Bill Text: NY A02670 | 2019-2020 | General Assembly | Introduced


Bill Title: Requires post completion certifications to be completed, under penalty of perjury, that the MWBE performed the work, performed the services, or delivered the materials; that the division of minority and women's business development create an internet registry, and perform inspections of MWBEs to weed out fraud and abuse; that additional regulations to be adopted related to revocations of certifications for felony convictions for fraudulently misrepresenting the status of an MWBE; permits a court to issue fines double the amount that should have been paid to an MWBE upon conviction for felony fraud related to the MWBE program.

Spectrum: Partisan Bill (Democrat 13-0)

Status: (Introduced - Dead) 2020-01-08 - referred to governmental operations [A02670 Detail]

Download: New_York-2019-A02670-Introduced.html


                STATE OF NEW YORK
        ________________________________________________________________________
                                          2670
                               2019-2020 Regular Sessions
                   IN ASSEMBLY
                                    January 24, 2019
                                       ___________
        Introduced  by  M.  of  A.  RODRIGUEZ,  BLAKE,  BARRON,  COOK,  HYNDMAN,
          PEOPLES-STOKES,  SIMOTAS,  WALKER,  BICHOTTE,  SEAWRIGHT,  JAFFEE   --
          Multi-Sponsored by -- M.  of A. GALEF, SIMON -- read once and referred
          to the Committee on Governmental Operations
        AN ACT to amend the executive law and the state finance law, in relation
          to  minority  and  women-owned  business  enterprises  post completion
          certification, duties of the director and creating  the  minority  and
          women-owned business enterprise fund
          The  People of the State of New York, represented in Senate and Assem-
        bly, do enact as follows:
     1    Section 1. The executive law is amended by adding a new section  314-a
     2  to read as follows:
     3    § 314-a. Post completion certification. The director, in collaboration
     4  with  the  division of minority and women's business development and the
     5  department of small  business  services,  shall  develop  the  following
     6  standardized certification forms that must be completed under penalty of
     7  perjury prior to the prime contractor being paid:
     8    1.  certification  from  a representative of the prime contractor that
     9  the minority or women-owned business enterprise in  fact  performed  the
    10  services  or provided the materials that they were contracted to perform
    11  or provide; and
    12    2. certification from a representative of the minority or  women-owned
    13  business enterprise that they in fact performed the services or provided
    14  the materials that they were contracted to perform or provide.
    15    §  2.  Paragraphs  (f), (h) and (i) of subdivision 3 of section 311 of
    16  the executive law, paragraph (f) as added by chapter 261 of the laws  of
    17  1988,  paragraph  (h) as amended and paragraph (i) as added by section 1
    18  of part BB of chapter 59 of the laws of 2006, are amended and three  new
    19  paragraphs (j), (k) and (l) are added to read as follows:
    20    (f) to prepare and update periodically a directory of certified minor-
    21  ity and women-owned business enterprises which shall, wherever practica-
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD05476-01-9

        A. 2670                             2
     1  ble, be divided into categories of labor, services, supplies, equipment,
     2  materials  and  recognized  construction trades and which shall indicate
     3  areas or locations of the state where such enterprises are available  to
     4  perform  services,  and  to  use  this information to create an internet
     5  based, searchable, centralized state registry detailing  certifications,
     6  denials,  waivers  and  all  documents  submitted during the life of the
     7  contract;
     8    (h) notwithstanding the provisions of section two  hundred  ninety-six
     9  of  this  chapter,  to  file  a  complaint pursuant to the provisions of
    10  section two hundred ninety-seven of this chapter where the director  has
    11  knowledge  that  a  contractor may have violated the provisions of para-
    12  graph (a), (b) or (c) of subdivision one of section two hundred  ninety-
    13  six  of  this  chapter  where  such  violation is unrelated, separate or
    14  distinct from the state contract as expressed by its terms; [and]
    15    (i) to streamline the state certification process  to  accept  federal
    16  and municipal corporation certifications[.];
    17    (j) to perform inspections of minority or women-owned business's place
    18  of business, warehouse or storage facility to confirm the existence of a
    19  workforce, equipment and supplies;
    20    (k)  to perform inspections of financial records of minority or women-
    21  owned business enterprises to ensure such enterprises are in  compliance
    22  with applicable laws; and
    23    (l)  to  ensure  the  protection  of  individuals who report suspected
    24  violations of this article and applicable laws related to  minority  and
    25  women-owned business enterprises.
    26    §  3.  Subdivision  1 of section 314 of the executive law, as added by
    27  chapter 261 of the laws of 1988, is amended to read as follows:
    28    1. The director shall promulgate rules and regulations  providing  for
    29  the  establishment  of a statewide certification program including rules
    30  and regulations governing the approval, denial or revocation of any such
    31  certification, including revocations for felony convictions for  fraudu-
    32  lently  misrepresenting  the  status of minority or women-owned business
    33  enterprises.   Such rules and regulations  shall  include,  but  not  be
    34  limited  to,  such  matters as may be required to ensure that the estab-
    35  lished procedures thereunder shall at least be in  compliance  with  the
    36  code  of  fair procedure set forth in section seventy-three of the civil
    37  rights law, and consistent with the provisions of article twenty-three-A
    38  of the correction law.
    39    § 4. Section 316 of the executive law, as amended by  chapter  175  of
    40  the laws of 2010, is amended to read as follows:
    41    § 316. Enforcement.  1. Upon receipt by the director of a complaint by
    42  a contracting agency that a contractor has violated the provisions of  a
    43  state contract which have been included to comply with the provisions of
    44  this  article  or of a contractor that a contracting agency has violated
    45  such provisions or has failed or refused to issue a waiver where one has
    46  been applied for pursuant to subdivision six of  section  three  hundred
    47  thirteen  of  this  article or has denied such application, the director
    48  shall attempt to resolve the matter giving rise to  such  complaint.  If
    49  efforts  to  resolve  such matter to the satisfaction of all parties are
    50  unsuccessful, the director shall refer the matter, within thirty days of
    51  the receipt of the complaint, to the division's hearing  officers.  Upon
    52  conclusion  of  the  administrative  hearing,  the hearing officer shall
    53  submit to the  director  his  or  her  decision  regarding  the  alleged
    54  violation  of  the contract and recommendations regarding the imposition
    55  of sanctions, fines or penalties.  The  director,  within  ten  days  of
    56  receipt  of  the decision, shall file a determination of such matter and

        A. 2670                             3
     1  shall cause a copy of such determination along with a copy of this arti-
     2  cle to be served upon the contractor by personal service or by certified
     3  mail return receipt requested. The decision of the hearing officer shall
     4  be  final  and  may  only  be vacated or modified as provided in article
     5  seventy-eight of the civil practice law and rules  upon  an  application
     6  made  within the time provided by such article. The determination of the
     7  director as to the imposition of any fines, sanctions or penalties shall
     8  be reviewable pursuant to article seventy-eight of  the  civil  practice
     9  law and rules. The penalties imposed for any violation which is premised
    10  upon  either  a  fraudulent  or  intentional  misrepresentation  by  the
    11  contractor or the contractor's willful and intentional disregard of  the
    12  minority  and  women-owned  participation  requirement  included  in the
    13  contract may include a determination that the contractor shall be ineli-
    14  gible to submit a bid to any contracting agency or be awarded  any  such
    15  contract  for a period not to exceed one year following the final deter-
    16  mination; provided however, if a contractor has previously  been  deter-
    17  mined  to  be  ineligible  to submit a bid pursuant to this section, the
    18  penalties imposed for any subsequent violation, if such violation occurs
    19  within five years of the first violation, may  include  a  determination
    20  that the contractor shall be ineligible to submit a bid to any contract-
    21  ing  agency  or  be awarded any such contract for a period not to exceed
    22  five years following the final determination. The division  of  minority
    23  and  women's  business  development shall maintain a website listing all
    24  contractors that have been deemed ineligible to submit a bid pursuant to
    25  this section and the date after which each contractor shall  once  again
    26  become eligible to submit bids.
    27    2.  Any  fines,  or portion thereof, imposed pursuant to the foregoing
    28  subdivision, or imposed by a court of competent jurisdiction related  to
    29  convictions involving fraud related to this article or otherwise involv-
    30  ing  a  minority  or women-owned business enterprise, may be required by
    31  the entity imposing such fines to be paid to  the  minority  and  women-
    32  owned  business  enterprise fund established pursuant to section ninety-
    33  seven-j of the state finance law.
    34    § 5. The state finance law is amended by adding a new section 97-j  to
    35  read as follows:
    36    § 97-j. Minority and women-owned business enterprise fund. 1. There is
    37  hereby established in the joint custody of the state comptroller and the
    38  commissioner  of  taxation and finance a special fund to be known as the
    39  "minority and women-owned business enterprise fund".
    40    2. Such funds shall consist of all moneys appropriated for the purpose
    41  of such fund, all moneys transferred or paid to such  fund  pursuant  to
    42  law,  including  pursuant to section three hundred sixteen of the execu-
    43  tive law, and contributions consisting of grants,  including  grants  or
    44  other  financial assistance from any agency of government and all moneys
    45  required by the provisions of this section or any other law to  be  paid
    46  into or credited to this fund.
    47    3.  Monies  of  the  fund, following appropriation by the legislature,
    48  shall be expended to acquire software, employ personnel to audit, inves-
    49  tigate and prosecute minority and women-owned business enterprise  fraud
    50  and  to underwrite minority and women-owned business enterprise programs
    51  to assist minority and  women  business  enterprise  owners  to  develop
    52  sustainable businesses.
    53    §  6.  This act shall take effect immediately, provided, however, that
    54  the amendments to article 15-A of the executive  law  made  by  sections
    55  one, two, three, and four of this act shall not affect the expiration of
    56  such article and shall be deemed to expire therewith.
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