S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   1701
 
                        2023-2024 Regular Sessions
 
                           I N  A S S E M B L Y
 
                             January 17, 2023
                                ___________
 
 Introduced  by  M.  of  A. SANTABARBARA -- read once and referred to the
   Committee on Governmental Operations
 
 AN ACT to amend the state finance law, in relation to  obligations  with
   respect  to  contracts with business enterprises which employ individ-
   uals with disabilities

   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section  1.  The  state finance law is amended by adding a new section
 139-m to read as follows:
   § 139-M. OBLIGATIONS WITH RESPECT TO CONTRACTS WITH QUALIFIED BUSINESS
 ENTERPRISES. 1. DEFINITIONS. (A) "INDIVIDUAL WITH  A  DISABILITY"  SHALL
 MEAN  A  PERSON  (I)  WITH  A  PHYSICAL, MENTAL OR MEDICAL IMPAIRMENT OF
 ANATOMICAL, PHYSIOLOGICAL OR NEUROLOGICAL CONDITIONS WHICH PREVENTS  THE
 EXERCISE  OF  A  NORMAL  BODILY FUNCTION OR IS DEMONSTRABLE BY MEDICALLY
 ACCEPTED CLINICAL OR LABORATORY DIAGNOSTIC TECHNIQUES, OR  (II)  WITH  A
 RECORD OF SUCH AN IMPAIRMENT.
   (B) "QUALIFIED BUSINESS ENTERPRISE" OR "CERTIFIED BUSINESS ENTERPRISE"
 SHALL  MEAN ANY BUSINESS CONCERN WHICH EMPLOYS A WORKFORCE CONSISTING OF
 AT LEAST FIFTEEN PERCENT OF EMPLOYEES WHO ARE INDIVIDUALS WITH  A  DISA-
 BILITY  AS DEFINED IN THIS SECTION, WHICH HAS BEEN CERTIFIED PURSUANT TO
 THIS SECTION.
   2. STATEWIDE ADVOCATE. THERE IS HEREBY ESTABLISHED WITHIN THE  DEPART-
 MENT  OF  ECONOMIC DEVELOPMENT AN OFFICE OF STATEWIDE ADVOCATE FOR INDI-
 VIDUALS WITH DISABILITIES.  THE STATEWIDE ADVOCATE SHALL BE APPOINTED BY
 THE COMMISSIONER OF ECONOMIC DEVELOPMENT AND SHALL ACT AS A LIAISON  FOR
 QUALIFIED  BUSINESS  ENTERPRISES  TO ASSIST THEM IN OBTAINING TECHNICAL,
 MANAGERIAL, FINANCIAL AND OTHER BUSINESS ASSISTANCE.  THE ADVOCATE SHALL
 INVESTIGATE COMPLAINTS BROUGHT BY  OR  ON  BEHALF  OF  SUCH  ENTERPRISES
 CONCERNING  CERTIFICATION  DELAYS  AND INSTANCES OF VIOLATIONS OF LAW BY
 STATE AGENCIES. THE STATEWIDE ADVOCATE SHALL ASSIST CERTIFIED BUSINESSES
 AND APPLICANTS IN THE CERTIFICATION  PROCESS.  OTHER  FUNCTIONS  OF  THE
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD03141-01-3
              

 A. 1701                             2
 
 STATEWIDE  ADVOCATE  SHALL  BE  DIRECTED BY THE COMMISSIONER OF ECONOMIC
 DEVELOPMENT. THE ADVOCATE MAY APPOINT STAFF TO  ASSIST  IN  HIS  OR  HER
 DUTIES. THE STATEWIDE ADVOCATE SHALL ESTABLISH A TOLL-FREE NUMBER AT THE
 DEPARTMENT  OF  ECONOMIC  DEVELOPMENT  TO  BE  USED  TO ANSWER QUESTIONS
 CONCERNING THE CERTIFICATION PROCESS.
   3. STUDY OF QUALIFIED BUSINESS ENTERPRISE PROGRAMS.  THE  COMMISSIONER
 OF ECONOMIC DEVELOPMENT IS AUTHORIZED AND DIRECTED TO UNDERTAKE A STATE-
 WIDE  DISPARITY  STUDY REGARDING THE PARTICIPATION OF QUALIFIED BUSINESS
 ENTERPRISES EMPLOYING INDIVIDUALS WITH DISABILITIES IN STATE  CONTRACTS.
 THE  STUDY  SHALL BE PREPARED BY AN ENTITY INDEPENDENT OF THE DEPARTMENT
 OF ECONOMIC DEVELOPMENT AND SELECTED  THROUGH  A  REQUEST  FOR  PROPOSAL
 PROCESS.  THE  PURPOSE  OF SUCH STUDY IS TO DETERMINE WHETHER THERE IS A
 DISPARITY BETWEEN THE NUMBER OF QUALIFIED  BUSINESS  ENTERPRISES  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 THESE BUSINESS ENTERPRISES. SUCH  STUDY
 SHALL  INCLUDE,  BUT  NOT  BE LIMITED TO, A DISPARITY ANALYSIS BY MARKET
 AREA AND REGION OF THE STATE.  THE COMMISSIONER OF ECONOMIC  DEVELOPMENT
 IS  DIRECTED  TO  TRANSMIT  THE  DISPARITY STUDY TO THE GOVERNOR AND THE
 LEGISLATURE NOT LATER THAN FEBRUARY FIFTEENTH, TWO THOUSAND TWENTY-FOUR,
 AND TO POST THE STUDY ON THE  WEBSITE  OF  THE  DEPARTMENT  OF  ECONOMIC
 DEVELOPMENT.
   4.  OPPORTUNITIES  FOR QUALIFIED BUSINESS ENTERPRISES. (A) EACH AGENCY
 SHALL STRUCTURE PROCUREMENT PROCEDURES FOR CONTRACTS  MADE  DIRECTLY  OR
 INDIRECTLY  TO QUALIFIED BUSINESS ENTERPRISES EMPLOYING INDIVIDUALS WITH
 DISABILITIES TO ATTEMPT TO  ACHIEVE  FIVE  PERCENT  OF  STATE  CONTRACTS
 AWARDED TO DISABLED EMPLOYEE BUSINESS ENTERPRISES.
   (B)  THE  COMMISSIONER  OF ECONOMIC DEVELOPMENT SHALL PROMULGATE RULES
 AND REGULATIONS PURSUANT TO THE GOAL ESTABLISHED  IN  PARAGRAPH  (A)  OF
 THIS  SUBDIVISION  THAT  PROVIDE  MEASURES AND PROCEDURES TO ENSURE THAT
 QUALIFIED BUSINESS ENTERPRISES UNDER THIS SECTION  SHALL  BE  GIVEN  THE
 OPPORTUNITY  FOR  MAXIMUM  FEASIBLE  PARTICIPATION IN THE PERFORMANCE OF
 STATE CONTRACTS AND TO ASSIST IN THE AGENCY'S  IDENTIFICATION  OF  THOSE
 STATE CONTRACTS FOR WHICH QUALIFIED BUSINESS ENTERPRISES 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 ACHIEVE-
 MENT OF THE MAXIMUM FEASIBLE PORTION OF THE GOALS FOR STATE CONTRACTS TO
 SUCH  BUSINESSES. 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 COMPLI-
 ANCE ISSUED PURSUANT TO PARAGRAPH (C) OF THIS SUBDIVISION ON THE WEBSITE
 OF THE CONTRACTING AGENCY WITHIN A REASONABLE PERIOD OF TIME  AS  ESTAB-
 LISHED  BY  THE  COMMISSIONER OF ECONOMIC DEVELOPMENT; SHALL REQUIRE THE
 CONTRACTING AGENCY TO NOTIFY THE CONTRACTOR IN WRITING WITHIN  A  PERIOD
 OF  TIME SPECIFIED BY THE COMMISSIONER OF ECONOMIC DEVELOPMENT AS TO ANY
 DEFICIENCIES CONTAINED  IN  THE  CONTRACTOR'S  UTILIZATION  PLAN;  SHALL
 REQUIRE  REMEDY THEREOF WITHIN A PERIOD OF TIME SPECIFIED BY THE COMMIS-
 SIONER OF ECONOMIC DEVELOPMENT; AND  SHALL  REQUIRE  THE  CONTRACTOR  TO
 SUBMIT  PERIODIC COMPLIANCE REPORTS RELATING TO THE OPERATION AND IMPLE-
 MENTATION OF ANY UTILIZATION PLAN. 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
 A. 1701                             3
 
 LEAST TO THE EXTENT  INDICATED.  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  SECTION,  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.  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 CONTRACTOR'S UTILIZATION PLAN
 WITHIN A PERIOD OF TIME SPECIFIED  IN  REGULATIONS  PROMULGATED  BY  THE
 COMMISSIONER  OF  ECONOMIC  DEVELOPMENT  AFTER RECEIVING NOTIFICATION OF
 SUCH DEFICIENCIES FROM THE CONTRACTING AGENCY. WHERE FAILURE  TO  REMEDY
 ANY NOTIFIED DEFICIENCY IN THE UTILIZATION PLAN IS A GROUND FOR DISQUAL-
 IFICATION,  THAT  ISSUE AND ALL OTHER GROUNDS FOR DISQUALIFICATION SHALL
 BE STATED IN WRITING BY THE CONTRACTING AGENCY.
   (C) WHERE IT APPEARS THAT A CONTRACTOR  CANNOT,  AFTER  A  GOOD  FAITH
 EFFORT,  COMPLY  WITH  THE  QUALIFIED  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 DISABLED EMPLOYEE BUSINESS ENTER-
 PRISE PARTICIPATION. IN IMPLEMENTING THE PROVISIONS OF THIS SECTION, THE
 CONTRACTING AGENCY SHALL CONSIDER THE  NUMBER  AND  TYPES  OF  QUALIFIED
 BUSINESS  ENTERPRISES  UNDER THIS SECTION LOCATED 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 BUSINESSES 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 BUSINESSES LOCATED  OUTSIDE
 THE REGION IN WHICH THE CONTRACT IS TO BE PERFORMED TO PERFORM THE STATE
 CONTRACT.
   (D) 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
 APPLICATION THEREFOR PURSUANT TO PARAGRAPH (C) OF THIS SUBDIVISION OR IF
 THE CONTRACTING AGENCY DENIES SUCH APPLICATION, IN WHOLE OR IN PART, THE
 CONTRACTOR MAY FILE A COMPLAINT WITH THE COMMISSIONER OF ECONOMIC DEVEL-
 OPMENT  PURSUANT  TO  THIS  SECTION  SETTING FORTH THE FACTS AND CIRCUM-
 STANCES 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 OPPORTU-
 NITY TO RESPOND TO SUCH COMPLAINT IN WRITING.
   (E) IF, AFTER THE 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 REFUSING TO COMPLY WITH THE
 QUALIFIED BUSINESS ENTERPRISE 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
 A. 1701                             4
 
 COMMISSIONER OF ECONOMIC DEVELOPMENT PURSUANT TO  THIS  SECTION  SETTING
 FORTH  THE  FACTS AND CIRCUMSTANCES GIVING RISE TO THE CONTRACTING AGEN-
 CY'S COMPLAINT TOGETHER WITH A DEMAND FOR RELIEF.  THE CONTRACTING AGEN-
 CY  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 WRIT-
 ING.
   5. STATEWIDE CERTIFICATION PROGRAM. (A) THE COMMISSIONER  OF  ECONOMIC
 DEVELOPMENT  SHALL  PROMULGATE  RULES  AND REGULATIONS PROVIDING FOR THE
 ESTABLISHMENT OF A STATEWIDE CERTIFICATION PROGRAM FOR  BUSINESS  ENTER-
 PRISES  UNDER THIS SECTION INCLUDING RULES AND REGULATIONS GOVERNING THE
 APPROVAL, DENIAL OR REVOCATION OF ANY SUCH CERTIFICATION. 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.
   (B) FOR THE PURPOSES OF  THIS  SECTION,  THE  DEPARTMENT  OF  ECONOMIC
 DEVELOPMENT  SHALL  BE  RESPONSIBLE FOR VERIFYING BUSINESSES AS HAVING A
 WORKFORCE MADE UP OF AT LEAST FIFTEEN PERCENT OF INDIVIDUALS WITH  DISA-
 BILITIES  AND  FOR CERTIFYING SUCH VERIFIED BUSINESSES. THE COMMISSIONER
 OF ECONOMIC DEVELOPMENT SHALL PREPARE A  DIRECTORY  OF  CERTIFIED  BUSI-
 NESSES  FOR  USE BY CONTRACTING AGENCIES AND CONTRACTORS IN CARRYING OUT
 THE PROVISIONS OF THIS SECTION. THE COMMISSIONER OF ECONOMIC DEVELOPMENT
 SHALL PERIODICALLY UPDATE THE DIRECTORY.
   (C) FOLLOWING APPLICATION FOR CERTIFICATION PURSUANT TO THIS  SUBDIVI-
 SION,  THE COMMISSIONER OF ECONOMIC DEVELOPMENT SHALL PROVIDE THE APPLI-
 CANT WITH WRITTEN NOTICE OF THE STATUS  OF  THE  APPLICATION,  INCLUDING
 NOTICE OF ANY OUTSTANDING DEFICIENCIES, WITHIN THIRTY DAYS. WITHIN SIXTY
 DAYS OF SUBMISSION OF A FINAL COMPLETED APPLICATION, THE COMMISSIONER OF
 ECONOMIC  DEVELOPMENT SHALL PROVIDE THE APPLICANT WITH WRITTEN NOTICE OF
 A DETERMINATION BY THE DEPARTMENT OF ECONOMIC DEVELOPMENT  APPROVING  OR
 DENYING  SUCH  CERTIFICATION  AND,  IN THE EVENT OF A DENIAL A STATEMENT
 SETTING FORTH THE REASONS FOR SUCH DENIAL. UPON A DETERMINATION  DENYING
 OR  REVOKING  CERTIFICATION,  THE  BUSINESS ENTERPRISE FOR WHICH CERTIF-
 ICATION HAS BEEN SO DENIED OR REVOKED SHALL, UPON WRITTEN  REQUEST  MADE
 WITHIN  THIRTY  DAYS  FROM  RECEIPT  OF NOTICE OF SUCH DETERMINATION, BE
 ENTITLED TO A HEARING BEFORE AN INDEPENDENT HEARING  OFFICER  DESIGNATED
 FOR  SUCH  PURPOSE  BY THE COMMISSIONER OF ECONOMIC DEVELOPMENT.  IN THE
 EVENT THAT A REQUEST FOR A HEARING IS NOT MADE WITHIN  SUCH  THIRTY  DAY
 PERIOD,  SUCH DETERMINATION 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 COMMISSIONER OF ECONOMIC
 DEVELOPMENT TO AFFIRM, REVERSE  OR  MODIFY  SUCH  DETERMINATION  OF  THE
 COMMISSIONER  OF ECONOMIC DEVELOPMENT. SUCH WRITTEN RECOMMENDATION SHALL
 BE ISSUED TO THE PARTIES.  THE  COMMISSIONER  OF  ECONOMIC  DEVELOPMENT,
 WITHIN  THIRTY DAYS, BY ORDER, MUST ACCEPT, REJECT OR MODIFY SUCH RECOM-
 MENDATION OF THE HEARING OFFICER AND SET FORTH IN  WRITING  THE  REASONS
 THEREFOR. THE COMMISSIONER OF ECONOMIC DEVELOPMENT 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
 COMMISSIONER OF ECONOMIC DEVELOPMENT SHALL BE SUBJECT TO REVIEW PURSUANT
 TO ARTICLE SEVENTY-EIGHT OF THE CIVIL PRACTICE LAW AND RULES.
   (D) ALL CERTIFICATIONS SHALL BE VALID FOR A PERIOD OF THREE YEARS.
   6.  RESPONSIBILITIES  OF  CONTRACTING  AGENCIES.  (A) EACH CONTRACTING
 AGENCY SHALL BE RESPONSIBLE FOR MONITORING  STATE  CONTRACTS  UNDER  ITS
 JURISDICTION,  AND  RECOMMENDING  MATTERS  TO THE DEPARTMENT OF ECONOMIC
 A. 1701                             5
 
 DEVELOPMENT RESPECTING NON-COMPLIANCE WITH THE PROVISIONS OF THIS  ARTI-
 CLE  SO THAT THE OFFICE MAY TAKE SUCH ACTION AS IS APPROPRIATE TO ENSURE
 COMPLIANCE WITH THE PROVISIONS OF THIS  SECTION,  THE  RULES  AND  REGU-
 LATIONS OF THE COMMISSIONER OF ECONOMIC DEVELOPMENT ISSUED HEREUNDER AND
 THE  CONTRACTUAL  PROVISIONS  REQUIRED  PURSUANT  TO  THIS  SECTION. ALL
 CONTRACTING AGENCIES SHALL COMPLY WITH THE RULES AND REGULATIONS OF  THE
 DEPARTMENT  OF  ECONOMIC  DEVELOPMENT AND ARE DIRECTED TO COOPERATE WITH
 THE DEPARTMENT OF ECONOMIC DEVELOPMENT AND TO FURNISH TO THE  DEPARTMENT
 OF  ECONOMIC  DEVELOPMENT  SUCH  INFORMATION  AND  ASSISTANCE  AS MAY BE
 REQUIRED IN THE PERFORMANCE OF ITS FUNCTIONS UNDER THIS SECTION.
   (B) EACH CONTRACTING AGENCY SHALL PROVIDE  TO  PROSPECTIVE  BIDDERS  A
 CURRENT  COPY  OF THE DIRECTORY OF CERTIFIED BUSINESS ENTERPRISES, AND A
 COPY OF THE REGULATIONS REQUIRED PURSUANT TO SUBDIVISION  FOUR  OF  THIS
 SECTION AT THE TIME BIDS OR PROPOSALS ARE SOLICITED.
   (C) EACH CONTRACTING AGENCY SHALL REPORT TO THE DEPARTMENT OF ECONOMIC
 DEVELOPMENT  WITH RESPECT TO ACTIVITIES UNDERTAKEN TO PROMOTE EMPLOYMENT
 OF INDIVIDUALS WITH DISABILITIES AND PROMOTE AND INCREASE  PARTICIPATION
 BY  CERTIFIED  BUSINESSES  WITH  RESPECT  TO STATE CONTRACTS AND SUBCON-
 TRACTS. SUCH REPORTS SHALL  BE  SUBMITTED  PERIODICALLY,  BUT  NOT  LESS
 FREQUENTLY  THAN  ANNUALLY,  AS REQUIRED BY THE COMMISSIONER OF ECONOMIC
 DEVELOPMENT, AND SHALL INCLUDE SUCH INFORMATION AS IS NECESSARY FOR  THE
 COMMISSIONER  OF ECONOMIC DEVELOPMENT TO DETERMINE WHETHER THE CONTRACT-
 ING AGENCY AND CONTRACTOR  HAVE  COMPLIED  WITH  THE  PURPOSES  OF  THIS
 SECTION,  INCLUDING, WITHOUT LIMITATION, A SUMMARY OF ALL WAIVERS OF THE
 REQUIREMENTS  OF  SUBDIVISION  FOUR  OF  THIS  SECTION  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.
   (D) EACH AGENCY SHALL INCLUDE IN ITS ANNUAL REPORT TO THE GOVERNOR AND
 LEGISLATURE  PURSUANT TO SECTION ONE HUNDRED SIXTY-FOUR OF THE EXECUTIVE
 LAW ITS ANNUAL GOALS FOR CONTRACTS WITH QUALIFIED BUSINESS  ENTERPRISES,
 THE NUMBER OF ACTUAL CONTRACTS ISSUED TO QUALIFIED BUSINESS ENTERPRISES;
 AND  A SUMMARY OF ALL WAIVERS OF THE REQUIREMENTS OF SUBDIVISION FOUR OF
 THIS SECTION 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.
   7. ENFORCEMENT. UPON RECEIPT BY THE COMMISSIONER OF ECONOMIC  DEVELOP-
 MENT  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 SECTION 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
 FOUR OF THIS SECTION OR HAS DENIED SUCH APPLICATION, THE COMMISSIONER OF
 ECONOMIC DEVELOPMENT 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 COMMISSIONER OF ECONOMIC DEVELOPMENT
 SHALL REFER THE MATTER,  WITHIN  THIRTY  DAYS  OF  THE  RECEIPT  OF  THE
 COMPLAINT, TO THE DEPARTMENT OF ECONOMIC DEVELOPMENT'S HEARING OFFICERS.
 UPON CONCLUSION OF THE ADMINISTRATIVE HEARING, THE HEARING OFFICER SHALL
 SUBMIT  TO  THE COMMISSIONER OF ECONOMIC DEVELOPMENT HIS OR HER DECISION
 REGARDING THE ALLEGED VIOLATION  OF  THE  CONTRACT  AND  RECOMMENDATIONS
 REGARDING  THE  IMPOSITION OF SANCTIONS, FINES OR PENALTIES. THE COMMIS-
 SIONER OF ECONOMIC DEVELOPMENT, WITHIN TEN DAYS OF RECEIPT OF THE  DECI-
 SION,  SHALL  FILE A DETERMINATION OF SUCH MATTER AND SHALL CAUSE A COPY
 OF SUCH DETERMINATION ALONG WITH A COPY OF THIS  ARTICLE  TO  BE  SERVED
 UPON  THE  CONTRACTOR  BY  PERSONAL SERVICE OR BY CERTIFIED MAIL, RETURN
 A. 1701                             6
 
 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 COMMISSIONER OF
 ECONOMIC DEVELOPMENT 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 MISREPRESEN-
 TATION BY THE CONTRACTOR OR THE  CONTRACTOR'S  WILLFUL  AND  INTENTIONAL
 DISREGARD  OF  THE  EMPLOYEE  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 DEPARTMENT OF ECONOMIC
 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. This act shall take effect on the one hundred eightieth day after
 it shall have become a law.  Effective immediately, the addition, amend-
 ment and/or repeal of any rule or regulation necessary for the implemen-
 tation  of  this act on its effective date are authorized to be made and
 completed on or before such effective date.