NY State Senate Bill 2011-S380

Senate Bill S380

2011-2012 Legislative Session

Relates to increased participation in state contracts and subcontracts by certified minority and women owned business enterprises

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Archive: Last Bill Status - In Senate Committee Rules Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Mar 12, 2012	committee discharged and committed to rules
Feb 21, 2012	notice of committee consideration - requested
Jan 04, 2012	referred to finance
Jan 05, 2011	referred to finance

2011-S380 (ACTIVE) - Details

See Assembly Version of this Bill:: A301
Current Committee:: Senate Rules
Law Section:: Executive Law
Laws Affected:: Amd §§311, 312, 313, 315 & 316, Exec L; amd §§137, 139-f & 139-g, St Fin L
Versions Introduced in Other Legislative Sessions:: 2009-2010: S7654, A4094
2013-2014: S1681, A1780
2015-2016: S1568
2017-2018: S4448
2019-2020: S766
2021-2022: S4473
2023-2024: S5464

2011-S380 (ACTIVE) - Summary

Relates to increased participation in state contracts and subcontracts by certified minority and women owned business enterprises; relates to certain performance and payment bond requirements.

2011-S380 (ACTIVE) - Sponsor Memo

                                BILL NUMBER:S380

TITLE OF BILL:
An act
to amend the executive law, in relation to participation by
minority group members and women with respect to certain state contracts;
and to amend the state finance law, in relation to
establishing a
mentor-protege program for small and minority and
women-owned business concerns and in relation to performance and
payment bond
requirements

PURPOSE:
Minority and women-owned businesses have come to constitute a large
percentage of businesses in New York.
MWBEs, just like small businesses, are an increasingly crucial part
of the State's economy and contribute vastly to our economy's growth.
However, despite these increases. MWBEs continue to face barriers in
government contracting. This bill seeks to address and eliminate some
of these barriers by enhancing Article 15-A provisions and increasing
small business and minority and women-owned business enterprise
(MWBE) participation in State agency commodity and service
procurement and State public authority assisted, construction and
rehabilitation project contracts and subcontracts.

SUMMARY OF PROVISIONS:
* Creates a Small Business and MWBE Mentor/Protege Program.

* Creates violations against contractors failing to comply with
Article 15-A.

* Creates greater accountability by requiring the Division of Minority
and Women Business Development to create a master list of all state
agencies required to file quarterly compliance reports and to list in
its annual report the names of non-compliant agencies and the extent
of their noncompliance.

* Expands contracting opportunities to certified MWBEs by creating a
Division web site where certified MWBEs can access contracting and
subcontracting opportunities.

* Requires contractors to provide utilization plans at the time a bid
is submitted.

* Requires the posting of contractor MWBE utilization plans and
prohibits the use of automatic waivers.

* Provides for greater contracting opportunities by alleviating the
burden of performance and payment bonds for small businesses and
certified MWBEs when the aggregate amount of the contract is under
$500,000.

* Provides the Director with the authority to mandate an audit of
state contracting agencies that do not comply with Article 15-A


reporting requirements. and requires the contracting agency to hire
and pay for an independent auditor.

* Increases MWBE and small business participation in State public
authority assisted, construction and rehabilitation projects.

JUSTIFICATION:
Public purchasing is one of government's most important functions. Its
effective use or potential abuse can have a substantial impact on
governmental efficiency, the income of particular companies and
communities, and the financial burden of taxpayers. Over many years,
minority-owned and women-owned businesses have experienced
difficulties in tapping into government procurement purchasing
programs. Barriers to government contracts still exist for MWBEs
because they are smaller in size and fewer in number than
majority-firms. Small businesses experience similar barriers when
trying to participate in government contracting. There are over 1
million small businesses in New York State, comprising 99% of total
businesses and employing over 55% of the State's workforce. Minority
and women-owned businesses have come to constitute a large percentage
of businesses in New York, and continue to experience growth rates of
two to three times the national average. According to the census, New
York ranks first in the number of black-owned firms (with 129,324),
second in women-owned firms (505,134), and fourth in Hispanic-owned
firms (163,639). However, as of March 31, 2003, the Division reported
that there were 6,843 MWBE-certified businesses in
New York State. About half of these firms are located in the New York
City region.
The Division reports that State agency expenditures for MWBEs
statewide totaled $558 million, $480 million, and $513 million
respectively, 2001-2002, 2002-2003, and 2004-2005 State Fiscal Years.
Challenges with the implementation of Article 15-A include, but are
not limited to, the continued failure of contracting agencies to file
quarterly reports of their MWBE goal achievement and the failure of
the Division to submit in a timely fashion their required annual MWBE
utilization report. In addition, Article 15-A provides for no
penalties if a contractor intentionally uses or acquires an MWBE name
through deceit or fraud. The Pataki Administration has failed to
effectively administer the State's MWBE programs. Between SFY 2001-02
and SFY 2004-05, there has been a 33% decline in the total dollar
volume of State agency contracts being let to MWBEs.

* In SFY 2001-02 New York State agencies entered into $7.4 billion in
service, technology, commodity and construction contracts.

* $558 million (or 7.5%) of these SFY 2001-02 contracts were let to
MWBEs.

*In SFY 2004-05 New York State agencies entered into $10.1 billion in
service, technology, commodity and construction contracts.

* $513 million (or 5%) of these SFY 2004-05 contracts were let to MWBEs.

LEGISLATIVE HISTORY:
2010: Referred to and died in the Senate Finance Committee.

FISCAL IMPLICATIONS:


To be determined.

EFFECTIVE DATE:
This act shall take effect immediately.

2011-S380 (ACTIVE) - Bill Text download pdf

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

    S. 380                                                    A. 301

                       2011-2012 Regular Sessions

                      S E N A T E - A S S E M B L Y

                               (PREFILED)

                             January 5, 2011
                               ___________

IN  SENATE  --  Introduced  by Sen. MONTGOMERY -- read twice and ordered
  printed, and when printed to be committed to the Committee on Finance

IN ASSEMBLY -- Introduced by M. of A. MILLMAN -- read once and  referred
  to the Committee on Governmental Operations

AN  ACT  to  amend  the  executive  law, in relation to participation by
  minority group  members  and  women  with  respect  to  certain  state
  contracts;  and  to amend the state finance law, in relation to estab-
  lishing a mentor-protege program for small  and  minority  and  women-
  owned  business  concerns  and  in relation to performance and payment
  bond requirements

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section  1.  Subdivisions 3 and 4 of section 311 of the executive law,
subdivision 3 as added by chapter 261 of the laws  of  1988,  paragraphs
(d)  and  (e)  of  subdivision 3 as amended by chapter 55 of the laws of
1992, paragraphs (g) and (h) of subdivision 3 as amended  and  paragraph
(i)  of  subdivision 3 as added by section 1 of part BB of chapter 59 of
the laws of 2006 and subdivision 4 as amended by chapter 361 of the laws
of 2009, are 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 AND TO PROVIDE ON THE DIVISION'S
WEBSITE A LIST OF EACH CONTRACTING  AGENCY'S  MINORITY  AND  WOMEN-OWNED
BUSINESS ENTERPRISES CERTIFICATION OUTREACH SEMINARS;
  (b) to develop standardized forms and reporting documents necessary to
implement this article;

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD01446-01-1

S. 380                              2                             A. 301

  (c)  to conduct educational OUTREACH programs TO ENCOURAGE THE CERTIF-
ICATION OF MINORITY AND WOMEN-OWNED BUSINESS ENTERPRISES consistent with
the purposes of this article;
  (d) to review [periodically] QUARTERLY 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]  QUARTERLY
reports  with  the division of minority and women's business development
as to the level of minority and women-owned business enterprises partic-
ipation in the awarding of  agency  contracts  for  goods  and  services
INCLUDING  BUT  NOT  LIMITED TO THE NUMBER OF STATE CONTRACTS AWARDED TO
CERTIFIED MINORITY-OWNED OR WOMEN-OWNED BUSINESS ENTERPRISES, THE  MAXI-
MUM  DOLLAR  AMOUNT  OBLIGATED  PURSUANT TO ALL THOSE CONTRACTS, AND THE
TOTAL EXPENDITURES MADE PURSUANT TO ALL SUCH CONTRACTS;  THE  NUMBER  OF
STATE  CONTRACTS  AWARDED  TO CERTIFIED MINORITY 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; THE NUMBER OF STATE CONTRACTS AWARDED WHICH INCLUDE A  UTILI-
ZATION   PLAN  FOR  BUSINESS  PARTICIPATION  BY  CERTIFIED  MINORITY  OR
WOMEN-OWNED BUSINESS ENTERPRISES, THE MAXIMUM AMOUNT OBLIGATED  PURSUANT
TO THOSE CONTRACTS, AND THE TOTAL EXPENDITURES MADE PURSUANT TO ALL SUCH
CONTRACTS; THE NUMBER OF STATE CONTRACTS AWARDED UPON WHICH A WAIVER WAS
GRANTED  FROM GOALS REQUIRED BY THE CONTRACTS FOR BUSINESS PARTICIPATION
BY CERTIFIED MINORITY OR WOMEN-OWNED BUSINESS ENTERPRISES, AND THE MAXI-
MUM AMOUNT OBLIGATED PURSUANT TO THOSE CONTRACTS; THE  NUMBER  OF  STATE
CONTRACTS  AWARDED WHICH REQUIRED GOALS FOR EMPLOYMENT OF MINORITY GROUP
MEMBERS AND WOMEN; AND THE NUMBER OF STATE CONTRACTS AWARDED  FOR  WHICH
WAIVERS OF EMPLOYMENT GOALS REQUIRED BY THE CONTRACTS HAVE BEEN GRANTED;
  (e)  on  January first of each year report to the governor, THE TEMPO-
RARY PRESIDENT OF THE SENATE, THE SPEAKER OF THE ASSEMBLY, THE  MINORITY
LEADERS  OF  THE  SENATE  AND  THE ASSEMBLY, and the chairpersons of the
senate finance and assembly ways and means  committees  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 BUSI-
NESS 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  contract-
ing  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  comp-
troller  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) THE DIRECTOR SHALL LIST IN THE DIVISION'S ANNUAL REPORT THE  NAMES
OF  NON-COMPLIANT  AGENCIES  AND  THE  EXTENT  OF THEIR NONCOMPLIANCE IN
SUBMITTING ITS QUARTERLY MINORITY AND  WOMEN-OWNED  BUSINESS  ENTERPRISE
UTILIZATION REPORTS; AND, SHALL IMPLEMENT A MASTER LIST OF ALL THE STATE
AGENCIES  REQUIRED TO FILE QUARTERLY COMPLIANCE REPORTS AND SHALL ATTACH
SUCH LIST TO THE DIVISION'S ANNUAL REPORT.
  (G) to prepare and update  [periodically]  QUARTERLY  a  directory  of
certified  minority  and  women-owned  business enterprises which shall,
wherever practicable, be divided into  categories  of  labor,  services,
supplies,  equipment,  materials  and recognized construction trades and

S. 380                              3                             A. 301

which shall indicate areas or locations of the state where  such  enter-
prises are available to perform services, AND TO USE THIS INFORMATION TO
CREATE AN INTERNET BASED, CENTRALIZED STATE REGISTRY TO ENABLE APPROPRI-
ATE  STATE  CERTIFIED  MINORITY  AND WOMEN-OWNED BUSINESS ENTERPRISES TO
ACCESS CONTRACT AND SUBCONTRACT OPPORTUNITIES;
  [(g)] (H) 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)] (I) notwithstanding the provisions of section two hundred  nine-
ty-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
paragraph (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)] (J) to streamline the  state  certification  process  to  accept
federal and municipal corporation certifications.
  4.  The  director  [may]  SHALL  provide assistance to, and facilitate
access to programs serving certified businesses as well as applicants to
ensure that such businesses benefit, as needed, from technical,  manage-
rial  and  financial, and general business assistance; training; market-
ing; organization and personnel skill  development;  project  management
assistance;  technology assistance; bond and insurance education assist-
ance; and other business development assistance. In addition, the direc-
tor [may] SHALL, either independently or in conjunction with other state
agencies:
  (a) develop a clearinghouse of information on  programs  and  services
provided by entities that may assist such businesses;
  (b)  review  bonding and paperwork requirements imposed by contracting
agencies that may unnecessarily impede the ability of such businesses to
compete; and
  (c) seek to maximize utilization by minority and women-owned  business
enterprises  of available federal resources including but not limited to
federal grants, loans, loan guarantees, surety bonding guarantees, tech-
nical assistance, and programs and services of the federal  small  busi-
ness administration.
  S  2.  Subdivision  5 of section 312 of the executive law, as added by
chapter 261 of the laws of 1988, is amended to read as follows:
  5. The director shall promulgate rules and regulations to ensure  that
contractors  and subcontractors undertake programs of affirmative action
and equal employment opportunity as required by this section. Such rules
and regulations as they pertain to any particular agency shall be devel-
oped after consultation with contracting agencies. Such rules and  regu-
lations  [may]  SHALL require a contractor, after notice in a bid solic-
itation, to submit an equal employment opportunity  program  [after  bid
opening  and  prior  to  the award of any contract] AT THE TIME BIDS ARE
SUBMITTED, and [may] SHALL require the contractor  or  subcontractor  to
submit  compliance  reports  relating to the contractor's or subcontrac-
tor's operation and implementation of any equal  employment  opportunity
program in effect as of the date the contract is executed. The contract-
ing  agency [may recommend to the director that] SHALL HAVE THE RIGHT TO
RECOMMEND THAT the director take appropriate  action  according  to  the
procedures  set  forth  in section three hundred sixteen of this article
against the contractor for noncompliance with the requirements  of  this

S. 380                              4                             A. 301

section.  The  contracting  agency  shall  be responsible for monitoring
compliance with this section.
  S 3. Subdivisions 2-a, 3 and paragraph (a) of subdivision 5 of section
313 of the executive law, subdivision 2-a as added and subdivision 3 and
paragraph  (a) of subdivision 5 as amended by chapter 175 of the laws of
2010, are amended to read as follows:
  2-a. The director shall promulgate rules  and  regulations  that  will
accomplish the following:
  (a)  provide for the certification and decertification of minority and
women-owned business enterprises for all agencies through a single proc-
ess that meets applicable requirements;
  (b) require that each contract solicitation document accompanying each
solicitation set forth the expected degree of minority  and  women-owned
business enterprise participation based, in part, on:
  (i)  the  potential  subcontract  opportunities available in the prime
procurement contract; and
  (ii) the availability, as contained within  the  study,  of  certified
minority  and  women-owned business enterprises to respond competitively
to the potential subcontract opportunities;
  (c) require that each agency  provide  a  current  list  of  certified
minority business enterprises to each prospective contractor;
  (d)  allow  a  contractor that is a certified minority-owned or women-
owned business enterprise to use the work it performs to  meet  require-
ments for use of certified minority-owned or women-owned business enter-
prises as subcontractors;
  (e)  provide for joint ventures, which a bidder may count toward meet-
ing its minority and women-owned business enterprise participation;
  (f) consistent with subdivision  six  of  this  section,  provide  for
circumstances  under  which  an  agency  may  waive  obligations  of the
contractor relating to  minority  and  women-owned  business  enterprise
participation;
  (g)  require that an agency verify that minority and women-owned busi-
ness enterprises listed in a successful bid are  actually  participating
to the extent listed in the project for which the bid was submitted;
  (h)  provide  for  the  collection  of statistical data by each agency
concerning actual minority and women-owned business  enterprise  partic-
ipation; [and]
  (i)  require  each  agency to consult the most current disparity study
when calculating agency-wide and contract specific  participation  goals
pursuant to this article[.]; AND
  (J)   ENCOURAGE   JOINT  VENTURES,  PARTNERSHIPS,  AND  MENTOR-PROTEGE
RELATIONSHIPS AS DEFINED IN SECTION ONE HUNDRED FORTY-SEVEN OF THE STATE
FINANCE LAW, BETWEEN PRIME  CONTRACTORS  AND  MINORITY  AND  WOMEN-OWNED
BUSINESS ENTERPRISES.
  3.  Solely for the purpose of providing the opportunity for meaningful
participation by  certified  businesses  in  the  performance  of  state
contracts  as  provided  in  this section, state contracts shall include
leases of real property by a state agency to a lessee where:  the  terms
of  such  leases  provide for the construction, demolition, replacement,
major repair or renovation of real property and improvements thereon  by
such lessee; and the cost of such construction, demolition, replacement,
major  repair  or  renovation  of real property and improvements thereon
shall exceed the sum of one hundred thousand  dollars.  Reports  to  the
director pursuant to section three hundred fifteen of this article shall
include activities with respect to all such state contracts. Contracting
agencies  shall  include or require to be included with respect to state

S. 380                              5                             A. 301

contracts for the acquisition,  construction,  demolition,  replacement,
major  repair  or  renovation of real property and improvements thereon,
such provisions as [may] SHALL be necessary to effectuate the provisions
of  this  section in every bid specification and state contract, includ-
ing, but not limited to: (a) provisions requiring contractors to make  a
good faith effort to solicit active participation by enterprises identi-
fied  in the directory of certified businesses provided to the contract-
ing agency by the office; (b) requiring the parties to agree as a condi-
tion of entering into such contract, to be bound by  the  provisions  of
section  three  hundred  sixteen  of this article; and (c) requiring the
contractor to include the provisions set forth in paragraphs (a) and (b)
of this subdivision in every subcontract in a manner that the provisions
will be binding upon each subcontractor as to work  in  connection  with
such contract. Provided, however, that no such provisions shall be bind-
ing upon contractors or subcontractors in the performance of work or the
provision  of services that are unrelated, separate or distinct from the
state contract as expressed by its terms, and nothing  in  this  section
shall  authorize  the  director  or any contracting agency to impose any
requirement on a contractor or subcontractor except with  respect  to  a
state contract.
  (a)  Contracting  agencies  shall administer the rules and regulations
promulgated by the director in a good faith effort to meet  the  maximum
feasible  portion of the agency's goals adopted pursuant to this article
and the regulations of the director. Such rules and  regulations:  shall
require  a  contractor  to  submit  a  utilization  plan [after bids are
opened] AT THE TIME THE BIDS ARE SUBMITTED, when bids are required[, but
prior to the award of a state contract]; shall require  the  contracting
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 six of this section on the  website  of  the  contracting
agency  within  a reasonable period of time as established by the direc-
tor; 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 direc-
tor; shall require the contractor to submit [periodic] QUARTERLY compli-
ance reports relating to the operation and implementation of any  utili-
zation  plan;  shall  not  allow any automatic waivers but shall allow a
contractor to apply for a partial or total waiver of  the  minority  and
women-owned  business  enterprise participation requirements pursuant to
subdivisions six and seven of this section; shall allow a contractor  to
file a complaint with the director pursuant to subdivision eight 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 nine 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.  Subdivisions  1,  2  and 3 of section 315 of the executive law,
subdivisions 1 and 2 as added by chapter 261 of the  laws  of  1988  and
subdivision  3 as amended by chapter 175 of the laws of 2010 are amended
and a new subdivision 2-a is added to read as follows:
  1. Each contracting agency shall be responsible for  monitoring  state
contracts under its jurisdiction, and recommending matters to the office

S. 380                              6                             A. 301

respecting  non-compliance  with  the provisions of this article so that
the office [may] SHALL take such action as [is  appropriate]  STATED  IN
SUBDIVISION THREE OF SECTION THREE HUNDRED SIXTEEN OF THIS ARTICLE. EACH
CONTRACTING  AGENCY  SHALL HAVE THE RIGHT TO RECOMMEND THAT THE DIRECTOR
IMPOSE A SANCTION, PENALTY, OR FINE FOR  THREE  OR  MORE  VIOLATIONS  OF
SUBDIVISION  ONE  OF  SECTION  THREE HUNDRED SIXTEEN OF THIS ARTICLE, to
insure compliance with the provisions of this  article,  the  rules  and
regulations  of  the  director  issued  hereunder  and  the  contractual
provisions required pursuant to this article. All  contracting  agencies
shall  comply  with  the  rules  and  regulations  of the office and are
directed to cooperate with the office and to furnish to the office  such
information  and assistance as may be required in the performance of its
functions under this article.
  2. Each contracting agency shall  provide  to  prospective  bidders  a
current copy of the directory of certified businesses, and a copy of the
regulations required pursuant to sections three hundred twelve and three
hundred  thirteen  of  this  article  at  the time bids or proposals are
solicited.
  2-A. EACH CONTRACTING AGENCY WHEN NOTIFYING A CONTRACTOR OF A  WINNING
BID  AWARD SHALL ALSO NOTIFY ANY MINORITY OR WOMEN-OWNED BUSINESS ENTER-
PRISES AFFILIATED WITH SUCH CONTRACTOR, PER THE  CONTRACTOR'S  SUBMITTED
UTILIZATION PLAN, OF SUCH CONTRACTOR'S RECEIPT OF THE WINNING BID AWARD.
  3.  [Each contracting agency shall report to the director with respect
to activities undertaken to promote employment of minority group members
and women and promote and increase participation by certified businesses
with respect to state contracts and subcontracts. Such reports shall  be
submitted  periodically,  but  not  less  frequently  than  annually, as
required by the director, and  shall  include  such  information  as  is
necessary  for  the director to determine whether the contracting agency
and contractor have complied with the purposes of this article,  includ-
ing, without limitation, a summary of all waivers of the requirements of
subdivisions  six  and  seven  of section three hundred thirteen of this
article allowed by the contracting agency during the period  covered  by
the  report,  including a description of the basis of the waiver request
and the rationale for granting any such waiver. Each agency  shall  also
include  in  such  annual  report whether or not it has been required to
prepare a remedial plan, and, if so, the plan and the  extent  to  which
the  agency  has  complied  with  each  element  of  the plan.] (A) EACH
CONTRACTING AGENCY SHALL PREPARE A QUARTERLY REPORT AND SUBMIT COPIES TO
THE COMMISSIONER OF ECONOMIC DEVELOPMENT, THE  COMMISSIONER  OF  GENERAL
SERVICES,  AND  THE DIRECTOR 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 MINORITY  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;  THE NUMBER OF STATE CONTRACTS AWARDED WHICH INCLUDE A UTILI-
ZATION  PLAN  FOR  BUSINESS  PARTICIPATION  BY  CERTIFIED  MINORITY   OR
WOMEN-OWNED  BUSINESS ENTERPRISES, THE MAXIMUM AMOUNT OBLIGATED PURSUANT
TO THOSE CONTRACTS, AND THE TOTAL EXPENDITURES MADE PURSUANT TO ALL SUCH
CONTRACTS; THE NUMBER OF STATE CONTRACTS AWARDED UPON WHICH A WAIVER WAS
GRANTED FROM GOALS REQUIRED BY THE CONTRACTS FOR BUSINESS  PARTICIPATION
BY CERTIFIED MINORITY OR WOMEN-OWNED BUSINESS ENTERPRISES, AND THE MAXI-
MUM  AMOUNT  OBLIGATED  PURSUANT TO THOSE CONTRACTS; THE NUMBER OF STATE
CONTRACTS AWARDED WHICH REQUIRED GOALS FOR EMPLOYMENT OF MINORITY  GROUP

S. 380                              7                             A. 301

MEMBERS  AND  WOMEN; AND THE NUMBER OF STATE CONTRACTS AWARDED FOR WHICH
WAIVERS OF EMPLOYMENT GOALS REQUIRED BY THE CONTRACTS HAVE BEEN GRANTED;
  (B)  IN ADDITION, EACH CONTRACTING AGENCY SHALL BE RESPONSIBLE FOR THE
COST OF AN  INDEPENDENT  AUDIT  RESULTING  FROM  THE  AGENCY'S  REPEATED
VIOLATIONS OF THIS SECTION.
  (C)  WITHIN  THIRTY  DAYS  AFTER  COMPLETION,  A COPY OF THE QUARTERLY
MINORITY AND WOMEN-OWNED BUSINESS ENTERPRISE REPORT SHALL BE TRANSMITTED
TO THE COMMISSIONER OF ECONOMIC DEVELOPMENT, THE COMMISSIONER OF GENERAL
SERVICES, AND THE DIRECTOR. A CONTRACTING AGENCY, WHICH HAS NOT LET MORE
THAN TWO MILLION DOLLARS IN SERVICE AND/OR CONSTRUCTION CONTRACTS WITHIN
THE APPLICABLE PERIOD MAY APPLY TO THE COMMISSIONER OF ECONOMIC DEVELOP-
MENT, AND THE DIRECTOR FOR A WAIVER OF THE REQUIRED ANNUAL  REPORT.  THE
WAIVER  APPLICATION  SHALL  BE  MADE ON SUCH FORM AS THE COMMISSIONER OF
ECONOMIC DEVELOPMENT AND THE DIRECTOR MAY PRESCRIBE.
  (D) IF A CONTRACTING  AGENCY  SHALL  FAIL  TO  FILE  OR  SUBSTANTIALLY
COMPLETE,  AS DETERMINED BY THE COMMISSIONER OF ECONOMIC DEVELOPMENT AND
THE DIRECTOR, THE REPORT REQUIRED BY THIS SECTION,  THE  DIRECTOR  SHALL
PROVIDE  NOTICE  TO  THE  CONTRACTING AGENCY. THE NOTICE SHALL STATE THE
FOLLOWING:
  (I) THAT THE FAILURE TO FILE A REPORT AS REQUIRED IS  A  VIOLATION  OF
THIS  SECTION,  OR  IN THE CASE OF AN INSUFFICIENT REPORT, THE MANNER IN
WHICH THE REPORT SUBMITTED IS DEFICIENT;
  (II) THAT THE CONTRACTING AGENCY HAS THIRTY DAYS TO COMPLY  WITH  THIS
SECTION  OR  PROVIDE AN ADEQUATE WRITTEN EXPLANATION TO THE COMMISSIONER
OF ECONOMIC DEVELOPMENT AND THE COMMISSIONER OF GENERAL SERVICES AND THE
DIRECTOR OF THE  CONTRACTING  AGENCY'S  REASONS  FOR  THE  INABILITY  TO
COMPLY; AND
  (III)  THAT  THE  CONTRACTING  AGENCY'S  CONTINUED  FAILURE TO PROVIDE
EITHER THE REQUIRED REPORT OR AN ADEQUATE EXPLANATION WILL RESULT IN  AN
INDEPENDENT  AUDIT OF THE CONTRACTING AGENCY, THE COST OF WHICH SHALL BE
BORNE BY THE CONTRACTING AGENCY.
  S 5. Section 316 of the executive law, as amended by  chapter  175  of
the laws of 2010, is amended to read as follows:
  S  316.  [Enforcement]  VIOLATIONS AND ENFORCEMENT.   1. IT SHALL BE A
VIOLATION FOR ANY PERSON OR ENTITY TO:
  (A) INTENTIONALLY USE OR ACQUIRE AN MWBE NAME THROUGH DECEIT OR  OTHER
DISHONEST MEANS IN ORDER TO NEGOTIATE A LOWER BID FROM A NON-MWBE.
  (B)  SUBMIT  TO  THE  DEPARTMENT OF ECONOMIC DEVELOPMENT, DOCUMENTS OR
OTHER MATERIAL AS EVIDENCE OF A GOOD FAITH EFFORT  TO  COMPLY  WITH  THE
PROVISIONS  OF  THIS  ARTICLE  WITHOUT, IN FACT, HAVING ENTERED INTO ANY
CONTRACT, AGREEMENT, SUBCONTRACT, OR SUB-AGREEMENT WITH AN MWBE FOR  THE
USE  OR  PURCHASE OF SUCH BUSINESS ENTERPRISE'S GOODS OR SERVICES IN THE
PERFORMANCE OF THE AWARDED STATE CONTRACT.
  (C) FAIL TO PROVIDE AN  MWBE  WITH  SUFFICIENT  INFORMATION  OR  OTHER
REQUIRED  SUPPORTING  DOCUMENTATION  IN  ORDER FOR THE MWBE TO PREPARE A
PROPER BID.
  2. Upon receipt by the director of a complaint by a contracting agency
that a contractor has violated the provisions of a state contract  which
have been included to comply with the provisions of this article or of a
contractor that a contracting agency has violated such provisions or has
failed  or  refused  to  issue  a  waiver where one has been applied for
pursuant to subdivision six of section three hundred  thirteen  of  this
article  or  has  denied such application, the director shall attempt to
resolve the matter giving rise to such complaint. If efforts to  resolve
such  matter  to  the  satisfaction of all parties are unsuccessful, the
director shall refer the matter, within thirty days of  the  receipt  of

S. 380                              8                             A. 301

the  complaint,  to  the division's hearing officers. Upon conclusion of
the administrative hearing, the hearing  officer  shall  submit  to  the
director  his  or  her  decision  regarding the alleged violation of the
contract  and  recommendations  regarding  the  imposition of sanctions,
fines or penalties. The director, within ten  days  of  receipt  of  the
decision,  shall  file  a determination of such matter and shall cause a
copy of such determination along with a  copy  of  this  article  to  be
served  upon  the  contractor  by  personal service or by certified mail
return receipt requested. The decision of the hearing officer  shall  be
final  and may only be vacated or modified as provided in article seven-
ty-eight of the civil practice law and rules upon  an  application  made
within  the  time  provided  by  such  article. The determination of the
director as to the imposition of any fines, sanctions or penalties shall
be reviewable pursuant to article seventy-eight of  the  civil  practice
law and rules. The penalties imposed for any violation which is premised
upon  either  a  fraudulent  or  intentional  misrepresentation  by  the
contractor or the contractor's willful and intentional disregard of  the
minority  and  women-owned  participation  requirement  included  in the
contract may include a determination that the contractor shall be ineli-
gible to submit a bid to any contracting agency or be awarded  any  such
contract  for a period not to exceed one year following the final deter-
mination; provided however, if a contractor has previously  been  deter-
mined  to  be  ineligible  to submit a bid pursuant to this section, the
penalties imposed for any subsequent violation, if such violation occurs
within five years of the first violation, may  include  a  determination
that the contractor shall be ineligible to submit a bid to any contract-
ing  agency  or  be awarded any such contract for a period not to exceed
five years following the final determination. The division  of  minority
and  women's  business  development shall maintain a website listing all
contractors that have been deemed ineligible to submit a bid pursuant to
this section and the date after which each contractor shall  once  again
become eligible to submit bids.
  3.    THE  DIRECTOR  SHALL  IMPOSE A SANCTION, PENALTY, OR FINE ON ANY
INDIVIDUAL OR ENTITY THAT HAS THREE OR MORE VIOLATIONS OF  THIS  ARTICLE
WITHIN FIVE YEARS. SUCH FINE SHALL BE PAID BY SUCH INDIVIDUAL OR ENTITY.
SUCH  FINE SHALL BE REMITTED AND DEPOSITED INTO A FUND, TO BE MANAGED BY
THE COMMISSIONER OF ECONOMIC DEVELOPMENT.  SUCH FUNDS SHALL BE  USED  TO
SUBSIDIZE  THE  FACILITATION  OF  THE  PROVISIONS OF THIS ARTICLE. OTHER
SANCTIONS SHALL INCLUDE BARRING SUCH ENTITY OR INDIVIDUAL FROM CONTRACT-
ING WITH SUCH AGENCY FOR A PERIOD NOT TO EXCEED FIVE YEARS.
  S 6. Subdivision 1 of section 137 of the state finance law,  as  sepa-
rately amended by section 17 of part MM of chapter 57 and by chapter 619
of the laws of 2008, is amended to read as follows:
  1. In addition to other bond or bonds, if any, required by law for the
completion  of  a  work specified in a contract for the prosecution of a
public improvement for the state of New York a municipal corporation,  a
public benefit corporation or a commission appointed pursuant to law, or
in the absence of any such requirement, the comptroller may or the other
appropriate  official, respectively, shall nevertheless require prior to
the approval of any such contract a bond guaranteeing prompt payment  of
moneys  due to all persons furnishing labor or materials to the contrac-
tor or any subcontractors in the prosecution of the work provided for in
such contract. Whenever a municipal corporation issues a permit  subject
to  compliance  with  section  two hundred twenty of the labor law, such
permittee or its contractor or subcontractors furnishing  workers  shall
post a payment bond subject to this section. Provided, however, that all

S. 380                              9                             A. 301

performance  bonds  and payment bonds may, at the discretion of the head
of the state agency, public benefit corporation or commission, or his or
her designee, be dispensed with for the completion of a  work  specified
in  a contract for the prosecution of a public improvement for the state
of New York for which bids are solicited where the aggregate  amount  of
the  contract  is  under one hundred FIFTY thousand dollars and provided
further, that in a case where the contract is not subject to the  multi-
ple  contract  award  requirements of section one hundred thirty-five of
this article, such requirements may be dispensed with where the head  of
the  state  agency, public benefit corporation or commission finds it to
be in the public interest and where the aggregate amount of the contract
awarded or to be awarded is less than two hundred thousand dollars.  THE
HEAD  OF  THE STATE AGENCY, PUBLIC BENEFIT CORPORATION OR COMMISSION, OR
HIS OR HER DESIGNEE, SHALL ADJUST THE AGGREGATE CONTRACT AMOUNTS  LISTED
IN  THIS SUBDIVISION EVERY YEAR TO ACCOUNT FOR INCREASES IN THE COSTS OF
CONSTRUCTION. ADVERTISEMENTS FOR BIDS SHALL PROVIDE INFORMATION  ON  THE
REQUIREMENTS  FOR,  OR  DISPENSATION  OF, PERFORMANCE AND PAYMENT BONDS.
Provided further, that in a case where a performance or payment bond  is
dispensed  with,  twenty  per  centum may be retained from each progress
payment or estimate until the entire contract work  has  been  completed
and accepted, at which time the head of the state agency, public benefit
corporation  or commission shall, pending the payment of the final esti-
mate, pay not to exceed seventy-five per centum of  the  amount  of  the
retained percentage.
  S  7.  Subdivision  4  of  section  139-f of the state finance law, as
amended by chapter 83 of the  laws  of  1995,  is  amended  to  read  as
follows:
  4.  Notwithstanding  any other provision of this section or other law,
requirements for the furnishing of a performance bond or a payment  bond
may  be dispensed with at the discretion of the head of the state agency
or corporation, or his or her designee, where  the  public  owner  is  a
state  agency  or  corporation  described  in  subdivision one-a of this
section and the aggregate amount  of  the  contract  awarded  or  to  be
awarded  is  under  fifty  thousand  dollars  and,  in  a case where the
contract is not subject to the multiple contract award  requirements  of
section  one  hundred thirty-five of this article, such requirements may
be dispensed with where the head of  the  state  agency  or  corporation
finds  it to be in the public interest and where the aggregate amount of
the contract awarded or to be awarded is under [two] THREE hundred thou-
sand dollars.  THE HEAD OF THE STATE AGENCY, PUBLIC BENEFIT  CORPORATION
OR  COMMISSION,  OR  HIS  OR  HER  DESIGNEE,  SHALL ADJUST THE AGGREGATE
CONTRACT AMOUNTS LISTED IN THIS SUBDIVISION EVERY YEAR  TO  ACCOUNT  FOR
INCREASES  IN  THE  COSTS OF CONSTRUCTION. ADVERTISEMENTS FOR BIDS SHALL
PROVIDE  INFORMATION  ON  THE  REQUIREMENTS  FOR,  OR  DISPENSATION  OF,
PERFORMANCE  AND PAYMENT BONDS. Provided further, that in a case where a
performance or payment bond is dispensed with, twenty per centum may  be
retained  from  each  progress  payment  or  estimate  until  the entire
contract work has been completed and accepted, at which time the head of
the state agency or corporation shall, pending the payment of the  final
estimate, pay not to exceed seventy-five per centum of the amount of the
retained percentage.
  S  8. The opening paragraph of section 139-g of the state finance law,
as amended by chapter 636 of the laws of 2003, is  amended  to  read  as
follows:
  In  every  state  agency,  department and authority which has let more
than two million dollars in service and construction contracts AND STATE

S. 380                             10                             A. 301

ASSISTED PROJECT CONTRACTS in the prior fiscal year, the chief executive
officer of that agency, department or authority shall, with  respect  to
those  contracts  AND STATE ASSISTED PROJECT CONTRACTS let by his OR HER
agency, department or authority:
  S  9. The opening paragraph of subdivision (b) of section 139-g of the
state finance law, as amended by chapter 636 of the  laws  of  2003,  is
amended to read as follows:
  identify  all  small-business  and  certified women and minority-owned
business concerns which, in the judgment of the chief executive  officer
of  that agency, department or authority, can bid on those contracts AND
STATE ASSISTED PROJECT CONTRACTS which are usually and  customarily  let
by  that  agency,  department  or  authority, OR IN WHICH THAT AUTHORITY
PROVIDES A GRANT OR LOAN OR TAX  EXEMPT  FINANCING,  with  a  reasonable
expectation  of  success.  Such chief executive officers shall carry out
the provisions of this subdivision:
  S 10.  Section 139-g of the state finance law is amended by  adding  a
new subdivision (e) to read as follows:
  (E)  FOR  THE PURPOSES OF THIS SECTION, THE FOLLOWING WORDS SHALL HAVE
THE FOLLOWING MEANINGS:
  (I) "STATE ASSISTED PROJECT CONTRACT" SHALL MEAN ANY WRITTEN AGREEMENT
ARISING OUT OF A  STATE  ASSISTED  HOUSING  PROJECT  OR  STATE  ASSISTED
ECONOMIC  DEVELOPMENT PROJECT OR STATE ASSISTED HIGHER EDUCATION PROJECT
OR STATE ASSISTED HOSPITAL OR HEALTH CARE FACILITY  PROJECT,  FOR  WHICH
THE  TOTAL  PROJECT  COST  EXCEEDS TWO MILLION DOLLARS AND FOR WHICH THE
PROJECT OWNER IS COMMITTED TO SPEND OR DOES EXPEND FUNDS FOR THE  ACQUI-
SITION,  CONSTRUCTION,  DEMOLITION,  REPLACEMENT, MAJOR REPAIR, OR RENO-
VATION OF REAL PROPERTY AND IMPROVEMENTS THEREON FOR SUCH PROJECT.
  (II) "STATE ASSISTED HOUSING PROJECT" SHALL MEAN THOSE PROJECTS  WHICH
RECEIVE  FROM  THE  NEW  YORK  STATE  HOUSING  FINANCE AGENCY TAX-EXEMPT
FINANCING FOR ALL OR PART OF THE TOTAL PROJECT COST.
  (III) "STATE ASSISTED ECONOMIC DEVELOPMENT PROJECT" SHALL  MEAN  THOSE
PROJECTS WHICH RECEIVE FROM THE NEW YORK FOUNDATION OF SCIENCE TECHNOLO-
GY  AND INNOVATION, OR THE URBAN DEVELOPMENT CORPORATION AND ITS SUBSID-
IARIES A GRANT OR LOAN OR TAX-EXEMPT FINANCING FOR ALL OR  PART  OF  THE
TOTAL PROJECT COST.
  (IV)  "STATE  ASSISTED  HIGHER  EDUCATION  PROJECT"  SHALL  MEAN THOSE
PROJECTS WHICH RECEIVE FROM THE DORMITORY AUTHORITY OF THE STATE OF  NEW
YORK  A  GRANT  OR  LOAN  OR TAX-EXEMPT FINANCING FOR ALL OR PART OF THE
TOTAL PROJECT COST.
  (V) "STATE ASSISTED HOSPITAL OR HEALTH CARE  FACILITY  PROJECT"  SHALL
MEAN  THOSE  PROJECTS  WHICH RECEIVE FROM THE DORMITORY AUTHORITY OF THE
STATE OF NEW YORK A GRANT OR LOAN OR TAX-EXEMPT  FINANCING  FOR  ALL  OR
PART OF THE TOTAL PROJECT COST.
  S  11.  This  act shall take effect immediately, provided however, the
amendments to article 15-A of the executive law made  by  sections  one,
two, three, four and five of this act shall not affect the expiration of
such article and shall expire therewith.

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