S. 5464 2
(b) to develop standardized forms and reporting documents necessary to
implement this article;
(c) to conduct educational OUTREACH programs TO ENCOURAGE THE CERTIF-
ICATION OF MINORITY AND WOMEN-OWNED BUSINESS ENTERPRISES consistent with
the purposes of this article;
(d) to review [periodically] QUARTERLY the practices and procedures of
each contracting agency with respect to compliance with the provisions
of this article, and to require them to file [periodic] QUARTERLY
reports with the division of minority and women's business development
as to the level of minority and women-owned business enterprises partic-
ipation in the awarding of agency contracts for goods and services
INCLUDING BUT NOT LIMITED TO THE NUMBER OF STATE CONTRACTS AWARDED TO
CERTIFIED MINORITY OR WOMEN-OWNED BUSINESS ENTERPRISES, THE MAXIMUM
DOLLAR AMOUNT OBLIGATED PURSUANT TO ALL THOSE CONTRACTS, AND THE TOTAL
EXPENDITURES MADE PURSUANT TO ALL SUCH CONTRACTS; THE NUMBER OF STATE
CONTRACTS AWARDED TO CERTIFIED MINORITY OR WOMEN-OWNED BUSINESS ENTER-
PRISES, THE MAXIMUM DOLLAR AMOUNT OBLIGATED PURSUANT TO ALL THOSE
CONTRACTS, AND THE TOTAL EXPENDITURES MADE PURSUANT TO ALL SUCH
CONTRACTS; THE NUMBER OF STATE CONTRACTS AWARDED WHICH INCLUDE A UTILI-
ZATION PLAN FOR BUSINESS PARTICIPATION BY CERTIFIED MINORITY OR WOMEN-
OWNED BUSINESS ENTERPRISES, THE MAXIMUM AMOUNT OBLIGATED PURSUANT TO
THOSE CONTRACTS, AND THE TOTAL EXPENDITURES MADE PURSUANT TO ALL SUCH
CONTRACTS; THE NUMBER OF STATE CONTRACTS AWARDED UPON WHICH A WAIVER WAS
GRANTED FROM GOALS REQUIRED BY THE CONTRACTS FOR BUSINESS PARTICIPATION
BY CERTIFIED MINORITY OR WOMEN-OWNED BUSINESS ENTERPRISES, AND THE MAXI-
MUM AMOUNT OBLIGATED PURSUANT TO THOSE CONTRACTS; THE NUMBER OF STATE
CONTRACTS AWARDED WHICH REQUIRED GOALS FOR EMPLOYMENT OF MINORITY GROUP
MEMBERS AND WOMEN; AND THE NUMBER OF STATE CONTRACTS AWARDED FOR WHICH
WAIVERS OF EMPLOYMENT GOALS REQUIRED BY THE CONTRACTS HAVE BEEN GRANTED;
(d-1) to require all contracting state agencies to develop a four-year
growth plan to determine a means of promoting and increasing partic-
ipation by [minority-owned] MINORITY and women-owned business enter-
prises with respect to state contracts and subcontracts. Every four
years, beginning September fifteenth, two thousand twenty, each
contracting state agency shall submit a four-year growth plan as part of
its annual report to the governor and legislature pursuant to section
one hundred sixty-four of this chapter[.];
(e) on January first of each year report to the governor, THE TEMPO-
RARY PRESIDENT OF THE SENATE, THE SPEAKER OF THE ASSEMBLY, THE MINORITY
LEADERS OF THE SENATE AND THE ASSEMBLY, and the chairpersons of the
senate finance and assembly ways and means committees on the [level]
ACTUAL VERSUS PROJECTED LEVELS of minority and women-owned business
enterprises participating in each agency's contracts for goods [and],
services AND CONSTRUCTION, INCLUDING BUT NOT LIMITED TO THE NUMBER OF
STATE CONTRACTS AWARDED TO CERTIFIED MINORITY OR WOMEN-OWNED BUSINESS
ENTERPRISES, THE MAXIMUM DOLLAR AMOUNT OBLIGATED PURSUANT TO ALL THOSE
CONTRACTS, AND THE TOTAL EXPENDITURES MADE PURSUANT TO ALL SUCH
CONTRACTS, and on activities of the office and effort by each contract-
ing agency to promote employment of minority group members and women,
and to promote and increase participation by certified businesses with
respect to state contracts and subcontracts so as to facilitate the
award of a fair share of state contracts to such businesses. The comp-
troller shall assist the division in collecting information on the
participation of certified business for each contracting agency. Such
report may recommend new activities and programs to effectuate the
purposes of this article;
S. 5464 3
(E-1) THE DIRECTOR SHALL LIST IN THE DIVISION'S ANNUAL REPORT THE
NAMES OF NON-COMPLIANT AGENCIES AND THE EXTENT OF THEIR NONCOMPLIANCE IN
SUBMITTING ITS QUARTERLY MINORITY AND WOMEN-OWNED BUSINESS ENTERPRISE
UTILIZATION REPORTS; AND, SHALL IMPLEMENT A MASTER LIST OF ALL THE STATE
AGENCIES REQUIRED TO FILE QUARTERLY COMPLIANCE REPORTS AND SHALL ATTACH
SUCH LIST TO THE DIVISION'S ANNUAL REPORT;
(f) to prepare and update, [no less than annually,] QUARTERLY a direc-
tory of certified minority and women-owned business enterprises which
shall, wherever practicable, be divided into categories of labor,
services, supplies, equipment, materials and recognized construction
trades and which shall indicate areas or locations of the state where
such enterprises are available to perform services, and to use this
information to create an internet based, searchable, centralized state
registry detailing certifications, waivers, and all documents submitted
pertaining to certification or denial of certification, or compliance
with goals for utilization of minority and women-owned business enter-
prises;
(g) to appoint independent hearing officers who by contract or terms
of employment shall preside over adjudicatory hearings pursuant to
section three hundred fourteen of this article for the office and who
are assigned no other work by the office;
(h) notwithstanding the provisions of section two hundred ninety-six
of this chapter, to file a complaint pursuant to the provisions of
section two hundred ninety-seven of this chapter where the director has
knowledge that a contractor may have violated the provisions of para-
graph (a), (b) or (c) of subdivision one of section two hundred ninety-
six of this chapter where such violation is unrelated, separate or
distinct from the state contract as expressed by its terms;
(i) to streamline the state certification process to accept federal
and municipal corporation certifications;
(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;
(k) to work in conjunction with the industrial commissioner pursuant
to paragraph (j) of subdivision one of section eight hundred eleven of
the labor law to assist contractors in identifying minority group
members and women who are participating in apprenticeship agreements
under article twenty-three of the labor law[.];
(l) to perform inspections of minority or women-owned business's place
of business, warehouse or storage facility to confirm the existence of a
workforce, equipment and supplies;
(m) to perform inspections of financial records of minority or women-
owned business enterprises to ensure such enterprises are in compliance
with applicable laws; and
(n) to ensure the protection of individuals who report suspected
violations of this article and applicable laws related to minority and
women-owned business enterprises.
4. The director shall provide assistance to, and facilitate access to
programs serving certified businesses as well as applicants to ensure
that such businesses benefit, as needed, from technical, managerial and
financial, and general business assistance; training; marketing; organ-
ization and personnel skill development; project management assistance;
technology assistance; bond and insurance education assistance; and
other business development assistance. The director shall maintain a
toll-free number at the department of economic development to be used to
answer questions concerning the MWBE certification process. In addition,
S. 5464 4
the director [may] SHALL, either independently or in conjunction with
other state agencies:
(a) develop a clearinghouse of information on programs and services
provided by entities that may assist such businesses;
(b) review bonding and paperwork requirements imposed by contracting
agencies that may unnecessarily impede the ability of such businesses to
compete; [and]
(c) seek to maximize utilization by minority and women-owned business
enterprises of available federal resources including but not limited to
federal grants, loans, loan guarantees, surety bonding guarantees, tech-
nical assistance, and programs and services of the federal small busi-
ness administration[.];
(d) conduct outreach events, training workshops, seminars, and other
such educational programs throughout the state, including all regional
offices, to state agencies, external stakeholders, and the public, to
promote awareness and utilization of minority and women-owned business
enterprises; and
(e) identify and establish mentorship opportunities and other business
development programs to increase capacity and better prepare MWBEs for
bidding on contracts with state agencies upon successful completion of
the mentorship opportunity. Such mentorship opportunities shall be
intended to ensure that mentor and mentee are connected based on a
commercially useful function.
§ 2. Subdivision 5 of section 312 of the executive law, as added by
chapter 261 of the laws of 1988, is amended to read as follows:
5. The director shall promulgate rules and regulations to ensure that
contractors and subcontractors undertake programs of affirmative action
and equal employment opportunity as required by this section. Such rules
and regulations as they pertain to any particular agency shall be devel-
oped after consultation with contracting agencies. Such rules and regu-
lations [may] SHALL require a contractor, after notice in a bid solic-
itation, to submit an equal employment opportunity program [after bid
opening and prior to the award of any contract] AT THE TIME BIDS ARE
SUBMITTED, and [may] SHALL require the contractor or subcontractor to
submit compliance reports relating to the contractor's or subcontrac-
tor's operation and implementation of any equal employment opportunity
program in effect as of the date the contract is executed. The contract-
ing agency [may recommend to the director that] SHALL HAVE THE RIGHT TO
RECOMMEND THAT the director take appropriate action according to the
procedures set forth in section three hundred sixteen of this article
against the contractor for noncompliance with the requirements of this
section. The contracting agency shall be responsible for monitoring
compliance with this section.
§ 3. Subdivisions 2-a, 3 and paragraph (a) 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:
2-a. The director shall promulgate rules and regulations that will
accomplish the following:
(a) provide for the certification and decertification of minority and
women-owned business enterprises for all agencies through a single proc-
ess that meets applicable requirements;
(b) require that each contract solicitation document accompanying each
solicitation set forth the expected degree of minority and women-owned
business enterprise participation based, in part, on:
(i) the potential subcontract opportunities available in the prime
procurement contract;
S. 5464 5
(ii) the availability, as contained within the study, of certified
minority and women-owned business enterprises to respond competitively
to the potential subcontract opportunities as reflected in the divi-
sion's directory of certified minority and women-owned business enter-
prises; and
(iii) the findings of the disparity study;
(c) require that each agency provide a current list of certified
minority business enterprises to each prospective contractor or direct
them to the division's directory of certified minority and women-owned
business enterprises for such purpose;
(d) allow a contractor that is a certified [minority-owned] MINORITY
or women-owned business enterprise to use the work it performs to meet
requirements for use of certified [minority-owned] MINORITY or women-
owned business enterprises as subcontractors;
(e) establish criteria for agencies to credit the participation of
minority and women-owned business enterprises towards the achievement of
the minority and women-owned business enterprise participation goals on
a state contract based on the commercially useful function provided by
each minority and women-owned business enterprise on the contract;
(f) provide for joint ventures, which a bidder may count toward meet-
ing its minority and women-owned business enterprise participation;
(g) consistent with subdivision six of this section, provide for
circumstances under which an agency may waive obligations of the
contractor relating to minority and women-owned business enterprise
participation;
(h) require that an agency verify that minority and women-owned busi-
ness enterprises listed in a successful bid are actually participating
to the extent listed in the project for which the bid was submitted;
(i) provide for the collection of statistical data by each agency
concerning actual minority and women-owned business enterprise partic-
ipation;
(j) require each agency to consult the most current disparity study
when calculating agency-wide and contract specific participation goals
pursuant to this article; [and]
(K) ENCOURAGE JOINT VENTURES, PARTNERSHIPS, AND MENTOR-PROTEGE
RELATIONSHIPS AS DEFINED IN SECTION ONE HUNDRED FORTY-SEVEN OF THE STATE
FINANCE LAW, BETWEEN PRIME CONTRACTORS AND MINORITY AND WOMEN-OWNED
BUSINESS ENTERPRISES; AND
Such rules shall set forth the maximum personal net worth of a minori-
ty group member or woman who may be relied upon to certify a business as
a minority-owned business enterprise or women-owned business enterprise,
and may establish different maximum levels of personal net worth for
minority group members and women on an industry-by-industry basis for
such industries as the director shall determine. Such regulations relat-
ing 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 subcon-
tractors, as well as any such other factors needed to establish such
thresholds. The provisions of the regulations pertaining to personal net
worth shall, to the extent practicable, be implemented by June thirti-
eth, two thousand twenty and shall consider adjustments for inflation
annually on January first of the previous year according to the consumer
price index.
3. Solely for the purpose of providing the opportunity for meaningful
participation by certified businesses in the performance of state
S. 5464 6
contracts as provided in this section, state contracts shall include
leases of real property by a state agency to a lessee where: the terms
of such leases provide for the construction, demolition, replacement,
major repair or renovation of real property and improvements thereon by
such lessee; and the cost of such construction, demolition, replacement,
major repair or renovation of real property and improvements thereon
shall exceed the sum of one hundred thousand dollars. Reports to the
director pursuant to section three hundred fifteen of this article shall
include activities with respect to all such state contracts. Contracting
agencies shall include or require to be included with respect to state
contracts for the acquisition, construction, demolition, replacement,
major repair or renovation of real property and improvements thereon,
such provisions as [may] SHALL be necessary to effectuate the provisions
of this section in every bid specification and state contract, includ-
ing, but not limited to: (a) provisions requiring contractors to make a
good faith effort to solicit active participation by enterprises identi-
fied in the directory of certified businesses; (b) requiring the parties
to agree as a condition of entering into such contract, to be bound by
the provisions of section three hundred sixteen of this article; and (c)
requiring the contractor to include the provisions set forth in para-
graphs (a) and (b) of this subdivision in every subcontract in a manner
that the provisions will be binding upon each subcontractor as to work
in connection with such contract. Provided, however, that no such
provisions shall be binding upon contractors or subcontractors in the
performance of work or the provision of services that are unrelated,
separate or distinct from the state contract as expressed by its terms,
and nothing in this section shall authorize the director or any
contracting agency to impose any requirement on a contractor or subcon-
tractor except with respect to a state contract.
(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] WOMEN-OWNED
business enterprises adopted pursuant to this article and the regu-
lations of the director. Such rules and regulations: shall require a
contractor to submit a utilization plan [after bids are opened] AT THE
TIME BIDS ARE SUBMITTED, when bids are required, [but prior to the award
of a state contract]; shall require the contracting 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 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 director; shall require the contractor
to submit [periodic] QUARTERLY compliance reports relating to the opera-
tion 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 business enterprise partic-
ipation 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
S. 5464 7
with the minority and women-owned business enterprise participation
requirements set forth in the state contract where no waiver has been
granted.
§ 4. Subdivisions 1 and 3 of section 315 of the executive law, as
amended by chapter 96 of the laws of 2019, are amended to read as
follows:
1. Each contracting agency shall be responsible for monitoring state
contracts under its jurisdiction, and recommending matters to the office
respecting non-compliance with the provisions of this article so that
the office [may] SHALL take such action as [is appropriate] STATED IN
SUBDIVISION FOUR OF SECTION THREE HUNDRED SIXTEEN OF THIS ARTICLE. EACH
CONTRACTING AGENCY SHALL HAVE THE RIGHT TO RECOMMEND THAT THE DIRECTOR
IMPOSE A SANCTION, PENALTY, OR FINE FOR THREE OR MORE VIOLATIONS OF
SECTION THREE HUNDRED SIXTEEN OF THIS ARTICLE, to ensure compliance with
the provisions of this article, the rules and regulations of the direc-
tor issued hereunder and the contractual provisions required pursuant to
this article. All contracting agencies shall comply with the rules and
regulations of the office and are directed to cooperate with the office
and to furnish to the office such information and assistance as may be
required in the performance of its functions under this article.
3. [Each contracting agency shall report to the director with respect
to activities undertaken to promote employment of minority group members
and women and promote and increase participation by certified businesses
with respect to state contracts and subcontracts. Such reports shall be
submitted no later than May fifteenth of every year and shall include
such information as is necessary for the director to determine whether
the contracting agency and any contractor to the contracting agency have
complied with the purposes of this article, including, without limita-
tion, a summary of all waivers of the requirements of subdivisions six
and seven of section three hundred thirteen of this article allowed by
the contracting agency during the period covered by the report, includ-
ing a description of the basis of the waiver request and the rationale
for granting any such waiver and any instances in which the contract
agency has deemed a contractor to have committed a violation pursuant to
section three hundred sixteen of this article and such other information
as the director shall require. Each agency shall also include in such
annual report whether or not it has been required to prepare a remedial
plan, and, if so, the plan and the extent to which the agency has
complied with each element of the plan.] (A) EACH CONTRACTING AGENCY
SHALL PREPARE A QUARTERLY REPORT AND SUBMIT COPIES TO THE COMMISSIONER
OF ECONOMIC DEVELOPMENT, THE COMMISSIONER OF GENERAL SERVICES, AND THE
DIRECTOR AS TO THE LEVEL OF MINORITY AND WOMEN-OWNED BUSINESS ENTER-
PRISES PARTICIPATION IN THE AWARDING OF AGENCY CONTRACTS FOR GOODS AND
SERVICES, INCLUDING BUT NOT LIMITED TO, THE NUMBER OF STATE CONTRACTS
AWARDED TO CERTIFIED MINORITY OR WOMEN-OWNED BUSINESS ENTERPRISES; THE
MAXIMUM DOLLAR AMOUNT OBLIGATED PURSUANT TO SUCH CONTRACTS, AND THE
TOTAL EXPENDITURES MADE PURSUANT TO ALL SUCH CONTRACTS; THE NUMBER OF
STATE CONTRACTS AWARDED UPON WHICH A WAIVER WAS GRANTED FROM GOALS
REQUIRED BY THE CONTRACTS FOR BUSINESS PARTICIPATION BY CERTIFIED MINOR-
ITY OR WOMEN-OWNED BUSINESS ENTERPRISES, AND THE MAXIMUM AMOUNT OBLI-
GATED PURSUANT TO SUCH CONTRACTS; THE NUMBER OF STATE CONTRACTS AWARDED
WHICH REQUIRED GOALS FOR EMPLOYMENT OF MINORITY GROUP MEMBERS AND WOMEN;
AND THE NUMBER OF STATE CONTRACTS AWARDED FOR WHICH WAIVERS OF EMPLOY-
MENT GOALS REQUIRED BY THE CONTRACTS HAVE BEEN GRANTED;
S. 5464 8
(B) IN ADDITION, EACH CONTRACTING AGENCY SHALL BE RESPONSIBLE FOR THE
COST OF AN INDEPENDENT AUDIT RESULTING FROM THE AGENCY'S REPEATED
VIOLATIONS OF THIS SECTION.
(C) WITHIN THIRTY DAYS AFTER COMPLETION, A COPY OF THE QUARTERLY
MINORITY AND WOMEN-OWNED BUSINESS ENTERPRISE REPORT SHALL BE TRANSMITTED
TO THE COMMISSIONER OF ECONOMIC DEVELOPMENT, THE COMMISSIONER OF GENERAL
SERVICES, AND THE DIRECTOR. A CONTRACTING AGENCY, WHICH HAS NOT LET MORE
THAN TWO MILLION DOLLARS IN SERVICE AND/OR CONSTRUCTION CONTRACTS WITHIN
THE APPLICABLE PERIOD MAY APPLY TO THE COMMISSIONER OF ECONOMIC DEVELOP-
MENT, AND THE DIRECTOR FOR A WAIVER OF THE REQUIRED ANNUAL REPORT. THE
WAIVER APPLICATION SHALL BE MADE ON SUCH FORM AS THE COMMISSIONER OF
ECONOMIC DEVELOPMENT AND THE DIRECTOR MAY PRESCRIBE.
(D) IF A CONTRACTING AGENCY SHALL FAIL TO FILE OR SUBSTANTIALLY
COMPLETE, AS DETERMINED BY THE COMMISSIONER OF ECONOMIC DEVELOPMENT AND
THE DIRECTOR, THE REPORT REQUIRED BY THIS SECTION, THE DIRECTOR SHALL
PROVIDE NOTICE TO THE CONTRACTING AGENCY. THE NOTICE SHALL STATE THE
FOLLOWING:
(I) THAT THE FAILURE TO FILE A REPORT AS REQUIRED IS A VIOLATION OF
THIS SECTION, OR IN CASE OF AN INSUFFICIENT REPORT, THE MANNER IN WHICH
THE REPORT SUBMITTED IS DEFICIENT;
(II) THAT THE CONTRACTING AGENCY HAS THIRTY DAYS TO COMPLY WITH THIS
SECTION OR PROVIDE AN ADEQUATE WRITTEN EXPLANATION TO THE COMMISSIONER
OF ECONOMIC DEVELOPMENT, THE COMMISSIONER OF GENERAL SERVICES AND THE
DIRECTOR OF THE CONTRACTING AGENCY'S REASONS FOR THE INABILITY TO
COMPLY; AND
(III) THAT THE CONTRACTING AGENCY'S CONTINUED FAILURE TO PROVIDE
EITHER THE REQUIRED REPORT OR AN ADEQUATE EXPLANATION WILL RESULT IN AN
INDEPENDENT AUDIT OF THE CONTRACTING AGENCY, THE COST OF WHICH SHALL BE
BORNE BY THE CONTRACTING AGENCY.
§ 5. Section 316 of the executive law, as amended by chapter 567 of
the laws of 2022, is amended to read as follows:
§ 316. [Enforcement] VIOLATIONS AND ENFORCEMENT. 1. IT SHALL BE A
VIOLATION FOR ANY PERSON OR ENTITY TO:
(A) INTENTIONALLY USE OR ACQUIRE AN MWBE NAME THROUGH DECEIT OR OTHER
DISHONEST MEANS IN ORDER TO NEGOTIATE A LOWER BID FROM A NON-MWBE.
(B) SUBMIT TO THE DEPARTMENT OF ECONOMIC DEVELOPMENT, DOCUMENTS OR
OTHER MATERIAL AS EVIDENCE OF A GOOD FAITH EFFORT TO COMPLY WITH THE
PROVISIONS OF THIS ARTICLE WITHOUT, IN FACT, HAVING ENTERED INTO ANY
CONTRACT, AGREEMENT, SUBCONTRACT, OR SUB-AGREEMENT WITH AN MWBE FOR THE
USE OR PURCHASE OF SUCH BUSINESS ENTERPRISE'S GOODS OR SERVICES IN THE
PERFORMANCE OF THE AWARDED STATE CONTRACT.
(C) FAIL TO PROVIDE AN MWBE WITH SUFFICIENT INFORMATION OR OTHER
REQUIRED SUPPORTING DOCUMENTATION IN ORDER FOR THE MWBE TO PREPARE A
PROPER BID.
2. Upon receipt by the director of a complaint by a contracting agency
that a contractor has violated the provisions of a state contract which
have been included to comply with the provisions of this article or of a
contractor that a contracting agency has violated such provisions or has
failed or refused to issue a waiver where one has been applied for
pursuant to subdivision six of section three hundred thirteen of this
article or has denied such application, the director shall attempt to
resolve the matter giving rise to such complaint. If efforts to resolve
such matter to the satisfaction of all parties are unsuccessful, the
director shall refer the matter, within thirty days of the receipt of
the complaint, to the division's hearing officers. Upon conclusion of
the administrative hearing, the hearing officer shall submit to the
S. 5464 9
director his or her decision regarding the alleged violation of the
contract and recommendations regarding the imposition of sanctions,
fines or penalties. The director, within ten days of receipt of the
decision, shall file a determination of such matter and shall cause a
copy of such determination along with a copy of this article to be
served upon the contractor by personal service or by certified mail
return receipt requested. The decision of the hearing officer shall be
final and may only be vacated or modified as provided in article seven-
ty-eight of the civil practice law and rules upon an application made
within the time provided by such article. The determination of the
director as to the imposition of any fines, sanctions or penalties shall
be reviewable pursuant to article seventy-eight of the civil practice
law and rules. The penalties imposed for any violation which is premised
upon either a fraudulent or intentional misrepresentation by the
contractor or the contractor's willful and intentional disregard of the
minority and women-owned participation requirement included in the
contract may include a determination that the contractor shall be ineli-
gible to submit a bid to any contracting agency or be awarded any such
contract for a period not to exceed one year following the final deter-
mination; provided however, if a contractor has previously been deter-
mined to be ineligible to submit a bid pursuant to this section, the
penalties imposed for any subsequent violation, if such violation occurs
within five years of the first violation, may include a determination
that the contractor shall be ineligible to submit a bid to any contract-
ing agency or be awarded any such contract for a period not to exceed
five years following the final determination. The division of minority
and women's business development shall maintain a website listing all
contractors that have been deemed ineligible to submit a bid pursuant to
this section and the date after which each contractor shall once again
become eligible to submit bids.
[2.] 3. Any fines, or portion thereof, imposed pursuant to the forego-
ing subdivision, or imposed by a court of competent jurisdiction related
to convictions involving fraud related to this article or otherwise
involving a minority or women-owned business enterprise, may be required
by the entity imposing such fines to be paid to the minority and women-
owned business enterprise fund established pursuant to section ninety-
seven-k of the state finance law.
4. THE DIRECTOR SHALL IMPOSE A SANCTION, PENALTY, OR FINE ON ANY INDI-
VIDUAL OR ENTITY THAT HAS THREE OR MORE VIOLATIONS OF THIS ARTICLE WITH-
IN FIVE YEARS. SUCH FINE SHALL BE PAID BY SUCH INDIVIDUAL OR ENTITY.
NOTWITHSTANDING THE PROVISIONS OF SUBDIVISION THREE OF THIS SECTION,
SUCH FINE SHALL BE REMITTED AND DEPOSITED INTO A FUND, TO BE MANAGED BY
THE COMMISSIONER OF ECONOMIC DEVELOPMENT. SUCH FUNDS SHALL BE USED TO
SUBSIDIZE THE FACILITATION OF THE PROVISIONS OF THIS ARTICLE. OTHER
SANCTIONS SHALL INCLUDE BARRING SUCH ENTITY OR INDIVIDUAL FROM CONTRACT-
ING WITH SUCH AGENCY FOR A PERIOD NOT TO EXCEED FIVE YEARS.
§ 6. Subdivision 1 of section 137 of the state finance law, as sepa-
rately amended by section 17 of part MM of chapter 57 and by chapter 619
of the laws of 2008, is amended to read as follows:
1. In addition to other bond or bonds, if any, required by law for the
completion of a work specified in a contract for the prosecution of a
public improvement for the state of New York a municipal corporation, a
public benefit corporation or a commission appointed pursuant to law, or
in the absence of any such requirement, the comptroller may or the other
appropriate official, respectively, shall nevertheless require prior to
the approval of any such contract a bond guaranteeing prompt payment of
S. 5464 10
moneys due to all persons furnishing labor or materials to the contrac-
tor or any subcontractors in the prosecution of the work provided for in
such contract. Whenever a municipal corporation issues a permit subject
to compliance with section two hundred twenty of the labor law, such
permittee or its contractor or subcontractors furnishing workers shall
post a payment bond subject to this section. Provided, however, that all
performance bonds and payment bonds may, at the discretion of the head
of the state agency, public benefit corporation or commission, or his or
her designee, be dispensed with for the completion of a work specified
in a contract for the prosecution of a public improvement for the state
of New York for which bids are solicited where the aggregate amount of
the contract is under one hundred FIFTY thousand dollars and provided
further, that in a case where the contract is not subject to the multi-
ple contract award requirements of section one hundred thirty-five of
this article, such requirements may be dispensed with where the head of
the state agency, public benefit corporation or commission finds it to
be in the public interest and where the aggregate amount of the contract
awarded or to be awarded is less than two hundred thousand dollars. THE
HEAD OF THE STATE AGENCY, PUBLIC BENEFIT CORPORATION OR COMMISSION, OR
HIS OR HER DESIGNEE, SHALL ADJUST THE AGGREGATE CONTRACT AMOUNTS LISTED
IN THIS SUBDIVISION EVERY YEAR TO ACCOUNT FOR INCREASES IN THE COSTS OF
CONSTRUCTION. ADVERTISEMENTS FOR BIDS SHALL PROVIDE INFORMATION ON THE
REQUIREMENTS FOR, OR DISPENSATION OF, PERFORMANCE AND PAYMENT BONDS.
Provided further, that in a case where a performance or payment bond is
dispensed with, twenty per centum may be retained from each progress
payment or estimate until the entire contract work has been completed
and accepted, at which time the head of the state agency, public benefit
corporation or commission shall, pending the payment of the final esti-
mate, pay not to exceed seventy-five per centum of the amount of the
retained percentage.
§ 7. Subdivision 4 of section 139-f of the state finance law, as
amended by chapter 83 of the laws of 1995, is amended to read as
follows:
4. Notwithstanding any other provision of this section or other law,
requirements for the furnishing of a performance bond or a payment bond
may be dispensed with at the discretion of the head of the state agency
or corporation, or his or her designee, where the public owner is a
state agency or corporation described in subdivision one-a of this
section and the aggregate amount of the contract awarded or to be
awarded is under fifty thousand dollars and, in a case where the
contract is not subject to the multiple contract award requirements of
section one hundred thirty-five of this article, such requirements may
be dispensed with where the head of the state agency or corporation
finds it to be in the public interest and where the aggregate amount of
the contract awarded or to be awarded is under [two] THREE hundred thou-
sand dollars. THE HEAD OF THE STATE AGENCY, PUBLIC BENEFIT CORPORATION
OR COMMISSION, OR HIS OR HER DESIGNEE, SHALL ADJUST THE AGGREGATE
CONTRACT AMOUNTS LISTED IN THIS SUBDIVISION EVERY YEAR TO ACCOUNT FOR
INCREASES IN THE COSTS OF CONSTRUCTION. ADVERTISEMENTS FOR BIDS SHALL
PROVIDE INFORMATION ON THE REQUIREMENTS FOR, OR DISPENSATION OF,
PERFORMANCE AND PAYMENT BONDS. Provided further, that in a case where a
performance or payment bond is dispensed with, twenty per centum may be
retained from each progress payment or estimate until the entire
contract work has been completed and accepted, at which time the head of
the state agency or corporation shall, pending the payment of the final
S. 5464 11
estimate, pay not to exceed seventy-five per centum of the amount of the
retained percentage.
§ 8. The opening paragraph of section 139-g of the state finance law,
as amended by chapter 636 of the laws of 2003, is amended to read as
follows:
In every state agency, department and authority which has let more
than two million dollars in service and construction contracts AND STATE
ASSISTED PROJECT CONTRACTS in the prior fiscal year, the chief executive
officer of that agency, department or authority shall, with respect to
those contracts AND STATE ASSISTED PROJECT CONTRACTS let by his OR HER
agency, department or authority:
§ 9. The opening paragraph of subdivision (b) of section 139-g of the
state finance law, as amended by chapter 636 of the laws of 2003, is
amended to read as follows:
identify all small-business and certified women and minority-owned
business concerns which, in the judgment of the chief executive officer
of that agency, department or authority, can bid on those contracts AND
STATE ASSISTED PROJECT CONTRACTS which are usually and customarily let
by that agency, department or authority, OR IN WHICH THAT AUTHORITY
PROVIDES A GRANT OR LOAN OR TAX EXEMPT FINANCING, with a reasonable
expectation of success. Such chief executive officers shall carry out
the provisions of this subdivision:
§ 10. Section 139-g of the state finance law is amended by adding a
new subdivision (e) to read as follows:
(E) FOR THE PURPOSES OF THIS SECTION, THE FOLLOWING TERMS SHALL HAVE
THE FOLLOWING MEANINGS:
(I) "STATE ASSISTED PROJECT CONTRACT" SHALL MEAN ANY WRITTEN AGREEMENT
ARISING OUT OF A STATE ASSISTED HOUSING PROJECT OR STATE ASSISTED
ECONOMIC DEVELOPMENT PROJECT OR STATE ASSISTED HIGHER EDUCATION PROJECT
OR STATE ASSISTED HOSPITAL OR HEALTH CARE FACILITY PROJECT, FOR WHICH
THE TOTAL PROJECT COST EXCEEDS TWO MILLION DOLLARS AND FOR WHICH THE
PROJECT OWNER IS COMMITTED TO SPEND OR DOES EXPEND FUNDS FOR THE ACQUI-
SITION, CONSTRUCTION, DEMOLITION, REPLACEMENT, MAJOR REPAIR, OR RENO-
VATION OF REAL PROPERTY AND IMPROVEMENTS THEREON FOR SUCH PROJECT.
(II) "STATE ASSISTED HOUSING PROJECT" SHALL MEAN THOSE PROJECTS WHICH
RECEIVE FROM THE NEW YORK STATE HOUSING FINANCE AGENCY TAX-EXEMPT
FINANCING FOR ALL OR PART OF THE TOTAL PROJECT COST.
(III) "STATE ASSISTED ECONOMIC DEVELOPMENT PROJECT" SHALL MEAN THOSE
PROJECTS WHICH RECEIVE FROM THE NEW YORK FOUNDATION OF SCIENCE, TECHNOL-
OGY AND INNOVATION, OR THE URBAN DEVELOPMENT CORPORATION AND ITS SUBSID-
IARIES A GRANT OR LOAN OR TAX-EXEMPT FINANCING FOR ALL OR PART OF THE
TOTAL PROJECT COST.
(IV) "STATE ASSISTED HIGHER EDUCATION PROJECT" SHALL MEAN THOSE
PROJECTS WHICH RECEIVE FROM THE DORMITORY AUTHORITY OF THE STATE OF NEW
YORK A GRANT OR LOAN OR TAX-EXEMPT FINANCING FOR ALL OR PART OF THE
TOTAL PROJECT COST.
(V) "STATE ASSISTED HOSPITAL OR HEALTH CARE FACILITY PROJECT" SHALL
MEAN THOSE PROJECTS WHICH RECEIVE FROM THE DORMITORY AUTHORITY OF THE
STATE OF NEW YORK A GRANT OR LOAN OR TAX-EXEMPT FINANCING FOR ALL OR
PART OF THE TOTAL PROJECT COST.
§ 11. This act shall take effect immediately, provided however, the
amendments to article 15-A of the executive law made by sections one,
two, three, four and five of this act shall not affect the expiration of
such article and shall be deemed repealed therewith.
