Bill Text: NY A01266 | 2023-2024 | General Assembly | Introduced

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Bill Title: Requires contracting agencies to contact minority and women-owned business enterprises when such enterprise is listed on a utilization plan and when a contract is awarded; mandates that the prime contractor use such enterprise identified on the utilization plan, unless such enterprise cannot perform or is no longer state certified.

Spectrum: Partisan Bill (Democrat 9-0)

Status: (Introduced) 2024-01-03 - referred to governmental operations [A01266 Detail]

Download: New_York-2023-A01266-Introduced.html

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                STATE OF NEW YORK
        ________________________________________________________________________

                                          1266

                               2023-2024 Regular Sessions

                   IN ASSEMBLY

                                    January 13, 2023
                                       ___________

        Introduced  by  M.  of A. BICHOTTE HERMELYN, SIMON, ZINERMAN, SEAWRIGHT,
          JACKSON -- read once and referred to  the  Committee  on  Governmental
          Operations

        AN  ACT to amend the executive law, in relation to requiring contracting
          agencies to contact minority and women-owned business enterprises when
          such enterprise is listed on a utilization plan and when a contract is
          awarded

          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:

     1    Section  1.  Paragraphs (a) and (b) of subdivision 5 of section 313 of
     2  the executive law, as amended by chapter 96 of the  laws  of  2019,  are
     3  amended and six new paragraphs (b-1), (b-2), (b-3), (b-4), (b-5) and (d)
     4  are added to read as follows:
     5    (a)  Contracting  agencies  shall administer the rules and regulations
     6  promulgated by the director in a good faith effort to achieve the  maxi-
     7  mum  feasible participation by [minority] both minority-owned and [women
     8  owned] women-owned business enterprises adopted pursuant to this article
     9  and the regulations of the director  prior  to  the  prime  contractor's
    10  inception  of  the  scope  of work outlined in an awarded contract. Such
    11  rules and regulations: shall require a prime contractor  to  [submit  a]
    12  utilize  the minority and women-owned business enterprises listed on the
    13  utilization plan [after] submitted when bids are opened, [when bids  are
    14  required,  but  prior]  provided  that the minority-owned or women-owned
    15  business enterprise is still certified with New York state. Prior to the
    16  award of a state contract[; shall require] with minority and women-owned
    17  business enterprise goals the contracting agency [to] shall  review  the
    18  utilization  plan  submitted by the prime contractor and [to] shall post
    19  the utilization plan and any waivers of compliance  issued  pursuant  to
    20  subdivision  six of this section on the website of the contracting agen-
    21  cy[; shall require the]. Within five business days after an award letter
    22  is sent to the prime contractor, the contracting agency shall submit  an

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD01171-01-3
        A. 1266                             2

     1  award  notification  letter  to  the  minority  and women-owned business
     2  enterprise listed on the utilization plan. The minority and  women-owned
     3  business  enterprise listed on the original utilization plan at the time
     4  of  submission  shall  not be amended or changed by the contractor after
     5  submission to the contracting agency for approval. The contracting agen-
     6  cy shall be required to notify the prime contractor in writing within [a
     7  period of time specified by the director] ten days as to  any  deficien-
     8  cies contained in the contractor's utilization plan[;] and shall require
     9  remedy thereof within [a period of time specified by the director; shall
    10  require the contractor to submit periodic compliance reports relating to
    11  the operation and implementation of any utilization plan;] seven days of
    12  such  notification. The contracting agency shall not allow any automatic
    13  waivers but shall allow a contractor to apply for  a  partial  or  total
    14  waiver of the minority and women-owned business enterprise participation
    15  requirements  pursuant  to  subdivisions  six and seven of this section;
    16  shall allow a contractor to file a complaint with the director  pursuant
    17  to  subdivision  eight of this section in the event a contracting agency
    18  has failed or refused to issue a waiver of the minority and  women-owned
    19  business  enterprise  participation  requirements  or  has  denied  such
    20  request for a waiver; and shall allow a contracting  agency  to  file  a
    21  complaint with the director pursuant to subdivision nine of this section
    22  in  the  event  a contractor is failing or has failed to comply with the
    23  minority and women-owned business enterprise participation  requirements
    24  set forth in the state contract where no waiver has been granted.
    25    (b) The rules and regulations promulgated pursuant to this subdivision
    26  regarding  a  utilization plan shall provide that where enterprises have
    27  been identified within a utilization plan, a contractor  shall  attempt,
    28  in  good faith, to utilize such enterprise [at least to the extent indi-
    29  cated], unless such enterprise cannot perform under the contract or such
    30  enterprise is no longer certified by the state. A contracting agency may
    31  require a contractor to indicate, within a utilization plan, what  meas-
    32  ures  and  procedures  he  or  she  intends  to  take to comply with the
    33  provisions of this article[, but may not  require,  as  a  condition  of
    34  award  of,  or  compliance  with, a contract that a contractor utilize a
    35  particular enterprise in performance of the contract].
    36    (b-1) After the  contracting  agency  awards  a  contract,  the  prime
    37  contractor  shall execute a subcontractor's agreement and provide a work
    38  assignment to the minority and women-owned business  enterprises  listed
    39  in  the  utilization plan within forty-five days of such award.  Failure
    40  to comply with this requirement shall result in disqualification of  the
    41  prime  contractor and the contracting agency shall re-award the contract
    42  to the next lowest bidder or eligible bidder.
    43    (b-2) After receiving the first payment on  the  contract,  the  prime
    44  contractor  shall make payments to the minority and women-owned business
    45  enterprise for work performed under the contract within twenty  days  of
    46  receipt of each payment received from the contracting agency. A minority
    47  and women-owned business enterprise may notify the contracting agency of
    48  any  violation  of  this  paragraph  by  the  prime  contractor  and the
    49  contracting agency shall then notify the  prime  contractor  to  correct
    50  such  deficiency  within  ten  days  of notification. The failure of the
    51  contractor to make such payments to the minority and  women-owned  busi-
    52  ness  enterprise  shall  result  in disqualification and the contracting
    53  agency shall re-award such contract to the next lowest bidder or  eligi-
    54  ble bidder.
        A. 1266                             3

     1    (b-3)  A prime contractor which is a certified minority-owned business
     2  may self-certify and perform under the contract to meet  the  contract's
     3  minority-owned business enterprise goals.
     4    (b-4) A prime contractor which is a certified women-owned business may
     5  self-certify  and  perform  under  the  contract  to meet the contract's
     6  women-owned business enterprise goal only, and it must utilize a  certi-
     7  fied minority-owned business enterprise to perform under the contract to
     8  meet the contract's minority-owned business goals.
     9    (b-5)  A prime contractor which is dually certified minority-owned and
    10  women-owned business enterprise may self-certify and perform  under  the
    11  contract  to meet the contract's minority-owned and women-owned business
    12  enterprise goals.
    13    (d) This subdivision shall apply  to  all  public  contracts  where  a
    14  public  agency  issues  a request for proposals, notwithstanding whether
    15  the contract could otherwise be awarded through the agency's discretion-
    16  ary contract award process  or  the  non-existence  of  a  discretionary
    17  contract award process within the public agency.
    18    §  2.  This act shall take effect immediately; provided, however, that
    19  the amendments to subdivision 5 of section 313 of the executive law made
    20  by section one of this act shall not affect the repeal of  such  section
    21  and shall be deemed repealed therewith.