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A07778 Summary:

BILL NOA07778
 
SAME ASSAME AS S00634-A
 
SPONSORBichotte Hermelyn
 
COSPNSRSimon, Fernandez, Barron, Zinerman, Seawright, Jackson
 
MLTSPNSR
 
Amd §313, Exec L
 
Requires 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; mandates that the prime contractor use such enterprise identified on the utilization plan, unless such enterprise cannot perform or is no longer state certified.
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A07778 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                          7778
 
                               2021-2022 Regular Sessions
 
                   IN ASSEMBLY
 
                                      May 21, 2021
                                       ___________
 
        Introduced  by  M.  of A. BICHOTTE HERMELYN -- read once and referred to
          the Committee on Governmental Operations
 
        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:
 
     1    Section 1. Paragraphs (a) and (b) of subdivision 5 of section  313  of
     2  the  executive  law,  as  amended by chapter 96 of the laws of 2019, are
     3  amended and six new paragraphs (b-1), (b-2), (b-3), (b-4), (b-5) and (d)
     4  are added to read as follows:
     5    (a) Contracting agencies shall administer the  rules  and  regulations
     6  promulgated  by the director in a good faith effort to achieve the maxi-
     7  mum feasible participation by [minority] both minority-owned and  [women
     8  owned] women-owned business enterprises adopted pursuant to this article
     9  and  the  regulations  of  the  director prior to the prime contractor's
    10  inception of the scope of work outlined in  an  awarded  contract.  Such
    11  rules  and  regulations:  shall require a prime contractor to [submit a]
    12  utilize the minority and women-owned business enterprises listed on  the
    13  utilization  plan [after] submitted when bids are opened, [when bids are
    14  required, but prior] provided that  the  minority-owned  or  women-owned
    15  business enterprise is still certified with New York state. Prior to the
    16  award of a state contract[; shall require] with minority and women-owned
    17  business  enterprise  goals the contracting agency [to] shall review the
    18  utilization plan submitted by the prime contractor and [to]  shall  post
    19  the  utilization  plan  and any waivers of compliance issued pursuant to
    20  subdivision six of this section on the website of the contracting  agen-
    21  cy[; shall require the]. Within five business days after an award letter
    22  is  sent to the prime contractor, the contracting agency shall submit an
    23  award notification letter  to  the  minority  and  women-owned  business
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD06047-03-1

        A. 7778                             2
 
     1  enterprise  listed on the utilization plan. The minority and women-owned
     2  business enterprise listed on the original utilization plan at the  time
     3  of  submission  shall  not be amended or changed by the contractor after
     4  submission to the contracting agency for approval. The contracting agen-
     5  cy shall be required to notify the prime contractor in writing within [a
     6  period  of  time specified by the director] ten days as to any deficien-
     7  cies contained in the contractor's utilization plan[;] and shall require
     8  remedy thereof within [a period of time specified by the director; shall
     9  require the contractor to submit periodic compliance reports relating to
    10  the operation and implementation of any utilization plan;] seven days of
    11  such notification. The contracting agency shall not allow any  automatic
    12  waivers  but  shall  allow  a contractor to apply for a partial or total
    13  waiver of the minority and women-owned business enterprise participation
    14  requirements pursuant to subdivisions six and  seven  of  this  section;
    15  shall  allow a contractor to file a complaint with the director pursuant
    16  to subdivision eight of this section in the event a  contracting  agency
    17  has  failed or refused to issue a waiver of the minority and women-owned
    18  business  enterprise  participation  requirements  or  has  denied  such
    19  request  for  a  waiver;  and shall allow a contracting agency to file a
    20  complaint with the director pursuant to subdivision nine of this section
    21  in the event a contractor is failing or has failed to  comply  with  the
    22  minority  and women-owned business enterprise participation requirements
    23  set forth in the state contract where no waiver has been granted.
    24    (b) The rules and regulations promulgated pursuant to this subdivision
    25  regarding a utilization plan shall provide that where  enterprises  have
    26  been  identified  within a utilization plan, a contractor shall attempt,
    27  in good faith, to utilize such enterprise [at least to the extent  indi-
    28  cated], unless such enterprise cannot perform under the contract or such
    29  enterprise is no longer certified by the state. A contracting agency may
    30  require  a contractor to indicate, within a utilization plan, what meas-
    31  ures and procedures he or  she  intends  to  take  to  comply  with  the
    32  provisions  of  this  article[,  but  may not require, as a condition of
    33  award of, or compliance with, a contract that  a  contractor  utilize  a
    34  particular enterprise in performance of the contract].
    35    (b-1)  After  the  contracting  agency  awards  a  contract, the prime
    36  contractor shall execute a subcontractor's agreement and provide a  work
    37  assignment  to  the minority and women-owned business enterprises listed
    38  in the utilization plan within forty-five days of such award.    Failure
    39  to  comply with this requirement shall result in disqualification of the
    40  prime contractor and the contracting agency shall re-award the  contract
    41  to the next lowest bidder or eligible bidder.
    42    (b-2)  After  receiving  the  first payment on the contract, the prime
    43  contractor shall make payments to the minority and women-owned  business
    44  enterprise  for  work performed under the contract within twenty days of
    45  receipt of each payment received from the contracting agency. A minority
    46  and women-owned business enterprise may notify the contracting agency of
    47  any violation  of  this  paragraph  by  the  prime  contractor  and  the
    48  contracting  agency  shall  then  notify the prime contractor to correct
    49  such deficiency within ten days of  notification.  The  failure  of  the
    50  contractor  to  make such payments to the minority and women-owned busi-
    51  ness enterprise shall result in  disqualification  and  the  contracting
    52  agency  shall re-award such contract to the next lowest bidder or eligi-
    53  ble bidder.
    54    (b-3) A prime contractor which is a certified minority-owned  business
    55  may  self-certify  and perform under the contract to meet the contract's
    56  minority-owned business enterprise goals.

        A. 7778                             3
 
     1    (b-4) A prime contractor which is a certified women-owned business may
     2  self-certify and perform under  the  contract  to  meet  the  contract's
     3  women-owned  business enterprise goal only, and it must utilize a certi-
     4  fied minority-owned business enterprise to perform under the contract to
     5  meet the contract's minority-owned business goals.
     6    (b-5)  A prime contractor which is dually certified minority-owned and
     7  women-owned business enterprise may self-certify and perform  under  the
     8  contract  to meet the contract's minority-owned and women-owned business
     9  enterprise goals.
    10    (d) This subdivision shall apply  to  all  public  contracts  where  a
    11  public  agency  issues  a request for proposals, notwithstanding whether
    12  the contract could otherwise be awarded through the agency's discretion-
    13  ary contract award process  or  the  non-existence  of  a  discretionary
    14  contract award process within the public agency.
    15    §  2.  This act shall take effect immediately; provided, however, that
    16  the amendments to subdivision 5 of section 313 of the executive law made
    17  by section one of this act shall not affect the repeal of  such  section
    18  and shall be deemed repealed therewith.
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