Relates to minority and women-owned business enterprise programs; evaluates the effective implementation of such programs; extends the effectiveness of provisions of law relating to participation by minority and women-owned business enterprises in state contracts.
STATE OF NEW YORK
________________________________________________________________________
5927--A
2009-2010 Regular Sessions
IN SENATE
June 18, 2009
___________
Introduced by Sen. PARKER -- read twice and ordered printed, and when
printed to be committed to the Committee on Rules -- 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 committee
AN ACT to amend the executive law, in relation to minority and women-
owned business enterprises
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Subdivision 3 of section 311 of the executive law, as added
2 by chapter 261 of the laws of 1988, paragraphs (d) and (e) as amended by
3 chapter 55 of the laws of 1992, paragraphs (g) and (h) as amended and
4 paragraph (i) as added by section 1 of part BB of chapter 59 of the laws
5 of 2006, is amended to read as follows:
6 3. The director shall have the following powers and duties:
7 (a) to encourage and assist contracting agencies in their efforts to
8 increase participation by minority and women-owned business enterprises
9 on state contracts and subcontracts so as to facilitate the award of a
10 fair share of such contracts to them;
11 (b) to develop standardized forms and reporting documents necessary to
12 implement this article;
13 (c) to conduct educational programs consistent with the purposes of
14 this article;
15 (d) to review periodically the practices and procedures of each
16 contracting agency with respect to compliance with the provisions of
17 this article, and to require them to file [periodic] annual reports with
18 the division of minority and women's business development as to the
19 level of minority and women-owned business enterprises participation in
20 the awarding of agency contracts for goods and services including but
21 not limited to the number of state contracts awarded to certified minor-
22 ity-owned or women-owned business enterprises, the maximum dollar amount
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD01222-04-0
S. 5927--A 2
1 obligated pursuant to all those contracts, and the total expenditures
2 made pursuant to all such contracts;
3 (e) on January first of each year report to the governor and the
4 chairpersons of the senate finance and assembly ways and means commit-
5 tees on the [level] actual versus projected levels of minority and
6 women-owned business enterprises participating in each agency's
7 contracts for goods [and], services and construction, including but not
8 limited to the number of state contracts awarded to certified minority-
9 owned or women-owned business enterprises, the maximum dollar amount
10 obligated pursuant to all those contracts, and the total expenditures
11 made pursuant to all such contracts, and on activities of the office and
12 effort by each contracting agency to promote employment of minority
13 group members and women, and to promote and increase participation by
14 certified businesses with respect to state contracts and subcontracts so
15 as to facilitate the award of a fair share of state contracts to such
16 businesses. The comptroller shall assist the division in collecting
17 information on the participation of certified business for each
18 contracting agency. Such report may recommend new activities and
19 programs to effectuate the purposes of this article;
20 (f) to prepare and update periodically a directory of certified minor-
21 ity and women-owned business enterprises which shall, wherever practica-
22 ble, be divided into categories of labor, services, supplies, equipment,
23 materials and recognized construction trades and which shall indicate
24 areas or locations of the state where such enterprises are available to
25 perform services, and to use this information to create a state registry
26 to enable appropriate state certified minority and women-owned business
27 enterprises to be notified of contract and subcontract opportunities;
28 (g) to appoint independent hearing officers who by contract or terms
29 of employment shall preside over adjudicatory hearings pursuant to
30 section three hundred fourteen of this article for the office and who
31 are assigned no other work by the office;
32 (h) notwithstanding the provisions of section two hundred ninety-six
33 of this chapter, to file a complaint pursuant to the provisions of
34 section two hundred ninety-seven of this chapter where the director has
35 knowledge that a contractor may have violated the provisions of para-
36 graph (a), (b) or (c) of subdivision one of section two hundred ninety-
37 six of this chapter where such violation is unrelated, separate or
38 distinct from the state contract as expressed by its terms; and
39 (i) to streamline the state certification process to accept federal
40 and municipal corporation certifications.
41 § 2. Subdivision 1 of section 313 of the executive law, as added by
42 chapter 261 of the laws of 1988, is amended to read as follows:
43 1. The director shall promulgate rules and regulations that provide
44 measures and procedures to ensure that certified businesses shall be
45 given the opportunity for meaningful participation in the performance of
46 state contracts and to identify those state contracts for which certi-
47 fied businesses may best bid to actively and affirmatively promote and
48 assist their participation in the performance of state contracts so as
49 to facilitate the award of a fair share of state contracts to such busi-
50 nesses and encourage joint ventures, partnerships and mentor-protege
51 relationships between prime contractors and minority and women-owned
52 business enterprises. Such rules and regulations as they pertain to any
53 particular agency shall be developed after consultation with the
54 contracting agency. Nothing in the provisions of this article shall be
55 construed to limit the ability of any certified business to bid on any
56 contract.
S. 5927--A 3
1 § 3. Paragraph (a) of subdivision 4 of section 313 of the executive
2 law, as amended by chapter 429 of the laws of 2009, is amended to read
3 as follows:
4 (a) Contracting agencies shall administer the rules and regulations
5 promulgated by the director to ensure compliance with the provisions of
6 this section. Such rules and regulations: shall require a contractor to
7 submit a utilization plan after bids are opened, when bids are required,
8 but prior to the award of a state contract; shall require the contract-
9 ing agency to review the utilization plan submitted by the contractor
10 and to post the utilization plan and any waivers of compliance issued
11 pursuant to subdivision five of this section on the website of the
12 contracting agency within a reasonable period of time as established by
13 the director; shall require the contracting agency to notify the
14 contractor in writing within a period of time specified by the director
15 as to any deficiencies contained in the contractor's utilization plan;
16 shall require remedy thereof within a period of time specified by the
17 director; shall require the contractor to submit periodic compliance
18 reports relating to the operation and implementation of any utilization
19 plan; shall not allow any automatic waivers, but shall allow a contrac-
20 tor to apply for a partial or total waiver of the minority and women-
21 owned business enterprise participation requirements pursuant to subdi-
22 visions five and six of this section; shall allow a contractor to file a
23 complaint with the director pursuant to subdivision seven of this
24 section in the event a contracting agency has failed or refused to issue
25 a waiver of the minority and women-owned business enterprise partic-
26 ipation requirements or has denied such request for a waiver; and shall
27 allow a contracting agency to file a complaint with the director pursu-
28 ant to subdivision eight of this section in the event a contractor is
29 failing or has failed to comply with the minority and women-owned busi-
30 ness enterprise participation requirements set forth in the state
31 contract where no waiver has been granted.
32 § 4. Subdivision 3 of section 314 of the executive law, as added by
33 chapter 261 of the laws of 1988, is amended to read as follows:
34 3. Following application for certification pursuant to this section,
35 the director shall provide the applicant with written notice of the
36 status of the application, including notice of any outstanding deficien-
37 cies, within thirty days. Within sixty days of submission of a final
38 completed application, the director shall provide the applicant with
39 written notice of a determination by the office approving or denying
40 such certification and, in the event of a denial a statement setting
41 forth the reasons for such denial. Upon a determination denying or
42 revoking certification, the business enterprise for which certification
43 has been so denied or revoked shall, upon written request made within
44 thirty days from receipt of notice of such determination, be entitled to
45 a hearing before an independent hearing officer designated for such
46 purpose by the director. In the event that a request for a hearing is
47 not made within such thirty day period, such determination shall be
48 deemed to be final. The independent hearing officer shall conduct a
49 hearing and upon the conclusion of such hearing, issue a written recom-
50 mendation to the director to affirm, reverse or modify such determi-
51 nation of the director. Such written recommendation shall be issued to
52 the parties. The director, within thirty days, by order, must accept,
53 reject or modify such recommendation of the hearing officer and set
54 forth in writing the reasons therefor. The director shall serve a copy
55 of such order and reasons therefor upon the business enterprise by
56 personal service or by certified mail return receipt requested. The
S. 5927--A 4
1 order of the director shall be subject to review pursuant to article
2 seventy-eight of the civil practice law and rules. Recertification
3 shall be required every three years.
4 § 5. This act shall take effect immediately, provided, however that
5 the amendments to article 15-A of the executive law made by sections one
6 through four of this act shall not affect the expiration of such article
7 and shall expire therewith.
