•  Summary 
  •  Actions 
  •  Committee Votes 
  •  Floor Votes 
  •  Memo 
  •  Text 
  •  LFIN 
  •  Chamber Video/Transcript 

A04126 Summary:

COSPNSRManktelow, Brown K
Add Art 17-C §§369-m - 369-p, Exec L
Expands opportunities for veteran-owned business enterprises.
Go to top

A04126 Text:

                STATE OF NEW YORK
                               2021-2022 Regular Sessions
                   IN ASSEMBLY
                                    February 1, 2021
        Introduced  by M. of A. SCHMITT -- read once and referred to the Commit-
          tee on Veterans' Affairs
        AN ACT to amend the executive law, in  relation  to  expanding  opportu-
          nities  for  veteran-owned business enterprises; and providing for the
          repeal of such 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.  The executive law is amended by adding a new article 17-C
     2  to read as follows:
     3                                ARTICLE 17-C
     4                          PARTICIPATION BY VETERANS
     5                       WITH RESPECT TO STATE CONTRACTS
     6  Section 369-m. Definitions.
     7          369-n. Division of veterans' business development.
     8          369-o. Opportunities for certified veteran-owned business enter-
     9                   prises.
    10          369-p. Severability.
    11    § 369-m. Definitions. As used in this  article,  the  following  terms
    12  shall have the following meanings:
    13    1. "Certified veteran-owned business enterprise" shall mean a business
    14  enterprise,   including  a  sole  proprietorship,  partnership,  limited
    15  liability company or corporation that is:
    16    (a) at least fifty-one percent owned by one or more veterans;
    17    (b) an enterprise in which such veteran ownership  is  real,  substan-
    18  tial, and continuing;
    19    (c)  an  enterprise  in which such veteran ownership has and exercises
    20  the authority to control independently the day-to-day business decisions
    21  of the enterprise;
    22    (d) an enterprise authorized to do business in this state and is inde-
    23  pendently-owned and operated;
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.

        A. 4126                             2
     1    (e) an enterprise that is a small business  which  has  a  significant
     2  business  presence  in the state, not dominant in its field and employs,
     3  based on its industry, a certain number of persons as determined by  the
     4  director,  but  not  to  exceed three hundred, taking into consideration
     5  factors  which  include,  but are not limited to, federal small business
     6  administration standards pursuant to 13 CFR part 121 and any  amendments
     7  thereto; and
     8    (f) certified by the office of general services.
     9    2. "Commissioner" shall mean the commissioner of the office of general
    10  services.
    11    3.  "Director"  shall  mean  the director of the division of veterans'
    12  business development.
    13    4. "Division" shall mean the division of veterans'  business  develop-
    14  ment in the office of general services.
    15    5. "State agency" shall mean: (a)(i) any state department; or (ii) any
    16  division,  board, commission or bureau of any state department; or (iii)
    17  the state university of New York and the city university  of  New  York,
    18  including  all their constituent units except community colleges and the
    19  independent institutions operating statutory  or  contract  colleges  on
    20  behalf  of  the  state; or (iv) a board, a majority of whose members are
    21  appointed by the governor or who serve by virtue of being state officers
    22  or employees as defined in subparagraph (i), (ii) or (iii) of  paragraph
    23  (i)  of  subdivision one of section seventy-three of the public officers
    24  law.
    25    (b) a "state authority," as defined in subdivision one of section  two
    26  of the public authorities law, and the following:
    27    Albany County Airport Authority;
    28    Albany Port District Commission;
    29    Alfred, Almond, Hornellsville Sewer Authority;
    30    Battery Park City Authority;
    31    Cayuga County Water and Sewer Authority;
    32    (Nelson  A.  Rockefeller)  Empire  State  Plaza Performing Arts Center
    33  Corporation;
    34    Industrial Exhibit Authority;
    35    Livingston County Water and Sewer Authority;
    36    Long Island Power Authority;
    37    Long Island Rail Road;
    38    Long Island Market Authority;
    39    Manhattan and Bronx Surface Transit Operating Authority;
    40    Metro-North Commuter Railroad;
    41    Metropolitan Suburban Bus Authority;
    42    Metropolitan Transportation Authority;
    43    Natural Heritage Trust;
    44    New York City Transit Authority;
    45    New York Convention Center Operating Corporation;
    46    New York State Bridge Authority;
    47    New York State Olympic Regional Development Authority;
    48    New York State Thruway Authority;
    49    Niagara Falls Public Water Authority;
    50    Niagara Falls Water Board;
    51    Port of Oswego Authority;
    52    Power Authority of the State of New York;
    53    Roosevelt Island Operating Corporation;
    54    Schenectady Metroplex Development Authority;
    55    State Insurance Fund;
    56    Staten Island Rapid Transit Operating Authority;

        A. 4126                             3
     1    State University Construction Fund;
     2    Syracuse Regional Airport Authority;
     3    Triborough Bridge and Tunnel Authority;
     4    Upper Mohawk valley regional water board;
     5    Upper Mohawk valley regional water finance authority;
     6    Upper Mohawk valley memorial auditorium authority;
     7    Urban Development Corporation and its subsidiary corporations.
     8    (c)  the  following only to the extent of state contracts entered into
     9  for its own account or for the benefit of a state agency as  defined  in
    10  paragraph (a) or (b) of this subdivision:
    11    Dormitory Authority of the State of New York;
    12    Facilities Development Corporation;
    13    New York State Energy Research and Development Authority;
    14    New York State Science and Technology Foundation.
    15    (d)  "state  contract" shall mean: (i) a written agreement or purchase
    16  order instrument, providing for a total expenditure in excess  of  twen-
    17  ty-five  thousand  dollars, whereby a contracting agency is committed to
    18  expend or does expend funds in return for labor, services including  but
    19  not  limited  to  legal,  financial  and  other  professional  services,
    20  supplies, equipment, materials or any combination of the  foregoing,  to
    21  be  performed  for,  or rendered or furnished to the contracting agency;
    22  (ii) a written agreement in  excess  of  one  hundred  thousand  dollars
    23  whereby a contracting agency is committed to expend or does expend funds
    24  for the acquisition, construction, demolition, replacement, major repair
    25  or  renovation  of  real  property and improvements thereon; and (iii) a
    26  written agreement in excess of one hundred thousand dollars whereby  the
    27  owner of a state assisted housing project is committed to expend or does
    28  expend funds for the acquisition, construction, demolition, replacement,
    29  major repair or renovation of real property and improvements thereon for
    30  such project.
    31    6. "Veteran" shall mean a person who served in and who has received an
    32  honorable  or  general discharge from, the United States army, navy, air
    33  force, marines, coast guard, and/or reserves thereof, and/or in the army
    34  national guard, air national guard, New York guard and/or the  New  York
    35  naval militia.
    36    §  369-n.  Division of veterans' business development. 1.  The head of
    37  the division of veterans' business development shall be the director who
    38  shall be appointed by the governor and who  shall  hold  office  at  the
    39  pleasure of the commissioner.
    40    2.  The  director  may  appoint  such  deputies, assistants, and other
    41  employees as may be needed for the performance of the duties  prescribed
    42  herein  subject to the provisions of the civil service law and the rules
    43  and regulations of  the  civil  service  commission.  The  director  may
    44  request  and  shall  receive  from  any (i) department, division, board,
    45  bureau, or executive commission of the state or (ii) state agency,  such
    46  assistance as may be necessary to carry out the provisions of this arti-
    47  cle.
    48    3. The director shall have the following powers and duties:
    49    (a)  Develop, collect, summarize and disseminate information that will
    50  be helpful to persons and organizations throughout the state  in  under-
    51  taking  or  promoting  the  establishment  and successful operation of a
    52  veteran-owned business.
    53    (b) Develop and make available to state agencies a directory of certi-
    54  fied veteran-owned business enterprises which shall, wherever  practica-
    55  ble, be divided into categories of labor, services, supplies, equipment,
    56  materials  and  recognized  construction trades and which shall indicate

        A. 4126                             4
     1  areas or locations of the state where such enterprises are available  to
     2  perform services. Such directory shall be posted on the office of gener-
     3  al services website.
     4    (c) Assist state agencies in the development of programs to foster and
     5  promote   the   use  of  veteran-owned  business  enterprises  on  state
     6  contracts.
     7    (d) Coordinate the plans, programs and operations of the state govern-
     8  ment which affect or may contribute to the  establishment,  preservation
     9  and development of veteran-owned business enterprises.
    10    (e)  To  appoint independent hearing officers who by contract or terms
    11  of employment shall preside over adjudicatory hearings pursuant to  this
    12  section for the office and who are assigned no other work by the office.
    13    (f)  In  conjunction  with  the  commissioner, develop a comprehensive
    14  statewide plan and operational guidelines to promote veteran-owned busi-
    15  ness enterprises and  to  assist  them  in  obtaining  opportunities  to
    16  participate  in  the  procurement  of  goods  and services by the state,
    17  including identification of barriers to veterans'  business  development
    18  and investigation and evaluation of their impact on achieving the objec-
    19  tives of this article.
    20    4. The commissioner shall:
    21    (a)  Coordinate  training  of all procurement personnel of state agen-
    22  cies, emphasizing increased sensitivity and responsiveness to the unique
    23  needs and requirements of veteran-owned business enterprises.
    24    (b) Conduct a coordinated review of all existing  and  proposed  state
    25  training  and  technical  assistance activities in direct support of the
    26  veterans' business development program to assure  consistency  with  the
    27  objectives of this article.
    28    (c)  Evaluate  and  assess  availability  of  firms for the purpose of
    29  increasing participation of such firms in state contracting in consulta-
    30  tion with relevant state entities including, but not limited to, the New
    31  York state division of veterans' affairs.
    32    (d) Provide advice and technical assistance to  promote  veteran-owned
    33  business enterprises' understanding of state procurement laws, practices
    34  and  procedures to facilitate and increase the participation of veteran-
    35  owned business enterprises in state procurement.
    36    (e) Establish regular performance reporting systems  regarding  imple-
    37  mentation  of  the  programs designed to increase veteran-owned business
    38  participation in procurement contracts by state agencies.
    39    (f) Submit a report by the thirty-first of December  each  year,  with
    40  the  first  report  due  by the thirty-first of December in the calendar
    41  year next succeeding the calendar year in which this article shall  have
    42  become  a  law,  to the governor, the temporary president of the senate,
    43  and the speaker of the assembly.  Such report shall include  information
    44  including,  but  not  limited  to,  the number of contracts entered into
    45  pursuant to this article, the average  amount  of  such  contracts,  the
    46  number  of  veteran-owned  business enterprises certified, the number of
    47  applications for certification as a veteran-owned  business  enterprise,
    48  the  number  of denials for such certification, the number of appeals of
    49  such denials, and the outcome of such appeals and the average time  that
    50  is required for such certification to be completed.
    51    5. Certification. (a) The director, or in the absence of the director,
    52  the commissioner, within ninety days of the effective date of this arti-
    53  cle, shall promulgate rules and regulations providing for the establish-
    54  ment  of  a  statewide  certification  program including rules and regu-
    55  lations governing the  approval,  denial,  or  revocation  of  any  such
    56  certification.  Such  rules  and  regulations  shall include, but not be

        A. 4126                             5
     1  limited to, such matters as may be required to ensure  that  the  estab-
     2  lished  procedures  thereunder  shall at least be in compliance with the
     3  code of fair procedure set forth in section seventy-three of  the  civil
     4  rights law.
     5    (b)  The division of veterans' business development shall be responsi-
     6  ble for verifying businesses as being owned, operated, and controlled by
     7  a veteran or veterans  and  for  certifying  such  verified  businesses.
     8  Status  as a veteran pursuant to paragraph (a) of this subdivision shall
     9  be documented by a copy of  the  veteran's  certificate  of  release  or
    10  discharge  from active duty, including but not limited to, a DD-214 form
    11  or an honorable service certificate/report of causality from the depart-
    12  ment of defense, a letter of certification by the United States  depart-
    13  ment  of veterans affairs or the United States department of defense and
    14  any additional information that may  be  required  by  the  division  of
    15  veterans' business development. In the case of the New York guard or the
    16  New  York  naval  militia  and/or  reserves thereof, status as a veteran
    17  pursuant to this paragraph shall be documented  pursuant  to  rules  and
    18  regulations promulgated by the director, or in the absence of the direc-
    19  tor, the commissioner.
    20    (c)  Following application for certification pursuant to this section,
    21  the director shall provide the applicant  with  written  notice  of  the
    22  status of the application, including notice of any outstanding deficien-
    23  cies,  within  thirty  days.  Within sixty days of submission of a final
    24  completed application, the director shall  provide  the  applicant  with
    25  written  notice  of a determination by the director approving or denying
    26  such certification and, in the event of a denial,  a  statement  setting
    27  forth  the  reasons  for  such  denial.  Upon a determination denying or
    28  revoking certification, the business enterprise for which  certification
    29  has  been  so  denied or revoked shall, upon written request made within
    30  thirty days from receipt of notice of such determination, be entitled to
    31  a hearing before an independent  hearing  officer  designated  for  such
    32  purpose  by  the  director. In the event that a request for a hearing is
    33  not made within such thirty day  period,  such  determination  shall  be
    34  deemed  to  be  final.  The  independent hearing officer shall conduct a
    35  hearing and upon the conclusion of such hearing, issue a written  recom-
    36  mendation  to  the  director to affirm, reverse, or modify such determi-
    37  nation of the director. Such written recommendation shall be  issued  to
    38  the  parties.   The director, within thirty days, by order, must accept,
    39  reject or modify such recommendation of  the  hearing  officer  and  set
    40  forth in writing the reason therefor. The director shall serve a copy of
    41  such order and reasons therefor upon the business enterprise by personal
    42  service  or by certified mail return receipt requested. The order of the
    43  director shall be subject to review pursuant to article seventy-eight of
    44  the civil practice law and rules.
    45    (d) All certifications shall be valid for a period of five years.
    46    § 369-o. Opportunities for  certified  veteran-owned  business  enter-
    47  prises.  1. The director, or in the absence of the director, the commis-
    48  sioner, within ninety days of the effective date of this  article  shall
    49  promulgate rules and regulations for the following purposes:
    50    (a)  provide measures and procedures to ensure that certified veteran-
    51  owned business enterprises are afforded the opportunity  for  meaningful
    52  participation  in  the  performance  of state contracts and to assist in
    53  state agencies' identification of those state contracts for which certi-
    54  fied veteran-owned business enterprises may best perform;
    55    (b) provide for measures and procedures that assist state agencies  in
    56  the  identification  of state contracts where veteran contract goals are

        A. 4126                             6
     1  practical, feasible and appropriate for the purpose  of  increasing  the
     2  utilization  of veteran-owned business enterprise participation on state
     3  contracts;
     4    (c)  achieve  a statewide goal for participation on state contracts by
     5  veteran-owned business enterprises at a percentage to be  determined  by
     6  the commissioner;
     7    (d)  provide  for  procedures  relating  to  submission and receipt of
     8  applications by veteran-owned business enterprises for certification;
     9    (e) provide for the monitoring and compliance of  state  contracts  by
    10  state agencies with respect to the provisions of this article;
    11    (f)  provide  for  the  requirement that state agencies submit regular
    12  reports, as determined by the director, with respect to  their  veteran-
    13  owned  business  enterprise  program activity, including but not limited
    14  to, utilization reporting and state contract monitoring and compliance;
    15    (g) notwithstanding any provision of the state finance law, the public
    16  buildings law, the highway law, the transportation  law  or  the  public
    17  authorities  law  to the contrary, provide for the reservation or set-a-
    18  side of certain procurements by state agencies in order to  achieve  the
    19  objectives  of  this  article; provided, however, that such procurements
    20  shall remain subject to (i) priority of preferred  sources  pursuant  to
    21  sections  one hundred sixty-two and one hundred sixty-three of the state
    22  finance law; (ii) the approval of the comptroller of the  state  of  New
    23  York  pursuant  to  section  one  hundred twelve and section one hundred
    24  sixty-three of the state finance law and  section  twenty-eight  hundred
    25  seventy-nine-a  of the public authorities law; and (iii) the procurement
    26  record requirements pursuant to  paragraph  g  of  subdivision  nine  of
    27  section one hundred sixty-three of the state finance law; and
    28    (h) provide for any other purposes to effectuate this article.
    29    2.  State  agencies shall administer the rules and regulations promul-
    30  gated by the director for the implementation of this article.
    31    § 369-p. Severability. If any clause, sentence, paragraph, section  or
    32  part  of this article shall be adjudged by any court of competent juris-
    33  diction to be invalid, the judgment shall not affect, impair or  invali-
    34  date  the  remainder  thereof, but shall be confined in its operation to
    35  the clause, sentence, paragraph, section or part of this article direct-
    36  ly involved in the controversy in which the  judgment  shall  have  been
    37  rendered.
    38    §  2. The commissioner of the office of general services shall conduct
    39  a study to determine the percentage of contracts to be set  aside  under
    40  this act for veteran-owned businesses.
    41    §  3.  No  later  than  ninety calendar days after this act shall have
    42  become a law, the commissioner of the office of general  services  shall
    43  complete the study pursuant to section two of this act.
    44    §  4.  This  act shall take effect immediately and shall expire and be
    45  deemed repealed five years after such effective date.
Go to top