S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   4173
 
                        2021-2022 Regular Sessions
 
                           I N  A S S E M B L Y
 
                             February 1, 2021
                                ___________
 
 Introduced by M. of A. RODRIGUEZ, BARRON, COOK, HYNDMAN, PEOPLES-STOKES,
   WALKER,  SEAWRIGHT  --  Multi-Sponsored by -- M. of A. GALEF, SIMON --
   read once and referred to the Committee on Governmental Operations
 
 AN ACT to amend the executive law and the state finance law, in relation
   to minority  and  women-owned  business  enterprises  post  completion
   certification,  duties  of  the director and creating the minority and
   women-owned business enterprise fund
 
   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section  1. The executive law is amended by adding a new section 314-a
 to read as follows:
   § 314-A. POST COMPLETION CERTIFICATION. THE DIRECTOR, IN COLLABORATION
 WITH THE DIVISION OF MINORITY AND WOMEN'S BUSINESS DEVELOPMENT  AND  THE
 DEPARTMENT  OF  SMALL  BUSINESS  SERVICES,  SHALL  DEVELOP THE FOLLOWING
 STANDARDIZED CERTIFICATION FORMS THAT MUST BE COMPLETED UNDER PENALTY OF
 PERJURY PRIOR TO THE PRIME CONTRACTOR BEING PAID:
   1. CERTIFICATION FROM A REPRESENTATIVE OF THE  PRIME  CONTRACTOR  THAT
 THE  MINORITY  OR  WOMEN-OWNED BUSINESS ENTERPRISE IN FACT PERFORMED THE
 SERVICES OR PROVIDED THE MATERIALS THAT THEY WERE CONTRACTED TO  PERFORM
 OR PROVIDE; AND
   2.  CERTIFICATION FROM A REPRESENTATIVE OF THE MINORITY OR WOMEN-OWNED
 BUSINESS ENTERPRISE THAT THEY IN FACT PERFORMED THE SERVICES OR PROVIDED
 THE MATERIALS THAT THEY WERE CONTRACTED TO PERFORM OR PROVIDE.
   § 2. Paragraphs (f) and (j) of subdivision 3 of  section  311  of  the
 executive law, as amended by chapter 96 of the laws of 2019, are amended
 and three new paragraphs (k), (l) and (m) are added to read as follows:
   (f)  to  prepare  and  update,  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 enter-
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD03040-01-1

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 prises are available to perform services, AND TO USE THIS INFORMATION TO
 CREATE AN INTERNET BASED, SEARCHABLE, CENTRALIZED STATE REGISTRY DETAIL-
 ING CERTIFICATIONS, DENIALS, WAIVERS AND ALL DOCUMENTS SUBMITTED  DURING
 THE LIFE OF THE CONTRACT;
   (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[.];
   (K) TO PERFORM INSPECTIONS OF MINORITY OR WOMEN-OWNED BUSINESS'S PLACE
 OF BUSINESS, WAREHOUSE OR STORAGE FACILITY TO CONFIRM THE EXISTENCE OF A
 WORKFORCE, EQUIPMENT AND SUPPLIES;
   (L)  TO PERFORM INSPECTIONS OF FINANCIAL RECORDS OF MINORITY OR WOMEN-
 OWNED BUSINESS ENTERPRISES TO ENSURE SUCH ENTERPRISES ARE IN  COMPLIANCE
 WITH APPLICABLE LAWS; AND
   (M)  TO  ENSURE  THE  PROTECTION  OF  INDIVIDUALS WHO REPORT SUSPECTED
 VIOLATIONS OF THIS ARTICLE AND APPLICABLE LAWS RELATED TO  MINORITY  AND
 WOMEN-OWNED BUSINESS ENTERPRISES.
   §  3. Subdivision 1 of section 314 of the executive law, as amended by
 chapter 96 of the laws of 2019, is amended to read as follows:
   1. The director shall promulgate rules and regulations  providing  for
 the  establishment  of a statewide certification program including rules
 and regulations governing the approval, denial or revocation of any such
 certification including revocations  for  convictions  for  fraudulently
 misrepresenting  the  status  of minority or women-owned business enter-
 prises. 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 busi-
 ness  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  indus-
 try-by-industry  basis  for such industries as the director shall deter-
 mine. 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 seven-
 ty-three of the civil rights law, AND CONSISTENT WITH THE PROVISIONS  OF
 ARTICLE TWENTY-THREE-A OF THE CORRECTION LAW.
   §  4.  Section  316 of the executive law, as amended by chapter 175 of
 the laws of 2010, is amended to read as follows:
   § 316. Enforcement. 1. 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

 A. 4173                             3
 
 violation of the contract and recommendations regarding  the  imposition
 of  sanctions,  fines  or  penalties.  The  director, within ten days of
 receipt of the decision, shall file a determination of such  matter  and
 shall cause a copy of such determination along with a copy of this arti-
 cle 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
 seventy-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.
   2.  ANY  FINES,  OR PORTION THEREOF, IMPOSED PURSUANT TO THE FOREGOING
 SUBDIVISION, OR IMPOSED BY A COURT OF COMPETENT JURISDICTION RELATED  TO
 CONVICTIONS INVOLVING FRAUD RELATED TO THIS ARTICLE OR OTHERWISE INVOLV-
 ING  A  MINORITY  OR WOMEN-OWNED BUSINESS ENTERPRISE, MAY BE REQUIRED BY
 THE ENTITY IMPOSING SUCH FINES TO BE PAID TO  THE  MINORITY  AND  WOMEN-
 OWNED  BUSINESS  ENTERPRISE FUND ESTABLISHED PURSUANT TO SECTION NINETY-
 SEVEN-J OF THE STATE FINANCE LAW.
   § 5. The state finance law is amended by adding a new section 97-j  to
 read as follows:
   § 97-J. MINORITY AND WOMEN-OWNED BUSINESS ENTERPRISE FUND. 1. THERE IS
 HEREBY ESTABLISHED IN THE JOINT CUSTODY OF THE STATE COMPTROLLER AND THE
 COMMISSIONER  OF  TAXATION AND FINANCE A SPECIAL FUND TO BE KNOWN AS THE
 "MINORITY AND WOMEN-OWNED BUSINESS ENTERPRISE FUND".
   2. SUCH FUNDS SHALL CONSIST OF ALL MONEYS APPROPRIATED FOR THE PURPOSE
 OF SUCH FUND, ALL MONEYS TRANSFERRED OR PAID TO SUCH  FUND  PURSUANT  TO
 LAW,  INCLUDING  PURSUANT TO SECTION THREE HUNDRED SIXTEEN OF THE EXECU-
 TIVE LAW, AND CONTRIBUTIONS CONSISTING OF GRANTS,  INCLUDING  GRANTS  OR
 OTHER  FINANCIAL ASSISTANCE FROM ANY AGENCY OF GOVERNMENT AND ALL MONEYS
 REQUIRED BY THE PROVISIONS OF THIS SECTION OR ANY OTHER LAW TO  BE  PAID
 INTO OR CREDITED TO THIS FUND.
   3.  MONIES  OF  THE  FUND, FOLLOWING APPROPRIATION BY THE LEGISLATURE,
 SHALL BE EXPENDED TO ACQUIRE SOFTWARE, EMPLOY PERSONNEL TO AUDIT, INVES-
 TIGATE AND PROSECUTE MINORITY AND WOMEN-OWNED BUSINESS ENTERPRISE  FRAUD
 AND  TO UNDERWRITE MINORITY AND WOMEN-OWNED BUSINESS ENTERPRISE PROGRAMS
 TO ASSIST MINORITY AND  WOMEN  BUSINESS  ENTERPRISE  OWNERS  TO  DEVELOP
 SUSTAINABLE BUSINESSES.

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   §  6.  This act shall take effect immediately, provided, however, that
 the amendments to article 15-A of the executive  law  made  by  sections
 one,  two,  three,  and  four of this act shall not affect the repeal of
 such article and shall be deemed repealed therewith.