NY State Senate Bill 2023-S1757

Senate Bill S1757

2023-2024 Legislative Session

Requires 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

download bill text pdf

Current Bill Status - In Senate Committee Rules Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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Actions

View Actions

	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jun 07, 2024	committed to rules
May 20, 2024	advanced to third reading
May 16, 2024	2nd report cal.
May 15, 2024	1st report cal.1144
Jan 03, 2024	referred to procurement and contracts
Jun 10, 2023	committed to rules
May 24, 2023	advanced to third reading
May 23, 2023	2nd report cal.
May 22, 2023	1st report cal.1195
Jan 13, 2023	referred to procurement and contracts

Votes

- May 15, 2024 - Procurement And Contracts Committee Vote
  S1757
  
  5
  
  Aye
  
  0
  
  Nay
  
  2
  
  Aye with Reservations
  
  0
  
  Absent
  
  0
  
  Excused
  
  0
  
  Abstained
  - - Procurement And Contracts Committee Vote: May 15, 2024
      
      aye (5)
      
      Cooney
      
      Gonzalez
      
      Sanders Jr.
      
      Stavisky
      
      Webb
      
      aye wr (2)
      
      Martins
      
      Rolison
  May 22, 2023 - Procurement And Contracts Committee Vote
  S1757
  
  5
  
  Aye
  
  0
  
  Nay
  
  2
  
  Aye with Reservations
  
  0
  
  Absent
  
  0
  
  Excused
  
  0
  
  Abstained
  - - Procurement And Contracts Committee Vote: May 22, 2023
      
      aye (5)
      
      Cooney
      
      Gonzalez
      
      Sanders Jr.
      
      Stavisky
      
      Webb
      
      aye wr (2)
      
      Martins
      
      Rolison

co-Sponsors

2023-S1757 (ACTIVE) - Details

See Assembly Version of this Bill:: A1266
Current Committee:: Senate Rules
Law Section:: Executive Law
Laws Affected:: Amd §313, Exec L
Versions Introduced in Other Legislative Sessions:: 2019-2020: S9094
2021-2022: S634, A7778

2023-S1757 (ACTIVE) - Summary

Requires 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; mandates that the prime contractor use such enterprise identified on the utilization plan, unless such enterprise cannot perform or is no longer state certified.

2023-S1757 (ACTIVE) - Sponsor Memo

                                 
BILL NUMBER: S1757

SPONSOR: SANDERS
 
TITLE OF BILL:

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

 
PURPOSE OR GENERAL IDEA OF BILL:

This bill would requires contractors to submit a utilization plan at the
time it submits a bid and specifies timeframes when work assignment and
payments to MWBES must be received and made, respectively.

 
SUMMARY OF PROVISIONS:

This legislation seeks to prevent contractors from circumventing Article
15-A to the detriment of MWBEs. This bill strengthens Article 15-A by
requiring:

1) Contractors to submit a utilization plan at the time it submits a bid
in response to a Request For Proposal (RFP)from an agency or authority;

2) Agencies or authorities to contact and inform the MBE and WBE that
they were identified on the utilization plan;

3) Contractors to provide MBEs and WBEs with a work assignment and
execute a subcontract agreement within 45 days of being awarded the
contract from the agency or authority. A contractor's failure to comply
with this provision will result in the agency awarding the contract to
the next lowest bidder or bidder;

4) Contractors to make a payment to the MBE or WBE within 20 days of
receiving payment from the agency or authority. Should a MBE or WBE
notifies the agency that it has not received payment from the prime
contractor, the contracting agency will notify contractor to make
payment to MBE or WBE with 10 days. A contractor's failure to comply
with this provision will result in the agency awarding the contract to
the next lowest bidder or bidder;

5) This bill self-certify goal.clarifies that a prime contractor who is
certified MBE can as a MBE and perform under the contract to meet its
MBE

6) This bill self-certifyclarifies that a prime contractor who is certi-
fied WBE can as a WBE and perform under the contract to meet its WEE
goal only, but must utilize a MBE to satisfy the MBE goal of the
contract because a WBE can never satisfy or meet the MBE goal of a
contract.

7) This bill clarifies that a prime contractor who is dually certified
as a MBE or WBE can self-certify as both a MBE and WBE and, perform
under the contract to meet its both goals.

8) Section 2 makes it clear that this bill applies to all contracts that
an agency issues a Request for Proposal that can otherwise be awarded

through the agency's discretionary contract award process, even if the
agency does not have such a process.

 
JUSTIFICATION:

Due to certain loop holes in Article 15-A, contractors are not required
to submit a utilization plan until after it is awarded a contract or
submits a utilization plan without contacting the MBE or WBE but uses
their information to be considered and/or awarded contracts.This bill
also specifies the timeframes for a contractor to execute a subcontract
agreement; provide work assignments; and make payments to MBEs and WBEs
post contract award. Failure for contractors to comply with these
provisions will result in the agency or authority re-awarding contract
to next lowest bidders or bidders.

This bill also makes clear that a certified WBE can never be used to
satisfy the MBE goal of a contract, and agencies cannot issue waivers on
such ground. Further, a prime contractor can meet the MBE and WBE goals
of a contract if it is a certified MBE or WBE or both.

 
PRIOR LEGISLATIVE HISTORY:

2021-22 REFERRED TO SENATE PROCUREMENT AND CONTRACTS

2021-22 referred to assembly governmental operations

2020 REFERRED TO SENATE RULES

 
FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS:

None

 
EFFECTIVE DATE:
This act shall take effect immediately.

2023-S1757 (ACTIVE) - Bill Text download pdf

                             
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   1757
 
                        2023-2024 Regular Sessions
 
                             I N  S E N A T E
 
                             January 13, 2023
                                ___________
 
 Introduced  by  Sen. SANDERS -- read twice and ordered printed, and when
   printed to be committed to the Committee on Procurement and Contracts
 
 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
 AWARD NOTIFICATION LETTER  TO  THE  MINORITY  AND  WOMEN-OWNED  BUSINESS
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD01171-01-3

 S. 1757                             2
 
 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.
   (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.
 S. 1757                             3
 
   (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.

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Senate Bill S1757

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Sponsored By

James Sanders Jr.

Current Bill Status - In Senate Committee Rules Committee

co-Sponsors

Jeremy A. Cooney

Nathalia Fernandez

Kevin S. Parker

Lea Webb

2023-S1757 (ACTIVE) - Details

2023-S1757 (ACTIVE) - Summary

2023-S1757 (ACTIVE) - Sponsor Memo

2023-S1757 (ACTIVE) - Bill Text download pdf

Comments