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

                                  9141

                          I N  A S S E M B L Y

                            January 29, 2016
                               ___________

Introduced  by M. of A. SIMON -- 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;
  (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-

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

                                                           LBD03037-02-5

A. 9141                             2

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
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

A. 9141                             3

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
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. 9141                             4

  (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
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-

A. 9141                             5

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
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

A. 9141                             6

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
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

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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
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

A. 9141                             8

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
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

A. 9141                             9

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
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

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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.