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.