Bill Text: NY S05464 | 2023-2024 | General Assembly | Introduced
Bill Title: Provides for 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 6-0)
Status: (Introduced - Dead) 2024-01-03 - REFERRED TO PROCUREMENT AND CONTRACTS [S05464 Detail]
Download: New_York-2023-S05464-Introduced.html
STATE OF NEW YORK ________________________________________________________________________ 5464 2023-2024 Regular Sessions IN SENATE March 6, 2023 ___________ Introduced by Sens. JACKSON, COMRIE, LIU -- read twice and ordered printed, and when printed to be committed to the Committee on Procure- ment and Contracts 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, paragraph (g) of subdivision 3 as amended by section 1 of part BB 5 of chapter 59 of the laws of 2006, paragraphs (h) and (i) of subdivision 6 3 as amended and paragraph (k) of subdivision 3 as added by chapter 825 7 of the laws of 2021, paragraphs (f) and (j) of subdivision 3 as amended 8 and paragraphs (l), (m) and (n) of subdivision 3 as added by chapter 567 9 of the laws of 2022, subdivision 4 as amended by chapter 361 of the laws 10 of 2009 and the opening paragraph of subdivision 4 as amended and para- 11 graph (d-1) of subdivision 3 and paragraphs (d) and (e) of subdivision 4 12 as added by chapter 96 of the laws of 2019, are amended to read as 13 follows: 14 3. The director shall have the following powers and duties: 15 (a) to encourage and assist contracting agencies in their efforts to 16 increase participation by minority and women-owned business enterprises 17 on state contracts and subcontracts so as to facilitate the award of a 18 fair share of such contracts to them and to provide on the division's 19 website a list of each contracting agency's minority and women-owned 20 business enterprises certification outreach seminars; EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD07382-01-3S. 5464 2 1 (b) to develop standardized forms and reporting documents necessary to 2 implement this article; 3 (c) to conduct educational outreach programs to encourage the certif- 4 ication of minority and women-owned business enterprises consistent with 5 the purposes of this article; 6 (d) to review [periodically] quarterly the practices and procedures of 7 each contracting agency with respect to compliance with the provisions 8 of this article, and to require them to file [periodic] quarterly 9 reports with the division of minority and women's business development 10 as to the level of minority and women-owned business enterprises partic- 11 ipation in the awarding of agency contracts for goods and services 12 including but not limited to the number of state contracts awarded to 13 certified minority or women-owned business enterprises, the maximum 14 dollar amount obligated pursuant to all those contracts, and the total 15 expenditures made pursuant to all such contracts; the number of state 16 contracts awarded to certified minority or women-owned business enter- 17 prises, the maximum dollar amount obligated pursuant to all those 18 contracts, and the total expenditures made pursuant to all such 19 contracts; the number of state contracts awarded which include a utili- 20 zation plan for business participation by certified minority or women- 21 owned business enterprises, the maximum amount obligated pursuant to 22 those contracts, and the total expenditures made pursuant to all such 23 contracts; the number of state contracts awarded upon which a waiver was 24 granted from goals required by the contracts for business participation 25 by certified minority or women-owned business enterprises, and the maxi- 26 mum amount obligated pursuant to those contracts; the number of state 27 contracts awarded which required goals for employment of minority group 28 members and women; and the number of state contracts awarded for which 29 waivers of employment goals required by the contracts have been granted; 30 (d-1) to require all contracting state agencies to develop a four-year 31 growth plan to determine a means of promoting and increasing partic- 32 ipation by [minority-owned] minority and women-owned business enter- 33 prises with respect to state contracts and subcontracts. Every four 34 years, beginning September fifteenth, two thousand twenty, each 35 contracting state agency shall submit a four-year growth plan as part of 36 its annual report to the governor and legislature pursuant to section 37 one hundred sixty-four of this chapter[.]; 38 (e) on January first of each year report to the governor, the tempo- 39 rary president of the senate, the speaker of the assembly, the minority 40 leaders of the senate and the assembly, and the chairpersons of the 41 senate finance and assembly ways and means committees on the [level] 42 actual versus projected levels of minority and women-owned business 43 enterprises participating in each agency's contracts for goods [and], 44 services and construction, including but not limited to the number of 45 state contracts awarded to certified minority or women-owned business 46 enterprises, the maximum dollar amount obligated pursuant to all those 47 contracts, and the total expenditures made pursuant to all such 48 contracts, and on activities of the office and effort by each contract- 49 ing agency to promote employment of minority group members and women, 50 and to promote and increase participation by certified businesses with 51 respect to state contracts and subcontracts so as to facilitate the 52 award of a fair share of state contracts to such businesses. The comp- 53 troller shall assist the division in collecting information on the 54 participation of certified business for each contracting agency. Such 55 report may recommend new activities and programs to effectuate the 56 purposes of this article;S. 5464 3 1 (e-1) the director shall list in the division's annual report the 2 names of non-compliant agencies and the extent of their noncompliance in 3 submitting its quarterly minority and women-owned business enterprise 4 utilization reports; and, shall implement a master list of all the state 5 agencies required to file quarterly compliance reports and shall attach 6 such list to the division's annual report; 7 (f) to prepare and update, [no less than annually,] quarterly a direc- 8 tory of certified minority and women-owned business enterprises which 9 shall, wherever practicable, be divided into categories of labor, 10 services, supplies, equipment, materials and recognized construction 11 trades and which shall indicate areas or locations of the state where 12 such enterprises are available to perform services, and to use this 13 information to create an internet based, searchable, centralized state 14 registry detailing certifications, waivers, and all documents submitted 15 pertaining to certification or denial of certification, or compliance 16 with goals for utilization of minority and women-owned business enter- 17 prises; 18 (g) to appoint independent hearing officers who by contract or terms 19 of employment shall preside over adjudicatory hearings pursuant to 20 section three hundred fourteen of this article for the office and who 21 are assigned no other work by the office; 22 (h) notwithstanding the provisions of section two hundred ninety-six 23 of this chapter, to file a complaint pursuant to the provisions of 24 section two hundred ninety-seven of this chapter where the director has 25 knowledge that a contractor may have violated the provisions of para- 26 graph (a), (b) or (c) of subdivision one of section two hundred ninety- 27 six of this chapter where such violation is unrelated, separate or 28 distinct from the state contract as expressed by its terms; 29 (i) to streamline the state certification process to accept federal 30 and municipal corporation certifications; 31 (j) to make publicly available records of all waivers of compliance 32 reported pursuant to paragraph (b) of subdivision six of section three 33 hundred thirteen of this article on the division's website; 34 (k) to work in conjunction with the industrial commissioner pursuant 35 to paragraph (j) of subdivision one of section eight hundred eleven of 36 the labor law to assist contractors in identifying minority group 37 members and women who are participating in apprenticeship agreements 38 under article twenty-three of the labor law[.]; 39 (l) to perform inspections of minority or women-owned business's place 40 of business, warehouse or storage facility to confirm the existence of a 41 workforce, equipment and supplies; 42 (m) to perform inspections of financial records of minority or women- 43 owned business enterprises to ensure such enterprises are in compliance 44 with applicable laws; and 45 (n) to ensure the protection of individuals who report suspected 46 violations of this article and applicable laws related to minority and 47 women-owned business enterprises. 48 4. The director shall provide assistance to, and facilitate access to 49 programs serving certified businesses as well as applicants to ensure 50 that such businesses benefit, as needed, from technical, managerial and 51 financial, and general business assistance; training; marketing; organ- 52 ization and personnel skill development; project management assistance; 53 technology assistance; bond and insurance education assistance; and 54 other business development assistance. The director shall maintain a 55 toll-free number at the department of economic development to be used to 56 answer questions concerning the MWBE certification process. In addition,S. 5464 4 1 the director [may] shall, either independently or in conjunction with 2 other state agencies: 3 (a) develop a clearinghouse of information on programs and services 4 provided by entities that may assist such businesses; 5 (b) review bonding and paperwork requirements imposed by contracting 6 agencies that may unnecessarily impede the ability of such businesses to 7 compete; [and] 8 (c) seek to maximize utilization by minority and women-owned business 9 enterprises of available federal resources including but not limited to 10 federal grants, loans, loan guarantees, surety bonding guarantees, tech- 11 nical assistance, and programs and services of the federal small busi- 12 ness administration[.]; 13 (d) conduct outreach events, training workshops, seminars, and other 14 such educational programs throughout the state, including all regional 15 offices, to state agencies, external stakeholders, and the public, to 16 promote awareness and utilization of minority and women-owned business 17 enterprises; and 18 (e) identify and establish mentorship opportunities and other business 19 development programs to increase capacity and better prepare MWBEs for 20 bidding on contracts with state agencies upon successful completion of 21 the mentorship opportunity. Such mentorship opportunities shall be 22 intended to ensure that mentor and mentee are connected based on a 23 commercially useful function. 24 § 2. Subdivision 5 of section 312 of the executive law, as added by 25 chapter 261 of the laws of 1988, is amended to read as follows: 26 5. The director shall promulgate rules and regulations to ensure that 27 contractors and subcontractors undertake programs of affirmative action 28 and equal employment opportunity as required by this section. Such rules 29 and regulations as they pertain to any particular agency shall be devel- 30 oped after consultation with contracting agencies. Such rules and regu- 31 lations [may] shall require a contractor, after notice in a bid solic- 32 itation, to submit an equal employment opportunity program [after bid33opening and prior to the award of any contract] at the time bids are 34 submitted, and [may] shall require the contractor or subcontractor to 35 submit compliance reports relating to the contractor's or subcontrac- 36 tor's operation and implementation of any equal employment opportunity 37 program in effect as of the date the contract is executed. The contract- 38 ing agency [may recommend to the director that] shall have the right to 39 recommend that the director take appropriate action according to the 40 procedures set forth in section three hundred sixteen of this article 41 against the contractor for noncompliance with the requirements of this 42 section. The contracting agency shall be responsible for monitoring 43 compliance with this section. 44 § 3. Subdivisions 2-a, 3 and paragraph (a) of subdivision 5 of section 45 313 of the executive law, as amended by chapter 96 of the laws of 2019, 46 are amended to read as follows: 47 2-a. The director shall promulgate rules and regulations that will 48 accomplish the following: 49 (a) provide for the certification and decertification of minority and 50 women-owned business enterprises for all agencies through a single proc- 51 ess that meets applicable requirements; 52 (b) require that each contract solicitation document accompanying each 53 solicitation set forth the expected degree of minority and women-owned 54 business enterprise participation based, in part, on: 55 (i) the potential subcontract opportunities available in the prime 56 procurement contract;S. 5464 5 1 (ii) the availability, as contained within the study, of certified 2 minority and women-owned business enterprises to respond competitively 3 to the potential subcontract opportunities as reflected in the divi- 4 sion's directory of certified minority and women-owned business enter- 5 prises; and 6 (iii) the findings of the disparity study; 7 (c) require that each agency provide a current list of certified 8 minority business enterprises to each prospective contractor or direct 9 them to the division's directory of certified minority and women-owned 10 business enterprises for such purpose; 11 (d) allow a contractor that is a certified [minority-owned] minority 12 or women-owned business enterprise to use the work it performs to meet 13 requirements for use of certified [minority-owned] minority or women- 14 owned business enterprises as subcontractors; 15 (e) establish criteria for agencies to credit the participation of 16 minority and women-owned business enterprises towards the achievement of 17 the minority and women-owned business enterprise participation goals on 18 a state contract based on the commercially useful function provided by 19 each minority and women-owned business enterprise on the contract; 20 (f) provide for joint ventures, which a bidder may count toward meet- 21 ing its minority and women-owned business enterprise participation; 22 (g) consistent with subdivision six of this section, provide for 23 circumstances under which an agency may waive obligations of the 24 contractor relating to minority and women-owned business enterprise 25 participation; 26 (h) require that an agency verify that minority and women-owned busi- 27 ness enterprises listed in a successful bid are actually participating 28 to the extent listed in the project for which the bid was submitted; 29 (i) provide for the collection of statistical data by each agency 30 concerning actual minority and women-owned business enterprise partic- 31 ipation; 32 (j) require each agency to consult the most current disparity study 33 when calculating agency-wide and contract specific participation goals 34 pursuant to this article; [and] 35 (k) encourage joint ventures, partnerships, and mentor-protege 36 relationships as defined in section one hundred forty-seven of the state 37 finance law, between prime contractors and minority and women-owned 38 business enterprises; and 39 Such rules shall set forth the maximum personal net worth of a minori- 40 ty group member or woman who may be relied upon to certify a business as 41 a minority-owned business enterprise or women-owned business enterprise, 42 and may establish different maximum levels of personal net worth for 43 minority group members and women on an industry-by-industry basis for 44 such industries as the director shall determine. Such regulations relat- 45 ing to the classification of the industry-by-industry personal net worth 46 thresholds above the fifteen million dollar threshold shall consider the 47 personal net worth of the owners of both certified and non-certified 48 businesses, including but not limited to, prime contractors and subcon- 49 tractors, as well as any such other factors needed to establish such 50 thresholds. The provisions of the regulations pertaining to personal net 51 worth shall, to the extent practicable, be implemented by June thirti- 52 eth, two thousand twenty and shall consider adjustments for inflation 53 annually on January first of the previous year according to the consumer 54 price index. 55 3. Solely for the purpose of providing the opportunity for meaningful 56 participation by certified businesses in the performance of stateS. 5464 6 1 contracts as provided in this section, state contracts shall include 2 leases of real property by a state agency to a lessee where: the terms 3 of such leases provide for the construction, demolition, replacement, 4 major repair or renovation of real property and improvements thereon by 5 such lessee; and the cost of such construction, demolition, replacement, 6 major repair or renovation of real property and improvements thereon 7 shall exceed the sum of one hundred thousand dollars. Reports to the 8 director pursuant to section three hundred fifteen of this article shall 9 include activities with respect to all such state contracts. Contracting 10 agencies shall include or require to be included with respect to state 11 contracts for the acquisition, construction, demolition, replacement, 12 major repair or renovation of real property and improvements thereon, 13 such provisions as [may] shall be necessary to effectuate the provisions 14 of this section in every bid specification and state contract, includ- 15 ing, but not limited to: (a) provisions requiring contractors to make a 16 good faith effort to solicit active participation by enterprises identi- 17 fied in the directory of certified businesses; (b) requiring the parties 18 to agree as a condition of entering into such contract, to be bound by 19 the provisions of section three hundred sixteen of this article; and (c) 20 requiring the contractor to include the provisions set forth in para- 21 graphs (a) and (b) of this subdivision in every subcontract in a manner 22 that the provisions will be binding upon each subcontractor as to work 23 in connection with such contract. Provided, however, that no such 24 provisions shall be binding upon contractors or subcontractors in the 25 performance of work or the provision of services that are unrelated, 26 separate or distinct from the state contract as expressed by its terms, 27 and nothing in this section shall authorize the director or any 28 contracting agency to impose any requirement on a contractor or subcon- 29 tractor except with respect to a state contract. 30 (a) Contracting agencies shall administer the rules and regulations 31 promulgated by the director in a good faith effort to achieve the maxi- 32 mum feasible participation by minority and [women owned] women-owned 33 business enterprises adopted pursuant to this article and the regu- 34 lations of the director. Such rules and regulations: shall require a 35 contractor to submit a utilization plan [after bids are opened] at the 36 time bids are submitted, when bids are required, [but prior to the award37of a state contract]; shall require the contracting agency to review the 38 utilization plan submitted by the contractor and to post the utilization 39 plan and any waivers of compliance issued pursuant to subdivision six of 40 this section on the website of the contracting agency; shall require the 41 contracting agency to notify the contractor in writing within a period 42 of time specified by the director as to any deficiencies contained in 43 the contractor's utilization plan; shall require remedy thereof within a 44 period of time specified by the director; shall require the contractor 45 to submit [periodic] quarterly compliance reports relating to the opera- 46 tion and implementation of any utilization plan; shall not allow any 47 automatic waivers but shall allow a contractor to apply for a partial or 48 total waiver of the minority and women-owned business enterprise partic- 49 ipation requirements pursuant to subdivisions six and seven of this 50 section; shall allow a contractor to file a complaint with the director 51 pursuant to subdivision eight of this section in the event a contracting 52 agency has failed or refused to issue a waiver of the minority and 53 women-owned business enterprise participation requirements or has denied 54 such request for a waiver; and shall allow a contracting agency to file 55 a complaint with the director pursuant to subdivision nine of this 56 section in the event a contractor is failing or has failed to complyS. 5464 7 1 with the minority and women-owned business enterprise participation 2 requirements set forth in the state contract where no waiver has been 3 granted. 4 § 4. Subdivisions 1 and 3 of section 315 of the executive law, as 5 amended by chapter 96 of the laws of 2019, are amended to read as 6 follows: 7 1. Each contracting agency shall be responsible for monitoring state 8 contracts under its jurisdiction, and recommending matters to the office 9 respecting non-compliance with the provisions of this article so that 10 the office [may] shall take such action as [is appropriate] stated in 11 subdivision four of section three hundred sixteen of this article. Each 12 contracting agency shall have the right to recommend that the director 13 impose a sanction, penalty, or fine for three or more violations of 14 section three hundred sixteen of this article, to ensure compliance with 15 the provisions of this article, the rules and regulations of the direc- 16 tor issued hereunder and the contractual provisions required pursuant to 17 this article. All contracting agencies shall comply with the rules and 18 regulations of the office and are directed to cooperate with the office 19 and to furnish to the office such information and assistance as may be 20 required in the performance of its functions under this article. 21 3. [Each contracting agency shall report to the director with respect22to activities undertaken to promote employment of minority group members23and women and promote and increase participation by certified businesses24with respect to state contracts and subcontracts. Such reports shall be25submitted no later than May fifteenth of every year and shall include26such information as is necessary for the director to determine whether27the contracting agency and any contractor to the contracting agency have28complied with the purposes of this article, including, without limita-29tion, a summary of all waivers of the requirements of subdivisions six30and seven of section three hundred thirteen of this article allowed by31the contracting agency during the period covered by the report, includ-32ing a description of the basis of the waiver request and the rationale33for granting any such waiver and any instances in which the contract34agency has deemed a contractor to have committed a violation pursuant to35section three hundred sixteen of this article and such other information36as the director shall require. Each agency shall also include in such37annual report whether or not it has been required to prepare a remedial38plan, and, if so, the plan and the extent to which the agency has39complied with each element of the plan.] (a) Each contracting agency 40 shall prepare a quarterly report and submit copies to the commissioner 41 of economic development, the commissioner of general services, and the 42 director as to the level of minority and women-owned business enter- 43 prises participation in the awarding of agency contracts for goods and 44 services, including but not limited to, the number of state contracts 45 awarded to certified minority or women-owned business enterprises; the 46 maximum dollar amount obligated pursuant to such contracts, and the 47 total expenditures made pursuant to all such contracts; the number of 48 state contracts awarded upon which a waiver was granted from goals 49 required by the contracts for business participation by certified minor- 50 ity or women-owned business enterprises, and the maximum amount obli- 51 gated pursuant to such contracts; the number of state contracts awarded 52 which required goals for employment of minority group members and women; 53 and the number of state contracts awarded for which waivers of employ- 54 ment goals required by the contracts have been granted;S. 5464 8 1 (b) In addition, each contracting agency shall be responsible for the 2 cost of an independent audit resulting from the agency's repeated 3 violations of this section. 4 (c) Within thirty days after completion, a copy of the quarterly 5 minority and women-owned business enterprise report shall be transmitted 6 to the commissioner of economic development, the commissioner of general 7 services, and the director. A contracting agency, which has not let more 8 than two million dollars in service and/or construction contracts within 9 the applicable period may apply to the commissioner of economic develop- 10 ment, and the director for a waiver of the required annual report. The 11 waiver application shall be made on such form as the commissioner of 12 economic development and the director may prescribe. 13 (d) If a contracting agency shall fail to file or substantially 14 complete, as determined by the commissioner of economic development and 15 the director, the report required by this section, the director shall 16 provide notice to the contracting agency. The notice shall state the 17 following: 18 (i) that the failure to file a report as required is a violation of 19 this section, or in case of an insufficient report, the manner in which 20 the report submitted is deficient; 21 (ii) that the contracting agency has thirty days to comply with this 22 section or provide an adequate written explanation to the commissioner 23 of economic development, the commissioner of general services and the 24 director of the contracting agency's reasons for the inability to 25 comply; and 26 (iii) that the contracting agency's continued failure to provide 27 either the required report or an adequate explanation will result in an 28 independent audit of the contracting agency, the cost of which shall be 29 borne by the contracting agency. 30 § 5. Section 316 of the executive law, as amended by chapter 567 of 31 the laws of 2022, is amended to read as follows: 32 § 316. [Enforcement] Violations and enforcement. 1. It shall be a 33 violation for any person or entity to: 34 (a) intentionally use or acquire an MWBE name through deceit or other 35 dishonest means in order to negotiate a lower bid from a non-MWBE. 36 (b) submit to the department of economic development, documents or 37 other material as evidence of a good faith effort to comply with the 38 provisions of this article without, in fact, having entered into any 39 contract, agreement, subcontract, or sub-agreement with an MWBE for the 40 use or purchase of such business enterprise's goods or services in the 41 performance of the awarded state contract. 42 (c) fail to provide an MWBE with sufficient information or other 43 required supporting documentation in order for the MWBE to prepare a 44 proper bid. 45 2. Upon receipt by the director of a complaint by a contracting agency 46 that a contractor has violated the provisions of a state contract which 47 have been included to comply with the provisions of this article or of a 48 contractor that a contracting agency has violated such provisions or has 49 failed or refused to issue a waiver where one has been applied for 50 pursuant to subdivision six of section three hundred thirteen of this 51 article or has denied such application, the director shall attempt to 52 resolve the matter giving rise to such complaint. If efforts to resolve 53 such matter to the satisfaction of all parties are unsuccessful, the 54 director shall refer the matter, within thirty days of the receipt of 55 the complaint, to the division's hearing officers. Upon conclusion of 56 the administrative hearing, the hearing officer shall submit to theS. 5464 9 1 director his or her decision regarding the alleged violation of the 2 contract and recommendations regarding the imposition of sanctions, 3 fines or penalties. The director, within ten days of receipt of the 4 decision, shall file a determination of such matter and shall cause a 5 copy of such determination along with a copy of this article to be 6 served upon the contractor by personal service or by certified mail 7 return receipt requested. The decision of the hearing officer shall be 8 final and may only be vacated or modified as provided in article seven- 9 ty-eight of the civil practice law and rules upon an application made 10 within the time provided by such article. The determination of the 11 director as to the imposition of any fines, sanctions or penalties shall 12 be reviewable pursuant to article seventy-eight of the civil practice 13 law and rules. The penalties imposed for any violation which is premised 14 upon either a fraudulent or intentional misrepresentation by the 15 contractor or the contractor's willful and intentional disregard of the 16 minority and women-owned participation requirement included in the 17 contract may include a determination that the contractor shall be ineli- 18 gible to submit a bid to any contracting agency or be awarded any such 19 contract for a period not to exceed one year following the final deter- 20 mination; provided however, if a contractor has previously been deter- 21 mined to be ineligible to submit a bid pursuant to this section, the 22 penalties imposed for any subsequent violation, if such violation occurs 23 within five years of the first violation, may include a determination 24 that the contractor shall be ineligible to submit a bid to any contract- 25 ing agency or be awarded any such contract for a period not to exceed 26 five years following the final determination. The division of minority 27 and women's business development shall maintain a website listing all 28 contractors that have been deemed ineligible to submit a bid pursuant to 29 this section and the date after which each contractor shall once again 30 become eligible to submit bids. 31 [2.] 3. Any fines, or portion thereof, imposed pursuant to the forego- 32 ing subdivision, or imposed by a court of competent jurisdiction related 33 to convictions involving fraud related to this article or otherwise 34 involving a minority or women-owned business enterprise, may be required 35 by the entity imposing such fines to be paid to the minority and women- 36 owned business enterprise fund established pursuant to section ninety- 37 seven-k of the state finance law. 38 4. The director shall impose a sanction, penalty, or fine on any indi- 39 vidual or entity that has three or more violations of this article with- 40 in five years. Such fine shall be paid by such individual or entity. 41 Notwithstanding the provisions of subdivision three of this section, 42 such fine shall be remitted and deposited into a fund, to be managed by 43 the commissioner of economic development. Such funds shall be used to 44 subsidize the facilitation of the provisions of this article. Other 45 sanctions shall include barring such entity or individual from contract- 46 ing with such agency for a period not to exceed five years. 47 § 6. Subdivision 1 of section 137 of the state finance law, as sepa- 48 rately amended by section 17 of part MM of chapter 57 and by chapter 619 49 of the laws of 2008, is amended to read as follows: 50 1. In addition to other bond or bonds, if any, required by law for the 51 completion of a work specified in a contract for the prosecution of a 52 public improvement for the state of New York a municipal corporation, a 53 public benefit corporation or a commission appointed pursuant to law, or 54 in the absence of any such requirement, the comptroller may or the other 55 appropriate official, respectively, shall nevertheless require prior to 56 the approval of any such contract a bond guaranteeing prompt payment ofS. 5464 10 1 moneys due to all persons furnishing labor or materials to the contrac- 2 tor or any subcontractors in the prosecution of the work provided for in 3 such contract. Whenever a municipal corporation issues a permit subject 4 to compliance with section two hundred twenty of the labor law, such 5 permittee or its contractor or subcontractors furnishing workers shall 6 post a payment bond subject to this section. Provided, however, that all 7 performance bonds and payment bonds may, at the discretion of the head 8 of the state agency, public benefit corporation or commission, or his or 9 her designee, be dispensed with for the completion of a work specified 10 in a contract for the prosecution of a public improvement for the state 11 of New York for which bids are solicited where the aggregate amount of 12 the contract is under one hundred fifty thousand dollars and provided 13 further, that in a case where the contract is not subject to the multi- 14 ple contract award requirements of section one hundred thirty-five of 15 this article, such requirements may be dispensed with where the head of 16 the state agency, public benefit corporation or commission finds it to 17 be in the public interest and where the aggregate amount of the contract 18 awarded or to be awarded is less than two hundred thousand dollars. The 19 head of the state agency, public benefit corporation or commission, or 20 his or her designee, shall adjust the aggregate contract amounts listed 21 in this subdivision every year to account for increases in the costs of 22 construction. Advertisements for bids shall provide information on the 23 requirements for, or dispensation of, performance and payment bonds. 24 Provided further, that in a case where a performance or payment bond is 25 dispensed with, twenty per centum may be retained from each progress 26 payment or estimate until the entire contract work has been completed 27 and accepted, at which time the head of the state agency, public benefit 28 corporation or commission shall, pending the payment of the final esti- 29 mate, pay not to exceed seventy-five per centum of the amount of the 30 retained percentage. 31 § 7. Subdivision 4 of section 139-f of the state finance law, as 32 amended by chapter 83 of the laws of 1995, is amended to read as 33 follows: 34 4. Notwithstanding any other provision of this section or other law, 35 requirements for the furnishing of a performance bond or a payment bond 36 may be dispensed with at the discretion of the head of the state agency 37 or corporation, or his or her designee, where the public owner is a 38 state agency or corporation described in subdivision one-a of this 39 section and the aggregate amount of the contract awarded or to be 40 awarded is under fifty thousand dollars and, in a case where the 41 contract is not subject to the multiple contract award requirements of 42 section one hundred thirty-five of this article, such requirements may 43 be dispensed with where the head of the state agency or corporation 44 finds it to be in the public interest and where the aggregate amount of 45 the contract awarded or to be awarded is under [two] three hundred thou- 46 sand dollars. The head of the state agency, public benefit corporation 47 or commission, or his or her designee, shall adjust the aggregate 48 contract amounts listed in this subdivision every year to account for 49 increases in the costs of construction. Advertisements for bids shall 50 provide information on the requirements for, or dispensation of, 51 performance and payment bonds. Provided further, that in a case where a 52 performance or payment bond is dispensed with, twenty per centum may be 53 retained from each progress payment or estimate until the entire 54 contract work has been completed and accepted, at which time the head of 55 the state agency or corporation shall, pending the payment of the finalS. 5464 11 1 estimate, pay not to exceed seventy-five per centum of the amount of the 2 retained percentage. 3 § 8. The opening paragraph of section 139-g of the state finance law, 4 as amended by chapter 636 of the laws of 2003, is amended to read as 5 follows: 6 In every state agency, department and authority which has let more 7 than two million dollars in service and construction contracts and state 8 assisted project contracts in the prior fiscal year, the chief executive 9 officer of that agency, department or authority shall, with respect to 10 those contracts and state assisted project contracts let by his or her 11 agency, department or authority: 12 § 9. The opening paragraph of subdivision (b) of section 139-g of the 13 state finance law, as amended by chapter 636 of the laws of 2003, is 14 amended to read as follows: 15 identify all small-business and certified women and minority-owned 16 business concerns which, in the judgment of the chief executive officer 17 of that agency, department or authority, can bid on those contracts and 18 state assisted project contracts which are usually and customarily let 19 by that agency, department or authority, or in which that authority 20 provides a grant or loan or tax exempt financing, with a reasonable 21 expectation of success. Such chief executive officers shall carry out 22 the provisions of this subdivision: 23 § 10. Section 139-g of the state finance law is amended by adding a 24 new subdivision (e) to read as follows: 25 (e) For the purposes of this section, the following terms shall have 26 the following meanings: 27 (i) "State assisted project contract" shall mean any written agreement 28 arising out of a state assisted housing project or state assisted 29 economic development project or state assisted higher education project 30 or state assisted hospital or health care facility project, for which 31 the total project cost exceeds two million dollars and for which the 32 project owner is committed to spend or does expend funds for the acqui- 33 sition, construction, demolition, replacement, major repair, or reno- 34 vation of real property and improvements thereon for such project. 35 (ii) "State assisted housing project" shall mean those projects which 36 receive from the New York state housing finance agency tax-exempt 37 financing for all or part of the total project cost. 38 (iii) "State assisted economic development project" shall mean those 39 projects which receive from the New York foundation of science, technol- 40 ogy and innovation, or the urban development corporation and its subsid- 41 iaries a grant or loan or tax-exempt financing for all or part of the 42 total project cost. 43 (iv) "State assisted higher education project" shall mean those 44 projects which receive from the dormitory authority of the state of New 45 York a grant or loan or tax-exempt financing for all or part of the 46 total project cost. 47 (v) "State assisted hospital or health care facility project" shall 48 mean those projects which receive from the dormitory authority of the 49 state of New York a grant or loan or tax-exempt financing for all or 50 part of the total project cost. 51 § 11. This act shall take effect immediately, provided however, the 52 amendments to article 15-A of the executive law made by sections one, 53 two, three, four and five of this act shall not affect the expiration of 54 such article and shall be deemed repealed therewith.
