S T A T E   O F   N E W   Y O R K
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                                  7146

                       2013-2014 Regular Sessions

                          I N  A S S E M B L Y

                               May 2, 2013
                               ___________

Introduced by M. of A. CAMARA -- read once and referred to the Committee
  on Governmental Operations

AN ACT to amend the state finance law, in relation to the state procure-
  ment  council  and  special  provisions  regarding joint ventures; and
  providing for the expiration and repeal of such provisions upon  expi-
  ration thereof

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. Paragraph n of subdivision 2 of section 161  of  the  state
finance  law, as added by chapter 173 of the laws of 2010, is amended to
read as follows:
  n. Recommend to the  commissioner  necessary  legislative  changes  or
modifications  to existing or proposed rules, regulations and procedures
that would increase access to the state's procurement process by minori-
ty-owned business enterprises and women-owned business  enterprises  and
create  model  language to be used by agencies when issuing requests for
bids or proposals to other solicitations or offers that  would  increase
the  ability  of  small businesses to participate in state procurements,
INCLUDING THROUGH TEAMING AND JOINT VENTURES AS DEFINED  IN  SUBDIVISION
NINE OF SECTION ONE HUNDRED SIXTY-FIVE OF THIS ARTICLE.
  S  2.  Section 165 of the state finance law is amended by adding a new
subdivision 9 to read as follows:
  9. SPECIAL PROVISIONS REGARDING JOINT VENTURES.
  A. DEFINITIONS. AS USED IN THIS SUBDIVISION:
  (I) "DISABLED VETERAN BUSINESS ENTERPRISE" IS AN  INDEPENDENTLY  OWNED
AND OPERATED BUSINESS ENTERPRISE IN WHICH A DISABLED VETERAN HAS A REAL,
SUBSTANTIAL,  AND  CONTINUING OWNERSHIP OF FIFTY-ONE PER CENT OR GREATER
AND HAS AND EXERCISES INDEPENDENT CONTROL OF THE DAY TO DAY DECISIONS OF
THE ENTERPRISE, AND WHICH HAS BEEN CERTIFIED AS A DISADVANTAGED BUSINESS
ENTERPRISE PURSUANT TO THE FEDERAL DEPARTMENT OF TRANSPORTATION OR OTHER
FEDERAL AGENCY PROCEDURES, OR CERTIFIED AS A  DISABILITY-OWNED  BUSINESS

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD09996-03-3
              

A. 7146                             2

ENTERPRISE  BY A NATIONAL CERTIFICATION ORGANIZATION SATISFACTORY TO THE
COMMISSIONER. THE TERM "DISABLED VETERAN" HAS THE  SAME  MEANING  AS  IN
PARAGRAPH  (B)  OF  SUBDIVISION  ONE OF SECTION EIGHTY-FIVE OF THE CIVIL
SERVICE  LAW  AND ADDITIONALLY MEANS A MEMBER OF THE ARMED FORCES OF THE
UNITED STATES WHO SERVED IN TIME OF WAR OR WHO SERVED IN AN AREA  DESIG-
NATED  BY  THE  PRESIDENT  OF  THE UNITED STATES BY EXECUTIVE ORDER AS A
"COMBAT ZONE" AT ANY TIME DURING THE PERIOD DESIGNATED BY THE  PRESIDENT
BY  EXECUTIVE  ORDER AS THE PERIOD OF COMBATANT ACTIVITIES IN SUCH ZONE,
AND WHO WAS HONORABLY DISCHARGED OR  RELEASED  UNDER  HONORABLE  CIRCUM-
STANCES FROM SUCH SERVICE, AND WHO IS A CITIZEN OF THE UNITED STATES AND
A RESIDENT OF THE STATE OF NEW YORK.
  (II)  "DIVERSITY  BUSINESS  ENTERPRISE"  OR "DIVERSITY BUSINESS ENTER-
PRISES" REFERS INDIVIDUALLY OR COLLECTIVELY, ACCORDING TO CONTEXT, TO  A
MINORITY  BUSINESS  ENTERPRISE,  A WOMEN'S BUSINESS ENTERPRISE, AND/OR A
DISABLED VETERAN BUSINESS ENTERPRISE.
  (III) "JOINT VENTURE" MEANS A BUSINESS, A PARTNERSHIP,  SOLE  PROPRIE-
TORSHIP, OR A CORPORATION FORMED UNDER THE LIMITED LIABILITY CORPORATION
LAW  OR  THE BUSINESS CORPORATION LAW BY A DIVERSITY BUSINESS ENTERPRISE
AND ONE OR MORE NEW YORK BUSINESS ENTERPRISES FOR A SPECIFIC PROJECT  IN
WHICH THE PARTIES CONTRIBUTE EQUITY, ASSETS, AND EXPERTISE.
  (IV)  "NEW YORK BUSINESS ENTERPRISE" MEANS A BUSINESS ENTITY FORMED IN
THIS STATE, WHOSE PRIMARY RESIDENCE IS  LOCATED  IN  THIS  STATE,  WHICH
REALIZES  MORE THAN HALF ITS GROSS REVENUES FROM ACTIVITIES CONDUCTED IN
THIS STATE AND WHICH HAS MORE THAN HALF ITS FULL TIME EMPLOYEES  LOCATED
IN THIS STATE. A NEW YORK BUSINESS ENTERPRISE MAY BE A PARTNERSHIP, SOLE
PROPRIETORSHIP,  OR  A  CORPORATION  FORMED  UNDER THE LIMITED LIABILITY
CORPORATION LAW, OR A CORPORATION FOR PROFIT FORMED UNDER  THE  BUSINESS
CORPORATION  LAW,  OR  EXISTING  ON  ITS  EFFECTIVE DATE AND THERETOFORE
FORMED UNDER ANY OTHER GENERAL STATUTE OR BY ANY  SPECIAL  ACT  OF  THIS
STATE  FOR  A  PURPOSE OR PURPOSES FOR WHICH A CORPORATION MAY BE FORMED
UNDER SUCH BUSINESS CORPORATION LAW, OTHER THAN A CORPORATION WHICH  MAY
BE FORMED UNDER THE COOPERATIVE CORPORATIONS LAW.
  (V) "TEAMING" MEANS A COOPERATIVE AGREEMENT BETWEEN ONE OR MORE DIVER-
SITY  BUSINESS ENTERPRISES AND ONE OR MORE NEW YORK BUSINESS ENTERPRISES
EXECUTED BY A  WRITTEN  INSTRUMENT  THAT  DEFINES  THE  COMMON  PURPOSE,
PERFORMANCE  GOALS,  APPROACH,  FINANCING, LIABILITY, AND ACCOUNTABILITY
FOR A PROJECT, THAT IS SATISFACTORY TO THE COMMISSIONER FOR THE PURPOSES
OF CONTRACTING PURSUANT TO THIS SUBDIVISION.
  B. THE COMMISSIONER SHALL TAKE SUCH  STEPS  AS  MAY  BE  NECESSARY  TO
DEVELOP  AND  IMPLEMENT  A  PILOT  PROGRAM  TO  INSURE  THAT CENTRALIZED
CONTRACTS PROVIDED PURSUANT TO THIS ARTICLE ALSO INCLUDE  PROVISION  FOR
JOINT VENTURES AND TEAMING ARRANGEMENTS AS DEFINED HEREIN, PROVIDED THAT
IN ANY SUCH JOINT VENTURE OR TEAMING ARRANGEMENT:
  (I)  THE  DIVERSITY  BUSINESS  ENTERPRISE SHALL PERFORM A SHARE OF THE
WORK NECESSARY TO SUCH CONTRACT EQUAL TO ITS OWNERSHIP OF  STOCK,  DIVI-
DENDS,  PROFIT,  OR CONTROL OF A JOINT VENTURE, WHICHEVER IS GREATER, OR
TO ITS POTENTIAL PROFITABILITY RETURN IN THE CASE OF TEAMING, AND
  (II) THE AGREEMENT IS DEMONSTRATED TO THE SATISFACTION OF THE  COMMIS-
SIONER  TO  BRING  RESOURCES AND EXPERTISE TO THE PROJECT THAT WOULD NOT
OTHERWISE BE AVAILABLE WITHIN THE SCOPE OF EXPERTISE, ABILITIES,  ACTIV-
ITIES  OF THE DIVERSITY BUSINESS ENTERPRISE, OR WHICH WOULD BE OTHERWISE
LIMITED BY RESOURCES AVAILABLE TO THE DIVERSITY BUSINESS  ENTERPRISE  IF
SUCH ENTERPRISE SOUGHT TO PERFORM THE WORK ITSELF, AND
  (III)  THE  PROPOSAL OFFERS, IN THE JUDGEMENT OF THE COMMISSIONER, THE
SERVICES OR COMMODITIES AT A PRICE EQUAL TO OR LESS THAN WOULD OTHERWISE

A. 7146                             3

BE CHARGED BY AN ENTITY WHICH IS NOT A JOINT VENTURE  OR  WHICH  IS  NOT
INVOLVED IN SUCH TEAMING AGREEMENT, AND
  (IV) THE JOINT VENTURE OR TEAMING ENTITY MEETS REQUIREMENTS AND CRITE-
RIA  OF THE COMMISSIONER IN SUCH AREAS AS FINANCING, LIABILITY, ACCOUNT-
ABILITY, USE OF RESOURCES  AND  OTHER  CRITERIA  AND  REQUIREMENTS  THAT
DEMONSTRATE SIGNIFICANT ENGAGEMENT BY THE DIVERSITY BUSINESS ENTERPRISE,
PROVIDED  THAT  AN  ENTITY WHICH QUALIFIES AS A NEW YORK BUSINESS ENTER-
PRISE AT THE TIME OF THE EXECUTION OF A CONTRACT SHALL NOT BE  DISQUALI-
FIED  FOR  FAILING  TO MEET EMPLOYMENT AND GROSS REVENUE CRITERIA DURING
THE COURSE OF THE CONTRACT IF THE VARIATION IN REVENUES  AND/OR  EMPLOY-
MENT  IS  NO  MORE  THAN  TWENTY  PER CENT MORE THAN SUCH CRITERIA WOULD
OTHERWISE ALLOW.
  C. A JOINT VENTURE IN  WHICH  A  MINORITY  BUSINESS  ENTERPRISE  OR  A
WOMEN-OWNED  BUSINESS  ENTERPRISE HAS AN OWNERSHIP OF GREATER THAN FIFTY
PERCENT  SHALL  BE  ELIGIBLE  FOR  OPPORTUNITIES  FOR  PARTICIPATION  ON
CONTRACTS  FOR MINORITY AND WOMEN OWNED BUSINESS ENTERPRISES PURSUANT TO
ARTICLE FIFTEEN-A OF THE EXECUTIVE LAW.
  D. IN IMPLEMENTING THE PILOT PROGRAM THE COMMISSIONER MAY, IN ADDITION
TO OTHER CONTRACT REQUIREMENTS IMPOSED ON CONTRACTS AND  CONTRACTORS  OR
VENDORS  PURSUANT  TO  SECTION  ONE HUNDRED SIXTY-THREE OF THIS ARTICLE,
REQUIRE CONSIDERATION OF ADDITIONAL FACTORS INCLUDING DISTANCE FROM  THE
JOB  OR  PROJECT,  THE AMOUNT OR LEVEL OF GREEN TECHNOLOGY, FINANCIAL OR
EXPERT RESOURCES OF THE CONTRACTOR OR JOINT VENTURE OR TEAMING  ARRANGE-
MENTS,  ANCILLARY  COSTS  SUCH  AS  REQUIREMENTS  TO  BRING OR HIRE ON A
CONSULTANT BASIS EXPERTISE FROM OTHER AREAS OR STATES, THE FRESHNESS  OR
NEWNESS OF THE PRODUCT BEING PURCHASED AND THE IMPACT OF EXTENDED TRANS-
PORTATION  ON  IT,  AND  OTHER SIMILAR FACTORS.   THE COMMISSIONER SHALL
ADDITIONALLY WEIGH ANY CONSIDERATION IN THE AWARDING OF  A  CONTRACT  BY
THE  PERCENTAGE OF THE JOINT VENTURE OR TEAMING ARRANGEMENT ALLOCATED OF
THE DIVERSITY BUSINESS ENTERPRISE.
  E. THE COMMISSIONER SHALL REPORT ANNUALLY ON THE FIRST OF  JANUARY  OF
EACH YEAR, BEGINNING IN THE SECOND YEAR AFTER ENACTMENT OF THIS PROGRAM,
CONCERNING  THE  PILOT  PROGRAM  AUTHORIZED  BY THIS SECTION. THE REPORT
SHALL NOTE CONTRACTS LET TO  JOINT  VENTURES,  AND  THE  DEVELOPMENT  OF
DIVERSITY  BUSINESS  ENTERPRISES AS A RESULT OF SUCH JOINT VENTURES. THE
COMMISSIONER SHALL USE METRICS WHICH SHOW THE EFFECT OF THE  PROGRAM  ON
THE DEVELOPMENT AND STRENGTHENING OF DIVERSITY BUSINESS ENTERPRISES, AND
SHALL INCLUDE RECOMMENDATIONS FOR THE EXPANSION, ALTERATION, AND PERMAN-
ENTIZATION OF THE PROGRAM.
  S  3.  This  act shall take effect immediately and shall expire and be
deemed repealed on the thirty-first of December of the fifth  full  year
following the effective date of this act.