S T A T E O F N E W Y O R K
________________________________________________________________________
4118
2019-2020 Regular Sessions
I N A S S E M B L Y
February 1, 2019
___________
Introduced by M. of A. KOLB -- read once and referred to the Committee
on Governmental Operations
AN ACT to amend the executive law, in relation to a statewide disparity
study regarding the participation of minority and women-owned business
enterprises in state contracts
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Section 312-a of the executive law is amended by adding a
new subdivision 3 to read as follows:
3. THE DIRECTOR SHALL DEVELOP A PROCEDURE TO OBTAIN DIRECT FEEDBACK
FROM APPLICANTS ON ANY PROBLEMS AND BURDENS THEY ENCOUNTERED DURING THE
APPLICATION PROCESS OR THROUGHOUT THE PROGRAM AND EXAMINE HOW THE ISSUES
CAN BE ADDRESSED TO ELIMINATE FUTURE PROGRAM LIMITATIONS.
§ 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
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] BUSINESSES to furnish services for
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD04189-01-9
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the project, it shall issue a waiver of compliance to the contractor. In
making such determination, the contracting agency shall first consider
the availability 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) THE COMMISSIONER IS AUTHORIZED TO GRANT A PARTIAL OR TOTAL WAIVER
OF SUCH GOOD FAITH EFFORTS TO CONTRACTS WITHIN SUCH A COUNTY, UPON
REQUEST OF THE PRESIDING OFFICER OF SUCH COUNTY AND UPON A FINDING THAT
THERE IS SUCH A SCARCITY OF MINORITY AND WOMEN-OWNED BUSINESS ENTER-
PRISES WITHIN THAT COUNTY AS TO EFFECTIVELY PRECLUDE PARTICIPATION OF
SUCH ENTERPRISES IN SUCH CONTRACTS, AND WHERE NO REASONABLE MEANS OF
ACCOMPLISHING THE PROVISIONS OF THIS SECTION EXIST. THE COMMISSIONER
SHALL PROMULGATE RULES AND REGULATIONS NECESSARY TO IMPLEMENT THESE
PROVISIONS.
§ 3. Subdivision 1 and 3 of section 314 of the executive law, as added
by chapter 261 of the laws of 1988, are amended and a new subdivision
1-a is added, 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. 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. APPLICATIONS SHALL BE MADE AVAILABLE ONLINE AND IN PRINT
AND SPECIFICALLY LIST OUT ALL INFORMATION AND DOCUMENTS REQUIRED BY AN
APPLICANT TO APPLY FOR THE PROGRAM IN CLEAR LANGUAGE.
1-A. THE DIRECTOR SHALL PROMULGATE RULES AND REGULATIONS TO ESTABLISH
AN ONLINE HELP SOURCE. THIS SOURCE SHALL PROVIDE REAL TIME BUSINESS
SUPPORT FOR NEW AND EXISTING CERTIFIED BUSINESSES.
3. Following application for certification pursuant to this section,
the director shall provide the applicant with VERBAL NOTICE OF THE
STATUS OF THE APPLICATION, INCLUDING NOTICE OF ANY OUTSTANDING DEFICIEN-
CIES, WITHIN TWENTY-FOUR HOURS AND written notice of the status of the
application, including notice of any outstanding deficiencies, within
[thirty] SEVEN days. Within [sixty] THIRTY days of submission of a final
completed application, [the director shall provide the applicant with
written notice of a determination by the office approving or denying
such certification] THE APPLICATION SHALL BE DEEMED APPROVED UNLESS THE
DIRECTOR SHALL DENY SUCH CERTIFICATION and, in the event of a denial a
statement setting forth the reasons for such denial. Upon a determi-
nation denying or revoking certification, the business enterprise for
which certification has been so denied or revoked shall, upon written
request made within thirty days from receipt of notice of such determi-
nation, be entitled to a hearing before an independent hearing officer
designated for such purpose by the director. In the event that a request
for a hearing is not made within such thirty day period, such determi-
nation shall be deemed to be final. The independent hearing officer
shall conduct a hearing and upon the conclusion of such hearing, issue a
written recommendation to the director to affirm, reverse or modify such
determination of the director. Such written recommendation shall be
issued to the parties. The director, within thirty days, by order, must
accept, reject or modify such recommendation of the hearing officer and
set forth in writing the reasons therefor. The director shall serve a
copy of such order and reasons therefor upon the business enterprise by
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personal service or by certified mail return receipt requested. The
order of the director shall be subject to review pursuant to article
seventy-eight of the civil practice law and rules.
§ 4. This act shall take effect immediately; provided however, that
the amendments to article 15-A of the executive law made by this act
shall not affect the expiration of such article and shall be deemed to
expire therewith.