Bill Text: NY A05076 | 2023-2024 | General Assembly | Introduced
Bill Title: Requires development of a statewide disparity study regarding the participation of minority and women-owned business enterprises in state contracts.
Spectrum: Partisan Bill (Republican 5-0)
Status: (Introduced) 2024-01-03 - referred to governmental operations [A05076 Detail]
Download: New_York-2023-A05076-Introduced.html
STATE OF NEW YORK ________________________________________________________________________ 5076 2023-2024 Regular Sessions IN ASSEMBLY March 2, 2023 ___________ Introduced by M. of A. BARCLAY, WALSH, J. M. GIGLIO -- Multi-Sponsored by -- M. of A. K. BROWN, HAWLEY -- read once and referred to the Committee on Governmental Operations AN ACT to amend the executive law, in relation to a statewide disparity study regarding the participation of minority and women-owned business enterprises in state contracts The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. Section 312-a of the executive law is amended by adding a 2 new subdivision 3 to read as follows: 3 3. The director shall develop a procedure to obtain direct feedback 4 from applicants on any problems and burdens they encountered during the 5 application process or throughout the program and examine how the issues 6 can be addressed to eliminate future program limitations. 7 § 2. Subdivision 6 of section 313 of the executive law, as amended by 8 chapter 96 of the laws of 2019 and paragraph (b) as amended by chapter 9 348 of the laws of 2021, is amended to read as follows: 10 6. (a) Where it appears that a contractor cannot, after a good faith 11 effort, comply with the minority and women-owned business enterprise 12 participation requirements set forth in a particular state contract, a 13 contractor may file a written application with the contracting agency 14 requesting a partial or total waiver of such requirements setting forth 15 the reasons for such contractor's inability to meet any or all of the 16 participation requirements together with an explanation of the efforts 17 undertaken by the contractor to obtain the required minority and women- 18 owned business enterprise participation. In implementing the provisions 19 of this section, the contracting agency shall consider the number and 20 types of minority and women-owned business enterprises available to 21 provide goods or services required under the contract in the region in 22 which the state contract is to be performed, the total dollar value of 23 the state contract, the scope of work to be performed and the project EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD03838-01-3A. 5076 2 1 size and term. If, based on such considerations, the contracting agency 2 determines there is not a reasonable availability of contractors on the 3 list of certified [business] businesses to furnish services for the 4 project, it shall issue a waiver of compliance to the contractor. In 5 making such determination, the contracting agency shall first consider 6 the availability of other business enterprises located in the region and 7 shall thereafter consider the financial ability of minority and women- 8 owned businesses located outside the region in which the contract is to 9 be performed to perform the state contract. 10 (b) Upon the issuance of all waivers of compliance as provided in 11 paragraph (a) of this subdivision, the contracting agency shall: (i) 12 report the issuance of the waiver to the director; and (ii) publish on 13 the contracting agency's website on a monthly basis, if practicable, but 14 no less than on a quarterly basis, in a location easily accessible to 15 the general public: (1) information identifying the contract, including 16 the value of the contract; (2) the name of the contractor receiving the 17 waiver; (3) the date of the waiver; (4) whether the waiver was a partial 18 or total waiver; and (5) the specific contract provisions to which the 19 waiver applies. 20 (c) The commissioner is authorized to grant a partial or total waiver 21 of such good faith efforts to contracts within such a county, upon 22 request of the presiding officer of such county and upon a finding that 23 there is such a scarcity of minority and women-owned business enter- 24 prises within that county as to effectively preclude participation of 25 such enterprises in such contracts, and where no reasonable means of 26 accomplishing the provisions of this section exist. The commissioner 27 shall promulgate rules and regulations necessary to implement these 28 provisions. 29 § 3. Subdivisions 1 and 3 of section 314 of the executive law, subdi- 30 vision 1 as amended by chapter 567 of the laws of 2022, and subdivision 31 3 as amended by chapter 96 of the laws of 2019, are amended and a new 32 subdivision 1-a is added to read as follows: 33 1. The director shall promulgate rules and regulations providing for 34 the establishment of a statewide certification program including rules 35 and regulations governing the approval, denial or revocation of any such 36 certification including revocations for convictions for fraudulently 37 misrepresenting the status of minority or women-owned business enter- 38 prises. Such rules shall set forth the maximum personal net worth of a 39 minority group member or woman who may be relied upon to certify a busi- 40 ness as a minority-owned business enterprise or women-owned business 41 enterprise with a minimum personal net worth threshold of fifteen 42 million dollars, and may thereafter establish different maximum levels 43 of personal net worth for minority group members and women on an indus- 44 try-by-industry basis for such industries as the director shall deter- 45 mine. Such regulations relating to the classification of the industry- 46 by-industry personal net worth thresholds above the fifteen million 47 dollar threshold shall consider the personal net worth of the owners of 48 both certified and non-certified businesses, including but not limited 49 to, prime contractors and subcontractors, as well as any such other 50 factors needed to establish such thresholds. Such rules and regulations 51 shall include, but not be limited to, such matters as may be required to 52 ensure that the established procedures thereunder shall at least be in 53 compliance with the code of fair procedure set forth in section seven- 54 ty-three of the civil rights law, and consistent with the provisions of 55 article twenty-three-A of the correction law. Applications shall be 56 made available online and in print and specifically list out all infor-A. 5076 3 1 mation and documents required by an applicant to apply for the program 2 in clear language. 3 1-a. The director shall promulgate rules and regulations to establish 4 an online help source. This source shall provide real time business 5 support for new and existing certified businesses. 6 3. Following application for certification pursuant to this section, 7 the director shall provide the applicant with verbal notice of the 8 status of the application, including notice of any outstanding deficien- 9 cies, within twenty-four hours and written notice of the status of the 10 application, including notice of any outstanding deficiencies, within 11 [twenty-one] seven days. Within [forty-five] thirty days of submission 12 of a final completed application, [the director shall provide the appli-13cant with written notice of a determination by the office approving or14denying such certification] the application shall be deemed approved 15 unless the director shall deny such certification and, in the event of a 16 denial a statement setting forth the reasons for such denial. Upon a 17 determination denying or revoking certification, the business enterprise 18 for which certification has been so denied or revoked shall, upon writ- 19 ten request made within thirty days from receipt of notice of such 20 determination, be entitled to a hearing before an independent hearing 21 officer designated for such purpose by the director. In the event that a 22 request for a hearing is not made within such thirty day period, such 23 determination shall be deemed to be final. The independent hearing offi- 24 cer shall conduct a hearing and upon the conclusion of such hearing, 25 issue a written recommendation to the director to affirm, reverse or 26 modify such determination of the director. Such written recommendation 27 shall be issued to the parties. The director, within thirty days, by 28 order, must accept, reject or modify such recommendation of the hearing 29 officer and set forth in writing the reasons therefor. The director 30 shall serve a copy of such order and reasons therefor upon the business 31 enterprise by personal service or by certified mail return receipt 32 requested. The order of the director shall be subject to review pursuant 33 to article seventy-eight of the civil practice law and rules. 34 § 4. This act shall take effect immediately; provided however, that 35 the amendments to article 15-A of the executive law made by this act 36 shall not affect the repeal of such article and shall be deemed repealed 37 therewith.
