Senate Bill S3760

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   3760
 
                        2021-2022 Regular Sessions
 
                             I N  S E N A T E
 
                             January 30, 2021
                                ___________
 
 Introduced  by  Sen.  KAPLAN -- read twice and ordered printed, and when
   printed to be committed to the Committee on Procurement and Contracts
 
 AN ACT to amend the executive 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  96  of  the  laws  of  2019, 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  available  to
 provide  goods  or services required under the contract 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  determi-
 nation,  the contracting agency shall first consider the availability of
 other business enterprises located in the region  and  shall  thereafter
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD07939-01-1

 S. 3760                             2
 
 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)  [Upon]  WITHIN  THIRTY  DAYS  OF  the  issuance of all waivers of
 compliance as  provided  in  paragraph  (a)  of  this  subdivision,  the
 contracting agency shall:
   (i) report the issuance of the waiver to the director; and
   (ii)  publish  on the contracting agency's website on a monthly basis,
 if practicable, but no less than on a quarterly basis:
   (1) information identifying the contract, including the value  of  the
 contract;
   (2) the name of the contractor receiving the waiver;
   (3) the date of the waiver; [and]
   (4) WHETHER THE WAIVER WAS A TOTAL OR PARTIAL WAIVER; AND
   (5) the specific contract provisions to which the waiver applies.
   §  2.  Paragraph  (j) of subdivision 3 of section 311 of the executive
 law, as amended by chapter 96 of the laws of 2019, is amended and a  new
 paragraph (k) is added to read as follows:
   (j)  to  make  publicly available records of all waivers of compliance
 reported pursuant to paragraph (b) of subdivision six of  section  three
 hundred thirteen of this article on the division's website[.]; AND
   (K)  TO  KEEP  A  RECORD  OF  PARTIAL  AND TOTAL WAIVERS OF COMPLIANCE
 REPORTED PURSUANT TO PARAGRAPH (B) OF SUBDIVISION SIX OF  SECTION  THREE
 HUNDRED THIRTEEN OF THIS ARTICLE AND TO MAKE SUCH RECORD PUBLICLY AVAIL-
 ABLE  ON  THE DIVISIONS WEBSITE. THE RECORD SHALL PROVIDE, AT A MINIMUM:
 (I) INFORMATION IDENTIFYING THE CONTRACT, INCLUDING  THE  VALUE  OF  THE
 CONTRACT; (II) INFORMATION IDENTIFYING THE CONTRACTING AGENCY; (III) THE
 NAME  OF  THE  CONTRACTOR RECEIVING THE WAIVER; AND (IV) THE DATE OF THE
 WAIVER.
   § 3. 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 repeal of such article and shall be deemed
 repealed therewith; and (b) the amendments to subdivision 3  of  section
 311  of  the  executive  law  made  by section two of this act shall not
 affect the repeal of such article and shall be  deemed  repealed  there-
 with.    Effective  immediately the addition, amendment and/or repeal of
 any rule or regulation necessary for the implementation of this  act  on
 its effective date are authorized to be made on or before such date.