Bill Text: NY A03963 | 2023-2024 | General Assembly | Introduced
Bill Title: Relates to increased participation in state contracts and subcontracts by certified minority and women-owned business enterprises; requires quarterly reports from contracting agencies; addresses consequences if contracting agency fails to comply with reporting requirements; relates to certain performance and payment bond requirements.
Spectrum: Partisan Bill (Democrat 6-0)
Status: (Introduced) 2024-01-03 - referred to governmental operations [A03963 Detail]
Download: New_York-2023-A03963-Introduced.html
STATE OF NEW YORK ________________________________________________________________________ 3963 2023-2024 Regular Sessions IN ASSEMBLY February 8, 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 participation by minority group members and women with respect to certain state contracts; and to amend the state finance law, in relation to perform- ance and payment bond requirements The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. Subdivisions 3 and 4 of section 311 of the executive law, 2 subdivision 3 as added by chapter 261 of the laws of 1988, paragraphs 3 (d) and (e) of subdivision 3 as amended by chapter 55 of the laws of 4 1992, paragraphs (f) and (j) as amended and paragraphs (l), (m) and (n) 5 of subdivision 3 as added by chapter 567 of the laws of 2022, the open- 6 ing paragraph of subdivision 4 as amended and paragraph (d-1) of subdi- 7 vision 3 and paragraphs (d) and (e) of subdivision 4 as added by chapter 8 96 of the laws of 2019, paragraph (g) of subdivision 3 as amended by 9 section 1 of part BB of chapter 59 of the laws of 2006, paragraphs (h) 10 and (i) as amended and paragraph (k) of subdivision 3 as added by chap- 11 ter 825 of the laws of 2021, and subdivision 4 as amended by chapter 361 12 of the laws of 2009, are amended to read as follows: 13 3. The director shall have the following powers and duties: 14 (a) to encourage and assist contracting agencies in their efforts to 15 increase participation by minority and women-owned business enterprises 16 on state contracts and subcontracts [so as] to facilitate the award of a 17 fair share of such contracts to them and to provide on the division's 18 website a list of each contracting agency's minority and women-owned 19 business enterprises certification outreach seminars; 20 (b) to develop standardized forms and reporting documents necessary to 21 implement this article; EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD05916-01-3A. 3963 2 1 (c) to conduct educational outreach programs to encourage the certif- 2 ication of minority and women-owned business enterprises consistent with 3 the purposes of this article; 4 (d) to review [periodically] quarterly the practices and procedures of 5 each contracting agency with respect to compliance with the provisions 6 of this article, and to require them to file [periodic] quarterly 7 reports with the division of minority and women's business development 8 as to the level of minority and women-owned business enterprises partic- 9 ipation in the awarding of agency contracts for goods and services 10 including but not limited to the number of state contracts awarded to 11 certified minority or women-owned business enterprises, the maximum 12 dollar amount obligated pursuant to all those contracts, and the total 13 expenditures made pursuant to all such contracts; the number of state 14 contracts awarded which include a utilization plan for business partic- 15 ipation by certified minority or women-owned business enterprises, the 16 maximum amount obligated pursuant to those contracts, and the total 17 expenditures made pursuant to all such contracts; the number of state 18 contracts awarded upon which a waiver was granted from goals required by 19 the contracts for business participation by certified minority or 20 women-owned business enterprises, and the maximum amount obligated 21 pursuant to those contracts; the number of state contracts awarded which 22 required goals for employment of minority group members and women; and 23 the number of state contracts awarded for which waivers of employment 24 goals required by the contracts have been granted; 25 (d-1) to require all contracting state agencies to develop a four-year 26 growth plan to determine a means of promoting and increasing partic- 27 ipation by [minority-owned] minority and women-owned business enter- 28 prises with respect to state contracts and subcontracts. Every four 29 years, beginning September fifteenth, two thousand twenty, each 30 contracting state agency shall submit a four-year growth plan as part of 31 its annual report to the governor and legislature pursuant to section 32 one hundred sixty-four of this chapter. 33 (e) on January first of each year report to the governor, the tempo- 34 rary president of the senate, the speaker of the assembly, the minority 35 leaders of the senate and the assembly, and the chairpersons of the 36 senate finance and assembly ways and means committees on the [level] 37 actual versus projected levels of minority and women-owned business 38 enterprises participating in each agency's contracts for goods [and], 39 services and construction, including but not limited to the number of 40 state contracts awarded to certified minority or women-owned business 41 enterprises, the maximum dollar amount obligated pursuant to all those 42 contracts, and the total expenditures made pursuant to all such 43 contracts, and on activities of the office and effort by each contract- 44 ing agency to promote employment of minority group members and women, 45 and to promote and increase participation by certified businesses with 46 respect to state contracts and subcontracts so as to facilitate the 47 award of a fair share of state contracts to such businesses. The comp- 48 troller shall assist the division in collecting information on the 49 participation of certified business for each contracting agency. Such 50 report may recommend new activities and programs to effectuate the 51 purposes of this article; 52 (f) the director shall list in the division's annual report the names 53 of non-compliant agencies and the extent of their noncompliance in 54 submitting its quarterly minority and women-owned business enterprise 55 utilization reports; and, shall implement a master list of all the stateA. 3963 3 1 agencies required to file quarterly compliance reports and shall attach 2 such list to the division's annual report. 3 (g) to prepare and update[, no less than annually,] quarterly a direc- 4 tory of certified minority and women-owned business enterprises which 5 shall, wherever practicable, be divided into categories of labor, 6 services, supplies, equipment, materials and recognized construction 7 trades and which shall indicate areas or locations of the state where 8 such enterprises are available to perform services, and to use this 9 information to create an internet based, searchable, centralized state 10 registry detailing certifications, waivers, and all documents submitted 11 pertaining to certification or denial of certification, or compliance 12 with goals for utilization of minority and women-owned business enter- 13 prises and for such enterprises to access contract and subcontract 14 opportunities; 15 [(g)] (h) to appoint independent hearing officers who by contract or 16 terms of employment shall preside over adjudicatory hearings pursuant to 17 section three hundred fourteen of this article for the office and who 18 are assigned no other work by the office; 19 [(h)] (i) notwithstanding the provisions of section two hundred nine- 20 ty-six of this chapter, to file a complaint pursuant to the provisions 21 of section two hundred ninety-seven of this chapter where the director 22 has knowledge that a contractor may have violated the provisions of 23 paragraph (a), (b) or (c) of subdivision one of section two hundred 24 ninety-six of this chapter where such violation is unrelated, separate 25 or distinct from the state contract as expressed by its terms; 26 [(i)] (j) to streamline the state certification process to accept 27 federal and municipal corporation certifications; 28 [(j)] (k) to make publicly available records of all waivers of compli- 29 ance reported pursuant to paragraph (b) of subdivision six of section 30 three hundred thirteen of this article on the division's website; 31 [(k)] (l) to work in conjunction with the industrial commissioner 32 pursuant to paragraph (j) of subdivision one of section eight hundred 33 eleven of the labor law to assist contractors in identifying minority 34 group members and women who are participating in apprenticeship agree- 35 ments under article twenty-three of the labor law[.]; 36 [(l)] (m) to perform inspections of minority or women-owned business's 37 place of business, warehouse or storage facility to confirm the exist- 38 ence of a workforce, equipment and supplies; 39 [(m)] (n) to perform inspections of financial records of minority or 40 women-owned business enterprises to ensure such enterprises are in 41 compliance with applicable laws; and 42 [(n)] (o) to ensure the protection of individuals who report suspected 43 violations of this article and applicable laws related to minority and 44 women-owned business enterprises. 45 4. The director shall provide assistance to, and facilitate access to 46 programs serving certified businesses as well as applicants to ensure 47 that such businesses benefit, as needed, from technical, managerial and 48 financial, and general business assistance; training; marketing; organ- 49 ization and personnel skill development; project management assistance; 50 technology assistance; bond and insurance education assistance; and 51 other business development assistance. The director shall maintain a 52 toll-free number at the department of economic development to be used to 53 answer questions concerning the MWBE certification process. In addition, 54 the director [may] shall, either independently or in conjunction with 55 other state agencies:A. 3963 4 1 (a) develop a clearinghouse of information on programs and services 2 provided by entities that may assist such businesses; 3 (b) review bonding and paperwork requirements imposed by contracting 4 agencies that may unnecessarily impede the ability of such businesses to 5 compete; and 6 (c) seek to maximize utilization by minority and women-owned business 7 enterprises of available federal resources including but not limited to 8 federal grants, loans, loan guarantees, surety bonding guarantees, tech- 9 nical assistance, and programs and services of the federal small busi- 10 ness administration. 11 (d) conduct outreach events, training workshops, seminars, and other 12 such educational programs throughout the state, including all regional 13 offices, to state agencies, external stakeholders, and the public, to 14 promote awareness and utilization of minority and women-owned business 15 enterprises; and 16 (e) identify and establish mentorship opportunities and other business 17 development programs to increase capacity and better prepare MWBEs for 18 bidding on contracts with state agencies upon successful completion of 19 the mentorship opportunity. Such mentorship opportunities shall be 20 intended to ensure that mentor and mentee are connected based on a 21 commercially useful function. 22 § 2. Subdivision 5 of section 312 of the executive law, as added by 23 chapter 261 of the laws of 1988, is amended to read as follows: 24 5. The director shall promulgate rules and regulations to ensure that 25 contractors and subcontractors undertake programs of affirmative action 26 and equal employment opportunity as required by this section. Such rules 27 and regulations as they pertain to any particular agency shall be devel- 28 oped after consultation with contracting agencies. Such rules and regu- 29 lations [may] shall require a contractor, after notice in a bid solic- 30 itation, to submit an equal employment opportunity program [after bid31opening and prior to the award of any contract] at the time bids are 32 submitted, and [may] shall require the contractor or subcontractor to 33 submit compliance reports relating to the contractor's or subcontrac- 34 tor's operation and implementation of any equal employment opportunity 35 program in effect as of the date the contract is executed. The contract- 36 ing agency [may recommend to the director that] shall have the right to 37 recommend that the director take appropriate action according to the 38 procedures set forth in section three hundred sixteen of this article 39 against the contractor for noncompliance with the requirements of this 40 section. The contracting agency shall be responsible for monitoring 41 compliance with this section. 42 § 3. Paragraph (j) of subdivision 2-a of section 313 of the executive 43 law, as amended by chapter 96 of the laws of 2019, is amended and a new 44 paragraph (k) is added to read as follows: 45 (j) require each agency to consult the most current disparity study 46 when calculating agency-wide and contract specific participation goals 47 pursuant to this article; [and] 48 (k) encourage joint ventures, partnerships, and mentor-protege 49 relationships as defined in section one hundred forty-seven of the state 50 finance law, between prime contractors and minority and women-owned 51 business enterprises; and 52 § 4. Subdivision 3 and paragraph (a) of subdivision 5 of section 313 53 of the executive law, as amended by chapter 96 of the laws of 2019, are 54 amended to read as follows: 55 3. Solely for the purpose of providing the opportunity for [meaning-56ful] increased participation by certified businesses in the performanceA. 3963 5 1 of state contracts as provided in this section, state contracts shall 2 include leases of real property by a state agency to a lessee where: the 3 terms of such leases provide for the construction, demolition, replace- 4 ment, major repair or renovation of real property and improvements ther- 5 eon by such lessee; and the cost of such construction, demolition, 6 replacement, major repair or renovation of real property and improve- 7 ments thereon shall exceed the sum of one hundred thousand dollars. 8 Reports to the director pursuant to section three hundred fifteen of 9 this article shall include activities with respect to all such state 10 contracts. Contracting agencies shall include or require to be included 11 with respect to state contracts for the acquisition, construction, demo- 12 lition, replacement, major repair or renovation of real property and 13 improvements thereon, such provisions as [may] shall be necessary to 14 effectuate the provisions of this section in every bid specification and 15 state contract, including, but not limited to: (a) provisions requiring 16 contractors to make a good faith effort to solicit active participation 17 by enterprises identified in the directory of certified businesses; (b) 18 requiring the parties to agree as a condition of entering into such 19 contract, to be bound by the provisions of section three hundred sixteen 20 of this article; and (c) requiring the contractor to include the 21 provisions set forth in paragraphs (a) and (b) of this subdivision in 22 every subcontract in a manner that the provisions will be binding upon 23 each subcontractor as to work in connection with such contract. 24 Provided, however, that no such provisions shall be binding upon 25 contractors or subcontractors in the performance of work or the 26 provision of services that are unrelated, separate or distinct from the 27 state contract as expressed by its terms, and nothing in this section 28 shall authorize the director or any contracting agency to impose any 29 requirement on a contractor or subcontractor except with respect to a 30 state contract. 31 (a) Contracting agencies shall administer the rules and regulations 32 promulgated by the director in a good faith effort to achieve the maxi- 33 mum feasible participation by minority and women owned business enter- 34 prises adopted pursuant to this article and the regulations of the 35 director. Such rules and regulations: shall require a contractor to 36 submit a utilization plan [after bids are opened] at the time bids are 37 submitted, when bids are required[, but prior to the award of a state38contract]; shall require the contracting agency to review the utiliza- 39 tion plan submitted by the contractor and to post the utilization plan 40 and any waivers of compliance issued pursuant to subdivision six of this 41 section on the website of the contracting agency; shall require the 42 contracting agency to notify the contractor in writing within a period 43 of time specified by the director as to any deficiencies contained in 44 the contractor's utilization plan; shall require remedy thereof within a 45 period of time specified by the director; shall require the contractor 46 to submit [periodic] quarterly compliance reports relating to the opera- 47 tion and implementation of any utilization plan; shall not allow any 48 automatic waivers but shall allow a contractor to apply for a partial or 49 total waiver of the minority and women-owned business enterprise partic- 50 ipation requirements pursuant to subdivisions six and seven of this 51 section; shall allow a contractor to file a complaint with the director 52 pursuant to subdivision eight of this section in the event a contracting 53 agency has failed or refused to issue a waiver of the minority and 54 women-owned business enterprise participation requirements or has denied 55 such request for a waiver; and shall allow a contracting agency to file 56 a complaint with the director pursuant to subdivision nine of thisA. 3963 6 1 section in the event a contractor is failing or has failed to comply 2 with the minority and women-owned business enterprise participation 3 requirements set forth in the state contract where no waiver has been 4 granted. 5 § 5. Subdivisions 1, 2-a and 3 of section 315 of the executive law, 6 subdivisions 1 and 3 as amended and subdivision 2-a as added by chapter 7 96 of the laws of 2019, are amended and two new subdivisions 3-a and 8 8 are added to read as follows: 9 1. Each contracting agency shall be responsible for monitoring state 10 contracts under its jurisdiction, and recommending matters to the office 11 respecting non-compliance with the provisions of this article so that 12 the office [may] shall take such action as [is appropriate] stated in 13 subdivision three of section three hundred sixteen of this article. Each 14 contracting agency shall have the right to recommend that the director 15 impose a sanction, penalty, or fine for three or more violations of 16 subdivision one of section three hundred sixteen of this article, to 17 ensure compliance with the provisions of this article, the rules and 18 regulations of the director issued hereunder and the contractual 19 provisions required pursuant to this article. All contracting agencies 20 shall comply with the rules and regulations of the office and are 21 directed to cooperate with the office and to furnish to the office such 22 information and assistance as may be required in the performance of its 23 functions under this article. 24 2-a. [To the extent practicable, upon completion of the restrictive25period of a procurement, each] Each contracting agency when notifying a 26 contractor of a winning bid award shall also notify any minority or 27 women-owned business enterprise identified in the contractor's submitted 28 utilization plan of such contractor's receipt of the winning bid award. 29 3. Each contracting agency shall report to the commissioner of econom- 30 ic development, the commissioner of general services and the director 31 with respect to activities undertaken to promote employment of minority 32 group members and women and promote and increase participation by certi- 33 fied businesses with respect to state contracts and subcontracts. Such 34 reports shall be submitted [no later than May fifteenth of every year] 35 quarterly and shall include such information as is necessary for the 36 director to determine whether the contracting agency and any contractor 37 to the contracting agency have complied with the purposes of this arti- 38 cle, including, without limitation, the number of state contracts 39 awarded to certified minority or women-owned business enterprises; the 40 maximum dollar amount obligated pursuant to all those contracts; and the 41 total expenditures made pursuant to all such contracts; the number of 42 state contracts awarded which include a utilization plan for business 43 participation by certified minority or women-owned business enterprises, 44 the maximum amount obligated pursuant to those contracts, and the total 45 expenditures made pursuant to all such contracts; a summary of all waiv- 46 ers of the requirements of subdivisions six and seven of section three 47 hundred thirteen of this article allowed by the contracting agency 48 during the period covered by the report, including a description of the 49 basis of the waiver request [and], the rationale for granting any such 50 waiver, the maximum amount obligated pursuant to those contracts; the 51 number of state contracts awarded which required goals for employment of 52 minority group members and women; the number of state contracts awarded 53 for which waivers of employment goals required by the contracts have 54 been granted, and any instances in which the contract agency has deemed 55 a contractor to have committed a violation pursuant to section three 56 hundred sixteen of this article and such other information as the direc-A. 3963 7 1 tor shall require. Each agency shall also include in such annual report 2 whether or not it has been required to prepare a remedial plan, and, if 3 so, the plan and the extent to which the agency has complied with each 4 element of the plan. 5 3-a. Within thirty days after completion, a copy of the quarterly 6 minority and women-owned business enterprise report shall be transmitted 7 to the commissioner of economic development, the commissioner of general 8 services, and the director. A contracting agency, which has not let more 9 than two million dollars in service and/or construction contracts within 10 the applicable period may apply to the commissioner of economic develop- 11 ment, and the director for a waiver of the required annual report. The 12 waiver application shall be made on such form as the commissioner of 13 economic development and the director may prescribe. 14 8. If a contracting agency shall fail to file or substantially 15 complete, as determined by the commissioner of economic development and 16 the director, the report required by this section, the director shall 17 provide notice to the contracting agency. The notice shall state the 18 following: 19 (a) that the failure to file a report as required is a violation of 20 this section, or in the case of an insufficient report, the manner in 21 which the report submitted is deficient; 22 (b) that the contracting agency has thirty days to comply with this 23 section or provide an adequate written explanation to the commissioner 24 of economic development and the commissioner of general services and the 25 director of the contracting agency's reasons for the inability to 26 comply; and 27 (c) that the contracting agency's continued failure to provide either 28 the required report or an adequate explanation will result in an inde- 29 pendent audit of the contracting agency, the cost of which shall be 30 borne by the contracting agency. 31 § 6. Section 316 of the executive law, as amended by chapter 567 of 32 the laws of 2022, is amended to read as follows: 33 § 316. [Enforcement] Violations and enforcement. 1. It shall be a 34 violation for any person or entity to: 35 (a) intentionally use or acquire an MWBE name through deceit or other 36 dishonest means in order to negotiate a lower bid from a non-MWBE. 37 (b) submit to the department of economic development, documents or 38 other material as evidence of a good faith effort to comply with the 39 provisions of this article without, in fact, having entered into any 40 contract, agreement, subcontract, or sub-agreement with an MWBE for the 41 use or purchase of such business enterprise's goods or services in the 42 performance of the awarded state contract. 43 (c) fail to provide an MWBE with sufficient information or other 44 required supporting documentation in order for the MWBE to prepare a 45 proper bid. 46 2. Upon receipt by the director of a complaint by a contracting agency 47 that a contractor has violated the provisions of a state contract which 48 have been included to comply with the provisions of this article or of a 49 contractor that a contracting agency has violated such provisions or has 50 failed or refused to issue a waiver where one has been applied for 51 pursuant to subdivision six of section three hundred thirteen of this 52 article or has denied such application, the director shall attempt to 53 resolve the matter giving rise to such complaint. If efforts to resolve 54 such matter to the satisfaction of all parties are unsuccessful, the 55 director shall refer the matter, within thirty days of the receipt of 56 the complaint, to the division's hearing officers. Upon conclusion ofA. 3963 8 1 the administrative hearing, the hearing officer shall submit to the 2 director his or her decision regarding the alleged violation of the 3 contract and recommendations regarding the imposition of sanctions, 4 fines or penalties. The director, within ten days of receipt of the 5 decision, shall file a determination of such matter and shall cause a 6 copy of such determination along with a copy of this article to be 7 served upon the contractor by personal service or by certified mail 8 return receipt requested. The decision of the hearing officer shall be 9 final and may only be vacated or modified as provided in article seven- 10 ty-eight of the civil practice law and rules upon an application made 11 within the time provided by such article. The determination of the 12 director as to the imposition of any fines, sanctions or penalties shall 13 be reviewable pursuant to article seventy-eight of the civil practice 14 law and rules. The penalties imposed for any violation which is premised 15 upon either a fraudulent or intentional misrepresentation by the 16 contractor or the contractor's willful and intentional disregard of the 17 minority and women-owned participation requirement included in the 18 contract may include a determination that the contractor shall be ineli- 19 gible to submit a bid to any contracting agency or be awarded any such 20 contract for a period not to exceed one year following the final deter- 21 mination; provided however, if a contractor has previously been deter- 22 mined to be ineligible to submit a bid pursuant to this section, the 23 penalties imposed for any subsequent violation, if such violation occurs 24 within five years of the first violation, may include a determination 25 that the contractor shall be ineligible to submit a bid to any contract- 26 ing agency or be awarded any such contract for a period not to exceed 27 five years following the final determination. The division of minority 28 and women's business development shall maintain a website listing all 29 contractors that have been deemed ineligible to submit a bid pursuant to 30 this section and the date after which each contractor shall once again 31 become eligible to submit bids. 32 [2.] 3. The director shall impose a sanction, penalty, or fine on any 33 individual or entity that has three or more violations of this article 34 within five years. Any fines, or portion thereof, imposed pursuant to 35 [the foregoing subdivision] this section, or imposed by a court of 36 competent jurisdiction related to convictions involving fraud related to 37 this article or otherwise involving a minority or women-owned business 38 enterprise, [may] shall be required by the entity imposing such fines to 39 be paid to the minority and women-owned business enterprise fund estab- 40 lished pursuant to section ninety-seven-k of the state finance law. 41 Such funds shall be used to subsidize the facilitation of the provisions 42 of this article. Other sanctions shall include barring such entity or 43 individual from contracting with such agency for a period not to exceed 44 five years. 45 § 7. Subdivision 1 of section 137 of the state finance law, as sepa- 46 rately amended by section 17 of part MM of chapter 57 and chapter 619 of 47 the laws of 2008, is amended to read as follows: 48 1. In addition to other bond or bonds, if any, required by law for the 49 completion of a work specified in a contract for the prosecution of a 50 public improvement for the state of New York a municipal corporation, a 51 public benefit corporation or a commission appointed pursuant to law, or 52 in the absence of any such requirement, the comptroller may or the other 53 appropriate official, respectively, shall nevertheless require prior to 54 the approval of any such contract a bond guaranteeing prompt payment of 55 moneys due to all persons furnishing labor or materials to the contrac- 56 tor or any subcontractors in the prosecution of the work provided for inA. 3963 9 1 such contract. Whenever a municipal corporation issues a permit subject 2 to compliance with section two hundred twenty of the labor law, such 3 permittee or its contractor or subcontractors furnishing workers shall 4 post a payment bond subject to this section. Provided, however, that all 5 performance bonds and payment bonds may, at the discretion of the head 6 of the state agency, public benefit corporation or commission, or his or 7 her designee, be dispensed with for the completion of a work specified 8 in a contract for the prosecution of a public improvement for the state 9 of New York for which bids are solicited where the aggregate amount of 10 the contract is under one hundred thousand dollars and provided further, 11 that in a case where the contract is not subject to the multiple 12 contract award requirements of section one hundred thirty-five of this 13 article, such requirements may be dispensed with where the head of the 14 state agency, public benefit corporation or commission finds it to be in 15 the public interest and where the aggregate amount of the contract 16 awarded or to be awarded is less than two hundred thousand dollars. In a 17 case where a contract is awarded to a small business concern or to a 18 minority or women-owned business concern, all performance bonds and 19 payment bonds may be dispensed with when the aggregate amount of the 20 contract is under five hundred thousand dollars. Advertisements for bids 21 shall provide information as to the requirements for, or dispensation 22 of, performance and payment bonds. Provided further, that in a case 23 where a performance or payment bond is dispensed with, twenty per centum 24 may be retained from each progress payment or estimate until the entire 25 contract work has been completed and accepted, at which time the head of 26 the state agency, public benefit corporation or commission shall, pend- 27 ing the payment of the final estimate, pay not to exceed seventy-five 28 per centum of the amount of the retained percentage. 29 § 8. Subdivision 4 of section 139-f of the state finance law, as 30 amended by chapter 83 of the laws of 1995, is amended to read as 31 follows: 32 4. Notwithstanding any other provision of this section or other law, 33 requirements for the furnishing of a performance bond or a payment bond 34 may be dispensed with at the discretion of the head of the state agency 35 or corporation, or his or her designee, where the public owner is a 36 state agency or corporation described in subdivision one-a of this 37 section and the aggregate amount of the contract awarded or to be 38 awarded is under fifty thousand dollars and, in a case where the 39 contract is not subject to the multiple contract award requirements of 40 section one hundred thirty-five of this article, such requirements may 41 be dispensed with where the head of the state agency or corporation 42 finds it to be in the public interest and where the aggregate amount of 43 the contract awarded or to be awarded is under two hundred thousand 44 dollars. In a case where a contract is awarded to a small business 45 concern or to a minority or women-owned business concern, all perform- 46 ance bonds and payment bonds may be dispensed with when the aggregate 47 amount of the contract is under five hundred thousand dollars. Adver- 48 tisements for proposals shall provide information as to the requirements 49 for, or dispensation of, performance and payment bonds. Provided 50 further, that in a case where a performance or payment bond is dispensed 51 with, twenty per centum may be retained from each progress payment or 52 estimate until the entire contract work has been completed and accepted, 53 at which time the head of the state agency or corporation shall, pending 54 the payment of the final estimate, pay not to exceed seventy-five per 55 centum of the amount of the retained percentage.A. 3963 10 1 § 9. The opening paragraph of section 139-g of the state finance law, 2 as amended by chapter 636 of the laws of 2003, is amended to read as 3 follows: 4 In every state agency, department and authority which has let more 5 than two million dollars in service and construction contracts and state 6 assisted project contracts in the prior fiscal year, the chief executive 7 officer of that agency, department or authority shall, with respect to 8 those contracts and state assisted project contracts let by his or her 9 agency, department or authority: 10 § 10. The opening paragraph of subdivision (b) of section 139-g of the 11 state finance law, as amended by chapter 636 of the laws of 2003, is 12 amended to read as follows: 13 identify all small-business and certified women and minority-owned 14 business concerns which, in the judgment of the chief executive officer 15 of that agency, department or authority, can bid on those contracts and 16 state assisted project contracts which are usually and customarily let 17 by that agency, department or authority, or in which that authority 18 provides a grant or loan or tax exempt financing, with a reasonable 19 expectation of success. Such chief executive officers shall carry out 20 the provisions of this subdivision: 21 § 11. Section 139-g of the state finance law is amended by adding a 22 new subdivision (e) to read as follows: 23 (e) For the purposes of this section, the following words shall have 24 the following meanings: 25 (i) "State assisted project contract" shall mean any written agreement 26 arising out of a state assisted housing project or state assisted 27 economic development project or state assisted higher education project 28 or state assisted hospital or health care facility project, for which 29 the total project cost exceeds two million dollars and for which the 30 project owner is committed to spend or does expend funds for the acqui- 31 sition, construction, demolition, replacement, major repair, or reno- 32 vation of real property and improvements thereon for such project. 33 (ii) "State assisted housing project" shall mean those projects which 34 receive from the New York state housing finance agency tax-exempt 35 financing for all or part of the total project cost. 36 (iii) "State assisted economic development project" shall mean those 37 projects which receive from the New York foundation of science technolo- 38 gy and innovation, or the urban development corporation and its subsid- 39 iaries a grant or loan or tax-exempt financing for all or part of the 40 total project cost. 41 (iv) "State assisted higher education project" shall mean those 42 projects which receive from the dormitory authority of the state of New 43 York a grant or loan or tax-exempt financing for all or part of the 44 total project cost. 45 (v) "State assisted hospital or health care facility project" shall 46 mean those projects which receive from the dormitory authority of the 47 state of New York a grant or loan or tax-exempt financing for all or 48 part of the total project cost. 49 § 12. This act shall take effect immediately, provided however, the 50 amendments to article 15-A of the executive law made by sections one, 51 two, three, four, five and six of this act shall not affect the repeal 52 of such article and shall be deemed repealed therewith.
