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A08555 Summary:

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A08555 Text:

 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                         8555--A
 
                               2009-2010 Regular Sessions
 
                   IN ASSEMBLY
 
                                      May 27, 2009
                                       ___________
 
        Introduced  by M. of A. ESPAILLAT, DESTITO, CUSICK, McENENY -- read once
          and referred to the Committee on Governmental Operations  --  reported
          and  referred  to the Committee on Codes -- committee discharged, bill
          amended, ordered reprinted as amended and recommitted to said  commit-
          tee
 

        AN ACT to amend the executive law and the state finance law, in relation
          to enacting the New York State Service-Disabled Veteran-Owned Business
          Enterprise Opportunity Act
 
          The  People of the State of New York, represented in Senate and Assem-
        bly, do enact as follows:
 
     1    Section 1. Legislative intent. The legislature hereby  recognizes  the
     2  need  to  provide support for our state's service-disabled veterans, who
     3  have made extraordinary sacrifices  on  behalf  of  our  state  and  the
     4  nation,  by providing economic opportunities for service-disabled veter-
     5  an-owned business enterprises in the state procurement process.
     6    § 2. This act may be cited as the  "New  York  State  Service-Disabled
     7  Veteran-Owned Business Enterprise Opportunity Act".
     8    § 3. The executive law is amended by adding a new article 17-A to read
     9  as follows:

    10                                 ARTICLE 17-A
    11                NEW YORK STATE SERVICE-DISABLED VETERAN-OWNED
    12                     BUSINESS ENTERPRISE OPPORTUNITY ACT
    13  Section 368.   Definitions.
    14          369.   Statewide certification program.
    15          369-a. Duties of the division for small-business.
    16          369-b. Duties of the division of veterans' affairs.
    17    § 368. Definitions. As used in this article, the following terms shall
    18  have the following meanings:
    19    1. "office" shall mean the office of general services;
    20    2. "commissioner" shall mean the commissioner of general services;
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.

                                                                   LBD14106-02-9
        A. 8555--A                          2
 
     1    3. "division for small-business" shall mean the division for small-bu-
     2  siness within the department of economic development;
     3    4.  "veteran"  shall  mean  a person, male or female, resident of this
     4  state, who has served in the active military, naval, or air  service  of
     5  the  United  States  during a war in which the United States engaged and
     6  who has been released from such service otherwise than  by  dishonorable
     7  discharge, or who has been furloughed to the reserve;
     8    5.  "service-disabled  veteran"  shall  mean  a veteran who received a
     9  compensation rating of ten percent or greater  from  the  United  States

    10  Department  of  Veterans  Affairs  or  the  United  States Department of
    11  Defense because of a service-connected disability;
    12    6.  "certified  service-disabled  veteran-owned  business  enterprise"
    13  shall  mean  a business enterprise that has been certified by the office
    14  of general services to  be  a  service-disabled  veteran-owned  business
    15  enterprise as defined in subdivision seven of this section;
    16    7.  "service-disabled  veteran-owned business enterprise" shall mean a
    17  business enterprise, including a  sole  proprietorship,  partnership  or
    18  corporation:
    19    (a)  that  is at least fifty-one percent owned by one or more service-
    20  disabled veterans;
    21    (b) that is an enterprise in which  the  ownership  interest  of  such

    22  service-disabled veterans is real, substantial and continuing;
    23    (c) that employs one hundred or fewer permanent full-time employees;
    24    (d) that is organized to engage in commercial transactions;
    25    (e) that is domiciled in this state; and
    26    (f)  where the management and control of the daily business operations
    27  are by one or more service-disabled veterans or, for a  service-disabled
    28  veteran  with  a permanent and total disability, by the spouse or perma-
    29  nent caregiver of the veteran. The service-disabled veterans  who  exer-
    30  cise management and control are not required to be the same service-dis-
    31  abled veterans as the owners of the business.
    32    §  369. Statewide certification program. 1. The commissioner or his or

    33  her designee, in consultation  with  the  division  for  small-business,
    34  shall  promulgate  rules and regulations providing for the establishment
    35  of a statewide certification program for service-disabled  veteran-owned
    36  businesses,  including  rules  and  regulations  governing the approval,
    37  denial or revocation of any such  certification.  Such  a  certification
    38  program shall be reviewed triennially and updated as necessary.
    39    2.  The  office shall be responsible for verifying businesses as being
    40  owned, operated, and controlled by service-disabled veterans as  defined
    41  in  this  article, and for granting, denying, and revoking certification
    42  for such businesses under the procedures established and rules and regu-

    43  lations promulgated under this section.
    44    2-a. The commissioner shall establish a procedure enabling  the  divi-
    45  sion  to  accept federal certification verification for service-disabled
    46  veteran-owned business enterprise applicants in lieu  of  requiring  the
    47  applicant  to complete the state certification process. The commissioner
    48  shall promulgate rules and regulations to set  forth  criteria  for  the
    49  acceptance of federal certification.
    50    3.  The  application  for certification as a service-disabled veteran-
    51  owned business enterprise must, at a minimum, include:
    52    (a) The name of the business enterprise applying for certification and
    53  the name of the service-disabled veteran submitting the  application  on

    54  behalf of the business enterprise;
    55    (b)  The  names  of  all  owners of the business enterprise, including
    56  owners  who  are  service-disabled  veterans  and  owners  who  are  not
        A. 8555--A                          3
 
     1  service-disabled veterans, and the percentage of ownership interest held
     2  by each owner;
     3    (c) The names of all persons involved in both the management and daily
     4  operations of the business enterprise, including the spouse or permanent
     5  caregiver of a veteran with a permanent and total disability;
     6    (d)  The  service-connected  disability  rating  of all persons listed
     7  under paragraphs (a), (b), and (c) of this subdivision,  as  applicable,

     8  with  supporting  documentation  from  the  United  States Department of
     9  Veterans Affairs or the United States Department of Defense;
    10    (e) The number of permanent full-time employees; and
    11    (f) The location of the business enterprise headquarters.
    12    4. Following application for certification pursuant to  this  section,
    13  the  commissioner shall provide the applicant with written notice of the
    14  status of the application, including notice of any outstanding deficien-
    15  cies, within thirty days. Within sixty days of  submission  of  a  final
    16  completed application, the commissioner shall provide the applicant with
    17  written  notice  of  a  determination by the office approving or denying

    18  such certification and, in the event of a  denial  a  statement  setting
    19  forth  the  reasons  for  such denial.   Upon a determination denying or
    20  revoking certification, the business enterprise for which  certification
    21  has  been  so  denied or revoked shall, upon written request made within
    22  thirty days from receipt of notice of such determination, be entitled to
    23  a hearing before an independent  hearing  officer  designated  for  such
    24  purpose  by  the commissioner. In the event that a request for a hearing
    25  is not made within such thirty day period, such determination  shall  be
    26  deemed  to  be  final.  The  independent hearing officer shall conduct a
    27  hearing and upon the conclusion of such hearing, issue a written  recom-

    28  mendation to the commissioner to affirm, reverse or modify such determi-
    29  nation  of the commissioner. Such written recommendation shall be issued
    30  to the parties. The commissioner, within thirty  days,  by  order,  must
    31  accept,  reject or modify such recommendation of the hearing officer and
    32  set forth in writing the reasons therefor.  The commissioner shall serve
    33  a  copy of such order and reasons therefor upon the business  enterprise
    34  by  personal  service or by certified mail return receipt requested. The
    35  order of the commissioner shall be subject to review pursuant to article
    36  seventy-eight of the civil practice law and rules.
    37    5. All certifications shall be valid for a period of three years.  The

    38  office shall maintain and periodically update an electronic directory of
    39  certified service-disabled veteran-owned business enterprises for use by
    40  the  state,  contracting  agencies, political subdivisions of the state,
    41  and the public.
    42    6. A certified service-disabled veteran-owned business enterprise must
    43  notify the office within thirty business days after any event  that  may
    44  significantly  affect  the  certification  of  the  business enterprise,
    45  including, but not limited to,  a  change  in  ownership  or  change  in
    46  management and daily business enterprise operations.
    47    7.  (a) The certification of a service-disabled veteran-owned business
    48  enterprise shall be revoked if the office determines that  the  business

    49  enterprise  violated  subdivision  six  of this section.   An owner of a
    50  certified  service-disabled  veteran-owned  business  enterprise   whose
    51  certification  is  revoked is not permitted to reapply for certification
    52  under this section as an owner of any business for twelve  months  after
    53  such revocation.
    54    (b) A service-disabled veteran-owned business enterprise whose certif-
    55  ication  has  been  revoked under the provision of paragraph (a) of this
    56  subdivision may continue to bid on state contracts but is  not  eligible
        A. 8555--A                          4
 
     1  for  any opportunities available under section one hundred thirty-nine-l
     2  of the state finance law until such time as such  certification  may  be

     3  reinstated.
     4    (c) A service-disabled veteran-owned business enterprise whose certif-
     5  ication  has  been  revoked  may  reapply for certification after twelve
     6  months by  complying  with  those  requirements  applicable  to  initial
     7  certifications.
     8    8. The office shall, with the assistance of the division for small-bu-
     9  siness,  report  to  the governor, the temporary president of the senate
    10  and the speaker of the assembly on or before April first of  each  year,
    11  beginning  in two thousand eleven, on the participation of service-disa-
    12  bled veteran-owned business  enterprise  in  state  procurement.    Such
    13  report  shall include, but not be limited to, the following data for the
    14  immediately preceding twelve-month period:

    15    (a) the number of service-disabled veteran-owned business  enterprises
    16  who submitted a bid for a state procurement contract;
    17    (b)  the number of service-disabled veteran-owned business enterprises
    18  who entered into procurement contracts with this  state  and  the  total
    19  value of those procurement contracts;
    20    (c)  the  location  of  service-disabled veteran-owned business enter-
    21  prises who entered into procurement contracts with this state by region;
    22  and
    23    (d) a listing of contracts by services that were provided by  service-
    24  disabled   veteran-owned   businesses   that  entered  into  procurement
    25  contracts with this state.
    26    § 369-a. Duties of  the  division  for  small-business.  The  division

    27  shall:   1. assist the office in establishing a certification procedure,
    28  which shall be reviewed triennially and updated as necessary; and,
    29    2. assist the office with the annual report to the governor and legis-
    30  lature, as required under subdivision eight  of  section  three  hundred
    31  sixty-nine of this article.
    32    §  369-b.  Duties  of  the division of veterans' affairs. The division
    33  shall:
    34    1. identify eligible service-disabled veteran business enterprises  by
    35  any  electronic means, including electronic mail or internet website, or
    36  by any other reasonable means and share such information with the office
    37  and the department for small-business; and,
    38    2. encourage and assist eligible service-disabled veteran-owned  busi-

    39  ness enterprises to apply for certification under this article.
    40    § 4. The state finance law is amended by adding a new section 139-l to
    41  read as follows:
    42    §  139-l.  Service-disabled veteran-owned business enterprise opportu-
    43  nities. Notwithstanding any contrary provision of law,  when  purchasing
    44  goods,  services  or  construction  for  public  use,  any state agency,
    45  department, or authority which has let more than two million dollars  in
    46  commodities  service and construction contracts in the prior fiscal year
    47  shall award contracts for such purchases to a certified service-disabled
    48  veteran-owned business enterprise, as defined in article seventeen-A  of
    49  the executive law, who submits a bid or proposal and is a responsive and

    50  responsible  bidder,  even  if such participant is not the lowest bidder
    51  for such contract, provided, however that such award may only be made to
    52  the lowest such bid that is reasonably competitive,  and  provided  also
    53  that  there  is  no  lower  bid  or  proposal by a certified minority or
    54  women-owned business enterprise as defined in article fifteen-A  of  the
    55  executive  law. For the purpose of this subdivision, "reasonably compet-
    56  itive" shall mean that such bid from a certified service-disabled veter-
        A. 8555--A                          5
 
     1  an-owned business enterprise does not exceed the lowest bid by more than
     2  six percent. If two or  more  qualified  service-disabled  veteran-owned

     3  business  enterprises  are  the  lowest bidders on a contract, all other
     4  things  being  equal,  the  qualified  service-disabled veteran with the
     5  lowest bid shall be awarded the contract under this act.
     6    § 5. This act shall take effect on the first of April next  succeeding
     7  the  date  on  which  it  shall have become law; provided, however, that
     8  effective immediately, the addition, amendment and/or repeal of any rule
     9  or regulation necessary for the implementation of this act on its effec-
    10  tive date are authorized and directed to be made  and  completed  on  or
    11  before such effective date.