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

                                 6089--A

                       2015-2016 Regular Sessions

                            I N  S E N A T E

                            November 6, 2015
                               ___________

Introduced by Sen. MARCHIONE -- read twice and ordered printed, and when
  printed  to  be  committed to the Committee on Rules -- recommitted to
  the Committee on Veterans, Homeland Security and Military  Affairs  in
  accordance  with  Senate  Rule 6, sec. 8 -- committee discharged, bill
  amended, ordered reprinted as amended and recommitted to said  commit-
  tee

AN  ACT  to amend the executive law, in relation to a comprehensive plan
  and operational guidelines to promote  veteran-owned  business  enter-
  prises

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

  Section 1. The article heading of article 17-B of the  executive  law,
as  added  by  chapter  22  of  the  laws of 2014, is amended to read as
follows:
       PARTICIPATION BY [SERVICE-DISABLED] VETERANS WITH RESPECT TO
                             STATE CONTRACTS
  S 2. Section 369-h of the executive law, as added by chapter 22 of the
laws of 2014, is amended to read as follows:
  S 369-h. Definitions. As used in this  article,  the  following  terms
shall have the following meanings:
  1.  "Certified  service-disabled  veteran-owned  business  enterprise"
shall mean a business enterprise, including a sole proprietorship, part-
nership, limited liability company or corporation that is:
  (a) at least fifty-one percent owned by one or  more  service-disabled
veterans;
  (b)  an enterprise in which such service-disabled veteran ownership is
real, substantial, and continuing;
  (c) an enterprise in which such service-disabled veteran ownership has
and exercises the authority  to  control  independently  the  day-to-day
business decisions of the enterprise;

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD11198-03-6

              

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  (d) an enterprise authorized to do business in this state and is inde-
pendently-owned and operated;
  (e)  an  enterprise  that  is a small business which has a significant
business presence in the state, not dominant in its field  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 pursuant to 13 CFR part 121 and any  amendments
thereto; and
  (f) certified by the office of general services.
  2. "CERTIFIED VETERAN-OWNED BUSINESS ENTERPRISE" SHALL MEAN A BUSINESS
ENTERPRISE,   INCLUDING  A  SOLE  PROPRIETORSHIP,  PARTNERSHIP,  LIMITED
LIABILITY COMPANY OR CORPORATION THAT IS:
  (A) AT LEAST FIFTY-ONE PERCENT OWNED BY ONE OR MORE VETERANS;
  (B) AN ENTERPRISE IN WHICH SUCH VETERAN OWNERSHIP  IS  REAL,  SUBSTAN-
TIAL, 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 IS INDE-
PENDENTLY-OWNED AND OPERATED;
  (E) AN ENTERPRISE THAT IS A SMALL BUSINESS  WHICH  HAS  A  SIGNIFICANT
BUSINESS  PRESENCE  IN THE STATE, NOT DOMINANT IN ITS FIELD 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 PURSUANT TO 13 CFR PART 121 AND ANY AMENDMENTS
THERETO; AND
  (F) CERTIFIED BY THE OFFICE OF GENERAL SERVICES.
  3. "Commissioner" shall mean the commissioner of the office of general
services.
  [3.] 4.  "Director"  shall  mean  the  director  of  the  division  of
[service-disabled] veterans' business development.
  [4.]  5.  "Division"  shall  mean  the  division of [service-disabled]
veterans' business development in the office of general services.
  [5. "Service-disabled veteran" shall mean  (a)  in  the  case  of  the
United States army, navy, air force, marines, coast guard, army national
guard  or  air  national  guard  and/or  reserves thereof, a veteran who
received a compensation rating of ten percent or greater from the United
States department of veterans affairs or from the United States  depart-
ment  of  defense  because of a service-connected disability incurred in
the line of duty, and (b) in the case of the New York guard or  the  New
York  naval  militia  and/or  reserves thereof, a veteran who certifies,
pursuant to the rules and regulations promulgated by  the  director,  to
having  incurred  an  injury  equivalent to a compensation rating of ten
percent or greater from the United States department of veterans affairs
or from the United States department of defense because  of  a  service-
connected disability incurred in the line of duty.]
  6. "State agency" shall mean: (a)(i) any state department; or (ii) any
division,  board, commission or bureau of any state department; 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 governor or who serve by virtue of being state officers
or employees as defined in subparagraph (i), (ii) or (iii) of  paragraph

S. 6089--A                          3

(i)  of  subdivision one of section seventy-three of the public officers
law.
  (b)  a "state authority," as defined in subdivision one of section two
of the public authorities law, and the following:
  Albany County Airport Authority;
  Albany Port District Commission;
  Alfred, Almond, Hornellsville Sewer Authority;
  Battery Park City Authority;
  Cayuga County Water and Sewer Authority;
  (Nelson A. Rockefeller) Empire  State  Plaza  Performing  Arts  Center
Corporation;
  Industrial Exhibit Authority;
  Livingston County Water and Sewer Authority;
  Long Island Power Authority;
  Long Island Rail Road;
  Long Island Market Authority;
  Manhattan and Bronx Surface Transit Operating Authority;
  Metro-North Commuter Railroad;
  Metropolitan Suburban Bus Authority;
  Metropolitan Transportation Authority;
  Natural Heritage Trust;
  New York City Transit Authority;
  New York Convention Center Operating Corporation;
  New York State Bridge Authority;
  New York State Olympic Regional Development Authority;
  New York State Thruway Authority;
  Niagara Falls Public Water Authority;
  Niagara Falls Water Board;
  Port of Oswego Authority;
  Power Authority of the State of New York;
  Roosevelt Island Operating Corporation;
  Schenectady Metroplex Development Authority;
  State Insurance Fund;
  Staten Island Rapid Transit Operating Authority;
  State University Construction Fund;
  Syracuse Regional Airport Authority;
  Triborough Bridge and Tunnel Authority;
  Upper Mohawk valley regional water board;
  Upper Mohawk valley regional water finance authority;
  Upper Mohawk valley memorial auditorium authority;
  Urban Development Corporation and its subsidiary corporations.
  (c)  the  following only to the extent of state contracts entered into
for its own account or for the benefit of a state agency as  defined  in
paragraph (a) or (b) of this subdivision:
  Dormitory Authority of the State of New York;
  Facilities Development Corporation;
  New York State Energy Research and Development Authority;
  New York State Science and Technology Foundation.
  (d)  "state  contract" shall mean: (i) 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;
(ii) a written agreement in  excess  of  one  hundred  thousand  dollars

S. 6089--A                          4

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 (iii) 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.
  7. "Veteran" shall mean a person who served in and who has received an
honorable or general discharge from, the United States army,  navy,  air
force, marines, coast guard, and/or reserves thereof, and/or in the army
national  guard,  air national guard, New York guard and/or the New York
naval militia.
  S 3. Section 369-i of the executive law, as added by chapter 22 of the
laws of 2014, is amended to read as follows:
  S 369-i. Division of [service-disabled]  veterans'  business  develop-
ment.  1. The head of the division of [service-disabled] veterans' busi-
ness  development  shall  be  the director who shall be appointed by the
governor and who shall hold office at the pleasure of the commissioner.
  2. The director may  appoint  such  deputies,  assistants,  and  other
employees  as may be needed for the performance of the duties prescribed
herein subject to the provisions of the civil service law and the  rules
and  regulations  of  the  civil  service  commission.  The director may
request and shall receive from  any  (i)  department,  division,  board,
bureau,  or executive commission of the state or (ii) state agency, such
assistance as may be necessary to carry out the provisions of this arti-
cle.
  3. The director shall have the following powers and duties:
  (a) Develop, collect, summarize and disseminate information that  will
be  helpful  to persons and organizations throughout the state in under-
taking or promoting the establishment  and  successful  operation  of  a
[service-disabled] veteran-owned business.
  (b) Develop and make available to state agencies a directory of certi-
fied  [service-disabled] veteran-owned business enterprises which shall,
wherever practicable, be divided into  categories  of  labor,  services,
supplies,  equipment,  materials  and recognized construction trades and
which shall indicate areas or locations of the state where  such  enter-
prises are available to perform services. Such directory shall be posted
on the office of general services website.
  (c) Assist state agencies in the development of programs to foster and
promote the use of [service-disabled] veteran-owned business enterprises
on state contracts.
  (d) Coordinate the plans, programs and operations of the state govern-
ment  which  affect or may contribute to the establishment, preservation
and development  of  [service-disabled]  veteran-owned  business  enter-
prises.
  (e)  To  appoint independent hearing officers who by contract or terms
of employment shall preside over adjudicatory hearings pursuant to  this
section for the office and who are assigned no other work by the office.
  (f)  In  conjunction  with  the  commissioner, develop a comprehensive
statewide plan and operational guidelines to promote  [service-disabled]
veteran-owned  business  enterprises  and  to  assist  them in obtaining
opportunities to participate in the procurement of goods and services by
the state, including identification of  barriers  to  [service-disabled]
veterans' business development and investigation and evaluation of their
impact on achieving the objectives of this article.

S. 6089--A                          5

  4. The commissioner shall:
  (a)  Coordinate  training  of all procurement personnel of state agen-
cies, emphasizing increased sensitivity and responsiveness to the unique
needs and  requirements  of  [service-disabled]  veteran-owned  business
enterprises.
  (b)  Conduct  a  coordinated review of all existing and proposed state
training and technical assistance activities in direct  support  of  the
[service-disabled]  veterans'  business  development  program  to assure
consistency with the objectives of this article.
  (c) Evaluate and assess availability  of  firms  for  the  purpose  of
increasing participation of such firms in state contracting in consulta-
tion with relevant state entities including, but not limited to, the New
York state division of veterans' affairs.
  (d)  Provide advice and technical assistance to promote [service-disa-
bled]  veteran-owned  business  enterprises'  understanding   of   state
procurement  laws,  practices  and procedures to facilitate and increase
the participation of [service-disabled]  veteran-owned  business  enter-
prises in state procurement.
  (e)  Establish  regular performance reporting systems regarding imple-
mentation of the programs designed to increase [service-disabled] veter-
an-owned business participation in procurement contracts by state  agen-
cies.
  (f)  Submit  a  report by the thirty-first of December each year, with
the first report due by the thirty-first of  December  in  the  calendar
year  next succeeding the calendar year in which this article shall have
become a law, to the governor, the temporary president  of  the  senate,
and  the  speaker of the assembly. Such report shall include information
including, but not limited to, the  number  of  contracts  entered  into
pursuant  to  this  article,  the  average amount of such contracts, the
number of [service-disabled] veteran-owned business  enterprises  certi-
fied,  the  number of applications for certification as a [service-disa-
bled] veteran-owned business enterprise, the number of denials for  such
certification, the number of appeals of such denials, and the outcome of
such  appeals  and  the  average  time that is required for such certif-
ication to be completed.
  5. Certification. (a) The director, or in the absence of the director,
the commissioner, within ninety days of the effective date of this arti-
cle, shall promulgate rules and regulations providing for the establish-
ment of a statewide certification  program  including  rules  and  regu-
lations  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 estab-
lished 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) The division of [service-disabled] veterans' business  development
shall  be responsible for verifying businesses as being owned, operated,
and controlled by a [service-disabled] veteran and for  certifying  such
verified  businesses. Status as a [service-disabled] veteran pursuant to
paragraph (a) of this subdivision shall be documented by a copy  of  the
veteran's  certificate of release or discharge from active duty, includ-
ing  but  not  limited  to,  a  DD-214  form  or  an  honorable  service
certificate/report of causality from the department of defense, a letter
of  certification by the United States department of veterans affairs or
the United States department of defense and any  additional  information
that  may  be  required  by the division of [service-disabled] veterans'

S. 6089--A                          6

business development. In the case of the New York guard or the New  York
naval  militia  and/or  reserves thereof, status as a [service-disabled]
veteran pursuant to this paragraph shall be documented pursuant to rules
and  regulations  promulgated  by the director, or in the absence of the
director, the commissioner.
  (c) 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
completed  application,  the  director  shall provide the applicant with
written notice of a determination by the director 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 reason 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.
  (d) All certifications shall be valid for a period of five years.
  S 4. Section 369-j of the executive law, as added by chapter 22 of the
laws of 2014, is amended to read as follows:
  S  369-j. Opportunities for certified [service-disabled] veteran-owned
business enterprises. 1. The director, or in the absence of  the  direc-
tor,  the commissioner, within ninety days of the effective date of this
article  shall  promulgate  rules  and  regulations  for  the  following
purposes:
  (a)   provide   measures  and  procedures  to  ensure  that  certified
[service-disabled] veteran-owned business enterprises are  afforded  the
opportunity  for  meaningful  participation  in the performance of state
contracts and to assist in state agencies' identification of those state
contracts for which certified [service-disabled] veteran-owned  business
enterprises may best perform;
  (b)  provide for measures and procedures that assist state agencies in
the identification of state contracts where  [service-disabled]  veteran
contract  goals  are practical, feasible and appropriate for the purpose
of increasing the utilization of [service-disabled] veteran-owned  busi-
ness enterprise participation on state contracts;
  (c)  achieve  a statewide goal for participation on state contracts by
[service-disabled] veteran-owned business enterprises of six percent;
  (d) provide for procedures  relating  to  submission  and  receipt  of
applications  by  [service-disabled]  veteran-owned business enterprises
for certification;
  (e) provide for the monitoring and compliance of  state  contracts  by
state agencies with respect to the provisions of this article;

S. 6089--A                          7

  (f)  provide  for  the  requirement that state agencies submit regular
reports, as determined by the director, with respect to their  [service-
disabled]  veteran-owned business enterprise program activity, including
but not limited to, utilization reporting and state contract  monitoring
and compliance;
  (g) notwithstanding any provision of the state finance law, the public
buildings  law,  the  highway  law, the transportation law or the public
authorities law to the contrary, provide for the reservation  or  set-a-
side  of  certain procurements by state agencies in order to achieve the
objectives of this article; provided, however,  that  such  procurements
shall  remain  subject  to (i) priority of preferred sources pursuant to
sections one hundred sixty-two and one hundred sixty-three of the  state
finance  law;  (ii)  the approval of the comptroller of the state of New
York pursuant to section one hundred  twelve  and  section  one  hundred
sixty-three  of  the  state finance law and section twenty-eight hundred
seventy-nine-a of the public authorities law; and (iii) the  procurement
record  requirements  pursuant  to  paragraph  g  of subdivision nine of
section one hundred sixty-three of the state finance law; and
  (h) provide for any other purposes to effectuate this article.
  2. State agencies shall administer the rules and  regulations  promul-
gated by the director for the implementation of this article.
  S  5.  The commissioner of the office of general services shall deter-
mine the percentage of contracts to be set aside under this  legislation
for both service-disabled veteran-owned businesses and all veteran-owned
businesses.
  S  6.  No  later  than one-hundred eighty calendar days after this act
shall have become  law,  the  commissioner  of  the  office  of  general
services shall complete the study pursuant to section five of this act.
  S  7.  This  act shall take effect immediately; provided, however that
the amendments to the article heading of article 17-B,  sections  369-h,
369-i  and  369-j  of the executive law made by sections one, two, three
and four of this act shall not affect the repeal  of  such  article  and
shall be deemed repealed therewith.