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

                                 4090--A

                       2015-2016 Regular Sessions

                            I N  S E N A T E

                            February 26, 2015
                               ___________

Introduced  by  Sens.  ORTT,  GALLIVAN, GOLDEN -- read twice and ordered
  printed, and when printed to be committed to the Committee on  Finance
  --  recommitted  to the Committee on Finance in accordance with Senate
  Rule  6,  sec.  8  --  committee  discharged,  bill  amended,  ordered
  reprinted as amended and recommitted to said committee

AN  ACT  to amend the state finance law, in relation to obligations with
  respect to contracts with business enterprises which  employ  individ-
  uals with disabilities

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

  Section 1. The state finance law is amended by adding  a  new  section
139-l to read as follows:
  S 139-L. OBLIGATIONS WITH RESPECT TO CONTRACTS WITH QUALIFIED BUSINESS
ENTERPRISES.  1.  DEFINITIONS.  (A) "INDIVIDUAL WITH A DISABILITY" SHALL
MEAN A PERSON (I) WITH A  PHYSICAL,  MENTAL  OR  MEDICAL  IMPAIRMENT  OF
ANATOMICAL,  PHYSIOLOGICAL OR NEUROLOGICAL CONDITIONS WHICH PREVENTS THE
EXERCISE OF A NORMAL BODILY FUNCTION OR  IS  DEMONSTRABLE  BY  MEDICALLY
ACCEPTED  CLINICAL  OR  LABORATORY DIAGNOSTIC TECHNIQUES, OR (II) WITH A
RECORD OF SUCH AN IMPAIRMENT.
  (B) "QUALIFIED BUSINESS ENTERPRISE" OR "CERTIFIED BUSINESS ENTERPRISE"
SHALL MEAN ANY BUSINESS CONCERN WHICH EMPLOYS A WORKFORCE CONSISTING  OF
AT  LEAST  FIFTEEN PERCENT OF EMPLOYEES WHO ARE INDIVIDUALS WITH A DISA-
BILITY AS DEFINED IN THIS SECTION, WHICH HAS BEEN CERTIFIED PURSUANT  TO
THIS SECTION.
  2.  STATEWIDE ADVOCATE. THERE IS HEREBY ESTABLISHED WITHIN THE DEPART-
MENT OF ECONOMIC DEVELOPMENT AN OFFICE OF STATEWIDE ADVOCATE  FOR  INDI-
VIDUALS WITH DISABILITIES.  THE STATEWIDE ADVOCATE SHALL BE APPOINTED BY
THE  COMMISSIONER OF ECONOMIC DEVELOPMENT AND SHALL ACT AS A LIAISON FOR
QUALIFIED BUSINESS ENTERPRISES TO ASSIST THEM  IN  OBTAINING  TECHNICAL,
MANAGERIAL, FINANCIAL AND OTHER BUSINESS ASSISTANCE.  THE ADVOCATE SHALL
INVESTIGATE  COMPLAINTS  BROUGHT  BY  OR  ON  BEHALF OF SUCH ENTERPRISES

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD09224-04-6
              

S. 4090--A                          2

CONCERNING CERTIFICATION DELAYS AND INSTANCES OF VIOLATIONS  OF  LAW  BY
STATE AGENCIES. THE STATEWIDE ADVOCATE SHALL ASSIST CERTIFIED BUSINESSES
AND  APPLICANTS  IN  THE  CERTIFICATION  PROCESS. OTHER FUNCTIONS OF THE
STATEWIDE  ADVOCATE  SHALL  BE  DIRECTED BY THE COMMISSIONER OF ECONOMIC
DEVELOPMENT. THE ADVOCATE MAY APPOINT STAFF TO  ASSIST  IN  HIS  OR  HER
DUTIES. THE STATEWIDE ADVOCATE SHALL ESTABLISH A TOLL-FREE NUMBER AT THE
DEPARTMENT  OF  ECONOMIC  DEVELOPMENT  TO  BE  USED  TO ANSWER QUESTIONS
CONCERNING THE CERTIFICATION PROCESS.
  3. STUDY OF QUALIFIED BUSINESS ENTERPRISE PROGRAMS.  THE  COMMISSIONER
OF ECONOMIC DEVELOPMENT IS AUTHORIZED AND DIRECTED TO UNDERTAKE A STATE-
WIDE  DISPARITY  STUDY REGARDING THE PARTICIPATION OF QUALIFIED BUSINESS
ENTERPRISES EMPLOYING INDIVIDUALS WITH DISABILITIES IN STATE  CONTRACTS.
THE  STUDY  SHALL BE PREPARED BY AN ENTITY INDEPENDENT OF THE DEPARTMENT
OF ECONOMIC DEVELOPMENT AND SELECTED  THROUGH  A  REQUEST  FOR  PROPOSAL
PROCESS.  THE  PURPOSE  OF SUCH STUDY IS TO DETERMINE WHETHER THERE IS A
DISPARITY BETWEEN THE NUMBER OF QUALIFIED  BUSINESS  ENTERPRISES  READY,
WILLING  AND  ABLE  TO PERFORM STATE CONTRACTS FOR COMMODITIES, 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 THESE BUSINESS ENTERPRISES. SUCH  STUDY
SHALL  INCLUDE,  BUT  NOT  BE LIMITED TO, A DISPARITY ANALYSIS BY MARKET
AREA AND REGION OF THE STATE.  THE COMMISSIONER OF ECONOMIC  DEVELOPMENT
IS  DIRECTED  TO  TRANSMIT  THE  DISPARITY STUDY TO THE GOVERNOR AND THE
LEGISLATURE NOT LATER THAN FEBRUARY FIFTEENTH, TWO  THOUSAND  SEVENTEEN,
AND  TO  POST  THE  STUDY  ON  THE WEBSITE OF THE DEPARTMENT OF ECONOMIC
DEVELOPMENT.
  4. OPPORTUNITIES FOR QUALIFIED BUSINESS ENTERPRISES. (A)  EACH  AGENCY
SHALL  STRUCTURE  PROCUREMENT  PROCEDURES FOR CONTRACTS MADE DIRECTLY OR
INDIRECTLY TO QUALIFIED BUSINESS ENTERPRISES EMPLOYING INDIVIDUALS  WITH
DISABILITIES  TO  ATTEMPT  TO  ACHIEVE  FIVE  PERCENT OF STATE CONTRACTS
AWARDED TO DISABLED EMPLOYEE BUSINESS ENTERPRISES.
  (B) THE COMMISSIONER OF ECONOMIC DEVELOPMENT  SHALL  PROMULGATE  RULES
AND  REGULATIONS  PURSUANT  TO  THE GOAL ESTABLISHED IN PARAGRAPH (A) OF
THIS SUBDIVISION THAT PROVIDE MEASURES AND  PROCEDURES  TO  ENSURE  THAT
QUALIFIED  BUSINESS  ENTERPRISES  UNDER  THIS SECTION SHALL BE GIVEN THE
OPPORTUNITY FOR MAXIMUM FEASIBLE PARTICIPATION  IN  THE  PERFORMANCE  OF
STATE  CONTRACTS  AND  TO ASSIST IN THE AGENCY'S IDENTIFICATION OF THOSE
STATE CONTRACTS FOR WHICH QUALIFIED BUSINESS ENTERPRISES 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 ACHIEVE-
MENT OF THE MAXIMUM FEASIBLE PORTION OF THE GOALS FOR STATE CONTRACTS TO
SUCH BUSINESSES. 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  COMPLI-
ANCE ISSUED PURSUANT TO PARAGRAPH (C) OF THIS SUBDIVISION ON THE WEBSITE
OF  THE  CONTRACTING AGENCY WITHIN A REASONABLE PERIOD OF TIME AS ESTAB-
LISHED BY THE COMMISSIONER OF ECONOMIC DEVELOPMENT;  SHALL  REQUIRE  THE
CONTRACTING  AGENCY  TO NOTIFY THE CONTRACTOR IN WRITING WITHIN A PERIOD
OF TIME SPECIFIED BY THE COMMISSIONER OF ECONOMIC DEVELOPMENT AS TO  ANY
DEFICIENCIES  CONTAINED  IN  THE  CONTRACTOR'S  UTILIZATION  PLAN; SHALL
REQUIRE REMEDY THEREOF WITHIN A PERIOD OF TIME SPECIFIED BY THE  COMMIS-
SIONER  OF  ECONOMIC  DEVELOPMENT;  AND  SHALL REQUIRE THE CONTRACTOR TO
SUBMIT PERIODIC COMPLIANCE REPORTS RELATING TO THE OPERATION AND  IMPLE-
MENTATION OF ANY UTILIZATION PLAN. THE RULES AND REGULATIONS PROMULGATED

S. 4090--A                          3

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  INDICATED.  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 SECTION, 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.  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  CONTRACTOR'S  UTILIZATION  PLAN
WITHIN  A  PERIOD  OF  TIME  SPECIFIED IN REGULATIONS PROMULGATED BY THE
COMMISSIONER OF ECONOMIC DEVELOPMENT  AFTER  RECEIVING  NOTIFICATION  OF
SUCH  DEFICIENCIES  FROM THE CONTRACTING AGENCY. WHERE FAILURE TO REMEDY
ANY NOTIFIED DEFICIENCY IN THE UTILIZATION PLAN IS A GROUND FOR DISQUAL-
IFICATION, THAT ISSUE AND ALL OTHER GROUNDS FOR  DISQUALIFICATION  SHALL
BE STATED IN WRITING BY THE CONTRACTING AGENCY.
  (C)  WHERE  IT  APPEARS  THAT  A CONTRACTOR CANNOT, AFTER A GOOD FAITH
EFFORT, COMPLY WITH  THE  QUALIFIED  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
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 DISABLED EMPLOYEE BUSINESS  ENTER-
PRISE PARTICIPATION. IN IMPLEMENTING THE PROVISIONS OF THIS SECTION, THE
CONTRACTING  AGENCY  SHALL  CONSIDER  THE  NUMBER AND TYPES OF QUALIFIED
BUSINESS ENTERPRISES UNDER THIS SECTION 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  BUSINESSES  TO FURNISH SERVICES FOR THE PROJECT, IT
SHALL ISSUE A WAIVER OF COMPLIANCE TO THE  CONTRACTOR.  IN  MAKING  SUCH
DETERMINATION,  THE  CONTRACTING  AGENCY SHALL FIRST CONSIDER THE AVAIL-
ABILITY OF OTHER BUSINESS ENTERPRISES LOCATED IN THE  REGION  AND  SHALL
THEREAFTER  CONSIDER THE FINANCIAL ABILITY OF BUSINESSES LOCATED OUTSIDE
THE REGION IN WHICH THE CONTRACT IS TO BE PERFORMED TO PERFORM THE STATE
CONTRACT.
  (D) 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 THEREFOR PURSUANT TO PARAGRAPH (C) OF THIS SUBDIVISION OR IF
THE CONTRACTING AGENCY DENIES SUCH APPLICATION, IN WHOLE OR IN PART, THE
CONTRACTOR MAY FILE A COMPLAINT WITH THE COMMISSIONER OF ECONOMIC DEVEL-
OPMENT PURSUANT TO THIS SECTION SETTING  FORTH  THE  FACTS  AND  CIRCUM-
STANCES 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  OPPORTU-
NITY TO RESPOND TO SUCH COMPLAINT IN WRITING.
  (E)  IF,  AFTER  THE  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

S. 4090--A                          4

QUALIFIED BUSINESS ENTERPRISE 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
COMMISSIONER  OF  ECONOMIC  DEVELOPMENT PURSUANT TO THIS SECTION SETTING
FORTH THE FACTS AND CIRCUMSTANCES GIVING RISE TO THE  CONTRACTING  AGEN-
CY'S COMPLAINT TOGETHER WITH A DEMAND FOR RELIEF.  THE CONTRACTING AGEN-
CY  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 WRIT-
ING.
  5. STATEWIDE CERTIFICATION PROGRAM. (A) THE COMMISSIONER  OF  ECONOMIC
DEVELOPMENT  SHALL  PROMULGATE  RULES  AND REGULATIONS PROVIDING FOR THE
ESTABLISHMENT OF A STATEWIDE CERTIFICATION PROGRAM FOR  BUSINESS  ENTER-
PRISES  UNDER THIS SECTION INCLUDING RULES AND REGULATIONS GOVERNING THE
APPROVAL, DENIAL OR REVOCATION OF ANY SUCH CERTIFICATION. SUCH RULES AND
REGULATIONS SHALL INCLUDE, BUT NOT BE LIMITED TO, SUCH MATTERS AS MAY BE
REQUIRED TO ENSURE THAT THE ESTABLISHED PROCEDURES THEREUNDER  SHALL  AT
LEAST  BE  IN  COMPLIANCE  WITH  THE CODE OF FAIR PROCEDURE SET FORTH IN
SECTION SEVENTY-THREE OF THE CIVIL RIGHTS LAW.
  (B) FOR THE PURPOSES OF  THIS  SECTION,  THE  DEPARTMENT  OF  ECONOMIC
DEVELOPMENT  SHALL  BE  RESPONSIBLE FOR VERIFYING BUSINESSES AS HAVING A
WORKFORCE MADE UP OF AT LEAST FIFTEEN PERCENT OF INDIVIDUALS WITH  DISA-
BILITIES  AND  FOR CERTIFYING SUCH VERIFIED BUSINESSES. THE COMMISSIONER
OF ECONOMIC DEVELOPMENT SHALL PREPARE A  DIRECTORY  OF  CERTIFIED  BUSI-
NESSES  FOR  USE BY CONTRACTING AGENCIES AND CONTRACTORS IN CARRYING OUT
THE PROVISIONS OF THIS SECTION. THE COMMISSIONER OF ECONOMIC DEVELOPMENT
SHALL PERIODICALLY UPDATE THE DIRECTORY.
  (C) FOLLOWING APPLICATION FOR CERTIFICATION PURSUANT TO THIS  SUBDIVI-
SION,  THE COMMISSIONER OF ECONOMIC DEVELOPMENT SHALL PROVIDE THE APPLI-
CANT WITH WRITTEN NOTICE OF THE STATUS  OF  THE  APPLICATION,  INCLUDING
NOTICE OF ANY OUTSTANDING DEFICIENCIES, WITHIN THIRTY DAYS. WITHIN SIXTY
DAYS OF SUBMISSION OF A FINAL COMPLETED APPLICATION, THE COMMISSIONER OF
ECONOMIC  DEVELOPMENT SHALL PROVIDE THE APPLICANT WITH WRITTEN NOTICE OF
A DETERMINATION BY THE DEPARTMENT OF ECONOMIC DEVELOPMENT  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 CERTIF-
ICATION 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 COMMISSIONER OF ECONOMIC DEVELOPMENT.  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 RECOMMENDATION TO THE COMMISSIONER OF ECONOMIC
DEVELOPMENT TO AFFIRM, REVERSE  OR  MODIFY  SUCH  DETERMINATION  OF  THE
COMMISSIONER  OF ECONOMIC DEVELOPMENT. SUCH WRITTEN RECOMMENDATION SHALL
BE ISSUED TO THE PARTIES.  THE  COMMISSIONER  OF  ECONOMIC  DEVELOPMENT,
WITHIN  THIRTY DAYS, BY ORDER, MUST ACCEPT, REJECT OR MODIFY SUCH RECOM-
MENDATION OF THE HEARING OFFICER AND SET FORTH IN  WRITING  THE  REASONS
THEREFOR. THE COMMISSIONER OF ECONOMIC DEVELOPMENT 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
COMMISSIONER OF ECONOMIC DEVELOPMENT SHALL BE SUBJECT TO REVIEW PURSUANT
TO ARTICLE SEVENTY-EIGHT OF THE CIVIL PRACTICE LAW AND RULES.
  (D) ALL CERTIFICATIONS SHALL BE VALID FOR A PERIOD OF THREE YEARS.

S. 4090--A                          5

  6.  RESPONSIBILITIES  OF  CONTRACTING  AGENCIES.  (A) EACH CONTRACTING
AGENCY SHALL BE RESPONSIBLE FOR MONITORING  STATE  CONTRACTS  UNDER  ITS
JURISDICTION,  AND  RECOMMENDING  MATTERS  TO THE DEPARTMENT OF ECONOMIC
DEVELOPMENT RESPECTING NON-COMPLIANCE WITH THE PROVISIONS OF THIS  ARTI-
CLE  SO THAT THE OFFICE MAY TAKE SUCH ACTION AS IS APPROPRIATE TO INSURE
COMPLIANCE WITH THE PROVISIONS OF THIS  SECTION,  THE  RULES  AND  REGU-
LATIONS OF THE COMMISSIONER OF ECONOMIC DEVELOPMENT ISSUED HEREUNDER AND
THE  CONTRACTUAL  PROVISIONS  REQUIRED  PURSUANT  TO  THIS  SECTION. ALL
CONTRACTING AGENCIES SHALL COMPLY WITH THE RULES AND REGULATIONS OF  THE
DEPARTMENT  OF  ECONOMIC  DEVELOPMENT AND ARE DIRECTED TO COOPERATE WITH
THE DEPARTMENT OF ECONOMIC DEVELOPMENT AND TO FURNISH TO THE  DEPARTMENT
OF  ECONOMIC  DEVELOPMENT  SUCH  INFORMATION  AND  ASSISTANCE  AS MAY BE
REQUIRED IN THE PERFORMANCE OF ITS FUNCTIONS UNDER THIS SECTION.
  (B) EACH CONTRACTING AGENCY SHALL PROVIDE  TO  PROSPECTIVE  BIDDERS  A
CURRENT  COPY  OF THE DIRECTORY OF CERTIFIED BUSINESS ENTERPRISES, AND A
COPY OF THE REGULATIONS REQUIRED PURSUANT TO SUBDIVISION  FOUR  OF  THIS
SECTION AT THE TIME BIDS OR PROPOSALS ARE SOLICITED.
  (C) EACH CONTRACTING AGENCY SHALL REPORT TO THE DEPARTMENT OF ECONOMIC
DEVELOPMENT  WITH RESPECT TO ACTIVITIES UNDERTAKEN TO PROMOTE EMPLOYMENT
OF INDIVIDUALS WITH DISABILITIES AND PROMOTE AND INCREASE  PARTICIPATION
BY  CERTIFIED  BUSINESSES  WITH  RESPECT  TO STATE CONTRACTS AND SUBCON-
TRACTS. SUCH REPORTS SHALL  BE  SUBMITTED  PERIODICALLY,  BUT  NOT  LESS
FREQUENTLY  THAN  ANNUALLY,  AS REQUIRED BY THE COMMISSIONER OF ECONOMIC
DEVELOPMENT, AND SHALL INCLUDE SUCH INFORMATION AS IS NECESSARY FOR  THE
COMMISSIONER  OF ECONOMIC DEVELOPMENT TO DETERMINE WHETHER THE CONTRACT-
ING AGENCY AND CONTRACTOR  HAVE  COMPLIED  WITH  THE  PURPOSES  OF  THIS
SECTION,  INCLUDING, WITHOUT LIMITATION, A SUMMARY OF ALL WAIVERS OF THE
REQUIREMENTS  OF  SUBDIVISION  FOUR  OF  THIS  SECTION  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.
  (D) EACH AGENCY SHALL INCLUDE IN ITS ANNUAL REPORT TO THE GOVERNOR AND
LEGISLATURE  PURSUANT TO SECTION ONE HUNDRED SIXTY-FOUR OF THE EXECUTIVE
LAW ITS ANNUAL GOALS FOR CONTRACTS WITH QUALIFIED BUSINESS  ENTERPRISES,
THE NUMBER OF ACTUAL CONTRACTS ISSUED TO QUALIFIED BUSINESS ENTERPRISES;
AND  A SUMMARY OF ALL WAIVERS OF THE REQUIREMENTS OF SUBDIVISION FOUR OF
THIS SECTION ALLOWED BY THE REPORTING AGENCY DURING THE PRECEDING  YEAR,
INCLUDING  A  DESCRIPTION  OF  THE  BASIS  OF THE WAIVER REQUEST AND THE
RATIONALE FOR GRANTING SUCH WAIVER.
  7. ENFORCEMENT. UPON RECEIPT BY THE COMMISSIONER OF ECONOMIC  DEVELOP-
MENT  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 THIS SECTION 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
FOUR OF THIS SECTION OR HAS DENIED SUCH APPLICATION, THE COMMISSIONER OF
ECONOMIC DEVELOPMENT 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 COMMISSIONER OF ECONOMIC DEVELOPMENT
SHALL REFER THE MATTER,  WITHIN  THIRTY  DAYS  OF  THE  RECEIPT  OF  THE
COMPLAINT, TO THE DEPARTMENT OF ECONOMIC DEVELOPMENT'S HEARING OFFICERS.
UPON CONCLUSION OF THE ADMINISTRATIVE HEARING, THE HEARING OFFICER SHALL
SUBMIT  TO  THE COMMISSIONER OF ECONOMIC DEVELOPMENT HIS OR HER DECISION
REGARDING THE ALLEGED VIOLATION  OF  THE  CONTRACT  AND  RECOMMENDATIONS
REGARDING  THE  IMPOSITION OF SANCTIONS, FINES OR PENALTIES. THE COMMIS-
SIONER OF ECONOMIC DEVELOPMENT, WITHIN TEN DAYS OF RECEIPT OF THE  DECI-

S. 4090--A                          6

SION,  SHALL  FILE A DETERMINATION OF SUCH MATTER AND SHALL CAUSE A COPY
OF SUCH DETERMINATION ALONG WITH A COPY OF THIS  ARTICLE  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 COMMISSIONER OF
ECONOMIC DEVELOPMENT 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 MISREPRESEN-
TATION BY THE CONTRACTOR OR THE  CONTRACTOR'S  WILLFUL  AND  INTENTIONAL
DISREGARD  OF  THE  EMPLOYEE  PARTICIPATION  REQUIREMENT INCLUDED IN THE
CONTRACT MAY INCLUDE A DETERMINATION THAT THE CONTRACTOR SHALL BE INELI-
GIBLE 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 DETER-
MINATION; PROVIDED HOWEVER, IF A CONTRACTOR HAS PREVIOUSLY  BEEN  DETER-
MINED  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 CONTRACT-
ING  AGENCY  OR  BE AWARDED ANY SUCH CONTRACT FOR A PERIOD NOT TO EXCEED
FIVE YEARS FOLLOWING THE FINAL DETERMINATION. THE DEPARTMENT OF ECONOMIC
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 2. This act shall take effect on the one hundred eightieth day after
it  shall  have  become a law, provided however that the commissioner of
economic development is authorized to promulgate any and all  rules  and
regulations  and take any other measures necessary to implement this act
on its effective date.