Senate Bill S2179

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   2179
 
                        2019-2020 Regular Sessions
 
                             I N  S E N A T E
 
                             January 23, 2019
                                ___________
 
 Introduced  by  Sen.  BAILEY -- read twice and ordered printed, and when
   printed to be committed to the Committee on Finance
 
 AN ACT to amend the executive law and the labor law, in relation to  the
   publication  of information regarding waivers of compliance with state
   contract  provisions  concerning  minority  and  women-owned  business
   enterprise participation requirements
 
   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. 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 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
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD00217-02-9

 S. 2179                             2
 
 businesses  located  outside  the  region in which the contract is to be
 performed to perform the state contract.
   (B) WITHIN THIRTY DAYS OF THE ISSUANCE OF A PARTIAL OR TOTAL WAIVER OF
 COMPLIANCE  AS  PROVIDED  IN  PARAGRAPH  (A)  OF  THIS  SUBDIVISION, THE
 CONTRACTING AGENCY SHALL:
   (I) REPORT THE ISSUANCE OF THE WAIVER TO THE DEPARTMENT OF  LABOR  AND
 TO  THE DIRECTOR OF THE DIVISION OF MINORITY AND WOMEN'S BUSINESS DEVEL-
 OPMENT IN THE DEPARTMENT OF ECONOMIC DEVELOPMENT; AND
   (II) PUBLISH ON THE CONTRACTING AGENCY'S WEBSITE IN A LOCATION  EASILY
 ACCESSIBLE  TO  THE  GENERAL  PUBLIC:  (A)  INFORMATION  IDENTIFYING THE
 CONTRACT, INCLUDING THE AMOUNT OF THE CONTRACT;  (B)  THE  NAME  OF  THE
 CONTRACTOR RECEIVING THE WAIVER; (C) THE DATE OF THE WAIVER; (D) WHETHER
 THE  WAIVER WAS A TOTAL OR PARTIAL WAIVER; AND (E) THE SPECIFIC CONTRACT
 PROVISIONS TO WHICH THE WAIVER APPLIES.
   § 2. Paragraphs (h) and (i) of subdivision 3 of  section  311  of  the
 executive  law,  paragraph  (h) as amended and paragraph (i) as added by
 section 1 of part BB of chapter 59 of the laws of 2006, are amended  and
 a new paragraph (j) is added to read as follows:
   (h)  notwithstanding  the provisions of section two hundred ninety-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  para-
 graph  (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)  to  streamline  the state certification process to accept federal
 and municipal corporation certifications; AND
   (J) TO KEEP A RECORD OF PARTIAL AND TOTAL WAIVERS OF COMPLIANCE ISSUED
 PURSUANT TO PARAGRAPH (B) OF SUBDIVISION SIX OF  SECTION  THREE  HUNDRED
 THIRTEEN  OF  THIS ARTICLE AND TO MAKE SUCH RECORD PUBLICLY AVAILABLE ON
 THE DIVISION'S WEBSITE IN A LOCATION EASILY ACCESSIBLE  TO  THE  GENERAL
 PUBLIC. THE RECORD SHALL PROVIDE, AT A MINIMUM:  (A) INFORMATION IDENTI-
 FYING  THE  CONTRACT, INCLUDING THE AMOUNT OF THE CONTRACT; (B) INFORMA-
 TION IDENTIFYING THE CONTRACTING AGENCY; (C) THE NAME OF THE  CONTRACTOR
 RECEIVING THE WAIVER; AND (D) THE DATE OF THE WAIVER.
   §  3.  Section 21 of the labor law is amended by adding a new subdivi-
 sion 16 to read as follows:
   16. SHALL COMPILE AND PUBLISH, ON AN ANNUAL BASIS, A LIST  OF  WAIVERS
 OF  COMPLIANCE  WITH  STATE  CONTRACT PROVISIONS CONCERNING MINORITY AND
 WOMEN-OWNED  BUSINESS  ENTERPRISE  PARTICIPATION  REQUIREMENTS,   ISSUED
 PURSUANT  TO  PARAGRAPH  (B) OF SUBDIVISION SIX OF SECTION THREE HUNDRED
 THIRTEEN OF THE EXECUTIVE LAW. THE COMMISSIONER OR HIS OR  HER  DELEGATE
 SHALL MAKE SUCH LIST PUBLICLY AVAILABLE ON THE DEPARTMENT'S WEBSITE IN A
 LOCATION  EASILY  ACCESSIBLE  TO  THE  GENERAL  PUBLIC.  THE  LIST SHALL
 PROVIDE, AT A MINIMUM: (A) INFORMATION IDENTIFYING THE CONTRACT, INCLUD-
 ING  THE  AMOUNT  OF  THE  CONTRACT;  (B)  INFORMATION  IDENTIFYING  THE
 CONTRACTING AGENCY; (C) THE NAME OF THE CONTRACTOR RECEIVING THE WAIVER;
 AND (D) THE DATE OF THE WAIVER.
   §  4.  This  act  shall take effect on the sixtieth day after it shall
 have become a law; provided, however, that:
   a. the amendments to subdivision 6 of section 313 of the executive law
 made by section one of this act shall not affect the expiration of arti-
 cle 15-A of such law and shall be deemed to expire therewith;
   b. the amendments to subdivision 3 of section 311 of the executive law
 made by section two of this act shall not affect the expiration of arti-
 cle 15-A of such law and shall be deemed to expire therewith; and

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   c. the director of the  division  of  minority  and  women's  business
 development  and  the commissioner of labor shall immediately promulgate
 rules and regulations and take all other necessary actions to  implement
 the provisions of this act on or before such effective date.