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
              

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 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.