S00929 Summary:

BILL NOS00929A
 
SAME ASNo Same As
 
SPONSORORTT
 
COSPNSRAKSHAR, DEFRANCISCO, GALLIVAN, GOLDEN
 
MLTSPNSR
 
Add §139-l, St Fin L
 
Relates to obligations with respect to contracts with business enterprises which employ individuals with disabilities; defines qualified business enterprise as any business concern which employs a workforce consisting of at least fifteen percent employees with disabilities and has been certified under this section; sets goal of five percent of state contracts going to qualified business enterprises; establishes an office of statewide advocate, certification process, and enforcement mechanism.
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S00929 Actions:

BILL NOS00929A
 
01/05/2017REFERRED TO FINANCE
01/03/2018REFERRED TO FINANCE
01/29/2018AMEND AND RECOMMIT TO FINANCE
01/29/2018PRINT NUMBER 929A
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S00929 Committee Votes:

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S00929 Floor Votes:

There are no votes for this bill in this legislative session.
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S00929 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                         929--A
 
                               2017-2018 Regular Sessions
 
                    IN SENATE
 
                                     January 5, 2017
                                       ___________
 
        Introduced  by Sens. ORTT, AKSHAR, DeFRANCISCO, GALLIVAN, GOLDEN -- read
          twice and ordered printed, and when printed to  be  committed  to  the
          Committee  on  Finance  --  recommitted to the Committee on Finance in
          accordance with Senate Rule 6, sec. 8 --  committee  discharged,  bill
          amended,  ordered reprinted as amended and recommitted to said commit-
          tee
 
        AN ACT to amend the state finance law, in relation to  obligations  with
          respect  to  contracts with business enterprises which employ individ-
          uals with disabilities
 
          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:
 
     1    Section  1.  The  state finance law is amended by adding a new section
     2  139-l to read as follows:
     3    § 139-l. Obligations with respect to contracts with qualified business
     4  enterprises. 1. Definitions. (a) "Individual with  a  disability"  shall
     5  mean  a  person  (i)  with  a  physical, mental or medical impairment of
     6  anatomical, physiological or neurological conditions which prevents  the
     7  exercise  of  a  normal  bodily function or is demonstrable by medically
     8  accepted clinical or laboratory diagnostic techniques, or  (ii)  with  a
     9  record of such an impairment.
    10    (b) "Qualified business enterprise" or "certified business enterprise"
    11  shall  mean any business concern which employs a workforce consisting of
    12  at least fifteen percent of employees who are individuals with  a  disa-
    13  bility  as defined in this section, which has been certified pursuant to
    14  this section.
    15    2. Statewide advocate. There is hereby established within the  depart-
    16  ment  of  economic development an office of statewide advocate for indi-
    17  viduals with disabilities.  The statewide advocate shall be appointed by
    18  the commissioner of economic development and shall act as a liaison  for
    19  qualified  business  enterprises  to assist them in obtaining technical,
    20  managerial, financial and other business assistance.  The advocate shall
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD04600-02-8

        S. 929--A                           2
 
     1  investigate complaints brought by  or  on  behalf  of  such  enterprises
     2  concerning  certification  delays  and instances of violations of law by
     3  state agencies. The statewide advocate shall assist certified businesses
     4  and  applicants  in  the  certification  process. Other functions of the
     5  statewide advocate shall be directed by  the  commissioner  of  economic
     6  development.  The  advocate  may  appoint  staff to assist in his or her
     7  duties. The statewide advocate shall establish a toll-free number at the
     8  department of economic  development  to  be  used  to  answer  questions
     9  concerning the certification process.
    10    3.  Study  of qualified business enterprise programs. The commissioner
    11  of economic development is authorized and directed to undertake a state-
    12  wide disparity study regarding the participation of  qualified  business
    13  enterprises  employing individuals with disabilities in state contracts.
    14  The study shall be prepared by an entity independent of  the  department
    15  of  economic  development  and  selected  through a request for proposal
    16  process. The purpose of such study is to determine whether  there  is  a
    17  disparity  between  the  number of qualified business enterprises ready,
    18  willing and able to perform state contracts  for  commodities,  services
    19  and construction, and the number of such contractors actually engaged to
    20  perform such contracts, and to determine what changes, if any, should be
    21  made  to state policies affecting these business enterprises. Such study
    22  shall include, but not be limited to, a  disparity  analysis  by  market
    23  area  and region of the state.  The commissioner of economic development
    24  is directed to transmit the disparity study  to  the  governor  and  the
    25  legislature  not  later  than February fifteenth, two thousand nineteen,
    26  and to post the study on the  website  of  the  department  of  economic
    27  development.
    28    4.  Opportunities  for qualified business enterprises. (a) Each agency
    29  shall structure procurement procedures for contracts  made  directly  or
    30  indirectly  to qualified business enterprises employing individuals with
    31  disabilities to attempt to  achieve  five  percent  of  state  contracts
    32  awarded to disabled employee business enterprises.
    33    (b)  The  commissioner  of economic development shall promulgate rules
    34  and regulations pursuant to the goal established  in  paragraph  (a)  of
    35  this  subdivision  that  provide  measures and procedures to ensure that
    36  qualified business enterprises under this section  shall  be  given  the
    37  opportunity  for  maximum  feasible  participation in the performance of
    38  state contracts and to assist in the agency's  identification  of  those
    39  state contracts for which qualified business enterprises may best bid to
    40  actively and affirmatively promote and assist their participation in the
    41  performance of state contracts so as to facilitate the agency's achieve-
    42  ment of the maximum feasible portion of the goals for state contracts to
    43  such  businesses. Such rules and regulations: shall require a contractor
    44  to submit a utilization plan  after  bids  are  opened,  when  bids  are
    45  required,  but prior to the award of a state contract; shall require the
    46  contracting agency to review  the  utilization  plan  submitted  by  the
    47  contractor  and  to post the utilization plan and any waivers of compli-
    48  ance issued pursuant to paragraph (c) of this subdivision on the website
    49  of the contracting agency within a reasonable period of time  as  estab-
    50  lished  by  the  commissioner of economic development; shall require the
    51  contracting agency to notify the contractor in writing within  a  period
    52  of  time specified by the commissioner of economic development as to any
    53  deficiencies contained  in  the  contractor's  utilization  plan;  shall
    54  require  remedy thereof within a period of time specified by the commis-
    55  sioner of economic development; and  shall  require  the  contractor  to
    56  submit  periodic compliance reports relating to the operation and imple-

        S. 929--A                           3
 
     1  mentation of any utilization plan. The rules and regulations promulgated
     2  pursuant to this subdivision regarding a utilization plan shall  provide
     3  that where enterprises have been identified within a utilization plan, a
     4  contractor  shall  attempt, in good faith, to utilize such enterprise at
     5  least to the extent  indicated.  A  contracting  agency  may  require  a
     6  contractor  to  indicate,  within  a utilization plan, what measures and
     7  procedures he or she intends to take to comply with  the  provisions  of
     8  this  section,  but  may  not  require,  as  a condition of award of, or
     9  compliance with, a contract  that  a  contractor  utilize  a  particular
    10  enterprise  in  performance  of  the  contract.  Without  limiting other
    11  grounds for the disqualification of bids or proposals on  the  basis  of
    12  non-responsibility,  a  contracting  agency  may  disqualify  the bid or
    13  proposal of a contractor as being non-responsible for failure to  remedy
    14  notified  deficiencies  contained  in  the contractor's utilization plan
    15  within a period of time specified  in  regulations  promulgated  by  the
    16  commissioner  of  economic  development  after receiving notification of
    17  such deficiencies from the contracting agency. Where failure  to  remedy
    18  any notified deficiency in the utilization plan is a ground for disqual-
    19  ification,  that  issue and all other grounds for disqualification shall
    20  be stated in writing by the contracting agency.
    21    (c) Where it appears that a contractor  cannot,  after  a  good  faith
    22  effort,  comply  with  the  qualified  business enterprise participation
    23  requirements set forth in a particular state contract, a contractor  may
    24  file  a  written  application  with  the contracting agency requesting a
    25  partial or total waiver of such requirements setting forth  the  reasons
    26  for  such contractor's inability to meet any or all of the participation
    27  requirements together with an explanation of the efforts  undertaken  by
    28  the  contractor to obtain the required disabled employee business enter-
    29  prise participation. In implementing the provisions of this section, the
    30  contracting agency shall consider the  number  and  types  of  qualified
    31  business  enterprises  under this section located in the region in which
    32  the state contract is to be performed, the total  dollar  value  of  the
    33  state  contract,  the scope of work to be performed and the project size
    34  and term. If, based  on  such  considerations,  the  contracting  agency
    35  determines  there is not a reasonable availability of contractors on the
    36  list of certified businesses to furnish services  for  the  project,  it
    37  shall  issue  a  waiver  of compliance to the contractor. In making such
    38  determination, the contracting agency shall first  consider  the  avail-
    39  ability  of  other  business enterprises located in the region and shall
    40  thereafter consider the financial ability of businesses located  outside
    41  the region in which the contract is to be performed to perform the state
    42  contract.
    43    (d) In the event that a contracting agency fails or refuses to issue a
    44  waiver to a contractor as requested within twenty days after having made
    45  application therefor pursuant to paragraph (c) of this subdivision or if
    46  the contracting agency denies such application, in whole or in part, the
    47  contractor may file a complaint with the commissioner of economic devel-
    48  opment  pursuant  to  this  section  setting forth the facts and circum-
    49  stances giving rise to the contractor's complaint together with a demand
    50  for relief. The contractor shall serve a copy of such complaint upon the
    51  contracting agency by personal service  or  by  certified  mail,  return
    52  receipt  requested. The contracting agency shall be afforded an opportu-
    53  nity to respond to such complaint in writing.
    54    (e) If, after the review of a periodic  compliance  report  and  after
    55  such  contractor has been afforded an opportunity to respond to a notice
    56  of deficiency issued by the contracting agency in connection  therewith,

        S. 929--A                           4
 
     1  it  appears  that a contractor is failing or refusing to comply with the
     2  qualified business enterprise participation requirements as set forth in
     3  the state contract and where no waiver from such requirements  has  been
     4  granted,  the  contracting  agency may file a written complaint with the
     5  commissioner of economic development pursuant to  this  section  setting
     6  forth  the  facts and circumstances giving rise to the contracting agen-
     7  cy's complaint together with a demand for relief.  The contracting agen-
     8  cy shall serve a copy of such complaint upon the contractor by  personal
     9  service  or  by certified mail, return receipt requested. The contractor
    10  shall be afforded an opportunity to respond to such complaint  in  writ-
    11  ing.
    12    5.  Statewide  certification program. (a) The commissioner of economic
    13  development shall promulgate rules and  regulations  providing  for  the
    14  establishment  of  a statewide certification program for business enter-
    15  prises under this section including rules and regulations governing  the
    16  approval, denial or revocation of any such certification. Such rules and
    17  regulations shall include, but not be limited to, such matters as may be
    18  required  to  ensure that the established procedures thereunder shall at
    19  least be in compliance with the code of  fair  procedure  set  forth  in
    20  section seventy-three of the civil rights law.
    21    (b)  For  the  purposes  of  this  section, the department of economic
    22  development shall be responsible for verifying businesses  as  having  a
    23  workforce  made up of at least fifteen percent of individuals with disa-
    24  bilities and for certifying such verified businesses.  The  commissioner
    25  of  economic  development  shall  prepare a directory of certified busi-
    26  nesses for use by contracting agencies and contractors in  carrying  out
    27  the provisions of this section. The commissioner of economic development
    28  shall periodically update the directory.
    29    (c)  Following application for certification pursuant to this subdivi-
    30  sion, the commissioner of economic development shall provide the  appli-
    31  cant  with  written  notice  of the status of the application, including
    32  notice of any outstanding deficiencies, within thirty days. Within sixty
    33  days of submission of a final completed application, the commissioner of
    34  economic development shall provide the applicant with written notice  of
    35  a  determination  by the department of economic development approving or
    36  denying such certification and, in the event of  a  denial  a  statement
    37  setting  forth the reasons for such denial. Upon a determination denying
    38  or revoking certification, the business  enterprise  for  which  certif-
    39  ication  has  been so denied or revoked shall, upon written request made
    40  within thirty days from receipt of  notice  of  such  determination,  be
    41  entitled  to  a hearing before an independent hearing officer designated
    42  for such purpose by the commissioner of economic development.    In  the
    43  event  that  a  request for a hearing is not made within such thirty day
    44  period, such determination shall be deemed to be final. The  independent
    45  hearing  officer shall conduct a hearing and upon the conclusion of such
    46  hearing, issue a written recommendation to the commissioner of  economic
    47  development  to  affirm,  reverse  or  modify  such determination of the
    48  commissioner of economic development. Such written recommendation  shall
    49  be  issued  to  the  parties.  The commissioner of economic development,
    50  within thirty days, by order, must accept, reject or modify such  recom-
    51  mendation  of  the  hearing officer and set forth in writing the reasons
    52  therefor. The commissioner of economic development shall serve a copy of
    53  such order and reasons therefor upon the business enterprise by personal
    54  service or by certified mail, return receipt requested. The order of the
    55  commissioner of economic development shall be subject to review pursuant
    56  to article seventy-eight of the civil practice law and rules.

        S. 929--A                           5
 
     1    (d) All certifications shall be valid for a period of three years.
     2    6.  Responsibilities  of  contracting  agencies.  (a) Each contracting
     3  agency shall be responsible for monitoring  state  contracts  under  its
     4  jurisdiction,  and  recommending  matters  to the department of economic
     5  development respecting non-compliance with the provisions of this  arti-
     6  cle  so that the office may take such action as is appropriate to insure
     7  compliance with the provisions of this  section,  the  rules  and  regu-
     8  lations of the commissioner of economic development issued hereunder and
     9  the  contractual  provisions  required  pursuant  to  this  section. All
    10  contracting agencies shall comply with the rules and regulations of  the
    11  department  of  economic  development and are directed to cooperate with
    12  the department of economic development and to furnish to the  department
    13  of  economic  development  such  information  and  assistance  as may be
    14  required in the performance of its functions under this section.
    15    (b) Each contracting agency shall provide  to  prospective  bidders  a
    16  current  copy  of the directory of certified business enterprises, and a
    17  copy of the regulations required pursuant to subdivision  four  of  this
    18  section at the time bids or proposals are solicited.
    19    (c) Each contracting agency shall report to the department of economic
    20  development  with respect to activities undertaken to promote employment
    21  of individuals with disabilities and promote and increase  participation
    22  by  certified  businesses  with  respect  to state contracts and subcon-
    23  tracts. Such reports shall  be  submitted  periodically,  but  not  less
    24  frequently  than  annually,  as required by the commissioner of economic
    25  development, and shall include such information as is necessary for  the
    26  commissioner  of economic development to determine whether the contract-
    27  ing agency and contractor  have  complied  with  the  purposes  of  this
    28  section,  including, without limitation, a summary of all waivers of the
    29  requirements  of  subdivision  four  of  this  section  allowed  by  the
    30  contracting  agency during the period covered by the report, including a
    31  description of the basis of the waiver request  and  the  rationale  for
    32  granting any such waiver.
    33    (d) Each agency shall include in its annual report to the governor and
    34  legislature  pursuant to section one hundred sixty-four of the executive
    35  law its annual goals for contracts with qualified business  enterprises,
    36  the number of actual contracts issued to qualified business enterprises;
    37  and  a summary of all waivers of the requirements of subdivision four of
    38  this section allowed by the reporting agency during the preceding  year,
    39  including  a  description  of  the  basis  of the waiver request and the
    40  rationale for granting such waiver.
    41    7. Enforcement. Upon receipt by the commissioner of economic  develop-
    42  ment  of  a  complaint  by  a  contracting  agency that a contractor has
    43  violated the provisions of a state contract which have been included  to
    44  comply  with  the  provisions  of this section or of a contractor that a
    45  contracting agency has violated such provisions or has failed or refused
    46  to issue a waiver where one has been applied for pursuant to subdivision
    47  four of this section or has denied such application, the commissioner of
    48  economic development shall attempt to resolve the matter giving rise  to
    49  such complaint. If efforts to resolve such matter to the satisfaction of
    50  all  parties  are unsuccessful, the commissioner of economic development
    51  shall refer the matter,  within  thirty  days  of  the  receipt  of  the
    52  complaint, to the department of economic development's hearing officers.
    53  Upon conclusion of the administrative hearing, the hearing officer shall
    54  submit  to  the commissioner of economic development his or her decision
    55  regarding the alleged violation  of  the  contract  and  recommendations
    56  regarding  the  imposition of sanctions, fines or penalties. The commis-

        S. 929--A                           6

     1  sioner of economic development, within ten days of receipt of the  deci-
     2  sion,  shall  file a determination of such matter and shall cause a copy
     3  of such determination along with a copy of this  article  to  be  served
     4  upon  the  contractor  by  personal service or by certified mail, return
     5  receipt requested. The decision of the hearing officer  shall  be  final
     6  and may only be vacated or modified as provided in article seventy-eight
     7  of  the civil practice law and rules upon an application made within the
     8  time provided by such article. The determination of the commissioner  of
     9  economic  development  as  to  the imposition of any fines, sanctions or
    10  penalties shall be reviewable pursuant to article seventy-eight  of  the
    11  civil  practice  law and rules.  The penalties imposed for any violation
    12  which is premised upon either a fraudulent or  intentional  misrepresen-
    13  tation  by  the  contractor  or the contractor's willful and intentional
    14  disregard of the employee  participation  requirement  included  in  the
    15  contract may include a determination that the contractor shall be ineli-
    16  gible  to  submit a bid to any contracting agency or be awarded any such
    17  contract for a period not to exceed one year following the final  deter-
    18  mination;  provided  however, if a contractor has previously been deter-
    19  mined to be ineligible to submit a bid pursuant  to  this  section,  the
    20  penalties imposed for any subsequent violation, if such violation occurs
    21  within  five  years  of the first violation, may include a determination
    22  that the contractor shall be ineligible to submit a bid to any contract-
    23  ing agency or be awarded any such contract for a period  not  to  exceed
    24  five years following the final determination. The department of economic
    25  development  shall  maintain a website listing all contractors that have
    26  been deemed ineligible to submit a bid pursuant to this section and  the
    27  date  after  which  each  contractor shall once again become eligible to
    28  submit bids.
    29    § 2. This act shall take effect on the one hundred eightieth day after
    30  it shall have become a law, provided however that  the  commissioner  of
    31  economic  development  is authorized to promulgate any and all rules and
    32  regulations and take any other measures necessary to implement this  act
    33  on its effective date.
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