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A09700 Summary:

BILL NOA09700
 
SAME ASNo Same As
 
SPONSORBichotte
 
COSPNSRGottfried, Solages, Sepulveda, Mosley, Cook, Seawright, Walker, Hooper, Robinson, Hyndman, Blake, Jean-Pierre
 
MLTSPNSRBrennan, Simon
 
Amd 163, St Fin L; amd 313 & 310, Exec L; amd 103, Gen Muni L
 
Requires utilization of minority and women-owned business enterprises as subcontractors as a condition when awarding sole source procurement contracts; relates to the issuance of waivers of the obligation to comply with the minority and women-owned business enterprise participation requirements of a contract if such contract is a single source or sole source procurement contract; requires municipalities to require contract award recipients to utilize the services of minority and women-owned business enterprises; makes conforming changes.
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A09700 Memo:

NEW YORK STATE ASSEMBLY
MEMORANDUM IN SUPPORT OF LEGISLATION
submitted in accordance with Assembly Rule III, Sec 1(f)
 
BILL NUMBER: A9700
 
SPONSOR: Bichotte
  TITLE OF BILL: An act to amend the state finance law, in relation to requiring utiliza- tion of minority and women-owned business enterprises as subcontractors as a condition when awarding sole source procurement contracts; to amend the executive law, in relation to the issuance of waivers of the obli- gation to comply with the minority and women-owned business enterprise participation requirements of a contract if such contract is a single source or sole source procurement contract; to amend the general munici- pal law, in relation to requiring municipalities to require contract award recipients to utilize the services of minority and women-owned business enterprises; to amend the executive law, in relation to making conforming changes; and providing for the repeal of certain provisions upon expiration thereof   PURPOSE OR GENERAL IDEA OF BILL: The purpose of this bill is to amend the state finance law and executive law so that the sole source procurement process will include the solic- itation of minority and women-owned business enterprises.   SUMMARY OF SPECIFIC PROVISIONS: Section 1 paragraph b subdivision 10 of section 163 of the state finance law is amended adding a new subparagraph (iii) (iii) All single source or sole source procurement contracts made pursu- ant to the provisions of this paragraph shall require that the award recipient comply with the provisions of article fifteen-A of the execu- tive law relating to minority and women-owned business enterprise participation when contracting with subcontractors. Subdivision 6 of 313 of the executive law as amended by chapter 175 of the laws of 2010 A good faith effort will be made by the contractor to find qualified MWBEs in the region, if in good faith it is found that there is not reasonable availability of MWBEs that are able meet the criteria set forth by a contractor as it relates to the total dollar value of contract, the scope of work to be performed, and the project size and term, the contract can apply for a waiver. The contractor will then be able to consider other business enterprises in the region. (b) A contracting agency shall not issue a total waiver of the obli- gation to comply with the minority and women-owned business enterprise participation requirements, however, that if the contracting agency determines there is not a reasonable availability of contractors on the list of certified business to furnish services for the project, the contracting agency may issue a partial waiver of compliance to the contractor. § 3. Section 103 of the general municipal law is amended by adding a 15 new subdivision 17 to read as follows: 17. All contractors are expected to comply with provisions of section three hundred thirteen of the executive law; however in the event that they are not able to comply, a waiver can be requested. § 4. Subdivisions 2, 3 and 13 of section 310 of the executive law, subdivisions 2 and 3 as added by chapter 261 of the laws of 1988 and subdivision 13 as amended by chapter 506 of the laws of 2009, are amended to read as follows: For the purposes of this article, "state contract" shall include munici- pal contracts.   JUSTIFICATION: The bill will require that when a contractor is sourcing for sole source or single source procurement vendors,that a good faith effort will be made to include minority and women-owned business enterprises. If reasonable availability of MWBEs is not found in the region, a contrac- tor will be able to consider other business enterprises in the region, and thereafter MBEs outside the region.   PRIOR LEGISLATIVE HISTORY: This is new legislation.   FISCAL IMPLICATIONS: None.   EFFECTIVE DATE: This act shall take effect immediately and shall expire on the same date and in the same manner as article 15-a of the executive law.
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A09700 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                          9700
 
                   IN ASSEMBLY
 
                                      April 5, 2016
                                       ___________
 
        Introduced by M. of A. BICHOTTE -- read once and referred to the Commit-
          tee on Governmental Operations
 
        AN ACT to amend the state finance law, in relation to requiring utiliza-
          tion  of  minority and women-owned business enterprises as subcontrac-
          tors as a condition when awarding sole source  procurement  contracts;
          to  amend the executive law, in relation to the issuance of waivers of
          the obligation to comply with the minority  and  women-owned  business
          enterprise  participation  requirements of a contract if such contract
          is a single source or sole source procurement contract; to  amend  the
          general  municipal  law,  in  relation  to requiring municipalities to
          require contract award recipients to utilize the services of  minority
          and  women-owned  business enterprises; to amend the executive law, in
          relation to making conforming changes; and providing for the repeal of
          certain provisions upon expiration thereof
 
          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:
 
     1    Section  1.  Paragraph b of subdivision 10 of section 163 of the state
     2  finance law is amended by adding a new subparagraph  (iii)  to  read  as
     3  follows:
     4    (iii)  All  single  source  or  sole source procurement contracts made
     5  pursuant to the provisions of this  paragraph  shall  require  that  the
     6  award  recipient  comply with the provisions of article fifteen-A of the
     7  executive law relating to minority and women-owned  business  enterprise
     8  participation when contracting with subcontractors.
     9    §  2. Subdivision 6 of section 313 of the executive law, as amended by
    10  chapter 175 of the laws of 2010, is amended to read as follows:
    11    6. (a) Where it appears that a contractor cannot, after a  good  faith
    12  effort,  comply  with  the  minority and women-owned business enterprise
    13  participation requirements set forth in a particular state  contract,  a
    14  contractor  may  file  a written application with the contracting agency
    15  requesting a partial or total waiver of such requirements setting  forth
    16  the  reasons  for  such contractor's inability to meet any or all of the
    17  participation requirements together with an explanation of  the  efforts
    18  undertaken  by the contractor to obtain the required minority and women-
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD14863-01-6

        A. 9700                             2
 
     1  owned business enterprise participation. In implementing the  provisions
     2  of  this  section,  the contracting agency shall consider the number and
     3  types of minority and women-owned business enterprises  located  in  the
     4  region  in which the state contract is to be performed, the total dollar
     5  value of the state contract, the scope of work to be performed  and  the
     6  project size and term. If, based on such considerations, the contracting
     7  agency  determines there is not a reasonable availability of contractors
     8  on the list of certified business to furnish services for  the  project,
     9  it  shall issue a waiver of compliance to the contractor. In making such
    10  determination, the contracting agency shall first  consider  the  avail-
    11  ability  of  other  business enterprises located in the region and shall
    12  thereafter consider the financial ability of  minority  and  women-owned
    13  businesses  located  outside  the  region in which the contract is to be
    14  performed to perform the state contract.
    15    (b) A contracting agency shall not issue a total waiver of  the  obli-
    16  gation  to  comply with the minority and women-owned business enterprise
    17  participation requirements of a contract if such contract  is  a  single
    18  source  or  sole source procurement contract as described in section one
    19  hundred sixty-three of the state finance law; provided, however, that if
    20  the contracting agency determines there is not a reasonable availability
    21  of contractors on the list of certified business to furnish services for
    22  the project, the contracting  agency  may  issue  a  partial  waiver  of
    23  compliance to the contractor.
    24    §  3.  Section 103 of the general municipal law is amended by adding a
    25  new subdivision 17 to read as follows:
    26    17. All contracts awarded pursuant to the provisions of this  section,
    27  including  single  source  or  sole  source procurement contracts, shall
    28  require the contract recipient to comply with the provisions of  section
    29  three  hundred  thirteen  of  the executive law, to the extent that such
    30  provisions apply; provided, however, that a contract recipient granted a
    31  waiver of compliance as provided in section three  hundred  thirteen  of
    32  the  executive  law  shall  be  deemed  to  be  in  compliance with such
    33  provisions.
    34    § 4. Subdivisions 2, 3 and 13 of section 310  of  the  executive  law,
    35  subdivisions  2  and  3  as added by chapter 261 of the laws of 1988 and
    36  subdivision 13 as amended by chapter  506  of  the  laws  of  2009,  are
    37  amended to read as follows:
    38    2.  "Contracting  agency"  shall  mean;  (a) a state agency which is a
    39  party or a proposed party to a state contract or, in the case of a state
    40  contract described in paragraph (c)  of  subdivision  thirteen  of  this
    41  section,  shall  mean the New York state housing finance agency, housing
    42  trust fund corporation or affordable housing corporation, whichever  has
    43  made  or proposes to make the grant or loan for the state assisted hous-
    44  ing project; and (b) a municipality which is a party or a proposed party
    45  to a municipal contract.
    46    3. "Contractor" shall  mean  an  individual,  a  business  enterprise,
    47  including  a  sole  proprietorship, a partnership, a corporation, a not-
    48  for-profit corporation, or any other  party  to  a  state  or  municipal
    49  contract, or a bidder in conjunction with the award of a state or munic-
    50  ipal contract or a proposed party to a state or municipal contract.
    51    13.  "State  contract" shall mean: (a) a written agreement or purchase
    52  order instrument, providing for a total expenditure in excess  of  twen-
    53  ty-five  thousand  dollars, whereby a contracting agency is committed to
    54  expend or does expend funds in return for labor, services including  but
    55  not  limited  to  legal,  financial  and  other  professional  services,
    56  supplies, equipment, materials or any combination of the  foregoing,  to

        A. 9700                             3
 
     1  be  performed  for,  or rendered or furnished to the contracting agency;
     2  (b) a written agreement in excess of one hundred thousand dollars where-
     3  by a contracting agency is committed to expend or does expend funds  for
     4  the  acquisition, construction, demolition, replacement, major repair or
     5  renovation of real property and improvements thereon; and (c) a  written
     6  agreement in excess of one hundred thousand dollars whereby the owner of
     7  a  state  assisted housing project is committed to expend or does expend
     8  funds for the acquisition, construction, demolition, replacement,  major
     9  repair  or renovation of real property and improvements thereon for such
    10  project.   For the purposes of  this  article,  "state  contract"  shall
    11  include  municipal  contracts as described in subdivision twenty-four of
    12  this section.
    13    § 5. Section 310 of the executive law  is  amended  by  adding  a  new
    14  subdivision 24 to read as follows:
    15    24.  "Municipal  contract"  shall  mean:  (a)  a  written agreement or
    16  purchase order instrument, providing for a total expenditure  in  excess
    17  of  twenty-five thousand dollars, whereby a municipal contracting agency
    18  is committed to expend  or  does  expend  funds  in  return  for  labor,
    19  services including but not limited to legal, financial and other profes-
    20  sional  services,  supplies,  equipment, materials or any combination of
    21  the foregoing, to be performed for, or  rendered  or  furnished  to  the
    22  municipal  contracting  agency; (b) a written agreement in excess of one
    23  hundred thousand dollars  whereby  a  municipal  contracting  agency  is
    24  committed   to   expend  or  does  expend  funds  for  the  acquisition,
    25  construction, demolition, replacement, major  repair  or  renovation  of
    26  real  property  and improvements thereon; and (c) a written agreement in
    27  excess of one hundred thousand dollars whereby the owner of a  municipal
    28  assisted housing project is committed to expend or does expend funds for
    29  the  acquisition, construction, demolition, replacement, major repair or
    30  renovation of real property and improvements thereon for such project.
    31    § 6. This act shall take effect immediately and shall  expire  on  the
    32  same  date  and  in the same manner as article 15-A of the executive law
    33  pursuant to subdivision (h) of section 121 of chapter 261 of the laws of
    34  1988, as amended; provided, however that the amendments to  paragraph  b
    35  of  subdivision  10  of  section  163  of  the state finance law made by
    36  section one of this act shall not affect the repeal of such section  and
    37  shall  be deemed repealed therewith or shall be deemed repealed upon the
    38  expiration of article 15-A of the executive law, whichever  shall  occur
    39  first.
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