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

                                  9708

                          I N  A S S E M B L Y

                              April 5, 2016
                               ___________

Introduced by M. of A. BICHOTTE -- read once and referred to the Commit-
  tee on Governmental Operations

AN  ACT to amend the executive law and the labor law, in relation to the
  publication of information regarding waivers of compliance with  state
  contract  provisions  concerning  minority  and  women-owned  business
  enterprise participation requirements

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

  Section  1.  Subdivision  6  of  section  313 of the executive law, as
amended by chapter 175 of the laws  of  2010,  is  amended  to  read  as
follows:
  6.  (A)  Where it appears that a contractor cannot, after a good faith
effort, comply with the minority  and  women-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 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 minority and  women-
owned  business enterprise participation. In implementing the provisions
of this section, the contracting agency shall consider  the  number  and
types  of  minority  and women-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 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 minority and women-owned
businesses located outside the region in which the  contract  is  to  be
performed to perform the state contract.
  (B) WITHIN THIRTY DAYS OF THE ISSUANCE OF A PARTIAL OR TOTAL WAIVER OF
COMPLIANCE  AS  PROVIDED  IN  PARAGRAPH  (A)  OF  THIS  SUBDIVISION, THE
CONTRACTING AGENCY SHALL:

              

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD14601-02-6

A. 9708                             2

  (I) REPORT THE ISSUANCE OF THE WAIVER TO THE DEPARTMENT OF  LABOR  AND
TO  THE DIRECTOR OF THE DIVISION OF MINORITY AND WOMEN'S BUSINESS DEVEL-
OPMENT IN THE DEPARTMENT OF ECONOMIC DEVELOPMENT; AND
  (II)  PUBLISH ON THE CONTRACTING AGENCY'S WEBSITE IN A LOCATION EASILY
ACCESSIBLE TO  THE  GENERAL  PUBLIC:  (A)  INFORMATION  IDENTIFYING  THE
CONTRACT,  INCLUDING  THE  AMOUNT  OF  THE CONTRACT; (B) THE NAME OF THE
CONTRACTOR RECEIVING THE WAIVER; (C) THE DATE OF THE WAIVER; (D) WHETHER
THE WAIVER WAS A TOTAL OR PARTIAL WAIVER; AND (E) THE SPECIFIC  CONTRACT
PROVISIONS TO WHICH THE WAIVER APPLIES.
  S  2.  Paragraphs  (h)  and (i) of subdivision 3 of section 311 of the
executive law, paragraph (h) as amended and paragraph (i)  as  added  by
section  1 of part BB of chapter 59 of the laws of 2006, are amended and
a new paragraph (j) is added to read as follows:
  (h) notwithstanding the provisions of section two  hundred  ninety-six
of  this  chapter,  to  file  a  complaint pursuant to the provisions of
section two hundred ninety-seven of this chapter where the director  has
knowledge  that  a  contractor may have violated the provisions of para-
graph (a), (b) or (c) of subdivision one of section two hundred  ninety-
six  of  this  chapter  where  such  violation is unrelated, separate or
distinct from the state contract as expressed by its terms; [and]
  (i) to streamline the state certification process  to  accept  federal
and municipal corporation certifications; AND
  (J) TO KEEP A RECORD OF PARTIAL AND TOTAL WAIVERS OF COMPLIANCE ISSUED
PURSUANT  TO  PARAGRAPH  (B) OF SUBDIVISION SIX OF SECTION THREE HUNDRED
THIRTEEN OF THIS ARTICLE AND TO MAKE SUCH RECORD PUBLICLY  AVAILABLE  ON
THE  DIVISION'S  WEBSITE  IN A LOCATION EASILY ACCESSIBLE TO THE GENERAL
PUBLIC. THE RECORD SHALL PROVIDE, AT A MINIMUM:  (A) INFORMATION IDENTI-
FYING THE CONTRACT, INCLUDING THE AMOUNT OF THE CONTRACT;  (B)  INFORMA-
TION  IDENTIFYING THE CONTRACTING AGENCY; (C) THE NAME OF THE CONTRACTOR
RECEIVING THE WAIVER; AND (D) THE DATE OF THE WAIVER.
  S 3. Section 21 of the labor law is amended by adding a  new  subdivi-
sion 15 to read as follows:
  15.  SHALL  COMPILE AND PUBLISH, ON AN ANNUAL BASIS, A LIST OF WAIVERS
OF COMPLIANCE WITH STATE CONTRACT  PROVISIONS  CONCERNING  MINORITY  AND
WOMEN-OWNED   BUSINESS  ENTERPRISE  PARTICIPATION  REQUIREMENTS,  ISSUED
PURSUANT TO PARAGRAPH (B) OF SUBDIVISION SIX OF  SECTION  THREE  HUNDRED
THIRTEEN  OF  THE EXECUTIVE LAW. THE COMMISSIONER OR HIS OR HER DELEGATE
SHALL MAKE SUCH LIST PUBLICLY AVAILABLE ON THE DEPARTMENT'S WEBSITE IN A
LOCATION EASILY  ACCESSIBLE  TO  THE  GENERAL  PUBLIC.  THE  LIST  SHALL
PROVIDE, AT A MINIMUM: (A) INFORMATION IDENTIFYING THE CONTRACT, INCLUD-
ING  THE  AMOUNT  OF  THE  CONTRACT;  (B)  INFORMATION  IDENTIFYING  THE
CONTRACTING AGENCY; (C) THE NAME OF THE CONTRACTOR RECEIVING THE WAIVER;
AND (D) THE DATE OF THE WAIVER.
  S 4. This act shall take effect on the sixtieth  day  after  it  shall
have become a law; provided, however, that:
  a.  the  amendments made to subdivision 6 of section 313 of the execu-
tive law by section one of this act shall not affect the  expiration  of
such section and shall be deemed expired therewith;
  b.  the  amendments made to subdivision 3 of section 311 of the execu-
tive law by section two of this act shall not affect the  expiration  of
such section and shall be deemed expired therewith; and
  c.  the  director  of  the  division  of minority and women's business
development and the commissioner of labor shall  immediately  promulgate
rules  and regulations and take all other necessary actions to implement
the provisions of this act on or before such effective date.