NY State Senate Bill 2023-S9869

Senate Bill S9869

2023-2024 Legislative Session

Authorizes political subdivisions to award public contracts to participants of a MWBE program at a cost premium not to exceed ten percent of the lowest bid

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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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jun 28, 2024	referred to rules

2023-S9869 (ACTIVE) - Details

See Assembly Version of this Bill:: A1271
Current Committee:: Senate Rules
Law Section:: General Municipal Law
Laws Affected:: Amd §104-a, Gen Muni L
Versions Introduced in Other Legislative Sessions:: 2019-2020: S5094, A10263
2021-2022: S2247, A7496

2023-S9869 (ACTIVE) - Summary

Authorizes political subdivisions to award public contracts to participants of a minority and women owned business enterprise program at a cost premium not to exceed ten percent of the lowest bid.

2023-S9869 (ACTIVE) - Sponsor Memo

                                 
BILL NUMBER: S9869

SPONSOR: SANDERS
 
TITLE OF BILL:

An act to amend the general municipal law, in relation to authorizing
political subdivisions to award public contracts to participants of a
minority and women owned business enterprise program at a cost premium
not to exceed ten percent of the lowest bid as an available remedy to a
demonstrated disparity

 
PURPOSE OR GENERAL IDEA OF BILL:

To ensure MWBE certified businesses can compete for local procurement
opportunities.

 
SUMMARY OF SPECIFIC PROVISIONS:

Amends Section 104-a of the general municipal law to provide that when
purchasing goods, services or construction for public use on contracts
less than one million a municipality may award the contract as reason-
ably competitive when (1) a study has found that there is or has been a

disparity between the availability and the utilization of MWBEs in the
award of contracts by such political subdivision or district therein;
and (2) the bid does not exceed the lowest bid by more than ten percent.

 
JUSTIFICATION:

Many MWBEs are losing contracts by very small margins (a few percentage
points). Though localities like the City of New York, which have
increased its certified MWBE firms by over 40% from December 2006 to
December 2007, the number of firms who win contracts remain very low,
despite the goals set forth in NYC Local law 129 and the goals and
utilization plans set forth by the individual agencies.  Due to Genera
Municipal Law .5 103, localities cannot require agencies to award
contracts to anyone but a lowest responsible bidder. This constrains
localities from developing a stronger program that might result in more
contract awards to certified MWBEs.

As many MWBEs are losing bids by very narrow margins, legislation that
would allow the localities to give certified firms a small price prefer-
ence could help address this problem. State Finance law § 165(3) (b)
(i)already allows for such a price preference for the state purchase of
recycled goods (state agencies may purchase recycled commodities at a
cost premium not to exceed ten percent of what a non-recycled commodity
would cost or not to exceed 15% for commodities with over 50% secondary
materials generated from NY waste stream). Legislation that mirrors STF
§ 165, would allow municipalities to give certified MWBEs a small price
preference òwhen awarding qualifying contracts.

 
PRIOR LEGISLATIVE HISTORY:

2021-22: A07496; referred to governmental operations

2019-20: A10263; referred to governmental operations

 
FISCAL IMPLICATIONS:


None to the State; local impact would depend on how the law is imple-
mented by a municipality.

 
EFFECTIVE DATE:
This act shall take effect on the 30th day after becoming law.

2023-S9869 (ACTIVE) - Bill Text download pdf

                             
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   9869
 
                             I N  S E N A T E
 
                               June 28, 2024
                                ___________
 
 Introduced  by  Sen. SANDERS -- read twice and ordered printed, and when
   printed to be committed to the Committee on Rules
 
 AN ACT to amend the general municipal law, in  relation  to  authorizing
   political  subdivisions to award public contracts to participants of a
   minority and women owned business enterprise program at a cost premium
   not to exceed ten percent of the lowest bid as an available remedy  to
   a demonstrated disparity
 
   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. Section 104-a of the general municipal law, as  amended  by
 chapter 468 of the laws of 1994, is amended to read as follows:
   §  104-a.  Purchasing [of products] for public use. 1. Notwithstanding
 the provisions of section one hundred three of this  [chapter]  ARTICLE,
 when  purchasing  products the officer, board or agency of any political
 subdivision or of any district therein  charged  with  the  awarding  of
 public  contracts may, wherever recycled products meet contract specifi-
 cations and the  price  of  such  products  is  reasonably  competitive,
 purchase  such  products.  For the purpose of this [section] SUBDIVISION
 and until July first, nineteen hundred  ninety-six,  "recycled  product"
 shall  mean any product which has been manufactured from secondary mate-
 rials, as defined in subdivision one of section two hundred sixty-one of
 the economic development  law,  and  meets  secondary  material  content
 requirements  adopted  by the office of general services [under subdivi-
 sion one of section one hundred seventy-seven of the state finance  law]
 for  products  available  to the political subdivision or district under
 state contract or, if no such contract for such  product  is  available,
 any  product  which  meets  the  secondary material content requirements
 adopted by the political subdivision or district thereof with respect to
 a specific commodity procurement by  such  entity.  On  and  after  July
 first,  nineteen  hundred ninety-six, "recycled product" shall mean, for
 the purposes of this [section] SUBDIVISION, any product which  is  manu-
 factured  from  secondary  materials,  as  defined in subdivision one of
 section two hundred sixty-one of the economic development law, and which
 meets the requirements of subdivision two  of  section  27-0717  of  the
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.

                                                            LBD01150-01-3
 S. 9869                             2
 
 environmental  conservation  law  and  regulations  promulgated pursuant
 thereto. For the purpose  of  this  [section]  SUBDIVISION,  "reasonably
 competitive"  shall  mean that the cost of the recycled product does not
 exceed  a  cost  premium  of  ten percent above the cost of a comparable
 product that is not a recycled product or, if at least fifty percent  of
 the  secondary materials utilized in the manufacture of that product are
 generated from the waste stream in New York state, the cost of the recy-
 cled product does not exceed a cost premium of fifteen percent above the
 cost of a comparable product that is not a recycled product.
   Whenever such officer, board or agency shall  purchase  or  cause  the
 purchase  of  printing on recycled paper pursuant to this section, he or
 she shall require the printed material to  contain  the  official  state
 recycling  emblem  established  pursuant  to  subdivision two of section
 27-0717 of the environmental conservation law and regulations promulgat-
 ed pursuant thereto if such paper has been approved by the department of
 environmental conservation as satisfying the requirements of such  stat-
 ute and regulations, or, if such paper has not been so approved, require
 the  printed material to include a printed statement which indicates the
 percentages of pre-consumer and post-consumer recycled material  content
 of such paper.
   2. NOTWITHSTANDING THE PROVISIONS OF SECTION ONE HUNDRED THREE OF THIS
 ARTICLE, WHEN PURCHASING GOODS, SERVICES OR CONSTRUCTION FOR PUBLIC USE,
 THE  OFFICER,  BOARD  OR  AGENCY  OF ANY POLITICAL SUBDIVISION OR OF ANY
 DISTRICT THEREIN CHARGED WITH THE  AWARDING  OF  PUBLIC  CONTRACTS  THAT
 EMPLOY A MINORITY OR WOMEN OWNED BUSINESS ENTERPRISE (MWBE) PROGRAM, MAY
 AWARD  ANY  CONTRACT  VALUED  AT  NO  MORE THAN ONE MILLION DOLLARS TO A
 PARTICIPANT OF SUCH PROGRAM EVEN IF SUCH PARTICIPANT IS NOT  THE  LOWEST
 BIDDER  FOR SUCH CONTRACT, PROVIDED, HOWEVER THAT SUCH AWARD MAY ONLY BE
 MADE TO THE LOWEST MWBE BID THAT IS REASONABLY  COMPETITIVE.    FOR  THE
 PURPOSE  OF  THIS  SUBDIVISION,  AN "MWBE PROGRAM" SHALL BE DEFINED AS A
 PROGRAM DESIGNED TO INCREASE PARTICIPATION OF MWBES IN PUBLIC  CONTRACT-
 ING  THAT IS BASED ON A STUDY IN WHICH IT WAS FOUND THAT THERE IS OR HAS
 BEEN A DISPARITY BETWEEN THE AVAILABILITY AND THE UTILIZATION  OF  MWBES
 IN  THE  AWARD  OF  CONTRACTS  BY SUCH POLITICAL SUBDIVISION OR DISTRICT
 THEREIN. FOR THE PURPOSE OF THIS SUBDIVISION,  "REASONABLY  COMPETITIVE"
 SHALL MEAN THAT THE MWBE BID DOES NOT EXCEED THE LOWEST BID BY MORE THAN
 TEN PERCENT.
   §  2.  This  act shall take effect on the thirtieth day after it shall
 have become a law.

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