S T A T E   O F   N E W   Y O R K
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                                 8555--A

                       2009-2010 Regular Sessions

                          I N  A S S E M B L Y

                              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:

  Section 1. Legislative intent. The legislature hereby  recognizes  the
need  to  provide support for our state's service-disabled veterans, who
have made extraordinary sacrifices  on  behalf  of  our  state  and  the
nation,  by providing economic opportunities for service-disabled veter-
an-owned business enterprises in the state procurement process.
  S 2. This act may be cited as the  "New  York  State  Service-Disabled
Veteran-Owned Business Enterprise Opportunity Act".
  S 3. The executive law is amended by adding a new article 17-A to read
as follows:
                               ARTICLE 17-A
              NEW YORK STATE SERVICE-DISABLED VETERAN-OWNED
                   BUSINESS ENTERPRISE OPPORTUNITY ACT
SECTION 368.   DEFINITIONS.
        369.   STATEWIDE CERTIFICATION PROGRAM.
        369-A. DUTIES OF THE DIVISION FOR SMALL-BUSINESS.
        369-B. DUTIES OF THE DIVISION OF VETERANS' AFFAIRS.
  S 368. DEFINITIONS. AS USED IN THIS ARTICLE, THE FOLLOWING TERMS SHALL
HAVE THE FOLLOWING MEANINGS:
  1. "OFFICE" SHALL MEAN THE OFFICE OF GENERAL SERVICES;
  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

  3. "DIVISION FOR SMALL-BUSINESS" SHALL MEAN THE DIVISION FOR SMALL-BU-
SINESS WITHIN THE DEPARTMENT OF ECONOMIC DEVELOPMENT;
  4.  "VETERAN"  SHALL  MEAN  A PERSON, MALE OR FEMALE, RESIDENT OF THIS
STATE, WHO HAS SERVED IN THE ACTIVE MILITARY, NAVAL, OR AIR  SERVICE  OF
THE  UNITED  STATES  DURING A WAR IN WHICH THE UNITED STATES ENGAGED AND
WHO HAS BEEN RELEASED FROM SUCH SERVICE OTHERWISE THAN  BY  DISHONORABLE
DISCHARGE, OR WHO HAS BEEN FURLOUGHED TO THE RESERVE;
  5.  "SERVICE-DISABLED  VETERAN"  SHALL  MEAN  A VETERAN WHO RECEIVED A
COMPENSATION RATING OF TEN PERCENT OR GREATER  FROM  THE  UNITED  STATES
DEPARTMENT  OF  VETERANS  AFFAIRS  OR  THE  UNITED  STATES DEPARTMENT OF
DEFENSE BECAUSE OF A SERVICE-CONNECTED DISABILITY;
  6.  "CERTIFIED  SERVICE-DISABLED  VETERAN-OWNED  BUSINESS  ENTERPRISE"
SHALL  MEAN  A BUSINESS ENTERPRISE THAT HAS BEEN CERTIFIED BY THE OFFICE
OF GENERAL SERVICES TO  BE  A  SERVICE-DISABLED  VETERAN-OWNED  BUSINESS
ENTERPRISE AS DEFINED IN SUBDIVISION SEVEN OF THIS SECTION;
  7.  "SERVICE-DISABLED  VETERAN-OWNED BUSINESS ENTERPRISE" SHALL MEAN A
BUSINESS ENTERPRISE, INCLUDING A  SOLE  PROPRIETORSHIP,  PARTNERSHIP  OR
CORPORATION:
  (A)  THAT  IS  AT  LEAST  FIFTY-ONE  PERCENT  OWNED  BY  ONE  OR  MORE
SERVICE-DISABLED VETERANS;
  (B) THAT IS AN ENTERPRISE IN WHICH  THE  OWNERSHIP  INTEREST  OF  SUCH
SERVICE-DISABLED VETERANS IS REAL, SUBSTANTIAL AND CONTINUING;
  (C) THAT EMPLOYS ONE HUNDRED OR FEWER PERMANENT FULL-TIME EMPLOYEES;
  (D) THAT IS ORGANIZED TO ENGAGE IN COMMERCIAL TRANSACTIONS;
  (E) THAT IS DOMICILED IN THIS STATE; AND
  (F)  WHERE THE MANAGEMENT AND CONTROL OF THE DAILY BUSINESS OPERATIONS
ARE BY ONE OR MORE SERVICE-DISABLED VETERANS OR, FOR A  SERVICE-DISABLED
VETERAN  WITH  A PERMANENT AND TOTAL DISABILITY, BY THE SPOUSE OR PERMA-
NENT CAREGIVER OF THE VETERAN. THE SERVICE-DISABLED VETERANS  WHO  EXER-
CISE MANAGEMENT AND CONTROL ARE NOT REQUIRED TO BE THE SAME SERVICE-DIS-
ABLED VETERANS AS THE OWNERS OF THE BUSINESS.
  S  369. STATEWIDE CERTIFICATION PROGRAM. 1. THE COMMISSIONER OR HIS OR
HER DESIGNEE, IN CONSULTATION  WITH  THE  DIVISION  FOR  SMALL-BUSINESS,
SHALL  PROMULGATE  RULES AND REGULATIONS PROVIDING FOR THE ESTABLISHMENT
OF A STATEWIDE CERTIFICATION PROGRAM FOR SERVICE-DISABLED  VETERAN-OWNED
BUSINESSES,  INCLUDING  RULES  AND  REGULATIONS  GOVERNING THE APPROVAL,
DENIAL OR REVOCATION OF ANY SUCH  CERTIFICATION.  SUCH  A  CERTIFICATION
PROGRAM SHALL BE REVIEWED TRIENNIALLY AND UPDATED AS NECESSARY.
  2.  THE  OFFICE SHALL BE RESPONSIBLE FOR VERIFYING BUSINESSES AS BEING
OWNED, OPERATED, AND CONTROLLED BY SERVICE-DISABLED VETERANS AS  DEFINED
IN  THIS  ARTICLE, AND FOR GRANTING, DENYING, AND REVOKING CERTIFICATION
FOR SUCH BUSINESSES UNDER THE PROCEDURES ESTABLISHED AND RULES AND REGU-
LATIONS PROMULGATED UNDER THIS SECTION.
  2-A. THE COMMISSIONER SHALL ESTABLISH A PROCEDURE ENABLING  THE  DIVI-
SION  TO  ACCEPT FEDERAL CERTIFICATION VERIFICATION FOR SERVICE-DISABLED
VETERAN-OWNED BUSINESS ENTERPRISE APPLICANTS IN LIEU  OF  REQUIRING  THE
APPLICANT  TO COMPLETE THE STATE CERTIFICATION PROCESS. THE COMMISSIONER
SHALL PROMULGATE RULES AND REGULATIONS TO SET  FORTH  CRITERIA  FOR  THE
ACCEPTANCE OF FEDERAL CERTIFICATION.
  3.   THE   APPLICATION   FOR   CERTIFICATION   AS  A  SERVICE-DISABLED
VETERAN-OWNED BUSINESS ENTERPRISE MUST, AT A MINIMUM, INCLUDE:
  (A) THE NAME OF THE BUSINESS ENTERPRISE APPLYING FOR CERTIFICATION AND
THE NAME OF THE SERVICE-DISABLED VETERAN SUBMITTING THE  APPLICATION  ON
BEHALF OF THE BUSINESS ENTERPRISE;
  (B)  THE  NAMES  OF  ALL  OWNERS OF THE BUSINESS ENTERPRISE, INCLUDING
OWNERS  WHO  ARE  SERVICE-DISABLED  VETERANS  AND  OWNERS  WHO  ARE  NOT

A. 8555--A                          3

SERVICE-DISABLED VETERANS, AND THE PERCENTAGE OF OWNERSHIP INTEREST HELD
BY EACH OWNER;
  (C) THE NAMES OF ALL PERSONS INVOLVED IN BOTH THE MANAGEMENT AND DAILY
OPERATIONS OF THE BUSINESS ENTERPRISE, INCLUDING THE SPOUSE OR PERMANENT
CAREGIVER OF A VETERAN WITH A PERMANENT AND TOTAL DISABILITY;
  (D)  THE  SERVICE-CONNECTED  DISABILITY  RATING  OF ALL PERSONS LISTED
UNDER PARAGRAPHS (A), (B), AND (C) OF THIS SUBDIVISION,  AS  APPLICABLE,
WITH  SUPPORTING  DOCUMENTATION  FROM  THE  UNITED  STATES DEPARTMENT OF
VETERANS AFFAIRS OR THE UNITED STATES DEPARTMENT OF DEFENSE;
  (E) THE NUMBER OF PERMANENT FULL-TIME EMPLOYEES; AND
  (F) THE LOCATION OF THE BUSINESS ENTERPRISE HEADQUARTERS.
  4. FOLLOWING APPLICATION FOR CERTIFICATION PURSUANT TO  THIS  SECTION,
THE  COMMISSIONER SHALL PROVIDE THE APPLICANT WITH WRITTEN NOTICE OF THE
STATUS OF THE APPLICATION, INCLUDING NOTICE OF ANY OUTSTANDING DEFICIEN-
CIES, WITHIN THIRTY DAYS. WITHIN SIXTY DAYS OF  SUBMISSION  OF  A  FINAL
COMPLETED APPLICATION, THE COMMISSIONER SHALL PROVIDE THE APPLICANT WITH
WRITTEN  NOTICE  OF  A  DETERMINATION BY THE OFFICE APPROVING OR DENYING
SUCH CERTIFICATION AND, IN THE EVENT OF A  DENIAL  A  STATEMENT  SETTING
FORTH  THE  REASONS  FOR  SUCH DENIAL.   UPON A DETERMINATION DENYING OR
REVOKING CERTIFICATION, THE BUSINESS ENTERPRISE FOR WHICH  CERTIFICATION
HAS  BEEN  SO  DENIED OR REVOKED SHALL, UPON WRITTEN REQUEST MADE WITHIN
THIRTY DAYS FROM RECEIPT OF NOTICE OF SUCH DETERMINATION, BE ENTITLED TO
A HEARING BEFORE AN INDEPENDENT  HEARING  OFFICER  DESIGNATED  FOR  SUCH
PURPOSE  BY  THE COMMISSIONER. IN THE EVENT THAT A REQUEST FOR A HEARING
IS NOT MADE WITHIN SUCH THIRTY DAY PERIOD, SUCH DETERMINATION  SHALL  BE
DEEMED  TO  BE  FINAL.  THE  INDEPENDENT HEARING OFFICER SHALL CONDUCT A
HEARING AND UPON THE CONCLUSION OF SUCH HEARING, ISSUE A WRITTEN  RECOM-
MENDATION TO THE COMMISSIONER TO AFFIRM, REVERSE OR MODIFY SUCH DETERMI-
NATION  OF THE COMMISSIONER. SUCH WRITTEN RECOMMENDATION SHALL BE ISSUED
TO THE PARTIES. THE COMMISSIONER, WITHIN THIRTY  DAYS,  BY  ORDER,  MUST
ACCEPT,  REJECT OR MODIFY SUCH RECOMMENDATION OF THE HEARING OFFICER AND
SET FORTH IN WRITING THE REASONS THEREFOR.  THE COMMISSIONER SHALL SERVE
A  COPY OF SUCH ORDER AND REASONS THEREFOR UPON THE BUSINESS  ENTERPRISE
BY  PERSONAL  SERVICE OR BY CERTIFIED MAIL RETURN RECEIPT REQUESTED. THE
ORDER OF THE COMMISSIONER SHALL BE SUBJECT TO REVIEW PURSUANT TO ARTICLE
SEVENTY-EIGHT OF THE CIVIL PRACTICE LAW AND RULES.
  5. ALL CERTIFICATIONS SHALL BE VALID FOR A PERIOD OF THREE YEARS.  THE
OFFICE SHALL MAINTAIN AND PERIODICALLY UPDATE AN ELECTRONIC DIRECTORY OF
CERTIFIED SERVICE-DISABLED VETERAN-OWNED BUSINESS ENTERPRISES FOR USE BY
THE  STATE,  CONTRACTING  AGENCIES, POLITICAL SUBDIVISIONS OF THE STATE,
AND THE PUBLIC.
  6. A CERTIFIED SERVICE-DISABLED VETERAN-OWNED BUSINESS ENTERPRISE MUST
NOTIFY THE OFFICE WITHIN THIRTY BUSINESS DAYS AFTER ANY EVENT  THAT  MAY
SIGNIFICANTLY  AFFECT  THE  CERTIFICATION  OF  THE  BUSINESS ENTERPRISE,
INCLUDING, BUT NOT LIMITED TO,  A  CHANGE  IN  OWNERSHIP  OR  CHANGE  IN
MANAGEMENT AND DAILY BUSINESS ENTERPRISE OPERATIONS.
  7.  (A) THE CERTIFICATION OF A SERVICE-DISABLED VETERAN-OWNED BUSINESS
ENTERPRISE SHALL BE REVOKED IF THE OFFICE DETERMINES THAT  THE  BUSINESS
ENTERPRISE  VIOLATED  SUBDIVISION  SIX  OF THIS SECTION.   AN OWNER OF A
CERTIFIED  SERVICE-DISABLED  VETERAN-OWNED  BUSINESS  ENTERPRISE   WHOSE
CERTIFICATION  IS  REVOKED IS NOT PERMITTED TO REAPPLY FOR CERTIFICATION
UNDER THIS SECTION AS AN OWNER OF ANY BUSINESS FOR TWELVE  MONTHS  AFTER
SUCH REVOCATION.
  (B) A SERVICE-DISABLED VETERAN-OWNED BUSINESS ENTERPRISE WHOSE CERTIF-
ICATION  HAS  BEEN  REVOKED UNDER THE PROVISION OF PARAGRAPH (A) OF THIS
SUBDIVISION MAY CONTINUE TO BID ON STATE CONTRACTS BUT IS  NOT  ELIGIBLE

A. 8555--A                          4

FOR  ANY OPPORTUNITIES AVAILABLE UNDER SECTION ONE HUNDRED THIRTY-NINE-L
OF THE STATE FINANCE LAW UNTIL SUCH TIME AS SUCH  CERTIFICATION  MAY  BE
REINSTATED.
  (C) A SERVICE-DISABLED VETERAN-OWNED BUSINESS ENTERPRISE WHOSE CERTIF-
ICATION  HAS  BEEN  REVOKED  MAY  REAPPLY FOR CERTIFICATION AFTER TWELVE
MONTHS BY  COMPLYING  WITH  THOSE  REQUIREMENTS  APPLICABLE  TO  INITIAL
CERTIFICATIONS.
  8. THE OFFICE SHALL, WITH THE ASSISTANCE OF THE DIVISION FOR SMALL-BU-
SINESS,  REPORT  TO  THE GOVERNOR, THE TEMPORARY PRESIDENT OF THE SENATE
AND THE SPEAKER OF THE ASSEMBLY ON OR BEFORE APRIL FIRST OF  EACH  YEAR,
BEGINNING  IN TWO THOUSAND ELEVEN, ON THE PARTICIPATION OF SERVICE-DISA-
BLED VETERAN-OWNED BUSINESS  ENTERPRISE  IN  STATE  PROCUREMENT.    SUCH
REPORT  SHALL INCLUDE, BUT NOT BE LIMITED TO, THE FOLLOWING DATA FOR THE
IMMEDIATELY PRECEDING TWELVE-MONTH PERIOD:
  (A) THE NUMBER OF SERVICE-DISABLED VETERAN-OWNED BUSINESS  ENTERPRISES
WHO SUBMITTED A BID FOR A STATE PROCUREMENT CONTRACT;
  (B)  THE NUMBER OF SERVICE-DISABLED VETERAN-OWNED BUSINESS ENTERPRISES
WHO ENTERED INTO PROCUREMENT CONTRACTS WITH THIS  STATE  AND  THE  TOTAL
VALUE OF THOSE PROCUREMENT CONTRACTS;
  (C)  THE  LOCATION  OF  SERVICE-DISABLED VETERAN-OWNED BUSINESS ENTER-
PRISES WHO ENTERED INTO PROCUREMENT CONTRACTS WITH THIS STATE BY REGION;
AND
  (D) A LISTING OF CONTRACTS BY SERVICES THAT WERE PROVIDED BY  SERVICE-
DISABLED   VETERAN-OWNED   BUSINESSES   THAT  ENTERED  INTO  PROCUREMENT
CONTRACTS WITH THIS STATE.
  S 369-A. DUTIES OF  THE  DIVISION  FOR  SMALL-BUSINESS.  THE  DIVISION
SHALL:   1. ASSIST THE OFFICE IN ESTABLISHING A CERTIFICATION PROCEDURE,
WHICH SHALL BE REVIEWED TRIENNIALLY AND UPDATED AS NECESSARY; AND,
  2. ASSIST THE OFFICE WITH THE ANNUAL REPORT TO THE GOVERNOR AND LEGIS-
LATURE, AS REQUIRED UNDER SUBDIVISION EIGHT  OF  SECTION  THREE  HUNDRED
SIXTY-NINE OF THIS ARTICLE.
  S  369-B.  DUTIES  OF  THE DIVISION OF VETERANS' AFFAIRS. THE DIVISION
SHALL:
  1. IDENTIFY ELIGIBLE SERVICE-DISABLED VETERAN BUSINESS ENTERPRISES  BY
ANY  ELECTRONIC MEANS, INCLUDING ELECTRONIC MAIL OR INTERNET WEBSITE, OR
BY ANY OTHER REASONABLE MEANS AND SHARE SUCH INFORMATION WITH THE OFFICE
AND THE DEPARTMENT FOR SMALL-BUSINESS; AND,
  2. ENCOURAGE AND ASSIST ELIGIBLE SERVICE-DISABLED VETERAN-OWNED  BUSI-
NESS ENTERPRISES TO APPLY FOR CERTIFICATION UNDER THIS ARTICLE.
  S 4. The state finance law is amended by adding a new section 139-l to
read as follows:
  S  139-L.  SERVICE-DISABLED VETERAN-OWNED BUSINESS ENTERPRISE OPPORTU-
NITIES. NOTWITHSTANDING ANY CONTRARY PROVISION OF LAW,  WHEN  PURCHASING
GOODS,  SERVICES  OR  CONSTRUCTION  FOR  PUBLIC  USE,  ANY STATE AGENCY,
DEPARTMENT, OR AUTHORITY WHICH HAS LET MORE THAN TWO MILLION DOLLARS  IN
COMMODITIES  SERVICE AND CONSTRUCTION CONTRACTS IN THE PRIOR FISCAL YEAR
SHALL AWARD CONTRACTS FOR SUCH PURCHASES TO A CERTIFIED SERVICE-DISABLED
VETERAN-OWNED BUSINESS ENTERPRISE, AS DEFINED IN ARTICLE SEVENTEEN-A  OF
THE EXECUTIVE LAW, WHO SUBMITS A BID OR PROPOSAL AND IS A RESPONSIVE AND
RESPONSIBLE  BIDDER,  EVEN  IF SUCH PARTICIPANT IS NOT THE LOWEST BIDDER
FOR SUCH CONTRACT, PROVIDED, HOWEVER THAT SUCH AWARD MAY ONLY BE MADE TO
THE LOWEST SUCH BID THAT IS REASONABLY COMPETITIVE,  AND  PROVIDED  ALSO
THAT  THERE  IS  NO  LOWER  BID  OR  PROPOSAL BY A CERTIFIED MINORITY OR
WOMEN-OWNED BUSINESS ENTERPRISE AS DEFINED IN ARTICLE FIFTEEN-A  OF  THE
EXECUTIVE  LAW. FOR THE PURPOSE OF THIS SUBDIVISION, "REASONABLY COMPET-
ITIVE" SHALL MEAN THAT SUCH BID FROM A CERTIFIED SERVICE-DISABLED VETER-

A. 8555--A                          5

AN-OWNED BUSINESS ENTERPRISE DOES NOT EXCEED THE LOWEST BID BY MORE THAN
SIX PERCENT. IF TWO OR  MORE  QUALIFIED  SERVICE-DISABLED  VETERAN-OWNED
BUSINESS  ENTERPRISES  ARE  THE  LOWEST BIDDERS ON A CONTRACT, ALL OTHER
THINGS  BEING  EQUAL,  THE  QUALIFIED  SERVICE-DISABLED VETERAN WITH THE
LOWEST BID SHALL BE AWARDED THE CONTRACT UNDER THIS ACT.
  S 5. This act shall take effect on the first of April next  succeeding
the  date  on  which  it  shall have become law; provided, however, that
effective immediately, the addition, amendment and/or repeal of any rule
or regulation necessary for the implementation of this act on its effec-
tive date are authorized and directed to be made  and  completed  on  or
before such effective date.