S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   3830
 
                        2021-2022 Regular Sessions
 
                           I N  A S S E M B L Y
 
                             January 28, 2021
                                ___________
 
 Introduced  by M. of A. VANEL -- read once and referred to the Committee
   on Governmental Operations
 
 AN ACT to amend the state finance law and the executive law, in relation
   to the comprehensive diversity in procurement and  employment  act  of
   2019
 
   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. This act shall be known and may be cited as the "comprehen-
 sive diversity in procurement and employment act of 2021".
   § 2. Subdivisions 1 and 9 of section 162 of the state finance law,  as
 added by chapter 83 of the laws of 1995, are amended to read as follows:
   1.  Purpose.  To  advance  special social and economic goals, selected
 providers shall  have  preferred  source  status  for  the  purposes  of
 procurement in accordance with the provisions of this section.  Procure-
 ment  from  these  providers  shall  be  exempted  from  the competitive
 procurement provisions of section one hundred sixty-three of this  arti-
 cle  and  other  competitive  procurement statutes. Such exemption shall
 apply to commodities  produced,  manufactured  or  assembled,  including
 those  repackaged  to  meet  the  form, function and utility required by
 state agencies, PUBLIC AUTHORITIES, COMMISSIONS, PUBLIC  BENEFIT  CORPO-
 RATIONS,  POLITICAL  SUBDIVISIONS, OR MUNICIPAL CORPORATIONS in New York
 state and, where so designated, services provided by  those  sources  in
 accordance with this section.
   9.    PAYMENTS  TO AGENCIES FOR THE BLIND, OTHER SEVERELY DISABLED AND
 VETERANS' WORKSHOPS. THE REQUIRED PAYMENT DATE SHALL BE FIFTEEN CALENDAR
 DAYS, EXCLUDING LEGAL HOLIDAYS, AFTER RECEIPT  OF  AN  INVOICE  FOR  THE
 AMOUNT OF THE CONTRACT PAYMENT DUE; EXCEPT WHEN:
   (A) THE STATE COMPTROLLER IN THE COURSE OF HIS OR HER AUDIT DETERMINES
 THAT  THERE IS REASONABLE CAUSE TO BELIEVE THAT PAYMENT MAY NOT PROPERLY
 BE DUE, IN WHOLE OR IN PART;
   (B) IN ACCORDANCE WITH SPECIFIC STATUTORY OR  CONTRACTUAL  PROVISIONS,
 PAYMENT  MUST  BE  PRECEDED  BY  AN  INSPECTION PERIOD OR BY AN AUDIT TO
 DETERMINE THE RESOURCES APPLIED OR USED BY A  CONTRACTOR  IN  FULFILLING
 THE TERMS OF THE CONTRACT;
              

 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD03106-02-1

 A. 3830                             2
 
   (C) THE NECESSARY STATE GOVERNMENT APPROPRIATION REQUIRED TO AUTHORIZE
 PAYMENT HAS YET TO BE ENACTED;
   (D) THE CASH BALANCE OF THE FUND OR SUB-FUND FROM WHICH THE PAYMENT IS
 TO BE MADE IS INSUFFICIENT TO FINANCE THE PAYMENT;
   (E)  A PROPER INVOICE MUST BE EXAMINED BY THE FEDERAL GOVERNMENT PRIOR
 TO PAYMENT; OR
   (F) THE GOODS OR PROPERTY HAVE NOT BEEN DELIVERED OR THE SERVICES HAVE
 NOT BEEN RENDERED BY THE CONTRACTOR IN  COMPLIANCE  WITH  THE  TERMS  OR
 CONDITIONS OF THE CONTRACT.
   THE  REQUIRED  PAYMENT  DATE SHALL BE FIFTEEN CALENDAR DAYS, EXCLUDING
 LEGAL HOLIDAYS,  AFTER  SUCH  CONDITIONS  DESCRIBED  IN  PARAGRAPHS  (A)
 THROUGH  (F)  OF  THIS SUBDIVISION HAVE BEEN SATISFIED OR RECTIFIED, AND
 PROVIDED FURTHER THAT ALL REASONABLE AND PRACTICABLE  EFFORTS  SHALL  BE
 TAKEN TO SATISFY OR RECTIFY SUCH CONDITIONS AS SOON AS POSSIBLE.
   10.  The  provisions  of  this  section  shall  supersede inconsistent
 provisions of any general, special or local law, or  the  provisions  of
 any charter.
   §  3.  Subdivisions 2 and 3 of section 179-f of the state finance law,
 subdivision 2 as amended by chapter 36 of the laws of 2016,  subdivision
 3  as amended by chapter 568 of the laws of 2015, are amended, and three
 new subdivisions 7, 8 and 9 are added to read as follows:
   2. The required payment date shall be thirty calendar days,  excluding
 legal  holidays, provided, however, that for a small business, PREFERRED
 SOURCE, SERVICE DISABLED VETERAN-OWNED BUSINESS, OR MINORITY AND  WOMEN-
 OWNED  BUSINESS  ENTERPRISE  the  required payment date shall be fifteen
 calendar days,  excluding  legal  holidays,  absent  a  showing  by  the
 contracting  agency  of  circumstances beyond its control, provided that
 the small business submits its invoice  electronically,  in  conformance
 with the policies and procedures of the accounting and financial manage-
 ment  system of state government and identifies that it is seeking expe-
 dited payment as a small business, or in the case of final  payments  on
 highway  construction  contracts  seventy-five  calendar days, excluding
 legal holidays, after receipt of  an  invoice  for  the  amount  of  the
 contract payment due; except when:
   (a) the state comptroller in the course of his or her audit determines
 that  there is reasonable cause to believe that payment may not properly
 be due, in whole or in part;
   (b) in accordance with specific statutory or  contractual  provisions,
 payment  must  be  preceded  by  an  inspection period or by an audit to
 determine the resources applied or used by a  contractor  in  fulfilling
 the terms of the contract;
   (c) the necessary state government appropriation required to authorize
 payment has yet to be enacted;
   (d) [a proper invoice must be examined by the federal government prior
 to payment;
   (e)]  the  goods  or  property have not been delivered or the services
 have not been rendered by the contractor in compliance with the terms or
 conditions of the contract;
   [(f)] (E) the required payment date is  modified  in  accordance  with
 subdivision three of this section; or
   [(g)]  (F)  in  the  case  of  final  payments on highway construction
 contracts  the  commissioner  of  transportation  determines  that   the
 contractor  has  failed  to  properly submit the necessary documents and
 other submissions prescribed by the contract specifications and require-
 ments, by the provisions of subdivision eight of section thirty-eight of
 the highway law, and by all other applicable state and federal  laws  in

 A. 3830                             3
 
 order  to  enable  the department of transportation to process the final
 payment properly and expeditiously.
   Any  time  taken  to satisfy or rectify any of the types of conditions
 described in paragraphs (a) through [(e)]  (D)  or  [(g)]  (F)  of  this
 subdivision shall extend the required payment date by an equal period of
 time,  provided,  however, that for small businesses, PREFERRED SOURCES,
 SERVICE DISABLED VETERAN-OWNED BUSINESSES, OR MINORITY  AND  WOMEN-OWNED
 BUSINESS  ENTERPRISES, the required payment date shall be fifteen calen-
 dar days, excluding legal holidays,  after  such  conditions  have  been
 satisfied  or  rectified,  and  provided further that all reasonable and
 practicable efforts shall be taken to satisfy or rectify such conditions
 as soon as possible.
   3. Each state agency shall have fifteen calendar days after receipt of
 an invoice by the state agency at its designated payment office,  or  in
 the case of an invoice received from a small business, PREFERRED SOURCE,
 SERVICE  DISABLED  VETERAN-OWNED  BUSINESS,  OR MINORITY AND WOMEN-OWNED
 BUSINESS ENTERPRISE, seven calendar days, to notify  the  contractor  of
 (a)  defects  in the delivered goods, property, or services, (b) defects
 in the invoice, or (c) suspected improprieties  of  any  kind;  and  the
 existence  of  such defects or improprieties shall prevent the commence-
 ment of the time period specified in subdivision two  of  this  section.
 When  a  state  agency  fails  to notify a contractor of such defects or
 suspected improprieties within fifteen calendar days, or seven  calendar
 days  if  such contractor is a small business, PREFERRED SOURCE, SERVICE
 DISABLED VETERAN-OWNED BUSINESS, OR MINORITY  AND  WOMEN-OWNED  BUSINESS
 ENTERPRISE,  of  receiving  the  invoice, the number of days allowed for
 payment of the corrected proper invoice will be reduced by the number of
 days between the fifteenth day, or seventh day if payment of such proper
 invoice is for a small  business,  PREFERRED  SOURCE,  SERVICE  DISABLED
 VETERAN-OWNED BUSINESS, OR MINORITY AND WOMEN-OWNED BUSINESS ENTERPRISE,
 and  the day that notification was transmitted to the contractor. If the
 state agency, in such situations, fails to  provide  reasonable  grounds
 for  its  contention  that  a defect or impropriety exists, the required
 payment date shall be calculated from the date of receipt of an invoice.
   7. AS USED IN THIS SECTION, "PREFERRED SOURCE" SHALL MEAN A  QUALIFIED
 CHARITABLE  NOT-FOR-PROFIT  AGENCY  FOR  THE  BLIND  APPROVED  FOR  SUCH
 PURPOSES BY THE COMMISSIONER  OF  THE  OFFICE  OF  CHILDREN  AND  FAMILY
 SERVICES,  ANY  SPECIAL  EMPLOYMENT PROGRAM SERVING MENTALLY ILL PERSONS
 WHICH IS OPERATED BY FACILITIES WITHIN THE OFFICE OF MENTAL  HEALTH  AND
 IS  APPROVED  FOR  SUCH PURPOSES BY THE COMMISSIONER OF MENTAL HEALTH, A
 QUALIFIED CHARITABLE NOT-FOR-PROFIT AGENCY FOR OTHER  SEVERELY  DISABLED
 PERSONS  APPROVED  FOR SUCH PURPOSES BY THE COMMISSIONER OF EDUCATION OR
 INCORPORATED UNDER THE LAWS OF THIS STATE AND APPROVED FOR SUCH PURPOSES
 BY THE COMMISSIONER OF EDUCATION, OR A QUALIFIED CHARITABLE NOT-FOR-PRO-
 FIT WORKSHOP FOR VETERANS APPROVED FOR SUCH PURPOSES BY THE COMMISSIONER
 OF EDUCATION OR INCORPORATED UNDER THE LAWS OF THIS STATE  AND  APPROVED
 FOR SUCH PURPOSES BY THE COMMISSIONER OF EDUCATION.
   8.  AS USED IN THIS SECTION, "CERTIFIED SERVICE DISABLED VETERAN-OWNED
 BUSINESS ENTERPRISE" SHALL HAVE THE SAME MEANING AS SET FORTH IN ARTICLE
 SEVENTEEN-B OF THE EXECUTIVE LAW.
   9. AS USED IN THIS SECTION, "MINORITY AND WOMEN-OWNED BUSINESS  ENTER-
 PRISE"  SHALL HAVE THE SAME MEANING AS SET FORTH IN ARTICLE FIFTEEN-A OF
 THE EXECUTIVE LAW.
   § 4. Section 4-a of the executive law, as added by chapter 175 of  the
 laws of 2010, is amended to read as follows:

 A. 3830                             4
 
   §  4-a.  Chief  diversity  officer.  A chief diversity officer for the
 state shall be appointed by the governor and shall receive a  salary  to
 be  fixed  by  the governor within the amount appropriated therefor. The
 chief diversity officer's responsibilities shall include the following:
   1.  Advise and assist the governor in formulating policies relating to
 workforce diversity INCLUDING THE  USE  OF  PREFERRED  SOURCES,  SERVICE
 DISABLED  VETERAN-OWNED  BUSINESS ENTERPRISES and minority and [women's]
 WOMEN-OWNED business enterprises;
   2. Work with the director of the  division  of  minority  and  women's
 business  development  AND THE DIVISION SERVICE DISABLED VETERAN'S BUSI-
 NESS DEVELOPMENT to prepare an annual plan for ensuring full  compliance
 with  [article  fifteen-a]  ARTICLES  FIFTEEN-A  AND SEVENTEEN-B of [the
 executive law] THIS CHAPTER AND ARTICLE ELEVEN OF THE STATE FINANCE  LAW
 by  state  agencies  and  the  use  of diversity practices AND PREFERRED
 SOURCES by such agencies AND PUBLIC AUTHORITIES;
   3. WORK WITH THE COMMISSIONER OF THE OFFICE  OF  CHILDREN  AND  FAMILY
 SERVICES  TO  PREPARE  AN  ANNUAL PLAN FOR ENSURING FULL COMPLIANCE WITH
 SECTION ONE HUNDRED SIXTY-TWO OF THE STATE FINANCE LAW  BY  STATE  AGEN-
 CIES;
   4.  WORK  WITH  THE DIRECTOR OF THE OFFICE OF GENERAL SERVICES AND THE
 DIVISION OF SERVICE DISABLED VETERANS' BUSINESS DEVELOPMENT  TO  PREPARE
 AN  ANNUAL  PLAN  FOR ENSURING FULL COMPLIANCE WITH THE SERVICE-DISABLED
 VETERAN-OWNED BUSINESS ACT BY STATE AGENCIES;
   5. Advise the governor and the agencies regarding any measures  neces-
 sary  to  ensure  full  compliance  with  [article  fifteen-a]  ARTICLES
 FIFTEEN-A AND SEVENTEEN-B of this chapter  and  ARTICLE  ELEVEN  OF  THE
 STATE  FINANCE  LAW  IN CONNECTION WITH THE use of diversity AND SERVICE
 DISABLED VETERANS practices AND PREFERRED SOURCE PLANS BY SUCH  AGENCIES
 AND by state public authorities;
   [4.] 6. Serve as a member of the state procurement council established
 under section one hundred sixty-one of the state finance law;
   [5.]  7. Serve as the governor's liaison with organizations represent-
 ing minority and women-owned business enterprises, PREFERRED SOURCES AND
 SERVICE DISABLED VETERAN-OWNED BUSINESS ENTERPRISES and other  organiza-
 tions related to diversity in the state workforce and in state contract-
 ing;
   [6.] 8. Serve as the governor's liaison to the small business advisory
 council  for  issues  related to the creation of a diverse workforce and
 state procurement practices relating to minority and  women-owned  busi-
 ness  enterprises,  PREFERRED SOURCES AND SERVICE DISABLED VETERAN-OWNED
 BUSINESS ENTERPRISES;
   [7.] 9. Review and consult with the director of minority  and  women's
 business  development [regarding policies], THE DIRECTOR OF THE DIVISION
 OF SERVICE DISABLED VETERANS' BUSINESS DEVELOPMENT AND THE  COMMISSIONER
 OF  THE  OFFICE OF CHILDREN AND FAMILY SERVICES relating to minority and
 women-owned business [enterprise] ENTERPRISES, SERVICE  DISABLED  VETER-
 AN-OWNED BUSINESS ENTERPRISES AND PREFERRED SOURCES contract specialists
 at state agencies; and
   [8.]  10. Engage in other actions assigned to him or her by the gover-
 nor relating to diversity in hiring or promotion of the state  workforce
 and  in  encouraging  diversity  practices  and compliance with [article
 fifteen-a] ARTICLES FIFTEEN-A AND SEVENTEEN-B of this chapter AND  ARTI-
 CLE ELEVEN OF THE STATE FINANCE LAW in procurement.
   § 5. This act shall take effect immediately.