Authorizes political subdivisions to award public contracts to participants of a minority and women owned business enterprise program at a cost premium not to exceed ten percent of the lowest bid.

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S416-2013 Actions

• Jan 9, 2013: REFERRED TO LOCAL GOVERNMENT

S416-2013 Memo

BILL NUMBER:S416

TITLE OF BILL:

An act
to amend the general municipal law, in relation to authorizing political
subdivisions to award public contracts to participants of a minority and
women owned business enterprise program at a cost premium not to exceed
ten percent of the lowest bid as an available remedy to a demonstrated
disparity

PURPOSE:

To ensure MWBE certified businesses can compete for local procurement
opportunities.

SUMMARY OF PROVISIONS:

Amends Section 104-a of the general municipal law to provide that when
purchasing goods, services or construction for public use on
contracts less than one million a municipality may award the contract
as reasonably competitive when (1) a study has found that there is or
has been a disparity between the availability and the utilization of
MWBEs in the award of contracts by such political subdivision or
district therein;
and (2) the bid does not exceed the lowest bid by more than ten percent.

JUSTIFICATION:

Many MWBEs are losing contracts by very small margins (a few
percentage points). Though localities like the City of New York,
which have increased its certified MWBE firms by over 40% from
December 2006 to December 2007, the number of firms who win contracts
remain very low, despite the goals set forth in NYC Local law 129 and
the goals and utilization plans set forth by the individual agencies.
Due to General Municipal Law � 103, localities cannot require
agencies to award contracts to anyone but a lowest responsible
bidder. This constrains localities from developing a stronger program
that might result in more contract awards to certified MWBEs.

As many MWBEs are losing bids by very narrow margins, legislation that
would allow the localities to give certified firms a small price
preference could help address this problem. State Finance law
165(3) (b) (i) already allows for such a price preference for the
state purchase of recycled goods (state agencies may purchase
recycled commodities at a cost premium not to exceed ten percent of
what a non-recycled commodity would cost or not to exceed 15% for
commodities with over 50% secondary materials generated from NY waste
stream). Legislation that mirrors STF �165, would allow
municipalities to give certified MWBEs a small price preference when
awarding qualifying contracts.

LEGISLATIVE HISTORY:

2011/12 - S.1330/A.1906  Reported to Ways and Means in Assembly
2009/10 - S.8575/A.6807  Passed Senate


FISCAL IMPLICATIONS:

None to the State; local impact would depend on how the law is
implemented by a municipality.

EFFECTIVE DATE:

This act shall take effect on the 30th day after becoming law.

S416-2013 Text

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

                                     416

                         2013-2014 Regular Sessions

                              I N  SENATE

                                 (PREFILED)

                               January 9, 2013
                                 ___________

  Introduced  by  Sen.  DILAN  -- read twice and ordered printed, and when
    printed to be committed to the Committee on Local Government

  AN ACT to amend the general municipal law, in  relation  to  authorizing
    political  subdivisions to award public contracts to participants of a
    minority and women owned business enterprise program at a cost premium
    not to exceed ten percent of the lowest bid as an available remedy  to
    a demonstrated disparity

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


    Section 1. Section 104-a of the general municipal law, as  amended  by
  chapter 468 of the laws of 1994, is amended to read as follows:

    S  104-a.  Purchasing [of products] for public use. 1. Notwithstanding
  the provisions of section one hundred three of this  [chapter]  ARTICLE,
  when  purchasing  products the officer, board or agency of any political
  subdivision or of any district therein  charged  with  the  awarding  of
  public  contracts may, wherever recycled products meet contract specifi-
  cations and the  price  of  such  products  is  reasonably  competitive,
  purchase  such  products.  For the purpose of this [section] SUBDIVISION
  and until July first, nineteen hundred  ninety-six,  "recycled  product"
  shall  mean any product which has been manufactured from secondary mate-
  rials, as defined in subdivision one of section two hundred sixty-one of
  the economic development  law,  and  meets  secondary  material  content
  requirements  adopted  by the office of general services [under subdivi-
  sion one of section one hundred seventy-seven of the state finance  law]
  for  products  available  to the political subdivision or district under
  state contract or, if no such contract for such  product  is  available,
  any  product  which  meets  the  secondary material content requirements
  adopted by the political subdivision or district thereof with respect to
  a specific commodity procurement by  such  entity.  On  and  after  July
  first,  nineteen  hundred ninety-six, "recycled product" shall mean, for

   EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                        [ ] is old law to be omitted.
                                                             LBD00676-01-3

 S. 416                              2

  the purposes of this [section] SUBDIVISION, any product which  is  manu-
  factured  from  secondary  materials,  as  defined in subdivision one of
  section two hundred sixty-one of the economic development law, and which
  meets  the  requirements  of  subdivision  two of section 27-0717 of the
  environmental conservation  law  and  regulations  promulgated  pursuant
  thereto.  For  the  purpose  of  this [section] SUBDIVISION, "reasonably
  competitive" shall mean that the cost of the recycled product  does  not
  exceed  a  cost  premium  of  ten percent above the cost of a comparable
  product that is not a recycled product or, if at least fifty percent  of
  the  secondary materials utilized in the manufacture of that product are
  generated from the waste stream in New York state, the cost of the recy-
  cled product does not exceed a cost premium of fifteen percent above the
  cost of a comparable product that is not a recycled product.
    Whenever such officer, board or agency shall  purchase  or  cause  the
  purchase  of  printing on recycled paper pursuant to this section, he or
  she shall require the printed material to  contain  the  official  state
  recycling  emblem  established  pursuant  to  subdivision two of section
  27-0717 of the environmental conservation law and regulations promulgat-
  ed pursuant thereto if such paper has been approved by the department of
  environmental conservation as satisfying the requirements of such  stat-
  ute and regulations, or, if such paper has not been so approved, require
  the  printed material to include a printed statement which indicates the
  percentages of pre-consumer and post-consumer recycled material  content
  of such paper.
    2. NOTWITHSTANDING THE PROVISIONS OF SECTION ONE HUNDRED THREE OF THIS
  ARTICLE, WHEN PURCHASING GOODS, SERVICES OR CONSTRUCTION FOR PUBLIC USE,
  THE  OFFICER,  BOARD  OR  AGENCY  OF ANY POLITICAL SUBDIVISION OR OF ANY
  DISTRICT THEREIN CHARGED WITH THE  AWARDING  OF  PUBLIC  CONTRACTS  THAT
  EMPLOY A MINORITY OR WOMEN OWNED BUSINESS ENTERPRISE (MWBE) PROGRAM, MAY
  AWARD  ANY  CONTRACT  VALUED  AT  NO  MORE THAN ONE MILLION DOLLARS TO A
  PARTICIPANT OF SUCH PROGRAM EVEN IF SUCH PARTICIPANT IS NOT  THE  LOWEST
  BIDDER  FOR SUCH CONTRACT, PROVIDED, HOWEVER THAT SUCH AWARD MAY ONLY BE
  MADE TO THE LOWEST MWBE BID THAT IS REASONABLY  COMPETITIVE.    FOR  THE
  PURPOSE  OF  THIS  SUBDIVISION,  AN "MWBE PROGRAM" SHALL BE DEFINED AS A
  PROGRAM DESIGNED TO INCREASE PARTICIPATION OF MWBES IN PUBLIC  CONTRACT-
  ING  THAT IS BASED ON A STUDY IN WHICH IT WAS FOUND THAT THERE IS OR HAS
  BEEN A DISPARITY BETWEEN THE AVAILABILITY AND THE UTILIZATION  OF  MWBES
  IN  THE  AWARD  OF  CONTRACTS  BY SUCH POLITICAL SUBDIVISION OR DISTRICT
  THEREIN. FOR THE PURPOSE OF THIS SUBDIVISION,  "REASONABLY  COMPETITIVE"
  SHALL MEAN THAT THE MWBE BID DOES NOT EXCEED THE LOWEST BID BY MORE THAN
  TEN PERCENT.
    S  2.  This  act shall take effect on the thirtieth day after it shall
  have become a law.