NY State Senate Bill 2017-S3808

Senate Bill S3808

2017-2018 Legislative Session

Relates to the publication of information regarding waivers of compliance with state contract provisions concerning minority and women-owned business enterprise participation requirements

download bill text pdf

Archive: Last Bill Status - In Senate Committee Finance 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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Actions

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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jan 03, 2018	referred to finance
Jan 27, 2017	referred to finance

2017-S3808 (ACTIVE) - Details

Current Committee:: Senate Finance
Law Section:: Executive Law
Laws Affected:: Amd §§313 & 311, Exec L; amd §21, Lab L
Versions Introduced in Other Legislative Sessions:: 2015-2016: S7518
2019-2020: S2179
2021-2022: S4165

2017-S3808 (ACTIVE) - Summary

Relates to the publication of information regarding waivers of compliance with state contract provisions concerning minority-owned and women-owned business enterprise participation requirements.

2017-S3808 (ACTIVE) - Sponsor Memo

                                 BILL NUMBER:  S3808

 TITLE OF BILL :  An act to amend the executive law and the labor law,
in relation to the publication of information regarding waivers of
compliance with state contract provisions concerning minority and
women-owned business enterprise participation requirements

 PURPOSE OR GENERAL IDEA OF BILL :

The purpose of this bill is to allow the public to see which contracts
have been waived.

 SUMMARY OF SPECIFIC PROVISIONS :

Section 1:(a) if it appears that a contractor cannot comply with the
Minority and women-owned business enterprise participation
requirements set forth in a particular contract, the contractor may
file a written application with the contracting agency requesting a
partial or total waiver of such requirements, setting forth their
inability to meet any requirements with an explanation of the efforts
the contractor has undertaken.

(b) Within 30 days of the issuance of the waiver of compliance the
contracting agency shall report the waiver to the department of labor
and to the director of the division of minority and women's business
development in the department of economic development and to publish

the information

Section 2: To file a complaint where the director has knowledge that a
Contractor may have violated the provisions that were unrelated,
separate or distinct from the state contract as expressed by its terms
and to streamline the state certification process to accept federal
and municipal corporation certifications and to keep record of partial
and total waivers issued

Section 3: Where section 21 of the labor law is amended stating that
they shall compile on an annual basis, a list of waivers of compliance
with state contract provisions concerning minority and women-owned
business enterprise participation requirements

 JUSTIFICATION :

In order to support the participation goals for minority and
women-owned business enterprises (MBEs) throughout New York State,
this bill aims to ensure that a good faith effort has been made to
comply participation requirements set forth in a particular state
contract in order to receive partial or total waivers in the event
that there is not reasonable availability of MWBE contractors, and
that the issuance of these waivers will be published in order to
provide better transparency and accountability.

 PRIOR LEGISLATIVE HISTORY :

2015-16: S.7518 - Referred to Finance

 FISCAL IMPLICATIONS :

None

 EFFECTIVE DATE :
This act shall take effect on the sixtieth day after it shall have
become a law provided, however, that:
a. The amendments to subdivisions 6 of section 313 of the executive
law made by section one of this act shall not affect the expiration of
article 15-A of such law and shall be deemed expired therewith;
b. The amendments made to subdivision 3 of section 311 of the
executive law by section two of this act shall not affect the
expiration of article 15-A of such law and shall be deemed expired
therewith; and
c. The director of the division of minority and women's business
development and the commissioner of labor shall immediately promulgate
rules and regulations and take all other necessary actions to
implement the provisions of this act on or before such effective date

2017-S3808 (ACTIVE) - Bill Text download pdf

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   3808
 
                        2017-2018 Regular Sessions
 
                             I N  S E N A T E
 
                             January 27, 2017
                                ___________
 
 Introduced  by  Sen.  BAILEY -- read twice and ordered printed, and when
   printed to be committed to the Committee on Finance
 
 AN ACT to amend the executive law and the labor law, in relation to  the
   publication  of information regarding waivers of compliance with state
   contract  provisions  concerning  minority  and  women-owned  business
   enterprise participation requirements
 
   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. Subdivision 6 of section  313  of  the  executive  law,  as
 amended  by  chapter  175  of  the  laws  of 2010, is amended to read as
 follows:
   6. (A) Where it appears that a contractor cannot, after a  good  faith
 effort,  comply  with  the  minority and women-owned business enterprise
 participation requirements set forth in a particular state  contract,  a
 contractor  may  file  a written application with the contracting agency
 requesting a partial or total waiver of such requirements setting  forth
 the  reasons  for  such contractor's inability to meet any or all of the
 participation requirements together with an explanation of  the  efforts
 undertaken  by the contractor to obtain the required minority and women-
 owned business enterprise participation. In implementing the  provisions
 of  this  section,  the contracting agency shall consider the number and
 types of minority and women-owned business enterprises  located  in  the
 region  in which the state contract is to be performed, the total dollar
 value of the state contract, the scope of work to be performed  and  the
 project size and term. If, based on such considerations, the contracting
 agency  determines there is not a reasonable availability of contractors
 on the list of certified business to furnish services for  the  project,
 it  shall issue a waiver of compliance to the contractor. In making such
 determination, the contracting agency shall first  consider  the  avail-
 ability  of  other  business enterprises located in the region and shall
 thereafter consider the financial ability of  minority  and  women-owned
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.

                                                            LBD01520-02-7

 S. 3808                             2
 
 businesses  located  outside  the  region in which the contract is to be
 performed to perform the state contract.
   (B) WITHIN THIRTY DAYS OF THE ISSUANCE OF A PARTIAL OR TOTAL WAIVER OF
 COMPLIANCE  AS  PROVIDED  IN  PARAGRAPH  (A)  OF  THIS  SUBDIVISION, THE
 CONTRACTING AGENCY SHALL:
   (I) REPORT THE ISSUANCE OF THE WAIVER TO THE DEPARTMENT OF  LABOR  AND
 TO  THE DIRECTOR OF THE DIVISION OF MINORITY AND WOMEN'S BUSINESS DEVEL-
 OPMENT IN THE DEPARTMENT OF ECONOMIC DEVELOPMENT; AND
   (II) PUBLISH ON THE CONTRACTING AGENCY'S WEBSITE IN A LOCATION  EASILY
 ACCESSIBLE  TO  THE  GENERAL  PUBLIC:  (A)  INFORMATION  IDENTIFYING THE
 CONTRACT, INCLUDING THE AMOUNT OF THE CONTRACT;  (B)  THE  NAME  OF  THE
 CONTRACTOR RECEIVING THE WAIVER; (C) THE DATE OF THE WAIVER; (D) WHETHER
 THE  WAIVER WAS A TOTAL OR PARTIAL WAIVER; AND (E) THE SPECIFIC CONTRACT
 PROVISIONS TO WHICH THE WAIVER APPLIES.
   § 2. Paragraphs (h) and (i) of subdivision 3 of  section  311  of  the
 executive  law,  paragraph  (h) as amended and paragraph (i) as added by
 section 1 of part BB of chapter 59 of the laws of 2006, are amended  and
 a new paragraph (j) is added to read as follows:
   (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; AND
   (J) TO KEEP A RECORD OF PARTIAL AND TOTAL WAIVERS OF COMPLIANCE ISSUED
 PURSUANT TO PARAGRAPH (B) OF SUBDIVISION SIX OF  SECTION  THREE  HUNDRED
 THIRTEEN  OF  THIS ARTICLE AND TO MAKE SUCH RECORD PUBLICLY AVAILABLE ON
 THE DIVISION'S WEBSITE IN A LOCATION EASILY ACCESSIBLE  TO  THE  GENERAL
 PUBLIC. THE RECORD SHALL PROVIDE, AT A MINIMUM:  (A) INFORMATION IDENTI-
 FYING  THE  CONTRACT, INCLUDING THE AMOUNT OF THE CONTRACT; (B) INFORMA-
 TION IDENTIFYING THE CONTRACTING AGENCY; (C) THE NAME OF THE  CONTRACTOR
 RECEIVING THE WAIVER; AND (D) THE DATE OF THE WAIVER.
   §  3.  Section 21 of the labor law is amended by adding a new subdivi-
 sion 15 to read as follows:
   15. SHALL COMPILE AND PUBLISH, ON AN ANNUAL BASIS, A LIST  OF  WAIVERS
 OF  COMPLIANCE  WITH  STATE  CONTRACT PROVISIONS CONCERNING MINORITY AND
 WOMEN-OWNED  BUSINESS  ENTERPRISE  PARTICIPATION  REQUIREMENTS,   ISSUED
 PURSUANT  TO  PARAGRAPH  (B) OF SUBDIVISION SIX OF SECTION THREE HUNDRED
 THIRTEEN OF THE EXECUTIVE LAW. THE COMMISSIONER OR HIS OR  HER  DELEGATE
 SHALL MAKE SUCH LIST PUBLICLY AVAILABLE ON THE DEPARTMENT'S WEBSITE IN A
 LOCATION  EASILY  ACCESSIBLE  TO  THE  GENERAL  PUBLIC.  THE  LIST SHALL
 PROVIDE, AT A MINIMUM: (A) INFORMATION IDENTIFYING THE CONTRACT, INCLUD-
 ING  THE  AMOUNT  OF  THE  CONTRACT;  (B)  INFORMATION  IDENTIFYING  THE
 CONTRACTING AGENCY; (C) THE NAME OF THE CONTRACTOR RECEIVING THE WAIVER;
 AND (D) THE DATE OF THE WAIVER.
   §  4.  This  act  shall take effect on the sixtieth day after it shall
 have become a law; provided, however, that:
   a. the amendments to subdivision 6 of section 313 of the executive law
 made by section one of this act shall not affect the expiration of arti-
 cle 15-A of such law and shall be deemed expired therewith;
   b. the amendments to subdivision 3 of section 311 of the executive law
 made by section two of this act shall not affect the expiration of arti-
 cle 15-A of such law and shall be deemed to expire therewith; and

 S. 3808                             3
 
   c. the director of the  division  of  minority  and  women's  business
 development  and  the commissioner of labor shall immediately promulgate
 rules and regulations and take all other necessary actions to  implement
 the provisions of this act on or before such effective date.

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