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Assembly Actions -
Lowercase Senate Actions - UPPERCASE |
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|---|---|
| May 05, 2017 |
enacting clause stricken |
| Jan 30, 2017 |
referred to veterans' affairs |
Assembly Bill A3971
2017-2018 Legislative Session
Provides veterans with access to certain economic programs and incentives, and expands the population served by the division of minority and women's business development
download bill text pdfSponsored By
MCDONALD
Archive: Last Bill Status - Stricken
- 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
Actions
co-Sponsors
Dan Stec
Frank Skartados
Anthony Brindisi
Steven Otis
David McDonough
Donna Lupardo
James Skoufis
Angelo Santabarbara
David DiPietro
Luis R. Sepúlveda
Mark C. Johns
Matthew Titone
Michael Cusick
Philip Palmesano
Victor M. Pichardo
Walter T. Mosley
Andrew Raia
N. Nick Perry
Carrie Woerner
Fred Thiele
Felix Ortiz
Pamela J. Hunter
William A. Barclay
Peter Abbate
Anthony D'Urso
Angelo J. Morinello
Michael Blake
multi-Sponsors
Kenneth Blankenbush
Robert C. Carroll
William Colton
Clifford Crouch
Andrew R. Garbarino
Joseph Giglio
Earlene Hooper
William Magee
Philip Ramos
2017-A3971 (ACTIVE) - Details
2017-A3971 (ACTIVE) - Summary
Provides veterans with access to certain economic programs and incentives; expands the population served by the division of minority and women's business development to include veterans; makes conforming changes to various provisions of law to reflect the inclusion of veterans.
2017-A3971 (ACTIVE) - Bill Text download pdf
S T A T E O F N E W Y O R K
________________________________________________________________________
3971
2017-2018 Regular Sessions
I N A S S E M B L Y
January 30, 2017
___________
Introduced by M. of A. McDONALD, STEC, SIMANOWITZ, SKARTADOS, BRINDISI,
OTIS, McDONOUGH, LUPARDO, SKOUFIS, SANTABARBARA, GRAF, LUPINACCI,
DiPIETRO, SEPULVEDA, JOHNS, TITONE, CUSICK, PALMESANO, PICHARDO,
MOSLEY, RAIA, PERRY, WOERNER -- Multi-Sponsored by -- M. of A. COLTON,
CROUCH, GARBARINO, HOOPER, KEARNS, McLAUGHLIN, RAMOS -- read once and
referred to the Committee on Veterans' Affairs
AN ACT to amend the executive law, the economic development law, the New
York state urban development corporation act, the facilities develop-
ment corporation act and the New York state medical care facilities
finance agency act, in relation to providing veterans with access to
certain economic programs and incentives, and to expanding the popu-
lation served by the division of minority and women's business devel-
opment; to amend the state finance law, the retirement and social
security law, the public authorities law, the arts and cultural
affairs law, the banking law, the environmental conservation law and
the general municipal law, in relation to making conforming changes;
and to amend the administrative code of the city of New York, in
relation to providing veterans with access to certain economic
programs and incentives
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. This act shall be known and may be cited as "OORAH! An ACT
Opening Opportunities, Resources and Access for Heroes".
§ 1-a. The article heading of article 15-A of the executive law, as
added by chapter 261 of the laws of 1988, is amended to read as follows:
PARTICIPATION BY MINORITY GROUP MEMBERS [AND],
WOMEN AND VETERANS WITH RESPECT TO STATE CONTRACTS
§ 2. Subdivisions 1, 4, 9, 10, 19 and 22 of section 310 of the execu-
tive law, subdivisions 1 and 9 as added by chapter 261 of the laws of
1988, subdivisions 4 and 10 as amended by chapter 55 of the laws of 1992
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD04099-02-7
A. 3971 2
and subdivisions 19 and 22 as added by chapter 175 of the laws of 2010,
are amended and a new subdivision 15-a is added to read as follows:
1. "Certified business" shall mean a business verified as a minority
[or women-owned], WOMEN OR VETERAN-OWNED business enterprise pursuant to
section three hundred fourteen of this article.
4. "Director" shall mean the director of the division of minority [and
women's], WOMEN AND VETERANS' business development in the department of
economic development.
9. "Utilization plan" shall mean a plan prepared by a contractor and
submitted in connection with a proposed state contract. The utilization
plan shall identify certified minority [or women-owned], WOMEN OR VETER-
AN-OWNED business enterprises, if known, that have committed to perform
work in connection with the proposed state contract as well as any such
enterprises, if known, which the contractor intends to use in connection
with the contractor's performance of the proposed state contract. The
plan shall specifically contain a list, including the name, address and
telephone number, of each certified enterprise with which the contractor
intends to subcontract.
10. "Office" shall mean the division of minority [and], women's AND
VETERANS' business development in the department of economic develop-
ment.
15-A. "VETERAN-OWNED BUSINESS ENTERPRISE" SHALL MEAN A BUSINESS ENTER-
PRISE, INCLUDING A SOLE PROPRIETORSHIP, PARTNERSHIP OR CORPORATION THAT
IS:
(A) AT LEAST FIFTY-ONE PERCENT OWNED BY ONE OR MORE UNITED STATES
CITIZENS OR PERMANENT RESIDENT ALIENS WHO ARE HONORABLY DISCHARGED
UNITED STATES VETERANS;
(B) AN ENTERPRISE IN WHICH THE OWNERSHIP INTEREST OF SUCH VETERANS IS
REAL, SUBSTANTIAL AND CONTINUING;
(C) AN ENTERPRISE IN WHICH SUCH VETERAN OWNERSHIP HAS AND EXERCISES
THE AUTHORITY TO CONTROL INDEPENDENTLY THE DAY-TO-DAY BUSINESS DECISIONS
OF THE ENTERPRISE;
(D) AN ENTERPRISE AUTHORIZED TO DO BUSINESS IN THIS STATE AND INDE-
PENDENTLY OWNED AND OPERATED;
(E) AN ENTERPRISE OWNED BY AN INDIVIDUAL OR INDIVIDUALS, WHOSE OWNER-
SHIP, CONTROL AND OPERATION ARE RELIED UPON FOR CERTIFICATION, WITH A
PERSONAL NET WORTH THAT DOES NOT EXCEED THREE MILLION FIVE HUNDRED THOU-
SAND DOLLARS, AS ADJUSTED ANNUALLY ON THE FIRST OF JANUARY FOR INFLATION
ACCORDING TO THE CONSUMER PRICE INDEX OF THE PREVIOUS YEAR; AND
(F) AN ENTERPRISE THAT IS A SMALL BUSINESS PURSUANT TO SUBDIVISION
TWENTY OF THIS SECTION.
A FIRM OWNED BY A MINORITY GROUP MEMBER WHO IS ALSO A VETERAN MAY BE
CERTIFIED AS A MINORITY-OWNED BUSINESS ENTERPRISE, A VETERAN-OWNED BUSI-
NESS ENTERPRISE, OR BOTH, AND MAY BE COUNTED TOWARDS EITHER A MINORITY-
OWNED BUSINESS ENTERPRISE GOAL OR A VETERAN-OWNED BUSINESS ENTERPRISE
GOAL, IN REGARD TO ANY CONTRACT OR ANY GOAL, SET BY AN AGENCY OR AUTHOR-
ITY, BUT SUCH PARTICIPATION MAY NOT BE COUNTED TOWARDS BOTH SUCH GOALS.
SUCH AN ENTERPRISE'S PARTICIPATION IN A CONTRACT MAY NOT BE DIVIDED
BETWEEN THE MINORITY-OWNED BUSINESS ENTERPRISE GOAL AND THE VETERAN-
OWNED BUSINESS ENTERPRISE GOAL. A FIRM OWNED BY A WOMAN WHO IS ALSO A
VETERAN MAY BE CERTIFIED AS A WOMEN-OWNED BUSINESS ENTERPRISE, A VETER-
AN-OWNED BUSINESS ENTERPRISE, OR BOTH, AND MAY BE COUNTED TOWARDS EITHER
A WOMEN-OWNED BUSINESS ENTERPRISE GOAL OR A VETERAN-OWNED BUSINESS
ENTERPRISE GOAL, IN REGARD TO ANY CONTRACT OR ANY GOAL, SET BY AN AGENCY
OR AUTHORITY, BUT SUCH PARTICIPATION MAY NOT BE COUNTED TOWARDS BOTH
SUCH GOALS. SUCH AN ENTERPRISE'S PARTICIPATION IN A CONTRACT MAY NOT BE
A. 3971 3
DIVIDED BETWEEN THE WOMEN-OWNED BUSINESS ENTERPRISE GOAL AND THE VETER-
AN-OWNED BUSINESS ENTERPRISE GOAL.
19. "Personal net worth" shall mean the aggregate adjusted net value
of the assets of an individual remaining after total liabilities are
deducted. Personal net worth includes the individual's share of assets
held jointly with said individual's spouse and does not include the
individual's ownership interest in the certified minority [and women-
owned], WOMEN OR VETERAN-OWNED business enterprise, the individual's
equity in his or her primary residence, or up to five hundred thousand
dollars of the present cash value of any qualified retirement savings
plan or individual retirement account held by the individual less any
penalties for early withdrawal.
22. "Diversity practices" shall mean the contractor's practices and
policies with respect to:
(a) utilizing certified minority [and women-owned], WOMEN AND VETER-
AN-OWNED business enterprises in contracts awarded by a state agency or
other public corporation, as subcontractors and suppliers; and
(b) entering into partnerships, joint ventures or other similar
arrangements with certified minority [and women-owned], WOMEN OR VETER-
AN-OWNED business enterprises as defined in this article or other appli-
cable statute or regulation governing an entity's utilization of minori-
ty [or women-owned], WOMEN OR VETERAN-OWNED business enterprises.
§ 3. The section heading, subdivision 1, paragraphs (a), (d), (e) and
(f) of subdivision 3 of section 311 of the executive law, the section
heading, subdivision 1, and paragraphs (d) and (e) of subdivision 3 as
amended by chapter 55 of the laws of 1992, and paragraphs (a) and (f) of
subdivision 3 as added by chapter 261 of the laws of 1988, are amended
to read as follows:
Division of minority [and], women's AND VETERANS' business develop-
ment. 1. The head of the division of minority [and], women's AND VETER-
ANS' business development shall be the director who shall be appointed
by the governor and hold office at the pleasure of the commissioner. It
shall be the duty of the director of the division of minority [and],
women's AND VETERANS' business development to assist the governor in the
formulation and implementation of laws and policies relating to minority
[and women-owned] WOMEN AND VETERAN-OWNED business enterprises.
(a) to encourage and assist contracting agencies in their efforts to
increase participation by minority [and women-owned], WOMEN AND VETER-
AN-OWNED business enterprises on state contracts and subcontracts so as
to facilitate the award of a fair share of such contracts to them;
(d) to review periodically the practices and procedures of each
contracting agency with respect to compliance with the provisions of
this article, and to require them to file periodic reports with the
division of minority [and], women's AND VETERANS' business development
as to the level of minority [and women-owned], WOMEN AND VETERAN-OWNED
business enterprises participation in the awarding of agency contracts
for goods and services;
(e) on January first of each year report to the governor and the
chairpersons of the senate finance and assembly ways and means commit-
tees on the level of minority [and women-owned], WOMEN AND VETERAN-OWNED
business enterprises participating in each agency's contracts for goods
and services and on activities of the office and effort by each
contracting agency to promote employment of minority group members
[and], women AND VETERANS, 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
A. 3971 4
businesses. The comptroller 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) to prepare and update periodically a directory of certified minor-
ity [and women-owned], WOMEN AND VETERAN-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 enterprises are available to perform services;
§ 3-a. Paragraph (c) of subdivision 4 of section 311 of the executive
law, as added by chapter 361 of the laws of 2009, is amended to read as
follows:
(c) seek to maximize utilization by minority [and women-owned], WOMEN
AND VETERAN-OWNED business enterprises of available federal resources
including but not limited to federal grants, loans, loan guarantees,
surety bonding guarantees, technical assistance, and programs and
services of the federal small business administration.
§ 4. The section heading and subdivisions 1, 2 and 3 of section 311-a
of the executive law, as added by section 4 of part BB of chapter 59 of
the laws of 2006, are amended to read as follows:
Minority [and women-owned], WOMEN AND VETERAN-OWNED business enter-
prise statewide advocate. 1. There is hereby established within the
department of economic development an office of the minority [and
women-owned], WOMEN AND VETERAN-OWNED business enterprise statewide
advocate. The statewide advocate shall be appointed by the commissioner
with the advice of the small business advisory board as established in
section one hundred thirty-three of the economic development law and
shall serve in the unclassified service of the director. The statewide
advocate shall be located in the Albany empire state development office.
2. The advocate shall act as a liaison for minority [and women-owned],
WOMEN AND VETERAN-OWNED business enterprises [(MWBEs)] (MWVBES) to
assist them in obtaining technical, managerial, financial and other
business assistance for certified businesses and applicants. The advo-
cate shall investigate complaints brought by or on behalf of [MWBEs]
(MWVBES) concerning certification delays and instances of violations of
law by state agencies. The statewide advocate shall assist certified
businesses and applicants in the certification process. Other functions
of the statewide advocate shall be directed by the commissioner. The
advocate may request and the director may appoint staff and employees of
the division of minority [and women], WOMEN'S AND VETERANS' business
development to support the administration of the office of the statewide
advocate.
3. The statewide advocate shall establish a toll-free number at the
department of economic development to be used to answer questions
concerning the [MWBE] MWVBE certification process.
§ 5. The section heading and paragraph (a) of subdivision 1 of section
312 of the executive law, as added by chapter 261 of the laws of 1988,
are amended to read as follows:
Equal employment opportunities for minority group members [and], women
AND VETERANS.
(a) The contractor will not discriminate against employees or appli-
cants for employment because of race, creed, color, national origin,
sex, age, disability or marital status, and will undertake or continue
existing programs of affirmative action to ensure that minority group
members [and], women AND VETERANS are afforded equal employment opportu-
A. 3971 5
nities without discrimination. For purposes of this article affirmative
action shall mean recruitment, employment, job assignment, promotion,
upgradings, demotion, transfer, layoff, or termination and rates of pay
or other forms of compensation.
§ 6. Section 312-a of the executive law, as amended by section 1 of
part Q of chapter 58 of the laws of 2015, is amended to read as follows:
§ 312-a. Study of minority [and women-owned], WOMEN AND VETERAN-OWNED
business enterprise programs. 1. The director of the division of minori-
ty [and women-owned], WOMEN AND VETERAN-OWNED business development in
the department of economic development is authorized and directed to
recommission a statewide disparity study regarding the participation of
minority [and women-owned], WOMEN AND VETERAN-OWNED business enterprises
in state contracts since the amendment of this article to be delivered
to the governor and legislature no later than August fifteenth, two
thousand sixteen. The study shall be prepared by an entity independent
of the department and selected through a request for proposal process.
The purpose of such study is:
(a) to determine whether there is a disparity between the number of
qualified minority [and women-owned], WOMEN AND VETERAN-OWNED businesses
ready, willing and able to perform state contracts for commodities,
services and construction, and the number of such contractors actually
engaged to perform such contracts, and to determine what changes, if
any, should be made to state policies affecting minority [and women-
owned], WOMEN AND VETERAN-OWNED business enterprises; and (b) to deter-
mine whether there is a disparity between the number of qualified minor-
ities [and], women AND VETERANS ready, willing and able, with respect to
labor markets, qualifications and other relevant factors, to participate
in contractor employment, management level bodies, including boards of
directors, and as senior executive officers within contracting entities
and the number of such group members actually employed or affiliated
with state contractors in the aforementioned capacities, and to deter-
mine what changes, if any, should be made to state policies affecting
minority [and], women AND VETERANS group populations with regard to
state contractors' employment and appointment practices relative to
diverse group members. Such study shall include, but not be limited to,
an analysis of the history of minority [and women-owned], WOMEN AND
VETERAN-OWNED business enterprise programs and their effectiveness as a
means of securing and ensuring participation by minorities [and], women
AND VETERANS, and a disparity analysis by market area and region of the
state. Such study shall distinguish between minority males, minority
females and non-minority females, AND BETWEEN MINORITY VETERANS AND
NON-MINORITY VETERANS, AND FEMALE VETERANS AND MALE VETERANS, in the
statistical analysis.
2. The director of the division of minority [and women-owned], WOMEN
AND VETERAN-OWNED business development is directed to transmit the
disparity study to the governor and the legislature not later than
August fifteenth, two thousand sixteen, and to post the study on the
website of the department of economic development.
§ 7. Section 313 of the executive law, as amended by chapter 175 of
the laws of 2010, is amended to read as follows:
§ 313. Opportunities for minority [and women-owned], WOMEN AND VETER-
AN-OWNED business enterprises. 1. Goals and requirements for agencies
and contractors. Each agency shall structure procurement procedures for
contracts made directly or indirectly to minority [and women-owned],
WOMEN AND VETERAN-OWNED business enterprises, [in accordance with the
findings of the two thousand ten disparity study,] consistent with the
A. 3971 6
purposes of this article, to attempt to achieve the following results
with regard to total annual statewide procurement:
(a) construction industry for certified minority-owned business enter-
prises: fourteen and thirty-four hundredths percent;
(b) construction industry for certified women-owned business enter-
prises: eight and forty-one hundredths percent;
(B-1) CONSTRUCTION INDUSTRY FOR CERTIFIED VETERAN-OWNED BUSINESS
ENTERPRISES: A PERCENTAGE TO BE DETERMINED BY THE DISPARITY STUDY
DESCRIBED IN SUBDIVISION ONE OF SECTION THREE HUNDRED TWELVE-A OF THIS
ARTICLE;
(c) construction related professional services industry for certified
minority-owned business enterprises: thirteen and twenty-one hundredths
percent;
(d) construction related professional services industry for certified
women-owned business enterprises: eleven and thirty-two hundredths
percent;
(D-1) CONSTRUCTION RELATED PROFESSIONAL SERVICES INDUSTRY FOR CERTI-
FIED VETERAN-OWNED BUSINESS ENTERPRISES: A PERCENTAGE TO BE DETERMINED
BY THE DISPARITY STUDY DESCRIBED IN SUBDIVISION ONE OF SECTION THREE
HUNDRED TWELVE-A OF THIS ARTICLE;
(e) non-construction related services industry for certified minori-
ty-owned business enterprises: nineteen and sixty hundredths percent;
(f) non-construction related services industry for certified women-
owned business enterprises: seventeen and forty-four hundredths percent;
(F-1) NON-CONSTRUCTION RELATED SERVICES INDUSTRY FOR CERTIFIED VETER-
AN-OWNED BUSINESS ENTERPRISES: A PERCENTAGE TO BE DETERMINED BY THE
DISPARITY STUDY DESCRIBED IN SUBDIVISION ONE OF SECTION THREE HUNDRED
TWELVE-A OF THIS ARTICLE;
(g) commodities industry for certified minority-owned business enter-
prises: sixteen and eleven hundredths percent;
(h) commodities industry for certified women-owned business enter-
prises: ten and ninety-three hundredths percent;
(H-1) COMMODITIES INDUSTRY FOR CERTIFIED VETERAN-OWNED BUSINESS ENTER-
PRISES: A PERCENTAGE TO BE DETERMINED BY THE DISPARITY STUDY DESCRIBED
IN SUBDIVISION ONE OF SECTION THREE HUNDRED TWELVE-A OF THIS ARTICLE;
(i) overall agency total dollar value of procurement for certified
minority-owned business enterprises: sixteen and fifty-three hundredths
percent;
(j) overall agency total dollar value of procurement for certified
women-owned business enterprises: twelve and thirty-nine hundredths
percent; [and]
(J-1) OVERALL AGENCY TOTAL DOLLAR VALUE OF PROCUREMENT FOR CERTIFIED
VETERAN-OWNED BUSINESS ENTERPRISES: A PERCENTAGE TO BE DETERMINED BY
THE DISPARITY STUDY DESCRIBED IN SUBDIVISION ONE OF SECTION THREE
HUNDRED TWELVE-A OF THIS ARTICLE;
(k) overall agency total dollar value of procurement for certified
minority, women-owned business enterprises: twenty-eight and ninety-two
hundredths percent; AND
(L) OVERALL AGENCY TOTAL DOLLAR VALUE OF PROCUREMENT FOR CERTIFIED
MINORITY, WOMEN, VETERAN-OWNED BUSINESS ENTERPRISES: A PERCENTAGE TO BE
DETERMINED BY THE DISPARITY STUDY DESCRIBED IN SUBDIVISION ONE OF
SECTION THREE HUNDRED TWELVE-A OF THIS ARTICLE.
1-a. The director shall ensure that each state agency has been
provided with a copy of the two thousand ten disparity study AND THERE-
AFTER THE TWO THOUSAND SEVENTEEN DISPARITY STUDY.
A. 3971 7
1-b. Each agency shall develop and adopt agency-specific goals based
on the findings of the two thousand ten disparity study AND THEREAFTER
THE TWO THOUSAND EIGHTEEN DISPARITY STUDY.
2. The director shall promulgate rules and regulations pursuant to the
goals established in subdivision one of this section that provide meas-
ures and procedures to ensure that certified minority [and women-owned],
WOMEN AND VETERAN-OWNED businesses shall be given the opportunity for
maximum feasible participation in the performance of state contracts and
to assist in the agency's identification of those state contracts for
which minority [and women-owned], WOMEN AND VETERAN-OWNED certified
businesses may best bid to actively and affirmatively promote and assist
their participation in the performance of state contracts so as to
facilitate the agency's achievement of the maximum feasible portion of
the goals for state contracts to such businesses.
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], WOMEN AND VETERAN-OWNED business enterprises for all agen-
cies through a single process that meets applicable requirements;
(b) require that each contract solicitation document accompanying each
solicitation set forth the expected degree of minority [and
women-owned], WOMEN AND VETERAN-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], WOMEN AND VETERAN-OWNED business enterprises
to respond competitively to the potential subcontract opportunities;
(c) require that each agency provide a current list of certified
minority, WOMEN AND VETERAN-OWNED business enterprises to each prospec-
tive contractor;
(d) allow a contractor that is a certified [minority-owned or women-
owned] MINORITY, WOMEN OR VETERAN-OWNED business enterprise to use the
work it performs to meet requirements for use of certified [minority-
owned or women-owned] MINORITY, WOMEN OR VETERAN-OWNED business enter-
prises as subcontractors;
(e) provide for joint ventures, which a bidder may count toward meet-
ing its minority [and women-owned], WOMEN AND VETERAN-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], WOMEN AND VETERAN-
OWNED business enterprise participation;
(g) require that an agency verify that minority [and women-owned],
WOMEN AND VETERAN-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) provide for the collection of statistical data by each agency
concerning actual minority [and women-owned], WOMEN AND VETERAN-OWNED
business enterprise participation; 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.
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
A. 3971 8
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 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 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 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 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.
4. In the implementation of this section, the contracting agency shall
(a) consult the findings contained within the disparity study evidencing
relevant industry specific availability of certified businesses;
(b) implement a program that will enable the agency to evaluate each
contract to determine the appropriateness of the goal pursuant to subdi-
vision one of this section;
(c) consider where practicable, the severability of construction
projects and other bundled contracts; and
(d) consider compliance with the requirements of any federal law
concerning opportunities for minority [and women-owned], WOMEN AND
VETERAN-OWNED business enterprises which effectuates the purpose of this
section. The contracting agency shall determine whether the imposition
of the requirements of any such law duplicate or conflict with the
provisions hereof and if such duplication or conflict exists, the
contracting agency shall waive the applicability of this section to the
extent of such duplication or conflict.
5. (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,
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 director; shall require the contracting agen-
A. 3971 9
cy 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 peri-
odic compliance reports relating to the operation and implementation of
any utilization plan; shall not allow any automatic waivers but shall
allow a contractor to apply for a partial or total waiver of the minori-
ty [and women-owned], WOMEN AND VETERAN-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 minor-
ity [and women-owned], WOMEN AND VETERAN-OWNED business enterprise
participation requirements or has denied such request for a waiver; and
shall allow a contracting agency to file a complaint with the director
pursuant to subdivision nine of this section in the event a contractor
is failing or has failed to comply with the minority [and women-owned],
WOMEN AND VETERAN-OWNED business enterprise participation requirements
set forth in the state contract where no waiver has been granted.
(b) The rules and regulations promulgated pursuant to this subdivision
regarding a utilization plan shall provide that where enterprises have
been identified within a utilization plan, a contractor shall attempt,
in good faith, to utilize such enterprise at least to the extent indi-
cated. A contracting agency may require a contractor to indicate, within
a utilization plan, what measures and procedures he or she intends to
take to comply with the provisions of this article, but may not require,
as a condition of award of, or compliance with, a contract that a
contractor utilize a particular enterprise in performance of the
contract.
(c) Without limiting other grounds for the disqualification of bids or
proposals on the basis of non-responsibility, a contracting agency may
disqualify the bid or proposal of a contractor as being non-responsible
for failure to remedy notified deficiencies contained in the contrac-
tor's utilization plan within a period of time specified in regulations
promulgated by the director after receiving notification of such defi-
ciencies from the contracting agency. Where failure to remedy any noti-
fied deficiency in the utilization plan is a ground for disqualifica-
tion, that issue and all other grounds for disqualification shall be
stated in writing by the contracting agency. Where the contracting agen-
cy states that a failure to remedy any notified deficiency in the utili-
zation plan is a ground for disqualification the contractor shall be
entitled to an administrative hearing, on a record, involving all
grounds stated by the contracting agency. Such hearing shall be
conducted by the appropriate authority of the contracting agency to
review the determination of disqualification. A final administrative
determination made following such hearing shall be reviewable in a
proceeding commenced under article seventy-eight of the civil practice
law and rules, provided that such proceeding is commenced within thirty
days of the notice given by certified mail return receipt requested
rendering such final administrative determination. Such proceeding shall
be commenced in the supreme court, appellate division, third department
and such proceeding shall be preferred over all other civil causes
except election causes, and shall be heard and determined in preference
to all other civil business pending therein, except election matters,
irrespective of position on the calendar. Appeals taken to the court of
A. 3971 10
appeals of the state of New York shall be subject to the same prefer-
ence.
6. Where it appears that a contractor cannot, after a good faith
effort, comply with the minority [and women-owned], WOMEN AND VETERAN-
OWNED business enterprise participation requirements set forth in a
particular state contract, a contractor may file a written application
with the contracting agency requesting a partial or total waiver of such
requirements setting forth the reasons for such contractor's inability
to meet any or all of the participation requirements together with an
explanation of the efforts undertaken by the contractor to obtain the
required minority [and women-owned], WOMEN AND VETERAN-OWNED business
enterprise participation. In implementing the provisions of this
section, the contracting agency shall consider the number and types of
minority [and women-owned], WOMEN AND VETERAN-OWNED business enterprises
located in the region in which the state contract is to be performed,
the total dollar value of the state contract, the scope of work to be
performed and the project size and term. If, based on such consider-
ations, the contracting agency determines there is not a reasonable
availability of contractors on the list of certified [business] BUSI-
NESSES to furnish services for the project, it shall issue a waiver of
compliance to the contractor. In making such determination, the
contracting agency shall first consider the availability of other busi-
ness enterprises located in the region and shall thereafter consider the
financial ability of minority [and women-owned], WOMEN AND VETERAN-OWNED
businesses located outside the region in which the contract is to be
performed to perform the state contract.
7. For purposes of determining a contractor's good faith effort to
comply with the requirements of this section or to be entitled to a
waiver therefrom the contracting agency shall consider:
(a) whether the contractor has advertised in general circulation
media, trade association publications, and [minority-focus and women-fo-
cus] MINORITY-FOCUSED, WOMEN-FOCUSED AND VETERAN-FOCUSED media and, in
such event, (i) whether or not certified minority [or women-owned],
WOMEN OR VETERAN-OWNED businesses which have been solicited by the
contractor exhibited interest in submitting proposals for a particular
project by attending a pre-bid conference; and
(ii) whether certified businesses which have been solicited by the
contractor have responded in a timely fashion to the contractor's solic-
itations for timely competitive bid quotations prior to the contracting
agency's bid date; and
(b) whether there has been written notification to appropriate certi-
fied businesses that appear in the directory of certified businesses
prepared pursuant to paragraph (f) of subdivision three of section three
hundred eleven of this article; and
(c) whether the contractor can reasonably structure the amount of work
to be performed under subcontracts in order to increase the likelihood
of participation by certified businesses.
8. In the event that a contracting agency fails or refuses to issue a
waiver to a contractor as requested within twenty days after having made
application therefor pursuant to subdivision six of this section or if
the contracting agency denies such application, in whole or in part, the
contractor may file a complaint with the director pursuant to section
three hundred sixteen of this article setting forth the facts and
circumstances giving rise to the contractor's complaint together with a
demand for relief. The contractor shall serve a copy of such complaint
upon the contracting agency by personal service or by certified mail,
A. 3971 11
return receipt requested. The contracting agency shall be afforded an
opportunity to respond to such complaint in writing.
9. If, after the review of a contractor's minority [and women owned],
WOMEN AND VETERAN-OWNED business utilization plan or review of a period-
ic compliance report and after such contractor has been afforded an
opportunity to respond to a notice of deficiency issued by the contract-
ing agency in connection therewith, it appears that a contractor is
failing or refusing to comply with the minority [and women-owned], WOMEN
AND VETERAN-OWNED business participation requirements as set forth in
the state contract and where no waiver from such requirements has been
granted, the contracting agency may file a written complaint with the
director pursuant to section three hundred sixteen of this article
setting forth the facts and circumstances giving rise to the contracting
agency's complaint together with a demand for relief. The contracting
agency shall serve a copy of such complaint upon the contractor by
personal service or by certified mail, return receipt requested. The
contractor shall be afforded an opportunity to respond to such complaint
in writing.
§ 8. Section 313-a of the executive law, as added by chapter 175 of
the laws of 2010, is amended to read as follows:
§ 313-a. Diversity practices of state contractors. The director shall
promulgate rules and regulations setting forth measures and procedures
to require all contracting agencies, where practicable, feasible and
appropriate, to assess the diversity practices of contractors submitting
bids or proposals in connection with the award of a state contract. Such
rules and regulations shall take into account: the nature of the labor,
services, supplies, equipment or materials being procured by the state
agency; the method of procurement required to be used by a state agency
to award the contract and minority [and women-owned], WOMEN AND VETER-
AN-OWNED business utilization plans required to be submitted pursuant to
sections three hundred twelve and three hundred thirteen of this arti-
cle; and such other factors as the director deems appropriate or neces-
sary to promote the award of state contracts to contractors having sound
diversity practices. Such assessment shall not in any way permit the
automatic rejection of a bid or procurement contract proposal based on
lack of adherence to diversity practices. Each bid or proposal shall be
analyzed on an individual per bid or per proposal basis with the
contractor's diversity practices considered as only a part of a wider
consideration of several factors when deciding to award or decline to
award a bid or proposal. The director shall develop the rules and regu-
lations required hereunder only after consultation with the state
procurement council established by section one hundred sixty-one of the
state finance law.
§ 9. Subdivisions 2 and 2-a of section 314 of the executive law,
subdivision 2 as added by chapter 261 of the laws of 1988 and subdivi-
sion 2-a as amended by chapter 175 of the laws of 2010, are amended to
read as follows:
2. For the purposes of this article, the office shall be responsible
for verifying businesses as being owned, operated, and controlled by
minority group members [or], women OR VETERANS and for certifying such
verified businesses. The director shall prepare a directory of certified
businesses for use by contracting agencies and contractors in carrying
out the provisions of this article. The director shall periodically
update the directory.
2-a. (a) The director shall establish a procedure enabling the office
to accept New York municipal corporation certification verification for
A. 3971 12
minority [and women-owned], WOMEN AND VETERAN-OWNED business enterprise
applicants in lieu of requiring the applicant to complete the state
certification process. The director shall promulgate rules and regu-
lations to set forth criteria for the acceptance of municipal corpo-
ration certification. All eligible municipal corporation certifications
shall require business enterprises seeking certification to meet the
following standards:
(i) have at least fifty-one percent ownership by a minority [or a
women-owned], WOMEN OR VETERAN-OWNED enterprise and be owned by United
States citizens or permanent resident aliens;
(ii) be an enterprise in which the minority [and/or women-ownership],
WOMEN AND/OR VETERAN-OWNERSHIP interest is real, substantial and contin-
uing;
(iii) be an enterprise in which the minority [and/or women-ownership],
WOMEN AND/OR VETERAN-OWNERSHIP has and exercises the authority to
control independently the day-to-day business decisions of the enter-
prise;
(iv) be an enterprise authorized to do business in this state;
(v) be subject to a physical site inspection to verify the fifty-one
percent ownership requirement;
(vi) be owned by an individual or individuals, whose ownership,
control and operation are relied upon for certification, with a personal
net worth that does not exceed three million five hundred thousand
dollars, as adjusted annually for inflation according to the consumer
price index; and
(vii) be an enterprise that is a small business pursuant to subdivi-
sion twenty of section three hundred ten of this article.
(b) The director shall work with all municipal corporations that have
a municipal minority [and women-owned], WOMEN AND VETERAN-OWNED business
enterprise program to develop standards to accept state certification to
meet the municipal corporation minority [and women-owned], WOMEN AND
VETERAN-OWNED business enterprise certification standards.
(c) The director shall establish a procedure enabling the division to
accept federal certification verification for minority [and
women-owned], WOMEN AND VETERAN-OWNED business enterprise applicants,
provided said standards comport with those required by the state minori-
ty [and women-owned], WOMEN AND VETERAN-OWNED business program, in lieu
of requiring the applicant to complete the state certification process.
The director shall promulgate rules and regulations to set forth crite-
ria for the acceptance of federal certification.
§ 10. Subdivisions 3, 4, 5 and 7 of section 315 of the executive law,
subdivision 3 as amended and subdivisions 4, 5 and 7 as added by chapter
175 of the laws of 2010, are 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 VETERANS 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, including, 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
A. 3971 13
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.
4. The division of minority [and], women's AND VETERANS' business
development shall issue an annual report which: (a) summarizes the
report submitted by each contracting agency pursuant to subdivision
three of this section; (b) contains such comparative or other informa-
tion as the director deems appropriate, including but not limited to
goals compared to actual participation of minority [and women-owned],
WOMEN AND VETERAN-OWNED business enterprises in state contracting, to
evaluate the effectiveness of the activities undertaken by each such
contracting agency to promote increased participation by certified
minority [or women-owned], WOMEN OR VETERAN-OWNED businesses with
respect to state contracts and subcontracts; (c) contains a summary of
all waivers of the requirements of subdivisions six and seven of section
three hundred thirteen of this article allowed by each contracting agen-
cy during the period covered by the report, including a description of
the basis of the waiver request and the contracting agency's rationale
for granting any such waiver; (d) describes any efforts to create a
database or other information storage and retrieval system containing
information relevant to contracting with minority [and women-owned],
WOMEN AND VETERAN-OWNED business enterprises; and (e) 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 pursuant to section three hundred sixteen-a of this article and
(ii) the penalties or sanctions, if any, assessed in connection with
such determinations and the rationale for such penalties or sanctions.
Copies of the annual report shall be provided to the commissioner, the
governor, the comptroller, the temporary president of the senate, the
speaker of the assembly, the minority leader of the senate, the minority
leader of the assembly and shall also be made widely available to the
public via, among other things, publication on a website maintained by
the division of minority [and], women's AND VETERANS' business develop-
ment.
5. Each agency shall include in its annual report to the governor and
legislature pursuant to section one hundred sixty-four of [the executive
law] THIS CHAPTER its annual goals for contracts with minority-owned
[and], women-owned AND VETERAN-OWNED business enterprises, the number of
actual contracts issued to minority-owned [and], women-owned AND VETER-
AN-OWNED business enterprises; and a summary of all waivers of the
requirements of subdivisions six and seven of section three hundred
thirteen of this article allowed by the reporting agency during the
preceding year, including a description of the basis of the waiver
request and the rationale for granting 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.
7. If it is determined by the director that any agency has failed to
act in good faith to implement the remedial action plan, pursuant to
subdivision six of this section within one year, the director shall
provide written notice of such a finding, which shall be publicly avail-
able, and direct implementation of remedial actions to:
(a) assure that sufficient and effective solicitation efforts to
women, VETERAN and minority-owned business enterprises are being made by
said agency;
A. 3971 14
(b) divide contract requirements, when economically feasible, into
quantities that will expand the participation of women, VETERAN and
minority-owned business enterprises;
(c) eliminate extended experience or capitalization requirements, when
programmatically and economically feasible, that will expand partic-
ipation by women, VETERAN and minority-owned business enterprises;
(d) identify specific proposed contracts as particularly attractive or
appropriate for participation by women, VETERAN and minority-owned busi-
ness enterprises with such identification to result from and be coupled
with the efforts of paragraphs (a), (b), and (c) of this subdivision;
and
(e) upon a finding by the director that an agency has failed to take
affirmative measures to implement the remedial plan and to follow any of
the remedial actions set forth by the director, and in the absence of
any objective progress towards the agency's goals, require some or all
of the agency's procurement, for a specified period of time, be placed
under the direction and control of another agency or agencies.
§ 11. Section 316 of the executive law, as amended by chapter 175 of
the laws of 2010, is amended to read as follows:
§ 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 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 arti-
cle to be 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
seventy-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], WOMEN AND VETERAN-OWNED participation
requirement included in the contract may include a determination that
the contractor shall be ineligible 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 determination; provided however, if a contrac-
tor has previously been determined 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 contracting agency or be awarded any
A. 3971 15
such contract for a period not to exceed five years following the final
determination. The division of minority [and women's], WOMEN'S AND
VETERANS' 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.
§ 12. Section 316-a of the executive law, as added by chapter 175 of
the laws of 2010, is amended to read as follows:
§ 316-a. Prohibitions in contracts; violations. Every contracting
agency shall include a provision in its state contracts expressly
providing that any contractor who willfully and intentionally fails to
comply with the minority [and women-owned], WOMEN AND VETERAN-OWNED
participation requirements of this article as set forth in such state
contract shall be liable to the contracting agency for liquidated or
other appropriate damages and shall provide for other appropriate reme-
dies on account of such breach. A contracting agency that elects to
proceed against a contractor for breach of contract as provided in this
section shall be precluded from seeking enforcement pursuant to section
three hundred sixteen of this article; provided however, that the
contracting agency shall include a summary of all enforcement actions
undertaken pursuant to this section in its annual report submitted
pursuant to subdivision three of section three hundred fifteen of this
article.
§ 13. Section 317 of the executive law, as added by chapter 261 of the
laws of 1988, is amended to read as follows:
§ 317. Superseding effect of article with respect to state law. The
provisions of this article shall supersede any other provision of state
law, which expressly implements or mandates an equal employment opportu-
nity program or a program for securing participation by minority [and
women-owned], WOMEN AND VETERAN-OWNED business enterprises, concerning
action to be taken by any party to a state contract, to which the
provisions of this article apply; provided, however, that the provisions
of any state law, not as hereinabove superseded, which expressly imple-
ment or mandate such programs shall remain unimpaired by the provisions
of this article, except that the provisions of any such law shall be
construed as if the provisions of subdivisions five, six, seven and
eight of section three hundred thirteen and section three hundred
sixteen of this article were fully set forth therein and made applicable
only to complaints of violations under such provisions of law occurring
on or after September first, nineteen hundred eighty-eight; provided,
further, that nothing contained in this article shall be construed to
limit, impair, or otherwise restrict any state agency's authority or
discretionary power in effect prior to the enactment of this article to
establish or continue, by rule, regulation or resolution, an equal
opportunity program or a program for securing participation of minority
[and women-owned], WOMEN AND VETERAN-OWNED business enterprises with
regard to banking relationships, the issuance of insurance policies or
contracts for the sale of bonds, notes or other securities; and,
provided further, that nothing contained in the immediately preceding
proviso shall be construed to create, impair, alter, limit, modify,
enlarge, abrogate or restrict any agency's authority or discretionary
power with respect to an equal opportunity program or a program for
securing participation of minority [and women-owned], WOMEN AND VETER-
AN-OWNED enterprises.
§ 14. Section 4-a of the executive law, as added by chapter 175 of the
laws of 2010, is amended to read as follows:
A. 3971 16
§ 4-a. Chief diversity officer. A chief diversity officer for the
state shall be appointed by the governor and shall receive a salary to
be fixed by the governor within the amount appropriated therefor. The
chief diversity officer's responsibilities shall include the following:
1. Advise and assist the governor in formulating policies relating to
workforce diversity and minority [and], women's AND VETERANS' business
enterprises;
2. Work with the director of the division of minority [and], women's
AND VETERANS' business development to prepare an annual plan for ensur-
ing full compliance with article [fifteen-a of the executive law]
FIFTEEN-A OF THIS CHAPTER by state agencies and the use of diversity
practices by such agencies;
3. Advise the governor and the agencies regarding any measures neces-
sary to ensure full compliance with article [fifteen-a] FIFTEEN-A of
this chapter and use of diversity practices by state public authorities;
4. Serve as a member of the state procurement council established
under section one hundred sixty-one of the state finance law;
5. Serve as the governor's liaison with organizations representing
minority [and women-owned], WOMEN AND VETERAN-OWNED business enterprises
and other organizations related to diversity in the state workforce and
in state contracting;
6. Serve as the governor's liaison to the small business advisory
council for issues related to the creation of a diverse workforce and
state procurement practices relating to minority [and women-owned],
WOMEN AND VETERAN-OWNED business enterprises;
7. Review and consult with the director of minority [and], women's AND
VETERANS' business development regarding policies relating to minority
[and women-owned], WOMEN AND VETERAN-OWNED business enterprise contract
specialists at state agencies; and
8. Engage in other actions assigned to him or her by the governor
relating to diversity in hiring or promotion of the state workforce and
in encouraging diversity practices and compliance with article
[fifteen-a] FIFTEEN-A of this chapter in procurement.
§ 15. The article heading of article 4-A of the economic development
law, as added by chapter 55 of the laws of 1992, is amended to read as
follows:
DIVISION OF MINORITY [AND], WOMEN'S AND VETERANS' BUSINESS DEVELOPMENT
§ 16. Section 115 of the economic development law, as added by chapter
55 of the laws of 1992, is amended to read as follows:
§ 115. Definitions. As used in this article, the following terms shall
have the following meanings:
1. "Division" shall mean the division of minority [and], women's AND
VETERANS' business development created by this article.
2. "Technical assistance" shall mean assistance and services designed
to improve the efficiency, effectiveness and viability of a minority [or
women-owned], WOMEN OR VETERAN-OWNED business enterprise, including, but
not limited to, management assistance, problem solving, the development
of business and marketing plans, market analysis, financial planning,
regulatory compliance, safety and security measures, export assistance,
procurement assistance, application assistance, state program assist-
ance, referral to private and public financing sources, contracting
assistance, and other forms of assistance which the commissioner deems
necessary and appropriate.
§ 17. Section 116 of the economic development law, as added by chapter
55 of the laws of 1992, is amended to read as follows:
A. 3971 17
§ 116. Office of minority [and], women's AND VETERANS' business devel-
opment; transfer. All the functions and powers possessed by and all the
obligations and duties of the governor's office of minority [and],
women's AND VETERANS' business development office, created and estab-
lished in the executive law [pursuant to and by chapter two hundred
sixty-one of the laws of nineteen hundred eighty-eight], are hereby
transferred and assigned to, assumed by and devolved upon the department
of economic development.
§ 18. Section 117 of the economic development law, as added by chapter
55 of the laws of 1992, is amended to read as follows:
§ 117. Division of minority [and], women's AND VETERANS' business
development. There is hereby created within the department of economic
development a division of minority and [women-owned], WOMEN AND VETER-
AN-OWNED business development. The director of such division shall be
appointed by the governor, shall report directly to the commissioner on
the activities of the division, and shall hold office at the pleasure of
the commissioner. The commissioner may appoint such officers, employees,
agents, consultants and special committees as he or she may deem neces-
sary to carry out the provisions of this article and prescribe their
duties.
§ 19. Section 118 of the economic development law, as added by chapter
55 of the laws of 1992 and subdivision 7 as further amended by section
15 of part GG of chapter 63 of the laws of 2000, is amended to read as
follows:
§ 118. Power and duties. In addition to the power and duties conferred
by section one hundred sixteen of this article, the division shall have
the additional power and duty to:
1. Coordinate with all state agencies performing functions affecting
the operations of minority [business enterprises, and women-owned],
WOMEN AND VETERAN-OWNED business enterprises, AND VETERAN-OWNED BUSINESS
ENTERPRISES as such terms are defined in section two hundred ten of this
chapter;
2. Receive complaints and inquiries of operators of minority [and
women-owned], WOMEN AND VETERAN-OWNED business enterprises and refer
them to the appropriate federal, state or local agency for appropriate
action on such complaints;
3. Solicit recommendations from the operators of minority [and women-
owned], WOMEN AND VETERAN-OWNED business enterprises for improving
existing state programs and refer such recommendations to the governor,
the legislature and appropriate state agencies or authorities;
4. Advise and make recommendations to the commissioner and the legis-
lature on matters affecting the minority [and women-owned], WOMEN OR
VETERAN-OWNED business enterprises of the state and promote and encour-
age the protection of the legitimate interests of minority [and women-
owned], WOMEN OR VETERAN-OWNED business enterprises within the state;
5. Conduct investigations, research, studies and analyses of matters
affecting the interests of minority [and women-owned], WOMEN AND VETER-
AN-OWNED business enterprises;
6. Study the implementation of the laws affecting minority [and
women-owned], WOMEN AND VETERAN-OWNED business enterprises and recommend
to the commissioner new laws and amendments of laws for the benefit of
minority [and women-owned], WOMEN AND VETERAN-OWNED business enter-
prises; and review pending legislation affecting minority [and women-
owned], WOMEN AND VETERAN-OWNED business enterprises and report its
findings to the commissioner;
A. 3971 18
7. Provide technical assistance and information to minority [and
women-owned], WOMEN AND VETERAN-OWNED business enterprises in the state
on economic development programs administered by the department, includ-
ing, but not limited to: (a) the empire zones program, established
pursuant to article eighteen-B of the general municipal law, (b) the
industrial effectiveness program, established pursuant to article seven
of this chapter, (c) the economic development skills training program,
established pursuant to article eight of this chapter, and (d) the
entrepreneurial assistance program, established pursuant to article nine
of this chapter;
8. Provide technical assistance and information to minority [and
women-owned], WOMEN AND VETERAN-OWNED business enterprises in the state
on economic development programs administered by agencies other than the
department, including, but not limited to programs administered by the
urban development corporation, the job development authority and the
science and technology foundation;
9. Be responsible for conducting minority [and women-owned], WOMEN AND
VETERAN-OWNED business enterprise assistance programs and for coordinat-
ing the activities of all other state agencies acting within the scope
of this section; and
10. Carry out the activities to implement the minority [and women-
owned], WOMEN AND VETERAN-OWNED business enterprise assistance programs,
to the extent practicable, within amounts appropriated therefor by;
(a) collecting and maintaining information identifying certified
minority [and women-owned], WOMEN AND VETERAN-OWNED business enterprises
within New York state;
(b) collecting, maintaining, and providing information to potential
users identifying existing contracting and procurement opportunities
within and outside New York state;
(c) maintaining, providing and marketing a compilation of existing
programs providing assistance for minority [and women-owned], WOMEN AND
VETERAN-OWNED business enterprises;
(d) identifying special needs and problems facing minority [and
women-owned], WOMEN AND VETERAN-OWNED business enterprises within New
York state;
(e) contacting institutions, organizations and commercial enterprises
that are potential consumers of minority [and women-owned], WOMEN AND
VETERAN-OWNED business products and services; urging their expanded
consumption of such goods and services;
(f) facilitating the establishment of minority [and women-owned],
WOMEN AND VETERAN-OWNED business enterprises; and
(g) providing information concerning local and regional opportunities
for minority [and women-owned], WOMEN AND VETERAN-OWNED business enter-
prises.
§ 20. Subdivisions 1, 3 and 6 of section 120 of the economic develop-
ment law, subdivision 1 as amended by chapter 361 of the laws of 2009
and subdivisions 3 and 6 as added by chapter 55 of the laws of 1992, are
amended to read as follows:
1. There is hereby created in the division of minority [and], women's
AND VETERANS' business development a minority [and women-owned], WOMEN
AND VETERAN-OWNED business enterprise advisory board. The board shall
consist of twelve members to be appointed by the governor. The governor
shall designate a chairperson from the members of the advisory board, to
serve as such at the pleasure of the governor. In appointing the members
of the advisory board the governor shall ensure that six of the members
are individuals who are currently involved in the ownership and/or oper-
A. 3971 19
ation of a minority [or women-owned], WOMEN OR VETERAN-OWNED business
enterprise or who have extensive experience in minority [and women-
owned], WOMEN AND VETERAN-OWNED business enterprise ownership and/or
operation, and that at least two of the members are individuals repres-
enting banking, community development financial, insurance or surety
bonding institutions.
3. The advisory board shall meet regularly at least one time in each
year. Special meetings may be called by its chairperson and shall be
called by the chairperson at the request of the director of the division
of minority [and], women's AND VETERANS' business development.
6. The board shall have the power and duty to:
(a) advise the commissioner in carrying out the functions, powers and
duties of the division, as set forth in this article;
(b) advise the commissioner, the governor, and the legislature
concerning recommended legislation necessary to foster and promote the
prosperity, expansion and development of minority [and women-owned],
WOMEN AND VETERAN-OWNED business enterprises within the state;
(c) advise the commissioner, the governor, and the legislature
concerning existing laws, rules, regulations and practices of state
agencies which are counter-productive or inimical to the prosperity,
expansion and development of minority [and women-owned], WOMEN AND
VETERAN-OWNED business enterprises within the state;
(d) advise the commissioner, the governor, and the legislature
concerning the development of inter-governmental cooperation among agen-
cies of the federal, state and local governments and cooperation between
private industry and government so as to assure the optimum development
of minority [and women-owned], WOMEN AND VETERAN-OWNED business enter-
prises; and
(e) serve as a catalyst for creating and maintaining a minority [and
women-owned], WOMEN AND VETERAN-OWNED business enterprise consciousness
in New York state.
(f) establish procedures for making annual awards to be known as "New
York State Minority [and Women-Owned], WOMEN AND VETERAN-OWNED Business
Excelsior Awards". These non-monetary awards shall be given in recogni-
tion of unusual performance by persons, firms and organizations which
are engaged in the operation of a New York state minority [and women-
owned], WOMEN AND VETERAN-OWNED business enterprise or which are engaged
in activities to assist minority [and women-owned], WOMEN AND VETERAN-
OWNED business enterprises in the state. The board may nominate up to
five award winners annually and forward such names to the governor for
consideration. The governor may designate award winners from these nomi-
nees. Current members of the advisory board are not eligible as nomi-
nees.
§ 21. Section 210 of the economic development law is amended by adding
a new subdivision 7 to read as follows:
7. "VETERAN-OWNED BUSINESS ENTERPRISE" SHALL MEAN ANY BUSINESS ENTER-
PRISE WHICH IS AT LEAST FIFTY-ONE PER CENTUM OWNED BY, OR IN THE CASE OF
A PUBLICLY OWNED BUSINESS AT LEAST FIFTY-ONE PER CENTUM OF THE STOCK OF
WHICH IS OWNED BY, CITIZENS OR PERMANENT RESIDENT ALIENS WHO ARE VETER-
ANS WHERE SUCH OWNERSHIP INTEREST IS REAL, SUBSTANTIAL AND CONTINUING
AND WHERE SUCH PERSONS HAVE THE AUTHORITY TO INDEPENDENTLY CONTROL THE
DAY-TO-DAY BUSINESS DECISIONS OF THE ENTITY.
§ 22. Paragraph (h) of subdivision 6 of section 133 of the economic
development law, as amended by chapter 491 of the laws of 2013, is
amended to read as follows:
A. 3971 20
(h) advise the commissioner on recommendations for the selection of a
minority [and women-owned], WOMEN AND VETERAN-OWNED business enterprise
statewide advocate as set forth by section three hundred eleven-a of the
executive law; and
§ 23. Subdivision 1 of section 231 of the economic development law, as
amended by chapter 352 of the laws of 2009, is amended to read as
follows:
1. The department, through its regional offices, is authorized: (a) to
serve as a center for information regarding economic development
resources available from state, federal and local agencies; (b) to
provide outreach to businesses, with attention to small and medium-sized
businesses, including minority [and women-owned], WOMEN AND VETERAN-
OWNED business enterprises, for financial and technical assistance
offered by state economic development agencies, authorities, or other
economic entities; (c) to serve as a regional center to accept applica-
tions for state economic development programs; (d) to coordinate the
economic development programs and activities of state agencies and
authorities within each region including, but not limited to, outreach
to businesses, technical assistance services, skills training assist-
ance, sharing of information, strategic economic development plans and
programs, to provide or arrange for assistance in compliance with feder-
al, state, and local rules, regulations, permits, and licenses, and
other measures to enhance regional economic development and eliminate
duplication of services; (e) to provide or arrange for assistance to
persons, firms, agencies, partnerships or corporations, either public or
private, in applying for assistance from state economic development
programs or for necessary licenses and permits or seeking to comply with
federal, state and local rules and regulations; (f) to review and
comment, within their knowledge and expertise, with respect to applica-
tions for state assistance in a timely manner and form prescribed by the
commissioner; (g) to distribute literature and marketing material
describing the facilities, advantages and attractions of the region for
business; (h) to provide economic development information, planning
services and technical assistance to counties and municipalities within
the region; (i) to provide information and assistance in the certif-
ication of minority [and women-owned], WOMEN AND VETERAN-OWNED business
enterprises; (j) to provide or arrange for assistance to private sector
employers, whether operating for profit or not for profit, and to organ-
izations and associations of such employers in developing and implement-
ing innovative and flexible employee compensation, assistance and bene-
fit programs to enhance competitiveness and meet emerging demographic
and market conditions; and (k) to provide information and assistance to
small businesses on environmental compliance requirements of federal and
state law and pollution prevention opportunities in furtherance of poli-
cies and programs established in article twenty-eight of the environ-
mental conservation law and in coordination with the pollution
prevention and environmental compliance coordinating council established
in article twenty-eight of the environmental conservation law, including
programs operated by the department, the department of environmental
conservation or other state or local agencies from which technical
assistance, or loans, grants or other financial assistance for compli-
ance and pollution prevention may be obtained; and in providing such
information and assistance, to promote pollution prevention approaches.
§ 24. Paragraph (i) of subdivision 3 of section 22-c of the state
finance law, as amended by section 1 of part O of chapter 59 of the laws
of 2009, is amended to read as follows:
A. 3971 21
(i) An explanation of any actions proposed to be taken to achieve
increased opportunity for meaningful participation in the performance of
state contracts by minority [and women-owned], WOMEN AND VETERAN-OWNED
business enterprises in accordance with article fifteen-A of the execu-
tive law, including a compliance report to be submitted by July first of
each year commencing with the two thousand five--two thousand six fiscal
year and for each subsequent year thereafter that includes: all the
items of information required in accordance with regulations promulgated
by the director of the division of minority [and], women's AND VETERANS'
business development in the department of economic development under
article fifteen-A of the executive law; goals for participation by
certified minority [or women-owned], WOMEN OR VETERAN-OWNED business
enterprises for such fiscal year; and a description of the types of
expenditures, projects or contracts.
§ 25. Paragraphs c and d of subdivision 2 of section 5 of the state
finance law, as added by chapter 171 of the laws of 2010, are amended to
read as follows:
c. Within the discretion of the deferred compensation board and in
accordance with and subject to its fiduciary duty and obligations to the
deferred compensation plan for state employees and to the members and
beneficiaries of such plan and such other investment limitations as may
be prescribed by this chapter, the deferred compensation board is
authorized to establish an [MWBE] MWVBE asset management and financial
institution strategy including reasonable goals for utilization of
[MWBE] MWVBE asset managers, [MWBE] MWVBE financial institutions and
[MWBE] MWVBE professional service firms, which shall include, but shall
not be limited to, the following objectives:
(i) conducting procurement procedures in a manner that will assure the
inclusion of [MWBE] MWVBE asset managers in any request for proposal or
search process for asset management services undertaken in accordance
with the rules and regulations and of the board;
(ii) subject to best execution policies, developing a strategy to (1)
conduct trades of public equity securities with [MWBE] MWVBE financial
institutions and (2) conduct trades of fixed-income securities through
[MWBE] MWVBE financial institutions;
(iii) conducting procurement procedures in a manner that will assure
the inclusion of [MWBE] MWVBE financial institutions and other [MWBE]
MWVBE professional service firms in procurements for services that
include accounting, banking, financial advisory, insurance, legal,
research, valuation and other financial and professional services that
are undertaken in accordance with the rules and regulations of the
board;
(iv) cooperating with other fiduciary controlled entities and state
agencies and offices to identify [MWBE] MWVBE asset managers, [MWBE]
MWVBE financial institutions and [MWBE] MWVBE professional service
firms.
As used in this section, the terms "[MWBE] MWVBE asset manager",
"[MWBE] MWVBE financial institutions", "[MWBE] MWVBE", "fiduciary-cont-
rolled entities" and "best execution" shall have the meanings specified
in section one hundred seventy-six of the retirement and social security
law.
d. The board is also authorized to:
(i) periodically provide notice of the existence of such strategy so
that [MWBE] MWVBE asset managers, [MWBE] MWVBE financial institutions
and other [MWBE] MWVBE professional service firms are made aware of the
opportunities made available pursuant to this strategy;
A. 3971 22
(ii) within sixty days of the end of each fiscal year following the
effective date of this paragraph, the board shall report to the gover-
nor, legislature and the chief diversity officer of the state of New
York on the participation of [MWBE] MWVBE asset managers, [MWBE] MWVBE
financial institutions and [MWBE] MWVBE professional service providers
in investment and brokerage transactions with or as providers of
services for the deferred compensation plans, including a comparative
analysis of such activity relative to such activity with all asset
managers, financial institutions and professional service providers for
the relevant period and on the progress and the success of the efforts
undertaken during such period to achieve the goals of such strategy.
Each report shall be simultaneously published on the website of the
deferred compensation plans for not less than sixty days following its
release to the governor and the other recipients named above;
(iii) work with the other fiduciary-controlled entities to create a
database of such [MWBE] MWVBE entities; and
(iv) periodically, but not less than annually, hold a conference to
promote such strategy in conjunction with the other fiduciary-controlled
entities.
§ 26. Subdivisions 4, 6 and 7 of section 176 of the retirement and
social security law, as added by chapter 171 of the laws of 2010, are
amended to read as follows:
4. The term "[MWBE] MWVBE asset manager" shall mean an asset manager
in any of the following asset classes: public equity or fixed income
securities, hedge funds, fund of hedge funds, private equity (including
venture capital), fund of private equity funds, real estate investment
funds, fund of real estate funds, or any other asset class for which an
applicable fiduciary-controlled entity engages external asset managers
that is (a) a [MWBE] MWVBE; and (b) a registered investment advisor or
exempt from such registration and (c) certified pursuant to the
provisions of subdivision three of section four hundred twenty-three-c
of this chapter.
6. The term "[MWBE] MWVBE" for the purpose of engaging in business
with the fiduciary-controlled entities covered by this section, means a
business enterprise, including without limitation, a sole proprietor-
ship, partnership, limited partnership, limited liability partnership,
limited liability company, corporation or other similar entity whether
domestic or foreign, that is:
(a)(i) at least fifty-one percent owned by (A) one or more minority
group members, or (B) one or more women, OR (C) ONE OR MORE VETERANS in
each case, who have significant experience in asset management, broker-
age, other financial services or related professional services such as
accounting, valuation or legal services, or (ii) substantially owned
and/or operated by women, VETERANS or minority group members who have
significant experience in asset management, brokerage, other financial
services or related professional services such as accounting, valuation
or legal services;
(b) an enterprise in which such minority [or], women OR VETERAN owner-
ship or operation is real, substantial and continuing;
(c) an enterprise in which such minority [or], women OR VETERAN owner-
ship or operation has and exercises the authority to control independ-
ently the day-to-day business decisions of the enterprise;
(d) an enterprise authorized to do business in this state; and
(e) an enterprise certified by the state comptroller pursuant to
section four hundred twenty-three-c of this chapter.
A. 3971 23
7. The term "[MWBE] MWVBE financial institution" shall mean (a) as it
relates to brokerage services, a registered broker dealer that is an
[MWBE] MWVBE certified pursuant to the provisions of subdivision three
of section four hundred twenty-three-c of this chapter and (b) as it
relates to any other financial services, an [MWBE] MWVBE certified
pursuant to the provisions of subdivision three of section four hundred
twenty-three-c of this chapter that provides banking, financial advi-
sory, insurance, financial research, valuation or other financial
services.
§ 27. Section 423-c of the retirement and social security law, as
added by chapter 171 of the laws of 2010, is amended to read as follows:
§ 423-c. [MWBE] MWVBE asset management and financial institution stra-
tegy. 1. Within the discretion of the state comptroller and in accord-
ance with and subject to his or her fiduciary duties and obligations as
trustee of the common retirement fund and to the members, retirees and
beneficiaries of such fund and such other investment limitations as may
be prescribed by this chapter, the comptroller is authorized to estab-
lish an [MWBE] MWVBE asset management and financial institution strategy
including reasonable goals for utilization of [MWBE] MWVBE asset manag-
ers, [MWBE] MWVBE financial institutions and [MWBE] MWVBE financial and
professional service firms, which strategy shall include, but shall not
be limited to, the following objectives:
(a) investing assets of the common retirement fund with [MWBE] MWVBE
asset managers;
(b) subject to best execution: (i) conducting trades of public equity
securities with [MWBE] MWVBE financial institutions; and (ii) conducting
trades of fixed-income securities through [MWBE] MWVBE financial insti-
tutions;
(c) allocating investments of assets of the common retirement fund
either through: (i) direct investments in the equities and debt securi-
ties of [MWBEs] MWVBES; or (ii) indirectly through special programs
involving [MWBE] MWVBE asset managers; and
(d) awarding contracts for accounting, banking, financial advisory,
insurance, legal, research, valuation and other financial and profes-
sional services to [MWBE] MWVBE financial institutions and other [MWBE]
MWVBE professional service firms.
2. The comptroller is also authorized to: (a) periodically advertise
the existence of the strategy established in this section so that [MWBE]
MWVBE asset managers, [MWBE] MWVBE financial institutions and other
[MWBE] MWVBE professional service firms are made aware of the opportu-
nities made available pursuant to such strategy;
(b) within sixty days of the end of each fiscal year following the
effective date of this section, the state comptroller shall report to
the governor, legislature and the chief diversity officer of the state
of New York on the participation of [MWBE] MWVBE asset managers, [MWBE]
MWVBE financial institutions and [MWBE] MWVBE professional service
providers in investment and brokerage transactions with or as providers
of services for the common retirement fund, including a comparative
analysis of such activity relative to such activity with all asset
managers, financial institutions and professional service providers for
the relevant period and on the progress and success of the efforts
undertaken during such period to achieve the goals of such strategy.
Each report shall be simultaneously published on the website of the
common retirement fund for not less than sixty days following its
release to the governor and the other recipients named above;
A. 3971 24
(c) work with the other fiduciary-controlled entities to create a
database of such [MWBE] MWVBE entities; and
(d) periodically, but not less than annually, hold a conference to
promote such strategy in conjunction with the other fiduciary-controlled
entities.
3. (a) The state comptroller shall establish and adopt a certification
process and guidelines for the sole purpose of identification and
reporting on [MWBE] MWVBE firms providing asset management, brokerage,
or other financial or professional services as such term is defined in
subdivision six of section one hundred seventy-six of this chapter. Such
certification shall differentiate and the comptroller shall maintain
separate categories for [MWBE] MWVBE asset managers meeting the criteria
of subparagraph (i) of paragraph (a) of subdivision six of section one
hundred seventy-six of this chapter and [MWBE] MWVBE asset managers
meeting the criteria of subparagraph (ii) of paragraph (a) of such
subdivision.
(b) Such certification process shall include, but need not be limited
to, a request for the following information relating to each managing
principal, principal, operating principal, chief financial officer,
operating vice-president, vice-president, partner, owner and employee
associated with a prospective [MWBE] MWVBE entity:
(i) title;
(ii) position;
(iii) ownership percentage;
(iv) ethnicity;
(v) gender; and
(vi) length of service.
§ 28. Section 147 of the state finance law, as added by chapter 360 of
the laws of 2009, is amended to read as follows:
§ 147. Mentor-protege program. 1. In every state agency, department
and authority which has let more than ten million dollars in service and
construction contracts in the prior fiscal year, the chief executive
officer of that agency, department or authority shall develop a mentor-
protege program to foster long-term relationships between approved
mentor firms, and small business concerns and minority [and
women-owned], WOMEN AND VETERAN-OWNED businesses certified pursuant to
article fifteen-A of the executive law, in order to enhance the capabil-
ities of small and minority [and women-owned], WOMEN AND VETERAN-OWNED
business concerns, improve their success in contracting with the state
or receiving subcontracts under a state contract, and to create sources
of reliable contractors and subcontractors ready to perform larger jobs
and responsibilities. Participation in the program shall be voluntary
for both the mentor firm and the protege firm.
2. The chief executive officer of each agency, department or authori-
ty, in consultation with the division of minority [and], women's AND
VETERANS' business development and the division for small-business shall
develop requirements for:
(a) approval of contractors participating in the program established
pursuant to subdivision one of this section, to be known, for the
purposes of such program, as "mentor firms". Mentor firms must demon-
strate commitment and ability to assist protege firms, including favora-
ble financial health, good character, and experience in contracting with
the state. Once approved, a mentor firm must annually certify that it
continues to possess good character and a favorable financial position.
Incentives for mentor firms to participate in the program may include:
(i) where contracts are awarded by best value, additional evaluation
A. 3971 25
points as specified in the request for proposal; and (ii) where protege
firms are certified minority [and women-owned], WOMEN AND VETERAN-OWNED
businesses, credit towards fulfillment of minority [and women-owned],
WOMEN AND VETERAN-OWNED business participation requirements, including
without limitation additional credit towards fulfillment of minority
[and women-owned], WOMEN AND VETERAN-OWNED business subcontracting
participation goals based on costs incurred by a mentor firm in provid-
ing assistance to a certified minority [and women-owned], WOMEN AND
VETERAN-OWNED business protege firm.
(b) approval for small and certified minority [and women-owned], WOMEN
AND VETERAN-OWNED business concerns receiving assistance under the
program established pursuant to subdivision one of this section, to be
known, for the purposes of such program, as "protege firms". A protege
firm may have only one mentor at a time and may participate in the
mentor-protege program for a maximum of five years.
(c) a process by which each mentor firm, before providing assistance
to a protege firm under the program, shall enter into a mentor-protege
agreement regarding the assistance to be provided by the mentor firm,
for a period as determined by the chief executive officer of the agency,
department or authority. A mentor firm may provide a protege firm with
assistance and training in general business management; financial
management, engineering, safety and technical matters; bonding assist-
ance or bonding waivers; subcontracts; rent-free use of facilities
and/or equipment; joint venture arrangements; and any other assistance
as determined by the chief executive officer of the agency, department
or authority. Mentor-protege agreements shall be approved by the chief
executive officer of the agency, department or authority, and shall
provide that either party may terminate the agreement with thirty days
advance notice and notice to the chief executive officer. No determi-
nation of affiliation or control may be found between a protege firm and
its mentor firm based on the mentor-protege agreement or any assistance
provided pursuant to such agreement.
§ 29. Subdivision 7 of section 2777 of the public authorities law, as
added by chapter 686 of the laws of 1993, is amended to read as follows:
7. It is hereby found and declared that it has been and remains the
policy of the state of New York to promote equal opportunity in employ-
ment for all persons, without discrimination on account of race, creed,
color, national origin, sex, age, disability or marital status, to
promote equality of economic opportunity for minority group members
[and], women AND VETERANS, and business enterprises owned by them, and
to eradicate the effects of private and governmental discrimination
which has erected and continues to maintain barriers that unreasonably
impair access by minority [and women-owned], WOMEN AND VETERAN-OWNED
business enterprises to state contract opportunities.
Recent reviews and analyses of contracting in New York, including the
study by the division of minority [and], women's AND VETERANS' business
development of the department of economic development entitled "Opportu-
nity Denied! A Study of Racial and Sexual Discrimination Related to
Government Contracting in New York State," confirm through direct
evidence of racial and sexual discrimination in and by New York state
sufficient to justify race and sex conscious remedies. For the purpose
of furthering the state's compelling interest in eradicating the effects
of racial and sexual discrimination therefore, it is necessary and prop-
er that article fifteen-A of the executive law, concerning participation
by minority group members [and], women AND VETERANS and business enter-
A. 3971 26
prises owned by them, shall apply to the Albany county airport authori-
ty.
§ 30. Subdivisions 3 and 6 of section 2879 of the public authorities
law, subdivision 3 as amended by chapter 564 of the laws of 1988, para-
graph (b) of subdivision 3 as amended by chapter 45 of the laws of 1994,
subparagraph (iv) of paragraph (b) of subdivision 3 as amended by chap-
ter 383 of the laws of 1994, paragraph (m) of subdivision 3 as added by
chapter 862 of the laws of 1990, paragraph (n) of subdivision 3 as
amended by chapter 531 of the laws of 1993, paragraphs (o) and (p) of
subdivision 3 as added by chapter 844 of the laws of 1992, subparagraph
(i) of paragraph (b) of subdivision 3 and subdivision 6 as amended,
paragraphs (f), (g), (h), (i) and (j) of subdivision 3 as added and
paragraphs (k), (l), (m), (n), (o) and (p) of subdivision 3 as relet-
tered by chapter 174 of the laws of 2010, are amended to read as
follows:
3. The guidelines approved by the corporation shall include, but not
be limited to the following:
(a) A description of the types of goods purchased, and for procurement
contracts for services, a description of those areas of responsibility
and oversight requiring the use of personal services and the reasons for
the use of personal services in such areas.
(b) Requirements regarding the selection of contractors, which shall
include provisions:
(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], WOMEN OR VETERAN-OWNED business enterprises, or goods or
technology that are recycled or remanufactured, in an amount not to
exceed two hundred thousand dollars without a formal competitive proc-
ess;
(ii) describing when the award of procurement contracts shall require
approval of the board by resolution, provided that any contract involv-
ing services to be rendered over a period in excess of one year shall
require the approval of the board by resolution and an annual review of
the contract by the board;
(iii) setting forth responsibilities of contractors;
(iv) 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.
The corporation shall not refuse to negotiate with a professional firm
solely because the ratio of the "allowable indirect costs" to direct
labor costs of the professional firm or the hourly labor rate in any
labor category of the professional firm exceeds a limitation generally
set by the corporation in the determination of the reasonableness of the
estimated cost of services to be rendered by the professional firm, but
rather the corporation should also consider the reasonableness of cost
based on the total estimated cost of the service of the professional
firm which should include, among other things, all the direct labor
costs of the professional firm for such services plus all "allowable
indirect costs," other direct costs, and negotiated profit of the
professional firm. "Allowable indirect costs" of a professional firm are
defined as those costs generally associated with overhead which cannot
be specifically identified with a single project or contract and are
A. 3971 27
considered reasonable and allowable under specific state contract or
allowability limits.
(c) An identification of those areas or types of contracts for which
minority [or women-owned], WOMEN OR VETERAN-OWNED business enterprises
may best bid so as to promote and assist participation by such enter-
prises and facilitate a fair share of the awarding of contracts to such
enterprises. For the purposes of this section, a minority business
enterprise means any business enterprise, including a sole proprietor-
ship, partnership or corporation that is:
(i) at least fifty-one percent owned by one or more minority group
members or in the case of a publicly-owned business at least fifty-one
percent of the common stock or other voting interests of which is owned
by one or more minority group members;
(ii) an enterprise in which the minority ownership is real, substan-
tial and continuing;
(iii) an enterprise in which the minority ownership has and exercises
the authority to control independently the day-to-day business decisions
of the enterprise; and
(iv) an enterprise authorized to do business in New York state, inde-
pendently owned and operated, and not dominant in its field.
(d) For the purposes of this section, a minority group member means a
United States citizen or permanent resident alien who is and can demon-
strate membership in one of the following groups:
(i) Black persons having origins in any of the Black African racial
groups not of Hispanic origin;
(ii) Hispanic persons of Mexican, Puerto Rican, Dominican, Cuban,
Central or South American of either Indian or Hispanic origin, regard-
less of race;
(iii) Asian and Pacific Islander persons having origins in any of the
Far East, Southeast Asia, the Indian sub-continent or the Pacific
Islands; or
(iv) Native American persons having origins in any of the original
peoples of North America.
(e) For the purposes of this section, a women-owned business enter-
prise means a business enterprise, including a sole proprietorship,
partnership or corporation which is:
(i) at least fifty-one percent owned by one or more United States
citizens or permanent resident aliens who are women or in the case of a
publicly-owned business at least fifty-one percent of the common stock
or other voting interests of which is owned by United States citizens or
permanent resident aliens who are women;
(ii) an enterprise in which the ownership interest of women is real,
substantial and continuing;
(iii) an enterprise in which the women ownership has and exercises the
authority to control independently the day-to-day business decisions of
the enterprise; and
(iv) an enterprise authorized to do business in New York state, inde-
pendently owned and operated, and not dominant in its field.
(E-1) FOR THE PURPOSES OF THIS SECTION, A VETERAN-OWNED BUSINESS
ENTERPRISE MEANS A BUSINESS ENTERPRISE, INCLUDING A SOLE PROPRIETORSHIP,
PARTNERSHIP OR CORPORATION WHICH IS:
(I) AT LEAST FIFTY-ONE PERCENT OWNED BY ONE OR MORE UNITED STATES
CITIZENS OR PERMANENT RESIDENT ALIENS WHO ARE VETERANS OR IN THE CASE OF
A PUBLICLY-OWNED BUSINESS AT LEAST FIFTY-ONE PERCENT OF THE COMMON STOCK
OR OTHER VOTING INTERESTS OF WHICH IS OWNED BY UNITED STATES CITIZENS OR
PERMANENT RESIDENT ALIENS WHO ARE VETERANS;
A. 3971 28
(II) AN ENTERPRISE IN WHICH THE OWNERSHIP INTEREST OF VETERANS IS
REAL, SUBSTANTIAL AND CONTINUING;
(III) AN ENTERPRISE IN WHICH THE VETERAN OWNERSHIP HAS AND EXERCISES
THE AUTHORITY TO CONTROL INDEPENDENTLY THE DAY-TO-DAY BUSINESS DECISIONS
OF THE ENTERPRISE; AND
(IV) AN ENTERPRISE AUTHORIZED TO DO BUSINESS IN NEW YORK STATE, INDE-
PENDENTLY OWNED AND OPERATED, AND NOT DOMINANT IN ITS FIELD.
(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], WOMEN OR VETERAN-OWNED business enterprises in the corporation's
procurement opportunities and facilitation of the award of procurement
contracts to such enterprises; (ii) the utilization of certified minori-
ty [and women-owned], WOMEN AND VETERAN-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], WOMEN AND VETERAN-OWNED business enterprises and other
entities 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], WOMEN AND VETERAN-
OWNED business enterprises providing the types of services procured by
the corporation.
(h) Procedures for maintaining lists of qualified certified minority
[and women-owned], WOMEN AND VETERAN-OWNED business enterprises, includ-
ing 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], WOMEN AND VETERAN-OWNED business enterprises 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 [or women-owned], WOMEN OR VETERAN-OWNED business enterprises in
procurement contracts awarded by the corporation and for the utilization
of minority [and women-owned], WOMEN OR VETERAN-OWNED enterprises as
subcontractors and suppliers by entities having procurement contracts
with the corporation. Statewide numerical participation target goals
shall be established by each authority based on the findings of the two
thousand ten disparity study AND THEREAFTER THE TWO THOUSAND EIGHTEEN
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], WOMEN
AND VETERAN-OWNED business enterprises in the corporation's procure-
ments. 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
A. 3971 29
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],
WOMEN AND VETERAN-OWNED business development to certify and decertify
minority [and women-owned], WOMEN AND VETERAN-OWNED 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], WOMEN AND VETERAN-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], WOMEN
AND VETERAN-OWNED business enterprises to respond competitively to the
potential subcontract opportunities;
(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], WOMEN AND VETERAN-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], WOMEN AND VETER-
AN-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], WOMEN AND VETERAN-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], WOMEN AND
VETERAN-OWNED business enterprises which effectuates the purpose of this
section; and
IV. consult the most recent disparity study pursuant to article
fifteen-A of the executive law.
(k) A listing of the types of provisions to be contained in procure-
ment contracts, including provisions concerning the nature and monitor-
ing of the work to be performed, the use of corporate supplies and
facilities, the use of corporate personnel and any other provisions.
(l) Provisions regarding procurement contracts which involve former
officers or employees of the corporation.
(m) Procedures regarding procurement contracts which are exempt from
the publication requirements of article four-C of the economic develop-
ment law.
A. 3971 30
(n) Policies to promote the participation by New York state business
enterprises and New York state residents in procurement contracts,
including, but not limited to:
(i) providing for the corporation to collect and to consult the spec-
ifications of New York state business enterprises in developing specifi-
cations for any procurement contract for the purchase of goods where
possible, practicable, feasible and consistent with open bidding, except
for procurement contracts for which the corporation would be expending
funds received from another state. The corporation shall, where feasi-
ble, make use of the stock item specification forms prepared by the
commissioner of general services, and where necessary, consult with the
commissioner of the office of general services, in developing such spec-
ifications and make such determinations; and
(ii) with the cooperation of the department of economic development
and through cooperative efforts with contractors, providing for the
notification of New York state business enterprises of opportunities to
participate as subcontractors and suppliers on procurement contracts let
by the corporation in an amount estimated to be equal to or greater than
one million dollars and promulgating procedures which will assure
compliance by contractors with such notification. Once awarded the
contract such contractors shall document their efforts to encourage the
participation of New York state business enterprises as suppliers and
subcontractors on procurement contracts equal to or greater than one
million dollars. Documented efforts by a successful contractor shall
consist of and be limited to showing that such contractor has (a) solic-
ited bids, in a timely and adequate manner, from New York state business
enterprises including certified minority [and women-owned], WOMEN AND
VETERAN-OWNED business, or (b) contacted the New York state department
of economic development to obtain listings of New York state business
enterprises, or (c) placed notices for subcontractors and suppliers in
newspapers, journals and other trade publications distributed in New
York state, or (d) participated in bidder outreach conferences. If the
contractor determines that New York state business enterprises are not
available to participate on the contract as subcontractors or suppliers,
the contractor shall provide a statement indicating the method by which
such determination was made. If the contractor does not intend to use
subcontractors on the contract, the contractor shall provide a statement
verifying such intent; and
(iii) except for procurement contracts for which the corporation would
be expending funds received from another state, the corporation shall
include in all bid documents provided to potential bidders a statement
that information concerning the availability of New York state subcon-
tractors and suppliers is available from the New York state department
of economic development, which shall include the directory of certified
minority [and women-owned], WOMEN AND VETERAN-OWNED businesses, and it
is the policy of New York state to encourage the use of New York state
subcontractors and suppliers, and to promote the participation of minor-
ity [and women-owned], WOMEN AND VETERAN-OWNED businesses where possi-
ble, in the procurement of goods and services; and
(iv) with the cooperation of the community services division of the
department of labor and through cooperative efforts with contractors,
providing for the notification of New York state residents of employment
opportunities arising in New York state out of procurement contracts let
by the corporation in an amount estimated to be equal to or greater than
one million dollars; and promulgating procedures which will assure
compliance by contractors with such notification by requiring contrac-
A. 3971 31
tors to submit post-award compliance reports documenting their efforts
to provide such notification through listing any such positions with the
community services division, or providing for such notification in such
manner as is consistent with existing collective bargaining contracts or
agreements; and
(v) including in each set of documents soliciting bids on procurement
contracts to let by the corporation a statement notifying potential
bidders located in foreign countries that the corporation may assign or
otherwise transfer offset credits created by such procurement contract
to third parties located in New York state; providing for the assignment
or other form of transfer of offset credits created by such procurement
contracts, directly or indirectly, to third parties located in New York
state, in accordance with the written directions of the commissioner of
economic development; and providing for the corporation to otherwise
cooperate with the department of economic development in efforts to get
foreign countries to recognize offset credits assigned or transferred to
third parties located in New York state created by such procurement
contracts; and
(vi) promulgating procedures which will assure compliance with the
federal equal employment opportunity act of 1972 (P.L. 92-261), as
amended, by contractors of the corporation.
(o) For the purposes of this section, a "New York state business
enterprise" means a business enterprise, including a sole proprietor-
ship, partnership, or corporation, which offers for sale or lease or
other form of exchange, goods which are sought by the corporation and
which are substantially manufactured, produced or assembled in New York
state, or services which are sought by the corporation and which are
substantially performed within New York state.
(p) For the purposes of this section, a "New York resident" means a
natural person who maintains a fixed, permanent and principal home
located within New York state and to which such person, whenever tempo-
rarily located, always intends to return.
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], WOMEN OR VETERAN-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 law, the basis for any such exemption
and the status of existing procurement contracts.
§ 31. Section 6-129 of the administrative code of the city of New
York, as amended by local law number 1 of the city of New York for the
year 2013, paragraphs 14 and 15 of subdivision e as added by local law
number 113 of the city of New York for the year 2016, paragraph 1 of
subdivision g as amended by local law number 116 of the city of New York
for the year 2016, the opening paragraph of paragraph 1 of subdivision g
A. 3971 32
as seperately amended, paragraphs 2 and 5 of subdivision g, subparagraph
(h) of paragraph 1 and paragraph 3 of subdivision 1 as amended by local
law number 118 of the city of New York for the year 2016, subparagraphs
(a) and (b) of paragraph 1 and paragraph 4 of subdivision l as amended
by local law number 117 of the city of New York for the year 2016, and
subdivision s as added by local law number 114 of the city of New York
for the year 2016, is amended to read as follows:
§ 6-129. Participation by minority-owned [and], women-owned AND VETER-
AN-OWNED business enterprises and emerging business enterprises in city
procurement.
a. Programs established. There are hereby established a program, to be
administered by the department of small business services in accordance
with the provisions of this section, designed to enhance participation
by minority-owned [and], women-owned AND VETERAN-OWNED business enter-
prises in city procurement and a program, also to be administered by
such department in accordance with the provisions of this section,
designed to enhance participation by emerging business enterprises in
city procurement.
b. Policy. It is the policy of the city to seek to ensure fair partic-
ipation in city procurement; and in furtherance of such policy to fully
and vigorously enforce all laws prohibiting discrimination, and to
promote equal opportunity in city procurement by vigorously enforcing
the city's contractual rights and pursuing its contractual remedies. The
program established pursuant to this section is intended to address the
impact of discrimination on the city's procurement process, and to
promote the public interest in avoiding fraud and favoritism in the
procurement process, increasing competition for city business, and
lowering contract costs.
c. Definitions. For purposes of this section, the following terms
shall have the following meaning:
(1) "Agency" means a city, county, borough, or other office, position,
administration, department, division, bureau, board or commission, or a
corporation, institution or agency of government, the expenses of which
are paid in whole or in part from the city treasury.
(2) "Agency chief contracting officer" means the individual to whom an
agency head has delegated authority to organize and supervise the agen-
cy's procurement activity.
(3) "Availability rate" means the percentage of business enterprises
within an industry classification that are owned by minorities, women,
VETERANS or individuals who are socially and economically disadvantaged
willing and able to perform agency contracts.
(4) "Bidder" means any person submitting a bid or proposal in response
to a solicitation for such bid or proposal from an agency.
(5) "Bidders list" or "proposers list" means a list maintained by an
agency that includes persons from whom bids or proposals can be solicit-
ed.
(6) "City" means the city of New York.
(7) "City chief procurement officer" means the individual to whom the
mayor has delegated authority to coordinate and oversee the procurement
activity of mayoral agency staff, including the agency chief contracting
officers and any offices that have oversight responsibility for procure-
ment.
(8) "Commercially useful function" means a real and actual service
that is a distinct and verifiable element of the work called for in a
contract. In determining whether an MBE, WBE, VBE or EBE is performing a
A. 3971 33
commercially useful function, factors including but not limited to the
following shall be considered:
(a) whether it has the skill and expertise to perform the work for
which it is being utilized, and possesses all necessary licenses;
(b) whether it is in the business of performing, managing or supervis-
ing the work for which it has been certified and is being utilized; and
(c) whether it purchases goods and/or services from another business
and whether its participation in the contract would have the principal
effect of allowing it to act as a middle person or broker in which case
it may not be considered to be performing a commercially useful function
for purposes of this section.
(9) "Commissioner" shall mean the commissioner of small business
services.
(10) "Construction" means construction, reconstruction, demolition,
excavation, renovation, alteration, improvement, rehabilitation, or
repair of any building, facility, physical structure of any kind.
(11) "Contract" means any agreement, purchase order or other instru-
ment whereby the city is committed to expend or does expend funds in
return for goods, professional services, standard services, or
construction.
(12) "Contractor" means a person who has been awarded a contract by a
city agency.
(13) "Direct subcontractor" means a person who has entered into an
agreement with a contractor to provide services or perform work that is
required pursuant to a contract with a city agency.
(14) "Director" means an individual designated by the mayor to perform
the oversight functions of the director described in this section, who
either reports directly to the mayor or is a commissioner.
(15) "Directory" means a list prepared by the division of firms certi-
fied pursuant to section 1304 of the charter.
(16) "Division" shall mean the division of economic and financial
opportunity within the department of small business services.
(17) "EBE" means an emerging business enterprise certified in accord-
ance with section 1304 of the charter.
(18) "Geographic market of the city" means the following counties:
Bronx, Kings, New York, Queens, Richmond, Nassau, Putnam, Rockland,
Suffolk and Westchester within the State of New York; and Bergen,
Hudson, and Passaic within the state of New Jersey.
(19) "Goal" means a numerical target.
(20) "Graduate MBE," "graduate WBE," "GRADUATE VBE," or "graduate EBE"
means an MBE, WBE, VBE or EBE which shall have been awarded contracts by
one or more agencies within the past three years where the total city
funding from the expense and capital budgets for such contracts was
equal to or greater than fifty million dollars and whose size has
exceeded the size standards established for its industry by the United
States small business administration for three years.
(21) "Human services" means services provided to third parties,
including social services such as day care, foster care, home care,
homeless assistance, housing and shelter assistance, preventive
services, youth services, and senior centers; health or medical services
including those provided by health maintenance organizations; legal
services; employment assistance services, vocational and educational
programs; and recreation programs.
(22) "Indirect subcontractor" means a person who has entered into an
agreement with a direct subcontractor to provide services or perform
A. 3971 34
work that is required pursuant to the direct subcontractor's contract
with a contractor.
(23) "Industry classification" means one of the following classifica-
tions:
(a) construction;
(b) professional services;
(c) standard services; and
(d) goods.
(24) "Joint venture" means an association, of limited scope and dura-
tion, between two or more persons who have entered into an agreement to
perform and/or provide services required by a contract, in which each
such person contributes property, capital, effort, skill and/or know-
ledge, and in which each such person is entitled to share in the profits
and losses of the venture in reasonable proportion to the economic value
of its contribution.
(25) "MBE" means a minority-owned business enterprise certified in
accordance with section 1304 of the charter.
(26) "Minority group" means Black Americans; Asian Americans, and
Hispanic Americans, provided that the commissioner shall be authorized
to add additional groups to this definition upon a finding that there is
statistically significant disparity between the availability of firms
owned by individuals in such a group and the utilization of such firms
in city procurement.
(27) "Non-certified firm" means a business enterprise that has not
been certified as an MBE, WBE or EBE in accordance with section 1304 of
the charter OR VBE.
(28) "Person" means any business, individual, partnership, corpo-
ration, firm, company, or other form of doing business.
(29) "Professional services" means services that require specialized
skills and the exercise of judgment, including but not limited to
accountants, lawyers, doctors, computer programmers and consultants,
architectural and engineering services, and construction management
services.
(30) "Qualified joint venture agreement" means a joint venture between
one or more MBEs, WBEs, VBES, and/or EBEs and another person, in which
the percentage of profit or loss to which the certified firm or firms is
entitled or exposed for participation in the contract, as set forth in
the joint venture agreement, is at least 25% of the total profit or
loss.
(31) "Scope of work" means specific tasks required in a contract
and/or services or goods that must be provided to perform specific tasks
required in a contract.
(32) "Standard services" means services other than professional
services and human services.
(33) "Utilization rate" means the percentage of total contract expend-
itures expended on contracts or subcontracts with firms that are owned
by women, VETERANS, minorities, or individuals who are socially and
economically disadvantaged, respectively, in one or more industry clas-
sifications.
(34) "WBE" means a women-owned business enterprise certified in
accordance with section 1304 of the charter.
(35) "VBE" MEANS A VETERAN-OWNED BUSINESS ENTERPRISE.
d. Citywide goals. (1) The citywide contracting participation goals
for MBEs, WBEs, VBES and EBEs, which may be met through awards of prime
contracts or subcontracts as described in subdivision j of this section,
shall be as follows:
A. 3971 35
For construction contracts:
Category: Participation goal:
Black Americans 8% of total annual
agency expenditures on such contracts
Asian Americans 8% of total annual agency
expenditures on such contracts
Hispanic Americans 4% of total annual agency
expenditures on such contracts
Women 18% of total annual agency
expenditures on such contracts
VETERANS A PERCENTAGE TO BE DETERMINED
BY THE COMMISSIONER IN ACCORDANCE
WITH THE PROVISIONS OF PARAGRAPH
FOUR OF THIS SUBDIVISION
Emerging 6% of total annual agency expenditures
on such contracts
For professional services contracts:
Category: Participation goal:
Black Americans 12% of total annual agency
expenditures on such contracts
Hispanic Americans 8% of total annual agency
expenditures on such contracts
Women 37% of total annual agency
expenditures on such contracts
VETERANS A PERCENTAGE TO BE DETERMINED BY THE
COMMISSIONER IN ACCORDANCE WITH THE
PROVISIONS OF PARAGRAPH FOUR OF THIS
SUBDIVISION
expenditures on such contracts
Emerging 6% of total annual agency expenditures
on such contracts
For standard services contracts:
Category: Participation goal:
Black Americans 12% of total annual agency
expenditures on such contracts
Asian Americans 3% of total annual agency
expenditures on such contracts
Hispanic Americans 6% of total annual agency
expenditures on such contracts
Women 10% of total annual agency
expenditures on such contracts
VETERANS A PERCENTAGE TO BE DETERMINED BY THE
COMMISSIONER IN ACCORDANCE WITH THE
PROVISIONS OF PARAGRAPH FOUR OF THIS
SUBDIVISION
Emerging 6% of total annual agency expenditures
on such contracts
For goods contracts under one hundred thousand dollars:
Category: Participation goal:
Black Americans 7% of total annual agency
expenditures on such contracts
Asian Americans 8% of total annual agency
expenditures on such contracts
Hispanic Americans 5% of total annual agency
expenditures on such contracts
Women 25% of total annual agency
A. 3971 36
expenditures on such contracts
VETERANS A PERCENTAGE TO BE DETERMINED BY THE
COMMISSIONER IN ACCORDANCE WITH THE
PROVISIONS OF PARAGRAPH FOUR OF THIS
SUBDIVISION
Emerging 6% of total annual agency expenditures
on such contracts
(2) (a) The division and the city chief procurement officer shall
develop a citywide utilization plan for procurements of goods.
(b) Agencies shall develop agency utilization plans pursuant to subdi-
vision g of this section. The citywide goals shall not be summarily
adopted as goals for all annual agency utilization plans; rather, goals
for such plans may be set at levels higher, lower, or the same as the
citywide goals, subject to the approval of the commissioner as described
in paragraph three of subdivision g of this section. When setting its
goals, each agency shall consider the citywide goals, the size and
nature of its own procurement portfolio, and the availability of MBEs,
WBEs, VBES and EBEs with the capacity to perform the specific types and
scale of work for which the agency anticipates it will solicit procure-
ments during the year. Agencies shall seek to ensure substantial
progress toward the attainment of each of these goals in as short a time
as practicable.
(3) The citywide goals shall not be summarily adopted as goals for
individual procurements; rather, as set forth in subdivision i of this
section, goals for such procurements may be set at levels higher, lower,
or the same as the citywide goals. In setting such goals, each agency
shall take into account the citywide goals and the agency's annual
utilization plan, the size and nature of the procurement, and the avail-
ability of MBEs, WBEs, VBES and EBEs with the capacity to perform the
specific types and scale of work involved in its procurements.
(4) (a) No later than 2015, the commissioner, in consultation with the
city chief procurement officer, shall, for each industry classification
and each minority group, review and compare the availability rates of
firms owned by minorities [and], women AND VETERANS to the utilization
rates of such firms in agency contracts and direct subcontracts, and
shall on the basis of such review and any other relevant information,
where appropriate, revise by rule the citywide participation goals set
forth in this subdivision AND DETERMINE APPROPRIATE CONTRACTING PERCENT-
AGE GOALS FOR VETERANS. In making such revision, the commissioner shall
consider the extent to which discrimination continues to have an impact
on the ability of minorities [and], women AND VETERANS to compete for
city contracts and subcontracts. The commissioner shall submit the
results of such review and any proposed revisions to the participation
goals to the speaker of the council at least sixty days prior to
publishing a proposed rule that would revise participation goals. Such
review shall thereafter be conducted at least once every two years.
(b) No later than 2015, the commissioner shall review information
collected by the department to determine the availability and utiliza-
tion of EBEs, and shall on the basis of such review and any other rele-
vant information, where appropriate, revise by rule the citywide partic-
ipation goals set forth in this subdivision AND INCLUDE VETERANS IN SUCH
GOALS. Such revised goals shall be set at a level intended to assist in
overcoming the impact of discrimination on such businesses. Such review
shall be conducted in 2015 and at least once every two years thereafter.
e. Responsibilities of the division.
A. 3971 37
(1) The division shall create and maintain and periodically update
directories by industry classification of MBEs, WBEs, VBES and EBEs
which it shall supply to all agencies, post on its website and on other
relevant city websites and make available for dissemination and/or
public inspection at its offices and other locations within each
borough.
(2) The division shall make its resources available to assist agencies
and contractors in (i) determining the availability of MBEs, WBEs, VBES
and EBEs to participate in their contracts as prime contractors and/or
subcontractors; and (ii) identifying opportunities appropriate for
participation by MBEs, WBEs, VBES and EBEs in contracts.
(3) The division shall develop and maintain relationships with organ-
izations representing contractors, including MBEs, WBEs, VBES and EBEs,
and solicit their support and assistance in efforts to increase partic-
ipation of MBEs, WBEs, VBES and EBEs in city procurement.
(4) The division shall coordinate with city and state entities that
maintain databases of MBEs, WBEs, VBES and EBEs and work to enhance city
availability data and directories.
(5) The division shall keep agency M/WBE AND VBE officers informed of
conferences, contractor fairs, and other services that are available to
assist them in pursuing the objectives of this section.
(6) The division shall conduct, coordinate and facilitate technical
assistance and educational programs for MBEs, WBEs, VBES and EBEs and
other contractors designed to enhance participation of MBEs, WBEs, VBES
and EBEs in city procurement. The division shall further develop a
clearinghouse of information on programs and services available to MBEs,
WBEs, VBES and EBEs. The division shall conduct meetings with MBEs,
WBEs, VBES and EBEs to discuss what agencies look for in evaluating bids
and proposals. The division shall also educate prime contractors on
opportunities to partner or subcontract with certified MBEs, WBEs, VBES
and EBEs.
(7) The division shall develop standardized forms and reporting docu-
ments for agencies and contractors to facilitate the reporting require-
ments of this section.
(8) The division shall direct and assist agencies in their efforts to
increase participation by MBEs, WBEs, VBES and EBEs in any city-operated
financial, technical, and management assistance program.
(9) The division shall study and recommend to the commissioner methods
to streamline the M/WBE, VBE and EBE certification process.
(10) Each fiscal year the division, in consultation with the city
chief procurement officer, shall audit at least 5% of all open contracts
for which contractor utilization plans have been established in accord-
ance with subdivision i of this section and 5% of all contracts awarded
to MBEs, WBEs, VBES, and EBEs to assess compliance with this section.
All solicitations for contracts for which contractor utilization plans
are to be established shall include notice of potential audit.
(11) The division shall assist agencies in identifying and seeking
ways to reduce or eliminate practices such as bonding requirements or
delays in payment by prime contractors that may present barriers to
competition by MBEs, WBEs, VBES and EBEs.
(12) The division shall encourage prime contractors to enter joint
venture agreements with MBEs, WBEs, VBES and EBEs.
(13) (a) The division shall, upon reviewing applications for certif-
ication and recertification, determine whether a firm qualifies as a
graduate MBE, WBE, VBE or EBE.
A. 3971 38
(b) The division shall promulgate regulations establishing a process
by which a certified MBE, WBE, VBE or EBE may challenge a determination
that it qualifies as a graduate MBE, WBE, VBE or EBE.
(c) At any time more than two years after the division has determined
that a firm qualifies as a graduate MBE, WBE, VBE or EBE, the firm may
apply to have such designation lifted. The division shall lift the
designation if the firm demonstrates that it has been below the size
standards established by the United States small business administration
for its industry for a period of two years or more.
(14) The division, in consultation with the city chief procurement
officer, shall conduct, coordinate and facilitate mandatory trainings
for agency chief contracting officers and agency M/WBE AND VBE officers
to assist such officers in pursuing the objectives of this section. Each
agency chief contracting officer shall undergo such training on or
before the ninetieth day after he or she becomes an agency chief
contracting officer, and every two years thereafter. Each agency M/WBE
AND VBE officer shall undergo such training on or before the ninetieth
day after he or she becomes an agency M/WBE AND VBE officer pursuant to
subdivision [(f)] F of this section, and every two years thereafter.
Agency chief contracting officers and M/WBE AND VBE officers that have
already undergone such training within the two years prior to the effec-
tive date of the local law that added this paragraph will be determined
to be in compliance with the initial training required pursuant to this
paragraph. The city chief procurement officer will report to the speaker
of the council on an annual basis, and shall post on the City's website,
information regarding each agency's compliance with this paragraph.
(15) The city shall include on its website a list of city agencies,
with the contact information for the M/WBE AND VBE officer of each city
agency and information about whether the agency's staff have been
trained as required by paragraph [14] FOURTEEN of this subdivision.
f. Responsibilities of agency M/WBE AND VBE officers. Each agency head
shall designate a deputy commissioner or other executive officer to act
as the agency M/WBE AND VBE officer who shall be directly accountable to
the agency head concerning the activities of the agency in carrying out
its responsibilities pursuant to this section, including the responsi-
bilities relating to EBE participation. The duties of the M/WBE AND VBE
officer shall include, but not be limited to:
(1) creating the agency's utilization plan in accordance with subdivi-
sion g of this section;
(2) acting as the agency's liaison with the division;
(3) acting as a liaison with organizations and/or associations of
MBEs, WBEs, VBES and EBEs, informing such organizations and/or associ-
ations of the agency's procurement procedures, and advising them of
future procurement opportunities;
(4) ensuring that agency bid solicitations and requests for proposals
are sent to MBEs, WBEs, VBES and EBEs in a timely manner, consistent
with this section and rules of the procurement policy board;
(5) referring MBEs, WBEs, VBES and EBEs to technical assistance
services available from agencies and other organizations;
(6) reviewing requests for waivers and/or modifications of partic-
ipation goals and contractor utilization plans in accordance with para-
graphs 11 and/or 12 of subdivision i of this section;
(7) working with the division and city chief procurement officer in
creating directories as required pursuant to subdivision k of this
section. In fulfilling this duty, the agency M/WBE AND VBE officer shall
track and record each contractor that is an MBE, WBE, VBE or EBE and
A. 3971 39
each subcontractor hired pursuant to such officer's agency contracts
that is an MBE, WBE, VBE or EBE, and shall share such information with
the director, the commissioner, and the city chief procurement officer;
(8) for contracts for which contractor utilization plans have been
established pursuant to subdivision i of this section, monitoring each
contractor's compliance with its utilization plan by appropriate means,
which shall include, but need not be limited to, job site inspections,
contacting MBEs, WBEs, VBES and EBEs identified in the plan to confirm
their participation, and auditing the contractor's books and records;
(9) monitoring the agency's procurement activities to ensure compli-
ance with its agency utilization plan and progress towards the partic-
ipation goals as established in such plan;
(10) providing to the city chief procurement officer information for
the reports required in subdivision l of this section and providing any
other plans and/or reports required pursuant to this section or
requested by the director and/or the city chief procurement officer; and
(11) participating in meetings required pursuant to subdivision m of
this section.
g. Agency utilization plans.
(1) Beginning May 15, 2006, and on July 31 of each year thereafter,
each agency which, during the fiscal year which ended on June 30 of the
preceding fiscal year, has made procurements in excess of five million
dollars, without counting procurements that are exempt pursuant to para-
graph two of subdivision q of this section, shall submit an agency
utilization plan for the fiscal year commencing in July of the year when
such plan is to be submitted to the commissioner. Upon approval by the
commissioner, such plan shall be submitted to the speaker of the coun-
cil, and shall be published on the City's website. Each such plan shall,
at a minimum, include the following:
(a) the agency's participation goals for MBEs, WBEs, VBES and EBEs for
the year, provided however, that when setting its goals, each agency
shall consider the citywide goals, the size and nature of its own
procurement portfolio (excluding contracts described in paragraph two of
subdivision q of this section), and the availability of MBEs, WBEs, VBES
and EBEs with the capacity to perform the specific types and scale of
work for which the agency anticipates it will solicit procurements
during the year;
(b) An explanation for any agency goal that is different than the
participation goal for the relevant group and industry classification as
determined pursuant to subdivision d of this section;
(c) A list of the names and titles of agency personnel responsible for
implementation of the agency utilization plan;
(d) Methods and relevant activities proposed for achieving the agen-
cy's participation goals; and
(e) Any other information which the agency or the commissioner deems
relevant or necessary.
(2) An agency utilization plan shall set forth specific participation
goals for MBEs, WBEs, VBES and/or EBEs for purchases of professional
services, standard services, construction and goods. When setting its
goals for such purchases, in addition to the factors set forth in para-
graph (1) of this subdivision, each agency shall specifically consider
the potential for such purchases to provide opportunities for MBEs,
WBEs, VBES and EBEs to develop greater capacity, thereby increasing
competition for city procurements.
(3) An agency utilization plan may be amended from time to time to
reflect changes in the agency's projected expenditures or other relevant
A. 3971 40
circumstances and resulting changes in such agency's participation
goals. Such amendments shall be submitted to the commissioner, the city
chief procurement officer and the speaker of the council at least thirty
days prior to implementation.
(4) Prior to approving individual agency utilization plans, the
commissioner, in consultation with the city chief procurement officer,
shall consider whether such plans viewed in the aggregate establish any
goals exceeding the corresponding citywide goals set forth in subdivi-
sion d of this section. If any aggregated goals are found to exceed the
corresponding citywide goal, the commissioner shall require agencies to
adjust their goals so that plans, viewed in the aggregate, do not estab-
lish goals exceeding the citywide goals. Nothing in this paragraph shall
be construed to limit the awards of contracts and subcontracts that may
be made to MBEs, WBEs, VBES and EBEs without using goals.
(5) The commissioner, in consultation with the city chief procurement
officer, shall, no later than June 30 of each year, publish on the divi-
sion's website a plan and schedule for each agency detailing the antic-
ipated contracting actions for the upcoming fiscal year that form the
basis for the agency utilization plan of each such agency. The plan and
schedule shall include information specific to each prospective invita-
tion for bids, request for proposal, or other solicitation, including,
but not limited to, the specific type and scale of the services and/or
goods to be procured, the term of the proposed contract, the method of
solicitation the agency intends to utilize, and the anticipated fiscal
year quarter of the planned solicitation.
h. Achieving agency participation goals.
(1) Each agency head shall be directly accountable for the goals set
forth in his or her agency's utilization plan.
(2) Each agency shall make all reasonable efforts to meet the partic-
ipation goals established in its agency utilization plan. Agencies
shall, at a minimum, use the following methods to achieve participation
goals:
(a) Agencies shall engage in outreach activities to encourage MBEs,
WBEs, VBES and EBEs to compete for all facets of their procurement
activities, including contracts awarded by negotiated acquisition, emer-
gency and sole source contracts, and each agency shall seek to utilize
MBEs, WBEs, VBES and/or EBEs for all types of goods, services and
construction they procure.
(b) Agencies shall encourage eligible businesses to apply for certif-
ication as MBEs, WBEs, VBES and EBEs and inclusion in the directories of
MBEs, WBEs, VBES and EBEs. Agencies shall also encourage MBEs, WBEs,
VBES and EBEs to have their names included on their bidders lists, seek
pre-qualification where applicable, and compete for city business as
contractors and subcontractors. Agencies are encouraged to advertise
procurement opportunities in general circulation media, trade and
professional association publications and small business media, and
publications of minority [and], women's AND VETERANS' business organiza-
tions, and send written notice of specific procurement opportunities to
minority [and], women's AND VETERANS' business organizations.
(c) All agency solicitations for bids or proposals shall include
information referring potential bidders or proposers to the directories
of MBEs, WBEs, VBES and EBEs prepared by the division.
(d) In planning procurements, agencies shall consider the effect of
the scope, specifications and size of a contract on opportunities for
participation by MBEs, WBEs, VBES and EBEs.
A. 3971 41
(e) Prior to soliciting bids or proposals for contracts valued at over
ten million dollars, other than contracts for capital projects valued at
over twenty-five million dollars and contracts that are exempt pursuant
to paragraph two of subdivision q of this section, an agency shall
submit the bid or proposal to the city chief procurement officer for a
determination whether it is practicable to divide the proposed contract
into smaller contracts and whether doing so will enhance competition for
such contracts among MBEs, WBEs, VBES and EBEs and other potential
bidders or proposers. If the city chief procurement officer determines
that it is both practicable and advantageous in light of cost and other
relevant factors to divide such contracts into smaller contracts, then
he or she shall direct the agency to do so.
(f) Agencies shall examine their internal procurement policies, proce-
dures and practices and, where practicable, address those elements, if
any, that may negatively affect participation of MBEs, WBEs, VBES and
EBEs in city procurement.
i. Participation goals for contracts for construction and professional
and standard services.
(1) Prior to issuing the solicitation of bids or proposals for indi-
vidual contracts, agencies shall establish participation goals for MBEs,
WBEs, VBES and/or EBEs. Such goals may be greater than, less than or the
same as the relevant citywide goal or goals established pursuant to
subdivision d of this section. Taking into account the factors listed in
this subdivision, an agency may establish a goal for a procurement that
may be achieved by a combination of prime contract and subcontract
dollars, a combination of construction and services performed pursuant
to the contract, and/or a combination of MBEs, WBEs, VBES and/or EBEs.
Alternatively, an agency may establish specific goals for particular
types of services, and/or goals for particular types of certified firms.
In determining the participation goals for a particular contract, an
agency shall consider the following factors:
(a) the scope of work;
(b) the availability of MBEs, WBEs, VBES and EBEs able to perform the
particular tasks required in the contract;
(c) the extent to which the type and scale of work involved in the
contract present prime contracting and subcontracting opportunities for
amounts within the capacity of MBEs, WBEs, VBES and EBEs;
(d) the agency's progress to date toward meeting its annual partic-
ipation goals through race-neutral, gender-neutral and other means, and
the agency's expectations as to the effect such methods will have on
participation of MBEs, WBEs, VBES and EBEs in the agency's future
contracts; and
(e) any other factors the contracting agency deems relevant.
(2) A contracting agency shall not be required to establish partic-
ipation goals for
(i) procurements described in subdivision q of this section; or
(ii) when the agency has already attained the relevant goal in its
annual utilization plan, or expects that it will attain such goal with-
out the use of such participation goals.
(3) For each contract in which a contracting agency has established
participation goals, such agency shall state in the solicitation for
such contract that bidders and/or proposers shall be required to agree
as a material term of the contract that the contractor shall meet the
participation goals unless such goals are waived or modified by the
agency in accordance with this section. A contractor that is an MBE,
WBE, VBE or EBE shall be permitted to count its own participation toward
A. 3971 42
fulfillment of the relevant participation goal, provided that the value
of such a contractor's participation shall be determined by subtracting
from the total value of the contract any amounts that the contractor
pays to direct subcontractors. A contractor that is a qualified joint
venture shall be permitted to count a percentage of its own partic-
ipation toward fulfillment of the relevant participation goal. The value
of such a contractor's participation shall be determined by subtracting
from the total value of the contract any amounts that the contractor
pays to direct subcontractors, and then multiplying the remainder by the
percentage to be applied to total profit to determine the amount to
which an MBE, WBE, VBE or EBE is entitled pursuant to the joint venture
agreement. Notwithstanding any provision of this paragraph to the
contrary, a contractor's achievement of participation goals shall be
determined as described in paragraph two of subdivision j of this
section.
(4) For each contract in which participation goals are established,
the agency shall include in its solicitation and/or bidding materials a
referral to the directories prepared by the division pursuant to this
section.
(5) For each contract for which participation goals are established,
the contractor shall be required to submit with its bid or proposal a
contractor utilization plan indicating:
(a) whether the contractor is an MBE, WBE, VBE, EBE, or a qualified
joint venture;
(b) the percentage of work it intends to award to direct subcontrac-
tors; and
(c) in cases where the contractor intends to award direct subcon-
tracts, a description of the type and dollar value of work designated
for participation by MBEs, WBEs, VBES and/or EBEs, and the time frames
in which such work is scheduled to begin and end.
When the contractor utilization plan indicates that the bidder or
proposer does not intend to meet the participation goals, the bid or
proposal shall not be deemed responsive unless the agency has granted a
pre-award request for change pursuant to paragraph 11 of this subdivi-
sion.
(6) (a) For each contract for which a contractor utilization plan has
been submitted, the contracting agency shall require that within thirty
days of the issuance of notice to proceed, and at least once per year
thereafter, the contractor submit a list of persons to which it intends
to award subcontracts within the next twelve months. In the event that a
contracting agency disapproves a contractor's selection of a subcontrac-
tor or subcontractors, the contracting agency shall allow such contrac-
tor a reasonable time to propose alternate subcontractors.
(b) The contracting agency may also require the contractor to report
periodically about the contracts awarded by its direct subcontractors to
indirect subcontractors.
(7) For each contract for which a contractor utilization plan has been
submitted, the contractor shall, with each voucher for payment, and/or
periodically as the agency may require, submit statements, certified
under penalty of perjury, which shall include, but not be limited to,
the total amount the contractor paid to its direct subcontractors, and,
where applicable pursuant to subparagraph (1) of paragraph (1) of subdi-
vision j of this section, the total amount direct subcontractors paid to
indirect subcontractors, the names, addresses and contact numbers of
each MBE, WBE, VBE or EBE hired as a subcontractor by the contractor or
any of the contractor's direct subcontractors, as well as the dates and
A. 3971 43
amounts paid to each MBE, WBE, VBE or EBE. The contractor shall also
submit, along with its voucher for final payment, the total amount it
paid to subcontractors, and, where applicable pursuant to subparagraph
(1) of paragraph (1) of subdivision j of this section, the total amount
its direct subcontractors paid directly to their indirect subcontrac-
tors; and a final list, certified under penalty of perjury, which shall
include the name, address and contact information of each subcontractor
that is an MBE, WBE, VBE or EBE, the work performed by, and the dates
and amounts paid to each.
(8) If payments made to, or work performed by, MBEs, WBEs, VBES or
EBEs are less than the amount specified in the contractor's utilization
plan, the agency shall take appropriate action in accordance with subdi-
vision o of this section, unless the contractor has obtained a modifica-
tion of its utilization plan pursuant to paragraph 12 of this subdivi-
sion.
(9) When advertising a solicitation for bids or proposals for a
contract for which a participation goal has been established, agencies
shall include in the advertisement a general statement that the contract
will be subject to participation goals for MBEs, WBEs, VBES and/or EBEs.
(10) In the event that a contractor with a contract that includes a
contractor utilization plan submits a request for a change order the
value of which exceeds the greater of ten percent of such contract or
$500,000, the agency shall review the scope of work for the contract,
and the scale and types of work involved in the change order, and deter-
mine whether the participation goals should be modified.
(11) Requests from bidders or proposers for changes in participation
goals.
(a) A bidder or proposer may request that an agency change the partic-
ipation goal or goals established for the procurement on the grounds
that goals are unreasonable in light of the availability of certified
firms to perform the services required, or by demonstrating that it has
legitimate business reasons for proposing a lower level of subcontract-
ing in its utilization plan.
(b) If the contracting agency determines that the participation goals
established for the procurement are unreasonable in light of the avail-
ability of certified firms to perform the services required, it shall
revise the solicitation and extend the deadline for bids and proposals.
(c) Subject to subparagraph (d) of this paragraph, the contracting
agency may grant a full or partial waiver of the participation goals to
a bidder or proposer who demonstrates that it has legitimate business
reasons for proposing the level of subcontracting in its utilization
plan. The contracting agency shall make its determination in light of
factors that shall include, but not be limited to, whether the bidder or
proposer has the capacity and the bona fide intention to perform the
contract without any subcontracting, or to perform the contract without
awarding the amount of subcontracts represented by the participation
goals. In making such determination, the agency may consider whether the
utilization plan is consistent with past subcontracting practices of the
bidder or proposer, whether the bidder or proposer has made efforts to
form a joint venture with a certified firm, and whether the bidder or
proposer has made good faith efforts to identify portions of the
contract that it intends to subcontract. The city chief contracting
officer shall notify the council of any such waiver granted with respect
to a registered contract in the quarterly report required pursuant to
subdivision 1 of this section.
A. 3971 44
(d) The agency M/WBE AND VBE officer shall provide written notice of
requests for a full or partial waiver of the participation goals to the
division and the city chief procurement officer and shall not approve
any such request without the approval of the city chief procurement
officer, provided that the city chief procurement officer, upon adequate
assurances of an agency's ability to administer its utilization plan in
accordance with the provisions of this section, may determine that
further approval from the city chief procurement officer is not required
with respect to such requests for an agency's contracts or particular
categories of an agency's contracts. The city chief procurement officer
shall notify the speaker of the council in writing in the quarterly
report required pursuant to subdivision 1 of this section following the
registration of a contract for which a request for a full or partial
waiver of a participation goal was granted, provided that where an agen-
cy has been authorized to grant waivers without approval of the chief
procurement officer, such notice shall be provided to the speaker of the
council by the agency. Such notification shall include, but not be
limited to, the name of the contractor, the original participation goal,
the waiver request, including all documentation, and an explanation for
the approval of such request.
(12) Modification of utilization plans at contractor's request or
agency's initiative. (a) A contractor may request modification of its
utilization plan after the award of a contract. Subject to subparagraph
(b) of this paragraph, an agency may grant such request if it determines
that such contractor has established, with appropriate documentary and
other evidence, that it made all reasonable, good faith efforts to meet
the goals set by the agency for the contract. In making such determi-
nation, the agency shall consider evidence of the following efforts, as
applicable, along with any other relevant factors:
(i) The contractor advertised opportunities to participate in the
contract, where appropriate, in general circulation media, trade and
professional association publications and small business media, and
publications of minority [and], women's AND VETERANS' business organiza-
tions;
(ii) The contractor provided notice of specific opportunities to
participate in the contract, in a timely manner, to minority [and],
women's AND VETERANS' business organizations;
(iii) The contractor sent written notices, by certified mail or
facsimile, in a timely manner, to advise MBEs, WBEs, VBES or EBEs that
their interest in the contract was solicited;
(iv) The contractor made efforts to identify portions of the work that
could be substituted for portions originally designated for partic-
ipation by MBEs, WBEs, VBES and/or EBEs in the contractor utilization
plan, and for which the contractor claims an inability to retain MBEs,
WBEs, VBES or EBEs;
(v) The contractor held meetings with MBEs, WBEs, VBES and/or EBEs
prior to the date their bids or proposals were due, for the purpose of
explaining in detail the scope and requirements of the work for which
their bids or proposals were solicited;
(vi) The contractor made efforts to negotiate with MBEs, WBEs, VBES
and/or EBEs as relevant to perform specific subcontracts, or act as
suppliers or service providers;
(vii) Timely written requests for assistance made by the contractor to
the agency M/WBE AND VBE liaison officer and to the division; and
(viii) Description of how recommendations made by the division and the
contracting agency were acted upon and an explanation of why action upon
A. 3971 45
such recommendations did not lead to the desired level of participation
of MBEs, WBEs, VBES and/or EBEs.
(b) The agency M/WBE AND VBE officer shall provide written notice of
requests for such modifications to the division and the city chief
procurement officer and shall not approve any such request for modifica-
tion without the approval of the city chief procurement officer,
provided that the city chief procurement officer, upon adequate assur-
ances of an agency's ability to administer its utilization plan in
accordance with the provisions of this section, may determine that
further approval from the city chief procurement officer is not required
with respect to such requests for an agency's contracts or particular
categories of an agency's contracts. The city chief procurement officer,
shall notify the speaker of the council in writing within seven days of
the approval of a request for modification of a utilization plan,
provided that where an agency has been authorized to grant modifications
without approval of the chief procurement officer, such notice shall be
provided to the speaker of the council by the agency. Such notification
shall include, but not be limited to, the name of the contractor, the
original utilization plan, the modification request, including all
documentation, and an explanation for the approval of such request.
(c) An agency may modify the participation goals established for a
procurement when the scope of the work has been changed by the agency in
a manner that affects the scale and types of work that the contractor
indicated in its contractor utilization plan would be awarded to subcon-
tractors.
(d) The agency M/WBE AND VBE officer shall provide written notice to
the contractor of its determination that shall include the reasons for
such determination.
(13) For each contract in which a contracting agency has established
participation goals, the agency shall evaluate and assess the contrac-
tor's performance in meeting each such goal. Such evaluation and assess-
ment shall be a part of the contractor's overall contract performance
evaluation required pursuant to section 333 of the charter.
j. Determining credit for MBE, WBE, VBE and EBE participation.
(1) An agency's achievement of its annual goals shall be calculated as
follows:
(a) The dollar amount that an agency has paid or is obligated to pay
to a prime contractor that is an MBE, WBE, VBE or EBE, reduced by the
dollar amount the contractor has paid or is obligated to pay its direct
subcontractors upon their completion of work, shall be credited toward
the relevant goal. Where an agency has paid or is obligated to pay a
prime contractor that is both an MBE and a WBE, such amount shall be
credited toward the relevant goal for MBEs or the goal for WBEs. WHERE
AN AGENCY HAS PAID OR IS OBLIGATED TO PAY A PRIME CONTRACTOR THAT IS
BOTH AN MBE OR WBE AND A VBE, SUCH AMOUNT SHALL BE CREDITED TOWARD THE
RELEVANT GOAL FOR MBES OR WBES, AS APPLICABLE, OR THE GOAL FOR VBES.
(b) Except as provided in subparagraph (c) of this paragraph, the
total dollar amount that a prime contractor of an agency has paid or is
obligated to pay to a direct subcontractor that is an MBE, WBE, VBE or
EBE shall be credited toward the relevant goal. Where such a contractor
has paid or is obligated to pay a direct subcontractor that is both an
MBE and a WBE, such amount shall be credited toward the relevant goal
for MBEs or the goal for WBEs. WHERE SUCH A CONTRACTOR HAS PAID OR IS
OBLIGATED TO PAY A DIRECT SUBCONTRACTOR THAT IS BOTH AN MBE OR WBE AND A
VBE, SUCH AMOUNT SHALL BE CREDITED TOWARD THE RELEVANT GOAL FOR MBES OR
WBES, AS APPLICABLE, OR THE GOAL FOR VBES.
A. 3971 46
(c) In the case of contracts of the types identified pursuant to
subparagraph (l) of this paragraph, the total dollar amount that a prime
contractor of an agency has paid or is obligated to pay a direct subcon-
tractor that is an MBE, WBE, VBE or EBE, reduced by the dollar amount
the direct subcontractor has paid or is obligated to pay its indirect
subcontractors upon completion of work, shall be credited toward the
relevant goal. Where such a contractor has paid or is obligated to pay a
direct contractor that is both an MBE and a WBE, such amount shall be
credited toward the relevant goal for MBEs or the goal for WBEs. WHERE
SUCH CONTRACTOR HAS PAID OR IS OBLIGATED TO PAY A DIRECT CONTRACTOR THAT
IS BOTH AN MBE OR WBE AND A VBE, SUCH AMOUNT SHALL BE CREDITED TOWARD
THE RELEVANT GOAL FOR MBES OR WBES, AS APPLICABLE, OR THE GOAL FOR VBES.
(d) In the case of contracts of the types identified pursuant to
subparagraph (1) of this paragraph, the total dollar amount that a
direct subcontractor of the prime contractor has paid or is obligated to
pay to an indirect subcontractor that is an MBE, WBE, VBE or EBE shall
be credited toward the relevant goal. Where such a contractor has paid
or is obligated to pay an indirect contractor that is both an MBE and a
WBE, such amount shall be credited toward the relevant goal for MBEs or
the goal for WBEs. WHERE SUCH A CONTRACTOR HAS PAID OR IS OBLIGATED TO
PAY A DIRECT CONTRACTOR THAT IS BOTH AN MBE OR WBE AND A VBE, SUCH
AMOUNT SHALL BE CREDITED TOWARD THE RELEVANT GOAL FOR MBES OR WBES, AS
APPLICABLE, OR THE GOAL FOR VBES.
(e) For requirements contracts, credit shall be given for the actual
dollar amount paid under the contract.
(f) Where one or more MBEs, WBEs, VBES or EBEs is participating in a
qualified joint venture, the amounts that the joint venture is required
to pay its direct subcontractors shall be subtracted as provided in
subparagraph (a) of this paragraph, and then a percentage of the remain-
ing dollar amount of the contract equal to the percentage of total
profit to which MBEs, WBEs, VBES or EBEs are entitled pursuant to the
joint venture agreement shall be credited toward the relevant goal.
Where such a participant in a joint venture is both an MBE and a WBE,
such amount shall be credited toward the relevant goal for MBEs or the
goal for WBEs. WHERE SUCH A CONTRACTOR HAS PAID OR IS OBLIGATED TO PAY
A DIRECT CONTRACTOR THAT IS BOTH AN MBE OR WBE AND A VBE, SUCH AMOUNT
SHALL BE CREDITED TOWARD THE RELEVANT GOAL FOR MBES OR WBES, AS APPLICA-
BLE, OR THE GOAL FOR VBES.
(g) No credit shall be given for participation in a contract by an
MBE, WBE, VBE or EBE that does not perform a commercially useful func-
tion.
(h) No credit shall be given for the participation in a contract by
any company that has not been certified as an MBE, WBE, VBE or EBE in
accordance with section 1304 of the charter.
(i) In the case of a contract for which the contractor is paid on a
commission basis, the dollar amount of the contract may be determined on
the basis of the commission earned or reasonably anticipated to be
earned under the contract.
(j) No credit shall be given to a contractor for participation in a
contract by a graduate MBE, WBE, VBE or EBE.
(k) The participation of a certified company shall not be credited
toward more than one participation goal.
(1) The city chief procurement officer may identify types of contracts
where payments to indirect subcontractors shall be credited toward the
relevant participation goals.
A. 3971 47
(2) A contractor's achievement of its participation goals established
in its utilization plan shall be calculated as follows:
(a) A contractor's use of direct subcontractors and their indirect
subcontractors toward achievement of each goal established in its utili-
zation plan shall be calculated in the same manner as described for
calculating the achievement of agency utilization goals as described in
paragraph (1) of this subdivision, except that a contractor's use of a
subcontractor that is both an MBE and a WBE, OR IS AN MBE OR WBE AND
ALSO A VBE, shall not be credited toward the contractor's achievement of
more than one goal;
(b) A contractor that is an MBE, WBE, VBE or EBE shall be permitted to
count its own participation toward fulfillment of the relevant partic-
ipation goal, provided that the value of such a contractor's partic-
ipation shall be determined by subtracting from the total value of the
contract any amounts that the contractor pays to direct subcontractors,
and provided further that a contractor that is both an MBE and a WBE, OR
IS AN MBE OR WBE AND ALSO A VBE, shall not be credited for its partic-
ipation toward more than one goal;
(c) No credit shall be given to the contractor for the participation
of a company that is not certified in accordance with section 1304 of
the charter before the date that the subcontractor completes the work
under the subcontract.
(d) A contractor that is a qualified joint venture shall be permitted
to count a percentage of its own participation toward fulfillment of the
relevant participation goal. The value of such a contractor's partic-
ipation shall be determined by subtracting from the total value of the
contract any amounts that the contractor pays to direct subcontractors,
and then multiplying the remainder by the percentage to be applied to
total profit to determine the amount to which an MBE, WBE, VBE or EBE is
entitled pursuant to the joint venture agreement; provided that where
such a participant in a joint venture is both an MBE and a WBE, OR IS AN
MBE OR A WBE AND ALSO A VBE, such amount shall not be credited toward
more than one goal.
k. Small purchases.
Whenever an agency solicits bids or proposals for small purchases
pursuant to section three hundred fourteen of the charter, the agency
shall maintain records identifying the MBEs, WBEs, VBES and EBEs it
solicited, which shall become part of the contract file.
l. Compliance reporting.
(1) The city chief procurement officer, in consultation with the divi-
sion, shall prepare and submit quarterly reports to the speaker of the
council as described in this section. Preliminary reports containing
information for the fiscal year in progress shall be submitted to the
speaker of the council by January first, April first, and July first of
each year, and a final report containing information for the preceding
fiscal year shall be submitted to the speaker of the council by October
first of each year. The reports, which shall also be posted on the divi-
sion's website, shall contain the following information, disaggregated
by agency:
(a) the number and total dollar value of contracts awarded, disaggre-
gated by industry classification, size of contract and status as MBE,
WBE, VBE, EBE, or non-certified firm, and further disaggregated by
minority and gender group, and the number and dollar value of such
contracts that were awarded to firms that are certified both as MBEs and
WBEs, OR AS AN MBE OR WBE AND ALSO A VBE, including but not limited to,
contracts valued at or below the micropurchase limit as set forth in the
A. 3971 48
rules of the procurement policy board in paragraph (ii) of subdivision
(c) of section 3-08 of title 9 of the rules of the city of New York,
contracts valued above the micropurchase limit but at or below the small
purchase limit as defined in the rules of the procurement policy board
in subdivision (a) of section 3-08 of title 9 of the rules of the city
of New York, contracts valued above the small purchase limit and at or
below one million dollars, contracts valued above one million dollars
and at or below five million dollars, contracts valued above five
million dollars and at or below twenty five million dollars, and
contracts valued above twenty five million dollars;
(b) for those contracts for which an agency set participation goals in
accordance with subdivision i of this section:
(i) the number and total dollar value of such contracts that were
awarded to qualified joint ventures and the total dollar amount attri-
buted to the MBE, WBE, VBE or EBE joint venture partners, disaggregated
by minority and gender group, size of contract and industry classifica-
tion, and the number and dollar value of such contracts that were
awarded to firms that are certified both as MBEs and WBEs, OR AS AN MBE
OR WBE AND ALSO A VBE;
(ii) The number and total dollar value of subcontracts approved during
the reporting period that were entered into pursuant to contracts for
which participation requirements under this section have been estab-
lished (including both contracts awarded during the current reporting
period and those awarded in earlier reporting periods that remain open
during the current reporting period), and the number and total dollar
amount of such subcontracts awarded to MBEs, WBEs, VBES and EBEs, disag-
gregated by minority and gender group, size of subcontract and industry
classification, and the number and dollar value of such subcontracts
that were awarded to firms that are certified both as MBEs and WBEs, OR
AS AN MBE OR WBE AND ALSO A VBE;
(iii) a list of the requests for full or partial waivers of partic-
ipation requirements for such contracts made pursuant to paragraph 11 of
subdivision i of this section and the determinations made with respect
to such requests, and the number and dollar amount of those contracts
for which such waivers were granted, disaggregated by industry classi-
fication; and
(iv) a list of the requests for modification of participation require-
ments for such contracts made pursuant to paragraph 12 of subdivision i
of this section and the determinations made with respect to such
requests, and the number and dollar amount of those contracts for which
such modifications were granted, disaggregated by industry classifica-
tion;
(c) a detailed list of each complaint received pursuant to paragraph 1
of subdivision o of this section which shall, at a minimum, include the
nature of each complaint and the action taken in investigating and
addressing such complaint including whether and in what manner the
enforcement provisions of subdivision o of this section were invoked and
the remedies applied;
(d) a detailed list of all non-compliance findings made pursuant to
paragraph 4 of subdivision o of this section and actions taken in
response to such findings;
(e) the number of firms certified or recertified in accordance with
section 1304 of the charter during the six months immediately preceding
such report;
A. 3971 49
(f) the number and percentage of contracts audited pursuant to
[section] paragraph 10 of subdivision e of this section and a summary of
the results of each audit.
(g) a summary of efforts to reduce or eliminate barriers to competi-
tion as required pursuant to paragraph 11 of subdivision e of this
section;
(h) a list of all solicitations submitted to the city chief procure-
ment officer pursuant to subparagraph e of paragraph 2 of subdivision h
of this section, and a detailed explanation of the determination made
regarding each such submission; and
(i) any other information as may be required by the director and/or
the commissioner.
(2) The annual reports submitted in October shall, in addition,
contain a determination made by the director and the commissioner, as to
whether each agency has made substantial progress toward achieving its
utilization goals and whether the city has made substantial progress
toward achieving the citywide goals established pursuant to subdivision
d of this section.
(3) If an agency that has submitted an agency utilization plan pursu-
ant to subdivision g of this section fails to achieve its utilization
goal, the agency head shall prepare and submit to the director, the
commissioner, the city chief procurement officer, and the speaker of the
council by January 31 a performance improvement plan which shall
describe in detail the efforts such agency intends to undertake to
increase M/WBE AND VBE participation.
(4) The data that provide the basis for the reports required by this
subdivision shall be made available electronically to the council in a
non-proprietary format that permits automated processing at the time the
reports are submitted.
m. Agency compliance.
(1) Each agency shall submit to the commissioner and the city chief
procurement officer such information as is necessary for the city chief
procurement officer to complete his or her reports as required in subdi-
vision l of this section. The director, the commissioner, and the city
chief procurement officer shall review each agency's submissions. The
director shall convene the agency M/WBE AND VBE officers for those agen-
cies that have submitted utilization plans pursuant to subdivision g of
this section as often as the director deems necessary, but no less
frequently than once per quarter, in order to have agency M/WBE AND VBE
officers (i) discuss the results of the reports required in subdivision
1 of this section; (ii) offer detailed information concerning their
effectuation of their performance improvement plans and any additional
efforts undertaken to meet goals established in agency utilization
plans; (iii) share the practices that have yielded successes in increas-
ing M/WBE AND VBE participation; and (iv) devise strategic plans to
improve the performance of those failing to meet goals established in
agency utilization plans. No less frequently than twice per year, agency
heads for those agencies that have submitted utilization plans pursuant
to subdivision g of this section shall join such quarterly meetings.
Whenever it has been determined that an agency is not making adequate
progress toward the goals established in its agency utilization plan,
the director, the commissioner, and the city chief procurement officer
shall act to improve such agency's performance, and may take any of the
following actions:
(a) require the agency to submit more frequent reports about its
procurement activity;
A. 3971 50
(b) require the agency to notify the director, the commissioner, and
the city chief procurement officer, prior to solicitation of bids or
proposals for, and/or prior to award of, contracts in any category where
the agency has not made adequate progress toward achieving its utiliza-
tion goals;
(c) reduce or rescind contract processing authority delegated by the
mayor pursuant to sections 317 and 318 of the charter; and
(d) any other action the director, the commissioner, and the city
chief procurement officer deem appropriate.
(2) Noncompliance. Whenever the director, the city chief procurement
officer, or the commissioner finds that an agency has failed to comply
with its duties under this section, he or she shall attempt to resolve
such noncompliance informally with the agency head. In the event that
the agency fails to remedy its noncompliance after such informal
efforts, the director and the city chief procurement officer shall
submit such findings in writing to the mayor and the speaker of the
council, and the mayor shall take appropriate measures to ensure compli-
ance.
(3) Failure by an agency to submit information required by the direc-
tor, the division, or the city chief procurement officer, in accordance
with this section, including but not limited to the utilization plan
required pursuant to subdivision g of this section, shall be deemed
noncompliance.
n. Pre-qualification. An agency establishing a list of pre-qualified
bidders or proposers may deny pre-qualification to prospective contrac-
tors who fail to demonstrate in their application for pre-qualification
that they have complied with applicable federal, state and local
requirements for participation of MBEs, WBEs, VBES and EBEs in procure-
ments. A denial of pre-qualification may be appealed pursuant to appli-
cable procurement policy board rules.
o. Enforcement.
(1) Any person who believes that a violation of the requirements of
this section, rules promulgated pursuant to its provisions, or any
provision of a contract that implements this section or such rules,
including, but not limited to, any contractor utilization plan, has
occurred may submit a complaint in writing to the division, the city
chief procurement officer and the comptroller. The division shall
promptly investigate such complaint and determine whether there has been
a violation.
(2) Any complaint alleging fraud, corruption or other criminal behav-
ior on, the part of a bidder, proposer, contractor, subcontractor or
supplier shall be referred to the commissioner of the department of
investigation.
(3) Contract award.
(a) When an agency receives a protest from a bidder or proposer
regarding a contracting action that is related to this section, the
agency shall send copies of the protest and any appeal thereof, and any
decisions made on the protest or such appeal, to the division and the
comptroller.
(b) Whenever a contracting agency has determined that a bidder or
proposer has violated this section, or rules promulgated pursuant to its
provisions, the agency may disqualify such bidder or proposer from
competing for such contract and the agency may revoke such bidder's or
proposer's prequalification status.
(4) Contract administration.
A. 3971 51
(a) For each contract for which participation requirements have been
established under this section, at least once annually during the term
of such contract, the contracting agency shall review the contractor's
progress toward attainment of its utilization plan, including but not
limited to, by reviewing the percentage of work the contractor has actu-
ally awarded to MBE, WBE, VBE and/or EBE subcontractors and the payments
the contractor has made to such subcontractors.
(b) Whenever an agency believes that a contractor or a subcontractor
is not in compliance with this section, rules promulgated pursuant to
its provisions or any provision of a contract that implements this
section, including, but not limited to any contractor utilization plan,
the agency shall send a written notice to the city chief procurement
officer, the division and the contractor describing the alleged noncom-
pliance and offering the contractor an opportunity to be heard. The
agency shall then conduct an investigation to determine whether such
contractor or subcontractor is in compliance.
(c) In the event that a contractor has been found to have violated
this section, rules promulgated pursuant to its provisions, or any
provision of a contract that implements this section, including, but not
limited to any contractor utilization plan, the contracting agency
shall, after consulting with the city chief procurement officer and the
division, determine whether any of the following actions should be
taken:
(i) enter an agreement with the contractor allowing the contractor to
cure the violation;
(ii) revoke the contractor's pre-qualification to bid or make
proposals for future contracts;
(iii) make a finding that the contractor is in default of the
contract;
(iv) terminate the contract;
(v) declare the contractor to be in breach of contract;
(vi) withhold payment or reimbursement;
(vii) determine not to renew the contract;
(viii) assess actual and consequential damages;
(ix) assess liquidated damages or reduction of fees, provided that
liquidated damages may be based on amounts representing costs of delays
in carrying out the purposes of the program established by this section,
or in meeting the purposes of the contract, the costs of meeting utili-
zation goals through additional procurements, the administrative costs
of investigation and enforcement, or other factors set forth in the
contract;
(x) exercise rights under the contract to procure goods, services or
construction from another contractor and charge the cost of such
contract to the contractor that has been found to be in noncompliance;
or
(xi) take any other appropriate remedy.
(5) To the extent available pursuant to rules of the procurement poli-
cy board, a contractor may seek resolution of a dispute regarding a
contract related to this section. The contracting agency shall submit a
copy of such submission to the division.
(6) Whenever an agency has reason to believe that an MBE, WBE, VBE or
EBE is not qualified for certification, or is participating in a
contract in a manner that does not serve a commercially useful function,
or has violated any provision of this section, the agency shall notify
the commissioner who shall determine whether the certification of such
business enterprise should be revoked.
A. 3971 52
(7) Statements made in any instrument submitted to an agency pursuant
to these rules shall be submitted under penalty of perjury and any false
or misleading statement or omission shall be grounds for the application
of any applicable criminal and/or civil penalties for perjury. The
making of a false or fraudulent statement by an MBE, WBE, VBE or EBE in
any instrument submitted pursuant to these rules shall, in addition, be
grounds for revocation of its certification.
(8) A contractor's record in implementing its contractor utilization
plan shall be a factor in the evaluation of its performance. Whenever a
contracting agency determines that a contractor's compliance with a
contractor utilization plan has been unsatisfactory, the agency shall,
after consultation with the city chief procurement officer, file an
advice of caution form for inclusion in VENDEX as caution data.
p. Procurements by elected officials and the council.
(1) In the case of procurements by independently elected city offi-
cials other than the mayor, where these rules provide for any action to
be taken by the director or the city chief procurement officer, such
action shall instead be taken by such elected officials.
(2) In the case of procurements by the council, where these rules
provide for any action to be taken by the director or the city chief
procurement officer, such action shall instead be taken by the speaker
of the council.
q. Applicability. Agencies shall not be required to apply partic-
ipation requirements to the following types of contracts:
(1) those subject to federal or state funding requirements which
preclude the city from imposing the requirements of this subdivision;
(2) those subject to federal or state law participation requirements
for MBEs, WBEs, disadvantaged business enterprises, VBES, and/or EBEs;
(3) contracts between agencies;
(4) procurements made through the United States general services
administration or another federal agency, or through the New York state
office of general services or another state agency, or any other govern-
mental agency.
(5) emergency procurements pursuant to section three hundred fifteen
of the charter;
(6) sole source procurements pursuant to section three hundred twen-
ty-one of the charter;
(7) contracts for human services; and
(8) contracts awarded to not-for-profit organizations.
r. Comptroller. The comptroller shall randomly examine contracts for
which contractor utilization plans are established to assess compliance
with such plans. All solicitations for contracts for which contractor
utilization plans are to be established shall include notice of poten-
tial comptroller examinations.
s. Advisory board. There shall be an advisory board to enhance
procurement opportunities for minority [and women-owned businesses],
WOMAN AND VETERAN-OWNED BUSINESSES.
(1) Such board shall consist of a chair appointed by the mayor and no
fewer than ten members, all of whom shall be appointed by the mayor and
shall serve at the pleasure of the mayor.
(2) Such board shall:
(a) Advise the mayor on M/WBE AND VBE issues and on methods to
increase M/WBE AND VBE participation in city procurement;
(b) Provide information to firms owned by women and minority group
members about programs and opportunities for M/WBEs AND VBES in order to
A. 3971 53
increase participation by such firms in city contracting, and encourage
them to become certified as M/WBEs AND VBES; and
(c) Educate relevant stakeholders and constituencies in order to
support the city's efforts to increase M/WBE AND VBE opportunities
through regulatory and legislative measures.
(3) The chair of the board may direct the board to gather or dissem-
inate information and convene meetings in order to improve information
sharing about M/WBE AND VBE issues and opportunities and to develop and
provide advice.
§ 32. Paragraphs (a), (b) and (c) of subdivision 12 of section 3.07 of
the arts and cultural affairs law, as amended by chapter 255 of the laws
of 1988, are amended to read as follows:
(a) All contracts for design, construction, services and materials
pursuant to this section of whatever nature and all documents soliciting
bids or proposals therefor shall contain or make reference to the
following provisions:
(i) That the contractor will not discriminate against employees or
applicants for employment because of race, creed, color, national
origin, sex, age, disability, or marital status, and will undertake or
continue existing programs of affirmative action to ensure that minority
group persons [and], women AND VETERANS are afforded equal opportunity
without discrimination. Such programs shall include, but not be limited
to, recruitment, employment, job assignment, promotion, upgrading,
demotion, transfer, layoff, termination, rates of pay or other forms of
compensation, and selection for training and retraining, including
apprenticeship and on-the-job training;
(ii) That the contractor shall request any employment agency, labor
union, or authorized representative of workers with which it has a
collective bargaining or other agreement or understanding and which is
involved in the performance of the contract to furnish a written state-
ment that it will not discriminate because of race, creed, color,
national origin, sex, age, disability or marital status and it will
cooperate in the implementation of the contractor's obligations here-
under;
(iii) That the contractor will state, in any solicitations or adver-
tisements for employees placed by or on behalf of the contractor in the
performance of the contract, that all qualified applicants will be
afforded equal employment opportunity without discrimination because of
race, creed, color, national origin, sex, age, disability or marital
status;
(iv) That the contractor will include the provisions of subparagraphs
(i) through (iii) of this paragraph in every subcontract or purchase
order in such a manner that such provisions will be binding upon each
subcontractor or vendor as to its work in connection with the contract
with the agency.
(b) The council shall establish appropriate measures, procedures and
guidelines to ensure that contractors and subcontractors undertake mean-
ingful programs to employ and promote qualified minority group members
[and], women AND VETERANS. Such procedures may require after notice in
a bid solicitation, the submission of a minority [and], women AND VETER-
ANS workforce utilization program prior to the award of any contract, or
at any time thereafter, and may require the submission of compliance
reports relating to the operation and implementation of any workforce
utilization program adopted hereunder. The council may take appropriate
action, including the impositions of sanctions for non-compliance to
A. 3971 54
effectuate the provisions of this subdivision and the monitoring of
compliance with this subdivision.
(c) (i) In the performance of projects pursuant to this section,
minority [and women-owned], WOMEN AND VETERAN-OWNED business enterprises
shall be given the opportunity for meaningful participation. For
purposes hereof, minority business enterprise shall mean any business
enterprise which is at least fifty-one per centum owned by, or in the
case of a publicly owned business, at least fifty-one per centum of the
stock or other voting interest is owned by citizens or permanent resi-
dent aliens who are Black, Hispanic, Asian, American Indian, Pacific
Islander, or Alaskan native, and such ownership interest is real,
substantial and continuing and has the authority to independently
control the day to day business decisions of the entity for at least one
year; [and] women-owned business enterprise shall mean any business
enterprise which is at least fifty-one per centum owned by, or in the
case of a publicly owned business, at least fifty-one per centum of the
stock to other voting interests of which is owned by citizens or perma-
nent resident aliens who are women, and such ownership interest is real,
substantial and continuing and has the authority to independently
control the day to day business decisions of the entity for at least one
year AND VETERAN-OWNED BUSINESS ENTERPRISE SHALL MEAN ANY BUSINESS
ENTERPRISE WHICH IS AT LEAST FIFTY-ONE PER CENTUM OWNED BY, OR IN THE
CASE OF A PUBLICLY OWNED BUSINESS, AT LEAST FIFTY-ONE PERCENTUM OF THE
STOCK TO OTHER VOTING INTERESTS OF WHICH IS OWNED BY CITIZENS OR PERMA-
NENT RESIDENT ALIENS WHO ARE VETERANS, AND SUCH OWNERSHIP INTEREST IS
REAL, SUBSTANTIAL AND CONTINUING AND HAS THE AUTHORITY TO INDEPENDENTLY
CONTROL THE DAY TO DAY BUSINESS DECISIONS OF THE ENTITY FOR AT LEAST ONE
YEAR.
The provisions of this subdivision shall not be construed to limit the
ability of any minority business enterprise to bid on any contract.
(ii) In order to implement the requirements and objectives of this
section, the council shall request, as appropriate, the assistance of
other state agencies to monitor the contractors' compliance with
provisions hereof, provide assistance in obtaining competing qualified
minority [and women-owned], WOMEN AND VETERAN-OWNED business enterprises
to perform contracts proposed to be awarded, and take other appropriate
measures to improve the access of minority [and women-owned], WOMEN AND
VETERAN-OWNED business enterprises to these contracts.
§ 33. Subdivision 33 of section 454 of the banking law, as amended by
chapter 679 of the laws of 2003, is amended to read as follows:
33. Notwithstanding any other provision of this article to the contra-
ry, to participate in the minority - [and women-owned], WOMEN - AND
VETERAN-OWNED business development and lending program[, as established
in section 16-c of section 1 of chapter 174 of the laws of 1968, consti-
tuting the urban development corporation act,] to the extent that such
program allows participation by credit unions.
§ 34. Section 52-0113 of the environmental conservation law, as added
by chapter 512 of the laws of 1986, is amended to read as follows:
§ 52-0113. Minority [and women-owned], WOMEN AND VETERAN-OWNED business
enterprise program.
1. a. In the performance of projects pursuant to this article minority
[and women-owned], WOMEN AND VETERAN-OWNED business enterprises shall be
given the opportunity for meaningful participation. The department or
the office shall establish measures and procedures to secure meaningful
participation and identify those contracts and items of work for which
minority [and women-owned], WOMEN AND VETERAN-OWNED business enterprises
A. 3971 55
may best bid to actively and affirmatively promote and assist their
participation in the projects, so as to facilitate the award of a fair
share of contracts to such enterprises; provided, however, that nothing
in this article shall be construed to limit the ability of the depart-
ment or office to assure that qualified minority [and women-owned],
WOMEN AND VETERAN-OWNED business enterprises may participate in the
program. For purposes hereof, minority business enterprise shall mean
any business enterprise which is at least fifty-one per centum owned by,
or in the case of a publicly owned business, at least fifty-one per
centum of the stock of which is owned by citizens or permanent resident
aliens who are Black, Hispanic, Asian or American Indian, Pacific Islan-
der or Alaskan natives and such ownership interest is real, substantial
and continuing and have the authority to independently control the day
to day business decisions of the entity for at least one year; [and]
women-owned business enterprise shall mean any business enterprise which
is at least fifty-one per centum owned by, or in the case of a publicly
owned business, at least fifty-one per centum of the stock of which is
owned by citizens or permanent resident aliens who are women, and such
ownership interest is real, substantial and continuing and have the
authority to independently control the day to day business decisions of
the entity for at least one year AND VETERAN-OWNED BUSINESS ENTERPRISE
SHALL MEAN ANY BUSINESS ENTERPRISE WHICH IS AT LEAST FIFTY-ONE PER
CENTUM OWNED BY, OR IN THE CASE OF A PUBLICLY OWNED BUSINESS, AT LEAST
FIFTY-ONE PER CENTUM OF THE STOCK OF WHICH IS OWNED BY CITIZENS OR
PERMANENT RESIDENT ALIENS WHO ARE VETERANS, AND SUCH OWNERSHIP INTEREST
IS REAL, SUBSTANTIAL AND CONTINUING AND HAVE THE AUTHORITY TO INDEPEND-
ENTLY CONTROL THE DAY TO DAY BUSINESS DECISIONS OF THE ENTITY FOR AT
LEAST ONE YEAR.
The provisions of this paragraph shall not be construed to limit the
ability of any minority [or women-owned], WOMEN OR VETERAN-OWNED busi-
ness enterprise to bid on any contract.
b. In the implementation of this section, the department or the office
shall consider compliance by any contractor with the requirements of any
federal, state, or local law concerning minority [and women-owned],
WOMEN AND VETERAN-OWNED business enterprises, which may effectuate the
requirements of this section. If the department or the office determines
that by virtue of the imposition of the requirements of any such law, in
respect to capital project contracts, the provisions thereof duplicate
or conflict with such law, the department may waive the applicability of
this section to the extent of such duplication or conflict.
c. Nothing in this section shall be deemed to require that overall
state and federal requirements for participation of minority [and
women-owned], WOMEN AND VETERAN-OWNED business enterprises in programs
authorized under this article be applied without regard to local circum-
stances to all projects or in all communities.
2. In order to implement the requirements and objectives of this
section, the department and the office shall establish procedures to
monitor the contractors' compliance with provisions hereof, provide
assistance in obtaining competing qualified minority [and women-owned],
WOMEN AND VETERAN-OWNED business enterprises to perform contracts
proposed to be awarded, and take other appropriate measures to improve
the access of minority [and women-owned], WOMEN AND VETERAN-OWNED busi-
ness enterprises to these contracts.
§ 35. Section 957 of the general municipal law is amended by adding a
new subdivision (u) to read as follows:
A. 3971 56
(U) "VETERAN-OWNED BUSINESS ENTERPRISE" SHALL HAVE THE SAME MEANING
AS PROVIDED IN SECTION THREE HUNDRED TEN OF THE EXECUTIVE LAW.
§ 36. Subdivisions (a), (g) and (t) of section 959 of the general
municipal law, subdivision (a) as amended by section 2 of part R of
chapter 57 of the laws of 2010 and subdivisions (g) and (t) as amended
by section 3 of part S1 of chapter 57 of the laws of 2009, are amended
to read as follows:
(a) After consultation with the director of the budget, the commis-
sioner of labor, and the commissioner of taxation and finance, promul-
gate regulations, which, notwithstanding any provisions to the contrary
in the state administrative procedure act, may be adopted on an emergen-
cy basis, governing (i) criteria of eligibility for empire zone desig-
nation, provided, however, that such criteria be approved by the direc-
tor of the budget; (ii) the application process; (iii) the certification
by the commissioner as to the eligibility of business enterprises for
benefits referred to in section nine hundred sixty-six of this article,
which shall be governed by criteria including, but not limited to: (1)
whether the business enterprise, if certified, is reasonably likely to
create new employment or prevent a loss of employment in the zone, (2)
whether such new employment opportunities will be for individuals who
will perform a substantial part of their employment activities in the
zone, (3) whether certification will have the undesired effect of caus-
ing individuals to transfer from existing employment with another busi-
ness enterprise to similar employment with the business enterprise so
certified, and transferring existing employment from one or more other
municipalities, towns or villages in the state, or transferring existing
employment from one or more other businesses in the zone, (4) whether
such enterprise is likely to enhance the economic climate of the zone,
(5) whether the commissioner of labor establishes that such business
enterprise, during the three years preceding the submission of an appli-
cation for certification, has engaged in a substantial violation or a
pattern of violations of laws regulating unemployment insurance, workers
compensation, public work, child labor, employment of minorities [and
women], WOMEN AND VETERANS, safety and health, or other laws for the
protection of workers as determined by final judgment of a judicial or
administrative proceeding; (6) whether such business meets the require-
ments of the cost benefit analysis as established in paragraph (p) of
section nine hundred fifty-seven of this article, and (7) if the commis-
sioner of labor establishes that the business enterprise has been found
in a criminal proceeding to have violated, in the previous three years,
any of the laws referred to in subparagraph five of this paragraph or
regulations promulgated pursuant to such laws, the conditions of any
permit issued thereunder, or similar statute, regulation, order or
permit condition of any other government agency, foreign or domestic,
such business shall not be certified; provided, however, that a business
enterprise that has shifted its operations, or some portions thereof,
from an area within New York state not designated as an empire zone or
zone equivalent area to an area so designated shall not be certified to
receive such benefits except where such shift is entirely within a muni-
cipality and has been approved by the local governing body of such muni-
cipality or in situations where it has been established, after a public
hearing, that extraordinary circumstances exist which warrant the relo-
cation of a business, in whole or part, into an empire zone or a zone
equivalent area from another municipality and the municipality from
which the business is relocating approves of such relocation; or where
such shift in operations is from a business incubator facility operated
A. 3971 57
by a municipality or by a public or private not-for-profit entity which
provides space and business support services to newly established firms;
and (iv) the decertification by the commissioner, upon the recommenda-
tion of the commissioner of labor, so as to revoke the certification of
business enterprises for benefits referred to in section nine hundred
sixty-six of this article with respect to an empire zone or zone equiv-
alent area upon a finding that the business enterprise has committed
substantial violations of laws for the protection of workers including
all federal, state and local labor laws, rules or regulations; and (v)
the decertification by the commissioner so as to revoke the certif-
ication of business enterprises for benefits referred to in section nine
hundred sixty-six of this article with respect to an empire zone or zone
equivalent area upon a finding of any one of the following: (1) the
business enterprise made material misrepresentations of fact on its
application for certification or in any of its business annual reports,
or the business enterprise failed to disclose facts in its application
for certification that would constitute grounds for not issuing a
certification; (2) the business enterprise has failed to construct,
expand, rehabilitate or operate or invest in its facility substantially
in accordance with the representations contained in its application for
certification; (3) the business enterprise has failed to create new
employment or prevent a loss of employment in the empire zone or zone
equivalent area; (4) where applicable, the business enterprise has
failed to submit an annual report after it has applied for zone tax
benefits or program assistance based on new hires or investments or
failed to submit other information when due; (5) the business enter-
prise, if first certified pursuant to this article prior to the first
day of August, two thousand two, caused individuals to transfer from
existing employment with another business enterprise with similar owner-
ship and located in New York state to similar employment with the certi-
fied business enterprise or if the enterprise acquired, purchased,
leased, or had transferred to it real property previously owned by an
entity with similar ownership, regardless of form of incorporation or
organization; (6) the business enterprise has failed to provide economic
returns to the state in the form of total remuneration to its employees
(i.e. wages and benefits) and investments in its facility greater in
value to the tax benefits the business enterprise used and had refunded
to it; or (7) the business enterprise has changed ownership or moved its
operations out of the empire zone; said regulations shall provide that
whenever any business enterprise is decertified with respect to an
empire zone: (A) the date determined to be the earliest event constitut-
ing grounds for revoking certification shall be the effective date of
decertification; (B) its certified single enterprise, if any, may also
be decertified; and (C) the commissioner shall notify the commissioner
of taxation and finance that such decertification has occurred, and such
notification should include the effective date of such decertification
and the zone or zone equivalent area to which such decertification
applies; with respect to any business enterprise whose certification has
been revoked pursuant to subparagraph five or six of this paragraph,
that revocation (I) will be effective for a taxable year beginning on or
after January first, two thousand eight and before January first, two
thousand nine and for subsequent taxable years, unless the business
enterprise is subsequently re-certified pursuant to part 11 of title 5
of the New York state codes, rules and regulations for a business enter-
prise for which a review is required to be conducted pursuant to subdi-
vision (w) of this section in calendar year two thousand nine, and (II)
A. 3971 58
thereafter will be effective for the taxable year during which the
commissioner makes his or her determination (prior to any appeal) to
revoke the certification of a business enterprise and for subsequent
taxable years;
(g) Coordinate, with the local empire zone administrative board and
state agencies and authorities, the provision of business development
programs and services for each empire zone in order to stimulate the
creation and development of new small businesses, including new small
minority-owned [and], women-owned AND VETERAN-OWNED business enter-
prises, and may request and shall receive from any department, division,
board, bureau, commission, agency or public authority of the state such
assistance as may be necessary;
(t) Coordinate with the urban development corporation the creation of
a special category of assistance for zones within the regional economic
development partnership program, which will make available economic
development assistance grants for zone programs and activities, includ-
ing, but not limited to, planning, service coordination, and local
institutional capacity building for human resource development necessary
for economic revitalization; planning and development of small business
incubators; job placement and preparedness programs for zones residents;
education and training programs for zone businesses; child care programs
and projects supportive of business development; technical assistance
for minority [and women-owned], WOMEN AND VETERAN-OWNED business devel-
opment; training for zone officials; business and tourism development
and marketing programs; and other innovative programs and activities in
support of economic and community development within the zones;
§ 37. Paragraphs (iii) and (xii) of subdivision (a) of section 963 of
the general municipal law, as amended by chapter 708 of the laws of 1993
and further amended by section 15 of part GG of chapter 63 of the laws
of 2000, are amended to read as follows:
(iii) undertake efforts to ensure meaningful participation by minori-
ty-owned [and women-owned], WOMEN AND VETERAN-OWNED business enterprises
in empire zone activities;
(xii) provide within the zone, or contract with a new or existing
community-based local development corporation or entity to provide,
strategic economic development planning for the zone, marketing and
promotion of the zone, assistance to companies in applying for available
benefits, preparation of applications for financing assistance and other
technical assistance services; coordination of the delivery of state and
local programs within the zones; and operation of such other economic
development assistance programs in furtherance of the empire zone devel-
opment plan as may be appropriate. Provided, however, within the amount
appropriated therefor and allocated by the director of the budget, the
commissioner, through annual administrative contracts, shall, to the
maximum extent feasible, make equally available financial support,
through contracts or other means, to assist with the administrative
expenses of the local zone administrative bodies or community-based
development organizations. No funds shall be made available for this
purpose unless the amount to be provided has been matched by private or
governmental sources, other than state sources, in amounts at least
equalling that to be provided by the state. Such matching funds shall be
earmarked and used exclusively for the local administration of the zone
program or for activities of the zone program. At least fifty percent of
such matching funds shall be in cash, provided that the commissioner may
waive this requirement for communities with populations of twenty-five
thousand or less, and provided, further, that any amounts appropriated
A. 3971 59
for minority [and women-owned], WOMEN AND VETERAN-OWNED business devel-
opment within the zones shall be distributed by the commissioner pursu-
ant to a competitive proposal solicitation process.
§ 38. Subdivision (c) of section 964 of the general municipal law, as
amended by chapter 708 of the laws of 1993 and further amended by
section 15 of part GG of chapter 63 of the laws of 2000, is amended to
read as follows:
(c) Each empire zone capital corporation shall, to the maximum extent
feasible, undertake measures and procedures to ensure meaningful partic-
ipation by minority-owned [and], women-owned AND VETERAN-OWNED business
enterprises in the activities and investments of such corporation. Each
such corporation shall additionally, to the maximum extent feasible,
undertake measures and procedures to ensure meaningful participation by
locally owned business enterprises in the activities and investments of
such corporation.
§ 39. Subparagraph 7 of paragraph f of subdivision 3 of section 970-r
of the general municipal law, as amended by section 1 of part F of chap-
ter 577 of the laws of 2004, is amended to read as follows:
(7) the financial commitments the applicant will make to the brown-
field opportunity area for activities including, but not limited to,
marketing of the area for business development, human resource services
for residents and businesses in the brownfield opportunity area, and
services for small [and], minority [and women-owned], WOMEN AND VETER-
AN-OWNED businesses.
§ 40. Section 3 of section 1 of chapter 174 of the laws of 1968,
constituting the New York state urban development corporation act, is
amended by adding a new subdivision 31 to read as follows:
(31) "VETERAN BUSINESS ENTERPRISE". A BUSINESS ENTERPRISE WHICH IS AT
LEAST FIFTY-ONE PERCENT OWNED, OR IN THE CASE OF A PUBLICITY-OWNED BUSI-
NESS AT LEAST FIFTY-ONE PERCENT OF THE COMMON STOCK OR OTHER VOTING
INTERESTS OF WHICH IS OWNED, BY UNITED STATES CITIZENS OR PERMANENT
RESIDENT ALIENS WHO ARE VETERANS, REGARDLESS OF RACE OR ETHNICITY, AND
SUCH OWNERSHIP INTEREST IS REAL, SUBSTANTIAL AND CONTINUING AND SUCH
VETERANS HAVE AND EXERCISE THE AUTHORITY TO INDEPENDENTLY CONTROL THE
DAY TO DAY BUSINESS DECISIONS OF THE ENTERPRISES.
§ 41. The second undesignated paragraph of subdivision 1 of section 12
of section 1 of chapter 174 of the laws of 1968, constituting the New
York state urban development corporation act, as added by section 1 of
part EE of chapter 60 of the laws of 2011, is amended to read as
follows:
The empire state new market corporation, a community development enti-
ty certified by the United States Department of the Treasury Community
Development Financial Institutions Fund and a corporate subsidiary of
the corporation, by resolution, may direct any of its directors, offi-
cers, or employees to form limited liability companies pursuant to
section 203 of the limited liability company law for the sole purpose of
certifying and performing as community development entities that would
be eligible to receive an allocation of tax credits under the new
markets tax credit program. No limited liability company formed pursu-
ant to this section shall merge or consolidate. Each limited liability
company shall act solely in relation to projects selected by the corpo-
ration, or a corporate subsidiary of the corporation. Each limited
liability company shall be empowered to receive an allocation of tax
credits from a federal allocation to the corporation, or a corporate
subsidiary of the corporation, under the new markets tax credit program
and to do any other act or things incidental to or connected with the
A. 3971 60
foregoing purposes or in advancement thereof. The corporation, or a
corporate subsidiary of the corporation, shall be the managing member of
each limited liability company created by the corporation. In determin-
ing which projects to allocate tax credits to under the new markets tax
credit program, the corporation shall prioritize projects demonstrating
one or more of the following goals or benefits: (a) creating or retain-
ing jobs in low income communities; (b) increasing the provision of
goods and services for low income community residents which would other-
wise not be available at the same price or quality; (c) supporting
minority [and women-owned], WOMEN AND VETERAN-OWNED or controlled busi-
nesses; (d) expanding housing opportunities for low income community
persons; (e) supporting environmentally sustainable outcomes; and (f)
supporting efforts that otherwise benefit low income community residents
by leveraging further investment in their communities. Provided
further, such projects shall be limited to projects that would be
authorized under this act and shall be subject to approval by the board
of the urban development corporation. The corporation shall publish
information regarding the process used to select projects to receive the
new markets tax credits and provide a copy to the temporary president of
the senate, the speaker of the assembly, the minority leader of the
senate and the minority leader of the assembly. The corporation shall
strive for regional diversity in the allocation of tax credits under the
new markets tax credit program. The corporation shall include in the
information required to be submitted annually in accordance with the
provisions of subdivision 1 of section 2800 of the public authorities
law information regarding assistance provided by it or its subsidiary
under the new markets tax credit program, and shall provide financial
information with respect to any subsidiary administering the program in
the corporation's financial reports, including its certified audited
financial statements.
§ 42. Paragraph (c) of subdivision 9 of section 16-a of section 1 of
chapter 174 of the laws of 1968, constituting the New York state urban
development corporation act, as amended by chapter 477 of the laws of
2002, is amended to read as follows:
(c) of minority [or women-owned], WOMEN OR VETERAN-OWNED enterprises
or enterprises owned by dislocated workers, such workers as defined in
the Workforce Investment Act (P.L. 105-220); and
§ 43. Section 16-c of section 1 of chapter 174 of the laws of 1968,
constituting the New York state urban development corporation act, as
added by chapter 169 of the laws of 1994, subdivision 1 as amended by
section 1 of part AA of chapter 55 of the laws of 2014, and subpara-
graphs (i) and (ii) of paragraph (a) of subdivision 2 as further amended
by section 15 of part GG of chapter 63 of the laws of 2000, is amended
to read as follows:
§ 16-c. Minority- [and women-owned], WOMEN- AND VETERAN-OWNED business
development and lending program.
(1) Minority- [and women-owned], WOMEN- AND VETERAN-OWNED business
development and lending program. (a) There is hereby created a minori-
ty- [and women-owned], WOMEN- AND VETERAN-OWNED business development and
lending program for the purpose of providing financial and technical
assistance to minority [and women-entrepreneurs], WOMEN AND VETERAN
ENTREPRENEURS.
(b) For the purposes of this section the following words or terms
shall mean as follows:
(i) "minority-owned business enterprise" or "minority-owned business"
shall mean the same as "minority business enterprise" as defined in
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subdivision three of section two hundred ten of the economic development
law.
(ii) "women-owned business enterprise" or "women-owned business" shall
mean the same as "women-owned business enterprise" as defined in subdi-
vision five of section two hundred ten of the economic development law.
(iii) "VETERAN-OWNED BUSINESS ENTERPRISE" OR "VETERAN-OWNED BUSINESS"
SHALL MEAN THE SAME AS "VETERAN-OWNED BUSINESS ENTERPRISE" AS DEFINED IN
SUBDIVISION SEVEN OF SECTION TWO HUNDRED TEN OF THE ECONOMIC DEVELOPMENT
LAW.
(IV) "incubator" shall mean a facility providing low-cost space, tech-
nical assistance and support services, including, but not limited to,
central services shared by tenants of the facility, to minority- [and
women-owned], WOMEN- AND VETERAN-OWNED business enterprises.
(c) Assistance shall not be provided under this section for:
(i) the purchase or rehabilitation of real property for speculative
purposes;
(ii) payment of any tax or employee benefit arrearage;
(iii) residential construction, renovation or development
construction, except for assistance to minority [and], women AND VETERAN
contractors under subdivision four of this section;
(iv) educational institutions and proprietary education firms, except
licensed child care facilities;
(v) hospitals or residential health care facilities;
(vi) overnight lodging facilities;
(vii) refinancing of debt or equity invested in an enterprise or
project.
(d) The corporation is authorized to:
(i) establish programs in conjunction with locally, and community
based entities to decentralize lending for small loans and loans to
start up minority- [and women-owned], WOMEN- AND VETERAN-OWNED busi-
nesses;
(ii) establish a comprehensive program for minority [and], women AND
VETERAN contractors, which may include assistance through loans, bonding
assistance and technical assistance;
(iii) establish a program to provide loans to established minority-
[and women-owned], WOMEN- AND VETERAN-OWNED businesses and for minority-
[and women-owned], WOMEN- AND VETERAN-OWNED businesses, including loans
to such businesses seeking to acquire or expand a franchise;
(iv) provide loan guarantees to financial institutions and make linked
deposits into federally and state chartered credit unions for the
purpose of encouraging private financial institutions to make loans to
minority- [and women-owned], WOMEN- AND VETERAN-OWNED businesses;
(v) establish a program to create incubators to assist small and high
risk minority- [and women-owned], WOMEN- AND VETERAN-OWNED businesses to
grow and prosper;
(vi) promote equity investment in minority- [and women-owned], WOMEN-
AND VETERAN-OWNED businesses; [and]
(vii) establish a comprehensive technical assistance program in coop-
eration with the department of economic development to assist minority-
[and women-owned], WOMEN- AND VETERAN-OWNED businesses and potential
[minority and women-entrepreneurs] MINORITY-, WOMEN- AND VETERAN-ENTRE-
PRENEURS; and
(viii) notwithstanding any provision of law to the contrary, establish
a minority- [and women-owned], WOMEN- AND VETERAN-OWNED business invest-
ment fund to provide critical financial support to foster the develop-
ment of new and emerging ideas and products of minority- [and women-
A. 3971 62
owned], WOMEN- AND VETERAN-OWNED business enterprises as well as to
promote the long-term financial performance and success of early stage
enterprises that are minority- [and women-owned], WOMEN- AND VETERAN-
OWNED start-ups. The selection of an eligible applicant and beneficiary
companies for the minority- [and women-owned], WOMEN- AND VETERAN-OWNED
business investment fund shall be selected by the process established
pursuant to subdivisions two through four of section sixteen-u of this
act. Minority- [or women-owned], WOMEN- AND VETERAN-OWNED business
enterprises who participate in such minority- [and women-owned], WOMEN-
AND VETERAN-OWNED business investment fund under this subdivision shall
not be precluded from qualifying for any other assistance, grant or loan
made available from the state.
(2) Minority [and], women AND VETERAN revolving loan trust fund. For
the purpose of establishing programs in conjunction with locally and
community based entities to decentralize lending for small loans and
loans to start up minority- [and women-owned], WOMEN- AND VETERAN-OWNED
businesses, the corporation shall establish minority [and], women AND
VETERAN revolving loan trust fund accounts and related administrative
expenses trust fund accounts.
(a) Each minority [and], women AND VETERAN revolving loan trust fund
account shall be administered by one or more of the following types of
entities that provide services to community businesses and have as one
of their primary purposes the provision of services and assistance to
minority- [and women-owned], WOMEN- AND VETERAN-OWNED businesses:
(i) empire zone capital corporations established pursuant to section
nine hundred sixty-four of the general municipal law;
(ii) community-based local development corporations or industrial
development agencies that serve a municipality in which an empire zone
has been established pursuant to article eighteen-B of the general
municipal law and have as their primary purpose assistance to minority-
[and women-owned], WOMEN- AND VETERAN-OWNED businesses located or to be
located in such empire zone; or
(iii) local and community development corporations, industrial devel-
opment agencies, or other not-for-profit entities, representative of the
community.
(b) To be eligible to administer a minority [and], women AND VETERAN
revolving loan trust fund account, the entity must also: (i) have staff
with sufficient expertise to analyze applications for financial assist-
ance, to regularly monitor financial assistance to clients, and to
provide management or technical assistance to clients; and (ii) have
established a loan committee composed of six or more persons experienced
in business management, commercial lending or in the operation of a
for-profit business, at least one-half of whom shall be experienced in
commercial lending, at least [one-third] ONE-QUARTER of whom shall be
minority persons and at least [one-third] ONE-QUARTER of whom shall be
women AND AT LEAST ONE-QUARTER OF WHOM SHALL BE VETERANS. Such loan
committee shall review every application, determine the feasibility of
the proposed project and the likelihood of repayment of the requested
financing and shall recommend to the governing body of the entity such
action on the application as the loan committee deems appropriate. The
corporation shall identify entities eligible to administer minority and
women revolving loan trust fund accounts through a competitive statewide
request for proposal process.
(c) Any entity selected to administer a minority [and], women AND
VETERAN revolving loan trust fund account shall be eligible to draw
funds from the account as needed to provide the following types of
A. 3971 63
financial assistance to minority- [and women-owned], WOMEN- AND VETER-
AN-OWNED businesses upon certification to and acceptance by the corpo-
ration that such assistance complies with rules and regulations promul-
gated by the corporation: (i) working capital loans, provided that the
amount of the loan does not exceed thirty-five thousand dollars and the
term of the loan does not exceed five years; and (ii) loans for the
acquisition and/or improvement of real property and for the acquisition
of machinery and equipment provided that the amount of the loan does not
exceed fifty thousand dollars and the term of the loan does not exceed
the useful life of the equipment or property.
(d) (i) Notwithstanding any provision of law to the contrary, the
corporation may establish an administrative expenses trust fund account
for the benefit of each entity selected to administer a minority [and],
women AND VETERAN revolving loan trust fund account. The initial deposit
of funds to an administrative expenses trust fund account shall be an
amount determined by the corporation but shall not exceed twenty-five
thousand dollars.
(ii) An entity selected to administer a minority [and], women AND
VETERAN revolving loan trust fund account may use the funds in the
administrative expenses trust fund account for costs incurred by it in
the start up and administration of the financial assistance program
authorized pursuant to this subdivision.
(iii) The corporation shall deposit into each administrative expenses
trust fund account:
(A) all income earned from the moneys on deposit in the corresponding
minority [and], women AND VETERAN revolving loan trust fund account
during the first year of the entity's administration of said account;
and
(B) beginning with its second year in administering a minority [and],
women AND VETERAN revolving loan trust fund account, said amounts may be
used for costs incurred by the entity in administering the minority
[and], women AND VETERAN revolving loan trust fund account; and
(C) repayments of interest on loans made from the corresponding minor-
ity [and], women AND VETERAN revolving loan trust fund account.
(iv) Funds from the administrative expenses trust fund account may be
used for costs incurred at any time by an administering entity in its
administration of a minority [and], women AND VETERAN revolving loan
trust fund account pursuant to this section.
(v) Funds deposited in an administrative expenses trust fund account
shall be disbursed by the corporation to the entity that administers the
corresponding minority [and], women AND VETERAN revolving loan trust
fund account on a periodic basis and shall be expended by the entity in
accordance with an annual budget and any updates of same, approved by
the corporation.
(e) Any entity selected to administer a minority [and], women AND
VETERAN revolving loan trust fund account shall pay to the corporation
for deposit any repayments received in connection with financial assist-
ance provided from its account. Payments consisting of the repayment of
the principal amount of a loan shall be deposited by the corporation
into the minority [and], women AND VETERAN revolving loan trust fund
account from which the loan was made. The interest earned by the corpo-
ration from the investment of moneys in each minority [and], women AND
VETERAN revolving loan trust fund account during and after the second
year of a selected entity's administration of said account shall be
deposited by the corporation into the corresponding minority [and],
women AND VETERAN revolving loan trust fund account and used to provide
A. 3971 64
the financial assistance to minority- [and women-owned], WOMEN- AND
VETERAN-OWNED businesses as authorized pursuant to this section.
(f) The provisions of subdivisions eight, nine, and fourteen through
nineteen of section sixteen-a of this act pertaining to the regional
revolving loan trust fund shall also be applicable to the minority
[and], women AND VETERAN revolving loan trust fund, provided that: where
the term "regional corporation" appears therein it shall be interpreted
to mean an entity selected to administer a minority [and], women AND
VETERAN revolving loan trust fund account, and "regional revolving loans
trust fund" shall mean a minority [and], women AND VETERAN revolving
loan trust fund, and where the term "this section" appears therein it
shall mean this section sixteen-c.
(g) The corporation may provide funds from an appropriation for the
minority- [and women-owned], WOMEN- AND VETERAN-OWNED business develop-
ment and lending program to any entity selected to administer a minority
[and], women AND VETERAN revolving loan trust fund for the purposes of
recapitalizing such account and the entity's corresponding administra-
tive expenses trust fund account following an evaluation by the corpo-
ration of the entity's administration and use of such accounts.
(h) Notwithstanding any provision of law to the contrary, the corpo-
ration shall establish a minority [and], women AND VETERAN revolving
loan trust fund to pay into such fund any moneys made available to the
corporation for such fund from any source, including moneys appropriated
by the state and any income earned by, or increment to, the account due
to the investment thereof, or any repayment of moneys advanced from the
fund. The corporation shall not commingle the moneys of such fund with
any moneys held in trust by the corporation, except for investment
purposes.
(3) Micro-loan program. (a) For the purposes of this subdivision
"micro-loan" shall mean a loan of under seven thousand five hundred
dollars.
(b) The corporation shall, pursuant to requests for proposals, enter
into agreements for other types of locally, community or regionally
administered loan programs than those set forth in subdivision two of
this section, including micro-loan programs to be administered by local
development corporations, local industrial development organizations,
municipalities and not-for-profit organizations, to provide micro-loans
to small and high risk minority- [and women-owned], WOMEN- AND VETERAN-
OWNED businesses located within their respective service areas, provided
that loan review committees are established by such administering enti-
ty, including women, VETERANS and minority persons experienced in busi-
ness management, business development, commercial lending, entrepreneur-
ship, or in the operation of a for-profit business.
(c) Agreements entered into pursuant to paragraph (b) of this subdivi-
sion shall be governed by paragraphs (d) through (h) of subdivision two
of this section, and minority [and], women AND VETERAN revolving loan
trust fund accounts and administrative expenses trust fund accounts
shall be established in a similar fashion for entities selected to
administer micro-loan funds pursuant to this subdivision.
(4) Minority [and], women AND VETERAN contracting program. For the
purpose of establishing a comprehensive program to assist minority
[and], women AND VETERAN contractors, the corporation may provide loans,
loan guarantees, technical assistance and bonding assistance, the corpo-
ration may enter into cooperative agreements with cities, counties,
municipalities, authorities, agencies, federally and state chartered
A. 3971 65
credit unions in New York state and federally insured banking organiza-
tions and financial institutions for such purposes.
(a) To be eligible for a contractor loan, the borrower must have
either (i) a construction contract with, or a contract to provide goods
or services to, a governmental entity or authority, (ii) a subcontract
on a government-sponsored construction contract, (iii) a contract or
subcontract on a government sponsored residential project, or (iv) a
contract or subcontract on a construction project previously approved by
the corporation pursuant to section ten of this act.
(b) The corporation shall provide technical assistance specifically
oriented to [minority and women-owned] MINORITY-, WOMEN- AND VETERAN-
OWNED government contractors as part of its comprehensive technical
assistance program.
(c) The corporation is authorized to provide assistance through the
creation of, or assistance to, a minority [and], women AND VETERAN bond-
ing guarantee program to enable minority [and], women AND VETERAN
contractors and subcontractors to meet payment or performance bonding
requirements.
(i) Through such program, assistance in the form of working capital
loans and loan guarantees pursuant to subdivision six of this section
may also be provided to minority [and], women AND VETERAN contractors
and subcontractors who have secured contracts by participating in the
program.
(ii) The corporation shall either establish criteria for the bonding
guarantee program and for any required escrow funds which shall include
detailed provisions for eligibility; or if the corporation is providing
assistance to a program other than one established by the corporation,
review and approve the criteria established for such other program.
(5) Direct financial assistance for minority- [and women-owned],
WOMEN- AND VETERAN-OWNED businesses. For the purpose of establishing a
program to provide direct financial assistance to minority- [and women-
owned], WOMEN- AND VETERAN-OWNED businesses, the corporation is author-
ized to provide assistance in the form of:
(a) Business development loans and loan guarantees pursuant to subdi-
vision six of this section to eligible enterprises for the acquisition
or improvement of real property, machinery, equipment or working capi-
tal, provided that to be eligible for a business development loan, the
borrowers must have been in business for at least three years and
provided that the loans must be in an amount equal to or in excess of
fifty thousand dollars;
(b) Franchise loans to eligible enterprises seeking to acquire or
expand franchises of nationally recognized corporations, provided that
disbursements by the corporation of such loans shall be conditioned on
obtaining such franchises;
(c) Equity assistance for eligible [minority and women-owned] MINORI-
TY-, WOMEN- AND VETERAN-OWNED enterprises to match equity contributions
to such enterprises by financial institutions and community development
equity capital funds, provided, however, that such assistance shall be
targeted to start-up and early stage enterprises in the manufacturing,
retail and service sectors located in economically distressed areas.
(6) Deposits and loan guarantees. For the purpose of encouraging
private financial institutions to make loans to eligible enterprises
pursuant to this section for any of the eligible projects pursuant to
subdivisions four and five of this section, the corporation is author-
ized to:
A. 3971 66
(a) Make linked deposits of funds into federally and state chartered
credit unions in New York state, in order to encourage such organiza-
tions to make small loans to [minority and women-owned] MINORITY-,
WOMEN- AND VETERAN-OWNED businesses; and
(b) Provide loan guarantees to private financial institutions for
loans made to eligible minority- [and women-owned], WOMEN- AND VETERAN-
OWNED businesses pursuant to this subdivision for eligible projects,
provided that the guarantee shall be at least fifty percent backed by
funds of the corporation. Any such loan guaranteed by the corporation
shall be made to borrowers that are approved by the corporation and
substantially meet the underwriting criteria the credit union or finan-
cial institution customarily applies to similar borrowers for similar
loans supported by similar guarantees, and no guaranteed loan funds
shall be disbursed until the corporation has received, reviewed and
concurred, in writing, with the recommendation of the credit union or
banking or financial institution to make a loan.
(7) Minority [and], women AND VETERAN small business incubator
program. (a) The corporation shall establish a minority [and], women AND
VETERAN small business incubator program for the purpose of providing
financial support for the creation of incubators to nurture [minority
and women-owned] MINORITY-, WOMEN- AND VETERAN-OWNED business enter-
prises with growth potential.
(b) Under this subdivision the corporation is authorized to provide
low-interest loans and grants for construction financing and permanent
financing of up to seventy-five percent of project costs up to a maximum
of six hundred fifty thousand dollars per project, provided that the
total amount of grant assistance provided pursuant to this paragraph
shall not exceed twenty percent of an appropriation provided for the
purposes of this section.
(c) Incubator projects eligible for such assistance shall involve the
renovation or reconstruction of existing facilities or the acquisition
of equipment, except that construction shall be allowable in cases in
which an applicant can demonstrate to the satisfaction of the corpo-
ration that an existing facility is unavailable in the area to be served
by the new incubator facility.
(d) Incubator projects are not eligible to receive loans for the
purpose of covering operating costs or supplying incubator support
services, except that incubators in their first eighteen months of oper-
ation may receive one-time grants not to exceed forty thousand dollars,
which costs may include administrative costs of employing a resident
administrator/advisor to the incubator, provided that the corporation
shall not expend a sum greater than two hundred fifty thousand dollars
in any one state fiscal year, or so much as may be specifically appro-
priated for this purpose.
(e) Eligible incubator projects shall be required to demonstrate to
the corporation's satisfaction:
(i) public or private support and involvement sufficient to complete
the renovation of existing facilities or the construction of new facili-
ties and the acquisition of equipment;
(ii) significant community support for the project;
(iii) the existence of prospective tenants for such incubator space;
(iv) demand for such incubator space, which may include evidence of
the unavailability of suitable space for prospective tenants at appro-
priate rental or lease costs in the community in which such prospective
tenants are located; and
A. 3971 67
(v) the inability of the project to occur without financial assistance
from the corporation.
(f) The corporation shall establish criteria for eligibility for fund-
ing for incubator projects, including but not limited to the following:
(i) the project must be designed to provide low-cost space and support
services to incubator tenants, coordination with other sources of
assistance and flexible leasing arrangements for tenants;
(ii) the project sponsors must provide a management plan and a busi-
ness plan for operating the incubator satisfactory to the corporation;
and
(iii) the project gives preference for incubator space and assistance
to minority- [and women-owned], WOMEN- AND VETERAN-OWNED businesses
which currently receive, or have received, assistance from the corpo-
ration pursuant to this section and to incubator projects proposed to be
located in economically distressed areas.
(8) Minority- [and women-owned], WOMEN- AND VETERAN-OWNED business
technical assistance program. (a) The corporation shall establish a
comprehensive technical assistance program within the minority [and],
women AND VETERAN business development office, in cooperation with the
department of economic development's division of minority- [and women-
business], WOMEN- AND VETERAN-BUSINESS development established pursuant
to article four-A of the economic development law, to provide technical
assistance to minority- [and women-owned], WOMEN- AND VETERAN-OWNED
business enterprises and to prospective minority- [and women-business],
WOMEN- AND VETERAN-BUSINESS entrepreneurs through third party service
providers, which assistance shall include, but not be limited to: (i)
technical assistance in development and execution of business plans,
including the formation of, acquisition of, management of, or diversifi-
cation of a minority- [or women-owned], WOMEN- OR VETERAN-OWNED business
enterprise; (ii) technical assistance with applications for obtaining
funds from public and private financing sources; (iii) technical assist-
ance in the development of a working capital budget; (iv) referrals to
other providers of technical assistance to minority- [and women-owned],
WOMEN- AND VETERAN-OWNED businesses and minority [and], women AND VETER-
AN entrepreneurs, where appropriate, including the entrepreneurial
assistance program established pursuant to article nine of the economic
development law; and (v) technical assistance through education programs
directed primarily at women , VETERAN and minority entrepreneurs.
(b) Technical assistance may be provided through direct corporate
support, through grants to or contracts with service providers or
governmental entities, and minority- [and women-owned], WOMEN- AND
VETERAN-OWNED business enterprises and individuals.
(9) Priorities. The corporation shall give priority to applications
for assistance pursuant to this section in which the business seeking
such assistance indicates a commitment to first consider persons eligi-
ble to participate in federal job training partnership act (P.L. 97-300)
programs.
(10) Non-application of certain provisions. The provisions of section
ten and subdivision two of section sixteen of this act shall not apply
to assistance or projects authorized pursuant to this section.
(11) Rules and regulations. The corporation shall, assisted by the
commissioner of economic development and in consultation with the
department of economic development, promulgate rules and regulations in
accordance with the state administrative procedure act. Such rules and
regulations shall be consistent with the program plan required by subdi-
vision nineteen of section one hundred of the economic development law.
A. 3971 68
No funds shall be disbursed under this program until such rules and
regulations have been reviewed and approved by the corporation. All
assistance and projects funded under this program shall be funded in
accordance with the rules and regulations in effect on the date the
completed application for such assistance shall be received by the
corporation.
(12) Minority [and], women AND VETERAN business development and lend-
ing account. Notwithstanding any provision of law to the contrary, the
corporation shall establish within the treasury of the corporation a
minority [and], women AND VETERAN business development and lending
account, and shall pay into such account any moneys which may be made
available to the corporation for this purpose from any source including,
but not limited to, moneys appropriated by the state and any repayment
of principal and interest on loans made by the corporation pursuant to
the minority- [and women-owned], WOMEN- AND VETERAN-OWNED business
development and lending program. Funds in the minority [and], women AND
VETERAN business development and lending account, including funds from
the repayment of principal and interest on loans made by the corpo-
ration, may be used for any form of assistance authorized hereunder. The
amounts deposited in the minority [and], women AND VETERAN business
development and lending account may not be interchanged with any other
account, but may be commingled with any other account for investment
purposes. All loans disbursed by the corporation shall be repaid into
the account. The corporation shall enter into a written agreement with
the director of the budget for repayment, to the state comptroller to
the credit of the capital projects fund, of all moneys in the account
after a period of time to be determined by the corporation and the
director of the budget. The corporation shall transfer to the minority
[and], women AND VETERAN business development and lending account: all
moneys appropriated or reappropriated by New York state for the minority
[and], women AND VETERAN revolving loan trust fund that have not been
committed prior to the effective date of the appropriation for the
program in the current fiscal year, or become uncommitted subsequent to
the effective date of the program's appropriation for the current fiscal
year; and all repayments of principal and interest on loans made by the
corporation which are currently on deposit in, or payable to, the minor-
ity [and], women AND VETERAN business development and lending account.
(13) Standardization. The corporation shall streamline the review and
approval process for projects and wherever possible standardize all
relevant attendant documentation and legal documents.
(14) Approval cycle. The corporation shall approve eligible loans or
grants on at least a four-month cycle and shall give priority consider-
ation to the comparative degree of economic distress within the areas in
which the project is located. Other factors to be considered by the
corporation shall include the impact of the project on the employment
and economic condition of the community and the financial feasibility of
the project.
(15) Repayment. Notwithstanding the provisions of section forty-a of
the state finance law and any other general or special law, no written
agreement under this program shall require repayment at any time or on
any terms inconsistent with the provisions of this act or the New York
state project finance agency act; except, however, that the corporation
may make grants to projects using funds appropriated for this purpose
and that the repayment provision may not apply to such grants.
(16) Reports. The chairman of the corporation shall submit to the
director of the budget, the speaker of the assembly and the temporary
A. 3971 69
president of the senate an evaluation of the effectiveness of the
program prepared by an entity independent of the corporation. The corpo-
ration shall select the program evaluator through a request for proposal
process. Such evaluation shall determine whether the assistance provided
has enhanced the economic condition of assisted companies or communi-
ties, and shall make recommendation for improvements which would make
the program more effective. Such evaluation shall be submitted by
September first, nineteen hundred ninety-five and September first every
two years thereafter.
§ 44. Subparagraphs (viii) and (x) of paragraph (e) of subdivision 7
of section 16-d of section 1 of chapter 174 of the laws of 1968, consti-
tuting the New York state urban development corporation act, as added by
chapter 169 of the laws of 1994, are amended to read as follows:
(viii) export, marketing, procurement and subcontracting assistance to
small and medium-sized industrial firms, including minority- [and
women-owned], WOMEN- AND VETERAN-OWNED businesses, and to flexible manu-
facturing networks, and programs to assist regional and multi-county
business marketing and procurement programs;
(x) business planning, management assistance and counseling, and
financial packaging assistance to small and medium-sized industrial
firms, including minority- [and women-owned], WOMEN- AND VETERAN-OWNED
businesses, flexible manufacturing networks, and new enterprises and
small businesses, including the establishment of neighborhood-based
business service centers designed to deliver comprehensive technical
assistance to new and small businesses in specific communities and
neighborhoods;
§ 45. Subparagraph (ii) of paragraph (h) of subdivision 7 of section
16-d of section 1 of chapter 174 of the laws of 1968, constituting the
New York state urban development corporation act, as added by chapter
169 of the laws of 1994, is amended to read as follows:
(ii) support for business development projects of women, members of
minority groups, VETERANS or dislocated workers;
§ 46. Clause (B) of subparagraph (i) of paragraph (h) of subdivision 8
of section 16-d of section 1 of chapter 174 of the laws of 1968, consti-
tuting the New York state urban development corporation act, as added by
chapter 169 of the laws of 1994 and as further amended by section 15 of
part GG of chapter 63 of the laws of 2000, is amended to read as
follows:
(B) community based local development corporations, industrial devel-
opment agencies, or other not-for-profit entities which serve a munici-
pality in which an empire zone has been established and which, as one of
their primary purposes, provide services and assistance to business
enterprises located or to be located in such empire zone, including
minority- [and women-owned], WOMEN- AND VETERAN-OWNED businesses;
§ 47. Paragraph (b) of subdivision 14 of section 16-d of section 1 of
chapter 174 of the laws of 1968, constituting the New York state urban
development corporation act, as added by chapter 169 of the laws of
1994, is amended to read as follows:
(b) Submit to the director of the budget, the speaker of the assembly
and the temporary president of the senate an evaluation of the effec-
tiveness of the urban and community development program prepared by an
entity independent of the corporation. The corporation shall select the
program evaluator through a request for proposal process. Such evalu-
ation shall discuss the variety and types of programs supported by the
corporation under this program; and, as appropriate, the extent to which
the program has served to create and maintain jobs; the extent to which
A. 3971 70
the program has helped to increase the vitality of local communities;
the extent to which the program is coordinated with other related state
and local assistance programs; the extent to which the program serves
minorities [and], women AND VETERANS; the extent to which the program
serves urban and rural areas; the extent to which the program serves
economically distressed and highly distressed areas; the extent to which
the program has helped to increase the capacity of local governments and
organizations to undertake economic development activities; and such
other components as the commissioner of economic development shall deem
appropriate; and shall make recommendations for improvements which would
make the program more effective. Such evaluation shall be submitted by
September first, nineteen hundred ninety-five and by September first
every two years thereafter.
§ 48. Paragraph (h) of subdivision 1 of section 16-e of section 1 of
chapter 174 of the laws of 1968, constituting the New York state urban
development corporation act, as added by chapter 169 of the laws of
1994, is amended to read as follows:
(h) "Revolving loan fund account grants" shall include: (i) grants to
provide the local match for federally funded community-based loan funds;
(ii) grants to capitalize and recapitalize regional revolving loan trust
fund accounts pursuant to section sixteen-a of this act; and (iii)
grants to recapitalize minority [and], women AND VETERAN revolving loan
trust fund accounts established pursuant to section sixteen-c of this
act.
§ 49. Subparagraph (i) of paragraph (c) of subdivision 5 of section
16-e of section 1 of chapter 174 of the laws of 1968, constituting the
New York state urban development corporation act, as added by chapter
169 of the laws of 1994, is amended to read as follows:
(i) business development by women, minorities, VETERANS or unemployed
persons;
§ 50. Subparagraphs (vi) and (ix) of paragraph (c) of subdivision 10
of section 16-e of section 1 of chapter 174 of the laws of 1968, consti-
tuting the New York state urban development corporation act, as added by
chapter 169 of the laws of 1994, are amended to read as follows:
(vi) management and procurement assistance to small business, includ-
ing minority- [and women-owned], WOMEN- AND VETERAN-OWNED businesses;
(ix) assistance to expand the capacity of existing entities adminis-
tering minority [and], women AND VETERAN revolving loan funds to deliver
services;
§ 51. Subdivision 13 of section 16-e of section 1 of chapter 174 of
the laws of 1968, constituting the New York state urban development
corporation act, as added by chapter 169 of the laws of 1994, is amended
to read as follows:
(13) Regional loan fund account grants. Assistance from this program
may be provided for grants of up to five hundred thousand dollars to
capitalize, and up to two hundred thousand dollars to recapitalize,
regional revolving loan trust fund accounts established pursuant to
section sixteen-a of this act and up to two hundred thousand dollars to
recapitalize minority [and], women AND VETERAN revolving loan trust fund
accounts established pursuant to section sixteen-c of this act; and up
to two hundred thousand dollars to provide the local match for appropri-
ately federally-financed community-based loan funds.
§ 52. Paragraph (d) of subdivision 18 of section 16-e of section 1 of
chapter 174 of the laws of 1968, constituting the New York state urban
development corporation act, as added by chapter 169 of the laws of
1994, is amended to read as follows:
A. 3971 71
(d) The participation of minority- [and women-owned], WOMEN- AND
VETERAN-OWNED businesses;
§ 53. Subdivision 1 of section 16-f of section 1 of chapter 174 of
the laws of 1968, constituting the New York state urban development
corporation act, as added by chapter 169 of the laws of 1994, is amended
to read as follows:
(1) Program created. There is hereby created a state bonding guaran-
tee assistance program to enable small businesses, and minority-owned
[and], women-owned AND VETERAN-OWNED business enterprises, certified as
a minority-owned [or], women-owned OR VETERAN-OWNED business enterprise
pursuant to article fifteen-A of the executive law, to meet payment
and/or performance bonding requirements by providing additional finan-
cial backing needed to induce a surety company to issue a bond for
construction projects, including but not limited to, government spon-
sored, transportation related construction projects. For purposes of
this section, the term small business shall have the same meaning as
defined in section one hundred thirty-one of the economic development
law. Such program shall give preference to minority-owned [and], women-
owned AND VETERAN-OWNED business enterprises and shall:
(a) Make available funds to surety companies providing bonds to small
businesses and [minority- owned or] MINORITY-OWNED, women-owned OR
VETERAN-OWNED business enterprises in an amount equal to a percentage
not to exceed fifty percent of the face value of bonds issued by the
surety.
(b) Provide technical assistance in completing bonding applications
for small businesses and minority-owned [or], women-owned OR VETERAN-
OWNED business enterprises seeking to become eligible for bonding in
preparation for bidding on construction projects, including transporta-
tion related projects. The corporation shall provide and may refer such
businesses to the department of economic development for technical
assistance as such businesses may need, including but not limited to:
(i) a review of the applicants' market and business competitive strat-
egy;
(ii) consultation and review of the development and planned implemen-
tation of a working capital budget;
(iii) assistance with applications for the receipt of funding from
other financial sources and providing referrals to other appropriate
public and private sources of financing; and
(iv) assistance from the regional offices of the department of econom-
ic development, pursuant to article eleven of the economic development
law, and the entrepreneurial assistance program, pursuant to article
nine of such law, and any other such program receiving state funds from
this act or the department of economic development or any other state
agency that is intended to provide technical assistance to small busi-
nesses and minority-owned [and], women-owned AND VETERAN-OWNED small
business enterprises.
§ 54. Intentionally omitted.
§ 55. Subparagraph (i) of paragraph (c) of subdivision 2 of section
16-k of section 1 of chapter 174 of the laws of 1968, constituting the
New York state urban development corporation act, as amended by chapter
103 of the laws of 2011, is amended to read as follows:
(i) provide a plan to the corporation or its agent for the marketing
of the capital access program to small businesses, including those in
highly distressed areas and to minority- [and], women-owned AND VETER-
AN-OWNED businesses, with appropriate lending objectives identified by
the financial institution for such areas and businesses;
A. 3971 72
§ 56. Subparagraph (i) of paragraph (e) of subdivision 2 of section
16-l of section 1 of chapter 174 of the laws of 1968, constituting the
New York state urban development corporation act, as added by chapter
471 of the laws of 2001, is amended to read as follows:
(i) innovative activities and programs designed to encourage value-ad-
ded small business development and growth in rural areas, including
cottage and crafts industries; group marketing of local products;
women-owned industries; VETERAN-OWNED INDUSTRIES; natural resources
development; and tourism. Such activities and programs shall also
include projects pertaining to agriculture and agribusiness development
to stimulate the development and implementation of new and alternative
production, processing, storage, distribution and marketing technologies
and improvements for New York food, agricultural and forest products.
Projects promoting strengthened farm management practices shall also be
eligible for assistance;
§ 57. Paragraph (g) of subdivision 1 of section 16-m of section 1 of
chapter 174 of the laws of 1968, constituting the New York state urban
development corporation act, as added by section 1 of part N of chapter
84 of the laws of 2002, is amended to read as follows:
(g) Assistance to local or regional organizations to facilitate
financing for small- and medium-sized business, including minority-
[and], women-owned AND VETERAN-OWNED business enterprises through flexi-
ble financing programs, including, but not limited to, loan loss reserve
and revolving loan programs, working capital loans, working capital loan
guarantees, or other flexible financing programs that leverage tradi-
tional financing;
§ 58. Subparagraph (i) of paragraph (e) of subdivision 7 of section
16-o of section 1 of chapter 174 of the laws of 1968, constituting the
New York state urban development corporation act, as added by chapter
186 of the laws of 2007, is amended to read as follows:
(i) provide jobs for low income people or are owned by low income
people, women, VETERANS or minority entrepreneurs; or
§ 59. Paragraph (b) of subdivision 1 of section 16-q of section 1 of
chapter 174 of the laws of 1968, constituting the New York state urban
development corporation act, as added by section 2 of part QQ of chapter
57 of the laws of 2008, is amended to read as follows:
(b) Support for the attraction or expansion of a business, including,
but not limited to, those primarily engaged in activities identified as
a strategic industry, and minority-owned [and], women-owned AND VETER-
AN-OWNED business enterprises as defined by subdivisions (c) and (g) of
section nine hundred fifty-seven of the general municipal law.
§ 60. Subdivisions 3 and 11 of section 16-t of section 1 of chapter
174 of the laws of 1968, constituting the New York state urban develop-
ment corporation act, subdivision 3 as amended by chapter 254 of the
laws of 2016 and subdivision 11 as amended by section 1 of part II of
chapter 59 of the laws of 2013, are amended to read as follows:
3. Program loans to small businesses and micro-businesses shall be
targeted and marketed to [minority and women-owned] MINORITY-, WOMEN-
AND VETERAN-OWNED enterprises and other small businesses and micro-busi-
nesses that are having difficulty accessing traditional credit markets.
Program loans to small businesses and micro-businesses shall be used for
the creation and retention of jobs, as defined by the corporation,
including: (a) working capital; (b) the acquisition and/or improvement
of real property; (c) the acquisition of machinery and equipment, prop-
erty or improvement; or (d) the refinancing of debt obligations. There
shall be two categories of loans to small businesses and micro-business-
A. 3971 73
es: a micro loan that shall have a principal amount that is less than
twenty-five thousand dollars and a regular loan that shall have a prin-
cipal amount not less than twenty-five thousand dollars. Prior to
receiving program funds, the lending organization must certify to the
corporation that such loan complies with this section and rules and
regulations promulgated for the program and that the lending organiza-
tion has performed its obligations pursuant to and is in compliance with
this section, the program rules and regulations and all agreements
entered into between the corporation and the lending organization. The
program funds amount used by the lending organization to fund a program
applicant loan shall not be more than fifty percent of the principal
amount of such loan. The program funds amount used by the lending organ-
ization to fund a program applicant loan shall not be greater than one
hundred and twenty-five thousand dollars. Minority- [and women-owned],
WOMEN- AND VETERAN-OWNED business enterprises and other small businesses
or micro-businesses who access such program loans under this subdivision
shall not be precluded from accessing such short-term financing loans
provided under subdivision eleven of this section.
11. Notwithstanding anything to the contrary in this section, the
corporation may provide at least five hundred thousand dollars in
program funds pursuant to this section to lending organizations for the
purpose of making short-term financing available to minority- [and
women-owned], WOMEN- AND VETERAN-OWNED business enterprises and other
small businesses performing contracts to provide construction or profes-
sional services for state procurement purposes. Such loans shall be used
to underwrite the cost of labor, materials, and equipment directly asso-
ciated with (1) the contract being financed or (2) a contract that has
been satisfied for which the business is awaiting payment from the
state. The program funds amount used by the lending organization to fund
a program applicant loan shall not be more than eighty percent of the
principal amount of such loan. The program funds amount used by the
lending organization to fund a program applicant loan shall not be
greater than one hundred twenty-five thousand dollars. Minority- [and
women-owned], WOMEN- AND VETERAN-OWNED business enterprises and other
small businesses who access such short-term financing loans under this
subdivision shall not be precluded from accessing such program loans
provided under subdivision three of this section.
§ 61. Subparagraph (xvi) of paragraph (b) of subdivision 2 of section
16-v of section 1 of chapter 174 of the laws of 1968, constituting the
New York state urban development corporation act, as added by section 1
of part C of chapter 59 of the laws of 2013, is amended to read as
follows:
(xvi) a plan to recruit minority- [and women-owned], WOMEN- AND VETER-
AN-OWNED businesses for location and participation with the incubator
program.
§ 62. Paragraph 1 of subdivision (c) of section 30 of section 1 of
chapter 174 of the laws of 1968, constituting the New York state urban
development corporation act, as amended by chapter 732 of the laws of
1990, is amended to read as follows:
(1) In addition to any other requirements imposed by the act or other-
wise regarding evaluations of programs administered by the corporation,
each evaluation shall include an analysis of the job creation effect of
such program, the number of small businesses that received assistance,
the number of [minority and women-owned] MINORITY-, WOMEN- AND VETERAN-
OWNED firms that received assistance, the number of projects undertaken
A. 3971 74
in distressed and highly distressed communities, and, if applicable, the
repayment experience of borrowers of funds from the corporation.
§ 63. Paragraph 2 of subdivision (e) of section 30-a of section 1 of
chapter 174 of the laws of 1968, constituting the New York state urban
development corporation act, as added by section 2 of part M1 of chapter
62 of the laws of 2003, is amended to read as follows:
(2) require projects to be financed out of the empire state economic
development fund be approved generally in amounts which are proportional
to amounts appropriated for the urban and community development program,
and the [minority and women-owned] MINORITY-, WOMEN AND VETERAN-OWNED
business development and lending program;
§ 64. Section 38 of section 1 of chapter 174 of the laws of 1968,
constituting the New York state urban development corporation act, as
amended by chapter 169 of the laws of 1994, is amended to read as
follows:
§ 38. Small business and minority-owned [and], women-owned AND VETER-
AN-OWNED business enterprises transportation capital assistance and
guaranteed loan program. 1. To provide financial assistance to small
business and minority-owned [and], women-owned AND VETERAN-OWNED busi-
ness enterprises engaged in government sponsored, transportation related
construction projects, the corporation shall establish a small business
and minority-owned [and], women-owned AND VETERAN-OWNED business enter-
prise transportation capital assistance revolving loan fund which shall
provide loans or loan guarantees to small business and minority-owned
[and], women-owned AND VETERAN-OWNED business enterprises. For purposes
of this section: (a) the term small business shall have the same meaning
as defined in section one hundred thirty-one of the economic development
law and (b) the term project shall mean a project of state agency or
authority that sponsors transportation related construction projects and
participates in this program and any definition of project contained
elsewhere in this act shall not apply.
2. Such loans, or loan guarantees for loans made by federally and
state chartered credit institutions, financial institutions, and feder-
ally insured banking organizations to small business and minority-owned
[and], women-owned AND VETERAN-OWNED business enterprises, shall be used
to (a) enable such businesses, through the acquisition, leasing or
improvement of real property, machinery or equipment, or through the
provision of working capital to secure service, commodity or
construction contracts; (b) restore working capital to such businesses
which have successfully completed work under a contract but whose
liquidity has been adversely affected by problems resulting from delayed
payments; and (c) ensure the completion of the work associated with a
governmental service, commodity or construction contract in order to
prevent default on such contract.
3. (a) To be eligible for such loans or loan guarantees (i) a minori-
ty-owned [or], women-owned OR VETERAN-OWNED business enterprise must be
certified as a minority-owned [or], women-owned OR VETERAN-OWNED busi-
ness enterprise pursuant to article 15-A of the executive law; and (ii)
a small business or a minority-owned [or], women-owned OR VETERAN-OWNED
business enterprise shall have a contract or sub-contract to provide
goods or services related to a government sponsored, transportation
related construction project.
(b) Only such business enterprises referred to the corporation by a
written application of a state agency or authority that sponsors trans-
portation related construction projects shall be eligible for program
assistance. Such assistance shall be provided to such an enterprise only
A. 3971 75
in connection with its performance as a contractor or sub-contractor on
a specific transportation related project of the referring agency or
authority. In order for such an agency or authority to refer such enter-
prises to the corporation, such agency or authority shall enter into a
master agreement with the corporation covering procedures and require-
ments for providing program assistance. The corporation shall determine
whether or not to approve such an agency's or authority's written appli-
cation for program assistance to such a business within twenty business
days of the corporation's receipt of such application. If it approves
the application, the corporation will provide assistance pursuant to the
applicable master agreement.
4. The corporation shall give preference to minority-owned [and],
women-owned AND VETERAN-OWNED business enterprises in making such loans
and loan guarantees and shall establish such other criteria as it may
deem necessary for this program and for any required amount that shall
be held in reserve for any guarantees made under this program.
5. Notwithstanding any inconsistent provision of law, general, special
or local, including pursuant to capital projects budget appropriations
or reappropriations, where applicable, the corporation is hereby author-
ized to enter into such agreements as may be necessary for the operation
and administration of a small business and minority-owned [and], women-
owned AND VETERAN-OWNED business enterprises transportation capital
assistance and guaranteed loan program.
6. The corporation is authorized to establish a revolving loan fund
account into which funds may be received and from which funds may be
expended for the aforementioned purposes.
7. The provisions of section ten and subdivision two of section
sixteen of this act shall not apply to assistance provided under this
program.
§ 65. Paragraph (a) of subdivision 1 of section 9-a of section 1 of
chapter 359 of the laws of 1968, constituting the facilities development
corporation act, as added by chapter 58 of the laws of 1987, is amended
to read as follows:
(a) The contractor will not discriminate against employees or appli-
cants for employment because of race, creed, color, national origin,
sex, age, disability, or marital status, and will undertake or continue
existing programs of affirmative action to ensure that minority group
persons [and], women AND VETERANS are afforded equal opportunity without
discrimination. Such programs shall include, but not be limited to,
recruitment, employment, job assignment, promotion, upgrading, demotion,
transfer, layoff, termination, rates of pay or other forms of compen-
sation, and selections for training or retraining, including apprentice-
ship and on-the-job training.
§ 66. Section 9-b of section 1 of chapter 359 of the laws of 1968,
constituting the facilities development corporation act, as added by
chapter 58 of the laws of 1987, is amended to read as follows:
§ 9-b. Minority [and women-owned], WOMEN AND VETERAN-OWNED business
enterprise program. 1. (a) Minority [and women-owned], WOMEN AND VETER-
AN-OWNED business enterprises shall be given the opportunity for mean-
ingful participation in all contracts executed by the corporation pursu-
ant to the provisions of this act other than contracts the cost of which
is borne solely by a municipality or municipalities. The corporation
shall establish measures and procedures to secure meaningful partic-
ipation and identify those contracts and items of work for which minori-
ty [and women-owned], WOMEN AND VETERAN-OWNED business enterprises may
best bid to actively and affirmatively promote and assist their partic-
A. 3971 76
ipation in the projects, so as to facilitate the award of a fair share
of contracts to such enterprises; provided, however, that nothing in
this act shall be construed to limit the ability of the corporation to
assure that qualified minority [and women-owned], WOMEN AND VETERAN-
OWNED business enterprises may participate in the program. For purposes
hereof, minority business enterprise shall mean any business enterprise
which is at least fifty-one per centum owned by, or in the case of a
publicly owned business, at least fifty-one per centum of the stock of
which is owned by citizens or permanent resident aliens who are Black,
Hispanic, Asian or American Indian, Pacific Islander or Alaskan natives
and such ownership interest is real, substantial and continuing and have
the authority to independently control the day to day business decisions
of the entity for at least one year; and women-owned business enterprise
shall mean any business enterprise which is at least fifty-one per
centum owned by, or in the case of a publicly owned business, at least
fifty-one per centum of the stock of which is owned by citizens or
permanent resident aliens who are women, and such ownership interest is
real, substantial and continuing and have the authority to independently
control the day to day business decisions of the entity for at least one
year; AND VETERAN-OWNED BUSINESS ENTERPRISE SHALL MEAN ANY BUSINESS
ENTERPRISE WHICH IS AT LEAST FIFTY-ONE PER CENTUM OWNED BY, OR IN THE
CASE OF A PUBLICLY OWNED BUSINESS, AT LEAST FIFTY-ONE PER CENTUM OF THE
STOCK OF WHICH IS OWNED BY CITIZENS OR PERMANENT RESIDENT ALIENS WHO ARE
VETERANS, AND SUCH OWNERSHIP INTEREST IS REAL, SUBSTANTIAL AND CONTINU-
ING AND HAVE THE AUTHORITY TO INDEPENDENTLY CONTROL THE DAY TO DAY BUSI-
NESS DECISIONS OF THE ENTITY FOR AT LEAST ONE YEAR.
The provisions of this paragraph shall not be construed to limit the
ability of any minority [or women-owned], WOMEN OR VETERAN-OWNED busi-
ness enterprise to bid on any contract.
(b) In the implementation of this section, the corporation shall
consider compliance by any contractor with the requirements of any
federal, state, or local law concerning minority [and women-owned],
WOMEN OR VETERAN-OWNED business enterprises, which may effectuate the
requirements of this section. If the corporation determines that by
virtue of the imposition of the requirements of any such law, in respect
to contracts, the provisions thereof duplicate or conflict with this
section, the corporation may waive the applicability of this section to
the extent of such duplication or conflict.
(c) Nothing in this section shall be deemed to require that overall
state and federal requirements for participation of minority [and
women-owned], WOMEN AND VETERAN-OWNED business enterprises in programs
authorized under this act be applied without regard to local circum-
stances to all projects or in all communities.
2. In order to implement the requirements and objectives of this
section, the corporation shall establish procedures to monitor the
contractors' compliance with provisions hereof, provide assistance in
obtaining competing qualified minority [and women-owned], WOMEN AND
VETERAN-OWNED business enterprises to perform contracts proposed to be
awarded, and take other appropriate measures to improve the access of
minority [and women-owned], WOMEN AND VETERAN-OWNED business enterprises
to these contracts.
§ 67. Paragraph a of subdivision 1 of section 16-a of section 1 of
chapter 392 of the laws of 1973, constituting the New York state medical
care facilities finance agency act, as added by chapter 58 of the laws
of 1987, is amended to read as follows:
A. 3971 77
a. The contractor will not discriminate against employees or appli-
cants for employment because of race, creed, color, national origin,
sex, age, disability, or marital status, and will undertake or continue
existing programs of affirmative action to ensure that minority group
persons [and], women AND VETERANS are afforded equal opportunity without
discrimination. Such programs shall include, but not be limited to,
recruitment, employment, job assignment, promotion, upgrading, demotion,
transfer, layoff, termination, rates of pay or other forms of compen-
sation, and selections for training or retraining, including apprentice-
ship and on-the-job training.
§ 68. Section 16-b of section 1 of chapter 392 of the laws of 1973,
constituting the New York state medical care facilities finance agency
act, as added by chapter 58 of the laws of 1987, is amended to read as
follows:
§ 16-b. Minority [and women-owned], WOMEN AND VETERAN-OWNED business
enterprise program. 1. a. In the performance of projects pursuant to
this act minority [and women-owned], WOMEN AND VETERAN-OWNED business
enterprises shall be given the opportunity for meaningful participation.
The agency shall establish measures and procedures to secure meaningful
participation and identify those contracts and items of work for which
minority [and women-owned], WOMEN AND VETERAN-OWNED business enterprises
may best bid to actively and affirmatively promote and assist their
participation in the projects, so as to facilitate the award of a fair
share of contracts to such enterprises; provided, however, that nothing
in this act shall be construed to limit the ability of the agency to
assure that qualified minority [and women-owned], WOMEN AND VETERAN-
OWNED business enterprises may participate in the program. For purposes
hereof, minority business enterprise shall mean any business enterprise
which is at least fifty-one per centum owned by, or in the case of a
publicly owned business, at least fifty-one per centum of the stock of
which is owned by citizens or permanent resident aliens who are Black,
Hispanic, Asian or American Indian, Pacific Islander or Alaskan natives
and such ownership interest is real, substantial and continuing and have
the authority to independently control the day to day business decisions
of the entity for at least one year; and women-owned business enterprise
shall mean any business enterprise which is at least fifty-one per
centum owned by, or in the case of a publicly owned business, at least
fifty-one per centum of the stock of which is owned by citizens or
permanent resident aliens who are women, and such ownership interest is
real, substantial and continuing and have the authority to independently
control the day to day business decisions of the entity for at least one
year; AND VETERAN-OWNED BUSINESS ENTERPRISE SHALL MEAN ANY BUSINESS
ENTERPRISE WHICH IS AT LEAST FIFTY-ONE PER CENTUM OWNED BY, OR IN THE
CASE OF A PUBLICLY OWNED BUSINESS, AT LEAST FIFTY-ONE PER CENTUM OF THE
STOCK OF WHICH IS OWNED BY CITIZENS OR PERMANENT RESIDENT ALIENS WHO ARE
VETERANS AND SUCH OWNERSHIP INTEREST IS REAL, SUBSTANTIAL AND CONTINUING
AND HAVE THE AUTHORITY TO INDEPENDENTLY CONTROL THE DAY TO DAY BUSINESS
DECISIONS OF THE ENTITY FOR AT LEAST ONE YEAR.
The provisions of this paragraph shall not be construed to limit the
ability of any minority [or women-owned], WOMEN OR VETERAN-OWNED busi-
ness enterprise to bid on any contract.
b. In the implementation of this section, the agency shall consider
compliance by any contractor with the requirements of any federal,
state, or local law concerning minority [and women-owned], WOMEN AND
VETERAN-OWNED business enterprises, which may effectuate the require-
ments of this section. If the department or the office determines that
A. 3971 78
by virtue of the imposition of the requirements of any such law, in
respect to contracts, the provisions thereof duplicate or conflict with
this act, the agency may waive the applicability of this section to the
extent of such duplication or conflict.
c. Nothing in this section shall be deemed to require that overall
state and federal requirements for participation of minority [and
women-owned], WOMEN AND VETERAN-OWNED business enterprises in programs
authorized under this act be applied without regard to local circum-
stances to all projects or in all communities.
2. In order to implement the requirements and objectives of this
section, the agency shall establish procedures to monitor the contrac-
tors' compliance with provisions hereof, provide assistance in obtaining
competing qualified minority [and women-owned], WOMEN AND VETERAN-OWNED
business enterprises to perform contracts proposed to be awarded, and
take other appropriate measures to improve the access of minority [and
women-owned], WOMEN AND VETERAN-OWNED business enterprises to these
contracts.
§ 69. This act shall take effect on the sixtieth day after it shall
have become a law; provided however,
a. the amendments to article 15-A of the executive law made by
sections one-a, two, three, three-a, four, five, six, seven, eight,
nine, ten, eleven, twelve and thirteen of this act shall not affect the
expiration of such article and shall expire therewith;
b. that if local law 113 for the year 2016 shall not have taken effect
on or before such date, then the amendments to paragraphs (14) and (15)
of subdivision e of section 6-129 of the administrative code of the city
of New York made by section thirty-one of this act shall take effect on
the same date and in the same manner as such local law for the year 2016
takes effect;
c. the amendments to the second undesignated paragraph of subdivision
1 of section 12 of section 1 of chapter 174 of the laws of 1968, consti-
tuting the New York state urban development corporation act, made by
section forty-one of this act shall not affect the expiration and repeal
of such paragraph and shall be deemed to expire and be repealed there-
with; and
d. the amendments to paragraph (g) of subdivision 1 of section 16-m of
section 1 of chapter 179 of the laws of 1968, constituting the New York
state urban development corporation act, made by section fifty-seven of
this act shall not affect the expiration of such paragraph and shall be
deemed to expire therewith.
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