§ 2879. Procurement contracts. 1. Every public authority and public
benefit corporation, a majority of the members of which consist of
persons either appointed by the governor or who serve as members by
virtue of holding a civil office of the state, or a combination thereof,
(such entities to be hereinafter in this section referred to as
"corporation") shall adopt by resolution comprehensive guidelines which
detail the corporation's operative policy and instructions regarding the
use, awarding, monitoring and reporting of procurement contracts.
Guidelines approved by the corporation shall be annually reviewed and
approved by the corporation.

2. For purposes of this section, procurement contracts shall mean any
written agreement for the acquisition of goods or services of any kind,
in the actual or estimated amount of five thousand dollars or more.

3. The guidelines approved by the corporation shall include, but not
be limited to the following:

(a) A description of the types of goods purchased, and for procurement
contracts for services, a description of those areas of responsibility
and oversight requiring the use of personal services and the reasons for
the use of personal services in such areas.

(b) Requirements regarding the selection of contractors, which shall
include provisions:

(i) for the selection of such contractors on a competitive basis, and
provisions relating to the circumstances under which the board may by
resolution waive competition, including, notwithstanding any other
provision of law requiring competition, the purchase of goods or
services from small business concerns those certified as minority or
women-owned business enterprises, or goods or technology that are
recycled or remanufactured, in an amount not to exceed five hundred
thousand dollars without a formal competitive process;

(ii) describing when the award of procurement contracts shall require
approval of the board by resolution, provided that any contract
involving services to be rendered over a period in excess of one year
shall require the approval of the board by resolution and an annual
review of the contract by the board;

(iii) setting forth responsibilities of contractors;

(iv) as used in this subparagraph, the term "professional firm" shall
be defined as any individual or sole proprietorship, partnership,
corporation, association, or other legal entity permitted by law to
practice the professions of architecture, engineering or surveying.

The corporation shall not refuse to negotiate with a professional firm
solely because the ratio of the "allowable indirect costs" to direct
labor costs of the professional firm or the hourly labor rate in any
labor category of the professional firm exceeds a limitation generally
set by the corporation in the determination of the reasonableness of the
estimated cost of services to be rendered by the professional firm, but
rather the corporation should also consider the reasonableness of cost
based on the total estimated cost of the service of the professional
firm which should include, among other things, all the direct labor
costs of the professional firm for such services plus all "allowable
indirect costs," other direct costs, and negotiated profit of the
professional firm. "Allowable indirect costs" of a professional firm are
defined as those costs generally associated with overhead which cannot
be specifically identified with a single project or contract and are
considered reasonable and allowable under specific state contract or
allowability limits.

(c) An identification of those areas or types of contracts for which
minority or women-owned business enterprises may best bid so as to
promote and assist participation by such enterprises and facilitate a
fair share of the awarding of contracts to such enterprises. For the
purposes of this section, a minority business enterprise means any
business enterprise, including a sole proprietorship, partnership or
corporation that is:

(i) at least fifty-one percent owned by one or more minority group
members or in the case of a publicly-owned business at least fifty-one
percent of the common stock or other voting interests of which is owned
by one or more minority group members;

(ii) an enterprise in which the minority ownership is real,
substantial and continuing;

(iii) an enterprise in which the minority ownership has and exercises
the authority to control independently the day-to-day business decisions
of the enterprise; and

(iv) an enterprise authorized to do business in New York state,
independently owned and operated, and not dominant in its field.

(d) For the purposes of this section, a minority group member means a
United States citizen or permanent resident noncitizen who is and can
demonstrate membership in one of the following groups:

(i) Black persons having origins in any of the Black African racial
groups not of Hispanic origin;

(ii) Hispanic persons of Mexican, Puerto Rican, Dominican, Cuban,
Central or South American of either Indian or Hispanic origin,
regardless of race;

(iii) Asian and Pacific Islander persons having origins in any of the
Far East, Southeast Asia, the Indian sub-continent or the Pacific
Islands; or

(iv) Native American persons having origins in any of the original
peoples of North America.

(e) For the purposes of this section, a women-owned business
enterprise means a business enterprise, including a sole proprietorship,
partnership or corporation which is:

(i) at least fifty-one percent owned by one or more United States
citizens or permanent resident noncitizens who are women or in the case
of a publicly-owned business at least fifty-one percent of the common
stock or other voting interests of which is owned by United States
citizens or permanent resident noncitizens who are women;

(ii) an enterprise in which the ownership interest of women is real,
substantial and continuing;

(iii) an enterprise in which the women ownership has and exercises the
authority to control independently the day-to-day business decisions of
the enterprise; and

(iv) an enterprise authorized to do business in New York state,
independently owned and operated, and not dominant in its field.

(f) Requirements for the designation of one or more senior staff of
the corporation to oversee the corporation's programs established to
promote and assist: (i) participation by certified minority or
women-owned business enterprises in the corporation's procurement
opportunities and facilitation of the award of procurement contracts to
such enterprises; (ii) the utilization of certified minority and
women-owned business enterprises as subcontractors and suppliers by
entities having procurement contracts with the corporation; and (iii)
the utilization of partnerships, joint ventures or other similar
arrangements between certified minority and women-owned business
enterprises and other entities having procurement contracts with the
corporation. Such staff shall be familiar with the procurement of the
types of construction, financial, legal or professional services
utilized by the corporation, report directly to the corporation's
executive director, president or chief executive officer and either
directly or through their designees participate in the procurement
process.

(g) Requirements for providing notice, in addition to any other notice
of procurement opportunities required by law, to professional and other
organizations that serve minority and women-owned business enterprises
providing the types of services procured by the corporation.

(h) Procedures for maintaining lists of qualified certified minority
and women-owned business enterprises, including professional firms that
have expressed an interest in doing business with the corporation and
ensuring that such lists are updated regularly. The corporation shall
also consult the lists of certified minority and women-owned business
enterprises maintained by the department of economic development
pursuant to article fifteen-A of the executive law.

(i) The establishment of appropriate goals for participation by
minority or women-owned business enterprises in procurement contracts
awarded by the corporation and for the utilization of minority and
women-owned enterprises as subcontractors and suppliers by entities
having procurement contracts with the corporation. Statewide numerical
participation target goals shall be established by each authority based
on the findings of the two thousand ten disparity study.

(j) Requirements to conduct procurements in a manner that will enable
the corporation to achieve the maximum feasible portion of the goals
established pursuant to paragraph (i) of this subdivision and that
eliminates barriers to participation by minority and women-owned
business enterprises in the corporation's procurements. Such procurement
requirements shall include the following:

(A) Measures and procedures to ensure that certified businesses shall
be given the opportunity for maximum feasible participation in the
performance of state contracts and to assist in the corporation's
identification of those state contracts for which certified businesses
may best bid to actively and affirmatively promote and assist their
participation in the performance of state contracts so as to facilitate
the corporation's achievement of the maximum feasible portion of the
goals for state contracts to such businesses;

(B) Provisions designating the division of minority and women-owned
business development to certify and decertify minority and women-owned
business enterprises for all corporations through a single process that
meets applicable state and federal requirements;

(C) A requirement that each contract solicitation document
accompanying each solicitation set forth the expected degree of minority
and women-owned business enterprise participation based, in part, on:

I. the potential subcontract opportunities available in the prime
procurement contract; and

II. the availability of certified minority and women-owned business
enterprises to respond competitively to the potential subcontract
opportunities;

(D) A requirement that each corporation provide a current list of
certified minority business enterprises to each prospective contractor;

(E) Provisions relating to joint ventures, under which a bidder may
count toward meeting its minority business enterprise participation
goal, the minority and women-owned business enterprise portion of the
joint venture;

(F) Provisions under which the corporation may waive obligations of
the contractor relating to minority and women-owned business enterprise
participation after a showing of good faith efforts to comply with the
requirements of this act pursuant to the waiver provisions contained in
subdivision six of section three hundred thirteen of the executive law;

(G) A requirement that the corporation verify that minority and
women-owned business enterprises listed in a successful bid are actually
participating to the extent listed in the project for which the bid was
submitted;

(H) In the implementation of this section, the contracting corporation
shall:

I. consider, where practicable, the severability of construction
projects and other bundled contracts;

II. implement a program that will enable the corporation to evaluate
each contract to determine the appropriateness of the goal pursuant to
paragraph (i) of this subdivision;

III. consider compliance with the requirements of any federal law
concerning opportunities for minority and women-owned business
enterprises which effectuates the purpose of this section; and

IV. consult the most recent disparity study pursuant to article
fifteen-A of the executive law.

(k) A listing of the types of provisions to be contained in
procurement contracts, including provisions concerning the nature and
monitoring of the work to be performed, the use of corporate supplies
and facilities, the use of corporate personnel and any other provisions.

(l) Provisions regarding procurement contracts which involve former
officers or employees of the corporation.

(m) Procedures regarding procurement contracts which are exempt from
the publication requirements of article four-C of the economic
development law.

(n) Policies to promote the participation by New York state business
enterprises and New York state residents in procurement contracts,
including, but not limited to:

(i) providing for the corporation to collect and to consult the
specifications of New York state business enterprises in developing
specifications for any procurement contract for the purchase of goods
where possible, practicable, feasible and consistent with open bidding,
except for procurement contracts for which the corporation would be
expending funds received from another state. The corporation shall,
where feasible, make use of the stock item specification forms prepared
by the commissioner of general services, and where necessary, consult
with the commissioner of the office of general services, in developing
such specifications and make such determinations; and

(ii) with the cooperation of the department of economic development
and through cooperative efforts with contractors, providing for the
notification of New York state business enterprises of opportunities to
participate as subcontractors and suppliers on procurement contracts let
by the corporation in an amount estimated to be equal to or greater than
one million dollars and promulgating procedures which will assure
compliance by contractors with such notification. Once awarded the
contract such contractors shall document their efforts to encourage the
participation of New York state business enterprises as suppliers and
subcontractors on procurement contracts equal to or greater than one
million dollars. Documented efforts by a successful contractor shall
consist of and be limited to showing that such contractor has (a)
solicited bids, in a timely and adequate manner, from New York state
business enterprises including certified minority and women-owned
business, or (b) contacted the New York state department of economic
development to obtain listings of New York state business enterprises,
or (c) placed notices for subcontractors and suppliers in newspapers,
journals and other trade publications distributed in New York state, or
(d) participated in bidder outreach conferences. If the contractor
determines that New York state business enterprises are not available to
participate on the contract as subcontractors or suppliers, the
contractor shall provide a statement indicating the method by which such
determination was made. If the contractor does not intend to use
subcontractors on the contract, the contractor shall provide a statement
verifying such intent; and

(iii) except for procurement contracts for which the corporation would
be expending funds received from another state, the corporation shall
include in all bid documents provided to potential bidders a statement
that information concerning the availability of New York state
subcontractors and suppliers is available from the New York state
department of economic development, which shall include the directory of
certified minority and women-owned businesses, and it is the policy of
New York state to encourage the use of New York state subcontractors and
suppliers, and to promote the participation of minority and women-owned
businesses where possible, in the procurement of goods and services; and

(iv) with the cooperation of the community services division of the
department of labor and through cooperative efforts with contractors,
providing for the notification of New York state residents of employment
opportunities arising in New York state out of procurement contracts let
by the corporation in an amount estimated to be equal to or greater than
one million dollars; and promulgating procedures which will assure
compliance by contractors with such notification by requiring
contractors to submit post-award compliance reports documenting their
efforts to provide such notification through listing any such positions
with the community services division, or providing for such notification
in such manner as is consistent with existing collective bargaining
contracts or agreements; and

(v) including in each set of documents soliciting bids on procurement
contracts to let by the corporation a statement notifying potential
bidders located in foreign countries that the corporation may assign or
otherwise transfer offset credits created by such procurement contract
to third parties located in New York state; providing for the assignment
or other form of transfer of offset credits created by such procurement
contracts, directly or indirectly, to third parties located in New York
state, in accordance with the written directions of the commissioner of
economic development; and providing for the corporation to otherwise
cooperate with the department of economic development in efforts to get
foreign countries to recognize offset credits assigned or transferred to
third parties located in New York state created by such procurement
contracts; and

(vi) promulgating procedures which will assure compliance with the
federal equal employment opportunity act of 1972 (P.L. 92-261), as
amended, by contractors of the corporation.

(o) For the purposes of this section, a "New York state business
enterprise" means a business enterprise, including a sole
proprietorship, partnership, or corporation, which offers for sale or
lease or other form of exchange, goods which are sought by the
corporation and which are substantially manufactured, produced or
assembled in New York state, or services which are sought by the
corporation and which are substantially performed within New York state.

(p) For the purposes of this section, a "New York resident" means a
natural person who maintains a fixed, permanent and principal home
located within New York state and to which such person, whenever
temporarily located, always intends to return.

4. Each corporation shall have the power from time to time to amend
such procurement contract guidelines in accordance with the provisions
of this section.

5. (a) Each corporation shall notify the commissioner of economic
development of the award of a procurement contract for the purchase of
goods or services from a foreign business enterprise in an amount equal
to or greater than one million dollars simultaneously with notifying the
successful bidder therefor. No corporation shall thereafter enter into a
procurement contract for said goods or services until at least fifteen
days has elapsed, except for procurement contracts awarded on an
emergency or critical basis, or where the commissioner of economic
development waives the provisions of this sentence. The notification to
the commissioner of economic development shall include the name, address
and telephone and facsimile number of the foreign business enterprise, a
brief description of the goods or services to be obtained pursuant to
the proposed procurement contract, the amount of the proposed
procurement contract, the term of the proposed procurement contract, and
the name of the individual at the foreign business enterprise or acting
on behalf of the same who is principally responsible for the proposed
procurement contract. Such notification shall be used by the
commissioner of economic development solely to provide notification to
New York state business enterprises of opportunities to participate as
subcontractors and suppliers on such procurement contracts, to promote
and encourage the location and development of new business in the state,
to assist New York state business enterprises in obtaining offset
credits from foreign countries, and to otherwise investigate, study and
undertake means of promoting and encouraging the prosperous development
and protection of the legitimate interest and welfare of New York state
business enterprises, industry and commerce.

(b) As used in this section, the following terms shall have the
following meanings, unless a different meaning appears from the context:

(i) "Foreign business enterprise" shall mean a business enterprise,
including a sole proprietorship, partnership or corporation, which
offers for sale, lease or other form of exchange, goods which are sought
by the corporation and which are substantially produced outside New York
state, or services, other than construction services, sought by the
corporation which are substantially performed outside New York state.
For purposes of construction services, foreign business enterprise shall
mean a business enterprise, including a sole proprietorship, partnership
or corporation, which has its principal place of business outside New
York state.

(ii) "New York state business enterprise" shall mean a business
enterprise, including a sole proprietorship, partnership or corporation,
which offers for sale or lease or other form of exchange, goods which
are sought by the corporation and which are substantially manufactured,
produced or assembled in New York state, or services, other than
construction services, which are sought by the corporation and which are
substantially performed within New York state. For purposes of
construction services, a New York state business enterprise shall mean a
business enterprise, including a sole proprietorship, partnership, or
corporation, which has its principal place of business in New York
state.

(iii) "Discriminatory jurisdiction" shall mean any other country,
nation, province, state or political subdivision thereof which employs a
preference or price distorting mechanism to the detriment of or
otherwise discriminates against a New York state business enterprise in
the procurement of goods and services by the same or a non-governmental
entity influenced by the same. Such discrimination may include, but is
not limited to, any law, regulation, procedure or practice, terms or
license, authorization, or funding or bidding rights which requires or
encourages any agency or instrumentality of the state or political
subdivision thereof or non-governmental entity influenced by the same to
discriminate against a New York state business enterprise.

(c) In including any additional business enterprises on invitations to
bid for the procurement of goods or services, the chief executive
officer of the corporation shall not include any foreign business
enterprise which has its principal place of business located in a
discriminatory jurisdiction contained on the list prepared by the
commissioner of economic development pursuant to subdivision six of
section one hundred sixty-five of the state finance law, except,
however, business enterprises which are New York state business
enterprises as defined by this section. The corporation may waive the
application of the provisions of this section whenever the chief
executive officer of the corporation determines in writing that it is in
the best interests of the state to do so. The chief executive officer of
the corporation shall deliver each such waiver to the commissioner of
economic development.

(d) A corporation shall not enter into a contract with a foreign
business enterprise which has its principal place of business located in
a discriminatory jurisdiction contained on the list prepared by the
commissioner of economic development pursuant to subdivision six of
section one hundred sixty-five of the state finance law. The provisions
of this section may be waived by the chief executive officer of the
corporation if the chief executive officer of the corporation determines
in writing that it is in the best interests of the state to do so. The
chief executive officer of the corporation shall deliver each such
waiver to the commissioner of economic development.

6. Each corporation, as part of the guidelines established pursuant to
subdivision three of this section, shall establish policies regarding
the preparation of publicly available reports on procurement contracts
entered into by such corporation. Such policies shall provide, at the
minimum, for the preparation of a report no less frequently than
annually, summarizing procurement activity by such corporation for the
period of the report, including a listing of all procurement contracts
entered into, all contracts entered into with New York state business
enterprises and the subject matter and value thereof, all contracts
entered into with certified minority or women-owned business enterprises
and the subject matter and value thereof, all referrals made and all
penalties imposed pursuant to section three hundred sixteen of the
executive law, all contracts entered into with foreign business
enterprises, and the subject matter and value thereof, the selection
process used to select such contractors, all procurement contracts which
were exempt from the publication requirements of article four-C of the
economic development law, the basis for any such exemption and the
status of existing procurement contracts.

7. Each corporation shall annually prepare and approve a report on
procurement contracts which shall include the guidelines, as specified
in subdivision three of this section, an explanation of the guidelines
and any amendments thereto since the last annual report. Such report on
procurement contracts may be a part of any other annual report that the
corporation is required to make.

8. (a) Each corporation shall annually submit its report on
procurement contracts to the division of the budget and copies thereof
to the department of audit and control, the department of economic
development, the senate finance committee and the assembly ways and
means committee. Such report shall include the total number and total
dollar value of contracts awarded to certified minority and women-owned
business enterprises pursuant to subparagraph (i) of paragraph (b) of
subdivision three of this section.

(b) Each corporation shall make available to the public copies of its
report on procurement contracts upon reasonable request therefor.

9. Nothing contained in this section shall be deemed to alter, affect
the validity of, modify the terms of or impair any contract or agreement
made or entered into in violation of, or without compliance with, the
provisions of this section.