S T A T E O F N E W Y O R K
________________________________________________________________________
240
2017-2018 Regular Sessions
I N A S S E M B L Y
January 5, 2017
___________
Introduced by M. of A. BICHOTTE -- read once and referred to the Commit-
tee on Governmental Operations
AN ACT to amend the state finance law, in relation to requiring utiliza-
tion of minority and women-owned business enterprises as subcontrac-
tors as a condition when awarding sole source procurement contracts;
to amend the executive law, in relation to the issuance of waivers of
the obligation to comply with the minority and women-owned business
enterprise participation requirements of a contract if such contract
is a single source or sole source procurement contract; to amend the
general municipal law, in relation to requiring municipalities to
require contract award recipients to utilize the services of minority
and women-owned business enterprises; to amend the executive law, in
relation to making conforming changes; and providing for the repeal of
certain provisions upon expiration thereof
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Paragraph b of subdivision 10 of section 163 of the state
finance law is amended by adding a new subparagraph (iii) to read as
follows:
(III) ALL SINGLE SOURCE OR SOLE SOURCE PROCUREMENT CONTRACTS MADE
PURSUANT TO THE PROVISIONS OF THIS PARAGRAPH SHALL REQUIRE THAT THE
AWARD RECIPIENT COMPLY WITH THE PROVISIONS OF ARTICLE FIFTEEN-A OF THE
EXECUTIVE LAW RELATING TO MINORITY AND WOMEN-OWNED BUSINESS ENTERPRISE
PARTICIPATION WHEN CONTRACTING WITH SUBCONTRACTORS.
§ 2. 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
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD02128-01-7
A. 240 2
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) A CONTRACTING AGENCY SHALL NOT ISSUE A TOTAL WAIVER OF THE OBLI-
GATION TO COMPLY WITH THE MINORITY AND WOMEN-OWNED BUSINESS ENTERPRISE
PARTICIPATION REQUIREMENTS OF A CONTRACT IF SUCH CONTRACT IS A SINGLE
SOURCE OR SOLE SOURCE PROCUREMENT CONTRACT AS DESCRIBED IN SECTION ONE
HUNDRED SIXTY-THREE OF THE STATE FINANCE LAW; PROVIDED, HOWEVER, THAT IF
THE CONTRACTING AGENCY DETERMINES THERE IS NOT A REASONABLE AVAILABILITY
OF CONTRACTORS ON THE LIST OF CERTIFIED BUSINESS TO FURNISH SERVICES FOR
THE PROJECT, THE CONTRACTING AGENCY MAY ISSUE A PARTIAL WAIVER OF
COMPLIANCE TO THE CONTRACTOR.
§ 3. Section 103 of the general municipal law is amended by adding a
new subdivision 17 to read as follows:
17. ALL CONTRACTS AWARDED PURSUANT TO THE PROVISIONS OF THIS SECTION,
INCLUDING SINGLE SOURCE OR SOLE SOURCE PROCUREMENT CONTRACTS, SHALL
REQUIRE THE CONTRACT RECIPIENT TO COMPLY WITH THE PROVISIONS OF SECTION
THREE HUNDRED THIRTEEN OF THE EXECUTIVE LAW, TO THE EXTENT THAT SUCH
PROVISIONS APPLY; PROVIDED, HOWEVER, THAT A CONTRACT RECIPIENT GRANTED A
WAIVER OF COMPLIANCE AS PROVIDED IN SECTION THREE HUNDRED THIRTEEN OF
THE EXECUTIVE LAW SHALL BE DEEMED TO BE IN COMPLIANCE WITH SUCH
PROVISIONS.
§ 4. Subdivisions 2, 3 and 13 of section 310 of the executive law,
subdivisions 2 and 3 as added by chapter 261 of the laws of 1988 and
subdivision 13 as amended by chapter 506 of the laws of 2009, are
amended to read as follows:
2. "Contracting agency" shall mean; (a) a state agency which is a
party or a proposed party to a state contract or, in the case of a state
contract described in paragraph (c) of subdivision thirteen of this
section, shall mean the New York state housing finance agency, housing
trust fund corporation or affordable housing corporation, whichever has
made or proposes to make the grant or loan for the state assisted hous-
ing project; AND (B) A MUNICIPALITY WHICH IS A PARTY OR A PROPOSED PARTY
TO A MUNICIPAL CONTRACT.
3. "Contractor" shall mean an individual, a business enterprise,
including a sole proprietorship, a partnership, a corporation, a not-
for-profit corporation, or any other party to a state OR MUNICIPAL
contract, or a bidder in conjunction with the award of a state OR MUNIC-
IPAL contract or a proposed party to a state OR MUNICIPAL contract.
13. "State contract" shall mean: (a) 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
A. 240 3
expend or does expend funds in return for labor, services including but
not limited to legal, financial and other professional services,
supplies, equipment, materials or any combination of the foregoing, to
be performed for, or rendered or furnished to the contracting agency;
(b) a written agreement in excess of one hundred thousand dollars where-
by a contracting agency is committed to expend or does expend funds for
the acquisition, construction, demolition, replacement, major repair or
renovation of real property and improvements thereon; and (c) a written
agreement in excess of one hundred thousand dollars whereby the owner of
a state assisted housing project is committed to expend or does expend
funds for the acquisition, construction, demolition, replacement, major
repair or renovation of real property and improvements thereon for such
project. FOR THE PURPOSES OF THIS ARTICLE, "STATE CONTRACT" SHALL
INCLUDE MUNICIPAL CONTRACTS AS DESCRIBED IN SUBDIVISION TWENTY-FOUR OF
THIS SECTION.
§ 5. Section 310 of the executive law is amended by adding a new
subdivision 24 to read as follows:
24. "MUNICIPAL CONTRACT" SHALL MEAN: (A) A WRITTEN AGREEMENT OR
PURCHASE ORDER INSTRUMENT, PROVIDING FOR A TOTAL EXPENDITURE IN EXCESS
OF TWENTY-FIVE THOUSAND DOLLARS, WHEREBY A MUNICIPAL CONTRACTING AGENCY
IS COMMITTED TO EXPEND OR DOES EXPEND FUNDS IN RETURN FOR LABOR,
SERVICES INCLUDING BUT NOT LIMITED TO LEGAL, FINANCIAL AND OTHER PROFES-
SIONAL SERVICES, SUPPLIES, EQUIPMENT, MATERIALS OR ANY COMBINATION OF
THE FOREGOING, TO BE PERFORMED FOR, OR RENDERED OR FURNISHED TO THE
MUNICIPAL CONTRACTING AGENCY; (B) A WRITTEN AGREEMENT IN EXCESS OF ONE
HUNDRED THOUSAND DOLLARS WHEREBY A MUNICIPAL CONTRACTING AGENCY IS
COMMITTED TO EXPEND OR DOES EXPEND FUNDS FOR THE ACQUISITION,
CONSTRUCTION, DEMOLITION, REPLACEMENT, MAJOR REPAIR OR RENOVATION OF
REAL PROPERTY AND IMPROVEMENTS THEREON; AND (C) A WRITTEN AGREEMENT IN
EXCESS OF ONE HUNDRED THOUSAND DOLLARS WHEREBY THE OWNER OF A MUNICIPAL
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.
§ 6. This act shall take effect immediately; provided, however, that
section three of this act shall expire on the same date and in the same
manner as article 15-A of the executive law pursuant to subdivision (h)
of section 121 of chapter 261 of the laws of 1988, as amended; provided,
however, that the amendments to sections 310 and 313 of the executive
law made by sections two, four and five of this act shall not affect the
expiration of such sections and shall be deemed expired therewith;
provided, further that the amendments to paragraph b of subdivision 10
of section 163 of the state finance law made by section one of this act
shall not affect the repeal of such section and shall be deemed repealed
therewith or shall be deemed repealed upon the expiration of article
15-A of the executive law, whichever shall occur first.