S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   3963
 
                        2023-2024 Regular Sessions
 
                           I N  A S S E M B L Y
 
                             February 8, 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 participation by
   minority group  members  and  women  with  respect  to  certain  state
   contracts; and to amend the state finance law, in relation to perform-
   ance and payment bond requirements
 
   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. Subdivisions 3 and 4 of section 311 of the  executive  law,
 subdivision  3  as  added by chapter 261 of the laws of 1988, paragraphs
 (d) and (e) of subdivision 3 as amended by chapter 55  of  the  laws  of
 1992,  paragraphs (f) and (j) as amended and paragraphs (l), (m) and (n)
 of subdivision 3 as added by chapter 567 of the laws of 2022, the  open-
 ing  paragraph of subdivision 4 as amended and paragraph (d-1) of subdi-
 vision 3 and paragraphs (d) and (e) of subdivision 4 as added by chapter
 96 of the laws of 2019, paragraph (g) of subdivision  3  as  amended  by
 section  1  of part BB of chapter 59 of the laws of 2006, paragraphs (h)
 and (i) as amended and paragraph (k) of subdivision 3 as added by  chap-
 ter 825 of the laws of 2021, and subdivision 4 as amended by chapter 361
 of the laws of 2009, are amended to read as follows:
   3. The director shall have the following powers and duties:
   (a)  to  encourage and assist contracting agencies in their efforts to
 increase participation by minority and women-owned business  enterprises
 on state contracts and subcontracts [so as] to facilitate the award of a
 fair  share  of  such contracts to them AND TO PROVIDE ON THE DIVISION'S
 WEBSITE A LIST OF EACH CONTRACTING  AGENCY'S  MINORITY  AND  WOMEN-OWNED
 BUSINESS ENTERPRISES CERTIFICATION OUTREACH SEMINARS;
   (b) to develop standardized forms and reporting documents necessary to
 implement this article;
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD05916-01-3
 A. 3963                             2
              

 
   (c)  to conduct educational OUTREACH programs TO ENCOURAGE THE CERTIF-
 ICATION OF MINORITY AND WOMEN-OWNED BUSINESS ENTERPRISES consistent with
 the purposes of this article;
   (d) to review [periodically] QUARTERLY the practices and procedures of
 each  contracting  agency with respect to compliance with the provisions
 of this article, and  to  require  them  to  file  [periodic]  QUARTERLY
 reports  with  the division of minority and women's business development
 as to the level of minority and women-owned business enterprises partic-
 ipation in the awarding of  agency  contracts  for  goods  and  services
 INCLUDING  BUT  NOT  LIMITED TO THE NUMBER OF STATE CONTRACTS AWARDED TO
 CERTIFIED MINORITY OR  WOMEN-OWNED  BUSINESS  ENTERPRISES,  THE  MAXIMUM
 DOLLAR  AMOUNT  OBLIGATED PURSUANT TO ALL THOSE CONTRACTS, AND THE TOTAL
 EXPENDITURES MADE PURSUANT TO ALL SUCH CONTRACTS; THE  NUMBER  OF  STATE
 CONTRACTS  AWARDED WHICH INCLUDE A UTILIZATION PLAN FOR BUSINESS PARTIC-
 IPATION BY CERTIFIED MINORITY OR WOMEN-OWNED BUSINESS  ENTERPRISES,  THE
 MAXIMUM  AMOUNT  OBLIGATED  PURSUANT  TO  THOSE CONTRACTS, AND THE TOTAL
 EXPENDITURES MADE PURSUANT TO ALL SUCH CONTRACTS; THE  NUMBER  OF  STATE
 CONTRACTS AWARDED UPON WHICH A WAIVER WAS GRANTED FROM GOALS REQUIRED BY
 THE  CONTRACTS  FOR  BUSINESS  PARTICIPATION  BY  CERTIFIED  MINORITY OR
 WOMEN-OWNED BUSINESS  ENTERPRISES,  AND  THE  MAXIMUM  AMOUNT  OBLIGATED
 PURSUANT TO THOSE CONTRACTS; THE NUMBER OF STATE CONTRACTS AWARDED WHICH
 REQUIRED  GOALS  FOR EMPLOYMENT OF MINORITY GROUP MEMBERS AND WOMEN; AND
 THE NUMBER OF STATE CONTRACTS AWARDED FOR WHICH  WAIVERS  OF  EMPLOYMENT
 GOALS REQUIRED BY THE CONTRACTS HAVE BEEN GRANTED;
   (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] MINORITY  and  women-owned  business  enter-
 prises  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.
   (e) on January first of each year report to the governor,  THE  TEMPO-
 RARY  PRESIDENT OF THE SENATE, THE SPEAKER OF THE ASSEMBLY, THE MINORITY
 LEADERS OF THE SENATE AND THE ASSEMBLY,  and  the  chairpersons  of  the
 senate  finance  and  assembly  ways and means committees on the [level]
 ACTUAL VERSUS PROJECTED LEVELS  of  minority  and  women-owned  business
 enterprises  participating  in  each agency's contracts for goods [and],
 services AND CONSTRUCTION, INCLUDING BUT NOT LIMITED TO  THE  NUMBER  OF
 STATE  CONTRACTS  AWARDED  TO CERTIFIED MINORITY OR WOMEN-OWNED BUSINESS
 ENTERPRISES, THE MAXIMUM DOLLAR AMOUNT OBLIGATED PURSUANT TO  ALL  THOSE
 CONTRACTS,  AND  THE  TOTAL  EXPENDITURES  MADE  PURSUANT  TO  ALL  SUCH
 CONTRACTS, and on activities of the office and effort by each  contract-
 ing  agency  to  promote employment of minority group members and women,
 and to promote and increase participation by certified  businesses  with
 respect  to  state  contracts  and  subcontracts so as to facilitate the
 award of a fair share of state contracts to such businesses.  The  comp-
 troller  shall  assist  the  division  in  collecting information on the
 participation of certified business for each  contracting  agency.  Such
 report  may  recommend  new  activities  and  programs to effectuate the
 purposes of this article;
   (f) THE DIRECTOR SHALL LIST IN THE DIVISION'S ANNUAL REPORT THE  NAMES
 OF  NON-COMPLIANT  AGENCIES  AND  THE  EXTENT  OF THEIR NONCOMPLIANCE IN
 SUBMITTING ITS QUARTERLY MINORITY AND  WOMEN-OWNED  BUSINESS  ENTERPRISE
 UTILIZATION REPORTS; AND, SHALL IMPLEMENT A MASTER LIST OF ALL THE STATE
 A. 3963                             3
 
 AGENCIES  REQUIRED TO FILE QUARTERLY COMPLIANCE REPORTS AND SHALL ATTACH
 SUCH LIST TO THE DIVISION'S ANNUAL REPORT.
   (G) to prepare and update[, no less than annually,] QUARTERLY a direc-
 tory  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, and to use this
 information to create an internet based, searchable,  centralized  state
 registry  detailing 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 enter-
 prises AND FOR SUCH  ENTERPRISES  TO  ACCESS  CONTRACT  AND  SUBCONTRACT
 OPPORTUNITIES;
   [(g)]  (H)  to appoint independent hearing officers who by contract or
 terms of employment shall preside over adjudicatory hearings pursuant to
 section three hundred fourteen of this article for the  office  and  who
 are assigned no other work by the office;
   [(h)]  (I) notwithstanding the provisions of section two hundred nine-
 ty-six of this chapter, to file a complaint pursuant to  the  provisions
 of  section  two hundred ninety-seven of this chapter where the director
 has knowledge that a contractor may  have  violated  the  provisions  of
 paragraph  (a),  (b)  or  (c)  of subdivision one of section two hundred
 ninety-six of this chapter where such violation is  unrelated,  separate
 or distinct from the state contract as expressed by its terms;
   [(i)]  (J)  to  streamline  the  state certification process to accept
 federal and municipal corporation certifications;
   [(j)] (K) to make publicly available records of all waivers of compli-
 ance reported pursuant to paragraph (b) of subdivision  six  of  section
 three hundred thirteen of this article on the division's website;
   [(k)]  (L)  to  work  in  conjunction with the industrial commissioner
 pursuant to paragraph (j) of subdivision one of  section  eight  hundred
 eleven  of  the  labor law to assist contractors in identifying minority
 group members and women who are participating in  apprenticeship  agree-
 ments under article twenty-three of the labor law[.];
   [(l)] (M) to perform inspections of minority or women-owned business's
 place  of  business, warehouse or storage facility to confirm the exist-
 ence of a workforce, equipment and supplies;
   [(m)] (N) 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)] (O) to ensure the protection of individuals who report suspected
 violations of this article and applicable laws related to  minority  and
 women-owned business enterprises.
   4.  The director 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] SHALL, either independently or  in  conjunction  with
 other state agencies:
 A. 3963                             4
 
   (a)  develop  a  clearinghouse of information on programs and services
 provided by entities that may assist such businesses;
   (b)  review  bonding and paperwork requirements imposed by contracting
 agencies that may unnecessarily impede the ability of such businesses to
 compete; and
   (c) seek to maximize utilization by minority and women-owned  business
 enterprises  of available federal resources including but not limited to
 federal grants, loans, loan guarantees, surety bonding guarantees, tech-
 nical assistance, and programs and services of the federal  small  busi-
 ness administration.
   (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
 intended to ensure that mentor and  mentee  are  connected  based  on  a
 commercially useful function.
   §  2.  Subdivision  5 of section 312 of the executive law, as added by
 chapter 261 of the laws of 1988, is amended to read as follows:
   5. The director shall promulgate rules and regulations to ensure  that
 contractors  and subcontractors undertake programs of affirmative action
 and equal employment opportunity as required by this section. Such rules
 and regulations as they pertain to any particular agency shall be devel-
 oped after consultation with contracting agencies. Such rules and  regu-
 lations  [may]  SHALL require a contractor, after notice in a bid solic-
 itation, to submit an equal employment opportunity  program  [after  bid
 opening  and  prior  to  the award of any contract] AT THE TIME BIDS ARE
 SUBMITTED, and [may] SHALL require the contractor  or  subcontractor  to
 submit  compliance  reports  relating to the contractor's or subcontrac-
 tor's operation and implementation of any equal  employment  opportunity
 program in effect as of the date the contract is executed. The contract-
 ing  agency [may recommend to the director that] SHALL HAVE THE RIGHT TO
 RECOMMEND THAT the director take appropriate  action  according  to  the
 procedures  set  forth  in section three hundred sixteen of this article
 against the contractor for noncompliance with the requirements  of  this
 section.  The  contracting  agency  shall  be responsible for monitoring
 compliance with this section.
   § 3. Paragraph (j) of subdivision 2-a of section 313 of the  executive
 law,  as amended by chapter 96 of the laws of 2019, is amended and a new
 paragraph (k) is added to read as follows:
   (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]
   (K)  ENCOURAGE  JOINT  VENTURES,  PARTNERSHIPS,   AND   MENTOR-PROTEGE
 RELATIONSHIPS AS DEFINED IN SECTION ONE HUNDRED FORTY-SEVEN OF THE STATE
 FINANCE  LAW,  BETWEEN  PRIME  CONTRACTORS  AND MINORITY AND WOMEN-OWNED
 BUSINESS ENTERPRISES; AND
   § 4. Subdivision 3 and paragraph (a) of subdivision 5 of  section  313
 of  the executive law, as amended by chapter 96 of the laws of 2019, are
 amended to read as follows:
   3. Solely for the purpose of providing the opportunity  for  [meaning-
 ful]  INCREASED participation by certified businesses in the performance
 A. 3963                             5
 
 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, replace-
 ment, major repair or renovation of real property and improvements ther-
 eon  by  such  lessee;  and  the  cost of such construction, demolition,
 replacement, major repair or renovation of real  property  and  improve-
 ments  thereon  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, demo-
 lition,  replacement,  major  repair  or renovation of real property and
 improvements thereon, such provisions as [may]  SHALL  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; (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.
   (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 and women owned business enter-
 prises adopted pursuant to this  article  and  the  regulations  of  the
 director.  Such  rules  and  regulations:  shall require a contractor to
 submit a utilization plan [after bids are opened] AT THE TIME  BIDS  ARE
 SUBMITTED,  when  bids  are required[, but prior to the award of a state
 contract]; shall require the contracting agency to review  the  utiliza-
 tion  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;  shall  require  the
 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] QUARTERLY compliance reports relating to the opera-
 tion 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 partic-
 ipation  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
 A. 3963                             6
 
 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.
   §  5.  Subdivisions  1, 2-a and 3 of section 315 of the executive law,
 subdivisions 1 and 3 as amended and subdivision 2-a as added by  chapter
 96  of  the laws of 2019, are amended and two new subdivisions 3-a and 8
 are added to read as follows:
   1. Each contracting agency shall be responsible for  monitoring  state
 contracts under its jurisdiction, and recommending matters to the office
 respecting  non-compliance  with  the provisions of this article so that
 the office [may] SHALL take such action as [is  appropriate]  STATED  IN
 SUBDIVISION THREE OF SECTION THREE HUNDRED SIXTEEN OF THIS ARTICLE. EACH
 CONTRACTING  AGENCY  SHALL HAVE THE RIGHT TO RECOMMEND THAT THE DIRECTOR
 IMPOSE A SANCTION, PENALTY, OR FINE FOR  THREE  OR  MORE  VIOLATIONS  OF
 SUBDIVISION  ONE  OF  SECTION  THREE HUNDRED SIXTEEN OF THIS ARTICLE, to
 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-a. [To the extent practicable, upon completion  of  the  restrictive
 period  of a procurement, each] 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 COMMISSIONER OF ECONOM-
 IC  DEVELOPMENT,  THE  COMMISSIONER OF GENERAL SERVICES AND the director
 with respect to activities undertaken to promote employment of  minority
 group members and women and promote and increase participation by certi-
 fied  businesses  with respect to state contracts and subcontracts. Such
 reports shall be submitted [no later than May fifteenth of  every  year]
 QUARTERLY  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 arti-
 cle, including,  without  limitation,  THE  NUMBER  OF  STATE  CONTRACTS
 AWARDED  TO  CERTIFIED MINORITY OR WOMEN-OWNED BUSINESS ENTERPRISES; THE
 MAXIMUM DOLLAR AMOUNT OBLIGATED PURSUANT TO ALL THOSE CONTRACTS; AND THE
 TOTAL EXPENDITURES MADE PURSUANT TO ALL SUCH CONTRACTS;  THE  NUMBER  OF
 STATE  CONTRACTS  AWARDED  WHICH INCLUDE A UTILIZATION PLAN FOR BUSINESS
 PARTICIPATION BY CERTIFIED MINORITY OR WOMEN-OWNED BUSINESS ENTERPRISES,
 THE MAXIMUM AMOUNT OBLIGATED PURSUANT TO THOSE CONTRACTS, AND THE  TOTAL
 EXPENDITURES MADE PURSUANT TO ALL SUCH CONTRACTS; a summary of all waiv-
 ers  of  the requirements 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,  THE  MAXIMUM  AMOUNT OBLIGATED PURSUANT TO THOSE CONTRACTS; THE
 NUMBER OF STATE CONTRACTS AWARDED WHICH REQUIRED GOALS FOR EMPLOYMENT OF
 MINORITY GROUP MEMBERS AND WOMEN; THE NUMBER OF STATE CONTRACTS  AWARDED
 FOR  WHICH  WAIVERS  OF  EMPLOYMENT GOALS REQUIRED BY THE CONTRACTS HAVE
 BEEN GRANTED, 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 direc-
 A. 3963                             7
 
 tor 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.
   3-A.  WITHIN  THIRTY  DAYS  AFTER  COMPLETION, A COPY OF THE QUARTERLY
 MINORITY AND WOMEN-OWNED BUSINESS ENTERPRISE REPORT SHALL BE TRANSMITTED
 TO THE COMMISSIONER OF ECONOMIC DEVELOPMENT, THE COMMISSIONER OF GENERAL
 SERVICES, AND THE DIRECTOR. A CONTRACTING AGENCY, WHICH HAS NOT LET MORE
 THAN TWO MILLION DOLLARS IN SERVICE AND/OR CONSTRUCTION CONTRACTS WITHIN
 THE APPLICABLE PERIOD MAY APPLY TO THE COMMISSIONER OF ECONOMIC DEVELOP-
 MENT, AND THE DIRECTOR FOR A WAIVER OF THE REQUIRED ANNUAL  REPORT.  THE
 WAIVER  APPLICATION  SHALL  BE  MADE ON SUCH FORM AS THE COMMISSIONER OF
 ECONOMIC DEVELOPMENT AND THE DIRECTOR MAY PRESCRIBE.
   8. IF A  CONTRACTING  AGENCY  SHALL  FAIL  TO  FILE  OR  SUBSTANTIALLY
 COMPLETE,  AS DETERMINED BY THE COMMISSIONER OF ECONOMIC DEVELOPMENT AND
 THE DIRECTOR, THE REPORT REQUIRED BY THIS SECTION,  THE  DIRECTOR  SHALL
 PROVIDE  NOTICE  TO  THE  CONTRACTING AGENCY. THE NOTICE SHALL STATE THE
 FOLLOWING:
   (A) THAT THE FAILURE TO FILE A REPORT AS REQUIRED IS  A  VIOLATION  OF
 THIS  SECTION,  OR  IN THE CASE OF AN INSUFFICIENT REPORT, THE MANNER IN
 WHICH THE REPORT SUBMITTED IS DEFICIENT;
   (B) THAT THE CONTRACTING AGENCY HAS THIRTY DAYS TO  COMPLY  WITH  THIS
 SECTION  OR  PROVIDE AN ADEQUATE WRITTEN EXPLANATION TO THE COMMISSIONER
 OF ECONOMIC DEVELOPMENT AND THE COMMISSIONER OF GENERAL SERVICES AND THE
 DIRECTOR OF THE  CONTRACTING  AGENCY'S  REASONS  FOR  THE  INABILITY  TO
 COMPLY; AND
   (C)  THAT THE CONTRACTING AGENCY'S CONTINUED FAILURE TO PROVIDE EITHER
 THE REQUIRED REPORT OR AN ADEQUATE EXPLANATION WILL RESULT IN  AN  INDE-
 PENDENT  AUDIT  OF  THE  CONTRACTING  AGENCY, THE COST OF WHICH SHALL BE
 BORNE BY THE CONTRACTING AGENCY.
   § 6. Section 316 of the executive law, as amended by  chapter  567  of
 the laws of 2022, is amended to read as follows:
   § 316. [Enforcement]  VIOLATIONS  AND  ENFORCEMENT.   1. IT SHALL BE A
 VIOLATION FOR ANY PERSON OR ENTITY TO:
   (A) INTENTIONALLY USE OR ACQUIRE AN MWBE NAME THROUGH DECEIT OR  OTHER
 DISHONEST MEANS IN ORDER TO NEGOTIATE A LOWER BID FROM A NON-MWBE.
   (B)  SUBMIT  TO  THE  DEPARTMENT OF ECONOMIC DEVELOPMENT, DOCUMENTS OR
 OTHER MATERIAL AS EVIDENCE OF A GOOD FAITH EFFORT  TO  COMPLY  WITH  THE
 PROVISIONS  OF  THIS  ARTICLE  WITHOUT, IN FACT, HAVING ENTERED INTO ANY
 CONTRACT, AGREEMENT, SUBCONTRACT, OR SUB-AGREEMENT WITH AN MWBE FOR  THE
 USE  OR  PURCHASE OF SUCH BUSINESS ENTERPRISE'S GOODS OR SERVICES IN THE
 PERFORMANCE OF THE AWARDED STATE CONTRACT.
   (C) FAIL TO PROVIDE AN  MWBE  WITH  SUFFICIENT  INFORMATION  OR  OTHER
 REQUIRED  SUPPORTING  DOCUMENTATION  IN  ORDER FOR THE MWBE TO PREPARE A
 PROPER BID.
   2. 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
 A. 3963                             8
 
 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 article 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  seven-
 ty-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.] 3. THE DIRECTOR SHALL IMPOSE A SANCTION, PENALTY, OR FINE ON  ANY
 INDIVIDUAL  OR  ENTITY THAT HAS THREE OR MORE VIOLATIONS OF THIS ARTICLE
 WITHIN FIVE YEARS. Any fines, or portion thereof,  imposed  pursuant  to
 [the  foregoing  subdivision]  THIS  SECTION,  or  imposed by a court of
 competent jurisdiction related to convictions involving fraud related to
 this article or otherwise involving a minority or  women-owned  business
 enterprise, [may] SHALL be required by the entity imposing such fines to
 be  paid to the minority and women-owned business enterprise fund estab-
 lished pursuant to section ninety-seven-k  of  the  state  finance  law.
 SUCH FUNDS SHALL BE USED TO SUBSIDIZE THE FACILITATION OF THE PROVISIONS
 OF  THIS  ARTICLE.  OTHER SANCTIONS SHALL INCLUDE BARRING SUCH ENTITY OR
 INDIVIDUAL FROM CONTRACTING WITH SUCH AGENCY FOR A PERIOD NOT TO  EXCEED
 FIVE YEARS.
   §  7.  Subdivision 1 of section 137 of the state finance law, as sepa-
 rately amended by section 17 of part MM of chapter 57 and chapter 619 of
 the laws of 2008, is amended to read as follows:
   1. In addition to other bond or bonds, if any, required by law for the
 completion of a work specified in a contract for the  prosecution  of  a
 public  improvement for the state of New York a municipal corporation, a
 public benefit corporation or a commission appointed pursuant to law, or
 in the absence of any such requirement, the comptroller may or the other
 appropriate official, respectively, shall nevertheless require prior  to
 the  approval of any such contract a bond guaranteeing prompt payment of
 moneys due to all persons furnishing labor or materials to the  contrac-
 tor or any subcontractors in the prosecution of the work provided for in
 A. 3963                             9
 
 such  contract. Whenever a municipal corporation issues a permit subject
 to compliance with section two hundred twenty of  the  labor  law,  such
 permittee  or  its contractor or subcontractors furnishing workers shall
 post a payment bond subject to this section. Provided, however, that all
 performance  bonds  and payment bonds may, at the discretion of the head
 of the state agency, public benefit corporation or commission, or his or
 her designee, be dispensed with for the completion of a  work  specified
 in  a contract for the prosecution of a public improvement for the state
 of New York for which bids are solicited where the aggregate  amount  of
 the contract is under one hundred thousand dollars and provided further,
 that  in  a  case  where  the  contract  is  not subject to the multiple
 contract award requirements of section one hundred thirty-five  of  this
 article,  such  requirements may be dispensed with where the head of the
 state agency, public benefit corporation or commission finds it to be in
 the public interest and where  the  aggregate  amount  of  the  contract
 awarded or to be awarded is less than two hundred thousand dollars. IN A
 CASE  WHERE  A  CONTRACT  IS AWARDED TO A SMALL BUSINESS CONCERN OR TO A
 MINORITY OR WOMEN-OWNED BUSINESS  CONCERN,  ALL  PERFORMANCE  BONDS  AND
 PAYMENT  BONDS  MAY  BE  DISPENSED WITH WHEN THE AGGREGATE AMOUNT OF THE
 CONTRACT IS UNDER FIVE HUNDRED THOUSAND DOLLARS. ADVERTISEMENTS FOR BIDS
 SHALL PROVIDE INFORMATION AS TO THE REQUIREMENTS  FOR,  OR  DISPENSATION
 OF,  PERFORMANCE  AND  PAYMENT  BONDS.  Provided further, that in a case
 where a performance or payment bond is dispensed with, twenty per centum
 may be retained from each progress payment or estimate until the  entire
 contract work has been completed and accepted, at which time the head of
 the  state agency, public benefit corporation or commission shall, pend-
 ing the payment of the final estimate, pay not  to  exceed  seventy-five
 per centum of the amount of the retained percentage.
   §  8.  Subdivision  4  of  section  139-f of the state finance law, as
 amended by chapter 83 of the  laws  of  1995,  is  amended  to  read  as
 follows:
   4.  Notwithstanding  any other provision of this section or other law,
 requirements for the furnishing of a performance bond or a payment  bond
 may  be dispensed with at the discretion of the head of the state agency
 or corporation, or his or her designee, where  the  public  owner  is  a
 state  agency  or  corporation  described  in  subdivision one-a of this
 section and the aggregate amount  of  the  contract  awarded  or  to  be
 awarded  is  under  fifty  thousand  dollars  and,  in  a case where the
 contract is not subject to the multiple contract award  requirements  of
 section  one  hundred thirty-five of this article, such requirements may
 be dispensed with where the head of  the  state  agency  or  corporation
 finds  it to be in the public interest and where the aggregate amount of
 the contract awarded or to be awarded  is  under  two  hundred  thousand
 dollars.  IN  A  CASE  WHERE  A  CONTRACT IS AWARDED TO A SMALL BUSINESS
 CONCERN OR TO A MINORITY OR WOMEN-OWNED BUSINESS CONCERN,  ALL  PERFORM-
 ANCE  BONDS  AND  PAYMENT BONDS MAY BE DISPENSED WITH WHEN THE AGGREGATE
 AMOUNT OF THE CONTRACT IS UNDER FIVE HUNDRED  THOUSAND  DOLLARS.  ADVER-
 TISEMENTS FOR PROPOSALS SHALL PROVIDE INFORMATION AS TO THE REQUIREMENTS
 FOR,  OR  DISPENSATION  OF,  PERFORMANCE  AND  PAYMENT  BONDS.  Provided
 further, that in a case where a performance or payment bond is dispensed
 with, twenty per centum may be retained from each  progress  payment  or
 estimate until the entire contract work has been completed and accepted,
 at which time the head of the state agency or corporation shall, pending
 the  payment  of  the final estimate, pay not to exceed seventy-five per
 centum of the amount of the retained percentage.
 A. 3963                            10
 
   § 9. The opening paragraph of section 139-g of the state finance  law,
 as  amended  by  chapter  636 of the laws of 2003, is amended to read as
 follows:
   In  every  state  agency,  department and authority which has let more
 than two million dollars in service and construction contracts AND STATE
 ASSISTED PROJECT CONTRACTS in the prior fiscal year, the chief executive
 officer of that agency, department or authority shall, with  respect  to
 those  contracts  AND STATE ASSISTED PROJECT CONTRACTS let by his OR HER
 agency, department or authority:
   § 10. The opening paragraph of subdivision (b) of section 139-g of the
 state finance law, as amended by chapter 636 of the  laws  of  2003,  is
 amended to read as follows:
   identify  all  small-business  and  certified women and minority-owned
 business concerns which, in the judgment of the chief executive  officer
 of  that agency, department or authority, can bid on those contracts AND
 STATE ASSISTED PROJECT CONTRACTS which are usually and  customarily  let
 by  that  agency,  department  or  authority, OR IN WHICH THAT AUTHORITY
 PROVIDES A GRANT OR LOAN OR TAX  EXEMPT  FINANCING,  with  a  reasonable
 expectation  of  success.  Such chief executive officers shall carry out
 the provisions of this subdivision:
   § 11.  Section 139-g of the state finance law is amended by  adding  a
 new subdivision (e) to read as follows:
   (E)  FOR  THE PURPOSES OF THIS SECTION, THE FOLLOWING WORDS SHALL HAVE
 THE FOLLOWING MEANINGS:
   (I) "STATE ASSISTED PROJECT CONTRACT" SHALL MEAN ANY WRITTEN AGREEMENT
 ARISING OUT OF A  STATE  ASSISTED  HOUSING  PROJECT  OR  STATE  ASSISTED
 ECONOMIC  DEVELOPMENT PROJECT OR STATE ASSISTED HIGHER EDUCATION PROJECT
 OR STATE ASSISTED HOSPITAL OR HEALTH CARE FACILITY  PROJECT,  FOR  WHICH
 THE  TOTAL  PROJECT  COST  EXCEEDS TWO MILLION DOLLARS AND FOR WHICH THE
 PROJECT OWNER IS COMMITTED TO SPEND OR DOES EXPEND FUNDS FOR THE  ACQUI-
 SITION,  CONSTRUCTION,  DEMOLITION,  REPLACEMENT, MAJOR REPAIR, OR RENO-
 VATION OF REAL PROPERTY AND IMPROVEMENTS THEREON FOR SUCH PROJECT.
   (II) "STATE ASSISTED HOUSING PROJECT" SHALL MEAN THOSE PROJECTS  WHICH
 RECEIVE  FROM  THE  NEW  YORK  STATE  HOUSING  FINANCE AGENCY TAX-EXEMPT
 FINANCING FOR ALL OR PART OF THE TOTAL PROJECT COST.
   (III) "STATE ASSISTED ECONOMIC DEVELOPMENT PROJECT" SHALL  MEAN  THOSE
 PROJECTS WHICH RECEIVE FROM THE NEW YORK FOUNDATION OF SCIENCE TECHNOLO-
 GY  AND INNOVATION, OR THE URBAN DEVELOPMENT CORPORATION AND ITS SUBSID-
 IARIES A GRANT OR LOAN OR TAX-EXEMPT FINANCING FOR ALL OR  PART  OF  THE
 TOTAL PROJECT COST.
   (IV)  "STATE  ASSISTED  HIGHER  EDUCATION  PROJECT"  SHALL  MEAN THOSE
 PROJECTS WHICH RECEIVE FROM THE DORMITORY AUTHORITY OF THE STATE OF  NEW
 YORK  A  GRANT  OR  LOAN  OR TAX-EXEMPT FINANCING FOR ALL OR PART OF THE
 TOTAL PROJECT COST.
   (V) "STATE ASSISTED HOSPITAL OR HEALTH CARE  FACILITY  PROJECT"  SHALL
 MEAN  THOSE  PROJECTS  WHICH RECEIVE FROM THE DORMITORY AUTHORITY OF THE
 STATE OF NEW YORK A GRANT OR LOAN OR TAX-EXEMPT  FINANCING  FOR  ALL  OR
 PART OF THE TOTAL PROJECT COST.
   §  12.  This  act shall take effect immediately, provided however, the
 amendments to article 15-A of the executive law made  by  sections  one,
 two,  three,  four, five and six of this act shall not affect the repeal
 of such article and shall be deemed repealed therewith.