Senate Bill S4512

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   4512
 
                        2017-2018 Regular Sessions
 
                             I N  S E N A T E
 
                             February 16, 2017
                                ___________
 
 Introduced  by  Sen. SANDERS -- read twice and ordered printed, and when
   printed to be committed to the Committee on Finance
 
 AN ACT to amend the executive  law,  in  relation  to  participation  by
   minority  group  members  and  women  with  respect  to  certain state
   contracts; and to amend the state finance law, in relation to perform-
   ance and payment bond requirements
 
   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section  1.  Subdivisions 3 and 4 of section 311 of the executive law,
 subdivision 3 as added by chapter 261 of the laws  of  1988,  paragraphs
 (d)  and  (e)  of  subdivision 3 as amended by chapter 55 of the laws of
 1992, paragraphs (g) and (h) of subdivision 3 as amended  and  paragraph
 (i)  of  subdivision 3 as added by section 1 of part BB of chapter 59 of
 the laws of 2006 and subdivision 4 as amended by chapter 361 of the laws
 of 2009, are amended to read as follows:
   3. The director shall have the following powers and duties:
   (a) to encourage and assist contracting agencies in their  efforts  to
 increase  participation by minority and women-owned business enterprises
 on state contracts and subcontracts [so as] to facilitate the award of a
 fair share of such contracts to them AND TO PROVIDE  ON  THE  DIVISION'S
 WEBSITE  A  LIST  OF  EACH CONTRACTING AGENCY'S MINORITY AND WOMEN-OWNED
 BUSINESS ENTERPRISES CERTIFICATION OUTREACH SEMINARS;
   (b) to develop standardized forms and reporting documents necessary to
 implement this article;
   (c) to conduct educational OUTREACH programs TO ENCOURAGE THE  CERTIF-
 ICATION OF MINORITY AND WOMEN-OWNED BUSINESS ENTERPRISES consistent with
 the purposes of this article;
   (d) to review [periodically] QUARTERLY the practices and procedures of
 each  contracting  agency with respect to compliance with the provisions
 of this article, and  to  require  them  to  file  [periodic]  QUARTERLY
 reports  with  the division of minority and women's business development
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD02076-01-7

 S. 4512                             2
 
 as to the level of minority and women-owned business enterprises partic-
 ipation in the awarding of  agency  contracts  for  goods  and  services
 INCLUDING  BUT  NOT  LIMITED TO THE NUMBER OF STATE CONTRACTS AWARDED TO
 CERTIFIED  MINORITY-OWNED OR WOMEN-OWNED BUSINESS ENTERPRISES, THE MAXI-
 MUM DOLLAR AMOUNT OBLIGATED PURSUANT TO ALL  THOSE  CONTRACTS,  AND  THE
 TOTAL  EXPENDITURES  MADE  PURSUANT TO ALL SUCH CONTRACTS; THE NUMBER OF
 STATE CONTRACTS AWARDED TO CERTIFIED MINORITY  OR  WOMEN-OWNED  BUSINESS
 ENTERPRISES,  THE  MAXIMUM DOLLAR AMOUNT OBLIGATED PURSUANT TO ALL THOSE
 CONTRACTS,  AND  THE  TOTAL  EXPENDITURES  MADE  PURSUANT  TO  ALL  SUCH
 CONTRACTS;  THE NUMBER OF STATE CONTRACTS AWARDED WHICH INCLUDE A UTILI-
 ZATION PLAN FOR BUSINESS PARTICIPATION BY CERTIFIED MINORITY  OR  WOMEN-
 OWNED  BUSINESS  ENTERPRISES,  THE  MAXIMUM AMOUNT OBLIGATED PURSUANT TO
 THOSE CONTRACTS, AND THE TOTAL EXPENDITURES MADE PURSUANT  TO  ALL  SUCH
 CONTRACTS; THE NUMBER OF STATE CONTRACTS AWARDED UPON WHICH A WAIVER WAS
 GRANTED  FROM GOALS REQUIRED BY THE CONTRACTS FOR BUSINESS PARTICIPATION
 BY CERTIFIED MINORITY OR WOMEN-OWNED BUSINESS ENTERPRISES, AND THE MAXI-
 MUM AMOUNT OBLIGATED PURSUANT TO THOSE CONTRACTS; THE  NUMBER  OF  STATE
 CONTRACTS  AWARDED WHICH REQUIRED GOALS FOR EMPLOYMENT OF MINORITY GROUP
 MEMBERS AND WOMEN; AND THE NUMBER OF STATE CONTRACTS AWARDED  FOR  WHICH
 WAIVERS OF EMPLOYMENT GOALS REQUIRED BY THE CONTRACTS HAVE BEEN GRANTED;
   (e)  on  January first of each year report to the governor, THE TEMPO-
 RARY PRESIDENT OF THE SENATE, THE SPEAKER OF THE ASSEMBLY, THE  MINORITY
 LEADERS  OF  THE  SENATE  AND  THE ASSEMBLY, and the chairpersons of the
 senate finance and assembly ways and means  committees  on  the  [level]
 ACTUAL  VERSUS  PROJECTED  LEVELS  of  minority and women-owned business
 enterprises participating in each agency's contracts  for  goods  [and],
 services  AND  CONSTRUCTION,  INCLUDING BUT NOT LIMITED TO THE NUMBER OF
 STATE CONTRACTS AWARDED TO CERTIFIED MINORITY-OWNED OR WOMEN-OWNED BUSI-
 NESS ENTERPRISES, THE MAXIMUM DOLLAR AMOUNT OBLIGATED  PURSUANT  TO  ALL
 THOSE  CONTRACTS,  AND  THE TOTAL EXPENDITURES MADE PURSUANT TO ALL SUCH
 CONTRACTS, and on activities of the office and effort by each  contract-
 ing  agency  to  promote employment of minority group members and women,
 and to promote and increase participation by certified  businesses  with
 respect  to  state  contracts  and  subcontracts so as to facilitate the
 award of a fair share of state contracts to such businesses.  The  comp-
 troller  shall  assist  the  division  in  collecting information on the
 participation of certified business for each  contracting  agency.  Such
 report  may  recommend  new  activities  and  programs to effectuate the
 purposes of this article;
   (f) THE DIRECTOR SHALL LIST IN THE DIVISION'S ANNUAL REPORT THE  NAMES
 OF  NON-COMPLIANT  AGENCIES  AND  THE  EXTENT  OF THEIR NONCOMPLIANCE IN
 SUBMITTING ITS QUARTERLY MINORITY AND  WOMEN-OWNED  BUSINESS  ENTERPRISE
 UTILIZATION REPORTS; AND, SHALL IMPLEMENT A MASTER LIST OF ALL THE STATE
 AGENCIES  REQUIRED TO FILE QUARTERLY COMPLIANCE REPORTS AND SHALL ATTACH
 SUCH LIST TO THE DIVISION'S ANNUAL REPORT.
   (G) to prepare and update  [periodically]  QUARTERLY  a  directory  of
 certified  minority  and  women-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, AND TO USE THIS INFORMATION TO
 CREATE AN INTERNET BASED, CENTRALIZED STATE REGISTRY TO ENABLE APPROPRI-
 ATE  STATE  CERTIFIED  MINORITY  AND WOMEN-OWNED BUSINESS ENTERPRISES TO
 ACCESS CONTRACT AND SUBCONTRACT OPPORTUNITIES;
   [(g)] (H) to appoint independent hearing officers who by  contract  or
 terms of employment shall preside over adjudicatory hearings pursuant to

 S. 4512                             3
 
 section  three  hundred  fourteen of this article for the office and who
 are assigned no other work by the office;
   [(h)]  (I) notwithstanding the provisions of section two hundred nine-
 ty-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
 paragraph  (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)]  (J)  to  streamline  the  state certification process to accept
 federal and municipal corporation certifications.
   4. The director [may] SHALL  provide  assistance  to,  and  facilitate
 access to programs serving certified businesses as well as applicants to
 ensure  that such businesses benefit, as needed, from technical, manage-
 rial and financial, and general business assistance;  training;  market-
 ing;  organization  and  personnel skill development; project management
 assistance; technology assistance; bond and insurance education  assist-
 ance; and other business development assistance. In addition, the direc-
 tor [may] SHALL, either independently or in conjunction with other state
 agencies:
   (a)  develop  a  clearinghouse of information on programs and services
 provided by entities that may assist such businesses;
   (b) review bonding and paperwork requirements imposed  by  contracting
 agencies that may unnecessarily impede the ability of such businesses to
 compete; and
   (c)  seek to maximize utilization by minority and women-owned business
 enterprises of available federal resources including but not limited  to
 federal grants, loans, loan guarantees, surety bonding guarantees, tech-
 nical  assistance,  and programs and services of the federal small busi-
 ness administration.
   § 2. Subdivision 5 of section 312 of the executive law,  as  added  by
 chapter 261 of the laws of 1988, is amended to read as follows:
   5.  The director shall promulgate rules and regulations to ensure that
 contractors and subcontractors undertake programs of affirmative  action
 and equal employment opportunity as required by this section. Such rules
 and regulations as they pertain to any particular agency shall be devel-
 oped  after consultation with contracting agencies. Such rules and regu-
 lations [may] SHALL require a contractor, after notice in a  bid  solic-
 itation,  to  submit  an equal employment opportunity program [after bid
 opening and prior to the award of any contract] AT  THE  TIME  BIDS  ARE
 SUBMITTED,  and  [may]  SHALL require the contractor or subcontractor to
 submit compliance reports relating to the  contractor's  or  subcontrac-
 tor's  operation  and implementation of any equal employment opportunity
 program in effect as of the date the contract is executed. The contract-
 ing agency [may recommend to the director that] SHALL HAVE THE RIGHT  TO
 RECOMMEND  THAT  the  director  take appropriate action according to the
 procedures set forth in section three hundred sixteen  of  this  article
 against  the  contractor for noncompliance with the requirements of this
 section. The contracting agency  shall  be  responsible  for  monitoring
 compliance with this section.
   §  3.  Paragraphs (h) and (i) of subdivision 2-a of section 313 of the
 executive law, as added by chapter 175 of the laws of 2010, are  amended
 and a new paragraph (j) is added to read as follows:
   (h)  provide  for  the  collection  of statistical data by each agency
 concerning actual minority and women-owned business  enterprise  partic-
 ipation; [and]

 S. 4512                             4
 
   (i)  require  each  agency to consult the most current disparity study
 when calculating agency-wide and contract specific  participation  goals
 pursuant to this article[.]; AND
   (J)   ENCOURAGE   JOINT  VENTURES,  PARTNERSHIPS,  AND  MENTOR-PROTEGE
 RELATIONSHIPS AS DEFINED IN SECTION ONE HUNDRED FORTY-SEVEN OF THE STATE
 FINANCE LAW, BETWEEN PRIME  CONTRACTORS  AND  MINORITY  AND  WOMEN-OWNED
 BUSINESS ENTERPRISES.
   §  4.  Subdivision 3 and paragraph (a) of subdivision 5 of section 313
 of the executive law, as amended by chapter 175 of the laws of 2010, are
 amended to read as follows:
   3. Solely for the purpose of providing the opportunity  for  [meaning-
 ful]  INCREASED participation by certified businesses in the performance
 of state contracts as provided in this section,  state  contracts  shall
 include leases of real property by a state agency to a lessee where: the
 terms  of such leases provide for the construction, demolition, replace-
 ment, major repair or renovation of real property and improvements ther-
 eon by such lessee; and  the  cost  of  such  construction,  demolition,
 replacement,  major  repair  or renovation of real property and improve-
 ments thereon shall exceed the sum  of  one  hundred  thousand  dollars.
 Reports  to  the  director  pursuant to section three hundred fifteen of
 this article shall include activities with respect  to  all  such  state
 contracts.  Contracting agencies shall include or require to be included
 with respect to state contracts for the acquisition, construction, demo-
 lition, replacement, major repair or renovation  of  real  property  and
 improvements  thereon,  such  provisions  as [may] SHALL be necessary to
 effectuate the provisions of this section in every bid specification and
 state contract, including, but not limited to: (a) provisions  requiring
 contractors  to make a good faith effort to solicit active participation
 by enterprises identified  in  the  directory  of  certified  businesses
 provided  to  the  contracting  agency  by the office; (b) requiring the
 parties to agree as a condition of entering into such  contract,  to  be
 bound  by  the provisions of section three hundred sixteen of this arti-
 cle; and (c) requiring the contractor  to  include  the  provisions  set
 forth in paragraphs (a) and (b) of this subdivision in every subcontract
 in  a manner that the provisions will be binding upon each subcontractor
 as to work in connection with such contract. Provided, however, that  no
 such  provisions  shall be binding upon contractors or subcontractors in
 the performance of work or the provision of services that are unrelated,
 separate or distinct from the state contract as expressed by its  terms,
 and  nothing  in  this  section  shall  authorize  the  director  or any
 contracting agency to impose any requirement on a contractor or  subcon-
 tractor except with respect to a state contract.
   (a)  Contracting  agencies  shall administer the rules and regulations
 promulgated by the director in a good faith effort to meet  the  maximum
 feasible  portion of the agency's goals adopted pursuant to this article
 and the regulations of the director. Such rules and  regulations:  shall
 require  a  contractor  to  submit  a  utilization  plan [after bids are
 opened] AT THE TIME BIDS ARE SUBMITTED, when  bids  are  required[,  but
 prior  to  the award of a state contract]; shall require the contracting
 agency to review the utilization plan submitted by the contractor and to
 post the utilization plan and any waivers of compliance issued  pursuant
 to  subdivision  six  of  this section on the website of the contracting
 agency within a reasonable period of time as established by  the  direc-
 tor;  shall  require  the contracting agency to notify the contractor in
 writing within a period of time specified by  the  director  as  to  any
 deficiencies  contained  in  the  contractor's  utilization  plan; shall

 S. 4512                             5
 
 require remedy thereof within a period of time specified by  the  direc-
 tor; shall require the contractor to submit [periodic] QUARTERLY compli-
 ance  reports relating to the operation and implementation of any utili-
 zation  plan;  shall  not  allow any automatic waivers but shall allow a
 contractor to apply for a partial or total waiver of  the  minority  and
 women-owned  business  enterprise participation requirements pursuant to
 subdivisions six and seven of this section; shall allow a contractor  to
 file a complaint with the director pursuant to subdivision eight of this
 section in the event a contracting agency has failed or refused to issue
 a  waiver  of  the  minority and women-owned business enterprise partic-
 ipation requirements or has denied such request for a waiver; and  shall
 allow  a contracting agency to file a complaint with the director pursu-
 ant to subdivision nine of this section in the  event  a  contractor  is
 failing  or has failed to comply with the minority and women-owned busi-
 ness enterprise  participation  requirements  set  forth  in  the  state
 contract where no waiver has been granted.
   §  5. Subdivisions 1 and 3 of section 315 of the executive law, subdi-
 vision 1 as added by chapter 261 of the laws of 1988 and  subdivision  3
 as amended by chapter 175 of the laws of 2010, are amended and three new
 subdivisions 2-a, 3-a and 8 are added to read as follows:
   1.  Each  contracting agency shall be responsible for monitoring state
 contracts under its jurisdiction, and recommending matters to the office
 respecting non-compliance with the provisions of this  article  so  that
 the  office  [may]  SHALL take such action as [is appropriate] STATED IN
 SUBDIVISION THREE OF SECTION THREE HUNDRED SIXTEEN OF THIS ARTICLE. EACH
 CONTRACTING AGENCY SHALL HAVE THE RIGHT TO RECOMMEND THAT  THE  DIRECTOR
 IMPOSE  A  SANCTION,  PENALTY,  OR  FINE FOR THREE OR MORE VIOLATIONS OF
 SUBDIVISION ONE OF SECTION THREE HUNDRED SIXTEEN  OF  THIS  ARTICLE,  to
 insure  compliance  with  the  provisions of this article, the rules and
 regulations  of  the  director  issued  hereunder  and  the  contractual
 provisions  required  pursuant to this article. All contracting agencies
 shall comply with the rules  and  regulations  of  the  office  and  are
 directed  to cooperate with the office and to furnish to the office such
 information and assistance as may be required in the performance of  its
 functions under this article.
   2-A.  EACH CONTRACTING AGENCY WHEN NOTIFYING A CONTRACTOR OF A WINNING
 BID  AWARD SHALL ALSO NOTIFY ANY MINORITY OR WOMEN-OWNED BUSINESS ENTER-
 PRISES AFFILIATED WITH SUCH CONTRACTOR, PER THE  CONTRACTOR'S  SUBMITTED
 UTILIZATION PLAN, OF SUCH CONTRACTOR'S RECEIPT OF THE WINNING BID AWARD.
   3.  (A)  Each  contracting  agency shall report to THE COMMISSIONER OF
 ECONOMIC DEVELOPMENT, THE  COMMISSIONER  OF  GENERAL  SERVICES  AND  the
 director  with respect to activities undertaken to promote employment of
 minority group members and women and promote and increase  participation
 by  certified  businesses  with  respect  to state contracts and subcon-
 tracts. Such reports shall be  submitted  [periodically,  but  not  less
 frequently  than  annually,  as required by the director,] QUARTERLY and
 shall include such information as  is  necessary  for  the  director  to
 determine  whether  the  contracting agency and contractor have complied
 with the purposes of this article, including,  without  limitation,  THE
 NUMBER  OF  STATE CONTRACTS AWARDED TO CERTIFIED MINORITY OR WOMEN-OWNED
 BUSINESS ENTERPRISES; THE MAXIMUM DOLLAR AMOUNT  OBLIGATED  PURSUANT  TO
 ALL  THOSE  CONTRACTS,  AND  THE TOTAL EXPENDITURES MADE PURSUANT TO ALL
 SUCH CONTRACTS; THE NUMBER OF STATE CONTRACTS AWARDED  WHICH  INCLUDE  A
 UTILIZATION  PLAN  FOR  BUSINESS  PARTICIPATION BY CERTIFIED MINORITY OR
 WOMEN-OWNED BUSINESS ENTERPRISES, THE MAXIMUM AMOUNT OBLIGATED  PURSUANT
 TO THOSE CONTRACTS, AND THE TOTAL EXPENDITURES MADE PURSUANT TO ALL SUCH

 S. 4512                             6
 
 CONTRACTS;  a summary of all waivers of the requirements of subdivisions
 six and seven of section three hundred thirteen of this article  allowed
 by  the  contracting  agency  during  the  period covered by the report,
 including  a  description  of the basis of the waiver request [and], the
 rationale for granting any such waiver AND THE MAXIMUM AMOUNT  OBLIGATED
 PURSUANT TO THOSE CONTRACTS; THE NUMBER OF STATE CONTRACTS AWARDED WHICH
 REQUIRED  GOALS  FOR EMPLOYMENT OF MINORITY GROUP MEMBERS AND WOMEN; AND
 THE NUMBER OF STATE CONTRACTS AWARDED FOR WHICH  WAIVERS  OF  EMPLOYMENT
 GOALS  REQUIRED  BY  THE CONTRACTS HAVE BEEN GRANTED.  Each agency shall
 also include in such annual report whether or not it has  been  required
 to prepare a remedial plan, and, if so, the plan and the extent to which
 the agency has complied with each element of the plan.
   (B)  IN ADDITION, EACH CONTRACTING AGENCY SHALL BE RESPONSIBLE FOR THE
 COST OF AN  INDEPENDENT  AUDIT  RESULTING  FROM  THE  AGENCY'S  REPEATED
 VIOLATIONS OF THIS SECTION.
   3-A.  WITHIN  THIRTY  DAYS  AFTER  COMPLETION, A COPY OF THE QUARTERLY
 MINORITY AND WOMEN-OWNED BUSINESS ENTERPRISE REPORT SHALL BE TRANSMITTED
 TO THE COMMISSIONER OF ECONOMIC DEVELOPMENT, THE COMMISSIONER OF GENERAL
 SERVICES, AND THE DIRECTOR. A CONTRACTING AGENCY, WHICH HAS NOT LET MORE
 THAN TWO MILLION DOLLARS IN SERVICE AND/OR CONSTRUCTION CONTRACTS WITHIN
 THE APPLICABLE PERIOD MAY APPLY TO THE COMMISSIONER OF ECONOMIC DEVELOP-
 MENT, AND THE DIRECTOR FOR A WAIVER OF THE REQUIRED ANNUAL  REPORT.  THE
 WAIVER  APPLICATION  SHALL  BE  MADE ON SUCH FORM AS THE COMMISSIONER OF
 ECONOMIC DEVELOPMENT AND THE DIRECTOR MAY PRESCRIBE.
   8. IF A  CONTRACTING  AGENCY  SHALL  FAIL  TO  FILE  OR  SUBSTANTIALLY
 COMPLETE,  AS DETERMINED BY THE COMMISSIONER OF ECONOMIC DEVELOPMENT AND
 THE DIRECTOR, THE REPORT REQUIRED BY THIS SECTION,  THE  DIRECTOR  SHALL
 PROVIDE  NOTICE  TO  THE  CONTRACTING AGENCY. THE NOTICE SHALL STATE THE
 FOLLOWING:
   (A) THAT THE FAILURE TO FILE A REPORT AS REQUIRED IS  A  VIOLATION  OF
 THIS  SECTION,  OR  IN THE CASE OF AN INSUFFICIENT REPORT, THE MANNER IN
 WHICH THE REPORT SUBMITTED IS DEFICIENT;
   (B) THAT THE CONTRACTING AGENCY HAS THIRTY DAYS TO  COMPLY  WITH  THIS
 SECTION  OR  PROVIDE AN ADEQUATE WRITTEN EXPLANATION TO THE COMMISSIONER
 OF ECONOMIC DEVELOPMENT AND THE COMMISSIONER OF GENERAL SERVICES AND THE
 DIRECTOR OF THE  CONTRACTING  AGENCY'S  REASONS  FOR  THE  INABILITY  TO
 COMPLY; AND
   (C)  THAT THE CONTRACTING AGENCY'S CONTINUED FAILURE TO PROVIDE EITHER
 THE REQUIRED REPORT OR AN ADEQUATE EXPLANATION WILL RESULT IN  AN  INDE-
 PENDENT  AUDIT  OF  THE  CONTRACTING  AGENCY, THE COST OF WHICH SHALL BE
 BORNE BY THE CONTRACTING AGENCY.
   § 6. Section 316 of the executive law, as amended by  chapter  175  of
 the laws of 2010, is amended to read as follows:
   §  316.  [Enforcement]  VIOLATIONS AND ENFORCEMENT.   1. IT SHALL BE A
 VIOLATION FOR ANY PERSON OR ENTITY TO:
   A. INTENTIONALLY USE OR ACQUIRE AN MWBE NAME THROUGH DECEIT  OR  OTHER
 DISHONEST MEANS IN ORDER TO NEGOTIATE A LOWER BID FROM A NON-MWBE.
   B.  SUBMIT  TO  THE  DEPARTMENT  OF ECONOMIC DEVELOPMENT, DOCUMENTS OR
 OTHER MATERIAL AS EVIDENCE OF A GOOD FAITH EFFORT  TO  COMPLY  WITH  THE
 PROVISIONS  OF  THIS  ARTICLE  WITHOUT, IN FACT, HAVING ENTERED INTO ANY
 CONTRACT, AGREEMENT, SUBCONTRACT, OR SUB-AGREEMENT WITH AN MWBE FOR  THE
 USE  OR  PURCHASE OF SUCH BUSINESS ENTERPRISE'S GOODS OR SERVICES IN THE
 PERFORMANCE OF THE AWARDED STATE CONTRACT.
   C. FAIL TO PROVIDE  AN  MWBE  WITH  SUFFICIENT  INFORMATION  OR  OTHER
 REQUIRED  SUPPORTING  DOCUMENTATION  IN  ORDER FOR THE MWBE TO PREPARE A
 PROPER BID.

 S. 4512                             7
 
   2. 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 article 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  seven-
 ty-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.
   3.  THE DIRECTOR SHALL IMPOSE A SANCTION,  PENALTY,  OR  FINE  ON  ANY
 INDIVIDUAL  OR  ENTITY THAT HAS THREE OR MORE VIOLATIONS OF THIS ARTICLE
 WITHIN FIVE YEARS. SUCH FINE SHALL BE PAID BY SUCH INDIVIDUAL OR ENTITY.
 SUCH FINE SHALL BE REMITTED AND DEPOSITED INTO A FUND, TO BE MANAGED  BY
 THE  COMMISSIONER  OF ECONOMIC DEVELOPMENT.  SUCH FUNDS SHALL BE USED TO
 SUBSIDIZE THE FACILITATION OF THE  PROVISIONS  OF  THIS  ARTICLE.  OTHER
 SANCTIONS SHALL INCLUDE BARRING SUCH ENTITY OR INDIVIDUAL FROM CONTRACT-
 ING WITH SUCH AGENCY FOR A PERIOD NOT TO EXCEED FIVE YEARS.
   §  7.  Subdivision 1 of section 137 of the state finance law, as sepa-
 rately amended by section 17 of part MM of chapter 57 and chapter 619 of
 the laws of 2008, is amended to read as follows:
   1. In addition to other bond or bonds, if any, required by law for the
 completion of a work specified in a contract for the  prosecution  of  a
 public  improvement for the state of New York a municipal corporation, a

 S. 4512                             8
 
 public benefit corporation or a commission appointed pursuant to law, or
 in the absence of any such requirement, the comptroller may or the other
 appropriate official, respectively, shall nevertheless require prior  to
 the  approval of any such contract a bond guaranteeing prompt payment of
 moneys due to all persons furnishing labor or materials to the  contrac-
 tor or any subcontractors in the prosecution of the work provided for in
 such  contract. Whenever a municipal corporation issues a permit subject
 to compliance with section two hundred twenty of  the  labor  law,  such
 permittee  or  its contractor or subcontractors furnishing workers shall
 post a payment bond subject to this section. Provided, however, that all
 performance bonds and payment bonds may, at the discretion of  the  head
 of the state agency, public benefit corporation or commission, or his or
 her  designee,  be dispensed with for the completion of a work specified
 in a contract for the prosecution of a public improvement for the  state
 of  New  York for which bids are solicited where the aggregate amount of
 the contract is under one hundred thousand dollars and provided further,
 that in a case where  the  contract  is  not  subject  to  the  multiple
 contract  award  requirements of section one hundred thirty-five of this
 article, such requirements may be dispensed with where the head  of  the
 state agency, public benefit corporation or commission finds it to be in
 the  public  interest  and  where  the  aggregate amount of the contract
 awarded or to be awarded is less than two hundred thousand dollars. IN A
 CASE WHERE A CONTRACT IS AWARDED TO A SMALL BUSINESS  CONCERN  OR  TO  A
 MINORITY  OR  WOMEN-OWNED  BUSINESS  CONCERN,  ALL PERFORMANCE BONDS AND
 PAYMENT BONDS MAY BE DISPENSED WITH WHEN THE  AGGREGATE  AMOUNT  OF  THE
 CONTRACT IS UNDER FIVE HUNDRED THOUSAND DOLLARS. ADVERTISEMENTS FOR BIDS
 SHALL  PROVIDE  INFORMATION  AS TO THE REQUIREMENTS FOR, OR DISPENSATION
 OF, PERFORMANCE AND PAYMENT BONDS. Provided  further,  that  in  a  case
 where a performance or payment bond is dispensed with, twenty per centum
 may  be retained from each progress payment or estimate until the entire
 contract work has been completed and accepted, at which time the head of
 the state agency, public benefit corporation or commission shall,  pend-
 ing  the  payment  of the final estimate, pay not to exceed seventy-five
 per centum of the amount of the retained percentage.
   § 8. Subdivision 4 of section 139-f  of  the  state  finance  law,  as
 amended  by  chapter  83  of  the  laws  of  1995, is amended to read as
 follows:
   4. Notwithstanding any other provision of this section or  other  law,
 requirements  for the furnishing of a performance bond or a payment bond
 may be dispensed with at the discretion of the head of the state  agency
 or  corporation,  or  his  or  her designee, where the public owner is a
 state agency or corporation  described  in  subdivision  one-a  of  this
 section  and  the  aggregate  amount  of  the  contract awarded or to be
 awarded is under fifty  thousand  dollars  and,  in  a  case  where  the
 contract  is  not subject to the multiple contract award requirements of
 section one hundred thirty-five of this article, such  requirements  may
 be  dispensed  with  where  the  head of the state agency or corporation
 finds it to be in the public interest and where the aggregate amount  of
 the  contract  awarded  or  to  be awarded is under two hundred thousand
 dollars. IN A CASE WHERE A CONTRACT  IS  AWARDED  TO  A  SMALL  BUSINESS
 CONCERN  OR  TO A MINORITY OR WOMEN-OWNED BUSINESS CONCERN, ALL PERFORM-
 ANCE BONDS AND PAYMENT BONDS MAY BE DISPENSED WITH  WHEN  THE  AGGREGATE
 AMOUNT  OF  THE  CONTRACT IS UNDER FIVE HUNDRED THOUSAND DOLLARS. ADVER-
 TISEMENTS FOR PROPOSALS SHALL PROVIDE INFORMATION AS TO THE REQUIREMENTS
 FOR,  OR  DISPENSATION  OF,  PERFORMANCE  AND  PAYMENT  BONDS.  Provided
 further, that in a case where a performance or payment bond is dispensed

 S. 4512                             9
 
 with,  twenty  per  centum may be retained from each progress payment or
 estimate until the entire contract work has been completed and accepted,
 at which time the head of the state agency or corporation shall, pending
 the  payment  of  the final estimate, pay not to exceed seventy-five per
 centum of the amount of the retained percentage.
   § 9. The opening paragraph of section 139-g of the state finance  law,
 as  amended  by  chapter  636 of the laws of 2003, is amended to read as
 follows:
   In every state agency, department and authority  which  has  let  more
 than two million dollars in service and construction contracts AND STATE
 ASSISTED PROJECT CONTRACTS in the prior fiscal year, the chief executive
 officer  of  that agency, department or authority shall, with respect to
 those contracts AND STATE ASSISTED PROJECT CONTRACTS let by his  OR  HER
 agency, department or authority:
   § 10. The opening paragraph of subdivision (b) of section 139-g of the
 state  finance  law,  as  amended by chapter 636 of the laws of 2003, is
 amended to read as follows:
   identify all small-business and  certified  women  and  minority-owned
 business  concerns which, in the judgment of the chief executive officer
 of that agency, department or authority, can bid on those contracts  AND
 STATE  ASSISTED  PROJECT CONTRACTS which are usually and customarily let
 by that agency, department or authority,  OR  IN  WHICH  THAT  AUTHORITY
 PROVIDES  A  GRANT  OR  LOAN  OR TAX EXEMPT FINANCING, with a reasonable
 expectation of success. Such chief executive officers  shall  carry  out
 the provisions of this subdivision:
   §  11.   Section 139-g of the state finance law is amended by adding a
 new subdivision (e) to read as follows:
   (E) FOR THE PURPOSES OF THIS SECTION, THE FOLLOWING WORDS  SHALL  HAVE
 THE FOLLOWING MEANINGS:
   (I) "STATE ASSISTED PROJECT CONTRACT" SHALL MEAN ANY WRITTEN AGREEMENT
 ARISING  OUT  OF  A  STATE  ASSISTED  HOUSING  PROJECT OR STATE ASSISTED
 ECONOMIC DEVELOPMENT PROJECT OR STATE ASSISTED HIGHER EDUCATION  PROJECT
 OR  STATE  ASSISTED  HOSPITAL OR HEALTH CARE FACILITY PROJECT, FOR WHICH
 THE TOTAL PROJECT COST EXCEEDS TWO MILLION DOLLARS  AND  FOR  WHICH  THE
 PROJECT  OWNER IS COMMITTED TO SPEND OR DOES EXPEND FUNDS FOR THE ACQUI-
 SITION, CONSTRUCTION, DEMOLITION, REPLACEMENT, MAJOR  REPAIR,  OR  RENO-
 VATION OF REAL PROPERTY AND IMPROVEMENTS THEREON FOR SUCH PROJECT.
   (II)  "STATE ASSISTED HOUSING PROJECT" SHALL MEAN THOSE PROJECTS WHICH
 RECEIVE FROM THE  NEW  YORK  STATE  HOUSING  FINANCE  AGENCY  TAX-EXEMPT
 FINANCING FOR ALL OR PART OF THE TOTAL PROJECT COST.
   (III)  "STATE  ASSISTED ECONOMIC DEVELOPMENT PROJECT" SHALL MEAN THOSE
 PROJECTS WHICH RECEIVE FROM THE NEW YORK FOUNDATION OF SCIENCE TECHNOLO-
 GY AND INNOVATION, OR THE URBAN DEVELOPMENT CORPORATION AND ITS  SUBSID-
 IARIES  A  GRANT  OR LOAN OR TAX-EXEMPT FINANCING FOR ALL OR PART OF THE
 TOTAL PROJECT COST.
   (IV) "STATE  ASSISTED  HIGHER  EDUCATION  PROJECT"  SHALL  MEAN  THOSE
 PROJECTS  WHICH RECEIVE FROM THE DORMITORY AUTHORITY OF THE STATE OF NEW
 YORK A GRANT OR LOAN OR TAX-EXEMPT FINANCING FOR  ALL  OR  PART  OF  THE
 TOTAL PROJECT COST.
   (V)  "STATE  ASSISTED  HOSPITAL OR HEALTH CARE FACILITY PROJECT" SHALL
 MEAN THOSE PROJECTS WHICH RECEIVE FROM THE DORMITORY  AUTHORITY  OF  THE
 STATE  OF  NEW  YORK  A GRANT OR LOAN OR TAX-EXEMPT FINANCING FOR ALL OR
 PART OF THE TOTAL PROJECT COST.
   § 12. This act shall take effect immediately,  provided  however,  the
 amendments  to  article  15-A  of the executive law made by sections one

 S. 4512                            10
 
 through six of this act shall not affect the expiration of such  article
 and shall expire therewith.