S. 6575 2
for inflation according to the consumer price index of the previous
year; and
(b) [Hispanic] HISPANIC/LATINO persons of Mexican, Puerto Rican,
Dominican, Cuban, Central or South American of either Indian or Hispanic
origin, regardless of race;
13. "State contract" shall mean: (a) a written agreement or purchase
order instrument, providing for a total expenditure in excess of twen-
ty-five thousand dollars, whereby a contracting agency is committed to
expend or does expend funds in return for labor, services including but
not limited to legal, financial and other professional services,
supplies, equipment, materials or any combination of the foregoing, to
be performed for, ON BEHALF OF, or rendered or furnished to the
contracting agency; (b) a written agreement in excess of one hundred
thousand dollars whereby a contracting agency is committed to expend or
does expend funds for the acquisition, construction, demolition,
replacement, major repair or renovation of real property and improve-
ments thereon; and (c) a written agreement in excess of one hundred
thousand dollars whereby the owner of a state assisted housing project
is committed to expend or does expend funds for the acquisition,
construction, demolition, replacement, major repair or renovation of
real property and improvements thereon for such project.
(e) an enterprise owned by an individual or individuals, whose owner-
ship, control and operation are relied upon for certification, with a
personal net worth that does not exceed [three] FIFTEEN million [five
hundred thousand] dollars, AND SUCH OTHER AMOUNT AS THE DIRECTOR SHALL
SET FORTH IN REGULATIONS, as adjusted annually on the first of January
for inflation according to the consumer price index of the previous
year; and
16. "Statewide advocate" shall mean the person appointed by the
[commissioner] DIRECTOR to serve in the capacity of the minority and
women-owned business enterprise statewide advocate AND PROCUREMENT
OMBUDSMAN.
19. "Personal net worth" shall mean the aggregate adjusted net value
of the assets of an individual remaining after total liabilities are
deducted. Personal net worth includes the individual's share of assets
held jointly with said individual's spouse and does not include the
individual's ownership interest in the certified minority and women-
owned business enterprise, the individual's equity in his or her primary
residence, OWNERSHIP INTEREST IN A HOLDING COMPANY ESTABLISHED FOR THE
EXCLUSIVE AND SOLE PURPOSE OF LEASING MACHINERY, EQUIPMENT, OR VEHICLES
EXCLUSIVELY TO THE CERTIFIED MINORITY OR WOMEN-OWNED BUSINESS ENTERPRISE
THAT IS MAJORITY OWNED BY THE MINORITY GROUP MEMBER OR WOMAN RELIED UPON
FOR CERTIFICATION, AND THE HOLDING COMPANY DOES NOT OWN ANY OTHER ASSETS
OF ANY KIND, or up to [five] SEVEN hundred FIFTY thousand dollars of the
present cash value of any qualified retirement savings plan or individ-
ual retirement account held by the individual less any penalties for
early withdrawal.
21. "The [2010] disparity study" shall refer to the disparity study
commissioned by the [empire state development corporation] DEPARTMENT OF
ECONOMIC DEVELOPMENT, pursuant to section three hundred twelve-a of this
article, and published on [April twenty-nine] JUNE THIRTIETH, two thou-
sand [ten] SEVENTEEN.
22. "Diversity practices" shall mean the contractor's practices and
policies with respect to:
S. 6575 3
(a) utilizing OR MENTORING certified minority and women-owned business
enterprises in contracts awarded by a state agency or other public
corporation, as subcontractors and suppliers; and
(b) entering into partnerships, joint ventures or other similar
arrangements with certified minority and women-owned business enter-
prises as defined in this article or other applicable statute or regu-
lation governing an entity's utilization of minority or women-owned
business enterprises.
§ 2. Paragraphs (f) and (i) of subdivision 3 and the opening paragraph
of subdivision 4 of section 311 of the executive law, paragraph (f) of
subdivision 3 as added by chapter 261 of the laws of 1988, paragraph (i)
of subdivision 3 as added by section 1 of part BB of chapter 59 of the
laws of 2006 and the opening paragraph of subdivision 4 as amended by
chapter 361 of the laws of 2009, are amended and a new paragraph (d-1)
is added to subdivision 3 and two new paragraphs (d) and (e) are added
to subdivision 4 to read as follows:
(D-1) TO REQUIRE ALL CONTRACTING STATE AGENCIES TO DEVELOP A FOUR-YEAR
GROWTH PLAN TO DETERMINE A MEANS OF PROMOTING AND INCREASING PARTIC-
IPATION BY MINORITY-OWNED AND WOMEN-OWNED BUSINESS ENTERPRISES WITH
RESPECT TO STATE CONTRACTS AND SUBCONTRACTS. EVERY FOUR YEARS, BEGINNING
SEPTEMBER FIFTEENTH, TWO THOUSAND TWENTY, EACH CONTRACTING STATE AGENCY
SHALL SUBMIT A FOUR-YEAR GROWTH PLAN AS PART OF ITS ANNUAL REPORT TO THE
GOVERNOR AND LEGISLATURE PURSUANT TO SECTION ONE HUNDRED SIXTY-FOUR OF
THIS CHAPTER.
(f) to prepare and update [periodically], NO LESS THAN ANNUALLY, 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 enterprises are available to perform services;
(i) to streamline the state certification process to accept federal
and municipal corporation certifications;
(J) TO MAKE PUBLICLY AVAILABLE RECORDS OF ALL WAIVERS OF COMPLIANCE
REPORTED PURSUANT TO PARAGRAPH (B) OF SUBDIVISION SIX OF SECTION THREE
HUNDRED THIRTEEN OF THIS ARTICLE ON THE DIVISION'S WEBSITE.
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, managerial and
financial, and general business assistance; training; marketing; organ-
ization and personnel skill development; project management assistance;
technology assistance; bond and insurance education assistance; and
other business development assistance. THE DIRECTOR SHALL MAINTAIN A
TOLL-FREE NUMBER AT THE DEPARTMENT OF ECONOMIC DEVELOPMENT TO BE USED TO
ANSWER QUESTIONS CONCERNING THE MWBE CERTIFICATION PROCESS. In addition,
the director may, either independently or in conjunction with other
state agencies:
(D) CONDUCT OUTREACH EVENTS, TRAINING WORKSHOPS, SEMINARS, AND OTHER
SUCH EDUCATIONAL PROGRAMS THROUGHOUT THE STATE, INCLUDING ALL REGIONAL
OFFICES, TO STATE AGENCIES, EXTERNAL STAKEHOLDERS, AND THE PUBLIC, TO
PROMOTE AWARENESS AND UTILIZATION OF MINORITY AND WOMEN-OWNED BUSINESS
ENTERPRISES; AND
(E) IDENTIFY AND ESTABLISH MENTORSHIP OPPORTUNITIES AND OTHER BUSINESS
DEVELOPMENT PROGRAMS TO INCREASE CAPACITY AND BETTER PREPARE MWBES FOR
BIDDING ON CONTRACTS WITH STATE AGENCIES UPON SUCCESSFUL COMPLETION OF
THE MENTORSHIP OPPORTUNITY. SUCH MENTORSHIP OPPORTUNITIES SHALL BE
S. 6575 4
INTENDED TO ENSURE THAT MENTOR AND MENTEE ARE CONNECTED BASED ON A
COMMERCIALLY USEFUL FUNCTION.
§ 3. Section 311-a of the executive law, as added by section 4 of part
BB of chapter 59 of the laws of 2006, is amended to read as follows:
§ 311-a. Minority and women-owned business enterprise statewide advo-
cate. 1. There is hereby established within the [department of economic
development] DIVISION OF MINORITY AND WOMEN'S BUSINESS an office of the
minority and women-owned business enterprise statewide advocate. The
statewide advocate shall be appointed by the commissioner with the
advice of the small business advisory board as established in section
one hundred thirty-three of the economic development law and shall serve
in the unclassified service of the director. [The statewide advocate
shall be located in the Albany empire state development office].
2. The advocate shall act as a liaison for minority and women-owned
business enterprises (MWBEs) to assist them in obtaining technical,
managerial, financial and other business assistance for certified busi-
nesses and applicants. The advocate shall RECEIVE AND investigate
complaints brought by or on behalf of MWBEs concerning certification
delays and instances of violations of [law] THE REQUIREMENTS OF THIS
ARTICLE BY CONTRACTORS AND by state agencies. The statewide advocate
[shall] MAY assist certified businesses and applicants in the certif-
ication process. Other functions of the statewide advocate shall be
directed by the commissioner. The advocate may request and the director
may appoint staff and employees of the division of minority and women
business development to support the administration of the office of the
statewide advocate.
3. The statewide advocate [shall establish a toll-free number at the
department of economic development to be used to answer questions
concerning the MWBE certification process] SHALL CONDUCT PERIODIC AUDITS
OF STATE CONTRACTING AGENCIES' COMPLIANCE WITH THE REQUIREMENTS OF
SECTION THREE HUNDRED FIFTEEN OF THIS ARTICLE, SUCH AUDITS SHALL INCLUDE
A REVIEW OF THE BOOKS AND RECORDS OF STATE CONTRACTING AGENCIES CONCERN-
ING, AMONG OTHER THINGS, ANNUAL AGENCY EXPENDITURES, ANNUAL PARTIC-
IPATION OF MINORITY AND WOMEN-OWNED BUSINESS ENTERPRISES AS PRIME
CONTRACTORS AND SUBCONTRACTORS IN STATE CONTRACTING AGENCIES' STATE
CONTRACTS, AND DOCUMENTATION OF STATE CONTRACTING AGENCIES' GOOD FAITH
EFFORTS TO MAXIMIZE MINORITY AND WOMEN-OWNED BUSINESS ENTERPRISE PARTIC-
IPATION IN SUCH AGENCIES' CONTRACTING.
4. THE STATEWIDE ADVOCATE SHALL INVESTIGATE COMPLAINTS BY CERTIFIED
MINORITY-OWNED BUSINESS ENTERPRISES OR WOMEN-OWNED BUSINESS ENTERPRISES
CONCERNING A PROCURING GOVERNMENTAL ENTITY'S FAILURE TO COMPLY WITH THE
REQUIREMENTS OF SECTION THREE HUNDRED FIFTEEN OF THIS ARTICLE.
5. The statewide advocate shall report to the director and commission-
er by November fifteenth on an annual basis on all activities related to
fulfilling the obligations of the office of the statewide advocate
INCLUDING, BUT NOT LIMITED TO: (A) THE NUMBER OF COMPLAINTS INVESTI-
GATED; (B) THE RESOLUTION OF COMPLAINTS, AS APPLICABLE; AND (C) INFORMA-
TION REGARDING AUDITS CONDUCTED PURSUANT TO THIS SUBDIVISION. The
[commissioner] DIRECTOR shall include the unedited text of the statewide
advocate's report within the reports submitted by the department of
economic development to the governor and the legislature.
§ 4. Section 312-a of the executive law, as amended by section 1 of
part Q of chapter 58 of the laws of 2015, is amended to read as follows:
§ 312-a. Study of minority and women-owned business [enterprise
programs] ENTERPRISES. 1. The director of the division of minority and
women-owned business development [in the department of economic develop-
S. 6575 5
ment] is authorized and directed to recommission a statewide disparity
study regarding the participation of minority and women-owned business
enterprises in state contracts since the amendment of this article to be
delivered to the governor and legislature no later than August
fifteenth, two thousand [sixteen] TWENTY-THREE. The study shall be
prepared by an entity independent of the department and selected through
a request for proposal process. The purpose of such study is:
(a) to determine whether there is a disparity between the number of
qualified minority and women-owned businesses ready, willing and able to
perform state contracts for commodities, services and construction, and
the number of such contractors actually engaged to perform such
contracts, and to determine what changes, if any, should be made to
state policies affecting minority and women-owned business enterprises;
[and]
(b) to determine whether there is a disparity between the number of
qualified minorities and women ready, willing and able, with respect to
labor markets, qualifications and other relevant factors, to participate
in contractor employment, management level bodies, including boards of
directors, and as senior executive officers within contracting entities
and the number of such group members actually employed or affiliated
with state contractors in the aforementioned capacities, and to deter-
mine what changes, if any, should be made to state policies affecting
minority and women group populations with regard to state contractors'
employment and appointment practices relative to diverse group members.
Such study shall include, but not be limited to, an analysis of the
history of minority and women-owned business enterprise programs and
their effectiveness as a means of securing and ensuring participation by
minorities and women, and a disparity analysis by market area and region
of the state. Such study shall distinguish between minority males,
minority females and non-minority females in the statistical analysis;
AND
(C) SUCH STUDY SHALL ALSO INCLUDE AN ANALYSIS OF THE UTILIZATION ON
STATE AGENCY CONTRACTS OF BUSINESSES OWNED BY AN INDIAN NATION OR TRIBE,
AS SUCH TERM IS DEFINED IN SECTION TWO OF THE INDIAN LAW, WHETHER A
DISPARITY EXISTS BETWEEN AVAILABILITY OF SUCH BUSINESSES TO PARTICIPATE
ON STATE AGENCY CONTRACTS AND UTILIZATION, AND, IF SO, THE FEASIBILITY
OF AUTHORIZING AN INDIAN NATION OR TRIBE OWNED BUSINESSES TO BECOME
CERTIFIED AS A PARTICIPANT IN THE MINORITY AND WOMEN-OWNED BUSINESS
ENTERPRISE PROGRAM.
2. The director of the division of minority and [women-owned] WOMEN'S
business development is directed to transmit the disparity study to the
governor and the legislature not later than August fifteenth, two thou-
sand [sixteen] TWENTY-THREE, and to post the study on the website of the
department of economic development.
§ 5. Section 313 of the executive law, as amended by chapter 175 of
the laws of 2010, is amended to read as follows:
§ 313. Opportunities for minority and women-owned business enter-
prises. 1. Goals and requirements for agencies and contractors. Each
agency shall structure procurement procedures for contracts made direct-
ly or indirectly to minority and women-owned business enterprises, in
accordance with the findings of the [two thousand ten] disparity study,
consistent with the purposes of this article, to attempt to achieve the
[following] RECOMMENDED results with regard to total annual statewide
procurement IN THE FOLLOWING INDUSTRIES:
(a) construction industry for certified minority-owned business enter-
prises[: fourteen and thirty-four hundredths percent];
S. 6575 6
(b) construction industry for certified women-owned business enter-
prises[: eight and forty-one hundredths percent];
(c) construction related professional services industry for certified
minority-owned business enterprises[: thirteen and twenty-one hundredths
percent];
(d) construction related professional services industry for certified
women-owned business enterprises[: eleven and thirty-two hundredths
percent];
(e) non-construction related services industry for certified minori-
ty-owned business enterprises[: nineteen and sixty hundredths percent];
(f) non-construction related services industry for certified women-
owned business enterprises[: seventeen and forty-four hundredths
percent];
(g) commodities industry for certified minority-owned business enter-
prises[: sixteen and eleven hundredths percent];
(h) commodities industry for certified women-owned business enter-
prises[: ten and ninety-three hundredths percent];
(i) overall agency total dollar value of procurement for certified
minority-owned business enterprises[: sixteen and fifty-three hundredths
percent];
(j) overall agency total dollar value of procurement for certified
women-owned business enterprises[: twelve and thirty-nine hundredths
percent]; and
(k) overall agency total dollar value of procurement for certified
minority, women-owned business enterprises[: twenty-eight and ninety-two
hundredths percent].
1-a. The director shall ensure that each state agency has been
provided with [a] AN ELECTRONIC copy of the [two thousand ten] disparity
study.
1-b. Each agency shall develop and adopt agency-specific goals based
on the findings of the [two thousand ten] disparity study.
1-C. THE GOALS SET PURSUANT TO SUBDIVISION ONE OF THIS SECTION SHALL
BE CONSISTENT WITH THE FINDINGS OF THE DISPARITY STUDY.
2. The director shall promulgate rules and regulations [pursuant to
the goals established in] BASED ON subdivision one of this section AND
THE FINDINGS OF THE DISPARITY STUDY that provide measures and procedures
to ensure that certified minority and women-owned businesses shall be
given the opportunity for maximum feasible participation in the perform-
ance of state contracts and to assist in the agency's identification of
those state contracts for which minority and women-owned certified busi-
nesses may best bid to actively and affirmatively promote and assist
their participation in the performance of state contracts so as to
facilitate the agency's achievement of the maximum feasible portion of
the goals for state contracts to such businesses.
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
S. 6575 7
to the potential subcontract opportunities AS REFLECTED IN THE DIVI-
SION'S DIRECTORY OF CERTIFIED MINORITY AND WOMEN-OWNED BUSINESS ENTER-
PRISES; AND
(III) THE FINDINGS OF THE DISPARITY STUDY;
(c) require that each agency provide a current list of certified
minority business enterprises to each prospective contractor OR DIRECT
THEM TO THE DIVISION'S DIRECTORY OF CERTIFIED MINORITY AND WOMEN-OWNED
BUSINESS ENTERPRISES FOR SUCH PURPOSE;
(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) ESTABLISH CRITERIA FOR AGENCIES TO CREDIT THE PARTICIPATION OF
MINORITY AND WOMEN-OWNED BUSINESS ENTERPRISES TOWARDS THE ACHIEVEMENT OF
THE MINORITY AND WOMEN-OWNED BUSINESS ENTERPRISE PARTICIPATION GOALS ON
A STATE CONTRACT BASED ON THE COMMERCIALLY USEFUL FUNCTION PROVIDED BY
EACH MINORITY AND WOMEN-OWNED BUSINESS ENTERPRISE ON THE CONTRACT;
(F) provide for joint ventures, which a bidder may count toward meet-
ing its minority and women-owned business enterprise participation;
[(f)] (G) 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)] (H) require that an agency verify that minority and women-owned
business enterprises listed in a successful bid are actually participat-
ing to the extent listed in the project for which the bid was submitted;
[(h)] (I) provide for the collection of statistical data by each agen-
cy concerning actual minority and women-owned business enterprise
participation; [and
(i)] (J) require each agency to consult the most current disparity
study when calculating agency-wide and contract specific participation
goals pursuant to this article; AND
SUCH RULES SHALL SET FORTH THE MAXIMUM PERSONAL NET WORTH OF A MINORI-
TY GROUP MEMBER OR WOMAN WHO MAY BE RELIED UPON TO CERTIFY A BUSINESS AS
A MINORITY-OWNED BUSINESS ENTERPRISE OR WOMEN-OWNED BUSINESS ENTERPRISE,
AND MAY ESTABLISH DIFFERENT MAXIMUM LEVELS OF PERSONAL NET WORTH FOR
MINORITY GROUP MEMBERS AND WOMEN ON AN INDUSTRY-BY-INDUSTRY BASIS FOR
SUCH INDUSTRIES AS THE DIRECTOR SHALL DETERMINE. SUCH REGULATIONS
RELATING TO THE CLASSIFICATION OF THE INDUSTRY-BY-INDUSTRY PERSONAL NET
WORTH THRESHOLDS ABOVE THE FIFTEEN MILLION DOLLAR THRESHOLD SHALL
CONSIDER THE PERSONAL NET WORTH OF THE OWNERS OF BOTH CERTIFIED AND
NON-CERTIFIED BUSINESSES, INCLUDING BUT NOT LIMITED TO, PRIME CONTRAC-
TORS AND SUBCONTRACTORS, AS WELL AS ANY SUCH OTHER FACTORS NEEDED TO
ESTABLISH SUCH THRESHOLDS. THE PROVISIONS OF THE REGULATIONS PERTAINING
TO PERSONAL NET WORTH SHALL, TO THE EXTENT PRACTICABLE, BE IMPLEMENTED
BY JUNE THIRTIETH, TWO THOUSAND TWENTY AND SHALL CONSIDER ADJUSTMENTS
FOR INFLATION ANNUALLY ON JANUARY FIRST OF THE PREVIOUS YEAR ACCORDING
TO THE CONSUMER PRICE INDEX.
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
S. 6575 8
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 be necessary to effectuate the provisions of this
section in every bid specification and state contract, including, but
not limited to: (a) provisions requiring contractors to make a good
faith effort to solicit active participation by enterprises identified
in the directory of certified businesses [provided to the contracting
agency by the office]; (b) requiring the parties to agree as a condition
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 binding
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.
4. In the implementation of this section, the contracting agency shall
(a) consult the findings contained within the disparity study evidencing
relevant industry specific [availability of certified businesses]
DISPARITIES IN THE UTILIZATION OF MINORITY AND WOMEN-OWNED BUSINESSES
RELATIVE TO THEIR AVAILABILITY;
(b) implement a program that will enable the agency to evaluate each
contract to determine the [appropriateness of the] APPROPRIATE goal
[pursuant to subdivision one of this section] FOR PARTICIPATION BY
MINORITY-OWNED BUSINESS ENTERPRISES AND WOMEN-OWNED BUSINESS
ENTERPRISES;
(c) consider where practicable, the severability of construction
projects and other bundled contracts; and
(d) consider compliance with the requirements of any federal law
concerning opportunities for minority and women-owned business enter-
prises which effectuates the purpose of this section. The contracting
agency shall determine whether the imposition of the requirements of any
such law duplicate or conflict with the provisions hereof and if such
duplication or conflict exists, the contracting agency shall waive the
applicability of this section to the extent of such duplication or
conflict.
5. (a) Contracting agencies shall administer the rules and regulations
promulgated by the director in a good faith effort to [meet] ACHIEVE the
maximum feasible [portion of the agency's goals] PARTICIPATION BY MINOR-
ITY AND WOMEN OWNED BUSINESS ENTERPRISES adopted pursuant to this arti-
cle and the regulations of the director. Such rules and regulations:
shall require a contractor to submit a utilization plan after bids are
opened, 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 director]; shall require the
S. 6575 9
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 director; shall require the contractor
to submit periodic compliance reports relating to the operation and
implementation of any utilization 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 participation requirements or has denied such
request for a waiver; and shall allow a contracting agency to file a
complaint with the director pursuant to subdivision nine of this section
in the event a contractor is failing or has failed to comply with the
minority and women-owned business enterprise participation requirements
set forth in the state contract where no waiver has been granted.
(b) The rules and regulations promulgated pursuant to this subdivision
regarding a utilization plan shall provide that where enterprises have
been identified within a utilization plan, a contractor shall attempt,
in good faith, to utilize such enterprise at least to the extent indi-
cated. A contracting agency may require a contractor to indicate, within
a utilization plan, what measures and procedures he or she intends to
take to comply with the provisions of this article, but may not require,
as a condition of award of, or compliance with, a contract that a
contractor utilize a particular enterprise in performance of the
contract.
(c) Without limiting other grounds for the disqualification of bids or
proposals on the basis of non-responsibility, a contracting agency may
disqualify the bid or proposal of a contractor as being non-responsible
for failure to remedy notified deficiencies contained in the contrac-
tor's utilization plan within a period of time specified in regulations
promulgated by the director after receiving notification of such defi-
ciencies from the contracting agency. Where failure to remedy any noti-
fied deficiency in the utilization plan is a ground for disqualifica-
tion, that issue and all other grounds for disqualification shall be
stated in writing by the contracting agency. Where the contracting agen-
cy states that a failure to remedy any notified deficiency in the utili-
zation plan is a ground for disqualification the contractor shall be
entitled to an administrative hearing, on a record, involving all
grounds stated by the contracting agency. Such hearing shall be
conducted by the appropriate authority of the contracting agency to
review the determination of disqualification. A final administrative
determination made following such hearing shall be reviewable in a
proceeding commenced under article seventy-eight of the civil practice
law and rules, provided that such proceeding is commenced within thirty
days of the notice given by certified mail return receipt requested
rendering such final administrative determination. Such proceeding shall
be commenced in the supreme court, appellate division, third department
and such proceeding shall be preferred over all other civil causes
except election causes, and shall be heard and determined in preference
to all other civil business pending therein, except election matters,
irrespective of position on the calendar. Appeals taken to the court of
appeals of the state of New York shall be subject to the same prefer-
ence.
S. 6575 10
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] AVAIL-
ABLE TO PROVIDE GOODS OR SERVICES REQUIRED UNDER THE CONTRACT 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
businesses located outside the region in which the contract is to be
performed to perform the state contract.
(B) UPON THE ISSUANCE OF ALL WAIVERS OF COMPLIANCE AS PROVIDED IN
PARAGRAPH (A) OF THIS SUBDIVISION, THE CONTRACTING AGENCY SHALL: (I)
REPORT THE ISSUANCE OF THE WAIVER TO THE DIRECTOR; AND (II) PUBLISH ON
THE CONTRACTING AGENCY'S WEBSITE ON A MONTHLY BASIS, IF PRACTICABLE, BUT
NO LESS THAN ON A QUARTERLY BASIS: (1) INFORMATION IDENTIFYING THE
CONTRACT, INCLUDING THE VALUE OF THE CONTRACT; (2) THE NAME OF THE
CONTRACTOR RECEIVING THE WAIVER; (3) THE DATE OF THE WAIVER; AND (4) THE
SPECIFIC CONTRACT PROVISIONS TO WHICH THE WAIVER APPLIES.
7. For purposes of determining a contractor's good faith effort to
comply with the requirements of this section or to be entitled to a
waiver therefrom the contracting agency shall consider:
(a) whether the contractor has advertised in general circulation
media, trade association publications, and minority-focus and women-fo-
cus media and, in such event, (i) whether or not certified minority or
women-owned businesses which have been solicited by the contractor
exhibited interest in submitting proposals for a particular project by
attending, OR HAVING ATTENDED, a pre-bid conference, IF ANY, SCHEDULED
BY THE STATE AGENCY AWARDING THE STATE CONTRACT WITH CERTIFIED MINORITY
AND WOMEN-OWNED BUSINESS ENTERPRISES; and
(ii) whether certified businesses which have been solicited by the
contractor have responded in a timely fashion to the contractor's solic-
itations for timely competitive bid quotations prior to the contracting
agency's bid date; and
(b) whether [there has been] THE CONTRACTOR PROVIDED TIMELY written
notification OF SUBCONTRACTING OPPORTUNITIES ON THE STATE CONTRACT to
appropriate certified businesses that appear in the directory of certi-
fied businesses prepared pursuant to paragraph (f) of subdivision three
of section three hundred eleven of this article; and
(c) whether the contractor can reasonably structure the amount of work
to be performed under subcontracts in order to increase the likelihood
of participation by certified businesses.
8. In the event that a contracting agency fails or refuses to issue a
waiver to a contractor as requested within twenty days after having made
S. 6575 11
application therefor pursuant to subdivision six of this section or if
the contracting agency denies such application, in whole or in part, the
contractor may file a complaint with the director pursuant to section
three hundred sixteen of this article setting forth the facts and
circumstances giving rise to the contractor's complaint together with a
demand for relief. The contractor shall serve a copy of such complaint
upon the contracting agency by personal service or by certified mail,
return receipt requested. The contracting agency shall be afforded an
opportunity to respond to such complaint in writing.
9. If, after the review of a contractor's minority and [women owned]
WOMEN-OWNED business utilization plan or review of a periodic compliance
report and after such contractor has been afforded an opportunity to
respond to a notice of deficiency issued by the contracting agency in
connection therewith, it appears that a contractor is failing or refus-
ing to comply with the minority and women-owned business participation
requirements as set forth in the state contract and where no waiver from
such requirements has been granted, the contracting agency may file a
written complaint with the director pursuant to section three hundred
sixteen of this article setting forth the facts and circumstances giving
rise to the contracting agency's complaint together with a demand for
relief. The contracting agency shall serve a copy of such complaint
upon the contractor by personal service or by certified mail, return
receipt requested. The contractor shall be afforded an opportunity to
respond to such complaint in writing.
§ 6. Section 314 of the executive law, as added by chapter 216 of the
laws of 1988, subdivision 2-a as amended by chapter 175 of the laws of
2010, subdivision 2-b as added by chapter 409 of the laws of 2018,
subdivision 4 as amended and subdivision 5 as added by chapter 399 of
the laws of 2014, is amended to read as follows:
§ 314. Statewide certification program. 1. The director shall promul-
gate rules and regulations providing for the establishment of a state-
wide certification program including rules and regulations governing the
approval, denial or revocation of any such certification INCLUDING REVO-
CATIONS FOR CONVICTIONS FOR FRAUDULENTLY MISREPRESENTING THE STATUS OF
MINORITY OR WOMEN-OWNED BUSINESS ENTERPRISES. SUCH RULES SHALL SET FORTH
THE MAXIMUM PERSONAL NET WORTH OF A MINORITY GROUP MEMBER OR WOMAN WHO
MAY BE RELIED UPON TO CERTIFY A BUSINESS AS A MINORITY-OWNED BUSINESS
ENTERPRISE OR WOMEN-OWNED BUSINESS ENTERPRISE WITH A MINIMUM PERSONAL
NET WORTH THRESHOLD OF FIFTEEN MILLION DOLLARS, AND MAY THEREAFTER
ESTABLISH DIFFERENT MAXIMUM LEVELS OF PERSONAL NET WORTH FOR MINORITY
GROUP MEMBERS AND WOMEN ON AN INDUSTRY-BY-INDUSTRY BASIS FOR SUCH INDUS-
TRIES AS THE DIRECTOR SHALL DETERMINE. SUCH REGULATIONS RELATING TO THE
CLASSIFICATION OF THE INDUSTRY-BY-INDUSTRY PERSONAL NET WORTH THRESHOLDS
ABOVE THE FIFTEEN MILLION DOLLAR THRESHOLD SHALL CONSIDER THE PERSONAL
NET WORTH OF THE OWNERS OF BOTH CERTIFIED AND NON-CERTIFIED BUSINESSES,
INCLUDING BUT NOT LIMITED TO, PRIME CONTRACTORS AND SUBCONTRACTORS, AS
WELL AS ANY SUCH OTHER FACTORS NEEDED TO ESTABLISH SUCH THRESHOLDS. Such
rules and regulations shall include, but not be limited to, such matters
as may be required to ensure that the established procedures thereunder
shall at least be in compliance with the code of fair procedure set
forth in section seventy-three of the civil rights law.
2. For the purposes of this article, the office shall be responsible
for verifying businesses as being owned, operated, and controlled by
minority group members or women and for certifying such verified busi-
nesses. The director shall prepare a directory of certified businesses
for use by contracting agencies and contractors in carrying out the
S. 6575 12
provisions of this article. The director shall periodically, BUT NO LESS
THAN ANNUALLY, update the directory.
2-a. (a) The director shall establish a procedure enabling the office
to accept New York municipal corporation certification verification for
minority and women-owned business enterprise applicants in lieu of
requiring the applicant to complete the state certification process. The
director shall promulgate rules and regulations to set forth criteria
for the acceptance of municipal corporation certification. All eligible
municipal corporation certifications shall require business enterprises
seeking certification to meet the following standards:
(i) have at least fifty-one percent ownership by a minority or a
women-owned enterprise and be owned by United States citizens or perma-
nent resident aliens;
(ii) be an enterprise in which the minority and/or women-ownership
interest is real, substantial and continuing;
(iii) be an enterprise in which the minority and/or women-ownership
has and exercises the authority to control independently the day-to-day
business decisions of the enterprise;
(iv) be an enterprise authorized to do business in this state;
(v) be subject to a physical site inspection to verify the fifty-one
percent ownership requirement;
(vi) be owned by an individual or individuals, whose ownership,
control and operation are relied upon for certification, with a personal
net worth that does not exceed [three] FIFTEEN million [five hundred
thousand] dollars AND SUCH OTHER AMOUNT AS THE DIRECTOR SHALL SET FORTH
IN REGULATIONS, as adjusted annually for inflation according to the
consumer price index; and
(vii) be an enterprise that is a small business pursuant to subdivi-
sion twenty of section three hundred ten of this article.
(b) The director shall work with all municipal corporations that have
a municipal minority and women-owned business enterprise program to
develop standards to accept state certification to meet the municipal
corporation minority and women-owned business enterprise certification
standards.
(c) The director shall establish a procedure enabling the division to
accept federal certification verification for minority and women-owned
business enterprise applicants, provided said standards comport with
those required by the state minority and women-owned business program,
in lieu of requiring the applicant to complete the state certification
process. The director shall promulgate rules and regulations to set
forth criteria for the acceptance of federal certification.
2-b. The director shall establish a procedure enabling an applicant
who was a military service member to prove his or her race or ethnicity,
date of birth, place of birth and verification of address for purposes
of certification of the applicant's business as a minority-owned busi-
ness by submission of the DD Form 214 issued to the applicant by the
United States department of defense upon such applicant's retirement,
separation, or discharge from active duty in the armed forces of the
United States, provided the DD Form 214 contains such information, in
lieu of requiring the applicant to otherwise prove his or her race or
ethnicity. The director shall promulgate rules and regulations to set
forth criteria for the acceptance of the DD Form 214 by the office.
2-C. (A) EACH BUSINESS APPLYING FOR MINORITY OR WOMEN-OWNED BUSINESS
ENTERPRISE CERTIFICATION PURSUANT TO THIS SECTION MUST AGREE TO ALLOW:
(I) THE DEPARTMENT OF TAXATION AND FINANCE TO SHARE ITS TAX INFORMATION
S. 6575 13
WITH THE DIVISION; AND (II) THE DEPARTMENT OF LABOR TO SHARE ITS TAX AND
EMPLOYER INFORMATION WITH THE DIVISION.
(B) SUCH INFORMATION PROVIDED PURSUANT TO PARAGRAPH (A) OF THIS SUBDI-
VISION SHALL BE KEPT CONFIDENTIAL BY THE DIVISION AS SUCH INFORMATION IS
KEPT BY THE DEPARTMENT OF TAXATION AND FINANCE OR THE DEPARTMENT OF
LABOR AND USE OF SUCH INFORMATION SHALL BE LIMITED TO THE CERTIFICATION
APPLICATION PROCESS, OR OTHER USES APPROVED OR CONSENTED TO BY THE BUSI-
NESS ENTERPRISE OR APPLICANT.
3. Following application for certification pursuant to this section,
the director shall provide the applicant with written notice of the
status of the application, including notice of any outstanding deficien-
cies, within [thirty] TWENTY-ONE days. Within [sixty] FORTY-FIVE days of
submission of a final completed application, the director shall provide
the applicant with written notice of a determination by the office
approving or denying such certification and, in the event of a denial a
statement setting forth the reasons for such denial. Upon a determi-
nation denying or revoking certification, the business enterprise for
which certification has been so denied or revoked shall, upon written
request made within thirty days from receipt of notice of such determi-
nation, be entitled to a hearing before an independent hearing officer
designated for such purpose by the director. In the event that a request
for a hearing is not made within such thirty day period, such determi-
nation shall be deemed to be final. The independent hearing officer
shall conduct a hearing and upon the conclusion of such hearing, issue a
written recommendation to the director to affirm, reverse or modify such
determination of the director. Such written recommendation shall be
issued to the parties. The director, within thirty days, by order, must
accept, reject or modify such recommendation of the hearing officer and
set forth in writing the reasons therefor. The director shall serve a
copy of such order and reasons therefor upon the business enterprise by
personal service or by certified mail return receipt requested. The
order of the director shall be subject to review pursuant to article
seventy-eight of the civil practice law and rules.
4. The director may, after performing an availability analysis and
upon a finding that industry-specific factors coupled with personal net
worth or small business eligibility requirements pursuant to subdivi-
sions nineteen and twenty of section three hundred ten of this article,
respectively, have led to the significant exclusion of businesses owned
by minority group members or women in that industry, grant provisional
MWBE certification status to applicants from that designated industry,
provided, however, that all other eligibility requirements pursuant to
subdivision seven or fifteen of section three hundred ten of this arti-
cle, as applicable, are satisfied. Any industry-based determination made
under this section by the director shall be made widely available to the
public and posted on the division's website.
5. With the exception of provisional MWBE certification, as provided
for in subdivision twenty-three of section three hundred ten of this
article, all MINORITY AND WOMEN-OWNED BUSINESS ENTERPRISE certifications
shall be valid for a period of [three] FIVE years.
§ 7. Section 315 of the executive law, as added by chapter 261 of the
laws of 1988, subdivision 3 as amended and subdivisions 4, 5, 6, and 7
as added by chapter 175 of the laws of 2010, is amended to read as
follows:
§ 315. Responsibilities of contracting agencies. 1. Each contracting
agency shall be responsible for monitoring state contracts under its
jurisdiction, and recommending matters to the office respecting non-com-
S. 6575 14
pliance with the provisions of this article so that the office may take
such action as is appropriate to [insure] ENSURE 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. TO THE EXTENT PRACTICABLE, UPON COMPLETION OF THE RESTRICTIVE
PERIOD OF A PROCUREMENT, EACH CONTRACTING AGENCY WHEN NOTIFYING A
CONTRACTOR OF A WINNING BID AWARD SHALL ALSO NOTIFY ANY MINORITY OR
WOMEN-OWNED BUSINESS ENTERPRISE IDENTIFIED IN 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,] NO LATER THAN MAY FIFTEENTH OF EVERY YEAR and
shall include such information as is necessary for the director to
determine whether the contracting agency and ANY contractor TO THE
CONTRACTING AGENCY have complied with the purposes of this article,
including, without limitation, a summary of all waivers of the require-
ments 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 AND ANY INSTANCES
IN WHICH THE CONTRACT AGENCY HAS DEEMED A CONTRACTOR TO HAVE COMMITTED A
VIOLATION PURSUANT TO SECTION THREE HUNDRED SIXTEEN OF THIS ARTICLE AND
SUCH OTHER INFORMATION AS THE DIRECTOR SHALL REQUIRE. 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.
4. The division of minority and women's business development shall
issue an annual report which: (a) summarizes the report submitted by
each contracting agency pursuant to subdivision three of this section;
(b) contains such comparative or other information as the director deems
appropriate, including but not limited to goals compared to actual
participation of minority and women-owned business enterprises in state
contracting AND A LISTING OF ANNUAL PARTICIPATION RATES FOR EACH AGENCY,
THE TOTAL NUMBER OF CERTIFIED MINORITY AND WOMEN-OWNED BUSINESSES FOR
THAT REPORTING YEAR, AND THE TOTAL DOLLAR VALUE OF STATE EXPENDITURES ON
CERTIFIED MINORITY AND WOMEN-OWNED BUSINESS CONTRACTS AND SUBCONTRACTS
FOR THAT REPORTING YEAR, to evaluate the effectiveness of the activities
undertaken by each such contracting agency to promote increased partic-
ipation by certified minority or women-owned businesses with respect to
state contracts and subcontracts; (c) contains a summary of all waivers
of the requirements of subdivisions six and seven of section three
hundred thirteen of this article allowed by each contracting agency
during the period covered by the report, including a description of the
basis of the waiver request and the contracting agency's rationale for
S. 6575 15
granting any such waiver; (d) describes any efforts to create a database
or other information storage and retrieval system containing information
relevant to contracting with minority and women-owned business enter-
prises; and (e) contains a summary of (i) all determinations of
violations of this article by a contractor or a contracting agency made
during the period covered by the annual report pursuant to section three
hundred sixteen-a of this article and (ii) the penalties or sanctions,
if any, assessed in connection with such determinations and the ration-
ale for such penalties or sanctions. Copies of the annual report shall
be provided to the commissioner, the governor, the comptroller, the
temporary president of the senate, the speaker of the assembly, the
minority leader of the senate, the minority leader of the assembly and
shall also be made widely available to the public via, among other
things, publication on a website maintained by the division of minority
and women's business development.
5. Each agency shall include in its annual report to the governor and
legislature pursuant to section one hundred sixty-four of [the executive
law] THIS CHAPTER: (A) its annual goals for contracts with minority-
owned and women-owned business enterprises; (B) the number of actual
contracts issued to minority-owned and women-owned business enterprises;
[and] (C) a summary of all waivers of the requirements of subdivisions
six and seven of section three hundred thirteen of this article allowed
by the reporting agency during the preceding year, including a
description of the basis of the waiver request and the rationale for
granting such waiver[. Each agency shall also include in such annual
report]; (D) 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; (E) WHICH EXPENDITURES ARE
EXEMPT FROM PARTICIPATION GOALS AND THE RATIONALE FOR SUCH EXEMPTION;
AND (F) EVERY FOUR YEARS, BEGINNING SEPTEMBER FIFTEENTH, TWO THOUSAND
TWENTY, EACH AGENCY SHALL INCLUDE IN SUCH ANNUAL REPORT ITS FOUR-YEAR
GROWTH PLAN PURSUANT TO SECTION THREE HUNDRED ELEVEN OF THIS ARTICLE.
6. Each contracting agency that substantially fails to [meet the
goals supported by the disparity study,] MAKE A GOOD FAITH EFFORT as
defined by regulation of the director, TO ACHIEVE THE MAXIMUM FEASIBLE
PARTICIPATION OF MINORITY AND WOMEN-OWNED BUSINESS ENTERPRISES IN SUCH
AGENCY'S CONTRACTING shall be required to submit to the director a reme-
dial action plan to remedy such failure.
7. If it is determined by the director that any agency has failed to
act in good faith to implement the remedial action plan, pursuant to
subdivision six of this section within one year, the director shall
provide written notice of such a finding, which shall be publicly avail-
able, and direct implementation of remedial actions to:
(a) assure that sufficient and effective solicitation efforts to women
and minority-owned business enterprises are being made by said agency;
(b) divide contract requirements, when economically feasible, into
quantities that will expand the participation of women and minority-
owned business enterprises;
(c) eliminate extended experience or capitalization requirements, when
programmatically and economically feasible, that will expand partic-
ipation by women and minority-owned business enterprises;
(d) identify specific proposed contracts as particularly attractive or
appropriate for participation by women and minority-owned business
enterprises with such identification to result from and be coupled with
the efforts of paragraphs (a), (b), and (c) of this subdivision; and
S. 6575 16
(e) upon a finding by the director that an agency has failed to take
affirmative measures to implement the remedial plan and to follow any of
the remedial actions set forth by the director, and in the absence of
any objective progress towards the agency's goals, require some or all
of the agency's procurement, for a specified period of time, be placed
under the direction and control of another agency or agencies.
§ 8. Section 316-a of the executive law, as added by chapter 175 of
the laws of 2010, is amended to read as follows:
§ 316-a. Prohibitions in contracts; violations. Every contracting
agency shall include a provision in its state contracts expressly
providing that any contractor who willfully and intentionally fails to
comply with the minority and women-owned participation requirements of
this article as set forth in such state contract shall be liable to the
contracting agency for liquidated or other appropriate damages and shall
provide for other appropriate remedies on account of such breach. A
contracting agency that elects to proceed against a contractor for
breach of contract as provided in this section shall be precluded from
seeking enforcement pursuant to section three hundred sixteen of this
article; provided however, that the contracting agency shall include a
summary of all enforcement actions undertaken pursuant to this section
in its annual report submitted pursuant to subdivision three of section
three hundred fifteen of this article.
§ 8-a. Subdivision 1 of section 143 of the state finance law, as
amended by chapter 43 of the laws of 1969, is amended to read as
follows:
1. Notwithstanding any inconsistent provision of any general or
special law, the board, division, department, bureau, agency, officer or
commission of the state charged with the duty of preparing plans and
specifications for and awarding or entering into contracts for the
performance of public work [shall] MAY require the payment of a fixed
sum of money, not exceeding one hundred dollars, for each copy of such
plans and specifications, by persons or corporations desiring a copy
thereof. Any person or corporation desiring a copy of such plans and
specifications and making the deposit required by this section shall be
furnished with one copy of the plans and specifications. NOTWITHSTAND-
ING THE FOREGOING, WHERE PAYMENT IS REQUIRED IT SHALL BE WAIVED UPON
REQUEST BY MINORITY- AND WOMEN-OWNED BUSINESS ENTERPRISES CERTIFIED
PURSUANT TO ARTICLE FIFTEEN-A OF THE EXECUTIVE LAW OR BY SERVICE-DISA-
BLED VETERAN-OWNED BUSINESS ENTERPRISES CERTIFIED PURSUANT TO ARTICLE
SEVENTEEN-B OF THE EXECUTIVE LAW. SUCH PAYMENT MAY ALSO BE WAIVED WHEN
SUCH PLANS AND SPECIFICATIONS ARE MADE AVAILABLE AND OBTAINED ELECTRON-
ICALLY OR IN ANY NON-PAPER FORM FROM THE BOARD, DIVISION, DEPARTMENT,
BUREAU, AGENCY, OFFICER OR COMMISSION OF THE STATE.
§ 9. Subdivision 6 of section 163 of the state finance law, as amended
by chapter 569 of the laws of 2015, is amended and a new subdivision 6-d
is added to read as follows:
6. Discretionary buying thresholds. Pursuant to guidelines established
by the state procurement council: the commissioner may purchase services
and commodities in an amount not exceeding eighty-five thousand dollars
without a formal competitive process; state agencies may purchase
services and commodities in an amount not exceeding fifty thousand
dollars without a formal competitive process; and state agencies may
purchase commodities or services from small business concerns or those
certified pursuant to articles fifteen-A and seventeen-B of the execu-
tive law, or commodities or technology that are recycled or remanufac-
tured[, or commodities that are food, including milk and milk products,
S. 6575 17
grown, produced or harvested in New York state] in an amount not exceed-
ing [two] FIVE hundred thousand dollars WITHOUT A FORMAL COMPETITIVE
PROCESS AND FOR COMMODITIES THAT ARE FOOD, INCLUDING MILK AND MILK
PRODUCTS, GROWN, PRODUCED OR HARVESTED IN NEW YORK STATE IN AN AMOUNT
NOT TO EXCEED TWO HUNDRED THOUSAND DOLLARS, without a formal competitive
process.
6-D. PURSUANT TO THE AUTHORITY PROVIDED IN SUBDIVISION SIX OF THIS
SECTION, STATE AGENCIES SHALL REPORT ANNUALLY ON A FISCAL YEAR BASIS BY
JULY FIRST OF THE ENSUING YEAR TO THE DIRECTOR OF THE DIVISION OF MINOR-
ITY AND WOMEN-OWNED BUSINESS DEVELOPMENT THE TOTAL NUMBER AND TOTAL
VALUE OF CONTRACTS AWARDED TO BUSINESSES CERTIFIED PURSUANT TO ARTICLE
FIFTEEN-A OF THE EXECUTIVE LAW, AND WITH RESPECT TO CONTRACTS AWARDED TO
BUSINESSES CERTIFIED PURSUANT TO ARTICLE SEVENTEEN-B OF THE EXECUTIVE
LAW SUCH INFORMATION SHALL BE REPORTED TO THE DIVISION OF SERVICE-DISA-
BLED VETERAN-OWNED BUSINESS ENTERPRISES FOR INCLUSION IN THEIR RESPEC-
TIVE ANNUAL REPORTS.
§ 10. Subparagraph (i) of paragraph (b) of subdivision 3 and paragraph
(a) of subdivision 8 of section 2879 of the public authorities law,
subparagraph (i) of paragraph (b) of subdivision 3 as amended by chapter
174 of the laws of 2010 and paragraph (a) of subdivision 8 as amended by
chapter 844 of the laws of 1992, are amended to read as follows:
(i) for the selection of such contractors on a competitive basis, and
provisions relating to the circumstances under which the board may by
resolution waive competition, including, notwithstanding any other
provision of law requiring competition, the purchase of goods or
services from small business concerns [or] those certified as minority
or women-owned business enterprises, or goods or technology that are
recycled or remanufactured, in an amount not to exceed [two] FIVE
hundred thousand dollars without a formal competitive process;
(a) Each corporation shall annually submit its report on procurement
contracts to the division of the budget and copies thereof to the
department of audit and control, the department of economic development,
the senate finance committee and the assembly ways and means committee.
SUCH REPORT SHALL INCLUDE THE TOTAL NUMBER AND TOTAL DOLLAR VALUE OF
CONTRACTS AWARDED TO CERTIFIED MINORITY AND WOMEN-OWNED BUSINESS ENTER-
PRISES PURSUANT TO SUBPARAGRAPH (I) OF PARAGRAPH (B) OF SUBDIVISION
THREE OF THIS SECTION.
§ 11. Paragraph (a) of subdivision 3 of section 139-j of the state
finance law is amended by adding two new subparagraphs 10 and 11 to read
as follows:
(10) COMPLAINTS BY MINORITY-OWNED BUSINESS ENTERPRISES OR WOMEN-OWNED
BUSINESS ENTERPRISES, CERTIFIED AS SUCH BY THE DIVISION OF MINORITY AND
WOMEN'S BUSINESS DEVELOPMENT, TO THE MINORITY AND WOMEN-OWNED BUSINESS
ENTERPRISE STATEWIDE ADVOCATE CONCERNING THE PROCURING GOVERNMENTAL
ENTITY'S FAILURE TO COMPLY WITH THE REQUIREMENTS OF SECTION THREE
HUNDRED FIFTEEN OF THE EXECUTIVE LAW;
(11) COMMUNICATIONS BETWEEN THE MINORITY AND WOMEN-OWNED BUSINESS
ENTERPRISE STATEWIDE ADVOCATE AND THE PROCURING GOVERNMENTAL ENTITY IN
FURTHERANCE OF AN INVESTIGATION OF THE MINORITY AND WOMEN-OWNED BUSINESS
ENTERPRISE STATEWIDE ADVOCATE PURSUANT TO SECTION THREE HUNDRED TWELVE-A
OF THE EXECUTIVE LAW.
§ 12. Subdivision 6 of section 8 of the public buildings law, as
amended by chapter 840 of the laws of 1980, is amended to read as
follows:
6. All contracts for amounts in excess of five thousand dollars for
the work of construction, reconstruction, alteration, repair or improve-
S. 6575 18
ment of any state building, whether constructed or to be constructed
must be offered for public bidding and may be awarded to the lowest
responsible and reliable bidder, as will best promote the public inter-
est, by the said department or other agency with the approval of the
comptroller for the whole or any part of the work to be performed, and,
in the discretion of the said department or other agency, such contracts
may be sublet; provided, however, that no such contract shall be awarded
to a bidder other than the lowest responsible and reliable bidder,
EXCEPT FOR CERTAIN CONTRACTS AWARDED TO MINORITY OR WOMEN-OWNED BUSINESS
ENTERPRISES AS PROVIDED HEREIN, without the written approval of the
comptroller. When a proposal consists of unit prices of items specified
to be performed, EXCEPT FOR CERTAIN CONTRACTS AWARDED TO MINORITY OR
WOMEN-OWNED BUSINESS ENTERPRISES AS PROVIDED HEREIN, the lowest bid
shall be deemed to be that which specifically states the lowest gross
sum for which the entire work will be performed, including all the items
specified in the proposal thereof. The lowest bid shall be determined by
the commissioner of general services on the basis of the gross sum for
which the entire work will be performed, arrived at by a correct compu-
tation of all the items specified in the proposal therefor at the unit
prices contained in the bid. PROVIDED, HOWEVER, THAT WHERE A RESPONSI-
BLE AND RELIABLE BIDDER CERTIFIED AS A MINORITY-OWNED BUSINESS ENTER-
PRISE OR WOMEN-OWNED BUSINESS ENTERPRISE PURSUANT TO ARTICLE FIFTEEN-A
OF THE EXECUTIVE LAW SUBMITS A BID OF ONE MILLION FOUR HUNDRED THOUSAND
DOLLARS OR LESS, AS ADJUSTED ANNUALLY FOR INFLATION BEGINNING JANUARY
FIRST, TWO THOUSAND TWENTY, THE BID OF THE MINORITY OR WOMEN-OWNED BUSI-
NESS ENTERPRISE SHALL BE DEEMED THE LOWEST BID UNLESS IT EXCEEDS THE BID
OF THE LOWEST BIDDER BY MORE THAN TEN PERCENT.
§ 13. The opening paragraph of subdivision (h) of section 121 of chap-
ter 261 of the laws of 1988, amending the state finance law and other
laws relating to the New York state infrastructure trust fund, as
amended by section 1 of part OOO of chapter 59 of the laws of 2018, is
amended to read as follows:
The provisions of sections sixty-two through sixty-six of this act
shall expire AND BE DEEMED REPEALED on December thirty-first, two thou-
sand [nineteen] TWENTY-FOUR, except that:
§ 14. The executive law is amended by adding a new article 28 to read
as follows:
ARTICLE 28
WORKFORCE DIVERSITY PROGRAM
SECTION 821. DEFINITIONS.
822. WORKFORCE PARTICIPATION GOALS.
823. REPORTING.
824. ENFORCEMENT.
825. POWERS AND RESPONSIBILITIES OF THE DIVISION.
826. SEVERABILITY.
§ 821. DEFINITIONS. AS USED IN THIS ARTICLE, THE FOLLOWING TERMS SHALL
HAVE THE FOLLOWING MEANINGS:
1. "CONTRACTOR" SHALL MEAN AN INDIVIDUAL, A BUSINESS ENTERPRISE,
INCLUDING A SOLE PROPRIETORSHIP, A PARTNERSHIP, A CORPORATION, A NOT-
FOR-PROFIT CORPORATION, OR ANY OTHER PARTY TO A STATE CONTRACT, OR A
BIDDER IN CONJUNCTION WITH THE AWARD OF A STATE CONTRACT OR A PROPOSED
PARTY TO A STATE CONTRACT.
2. "DEPARTMENT" SHALL MEAN THE DEPARTMENT OF LABOR.
3. "DIRECTOR" SHALL MEAN THE DIRECTOR OF THE DIVISION OF MINORITY AND
WOMEN'S BUSINESS DEVELOPMENT.
S. 6575 19
4. "DISPARITY STUDY" SHALL MEAN THE MOST RECENT STUDY OF DISPARITIES
BETWEEN THE UTILIZATION OF MINORITY GROUP MEMBERS AND WOMEN IN THE
PERFORMANCE OF STATE CONTRACTS AND THE AVAILABILITY OF MINORITY GROUP
MEMBERS AND WOMEN TO PERFORM SUCH WORK BY THE DIRECTOR PURSUANT TO ARTI-
CLE FIFTEEN-A OF THIS CHAPTER.
5. "DIVISION" SHALL MEAN THE DEPARTMENT OF ECONOMIC DEVELOPMENT'S
DIVISION OF MINORITY AND WOMEN'S BUSINESS DEVELOPMENT.
6. "MINORITY GROUP MEMBER" SHALL MEAN A UNITED STATES CITIZEN OR
PERMANENT RESIDENT ALIEN WHO IS AND CAN DEMONSTRATE MEMBERSHIP IN ONE OF
THE FOLLOWING GROUPS:
(A) BLACK PERSONS HAVING ORIGINS IN ANY OF THE BLACK AFRICAN RACIAL
GROUPS;
(B) HISPANIC/LATINO PERSONS OF MEXICAN, PUERTO RICAN, DOMINICAN,
CUBAN, CENTRAL OR SOUTH AMERICAN OF EITHER INDIAN OR HISPANIC ORIGIN,
REGARDLESS OF RACE;
(C) NATIVE AMERICAN OR ALASKAN NATIVE PERSONS HAVING ORIGINS IN ANY OF
THE ORIGINAL PEOPLES OF NORTH AMERICA;
(D) ASIAN AND PACIFIC ISLANDER PERSONS HAVING ORIGINS IN ANY OF THE
FAR EAST COUNTRIES, SOUTH EAST ASIA, THE INDIAN SUBCONTINENT OR THE
PACIFIC ISLANDS.
7. "STATE AGENCY" SHALL MEAN (A)(I) ANY STATE DEPARTMENT, OR (II) ANY
DIVISION, BOARD, COMMISSION OR BUREAU OF ANY STATE DEPARTMENT, OR (III)
THE STATE UNIVERSITY OF NEW YORK AND THE CITY UNIVERSITY OF NEW YORK,
INCLUDING ALL THEIR CONSTITUENT UNITS EXCEPT COMMUNITY COLLEGES AND THE
INDEPENDENT INSTITUTIONS OPERATING STATUTORY OR CONTRACT COLLEGES ON
BEHALF OF THE STATE, OR (IV) A BOARD, A MAJORITY OF WHOSE MEMBERS ARE
APPOINTED BY THE GOVERNOR OR WHO SERVE BY VIRTUE OF BEING STATE OFFICERS
OR EMPLOYEES AS DEFINED IN SUBPARAGRAPH (I), (II) OR (III) OF PARAGRAPH
(I) OF SUBDIVISION ONE OF SECTION SEVENTY-THREE OF THE PUBLIC OFFICERS
LAW.
(B) A "STATE AUTHORITY," AS DEFINED IN SUBDIVISION ONE OF SECTION TWO
OF THE PUBLIC AUTHORITIES LAW, AND THE FOLLOWING:
ALBANY COUNTY AIRPORT AUTHORITY;
ALBANY PORT DISTRICT COMMISSION;
ALFRED, ALMOND, HORNELLSVILLE SEWER AUTHORITY;
BATTERY PARK CITY AUTHORITY;
CAYUGA COUNTY WATER AND SEWER AUTHORITY;
(NELSON A. ROCKEFELLER) EMPIRE STATE PLAZA PERFORMING ARTS CENTER
CORPORATION;
INDUSTRIAL EXHIBIT AUTHORITY;
LIVINGSTON COUNTY WATER AND SEWER AUTHORITY;
LONG ISLAND POWER AUTHORITY;
LONG ISLAND RAIL ROAD;
LONG ISLAND MARKET AUTHORITY;
MANHATTAN AND BRONX SURFACE TRANSIT OPERATING AUTHORITY;
METRO-NORTH COMMUTER RAILROAD;
METROPOLITAN SUBURBAN BUS AUTHORITY;
METROPOLITAN TRANSPORTATION AUTHORITY;
NATURAL HERITAGE TRUST;
NEW YORK CITY TRANSIT AUTHORITY;
NEW YORK CONVENTION CENTER OPERATING CORPORATION;
NEW YORK STATE BRIDGE AUTHORITY;
NEW YORK STATE OLYMPIC REGIONAL DEVELOPMENT AUTHORITY;
NEW YORK STATE THRUWAY AUTHORITY;
NIAGARA FALLS PUBLIC WATER AUTHORITY;
NIAGARA FALLS WATER BOARD;
S. 6575 20
PORT OF OSWEGO AUTHORITY;
POWER AUTHORITY OF THE STATE OF NEW YORK;
ROOSEVELT ISLAND OPERATING CORPORATION;
SCHENECTADY METROPLEX DEVELOPMENT AUTHORITY;
STATE INSURANCE FUND;
STATEN ISLAND RAPID TRANSIT OPERATING AUTHORITY;
STATE UNIVERSITY CONSTRUCTION FUND;
SYRACUSE REGIONAL AIRPORT AUTHORITY;
TRIBOROUGH BRIDGE AND TUNNEL AUTHORITY;
UPPER MOHAWK VALLEY REGIONAL WATER BOARD;
UPPER MOHAWK VALLEY REGIONAL WATER FINANCE AUTHORITY;
UPPER MOHAWK VALLEY MEMORIAL AUDITORIUM AUTHORITY;
URBAN DEVELOPMENT CORPORATION AND ITS SUBSIDIARY CORPORATIONS.
(C) THE FOLLOWING ONLY TO THE EXTENT OF STATE CONTRACTS ENTERED INTO
FOR ITS OWN ACCOUNT OR FOR THE BENEFIT OF A STATE AGENCY AS DEFINED IN
PARAGRAPH (A) OR (B) OF THIS SUBDIVISION:
DORMITORY AUTHORITY OF THE STATE OF NEW YORK;
FACILITIES DEVELOPMENT CORPORATION;
NEW YORK STATE ENERGY RESEARCH AND DEVELOPMENT AUTHORITY;
NEW YORK STATE SCIENCE AND TECHNOLOGY FOUNDATION.
8. "STATE CONTRACT" SHALL MEAN: (A) A WRITTEN AGREEMENT IN EXCESS OF
ONE HUNDRED THOUSAND DOLLARS WHEREBY A STATE AGENCY IS COMMITTED TO
EXPEND OR DOES EXPEND FUNDS FOR THE ACQUISITION, CONSTRUCTION, DEMOLI-
TION, REPLACEMENT, MAJOR REPAIR OR RENOVATION OF REAL PROPERTY AND
IMPROVEMENTS THEREON; AND (B) A WRITTEN AGREEMENT IN EXCESS OF ONE
HUNDRED THOUSAND DOLLARS WHEREBY THE OWNER OF A STATE ASSISTED HOUSING
PROJECT IS COMMITTED TO EXPEND OR DOES EXPEND FUNDS FOR THE ACQUISITION,
CONSTRUCTION, DEMOLITION, REPLACEMENT, MAJOR REPAIR OR RENOVATION OF
REAL PROPERTY AND IMPROVEMENTS THEREON FOR SUCH PROJECT.
9. "SUBCONTRACTOR" SHALL MEAN ANY INDIVIDUAL OR BUSINESS ENTERPRISE
THAT PROVIDES GOODS OR SERVICES TO ANY INDIVIDUAL OR BUSINESS FOR USE IN
THE PERFORMANCE OF A STATE CONTRACT, WHETHER OR NOT SUCH GOODS OR
SERVICES ARE PROVIDED TO A PARTY TO A STATE CONTRACT.
§ 822. WORKFORCE PARTICIPATION GOALS. 1. THE DIRECTOR, IN CONSULTA-
TION WITH THE DEPARTMENT, SHALL DEVELOP ASPIRATIONAL GOALS FOR THE
UTILIZATION OF MINORITY GROUP MEMBERS AND WOMEN IN EACH CONSTRUCTION
TRADE, PROFESSION, AND OCCUPATION.
(A) ASPIRATIONAL GOALS FOR THE UTILIZATION OF MINORITY GROUP MEMBERS
AND WOMEN MUST SET FORTH THE EXPECTED PARTICIPATION OF MINORITY GROUP
MEMBERS AND WOMEN IN EACH CONSTRUCTION TRADE, PROFESSION, AND OCCUPATION
AND SHALL BE EXPRESSED AS A PERCENTAGE OF THE TOTAL HOURS OF WORK TO BE
PERFORMED BY EACH TRADE, PROFESSION, AND OCCUPATION BASED ON THE AVAIL-
ABILITY OF MINORITY GROUP MEMBERS AND WOMEN WITHIN EACH CONSTRUCTION
TRADE, PROFESSION, AND OCCUPATION.
(I) THE ASPIRATIONAL GOALS SHALL SET FORTH SEPARATE LEVELS OF EXPECTED
PARTICIPATION BY MEN AND WOMEN FOR EACH MINORITY GROUP, AND FOR CAUCA-
SIAN WOMEN, IN EACH CONSTRUCTION TRADE, PROFESSION, AND OCCUPATION.
(II) THE DIRECTOR MAY ESTABLISH ASPIRATIONAL GOALS FOR THE EXPECTED
PARTICIPATION OF MINORITY GROUP MEMBERS AND WOMEN FOR MUNICIPALITIES
WHERE THE DIRECTOR DEEMS FEASIBLE AND APPROPRIATE.
(III) THE DIRECTOR SHALL, IN ESTABLISHING THE ASPIRATIONAL GOALS,
CONSIDER THE FINDINGS OF THE MOST RECENT DISPARITY STUDY AND ANY RELE-
VANT DATA PUBLISHED BY THE UNITED STATES CENSUS BUREAU.
(B) THE DIRECTOR SHALL UPDATE THE ASPIRATIONAL GOALS ON A PERIODIC
BASIS, NO LESS THAN BIANNUALLY.
S. 6575 21
2. STATE AGENCIES SHALL, FOR EACH INVITATION FOR BIDS, REQUEST FOR
PROPOSALS, OR OTHER SOLICITATION THAT WILL RESULT IN THE AWARD OF A
STATE CONTRACT, SET FORTH THE EXPECTED DEGREE OF WORKFORCE PARTICIPATION
BY MINORITY GROUP MEMBERS AND WOMEN.
(A) EACH WORKFORCE PARTICIPATION GOAL ESTABLISHED BY A STATE AGENCY
SHALL SET FORTH THE EXPECTED LEVEL OF PARTICIPATION BY MINORITY GROUP
MEMBERS AND WOMEN IN THE PERFORMANCE OF EACH TRADE, PROFESSION, AND
OCCUPATION REQUIRED IN THE PERFORMANCE OF THE CONTRACT.
(B) GOALS FOR THE PARTICIPATION OF MINORITY GROUP MEMBERS AND WOMEN
SHALL SET FORTH SEPARATE GOALS FOR EACH OF THE FOLLOWING GROUPS IN EACH
CONSTRUCTION TRADE, PROFESSION, AND OCCUPATION:
(I) BLACK MEN;
(II) BLACK WOMEN;
(III) HISPANIC MEN;
(IV) HISPANIC WOMEN;
(V) NATIVE AMERICAN MEN;
(VI) NATIVE AMERICAN WOMEN;
(VII) ASIAN MEN;
(VIII) ASIAN WOMEN;
(IX) CAUCASIAN WOMEN.
(C) IN ESTABLISHING WORKFORCE PARTICIPATION GOALS, STATE AGENCIES
SHALL CONSIDER FACTORS INCLUDING, BUT NOT LIMITED TO:
(I) THE FINDINGS OF THE MOST RECENT DISPARITY STUDY;
(II) ANY RELEVANT DATA PUBLISHED BY THE UNITED STATES CENSUS BUREAU;
AND
(III) IF APPLICABLE, ANY ASPIRATIONAL GOAL ESTABLISHED BY THE DIVI-
SION.
(D) IN ANY CASE, WHERE A STATE AGENCY ESTABLISHES A WORKFORCE PARTIC-
IPATION GOAL ON AN INVITATION FOR BIDS, REQUEST FOR PROPOSALS, OR OTHER
SOLICITATION THAT WILL RESULT IN THE AWARD OF A STATE CONTRACT FOR
CONSTRUCTION THAT DEVIATES FROM THE ASPIRATIONAL GOAL FOR WORK OR
SERVICE IN THE COUNTY OR MUNICIPALITY IN WHICH THE WORK OR SERVICE WILL
BE PERFORMED, THE STATE AGENCY SHALL DOCUMENT NUMERICAL EVIDENCE DEMON-
STRATING THAT THE APPLICATION OF THE ASPIRATIONAL GOAL WOULD NOT BE
PRACTICAL, FEASIBLE, OR APPROPRIATE.
3. EVERY CONTRACTOR RESPONDING TO AN INVITATION FOR BIDS, REQUEST FOR
PROPOSALS, OR OTHER SOLICITATION THAT WILL RESULT IN THE AWARD OF A
STATE CONTRACT SUBJECT TO WORKFORCE PARTICIPATION GOALS PURSUANT TO THIS
SECTION SHALL AGREE TO MAKE A GOOD FAITH EFFORT TO ACHIEVE SUCH WORK-
FORCE PARTICIPATION GOAL OR REQUEST A WAIVER OF SUCH GOAL.
(A) A CONTRACTOR THAT CERTIFIES THAT IT WILL MAKE A GOOD FAITH EFFORT
TO ACHIEVE A WORKFORCE PARTICIPATION GOAL SHALL PROVIDE WITH ITS
RESPONSE TO THE APPLICABLE INVITATION FOR BIDS, REQUEST FOR PROPOSALS,
OR OTHER SOLICITATION:
(I) A CERTIFICATION STATING THAT THE CONTRACTOR WILL MAKE A GOOD FAITH
EFFORT TO ACHIEVE THE APPLICABLE WORKFORCE PARTICIPATION GOAL AND WILL
CONTRACTUALLY REQUIRE ANY SUBCONTRACTORS TO THE CONTRACTOR TO MAKE A
GOOD FAITH EFFORT TO ACHIEVE THE APPLICABLE WORKFORCE PARTICIPATION GOAL
IN ANY SUBCONTRACTED WORK;
(II) THE LEVEL OF ANTICIPATED PARTICIPATION BY MINORITY GROUP MEMBERS
AND WOMEN AS EMPLOYEES TO THE CONTRACTOR, OR, IF THE STATE AGENCY HAS
SPECIFICALLY INDICATED THAT SUCH DOCUMENTATION IS NOT REQUIRED AS PART
OF THE RESPONSE TO THE INVITATION FOR BIDS, REQUEST FOR PROPOSALS, OR
OTHER SOLICITATION, A DATE CERTAIN FOR THE SUBMISSION OF SUCH DOCUMENTA-
TION AFTER THE AWARD OF THE STATE CONTRACT;
S. 6575 22
(III) A LIST OF ALL SUBCONTRACTORS ANTICIPATED TO PERFORM WORK ON THE
STATE CONTRACT AND THE LEVEL OF ANTICIPATED PARTICIPATION BY MINORITY
GROUP MEMBERS AND WOMEN AS EMPLOYEES TO EACH SUBCONTRACTOR, OR, IF THE
STATE AGENCY HAS SPECIFICALLY INDICATED THAT SUCH DOCUMENTATION IS NOT
REQUIRED AS PART OF THE RESPONSE TO THE INVITATION FOR BIDS, REQUEST FOR
PROPOSALS, OR OTHER SOLICITATION, A DATE CERTAIN FOR THE SUBMISSION OF
SUCH DOCUMENTATION AFTER THE AWARD OF THE STATE CONTRACT; AND
(IV) SUCH OTHER INFORMATION AS THE CONTRACTING STATE AGENCY SHALL
REQUIRE.
(B) A CONTRACTOR THAT REQUESTS A WAIVER OF A WORKFORCE PARTICIPATION
GOAL SHALL PROVIDE WITH ITS RESPONSE TO THE APPLICABLE INVITATION FOR
BIDS, REQUEST FOR PROPOSALS, OR OTHER SOLICITATION:
(I) NUMERICAL EVIDENCE SETTING FORTH WHY THE ACHIEVEMENT OF THE WORK-
FORCE PARTICIPATION GOAL IS NOT PRACTICAL, FEASIBLE, OR APPROPRIATE IN
LIGHT OF THE CONSTRUCTION TRADES, PROFESSIONS, AND OCCUPATIONS REQUIRED
TO PERFORM THE WORK OF THE STATE CONTRACT;
(II) DOCUMENTATION OF THE CONTRACTOR'S EFFORTS, AND ANY EFFORTS BY
SUBCONTRACTORS TO THE CONTRACTOR, TO PROMOTE THE INCLUSION OF MINORITY
GROUP MEMBERS AND WOMEN IN CONSTRUCTION TRADES, PROFESSIONS, AND OCCUPA-
TIONS REQUIRED IN THE PERFORMANCE OF THE STATE CONTRACT;
(III) THE LEVEL OF ANTICIPATED PARTICIPATION BY MINORITY GROUP MEMBERS
AND WOMEN IN EACH OF THE CONSTRUCTION TRADES, PROFESSIONS, AND OCCUPA-
TIONS REQUIRED IN THE PERFORMANCE OF THE WORK OF THE STATE CONTRACT;
(IV) A LIST OF ALL SUBCONTRACTORS ANTICIPATED TO PERFORM WORK ON THE
STATE CONTRACT AND THE LEVEL OF ANTICIPATED PARTICIPATION BY MINORITY
GROUP MEMBERS AND WOMEN AS EMPLOYEES TO EACH SUBCONTRACTOR; AND
(V) ANY OTHER RELEVANT INFORMATION EVIDENCING THAT THE CONTRACTOR'S
ACHIEVEMENT OF THE WORKFORCE PARTICIPATION GOAL WOULD NOT BE PRACTICAL,
FEASIBLE, OR APPROPRIATE.
4. A STATE AGENCY MAY NOT AWARD A STATE CONTRACT TO A CONTRACTOR
UNLESS THE CONTRACTOR HAS (I) CERTIFIED THAT IT WILL MAKE A GOOD FAITH
EFFORT TO ACHIEVE THE APPLICABLE WORKFORCE PARTICIPATION GOAL AND
PROVIDED DOCUMENTATION OF THE WORKFORCE ANTICIPATED TO PERFORM THE WORK
OF THE STATE CONTRACT OR (II) SUBMITTED A WAIVER REQUEST WHICH THE STATE
AGENCY DEEMS TO REFLECT THE MAXIMUM FEASIBLE PARTICIPATION OF MINORITY
GROUP MEMBERS AND WOMEN IN EACH OF THE CONSTRUCTION TRADES, PROFESSIONS,
AND OCCUPATIONS REQUIRED IN PERFORMANCE OF THE WORK OF THE STATE
CONTRACT.
(A) IN THE EVENT THAT A CONTRACTOR SUBMITS A CERTIFICATION OR WAIVER
REQUEST THAT IS ACCEPTED BY THE STATE AGENCY, THE STATE AGENCY SHALL
ESTABLISH IN THE STATE CONTRACT THE EXPECTED LEVEL OF PARTICIPATION BY
MINORITY GROUP MEMBERS AND WOMEN IN EACH OF THE CONSTRUCTION TRADES,
PROFESSIONS, AND OCCUPATIONS REQUIRED IN PERFORMANCE OF THE WORK OF THE
STATE CONTRACT, REQUIRE THAT THE CONTRACTOR MAKE GOOD FAITH EFFORTS TO
ACHIEVE SUCH WORKFORCE PARTICIPATION GOALS, REQUIRE THAT THE CONTRACTOR
REQUIRE ANY SUBCONTRACTORS TO MAKE A GOOD FAITH EFFORT TO ACHIEVE THE
APPLICABLE WORKFORCE PARTICIPATION GOAL IN ANY SUBCONTRACTED WORK.
(B) IN THE EVENT THAT A CONTRACTOR FAILS TO SUBMIT A CERTIFICATION,
WAIVER REQUEST, OR ANY OTHER INFORMATION REQUIRED BY THE STATE AGENCY,
OR THE STATE AGENCY DETERMINES THAT A CONTRACTOR'S WAIVER REQUEST DOES
NOT DEMONSTRATE THAT THE APPLICABLE WORKFORCE PARTICIPATION GOAL IS
IMPRACTICAL, UNFEASIBLE, OR INAPPROPRIATE, THE STATE AGENCY SHALL NOTIFY
THE CONTRACTOR OF THE DEFICIENCY IN WRITING AND PROVIDE THE CONTRACTOR
FIVE BUSINESS DAYS TO REMEDY THE NOTICED DEFICIENCY. A STATE AGENCY MAY
REJECT ANY BID OR PROPOSAL OF A CONTRACTOR THAT FAILS TO TIMELY RESPOND
S. 6575 23
TO A NOTICE OF DEFICIENCY OR TO PROVIDE DOCUMENTATION REMEDYING THE
DEFICIENCY TO THE SATISFACTION OF THE STATE AGENCY.
(C) WHERE FAILURE TO REMEDY ANY NOTIFIED DEFICIENCY IN THE WORKFORCE
UTILIZATION PLAN IS A GROUND FOR DISQUALIFICATION, THAT ISSUE AND ALL
OTHER GROUNDS FOR DISQUALIFICATION SHALL BE STATED IN WRITING BY THE
CONTRACTING STATE AGENCY. THE DIRECTOR SHALL ESTABLISH VIA REGULATION,
RULES FOR STATE CONTRACTING AGENCIES AIMED AT THE MEASUREMENT, REDUCTION
AND ELIMINATION OF ERRONEOUS BUSINESS DISQUALIFICATIONS INCLUDING A
PROCESS AFFORDING A CONTRACTOR NOTICE AND AN OPPORTUNITY TO BE HEARD
RELATED TO SUCH DISQUALIFICATIONS.
§ 823. REPORTING. 1. STATE CONTRACTS SHALL REQUIRE CONTRACTORS TO
SUBMIT, AND TO REQUIRE ANY SUBCONTRACTORS TO SUBMIT, TO THE CONTRACTING
STATE AGENCY REPORTS DOCUMENTING THE HOURS WORKED BY EMPLOYEES OF THE
CONTRACTOR AND ANY SUBCONTRACTORS IN THE PERFORMANCE OF THE WORK OF THE
STATE CONTRACT. SUCH REPORTS SHALL BE SUBMITTED NO LESS FREQUENTLY THAN
MONTHLY FOR STATE CONTRACTS FOR CONSTRUCTION. SUCH REPORTS SHALL IDEN-
TIFY IN THE AGGREGATE THE RACE, ETHNICITY, GENDER, AND TRADE, PROFES-
SION, OR OCCUPATION OF EACH EMPLOYEE PERFORMING WORK ON A STATE
CONTRACT.
2. STATE AGENCIES SHALL SUBMIT PERIODIC REPORTS TO THE DIRECTOR, OR
THE DESIGNEE OF THE DIRECTOR, CONCERNING THE PARTICIPATION OF MINORITY
GROUP MEMBERS AND WOMEN IN STATE CONTRACTS LET BY SUCH AGENCIES AND SUCH
STATE AGENCIES' COMPLIANCE WITH THIS ARTICLE. SUCH REPORTS SHALL BE
SUBMITTED AT SUCH TIME, AND INCLUDE SUCH INFORMATION, AS THE DIRECTOR
SHALL REQUIRE IN REGULATIONS. STATE AGENCIES SHALL MAKE AVAILABLE THEIR
FACILITIES, BOOKS, AND RECORDS FOR INSPECTION, UPON REASONABLE NOTICE,
BY THE DIRECTOR OR THE DIRECTOR'S DESIGNEE.
3. THE DEPARTMENT SHALL PROVIDE SUCH ASSISTANCE AS THE DIRECTOR SHALL
REQUIRE IN CARRYING OUT THE REQUIREMENTS OF THIS SECTION.
§ 824. ENFORCEMENT. 1. WHERE IT APPEARS THAT A CONTRACTOR CANNOT,
AFTER A GOOD FAITH EFFORT, MEET THE WORKFORCE PARTICIPATION GOALS SET
FORTH IN A PARTICULAR STATE CONTRACT, A CONTRACTOR MAY FILE A WRITTEN
APPLICATION WITH THE CONTRACTING STATE AGENCY REQUESTING A PARTIAL OR
TOTAL WAIVER OF SUCH REQUIREMENTS. SUCH REQUEST SHALL SET FORTH THE
REASONS FOR SUCH CONTRACTOR'S INABILITY TO MEET THE WORKFORCE PARTIC-
IPATION GOAL, SPECIFICALLY DESCRIBE THE REASONS FOR ANY DEVIATIONS FROM
THE ANTICIPATED WORKFORCE PARTICIPATION GOAL SET FORTH IN THE CONTRAC-
TOR'S BID OR PROPOSAL LEADING TO THE AWARD OF THE STATE CONTRACT, AND
DESCRIBE THE EFFORTS BY THE CONTRACTOR AND ANY SUBCONTRACTORS TO ACHIEVE
THE MAXIMUM FEASIBLE PARTICIPATION OF MINORITY GROUP MEMBERS AND WOMEN
IN THE PERFORMANCE OF THE WORK OF THE STATE CONTRACT. WHERE THE CONTRAC-
TOR'S INABILITY TO ACHIEVE THE WORKFORCE PARTICIPATION GOAL ON A STATE
CONTRACT IS ATTRIBUTABLE TO THE FAILURE OF ONE OR MORE SUBCONTRACTORS TO
MAKE GOOD FAITH EFFORTS TO ACHIEVE THE MAXIMUM FEASIBLE PARTICIPATION OF
MINORITY GROUP MEMBERS AND WOMEN IN THE PERFORMANCE OF THE WORK OF THE
STATE CONTRACT, THE CONTRACTOR SHALL IDENTIFY SUCH SUBCONTRACTOR OR
SUBCONTRACTORS TO THE CONTRACTING STATE AGENCY.
2. A STATE AGENCY SHALL GRANT A REQUEST FOR A WAIVER OF WORKFORCE
PARTICIPATION GOALS ON A STATE CONTRACT WHERE:
(A) THE CONTRACTOR DEMONSTRATES THAT THE CONTRACTOR AND ITS SUBCON-
TRACTORS MADE GOOD FAITH EFFORTS TO ACHIEVE THE WORKFORCE PARTICIPATION
GOAL ON THE STATE CONTRACT, AND THAT INSUFFICIENT MINORITY GROUP MEMBERS
OR WOMEN WERE AVAILABLE IN THE CONSTRUCTION TRADES, PROFESSIONS, AND
OCCUPATIONS REQUIRED TO PERFORM THE WORK OF THE STATE CONTRACT; OR
(B) THE CONTRACTOR CONTRACTUALLY REQUIRED EACH OF ITS SUBCONTRACTORS
TO MAKE A GOOD FAITH EFFORT TO ACHIEVE THE MAXIMUM FEASIBLE PARTIC-
S. 6575 24
IPATION OF MINORITY GROUP MEMBERS AND WOMEN IN THE PERFORMANCE OF THE
SUBCONTRACTED WORK, PERIODICALLY MONITORED SUCH SUBCONTRACTORS' DEPLOY-
MENT OF MINORITY GROUP MEMBERS AND WOMEN IN THE PERFORMANCE OF THE
SUBCONTRACTED WORK, PROVIDED NOTICE TO SUCH SUBCONTRACTORS OF ANY DEFI-
CIENCIES IN THEIR DEPLOYMENT OF MINORITY GROUP MEMBERS AND WOMEN IN THE
PERFORMANCE OF SUCH SUBCONTRACTED WORK, AND COULD NOT ACHIEVE THE WORK-
FORCE PARTICIPATION GOAL FOR ONE OR MORE CONSTRUCTION TRADES,
PROFESSIONS, OR OCCUPATIONS WITHOUT THE GOOD FAITH EFFORTS OF SUCH
SUBCONTRACTORS.
§ 825. POWERS AND RESPONSIBILITIES OF THE DIVISION. 1. THE DIRECTOR
SHALL POST TO THE WEBSITE OF THE DIVISION ON OR BEFORE OCTOBER FIRST OF
EACH YEAR THE ASPIRATIONAL GOALS FOR THE UTILIZATION OF MINORITY GROUP
MEMBERS AND WOMEN IN CONSTRUCTION REQUIRED PURSUANT TO SECTION EIGHT
HUNDRED TWENTY-TWO OF THIS ARTICLE.
2. THE DIRECTOR SHALL PROMULGATE RULES AND REGULATIONS FOR THE IMPLE-
MENTATION OF THIS ARTICLE, INCLUDING, BUT NOT LIMITED TO, PROCEDURES FOR
THE SUBMISSION OF CERTIFICATIONS AND WORKFORCE UTILIZATION PLANS BY
CONTRACTORS, CRITERIA FOR GRANTING WAIVERS OF WORKFORCE PARTICIPATION
GOALS, AND THE CONTENTS OF REPORTS BY STATE AGENCIES CONCERNING THEIR
IMPLEMENTATION OF THE REQUIREMENTS OF THIS ARTICLE.
3. THE DIVISION SHALL, FROM TIME TO TIME, REVIEW THE FACILITIES,
BOOKS, AND RECORDS OF STATE AGENCIES TO ASCERTAIN THE ACCURACY OF THEIR
REPORTS AND THEIR COMPLIANCE WITH THE REQUIREMENTS OF THIS ARTICLE. THE
DEPARTMENT SHALL PROVIDE SUCH ASSISTANCE AS THE DIRECTOR SHALL REQUIRE
IN CARRYING OUT THE REQUIREMENTS OF THIS SECTION.
§ 826. SEVERABILITY. IF ANY CLAUSE, SENTENCE, PARAGRAPH, SECTION OR
PART OF THIS ARTICLE SHALL BE ADJUDGED BY ANY COURT OF COMPETENT JURIS-
DICTION TO BE INVALID, THE JUDGMENT SHALL NOT AFFECT, IMPAIR OR INVALI-
DATE THE REMAINDER THEREOF, BUT SHALL BE CONFINED IN ITS OPERATION TO
THE CLAUSE, SENTENCE, PARAGRAPH, SECTION OR PART OF THIS ARTICLE DIRECT-
LY INVOLVED IN THE CONTROVERSY IN WHICH THE JUDGMENT SHALL HAVE BEEN
RENDERED.
§ 15. Severability. If any clause, sentence, paragraph, subdivision,
section or part contained in any part of this act shall be adjudged by
any court of competent jurisdiction to be invalid, such judgment shall
not affect, impair, or invalidate the remainder thereof, but shall be
confined in its operation to the clause, sentence, paragraph, subdivi-
sion, section or part contained in any part thereof directly involved in
the controversy in which such judgment shall have been rendered. It is
hereby declared to be the intent of the legislature that this act would
have been enacted even if such invalid provisions had not been included
herein.
§ 16. This act shall take effect on the one hundred eightieth day
after it shall have become a law, provided, however, that the provisions
of section twelve of this act shall apply to any state contracts
executed and entered into on or after January 1, 2020 and shall exclude
such contracts that have been previously awarded or have pending bids or
pending requests for proposals issued prior to such date, and shall not
apply to projects that have commenced project design prior to such date;
provided, further, that:
(a) the amendments to article 15-A of the executive law, made by
sections one, two, three, four, five, six, seven and eight of this act,
shall not affect the expiration of such article and shall expire and be
deemed expired therewith;
S. 6575 25
(b) the amendments to section 163 of the state finance law, made by
section nine of this act, shall not affect the expiration and repeal of
such section, and shall expire and be deemed repealed therewith;
(c) the amendments to section 139-j of the state finance law, made by
section eleven of this act, shall not affect the expiration and repeal
of such section, and shall expire and be deemed repealed therewith; and
(d) section fourteen of this act shall expire and be deemed repealed
December 31, 2024.
