S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                  3390--A
     Cal. No. 599
 
                        2021-2022 Regular Sessions
 
                             I N  S E N A T E
 
                             January 29, 2021
                                ___________
 
 Introduced  by Sens. BAILEY, RYAN -- read twice and ordered printed, and
   when printed to be committed  to  the  Committee  on  Procurement  and
   Contracts -- recommitted to the Committee on Procurement and Contracts
   in  accordance  with  Senate Rule 6, sec. 8 -- reported favorably from
   said committee, ordered to first and second report, ordered to a third
   reading, amended and ordered reprinted, retaining  its  place  in  the
   order of third reading
 
 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, paragraph (f) as amended by chapter 96  of  the  laws  of
 2019  and  paragraph  (j) as amended by chapter 825 of the laws of 2021,
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD03040-05-2
              

 S. 3390--A                          2
 
 are amended and three new paragraphs (l), (m) and (n) 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-
 prises are available to perform services, AND TO USE THIS INFORMATION TO
 CREATE AN INTERNET BASED, SEARCHABLE, CENTRALIZED STATE REGISTRY DETAIL-
 ING CERTIFICATIONS, WAIVERS, AND ALL DOCUMENTS SUBMITTED  PERTAINING  TO
 CERTIFICATION  OR  DENIAL OF CERTIFICATION, OR COMPLIANCE WITH GOALS FOR
 UTILIZATION OF MINORITY AND WOMEN-OWNED BUSINESS ENTERPRISES;
   (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; [and]
   (L) 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;
   (M) TO PERFORM INSPECTIONS OF FINANCIAL RECORDS OF MINORITY OR  WOMEN-
 OWNED  BUSINESS ENTERPRISES TO ENSURE SUCH ENTERPRISES ARE IN COMPLIANCE
 WITH APPLICABLE LAWS; AND
   (N) 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
 S. 3390--A                          3
 
 been applied for pursuant to subdivision six of  section  three  hundred
 thirteen  of  this  article or has denied such application, the director
 shall attempt to resolve the matter giving rise to  such  complaint.  If
 efforts  to  resolve  such matter to the satisfaction of all parties are
 unsuccessful, the director shall refer the matter, within thirty days of
 the receipt of the complaint, to the division's hearing  officers.  Upon
 conclusion  of  the  administrative  hearing,  the hearing officer shall
 submit to the  director  his  or  her  decision  regarding  the  alleged
 violation  of  the contract and recommendations regarding the imposition
 of sanctions, fines or penalties.  The  director,  within  ten  days  of
 receipt  of  the decision, shall file a determination of such matter and
 shall cause a copy of such determination along with a copy of this 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-K OF THE STATE FINANCE LAW.
   §  5. The state finance law is amended by adding a new section 97-k to
 read as follows:
   § 97-K. 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
 S. 3390--A                          4
 
 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.
   §  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.