S T A T E O F N E W Y O R K
________________________________________________________________________
841
2023-2024 Regular Sessions
I N S E N A T E
January 6, 2023
___________
Introduced by Sen. BAILEY -- read twice and ordered printed, and when
printed to be committed to the Committee on Rules
AN ACT to amend the executive law and the state finance law, in relation
to minority and women-owned business enterprise fraud and the monies
of the minority and women-owned business enterprise fund; to amend a
chapter of the laws of 2022 amending the executive law and the state
finance law relating to minority and women-owned business enterprises
post completion certification, duties of the director and creating the
minority and women-owned business enterprise fund, as proposed in
legislative bills numbers S. 3390-A and A. 9259-A, in relation to the
effectiveness thereof; and to repeal certain provisions of the execu-
tive law relating thereto
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Section 314-a of the executive law, as added by a chapter
of the laws of 2022 amending the executive law and the state finance law
relating to minority and women-owned business enterprises post
completion certification, duties of the director and creating the minor-
ity and women-owned business enterprise fund, as proposed in legislative
bills numbers S. 3390-A and A. 9259-A, is REPEALED.
§ 2. Subdivision 5 of section 313 of the executive law, as amended by
chapter 96 of the laws of 2019, is amended to read as follows:
5. (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, when bids are required,
but prior to the award of a state contract; shall require the contract-
ing agency to review the utilization plan submitted by the contractor
and to post the utilization plan and any waivers of compliance issued
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD04146-01-3
S. 841 2
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] compliance
reports relating to the operation 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 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 partic-
ipation requirements or has denied such request for a waiver; and shall
allow a contracting agency to file a complaint with the director pursu-
ant to subdivision nine of this section in the event a contractor is
failing or has failed to comply with the minority and women-owned busi-
ness 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. 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 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.
(c) THE RULES AND REGULATIONS PROMULGATED PURSUANT TO THIS SUBDIVISION
REGARDING COMPLIANCE REPORTS SHALL PROVIDE THAT SUCH REPORTS SHALL
INCLUDE A STANDARDIZED PREPAYMENT DECLARATION, TO BE COMPLETED BEFORE
EACH PAYMENT TO A CONTRACTOR, IN WHICH: (I) A REPRESENTATIVE OF THE
CONTRACTOR LISTS ANY BUSINESS THAT WAS OR SHALL BE RELIED UPON FOR CRED-
IT TOWARD MINORITY AND WOMEN-OWNED BUSINESS ENTERPRISE PARTICIPATION AND
STATES UNDER PENALTY OF PERJURY THAT SUCH BUSINESS OR BUSINESSES
APPEARED ON THE DIVISION'S DIRECTORY OF CERTIFIED MINORITY AND WOMEN-
OWNED BUSINESS ENTERPRISES AT THE TIME OF CONTRACTING AND THAT EACH
BUSINESS PERFORMED OR SHALL PERFORM A COMMERCIALLY USEFUL FUNCTION ON
THE CONTRACT; AND (II) A REPRESENTATIVE OF ANY BUSINESS THAT WAS OR
SHALL BE RELIED UPON FOR CREDIT TOWARD MINORITY AND WOMEN-OWNED BUSINESS
ENTERPRISE PARTICIPATION STATES UNDER PENALTY OF PERJURY THAT IT
APPEARED ON THE DIVISION'S DIRECTORY OF CERTIFIED MINORITY AND WOMEN-
OWNED BUSINESS ENTERPRISES AT THE TIME OF CONTRACTING AND PERFORMED OR
SHALL PERFORM A COMMERCIALLY USEFUL FUNCTION ON THE CONTRACT. SUCH
STANDARDIZED PREPAYMENT DECLARATIONS SHALL BE SUBMITTED ELECTRONICALLY
ON A CENTRALIZED STATE REGISTRY DESIGNATED BY THE DIVISION PRIOR TO ANY
PAYMENT TO A CONTRACTOR. THE RULES AND REGULATIONS PROMULGATED PURSUANT
TO THIS SUBDIVISION MAY ALSO REQUIRE THE CONTRACTOR OR SUBCONTRACTOR TO
SUBMIT DOCUMENTATION, AS NEEDED, TO SUPPORT ANY STATEMENTS MADE IN SUCH
STANDARDIZED PREPAYMENT DECLARATIONS.
(D) 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 contrac-
S. 841 3
tor's utilization plan within a period of time specified in regulations
promulgated by the director after receiving notification of such defi-
ciencies from the contracting agency. Where failure to remedy any noti-
fied deficiency in the utilization plan is a ground for disqualifica-
tion, that issue and all other grounds for disqualification shall be
stated in writing by the contracting agency. Where the contracting agen-
cy states that a failure to remedy any notified deficiency in the utili-
zation plan is a ground for disqualification the contractor shall be
entitled to an administrative hearing, on a record, involving all
grounds stated by the contracting agency. Such hearing shall be
conducted by the appropriate authority of the contracting agency to
review the determination of disqualification. A final administrative
determination made following such hearing shall be reviewable in a
proceeding commenced under article seventy-eight of the civil practice
law and rules, provided that such proceeding is commenced within thirty
days of the notice given by certified mail return receipt requested
rendering such final administrative determination. Such proceeding shall
be commenced in the supreme court, appellate division, third department
and such proceeding shall be preferred over all other civil causes
except election causes, and shall be heard and determined in preference
to all other civil business pending therein, except election matters,
irrespective of position on the calendar. Appeals taken to the court of
appeals of the state of New York shall be subject to the same prefer-
ence.
§ 3. Paragraphs (f), (h), (i), (j), (k), (l), (m) and (n) of subdivi-
sion 3 of section 311 of the executive law, paragraphs (f) and (j) as
amended and paragraphs (l), (m) and (n) as added by a chapter of the
laws of 2022 amending the executive law and the state finance law relat-
ing to minority and women-owned business enterprises post completion
certification, duties of the director and creating the minority and
women-owned business enterprise fund, as proposed in legislative bills
numbers S. 3390-A and A. 9259-A, and paragraphs (h), (i) and (k) as
amended by chapter 825 of the laws of 2021, are amended 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, (I) MAKE PUBLICLY AVAILABLE RECORDS OF ALL CERTIF-
ICATIONS AND RECERTIFICATIONS, (II) be divided into categories of labor,
services, supplies, equipment, materials and recognized construction
trades, and [which shall] (III) 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 busi-
ness enterprises];
(h) TO MAKE PUBLICLY AVAILABLE ON THE DIVISION'S WEBSITE RECORDS OF
ALL REVOCATIONS OF CERTIFICATION FOR CONVICTIONS FOR FRAUDULENTLY
MISREPRESENTING THE STATUS OF MINORITY OR WOMEN-OWNED BUSINESS ENTER-
PRISES OR FOR EVIDENCE OF FRAUDULENT CONDUCT WITH REGARD TO PARTIC-
IPATION OF A MINORITY OR WOMEN-OWNED BUSINESS ENTERPRISE IN THE PERFORM-
ANCE OF STATE CONTRACTS AND THE REASONING FOR SUCH REVOCATIONS AFTER A
FINAL DETERMINATION HAS BEEN MADE, PROVIDED THAT INFORMATION FALLING
INTO THE CATEGORIES ENUMERATED IN PARAGRAPHS (A) THROUGH (J) OF SUBDIVI-
SION TWO OF SECTION EIGHTY-SEVEN OF THE PUBLIC OFFICERS LAW SHALL BE
WITHHELD;
S. 841 4
(I) notwithstanding the provisions of section two hundred ninety-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 para-
graph (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 ON THE DIVISION'S WEBSITE 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], INCLUDING THE REASONING FOR DENIAL OF SUCH
WAIVERS AFTER A FINAL DETERMINATION HAS BEEN MADE, PROVIDED THAT INFOR-
MATION FALLING INTO THE CATEGORIES ENUMERATED IN PARAGRAPHS (A) THROUGH
(J) OF SUBDIVISION TWO OF SECTION EIGHTY-SEVEN OF THE PUBLIC OFFICERS
LAW SHALL BE WITHHELD;
[(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) 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]; and
(m) to [perform] COORDINATE WITH APPROPRIATE OFFICES, AGENCIES, OR
AUTHORITIES, WHERE APPLICABLE, TO CONDUCT SITE VISITS OR PERFORM
inspections of financial records of minority or women-owned business
enterprises [to ensure such enterprises are] in [compliance] ACCORDANCE
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] THIS ARTICLE AND THE REGULATIONS OF
THE DIRECTOR.
§ 4. Subdivision 3 of section 97-k of the state finance law, as added
by a chapter of the laws of 2022 amending the executive law and the
state finance law relating to minority and women-owned business enter-
prises post completion certification, duties of the director and creat-
ing the minority and women-owned business enterprise fund, as proposed
in legislative bills numbers S. 3390-A and A. 9259-A, is amended to read
as follows:
3. Monies of the fund, following appropriation by the legislature,
shall be expended BY THE APPROPRIATE NEW YORK STATE OFFICES, AGENCIES,
OR AUTHORITIES to acquire software, employ personnel to audit, investi-
gate 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, PROVIDED THAT EXPENDITURES FOR SUCH ACTIVITIES
SHALL ONLY BE REQUIRED UNDER THIS SECTION TO THE EXTENT THAT MONIES ARE
AVAILABLE IN THE FUND TO SUPPORT THEM.
§ 5. Section 6 of a chapter of the laws of 2022 amending the executive
law and the state finance law relating to minority and women-owned busi-
ness enterprises post completion certification, duties of the director
and creating the minority and women-owned business enterprise fund, as
proposed in legislative bills numbers S. 3390-A and A. 9259-A, is
amended to read as follows:
S. 841 5
§ 6. This act shall take effect [immediately] ON THE ONE HUNDRED
EIGHTIETH DAY AFTER IT SHALL HAVE BECOME A LAW; 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.
§ 6. This act shall take effect immediately; provided, however, that
sections one, two, three and four of this act shall take effect on the
same date and in the same manner as a chapter of the laws of 2022 amend-
ing the executive law and the state finance law relating to minority and
women-owned business enterprises post completion certification, duties
of the director and creating the minority and women-owned business
enterprise fund, as proposed in legislative bills numbers S. 3390-A and
A. 9259-A, takes effect; and provided, further, that the amendments made
to article 15-A of the executive law made by sections two and three of
this act shall not affect the repeal of such article and shall be deemed
repealed therewith.
