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A05488 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                          5488
 
                               2021-2022 Regular Sessions
 
                   IN ASSEMBLY
 
                                    February 19, 2021
                                       ___________
 
        Introduced  by  M.  of A. BICHOTTE HERMELYN, HYNDMAN, WALKER, SEAWRIGHT,
          SOLAGES, GOTTFRIED, JEAN-PIERRE, COOK -- read once and referred to the
          Committee 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 is  amended  by
    10  adding a new paragraph c to read as follows:
    11    (c)  A  contracting agency shall not issue a total waiver of the obli-
    12  gation to comply with the minority and women-owned  business  enterprise
    13  participation  requirements  of  a contract if such contract is a single
    14  source or sole source procurement contract as described in  section  one
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD06465-01-1

        A. 5488                             2
 
     1  hundred sixty-three of the state finance law; provided, however, that if
     2  the contracting agency determines there is not a reasonable availability
     3  of contractors on the list of certified business to furnish services for
     4  the  project,  the  contracting  agency  may  issue  a partial waiver of
     5  compliance to the contractor.
     6    § 3. Section 103 of the general municipal law is amended by  adding  a
     7  new subdivision 17 to read as follows:
     8    17.  All contracts awarded pursuant to the provisions of this section,
     9  including single source or  sole  source  procurement  contracts,  shall
    10  require  the contract recipient to comply with the provisions of section
    11  three hundred thirteen of the executive law, to  the  extent  that  such
    12  provisions apply; provided, however, that a contract recipient granted a
    13  waiver  of  compliance  as provided in section three hundred thirteen of
    14  the executive law  shall  be  deemed  to  be  in  compliance  with  such
    15  provisions.
    16    §  4.  Subdivisions  2,  3 and 13 of section 310 of the executive law,
    17  subdivisions 2 and 3 as added by chapter 261 of the  laws  of  1988  and
    18  subdivision 13 as amended by chapter 96 of the laws of 2019, are amended
    19  to read as follows:
    20    2.  "Contracting  agency"  shall  mean;  (a) a state agency which is a
    21  party or a proposed party to a state contract or, in the case of a state
    22  contract described in paragraph (c)  of  subdivision  thirteen  of  this
    23  section,  shall  mean the New York state housing finance agency, housing
    24  trust fund corporation or affordable housing corporation, whichever  has
    25  made  or proposes to make the grant or loan for the state assisted hous-
    26  ing project; and (b) a municipality which is a party or a proposed party
    27  to a municipal contract.
    28    3. "Contractor" shall  mean  an  individual,  a  business  enterprise,
    29  including  a  sole  proprietorship, a partnership, a corporation, a not-
    30  for-profit corporation, or any other  party  to  a  state  or  municipal
    31  contract, or a bidder in conjunction with the award of a state or munic-
    32  ipal contract or a proposed party to a state or municipal contract.
    33    13.  "State  contract" shall mean: (a) a written agreement or purchase
    34  order instrument, providing for a total expenditure in excess  of  twen-
    35  ty-five  thousand  dollars, whereby a contracting agency is committed to
    36  expend or does expend funds in return for labor, services including  but
    37  not  limited  to  legal,  financial  and  other  professional  services,
    38  supplies, equipment, materials or any combination of the  foregoing,  to
    39  be  performed  for,  on  behalf  of,  or  rendered  or  furnished to the
    40  contracting agency; (b) a written agreement in  excess  of  one  hundred
    41  thousand  dollars whereby a contracting agency is committed to expend or
    42  does  expend  funds  for  the  acquisition,  construction,   demolition,
    43  replacement,  major  repair  or renovation of real property and improve-
    44  ments thereon; and (c) a written agreement  in  excess  of  one  hundred
    45  thousand  dollars  whereby the owner of a state assisted housing project
    46  is committed to  expend  or  does  expend  funds  for  the  acquisition,
    47  construction,  demolition,  replacement,  major  repair or renovation of
    48  real property  and  improvements  thereon  for  such  project.  For  the
    49  purposes  of  this  article,  "state  contract"  shall include municipal
    50  contracts as described in subdivision twenty-four of this section.
    51    § 5. Section 310 of the executive law  is  amended  by  adding  a  new
    52  subdivision 24 to read as follows:
    53    24.  "Municipal  contract"  shall  mean:  (a)  a  written agreement or
    54  purchase order instrument, providing for a total expenditure  in  excess
    55  of  twenty-five thousand dollars, whereby a municipal contracting agency
    56  is committed to expend  or  does  expend  funds  in  return  for  labor,

        A. 5488                             3
 
     1  services including but not limited to legal, financial and other profes-
     2  sional  services,  supplies,  equipment, materials or any combination of
     3  the foregoing, to be performed for, or  rendered  or  furnished  to  the
     4  municipal  contracting  agency; (b) a written agreement in excess of one
     5  hundred thousand dollars  whereby  a  municipal  contracting  agency  is
     6  committed   to   expend  or  does  expend  funds  for  the  acquisition,
     7  construction, demolition, replacement, major  repair  or  renovation  of
     8  real  property  and improvements thereon; and (c) a written agreement in
     9  excess of one hundred thousand dollars whereby the owner of a  municipal
    10  assisted housing project is committed to expend or does expend funds for
    11  the  acquisition, construction, demolition, replacement, major repair or
    12  renovation of real property and improvements thereon for such project.
    13    § 6. This act shall take effect immediately; provided,  however,  that
    14  section  three of this act shall expire on the same date and in the same
    15  manner as article 15-A of the executive law pursuant to subdivision  (h)
    16  of section 121 of chapter 261 of the laws of 1988, as amended; provided,
    17  however,  that  the  amendments to sections 310 and 313 of the executive
    18  law made by sections two, four and five of this act shall not affect the
    19  expiration of such sections  and  shall  be  deemed  expired  therewith;
    20  provided,  further  that the amendments to paragraph b of subdivision 10
    21  of section 163 of the state finance law made by section one of this  act
    22  shall not affect the repeal of such section and shall be deemed repealed
    23  therewith  or  shall  be  deemed repealed upon the expiration of article
    24  15-A of the executive law, whichever shall occur first.
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