S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                    766
 
                        2019-2020 Regular Sessions
 
                             I N  S E N A T E
 
                                (PREFILED)
 
                              January 9, 2019
                                ___________
 
 Introduced by Sens. MONTGOMERY, COMRIE, PARKER -- read twice and ordered
   printed, and when printed to be committed to the Committee on Finance
 
 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;

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

                                                            LBD01728-01-9

 S. 766                              2
 
   (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
 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-

 S. 766                              3
 
 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.
   § 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.
   § 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

 S. 766                              4
 
 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
 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-

 S. 766                              5

 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.
   § 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

 S. 766                              6
 
 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
 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.

 S. 766                              7
 
   (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.
   §  5.  Section  316 of the executive law, as amended by chapter 175 of
 the laws of 2010, is amended to read as follows:
   § 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

 S. 766                              8
 
 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.
   §  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

 S. 766                              9

 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.
   § 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.
   § 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. 766                             10
 
   §  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:
   § 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.
   §  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.