Establishes state agency goal submission procedure; defines goal as the aim of ensuring that certified minority-owned and woman-owned business enterprises are given meaningful participation in employment; further provides for state agency compliance reporting.
BILL NUMBER: S1799
TITLE OF BILL :
An act to amend the executive law, in relation to establishing state agency goal submission procedure
PURPOSE OR GENERAL IDEA OF BILL :
This bill would establish a procedure requiring state agencies and authorities subject to Article 15-A of the Executive Law to submit a goal plan and to establish compliance reporting of such goals in order to facilitate the participation of minority-owned and women-owned businesses on state contracts.
SUMMARY OF SPECIFIC PROVISIONS :
Section 1 would amend Section 310 of the Executive Law by adding a new subdivision 16 to define "goal" to mean the aim that state agencies must meet to ensure meaningful participation of minority-owned and women owned business enterprises in employment and in the performance of state contracts.
Section 2 would add new sections 315-a and 315-b to the Executive Law establishing a state agency goal submission procedure, including a provision which would require a state agency or authority to provide a written justification for failing to set a minimum goal of 5% or for submitting a goal lower than the prior years. section 315-a would establish a mechanism for compliance reporting which would include an immediate investigation and public hearings to review agencies found to be out of compliance for eight consecutive quarters.
EFFECTS OF PRESENT LAW WHICH THIS BILL WOULD ALTER :
This bill would provide the Division of Minority and Women Owned Business Enterprises a stronger method to ensure state agency compliance with the provisions of Article 15-A of the Executive Law.
In July 1988, Article 15-A of the Executive Law created the Governor's Office of Minority and Women's Business Enterprise (MWBE) Development. The office was created to facilitate the ability of MWBEs to secure state contracts and increase general employment and business opportunities for MWBES. In 1992, Article 4-A of the Economic Development Law merged this office with the Department of Economic Development (Empire State Development Corporation - ESDC) and renamed it the Division of Minority and Women's Business Development.
While there have been advances made in ensuring meaningful participation by minority-owned and women-owned businesses on state contracts, the procedure by which the Division has reviewed, approved and verified goal compliance appears to be haphazard and arbitrary. This legislation provides a necessary statutory mechanism for both goal submission and compliance with clear guidelines to facilitate participation, including public hearings.
PRIOR LEGISLATIVE HISTORY :
A.11690 (2002), A.805 (2003-04), A.3471 (2005-06), A1311A (2007-08)
FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS :
EFFECTIVE DATE : Immediately.
STATE OF NEW YORK ________________________________________________________________________ S. 1799 A. 4810 2009-2010 Regular Sessions S E N A T E - A S S E M B L Y February 6, 2009 ___________IN SENATE -- Introduced by Sen. HASSELL-THOMPSON -- read twice and ordered printed, and when printed to be committed to the Committee on Finance IN ASSEMBLY -- Introduced by M. of A. BRODSKY -- read once and referred to the Committee on Governmental Operations AN ACT to amend the executive law, in relation to establishing state agency goal submission procedure THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. Section 310 of the executive law is amended by adding a new subdivision 18 to read as follows: 18. "GOAL" SHALL MEAN THE AIM OF ENSURING THAT CERTIFIED MINORITY-OWNED AND WOMEN-OWNED BUSINESS ENTERPRISES BE GIVEN THE OPPOR- TUNITY FOR MEANINGFUL PARTICIPATION IN EMPLOYMENT ON AND IN THE PERFORM- ANCE OF STATE CONTRACTS. S 2. The executive law is amended by adding two new sections 315-a and 315-b to read as follows: S 315-A. STATE AGENCY GOAL SUBMISSION PROCEDURE. ALL STATE AGENCIES SHALL SUBMIT A GOAL PLAN PURSUANT TO THE FOLLOWING: 1. THE AGENCY GOAL PLAN SHALL BE SUBMITTED ANNUALLY IN SUCH FORM AS MAY BE REQUIRED BY THE DIRECTOR, ON APRIL FIRST OF EACH YEAR BUT ONLY AFTER CONDUCTING A PUBLIC MEETING OR A PUBLIC HEARING ON THE PROPOSED GOAL PLAN, WITH STAKEHOLDERS, PRIOR TO THE SUBMISSION OF THE GOAL PLAN. 2. THE DIRECTOR SHALL NOTIFY THE STATE AGENCY IN WRITING AS TO WHETHER ITS AGENCY GOAL PLAN IS ACCEPTED OR REJECTED BASED UPON A DETERMINATION AS TO WHETHER THE PURPOSES OF THIS ARTICLE HAVE BEEN MET. IF THE DIREC- TOR REJECTS AN AGENCY GOAL PLAN, THE NOTICE OF REJECTION SHALL STATE THE REASONS FOR THE REJECTION AND ANY MODIFICATIONS TO THE AGENCY GOAL PLAN WHICH WOULD RENDER THE PLAN ACCEPTABLE.EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD08189-01-9 S. 1799 2 A. 4810
3. A STATE AGENCY SHALL SUBMIT ITS AGENCY GOAL PLAN WITHIN THIRTY DAYS OF RECEIPT OF A NOTICE OF REJECTION INCORPORATING RECOMMENDED MODIFICA- TIONS OR STATING REASONS WHY MODIFICATIONS RECOMMENDED BY THE DIRECTOR CANNOT BE INCORPORATED IN THE STATE AGENCY'S ANNUAL GOAL PLAN. 4. THE STATE AGENCY'S GOAL PLAN MAY BE, FROM TIME TO TIME, AMENDED BY THE STATE AGENCY IN ACCORDANCE WITH THE AVAILABILITY OF FUNDS TO THE STATE AGENCY IN A PARTICULAR FISCAL YEAR AND, UPON AMENDMENT, THE AGENCY GOAL PLAN SHALL BE RESUBMITTED TO THE DIRECTOR FOR APPROVAL IN ACCORD- ANCE WITH SUBDIVISIONS TWO AND THREE OF THIS SECTION. 5. ANY STATE AGENCY WITH A GOAL PLAN FOR EITHER MINORITY-OWNED OR WOMEN-OWNED BUSINESS ENTERPRISE, OR BOTH, SUBMITTED WITH A GOAL OF LESS THAN FIVE PERCENT MUST ISSUE AN EXPLANATORY MEMORANDUM DESCRIBING THE RATIONALE FOR SUCH GOAL. 6. ANY STATE AGENCY SUBMITTING A GOAL PLAN WITH A GOAL LESS THAN THE PREVIOUS YEAR'S GOAL SHALL CONVENE A PUBLIC HEARING NOT LESS THAN FORTY-FIVE DAYS SUBSEQUENT TO THE SUBMISSION OF SUCH GOAL PLAN. S 315-B. STATE AGENCY COMPLIANCE REPORTING. 1. STATE AGENCIES SHALL SUBMIT A COMPLIANCE REPORT IN THE FORM AND MANNER REQUIRED BY THE DIREC- TOR BY OCTOBER FIRST, TWO THOUSAND NINE, AND QUARTERLY THEREAFTER ON THE FIFTEENTH DAY OF JANUARY, APRIL, JULY, AND OCTOBER OF EACH YEAR. THE COMPLIANCE REPORT MAY INCLUDE, BUT IS NOT LIMITED TO, THE FOLLOWING INFORMATION REGARDING STATE CONTRACTS AWARDED IN THE INTERVAL SINCE THE LAST COMPLIANCE REPORT: (A) THE NUMBER OF STATE CONTRACTS AWARDED, THE MAXIMUM DOLLAR AMOUNT OBLIGATED PURSUANT TO THOSE CONTRACTS, AND TOTAL EXPENDITURES PURSUANT TO ALL SUCH CONTRACTS; (B) THE NUMBER OF STATE CONTRACTS AWARDED TO CERTIFIED MINORITY-OWNED OR WOMEN-OWNED BUSINESS ENTERPRISES, THE MAXIMUM DOLLAR AMOUNT OBLIGATED PURSUANT TO ALL THOSE CONTRACTS, AND THE TOTAL EXPENDITURES MADE PURSU- ANT TO ALL SUCH CONTRACTS; (C) THE NUMBER OF STATE CONTRACTS AWARDED WHICH INCLUDE A UTILIZATION PLAN FOR BUSINESS PARTICIPATION BY CERTIFIED MINORITY-OWNED OR WOMEN-OWNED BUSINESS ENTERPRISES, THE MAXIMUM AMOUNT OBLIGATED PURSUANT TO THOSE CONTRACTS, AND THE TOTAL EXPENDITURE MADE TO ALL SUCH CONTRACTS; (D) THE NUMBER OF STATE CONTRACTS AWARDED UPON WHICH A WAIVER WAS GRANTED FROM GOALS REQUIRED BY THE CONTRACTS FOR BUSINESS PARTICIPATION BY CERTIFIED MINORITY-OWNED OR WOMEN-OWNED BUSINESS ENTERPRISES AND THE MAXIMUM AMOUNT OBLIGATED PURSUANT TO THOSE CONTRACTS; (E) THE NUMBER OF STATE CONTRACTS AWARDED WHICH REQUIRED GOALS FOR EMPLOYMENT OF MINORITY GROUP MEMBERS AND WOMEN; (F) THE NUMBER OF STATE CONTRACTS AWARDED FOR WHICH WAIVERS OF EMPLOY- MENT GOALS REQUIRED BY THE CONTRACTS HAVE BEEN GRANTED; (G) THE INFORMATION REQUIRED BY PARAGRAPHS (A) THROUGH (F) OF THIS SUBDIVISION OF THE REPORTING QUARTER; (H) A JUSTIFICATION OF ANY WAIVERS GRANTED PURSUANT TO PARAGRAPHS (D) AND (F) OF THIS SUBDIVISION; AND (I) A STATE AGENCY DETERMINATION OF WHETHER IT IS IN COMPLIANCE WITH ITS GOAL PLAN BASED ON INFORMATION PROVIDED IN THE COMPLIANCE REPORT OR, UPON A STATE AGENCY'S DETERMINATION THAT IT IS NOT IN COMPLIANCE WITH ITS GOAL PLAN, A DESCRIPTION OF ACTIONS WHICH WILL BE TAKEN TO COMPLY WITH THE STATE AGENCY GOAL PLAN. 2. IF THE COMPLIANCE REPORTS SUBMITTED BY STATE AGENCIES PURSUANT TO THIS SECTION INDICATE THAT THE STATE AGENCY HAS BEEN OUT OF COMPLIANCE FOR EIGHT CONSECUTIVE QUARTERS, THE DIRECTOR SHALL IMMEDIATELY CONDUCT AN INVESTIGATION AS TO THE LACK OF COMPLIANCE. SUCH INVESTIGATION SHALLS. 1799 3 A. 4810
INCLUDE, BUT NOT BE LIMITED TO, A PUBLIC HEARING JOINTLY CONVENED BY THE OFFICE AND THE STATE AGENCY FOUND TO BE OUT OF COMPLIANCE. S 3. This act shall take effect immediately; provided, however, that the amendments to article 15-A of the executive law made by sections one and two of this act shall not affect the expiration of such article and shall be deemed to expire therewith.