S T A T E O F N E W Y O R K
________________________________________________________________________
9094
I N S E N A T E
November 16, 2020
___________
Introduced by Sen. SANDERS -- read twice and ordered printed, and when
printed to be committed to the Committee on Rules
AN ACT to amend the executive law, in relation to requiring contracting
agencies to contact minority and women-owned business enterprises when
such enterprise is listed on a utilization plan
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Paragraphs (a) and (b) of subdivision 5 of section 313 of
the executive law, as amended by chapter 96 of the laws of 2019, are
amended to read as follows:
(a) Contracting agencies shall administer the rules and regulations
promulgated by the director in a good faith effort to achieve the maxi-
mum feasible participation by minority and women owned business enter-
prises 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 contract-
ing 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; SHALL REQUIRE THE CONTRACTING AGENCY TO NOTIFY THE
MINORITY AND WOMEN-OWNED BUSINESS ENTERPRISE WHEN LISTED ON THE UTILIZA-
TION PLAN; 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
require remedy thereof within a period of time specified by the direc-
tor; 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 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
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD17433-01-0
S. 9094 2
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.
(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], UNLESS SUCH ENTERPRISE CANNOT PERFORM UNDER THE CONTRACT OR SUCH
ENTERPRISE IS NO LONGER CERTIFIED BY THE STATE. A contracting agency may
require a contractor to indicate, within a utilization plan, what meas-
ures 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].
§ 2. This act shall take effect immediately; provided, however, that
the amendments to paragraphs (a) and (b) of subdivision 5 of section 313
of the executive law made by section one of this act shall not affect
the repeal of such section and shall be deemed repealed therewith.