Bill Text: NY A00289 | 2023-2024 | General Assembly | Introduced
Bill Title: Relates to participation by LGBT, disability and veteran-owned businesses in state contracts.
Spectrum: Partisan Bill (Democrat 9-0)
Status: (Introduced) 2024-01-03 - referred to governmental operations [A00289 Detail]
Download: New_York-2023-A00289-Introduced.html
STATE OF NEW YORK ________________________________________________________________________ 289 2023-2024 Regular Sessions IN ASSEMBLY January 4, 2023 ___________ Introduced by M. of A. BRONSON, SEAWRIGHT, OTIS, CRUZ, EPSTEIN, LAVINE, REYES, GLICK -- read once and referred to the Committee on Govern- mental Operations AN ACT to amend the executive law, in relation to participation by LGBT, disability and veteran-owned businesses in state contracts; and providing for the repeal of such provisions upon expiration thereof The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. Short title. This act shall be known and may be cited as 2 the "New York State Supplier Diversity Act". 3 § 2. The executive law is amended by adding a new article 17-C to read 4 as follows: 5 ARTICLE 17-C 6 SUPPLIER DIVERSITY IN STATE CONTRACTING OPPORTUNITIES 7 Section 369-m. Definitions. 8 369-n. Division of supplier diversity. 9 369-o. Opportunities for certified LGBT, disability and veter- 10 an-owned business enterprises. 11 369-p. Severability. 12 § 369-m. Definitions. As used in this article, the following terms 13 shall have the following meanings: 14 1. "Certified LGBT, disability, or veteran-owned business enterprise" 15 shall mean a business enterprise, including a sole proprietorship, part- 16 nership, limited liability company or corporation that is: 17 (a) at least fifty-one percent owned by one or more LGBT individuals, 18 disabled individuals or veterans; 19 (b) an enterprise in which such LGBT, disability or veteran ownership 20 is real, substantial, and continuing; 21 (c) an enterprise in which such LGBT, disability or veteran ownership 22 has and exercises the authority to control independently the day-to-day 23 business decisions of the enterprise; EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD01497-01-3A. 289 2 1 (d) an enterprise authorized to do business in this state and which is 2 independently owned and operated; 3 (e) an enterprise that is a small business which has a significant 4 business presence in the state, not dominant in its field and employs, 5 based on its industry, a certain number of persons as determined by the 6 director, but not to exceed three hundred, taking into consideration 7 factors which include, but are not limited to, federal small business 8 administration standards pursuant to 13 CFR part 121 and any amendments 9 thereto; and 10 (f) certified by the office of general services, or an approved third- 11 party agency pursuant to subdivision five of section three hundred 12 sixty-nine-n of this article. 13 2. "Commissioner" shall mean the commissioner of the office of general 14 services. 15 3. "Director" shall mean the director of the division of supplier 16 diversity. 17 4. "Disabled individual" shall mean a person who has physical, mental 18 or medical impairment from anatomical, physiological or neurological 19 conditions which prevents the exercise of a normal bodily function or is 20 demonstrable by medically accepted clinical or laboratory diagnostic 21 techniques. 22 5. "Division" shall mean the division of supplier diversity in the 23 office of general services. 24 6. "LGBT individual" shall mean a person who identifies as lesbian, 25 gay, bisexual or transgender. 26 7. "State agency" shall mean: (a)(i) any state department; or (ii) any 27 division, board, commission or bureau of any state department; or (iii) 28 the state university of New York and the city university of New York, 29 including all their constituent units except community colleges and the 30 independent institutions operating statutory or contract colleges on 31 behalf of the state; or (iv) a board, a majority of whose members are 32 appointed by the governor or who serve by virtue of being state officers 33 or employees as defined in subparagraph (i), (ii) or (iii) of paragraph 34 (i) of subdivision one of section seventy-three of the public officers 35 law. 36 (b) a "state authority," as defined in subdivision one of section two 37 of the public authorities law, and the following: 38 Albany County Airport Authority; 39 Albany Port District Commission; 40 Alfred, Almond, Hornellsville Sewer Authority; 41 Battery Park City Authority; 42 Cayuga County Water and Sewer Authority; 43 (Nelson A. Rockefeller) Empire State Plaza Performing Arts Center 44 Corporation; 45 Industrial Exhibit Authority; 46 Livingston County Water and Sewer Authority; 47 Long Island Power Authority; 48 Long Island Rail Road; 49 Long Island Market Authority; 50 Manhattan and Bronx Surface Transit Operating Authority; 51 Metro-North Commuter Railroad; 52 Metropolitan Suburban Bus Authority; 53 Metropolitan Transportation Authority; 54 Natural Heritage Trust; 55 New York City Transit Authority; 56 New York Convention Center Operating Corporation;A. 289 3 1 New York State Bridge Authority; 2 New York State Olympic Regional Development Authority; 3 New York State Thruway Authority; 4 Niagara Falls Public Water Authority; 5 Niagara Falls Water Board; 6 Port of Oswego Authority; 7 Power Authority of the State of New York; 8 Roosevelt Island Operating Corporation; 9 Schenectady Metroplex Development Authority; 10 State Insurance Fund; 11 Staten Island Rapid Transit Operating Authority; 12 State University Construction Fund; 13 Syracuse Regional Airport Authority; 14 Triborough Bridge and Tunnel Authority; 15 Upper Mohawk valley regional water board; 16 Upper Mohawk valley regional water finance authority; 17 Upper Mohawk valley memorial auditorium authority; 18 Urban Development Corporation and its subsidiary corporations. 19 (c) the following only to the extent of state contracts entered into 20 for its own account or for the benefit of a state agency as defined in 21 paragraph (a) or (b) of this subdivision: 22 Dormitory Authority of the State of New York; 23 Facilities Development Corporation; 24 New York State Energy Research and Development Authority; 25 New York State Science and Technology Foundation. 26 (d) "state contract" shall mean: (i) a written agreement or purchase 27 order instrument, providing for a total expenditure in excess of twen- 28 ty-five thousand dollars, whereby a contracting agency is committed to 29 expend or does expend funds in return for labor, services including but 30 not limited to legal, financial and other professional services, 31 supplies, equipment, materials or any combination of the foregoing, to 32 be performed for, or rendered or furnished to the contracting agency; 33 (ii) a written agreement in excess of one hundred thousand dollars 34 whereby a contracting agency is committed to expend or does expend funds 35 for the acquisition, construction, demolition, replacement, major repair 36 or renovation of real property and improvements thereon; and (iii) a 37 written agreement in excess of one hundred thousand dollars whereby the 38 owner of a state assisted housing project is committed to expend or does 39 expend funds for the acquisition, construction, demolition, replacement, 40 major repair or renovation of real property and improvements thereon for 41 such project. 42 8. "Veteran" shall mean a person who served in and who has received an 43 honorable or general discharge from the United States army, navy, air 44 force, marines, coast guard, and/or reserves thereof, and/or the army 45 national guard, air national guard, New York guard and/or the New York 46 naval militia. 47 § 369-n. Division of supplier diversity. 1. The head of the division 48 of supplier diversity shall be the director who shall be appointed by 49 the governor and who shall hold office at the pleasure of the commis- 50 sioner. 51 2. The director may appoint such deputies, assistants, and other 52 employees as may be needed for the performance of the duties prescribed 53 herein subject to the provisions of the civil service law and the rules 54 and regulations of the civil service commission. The director may 55 request and shall receive from any (a) department, division, board, 56 bureau, or executive commission of the state or (b) state agency, suchA. 289 4 1 assistance as may be necessary to carry out the provisions of this arti- 2 cle. 3 3. The director shall have the following powers and duties: 4 (a) Develop, collect, summarize and disseminate information that will 5 be helpful to persons and organizations throughout the state in under- 6 taking or promoting the establishment and successful operation of an 7 LGBT, disability or veteran-owned business. 8 (b) Develop and make available to state agencies a directory of certi- 9 fied LGBT, disability and veteran-owned business enterprises which 10 shall, wherever practicable, be divided into categories of labor, 11 services, supplies, equipment, materials and recognized construction 12 trades and which shall indicate areas or locations of the state where 13 such enterprises are available to perform services. Such directory shall 14 be posted on the office of general services website. 15 (c) Assist state agencies in the development of programs to foster and 16 promote the use of LGBT, disability and veteran-owned business enter- 17 prises on state contracts. 18 (d) Coordinate the plans, programs and operations of the state govern- 19 ment which affect or may contribute to the establishment, preservation 20 and development of LGBT, disability and veteran-owned business enter- 21 prises. 22 (e) To appoint independent hearing officers who by contract or terms 23 of employment shall preside over adjudicatory hearings pursuant to this 24 section for the office of general services and who are assigned no other 25 work by the office of general services. 26 (f) In conjunction with the commissioner, develop a comprehensive 27 statewide plan and operational guidelines to promote LGBT, disability 28 and veteran-owned business enterprises and to assist them in obtaining 29 opportunities to participate in the procurement of goods and services by 30 the state, including identification of barriers to business development 31 and investigation and evaluation of their impact on achieving the objec- 32 tives of this article. 33 4. The commissioner shall: 34 (a) Coordinate training of all procurement personnel of state agen- 35 cies, emphasizing increased sensitivity and responsiveness to the unique 36 needs and requirements of LGBT, disability and veteran-owned business 37 enterprises. 38 (b) Conduct a coordinated review of all existing and proposed state 39 training and technical assistance activities in direct support of the 40 supplier diversity program to assure consistency with the objectives of 41 this article. 42 (c) Evaluate and assess availability of firms for the purpose of 43 increasing participation of such firms in state contracting in consulta- 44 tion with relevant state entities. 45 (d) Provide advice and technical assistance to promote LGBT, disabili- 46 ty and veteran-owned business enterprises' understanding of state 47 procurement laws, practices and procedures to facilitate and increase 48 the participation of LGBT, disability and veteran-owned business enter- 49 prises in state procurement. 50 (e) Establish regular performance reporting systems regarding imple- 51 mentation of the programs designed to increase LGBT, disability and 52 veteran-owned business participation in procurement contracts by state 53 agencies. 54 (f) Submit a report by the thirty-first of December each year, with 55 the first report due by the thirty-first of December in the calendar 56 year next succeeding the calendar year in which this article shall haveA. 289 5 1 become a law, to the governor, the temporary president of the senate, 2 and the speaker of the assembly. Such report shall include information 3 including, but not limited to, the number of contracts entered into 4 pursuant to this article, the average amount of such contracts, the 5 percentage of contracts awarded to LGBT, disability and veteran-owned 6 business enterprises by each state agency, the number of LGBT, disabili- 7 ty and veteran-owned business enterprises certified, the number of 8 applications for certification as an LGBT, disability or veteran-owned 9 business enterprise, the number of denials for such certification, the 10 number of appeals of such denials, and the outcome of such appeals and 11 the average time that is required for such certification to be 12 completed. The report shall be posted on a public website maintained by 13 the office of general services. 14 5. Certification. (a) The director, or in the absence of the director, 15 the commissioner, within ninety days of the effective date of this arti- 16 cle, shall promulgate rules and regulations providing for the establish- 17 ment of a statewide certification program including rules and regu- 18 lations governing the approval, denial, or revocation of any such 19 certification. Such rules and regulations shall include, but not be 20 limited to, such matters as may be required to ensure that the estab- 21 lished procedures thereunder shall at least be in compliance with the 22 code of fair procedure set forth in section seventy-three of the civil 23 rights law. In addition to a statewide certification program, the direc- 24 tor, or in the absence of the director, the commissioner, shall approve 25 third-party agencies to perform verification of LGBT, disability and/or 26 veteran-owned business enterprises. The division shall accept certif- 27 ications by approved third-party agencies, and is authorized to develop 28 and implement a streamlined verification process for any LGBT, disabili- 29 ty or veteran-owned business enterprise that has a certification through 30 an approved third-party agency. Approved third-party agencies shall 31 include the National Gay and Lesbian Chamber of Commerce for the certif- 32 ication of LGBT-owned business enterprises and the United States Busi- 33 ness Leadership Network for the certification of disability-owned enter- 34 prises. 35 (b) Following application for certification pursuant to this section, 36 the director shall provide the applicant with written notice of the 37 status of the application, including notice of any outstanding deficien- 38 cies, within thirty days. Within sixty days of submission of a final 39 completed application, the director shall provide the applicant with 40 written notice of a determination by the director approving or denying 41 such certification and, in the event of a denial, a statement setting 42 forth the reasons for such denial. Upon a determination denying or 43 revoking certification, the business enterprise for which certification 44 has been so denied or revoked shall, upon written request made within 45 thirty days from receipt of notice of such determination, be entitled to 46 a hearing before an independent hearing officer designated for such 47 purpose by the director. In the event that a request for a hearing is 48 not made within such thirty day period, such determination shall be 49 deemed to be final. The independent hearing officer shall conduct a 50 hearing and upon the conclusion of such hearing, issue a written recom- 51 mendation to the director to affirm, reverse, or modify such determi- 52 nation of the director. Such written recommendation shall be issued to 53 the parties. The director, within thirty days, by order, must accept, 54 reject or modify such recommendation of the hearing officer and set 55 forth in writing the reason therefor. The director shall serve a copy of 56 such order and reasons therefor upon the business enterprise by personalA. 289 6 1 service or by certified mail return receipt requested. The order of the 2 director shall be subject to review pursuant to article seventy-eight of 3 the civil practice law and rules. 4 (c) All certifications shall be valid for a period of two years. 5 § 369-o. Opportunities for certified LGBT, disability and veteran- 6 owned business enterprises. 1. The director, or in the absence of the 7 director, the commissioner, within ninety days of the effective date of 8 this article shall promulgate rules and regulations for the following 9 purposes: 10 (a) provide measures and procedures to ensure that certified LGBT, 11 disability and veteran-owned business enterprises are afforded the 12 opportunity for meaningful participation in the performance of state 13 contracts and to assist in state agencies' identification of those state 14 contracts for which certified LGBT, disability and/or veteran-owned 15 business enterprises may best perform; 16 (b) provide for measures and procedures that assist state agencies in 17 the identification of state contracts where LGBT, disability and veteran 18 contract goals are practical, feasible and appropriate for the purpose 19 of increasing the utilization of LGBT, disability and veteran-owned 20 business enterprise participation on state contracts; 21 (c) achieve a statewide goal for participation on state contracts by 22 LGBT, disability and veteran-owned business enterprises at a percentage 23 to be determined by the commissioner; 24 (d) provide for procedures relating to submission and receipt of 25 applications by LGBT, disability or veteran-owned business enterprises 26 for certification; 27 (e) provide for the monitoring and compliance of state contracts by 28 state agencies with respect to the provisions of this article; 29 (f) provide for the requirement that state agencies submit regular 30 reports, as determined by the director, with respect to their supplier 31 diversity program activity, including but not limited to, utilization 32 reporting and state contract monitoring and compliance; and 33 (g) provide for any other purposes to effectuate this article. 34 2. State agencies shall administer the rules and regulations promul- 35 gated by the director for the implementation of this article. 36 § 369-p. Severability. If any clause, sentence, paragraph, section or 37 part of this article shall be adjudged by any court of competent juris- 38 diction to be invalid, the judgment shall not affect, impair or invali- 39 date the remainder thereof, but shall be confined in its operation to 40 the clause, sentence, paragraph, section or part of this article direct- 41 ly involved in the controversy in which the judgment shall have been 42 rendered. 43 § 3. The commissioner of the office of general services shall conduct 44 a study to determine a statewide goal for participation on state 45 contracts by LGBT, disability and veteran-owned business enterprises and 46 to determine whether providing for the reservation or set-aside of 47 certain procurements by state agencies should be required in order to 48 achieve the objectives of article 17-C of the executive law. 49 § 4. No later than one year after this act shall have become a law, 50 the commissioner of the office of general services shall complete the 51 study pursuant to section three of this act. 52 § 5. This act shall take effect immediately and shall expire and be 53 deemed repealed five years after such effective date.
