S T A T E   O F   N E W   Y O R K
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                                  1568

                       2015-2016 Regular Sessions

                            I N  S E N A T E

                            January 13, 2015
                               ___________

Introduced  by  Sen.  MONTGOMERY  -- read twice and ordered printed, and
  when printed to be committed to the Committee on Finance

AN ACT to amend the executive  law,  in  relation  to  participation  by
  minority  group  members  and  women  with  respect  to  certain state
  contracts; and to amend the state finance law, in relation  to  estab-
  lishing  a  mentor-protege  program  for small and minority and women-
  owned business concerns and in relation  to  performance  and  payment
  bond requirements

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

  Section 1. Subdivisions 3 and 4 of section 311 of the  executive  law,
subdivision  3  as  added by chapter 261 of the laws of 1988, paragraphs
(d) and (e) of subdivision 3 as amended by chapter 55  of  the  laws  of
1992,  paragraphs  (g) and (h) of subdivision 3 as amended and paragraph
(i) of subdivision 3 as added by section 1 of part BB of chapter  59  of
the laws of 2006 and subdivision 4 as amended by chapter 361 of the laws
of 2009, are amended to read as follows:
  3. The director shall have the following powers and duties:
  (a)  to  encourage and assist contracting agencies in their efforts to
increase participation by minority and women-owned business  enterprises
on  state  contracts and subcontracts so as to facilitate the award of a
fair share of such contracts to them AND TO PROVIDE  ON  THE  DIVISION'S
WEBSITE  A  LIST  OF  EACH CONTRACTING AGENCY'S MINORITY AND WOMEN-OWNED
BUSINESS ENTERPRISES CERTIFICATION OUTREACH SEMINARS;
  (b) to develop standardized forms and reporting documents necessary to
implement this article;
  (c) to conduct educational OUTREACH programs TO ENCOURAGE THE  CERTIF-
ICATION OF MINORITY AND WOMEN-OWNED BUSINESS ENTERPRISES consistent with
the purposes of this article;
  (d) to review [periodically] QUARTERLY the practices and procedures of
each  contracting  agency with respect to compliance with the provisions

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD03037-02-5
              

S. 1568                             2

of this article, and  to  require  them  to  file  [periodic]  QUARTERLY
reports  with  the division of minority and women's business development
as to the level of minority and women-owned business enterprises partic-
ipation  in  the  awarding  of  agency  contracts for goods and services
INCLUDING BUT NOT LIMITED TO THE NUMBER OF STATE  CONTRACTS  AWARDED  TO
CERTIFIED  MINORITY-OWNED OR WOMEN-OWNED BUSINESS ENTERPRISES, THE MAXI-
MUM DOLLAR AMOUNT OBLIGATED PURSUANT TO ALL  THOSE  CONTRACTS,  AND  THE
TOTAL  EXPENDITURES  MADE  PURSUANT TO ALL SUCH CONTRACTS; THE NUMBER OF
STATE CONTRACTS AWARDED TO CERTIFIED MINORITY  OR  WOMEN-OWNED  BUSINESS
ENTERPRISES,  THE  MAXIMUM DOLLAR AMOUNT OBLIGATED PURSUANT TO ALL THOSE
CONTRACTS,  AND  THE  TOTAL  EXPENDITURES  MADE  PURSUANT  TO  ALL  SUCH
CONTRACTS;  THE NUMBER OF STATE CONTRACTS AWARDED WHICH INCLUDE A UTILI-
ZATION  PLAN  FOR  BUSINESS  PARTICIPATION  BY  CERTIFIED  MINORITY   OR
WOMEN-OWNED  BUSINESS ENTERPRISES, THE MAXIMUM AMOUNT OBLIGATED PURSUANT
TO THOSE CONTRACTS, AND THE TOTAL EXPENDITURES MADE PURSUANT TO ALL SUCH
CONTRACTS; THE NUMBER OF STATE CONTRACTS AWARDED UPON WHICH A WAIVER WAS
GRANTED FROM GOALS REQUIRED BY THE CONTRACTS FOR BUSINESS  PARTICIPATION
BY CERTIFIED MINORITY OR WOMEN-OWNED BUSINESS ENTERPRISES, AND THE MAXI-
MUM  AMOUNT  OBLIGATED  PURSUANT TO THOSE CONTRACTS; THE NUMBER OF STATE
CONTRACTS AWARDED WHICH REQUIRED GOALS FOR EMPLOYMENT OF MINORITY  GROUP
MEMBERS  AND  WOMEN; AND THE NUMBER OF STATE CONTRACTS AWARDED FOR WHICH
WAIVERS OF EMPLOYMENT GOALS REQUIRED BY THE CONTRACTS HAVE BEEN GRANTED;
  (e) on January first of each year report to the governor,  THE  TEMPO-
RARY  PRESIDENT OF THE SENATE, THE SPEAKER OF THE ASSEMBLY, THE MINORITY
LEADERS OF THE SENATE AND THE ASSEMBLY,  and  the  chairpersons  of  the
senate  finance  and  assembly  ways and means committees on the [level]
ACTUAL VERSUS PROJECTED LEVELS  of  minority  and  women-owned  business
enterprises  participating  in  each agency's contracts for goods [and],
services AND CONSTRUCTION, INCLUDING BUT NOT LIMITED TO  THE  NUMBER  OF
STATE CONTRACTS AWARDED TO CERTIFIED MINORITY-OWNED OR WOMEN-OWNED BUSI-
NESS  ENTERPRISES,  THE  MAXIMUM DOLLAR AMOUNT OBLIGATED PURSUANT TO ALL
THOSE CONTRACTS, AND THE TOTAL EXPENDITURES MADE PURSUANT  TO  ALL  SUCH
CONTRACTS,  and on activities of the office and effort by each contract-
ing agency to promote employment of minority group  members  and  women,
and  to  promote and increase participation by certified businesses with
respect to state contracts and subcontracts  so  as  to  facilitate  the
award  of  a fair share of state contracts to such businesses. The comp-
troller shall assist the  division  in  collecting  information  on  the
participation  of  certified  business for each contracting agency. Such
report may recommend new  activities  and  programs  to  effectuate  the
purposes of this article;
  (f)  THE DIRECTOR SHALL LIST IN THE DIVISION'S ANNUAL REPORT THE NAMES
OF NON-COMPLIANT AGENCIES AND  THE  EXTENT  OF  THEIR  NONCOMPLIANCE  IN
SUBMITTING  ITS  QUARTERLY  MINORITY AND WOMEN-OWNED BUSINESS ENTERPRISE
UTILIZATION REPORTS; AND, SHALL IMPLEMENT A MASTER LIST OF ALL THE STATE
AGENCIES REQUIRED TO FILE QUARTERLY COMPLIANCE REPORTS AND SHALL  ATTACH
SUCH LIST TO THE DIVISION'S ANNUAL REPORT.
  (G)  to  prepare  and  update  [periodically] QUARTERLY a directory of
certified minority and women-owned  business  enterprises  which  shall,
wherever  practicable,  be  divided  into categories of labor, services,
supplies, equipment, materials and recognized  construction  trades  and
which  shall  indicate areas or locations of the state where such enter-
prises are available to perform services, AND TO USE THIS INFORMATION TO
CREATE AN INTERNET BASED, CENTRALIZED STATE REGISTRY TO ENABLE APPROPRI-
ATE STATE CERTIFIED MINORITY AND  WOMEN-OWNED  BUSINESS  ENTERPRISES  TO
ACCESS CONTRACT AND SUBCONTRACT OPPORTUNITIES;

S. 1568                             3

  [(g)]  (H)  to appoint independent hearing officers who by contract or
terms of employment shall preside over adjudicatory hearings pursuant to
section three hundred fourteen of this article for the  office  and  who
are assigned no other work by the office;
  [(h)]  (I) notwithstanding the provisions of section two hundred nine-
ty-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
paragraph  (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; and
  [(i)]  (J)  to  streamline  the  state certification process to accept
federal and municipal corporation certifications.
  4. The director [may] SHALL  provide  assistance  to,  and  facilitate
access to programs serving certified businesses as well as applicants to
ensure  that such businesses benefit, as needed, from technical, manage-
rial and financial, and general business assistance;  training;  market-
ing;  organization  and  personnel skill development; project management
assistance; technology assistance; bond and insurance education  assist-
ance; and other business development assistance. In addition, the direc-
tor [may] SHALL, either independently or in conjunction with other state
agencies:
  (a)  develop  a  clearinghouse of information on programs and services
provided by entities that may assist such businesses;
  (b) review bonding and paperwork requirements imposed  by  contracting
agencies that may unnecessarily impede the ability of such businesses to
compete; and
  (c)  seek to maximize utilization by minority and women-owned business
enterprises of available federal resources including but not limited  to
federal grants, loans, loan guarantees, surety bonding guarantees, tech-
nical  assistance,  and programs and services of the federal small busi-
ness administration.
  S 2. Subdivision 5 of section 312 of the executive law,  as  added  by
chapter 261 of the laws of 1988, is amended to read as follows:
  5.  The director shall promulgate rules and regulations to ensure that
contractors and subcontractors undertake programs of affirmative  action
and equal employment opportunity as required by this section. Such rules
and regulations as they pertain to any particular agency shall be devel-
oped  after consultation with contracting agencies. Such rules and regu-
lations [may] SHALL require a contractor, after notice in a  bid  solic-
itation,  to  submit  an equal employment opportunity program [after bid
opening and prior to the award of any contract] AT  THE  TIME  BIDS  ARE
SUBMITTED,  and  [may]  SHALL require the contractor or subcontractor to
submit compliance reports relating to the  contractor's  or  subcontrac-
tor's  operation  and implementation of any equal employment opportunity
program in effect as of the date the contract is executed. The contract-
ing agency [may recommend to the director that] SHALL HAVE THE RIGHT  TO
RECOMMEND  THAT  the  director  take appropriate action according to the
procedures set forth in section three hundred sixteen  of  this  article
against  the  contractor for noncompliance with the requirements of this
section. The contracting agency  shall  be  responsible  for  monitoring
compliance with this section.
  S 3. Subdivisions 2-a, 3 and paragraph (a) of subdivision 5 of section
313 of the executive law, subdivision 2-a as added and subdivision 3 and
paragraph  (a) of subdivision 5 as amended by chapter 175 of the laws of
2010, are amended to read as follows:

S. 1568                             4

  2-a. The director shall promulgate rules  and  regulations  that  will
accomplish the following:
  (a)  provide for the certification and decertification of minority and
women-owned business enterprises for all agencies through a single proc-
ess that meets applicable requirements;
  (b) require 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, as contained within  the  study,  of  certified
minority  and  women-owned business enterprises to respond competitively
to the potential subcontract opportunities;
  (c) require that each agency  provide  a  current  list  of  certified
minority business enterprises to each prospective contractor;
  (d)  allow  a  contractor that is a certified minority-owned or women-
owned business enterprise to use the work it performs to  meet  require-
ments for use of certified minority-owned or women-owned business enter-
prises as subcontractors;
  (e)  provide for joint ventures, which a bidder may count toward meet-
ing its minority and women-owned business enterprise participation;
  (f) consistent with subdivision  six  of  this  section,  provide  for
circumstances  under  which  an  agency  may  waive  obligations  of the
contractor relating to  minority  and  women-owned  business  enterprise
participation;
  (g)  require that an agency verify that minority and women-owned busi-
ness enterprises listed in a successful bid are  actually  participating
to the extent listed in the project for which the bid was submitted;
  (h)  provide  for  the  collection  of statistical data by each agency
concerning actual minority and women-owned business  enterprise  partic-
ipation; [and]
  (i)  require  each  agency to consult the most current disparity study
when calculating agency-wide and contract specific  participation  goals
pursuant to this article[.]; AND
  (J)   ENCOURAGE   JOINT  VENTURES,  PARTNERSHIPS,  AND  MENTOR-PROTEGE
RELATIONSHIPS AS DEFINED IN SECTION ONE HUNDRED FORTY-SEVEN OF THE STATE
FINANCE LAW, BETWEEN PRIME  CONTRACTORS  AND  MINORITY  AND  WOMEN-OWNED
BUSINESS ENTERPRISES.
  3.  Solely for the purpose of providing the opportunity for meaningful
participation by  certified  businesses  in  the  performance  of  state
contracts  as  provided  in  this section, state contracts shall include
leases of real property by a state agency to a lessee where:  the  terms
of  such  leases  provide for the construction, demolition, replacement,
major repair or renovation of real property and improvements thereon  by
such lessee; and the cost of such construction, demolition, replacement,
major  repair  or  renovation  of real property and improvements thereon
shall exceed the sum of one hundred thousand  dollars.  Reports  to  the
director pursuant to section three hundred fifteen of this article shall
include activities with respect to all such state contracts. Contracting
agencies  shall  include or require to be included with respect to state
contracts for the acquisition,  construction,  demolition,  replacement,
major  repair  or  renovation of real property and improvements thereon,
such provisions as [may] SHALL be necessary to effectuate the provisions
of this section in every bid specification and state  contract,  includ-
ing,  but not limited to: (a) provisions requiring contractors to make a
good faith effort to solicit active participation by enterprises identi-

S. 1568                             5

fied in the directory of certified businesses provided to the  contract-
ing agency by the office; (b) requiring the parties to agree as a condi-
tion  of  entering  into such contract, to be bound by the provisions of
section  three  hundred  sixteen  of this article; and (c) requiring the
contractor to include the provisions set forth in paragraphs (a) and (b)
of this subdivision in every subcontract in a manner that the provisions
will be binding upon each subcontractor as to work  in  connection  with
such contract. Provided, however, that no such provisions shall be bind-
ing upon contractors or subcontractors in the performance of work or the
provision  of services that are unrelated, separate or distinct from the
state contract as expressed by its terms, and nothing  in  this  section
shall  authorize  the  director  or any contracting agency to impose any
requirement on a contractor or subcontractor except with  respect  to  a
state contract.
  (a)  Contracting  agencies  shall administer the rules and regulations
promulgated by the director in a good faith effort to meet  the  maximum
feasible  portion of the agency's goals 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] AT THE TIME THE BIDS ARE SUBMITTED, when bids are required[, but
prior to the award of a state contract]; shall require  the  contracting
agency to review the utilization plan submitted by the contractor and to
post  the utilization plan and any waivers of compliance issued pursuant
to subdivision six of this section on the  website  of  the  contracting
agency  within  a reasonable period of time as established by the direc-
tor; 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 direc-
tor; shall require the contractor to submit [periodic] QUARTERLY compli-
ance reports relating to the operation and implementation of any  utili-
zation  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.
  S  4.  Subdivisions  1,  2  and 3 of section 315 of the executive law,
subdivisions 1 and 2 as added by chapter 261 of the  laws  of  1988  and
subdivision  3 as amended by chapter 175 of the laws of 2010 are amended
and a new subdivision 2-a is added to read as follows:
  1. Each contracting agency shall be responsible for  monitoring  state
contracts under its jurisdiction, and recommending matters to the office
respecting  non-compliance  with  the provisions of this article so that
the office [may] SHALL take such action as [is  appropriate]  STATED  IN
SUBDIVISION THREE OF SECTION THREE HUNDRED SIXTEEN OF THIS ARTICLE. EACH
CONTRACTING  AGENCY  SHALL HAVE THE RIGHT TO RECOMMEND THAT THE DIRECTOR
IMPOSE A SANCTION, PENALTY, OR FINE FOR  THREE  OR  MORE  VIOLATIONS  OF
SUBDIVISION  ONE  OF  SECTION  THREE HUNDRED SIXTEEN OF THIS ARTICLE, to

S. 1568                             6

insure compliance with the provisions of this  article,  the  rules  and
regulations  of  the  director  issued  hereunder  and  the  contractual
provisions required pursuant to this article. All  contracting  agencies
shall  comply  with  the  rules  and  regulations  of the office and are
directed to cooperate with the office and to furnish to the office  such
information  and assistance as may be required in the performance of its
functions under this article.
  2. Each contracting agency shall  provide  to  prospective  bidders  a
current copy of the directory of certified businesses, and a copy of the
regulations required pursuant to sections three hundred twelve and three
hundred  thirteen  of  this  article  at  the time bids or proposals are
solicited.
  2-A. EACH CONTRACTING AGENCY WHEN NOTIFYING A CONTRACTOR OF A  WINNING
BID  AWARD SHALL ALSO NOTIFY ANY MINORITY OR WOMEN-OWNED BUSINESS ENTER-
PRISES AFFILIATED WITH SUCH CONTRACTOR, PER THE  CONTRACTOR'S  SUBMITTED
UTILIZATION PLAN, OF SUCH CONTRACTOR'S RECEIPT OF THE WINNING BID AWARD.
  3.  [Each contracting agency shall report to the director with respect
to activities undertaken to promote employment of minority group members
and women and promote and increase participation by certified businesses
with respect to state contracts and subcontracts. Such reports shall  be
submitted  periodically,  but  not  less  frequently  than  annually, as
required by the director, and  shall  include  such  information  as  is
necessary  for  the director to determine whether the contracting agency
and contractor have complied with the purposes of this article,  includ-
ing, without limitation, a summary of all waivers of the requirements of
subdivisions  six  and  seven  of section three hundred thirteen of this
article allowed by the contracting agency during the period  covered  by
the  report,  including a description of the basis of the waiver request
and the rationale for granting any such waiver. Each agency  shall  also
include  in  such  annual  report whether or not it has been required to
prepare a remedial plan, and, if so, the plan and the  extent  to  which
the  agency  has  complied  with  each  element  of  the plan.] (A) EACH
CONTRACTING AGENCY SHALL PREPARE A QUARTERLY REPORT AND SUBMIT COPIES TO
THE COMMISSIONER OF ECONOMIC DEVELOPMENT, THE  COMMISSIONER  OF  GENERAL
SERVICES,  AND  THE DIRECTOR AS TO THE LEVEL OF MINORITY AND WOMEN-OWNED
BUSINESS ENTERPRISES PARTICIPATION IN THE AWARDING OF  AGENCY  CONTRACTS
FOR  GOODS  AND  SERVICES,  INCLUDING  BUT NOT LIMITED TO, THE NUMBER OF
STATE CONTRACTS AWARDED TO CERTIFIED MINORITY  OR  WOMEN-OWNED  BUSINESS
ENTERPRISES;  THE  MAXIMUM DOLLAR AMOUNT OBLIGATED PURSUANT TO ALL THOSE
CONTRACTS,  AND  THE  TOTAL  EXPENDITURES  MADE  PURSUANT  TO  ALL  SUCH
CONTRACTS;  THE NUMBER OF STATE CONTRACTS AWARDED WHICH INCLUDE A UTILI-
ZATION  PLAN  FOR  BUSINESS  PARTICIPATION  BY  CERTIFIED  MINORITY   OR
WOMEN-OWNED  BUSINESS ENTERPRISES, THE MAXIMUM AMOUNT OBLIGATED PURSUANT
TO THOSE CONTRACTS, AND THE TOTAL EXPENDITURES MADE PURSUANT TO ALL SUCH
CONTRACTS; THE NUMBER OF STATE CONTRACTS AWARDED UPON WHICH A WAIVER WAS
GRANTED FROM GOALS REQUIRED BY THE CONTRACTS FOR BUSINESS  PARTICIPATION
BY CERTIFIED MINORITY OR WOMEN-OWNED BUSINESS ENTERPRISES, AND THE MAXI-
MUM  AMOUNT  OBLIGATED  PURSUANT TO THOSE CONTRACTS; THE NUMBER OF STATE
CONTRACTS AWARDED WHICH REQUIRED GOALS FOR EMPLOYMENT OF MINORITY  GROUP
MEMBERS  AND  WOMEN; AND THE NUMBER OF STATE CONTRACTS AWARDED FOR WHICH
WAIVERS OF EMPLOYMENT GOALS REQUIRED BY THE CONTRACTS HAVE BEEN GRANTED;
  (B) IN ADDITION, EACH CONTRACTING AGENCY SHALL BE RESPONSIBLE FOR  THE
COST  OF  AN  INDEPENDENT  AUDIT  RESULTING  FROM  THE AGENCY'S REPEATED
VIOLATIONS OF THIS SECTION.
  (C) WITHIN THIRTY DAYS AFTER  COMPLETION,  A  COPY  OF  THE  QUARTERLY
MINORITY AND WOMEN-OWNED BUSINESS ENTERPRISE REPORT SHALL BE TRANSMITTED

S. 1568                             7

TO THE COMMISSIONER OF ECONOMIC DEVELOPMENT, THE COMMISSIONER OF GENERAL
SERVICES, AND THE DIRECTOR. A CONTRACTING AGENCY, WHICH HAS NOT LET MORE
THAN TWO MILLION DOLLARS IN SERVICE AND/OR CONSTRUCTION CONTRACTS WITHIN
THE APPLICABLE PERIOD MAY APPLY TO THE COMMISSIONER OF ECONOMIC DEVELOP-
MENT,  AND  THE DIRECTOR FOR A WAIVER OF THE REQUIRED ANNUAL REPORT. THE
WAIVER APPLICATION SHALL BE MADE ON SUCH FORM  AS  THE  COMMISSIONER  OF
ECONOMIC DEVELOPMENT AND THE DIRECTOR MAY PRESCRIBE.
  (D)  IF  A  CONTRACTING  AGENCY  SHALL  FAIL  TO FILE OR SUBSTANTIALLY
COMPLETE, AS DETERMINED BY THE COMMISSIONER OF ECONOMIC DEVELOPMENT  AND
THE  DIRECTOR,  THE  REPORT REQUIRED BY THIS SECTION, THE DIRECTOR SHALL
PROVIDE NOTICE TO THE CONTRACTING AGENCY. THE  NOTICE  SHALL  STATE  THE
FOLLOWING:
  (I)  THAT  THE  FAILURE TO FILE A REPORT AS REQUIRED IS A VIOLATION OF
THIS SECTION, OR IN THE CASE OF AN INSUFFICIENT REPORT,  THE  MANNER  IN
WHICH THE REPORT SUBMITTED IS DEFICIENT;
  (II)  THAT  THE CONTRACTING AGENCY HAS THIRTY DAYS TO COMPLY WITH THIS
SECTION OR PROVIDE AN ADEQUATE WRITTEN EXPLANATION TO  THE  COMMISSIONER
OF ECONOMIC DEVELOPMENT AND THE COMMISSIONER OF GENERAL SERVICES AND THE
DIRECTOR  OF  THE  CONTRACTING  AGENCY'S  REASONS  FOR  THE INABILITY TO
COMPLY; AND
  (III) THAT THE  CONTRACTING  AGENCY'S  CONTINUED  FAILURE  TO  PROVIDE
EITHER  THE REQUIRED REPORT OR AN ADEQUATE EXPLANATION WILL RESULT IN AN
INDEPENDENT AUDIT OF THE CONTRACTING AGENCY, THE COST OF WHICH SHALL  BE
BORNE BY THE CONTRACTING AGENCY.
  S  5.  Section  316 of the executive law, as amended by chapter 175 of
the laws of 2010, is amended to read as follows:
  S 316. [Enforcement] VIOLATIONS AND ENFORCEMENT.   1. IT  SHALL  BE  A
VIOLATION FOR ANY PERSON OR ENTITY TO:
  (A)  INTENTIONALLY USE OR ACQUIRE AN MWBE NAME THROUGH DECEIT OR OTHER
DISHONEST MEANS IN ORDER TO NEGOTIATE A LOWER BID FROM A NON-MWBE.
  (B) SUBMIT TO THE DEPARTMENT OF  ECONOMIC  DEVELOPMENT,  DOCUMENTS  OR
OTHER  MATERIAL  AS  EVIDENCE  OF A GOOD FAITH EFFORT TO COMPLY WITH THE
PROVISIONS OF THIS ARTICLE WITHOUT, IN FACT,  HAVING  ENTERED  INTO  ANY
CONTRACT,  AGREEMENT, SUBCONTRACT, OR SUB-AGREEMENT WITH AN MWBE FOR THE
USE OR PURCHASE OF SUCH BUSINESS ENTERPRISE'S GOODS OR SERVICES  IN  THE
PERFORMANCE OF THE AWARDED STATE CONTRACT.
  (C)  FAIL  TO  PROVIDE  AN  MWBE  WITH SUFFICIENT INFORMATION OR OTHER
REQUIRED SUPPORTING DOCUMENTATION IN ORDER FOR THE  MWBE  TO  PREPARE  A
PROPER BID.
  2. Upon receipt by the director of a complaint by a contracting agency
that  a contractor has violated the provisions of a state contract which
have been included to comply with the provisions of this article or of a
contractor that a contracting agency has violated such provisions or has
failed or refused to issue a waiver  where  one  has  been  applied  for
pursuant  to  subdivision  six of section three hundred thirteen of this
article or has denied such application, the director  shall  attempt  to
resolve  the matter giving rise to such complaint. If efforts to resolve
such matter to the satisfaction of all  parties  are  unsuccessful,  the
director  shall  refer  the matter, within thirty days of the receipt of
the complaint, to the division's hearing officers.  Upon  conclusion  of
the  administrative  hearing,  the  hearing  officer shall submit to the
director his or her decision regarding  the  alleged  violation  of  the
contract  and  recommendations  regarding  the  imposition of sanctions,
fines or penalties. The director, within ten  days  of  receipt  of  the
decision,  shall  file  a determination of such matter and shall cause a
copy of such determination along with a  copy  of  this  article  to  be

S. 1568                             8

served  upon  the  contractor  by  personal service or by certified mail
return receipt requested. The decision of the hearing officer  shall  be
final  and may only be vacated or modified as provided in article seven-
ty-eight  of  the  civil practice law and rules upon an application made
within the time provided by  such  article.  The  determination  of  the
director as to the imposition of any fines, sanctions or penalties shall
be  reviewable  pursuant  to article seventy-eight of the civil practice
law and rules. The penalties imposed for any violation which is premised
upon  either  a  fraudulent  or  intentional  misrepresentation  by  the
contractor  or the contractor's willful and intentional disregard of the
minority and  women-owned  participation  requirement  included  in  the
contract may include a determination that the contractor shall be ineli-
gible  to  submit a bid to any contracting agency or be awarded any such
contract for a period not to exceed one year following the final  deter-
mination;  provided  however, if a contractor has previously been deter-
mined to be ineligible to submit a bid pursuant  to  this  section,  the
penalties imposed for any subsequent violation, if such violation occurs
within  five  years  of the first violation, may include a determination
that the contractor shall be ineligible to submit a bid to any contract-
ing agency or be awarded any such contract for a period  not  to  exceed
five  years  following the final determination. The division of minority
and women's business development shall maintain a  website  listing  all
contractors that have been deemed ineligible to submit a bid pursuant to
this  section  and the date after which each contractor shall once again
become eligible to submit bids.
  3.  THE DIRECTOR SHALL IMPOSE A SANCTION,  PENALTY,  OR  FINE  ON  ANY
INDIVIDUAL  OR  ENTITY THAT HAS THREE OR MORE VIOLATIONS OF THIS ARTICLE
WITHIN FIVE YEARS. SUCH FINE SHALL BE PAID BY SUCH INDIVIDUAL OR ENTITY.
SUCH FINE SHALL BE REMITTED AND DEPOSITED INTO A FUND, TO BE MANAGED  BY
THE  COMMISSIONER  OF ECONOMIC DEVELOPMENT.  SUCH FUNDS SHALL BE USED TO
SUBSIDIZE THE FACILITATION OF THE  PROVISIONS  OF  THIS  ARTICLE.  OTHER
SANCTIONS SHALL INCLUDE BARRING SUCH ENTITY OR INDIVIDUAL FROM CONTRACT-
ING WITH SUCH AGENCY FOR A PERIOD NOT TO EXCEED FIVE YEARS.
  S  6.  Subdivision 1 of section 137 of the state finance law, as sepa-
rately amended by section 17 of part MM of chapter 57 and by chapter 619
of the laws of 2008, is amended to read as follows:
  1. In addition to other bond or bonds, if any, required by law for the
completion of a work specified in a contract for the  prosecution  of  a
public  improvement for the state of New York a municipal corporation, a
public benefit corporation or a commission appointed pursuant to law, or
in the absence of any such requirement, the comptroller may or the other
appropriate official, respectively, shall nevertheless require prior  to
the  approval of any such contract a bond guaranteeing prompt payment of
moneys due to all persons furnishing labor or materials to the  contrac-
tor or any subcontractors in the prosecution of the work provided for in
such  contract. Whenever a municipal corporation issues a permit subject
to compliance with section two hundred twenty of  the  labor  law,  such
permittee  or  its contractor or subcontractors furnishing workers shall
post a payment bond subject to this section. Provided, however, that all
performance bonds and payment bonds may, at the discretion of  the  head
of the state agency, public benefit corporation or commission, or his or
her  designee,  be dispensed with for the completion of a work specified
in a contract for the prosecution of a public improvement for the  state
of  New  York for which bids are solicited where the aggregate amount of
the contract is under one hundred FIFTY thousand  dollars  and  provided
further,  that in a case where the contract is not subject to the multi-

S. 1568                             9

ple contract award requirements of section one  hundred  thirty-five  of
this  article, such requirements may be dispensed with where the head of
the state agency, public benefit corporation or commission finds  it  to
be in the public interest and where the aggregate amount of the contract
awarded  or to be awarded is less than two hundred thousand dollars. THE
HEAD OF THE STATE AGENCY, PUBLIC BENEFIT CORPORATION OR  COMMISSION,  OR
HIS  OR HER DESIGNEE, SHALL ADJUST THE AGGREGATE CONTRACT AMOUNTS LISTED
IN THIS SUBDIVISION EVERY YEAR TO ACCOUNT FOR INCREASES IN THE COSTS  OF
CONSTRUCTION.  ADVERTISEMENTS  FOR BIDS SHALL PROVIDE INFORMATION ON THE
REQUIREMENTS FOR, OR DISPENSATION OF,  PERFORMANCE  AND  PAYMENT  BONDS.
Provided  further, that in a case where a performance or payment bond is
dispensed with, twenty per centum may be  retained  from  each  progress
payment  or  estimate  until the entire contract work has been completed
and accepted, at which time the head of the state agency, public benefit
corporation or commission shall, pending the payment of the final  esti-
mate,  pay  not  to  exceed seventy-five per centum of the amount of the
retained percentage.
  S 7. Subdivision 4 of section 139-f  of  the  state  finance  law,  as
amended  by  chapter  83  of  the  laws  of  1995, is amended to read as
follows:
  4. Notwithstanding any other provision of this section or  other  law,
requirements  for the furnishing of a performance bond or a payment bond
may be dispensed with at the discretion of the head of the state  agency
or  corporation,  or  his  or  her designee, where the public owner is a
state agency or corporation  described  in  subdivision  one-a  of  this
section  and  the  aggregate  amount  of  the  contract awarded or to be
awarded is under fifty  thousand  dollars  and,  in  a  case  where  the
contract  is  not subject to the multiple contract award requirements of
section one hundred thirty-five of this article, such  requirements  may
be  dispensed  with  where  the  head of the state agency or corporation
finds it to be in the public interest and where the aggregate amount  of
the contract awarded or to be awarded is under [two] THREE hundred thou-
sand  dollars.  THE HEAD OF THE STATE AGENCY, PUBLIC BENEFIT CORPORATION
OR COMMISSION, OR HIS  OR  HER  DESIGNEE,  SHALL  ADJUST  THE  AGGREGATE
CONTRACT  AMOUNTS  LISTED  IN THIS SUBDIVISION EVERY YEAR TO ACCOUNT FOR
INCREASES IN THE COSTS OF CONSTRUCTION. ADVERTISEMENTS  FOR  BIDS  SHALL
PROVIDE  INFORMATION  ON  THE  REQUIREMENTS  FOR,  OR  DISPENSATION  OF,
PERFORMANCE AND PAYMENT BONDS. Provided further, that in a case where  a
performance  or payment bond is dispensed with, twenty per centum may be
retained from  each  progress  payment  or  estimate  until  the  entire
contract work has been completed and accepted, at which time the head of
the  state agency or corporation shall, pending the payment of the final
estimate, pay not to exceed seventy-five per centum of the amount of the
retained percentage.
  S 8. The opening paragraph of section 139-g of the state finance  law,
as  amended  by  chapter  636 of the laws of 2003, is amended to read as
follows:
  In every state agency, department and authority  which  has  let  more
than two million dollars in service and construction contracts AND STATE
ASSISTED PROJECT CONTRACTS in the prior fiscal year, the chief executive
officer  of  that agency, department or authority shall, with respect to
those contracts AND STATE ASSISTED PROJECT CONTRACTS let by his  OR  HER
agency, department or authority:
  S  9. The opening paragraph of subdivision (b) of section 139-g of the
state finance law, as amended by chapter 636 of the  laws  of  2003,  is
amended to read as follows:

S. 1568                            10

  identify  all  small-business  and  certified women and minority-owned
business concerns which, in the judgment of the chief executive  officer
of  that agency, department or authority, can bid on those contracts AND
STATE ASSISTED PROJECT CONTRACTS which are usually and  customarily  let
by  that  agency,  department  or  authority, OR IN WHICH THAT AUTHORITY
PROVIDES A GRANT OR LOAN OR TAX  EXEMPT  FINANCING,  with  a  reasonable
expectation  of  success.  Such chief executive officers shall carry out
the provisions of this subdivision:
  S 10.  Section 139-g of the state finance law is amended by  adding  a
new subdivision (e) to read as follows:
  (E)  FOR  THE PURPOSES OF THIS SECTION, THE FOLLOWING WORDS SHALL HAVE
THE FOLLOWING MEANINGS:
  (I) "STATE ASSISTED PROJECT CONTRACT" SHALL MEAN ANY WRITTEN AGREEMENT
ARISING OUT OF A  STATE  ASSISTED  HOUSING  PROJECT  OR  STATE  ASSISTED
ECONOMIC  DEVELOPMENT PROJECT OR STATE ASSISTED HIGHER EDUCATION PROJECT
OR STATE ASSISTED HOSPITAL OR HEALTH CARE FACILITY  PROJECT,  FOR  WHICH
THE  TOTAL  PROJECT  COST  EXCEEDS TWO MILLION DOLLARS AND FOR WHICH THE
PROJECT OWNER IS COMMITTED TO SPEND OR DOES EXPEND FUNDS FOR THE  ACQUI-
SITION,  CONSTRUCTION,  DEMOLITION,  REPLACEMENT, MAJOR REPAIR, OR RENO-
VATION OF REAL PROPERTY AND IMPROVEMENTS THEREON FOR SUCH PROJECT.
  (II) "STATE ASSISTED HOUSING PROJECT" SHALL MEAN THOSE PROJECTS  WHICH
RECEIVE  FROM  THE  NEW  YORK  STATE  HOUSING  FINANCE AGENCY TAX-EXEMPT
FINANCING FOR ALL OR PART OF THE TOTAL PROJECT COST.
  (III) "STATE ASSISTED ECONOMIC DEVELOPMENT PROJECT" SHALL  MEAN  THOSE
PROJECTS WHICH RECEIVE FROM THE NEW YORK FOUNDATION OF SCIENCE TECHNOLO-
GY  AND INNOVATION, OR THE URBAN DEVELOPMENT CORPORATION AND ITS SUBSID-
IARIES A GRANT OR LOAN OR TAX-EXEMPT FINANCING FOR ALL OR  PART  OF  THE
TOTAL PROJECT COST.
  (IV)  "STATE  ASSISTED  HIGHER  EDUCATION  PROJECT"  SHALL  MEAN THOSE
PROJECTS WHICH RECEIVE FROM THE DORMITORY AUTHORITY OF THE STATE OF  NEW
YORK  A  GRANT  OR  LOAN  OR TAX-EXEMPT FINANCING FOR ALL OR PART OF THE
TOTAL PROJECT COST.
  (V) "STATE ASSISTED HOSPITAL OR HEALTH CARE  FACILITY  PROJECT"  SHALL
MEAN  THOSE  PROJECTS  WHICH RECEIVE FROM THE DORMITORY AUTHORITY OF THE
STATE OF NEW YORK A GRANT OR LOAN OR TAX-EXEMPT  FINANCING  FOR  ALL  OR
PART OF THE TOTAL PROJECT COST.
  S  11.  This  act shall take effect immediately, provided however, the
amendments to article 15-A of the executive law made  by  sections  one,
two, three, four and five of this act shall not affect the expiration of
such article and shall expire therewith.