NY State Senate Bill 2015-S7517B

Archive: Last Bill Status - In Senate Committee Finance Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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Actions

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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jun 03, 2016	print number 7517b
Jun 03, 2016	amend and recommit to finance
May 25, 2016	print number 7517a
May 25, 2016	amend (t) and recommit to finance
May 06, 2016	referred to finance

Bill Amendments

Original

B (Active)

2015-S7517 - Details

See Assembly Version of this Bill:: A5243
Current Committee:: Senate Finance
Law Section:: Executive Law
Laws Affected:: Add §314-a, amd §§311, 314 & 316, Exec L; add §97-j, St Fin L
Versions Introduced in Other Legislative Sessions:: 2017-2018: S3807, A702
2019-2020: S2217, A2670
2021-2022: S3390, A4173, A9259

2015-S7517 - Summary

Relates to minority and women-owned business enterprises.

2015-S7517 - Sponsor Memo

                                 BILL NUMBER:  S7517

 TITLE OF BILL :

An act to amend the executive law, the penal law and the state finance
law, in relation to minority and women-owned businesses post
completion certification, duties of the director, the crime of scheme
to defraud and creating the minority and women-owned business fund

 PURPOSE OR GENERAL IDEA OF BILL :

The bill would amend the penal law in order to eliminate
vulnerabilities of programs providing opportunities to Minority- and
Women-Owned Business Enterprises to fraud and misuse.

 SUMMARY OF SPECIFIC PROVISIONS :

Section 1 amends penal law § 190.60 and scheme to defraud and adds
graduated degrees (§ 190.61, § 190.62, § 190.63, § 190.64, and 190.65)
distinguished by monetary thresholds, so that the defendant's offense
reflects the magnitude of its wrongdoing.

Section 2 amends S 80.00 and S 80.10 to enhance applicable fines for
crimes under MWBE fraud, such as Scheme to Defraud, Offering a False
Instrument for Filing, and Falsification of Business Records.

 JUSTIFICATION :

The Minority- and Women-Owned Business Enterprise (MWBE) program has
served to increase the participation of disadvantaged individuals in
public contracts, and it has significantly leveled the playing field
in that regard. However, fraud and misuse of MWBEs serves to undercut
the purpose of the program. Each case of MWBE fraud cheats a
legitimate minority- or women-owned business out of a contract.

In November 2014, a New York State Supreme Court Grand Jury issued a
report on the vulnerability of MWBE programs to fraud and misuse. The
report revealed significant criminal conduct in the construction
industry spanning at least a decade and, within the relatively small
sample of cases reviewed, found evidence that over $10 million
intended for honest MWBEs had instead gone to fraudulent non-MWBEs.

In many cases, contractors claimed to use MWBEs to perform work or
provide the materials required under the contract, but in fact used
businesses that were neither women- nor minority-owned. Contractors
also misrepresented that MWBEs were providing the services or
materials, when the companies that they listed did not have the
capacity to do so. In some instances, invoices and other billing
documents were created to make it appear as though the work and
payments flowed to MWBEs, when the money was merely passed through
those businesses to the non-MWBEs that actually performed the work.

The grand jury report concluded that current laws are not adequate to
prevent MWBE fraud and misuse. This bill, in conjunction with steps
taken at state- and city-level agencies, will serve to deter MWBE
fraud so that legitimate MWBEs are not burdened with additional
barriers to entry.

 PRIOR LEGISLATIVE HISTORY :

None

 FISCAL IMPLICATIONS :

None

 EFFECTIVE DATE :
The act shall take effect immediately, provided however that the
amendments to article 15-A of the executive law made by sections of
such article and shall be deemed to expire therewith

2015-S7517 - Bill Text download pdf

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

                                  7517

                            I N  S E N A T E

                               May 6, 2016
                               ___________

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

AN ACT to amend the executive law, the penal law and the  state  finance
  law,   in   relation  to  minority  and  women-owned  businesses  post
  completion certification, duties of the director, the crime of  scheme
  to defraud and creating the minority and women-owned business fund

  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 section  314-a
to read as follows:
  S 314-A. POST COMPLETION CERTIFICATION. THE DIRECTOR, IN COLLABORATION
WITH  THE  DIVISION OF MINORITY AND WOMEN'S BUSINESS DEVELOPMENT AND THE
DEPARTMENT OF SMALL  BUSINESS  SERVICES,  SHALL  DEVELOP  THE  FOLLOWING
STANDARDIZED CERTIFICATION FORMS THAT MUST BE COMPLETED UNDER PENALTY OF
PERJURY PRIOR TO THE PRIME CONTRACTOR BEING PAID:
  1.  CERTIFICATION  FROM  A REPRESENTATIVE OF THE PRIME CONTRACTOR THAT
THE MINORITY OR WOMEN-OWNED BUSINESS IN FACT PERFORMED THE  SERVICES  OR
PROVIDED  THE MATERIALS THAT THEY WERE CONTRACTED TO PERFORM OR PROVIDE;
AND
  2. CERTIFICATION FROM A REPRESENTATIVE OF THE MINORITY OR  WOMEN-OWNED
BUSINESS  THAT THEY IN FACT PERFORMED THE SERVICES OR PROVIDED THE MATE-
RIALS THAT THEY WERE CONTRACTED TO PERFORM OR PROVIDE.
  S 2. Paragraphs (f), (h) and (i) of subdivision 3 of  section  311  of
the  executive law, paragraph (f) as added by chapter 261 of the laws of
1988, 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 three new
paragraphs (j), (k) and (l) are added to read as follows:
  (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, 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, AND TO USE THIS  INFORMATION  TO  CREATE  AN  INTERNET

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD07144-09-6

S. 7517                             2

BASED,  SEARCHABLE, CENTRALIZED STATE REGISTRY DETAILING CERTIFICATIONS,
DENIALS, AND ALL DOCUMENTS SUBMITTED DURING THE LIFE OF THE CONTRACT;
  (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[.];
  (J) TO PERFORM INSPECTIONS OF MINORITY OR WOMEN-OWNED BUSINESS'S PLACE
OF BUSINESS, WAREHOUSE OR STORAGE FACILITY TO CONFIRM THE EXISTENCE OF A
WORKFORCE, EQUIPMENT AND SUPPLIES;
  (K) TO PERFORM INSPECTIONS OF FINANCIAL RECORDS OF MINORITY OR  WOMEN-
OWNED BUSINESSES FOR EVIDENCE OF FRAUD; AND
  (L)  TO  ENSURE THE PROTECTION OF INDIVIDUALS WHO REPORT WRONGDOING ON
THE PART OF A MINORITY OR WOMEN-OWNED BUSINESS.
  S 3. Section 190.60 of the penal law, as amended by chapter 491 of the
laws of 1992, subdivision 1 as amended by chapter 357  of  the  laws  of
1996, is amended to read as follows:
S 190.60 Scheme to defraud in the [second] FIFTH degree.
  1.  A  person  is  guilty of a scheme to defraud in the [second] FIFTH
degree when he engages in a scheme  constituting  a  systematic  ongoing
course  of  conduct  with  intent  to defraud more than one person or to
obtain property from  more  than  one  person  by  false  or  fraudulent
pretenses, representations or promises, and so obtains property from one
or more of such persons.
  2.  In  any  prosecution  under this section, it shall be necessary to
prove the identity of at least one person from  whom  the  defendant  so
obtained  property,  but it shall not be necessary to prove the identity
of any other intended victim.
  Scheme to defraud in the [second] FIFTH degree is a class A  misdemea-
nor.
  S 4. Section 190.65 of the penal law, as amended by chapter 291 of the
laws of 2008, is amended to read as follows:
S 190.65 Scheme to defraud in the [first] FOURTH degree.
  1.  A  person  is  guilty of a scheme to defraud in the [first] FOURTH
degree when he or she: (a) engages in a scheme constituting a systematic
ongoing course of conduct with intent to defraud ten or more persons  or
to  obtain  property  from  ten  or  more persons by false or fraudulent
pretenses, representations or promises, and so obtains property from one
or more of such persons; or (b)  engages  in  a  scheme  constituting  a
systematic  ongoing  course  of conduct with intent to defraud more than
one person or to obtain property from more than one person by  false  or
fraudulent  pretenses, representations or promises, and so obtains prop-
erty with a value in excess of one thousand dollars  from  one  or  more
such persons; or (c) engages in a scheme constituting a systematic ongo-
ing  course of conduct with intent to defraud more than one person, more
than one of whom is a vulnerable elderly person as defined  in  subdivi-
sion three of section [260.30] 260.31 of this chapter or to obtain prop-
erty  from  more  than one person, more than one of whom is a vulnerable
elderly person as defined  in  subdivision  three  of  section  [260.30]
260.31  of  this  chapter, by false or fraudulent pretenses, representa-
tions or promises, and  so  obtains  property  from  one  or  more  such
persons.

S. 7517                             3

  2.  In  any  prosecution  under this section, it shall be necessary to
prove the identity of at least one person from  whom  the  defendant  so
obtained  property,  but it shall not be necessary to prove the identity
of any other intended victim, provided that  in  any  prosecution  under
paragraph  (c) of subdivision one of this section, it shall be necessary
to prove the identity of at least one such vulnerable elderly person  as
defined in subdivision three of section [260.30] 260.31 of this chapter.
  Scheme to defraud in the [first] FOURTH degree is a class E felony.
  S  5.  The  penal  law  is amended by adding four new sections 190.66,
190.67, 190.68 and 190.69 to read as follows:
S 190.66 SCHEME TO DEFRAUD IN THE THIRD DEGREE.
  1. A PERSON IS GUILTY OF A SCHEME TO DEFRAUD IN THE THIRD DEGREE  WHEN
HE  OR  SHE:  (A)  ENGAGES IN A SCHEME CONSTITUTING A SYSTEMATIC ONGOING
COURSE OF CONDUCT WITH INTENT TO DEFRAUD TWENTY-FIVE OR MORE PERSONS  OR
TO  OBTAIN PROPERTY FROM TWENTY-FIVE OR MORE PERSONS BY FALSE OR FRAUDU-
LENT PRETENSES, REPRESENTATIONS OR PROMISES,  AND  SO  OBTAINS  PROPERTY
FROM  ONE OR MORE OF SUCH PERSONS; OR (B) ENGAGES IN A SCHEME CONSTITUT-
ING A SYSTEMATIC ONGOING COURSE OF CONDUCT WITH INTENT TO  DEFRAUD  MORE
THAN ONE PERSON OR TO OBTAIN PROPERTY FROM MORE THAN ONE PERSON BY FALSE
OR  FRAUDULENT  PRETENSES,  REPRESENTATIONS  OR PROMISES, AND SO OBTAINS
PROPERTY WITH A VALUE IN EXCESS OF THREE THOUSAND DOLLARS  FROM  ONE  OR
MORE SUCH PERSONS.
  2.  IN  ANY  PROSECUTION  UNDER THIS SECTION, IT SHALL BE NECESSARY TO
PROVE THE IDENTITY OF AT LEAST ONE PERSON FROM  WHOM  THE  DEFENDANT  SO
OBTAINED  PROPERTY,  BUT IT SHALL NOT BE NECESSARY TO PROVE THE IDENTITY
OF ANY OTHER INTENDED VICTIM.
  SCHEME TO DEFRAUD IN THE THIRD DEGREE IS A CLASS D FELONY.
S 190.67 SCHEME TO DEFRAUD IN THE SECOND DEGREE.
  1. A PERSON IS GUILTY OF A SCHEME TO DEFRAUD IN THE SECOND DEGREE WHEN
HE OR SHE: (A) ENGAGES IN A SCHEME  CONSTITUTING  A  SYSTEMATIC  ONGOING
COURSE  OF CONDUCT WITH INTENT TO DEFRAUD ONE HUNDRED OR MORE PERSONS OR
TO OBTAIN PROPERTY FROM ONE HUNDRED OR MORE PERSONS BY FALSE OR  FRAUDU-
LENT  PRETENSES,  REPRESENTATIONS  OR  PROMISES, AND SO OBTAINS PROPERTY
FROM ONE OR MORE OF SUCH PERSONS; OR (B) ENGAGES IN A SCHEME  CONSTITUT-
ING  A  SYSTEMATIC ONGOING COURSE OF CONDUCT WITH INTENT TO DEFRAUD MORE
THAN ONE PERSON OR TO OBTAIN PROPERTY FROM MORE THAN ONE PERSON BY FALSE
OR FRAUDULENT PRETENSES, REPRESENTATIONS OR  PROMISES,  AND  SO  OBTAINS
PROPERTY  WITH  A  VALUE IN EXCESS OF FIFTY THOUSAND DOLLARS FROM ONE OR
MORE SUCH PERSONS.
  2. IN ANY PROSECUTION UNDER THIS SECTION, IT  SHALL  BE  NECESSARY  TO
PROVE  THE  IDENTITY  OF  AT LEAST ONE PERSON FROM WHOM THE DEFENDANT SO
OBTAINED PROPERTY, BUT IT SHALL NOT BE NECESSARY TO PROVE  THE  IDENTITY
OF ANY OTHER INTENDED VICTIM.
  SCHEME TO DEFRAUD IN THE SECOND DEGREE IS A CLASS C FELONY.
S 190.68 SCHEME TO DEFRAUD IN THE FIRST DEGREE.
  1.  A PERSON IS GUILTY OF A SCHEME TO DEFRAUD IN THE FIRST DEGREE WHEN
HE OR SHE: (A) ENGAGES IN A SCHEME  CONSTITUTING  A  SYSTEMATIC  ONGOING
COURSE OF CONDUCT WITH INTENT TO DEFRAUD ONE THOUSAND OR MORE PERSONS OR
TO OBTAIN PROPERTY FROM ONE THOUSAND OR MORE PERSONS BY FALSE OR FRAUDU-
LENT  PRETENSES,  REPRESENTATIONS  OR  PROMISES, AND SO OBTAINS PROPERTY
FROM ONE OR MORE OF SUCH PERSONS; OR (B) ENGAGES IN A SCHEME  CONSTITUT-
ING  A  SYSTEMATIC ONGOING COURSE OF CONDUCT WITH INTENT TO DEFRAUD MORE
THAN ONE PERSON OR TO OBTAIN PROPERTY FROM MORE THAN ONE PERSON BY FALSE
OR FRAUDULENT PRETENSES, REPRESENTATIONS OR  PROMISES,  AND  SO  OBTAINS
PROPERTY  WITH A VALUE IN EXCESS OF ONE MILLION DOLLARS FROM ONE OR MORE
SUCH PERSONS.

S. 7517                             4

  2. IN ANY PROSECUTION UNDER THIS SECTION, IT  SHALL  BE  NECESSARY  TO
PROVE  THE  IDENTITY  OF  AT LEAST ONE PERSON FROM WHOM THE DEFENDANT SO
OBTAINED PROPERTY, BUT IT SHALL NOT BE NECESSARY TO PROVE  THE  IDENTITY
OF ANY OTHER INTENDED VICTIM.
  SCHEME TO DEFRAUD IN THE FIRST DEGREE IS A CLASS B FELONY.
S 190.69 THREE CONVICTIONS FOR SCHEME TO DEFRAUD BY AN OSTENSIBLE MINOR-
           ITY OR WOMEN-OWNED BUSINESS.
  UPON  THREE  CONVICTIONS  FOR  ANY  OFFENSE DEFINED IN SECTION 190.60,
190.65, 190.66, 190.67, OR 190.68 INVOLVING A  MINORITY  OR  WOMEN-OWNED
BUSINESS,  AN  INDIVIDUAL  SHALL  BE BARRED FROM DOING BUSINESS WITH THE
STATE.
  S 6. Paragraphs a and c of subdivision 1 of section 80.00 of the penal
law, as amended by section 27 of subpart A of part H of  chapter  55  of
the  laws of 2014, are amended and a new paragraph d is added to read as
follows:
  a. [five] FIFTY thousand dollars; or
  c. if the conviction is for any felony defined in article two  hundred
twenty  or  two  hundred  twenty-one  of  this chapter, according to the
following schedule:
  (i) for A-I felonies, one hundred thousand dollars;
  (ii) for A-II felonies, fifty thousand dollars;
  (iii) for B felonies, thirty thousand dollars;
  (iv) for C felonies, fifteen thousand dollars.
When imposing a fine pursuant to the provisions of this  paragraph,  the
court  shall  consider the profit gained by defendant's conduct, whether
the amount of the fine is  disproportionate  to  the  conduct  in  which
defendant  engaged,  its impact on any victims, and defendant's economic
circumstances, including the defendant's ability to pay, the  effect  of
the  fine  upon his or her immediate family or any other persons to whom
the defendant owes an obligation of support[.]; OR
  D. IF THE CONVICTION IS FOR ANY  FELONY  DEFINED  IN  SECTION  190.65,
190.66,  190.67,  OR  190.68,  AND  THE  FRAUD  INVOLVES  A  MINORITY OR
WOMEN-OWNED BUSINESS, DOUBLE THE AMOUNT THAT SHOULD HAVE  BEEN  PAID  TO
THE  MINORITY  OR  WOMEN-OWNED  BUSINESS FOR BONA FIDE WORK OR MATERIALS
UNDER THE CONTRACT.
  S 7. Section 80.00 of the penal law is amended by adding a new  subdi-
vision 8 to read as follows:
  8.  ALL  MONEYS RECEIVED OR COLLECTED IN PAYMENT OF A FINE IMPOSED OUT
OF THE MISUSE OF A MINORITY OR WOMEN-OWNED BUSINESS ARE THE PROPERTY  OF
THE  STATE AND THE STATE COMPTROLLER SHALL DEPOSIT ALL SUCH FINES TO THE
MINORITY AND WOMEN-OWNED BUSINESS FUND ESTABLISHED PURSUANT  TO  SECTION
NINETY-SEVEN-J OF THE STATE FINANCE LAW.
  S  8.  Subdivision  4 of section 80.00 of the penal law, as amended by
chapter 338 of the laws of 1989, is amended to read as follows:
  4. Exception. The provisions of this section  shall  not  apply  to  a
[corporation] NON-NATURAL PERSON.
  S  9.  Section  80.10  of  the  penal law, subdivision 1 as amended by
section 28 of subpart A of part H of chapter 55 of the laws of 2014,  is
amended to read as follows:
S 80.10 Fines for [corporations] NON-NATURAL PERSONS.
  1.  In  general.  A  sentence to pay a fine, when imposed on a [corpo-
ration] NON-NATURAL PERSON for an offense defined in this chapter or for
an offense defined outside this chapter for which no special [corporate]
fine is specified, shall be a sentence to pay an amount,  fixed  by  the
court, not exceeding:

S. 7517                             5

  (a)  [Ten]  ONE  HUNDRED thousand dollars, when the conviction is of a
felony;
  (b)  Five thousand dollars, when the conviction is of a class A misde-
meanor or of an unclassified misdemeanor for which a term  of  imprison-
ment in excess of three months is authorized;
  (c)  Two  thousand dollars, when the conviction is of a class B misde-
meanor or of an unclassified misdemeanor for which the  authorized  term
of imprisonment is not in excess of three months;
  (d) Five hundred dollars, when the conviction is of a violation;
  (e)  Any  higher amount not exceeding double the amount of the [corpo-
ration's] NON-NATURAL PERSON'S gain from the commission of  the  offense
or,  if  the  [corporation]  NON-NATURAL  PERSON is convicted of a crime
defined in article four hundred ninety-six of this chapter,  any  higher
amount  not exceeding three times the amount of the [corporation's] NON-
NATURAL PERSON'S gain from the commission of such offense.
  2. Exception. In the case of an offense defined outside this  chapter,
if  a special fine [for a corporation] is expressly specified in the law
or ordinance that defines the offense, the fine fixed by the court shall
be as follows:
  (a) An amount within the limits specified in the law or ordinance that
defines the offense; or
  (b) Any higher amount not exceeding double the amount of  the  [corpo-
ration's] NON-NATURAL PERSON'S gain from the commission of the offense.
  3.  Determination  of amount or value. When the court imposes the fine
authorized by paragraph (e) of  subdivision  one  or  paragraph  (b)  of
subdivision two OF THIS SECTION for any offense the provisions of subdi-
vision three of section 80.00 OF THIS ARTICLE shall be applicable to the
sentence.
  S 10. The state finance law is amended by adding a new section 97-j to
read as follows:
  S  97-J.  MINORITY  AND  WOMEN-OWNED BUSINESS FUND. 1. THERE IS HEREBY
ESTABLISHED IN THE JOINT  CUSTODY  OF  THE  STATE  COMPTROLLER  AND  THE
COMMISSIONER  OF  TAXATION AND FINANCE A SPECIAL FUND TO BE KNOWN AS THE
"MINORITY AND WOMEN-OWNED BUSINESS FUND".
  2. SUCH FUNDS SHALL CONSIST OF ALL FINES RECEIVED FROM  ANY  COURT  OF
THE UNIFIED COURT SYSTEM PURSUANT TO THE PROVISIONS OF SUBDIVISION EIGHT
OF SECTION 80.00 OF THE PENAL LAW.
  3.  MONIES  OF THE FUND, WHEN ALLOCATED, SHALL BE DISBURSED TO ACQUIRE
SOFTWARE, EMPLOY PERSONNEL TO AUDIT, INVESTIGATE AND PROSECUTE  MINORITY
AND   WOMEN-OWNED   BUSINESS   FRAUD  AND  TO  UNDERWRITE  MINORITY  AND
WOMEN-OWNED BUSINESS PROGRAMS TO  ASSIST  MINORITY  AND  WOMEN  BUSINESS
OWNERS TO DEVELOP SUSTAINABLE BUSINESSES.
  S  11.  Section 316 of the executive law, as amended by chapter 175 of
the laws of 2010, is amended to read as follows:
  S 316. Enforcement. 1. 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
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 six of section three hundred
thirteen of this article or has denied such  application,  the  director
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

S. 7517                             6

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
minority and  women-owned  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 division of minority
and women'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.
  2. THE COMPTROLLER SHALL, FROM TIME TO TIME  BUT  AT  LEAST  ANNUALLY,
CONDUCT AN AUDIT OF EVERY MINORITY AND WOMEN-OWNED BUSINESSES.
  S  12. This act shall take effect immediately, provided, however, that
the amendments to article 15-A of the executive  law  made  by  sections
one,  two and eleven of this act shall not affect the expiration of such
article and shall be deemed to expire therewith.

2015-S7517A - Details

See Assembly Version of this Bill:: A5243
Current Committee:: Senate Finance
Law Section:: Executive Law
Laws Affected:: Add §314-a, amd §§311, 314 & 316, Exec L; add §97-j, St Fin L
Versions Introduced in Other Legislative Sessions:: 2017-2018: S3807, A702
2019-2020: S2217, A2670
2021-2022: S3390, A4173, A9259

2015-S7517A - Summary

Relates to minority and women-owned business enterprises.

2015-S7517A - Sponsor Memo

                                 BILL NUMBER:  S7517A

 TITLE OF BILL :  An act to amend the executive law, the penal law and
the state finance law, in relation to minority and women-owned
business enterprises post completion certification, duties of the
director and creating the minority and women-owned business enterprise
fund

 PURPOSE OR GENERAL IDEA OF BILL :

The purpose of this bill is to reduce fraud and misuse of the minority
and women-owned business enterprise (MWBE) program.

 SUMMARY OF SPECIFIC PROVISIONS :

Section 1 requires post completion certifications to be completed,
under penalty of perjury, that the MWBE actually performed the work,
performed the services, or delivered the materials.

Section 2 requires the division of minority and women's business
development to create an internet registry, and to perform inspections
of MWBEs to weed out fraud and abuse.

Section 3 requires additional regulations to be adopted related to
revocations of certifications for felony convictions for fraudulently
misrepresenting the status of an MWBE.

Section 4 permits a court to issue fines double the amount that should
have been paid to an MWBE upon conviction for felony fraud related to
the MWBE program.

Section 5 permits certain fines to be directed to the MWBE fund.

Section 6 establishes the MWBE fund.

Section 7 provides for the effective date.

 JUSTIFICATION :

The Minority-and Women-Owned Business Enterprise (MWBE) program has
served to increase the participation of disadvantaged individuals in
public contracts, and it has significantly leveled the playing field
in that regard. However, fraud and misuse of MWBEs serves to undercut
the purpose of the program. Each case of MWBE fraud cheats a
legitimate minority- or women-owned business out of a contract.

In November 2014, a New York State Supreme Court Grand Jury issued a
report on the vulnerability of MWBE programs to fraud and misuse. The
report revealed significant criminal conduct in the construction
industry spanning at least a decade and, within the relatively small
sample of cases reviewed, found evidence that over $10 million
intended for honest MWBEs had instead gone to fraudulent non-MWBEs.

In many cases, contractors claimed to use MWBEs to perform work or
provide the materials required under the contract, but in fact used
businesses that were neither women- nor minority-owned. Contractors
also misrepresented that MWBEs were providing the services or
materials, when the companies that they listed did not have the
capacity to do so. In some instances, invoices and other billing
documents were created to make it appear as though the work and
payments flowed to MWBEs, when the money was merely passed through
those businesses to the non-MWBEs that actually performed the work.

The grand jury report concluded that current laws are not adequate to
prevent MWBE fraud and misuse. This bill, in conjunction with steps
taken at state- and city-level agencies, will serve to deter MWBE
fraud so that legitimate MWBEs are not burdened with additional
barriers to entry.

 PRIOR LEGISLATIVE HISTORY :

This is a new bill.

 FISCAL IMPLICATIONS :

None.

 EFFECTIVE DATE :
This act shall take effect immediately, provided, however, that the
amendments to article 15-A of the executive law made by sections one,
two, three, and five of this act shall not affect the expiration of
such article and shall be deemed to expire therewith.

2015-S7517A - Bill Text download pdf

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

                                 7517--A

                            I N  S E N A T E

                               May 6, 2016
                               ___________

Introduced  by  Sen. HASSELL-THOMPSON -- read twice and ordered printed,
  and when printed to be  committed  to  the  Committee  on  Finance  --
  committee  discharged,  bill amended, ordered reprinted as amended and
  recommitted to said committee

AN ACT to amend the executive law, the penal law and the  state  finance
  law, in relation to minority and women-owned business enterprises post
  completion  certification,  duties  of  the  director and creating the
  minority and women-owned business enterprise fund

  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 section 314-a
to read as follows:
  S 314-A. POST COMPLETION CERTIFICATION. THE DIRECTOR, IN COLLABORATION
WITH THE DIVISION OF MINORITY AND WOMEN'S BUSINESS DEVELOPMENT  AND  THE
DEPARTMENT  OF  SMALL  BUSINESS  SERVICES,  SHALL  DEVELOP THE FOLLOWING
STANDARDIZED CERTIFICATION FORMS THAT MUST BE COMPLETED UNDER PENALTY OF
PERJURY PRIOR TO THE PRIME CONTRACTOR BEING PAID:
  1. CERTIFICATION FROM A REPRESENTATIVE OF THE  PRIME  CONTRACTOR  THAT
THE  MINORITY  OR  WOMEN-OWNED BUSINESS ENTERPRISE IN FACT PERFORMED THE
SERVICES OR PROVIDED THE MATERIALS THAT THEY WERE CONTRACTED TO  PERFORM
OR PROVIDE; AND
  2.  CERTIFICATION FROM A REPRESENTATIVE OF THE MINORITY OR WOMEN-OWNED
BUSINESS ENTERPRISE THAT THEY IN FACT PERFORMED THE SERVICES OR PROVIDED
THE MATERIALS THAT THEY WERE CONTRACTED TO PERFORM OR PROVIDE.
  S 2. Paragraphs (f), (h) and (i) of subdivision 3 of  section  311  of
the  executive law, paragraph (f) as added by chapter 261 of the laws of
1988, 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 three new
paragraphs (j), (k) and (l) are added to read as follows:
  (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, supplies, equipment,
materials and recognized construction trades and  which  shall  indicate
areas  or locations of the state where such enterprises are available to

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

                                                           LBD07144-12-6

S. 7517--A                          2

perform services, AND TO USE THIS  INFORMATION  TO  CREATE  AN  INTERNET
BASED,  SEARCHABLE, CENTRALIZED STATE REGISTRY DETAILING CERTIFICATIONS,
DENIALS, WAIVERS AND ALL DOCUMENTS SUBMITTED  DURING  THE  LIFE  OF  THE
CONTRACT;
  (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[.];
  (J) TO PERFORM INSPECTIONS OF MINORITY OR WOMEN-OWNED BUSINESS'S PLACE
OF BUSINESS, WAREHOUSE OR STORAGE FACILITY TO CONFIRM THE EXISTENCE OF A
WORKFORCE, EQUIPMENT AND SUPPLIES;
  (K) TO PERFORM INSPECTIONS OF FINANCIAL RECORDS OF MINORITY OR  WOMEN-
OWNED  BUSINESS ENTERPRISES TO ENSURE SUCH ENTERPRISES ARE IN COMPLIANCE
WITH APPLICABLE LAWS; AND
  (L) TO ENSURE THE  PROTECTION  OF  INDIVIDUALS  WHO  REPORT  SUSPECTED
VIOLATIONS  OF  THIS ARTICLE AND APPLICABLE LAWS RELATED TO MINORITY AND
WOMEN-OWNED BUSINESS ENTERPRISES.
  S 3. Subdivision 1 of section 314 of the executive law,  as  added  by
chapter 261 of the laws of 1988, is amended to read as follows:
  1.  The  director shall promulgate rules and regulations providing for
the establishment of a statewide certification program  including  rules
and regulations governing the approval, denial or revocation of any such
certification,  INCLUDING REVOCATIONS FOR FELONY CONVICTIONS FOR FRAUDU-
LENTLY MISREPRESENTING THE STATUS OF MINORITY  OR  WOMEN-OWNED  BUSINESS
ENTERPRISES.    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, AND CONSISTENT WITH THE PROVISIONS OF ARTICLE TWENTY-THREE-A
OF THE CORRECTION LAW.
  S  4.  Paragraph c of subdivision 1 of section 80.00 of the penal law,
as amended by section 27 of subpart A of part H of  chapter  55  of  the
laws  of  2014,  is  amended  and  a new paragraph d is added to read as
follows:
  c. if the conviction is for any felony defined in article two  hundred
twenty  or  two  hundred  twenty-one  of  this chapter, according to the
following schedule:
  (i) for A-I felonies, one hundred thousand dollars;
  (ii) for A-II felonies, fifty thousand dollars;
  (iii) for B felonies, thirty thousand dollars;
  (iv) for C felonies, fifteen thousand dollars.
When imposing a fine pursuant to the provisions of this  paragraph,  the
court  shall  consider the profit gained by defendant's conduct, whether
the amount of the fine is  disproportionate  to  the  conduct  in  which
defendant  engaged,  its impact on any victims, and defendant's economic
circumstances, including the defendant's ability to pay, the  effect  of
the  fine  upon his or her immediate family or any other persons to whom
the defendant owes an obligation of support[.]; OR
  D. IF THE CONVICTION IS FOR ANY  FELONY  INVOLVING  FRAUD  RELATED  TO
ARTICLE  FIFTEEN-A  OF  THE  EXECUTIVE  LAW  OR OTHER LAWS APPLICABLE TO
MINORITY AND WOMEN-OWNED BUSINESS ENTERPRISES, THE COURT MAY DOUBLE  THE

S. 7517--A                          3

AMOUNT  THAT  SHOULD HAVE BEEN PAID TO THE MINORITY OR WOMEN-OWNED BUSI-
NESS ENTERPRISE FOR BONA FIDE WORK OR MATERIALS UNDER THE CONTRACT.
  S  5.  Section  316 of the executive law, as amended by chapter 175 of
the laws of 2010, is amended to read as follows:
  S 316. Enforcement. 1. 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
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 six of section three hundred
thirteen of this article or has denied such  application,  the  director
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
minority  and  women-owned  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 division  of  minority
and  women'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.
  2.  ANY  FINES,  OR PORTION THEREOF, IMPOSED PURSUANT TO THE FOREGOING
SUBDIVISION, OR IMPOSED BY A COURT OF COMPETENT JURISDICTION RELATED  TO
CONVICTIONS INVOLVING FRAUD RELATED TO THIS ARTICLE OR OTHERWISE INVOLV-
ING  A  MINORITY  OR WOMEN-OWNED BUSINESS ENTERPRISE, MAY BE REQUIRED BY
THE  ENTITY  IMPOSING  SUCH  FINES  TO  BE  PAID  TO  THE  MINORITY  AND
WOMEN-OWNED  BUSINESS  ENTERPRISE  FUND  ESTABLISHED PURSUANT TO SECTION
NINETY-SEVEN-J OF THE STATE FINANCE LAW.
  S 6. The state finance law is amended by adding a new section 97-j  to
read as follows:

S. 7517--A                          4

  S 97-J. MINORITY AND WOMEN-OWNED BUSINESS ENTERPRISE FUND. 1. THERE IS
HEREBY ESTABLISHED IN THE JOINT CUSTODY OF THE STATE COMPTROLLER AND THE
COMMISSIONER  OF  TAXATION AND FINANCE A SPECIAL FUND TO BE KNOWN AS THE
"MINORITY AND WOMEN-OWNED BUSINESS ENTERPRISE FUND".
  2. SUCH FUNDS SHALL CONSIST OF ALL MONEYS APPROPRIATED FOR THE PURPOSE
OF  SUCH  FUND,  ALL MONEYS TRANSFERRED OR PAID TO SUCH FUND PURSUANT TO
LAW, INCLUDING PURSUANT TO SECTION THREE HUNDRED SIXTEEN OF  THE  EXECU-
TIVE  LAW,  AND  CONTRIBUTIONS CONSISTING OF GRANTS, INCLUDING GRANTS OR
OTHER FINANCIAL ASSISTANCE FROM ANY AGENCY OF GOVERNMENT AND ALL  MONEYS
REQUIRED  BY  THE PROVISIONS OF THIS SECTION OR ANY OTHER LAW TO BE PAID
INTO OR CREDITED TO THIS FUND.
  3. MONIES OF THE FUND, FOLLOWING  APPROPRIATION  BY  THE  LEGISLATURE,
SHALL BE EXPENDED TO ACQUIRE SOFTWARE, EMPLOY PERSONNEL TO AUDIT, INVES-
TIGATE  AND PROSECUTE MINORITY AND WOMEN-OWNED BUSINESS ENTERPRISE FRAUD
AND TO UNDERWRITE MINORITY AND WOMEN-OWNED BUSINESS ENTERPRISE  PROGRAMS
TO  ASSIST  MINORITY  AND  WOMEN  BUSINESS  ENTERPRISE OWNERS TO DEVELOP
SUSTAINABLE BUSINESSES.
  S 7. This act shall take effect immediately, provided,  however,  that
the  amendments  to  article  15-A of the executive law made by sections
one, two, three, and five of this act shall not affect the expiration of
such article and shall be deemed to expire therewith.

2015-S7517B (ACTIVE) - Details

See Assembly Version of this Bill:: A5243
Current Committee:: Senate Finance
Law Section:: Executive Law
Laws Affected:: Add §314-a, amd §§311, 314 & 316, Exec L; add §97-j, St Fin L
Versions Introduced in Other Legislative Sessions:: 2017-2018: S3807, A702
2019-2020: S2217, A2670
2021-2022: S3390, A4173, A9259

2015-S7517B (ACTIVE) - Summary

Relates to minority and women-owned business enterprises.

2015-S7517B (ACTIVE) - Sponsor Memo

                                 BILL NUMBER:  S7517B

 TITLE OF BILL :  An act to amend the executive law and the state
finance law, in relation to minority and women-owned business
enterprises post completion certification, duties of the director and
creating the minority and women-owned business enterprise fund

 PURPOSE OR GENERAL IDEA OF BILL :

The purpose of this bill is to reduce fraud and misuse of the minority
and women-owned business enterprise (MWBE) program.

 SUMMARY OF SPECIFIC PROVISIONS :

Section 1 requires post completion certifications to be completed,
under penalty of perjury, that the MWBE actually performed the work,
performed the services, or delivered the materials.

Section 2 requires the division of minority and women's business
development to create an internet registry, and to perform inspections
of MWBEs to weed out fraud and abuse.

Section 3 requires additional regulations to be adopted related to
revocations of certifications for felony convictions for fraudulently
misrepresenting the status of an MWBE.

Section 4 permits a court to issue fines double the amount that should
have been paid to an MWBE upon conviction for felony fraud related to
the MWBE program.

Section 5 permits certain fines to be directed to the MWBE fund.

Section 6 establishes the MWBE fund.

Section 7 provides for the effective date.

 JUSTIFICATION :

The Minority-and Women-Owned Business Enterprise (MWBE) program has
served to increase the participation of disadvantaged individuals in
public contracts, and it has significantly leveled the playing field
in that regard. However, fraud and misuse of MWBEs serves to undercut
the purpose of the program. Each case of MWBE fraud cheats a
legitimate minority- or women-owned business out of a contract.

In November 2014, a New York State Supreme Court Grand Jury issued a
report on the vulnerability of MWBE programs to fraud and misuse. The
report revealed significant criminal conduct in the construction
industry spanning at least a decade and, within the relatively small
sample of cases reviewed, found evidence that over $10 million
intended for honest MWBEs had instead gone to fraudulent non-MWBEs.

In many cases, contractors claimed to use MWBEs to perform work or
provide the materials required under the contract, but in fact used
businesses that were neither women- nor minority-owned. Contractors
also misrepresented that MWBEs were providing the services or
materials, when the companies that they listed did not have the
capacity to do so. In some instances, invoices and other billing
documents were created to make it appear as though the work and
payments flowed to MWBEs, when the money was merely passed through
those businesses to the non-MWBEs that actually performed the work.

The grand jury report concluded that current laws are not adequate to
prevent MWBE fraud and misuse. This bill, in conjunction with steps
taken at state- and city-level agencies, will serve to deter MWBE

fraud so that legitimate MWBEs are not burdened with additional
barriers to entry.

 PRIOR LEGISLATIVE HISTORY :

This is a new bill.

 FISCAL IMPLICATIONS :

None.

 EFFECTIVE DATE :
This act shall take effect immediately, provided, however, that the
amendments to article 15-A of the executive law made by sections one,
two, three, and five of this act shall not affect the expiration of
such article and shall be deemed to expire therewith.

2015-S7517B (ACTIVE) - Bill Text download pdf

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

                                 7517--B

                            I N  S E N A T E

                               May 6, 2016
                               ___________

Introduced  by  Sen. HASSELL-THOMPSON -- read twice and ordered printed,
  and when printed to be  committed  to  the  Committee  on  Finance  --
  committee  discharged,  bill amended, ordered reprinted as amended and
  recommitted to said committee -- committee discharged,  bill  amended,
  ordered reprinted as amended and recommitted to said committee

AN ACT to amend the executive law and the state finance law, in relation
  to  minority  and  women-owned  business  enterprises  post completion
  certification, duties of the director and creating  the  minority  and
  women-owned business enterprise fund

  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 section  314-a
to read as follows:
  S 314-A. POST COMPLETION CERTIFICATION. THE DIRECTOR, IN COLLABORATION
WITH  THE  DIVISION OF MINORITY AND WOMEN'S BUSINESS DEVELOPMENT AND THE
DEPARTMENT OF SMALL  BUSINESS  SERVICES,  SHALL  DEVELOP  THE  FOLLOWING
STANDARDIZED CERTIFICATION FORMS THAT MUST BE COMPLETED UNDER PENALTY OF
PERJURY PRIOR TO THE PRIME CONTRACTOR BEING PAID:
  1.  CERTIFICATION  FROM  A REPRESENTATIVE OF THE PRIME CONTRACTOR THAT
THE MINORITY OR WOMEN-OWNED BUSINESS ENTERPRISE IN  FACT  PERFORMED  THE
SERVICES  OR PROVIDED THE MATERIALS THAT THEY WERE CONTRACTED TO PERFORM
OR PROVIDE; AND
  2. CERTIFICATION FROM A REPRESENTATIVE OF THE MINORITY OR  WOMEN-OWNED
BUSINESS ENTERPRISE THAT THEY IN FACT PERFORMED THE SERVICES OR PROVIDED
THE MATERIALS THAT THEY WERE CONTRACTED TO PERFORM OR PROVIDE.
  S  2.  Paragraphs  (f), (h) and (i) of subdivision 3 of section 311 of
the executive law, paragraph (f) as added by chapter 261 of the laws  of
1988,  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 three  new
paragraphs (j), (k) and (l) are added to read as follows:
  (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, supplies, equipment,
materials  and  recognized  construction trades and which shall indicate

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

                                                           LBD07144-14-6

S. 7517--B                          2

areas or locations of the state where such enterprises are available  to
perform  services,  AND  TO  USE  THIS INFORMATION TO CREATE AN INTERNET
BASED, SEARCHABLE, CENTRALIZED STATE REGISTRY DETAILING  CERTIFICATIONS,
DENIALS,  WAIVERS  AND  ALL  DOCUMENTS  SUBMITTED DURING THE LIFE OF THE
CONTRACT;
  (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[.];
  (J) TO PERFORM INSPECTIONS OF MINORITY OR WOMEN-OWNED BUSINESS'S PLACE
OF BUSINESS, WAREHOUSE OR STORAGE FACILITY TO CONFIRM THE EXISTENCE OF A
WORKFORCE, EQUIPMENT AND SUPPLIES;
  (K)  TO PERFORM INSPECTIONS OF FINANCIAL RECORDS OF MINORITY OR WOMEN-
OWNED BUSINESS ENTERPRISES TO ENSURE SUCH ENTERPRISES ARE IN  COMPLIANCE
WITH APPLICABLE LAWS; AND
  (L)  TO  ENSURE  THE  PROTECTION  OF  INDIVIDUALS WHO REPORT SUSPECTED
VIOLATIONS OF THIS ARTICLE AND APPLICABLE LAWS RELATED TO  MINORITY  AND
WOMEN-OWNED BUSINESS ENTERPRISES.
  S  3.  Subdivision  1 of section 314 of the executive law, as added by
chapter 261 of the laws of 1988, is amended to read as follows:
  1. The director shall promulgate rules and regulations  providing  for
the  establishment  of a statewide certification program including rules
and regulations governing the approval, denial or revocation of any such
certification, INCLUDING REVOCATIONS FOR FELONY CONVICTIONS FOR  FRAUDU-
LENTLY  MISREPRESENTING  THE  STATUS OF MINORITY OR WOMEN-OWNED BUSINESS
ENTERPRISES.   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, AND CONSISTENT WITH THE PROVISIONS OF ARTICLE TWENTY-THREE-A
OF THE CORRECTION LAW.
  S 4. Section 316 of the executive law, as amended by  chapter  175  of
the laws of 2010, is amended to read as follows:
  S 316. Enforcement.  1. 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
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 six of  section  three  hundred
thirteen  of  this  article or has denied such application, the director
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

S. 7517--B                          3

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
minority  and  women-owned  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 division  of  minority
and  women'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.
  2.  ANY  FINES,  OR PORTION THEREOF, IMPOSED PURSUANT TO THE FOREGOING
SUBDIVISION, OR IMPOSED BY A COURT OF COMPETENT JURISDICTION RELATED  TO
CONVICTIONS INVOLVING FRAUD RELATED TO THIS ARTICLE OR OTHERWISE INVOLV-
ING  A  MINORITY  OR WOMEN-OWNED BUSINESS ENTERPRISE, MAY BE REQUIRED BY
THE  ENTITY  IMPOSING  SUCH  FINES  TO  BE  PAID  TO  THE  MINORITY  AND
WOMEN-OWNED  BUSINESS  ENTERPRISE  FUND  ESTABLISHED PURSUANT TO SECTION
NINETY-SEVEN-J OF THE STATE FINANCE LAW.
  S 5. The state finance law is amended by adding a new section 97-j  to
read as follows:
  S 97-J. MINORITY AND WOMEN-OWNED BUSINESS ENTERPRISE FUND. 1. THERE IS
HEREBY ESTABLISHED IN THE JOINT CUSTODY OF THE STATE COMPTROLLER AND THE
COMMISSIONER  OF  TAXATION AND FINANCE A SPECIAL FUND TO BE KNOWN AS THE
"MINORITY AND WOMEN-OWNED BUSINESS ENTERPRISE FUND".
  2. SUCH FUNDS SHALL CONSIST OF ALL MONEYS APPROPRIATED FOR THE PURPOSE
OF SUCH FUND, ALL MONEYS TRANSFERRED OR PAID TO SUCH  FUND  PURSUANT  TO
LAW,  INCLUDING  PURSUANT TO SECTION THREE HUNDRED SIXTEEN OF THE EXECU-
TIVE LAW, AND CONTRIBUTIONS CONSISTING OF GRANTS,  INCLUDING  GRANTS  OR
OTHER  FINANCIAL ASSISTANCE FROM ANY AGENCY OF GOVERNMENT AND ALL MONEYS
REQUIRED BY THE PROVISIONS OF THIS SECTION OR ANY OTHER LAW TO  BE  PAID
INTO OR CREDITED TO THIS FUND.
  3.  MONIES  OF  THE  FUND, FOLLOWING APPROPRIATION BY THE LEGISLATURE,
SHALL BE EXPENDED TO ACQUIRE SOFTWARE, EMPLOY PERSONNEL TO AUDIT, INVES-
TIGATE AND PROSECUTE MINORITY AND WOMEN-OWNED BUSINESS ENTERPRISE  FRAUD
AND  TO UNDERWRITE MINORITY AND WOMEN-OWNED BUSINESS ENTERPRISE PROGRAMS
TO ASSIST MINORITY AND  WOMEN  BUSINESS  ENTERPRISE  OWNERS  TO  DEVELOP
SUSTAINABLE BUSINESSES.
  S  6.  This act shall take effect immediately, provided, however, that
the amendments to article 15-A of the executive  law  made  by  sections
one, two, three, and four of this act shall not affect the expiration of
such article and shall be deemed to expire therewith.

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Senate Bill S7517B

Sponsored By

Archive: Last Bill Status - In Senate Committee Finance Committee

Bill Amendments

2015-S7517 - Details

2015-S7517 - Summary

2015-S7517 - Sponsor Memo

2015-S7517 - Bill Text download pdf

2015-S7517A - Details

2015-S7517A - Summary

2015-S7517A - Sponsor Memo

2015-S7517A - Bill Text download pdf

2015-S7517B (ACTIVE) - Details

2015-S7517B (ACTIVE) - Summary

2015-S7517B (ACTIVE) - Sponsor Memo

2015-S7517B (ACTIVE) - Bill Text download pdf

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Senate Bill S7517B

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Sponsored By

Ruth Hassell-Thompson

Archive: Last Bill Status - In Senate Committee Finance Committee

Bill Amendments

2015-S7517 - Details

2015-S7517 - Summary

2015-S7517 - Sponsor Memo

2015-S7517 - Bill Text download pdf

2015-S7517A - Details

2015-S7517A - Summary

2015-S7517A - Sponsor Memo

2015-S7517A - Bill Text download pdf

2015-S7517B (ACTIVE) - Details

2015-S7517B (ACTIVE) - Summary

2015-S7517B (ACTIVE) - Sponsor Memo

2015-S7517B (ACTIVE) - Bill Text download pdf

Comments