Bill Text: NY A03963 | 2023-2024 | General Assembly | Introduced


Bill Title: Relates to increased participation in state contracts and subcontracts by certified minority and women-owned business enterprises; requires quarterly reports from contracting agencies; addresses consequences if contracting agency fails to comply with reporting requirements; relates to certain performance and payment bond requirements.

Spectrum: Partisan Bill (Democrat 6-0)

Status: (Introduced) 2024-01-03 - referred to governmental operations [A03963 Detail]

Download: New_York-2023-A03963-Introduced.html



                STATE OF NEW YORK
        ________________________________________________________________________

                                          3963

                               2023-2024 Regular Sessions

                   IN ASSEMBLY

                                    February 8, 2023
                                       ___________

        Introduced  by  M.  of A. BICHOTTE HERMELYN, SIMON, ZINERMAN, SEAWRIGHT,
          JACKSON -- read once and referred to  the  Committee  on  Governmental
          Operations

        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 perform-
          ance 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,  paragraphs (f) and (j) as amended and paragraphs (l), (m) and (n)
     5  of subdivision 3 as added by chapter 567 of the laws of 2022, the  open-
     6  ing  paragraph of subdivision 4 as amended and paragraph (d-1) of subdi-
     7  vision 3 and paragraphs (d) and (e) of subdivision 4 as added by chapter
     8  96 of the laws of 2019, paragraph (g) of subdivision  3  as  amended  by
     9  section  1  of part BB of chapter 59 of the laws of 2006, paragraphs (h)
    10  and (i) as amended and paragraph (k) of subdivision 3 as added by  chap-
    11  ter 825 of the laws of 2021, and subdivision 4 as amended by chapter 361
    12  of the laws of 2009, are amended to read as follows:
    13    3. The director shall have the following powers and duties:
    14    (a)  to  encourage and assist contracting agencies in their efforts to
    15  increase participation by minority and women-owned business  enterprises
    16  on state contracts and subcontracts [so as] to facilitate the award of a
    17  fair  share  of  such contracts to them and to provide on the division's
    18  website a list of each contracting  agency's  minority  and  women-owned
    19  business enterprises certification outreach seminars;
    20    (b) to develop standardized forms and reporting documents necessary to
    21  implement this article;

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD05916-01-3

        A. 3963                             2

     1    (c)  to conduct educational outreach programs to encourage the certif-
     2  ication of minority and women-owned business enterprises consistent with
     3  the purposes of this article;
     4    (d) to review [periodically] quarterly the practices and procedures of
     5  each  contracting  agency with respect to compliance with the provisions
     6  of this article, and  to  require  them  to  file  [periodic]  quarterly
     7  reports  with  the division of minority and women's business development
     8  as to the level of minority and women-owned business enterprises partic-
     9  ipation in the awarding of  agency  contracts  for  goods  and  services
    10  including  but  not  limited to the number of state contracts awarded to
    11  certified minority or  women-owned  business  enterprises,  the  maximum
    12  dollar  amount  obligated pursuant to all those contracts, and the total
    13  expenditures made pursuant to all such contracts; the  number  of  state
    14  contracts  awarded which include a utilization plan for business partic-
    15  ipation by certified minority or women-owned business  enterprises,  the
    16  maximum  amount  obligated  pursuant  to  those contracts, and the total
    17  expenditures made pursuant to all such contracts; the  number  of  state
    18  contracts awarded upon which a waiver was granted from goals required by
    19  the  contracts  for  business  participation  by  certified  minority or
    20  women-owned business  enterprises,  and  the  maximum  amount  obligated
    21  pursuant to those contracts; the number of state contracts awarded which
    22  required  goals  for employment of minority group members and women; and
    23  the number of state contracts awarded for which  waivers  of  employment
    24  goals required by the contracts have been granted;
    25    (d-1) to require all contracting state agencies to develop a four-year
    26  growth  plan  to  determine  a means of promoting and increasing partic-
    27  ipation by [minority-owned] minority  and  women-owned  business  enter-
    28  prises  with  respect  to  state  contracts and subcontracts. Every four
    29  years,  beginning  September  fifteenth,  two  thousand   twenty,   each
    30  contracting state agency shall submit a four-year growth plan as part of
    31  its  annual  report  to the governor and legislature pursuant to section
    32  one hundred sixty-four of this chapter.
    33    (e) on January first of each year report to the governor,  the  tempo-
    34  rary  president of the senate, the speaker of the assembly, the minority
    35  leaders of the senate and the assembly,  and  the  chairpersons  of  the
    36  senate  finance  and  assembly  ways and means committees on the [level]
    37  actual versus projected levels  of  minority  and  women-owned  business
    38  enterprises  participating  in  each agency's contracts for goods [and],
    39  services and construction, including but not limited to  the  number  of
    40  state  contracts  awarded  to certified minority or women-owned business
    41  enterprises, the maximum dollar amount obligated pursuant to  all  those
    42  contracts,  and  the  total  expenditures  made  pursuant  to  all  such
    43  contracts, and on activities of the office and effort by each  contract-
    44  ing  agency  to  promote employment of minority group members and women,
    45  and to promote and increase participation by certified  businesses  with
    46  respect  to  state  contracts  and  subcontracts so as to facilitate the
    47  award of a fair share of state contracts to such businesses.  The  comp-
    48  troller  shall  assist  the  division  in  collecting information on the
    49  participation of certified business for each  contracting  agency.  Such
    50  report  may  recommend  new  activities  and  programs to effectuate the
    51  purposes of this article;
    52    (f) the director shall list in the division's annual report the  names
    53  of  non-compliant  agencies  and  the  extent  of their noncompliance in
    54  submitting its quarterly minority and  women-owned  business  enterprise
    55  utilization reports; and, shall implement a master list of all the state

        A. 3963                             3

     1  agencies  required to file quarterly compliance reports and shall attach
     2  such list to the division's annual report.
     3    (g) to prepare and update[, no less than annually,] quarterly a direc-
     4  tory  of  certified  minority and women-owned business enterprises which
     5  shall, wherever  practicable,  be  divided  into  categories  of  labor,
     6  services,  supplies,  equipment,  materials  and recognized construction
     7  trades and which shall indicate areas or locations of  the  state  where
     8  such  enterprises  are  available  to  perform services, and to use this
     9  information to create an internet based, searchable,  centralized  state
    10  registry  detailing certifications, waivers, and all documents submitted
    11  pertaining to certification or denial of  certification,  or  compliance
    12  with  goals  for utilization of minority and women-owned business enter-
    13  prises and for such  enterprises  to  access  contract  and  subcontract
    14  opportunities;
    15    [(g)]  (h)  to appoint independent hearing officers who by contract or
    16  terms of employment shall preside over adjudicatory hearings pursuant to
    17  section three hundred fourteen of this article for the  office  and  who
    18  are assigned no other work by the office;
    19    [(h)]  (i) notwithstanding the provisions of section two hundred nine-
    20  ty-six of this chapter, to file a complaint pursuant to  the  provisions
    21  of  section  two hundred ninety-seven of this chapter where the director
    22  has knowledge that a contractor may  have  violated  the  provisions  of
    23  paragraph  (a),  (b)  or  (c)  of subdivision one of section two hundred
    24  ninety-six of this chapter where such violation is  unrelated,  separate
    25  or distinct from the state contract as expressed by its terms;
    26    [(i)]  (j)  to  streamline  the  state certification process to accept
    27  federal and municipal corporation certifications;
    28    [(j)] (k) to make publicly available records of all waivers of compli-
    29  ance reported pursuant to paragraph (b) of subdivision  six  of  section
    30  three hundred thirteen of this article on the division's website;
    31    [(k)]  (l)  to  work  in  conjunction with the industrial commissioner
    32  pursuant to paragraph (j) of subdivision one of  section  eight  hundred
    33  eleven  of  the  labor law to assist contractors in identifying minority
    34  group members and women who are participating in  apprenticeship  agree-
    35  ments under article twenty-three of the labor law[.];
    36    [(l)] (m) to perform inspections of minority or women-owned business's
    37  place  of  business, warehouse or storage facility to confirm the exist-
    38  ence of a workforce, equipment and supplies;
    39    [(m)] (n) to perform inspections of financial records of  minority  or
    40  women-owned  business  enterprises  to  ensure  such  enterprises are in
    41  compliance with applicable laws; and
    42    [(n)] (o) to ensure the protection of individuals who report suspected
    43  violations of this article and applicable laws related to  minority  and
    44  women-owned business enterprises.
    45    4.  The director shall provide assistance to, and facilitate access to
    46  programs serving certified businesses as well as  applicants  to  ensure
    47  that  such businesses benefit, as needed, from technical, managerial and
    48  financial, and general business assistance; training; marketing;  organ-
    49  ization  and personnel skill development; project management assistance;
    50  technology assistance; bond  and  insurance  education  assistance;  and
    51  other  business  development  assistance.  The director shall maintain a
    52  toll-free number at the department of economic development to be used to
    53  answer questions concerning the MWBE certification process. In addition,
    54  the director [may] shall, either independently or  in  conjunction  with
    55  other state agencies:

        A. 3963                             4

     1    (a)  develop  a  clearinghouse of information on programs and services
     2  provided by entities that may assist such businesses;
     3    (b)  review  bonding and paperwork requirements imposed by contracting
     4  agencies that may unnecessarily impede the ability of such businesses to
     5  compete; and
     6    (c) seek to maximize utilization by minority and women-owned  business
     7  enterprises  of available federal resources including but not limited to
     8  federal grants, loans, loan guarantees, surety bonding guarantees, tech-
     9  nical assistance, and programs and services of the federal  small  busi-
    10  ness administration.
    11    (d)  conduct  outreach events, training workshops, seminars, and other
    12  such educational programs throughout the state, including  all  regional
    13  offices,  to  state  agencies, external stakeholders, and the public, to
    14  promote awareness and utilization of minority and  women-owned  business
    15  enterprises; and
    16    (e) identify and establish mentorship opportunities and other business
    17  development  programs  to increase capacity and better prepare MWBEs for
    18  bidding on contracts with state agencies upon successful  completion  of
    19  the  mentorship  opportunity.  Such  mentorship  opportunities  shall be
    20  intended to ensure that mentor and  mentee  are  connected  based  on  a
    21  commercially useful function.
    22    §  2.  Subdivision  5 of section 312 of the executive law, as added by
    23  chapter 261 of the laws of 1988, is amended to read as follows:
    24    5. The director shall promulgate rules and regulations to ensure  that
    25  contractors  and subcontractors undertake programs of affirmative action
    26  and equal employment opportunity as required by this section. Such rules
    27  and regulations as they pertain to any particular agency shall be devel-
    28  oped after consultation with contracting agencies. Such rules and  regu-
    29  lations  [may]  shall require a contractor, after notice in a bid solic-
    30  itation, to submit an equal employment opportunity  program  [after  bid
    31  opening  and  prior  to  the award of any contract] at the time bids are
    32  submitted, and [may] shall require the contractor  or  subcontractor  to
    33  submit  compliance  reports  relating to the contractor's or subcontrac-
    34  tor's operation and implementation of any equal  employment  opportunity
    35  program in effect as of the date the contract is executed. The contract-
    36  ing  agency [may recommend to the director that] shall have the right to
    37  recommend that the director take appropriate  action  according  to  the
    38  procedures  set  forth  in section three hundred sixteen of this article
    39  against the contractor for noncompliance with the requirements  of  this
    40  section.  The  contracting  agency  shall  be responsible for monitoring
    41  compliance with this section.
    42    § 3. Paragraph (j) of subdivision 2-a of section 313 of the  executive
    43  law,  as amended by chapter 96 of the laws of 2019, is amended and a new
    44  paragraph (k) is added to read as follows:
    45    (j) require each agency to consult the most  current  disparity  study
    46  when  calculating  agency-wide and contract specific participation goals
    47  pursuant to this article; [and]
    48    (k)  encourage  joint  ventures,  partnerships,   and   mentor-protege
    49  relationships as defined in section one hundred forty-seven of the state
    50  finance  law,  between  prime  contractors  and minority and women-owned
    51  business enterprises; and
    52    § 4. Subdivision 3 and paragraph (a) of subdivision 5 of  section  313
    53  of  the executive law, as amended by chapter 96 of the laws of 2019, are
    54  amended to read as follows:
    55    3. Solely for the purpose of providing the opportunity  for  [meaning-
    56  ful]  increased participation by certified businesses in the performance

        A. 3963                             5

     1  of state contracts as provided in this section,  state  contracts  shall
     2  include leases of real property by a state agency to a lessee where: the
     3  terms  of such leases provide for the construction, demolition, replace-
     4  ment, major repair or renovation of real property and improvements ther-
     5  eon  by  such  lessee;  and  the  cost of such construction, demolition,
     6  replacement, major repair or renovation of real  property  and  improve-
     7  ments  thereon  shall  exceed  the  sum of one hundred thousand dollars.
     8  Reports to the director pursuant to section  three  hundred  fifteen  of
     9  this  article  shall  include  activities with respect to all such state
    10  contracts. Contracting agencies shall include or require to be  included
    11  with respect to state contracts for the acquisition, construction, demo-
    12  lition,  replacement,  major  repair  or renovation of real property and
    13  improvements thereon, such provisions as [may]  shall  be  necessary  to
    14  effectuate the provisions of this section in every bid specification and
    15  state  contract, including, but not limited to: (a) provisions requiring
    16  contractors to make a good faith effort to solicit active  participation
    17  by  enterprises identified in the directory of certified businesses; (b)
    18  requiring the parties to agree as a  condition  of  entering  into  such
    19  contract, to be bound by the provisions of section three hundred sixteen
    20  of  this  article;  and  (c)  requiring  the  contractor  to include the
    21  provisions set forth in paragraphs (a) and (b) of  this  subdivision  in
    22  every  subcontract  in a manner that the provisions will be binding upon
    23  each  subcontractor  as  to  work  in  connection  with  such  contract.
    24  Provided,  however,  that  no  such  provisions  shall  be  binding upon
    25  contractors  or  subcontractors  in  the  performance  of  work  or  the
    26  provision  of services that are unrelated, separate or distinct from the
    27  state contract as expressed by its terms, and nothing  in  this  section
    28  shall  authorize  the  director  or any contracting agency to impose any
    29  requirement on a contractor or subcontractor except with  respect  to  a
    30  state contract.
    31    (a)  Contracting  agencies  shall administer the rules and regulations
    32  promulgated by the director in a good faith effort to achieve the  maxi-
    33  mum  feasible  participation by minority and women owned business enter-
    34  prises adopted pursuant to this  article  and  the  regulations  of  the
    35  director.  Such  rules  and  regulations:  shall require a contractor to
    36  submit a utilization plan [after bids are opened] at the time  bids  are
    37  submitted,  when  bids  are required[, but prior to the award of a state
    38  contract]; shall require the contracting agency to review  the  utiliza-
    39  tion  plan  submitted by the contractor and to post the utilization plan
    40  and any waivers of compliance issued pursuant to subdivision six of this
    41  section on the website of the  contracting  agency;  shall  require  the
    42  contracting  agency  to notify the contractor in writing within a period
    43  of time specified by the director as to any  deficiencies  contained  in
    44  the contractor's utilization plan; shall require remedy thereof within a
    45  period  of  time specified by the director; shall require the contractor
    46  to submit [periodic] quarterly compliance reports relating to the opera-
    47  tion and implementation of any utilization plan;  shall  not  allow  any
    48  automatic waivers but shall allow a contractor to apply for a partial or
    49  total waiver of the minority and women-owned business enterprise partic-
    50  ipation  requirements  pursuant  to  subdivisions  six and seven of this
    51  section; shall allow a contractor to file a complaint with the  director
    52  pursuant to subdivision eight of this section in the event a contracting
    53  agency  has  failed  or  refused  to  issue a waiver of the minority and
    54  women-owned business enterprise participation requirements or has denied
    55  such request for a waiver; and shall allow a contracting agency to  file
    56  a  complaint  with  the  director  pursuant  to subdivision nine of this

        A. 3963                             6

     1  section in the event a contractor is failing or  has  failed  to  comply
     2  with  the  minority  and  women-owned  business enterprise participation
     3  requirements set forth in the state contract where no  waiver  has  been
     4  granted.
     5    §  5.  Subdivisions  1, 2-a and 3 of section 315 of the executive law,
     6  subdivisions 1 and 3 as amended and subdivision 2-a as added by  chapter
     7  96  of  the laws of 2019, are amended and two new subdivisions 3-a and 8
     8  are added to read as follows:
     9    1. Each contracting agency shall be responsible for  monitoring  state
    10  contracts under its jurisdiction, and recommending matters to the office
    11  respecting  non-compliance  with  the provisions of this article so that
    12  the office [may] shall take such action as [is  appropriate]  stated  in
    13  subdivision three of section three hundred sixteen of this article. Each
    14  contracting  agency  shall have the right to recommend that the director
    15  impose a sanction, penalty, or fine for  three  or  more  violations  of
    16  subdivision  one  of  section  three hundred sixteen of this article, to
    17  ensure compliance with the provisions of this  article,  the  rules  and
    18  regulations  of  the  director  issued  hereunder  and  the  contractual
    19  provisions required pursuant to this article. All  contracting  agencies
    20  shall  comply  with  the  rules  and  regulations  of the office and are
    21  directed to cooperate with the office and to furnish to the office  such
    22  information  and assistance as may be required in the performance of its
    23  functions under this article.
    24    2-a. [To the extent practicable, upon completion  of  the  restrictive
    25  period  of a procurement, each] Each contracting agency when notifying a
    26  contractor of a winning bid award shall  also  notify  any  minority  or
    27  women-owned business enterprise identified in the contractor's submitted
    28  utilization plan of such contractor's receipt of the winning bid award.
    29    3. Each contracting agency shall report to the commissioner of econom-
    30  ic  development,  the  commissioner of general services and the director
    31  with respect to activities undertaken to promote employment of  minority
    32  group members and women and promote and increase participation by certi-
    33  fied  businesses  with respect to state contracts and subcontracts. Such
    34  reports shall be submitted [no later than May fifteenth of  every  year]
    35  quarterly  and  shall  include  such information as is necessary for the
    36  director to determine whether the contracting agency and any  contractor
    37  to  the contracting agency have complied with the purposes of this arti-
    38  cle, including,  without  limitation,  the  number  of  state  contracts
    39  awarded  to  certified minority or women-owned business enterprises; the
    40  maximum dollar amount obligated pursuant to all those contracts; and the
    41  total expenditures made pursuant to all such contracts;  the  number  of
    42  state  contracts  awarded  which include a utilization plan for business
    43  participation by certified minority or women-owned business enterprises,
    44  the maximum amount obligated pursuant to those contracts, and the  total
    45  expenditures made pursuant to all such contracts; a summary of all waiv-
    46  ers  of  the requirements of subdivisions six and seven of section three
    47  hundred thirteen of this  article  allowed  by  the  contracting  agency
    48  during  the period covered by the report, including a description of the
    49  basis of the waiver request [and], the rationale for granting  any  such
    50  waiver,  the  maximum  amount obligated pursuant to those contracts; the
    51  number of state contracts awarded which required goals for employment of
    52  minority group members and women; the number of state contracts  awarded
    53  for  which  waivers  of  employment goals required by the contracts have
    54  been granted, and any instances in which the contract agency has  deemed
    55  a  contractor  to  have  committed a violation pursuant to section three
    56  hundred sixteen of this article and such other information as the direc-

        A. 3963                             7

     1  tor shall require. Each agency shall also include in such annual  report
     2  whether  or not it has been required to prepare a remedial plan, and, if
     3  so, the plan and the extent to which the agency has complied  with  each
     4  element of the plan.
     5    3-a.  Within  thirty  days  after  completion, a copy of the quarterly
     6  minority and women-owned business enterprise report shall be transmitted
     7  to the commissioner of economic development, the commissioner of general
     8  services, and the director. A contracting agency, which has not let more
     9  than two million dollars in service and/or construction contracts within
    10  the applicable period may apply to the commissioner of economic develop-
    11  ment, and the director for a waiver of the required annual  report.  The
    12  waiver  application  shall  be  made on such form as the commissioner of
    13  economic development and the director may prescribe.
    14    8. If a  contracting  agency  shall  fail  to  file  or  substantially
    15  complete,  as determined by the commissioner of economic development and
    16  the director, the report required by this section,  the  director  shall
    17  provide  notice  to  the  contracting agency. The notice shall state the
    18  following:
    19    (a) that the failure to file a report as required is  a  violation  of
    20  this  section,  or  in the case of an insufficient report, the manner in
    21  which the report submitted is deficient;
    22    (b) that the contracting agency has thirty days to  comply  with  this
    23  section  or  provide an adequate written explanation to the commissioner
    24  of economic development and the commissioner of general services and the
    25  director of the  contracting  agency's  reasons  for  the  inability  to
    26  comply; and
    27    (c)  that the contracting agency's continued failure to provide either
    28  the required report or an adequate explanation will result in  an  inde-
    29  pendent  audit  of  the  contracting  agency, the cost of which shall be
    30  borne by the contracting agency.
    31    § 6. Section 316 of the executive law, as amended by  chapter  567  of
    32  the laws of 2022, is amended to read as follows:
    33    § 316. [Enforcement]  Violations  and  enforcement.   1. It shall be a
    34  violation for any person or entity to:
    35    (a) intentionally use or acquire an MWBE name through deceit or  other
    36  dishonest means in order to negotiate a lower bid from a non-MWBE.
    37    (b)  submit  to  the  department of economic development, documents or
    38  other material as evidence of a good faith effort  to  comply  with  the
    39  provisions  of  this  article  without, in fact, having entered into any
    40  contract, agreement, subcontract, or sub-agreement with an MWBE for  the
    41  use  or  purchase of such business enterprise's goods or services in the
    42  performance of the awarded state contract.
    43    (c) fail to provide an  MWBE  with  sufficient  information  or  other
    44  required  supporting  documentation  in  order for the MWBE to prepare a
    45  proper bid.
    46    2. Upon receipt by the director of a complaint by a contracting agency
    47  that a contractor has violated the provisions of a state contract  which
    48  have been included to comply with the provisions of this article or of a
    49  contractor that a contracting agency has violated such provisions or has
    50  failed  or  refused  to  issue  a  waiver where one has been applied for
    51  pursuant to subdivision six of section three hundred  thirteen  of  this
    52  article  or  has  denied such application, the director shall attempt to
    53  resolve the matter giving rise to such complaint. If efforts to  resolve
    54  such  matter  to  the  satisfaction of all parties are unsuccessful, the
    55  director shall refer the matter, within thirty days of  the  receipt  of
    56  the  complaint,  to  the division's hearing officers. Upon conclusion of

        A. 3963                             8

     1  the administrative hearing, the hearing  officer  shall  submit  to  the
     2  director  his  or  her  decision  regarding the alleged violation of the
     3  contract and recommendations  regarding  the  imposition  of  sanctions,
     4  fines  or  penalties.  The  director,  within ten days of receipt of the
     5  decision, shall file a determination of such matter and  shall  cause  a
     6  copy  of  such  determination  along  with  a copy of this article to be
     7  served upon the contractor by personal  service  or  by  certified  mail
     8  return  receipt  requested. The decision of the hearing officer shall be
     9  final and may only be vacated or modified as provided in article  seven-
    10  ty-eight  of  the  civil practice law and rules upon an application made
    11  within the time provided by  such  article.  The  determination  of  the
    12  director as to the imposition of any fines, sanctions or penalties shall
    13  be  reviewable  pursuant  to article seventy-eight of the civil practice
    14  law and rules. The penalties imposed for any violation which is premised
    15  upon  either  a  fraudulent  or  intentional  misrepresentation  by  the
    16  contractor  or the contractor's willful and intentional disregard of the
    17  minority and  women-owned  participation  requirement  included  in  the
    18  contract may include a determination that the contractor shall be ineli-
    19  gible  to  submit a bid to any contracting agency or be awarded any such
    20  contract for a period not to exceed one year following the final  deter-
    21  mination;  provided  however, if a contractor has previously been deter-
    22  mined to be ineligible to submit a bid pursuant  to  this  section,  the
    23  penalties imposed for any subsequent violation, if such violation occurs
    24  within  five  years  of the first violation, may include a determination
    25  that the contractor shall be ineligible to submit a bid to any contract-
    26  ing agency or be awarded any such contract for a period  not  to  exceed
    27  five  years  following the final determination. The division of minority
    28  and women's business development shall maintain a  website  listing  all
    29  contractors that have been deemed ineligible to submit a bid pursuant to
    30  this  section  and the date after which each contractor shall once again
    31  become eligible to submit bids.
    32    [2.] 3. The director shall impose a sanction, penalty, or fine on  any
    33  individual  or  entity that has three or more violations of this article
    34  within five years. Any fines, or portion thereof,  imposed  pursuant  to
    35  [the  foregoing  subdivision]  this  section,  or  imposed by a court of
    36  competent jurisdiction related to convictions involving fraud related to
    37  this article or otherwise involving a minority or  women-owned  business
    38  enterprise, [may] shall be required by the entity imposing such fines to
    39  be  paid to the minority and women-owned business enterprise fund estab-
    40  lished pursuant to section ninety-seven-k  of  the  state  finance  law.
    41  Such funds shall be used to subsidize the facilitation of the provisions
    42  of  this  article.  Other sanctions shall include barring such entity or
    43  individual from contracting with such agency for a period not to  exceed
    44  five years.
    45    §  7.  Subdivision 1 of section 137 of the state finance law, as sepa-
    46  rately amended by section 17 of part MM of chapter 57 and chapter 619 of
    47  the laws of 2008, is amended to read as follows:
    48    1. In addition to other bond or bonds, if any, required by law for the
    49  completion of a work specified in a contract for the  prosecution  of  a
    50  public  improvement for the state of New York a municipal corporation, a
    51  public benefit corporation or a commission appointed pursuant to law, or
    52  in the absence of any such requirement, the comptroller may or the other
    53  appropriate official, respectively, shall nevertheless require prior  to
    54  the  approval of any such contract a bond guaranteeing prompt payment of
    55  moneys due to all persons furnishing labor or materials to the  contrac-
    56  tor or any subcontractors in the prosecution of the work provided for in

        A. 3963                             9

     1  such  contract. Whenever a municipal corporation issues a permit subject
     2  to compliance with section two hundred twenty of  the  labor  law,  such
     3  permittee  or  its contractor or subcontractors furnishing workers shall
     4  post a payment bond subject to this section. Provided, however, that all
     5  performance  bonds  and payment bonds may, at the discretion of the head
     6  of the state agency, public benefit corporation or commission, or his or
     7  her designee, be dispensed with for the completion of a  work  specified
     8  in  a contract for the prosecution of a public improvement for the state
     9  of New York for which bids are solicited where the aggregate  amount  of
    10  the contract is under one hundred thousand dollars and provided further,
    11  that  in  a  case  where  the  contract  is  not subject to the multiple
    12  contract award requirements of section one hundred thirty-five  of  this
    13  article,  such  requirements may be dispensed with where the head of the
    14  state agency, public benefit corporation or commission finds it to be in
    15  the public interest and where  the  aggregate  amount  of  the  contract
    16  awarded or to be awarded is less than two hundred thousand dollars. In a
    17  case  where  a  contract  is awarded to a small business concern or to a
    18  minority or women-owned business  concern,  all  performance  bonds  and
    19  payment  bonds  may  be  dispensed with when the aggregate amount of the
    20  contract is under five hundred thousand dollars. Advertisements for bids
    21  shall provide information as to the requirements  for,  or  dispensation
    22  of,  performance  and  payment  bonds.  Provided further, that in a case
    23  where a performance or payment bond is dispensed with, twenty per centum
    24  may be retained from each progress payment or estimate until the  entire
    25  contract work has been completed and accepted, at which time the head of
    26  the  state agency, public benefit corporation or commission shall, pend-
    27  ing the payment of the final estimate, pay not  to  exceed  seventy-five
    28  per centum of the amount of the retained percentage.
    29    §  8.  Subdivision  4  of  section  139-f of the state finance law, as
    30  amended by chapter 83 of the  laws  of  1995,  is  amended  to  read  as
    31  follows:
    32    4.  Notwithstanding  any other provision of this section or other law,
    33  requirements for the furnishing of a performance bond or a payment  bond
    34  may  be dispensed with at the discretion of the head of the state agency
    35  or corporation, or his or her designee, where  the  public  owner  is  a
    36  state  agency  or  corporation  described  in  subdivision one-a of this
    37  section and the aggregate amount  of  the  contract  awarded  or  to  be
    38  awarded  is  under  fifty  thousand  dollars  and,  in  a case where the
    39  contract is not subject to the multiple contract award  requirements  of
    40  section  one  hundred thirty-five of this article, such requirements may
    41  be dispensed with where the head of  the  state  agency  or  corporation
    42  finds  it to be in the public interest and where the aggregate amount of
    43  the contract awarded or to be awarded  is  under  two  hundred  thousand
    44  dollars.  In  a  case  where  a  contract is awarded to a small business
    45  concern or to a minority or women-owned business concern,  all  perform-
    46  ance  bonds  and  payment bonds may be dispensed with when the aggregate
    47  amount of the contract is under five hundred  thousand  dollars.  Adver-
    48  tisements for proposals shall provide information as to the requirements
    49  for,  or  dispensation  of,  performance  and  payment  bonds.  Provided
    50  further, that in a case where a performance or payment bond is dispensed
    51  with, twenty per centum may be retained from each  progress  payment  or
    52  estimate until the entire contract work has been completed and accepted,
    53  at which time the head of the state agency or corporation shall, pending
    54  the  payment  of  the final estimate, pay not to exceed seventy-five per
    55  centum of the amount of the retained percentage.

        A. 3963                            10

     1    § 9. The opening paragraph of section 139-g of the state finance  law,
     2  as  amended  by  chapter  636 of the laws of 2003, is amended to read as
     3  follows:
     4    In  every  state  agency,  department and authority which has let more
     5  than two million dollars in service and construction contracts and state
     6  assisted project contracts in the prior fiscal year, the chief executive
     7  officer of that agency, department or authority shall, with  respect  to
     8  those  contracts  and state assisted project contracts let by his or her
     9  agency, department or authority:
    10    § 10. The opening paragraph of subdivision (b) of section 139-g of the
    11  state finance law, as amended by chapter 636 of the  laws  of  2003,  is
    12  amended to read as follows:
    13    identify  all  small-business  and  certified women and minority-owned
    14  business concerns which, in the judgment of the chief executive  officer
    15  of  that agency, department or authority, can bid on those contracts and
    16  state assisted project contracts which are usually and  customarily  let
    17  by  that  agency,  department  or  authority, or in which that authority
    18  provides a grant or loan or tax  exempt  financing,  with  a  reasonable
    19  expectation  of  success.  Such chief executive officers shall carry out
    20  the provisions of this subdivision:
    21    § 11.  Section 139-g of the state finance law is amended by  adding  a
    22  new subdivision (e) to read as follows:
    23    (e)  For  the purposes of this section, the following words shall have
    24  the following meanings:
    25    (i) "State assisted project contract" shall mean any written agreement
    26  arising out of a  state  assisted  housing  project  or  state  assisted
    27  economic  development project or state assisted higher education project
    28  or state assisted hospital or health care facility  project,  for  which
    29  the  total  project  cost  exceeds two million dollars and for which the
    30  project owner is committed to spend or does expend funds for the  acqui-
    31  sition,  construction,  demolition,  replacement, major repair, or reno-
    32  vation of real property and improvements thereon for such project.
    33    (ii) "State assisted housing project" shall mean those projects  which
    34  receive  from  the  New  York  state  housing  finance agency tax-exempt
    35  financing for all or part of the total project cost.
    36    (iii) "State assisted economic development project" shall  mean  those
    37  projects which receive from the New York foundation of science technolo-
    38  gy  and innovation, or the urban development corporation and its subsid-
    39  iaries a grant or loan or tax-exempt financing for all or  part  of  the
    40  total project cost.
    41    (iv)  "State  assisted  higher  education  project"  shall  mean those
    42  projects which receive from the dormitory authority of the state of  New
    43  York  a  grant  or  loan  or tax-exempt financing for all or part of the
    44  total project cost.
    45    (v) "State assisted hospital or health care  facility  project"  shall
    46  mean  those  projects  which receive from the dormitory authority of the
    47  state of New York a grant or loan or tax-exempt  financing  for  all  or
    48  part of the total project cost.
    49    §  12.  This  act shall take effect immediately, provided however, the
    50  amendments to article 15-A of the executive law made  by  sections  one,
    51  two,  three,  four, five and six of this act shall not affect the repeal
    52  of such article and shall be deemed repealed therewith.
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