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.