STATE OF NEW YORK
________________________________________________________________________
6593
2011-2012 Regular Sessions
IN ASSEMBLY
March 22, 2011
___________
Introduced by M. of A. P. RIVERA -- read once and referred to the
Committee on Governmental Operations
AN ACT to amend the executive law, in relation to making subcontractors
subject to the provisions of law applicable to minority and women-
owned business enterprise contracts
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Subdivision 1 of section 312 of the executive law, as added
2 by chapter 261 of the laws of 1988, is amended to read as follows:
3 1. All state contracts and all documents soliciting bids or proposals
4 for state contracts shall contain or make reference to the following
5 provisions:
6 (a) The contractor and subcontractors will not discriminate against
7 employees or applicants for employment because of race, creed, color,
8 national origin, sex, age, disability or marital status, and will under-
9 take or continue existing programs of affirmative action to ensure that
10 minority group members and women are afforded equal employment opportu-
11 nities without discrimination. For purposes of this article affirmative
12 action shall mean recruitment, employment, job assignment, promotion,
13 upgradings, demotion, transfer, layoff, or termination and rates of pay
14 or other forms of compensation.
15 (b) At the request of the contracting agency, the contractor and the
16 subcontractors shall request each employment agency, labor union, or
17 authorized representative of workers with which it has a collective
18 bargaining or other agreement or understanding, to furnish a written
19 statement that such employment agency, labor union or representative
20 will not discriminate on the basis of race, creed, color, national
21 origin, sex, age, disability or marital status and that such union or
22 representative will affirmatively cooperate in the implementation of the
23 contractor's and the subcontractor's obligations herein.
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD10138-03-1
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1 (c) The contractor and all subcontractors shall state, in all solic-
2 itations or advertisements for employees, that, in the performance of
3 the state contract, all qualified applicants will be afforded equal
4 employment opportunities without discrimination because of race, creed,
5 color, national origin, sex, age, disability or marital status.
6 § 2. Section 313-a of the executive law, as added by chapter 175 of
7 the laws of 2010, is amended to read as follows:
8 § 313-a. Diversity practices of state contractors and subcontractors.
9 The director shall promulgate rules and regulations setting forth meas-
10 ures and procedures to require all contracting agencies, where practica-
11 ble, feasible and appropriate, to assess the diversity practices of
12 contractors, and their subcontractors, submitting bids or proposals in
13 connection with the award of a state contract. Such rules and regu-
14 lations shall take into account: the nature of the labor, services,
15 supplies, equipment or materials being procured by the state agency; the
16 method of procurement required to be used by a state agency to award the
17 contract and minority and women-owned business utilization plans
18 required to be submitted pursuant to sections three hundred twelve and
19 three hundred thirteen of this article; and such other factors as the
20 director deems appropriate or necessary to promote the award of state
21 contracts to contractors and subcontractors having sound diversity prac-
22 tices. Such assessment shall not in any way permit the automatic
23 rejection of a bid or procurement contract proposal based on lack of
24 adherence to diversity practices. Each bid or proposal shall be analyzed
25 on an individual per bid or per proposal basis with the contractor's and
26 its subcontractor's diversity practices considered as only a part of a
27 wider consideration of several factors when deciding to award or decline
28 to award a bid or proposal. The director shall develop the rules and
29 regulations required hereunder only after consultation with the state
30 procurement council established by section one hundred sixty-one of the
31 state finance law.
32 § 3. Subdivision 3 of section 315 of the executive law, as amended by
33 chapter 175 of the laws of 2010, is amended to read as follows:
34 3. Each contracting agency shall report to the director with respect
35 to activities undertaken to promote employment of minority group members
36 and women and promote and increase participation by certified businesses
37 with respect to state contracts and subcontracts. Such reports shall be
38 submitted periodically, but not less frequently than annually, as
39 required by the director, and shall include such information as is
40 necessary for the director to determine whether the contracting agency
41 and contractor and their subcontractors have complied with the purposes
42 of this article, including, without limitation, a summary of all waivers
43 of the requirements of subdivisions six and seven of section three
44 hundred thirteen of this article allowed by the contracting agency
45 during the period covered by the report, including a description of the
46 basis of the waiver request and the rationale for granting any such
47 waiver. Each agency shall also include in such annual report whether or
48 not it has been required to prepare a remedial plan, and, if so, the
49 plan and the extent to which the agency has complied with each element
50 of the plan.
51 § 4. Section 316 of the executive law, as amended by chapter 175 of
52 the laws of 2010, is amended to read as follows:
53 § 316. Enforcement. Upon receipt by the director of a complaint by a
54 contracting agency that a contractor or subcontractor has violated the
55 provisions of a state contract which have been included to comply with
56 the provisions of this article or of a contractor or subcontractor that
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1 a contracting agency has violated such provisions or has failed or
2 refused to issue a waiver where one has been applied for pursuant to
3 subdivision six of section three hundred thirteen of this article or has
4 denied such application, the director shall attempt to resolve the
5 matter giving rise to such complaint. If efforts to resolve such matter
6 to the satisfaction of all parties are unsuccessful, the director shall
7 refer the matter, within thirty days of the receipt of the complaint, to
8 the division's hearing officers. Upon conclusion of the administrative
9 hearing, the hearing officer shall submit to the director his or her
10 decision regarding the alleged violation of the contract and recommenda-
11 tions regarding the imposition of sanctions, fines or penalties. The
12 director, within ten days of receipt of the decision, shall file a
13 determination of such matter and shall cause a copy of such determi-
14 nation along with a copy of this article to be served upon the contrac-
15 tor or subcontractor by personal service or by certified mail return
16 receipt requested. The decision of the hearing officer shall be final
17 and may only be vacated or modified as provided in article seventy-eight
18 of the civil practice law and rules upon an application made within the
19 time provided by such article. The determination of the director as to
20 the imposition of any fines, sanctions or penalties shall be reviewable
21 pursuant to article seventy-eight of the civil practice law and rules.
22 The penalties imposed for any violation which is premised upon either a
23 fraudulent or intentional misrepresentation by the contractor or subcon-
24 tractor or the contractor's or subcontractor's willful and intentional
25 disregard of the minority and women-owned participation requirement
26 included in the contract may include a determination that the contractor
27 or subcontractor shall be ineligible to submit a bid to any contracting
28 agency or be awarded any such contract for a period not to exceed one
29 year following the final determination; provided however, if a contrac-
30 tor or subcontractor has previously been determined to be ineligible to
31 submit a bid pursuant to this section, the penalties imposed for any
32 subsequent violation, if such violation occurs within five years of the
33 first violation, may include a determination that the contractor or
34 subcontractor shall be ineligible to submit a bid to any contracting
35 agency or be awarded any such contract for a period not to exceed five
36 years following the final determination. The division of minority and
37 women's business development shall maintain a website listing all
38 contractors and subcontractors that have been deemed ineligible to
39 submit a bid pursuant to this section and the date after which each
40 contractor or subcontractor shall once again become eligible to submit
41 bids.
42 § 5. Section 316-a of the executive law, as added by chapter 175 of
43 the laws of 2010, is amended to read as follows:
44 § 316-a. Prohibitions in contracts; violations. Every contracting
45 agency shall include a provision in its state contracts expressly
46 providing that any contractor or subcontractor who willfully and inten-
47 tionally fails to comply with the minority and women-owned participation
48 requirements of this article as set forth in such state contract shall
49 be liable to the contracting agency for liquidated or other appropriate
50 damages and shall provide for other appropriate remedies on account of
51 such breach. A contracting agency that elects to proceed against a
52 contractor or subcontractor for breach of contract as provided in this
53 section shall be precluded from seeking enforcement pursuant to section
54 three hundred sixteen of this article; provided however, that the
55 contracting agency shall include a summary of all enforcement actions
56 undertaken pursuant to this section in its annual report submitted
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1 pursuant to subdivision three of section three hundred fifteen of this
2 article.
3 § 6. This act shall take effect on the first of January next succeed-
4 ing the date on which it shall have become a law; provided, however,
5 that the amendments to article 15-A of the executive law, made by
6 sections one, two, three, four and five of this act, shall not affect
7 the expiration of such article and shall be deemed to expire therewith.
