STATE OF NEW YORK
________________________________________________________________________
1491
2019-2020 Regular Sessions
IN ASSEMBLY
January 15, 2019
___________
Introduced by M. of A. BICHOTTE, MOSLEY, HYNDMAN, WALKER, SOLAGES,
SEAWRIGHT, BLAKE, GOTTFRIED, JEAN-PIERRE, COOK -- Multi-Sponsored by
-- M. of A. SIMON -- read once and referred to the Committee on
Governmental Operations
AN ACT to amend the state finance law, in relation to requiring utiliza-
tion of minority and women-owned business enterprises as subcontrac-
tors as a condition when awarding sole source procurement contracts;
to amend the executive law, in relation to the issuance of waivers of
the obligation to comply with the minority and women-owned business
enterprise participation requirements of a contract if such contract
is a single source or sole source procurement contract; to amend the
general municipal law, in relation to requiring municipalities to
require contract award recipients to utilize the services of minority
and women-owned business enterprises; to amend the executive law, in
relation to making conforming changes; and providing for the repeal of
certain 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. Paragraph b of subdivision 10 of section 163 of the state
2 finance law is amended by adding a new subparagraph (iii) to read as
3 follows:
4 (iii) All single source or sole source procurement contracts made
5 pursuant to the provisions of this paragraph shall require that the
6 award recipient comply with the provisions of article fifteen-A of the
7 executive law relating to minority and women-owned business enterprise
8 participation when contracting with subcontractors.
9 § 2. Subdivision 6 of section 313 of the executive law, as amended by
10 chapter 175 of the laws of 2010, is amended to read as follows:
11 6. (a) Where it appears that a contractor cannot, after a good faith
12 effort, comply with the minority and women-owned business enterprise
13 participation requirements set forth in a particular state contract, a
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD00429-01-9
A. 1491 2
1 contractor may file a written application with the contracting agency
2 requesting a partial or total waiver of such requirements setting forth
3 the reasons for such contractor's inability to meet any or all of the
4 participation requirements together with an explanation of the efforts
5 undertaken by the contractor to obtain the required minority and women-
6 owned business enterprise participation. In implementing the provisions
7 of this section, the contracting agency shall consider the number and
8 types of minority and women-owned business enterprises located in the
9 region in which the state contract is to be performed, the total dollar
10 value of the state contract, the scope of work to be performed and the
11 project size and term. If, based on such considerations, the contracting
12 agency determines there is not a reasonable availability of contractors
13 on the list of certified business to furnish services for the project,
14 it shall issue a waiver of compliance to the contractor. In making such
15 determination, the contracting agency shall first consider the avail-
16 ability of other business enterprises located in the region and shall
17 thereafter consider the financial ability of minority and women-owned
18 businesses located outside the region in which the contract is to be
19 performed to perform the state contract.
20 (b) A contracting agency shall not issue a total waiver of the obli-
21 gation to comply with the minority and women-owned business enterprise
22 participation requirements of a contract if such contract is a single
23 source or sole source procurement contract as described in section one
24 hundred sixty-three of the state finance law; provided, however, that if
25 the contracting agency determines there is not a reasonable availability
26 of contractors on the list of certified business to furnish services for
27 the project, the contracting agency may issue a partial waiver of
28 compliance to the contractor.
29 § 3. Section 103 of the general municipal law is amended by adding a
30 new subdivision 17 to read as follows:
31 17. All contracts awarded pursuant to the provisions of this section,
32 including single source or sole source procurement contracts, shall
33 require the contract recipient to comply with the provisions of section
34 three hundred thirteen of the executive law, to the extent that such
35 provisions apply; provided, however, that a contract recipient granted a
36 waiver of compliance as provided in section three hundred thirteen of
37 the executive law shall be deemed to be in compliance with such
38 provisions.
39 § 4. Subdivisions 2, 3 and 13 of section 310 of the executive law,
40 subdivisions 2 and 3 as added by chapter 261 of the laws of 1988 and
41 subdivision 13 as amended by chapter 506 of the laws of 2009, are
42 amended to read as follows:
43 2. "Contracting agency" shall mean; (a) a state agency which is a
44 party or a proposed party to a state contract or, in the case of a state
45 contract described in paragraph (c) of subdivision thirteen of this
46 section, shall mean the New York state housing finance agency, housing
47 trust fund corporation or affordable housing corporation, whichever has
48 made or proposes to make the grant or loan for the state assisted hous-
49 ing project; and (b) a municipality which is a party or a proposed party
50 to a municipal contract.
51 3. "Contractor" shall mean an individual, a business enterprise,
52 including a sole proprietorship, a partnership, a corporation, a not-
53 for-profit corporation, or any other party to a state or municipal
54 contract, or a bidder in conjunction with the award of a state or munic-
55 ipal contract or a proposed party to a state or municipal contract.
A. 1491 3
1 13. "State contract" shall mean: (a) a written agreement or purchase
2 order instrument, providing for a total expenditure in excess of twen-
3 ty-five thousand dollars, whereby a contracting agency is committed to
4 expend or does expend funds in return for labor, services including but
5 not limited to legal, financial and other professional services,
6 supplies, equipment, materials or any combination of the foregoing, to
7 be performed for, or rendered or furnished to the contracting agency;
8 (b) a written agreement in excess of one hundred thousand dollars where-
9 by a contracting agency is committed to expend or does expend funds for
10 the acquisition, construction, demolition, replacement, major repair or
11 renovation of real property and improvements thereon; and (c) a written
12 agreement in excess of one hundred thousand dollars whereby the owner of
13 a state assisted housing project is committed to expend or does expend
14 funds for the acquisition, construction, demolition, replacement, major
15 repair or renovation of real property and improvements thereon for such
16 project. For the purposes of this article, "state contract" shall
17 include municipal contracts as described in subdivision twenty-four of
18 this section.
19 § 5. Section 310 of the executive law is amended by adding a new
20 subdivision 24 to read as follows:
21 24. "Municipal contract" shall mean: (a) a written agreement or
22 purchase order instrument, providing for a total expenditure in excess
23 of twenty-five thousand dollars, whereby a municipal contracting agency
24 is committed to expend or does expend funds in return for labor,
25 services including but not limited to legal, financial and other profes-
26 sional services, supplies, equipment, materials or any combination of
27 the foregoing, to be performed for, or rendered or furnished to the
28 municipal contracting agency; (b) a written agreement in excess of one
29 hundred thousand dollars whereby a municipal contracting agency is
30 committed to expend or does expend funds for the acquisition,
31 construction, demolition, replacement, major repair or renovation of
32 real property and improvements thereon; and (c) a written agreement in
33 excess of one hundred thousand dollars whereby the owner of a municipal
34 assisted housing project is committed to expend or does expend funds for
35 the acquisition, construction, demolition, replacement, major repair or
36 renovation of real property and improvements thereon for such project.
37 § 6. This act shall take effect immediately; provided, however, that
38 section three of this act shall expire on the same date and in the same
39 manner as article 15-A of the executive law pursuant to subdivision (h)
40 of section 121 of chapter 261 of the laws of 1988, as amended; provided,
41 however, that the amendments to sections 310 and 313 of the executive
42 law made by sections two, four and five of this act shall not affect the
43 expiration of such sections and shall be deemed expired therewith;
44 provided, further that the amendments to paragraph b of subdivision 10
45 of section 163 of the state finance law made by section one of this act
46 shall not affect the repeal of such section and shall be deemed repealed
47 therewith or shall be deemed repealed upon the expiration of article
48 15-A of the executive law, whichever shall occur first.