Bill Text: NY A04094 | 2009-2010 | General Assembly | Amended
Bill Title: Relates to increased participation in state contracts and subcontracts by certified minority and women owned business enterprises; relates to certain performance and payment bond requirements.
Spectrum: Partisan Bill (Democrat 34-0)
Status: (Introduced - Dead) 2010-04-29 - print number 4094a [A04094 Detail]
Download: New_York-2009-A04094-Amended.html
S T A T E O F N E W Y O R K
________________________________________________________________________
4094--A
2009-2010 Regular Sessions
I N A S S E M B L Y
January 30, 2009
___________
Introduced by M. of A. MILLMAN, DESTITO, PEOPLES-STOKES -- Multi-Spon-
sored by -- M. of A. BENJAMIN, BING, BOYLAND, CAHILL, CAMARA, CHRIS-
TENSEN, CLARK, DelMONTE, FARRELL, FIELDS, GOTTFRIED, GUNTHER, HOOPER,
HYER-SPENCER, JACOBS, JAFFEE, JEFFRIES, JOHN, KOON, LIFTON, LUPARDO,
MAISEL, McENENY, NOLAN, PHEFFER, J. RIVERA, P. RIVERA, ROBINSON, SWEE-
NEY, TOWNS, WEISENBERG -- read once and referred to the Committee on
Governmental Operations -- recommitted to the Committee on Govern-
mental Operations in accordance with Assembly Rule 3, sec. 2 --
committee discharged, bill amended, ordered reprinted as amended and
recommitted to said committee
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 estab-
lishing a mentor-protege program for small and minority and women-
owned business concerns and in relation to performance 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 (g) and (h) of subdivision 3 as amended and paragraph
5 (i) of subdivision 3 as added by section 1 of part BB of chapter 59 of
6 the laws of 2006 and subdivision 4 as amended by chapter 361 of the laws
7 of 2009, are amended to read as follows:
8 3. The director shall have the following powers and duties:
9 (a) to encourage and assist contracting agencies in their efforts to
10 increase participation by minority and women-owned business enterprises
11 on state contracts and subcontracts so as to facilitate the award of a
12 fair share of such contracts to them AND TO PROVIDE ON THE DIVISION'S
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD03888-03-0
A. 4094--A 2
1 WEBSITE A LIST OF EACH CONTRACTING AGENCY'S MINORITY AND WOMEN-OWNED
2 BUSINESS ENTERPRISES CERTIFICATION OUTREACH SEMINARS;
3 (b) to develop standardized forms and reporting documents necessary to
4 implement this article;
5 (c) to conduct educational OUTREACH programs TO ENCOURAGE THE CERTIF-
6 ICATION OF MINORITY AND WOMEN-OWNED BUSINESS ENTERPRISES consistent with
7 the purposes of this article;
8 (d) to review [periodically] QUARTERLY the practices and procedures of
9 each contracting agency with respect to compliance with the provisions
10 of this article, and to require them to file [periodic] QUARTERLY
11 reports with the division of minority and women's business development
12 as to the level of minority and women-owned business enterprises partic-
13 ipation in the awarding of agency contracts for goods and services
14 INCLUDING BUT NOT LIMITED TO THE NUMBER OF STATE CONTRACTS AWARDED TO
15 CERTIFIED MINORITY-OWNED OR WOMEN-OWNED BUSINESS ENTERPRISES, THE MAXI-
16 MUM DOLLAR AMOUNT OBLIGATED PURSUANT TO ALL THOSE CONTRACTS, AND THE
17 TOTAL EXPENDITURES MADE PURSUANT TO ALL SUCH CONTRACTS; THE NUMBER OF
18 STATE CONTRACTS AWARDED TO CERTIFIED MINORITY OR WOMEN-OWNED BUSINESS
19 ENTERPRISES, THE MAXIMUM DOLLAR AMOUNT OBLIGATED PURSUANT TO ALL THOSE
20 CONTRACTS, AND THE TOTAL EXPENDITURES MADE PURSUANT TO ALL SUCH
21 CONTRACTS; THE NUMBER OF STATE CONTRACTS AWARDED WHICH INCLUDE A UTILI-
22 ZATION PLAN FOR BUSINESS PARTICIPATION BY CERTIFIED MINORITY OR
23 WOMEN-OWNED BUSINESS ENTERPRISES, THE MAXIMUM AMOUNT OBLIGATED PURSUANT
24 TO THOSE CONTRACTS, AND THE TOTAL EXPENDITURES MADE PURSUANT TO ALL SUCH
25 CONTRACTS; THE NUMBER OF STATE CONTRACTS AWARDED UPON WHICH A WAIVER WAS
26 GRANTED FROM GOALS REQUIRED BY THE CONTRACTS FOR BUSINESS PARTICIPATION
27 BY CERTIFIED MINORITY OR WOMEN-OWNED BUSINESS ENTERPRISES, AND THE MAXI-
28 MUM AMOUNT OBLIGATED PURSUANT TO THOSE CONTRACTS; THE NUMBER OF STATE
29 CONTRACTS AWARDED WHICH REQUIRED GOALS FOR EMPLOYMENT OF MINORITY GROUP
30 MEMBERS AND WOMEN; AND THE NUMBER OF STATE CONTRACTS AWARDED FOR WHICH
31 WAIVERS OF EMPLOYMENT GOALS REQUIRED BY THE CONTRACTS HAVE BEEN GRANTED;
32 (e) on January first of each year report to the governor, THE TEMPO-
33 RARY PRESIDENT OF THE SENATE, THE SPEAKER OF THE ASSEMBLY, THE MINORITY
34 LEADERS OF THE SENATE AND THE ASSEMBLY, and the chairpersons of the
35 senate finance and assembly ways and means committees on the [level]
36 ACTUAL VERSUS PROJECTED LEVELS of minority and women-owned business
37 enterprises participating in each agency's contracts for goods [and],
38 services AND CONSTRUCTION, INCLUDING BUT NOT LIMITED TO THE NUMBER OF
39 STATE CONTRACTS AWARDED TO CERTIFIED MINORITY-OWNED OR WOMEN-OWNED BUSI-
40 NESS ENTERPRISES, THE MAXIMUM DOLLAR AMOUNT OBLIGATED PURSUANT TO ALL
41 THOSE CONTRACTS, AND THE TOTAL EXPENDITURES MADE PURSUANT TO ALL SUCH
42 CONTRACTS, and on activities of the office and effort by each contract-
43 ing agency to promote employment of minority group members and women,
44 and to promote and increase participation by certified businesses with
45 respect to state contracts and subcontracts so as to facilitate the
46 award of a fair share of state contracts to such businesses. The comp-
47 troller shall assist the division in collecting information on the
48 participation of certified business for each contracting agency. Such
49 report may recommend new activities and programs to effectuate the
50 purposes of this article;
51 (f) THE DIRECTOR SHALL LIST IN THE DIVISION'S ANNUAL REPORT THE NAMES
52 OF NON-COMPLIANT AGENCIES AND THE EXTENT OF THEIR NONCOMPLIANCE IN
53 SUBMITTING ITS QUARTERLY MINORITY AND WOMEN-OWNED BUSINESS ENTERPRISE
54 UTILIZATION REPORTS; AND, SHALL IMPLEMENT A MASTER LIST OF ALL THE STATE
55 AGENCIES REQUIRED TO FILE QUARTERLY COMPLIANCE REPORTS AND SHALL ATTACH
56 SUCH LIST TO THE DIVISION'S ANNUAL REPORT.
A. 4094--A 3
1 (G) to prepare and update [periodically] QUARTERLY a directory of
2 certified minority and women-owned business enterprises which shall,
3 wherever practicable, be divided into categories of labor, services,
4 supplies, equipment, materials and recognized construction trades and
5 which shall indicate areas or locations of the state where such enter-
6 prises are available to perform services, AND TO USE THIS INFORMATION TO
7 CREATE AN INTERNET BASED, CENTRALIZED STATE REGISTRY TO ENABLE APPROPRI-
8 ATE STATE CERTIFIED MINORITY AND WOMEN-OWNED BUSINESS ENTERPRISES TO
9 ACCESS CONTRACT AND SUBCONTRACT OPPORTUNITIES;
10 [(g)] (H) to appoint independent hearing officers who by contract or
11 terms of employment shall preside over adjudicatory hearings pursuant to
12 section three hundred fourteen of this article for the office and who
13 are assigned no other work by the office;
14 [(h)] (I) notwithstanding the provisions of section two hundred nine-
15 ty-six of this chapter, to file a complaint pursuant to the provisions
16 of section two hundred ninety-seven of this chapter where the director
17 has knowledge that a contractor may have violated the provisions of
18 paragraph (a), (b) or (c) of subdivision one of section two hundred
19 ninety-six of this chapter where such violation is unrelated, separate
20 or distinct from the state contract as expressed by its terms; and
21 [(i)] (J) to streamline the state certification process to accept
22 federal and municipal corporation certifications.
23 4. The director [may] SHALL provide assistance to, and facilitate
24 access to programs serving certified businesses as well as applicants to
25 ensure that such businesses benefit, as needed, from technical, manage-
26 rial and financial, and general business assistance; training; market-
27 ing; organization and personnel skill development; project management
28 assistance; technology assistance; bond and insurance education assist-
29 ance; and other business development assistance. In addition, the direc-
30 tor [may] SHALL, either independently or in conjunction with other state
31 agencies:
32 (a) develop a clearinghouse of information on programs and services
33 provided by entities that may assist such businesses;
34 (b) review bonding and paperwork requirements imposed by contracting
35 agencies that may unnecessarily impede the ability of such businesses to
36 compete; and
37 (c) seek to maximize utilization by minority and women-owned business
38 enterprises of available federal resources including but not limited to
39 federal grants, loans, loan guarantees, surety bonding guarantees, tech-
40 nical assistance, and programs and services of the federal small busi-
41 ness administration.
42 S 2. Subdivision 5 of section 312 of the executive law, as added by
43 chapter 261 of the laws of 1988, is amended to read as follows:
44 5. The director shall promulgate rules and regulations to ensure that
45 contractors and subcontractors undertake programs of affirmative action
46 and equal employment opportunity as required by this section. Such rules
47 and regulations as they pertain to any particular agency shall be devel-
48 oped after consultation with contracting agencies. Such rules and regu-
49 lations [may] SHALL require a contractor, after notice in a bid solic-
50 itation, to submit an equal employment opportunity program [after bid
51 opening and prior to the award of any contract] AT THE TIME BIDS ARE
52 SUBMITTED, and [may] SHALL require the contractor or subcontractor to
53 submit compliance reports relating to the contractor's or subcontrac-
54 tor's operation and implementation of any equal employment opportunity
55 program in effect as of the date the contract is executed. The contract-
56 ing agency [may recommend to the director that] SHALL HAVE THE RIGHT TO
A. 4094--A 4
1 RECOMMEND THAT the director take appropriate action according to the
2 procedures set forth in section three hundred sixteen of this article
3 against the contractor for noncompliance with the requirements of this
4 section. The contracting agency shall be responsible for monitoring
5 compliance with this section.
6 S 3. Subdivisions 1 and 2 and paragraph (a) of subdivision 4 of
7 section 313 of the executive law, subdivisions 1 and 2 as added by chap-
8 ter 261 of the laws of 1988 and paragraph (a) of subdivision 4 as
9 amended by chapter 429 of the laws of 2009, are amended to read as
10 follows:
11 1. The director shall promulgate rules and regulations that provide
12 measures and procedures to ensure that certified businesses shall be
13 given the opportunity for [meaningful] INCREASED participation in the
14 performance of state contracts and to identify those state contracts for
15 which certified businesses may best bid to actively and affirmatively
16 promote and assist their participation in the performance of state
17 contracts so as to facilitate the award of a fair share of state
18 contracts to such businesses AND ENCOURAGE JOINT VENTURES, PARTNERSHIPS,
19 AND MENTOR-PROTEGE RELATIONSHIPS AS DEFINED IN SECTION ONE HUNDRED
20 FORTY-SEVEN OF THE STATE FINANCE LAW, BETWEEN PRIME CONTRACTORS AND
21 MINORITY AND WOMEN-OWNED BUSINESS ENTERPRISES. Such rules and regu-
22 lations as they pertain to any particular agency shall be developed
23 after consultation with the contracting agency. Nothing in the
24 provisions of this article shall be construed to limit the ability of
25 any certified business to bid on any contract.
26 2. Contracting agencies shall include or require to be included with
27 respect to state contracts for the acquisition, construction, demoli-
28 tion, replacement, major repair or renovation of real property and
29 improvements thereon, such provisions as [may] SHALL be necessary to
30 effectuate the provisions of this section in every bid specification and
31 state contract, including, but not limited to: (a) provisions requiring
32 contractors to make a good faith effort to solicit active participation
33 by enterprises identified in the directory of certified businesses
34 provided to the contracting agency by the office; (b) requiring the
35 parties to agree as a condition of entering into such contract, to be
36 bound by the provisions of section three hundred sixteen of this arti-
37 cle; and (c) requiring the contractor to include the provisions set
38 forth in paragraphs (a) and (b) above in every subcontract in a manner
39 that the provisions will be binding upon each subcontractor as to work
40 in connection with such contract. Provided, however, that no such
41 provisions shall be binding upon contractors or subcontractors in the
42 performance of work or the provision of services that are unrelated,
43 separate or distinct from the state contract as expressed by its terms,
44 and nothing in this section shall authorize the director or any
45 contracting agency to impose any requirement on a contractor or subcon-
46 tractor except with respect to a state contract.
47 (a) Contracting agencies shall administer the rules and regulations
48 promulgated by the director to ensure compliance with the provisions of
49 this section. Such rules and regulations: shall require a contractor to
50 submit a utilization plan [after bids are opened] AT THE TIME THE BIDS
51 ARE SUBMITTED, when bids are required[, but prior to the award of a
52 state contract]; shall require the contracting agency to review the
53 utilization plan submitted by the contractor and to post the utilization
54 plan and any waivers of compliance issued pursuant to subdivision five
55 of this section on the website of the contracting agency within a
56 reasonable period of time as established by the director; shall require
A. 4094--A 5
1 the contracting agency to notify the contractor in writing within a
2 period of time specified by the director as to any deficiencies
3 contained in the contractor's utilization plan; shall require remedy
4 thereof within a period of time specified by the director; shall require
5 the contractor to submit [periodic] QUARTERLY compliance reports relat-
6 ing to the operation and implementation of any utilization plan; shall
7 NOT ALLOW ANY AUTOMATIC WAIVERS, BUT SHALL allow a contractor to apply
8 for a partial or total waiver of the minority and women-owned business
9 enterprise participation requirements pursuant to subdivisions five and
10 six of this section; shall allow a contractor to file a complaint with
11 the director pursuant to subdivision seven of this section in the event
12 a contracting agency has failed or refused to issue a waiver of the
13 minority and women-owned business enterprise participation requirements
14 or has denied such request for a waiver; and shall allow a contracting
15 agency to file a complaint with the director pursuant to subdivision
16 eight of this section in the event a contractor is failing or has failed
17 to comply with the minority and women-owned business enterprise partic-
18 ipation requirements set forth in the state contract where no waiver has
19 been granted.
20 S 4. Section 315 of the executive law, as added by chapter 261 of the
21 laws of 1988, is amended to read as follows:
22 S 315. Responsibilities of contracting agencies. 1. Each contracting
23 agency shall be responsible for monitoring state contracts under its
24 jurisdiction, and recommending matters to the office respecting non-com-
25 pliance with the provisions of this article so that the office [may]
26 SHALL take such action as [is appropriate] STATED IN SUBDIVISION THREE
27 OF SECTION THREE HUNDRED SIXTEEN OF THIS ARTICLE. EACH CONTRACTING AGEN-
28 CY SHALL HAVE THE RIGHT TO RECOMMEND THAT THE DIRECTOR IMPOSE A SANC-
29 TION, PENALTY, OR FINE FOR THREE OR MORE VIOLATIONS OF SUBDIVISION ONE
30 OF SECTION THREE HUNDRED SIXTEEN OF THIS ARTICLE, to insure compliance
31 with the provisions of this article, the rules and regulations of the
32 director issued hereunder and the contractual provisions required pursu-
33 ant to this article. All contracting agencies shall comply with the
34 rules and regulations of the office and are directed to cooperate with
35 the office and to furnish to the office such information and assistance
36 as may be required in the performance of its functions under this arti-
37 cle.
38 2. Each contracting agency shall provide to prospective bidders a
39 current copy of the directory of certified businesses, and a copy of the
40 regulations required pursuant to sections three hundred twelve and three
41 hundred thirteen of this article at the time bids or proposals are
42 solicited.
43 3. [Each contracting agency shall report to the director with respect
44 to activities undertaken to promote employment of minority group members
45 and women and promote and increase participation by certified businesses
46 with respect to state contracts and subcontracts. Such reports shall be
47 submitted periodically as required by the director.] EACH CONTRACTING
48 AGENCY WHEN NOTIFYING A CONTRACTOR OF A WINNING BID AWARD SHALL ALSO
49 NOTIFY ANY MINORITY OR WOMEN-OWNED BUSINESS ENTERPRISES AFFILIATED WITH
50 SUCH CONTRACTOR, PER THE CONTRACTOR'S SUBMITTED UTILIZATION PLAN, OF
51 SUCH CONTRACTOR'S RECEIPT OF THE WINNING BID AWARD.
52 4. (A) EACH CONTRACTING AGENCY SHALL PREPARE A QUARTERLY REPORT AND
53 SUBMIT COPIES TO THE COMMISSIONER OF ECONOMIC DEVELOPMENT, THE COMMIS-
54 SIONER OF GENERAL SERVICES, AND THE DIRECTOR AS TO THE LEVEL OF MINORITY
55 AND WOMEN-OWNED BUSINESS ENTERPRISES PARTICIPATION IN THE AWARDING OF
56 AGENCY CONTRACTS FOR GOODS AND SERVICES, INCLUDING BUT NOT LIMITED TO,
A. 4094--A 6
1 THE NUMBER OF STATE CONTRACTS AWARDED TO CERTIFIED MINORITY OR
2 WOMEN-OWNED BUSINESS ENTERPRISES; THE MAXIMUM DOLLAR AMOUNT OBLIGATED
3 PURSUANT TO ALL THOSE CONTRACTS, AND THE TOTAL EXPENDITURES MADE PURSU-
4 ANT TO ALL SUCH CONTRACTS; THE NUMBER OF STATE CONTRACTS AWARDED WHICH
5 INCLUDE A UTILIZATION PLAN FOR BUSINESS PARTICIPATION BY CERTIFIED
6 MINORITY OR WOMEN-OWNED BUSINESS ENTERPRISES, THE MAXIMUM AMOUNT OBLI-
7 GATED PURSUANT TO THOSE CONTRACTS, AND THE TOTAL EXPENDITURES MADE
8 PURSUANT TO ALL SUCH CONTRACTS; THE NUMBER OF STATE CONTRACTS AWARDED
9 UPON WHICH A WAIVER WAS GRANTED FROM GOALS REQUIRED BY THE CONTRACTS FOR
10 BUSINESS PARTICIPATION BY CERTIFIED MINORITY OR WOMEN-OWNED BUSINESS
11 ENTERPRISES, AND THE MAXIMUM AMOUNT OBLIGATED PURSUANT TO THOSE
12 CONTRACTS; THE NUMBER OF STATE CONTRACTS AWARDED WHICH REQUIRED GOALS
13 FOR EMPLOYMENT OF MINORITY GROUP MEMBERS AND WOMEN; AND THE NUMBER OF
14 STATE CONTRACTS AWARDED FOR WHICH WAIVERS OF EMPLOYMENT GOALS REQUIRED
15 BY THE CONTRACTS HAVE BEEN GRANTED;
16 (B) IN ADDITION, EACH CONTRACTING AGENCY SHALL BE RESPONSIBLE FOR THE
17 COST OF AN INDEPENDENT AUDIT RESULTING FROM THE AGENCY'S REPEATED
18 VIOLATIONS OF THIS SECTION.
19 5. WITHIN THIRTY DAYS AFTER COMPLETION, A COPY OF THE QUARTERLY MINOR-
20 ITY AND WOMEN-OWNED BUSINESS ENTERPRISE REPORT SHALL BE TRANSMITTED TO
21 THE COMMISSIONER OF ECONOMIC DEVELOPMENT, THE COMMISSIONER OF GENERAL
22 SERVICES, AND THE DIRECTOR. A CONTRACTING AGENCY, WHICH HAS NOT LET MORE
23 THAN TWO MILLION DOLLARS IN SERVICE AND/OR CONSTRUCTION CONTRACTS WITHIN
24 THE APPLICABLE PERIOD MAY APPLY TO THE COMMISSIONER OF ECONOMIC DEVELOP-
25 MENT, AND THE DIRECTOR FOR A WAIVER OF THE REQUIRED ANNUAL REPORT. THE
26 WAIVER APPLICATION SHALL BE MADE ON SUCH FORM AS THE COMMISSIONER OF
27 ECONOMIC DEVELOPMENT AND THE DIRECTOR MAY PRESCRIBE.
28 6. IF A CONTRACTING AGENCY SHALL FAIL TO FILE OR SUBSTANTIALLY
29 COMPLETE, AS DETERMINED BY THE COMMISSIONER OF ECONOMIC DEVELOPMENT AND
30 THE DIRECTOR, THE REPORT REQUIRED BY THIS SECTION, THE DIRECTOR SHALL
31 PROVIDE NOTICE TO THE CONTRACTING AGENCY. THE NOTICE SHALL STATE THE
32 FOLLOWING:
33 (A) THAT THE FAILURE TO FILE A REPORT AS REQUIRED IS A VIOLATION OF
34 THIS SECTION, OR IN THE CASE OF AN INSUFFICIENT REPORT, THE MANNER IN
35 WHICH THE REPORT SUBMITTED IS DEFICIENT;
36 (B) THAT THE CONTRACTING AGENCY HAS THIRTY DAYS TO COMPLY WITH THIS
37 SECTION OR PROVIDE AN ADEQUATE WRITTEN EXPLANATION TO THE COMMISSIONER
38 OF ECONOMIC DEVELOPMENT AND THE COMMISSIONER OF GENERAL SERVICES AND THE
39 DIRECTOR OF THE CONTRACTING AGENCY'S REASONS FOR THE INABILITY TO
40 COMPLY; AND
41 (C) THAT THE CONTRACTING AGENCY'S CONTINUED FAILURE TO PROVIDE EITHER
42 THE REQUIRED REPORT OR AN ADEQUATE EXPLANATION WILL RESULT IN AN INDE-
43 PENDENT AUDIT OF THE CONTRACTING AGENCY, THE COST OF WHICH SHALL BE
44 BORNE BY THE CONTRACTING AGENCY.
45 S 5. Section 316 of the executive law, as added by chapter 261 of the
46 laws of 1988, is amended to read as follows:
47 S 316. [Enforcement] VIOLATIONS AND ENFORCEMENT. 1. IT SHALL BE A
48 VIOLATION FOR ANY PERSON OR ENTITY TO:
49 (A) INTENTIONALLY USE OR ACQUIRE AN MWBE NAME THROUGH DECEIT OR OTHER
50 DISHONEST MEANS IN ORDER TO NEGOTIATE A LOWER BID FROM A NON-MWBE.
51 (B) SUBMIT TO THE DEPARTMENT OF ECONOMIC DEVELOPMENT, DOCUMENTS OR
52 OTHER MATERIAL AS EVIDENCE OF A GOOD FAITH EFFORT TO COMPLY WITH THE
53 PROVISIONS OF THIS ARTICLE WITHOUT, IN FACT, HAVING ENTERED INTO ANY
54 CONTRACT, AGREEMENT, SUBCONTRACT, OR SUB-AGREEMENT WITH AN MWBE FOR THE
55 USE OR PURCHASE OF SUCH BUSINESS ENTERPRISE'S GOODS OR SERVICES IN THE
56 PERFORMANCE OF THE AWARDED STATE CONTRACT.
A. 4094--A 7
1 (C) FAIL TO PROVIDE AN MWBE WITH SUFFICIENT INFORMATION OR OTHER
2 REQUIRED SUPPORTING DOCUMENTATION IN ORDER FOR THE MWBE TO PREPARE A
3 PROPER BID.
4 2. Upon receipt by the director of a complaint by a contracting agency
5 that a contractor has violated the provisions of a state contract which
6 have been included to comply with the provisions of this article or of a
7 contractor that a contracting agency has violated such provisions or has
8 failed or refused to issue a waiver where one has been applied for
9 pursuant to subdivision five of section three hundred thirteen of this
10 article or has denied such application, the director shall attempt to
11 resolve the matter giving rise to such complaint. If efforts to resolve
12 such matter to the satisfaction of all parties are unsuccessful, the
13 director shall refer the matter, within thirty days of the receipt of
14 the complaint, to the American Arbitration Association for proceeding
15 thereon. Upon conclusion of the arbitration proceedings, the arbitrator
16 shall submit to the director his or her award regarding the alleged
17 violation of the contract and recommendations regarding the imposition
18 of sanctions, fines or penalties. The director shall either: (a) adopt
19 the recommendation of the arbitrator; or (b) determine that no sanc-
20 tions, fines or penalties should be imposed; or (c) modify the recommen-
21 dation of the arbitrator, provided that such modification shall not
22 expand upon any sanction recommended or impose any new sanction, or
23 increase the amount of any recommended fine or penalty. The director,
24 within ten days of receipt of the arbitrator's award and recommenda-
25 tions, shall file a determination of such matter and shall cause a copy
26 of such determination along with a copy of this article to be served
27 upon the respondent by personal service or by certified mail return
28 receipt requested. The award of the arbitrator shall be final and may
29 only be vacated or modified as provided in article seventy-five of the
30 civil practice law and rules upon an application made within the time
31 provided by section seventy-five hundred eleven of the civil practice
32 law and rules. The determination of the director as to the imposition of
33 any fines, sanctions or penalties shall be reviewable pursuant to arti-
34 cle seventy-eight of the civil practice law and rules.
35 3. THE DIRECTOR SHALL IMPOSE A SANCTION, PENALTY, OR FINE ON ANY
36 INDIVIDUAL OR ENTITY THAT HAS THREE OR MORE VIOLATIONS OF THIS ARTICLE
37 WITHIN FIVE YEARS. SUCH FINE SHALL BE PAID BY SUCH INDIVIDUAL OR ENTITY.
38 SUCH FINE SHALL BE REMITTED AND DEPOSITED INTO A FUND, TO BE MANAGED BY
39 THE COMMISSIONER OF ECONOMIC DEVELOPMENT. SUCH FUNDS SHALL BE USED TO
40 SUBSIDIZE THE FACILITATION OF THE PROVISIONS OF THIS ARTICLE. OTHER
41 SANCTIONS SHALL INCLUDE BARRING SUCH ENTITY OR INDIVIDUAL FROM CONTRACT-
42 ING WITH SUCH AGENCY FOR A PERIOD NOT TO EXCEED FIVE YEARS.
43 S 6. Subdivision 1 of section 137 of the state finance law, as sepa-
44 rately amended by section 17 of part MM of chapter 57 and by chapter 619
45 of the laws of 2008, is amended to read as follows:
46 1. In addition to other bond or bonds, if any, required by law for the
47 completion of a work specified in a contract for the prosecution of a
48 public improvement for the state of New York a municipal corporation, a
49 public benefit corporation or a commission appointed pursuant to law, or
50 in the absence of any such requirement, the comptroller may or the other
51 appropriate official, respectively, shall nevertheless require prior to
52 the approval of any such contract a bond guaranteeing prompt payment of
53 moneys due to all persons furnishing labor or materials to the contrac-
54 tor or any subcontractors in the prosecution of the work provided for in
55 such contract. Whenever a municipal corporation issues a permit subject
56 to compliance with section two hundred twenty of the labor law, such
A. 4094--A 8
1 permittee or its contractor or subcontractors furnishing workers shall
2 post a payment bond subject to this section. Provided, however, that all
3 performance bonds and payment bonds may, at the discretion of the head
4 of the state agency, public benefit corporation or commission, or his or
5 her designee, be dispensed with for the completion of a work specified
6 in a contract for the prosecution of a public improvement for the state
7 of New York for which bids are solicited where the aggregate amount of
8 the contract is under one hundred FIFTY thousand dollars and provided
9 further, that in a case where the contract is not subject to the multi-
10 ple contract award requirements of section one hundred thirty-five of
11 this article, such requirements may be dispensed with where the head of
12 the state agency, public benefit corporation or commission finds it to
13 be in the public interest and where the aggregate amount of the contract
14 awarded or to be awarded is less than two hundred thousand dollars. THE
15 HEAD OF THE STATE AGENCY, PUBLIC BENEFIT CORPORATION OR COMMISSION, OR
16 HIS OR HER DESIGNEE, SHALL ADJUST THE AGGREGATE CONTRACT AMOUNTS LISTED
17 IN THIS SUBDIVISION EVERY YEAR TO ACCOUNT FOR INCREASES IN THE COSTS OF
18 CONSTRUCTION. ADVERTISEMENTS FOR BIDS SHALL PROVIDE INFORMATION ON THE
19 REQUIREMENTS FOR, OR DISPENSATION OF, PERFORMANCE AND PAYMENT BONDS.
20 Provided further, that in a case where a performance or payment bond is
21 dispensed with, twenty per centum may be retained from each progress
22 payment or estimate until the entire contract work has been completed
23 and accepted, at which time the head of the state agency, public benefit
24 corporation or commission shall, pending the payment of the final esti-
25 mate, pay not to exceed seventy-five per centum of the amount of the
26 retained percentage.
27 S 7. Subdivision 4 of section 139-f of the state finance law, as
28 amended by chapter 83 of the laws of 1995, is amended to read as
29 follows:
30 4. Notwithstanding any other provision of this section or other law,
31 requirements for the furnishing of a performance bond or a payment bond
32 may be dispensed with at the discretion of the head of the state agency
33 or corporation, or his or her designee, where the public owner is a
34 state agency or corporation described in subdivision one-a of this
35 section and the aggregate amount of the contract awarded or to be
36 awarded is under fifty thousand dollars and, in a case where the
37 contract is not subject to the multiple contract award requirements of
38 section one hundred thirty-five of this article, such requirements may
39 be dispensed with where the head of the state agency or corporation
40 finds it to be in the public interest and where the aggregate amount of
41 the contract awarded or to be awarded is under [two] THREE hundred thou-
42 sand dollars. THE HEAD OF THE STATE AGENCY, PUBLIC BENEFIT CORPORATION
43 OR COMMISSION, OR HIS OR HER DESIGNEE, SHALL ADJUST THE AGGREGATE
44 CONTRACT AMOUNTS LISTED IN THIS SUBDIVISION EVERY YEAR TO ACCOUNT FOR
45 INCREASES IN THE COSTS OF CONSTRUCTION. ADVERTISEMENTS FOR BIDS SHALL
46 PROVIDE INFORMATION ON THE REQUIREMENTS FOR, OR DISPENSATION OF,
47 PERFORMANCE AND PAYMENT BONDS. Provided further, that in a case where a
48 performance or payment bond is dispensed with, twenty per centum may be
49 retained from each progress payment or estimate until the entire
50 contract work has been completed and accepted, at which time the head of
51 the state agency or corporation shall, pending the payment of the final
52 estimate, pay not to exceed seventy-five per centum of the amount of the
53 retained percentage.
54 S 8. The opening paragraph of section 139-g of the state finance law,
55 as amended by chapter 636 of the laws of 2003, is amended to read as
56 follows:
A. 4094--A 9
1 In every state agency, department and authority which has let more
2 than two million dollars in service and construction contracts AND STATE
3 ASSISTED PROJECT CONTRACTS in the prior fiscal year, the chief executive
4 officer of that agency, department or authority shall, with respect to
5 those contracts AND STATE ASSISTED PROJECT CONTRACTS let by his OR HER
6 agency, department or authority:
7 S 9. The opening paragraph of subdivision (b) of section 139-g of the
8 state finance law, as amended by chapter 636 of the laws of 2003, is
9 amended to read as follows:
10 identify all small-business and certified women and minority-owned
11 business concerns which, in the judgment of the chief executive officer
12 of that agency, department or authority, can bid on those contracts AND
13 STATE ASSISTED PROJECT CONTRACTS which are usually and customarily let
14 by that agency, department or authority, OR IN WHICH THAT AUTHORITY
15 PROVIDES A GRANT OR LOAN OR TAX EXEMPT FINANCING, with a reasonable
16 expectation of success. Such chief executive officers shall carry out
17 the provisions of this subdivision:
18 S 10. Section 139-g of the state finance law is amended by adding a
19 new subdivision (e) to read as follows:
20 (E) FOR THE PURPOSES OF THIS SECTION, THE FOLLOWING WORDS SHALL HAVE
21 THE FOLLOWING MEANINGS:
22 (I) "STATE ASSISTED PROJECT CONTRACT" SHALL MEAN ANY WRITTEN AGREEMENT
23 ARISING OUT OF A STATE ASSISTED HOUSING PROJECT OR STATE ASSISTED
24 ECONOMIC DEVELOPMENT PROJECT OR STATE ASSISTED HIGHER EDUCATION PROJECT
25 OR STATE ASSISTED HOSPITAL OR HEALTH CARE FACILITY PROJECT, FOR WHICH
26 THE TOTAL PROJECT COST EXCEEDS TWO MILLION DOLLARS AND FOR WHICH THE
27 PROJECT OWNER IS COMMITTED TO SPEND OR DOES EXPEND FUNDS FOR THE ACQUI-
28 SITION, CONSTRUCTION, DEMOLITION, REPLACEMENT, MAJOR REPAIR, OR RENO-
29 VATION OF REAL PROPERTY AND IMPROVEMENTS THEREON FOR SUCH PROJECT.
30 (II) "STATE ASSISTED HOUSING PROJECT" SHALL MEAN THOSE PROJECTS WHICH
31 RECEIVE FROM THE NEW YORK STATE HOUSING FINANCE AGENCY TAX-EXEMPT
32 FINANCING FOR ALL OR PART OF THE TOTAL PROJECT COST.
33 (III) "STATE ASSISTED ECONOMIC DEVELOPMENT PROJECT" SHALL MEAN THOSE
34 PROJECTS WHICH RECEIVE FROM THE NEW YORK FOUNDATION OF SCIENCE TECHNOLO-
35 GY AND INNOVATION, OR THE URBAN DEVELOPMENT CORPORATION AND ITS SUBSID-
36 IARIES A GRANT OR LOAN OR TAX-EXEMPT FINANCING FOR ALL OR PART OF THE
37 TOTAL PROJECT COST.
38 (IV) "STATE ASSISTED HIGHER EDUCATION PROJECT" SHALL MEAN THOSE
39 PROJECTS WHICH RECEIVE FROM THE DORMITORY AUTHORITY OF THE STATE OF NEW
40 YORK A GRANT OR LOAN OR TAX-EXEMPT FINANCING FOR ALL OR PART OF THE
41 TOTAL PROJECT COST.
42 (V) "STATE ASSISTED HOSPITAL OR HEALTH CARE FACILITY PROJECT" SHALL
43 MEAN THOSE PROJECTS WHICH RECEIVE FROM THE DORMITORY AUTHORITY OF THE
44 STATE OF NEW YORK A GRANT OR LOAN OR TAX-EXEMPT FINANCING FOR ALL OR
45 PART OF THE TOTAL PROJECT COST.
46 S 11. This act shall take effect immediately, provided however, the
47 amendments to article 15-A of the executive law made by sections one,
48 two, three, four and five of this act shall not affect the expiration of
49 such article and shall expire therewith.
