S T A T E O F N E W Y O R K
________________________________________________________________________
4155
2025-2026 Regular Sessions
I N S E N A T E
February 3, 2025
___________
Introduced by Sens. SANDERS, COONEY, FERNANDEZ, PARKER, WEBB -- 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 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 40 of the laws of 2023, are
amended and six new paragraphs (b-1), (b-2), (b-3), (b-4), (b-5) and (e)
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
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
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD07242-01-5
S. 4155 2
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 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] THE CONTRACTOR intends to take to comply
with the provisions of this article[, but may not require, as a condi-
tion 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
AGENCY SHALL RE-AWARD SUCH CONTRACT TO THE NEXT LOWEST BIDDER OR ELIGI-
BLE BIDDER.
S. 4155 3
(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.
(E) 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.
