S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                 5927--A

                       2009-2010 Regular Sessions

                            I N  S E N A T E

                              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:

  Section 1. Subdivision 3 of section 311 of the executive law, as added
by chapter 261 of the laws of 1988, paragraphs (d) and (e) as amended by
chapter  55  of  the laws of 1992, paragraphs (g) and (h) as amended and
paragraph (i) as added by section 1 of part BB of chapter 59 of the laws
of 2006, is amended to read as follows:
  3. The director shall have the following powers and duties:
  (a) to encourage and assist contracting agencies in their  efforts  to
increase  participation by minority and women-owned business enterprises
on state contracts and subcontracts so as to facilitate the award  of  a
fair share of such contracts to them;
  (b) to develop standardized forms and reporting documents necessary to
implement this article;
  (c)  to  conduct  educational programs consistent with the purposes of
this article;
  (d) to review  periodically  the  practices  and  procedures  of  each
contracting  agency  with  respect  to compliance with the provisions of
this article, and to require them to file [periodic] ANNUAL reports with
the division of minority and women's  business  development  as  to  the
level  of minority and women-owned business enterprises participation in
the awarding of agency contracts for goods and  services  INCLUDING  BUT
NOT LIMITED TO THE NUMBER OF STATE CONTRACTS AWARDED TO CERTIFIED MINOR-
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

OBLIGATED  PURSUANT  TO  ALL THOSE CONTRACTS, AND THE TOTAL EXPENDITURES
MADE PURSUANT TO ALL SUCH CONTRACTS;
  (e)  on  January  first  of  each  year report to the governor and the
chairpersons of the senate finance and assembly ways and  means  commit-
tees  on  the  [level]  ACTUAL  VERSUS  PROJECTED LEVELS of minority and
women-owned  business  enterprises  participating   in   each   agency's
contracts  for goods [and], services AND CONSTRUCTION, INCLUDING BUT NOT
LIMITED TO THE NUMBER OF STATE CONTRACTS AWARDED TO CERTIFIED  MINORITY-
OWNED  OR  WOMEN-OWNED  BUSINESS  ENTERPRISES, THE MAXIMUM DOLLAR AMOUNT
OBLIGATED PURSUANT TO ALL THOSE CONTRACTS, AND  THE  TOTAL  EXPENDITURES
MADE PURSUANT TO ALL SUCH CONTRACTS, and on activities of the office and
effort  by  each  contracting  agency  to promote employment of minority
group members and women, and to promote and  increase  participation  by
certified businesses with respect to state contracts and subcontracts so
as  to  facilitate  the award of a fair share of state contracts to such
businesses. The comptroller shall  assist  the  division  in  collecting
information   on  the  participation  of  certified  business  for  each
contracting agency.   Such  report  may  recommend  new  activities  and
programs to effectuate the purposes of this article;
  (f) to prepare and update periodically a directory of certified minor-
ity and women-owned business enterprises which shall, wherever practica-
ble, be divided into categories of labor, services, supplies, equipment,
materials  and  recognized  construction trades and which shall indicate
areas or locations of the state where such enterprises are available  to
perform services, AND TO USE THIS INFORMATION TO CREATE A STATE REGISTRY
TO  ENABLE APPROPRIATE STATE CERTIFIED MINORITY AND WOMEN-OWNED BUSINESS
ENTERPRISES TO BE NOTIFIED OF CONTRACT AND SUBCONTRACT OPPORTUNITIES;
  (g) to appoint independent hearing officers who by contract  or  terms
of  employment  shall  preside  over  adjudicatory  hearings pursuant to
section three hundred fourteen of this article for the  office  and  who
are assigned no other work by the office;
  (h)  notwithstanding  the provisions of section two hundred ninety-six
of this chapter, to file a  complaint  pursuant  to  the  provisions  of
section  two hundred ninety-seven of this chapter where the director has
knowledge that a contractor may have violated the  provisions  of  para-
graph  (a), (b) or (c) of subdivision one of section two hundred ninety-
six of this chapter where  such  violation  is  unrelated,  separate  or
distinct from the state contract as expressed by its terms; and
  (i)  to  streamline  the state certification process to accept federal
and municipal corporation certifications.
  S 2. Subdivision 1 of section 313 of the executive law,  as  added  by
chapter 261 of the laws of 1988, is amended to read as follows:
  1.  The  director  shall promulgate rules and regulations that provide
measures and procedures to ensure that  certified  businesses  shall  be
given the opportunity for meaningful participation in the performance of
state  contracts  and to identify those state contracts for which certi-
fied businesses may best bid to actively and affirmatively  promote  and
assist  their  participation in the performance of state contracts so as
to facilitate the award of a fair share of state contracts to such busi-
nesses AND ENCOURAGE JOINT  VENTURES,  PARTNERSHIPS  AND  MENTOR-PROTEGE
RELATIONSHIPS  BETWEEN  PRIME  CONTRACTORS  AND MINORITY AND WOMEN-OWNED
BUSINESS ENTERPRISES.  Such rules and regulations as they pertain to any
particular  agency  shall  be  developed  after  consultation  with  the
contracting  agency.  Nothing in the provisions of this article shall be
construed to limit the ability of any certified business to bid  on  any
contract.

S. 5927--A                          3

  S  3.  Paragraph  (a) of subdivision 4 of section 313 of the executive
law, as amended by chapter 429 of the laws of 2009, is amended  to  read
as follows:
  (a)  Contracting  agencies  shall administer the rules and regulations
promulgated by the director to ensure compliance with the provisions  of
this  section. Such rules and regulations: shall require a contractor to
submit a utilization plan after bids are opened, when bids are required,
but prior to the award of a state contract; shall require the  contract-
ing  agency  to  review the utilization plan submitted by the contractor
and to post the utilization plan and any waivers  of  compliance  issued
pursuant  to  subdivision  five  of  this  section on the website of the
contracting agency within a reasonable period of time as established  by
the  director;  shall  require  the  contracting  agency  to  notify the
contractor in writing within a period of time specified by the  director
as  to  any deficiencies contained in the contractor's utilization plan;
shall require remedy thereof within a period of time  specified  by  the
director;  shall  require  the  contractor to submit periodic compliance
reports relating to the operation and implementation of any  utilization
plan;  shall NOT ALLOW ANY AUTOMATIC WAIVERS, BUT SHALL allow a contrac-
tor to apply for a partial or total waiver of the  minority  and  women-
owned  business enterprise participation requirements pursuant to subdi-
visions five and six of this section; shall allow a contractor to file a
complaint with the  director  pursuant  to  subdivision  seven  of  this
section in the event a contracting agency has failed or refused to issue
a  waiver  of  the  minority and women-owned business enterprise partic-
ipation requirements or has denied such request for a waiver; and  shall
allow  a contracting agency to file a complaint with the director pursu-
ant to subdivision eight of this section in the event  a  contractor  is
failing  or has failed to comply with the minority and women-owned busi-
ness enterprise  participation  requirements  set  forth  in  the  state
contract where no waiver has been granted.
  S  4.  Subdivision  3 of section 314 of the executive law, as added by
chapter 261 of the laws of 1988, is amended to read as follows:
  3. Following application for certification pursuant to  this  section,
the  director  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  director  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 director. 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 director to affirm, reverse  or  modify  such  determi-
nation  of  the director. Such written recommendation shall be issued to
the parties. The director, 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 director 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

S. 5927--A                          4

order  of  the  director  shall be subject to review pursuant to article
seventy-eight of the civil practice  law  and  rules.    RECERTIFICATION
SHALL BE REQUIRED EVERY THREE YEARS.
  S  5.  This  act shall take effect immediately, provided, however that
the amendments to article 15-A of the executive law made by sections one
through four of this act shall not affect the expiration of such article
and shall expire therewith.