Bill S1799B-2009

Establishes state agency goal submission procedure ensuring that certified minority-owned and women-owned business enterprises are given meaningful participation

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.

Details

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  • Mar 4, 2010: ADVANCED TO THIRD READING
  • Mar 3, 2010: 2ND REPORT CAL.
  • Mar 3, 2010: AMENDED (T) 1799B
  • Mar 2, 2010: 1ST REPORT CAL.194
  • Jan 6, 2010: REFERRED TO FINANCE
  • Jul 16, 2009: COMMITTED TO RULES
  • Jul 16, 2009: AMENDED ON THIRD READING 1799A
  • Jul 9, 2009: RESTORED TO THIRD READING
  • Jul 9, 2009: SUBSTITUTION RECONSIDERED
  • Jun 3, 2009: SUBSTITUTED BY A4810
  • Jun 2, 2009: ADVANCED TO THIRD READING
  • Jun 1, 2009: 2ND REPORT CAL.
  • May 27, 2009: 1ST REPORT CAL.485
  • Feb 6, 2009: REFERRED TO FINANCE

Memo

 BILL NUMBER:  S1799B

TITLE OF BILL : An act to amend the economic development law, the executive law, the state finance law, and the public authorities law, in relation to funding certain mandates set forth in the economic development law, strengthening certain provisions of the executive law as it relates to increasing procurement opportunities for minority and women-owned business enterprises, and strengthening reporting and compliance by state agencies and contracts within article 15-A of the executive law

PURPOSE OR GENERAL IDEA OF BILL : This bill would amend the executive law, in relation to funding certain MWBE technical assistance mandates and strengthening certain provisions of Article 15-a to among other things, disallow the practice of automatic waivers by state agencies from the requirements of Article 15-a, require periodic public reports by state agencies and the division regarding MWBE contract expenditures, adding additional penalties for violations of Article 15-a, favoring contractors that have strong diversity practices, allowing state agencies to enter into contracts of less than $250,000 with small businesses and MWBE firms without a competitive process.

SUMMARY OF SPECIFIC PROVISIONS : Section 1 would create a new Section 118-a of Article 4-a of the economic development law, to allocate not less than $15,000,000 to fund mandates in Section 118, such as technical assistance and enterprise assistance programs.

Section 2 would amend Subdivision 2 of Section 313 to delete language that limits the obligations of contracting agencies under Section 313 to state contracts involving the acquisition, construction, demolition, replacement, major repair or renovation of real property or improvements thereon.

Section 3 would amend subdivision 4 of Section 313 of the executive law to prohibit the ability of state agencies to give automatic waives for noncompliance with the mandates of Article 15-a.

Section 4 would amend Section 315 of the executive law to require contracting agencies to submit annual reports with quarterly updates to the division for publication.

Section 5 would amend Section 315 of the executive law by giving the director of the division the power to review and evaluate state agency compliance with Article 15-a and, in the event of non-compliance that lasts longer than one year following notice by the director, the director would have the power to participate in contract decisions of such agency until the agency is in compliance.

Section 6 would amend Section 316 of the executive law to allow the director to impose penalties on state contractors that fail to comply with their obligations under Article 15-a of the executive law by allowing the director to impose penalties including the rescission of existing state contracts and debarment.

Section 7 would amend Section 163 of the finance law to take into diversity practices of contractors in determining "Best Value".

Section 9 would amend Section 2879 of the public authorities law to permit state authorities to make contract awards for contracts less than $250,000 to small businesses and minority or women-owned business enterprises without a larger competitive process.

Section 10 would amend Section 163 of the finance law to permit state agencies to make contract awards for contracts less than $250,000 to small businesses and minority or women-owned business enterprises without a larger competitive process.

Section 11 would amend Section 2879 of the public authorities law to add financial, legal or other professional services to the definition of professional firm.

Section 12 would amend Section 2879 of the public authorities law to require the state authorities to hire one or more senior staff members to oversee the authorities minority and women-owned business enterprise programs and to facilitate contract opportunities within such authorities for such firms.

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.

JUSTIFICATION : In July 1988, Article 15-A of the Executive Law created a requirement that state agencies develop policies and programs to ensure that minority and women-owned business enterprises receive a fair share of state contracts and have meaningful participation in such contracts through good faith efforts by such agencies and prime contractors. Despite the fact that New York is one of the most diverse states in the country, since Article 15-A was passed, New York State continues to lag behind other states in expenditures by state agencies with minority and women-owned enterprises. While there have been advances made in ensuring meaningful participation by minority-owned and women-owned businesses on state contracts, compliance with Article 15-A has been haphazard and arbitrary. This legislation provides a necessary statutory mechanism for eliminating artificial barriers that continue to confront minority and women-owned business enterprises, strengthening the division's ability to provide oversight, creating sanctions for serious non-compliance and the creation of public reporting regime to facilitate the sharing of information about opportunities and compliance. The amendments proposed are intended to strengthen Article 15-A in the ways described, which will have the direct effect of stimulating economic development in the state and enhancing job creation, especially in communities with large populations of minorities and/or women.

PRIOR LEGISLATIVE HISTORY : A.11690 (2002), A.805 (2003-04), A.3471 (2005-06), A.1311A (2007-08)

FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS : Minimal.

EFFECTIVE DATE : This act shall take effect on the ninetieth day following its passage.

Text

STATE OF NEW YORK ________________________________________________________________________ 1799--B Cal. No. 194 2009-2010 Regular Sessions IN SENATE February 6, 2009 ___________
Introduced by Sens. HASSELL-THOMPSON, ADAMS, DIAZ, HUNTLEY, KRUEGER, MONTGOMERY, ONORATO, OPPENHEIMER, PARKER, PERKINS, SAMPSON, SCHNEIDER- MAN, SERRANO, STEWART-COUSINS, THOMPSON -- read twice and ordered printed, and when printed to be committed to the Committee on Finance -- reported favorably from said committee, ordered to first and second report, ordered to a third reading, substituted by Assembly Bill No. 4810, substitution reconsidered and vote reconsidered, restored to third reading, amended and ordered reprinted, retaining its place in the order of third reading -- recommitted to the Committee on Finance in accordance with Senate Rule 6, sec. 8 -- reported favorably from said committee, ordered to first report, amended on first report, ordered to a second report and ordered reprinted, retaining its place in the order of second report AN ACT to amend the economic development law, the executive law, the state finance law, and the public authorities law, in relation to funding certain mandates set forth in the economic development law, strengthening certain provisions of the executive law as it relates to increasing procurement opportunities for minority and women-owned business enterprises, and strengthening reporting and compliance by state agencies and contracts within article 15-A of the executive law THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. The economic development law is amended by adding a new section 118-a to read as follows: S 118-A. FUNDING OF MANDATES. NOT LESS THAN FIFTEEN MILLION DOLLARS OF MONIES FROM THE BUDGET OF THE EMPIRE STATE DEVELOPMENT CORPORATION, FOLLOWING APPROPRIATION BY THE LEGISLATURE FOR THIS PURPOSE AND THE FURTHER ALLOCATION BY THE COMMISSIONER, SHALL BE MADE AVAILABLE ANNUALLY TO FUND THE MANDATES SET FORTH IN SECTION ONE HUNDRED EIGHTEEN OF THIS ARTICLE, SPECIFICALLY INCLUDING THE PROVISION OF TECHNICAL ASSISTANCE
AND ENTERPRISE ASSISTANCE PROGRAMS PURSUANT TO SUBDIVISIONS SEVEN, EIGHT, NINE AND TEN OF SECTION ONE HUNDRED EIGHTEEN OF THIS ARTICLE. S 2. Subdivision 2 of section 313 of the executive law, as added by chapter 261 of the laws of 1988, is amended to read as follows: 2. Contracting agencies shall include or require to be included with respect to state contracts [for the acquisition, construction, demoli- tion, replacement, major repair or renovation of real property and improvements thereon,] such provisions as may be necessary to effectuate the provisions of this section in every bid specification and state contract, including, but not limited to: (a) provisions requiring contractors to make a good faith effort to solicit active participation by enterprises KNOWN TO BE CERTIFIED MINORITY OR WOMEN-OWNED BUSINESS ENTERPRISES OR identified in the directory of certified businesses provided to the contracting agency by the office; (b) requiring the parties to agree as a condition of entering into such contract, to be bound by the provisions of section three hundred sixteen of this arti- cle; and (c) requiring the contractor to include the provisions set forth in paragraphs (a) and (b) [above] 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 binding 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. S 3. Paragraph (a) of subdivision 4 of section 313 of the executive law, as amended by chapter 429 of the laws of 2009, is amended to read as follows: (a) Contracting agencies shall administer the rules and regulations promulgated by the director to ensure compliance with the provisions of this section. Such rules and regulations: shall require a contractor to submit a utilization plan after bids are opened, when bids are required, but prior to the award of a state contract; shall require the contract- ing 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 five of this section on the website of the contracting agency within a reasonable period of time as established by the director; 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 director; shall require the contractor to submit periodic compliance reports relating to the operation and implementation of any utilization plan; shall NOT ALLOW ANY AUTOMATIC WAIVERS, BUT SHALL allow a contrac- tor to apply for a partial or total waiver of the minority and women- owned business enterprise participation requirements pursuant to subdi- visions five and six of this section; shall allow a contractor to file a complaint with the director pursuant to subdivision seven 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 eight 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. Subdivision 3 of section 315 of the executive law, as added by chapter 261 of the laws of 1988, is amended to read as follows: 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 as required by the director.] SUCH REPORTS SHALL BE SUBMITTED ON AN ANNUAL BASIS WITH QUARTERLY UPDATES, AND SHALL INCLUDE SUCH INFORMATION AS IS NECESSARY FOR THE DIRECTOR TO DETERMINE SUCH CONTRACTING AGENCIES AND ITS CONTRACTORS' COMPLIANCE WITH THE PURPOSES OF THIS ARTICLE AND SUCH SPECIFIC INFORMATION AS THE DIRECTOR MAY REQUEST, INCLUDING, WITHOUT LIMITATION, A SUMMARY OF ALL WAIVERS OF THE REQUIREMENTS OF SUBDIVISIONS FIVE AND SIX OF SECTION THREE HUNDRED THIRTEEN OF THIS ARTICLE ALLOWED BY SUCH CONTRACTING AGENCY DURING THE PERIOD COVERED BY THE REPORT, INCLUDING A DESCRIPTION OF THE BASIS OF THE WAIVER REQUEST AND THE CONTRACTING AGENCIES RATIONALE FOR GRANTING ANY SUCH WAIVER. S 5. Section 315 of the executive law is amended by adding two new subdivisions 4 and 5 to read as follows: 4. EACH STATE AGENCY, AUTHORITY OR MEMBER CORPORATION'S PERFORMANCE IN ACHIEVING THE MINORITY AND WOMEN-OWNED BUSINESS ENTERPRISE PARTICIPATION AND OTHER DIVERSITY GOALS ESTABLISHED BY THIS ARTICLE SHALL BE PERIOD- ICALLY REVIEWED AND EVALUATED BY THE DIRECTOR. IN THE EVENT THAT THE DIRECTOR FINDS THAT A STATE AGENCY, AUTHORITY OR MEMBER CORPORATION HAS NOT MADE REASONABLE, GOOD FAITH EFFORTS TO SET OR ACHIEVE REASONABLE DIVERSITY GOALS FOR A PERIOD OF ONE YEAR FOLLOWING NOTICE OF NON-COMPLI- ANCE BY THE DIRECTOR, THEN THE DIRECTOR SHALL HAVE THE POWER TO PARTIC- IPATE IN THE CONTRACTING APPROVAL PROCESS OF SUCH STATE AGENCY, AUTHORI- TY OR MEMBER CORPORATION UNTIL SUCH TIME AS THE DIRECTOR DEEMS SUCH STATE AGENCY, AUTHORITY OR MEMBER CORPORATION TO BE IN COMPLIANCE WITH THIS ARTICLE. SUCH POWER SHALL INCLUDE THE RIGHT TO PREVENT ANY STATE AGENCY, AUTHORITY OR MEMBER CORPORATION DEEMED TO BE NON-COMPLIANT AS SET FORTH ABOVE FROM MAKING CONTRACT AWARDS UNLESS THE DIRECTOR HAS DEEMED SUCH AWARD TO BE IN COMPLIANCE WITH THIS ARTICLE. 5. THE DIVISION OF MINORITY AND WOMEN-BUSINESS DEVELOPMENT SHALL ISSUE AN ANNUAL REPORT WHICH: (A) SUMMARIZES ALL REPORTS SUBMITTED TO IT BY EACH CONTRACTING AGENCY PURSUANT TO SUBDIVISION THREE OF THIS SECTION; (B) CONTAINS SUCH COMPARATIVE OR OTHER INFORMATION AS THE DIRECTOR DEEMS APPROPRIATE TO EVALUATE THE EFFECTIVENESS OF THE ACTIVITIES UNDERTAKEN BY EACH SUCH CONTRACTING AGENCY TO PROMOTE INCREASED PARTICIPATION BY CERTIFIED BUSINESSES WITH RESPECT TO STATE CONTRACTS AND SUBCONTRACTS; (C) CONTAINS A SUMMARY OF ALL WAIVERS OF THE REQUIREMENTS OF SUBDIVI- SIONS FIVE AND SIX OF SECTION THREE HUNDRED THIRTEEN OF THIS ARTICLE ALLOWED BY EACH CONTRACTING AGENCY DURING THE PERIOD COVERED BY THE REPORT, INCLUDING A DESCRIPTION OF THE BASIS OF THE WAIVER REQUEST AND THE CONTRACTING AGENCIES' RATIONALE FOR GRANTING ANY SUCH WAIVER; AND (D) CONTAINS A SUMMARY OF (I) ALL DETERMINATIONS OF VIOLATIONS OF THIS ARTICLE BY A CONTRACTOR OR A CONTRACTING AGENCY MADE DURING THE PERIOD COVERED BY THE ANNUAL REPORT AND (II) THE PENALTIES OR SANCTION, IF ANY, ASSESSED IN CONNECTION WITH SUCH DETERMINATION AND THE RATIONALE FOR SUCH PENALTIES OR SANCTIONS. COPIES OF THE ANNUAL REPORT SHALL BE PROVIDED TO THE COMMISSIONER, GOVERNOR, THE SPEAKER OF THE ASSEMBLY, THE TEMPORARY PRESIDENT OF THE SENATE AND SHALL ALSO BE MADE WIDELY AVAIL- ABLE TO THE PUBLIC, INCLUDING BY PUBLICATION ON A WEBSITE MAINTAINED BY
THE DIVISION. THE DIVISION OF MINORITY AND WOMEN-BUSINESS DEVELOPMENT SHALL PUBLISH THE QUARTERLY UPDATES RECEIVED FROM STATE AGENCIES REFERRED TO IN SUBDIVISION THREE OF THIS SECTION ON THE WEBSITE MAIN- TAINED BY THE DIVISION. S 6. Section 316 of the executive law, as added by chapter 261 of the laws of 1988, is amended to read as follows: S 316. Enforcement. 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 five 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 American Arbitration Association for proceeding thereon. Upon conclusion of the arbitration proceedings, the arbitrator shall submit to the director his or her award regarding the alleged violation of the contract and recommendations regarding the imposition of sanctions, fines or penalties. The director shall either: (a) adopt the recommendation of the arbitrator; or (b) determine that no sanctions, fines or penalties should be imposed; or (c) modify the recommendation of the arbitrator, provided that such modification shall not expand upon any sanction recommended or impose any new sanction, or increase the amount of any recommended fine or penalty. The director, within ten days of receipt of the arbitrator's award and recommenda- tions, shall file a determination of such matter and shall cause a copy of such determination along with a copy of this article to be served upon the respondent by personal service or by certified mail return receipt requested. The award of the arbitrator shall be final and may only be vacated or modified as provided in article seventy-five of the civil practice law and rules upon an application made within the time provided by section seventy-five hundred eleven of the civil practice law and rules. The determination of the director as to the imposition of any fines, sanctions or penalties shall be reviewable pursuant to arti- cle seventy-eight of the civil practice law and rules. IF A CONTRACTOR HAS BEEN DETERMINED TO BE IN SERIOUS VIOLATION OF THE PROVISIONS OF THIS ARTICLE, THE PENALTIES IMPOSED FOR ANY SUCH VIOLATION MAY INCLUDE, WITH- OUT LIMITATION, THE RESCISSION OF ANY CONTRACT AWARD BY A STATE AGENCY AND DEBARMENT FROM STATE CONTRACT AWARDS FOR A PERIOD NOT TO EXCEED FOUR YEARS OF THE FINAL DETERMINATION. S 7. Paragraph j of subdivision 1 of section 163 of the state finance law, as added by chapter 83 of the laws of 1995, is amended to read as follows: j. "Best value" means the basis for awarding contracts for services to the offerer which optimizes quality, cost and efficiency, among respon- sive and responsible offerers AND WHICH ALSO TAKES INTO ACCOUNT THE DIVERSITY PRACTICES OF EACH OFFERER. Such basis shall reflect, wherever possible, objective and quantifiable analysis. S 8. Subdivision 1 of section 163 of the state finance law is amended by adding a new paragraph k to read as follows: K. "DIVERSITY PRACTICES" MEANS THE OFFERER'S PRACTICES WITH RESPECT TO: (I) APPOINTING, HIRING AND RETAINING MINORITY GROUP MEMBERS (AS DEFINED IN ARTICLE FIFTEEN-A OF THE EXECUTIVE LAW) AND WOMEN IN SENIOR MANAGEMENT POSITIONS OF THE OFFERER, INCLUDING AT THE LEVEL OF BOARD OF
DIRECTORS OR ITS COMPARABLE MANAGEMENT LEVEL BODY, AND AS SENIOR EXECU- TIVE OFFICERS WITHIN THE OFFERER'S ORGANIZATION; (II) HIRING, TRAINING DEVELOPING, PROMOTING AND RETAINING MINORITY GROUP MEMBERS AND WOMEN EMPLOYEES; (III) UTILIZING CERTIFIED MINORITY AND WOMEN-OWNED BUSINESS ENTERPRISES, AS DEFINED IN ARTICLE FIFTEEN-A OF THE EXECUTIVE LAW OR ANY OTHER STATUTES OR REGULATIONS GOVERNING THE PARTICIPATION OF MINORITY AND WOMEN-OWNED BUSINESS ENTERPRISES IN CONTRACTS AWARDED BY A STATE AGENCY OR OTHER PUBLIC CORPORATION, AS SUBCONTRACTORS AND SUPPLIERS; (IV) ENTERING INTO PARTNERSHIPS, JOINT VENTURES OR OTHER SIMILAR ARRANGEMENTS WITH CERTIFIED MINORITY AND WOMEN-OWNED BUSINESS ENTER- PRISES AS DEFINED IN ARTICLE FIFTEEN-A OF THE EXECUTIVE LAW OR OTHER APPLICABLE STATUTE OR REGULATION GOVERNING AN ENTITY'S UTILIZATION OF MINORITY OR WOMEN-OWNED BUSINESS ENTERPRISES; AND (V) UTILIZING SUBCON- TRACTORS OR OTHER PARTNERS THAT DEMONSTRATE A SIGNIFICANT COMMITMENT TO AND PROGRESS IN ATTRACTING, RETAINING AND PROMOTING DIVERSE TEAMS, INCLUDING MINORITY GROUP MEMBERS AND WOMEN WITH RELEVANT DOMAIN EXPERI- ENCE IN SENIOR MANAGEMENT OR STAFFING POSITIONS. S 9. Subparagraph (i) of paragraph (b) of subdivision 3 of section 2879 of the public authorities law, as amended by chapter 45 of the laws of 1994, is amended to read as follows: (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; PROVIDED HOWEVER, THE CORPORATION MAY PURCHASE GOODS OR SERVICES FROM SMALL BUSINESS CONCERNS OR THOSE CERTI- FIED AS MINORITY OR WOMEN-OWNED BUSINESS ENTERPRISES, OR GOODS OR TECH- NOLOGY THAT ARE RECYCLED OR REMANUFACTURED, IN AN AMOUNT NOT EXCEEDING TWO HUNDRED FIFTY THOUSAND DOLLARS WITHOUT A FORMAL COMPETITIVE PROCESS; S 10. Subdivision 6 of section 163 of the state finance law, as amended by section 3 of part D of chapter 56 of the laws of 2006, is amended to read as follows: 6. Discretionary buying thresholds. Pursuant to guidelines established by the state procurement council: the commissioner may purchase services and commodities in an amount not exceeding eighty-five thousand dollars without a formal competitive process; state agencies may purchase services and commodities in an amount not exceeding fifty thousand dollars without a formal competitive process; and state agencies may purchase commodities or services from small business concerns or those certified AS MINORITY OR WOMEN-OWNED BUSINESS ENTERPRISES pursuant to article fifteen-A of the executive law, or commodities or technology that are recycled or remanufactured, in an amount not exceeding [one] TWO hundred FIFTY thousand dollars without a formal competitive process. S 11. The opening paragraph of subparagraph (iv) of paragraph (b) of subdivision 3 of section 2879 of the public authorities law, as amended by chapter 383 of the laws of 1994, is amended to read as follows: as used in this subparagraph, the term "professional firm" shall be defined as any individual or sole proprietorship, partnership, corpo- ration, association, or other legal entity permitted by law to practice the professions [of architecture, engineering or surveying] OR OFFER SERVICES RELATED TO ACCOUNTING, ARCHITECTURE, ASSET MANAGEMENT, ENGI- NEERING, SURVEYING, FINANCIAL, LEGAL OR OTHER PROFESSIONAL SERVICES. S 12. Paragraphs (f), (g), (h), (i), (j) and (k) of subdivision 3 of section 2879 of the public authorities law are renumbered paragraphs (l), (m), (n), (o), (p) and (q), and six new paragraphs (f), (g), (h), (i), (j) and (k) are added to read as follows: (F) REQUIREMENTS FOR THE APPOINTMENT OF ONE OR MORE SENIOR STAFF OF THE CORPORATION TO OVERSEE THE CORPORATION'S PROGRAMS ESTABLISHED TO
PROMOTE AND ASSIST: (I) PARTICIPATION BY MINORITY OR WOMEN-OWNED BUSI- NESS ENTERPRISES IN THE CORPORATION'S PROCUREMENT OPPORTUNITIES AND FACILITATION OF THE AWARD OF A FAIR SHARE 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 UTILI- ZATION 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 HAVE A BACKGROUND IN THE TYPES OF GOODS OR SERVICES, INCLUD- ING, WITHOUT LIMITATION, CONSTRUCTION, REAL ESTATE, FINANCIAL, INSUR- ANCE, LEGAL, ACCOUNTING OR OTHER PROFESSIONAL SERVICES, AS APPLICABLE, TO BE PROCURED BY THE CORPORATION AND SHALL REPORT DIRECTLY TO THE CORPORATION'S EXECUTIVE DIRECTOR, PRESIDENT OR CHIEF EXECUTIVE OFFICER. (G) REQUIREMENTS FOR PROVIDING NOTICE, IN ADDITION TO ANY OTHER NOTICE OF PROCUREMENT OPPORTUNITIES REQUIRED BY LAW, TO APPROPRIATE PROFES- SIONAL AND OTHER ORGANIZATIONS THAT SERVE MINORITY AND WOMEN-OWNED BUSI- NESS ENTERPRISES PROVIDING THE TYPES OF SERVICES PROCURED BY THE CORPO- RATION. (H) PROCEDURES FOR MAINTAINING LISTS OF QUALIFIED MINORITY AND WOMEN- OWNED BUSINESS ENTERPRISES AND OTHER PROFESSIONAL FIRMS THAT HAVE EXPRESSED AN INTEREST IN DOING BUSINESS WITH THE CORPORATION AND ENSUR- ING THAT SUCH LISTS ARE UPDATED REGULARLY. THE CORPORATION SHALL ALSO CONSULT THE LISTS OF CERTIFIED MINORITY AND WOMEN-OWNED BUSINESS ENTER- PRISES 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 MINOR- ITY AND WOMEN-OWNED BUSINESS ENTERPRISES IN PROCUREMENT CONTRACTS AWARDED BY THE CORPORATION AND FOR THE UTILIZATION OF MINORITY AND WOMAN ENTERPRISES AS SUBCONTRACTORS AND SUPPLIERS BY ENTITIES HAVING PROCURE- MENT CONTRACTS WITH THE CORPORATION. (J) THE CONDUCT OF PROCUREMENTS IN A MANNER THAT WILL ENABLE THE CORPORATION TO ACHIEVE THE GOALS ESTABLISHED PURSUANT TO PARAGRAPH (G) OF THIS SUBDIVISION AND THAT ELIMINATES BARRIERS TO PARTICIPATION BY MINORITY AND WOMEN-OWNED BUSINESS ENTERPRISES IN THE CORPORATION'S PROCUREMENTS. (K) REQUIREMENTS THAT THE EVALUATION CRITERIA FOR AWARDING ANY PROCUREMENT CONTRACT OTHER THAN CONTRACTS REQUIRED BY LAW TO BE AWARDED TO THE LOWEST RESPONSIBLE BIDDER PURSUANT TO SEALED BIDS INCLUDE AN ASSESSMENT OF THE PROPOSER'S DIVERSITY PRACTICES. FOR PURPOSES OF THIS PARAGRAPH, "DIVERSITY PRACTICES" SHALL MEAN THE PROPOSER'S PRACTICES WITH RESPECT TO: (I) APPOINTING, HIRING AND RETAINING MINORITY GROUP MEMBERS (AS DEFINED IN ARTICLE FIFTEEN-A OF THE EXECUTIVE LAW) AND WOMEN IN SENIOR MANAGEMENT POSITIONS OF THE OFFERER, INCLUDING AT THE LEVEL OF BOARD OF DIRECTORS OR ITS COMPARABLE MANAGEMENT LEVEL BODY, AND AS SENIOR EXECUTIVE OFFICERS WITHIN THE OFFERER'S ORGANIZATION; (II) HIRING, TRAINING DEVELOPING, PROMOTING AND RETAINING MINORITY GROUP MEMBERS AND WOMEN EMPLOYEES; (III) UTILIZING CERTIFIED MINORITY AND WOMEN-OWNED BUSINESS ENTERPRISES, AS DEFINED IN ARTICLE FIFTEEN-A OF THE EXECUTIVE LAW OR ANY OTHER STATUTES OR REGULATIONS GOVERNING THE PARTIC- IPATION OF MINORITY AND WOMEN-OWNED BUSINESS ENTERPRISES IN CONTRACTS AWARDED BY A STATE AGENCY OR OTHER PUBLIC CORPORATION, AS SUBCONTRACTORS AND SUPPLIERS; (IV) ENTERING INTO PARTNERSHIPS, JOINT VENTURES OR OTHER SIMILAR ARRANGEMENTS WITH THE CERTIFIED MINORITY AND WOMEN-OWNED BUSI- NESS ENTERPRISES AS DEFINED IN ARTICLE FIFTEEN-A OF THE EXECUTIVE LAW OR OTHER APPLICABLE STATUTE OR REGULATION GOVERNING AN ENTITY'S UTILIZATION
OF MINORITY OR WOMEN-OWNED BUSINESS ENTERPRISES; AND (V) UTILIZING SUBCONTRACTORS OR OTHER PARTNERS THAT DEMONSTRATES A SIGNIFICANT COMMIT- MENT TO AND PROGRESS IN ATTRACTING, RETAINING AND PROMOTING DIVERSE TEAMS, INCLUDING MINORITY GROUP MEMBERS AND WOMEN WITH RELEVANT DOMAIN EXPERIENCE IN SENIOR MANAGEMENT OR STAFFING POSITIONS. IN THE CASE OF CONTRACTS REQUIRED BY LAW TO BE AWARDED TO THE LOWEST RESPONSIBLE BIDDER PURSUANT TO SEALED BIDS, IN THE EVENT OF DETERMI- NATION THAT TWO OR MORE BIDDERS HAVE PROVIDED BIDS THAT ARE ROUGHLY EQUAL ANY DETERMINATION OF RESPONSIBILITY OR OTHER "TIE BREAKING" FACTORS SHALL TAKE INTO ACCOUNT THE RESPECTIVE BIDDERS RECORD OF COMPLI- ANCE UNDER ARTICLE FIFTEEN-A OF THE EXECUTIVE LAW OR OTHER APPLICABLE STATUTES OR REGULATIONS GOVERNING THE PARTICIPATION OF MINORITY AND WOMEN-OWNED BUSINESS ENTERPRISES IN CONTRACTS AWARDED BY A STATE AGENCY OR OTHER PUBLIC CORPORATION. S 13. Subdivision 6 of section 2879 of the public authorities law, as amended by chapter 844 of the laws of 1992, is amended to read as follows: 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 annu- ally] TO BE PUBLISHED ON AN ANNUAL BASIS WITH QUARTERLY UPDATES, summa- rizing 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 MINORITY OR WOMEN-OWNED BUSINESS ENTERPRISES AND THE SUBJECT MATTER AND VALUE THEREOF, ALL REFERRALS MADE 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. WITH RESPECT TO CONTRACTS ENTERED INTO WITH MINORITY OR WOMEN-OWNED BUSINESS ENTER- PRISES, SUCH CORPORATION SHALL MAKE REPORTS TO THE DIVISION AS SET FORTH IN SECTION THREE HUNDRED FIFTEEN OF THE EXECUTIVE LAW. S 14. Severability clause. If any clause, sentence, paragraph, subdi- vision, section or part of this act shall be adjudged by any court of competent jurisdiction to be invalid, such judgment shall not affect, impair, or invalidate the remainder thereof, but shall be confined in its operation to the clause, sentence, paragraph, subdivision, section or part thereof directly involved in the controversy in which such judg- ment shall have been rendered. It is hereby declared to be the intent of the legislature that this act would have been enacted even if such invalid provision had not been included herein. S 15. This act shall take effect on the ninetieth day after it shall have become a law; provided that the amendments to article 15-A of the executive law made by sections two, three, four, five and six of this act shall not affect the expiration of such article and shall be deemed expired therewith; and provided further that the amendments to section 163 of the state finance law made by sections seven, eight, and ten of this act shall not affect the repeal of such section and shall expire and be deemed repealed therewith.

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