NY State Senate Bill 2019-S6046

Senate Bill S6046

2019-2020 Legislative Session

Relates to the minority and women-owned business enterprise program and extends authorization for the minority and women-owned business enterprise program

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Archive: Last Bill Status - In Senate Committee Finance Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jan 08, 2020	referred to finance
May 16, 2019	referred to finance

2019-S6046 (ACTIVE) - Details

Current Committee:: Senate Finance
Law Section:: Executive Law
Laws Affected:: Amd §§310, 312-a, 313 & 315, Exec L; amd §121, Chap 261 of 1988

2019-S6046 (ACTIVE) - Summary

Relates to the minority and women-owned business enterprise program and extends authorization for the minority and women-owned business enterprise program.

2019-S6046 (ACTIVE) - Sponsor Memo

                                
 
BILL NUMBER: S6046

SPONSOR: KAPLAN
 
TITLE OF BILL:

An act to amend the executive law, in relation to the minority and
women-owned business enterprise program; to amend chapter 261 of the
laws of 1988, amending the state finance law and other laws relating to
the New York state infrastructure trust fund, in relation to the effec-
tiveness thereof; to amend the executive law, in relation to goals and
requirements of contractors and agencies under the minority and women-
owned business enterprise program; and to amend the executive law, in
relation to reporting requirements under the minority and women-owned
business enterprise program

 
PURPOSE:

This legislation seeks to extend the MWBE program, while making statuto-
ry updates related to the 2016 study, as well as commissioning a new
study of the program.

SUMMARY OF PROVISIONS:

Section 1 of the bill amends paragraph (b) of subdivision 8 and subdivi-
sion 21 and 2 of section 310 of the executive law, in subdivision (b)
change is made from Hispanic to Hispanic/Latino. Subdivision 21 updates
references to reflect the 2016 disparity study as opposed to the 2010
study. Subdivision 22 changes utilizing to mentoring, as well as adding
a requirement to require information regarding the representation of
minority group members and women as members of the board of directors or
executive officers of the contractor

Section 2 of the bill amends Section 312-a of the executive law. This
section commissions a new statewide disparity study due no later than
August 15, 2023. Section 3 amends the state finance law to require
provisions of law to expire on April 15 2024, unless a statewide dispar-
ity study regarding the participation of MWBE in state contracts is
delivered to the Legislature by its August 15 due date then the
provisions shall be expired December 31, 2024. Section 4 amends subdivi-
sions 1, 1-a,1-b,2,2-a,3,4,5 of section 313 of the executive law. This
section updates 2010 dates to 2016 with respect to the disparity study
as well changing recommended results and removing goal percentages. This
section also includes language to ensure goals are set up pursuant to
the 2016 disparity study.  Further, allows for rules and regulations to
be promulgated pursuant to the 2016 disparity study. Further adds a new
(e)to establish criteria for agencies to credit the participation of
MWBE towards the achievement of MWBE goals on a state contract based on
the commercially useful function provided by each MWBE on the contract.
Subdivision 4 clarifies that the contracting agency shall implement a
program that will enable the agency to determine the appropriate goal
for participation of minority owned and women owned business enter-
prises. Subdivision 5 removes language within a reasonable period of
time as established by the director as it relates to waivers of compli-
ance being posted.

Section 5 amends Section 315 of the Executive law, subdivision 3 as
amended and subdivisions 4,5,6, and 7. Section 315 addresses a word
usage error of insure to ensure. This section also requires each
contracting agency when notifying a contractor of a winning bid shall
also notify any MWBE affiliated with such contractor per the contrac-
tor's utilization plan. Subdivision 3 changes verbiage to require
reports undertaken to promote employment of minority group members and
women to promote employment and increase participation with respect to
contracts and subcontracts shall be no later than January 15 of each
year, as opposed to the current more ambiguous of annual as required by
the director. This section also requires the report to also include any
instances in which the contracting agency has deemed a contractor to
have committed a violation pursuant to section 316 of this article.
Subdivision 4 requires in the division of minority and women's business
development annual report to include a listing of annual goals compared
to actual participation for each agency, the total number of certified
MWBE for that reporting year as well as the total dollar value of state
expenditures on certified WBE business contracts and subcontracts for
the previous five years. This subdivision also includes new requirements
such as requiring a written rationale for instances where an agency's
participation goals or remedial plans do not meet the goals supported by
the 2016 disparity study, providing a written explanation of the reason
that agency expenditures are exempt from complying with participation
goals. Also requires specific information on each contract to be
included, such as whether it was for goods or services, if the contract
was awarded to a certified minority owned or women owns business, and to
identify which minority group. Name and address of prime and subcontrac-
tors, dollar value of each contract and a summary of all certified MWBE
enterprises categorized by the minority group member that each MWBE
relies on for certification and by gender. This section also requires in
the annual report to the Legislature information on which expenditures
are exempt from participation goals and the rationale for such
exemption. The report shall itemize the total value for design-build
contracts used by each agency, and each contracting agency authorized to
enter into design-build shall itemize the rate of MWBE participation on
design-build contracts, design-bid-build contracts, as well as the agen-
cy's overall participation rate.

Section 6 is the effective date.

 
JUSTIFICATION:

This legislation seeks to extend New York's MWBE program while making
improvements on the laws currently governing the program as derived from
the 2016 disparity study. These goals are aimed at improving MWBE
participation in the program while increasing disclosure on the factors
influencing participation and non-participation in the program. This
legislation seeks to continue to promote equality of economic opportu-
nities for MWBEs and to eliminate barriers to their participation in
state contracts. This legislation seeks to ensure the MWBE program
continues in existence while making identified improvements. However,
this legislation does not purport to contain a full and extensive list
of positive reforms that should be fully considered.

 
LEGISLATIVE HISTORY:

New Bill.

 
FISCAL IMPLICATIONS:

Minimal.

 
EFFECTIVE DATE:
This act shall take effect immediately

2019-S6046 (ACTIVE) - Bill Text download pdf

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   6046
 
                        2019-2020 Regular Sessions
 
                             I N  S E N A T E
 
                               May 16, 2019
                                ___________
 
 Introduced  by  Sen.  KAPLAN -- 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  the  minority  and
   women-owned  business  enterprise program; to amend chapter 261 of the
   laws of 1988, amending the state finance law and other  laws  relating
   to  the  New  York state infrastructure trust fund, in relation to the
   effectiveness thereof; to amend the  executive  law,  in  relation  to
   goals  and requirements of contractors and agencies under the minority
   and women-owned business enterprise program; and to amend  the  execu-
   tive law, in relation to reporting requirements under the minority and
   women-owned business enterprise program
 
   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. Paragraph (b) of subdivision 8 and subdivisions 21  and  22
 of  section  310 of the executive law, paragraph (b) of subdivision 8 as
 added by chapter 261 of the laws of 1988 and subdivisions 21 and  22  as
 added  by  chapter  175  of  the  laws  of  2010, are amended to read as
 follows:
   (b) [Hispanic]  HISPANIC/LATINO  persons  of  Mexican,  Puerto  Rican,
 Dominican, Cuban, Central or South American of either Indian or Hispanic
 origin, regardless of race;
   21.  "The  [2010] TWO THOUSAND SIXTEEN disparity study" shall refer to
 the disparity study commissioned by the [empire state development corpo-
 ration] DEPARTMENT OF ECONOMIC DEVELOPMENT, pursuant  to  section  three
 hundred  twelve-a  of this article, and published on [April twenty-nine,
 two thousand ten] JUNE THIRTIETH, TWO THOUSAND SEVENTEEN.
   22. "Diversity practices" shall mean the  contractor's  practices  and
 policies with respect to:
   (a)  [utilizing] MENTORING certified minority and women-owned business
 enterprises in contracts awarded by  a  state  agency  or  other  public
 corporation, as subcontractors and suppliers; [and]
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.

                                                            LBD11788-02-9

 S. 6046                             2
 
   (b)  entering  into  partnerships,  joint  ventures  or  other similar
 arrangements with certified minority  and  women-owned  business  enter-
 prises  as  defined in this article or other applicable statute or regu-
 lation governing an entity's  utilization  of  minority  or  women-owned
 business enterprises; AND
   (C)  THE REPRESENTATION OF MINORITY GROUP MEMBERS AND WOMEN AS MEMBERS
 OF THE BOARD OF DIRECTORS OR EXECUTIVE OFFICERS OF THE CONTRACTOR.
   § 2. Section 312-a of the executive law, as amended by  section  1  of
 part Q of chapter 58 of the laws of 2015, is amended to read as follows:
   §  312-a.  Study  of  minority  and  women-owned  business [enterprise
 programs] ENTERPRISES. 1. The director of the division of  minority  and
 women-owned business development [in the department of economic develop-
 ment]  is  authorized and directed to recommission a statewide disparity
 study regarding the participation of minority and  women-owned  business
 enterprises in state contracts since the amendment of this article to be
 delivered   to  the  governor  and  legislature  no  later  than  August
 fifteenth, two thousand  [sixteen]  TWENTY-THREE.  The  study  shall  be
 prepared by an entity independent of the department and selected through
 a request for proposal process. The purpose of such study is:
   (a)  to  determine  whether there is a disparity between the number of
 qualified minority and women-owned businesses ready, willing and able to
 perform state contracts for commodities, services and construction,  and
 the  number  of  such  contractors  actually  engaged  to  perform  such
 contracts, and to determine what changes, if  any,  should  be  made  to
 state  policies affecting minority and women-owned business enterprises;
 and (b) to determine whether there is a disparity between the number  of
 qualified  minorities and women ready, willing and able, with respect to
 labor markets, qualifications and other relevant factors, to participate
 in contractor employment, management level bodies, including  boards  of
 directors,  and as senior executive officers within contracting entities
 and the number of such group members  actually  employed  or  affiliated
 with  state  contractors in the aforementioned capacities, and to deter-
 mine what changes, if any, should be made to  state  policies  affecting
 minority  and  women group populations with regard to state contractors'
 employment and appointment practices relative to diverse group  members.
 Such  study  shall  include,  but  not be limited to, an analysis of the
 history of minority and women-owned  business  enterprise  programs  and
 their effectiveness as a means of securing and ensuring participation by
 minorities and women, and a disparity analysis by market area and region
 of  the  state.  Such  study  shall  distinguish between minority males,
 minority females and non-minority females in the statistical analysis.
   2. The director of the division of minority and  women-owned  business
 development  is directed to transmit the disparity study to the governor
 and the legislature  not  later  than  August  fifteenth,  two  thousand
 [sixteen]  TWENTY-THREE,  and  to  post  the study on the website of the
 department of economic development.
   § 3. The opening paragraph of subdivision (h) of section 121 of  chap-
 ter  261  of  the laws of 1988, amending the state finance law and other
 laws relating to the  New  York  state  infrastructure  trust  fund,  as
 amended  by  section 1 of part OOO of chapter 59 of the laws of 2018, is
 amended to read as follows:
   The provisions of sections sixty-two through  sixty-six  of  this  act
 shall expire APRIL FIFTEENTH, TWO THOUSAND TWENTY-FOUR, PROVIDED, HOWEV-
 ER, THAT IF THE STATEWIDE DISPARITY STUDY REGARDING THE PARTICIPATION OF
 MINORITY   AND  WOMEN-OWNED  BUSINESS  ENTERPRISES  IN  STATE  CONTRACTS
 REQUIRED PURSUANT TO SUBDIVISION 1 OF SECTION 312-A OF THE EXECUTIVE LAW

 S. 6046                             3
 
 IS COMPLETED AND DELIVERED TO THE GOVERNOR AND  THE  LEGISLATURE  ON  OR
 BEFORE  AUGUST  FIFTEENTH TWO THOUSAND TWENTY-THREE, THEN THE PROVISIONS
 OF SECTIONS SIXTY-TWO THROUGH SIXTY-SIX OF THIS ACT SHALL EXPIRE AND  BE
 DEEMED  REPEALED on December thirty-first, two thousand [nineteen] TWEN-
 TY-FOUR, except that:
   § 4. Subdivisions 1, 1-a, 1-b, 2, 2-a, 3, 4 and 5 of  section  313  of
 the  executive  law,  subdivisions 1, 3, 4 and 5 as amended and subdivi-
 sions 1-a, 1-b, 2 and 2-a as added by chapter 175 of the laws  of  2010,
 are amended and a new subdivision 1-c is added to read as follows:
   1.  Goals  and requirements for agencies and contractors.  Each agency
 shall structure procurement procedures for contracts  made  directly  or
 indirectly  to minority and women-owned business enterprises, in accord-
 ance with the findings of  the  two  thousand  [ten]  SIXTEEN  disparity
 study,  consistent  with  the  purposes  of  this article, to attempt to
 achieve the [following] RECOMMENDED results with regard to total  annual
 statewide procurement FOR EACH OF THE FOLLOWING:
   (a) construction industry for certified minority-owned business enter-
 prises[: fourteen and thirty-four hundredths percent];
   (b)  construction  industry  for certified women-owned business enter-
 prises[: eight and forty-one hundredths percent];
   (c) construction related professional services industry for  certified
 minority-owned business enterprises[: thirteen and twenty-one hundredths
 percent];
   (d)  construction related professional services industry for certified
 women-owned business  enterprises[:  eleven  and  thirty-two  hundredths
 percent];
   (e)  non-construction  related services industry for certified minori-
 ty-owned business enterprises[: nineteen and sixty hundredths percent];
   (f) non-construction related services industry  for  certified  women-
 owned   business   enterprises[:  seventeen  and  forty-four  hundredths
 percent];
   (g) commodities industry for certified minority-owned business  enter-
 prises[: sixteen and eleven hundredths percent];
   (h)  commodities  industry  for  certified women-owned business enter-
 prises[:  ten and ninety-three hundredths percent];
   (i) overall agency total dollar value  of  procurement  for  certified
 minority-owned business enterprises[: sixteen and fifty-three hundredths
 percent];
   (j)  overall  agency  total  dollar value of procurement for certified
 women-owned business enterprises[:  twelve  and  thirty-nine  hundredths
 percent]; and
   (k)  overall  agency  total  dollar value of procurement for certified
 minority, women-owned business enterprises[: twenty-eight and ninety-two
 hundredths percent].
   1-a. The director  shall  ensure  that  each  state  agency  has  been
 provided with a copy of the two thousand [ten] SIXTEEN disparity study.
   1-b.  Each  agency shall develop and adopt agency-specific goals based
 on the findings of the two thousand [ten] SIXTEEN disparity study.
   1-C. THE GOALS SET PURSUANT TO SUBDIVISION ONE OF THIS  SECTION  SHALL
 BE  CONSISTENT  WITH  THE FINDINGS OF THE TWO THOUSAND SIXTEEN DISPARITY
 STUDY.
   2. The director shall promulgate rules and regulations pursuant to the
 goals established in subdivision one of this section AND FINDINGS OF THE
 TWO THOUSAND SIXTEEN DISPARITY STUDY that provide  measures  and  proce-
 dures to ensure that certified minority and women-owned businesses shall
 be  given  the  opportunity  for  maximum  feasible participation in the

 S. 6046                             4
 
 performance of state contracts and to assist in the agency's identifica-
 tion of those state contracts for which minority and women-owned  certi-
 fied  businesses  may best bid to actively and affirmatively promote and
 assist  their  participation in the performance of state contracts so as
 to facilitate the agency's achievement of the maximum  feasible  portion
 of the goals for state contracts to such businesses.
   2-a.  The  director  shall  promulgate rules and regulations that will
 accomplish the following:
   (a) provide for the certification and decertification of minority  and
 women-owned business enterprises for all agencies through a single proc-
 ess that meets applicable requirements;
   (b) require that each contract solicitation document accompanying each
 solicitation  set  forth the expected degree of minority and women-owned
 business enterprise participation based, in part, on:
   (i) the potential subcontract opportunities  available  in  the  prime
 procurement contract; and
   (ii)  the  availability,  as  contained within the study, of certified
 minority and women-owned business enterprises to  respond  competitively
 to the potential subcontract opportunities;
   (III) THE FINDINGS OF THE TWO THOUSAND SIXTEEN DISPARITY STUDY;
   (c)  require  that  each  agency  provide  a current list of certified
 minority business enterprises to each prospective contractor;
   (d) allow a contractor that is a certified  minority-owned  or  women-
 owned  business  enterprise to use the work it performs to meet require-
 ments for use of certified minority-owned or women-owned business enter-
 prises as subcontractors;
   (e) ESTABLISH CRITERIA FOR AGENCIES TO  CREDIT  THE  PARTICIPATION  OF
 MINORITY AND WOMEN-OWNED BUSINESS ENTERPRISES TOWARDS THE ACHIEVEMENT OF
 THE  MINORITY AND WOMEN-OWNED BUSINESS ENTERPRISE PARTICIPATION GOALS ON
 A STATE CONTRACT BASED ON THE COMMERCIALLY USEFUL FUNCTION  PROVIDED  BY
 EACH MINORITY AND WOMEN-OWNED BUSINESS ENTERPRISE ON THE CONTRACT;
   (F)  provide for joint ventures, which a bidder may count toward meet-
 ing its minority and women-owned business enterprise participation;
   [(f)] (G) consistent with subdivision six of this section, provide for
 circumstances under  which  an  agency  may  waive  obligations  of  the
 contractor  relating  to  minority  and  women-owned business enterprise
 participation;
   [(g)] (H) require that an agency verify that minority and  women-owned
 business enterprises listed in a successful bid are actually participat-
 ing to the extent listed in the project for which the bid was submitted;
   [(h)] (I) provide for the collection of statistical data by each agen-
 cy  concerning  actual  minority  and  women-owned  business  enterprise
 participation; and
   [(i)] (J) require each agency to consult the  most  current  disparity
 study  when  calculating agency-wide and contract specific participation
 goals pursuant to this article.
   3. Solely for the purpose of providing the opportunity for  meaningful
 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,  replacement,
 major  repair or renovation of real property and improvements thereon by
 such lessee; and the cost of such construction, demolition, replacement,
 major repair or renovation of real  property  and  improvements  thereon
 shall  exceed  the  sum  of one hundred thousand dollars. Reports to the
 director pursuant to section three hundred fifteen of this article shall

 S. 6046                             5
 
 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, demolition, replacement,
 major  repair  or  renovation of real property and improvements thereon,
 such provisions as may 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 article; 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 subcontractor except with respect to a
 state contract.
   4. In the implementation of this section, the contracting agency shall
 (a) consult the findings contained within the disparity study evidencing
 relevant industry specific availability of certified businesses;
   (b) implement a program that will enable the agency to  evaluate  each
 contract  to  determine  the  [appropriateness  of the] APPROPRIATE goal
 pursuant to subdivision one of this section FOR PARTICIPATION BY MINORI-
 TY-OWNED BUSINESS ENTERPRISES AND WOMEN-OWNED BUSINESS ENTERPRISES;
   (c) consider  where  practicable,  the  severability  of  construction
 projects and other bundled contracts; and
   (d)  consider  compliance  with  the  requirements  of any federal law
 concerning opportunities for minority and  women-owned  business  enter-
 prises  which  effectuates  the purpose of this section. The contracting
 agency shall determine whether the imposition of the requirements of any
 such law duplicate or conflict with the provisions hereof  and  if  such
 duplication  or  conflict exists, the contracting agency shall waive the
 applicability of this section to  the  extent  of  such  duplication  or
 conflict.
   5. (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,
 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  director];  shall  require  the  contracting
 agency to notify the contractor in writing within a period of time spec-
 ified  by  the director as to any deficiencies contained in the contrac-
 tor's utilization plan; shall require remedy thereof within a period  of
 time  specified  by the director; shall require the contractor to submit
 periodic compliance reports relating to the operation and implementation
 of any utilization plan; shall not allow any automatic waivers but shall

 S. 6046                             6
 
 allow a contractor to apply for a partial or total waiver of the minori-
 ty and women-owned business enterprise participation requirements pursu-
 ant 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  participation  requirements or has denied such request for a
 waiver; and shall allow a contracting agency to file  a  complaint  with
 the director pursuant to subdivision nine of this section in the event a
 contractor  is  failing  or  has  failed to comply with the minority and
 women-owned business enterprise participation requirements set forth  in
 the state contract where no waiver has been granted.
   (b) The rules and regulations promulgated pursuant to this subdivision
 regarding  a  utilization plan shall provide that where enterprises have
 been identified within a utilization plan, a contractor  shall  attempt,
 in  good  faith, to utilize such enterprise at least to the extent indi-
 cated. A contracting agency may require a contractor to indicate, within
 a utilization plan, what measures and procedures he or  she  intends  to
 take to comply with the provisions of this article, but may not require,
 as  a  condition  of  award  of,  or  compliance with, a contract that a
 contractor  utilize  a  particular  enterprise  in  performance  of  the
 contract.
   (c) Without limiting other grounds for the disqualification of bids or
 proposals  on  the basis of non-responsibility, a contracting agency may
 disqualify the bid or proposal of a contractor as being  non-responsible
 for  failure  to  remedy notified deficiencies contained in the contrac-
 tor's utilization plan within a period of time specified in  regulations
 promulgated  by  the director after receiving notification of such defi-
 ciencies from the contracting agency. Where failure to remedy any  noti-
 fied  deficiency  in  the utilization plan is a ground for disqualifica-
 tion, that issue and all other grounds  for  disqualification  shall  be
 stated in writing by the contracting agency. Where the contracting agen-
 cy states that a failure to remedy any notified deficiency in the utili-
 zation  plan  is  a  ground for disqualification the contractor shall be
 entitled to an  administrative  hearing,  on  a  record,  involving  all
 grounds  stated  by  the  contracting  agency.  Such  hearing  shall  be
 conducted by the appropriate authority  of  the  contracting  agency  to
 review  the  determination  of  disqualification. A final administrative
 determination made following such  hearing  shall  be  reviewable  in  a
 proceeding  commenced  under article seventy-eight of the civil practice
 law and rules, provided that such proceeding is commenced within  thirty
 days  of  the  notice  given  by certified mail return receipt requested
 rendering such final administrative determination. Such proceeding shall
 be commenced in the supreme court, appellate division, third  department
 and  such  proceeding  shall  be  preferred  over all other civil causes
 except election causes, and shall be heard and determined in  preference
 to  all  other  civil business pending therein, except election matters,
 irrespective of position on the calendar. Appeals taken to the court  of
 appeals  of  the  state of New York shall be subject to the same prefer-
 ence.
   § 5. Section 315 of the executive law, as added by chapter 261 of  the
 laws of 1988, subdivision 3 as amended and subdivisions 4, 5, 6 and 7 as
 added by chapter 175 of the laws of 2010, is amended to read as follows:
   § 315. Responsibilities  of  contracting agencies. 1. Each contracting
 agency shall be responsible for monitoring  state  contracts  under  its
 jurisdiction, and recommending matters to the office respecting non-com-

 S. 6046                             7
 
 pliance  with the provisions of this article so that the office may take
 such action as is appropriate to [insure]  ENSURE  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.  Each  contracting  agency  shall  provide to prospective bidders a
 current copy of the directory of certified businesses, and a copy of the
 regulations required pursuant to sections three hundred twelve and three
 hundred thirteen of this article at  the  time  bids  or  proposals  are
 solicited.
   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. Each contracting agency shall report to 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 subcontracts. Such reports shall be
 submitted [periodically, but  not  less  frequently  than  annually,  as
 required by the director,] NO LATER THAN JANUARY FIFTEENTH OF EVERY YEAR
 and  shall  include such information as is necessary for the director to
 determine whether the contracting  agency  and  ANY  contractor  TO  THE
 CONTRACTING  AGENCY  have  complied  with  the purposes of this article,
 including, without limitation, a summary of all waivers of the  require-
 ments 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  ANY
 INSTANCES  IN  WHICH  THE  CONTRACTING AGENCY HAS DEEMED A CONTRACTOR TO
 HAVE COMMITTED A VIOLATION PURSUANT TO SECTION THREE HUNDRED SIXTEEN  OF
 THIS  ARTICLE  AND SUCH OTHER INFORMATION AS THE DIRECTOR SHALL REQUIRE.
 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.
   4.  The  division  of  minority and women's business development shall
 issue an annual report which: (a) summarizes  the  report  submitted  by
 each  contracting  agency pursuant to subdivision three of this section;
 (b) contains such comparative or other information as the director deems
 appropriate, including but not  limited  to  goals  compared  to  actual
 participation  of minority and women-owned business enterprises in state
 contracting AND A LISTING OF ANNUAL GOALS  COMPARED  TO  ACTUAL  PARTIC-
 IPATION  FOR  EACH  AGENCY,  THE  TOTAL NUMBER OF CERTIFIED MINORITY AND
 WOMEN-OWNED BUSINESSES FOR THAT REPORTING YEAR  AS  WELL  AS  THE  TOTAL
 NUMBER REPORTED IN EACH OF THE PREVIOUS FIVE YEARS, AND THE TOTAL DOLLAR
 VALUE  OF STATE EXPENDITURES ON CERTIFIED MINORITY AND WOMEN-OWNED BUSI-
 NESS CONTRACTS AND SUBCONTRACTS FOR THE PREVIOUS FIVE YEARS, to evaluate
 the effectiveness of the activities undertaken by each such  contracting
 agency  to  promote  increased  participation  by  certified minority or
 women-owned businesses with respect to state contracts and subcontracts;
 (c) contains a summary of all waivers of the  requirements  of  subdivi-
 sions  six  and  seven of section three hundred thirteen of this article
 allowed by each contracting agency during  the  period  covered  by  the

 S. 6046                             8
 
 report,  including  a description of the basis of the waiver request and
 the contracting agency's rationale for granting  any  such  waiver;  (d)
 describes  any efforts to create a database or other information storage
 and retrieval system containing information relevant to contracting with
 minority  and  women-owned  business  enterprises;  [and] (e) contains a
 summary of (i) all determinations of violations of  this  article  by  a
 contractor or a contracting agency made during the period covered by the
 annual  report pursuant to section three hundred sixteen-a of this arti-
 cle and (ii) the penalties or sanctions, if any, assessed in  connection
 with  such  determinations and the rationale for such penalties or sanc-
 tions; (F) PROVIDES A WRITTEN RATIONALE FOR INSTANCES WHERE AN  AGENCY'S
 PARTICIPATION GOALS OR REMEDIAL PLANS DO NOT MEET THE GOALS SUPPORTED BY
 THE  TWO THOUSAND SIXTEEN DISPARITY STUDY; (G) PROVIDES A WRITTEN EXPLA-
 NATION OF THE REASON THAT AGENCY EXPENDITURES ARE EXEMPT FROM  COMPLYING
 WITH  PARTICIPATION  GOALS;  (H)  CONTAINS  INFORMATION ON EACH CONTRACT
 IDENTIFYING THE FOLLOWING: (I) WHETHER IT IS A  CONTRACT  FOR  GOODS  OR
 SERVICES;  (II)  WHETHER THE CONTRACT WAS AWARDED TO A CERTIFIED MINORI-
 TY-OWNED BUSINESS ENTERPRISE OR A CERTIFIED WOMEN-OWNED BUSINESS  ENTER-
 PRISE  AND IDENTIFY WHICH MINORITY GROUP MEMBER THE MINORITY-OWNED BUSI-
 NESS ENTERPRISE RELIES ON FOR CERTIFICATION PURSUANT  TO  THIS  ARTICLE;
 (III) THE NAME AND BUSINESS ADDRESS OF PRIME CONTRACTORS AND SUBCONTRAC-
 TORS  PROVIDING  SERVICES UNDER SUCH CONTRACT; AND (IV) THE DOLLAR VALUE
 OF SUCH CONTRACT; AND (I) CONTAINS A SUMMARY OF ALL  CERTIFIED  MINORITY
 AND  WOMEN-OWNED BUSINESS ENTERPRISES, CATEGORIZED BY THE MINORITY GROUP
 MEMBER THAT  SUCH  MINORITY-OWNED  BUSINESS  ENTERPRISE  RELIES  ON  FOR
 CERTIFICATION  PURSUANT  TO  THIS  ARTICLE  AND BY GENDER. Copies of the
 annual report shall be provided to the commissioner, the  governor,  the
 comptroller,  the  temporary president of the senate, the speaker of the
 assembly, the minority leader of the senate, the minority leader of  the
 assembly  and  shall  also  be  made widely available to the public via,
 among other things, publication on a website maintained by the  division
 of minority and women's business development.
   5.  Each agency shall include in its annual report to the governor and
 legislature pursuant to section one hundred sixty-four of [the executive
 law]  THIS  CHAPTER:  (A)  its annual goals for contracts with minority-
 owned and women-owned business enterprises[,]; (B) the number of  actual
 contracts issued to minority-owned and women-owned business enterprises;
 [and]  (C)  a summary of all waivers of the requirements of subdivisions
 six and seven of section three hundred thirteen of this article  allowed
 by   the  reporting  agency  during  the  preceding  year,  including  a
 description of the basis of the waiver request  and  the  rationale  for
 granting  such  waiver[.  Each  agency shall also include in such annual
 report]; (D) 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; AND (E) WHICH  EXPENDITURES  ARE
 EXEMPT  FROM  PARTICIPATION  GOALS AND THE RATIONALE FOR SUCH EXEMPTION.
 SUCH REPORT SHALL ALSO ITEMIZE THE TOTAL VALUE OF DESIGN-BUILD CONTRACTS
 USED BY EACH CONTRACTING AGENCY WHEN APPLICABLE,  AND  EACH  CONTRACTING
 AGENCY AUTHORIZED TO ENTER INTO DESIGN-BUILD CONTRACTS SHALL ITEMIZE THE
 RATE  OF  MINORITY AND WOMEN-OWNED BUSINESS ENTERPRISES PARTICIPATION ON
 DESIGN-BUILD CONTRACTS, DESIGN-BID-BUILD CONTRACTS, AS WELL AS THE AGEN-
 CY'S OVERALL PARTICIPATION RATE.
   6. Each contracting agency that substantially fails to meet the  goals
 supported by the disparity study, as defined by regulation of the direc-
 tor,  shall be required to submit to the director a remedial action plan
 to remedy such failure.

 S. 6046                             9
 
   7. If it is determined by the director that any agency has  failed  to
 act  in  good  faith  to implement the remedial action plan, pursuant to
 subdivision six of this section within  one  year,  the  director  shall
 provide written notice of such a finding, which shall be publicly avail-
 able, and direct implementation of remedial actions to:
   (a) assure that sufficient and effective solicitation efforts to women
 and minority-owned business enterprises are being made by said agency;
   (b)  divide  contract  requirements,  when economically feasible, into
 quantities that will expand the participation  of  women  and  minority-
 owned business enterprises;
   (c) eliminate extended experience or capitalization requirements, when
 programmatically  and  economically  feasible,  that will expand partic-
 ipation by women and minority-owned business enterprises;
   (d) identify specific proposed contracts as particularly attractive or
 appropriate for  participation  by  women  and  minority-owned  business
 enterprises  with such identification to result from and be coupled with
 the efforts of paragraphs (a), (b), and (c) of this subdivision; and
   (e) upon a finding by the director that an agency has failed  to  take
 affirmative measures to implement the remedial plan and to follow any of
 the  remedial  actions  set forth by the director, and in the absence of
 any objective progress towards the agency's goals, require some  or  all
 of  the  agency's procurement, for a specified period of time, be placed
 under the direction and control of another agency or agencies.
   § 6. This act shall take effect immediately; provided,  however,  that
 the  amendments to sections 310, 312-a, 313 and 315 of the executive law
 made by sections one, two, four and five of this act shall be not affect
 the expiration of such sections and shall expire and be deemed  repealed
 therewith.

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