NY State Senate Bill 2021-S634A

Senate Bill S634A

2021-2022 Legislative Session

Requires contracting agencies to contact minority and women-owned business enterprises when such enterprise is listed on a utilization plan and when a contract is awarded

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Archive: Last Bill Status - In Senate Committee Procurement And Contracts 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 05, 2022	referred to procurement and contracts
May 11, 2021	print number 634a
May 11, 2021	amend (t) and recommit to procurement and contracts
Jan 25, 2021	committee discharged and committed to procurement and contracts
Jan 06, 2021	referred to finance

Bill Amendments

Original

A (Active)

co-Sponsors

2021-S634 - Details

See Assembly Version of this Bill:: A7778
Current Committee:: Senate Procurement And Contracts
Law Section:: Executive Law
Laws Affected:: Amd §313, Exec L
Versions Introduced in Other Legislative Sessions:: 2019-2020: S9094
2023-2024: S1757, A1266

2021-S634 - Summary

Requires contracting agencies to contact minority and women-owned business enterprises when such enterprise is listed on a utilization plan and when a contract is awarded; mandates that the prime contractor use such enterprise identified on the utilization plan, unless such enterprise cannot perform or is no longer state certified.

2021-S634 - Sponsor Memo

                                
 
BILL NUMBER: S634

SPONSOR: SANDERS
 
TITLE OF BILL:

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

 
PURPOSE OR GENERAL IDEA OF BILL:

This bill would requires contractors to submit a utilization plan at the
time it submits a bid and specifies timeframes when work assignment and
payments to MWBES must be received and made, respectively.

 
SUMMARY OF PROVISIONS:

This legislation seeks to prevent contractors from circumventing Article
15-A to the detriment of MWBEs. This bill strengthens Article 15-A by
requiring:

1) Contractors to submit a utilization plan at the time it submits a bid
in response to a Request For Proposal (RFP) from an agency or authority;

2) Agencies or authorities to contact and inform the MBE and WBE that
they were identified on the utilization plan;

3) Contractors to provide MBEs and WBEs with a work assignment and
execute a subcontract agreement within 30 days of being awarded the
contract from the agency or authority.A contractor's failure to comply
with this provision will result in the agency awarding the contract to
the next lowest bidder;

4) Contractors to make a payment to the MBE or WBE within 10 days of
receiving payment from the agency or authority.

 
JUSTIFICATION:

Due to certain loop holes in Article 15-A, contractors are not required
to submit a utilization plan until after it is awarded a contract or
submits a utilization plan without contacting the MBE or WBE but uses
their information to be considered and/or awarded contracts. This bill
also specifies the time frame for a contractor to execute a subcontract
agreement; provide work assignments; payments to MBEs and WBEs post
contract award.Failure for contractors to comply with these provisions
will result in the agency or authority awarding contract to next lowest
bidders.

 
PRIOR LEGISLATIVE HISTORY:

None.

 
FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS:

None

 
EFFECTIVE DATE:
This act shall take effect immediately.

2021-S634 - Bill Text download pdf

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                    634
 
                        2021-2022 Regular Sessions
 
                             I N  S E N A T E
 
                                (PREFILED)
 
                              January 6, 2021
                                ___________
 
 Introduced  by  Sen. SANDERS -- 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 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
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets

                       [ ] is old law to be omitted.
                                                            LBD06047-01-1

 S. 634                              2
 
 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
 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.

co-Sponsors

2021-S634A (ACTIVE) - Details

See Assembly Version of this Bill:: A7778
Current Committee:: Senate Procurement And Contracts
Law Section:: Executive Law
Laws Affected:: Amd §313, Exec L
Versions Introduced in Other Legislative Sessions:: 2019-2020: S9094
2023-2024: S1757, A1266

2021-S634A (ACTIVE) - Summary

2021-S634A (ACTIVE) - Sponsor Memo

                                 
BILL NUMBER: S634A

SPONSOR: SANDERS
 
TITLE OF BILL:

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 and when a contract is
awarded

 
PURPOSE OR GENERAL IDEA OF BILL:

This bill would requires contractors to submit a utilization plan at the
time it submits a bid and specifies timeframes when work assignment and
payments to MWBES must be received and made, respectively.

 
SUMMARY OF PROVISIONS:

This legislation seeks to prevent contractors from circumventing Article
15-A to the detriment of MWBEs. This bill strengthens Article 15-A by
requiring:

1) Contractors to submit a utilization plan at the time it submits a bid
in response to a Request For Proposal (RFP)from an agency or authority;

2) Agencies or authorities to contact and inform the MBE and WBE that
they were identified on the utilization plan;

3) Contractors to provide MBEs and WBEs with a work assignment and
execute a subcontract agreement within 45 days of being awarded the
contract from the agency or authority. A contractor's failure to comply
with this provision will result in the agency awarding the contract to
the next lowest bidder or bidder;

4) Contractors to make a payment to the MBE or WBE within 20 days of
receiving payment from the agency or authority. Should a MBE or WBE
notifies the agency that it has not received payment from the prime
contractor, the contracting agency will notify contractor to make
payment to MBE or WBE with 10 days. A contractor's failure to comply
with this provision will result in the agency awarding the contract to
the next lowest bidder or bidder;

5) This bill clarifies that a prime contractor who is certified MBE can
self-certify as a MBE and perform under the contract to meet its MBE
goal.

6) This bill clarifies that a prime contractor who is certified WBE can
self-certify as a WBE and perform under the contract to meet its WEE
goal only, but must utilize a MBE to satisfy the MBE goal of the
contract because a WBE can never satisfy or meet the MBE goal of a
contract.

7) This bill clarifies that a prime contractor who is dually certified
as a MBE or WBE can self-certify as both a MBE and WBE and perform under
the contract to meet its both goals.

8) Section 2 makes it clear that this bill applies to all contracts that
an agency issues a Request for Proposal that can otherwise be awarded

through the agency's discretionary contract award process, even if the
agency does not have such a process.

 
JUSTIFICATION:

Due to certain loop holes in Article 15-A, contractors are not required
to submit a utilization plan until after it is awarded a contract or
submits a utilization plan without contacting the MBE or WBE but uses
their information to be considered and/or awarded contracts.This bill
also specifies the timeframes for a contractor to execute a subcontract
agreement; provide work assignments; and make payments to MBEs and WBEs
post contract award. Failure for contractors to comply with these
provisions will result in the agency or authority re-awarding contract
to next lowest bidders or bidders.

This bill also makes clear that a certified WBE can never be used to
satisfy the MBE goal of a contract, and agencies cannot issue waivers on
such ground. Further, a prime contractor can meet the MBE and WBE goals
of a contract if it is a certified MBE or WBE or both.

 
PRIOR LEGISLATIVE HISTORY:

None.

 
FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS:

None

 
EFFECTIVE DATE:
This act shall take effect immediately.

2021-S634A (ACTIVE) - Bill Text download pdf

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                  634--A
 
                        2021-2022 Regular Sessions
 
                             I N  S E N A T E
 
                                (PREFILED)
 
                              January 6, 2021
                                ___________
 
 Introduced  by  Sens. SANDERS, KAPLAN -- read twice and ordered printed,
   and when printed to be  committed  to  the  Committee  on  Finance  --
   committee  discharged  and  said  bill  committed  to the Committee on
   Procurement and  Contracts  --  committee  discharged,  bill  amended,
   ordered reprinted as amended and recommitted to said committee
 
 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 and when a contract is
   awarded
 
   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 and six new paragraphs (b-1), (b-2), (b-3), (b-4), (b-5) and (d)
 are added 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] BOTH MINORITY-OWNED and [women
 owned] WOMEN-OWNED business enterprises adopted pursuant to this article
 and the regulations of the director  PRIOR  TO  THE  PRIME  CONTRACTOR'S
 INCEPTION  OF  THE  SCOPE  OF WORK OUTLINED IN AN AWARDED CONTRACT. Such
 rules and regulations: shall require a PRIME contractor  to  [submit  a]
 UTILIZE  THE MINORITY AND WOMEN-OWNED BUSINESS ENTERPRISES LISTED ON THE
 utilization plan [after] SUBMITTED WHEN bids are opened, [when bids  are
 required,  but  prior]  PROVIDED  THAT THE MINORITY-OWNED OR WOMEN-OWNED
 BUSINESS ENTERPRISE IS STILL CERTIFIED WITH NEW YORK STATE. PRIOR to the
 award of a state contract[; shall require] WITH MINORITY AND WOMEN-OWNED
 BUSINESS ENTERPRISE GOALS the contracting agency [to] SHALL  review  the
 utilization  plan  submitted by the PRIME contractor and [to] SHALL post
 the utilization plan and any waivers of compliance  issued  pursuant  to
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets

                       [ ] is old law to be omitted.
                                                            LBD06047-02-1

 S. 634--A                           2
 
 subdivision  six of this section on the website of the contracting agen-
 cy[; shall require the]. WITHIN FIVE BUSINESS DAYS AFTER AN AWARD LETTER
 IS SENT TO THE PRIME CONTRACTOR, THE CONTRACTING AGENCY SHALL SUBMIT  AN
 AWARD  NOTIFICATION  LETTER  TO  THE  MINORITY  AND WOMEN-OWNED BUSINESS
 ENTERPRISE LISTED ON THE UTILIZATION PLAN. THE MINORITY AND  WOMEN-OWNED
 BUSINESS  ENTERPRISE LISTED ON THE ORIGINAL UTILIZATION PLAN AT THE TIME
 OF SUBMISSION SHALL NOT BE AMENDED OR CHANGED BY  THE  CONTRACTOR  AFTER
 SUBMISSION TO THE CONTRACTING AGENCY FOR APPROVAL. THE contracting agen-
 cy SHALL BE REQUIRED to notify the PRIME contractor in writing within [a
 period  of  time specified by the director] TEN DAYS as to any deficien-
 cies contained in the contractor's utilization plan[;] AND 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;] SEVEN DAYS OF
 SUCH NOTIFICATION. THE CONTRACTING AGENCY 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 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], 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].
   (B-1)  AFTER  THE  CONTRACTING  AGENCY  AWARDS  A  CONTRACT, THE PRIME
 CONTRACTOR SHALL EXECUTE A SUBCONTRACTOR'S AGREEMENT AND PROVIDE A  WORK
 ASSIGNMENT  TO  THE MINORITY AND WOMEN-OWNED BUSINESS ENTERPRISES LISTED
 IN THE UTILIZATION PLAN WITHIN FORTY-FIVE DAYS OF SUCH AWARD.    FAILURE
 TO  COMPLY WITH THIS REQUIREMENT SHALL RESULT IN DISQUALIFICATION OF THE
 PRIME CONTRACTOR AND THE CONTRACTING AGENCY SHALL RE-AWARD THE  CONTRACT
 TO THE NEXT LOWEST BIDDER OR ELIGIBLE BIDDER.
   (B-2)  AFTER  RECEIVING  THE  FIRST PAYMENT ON THE CONTRACT, THE PRIME
 CONTRACTOR SHALL MAKE PAYMENTS TO THE MINORITY AND WOMEN-OWNED  BUSINESS
 ENTERPRISE  FOR  WORK PERFORMED UNDER THE CONTRACT WITHIN TWENTY DAYS OF
 RECEIPT OF EACH PAYMENT RECEIVED FROM THE CONTRACTING AGENCY. A MINORITY
 AND WOMEN-OWNED BUSINESS ENTERPRISE MAY NOTIFY THE CONTRACTING AGENCY OF
 ANY VIOLATION  OF  THIS  PARAGRAPH  BY  THE  PRIME  CONTRACTOR  AND  THE
 CONTRACTING  AGENCY  SHALL  THEN  NOTIFY THE PRIME CONTRACTOR TO CORRECT
 SUCH DEFICIENCY WITHIN TEN DAYS OF  NOTIFICATION.  THE  FAILURE  OF  THE
 CONTRACTOR  TO  MAKE SUCH PAYMENTS TO THE MINORITY AND WOMEN-OWNED BUSI-
 NESS ENTERPRISE SHALL RESULT IN  DISQUALIFICATION  AND  THE  CONTRACTING

 S. 634--A                           3
 
 AGENCY  SHALL RE-AWARD SUCH CONTRACT TO THE NEXT LOWEST BIDDER OR ELIGI-
 BLE BIDDER.
   (B-3)  A PRIME CONTRACTOR WHICH IS A CERTIFIED MINORITY-OWNED BUSINESS
 MAY SELF-CERTIFY AND PERFORM UNDER THE CONTRACT TO MEET  THE  CONTRACT'S
 MINORITY-OWNED BUSINESS ENTERPRISE GOALS.
   (B-4) A PRIME CONTRACTOR WHICH IS A CERTIFIED WOMEN-OWNED BUSINESS MAY
 SELF-CERTIFY  AND  PERFORM  UNDER  THE  CONTRACT  TO MEET THE CONTRACT'S
 WOMEN-OWNED BUSINESS ENTERPRISE GOAL ONLY, AND IT MUST UTILIZE A  CERTI-
 FIED MINORITY-OWNED BUSINESS ENTERPRISE TO PERFORM UNDER THE CONTRACT TO
 MEET THE CONTRACT'S MINORITY-OWNED BUSINESS GOALS.
   (B-5)  A PRIME CONTRACTOR WHICH IS DUALLY CERTIFIED MINORITY-OWNED AND
 WOMEN-OWNED BUSINESS ENTERPRISE MAY SELF-CERTIFY AND PERFORM  UNDER  THE
 CONTRACT  TO MEET THE CONTRACT'S MINORITY-OWNED AND WOMEN-OWNED BUSINESS
 ENTERPRISE GOALS.
   (D) THIS SUBDIVISION SHALL APPLY  TO  ALL  PUBLIC  CONTRACTS  WHERE  A
 PUBLIC  AGENCY  ISSUES  A REQUEST FOR PROPOSALS, NOTWITHSTANDING WHETHER
 THE CONTRACT COULD OTHERWISE BE AWARDED THROUGH THE AGENCY'S DISCRETION-
 ARY CONTRACT AWARD PROCESS  OR  THE  NON-EXISTENCE  OF  A  DISCRETIONARY
 CONTRACT AWARD PROCESS WITHIN THE PUBLIC AGENCY.
   §  2.  This act shall take effect immediately; provided, however, that
 the amendments to 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.

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Senate Bill S634A

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Sponsored By

James Sanders Jr.

Archive: Last Bill Status - In Senate Committee Procurement And Contracts Committee

Bill Amendments

co-Sponsors

Anna M. Kaplan

2021-S634 - Details

2021-S634 - Summary

2021-S634 - Sponsor Memo

2021-S634 - Bill Text download pdf

co-Sponsors

Anna M. Kaplan

2021-S634A (ACTIVE) - Details

2021-S634A (ACTIVE) - Summary

2021-S634A (ACTIVE) - Sponsor Memo

2021-S634A (ACTIVE) - Bill Text download pdf

Comments