S T A T E O F N E W Y O R K
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4916
2013-2014 Regular Sessions
I N S E N A T E
May 1, 2013
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Introduced by Sens. GOLDEN, GRISANTI, LANZA, LARKIN, MAZIARZ, VALESKY --
read twice and ordered printed, and when printed to be committed to
the Committee on Finance
AN ACT to amend the state finance law, in relation to the state procure-
ment council and special provisions regarding joint ventures; and
providing for the expiration and repeal of such provisions upon expi-
ration thereof
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Paragraph n of subdivision 2 of section 161 of the state
finance law, as added by chapter 173 of the laws of 2010, is amended to
read as follows:
n. Recommend to the commissioner necessary legislative changes or
modifications to existing or proposed rules, regulations and procedures
that would increase access to the state's procurement process by minori-
ty-owned business enterprises and women-owned business enterprises and
create model language to be used by agencies when issuing requests for
bids or proposals to other solicitations or offers that would increase
the ability of small businesses to participate in state procurements,
INCLUDING THROUGH TEAMING AND JOINT VENTURES AS DEFINED IN SUBDIVISION
NINE OF SECTION ONE HUNDRED SIXTY-FIVE OF THIS ARTICLE.
S 2. Section 165 of the state finance law is amended by adding a new
subdivision 9 to read as follows:
9. SPECIAL PROVISIONS REGARDING JOINT VENTURES.
A. DEFINITIONS. AS USED IN THIS SUBDIVISION:
(I) "DISABLED VETERAN BUSINESS ENTERPRISE" IS AN INDEPENDENTLY OWNED
AND OPERATED BUSINESS ENTERPRISE IN WHICH A DISABLED VETERAN HAS A REAL,
SUBSTANTIAL, AND CONTINUING OWNERSHIP OF FIFTY-ONE PER CENT OR GREATER
AND HAS AND EXERCISES INDEPENDENT CONTROL OF THE DAY TO DAY DECISIONS OF
THE ENTERPRISE, AND WHICH HAS BEEN CERTIFIED AS A DISADVANTAGED BUSINESS
ENTERPRISE PURSUANT TO THE FEDERAL DEPARTMENT OF TRANSPORTATION OR OTHER
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD09996-03-3
S. 4916 2
FEDERAL AGENCY PROCEDURES, OR CERTIFIED AS A DISABILITY-OWNED BUSINESS
ENTERPRISE BY A NATIONAL CERTIFICATION ORGANIZATION SATISFACTORY TO THE
COMMISSIONER. THE TERM "DISABLED VETERAN" HAS THE SAME MEANING AS IN
PARAGRAPH (B) OF SUBDIVISION ONE OF SECTION EIGHTY-FIVE OF THE CIVIL
SERVICE LAW AND ADDITIONALLY MEANS A MEMBER OF THE ARMED FORCES OF THE
UNITED STATES WHO SERVED IN TIME OF WAR OR WHO SERVED IN AN AREA DESIG-
NATED BY THE PRESIDENT OF THE UNITED STATES BY EXECUTIVE ORDER AS A
"COMBAT ZONE" AT ANY TIME DURING THE PERIOD DESIGNATED BY THE PRESIDENT
BY EXECUTIVE ORDER AS THE PERIOD OF COMBATANT ACTIVITIES IN SUCH ZONE,
AND WHO WAS HONORABLY DISCHARGED OR RELEASED UNDER HONORABLE CIRCUM-
STANCES FROM SUCH SERVICE, AND WHO IS A CITIZEN OF THE UNITED STATES AND
A RESIDENT OF THE STATE OF NEW YORK.
(II) "DIVERSITY BUSINESS ENTERPRISE" OR "DIVERSITY BUSINESS ENTER-
PRISES" REFERS INDIVIDUALLY OR COLLECTIVELY, ACCORDING TO CONTEXT, TO A
MINORITY BUSINESS ENTERPRISE, A WOMEN'S BUSINESS ENTERPRISE, AND/OR A
DISABLED VETERAN BUSINESS ENTERPRISE.
(III) "JOINT VENTURE" MEANS A BUSINESS, A PARTNERSHIP, SOLE PROPRIE-
TORSHIP, OR A CORPORATION FORMED UNDER THE LIMITED LIABILITY CORPORATION
LAW OR THE BUSINESS CORPORATION LAW BY A DIVERSITY BUSINESS ENTERPRISE
AND ONE OR MORE NEW YORK BUSINESS ENTERPRISES FOR A SPECIFIC PROJECT IN
WHICH THE PARTIES CONTRIBUTE EQUITY, ASSETS, AND EXPERTISE.
(IV) "NEW YORK BUSINESS ENTERPRISE" MEANS A BUSINESS ENTITY FORMED IN
THIS STATE, WHOSE PRIMARY RESIDENCE IS LOCATED IN THIS STATE, WHICH
REALIZES MORE THAN HALF ITS GROSS REVENUES FROM ACTIVITIES CONDUCTED IN
THIS STATE AND WHICH HAS MORE THAN HALF ITS FULL TIME EMPLOYEES LOCATED
IN THIS STATE. A NEW YORK BUSINESS ENTERPRISE MAY BE A PARTNERSHIP, SOLE
PROPRIETORSHIP, OR A CORPORATION FORMED UNDER THE LIMITED LIABILITY
CORPORATION LAW, OR A CORPORATION FOR PROFIT FORMED UNDER THE BUSINESS
CORPORATION LAW, OR EXISTING ON ITS EFFECTIVE DATE AND THERETOFORE
FORMED UNDER ANY OTHER GENERAL STATUTE OR BY ANY SPECIAL ACT OF THIS
STATE FOR A PURPOSE OR PURPOSES FOR WHICH A CORPORATION MAY BE FORMED
UNDER SUCH BUSINESS CORPORATION LAW, OTHER THAN A CORPORATION WHICH MAY
BE FORMED UNDER THE COOPERATIVE CORPORATIONS LAW.
(V) "TEAMING" MEANS A COOPERATIVE AGREEMENT BETWEEN ONE OR MORE DIVER-
SITY BUSINESS ENTERPRISES AND ONE OR MORE NEW YORK BUSINESS ENTERPRISES
EXECUTED BY A WRITTEN INSTRUMENT THAT DEFINES THE COMMON PURPOSE,
PERFORMANCE GOALS, APPROACH, FINANCING, LIABILITY, AND ACCOUNTABILITY
FOR A PROJECT, THAT IS SATISFACTORY TO THE COMMISSIONER FOR THE PURPOSES
OF CONTRACTING PURSUANT TO THIS SUBDIVISION.
B. THE COMMISSIONER SHALL TAKE SUCH STEPS AS MAY BE NECESSARY TO
DEVELOP AND IMPLEMENT A PILOT PROGRAM TO INSURE THAT CENTRALIZED
CONTRACTS PROVIDED PURSUANT TO THIS ARTICLE ALSO INCLUDE PROVISION FOR
JOINT VENTURES AND TEAMING ARRANGEMENTS AS DEFINED HEREIN, PROVIDED THAT
IN ANY SUCH JOINT VENTURE OR TEAMING ARRANGEMENT:
(I) THE DIVERSITY BUSINESS ENTERPRISE SHALL PERFORM A SHARE OF THE
WORK NECESSARY TO SUCH CONTRACT EQUAL TO ITS OWNERSHIP OF STOCK, DIVI-
DENDS, PROFIT, OR CONTROL OF A JOINT VENTURE, WHICHEVER IS GREATER, OR
TO ITS POTENTIAL PROFITABILITY RETURN IN THE CASE OF TEAMING, AND
(II) THE AGREEMENT IS DEMONSTRATED TO THE SATISFACTION OF THE COMMIS-
SIONER TO BRING RESOURCES AND EXPERTISE TO THE PROJECT THAT WOULD NOT
OTHERWISE BE AVAILABLE WITHIN THE SCOPE OF EXPERTISE, ABILITIES, ACTIV-
ITIES OF THE DIVERSITY BUSINESS ENTERPRISE, OR WHICH WOULD BE OTHERWISE
LIMITED BY RESOURCES AVAILABLE TO THE DIVERSITY BUSINESS ENTERPRISE IF
SUCH ENTERPRISE SOUGHT TO PERFORM THE WORK ITSELF, AND
(III) THE PROPOSAL OFFERS, IN THE JUDGEMENT OF THE COMMISSIONER, THE
SERVICES OR COMMODITIES AT A PRICE EQUAL TO OR LESS THAN WOULD OTHERWISE
S. 4916 3
BE CHARGED BY AN ENTITY WHICH IS NOT A JOINT VENTURE OR WHICH IS NOT
INVOLVED IN SUCH TEAMING AGREEMENT, AND
(IV) THE JOINT VENTURE OR TEAMING ENTITY MEETS REQUIREMENTS AND CRITE-
RIA OF THE COMMISSIONER IN SUCH AREAS AS FINANCING, LIABILITY, ACCOUNT-
ABILITY, USE OF RESOURCES AND OTHER CRITERIA AND REQUIREMENTS THAT
DEMONSTRATE SIGNIFICANT ENGAGEMENT BY THE DIVERSITY BUSINESS ENTERPRISE,
PROVIDED THAT AN ENTITY WHICH QUALIFIES AS A NEW YORK BUSINESS ENTER-
PRISE AT THE TIME OF THE EXECUTION OF A CONTRACT SHALL NOT BE DISQUALI-
FIED FOR FAILING TO MEET EMPLOYMENT AND GROSS REVENUE CRITERIA DURING
THE COURSE OF THE CONTRACT IF THE VARIATION IN REVENUES AND/OR EMPLOY-
MENT IS NO MORE THAN TWENTY PER CENT MORE THAN SUCH CRITERIA WOULD
OTHERWISE ALLOW.
C. A JOINT VENTURE IN WHICH A MINORITY BUSINESS ENTERPRISE OR A
WOMEN-OWNED BUSINESS ENTERPRISE HAS AN OWNERSHIP OF GREATER THAN FIFTY
PERCENT SHALL BE ELIGIBLE FOR OPPORTUNITIES FOR PARTICIPATION ON
CONTRACTS FOR MINORITY AND WOMEN OWNED BUSINESS ENTERPRISES PURSUANT TO
ARTICLE FIFTEEN-A OF THE EXECUTIVE LAW.
D. IN IMPLEMENTING THE PILOT PROGRAM THE COMMISSIONER MAY, IN ADDITION
TO OTHER CONTRACT REQUIREMENTS IMPOSED ON CONTRACTS AND CONTRACTORS OR
VENDORS PURSUANT TO SECTION ONE HUNDRED SIXTY-THREE OF THIS ARTICLE,
REQUIRE CONSIDERATION OF ADDITIONAL FACTORS INCLUDING DISTANCE FROM THE
JOB OR PROJECT, THE AMOUNT OR LEVEL OF GREEN TECHNOLOGY, FINANCIAL OR
EXPERT RESOURCES OF THE CONTRACTOR OR JOINT VENTURE OR TEAMING ARRANGE-
MENTS, ANCILLARY COSTS SUCH AS REQUIREMENTS TO BRING OR HIRE ON A
CONSULTANT BASIS EXPERTISE FROM OTHER AREAS OR STATES, THE FRESHNESS OR
NEWNESS OF THE PRODUCT BEING PURCHASED AND THE IMPACT OF EXTENDED TRANS-
PORTATION ON IT, AND OTHER SIMILAR FACTORS. THE COMMISSIONER SHALL
ADDITIONALLY WEIGH ANY CONSIDERATION IN THE AWARDING OF A CONTRACT BY
THE PERCENTAGE OF THE JOINT VENTURE OR TEAMING ARRANGEMENT ALLOCATED OF
THE DIVERSITY BUSINESS ENTERPRISE.
E. THE COMMISSIONER SHALL REPORT ANNUALLY ON THE FIRST OF JANUARY OF
EACH YEAR, BEGINNING IN THE SECOND YEAR AFTER ENACTMENT OF THIS PROGRAM,
CONCERNING THE PILOT PROGRAM AUTHORIZED BY THIS SECTION. THE REPORT
SHALL NOTE CONTRACTS LET TO JOINT VENTURES, AND THE DEVELOPMENT OF
DIVERSITY BUSINESS ENTERPRISES AS A RESULT OF SUCH JOINT VENTURES. THE
COMMISSIONER SHALL USE METRICS WHICH SHOW THE EFFECT OF THE PROGRAM ON
THE DEVELOPMENT AND STRENGTHENING OF DIVERSITY BUSINESS ENTERPRISES, AND
SHALL INCLUDE RECOMMENDATIONS FOR THE EXPANSION, ALTERATION, AND PERMAN-
ENTIZATION OF THE PROGRAM.
S 3. This act shall take effect immediately and shall expire and be
deemed repealed on the thirty-first of December of the fifth full year
following the effective date of this act.
