NY State Senate Bill 2009-S8313

Senate Bill S8313

Signed By Governor

2009-2010 Legislative Session

Relates to expanding opportunities for minority and women-owned business enterprises in procurements by the state and public authorities

download bill text pdf

Archive: Last Bill Status - Signed by Governor

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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Actions

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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jul 15, 2010	signed chap.174
Jul 06, 2010	delivered to governor
Jun 28, 2010	returned to senate passed assembly ordered to third reading rules cal.317 substituted for a11526
Jun 25, 2010	referred to corporations, authorities and commissions delivered to assembly passed senate ordered to third reading cal.1256
Jun 22, 2010	referred to rules

Votes

- Jun 25, 2010 - Floor Vote
  S8313
  
  56
  
  Aye
  
  4
  
  Nay
  
  0
  
  Absent
  
  2
  
  Excused
  
  0
  
  Abstained
  - - Floor Vote: Jun 25, 2010
      
      aye (56)
      
      Adams
      
      Addabbo Jr.
      
      Alesi
      
      Aubertine
      
      Bonacic
      
      Breslin
      
      DeFrancisco
      
      Diaz
      
      Dilan
      
      Duane
      
      Espada
      
      Farley
      
      Foley
      
      Fuschillo
      
      Golden
      
      Griffo
      
      Hannon
      
      Hassell-Thompson
      
      Huntley
      
      Johnson
      
      Johnson
      
      Klein
      
      Krueger
      
      Kruger
      
      Lanza
      
      Leibell
      
      Libous
      
      Little
      
      Marcellino
      
      Maziarz
      
      McDonald
      
      Montgomery
      
      Nozzolio
      
      Onorato
      
      Oppenheimer
      
      Padavan
      
      Parker
      
      Peralta
      
      Perkins
      
      Robach
      
      Sampson
      
      Savino
      
      Schneiderman
      
      Serrano
      
      Seward
      
      Skelos
      
      Smith
      
      Squadron
      
      Stachowski
      
      Stavisky
      
      Stewart-Cousins
      
      Thompson
      
      Valesky
      
      Volker
      
      Winner
      
      Young
      
      nay (4)
      
      Flanagan
      
      LaValle
      
      Ranzenhofer
      
      Saland
      
      excused (2)
      
      Larkin
      
      Morahan
  Jun 25, 2010 - Rules Committee Vote
  S8313
  
  17
  
  Aye
  
  0
  
  Nay
  
  4
  
  Aye with Reservations
  
  1
  
  Absent
  
  1
  
  Excused
  
  0
  
  Abstained
  - - Rules Committee Vote: Jun 25, 2010
      
      aye (17)
      
      Dilan
      
      Duane
      
      Espada
      
      Farley
      
      Hannon
      
      Hassell-Thompson
      
      Johnson
      
      Klein
      
      Krueger
      
      Montgomery
      
      Parker
      
      Serrano
      
      Smith
      
      Stachowski
      
      Stewart-Cousins
      
      Valesky
      
      Volker
      
      aye wr (4)
      
      LaValle
      
      Saland
      
      Seward
      
      Skelos
      
      absent (1)
      
      Padavan
      
      excused (1)
      
      Larkin

co-Sponsors

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2009-S8313 (ACTIVE) - Details

See Assembly Version of this Bill:: A11526
Law Section:: Public Authorities Law
Laws Affected:: Amd §§2825 & 2879, Pub Auth L

2009-S8313 (ACTIVE) - Summary

Relates to expanding opportunities for minority and women-owned business enterprises in procurements by the state and public authorities.

2009-S8313 (ACTIVE) - Sponsor Memo

                                BILL NUMBER:S8313

TITLE OF BILL:

An act to amend the public authorities law, in relation to expanding
opportunities for women and minority-owned business enterprises and
increasing competition and diversity in procurements by the state and
its public authorities

PURPOSE:

This bill would amend the Public Authorities Law ("PAL") to expand
opportunities for minority and women-owned business enterprises
("MWBE") and to rectify past discrimination in contracting as set
forth in the disparity study published ion April 29, 2010 (the "2010
Disparity Study").

SUMMARY OF PROVISIONS:

Section 1 of the bill would amend PAL § 2825(2) to provide that those
appointing members of state public authorities consider the diversity
of prospective nominees.

Section 2 of the bill would amend PAL § 2879(3) to allow for purchase
of goods or services from small businesses and certified MWBEs in
amounts of$200,000 or less without competitive bid.

Section 3 of the bill would amend PAL § 2879(3) to add new paragraphs
(f), (g), (h), (i), (j) and (k) to require that the procurement
guidelines for each state public authority include:

* Requirements for designation of one or more senior staff to oversee
the authority's MWBE program;

* Requirements for providing notice of procurements to professional an
other organizations serving MWBEs;

* Establishment of appropriate goals for participation by MWBEs in
contracting; and

* Requirements that procurements be conducted to achieve the
authority's goals to the maximum feasible extent.

Section 4 of the bill would amend PAL § 2879(6) to include in an
annual report information on contracts entered into with MWBEs,
including the value of such contracts and penalties assessed under
Executive Law § 316.

Section 5 of the bill would provide a severability clause.

Section 6 of the bill would provide for an effective date ninety days
after the bill becomes law.

JUSTIFICATION:


In 2006, the Empire State Development Corporation commissioned a
disparity study to evaluate whether minority and women-owned
businesses had a full and fair opportunity to participate in state
contracting. The results of that study were published on April 29,
2010, under the title "The State of Minority and Women-Owned Business
Enterprises: Evidence from New York." The report found evidence of
statistically significant disparities between participation of MWBEs
in the New York market and the availability of such businesses. It
concluded that these disparities could not be explained by factors
untainted by discrimination.

This legislation is one of three bills that seek to address the
findings of the disparity study, to remedy the results of past
discrimination and to provide MWBEs with a full and fair opportunity
to compete for contracting opportunities in New York State. This bill
would ensure that state public authorities take steps to address the
shortcomings in New York's contracting procedures set forth in the
disparity study. Among other provisions, each state public authority
would need to establish goals for contracting with certified MWBEs in
accordance with the 2010 Disparity Study, designate senior staff to
oversee the authority's MWBE program, and provide notice of
procurement opportunities to MWBEs. These steps are crucial to ensure
that public authorities are included in the broad remedial efforts
provided for in this legislative package, and to provide for a
comprehensive effort to end discrimination in state contracting.

EXISTING LAW:

PAL § 2879 currently requires state public authorities to identify
those areas or types of contracts for which MWBEs may best bid so as
to promote and assist participation by such enterprises and facilitate
a "fair share" of the awarding of contracts to such enterprises.

LEGISLATIVE HISTORY:

None.

FISCAL IMPLICATIONS:

This bill would have no fiscal impact on the State or localities.

EFFECTIVE DATE:

This bill would take effect ninety days after it becomes law.

2009-S8313 (ACTIVE) - Bill Text download pdf

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

                                  8313

                            I N  S E N A T E

                              June 22, 2010
                               ___________

Introduced  by  Sen. HASSELL-THOMPSON -- (at request of the Governor) --
  read twice and ordered printed, and when printed to  be  committed  to
  the Committee on Rules

AN  ACT  to  amend  the public authorities law, in relation to expanding
  opportunities for women and minority-owned  business  enterprises  and
  increasing  competition and diversity in procurements by the state and
  its public authorities

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

  Section  1.  The opening paragraph of subdivision 2 of section 2825 of
the public authorities law, as amended by chapter 506  of  the  laws  of
2009, is amended to read as follows:
  Except  for  members who serve as members by virtue of holding a civil
office of the state, the  majority  of  the  remaining  members  of  the
governing  body  of  every state or local authority shall be independent
members; provided, however, that this provision shall apply to  appoint-
ments  made  on  or  after  the  effective date of chapter seven hundred
sixty-six of the laws of two thousand five which added this subdivision.
The official or officials having the authority to appoint or remove such
remaining members shall take such actions as may be necessary to satisfy
this requirement AND FURTHER, SHALL CONSIDER THE  PROSPECTIVE  DIVERSITY
OF  THE MEMBERS OF A STATE AUTHORITY WHEN MAKING THEIR DETERMINATIONS TO
APPOINT ANY MEMBER. For the purposes of  this  section,  an  independent
member is one who:
  S  2.  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,  INCLUDING,  NOTWITHSTANDING  ANY  OTHER
PROVISION  OF  LAW  REQUIRING  COMPETITION,  THE  PURCHASE  OF  GOODS OR
SERVICES FROM SMALL BUSINESS CONCERNS OR THOSE CERTIFIED AS MINORITY  OR
WOMEN-OWNED  BUSINESS ENTERPRISES, OR GOODS OR TECHNOLOGY THAT ARE RECY-

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD17550-06-0

S. 8313                             2

CLED OR REMANUFACTURED, IN AN AMOUNT NOT TO EXCEED TWO HUNDRED  THOUSAND
DOLLARS WITHOUT A FORMAL COMPETITIVE PROCESS;
  S  3.  Paragraphs  (f), (g), (h), (i), (j) and (k) of subdivision 3 of
section 2879 of the public authorities  law  are  relettered  paragraphs
(k),  (l), (m), (n), (o), and (p) and five new paragraphs (f), (g), (h),
(i), and (j) are added to read as follows:
  (F) REQUIREMENTS FOR THE DESIGNATION OF ONE OR MORE  SENIOR  STAFF  OF
THE  CORPORATION  TO  OVERSEE  THE CORPORATION'S PROGRAMS ESTABLISHED TO
PROMOTE  AND  ASSIST:  (I)  PARTICIPATION  BY  CERTIFIED   MINORITY   OR
WOMEN-OWNED BUSINESS ENTERPRISES IN THE CORPORATION'S PROCUREMENT OPPOR-
TUNITIES  AND FACILITATION OF THE AWARD 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 UTILIZATION OF
PARTNERSHIPS, JOINT  VENTURES  OR  OTHER  SIMILAR  ARRANGEMENTS  BETWEEN
CERTIFIED  MINORITY AND WOMEN-OWNED BUSINESS ENTERPRISES AND OTHER ENTI-
TIES HAVING PROCUREMENT CONTRACTS WITH  THE  CORPORATION.    SUCH  STAFF
SHALL  BE  FAMILIAR  WITH  THE PROCUREMENT OF THE TYPES OF CONSTRUCTION,
FINANCIAL, LEGAL OR PROFESSIONAL SERVICES UTILIZED BY  THE  CORPORATION,
REPORT  DIRECTLY  TO  THE CORPORATION'S EXECUTIVE DIRECTOR, PRESIDENT OR
CHIEF EXECUTIVE OFFICER AND EITHER DIRECTLY OR THROUGH  THEIR  DESIGNEES
PARTICIPATE IN THE PROCUREMENT PROCESS.
  (G) REQUIREMENTS FOR PROVIDING NOTICE, IN ADDITION TO ANY OTHER NOTICE
OF  PROCUREMENT OPPORTUNITIES REQUIRED BY LAW, TO PROFESSIONAL AND OTHER
ORGANIZATIONS THAT SERVE MINORITY AND WOMEN-OWNED  BUSINESS  ENTERPRISES
PROVIDING THE TYPES OF SERVICES PROCURED BY THE CORPORATION.
  (H)  PROCEDURES  FOR MAINTAINING LISTS OF QUALIFIED CERTIFIED MINORITY
AND WOMEN-OWNED BUSINESS ENTERPRISES, INCLUDING PROFESSIONAL FIRMS  THAT
HAVE  EXPRESSED  AN  INTEREST IN DOING BUSINESS WITH THE CORPORATION AND
ENSURING THAT SUCH LISTS ARE UPDATED REGULARLY.   THE CORPORATION  SHALL
ALSO  CONSULT  THE  LISTS OF CERTIFIED MINORITY AND WOMEN-OWNED BUSINESS
ENTERPRISES MAINTAINED BY THE DEPARTMENT OF ECONOMIC DEVELOPMENT  PURSU-
ANT TO ARTICLE FIFTEEN-A OF THE EXECUTIVE LAW.
  (I) THE ESTABLISHMENT OF APPROPRIATE GOALS FOR PARTICIPATION BY MINOR-
ITY OR WOMEN-OWNED BUSINESS ENTERPRISES IN PROCUREMENT CONTRACTS AWARDED
BY  THE  CORPORATION AND FOR THE UTILIZATION OF MINORITY AND WOMEN-OWNED
ENTERPRISES AS SUBCONTRACTORS AND SUPPLIERS BY ENTITIES HAVING  PROCURE-
MENT  CONTRACTS WITH THE CORPORATION.  STATEWIDE NUMERICAL PARTICIPATION
TARGET GOALS SHALL BE ESTABLISHED BY EACH AUTHORITY BASED ON  THE  FIND-
INGS OF THE TWO THOUSAND TEN DISPARITY STUDY.
  (J)  REQUIREMENTS TO CONDUCT PROCUREMENTS IN A MANNER THAT WILL ENABLE
THE CORPORATION TO ACHIEVE THE MAXIMUM FEASIBLE  PORTION  OF  THE  GOALS
ESTABLISHED PURSUANT TO PARAGRAPH (I) OF THIS SUBDIVISION AND THAT ELIM-
INATES  BARRIERS  TO  PARTICIPATION BY MINORITY AND WOMEN-OWNED BUSINESS
ENTERPRISES  IN  THE  CORPORATION'S  PROCUREMENTS.    SUCH   PROCUREMENT
REQUIREMENTS SHALL INCLUDE THE FOLLOWING:
  (A)  MEASURES AND PROCEDURES TO ENSURE THAT CERTIFIED BUSINESSES SHALL
BE GIVEN THE OPPORTUNITY  FOR  MAXIMUM  FEASIBLE  PARTICIPATION  IN  THE
PERFORMANCE  OF STATE CONTRACTS AND TO ASSIST IN THE CORPORATION'S IDEN-
TIFICATION OF THOSE STATE CONTRACTS FOR WHICH CERTIFIED  BUSINESSES  MAY
BEST  BID TO ACTIVELY AND AFFIRMATIVELY PROMOTE AND ASSIST THEIR PARTIC-
IPATION IN THE PERFORMANCE OF STATE CONTRACTS SO AS  TO  FACILITATE  THE
CORPORATION'S  ACHIEVEMENT  OF THE MAXIMUM FEASIBLE PORTION OF THE GOALS
FOR STATE CONTRACTS TO SUCH BUSINESSES;
  (B) PROVISIONS DESIGNATING THE DIVISION OF  MINORITY  AND  WOMEN-OWNED
BUSINESS  DEVELOPMENT  TO CERTIFY AND DECERTIFY MINORITY AND WOMEN-OWNED

S. 8313                             3

BUSINESS ENTERPRISES FOR ALL CORPORATIONS THROUGH A SINGLE PROCESS  THAT
MEETS APPLICABLE STATE AND FEDERAL REQUIREMENTS;
  (C)  A REQUIREMENT THAT EACH CONTRACT SOLICITATION DOCUMENT ACCOMPANY-
ING 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 OF CERTIFIED MINORITY  AND  WOMEN-OWNED  BUSINESS
ENTERPRISES TO RESPOND COMPETITIVELY TO THE POTENTIAL SUBCONTRACT OPPOR-
TUNITIES;
  (D)  A  REQUIREMENT  THAT  EACH  CORPORATION PROVIDE A CURRENT LIST OF
CERTIFIED MINORITY BUSINESS ENTERPRISES TO EACH PROSPECTIVE CONTRACTOR;
  (E) PROVISIONS RELATING TO JOINT VENTURES, UNDER WHICH  A  BIDDER  MAY
COUNT  TOWARD  MEETING  ITS  MINORITY  BUSINESS ENTERPRISE PARTICIPATION
GOAL, THE MINORITY AND WOMEN-OWNED BUSINESS ENTERPRISE  PORTION  OF  THE
JOINT VENTURE;
  (F)  PROVISIONS  UNDER  WHICH THE CORPORATION MAY WAIVE OBLIGATIONS OF
THE CONTRACTOR RELATING TO MINORITY AND WOMEN-OWNED BUSINESS  ENTERPRISE
PARTICIPATION  AFTER  A SHOWING OF GOOD FAITH EFFORTS TO COMPLY WITH THE
REQUIREMENTS OF THIS ACT PURSUANT TO THE WAIVER PROVISIONS CONTAINED  IN
SUBDIVISION SIX OF SECTION THREE HUNDRED THIRTEEN OF THE EXECUTIVE LAW;
  (G)  A  REQUIREMENT  THAT  THE  CORPORATION  VERIFY  THAT MINORITY AND
WOMEN-OWNED BUSINESS ENTERPRISES LISTED IN A SUCCESSFUL BID ARE ACTUALLY
PARTICIPATING TO THE EXTENT LISTED IN THE PROJECT FOR WHICH THE BID  WAS
SUBMITTED;
  (H) IN THE IMPLEMENTATION OF THIS SECTION, THE CONTRACTING CORPORATION
SHALL:
  I.  CONSIDER,  WHERE  PRACTICABLE,  THE  SEVERABILITY  OF CONSTRUCTION
PROJECTS AND OTHER BUNDLED CONTRACTS;
  II. IMPLEMENT A PROGRAM THAT WILL ENABLE THE CORPORATION  TO  EVALUATE
EACH  CONTRACT  TO DETERMINE THE APPROPRIATENESS OF THE GOAL PURSUANT TO
PARAGRAPH (I) OF THIS SUBDIVISION;
  III. CONSIDER COMPLIANCE WITH THE  REQUIREMENTS  OF  ANY  FEDERAL  LAW
CONCERNING  OPPORTUNITIES  FOR  MINORITY AND WOMEN-OWNED BUSINESS ENTER-
PRISES WHICH EFFECTUATES THE PURPOSE OF THIS SECTION; AND
  IV. CONSULT THE  MOST  RECENT  DISPARITY  STUDY  PURSUANT  TO  ARTICLE
FIFTEEN-A OF THE EXECUTIVE LAW.
  S  4.  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 annual-
ly, summarizing 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  enter-
prises  and  the subject matter and value thereof, ALL CONTRACTS ENTERED
INTO WITH CERTIFIED MINORITY OR WOMEN-OWNED BUSINESS ENTERPRISES AND THE
SUBJECT MATTER AND VALUE THEREOF, ALL REFERRALS MADE AND  ALL  PENALTIES
IMPOSED  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

S. 8313                             4

law, the basis for  any  such  exemption  and  the  status  of  existing
procurement contracts.
  S  5.  Severability.    If any clause, sentence, paragraph, section or
part of this act shall be adjudged by any court of  competent  jurisdic-
tion  to be invalid and after exhaustion of all further judicial review,
the judgment shall not affect, impair or invalidate the remainder there-
of, but shall be confined in its  operation  to  the  clause,  sentence,
paragraph,  section or part of this act directly involved in the contro-
versy in which the judgment shall have been rendered.
  S 6. This act shall take effect on the ninetieth day  after  it  shall
have become a law.

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