S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   1266
 
                        2023-2024 Regular Sessions
 
                           I N  A S S E M B L Y
 
                             January 13, 2023
                                ___________
 
 Introduced  by  M.  of A. BICHOTTE HERMELYN, SIMON, ZINERMAN, SEAWRIGHT,
   JACKSON -- read once and referred to  the  Committee  on  Governmental
   Operations
 
 AN  ACT to amend the executive law, in relation to requiring contracting
   agencies to contact minority and women-owned business enterprises when
   such enterprise is listed on a utilization plan and when a contract is
   awarded
 
   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section  1.  Paragraphs (a) and (b) of subdivision 5 of section 313 of
 the executive law, as amended by chapter 96 of the  laws  of  2019,  are
 amended and six new paragraphs (b-1), (b-2), (b-3), (b-4), (b-5) and (d)
 are added to read as follows:
   (a)  Contracting  agencies  shall administer the rules and regulations
 promulgated by the director in a good faith effort to achieve the  maxi-
 mum  feasible participation by [minority] BOTH MINORITY-OWNED and [women
 owned] WOMEN-OWNED business enterprises adopted pursuant to this article
 and the regulations of the director  PRIOR  TO  THE  PRIME  CONTRACTOR'S
 INCEPTION  OF  THE  SCOPE  OF WORK OUTLINED IN AN AWARDED CONTRACT. Such
 rules and regulations: shall require a PRIME contractor  to  [submit  a]
 UTILIZE  THE MINORITY AND WOMEN-OWNED BUSINESS ENTERPRISES LISTED ON THE
 utilization plan [after] SUBMITTED WHEN bids are opened, [when bids  are
 required,  but  prior]  PROVIDED  THAT THE MINORITY-OWNED OR WOMEN-OWNED
 BUSINESS ENTERPRISE IS STILL CERTIFIED WITH NEW YORK STATE. PRIOR to the
 award of a state contract[; shall require] WITH MINORITY AND WOMEN-OWNED
 BUSINESS ENTERPRISE GOALS the contracting agency [to] SHALL  review  the
 utilization  plan  submitted by the PRIME contractor and [to] SHALL post
 the utilization plan and any waivers of compliance  issued  pursuant  to
 subdivision  six of this section on the website of the contracting agen-
 cy[; shall require the]. WITHIN FIVE BUSINESS DAYS AFTER AN AWARD LETTER
 IS SENT TO THE PRIME CONTRACTOR, THE CONTRACTING AGENCY SHALL SUBMIT  AN
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD01171-01-3
              

 A. 1266                             2
 
 AWARD  NOTIFICATION  LETTER  TO  THE  MINORITY  AND WOMEN-OWNED BUSINESS
 ENTERPRISE LISTED ON THE UTILIZATION PLAN. THE MINORITY AND  WOMEN-OWNED
 BUSINESS  ENTERPRISE LISTED ON THE ORIGINAL UTILIZATION PLAN AT THE TIME
 OF  SUBMISSION  SHALL  NOT BE AMENDED OR CHANGED BY THE CONTRACTOR AFTER
 SUBMISSION TO THE CONTRACTING AGENCY FOR APPROVAL. THE contracting agen-
 cy SHALL BE REQUIRED to notify the PRIME contractor in writing within [a
 period of time specified by the director] TEN DAYS as to  any  deficien-
 cies contained in the contractor's utilization plan[;] AND 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;] SEVEN DAYS OF
 SUCH  NOTIFICATION. THE CONTRACTING AGENCY 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], UNLESS SUCH ENTERPRISE CANNOT PERFORM UNDER THE CONTRACT OR SUCH
 ENTERPRISE IS NO LONGER CERTIFIED BY THE STATE. A contracting agency may
 require a contractor to indicate, within a utilization plan, what  meas-
 ures  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].
   (B-1) AFTER THE  CONTRACTING  AGENCY  AWARDS  A  CONTRACT,  THE  PRIME
 CONTRACTOR  SHALL EXECUTE A SUBCONTRACTOR'S AGREEMENT AND PROVIDE A WORK
 ASSIGNMENT TO THE MINORITY AND WOMEN-OWNED BUSINESS  ENTERPRISES  LISTED
 IN  THE  UTILIZATION PLAN WITHIN FORTY-FIVE DAYS OF SUCH AWARD.  FAILURE
 TO COMPLY WITH THIS REQUIREMENT SHALL RESULT IN DISQUALIFICATION OF  THE
 PRIME  CONTRACTOR AND THE CONTRACTING AGENCY SHALL RE-AWARD THE CONTRACT
 TO THE NEXT LOWEST BIDDER OR ELIGIBLE BIDDER.
   (B-2) AFTER RECEIVING THE FIRST PAYMENT ON  THE  CONTRACT,  THE  PRIME
 CONTRACTOR  SHALL MAKE PAYMENTS TO THE MINORITY AND WOMEN-OWNED BUSINESS
 ENTERPRISE FOR WORK PERFORMED UNDER THE CONTRACT WITHIN TWENTY  DAYS  OF
 RECEIPT OF EACH PAYMENT RECEIVED FROM THE CONTRACTING AGENCY. A MINORITY
 AND WOMEN-OWNED BUSINESS ENTERPRISE MAY NOTIFY THE CONTRACTING AGENCY OF
 ANY  VIOLATION  OF  THIS  PARAGRAPH  BY  THE  PRIME  CONTRACTOR  AND THE
 CONTRACTING AGENCY SHALL THEN NOTIFY THE  PRIME  CONTRACTOR  TO  CORRECT
 SUCH  DEFICIENCY  WITHIN  TEN  DAYS  OF NOTIFICATION. THE FAILURE OF THE
 CONTRACTOR TO MAKE SUCH PAYMENTS TO THE MINORITY AND  WOMEN-OWNED  BUSI-
 NESS  ENTERPRISE  SHALL  RESULT  IN DISQUALIFICATION AND THE CONTRACTING
 AGENCY SHALL RE-AWARD SUCH CONTRACT TO THE NEXT LOWEST BIDDER OR  ELIGI-
 BLE BIDDER.
 A. 1266                             3
 
   (B-3)  A PRIME CONTRACTOR WHICH IS A CERTIFIED MINORITY-OWNED BUSINESS
 MAY SELF-CERTIFY AND PERFORM UNDER THE CONTRACT TO MEET  THE  CONTRACT'S
 MINORITY-OWNED BUSINESS ENTERPRISE GOALS.
   (B-4) A PRIME CONTRACTOR WHICH IS A CERTIFIED WOMEN-OWNED BUSINESS MAY
 SELF-CERTIFY  AND  PERFORM  UNDER  THE  CONTRACT  TO MEET THE CONTRACT'S
 WOMEN-OWNED BUSINESS ENTERPRISE GOAL ONLY, AND IT MUST UTILIZE A  CERTI-
 FIED MINORITY-OWNED BUSINESS ENTERPRISE TO PERFORM UNDER THE CONTRACT TO
 MEET THE CONTRACT'S MINORITY-OWNED BUSINESS GOALS.
   (B-5)  A PRIME CONTRACTOR WHICH IS DUALLY CERTIFIED MINORITY-OWNED AND
 WOMEN-OWNED BUSINESS ENTERPRISE MAY SELF-CERTIFY AND PERFORM  UNDER  THE
 CONTRACT  TO MEET THE CONTRACT'S MINORITY-OWNED AND WOMEN-OWNED BUSINESS
 ENTERPRISE GOALS.
   (D) THIS SUBDIVISION SHALL APPLY  TO  ALL  PUBLIC  CONTRACTS  WHERE  A
 PUBLIC  AGENCY  ISSUES  A REQUEST FOR PROPOSALS, NOTWITHSTANDING WHETHER
 THE CONTRACT COULD OTHERWISE BE AWARDED THROUGH THE AGENCY'S DISCRETION-
 ARY CONTRACT AWARD PROCESS  OR  THE  NON-EXISTENCE  OF  A  DISCRETIONARY
 CONTRACT AWARD PROCESS WITHIN THE PUBLIC AGENCY.
   §  2.  This act shall take effect immediately; provided, however, that
 the amendments to subdivision 5 of section 313 of the executive law made
 by section one of this act shall not affect the repeal of  such  section
 and shall be deemed repealed therewith.