OR (III) OF PARAGRAPH (I) OF SUBDIVI-
SION ONE OF SECTION SEVENTY-THREE OF THE PUBLIC OFFICERS LAW; OR
  (B) A "STATE AUTHORITY," AS DEFINED IN SUBDIVISION ONE OF SECTION  TWO
OF THE PUBLIC AUTHORITIES LAW.
  8.  "STATE ASSISTED HOUSING PROJECT" OR "PROJECT" SHALL MEAN, FOR SUCH
PROJECTS WHICH RECEIVE FROM THE NEW YORK STATE HOUSING  FINANCE  AGENCY,
THE  AFFORDABLE  HOUSING CORPORATION, THE HOUSING TRUST FUND CORPORATION
OR THE DIVISION OF HOUSING AND COMMUNITY RENEWAL A GRANT OR LOAN FOR ALL
OR PART OF THE TOTAL PROJECT COST:
  (A) A "PERMANENT HOUSING PROJECT FOR HOMELESS FAMILIES" AS DEFINED  IN
SUBDIVISION  FIVE  OF  SECTION SIXTY-FOUR OF THE PRIVATE HOUSING FINANCE
LAW;
  (B) A "PROJECT" AS DEFINED IN SUBDIVISION TWELVE OF SECTION ONE  THOU-
SAND  ONE  HUNDRED  ONE OF THE PRIVATE HOUSING FINANCE LAW PROVIDED SAID

S. 2597                             3

PROJECT IS LOCATED IN A LARGE COUNTY AND CONSISTS OF  MORE  THAN  TWELVE
RESIDENTIAL UNITS AT A SINGLE SITE;
  (C)  "AFFORDABLE  HOME  OWNERSHIP  DEVELOPMENT PROGRAMS" AS DEFINED IN
SUBDIVISION EIGHT OF SECTION ONE THOUSAND  ONE  HUNDRED  ELEVEN  OF  THE
PRIVATE HOUSING FINANCE LAW PROVIDED SAID PROJECT IS LOCATED IN A METRO-
POLITAN AREA AS HEREIN DEFINED AND CONSISTS OF MORE THAN TWELVE RESIDEN-
TIAL UNITS AT A SINGLE SITE;
  (D)  A "TURNKEY/ENHANCED RENTAL PROJECT" AS DEFINED IN SUBDIVISION TWO
OF SECTION ONE THOUSAND ONE HUNDRED SIX-A OF THE PRIVATE HOUSING FINANCE
LAW;
  (E) "INFRASTRUCTURE IMPROVEMENTS" AS DEFINED  IN  SUBDIVISION  TWO  OF
SECTION  ONE  THOUSAND  ONE  HUNDRED  THIRTY-ONE  OF THE PRIVATE HOUSING
FINANCE LAW, TO THE EXTENT THAT SUCH "INFRASTRUCTURE  IMPROVEMENTS"  ARE
APPLIED  FOR  IN  CONNECTION  WITH  A  STATE ASSISTED HOUSING PROJECT AS
DEFINED IN PARAGRAPHS (A) THROUGH (D) OF THIS SUBDIVISION  AND  PROVIDED
FURTHER  THAT THE APPLICANT FOR SUCH INFRASTRUCTURE IMPROVEMENTS AND FOR
SUCH STATE ASSISTED HOUSING PROJECT ARE IDENTICAL.
  9. "STATE CONTRACT" SHALL MEAN:
  (A) A WRITTEN AGREEMENT OR PURCHASE ORDER INSTRUMENT, PROVIDING FOR  A
TOTAL  EXPENDITURE  IN EXCESS OF TWENTY-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  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) 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,  DEMOLI-
TION,  REPLACEMENT,  MAJOR  REPAIR  OR  RENOVATION  OF REAL PROPERTY AND
IMPROVEMENTS THEREON FOR SUCH PROJECT.
  10. "SUBCONTRACT" SHALL  MEAN  AN  AGREEMENT  PROVIDING  FOR  A  TOTAL
EXPENDITURE   IN   EXCESS   OF  TWENTY-FIVE  THOUSAND  DOLLARS  FOR  THE
CONSTRUCTION, DEMOLITION, REPLACEMENT, MAJOR REPAIR,  RENOVATION,  PLAN-
NING  OR  DESIGN  OF  REAL  PROPERTY  AND IMPROVEMENTS THEREON BETWEEN A
CONTRACTOR AND ANY INDIVIDUAL OR BUSINESS ENTERPRISE, INCLUDING  A  SOLE
PROPRIETORSHIP, PARTNERSHIP, CORPORATION, OR NOT-FOR-PROFIT CORPORATION,
IN  WHICH  A PORTION OF A CONTRACTOR'S OBLIGATION UNDER A STATE CONTRACT
IS UNDERTAKEN OR ASSUMED, BUT SHALL NOT INCLUDE ANY CONSTRUCTION,  DEMO-
LITION,  REPLACEMENT,  MAJOR  REPAIR,  RENOVATION, PLANNING OR DESIGN OF
REAL PROPERTY OR IMPROVEMENTS THEREON FOR  THE  BENEFICIAL  USE  OF  THE
CONTRACTOR.
  11.  "COMMISSIONER"  SHALL  MEAN THE COMMISSIONER OF ECONOMIC DEVELOP-
MENT.
  12. "LESSEE" SHALL MEAN AN INDIVIDUAL, A BUSINESS ENTERPRISE,  INCLUD-
ING  A SOLE PROPRIETORSHIP, A PARTNERSHIP, A CORPORATION, A NOT-FOR-PRO-
FIT CORPORATION, OR ANY OTHER PARTY TO A LEASE WITH A  STATE  AGENCY  AS
DEFINED  IN  SUBDIVISION  SEVEN  OF  THIS  SECTION,  OR  A RESPONDENT IN
CONJUNCTION WITH THE AWARD OF SUCH A LEASE OR A PROPOSED LESSEE  WITH  A
STATE AGENCY AS DEFINED IN SUBDIVISION SEVEN OF THIS SECTION.
  13.  "PERSONAL  NET WORTH" SHALL MEAN THE AGGREGATE ADJUSTED NET VALUE
OF THE ASSETS OF AN INDIVIDUAL REMAINING  AFTER  TOTAL  LIABILITIES  ARE
DEDUCTED.  PERSONAL  NET WORTH INCLUDES THE INDIVIDUAL'S SHARE OF ASSETS

S. 2597                             4

HELD JOINTLY WITH SAID INDIVIDUAL'S SPOUSE  AND  DOES  NOT  INCLUDE  THE
INDIVIDUAL'S  OWNERSHIP  INTEREST  IN  THE VETERAN-OWNED BUSINESS ENTER-
PRISE, THE INDIVIDUAL'S EQUITY IN HIS OR HER PRIMARY RESIDENCE, OR UP TO
FIVE HUNDRED THOUSAND DOLLARS OF THE PRESENT CASH VALUE OF ANY QUALIFIED
RETIREMENT  SAVINGS  PLAN  OR  INDIVIDUAL RETIREMENT ACCOUNT HELD BY THE
INDIVIDUAL LESS ANY PENALTIES FOR EARLY WITHDRAWAL.
  14. "SMALL BUSINESS" AS USED IN THIS SECTION, UNLESS  OTHERWISE  INDI-
CATED,  SHALL  MEAN A BUSINESS WHICH HAS A SIGNIFICANT BUSINESS PRESENCE
IN THE STATE, IS INDEPENDENTLY OWNED AND OPERATED, AND EMPLOYS, BASED ON
ITS INDUSTRY, A CERTAIN NUMBER OF PERSONS AS DETERMINED BY THE DIRECTOR,
BUT NOT TO EXCEED THREE HUNDRED, TAKING INTO CONSIDERATION FACTORS WHICH
INCLUDE, BUT ARE NOT LIMITED TO, FEDERAL SMALL  BUSINESS  ADMINISTRATION
STANDARDS. THE DIRECTOR MAY ISSUE REGULATIONS ON THE CONSTRUCTION OF THE
TERMS IN THIS DEFINITION.
  S  369-A.  OPPORTUNITIES  FOR  VETERAN-OWNED  BUSINESS ENTERPRISES. 1.
GOALS AND REQUIREMENTS FOR AGENCIES AND CONTRACTORS.  EACH AGENCY  SHALL
STRUCTURE  PROCUREMENT  PROCEDURES  FOR CONTRACTS MADE DIRECTLY OR INDI-
RECTLY  TO  VETERAN-OWNED  BUSINESS  ENTERPRISES,  CONSISTENT  WITH  THE
PURPOSES  OF  THIS  ARTICLE, TO ATTEMPT TO ACHIEVE THE FOLLOWING RESULTS
WITH REGARD TO TOTAL ANNUAL STATEWIDE PROCUREMENT:
  (A) CONSTRUCTION INDUSTRY FOR CERTIFIED VETERAN-OWNED BUSINESS  ENTER-
PRISES: THREE PERCENT;
  (B)  CONSTRUCTION RELATED PROFESSIONAL SERVICES INDUSTRY FOR CERTIFIED
VETERAN-OWNED BUSINESS ENTERPRISES: THREE PERCENT;
  (C) NON-CONSTRUCTION RELATED SERVICES INDUSTRY FOR CERTIFIED  VETERAN-
OWNED BUSINESS ENTERPRISES: THREE PERCENT;
  (D)  COMMODITIES  INDUSTRY FOR CERTIFIED VETERAN-OWNED BUSINESS ENTER-
PRISES: THREE PERCENT; AND
  (E) OVERALL AGENCY TOTAL DOLLAR VALUE  OF  PROCUREMENT  FOR  CERTIFIED
VETERAN-OWNED BUSINESS ENTERPRISES: THREE PERCENT.
  2. THE DIRECTOR SHALL PROMULGATE RULES AND REGULATIONS PURSUANT TO THE
GOALS  ESTABLISHED IN SUBDIVISION ONE OF THIS SECTION THAT PROVIDE MEAS-
URES AND PROCEDURES TO ENSURE THAT  CERTIFIED  VETERAN-OWNED  BUSINESSES
SHALL BE GIVEN THE OPPORTUNITY FOR MAXIMUM FEASIBLE PARTICIPATION IN THE
PERFORMANCE OF STATE CONTRACTS AND TO ASSIST IN THE AGENCY'S IDENTIFICA-
TION  OF  THOSE  STATE CONTRACTS FOR WHICH VETERAN-OWNED CERTIFIED BUSI-
NESSES MAY BEST BID TO ACTIVELY AND  AFFIRMATIVELY  PROMOTE  AND  ASSIST
THEIR  PARTICIPATION  IN  THE  PERFORMANCE  OF  STATE CONTRACTS SO AS TO
FACILITATE THE AGENCY'S ACHIEVEMENT OF THE MAXIMUM FEASIBLE  PORTION  OF
THE GOALS FOR STATE CONTRACTS TO SUCH BUSINESSES.
  2-A.  THE  DIRECTOR  SHALL  PROMULGATE RULES AND REGULATIONS THAT WILL
ACCOMPLISH THE FOLLOWING:
  (A) PROVIDE FOR THE CERTIFICATION AND DECERTIFICATION OF VETERAN-OWNED
BUSINESS ENTERPRISES FOR ALL AGENCIES  THROUGH  A  SINGLE  PROCESS  THAT
MEETS APPLICABLE REQUIREMENTS;
  (B) REQUIRE THAT EACH CONTRACT SOLICITATION DOCUMENT ACCOMPANYING EACH
SOLICITATION  SET  FORTH  THE  EXPECTED DEGREE OF VETERAN-OWNED BUSINESS
ENTERPRISE PARTICIPATION BASED, IN PART, ON:
  (I) THE POTENTIAL SUBCONTRACT OPPORTUNITIES  AVAILABLE  IN  THE  PRIME
PROCUREMENT CONTRACT; AND
  (II)  THE  AVAILABILITY,  AS  CONTAINED WITHIN THE STUDY, OF CERTIFIED
VETERAN-OWNED BUSINESS  ENTERPRISES  TO  RESPOND  COMPETITIVELY  TO  THE
POTENTIAL SUBCONTRACT OPPORTUNITIES;
  (C)  REQUIRE  THAT  EACH  AGENCY  PROVIDE  A CURRENT LIST OF CERTIFIED
VETERAN BUSINESS ENTERPRISES TO EACH PROSPECTIVE CONTRACTOR;

S. 2597                             5

  (D) ALLOW A CONTRACTOR THAT  IS  A  CERTIFIED  VETERAN-OWNED  BUSINESS
ENTERPRISE  TO  USE THE WORK IT PERFORMS TO MEET REQUIREMENTS FOR USE OF
VETERAN-OWNED BUSINESS ENTERPRISES AS SUBCONTRACTORS;
  (E)  PROVIDE FOR JOINT VENTURES, WHICH A BIDDER MAY COUNT TOWARD MEET-
ING ITS VETERAN-OWNED BUSINESS ENTERPRISE PARTICIPATION;
  (F) CONSISTENT WITH SUBDIVISION FIVE  OF  THIS  SECTION,  PROVIDE  FOR
CIRCUMSTANCES  UNDER  WHICH  AN  AGENCY  MAY  WAIVE  OBLIGATIONS  OF THE
CONTRACTOR RELATING TO VETERAN BUSINESS ENTERPRISE PARTICIPATION;
  (G) REQUIRE THAT AN AGENCY VERIFY THAT VETERAN-OWNED  BUSINESS  ENTER-
PRISES  LISTED  IN  A  SUCCESSFUL  BID ARE ACTUALLY PARTICIPATING TO THE
EXTENT LISTED IN THE PROJECT FOR WHICH THE BID WAS SUBMITTED;
  (H) PROVIDE FOR THE COLLECTION OF  STATISTICAL  DATA  BY  EACH  AGENCY
CONCERNING ACTUAL VETERAN-OWNED BUSINESS ENTERPRISE PARTICIPATION; AND
  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
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 SIXTY-NINE-C 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,  DEMOLI-
TION,  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 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 SIXTY-NINE-D 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  SUBCON-
TRACTOR EXCEPT WITH RESPECT TO A STATE CONTRACT.
  4. (A) CONTRACTING AGENCIES SHALL ADMINISTER THE RULES AND REGULATIONS
PROMULGATED  BY  THE DIRECTOR IN A GOOD FAITH EFFORT TO MEET THE MAXIMUM
FEASIBLE PORTION OF THE AGENCY'S GOALS ADOPTED PURSUANT TO THIS  ARTICLE
AND  THE REGULATIONS OF THE DIRECTOR. 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  CONTRACTING  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

S. 2597                             6

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 CONTRACTOR TO APPLY FOR  A  PARTIAL  OR  TOTAL
WAIVER  OF  THE VETERAN-OWNED BUSINESS ENTERPRISE PARTICIPATION REQUIRE-
MENTS PURSUANT TO SUBDIVISIONS FIVE AND SIX OF THIS SECTION; SHALL ALLOW
A CONTRACTOR TO FILE A COMPLAINT WITH THE DIRECTOR PURSUANT TO  SUBDIVI-
SION SIX OF THIS SECTION IN THE EVENT A CONTRACTING AGENCY HAS FAILED OR
REFUSED  TO  ISSUE  A  WAIVER  OF  THE VETERAN-OWNED BUSINESS ENTERPRISE
PARTICIPATION REQUIREMENTS OR HAS DENIED SUCH REQUEST FOR A WAIVER.
  (B) THE RULES AND REGULATIONS PROMULGATED PURSUANT TO THIS SUBDIVISION
REGARDING A UTILIZATION PLAN SHALL PROVIDE THAT WHERE  ENTERPRISES  HAVE
BEEN  IDENTIFIED  WITHIN A UTILIZATION PLAN, A CONTRACTOR SHALL ATTEMPT,
IN GOOD FAITH, TO UTILIZE SUCH ENTERPRISE AT LEAST TO THE  EXTENT  INDI-
CATED. A CONTRACTING AGENCY MAY REQUIRE A CONTRACTOR TO INDICATE, WITHIN
A  UTILIZATION  PLAN,  WHAT MEASURES AND PROCEDURES HE OR SHE INTENDS TO
TAKE TO COMPLY WITH THE PROVISIONS OF THIS ARTICLE, BUT MAY NOT REQUIRE,
AS A CONDITION OF AWARD OF,  OR  COMPLIANCE  WITH,  A  CONTRACT  THAT  A
CONTRACTOR  UTILIZE  A  PARTICULAR  ENTERPRISE  IN  PERFORMANCE  OF  THE
CONTRACT.
  (C) WITHOUT LIMITING OTHER GROUNDS FOR THE DISQUALIFICATION OF BIDS OR
PROPOSALS ON THE BASIS OF NON-RESPONSIBILITY, A CONTRACTING  AGENCY  MAY
DISQUALIFY  THE BID OR PROPOSAL OF A CONTRACTOR AS BEING NON-RESPONSIBLE
FOR FAILURE TO REMEDY NOTIFIED DEFICIENCIES CONTAINED  IN  THE  CONTRAC-
TOR'S  UTILIZATION PLAN WITHIN A PERIOD OF TIME SPECIFIED IN REGULATIONS
PROMULGATED BY THE DIRECTOR AFTER RECEIVING NOTIFICATION OF  SUCH  DEFI-
CIENCIES  FROM THE CONTRACTING AGENCY. WHERE FAILURE TO REMEDY ANY NOTI-
FIED DEFICIENCY IN THE UTILIZATION PLAN IS A  GROUND  FOR  DISQUALIFICA-
TION,  THAT  ISSUE  AND  ALL OTHER GROUNDS FOR DISQUALIFICATION SHALL BE
STATED IN WRITING BY THE CONTRACTING AGENCY. WHERE THE CONTRACTING AGEN-
CY STATES THAT A FAILURE TO REMEDY ANY NOTIFIED DEFICIENCY IN THE UTILI-
ZATION PLAN IS A GROUND FOR DISQUALIFICATION  THE  CONTRACTOR  SHALL  BE
ENTITLED  TO  AN  ADMINISTRATIVE  HEARING,  ON  A  RECORD, INVOLVING ALL
GROUNDS  STATED  BY  THE  CONTRACTING  AGENCY.  SUCH  HEARING  SHALL  BE
CONDUCTED  BY  THE  APPROPRIATE  AUTHORITY  OF THE CONTRACTING AGENCY TO
REVIEW THE DETERMINATION OF  DISQUALIFICATION.  A  FINAL  ADMINISTRATIVE
DETERMINATION  MADE  FOLLOWING  SUCH  HEARING  SHALL  BE REVIEWABLE IN A
PROCEEDING COMMENCED UNDER ARTICLE SEVENTY-EIGHT OF THE  CIVIL  PRACTICE
LAW  AND RULES, PROVIDED THAT SUCH PROCEEDING IS COMMENCED WITHIN THIRTY
DAYS OF THE NOTICE GIVEN BY  CERTIFIED  MAIL  RETURN  RECEIPT  REQUESTED
RENDERING  SUCH  FINAL  ADMINISTRATIVE  DETERMINATION.   SUCH PROCEEDING
SHALL BE COMMENCED IN  THE  SUPREME  COURT,  APPELLATE  DIVISION,  THIRD
DEPARTMENT  AND  SUCH PROCEEDING SHALL BE PREFERRED OVER ALL OTHER CIVIL
CAUSES EXCEPT ELECTION CAUSES, AND SHALL  BE  HEARD  AND  DETERMINED  IN
PREFERENCE  TO ALL OTHER CIVIL BUSINESS PENDING THEREIN, EXCEPT ELECTION
MATTERS, IRRESPECTIVE OF POSITION ON THE CALENDAR.  APPEALS TAKEN TO THE
COURT OF APPEALS OF THE STATE OF NEW YORK SHALL BE SUBJECT TO  THE  SAME
PREFERENCE.
  5.  WHERE  IT  APPEARS  THAT  A  CONTRACTOR CANNOT, AFTER A GOOD FAITH
EFFORT, COMPLY WITH THE VETERAN-OWNED BUSINESS ENTERPRISE  PARTICIPATION
REQUIREMENTS  SET FORTH IN A PARTICULAR STATE CONTRACT, A CONTRACTOR MAY
FILE A WRITTEN APPLICATION WITH  THE  CONTRACTING  AGENCY  REQUESTING  A
PARTIAL  OR  TOTAL WAIVER OF SUCH REQUIREMENTS SETTING FORTH THE REASONS

S. 2597                             7

FOR SUCH CONTRACTOR'S INABILITY TO MEET ANY OR ALL OF THE  PARTICIPATION
REQUIREMENTS  TOGETHER  WITH AN EXPLANATION OF THE EFFORTS UNDERTAKEN BY
THE CONTRACTOR TO OBTAIN THE REQUIRED VETERAN-OWNED BUSINESS  ENTERPRISE
PARTICIPATION.  IN  IMPLEMENTING  THE  PROVISIONS  OF  THIS SECTION, THE
CONTRACTING AGENCY SHALL CONSIDER THE NUMBER AND TYPES OF  VETERAN-OWNED
BUSINESS  ENTERPRISES  LOCATED IN THE REGION IN WHICH THE STATE CONTRACT
IS TO BE PERFORMED, THE TOTAL DOLLAR VALUE OF THE  STATE  CONTRACT,  THE
SCOPE  OF  WORK TO BE PERFORMED AND THE PROJECT SIZE AND TERM. IF, BASED
ON SUCH CONSIDERATIONS, THE CONTRACTING AGENCY DETERMINES THERE IS NOT A
REASONABLE AVAILABILITY OF CONTRACTORS ON THE LIST OF CERTIFIED BUSINESS
TO FURNISH SERVICES FOR THE PROJECT, IT SHALL ISSUE A WAIVER OF  COMPLI-
ANCE  TO  THE  CONTRACTOR. IN MAKING SUCH DETERMINATION, THE CONTRACTING
AGENCY SHALL FIRST CONSIDER THE AVAILABILITY OF  OTHER  BUSINESS  ENTER-
PRISES LOCATED IN THE REGION AND SHALL THEREAFTER CONSIDER THE FINANCIAL
ABILITY  OF VETERAN-OWNED BUSINESSES LOCATED OUTSIDE THE REGION IN WHICH
THE CONTRACT IS TO BE PERFORMED TO PERFORM THE STATE CONTRACT.
  6. IN THE EVENT THAT A CONTRACTING AGENCY FAILS OR REFUSES TO ISSUE  A
WAIVER TO A CONTRACTOR AS REQUESTED WITHIN TWENTY DAYS AFTER HAVING MADE
APPLICATION THEREFORE PURSUANT TO SUBDIVISION FIVE OF THIS SECTION OR IF
THE CONTRACTING AGENCY DENIES SUCH APPLICATION, IN WHOLE OR IN PART, THE
CONTRACTOR  MAY  FILE  A COMPLAINT WITH THE DIRECTOR PURSUANT TO SECTION
THREE HUNDRED SIXTY-NINE-D OF THIS ARTICLE SETTING FORTH THE  FACTS  AND
CIRCUMSTANCES  GIVING RISE TO THE CONTRACTOR'S COMPLAINT TOGETHER WITH A
DEMAND FOR RELIEF. THE CONTRACTOR SHALL SERVE A COPY OF  SUCH  COMPLAINT
UPON  THE  CONTRACTING  AGENCY BY PERSONAL SERVICE OR BY CERTIFIED MAIL,
RETURN RECEIPT REQUESTED. THE CONTRACTING AGENCY SHALL  BE  AFFORDED  AN
OPPORTUNITY TO RESPOND TO SUCH COMPLAINT IN WRITING.
  7.  IF,  AFTER  THE  REVIEW  OF  A CONTRACTOR'S VETERAN-OWNED BUSINESS
UTILIZATION PLAN OR REVIEW OF A PERIODIC  COMPLIANCE  REPORT  AND  AFTER
SUCH  CONTRACTOR HAS BEEN AFFORDED AN OPPORTUNITY TO RESPOND TO A NOTICE
OF DEFICIENCY ISSUED BY THE CONTRACTING AGENCY IN CONNECTION  THEREWITH,
IT  APPEARS  THAT A CONTRACTOR IS FAILING OR REFUSING TO COMPLY WITH THE
VETERAN-OWNED BUSINESS PARTICIPATION REQUIREMENTS AS SET  FORTH  IN  THE
STATE  CONTRACT  AND  WHERE  NO  WAIVER  FROM SUCH REQUIREMENTS HAS BEEN
GRANTED, THE CONTRACTING AGENCY MAY FILE A WRITTEN  COMPLAINT  WITH  THE
DIRECTOR  PURSUANT TO SECTION THREE HUNDRED SIXTY-NINE-D OF THIS ARTICLE
SETTING FORTH THE FACTS AND CIRCUMSTANCES GIVING RISE TO THE CONTRACTING
AGENCY'S COMPLAINT TOGETHER WITH A DEMAND FOR RELIEF.   THE  CONTRACTING
AGENCY  SHALL  SERVE  A  COPY  OF  SUCH COMPLAINT UPON THE CONTRACTOR BY
PERSONAL SERVICE OR BY CERTIFIED MAIL,  RETURN  RECEIPT  REQUESTED.  THE
CONTRACTOR SHALL BE AFFORDED AN OPPORTUNITY TO RESPOND TO SUCH COMPLAINT
IN WRITING.
  S  369-B.  STATEWIDE  CERTIFICATION  PROGRAM.  1.  THE  DIRECTOR SHALL
PROMULGATE RULES AND REGULATIONS PROVIDING FOR THE  ESTABLISHMENT  OF  A
STATEWIDE  CERTIFICATION PROGRAM INCLUDING RULES AND REGULATIONS GOVERN-
ING THE APPROVAL, DENIAL OR REVOCATION OF ANY SUCH CERTIFICATION.
  2. FOR THE PURPOSES OF THIS ARTICLE, THE OFFICE SHALL  BE  RESPONSIBLE
FOR  VERIFYING  BUSINESSES  AS  BEING OWNED, OPERATED, AND CONTROLLED BY
VETERANS AND FOR CERTIFYING SUCH VERIFIED BUSINESSES. THE DIRECTOR SHALL
PREPARE A DIRECTORY OF CERTIFIED BUSINESSES FOR USE BY CONTRACTING AGEN-
CIES AND CONTRACTORS IN CARRYING OUT THE PROVISIONS OF THIS ARTICLE. THE
DIRECTOR SHALL PERIODICALLY UPDATE THE DIRECTORY.
  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

S. 2597                             8

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
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.
  4. ALL CERTIFICATIONS SHALL BE VALID FOR A PERIOD OF THREE YEARS.
  S 369-C. RESPONSIBILITIES OF CONTRACTING AGENCIES. 1. EACH CONTRACTING
AGENCY  SHALL  BE  RESPONSIBLE  FOR MONITORING STATE CONTRACTS UNDER ITS
JURISDICTION, AND RECOMMENDING MATTERS TO THE OFFICE RESPECTING NON-COM-
PLIANCE WITH THE PROVISIONS OF THIS ARTICLE SO THAT THE OFFICE MAY  TAKE
SUCH  ACTION  AS IS APPROPRIATE TO INSURE COMPLIANCE WITH THE PROVISIONS
OF THIS ARTICLE, THE RULES AND REGULATIONS OF THE DIRECTOR ISSUED  HERE-
UNDER  AND THE CONTRACTUAL PROVISIONS REQUIRED PURSUANT TO THIS ARTICLE.
ALL CONTRACTING AGENCIES SHALL COMPLY WITH THE RULES AND REGULATIONS  OF
THE  OFFICE AND ARE DIRECTED TO COOPERATE WITH THE OFFICE AND TO FURNISH
TO THE OFFICE SUCH INFORMATION AND ASSISTANCE AS MAY BE REQUIRED IN  THE
PERFORMANCE OF ITS FUNCTIONS UNDER THIS ARTICLE.
  2.  EACH  CONTRACTING  AGENCY  SHALL  PROVIDE TO PROSPECTIVE BIDDERS A
CURRENT COPY OF THE DIRECTORY OF CERTIFIED BUSINESSES, AND A COPY OF THE
REGULATIONS REQUIRED PURSUANT TO SECTIONS THREE HUNDRED SIXTY-NINE-A  OF
THIS ARTICLE AT THE TIME BIDS OR PROPOSALS ARE SOLICITED.
  3.  EACH  CONTRACTING AGENCY SHALL REPORT TO THE DIRECTOR WITH RESPECT
TO ACTIVITIES UNDERTAKEN TO PROMOTE EMPLOYMENT OF VETERANS  AND  PROMOTE
AND INCREASE PARTICIPATION BY CERTIFIED BUSINESSES WITH RESPECT TO STATE
CONTRACTS  AND  SUBCONTRACTS.  SUCH  REPORTS  SHALL BE SUBMITTED PERIOD-
ICALLY, BUT NOT LESS FREQUENTLY THAN ANNUALLY, AS REQUIRED BY THE DIREC-
TOR, 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,  INCLUDING,  WITHOUT  LIMITATION,  A
SUMMARY  OF ALL WAIVERS OF THE REQUIREMENTS OF SUBDIVISIONS FIVE AND SIX
OF SECTION THREE HUNDRED SIXTY-NINE-A 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 369-D. ENFORCEMENT. UPON RECEIPT BY THE DIRECTOR OF A COMPLAINT BY A
CONTRACTING AGENCY THAT A CONTRACTOR HAS VIOLATED THE  PROVISIONS  OF  A
STATE CONTRACT WHICH HAVE BEEN INCLUDED TO COMPLY WITH THE PROVISIONS OF

S. 2597                             9

THIS  ARTICLE  OR OF A CONTRACTOR THAT 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 FIVE OF SECTION  THREE  HUNDRED
SIXTY-NINE-A  OF THIS ARTICLE OR HAS DENIED SUCH APPLICATION, THE DIREC-
TOR 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 RECOMMENDATIONS 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 DETERMINATION ALONG WITH A COPY OF THIS ARTI-
CLE TO BE SERVED UPON THE CONTRACTOR 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 THE CONTRACTOR'S WILLFUL AND INTENTIONAL DISREGARD OF THE
VETERAN-OWNED PARTICIPATION REQUIREMENT INCLUDED  IN  THE  CONTRACT  MAY
INCLUDE  A  DETERMINATION  THAT  THE  CONTRACTOR  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 CONTRACTOR 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 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 VETERAN'S BUSINESS
DEVELOPMENT SHALL MAINTAIN A WEBSITE LISTING ALL CONTRACTORS  THAT  HAVE
BEEN  DEEMED INELIGIBLE TO SUBMIT A BID PURSUANT TO THIS SECTION AND THE
DATE AFTER WHICH EACH CONTRACTOR SHALL ONCE  AGAIN  BECOME  ELIGIBLE  TO
SUBMIT BIDS.
  S  369-E. SEVERABILITY. IF ANY CLAUSE, SENTENCE, PARAGRAPH, SECTION OR
PART OF THIS ARTICLE SHALL BE ADJUDGED BY ANY COURT OF COMPETENT  JURIS-
DICTION  TO BE INVALID, THE JUDGMENT SHALL NOT AFFECT, IMPAIR OR INVALI-
DATE THE REMAINDER THEREOF, BUT SHALL BE CONFINED IN  ITS  OPERATION  TO
THE CLAUSE, SENTENCE, PARAGRAPH, SECTION OR PART OF THIS ARTICLE DIRECT-
LY  INVOLVED  IN  THE  CONTROVERSY IN WHICH THE JUDGMENT SHALL HAVE BEEN
RENDERED.
  S 2. This act shall take effect immediately.

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