S T A T E O F N E W Y O R K
________________________________________________________________________
5076
2023-2024 Regular Sessions
I N A S S E M B L Y
March 2, 2023
___________
Introduced by M. of A. BARCLAY, WALSH, J. M. GIGLIO -- Multi-Sponsored
by -- M. of A. K. BROWN, HAWLEY -- read once and referred to the
Committee on Governmental Operations
AN ACT to amend the executive law, in relation to a statewide disparity
study regarding the participation of minority and women-owned business
enterprises in state contracts
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Section 312-a of the executive law is amended by adding a
new subdivision 3 to read as follows:
3. THE DIRECTOR SHALL DEVELOP A PROCEDURE TO OBTAIN DIRECT FEEDBACK
FROM APPLICANTS ON ANY PROBLEMS AND BURDENS THEY ENCOUNTERED DURING THE
APPLICATION PROCESS OR THROUGHOUT THE PROGRAM AND EXAMINE HOW THE ISSUES
CAN BE ADDRESSED TO ELIMINATE FUTURE PROGRAM LIMITATIONS.
§ 2. Subdivision 6 of section 313 of the executive law, as amended by
chapter 96 of the laws of 2019 and paragraph (b) as amended by chapter
348 of the laws of 2021, 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
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD03838-01-3
A. 5076 2
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] BUSINESSES to furnish services for the
project, it shall issue a waiver of compliance to the contractor. In
making such determination, the contracting agency shall first consider
the availability of other business enterprises located in the region and
shall thereafter 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 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, in a location easily accessible to
the general public: (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; (4) whether the waiver was a partial
or total waiver; and (5) the specific contract provisions to which the
waiver applies.
(C) THE COMMISSIONER IS AUTHORIZED TO GRANT A PARTIAL OR TOTAL WAIVER
OF SUCH GOOD FAITH EFFORTS TO CONTRACTS WITHIN SUCH A COUNTY, UPON
REQUEST OF THE PRESIDING OFFICER OF SUCH COUNTY AND UPON A FINDING THAT
THERE IS SUCH A SCARCITY OF MINORITY AND WOMEN-OWNED BUSINESS ENTER-
PRISES WITHIN THAT COUNTY AS TO EFFECTIVELY PRECLUDE PARTICIPATION OF
SUCH ENTERPRISES IN SUCH CONTRACTS, AND WHERE NO REASONABLE MEANS OF
ACCOMPLISHING THE PROVISIONS OF THIS SECTION EXIST. THE COMMISSIONER
SHALL PROMULGATE RULES AND REGULATIONS NECESSARY TO IMPLEMENT THESE
PROVISIONS.
§ 3. Subdivisions 1 and 3 of section 314 of the executive law, subdi-
vision 1 as amended by chapter 567 of the laws of 2022, and subdivision
3 as amended by chapter 96 of the laws of 2019, are amended and a new
subdivision 1-a is added to read as follows:
1. The director shall promulgate rules and regulations providing for
the establishment of a statewide certification program including rules
and regulations governing the approval, denial or revocation of any such
certification including revocations for convictions for fraudulently
misrepresenting the status of minority or women-owned business enter-
prises. Such rules shall set forth the maximum personal net worth of a
minority group member or woman who may be relied upon to certify a busi-
ness as a minority-owned business enterprise or women-owned business
enterprise with a minimum personal net worth threshold of fifteen
million dollars, and may thereafter establish different maximum levels
of personal net worth for minority group members and women on an indus-
try-by-industry basis for such industries as the director shall deter-
mine. Such regulations relating to the classification of the industry-
by-industry personal net worth thresholds above the fifteen million
dollar threshold shall consider the personal net worth of the owners of
both certified and non-certified businesses, including but not limited
to, prime contractors and subcontractors, as well as any such other
factors needed to establish such thresholds. Such rules and regulations
shall include, but not be limited to, such matters as may be required to
ensure that the established procedures thereunder shall at least be in
compliance with the code of fair procedure set forth in section seven-
ty-three of the civil rights law, and consistent with the provisions of
article twenty-three-A of the correction law. APPLICATIONS SHALL BE
MADE AVAILABLE ONLINE AND IN PRINT AND SPECIFICALLY LIST OUT ALL INFOR-
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MATION AND DOCUMENTS REQUIRED BY AN APPLICANT TO APPLY FOR THE PROGRAM
IN CLEAR LANGUAGE.
1-A. THE DIRECTOR SHALL PROMULGATE RULES AND REGULATIONS TO ESTABLISH
AN ONLINE HELP SOURCE. THIS SOURCE SHALL PROVIDE REAL TIME BUSINESS
SUPPORT FOR NEW AND EXISTING CERTIFIED BUSINESSES.
3. Following application for certification pursuant to this section,
the director shall provide the applicant with VERBAL NOTICE OF THE
STATUS OF THE APPLICATION, INCLUDING NOTICE OF ANY OUTSTANDING DEFICIEN-
CIES, WITHIN TWENTY-FOUR HOURS AND written notice of the status of the
application, including notice of any outstanding deficiencies, within
[twenty-one] SEVEN days. Within [forty-five] THIRTY days of submission
of a final completed application, [the director shall provide the appli-
cant with written notice of a determination by the office approving or
denying such certification] THE APPLICATION SHALL BE DEEMED APPROVED
UNLESS THE DIRECTOR SHALL DENY SUCH CERTIFICATION and, in the event of a
denial a statement setting forth the reasons for such denial. Upon a
determination denying or revoking certification, the business enterprise
for which certification has been so denied or revoked shall, upon writ-
ten request made within thirty days from receipt of notice of such
determination, be entitled to a hearing before an independent hearing
officer designated for such purpose by the director. In the event that a
request for a hearing is not made within such thirty day period, such
determination shall be deemed to be final. The independent hearing offi-
cer shall conduct a hearing and upon the conclusion of such hearing,
issue a written recommendation to the director to affirm, reverse or
modify such determination of the director. Such written recommendation
shall be issued to the parties. The director, within thirty days, by
order, must accept, reject or modify such recommendation of the hearing
officer and set forth in writing the reasons therefor. The director
shall serve a copy of such order and reasons therefor upon the business
enterprise by personal service or by certified mail return receipt
requested. The order of the director shall be subject to review pursuant
to article seventy-eight of the civil practice law and rules.
§ 4. This act shall take effect immediately; provided however, that
the amendments to article 15-A of the executive law made by this act
shall not affect the repeal of such article and shall be deemed repealed
therewith.