Bill Text: NY S04479 | 2023-2024 | General Assembly | Introduced


Bill Title: Relates to purchasing restrictions on persons boycotting Israel and the investment of certain public funds in companies boycotting Israel; requires the commissioner of general services to compile a list of companies boycotting Israel; establishes that such companies will be considered non-responsive bidders.

Spectrum: Bipartisan Bill

Status: (Introduced) 2024-01-03 - REFERRED TO PROCUREMENT AND CONTRACTS [S04479 Detail]

Download: New_York-2023-S04479-Introduced.html



                STATE OF NEW YORK
        ________________________________________________________________________

                                          4479

                               2023-2024 Regular Sessions

                    IN SENATE

                                    February 9, 2023
                                       ___________

        Introduced  by  Sen. ADDABBO -- read twice and ordered printed, and when
          printed to be committed to the Committee on Procurement and Contracts

        AN ACT to amend  the  state  finance  law,  in  relation  to  purchasing
          restrictions on persons boycotting Israel; and to amend the retirement
          and  social  security  law,  in  relation to the investment of certain
          public funds in companies boycotting Israel

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

     1    Section  1.  The  state finance law is amended by adding a new section
     2  165-b to read as follows:
     3    § 165-b. Purchasing restrictions; persons  boycotting  Israel.  1.  As
     4  used in this section, the following definitions shall apply:
     5    (a) "Boycott Israel" or "boycott activities" means engaging in actions
     6  that  are  intended  to penalize, inflict economic harm on, or otherwise
     7  limit commercial relations with the State of Israel or  companies  based
     8  in  the  State  of  Israel  or in territories controlled by the State of
     9  Israel.
    10    (b) "Boycott Israel" or "boycott activities" do  not  include  actions
    11  necessary to comply with applicable law in the business's home jurisdic-
    12  tion.
    13    (c) "Person" means:
    14    (i) A corporation, company, limited liability company, business, busi-
    15  ness  association,  partnership, society, trust, or any other nongovern-
    16  mental entity, organization, or group.
    17    (ii) Any successor, subunit, parent entity, or subsidiary of,  or  any
    18  entity  under  common ownership or control with, any entity described in
    19  subparagraph (i) of this paragraph.
    20    2. (a) A person that is identified on a list created pursuant to para-
    21  graph (b) of this subdivision  as  a  person  that  boycotts  Israel  as
    22  described  in  subdivision  one  of  this section, shall not be deemed a

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD02831-01-3

        S. 4479                             2

     1  responsive bidder or offerer pursuant to section one hundred sixty-three
     2  of this article.
     3    (b)  (i)  Not  later  than one hundred twenty days after the effective
     4  date of this section, the commissioner  shall  develop  or  contract  to
     5  develop,  using  credible information available to the public, including
     6  but not limited to information  provided  by  non-profit  organizations,
     7  research  firms,  international organizations and government entities, a
     8  list of persons it determines boycott Israel as described in subdivision
     9  one of this section. If the commissioner has contracted to  develop  the
    10  list,  the  list  shall  be finally developed not later than one hundred
    11  twenty days after this  section  shall  take  effect.  Such  list,  when
    12  completed,  shall  be  posted  on  the  website of the office of general
    13  services.  A statement by a person or representative of  a  person  with
    14  apparent authority to make such a statement, that it is participating in
    15  a boycott of Israel, or that it has initiated a boycott in response to a
    16  request  for a boycott of Israel, shall be considered as evidence that a
    17  company is participating in a boycott of Israel.
    18    (ii) The commissioner shall update the list every one  hundred  eighty
    19  days.
    20    (iii)  Before  finalizing an initial list pursuant to subparagraph (i)
    21  of this paragraph or an updated list pursuant to  subparagraph  (ii)  of
    22  this paragraph, the commissioner shall do all of the following:
    23    (1)  Provide  ninety days' written notice of the commissioner's intent
    24  to include the person on the list. The notice shall  inform  the  person
    25  that inclusion on the list would make the person a non-responsive bidder
    26  or offerer. The notice shall specify the boycott activities as described
    27  in  subdivision  one  of  this section, and provide that such person may
    28  apply to the commissioner, or to a supreme court,  to  be  removed  from
    29  such  list  pursuant to the requirements of this paragraph, if it ceases
    30  such activities.
    31    (2) In the event a person included by the commissioner on the list  to
    32  be  developed  and  published  in accordance with this paragraph, demon-
    33  strates to the commissioner or to a supreme court that  such  person  is
    34  not  engaged  in such boycott activities as described in subdivision one
    35  of this section, or has ceased such boycotting activities,  the  commis-
    36  sioner shall remove such person from the list developed and published in
    37  accordance with this paragraph.
    38    (3) The commissioner shall make a good faith effort to avoid including
    39  a person on the list who is not engaged in boycotting the state of Isra-
    40  el.
    41    (c)  Notwithstanding  paragraphs  (a)  and  (b) of this subdivision, a
    42  state agency may permit a  person  boycotting  Israel  as  described  by
    43  subdivision  one  of  this  section  to be deemed a responsive bidder or
    44  offerer, on a case-by-case basis with a state agency if:
    45    (i) The boycott activities were made before the effective date of this
    46  section, such activities have not been expanded  or  renewed  after  the
    47  effective  date of this section, and the person has adopted, publicized,
    48  and is implementing a plan to cease such activities and to refrain  from
    49  engaging in any new boycott activities; or
    50    (ii)  The  state  agency makes a determination that the commodities or
    51  services are necessary for the state agency to perform its functions and
    52  that, absent such an exemption, the state  agency  would  be  unable  to
    53  obtain  the  commodities  or services for which the contract is offered.
    54  Such determination shall be entered into the procurement record.
    55    3. (a) A state agency shall require a person that  submits  a  bid  or
    56  offer  in response to a notice of procurement, or that proposes to renew

        S. 4479                             3

     1  an existing procurement contract with a  state  agency  or  proposes  to
     2  assume  the  responsibility  of  a  contractor pursuant to a procurement
     3  contract with a state agency or  otherwise  proposes  to  enter  into  a
     4  contract with a state agency with respect to a contract for commodities,
     5  services,  construction,  or contracts entered pursuant to section eight
     6  of the public buildings law or section thirty-eight of the highway  law,
     7  to  certify, at the time the bid is submitted or the contract is renewed
     8  or assigned, that the person or the assignee is not identified on a list
     9  created pursuant to paragraph (b) of subdivision two of this section.  A
    10  state  agency shall include certification information in the procurement
    11  record.
    12    (b) A person that submits a bid or offer in response to  a  notice  of
    13  procurement  or  that proposes to renew an existing procurement contract
    14  with a state agency or  proposes  to  assume  the  responsibility  of  a
    15  contractor  pursuant  to  a procurement contract with a state agency, or
    16  otherwise proposes to enter into a contract with  a  state  agency  with
    17  respect  to  a  contract  for  commodities,  services,  construction, or
    18  contracts entered pursuant to section eight of the public buildings  law
    19  or  section  thirty-eight  of  the highway law shall not utilize, on the
    20  contract with the state agency, any subcontractor that is identified  on
    21  a  list  created  pursuant  to  paragraph (b) of subdivision two of this
    22  section.
    23    4. Upon receiving information that a person who has made  the  certif-
    24  ication  required  by  subdivision three of this section is in violation
    25  thereof, the state agency shall review such information  and  offer  the
    26  person  an  opportunity  to  respond. If the person fails to demonstrate
    27  that it has ceased its boycott activities which are in violation of this
    28  act within ninety days after the determination of such  violation,  then
    29  the  state  agency  shall  take  such  action  as may be appropriate and
    30  provided for by law, rule or contract, including, but  not  limited  to,
    31  imposing  sanctions, seeking compliance, recovering damages or declaring
    32  the contractor in default.
    33    5. The commissioner shall report to  the  governor,  comptroller,  the
    34  temporary  president of the senate and the speaker of the assembly annu-
    35  ally on or before October first, on the status of this section  and  any
    36  rules or regulations adopted thereunder.
    37    § 2. The retirement and social security law is amended by adding a new
    38  section 423-d to read as follows:
    39    §  423-d.  Investment  of certain public funds in companies boycotting
    40  Israel. 1. For purposes of this section:
    41    (a) "boycott Israel" means engaging in actions that  are  intended  to
    42  penalize,  inflict  economic  harm  on,  or  otherwise  limit commercial
    43  relations with the State of Israel or companies based in  the  State  of
    44  Israel or in territories controlled by the State of Israel.
    45    (b) "Boycott Israel" does not include actions necessary to comply with
    46  applicable law in the business's home jurisdiction.
    47    2.  On  and  after  the  effective  date of this section, no moneys or
    48  assets of the common retirement fund shall be invested  in  the  stocks,
    49  securities or other obligations of any institution or company boycotting
    50  Israel.  Notwithstanding any provision of law to the contrary, no assets
    51  of any pension or annuity fund  under  the  jurisdiction  of  the  comp-
    52  troller,  shall  be  invested in any bank or financial institution which
    53  directly or through a subsidiary boycotts  Israel  and  no  such  assets
    54  shall  be invested in the stocks, securities or other obligations of any
    55  company which directly or through a subsidiary boycotts Israel.

        S. 4479                             4

     1    3. The comptroller shall take  appropriate  action  to  sell,  redeem,
     2  divest or withdraw any investment held in violation of the provisions of
     3  this  section. This section shall not be construed to require the prema-
     4  ture or otherwise imprudent sale, redemption, divestment  or  withdrawal
     5  of  an  investment,  but such sale, redemption, divestment or withdrawal
     6  shall be completed no later than three  years  following  the  effective
     7  date of this section.
     8    4.  Within  sixty  days  after the effective date of this section, the
     9  comptroller shall issue a report to the governor, the  comptroller,  the
    10  temporary  president  of the senate, and the speaker of the assembly and
    11  file with the legislature a report of all investments  held  as  of  the
    12  effective  date of this section which are in violation of the provisions
    13  of this section. Every year thereafter, the comptroller shall report  on
    14  all investments sold, redeemed, divested or withdrawn in compliance with
    15  this  section.  Each  report  after  the  initial report shall provide a
    16  description of the progress which the comptroller  has  made  since  the
    17  previous report and since the effective date of this section.
    18    § 3. This act shall take effect immediately.
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