Bill Text: NY A03971 | 2017-2018 | General Assembly | Introduced
Bill Title: Provides veterans with access to certain economic programs and incentives; expands the population served by the division of minority and women's business development to include veterans; makes conforming changes to various provisions of law to reflect the inclusion of veterans.
Spectrum: Slight Partisan Bill (Democrat 25-12)
Status: (Introduced - Dead) 2017-05-05 - enacting clause stricken [A03971 Detail]
Download: New_York-2017-A03971-Introduced.html
STATE OF NEW YORK ________________________________________________________________________ 3971 2017-2018 Regular Sessions IN ASSEMBLY January 30, 2017 ___________ Introduced by M. of A. McDONALD, STEC, SIMANOWITZ, SKARTADOS, BRINDISI, OTIS, McDONOUGH, LUPARDO, SKOUFIS, SANTABARBARA, GRAF, LUPINACCI, DiPIETRO, SEPULVEDA, JOHNS, TITONE, CUSICK, PALMESANO, PICHARDO, MOSLEY, RAIA, PERRY, WOERNER -- Multi-Sponsored by -- M. of A. COLTON, CROUCH, GARBARINO, HOOPER, KEARNS, McLAUGHLIN, RAMOS -- read once and referred to the Committee on Veterans' Affairs AN ACT to amend the executive law, the economic development law, the New York state urban development corporation act, the facilities develop- ment corporation act and the New York state medical care facilities finance agency act, in relation to providing veterans with access to certain economic programs and incentives, and to expanding the popu- lation served by the division of minority and women's business devel- opment; to amend the state finance law, the retirement and social security law, the public authorities law, the arts and cultural affairs law, the banking law, the environmental conservation law and the general municipal law, in relation to making conforming changes; and to amend the administrative code of the city of New York, in relation to providing veterans with access to certain economic programs and incentives The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. This act shall be known and may be cited as "OORAH! An ACT 2 Opening Opportunities, Resources and Access for Heroes". 3 § 1-a. The article heading of article 15-A of the executive law, as 4 added by chapter 261 of the laws of 1988, is amended to read as follows: 5 PARTICIPATION BY MINORITY GROUP MEMBERS [AND], 6 WOMEN AND VETERANS WITH RESPECT TO STATE CONTRACTS 7 § 2. Subdivisions 1, 4, 9, 10, 19 and 22 of section 310 of the execu- 8 tive law, subdivisions 1 and 9 as added by chapter 261 of the laws of 9 1988, subdivisions 4 and 10 as amended by chapter 55 of the laws of 1992 EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD04099-02-7A. 3971 2 1 and subdivisions 19 and 22 as added by chapter 175 of the laws of 2010, 2 are amended and a new subdivision 15-a is added to read as follows: 3 1. "Certified business" shall mean a business verified as a minority 4 [or women-owned], women or veteran-owned business enterprise pursuant to 5 section three hundred fourteen of this article. 6 4. "Director" shall mean the director of the division of minority [and7women's], women and veterans' business development in the department of 8 economic development. 9 9. "Utilization plan" shall mean a plan prepared by a contractor and 10 submitted in connection with a proposed state contract. The utilization 11 plan shall identify certified minority [or women-owned], women or veter- 12 an-owned business enterprises, if known, that have committed to perform 13 work in connection with the proposed state contract as well as any such 14 enterprises, if known, which the contractor intends to use in connection 15 with the contractor's performance of the proposed state contract. The 16 plan shall specifically contain a list, including the name, address and 17 telephone number, of each certified enterprise with which the contractor 18 intends to subcontract. 19 10. "Office" shall mean the division of minority [and], women's and 20 veterans' business development in the department of economic develop- 21 ment. 22 15-a. "Veteran-owned business enterprise" shall mean a business enter- 23 prise, including a sole proprietorship, partnership or corporation that 24 is: 25 (a) at least fifty-one percent owned by one or more United States 26 citizens or permanent resident aliens who are honorably discharged 27 United States veterans; 28 (b) an enterprise in which the ownership interest of such veterans is 29 real, substantial and continuing; 30 (c) an enterprise in which such veteran ownership has and exercises 31 the authority to control independently the day-to-day business decisions 32 of the enterprise; 33 (d) an enterprise authorized to do business in this state and inde- 34 pendently owned and operated; 35 (e) an enterprise owned by an individual or individuals, whose owner- 36 ship, control and operation are relied upon for certification, with a 37 personal net worth that does not exceed three million five hundred thou- 38 sand dollars, as adjusted annually on the first of January for inflation 39 according to the consumer price index of the previous year; and 40 (f) an enterprise that is a small business pursuant to subdivision 41 twenty of this section. 42 A firm owned by a minority group member who is also a veteran may be 43 certified as a minority-owned business enterprise, a veteran-owned busi- 44 ness enterprise, or both, and may be counted towards either a minority- 45 owned business enterprise goal or a veteran-owned business enterprise 46 goal, in regard to any contract or any goal, set by an agency or author- 47 ity, but such participation may not be counted towards both such goals. 48 Such an enterprise's participation in a contract may not be divided 49 between the minority-owned business enterprise goal and the veteran- 50 owned business enterprise goal. A firm owned by a woman who is also a 51 veteran may be certified as a women-owned business enterprise, a veter- 52 an-owned business enterprise, or both, and may be counted towards either 53 a women-owned business enterprise goal or a veteran-owned business 54 enterprise goal, in regard to any contract or any goal, set by an agency 55 or authority, but such participation may not be counted towards both 56 such goals. Such an enterprise's participation in a contract may not beA. 3971 3 1 divided between the women-owned business enterprise goal and the veter- 2 an-owned business enterprise goal. 3 19. "Personal net worth" shall mean the aggregate adjusted net value 4 of the assets of an individual remaining after total liabilities are 5 deducted. Personal net worth includes the individual's share of assets 6 held jointly with said individual's spouse and does not include the 7 individual's ownership interest in the certified minority [and women-8owned], women or veteran-owned business enterprise, the individual's 9 equity in his or her primary residence, or up to five hundred thousand 10 dollars of the present cash value of any qualified retirement savings 11 plan or individual retirement account held by the individual less any 12 penalties for early withdrawal. 13 22. "Diversity practices" shall mean the contractor's practices and 14 policies with respect to: 15 (a) utilizing certified minority [and women-owned], women and veter- 16 an-owned business enterprises in contracts awarded by a state agency or 17 other public corporation, as subcontractors and suppliers; and 18 (b) entering into partnerships, joint ventures or other similar 19 arrangements with certified minority [and women-owned], women or veter- 20 an-owned business enterprises as defined in this article or other appli- 21 cable statute or regulation governing an entity's utilization of minori- 22 ty [or women-owned], women or veteran-owned business enterprises. 23 § 3. The section heading, subdivision 1, paragraphs (a), (d), (e) and 24 (f) of subdivision 3 of section 311 of the executive law, the section 25 heading, subdivision 1, and paragraphs (d) and (e) of subdivision 3 as 26 amended by chapter 55 of the laws of 1992, and paragraphs (a) and (f) of 27 subdivision 3 as added by chapter 261 of the laws of 1988, are amended 28 to read as follows: 29 Division of minority [and], women's and veterans' business develop- 30 ment. 1. The head of the division of minority [and], women's and veter- 31 ans' business development shall be the director who shall be appointed 32 by the governor and hold office at the pleasure of the commissioner. It 33 shall be the duty of the director of the division of minority [and], 34 women's and veterans' business development to assist the governor in the 35 formulation and implementation of laws and policies relating to minority 36 [and women-owned] women and veteran-owned business enterprises. 37 (a) to encourage and assist contracting agencies in their efforts to 38 increase participation by minority [and women-owned], women and veter- 39 an-owned business enterprises on state contracts and subcontracts so as 40 to facilitate the award of a fair share of such contracts to them; 41 (d) to review periodically the practices and procedures of each 42 contracting agency with respect to compliance with the provisions of 43 this article, and to require them to file periodic reports with the 44 division of minority [and], women's and veterans' business development 45 as to the level of minority [and women-owned], women and veteran-owned 46 business enterprises participation in the awarding of agency contracts 47 for goods and services; 48 (e) on January first of each year report to the governor and the 49 chairpersons of the senate finance and assembly ways and means commit- 50 tees on the level of minority [and women-owned], women and veteran-owned 51 business enterprises participating in each agency's contracts for goods 52 and services and on activities of the office and effort by each 53 contracting agency to promote employment of minority group members 54 [and], women and veterans, and to promote and increase participation by 55 certified businesses with respect to state contracts and subcontracts so 56 as to facilitate the award of a fair share of state contracts to suchA. 3971 4 1 businesses. The comptroller shall assist the division in collecting 2 information on the participation of certified business for each 3 contracting agency. Such report may recommend new activities and 4 programs to effectuate the purposes of this article; 5 (f) to prepare and update periodically a directory of certified minor- 6 ity [and women-owned], women and veteran-owned business enterprises 7 which shall, wherever practicable, be divided into categories of labor, 8 services, supplies, equipment, materials and recognized construction 9 trades and which shall indicate areas or locations of the state where 10 such enterprises are available to perform services; 11 § 3-a. Paragraph (c) of subdivision 4 of section 311 of the executive 12 law, as added by chapter 361 of the laws of 2009, is amended to read as 13 follows: 14 (c) seek to maximize utilization by minority [and women-owned], women 15 and veteran-owned business enterprises of available federal resources 16 including but not limited to federal grants, loans, loan guarantees, 17 surety bonding guarantees, technical assistance, and programs and 18 services of the federal small business administration. 19 § 4. The section heading and subdivisions 1, 2 and 3 of section 311-a 20 of the executive law, as added by section 4 of part BB of chapter 59 of 21 the laws of 2006, are amended to read as follows: 22 Minority [and women-owned], women and veteran-owned business enter- 23 prise statewide advocate. 1. There is hereby established within the 24 department of economic development an office of the minority [and25women-owned], women and veteran-owned business enterprise statewide 26 advocate. The statewide advocate shall be appointed by the commissioner 27 with the advice of the small business advisory board as established in 28 section one hundred thirty-three of the economic development law and 29 shall serve in the unclassified service of the director. The statewide 30 advocate shall be located in the Albany empire state development office. 31 2. The advocate shall act as a liaison for minority [and women-owned], 32 women and veteran-owned business enterprises [(MWBEs)] (MWVBEs) to 33 assist them in obtaining technical, managerial, financial and other 34 business assistance for certified businesses and applicants. The advo- 35 cate shall investigate complaints brought by or on behalf of [MWBEs] 36 (MWVBEs) concerning certification delays and instances of violations of 37 law by state agencies. The statewide advocate shall assist certified 38 businesses and applicants in the certification process. Other functions 39 of the statewide advocate shall be directed by the commissioner. The 40 advocate may request and the director may appoint staff and employees of 41 the division of minority [and women], women's and veterans' business 42 development to support the administration of the office of the statewide 43 advocate. 44 3. The statewide advocate shall establish a toll-free number at the 45 department of economic development to be used to answer questions 46 concerning the [MWBE] MWVBE certification process. 47 § 5. The section heading and paragraph (a) of subdivision 1 of section 48 312 of the executive law, as added by chapter 261 of the laws of 1988, 49 are amended to read as follows: 50 Equal employment opportunities for minority group members [and], women 51 and veterans. 52 (a) The contractor will not discriminate against employees or appli- 53 cants for employment because of race, creed, color, national origin, 54 sex, age, disability or marital status, and will undertake or continue 55 existing programs of affirmative action to ensure that minority group 56 members [and], women and veterans are afforded equal employment opportu-A. 3971 5 1 nities without discrimination. For purposes of this article affirmative 2 action shall mean recruitment, employment, job assignment, promotion, 3 upgradings, demotion, transfer, layoff, or termination and rates of pay 4 or other forms of compensation. 5 § 6. Section 312-a of the executive law, as amended by section 1 of 6 part Q of chapter 58 of the laws of 2015, is amended to read as follows: 7 § 312-a. Study of minority [and women-owned], women and veteran-owned 8 business enterprise programs. 1. The director of the division of minori- 9 ty [and women-owned], women and veteran-owned business development in 10 the department of economic development is authorized and directed to 11 recommission a statewide disparity study regarding the participation of 12 minority [and women-owned], women and veteran-owned business enterprises 13 in state contracts since the amendment of this article to be delivered 14 to the governor and legislature no later than August fifteenth, two 15 thousand sixteen. The study shall be prepared by an entity independent 16 of the department and selected through a request for proposal process. 17 The purpose of such study is: 18 (a) to determine whether there is a disparity between the number of 19 qualified minority [and women-owned], women and veteran-owned businesses 20 ready, willing and able to perform state contracts for commodities, 21 services and construction, and the number of such contractors actually 22 engaged to perform such contracts, and to determine what changes, if 23 any, should be made to state policies affecting minority [and women-24owned], women and veteran-owned business enterprises; and (b) to deter- 25 mine whether there is a disparity between the number of qualified minor- 26 ities [and], women and veterans ready, willing and able, with respect to 27 labor markets, qualifications and other relevant factors, to participate 28 in contractor employment, management level bodies, including boards of 29 directors, and as senior executive officers within contracting entities 30 and the number of such group members actually employed or affiliated 31 with state contractors in the aforementioned capacities, and to deter- 32 mine what changes, if any, should be made to state policies affecting 33 minority [and], women and veterans group populations with regard to 34 state contractors' employment and appointment practices relative to 35 diverse group members. Such study shall include, but not be limited to, 36 an analysis of the history of minority [and women-owned], women and 37 veteran-owned business enterprise programs and their effectiveness as a 38 means of securing and ensuring participation by minorities [and], women 39 and veterans, and a disparity analysis by market area and region of the 40 state. Such study shall distinguish between minority males, minority 41 females and non-minority females, and between minority veterans and 42 non-minority veterans, and female veterans and male veterans, in the 43 statistical analysis. 44 2. The director of the division of minority [and women-owned], women 45 and veteran-owned business development is directed to transmit the 46 disparity study to the governor and the legislature not later than 47 August fifteenth, two thousand sixteen, and to post the study on the 48 website of the department of economic development. 49 § 7. Section 313 of the executive law, as amended by chapter 175 of 50 the laws of 2010, is amended to read as follows: 51 § 313. Opportunities for minority [and women-owned], women and veter- 52 an-owned business enterprises. 1. Goals and requirements for agencies 53 and contractors. Each agency shall structure procurement procedures for 54 contracts made directly or indirectly to minority [and women-owned], 55 women and veteran-owned business enterprises, [in accordance with the56findings of the two thousand ten disparity study,] consistent with theA. 3971 6 1 purposes of this article, to attempt to achieve the following results 2 with regard to total annual statewide procurement: 3 (a) construction industry for certified minority-owned business enter- 4 prises: fourteen and thirty-four hundredths percent; 5 (b) construction industry for certified women-owned business enter- 6 prises: eight and forty-one hundredths percent; 7 (b-1) construction industry for certified veteran-owned business 8 enterprises: a percentage to be determined by the disparity study 9 described in subdivision one of section three hundred twelve-a of this 10 article; 11 (c) construction related professional services industry for certified 12 minority-owned business enterprises: thirteen and twenty-one hundredths 13 percent; 14 (d) construction related professional services industry for certified 15 women-owned business enterprises: eleven and thirty-two hundredths 16 percent; 17 (d-1) construction related professional services industry for certi- 18 fied veteran-owned business enterprises: a percentage to be determined 19 by the disparity study described in subdivision one of section three 20 hundred twelve-a of this article; 21 (e) non-construction related services industry for certified minori- 22 ty-owned business enterprises: nineteen and sixty hundredths percent; 23 (f) non-construction related services industry for certified women- 24 owned business enterprises: seventeen and forty-four hundredths percent; 25 (f-1) non-construction related services industry for certified veter- 26 an-owned business enterprises: a percentage to be determined by the 27 disparity study described in subdivision one of section three hundred 28 twelve-a of this article; 29 (g) commodities industry for certified minority-owned business enter- 30 prises: sixteen and eleven hundredths percent; 31 (h) commodities industry for certified women-owned business enter- 32 prises: ten and ninety-three hundredths percent; 33 (h-1) commodities industry for certified veteran-owned business enter- 34 prises: a percentage to be determined by the disparity study described 35 in subdivision one of section three hundred twelve-a of this article; 36 (i) overall agency total dollar value of procurement for certified 37 minority-owned business enterprises: sixteen and fifty-three hundredths 38 percent; 39 (j) overall agency total dollar value of procurement for certified 40 women-owned business enterprises: twelve and thirty-nine hundredths 41 percent; [and] 42 (j-1) overall agency total dollar value of procurement for certified 43 veteran-owned business enterprises: a percentage to be determined by 44 the disparity study described in subdivision one of section three 45 hundred twelve-a of this article; 46 (k) overall agency total dollar value of procurement for certified 47 minority, women-owned business enterprises: twenty-eight and ninety-two 48 hundredths percent; and 49 (l) overall agency total dollar value of procurement for certified 50 minority, women, veteran-owned business enterprises: a percentage to be 51 determined by the disparity study described in subdivision one of 52 section three hundred twelve-a of this article. 53 1-a. The director shall ensure that each state agency has been 54 provided with a copy of the two thousand ten disparity study and there- 55 after the two thousand seventeen disparity study.A. 3971 7 1 1-b. Each agency shall develop and adopt agency-specific goals based 2 on the findings of the two thousand ten disparity study and thereafter 3 the two thousand eighteen disparity study. 4 2. The director shall promulgate rules and regulations pursuant to the 5 goals established in subdivision one of this section that provide meas- 6 ures and procedures to ensure that certified minority [and women-owned], 7 women and veteran-owned businesses shall be given the opportunity for 8 maximum feasible participation in the performance of state contracts and 9 to assist in the agency's identification of those state contracts for 10 which minority [and women-owned], women and veteran-owned certified 11 businesses may best bid to actively and affirmatively promote and assist 12 their participation in the performance of state contracts so as to 13 facilitate the agency's achievement of the maximum feasible portion of 14 the goals for state contracts to such businesses. 15 2-a. The director shall promulgate rules and regulations that will 16 accomplish the following: 17 (a) provide for the certification and decertification of minority [and18women-owned], women and veteran-owned business enterprises for all agen- 19 cies through a single process that meets applicable requirements; 20 (b) require that each contract solicitation document accompanying each 21 solicitation set forth the expected degree of minority [and22women-owned], women and veteran-owned business enterprise participation 23 based, in part, on: 24 (i) the potential subcontract opportunities available in the prime 25 procurement contract; and 26 (ii) the availability, as contained within the study, of certified 27 minority [and women-owned], women and veteran-owned business enterprises 28 to respond competitively to the potential subcontract opportunities; 29 (c) require that each agency provide a current list of certified 30 minority, women and veteran-owned business enterprises to each prospec- 31 tive contractor; 32 (d) allow a contractor that is a certified [minority-owned or women-33owned] minority, women or veteran-owned business enterprise to use the 34 work it performs to meet requirements for use of certified [minority-35owned or women-owned] minority, women or veteran-owned business enter- 36 prises as subcontractors; 37 (e) provide for joint ventures, which a bidder may count toward meet- 38 ing its minority [and women-owned], women and veteran-owned business 39 enterprise participation; 40 (f) consistent with subdivision six of this section, provide for 41 circumstances under which an agency may waive obligations of the 42 contractor relating to minority [and women-owned], women and veteran- 43 owned business enterprise participation; 44 (g) require that an agency verify that minority [and women-owned], 45 women and veteran-owned business enterprises listed in a successful bid 46 are actually participating to the extent listed in the project for which 47 the bid was submitted; 48 (h) provide for the collection of statistical data by each agency 49 concerning actual minority [and women-owned], women and veteran-owned 50 business enterprise participation; and 51 (i) require each agency to consult the most current disparity study 52 when calculating agency-wide and contract specific participation goals 53 pursuant to this article. 54 3. Solely for the purpose of providing the opportunity for meaningful 55 participation by certified businesses in the performance of state 56 contracts as provided in this section, state contracts shall includeA. 3971 8 1 leases of real property by a state agency to a lessee where: the terms 2 of such leases provide for the construction, demolition, replacement, 3 major repair or renovation of real property and improvements thereon by 4 such lessee; and the cost of such construction, demolition, replacement, 5 major repair or renovation of real property and improvements thereon 6 shall exceed the sum of one hundred thousand dollars. Reports to the 7 director pursuant to section three hundred fifteen of this article shall 8 include activities with respect to all such state contracts. Contracting 9 agencies shall include or require to be included with respect to state 10 contracts for the acquisition, construction, demolition, replacement, 11 major repair or renovation of real property and improvements thereon, 12 such provisions as may be necessary to effectuate the provisions of this 13 section in every bid specification and state contract, including, but 14 not limited to: (a) provisions requiring contractors to make a good 15 faith effort to solicit active participation by enterprises identified 16 in the directory of certified businesses provided to the contracting 17 agency by the office; (b) requiring the parties to agree as a condition 18 of entering into such contract, to be bound by the provisions of section 19 three hundred sixteen of this article; and (c) requiring the contractor 20 to include the provisions set forth in paragraphs (a) and (b) of this 21 subdivision in every subcontract in a manner that the provisions will be 22 binding upon each subcontractor as to work in connection with such 23 contract. Provided, however, that no such provisions shall be binding 24 upon contractors or subcontractors in the performance of work or the 25 provision of services that are unrelated, separate or distinct from the 26 state contract as expressed by its terms, and nothing in this section 27 shall authorize the director or any contracting agency to impose any 28 requirement on a contractor or subcontractor except with respect to a 29 state contract. 30 4. In the implementation of this section, the contracting agency shall 31 (a) consult the findings contained within the disparity study evidencing 32 relevant industry specific availability of certified businesses; 33 (b) implement a program that will enable the agency to evaluate each 34 contract to determine the appropriateness of the goal pursuant to subdi- 35 vision one of this section; 36 (c) consider where practicable, the severability of construction 37 projects and other bundled contracts; and 38 (d) consider compliance with the requirements of any federal law 39 concerning opportunities for minority [and women-owned], women and 40 veteran-owned business enterprises which effectuates the purpose of this 41 section. The contracting agency shall determine whether the imposition 42 of the requirements of any such law duplicate or conflict with the 43 provisions hereof and if such duplication or conflict exists, the 44 contracting agency shall waive the applicability of this section to the 45 extent of such duplication or conflict. 46 5. (a) Contracting agencies shall administer the rules and regulations 47 promulgated by the director in a good faith effort to meet the maximum 48 feasible portion of the agency's goals adopted pursuant to this article 49 and the regulations of the director. Such rules and regulations: shall 50 require a contractor to submit a utilization plan after bids are opened, 51 when bids are required, but prior to the award of a state contract; 52 shall require the contracting agency to review the utilization plan 53 submitted by the contractor and to post the utilization plan and any 54 waivers of compliance issued pursuant to subdivision six of this section 55 on the website of the contracting agency within a reasonable period of 56 time as established by the director; shall require the contracting agen-A. 3971 9 1 cy to notify the contractor in writing within a period of time specified 2 by the director as to any deficiencies contained in the contractor's 3 utilization plan; shall require remedy thereof within a period of time 4 specified by the director; shall require the contractor to submit peri- 5 odic compliance reports relating to the operation and implementation of 6 any utilization plan; shall not allow any automatic waivers but shall 7 allow a contractor to apply for a partial or total waiver of the minori- 8 ty [and women-owned], women and veteran-owned business enterprise 9 participation requirements pursuant to subdivisions six and seven of 10 this section; shall allow a contractor to file a complaint with the 11 director pursuant to subdivision eight of this section in the event a 12 contracting agency has failed or refused to issue a waiver of the minor- 13 ity [and women-owned], women and veteran-owned business enterprise 14 participation requirements or has denied such request for a waiver; and 15 shall allow a contracting agency to file a complaint with the director 16 pursuant to subdivision nine of this section in the event a contractor 17 is failing or has failed to comply with the minority [and women-owned], 18 women and veteran-owned business enterprise participation requirements 19 set forth in the state contract where no waiver has been granted. 20 (b) The rules and regulations promulgated pursuant to this subdivision 21 regarding a utilization plan shall provide that where enterprises have 22 been identified within a utilization plan, a contractor shall attempt, 23 in good faith, to utilize such enterprise at least to the extent indi- 24 cated. A contracting agency may require a contractor to indicate, within 25 a utilization plan, what measures and procedures he or she intends to 26 take to comply with the provisions of this article, but may not require, 27 as a condition of award of, or compliance with, a contract that a 28 contractor utilize a particular enterprise in performance of the 29 contract. 30 (c) Without limiting other grounds for the disqualification of bids or 31 proposals on the basis of non-responsibility, a contracting agency may 32 disqualify the bid or proposal of a contractor as being non-responsible 33 for failure to remedy notified deficiencies contained in the contrac- 34 tor's utilization plan within a period of time specified in regulations 35 promulgated by the director after receiving notification of such defi- 36 ciencies from the contracting agency. Where failure to remedy any noti- 37 fied deficiency in the utilization plan is a ground for disqualifica- 38 tion, that issue and all other grounds for disqualification shall be 39 stated in writing by the contracting agency. Where the contracting agen- 40 cy states that a failure to remedy any notified deficiency in the utili- 41 zation plan is a ground for disqualification the contractor shall be 42 entitled to an administrative hearing, on a record, involving all 43 grounds stated by the contracting agency. Such hearing shall be 44 conducted by the appropriate authority of the contracting agency to 45 review the determination of disqualification. A final administrative 46 determination made following such hearing shall be reviewable in a 47 proceeding commenced under article seventy-eight of the civil practice 48 law and rules, provided that such proceeding is commenced within thirty 49 days of the notice given by certified mail return receipt requested 50 rendering such final administrative determination. Such proceeding shall 51 be commenced in the supreme court, appellate division, third department 52 and such proceeding shall be preferred over all other civil causes 53 except election causes, and shall be heard and determined in preference 54 to all other civil business pending therein, except election matters, 55 irrespective of position on the calendar. Appeals taken to the court ofA. 3971 10 1 appeals of the state of New York shall be subject to the same prefer- 2 ence. 3 6. Where it appears that a contractor cannot, after a good faith 4 effort, comply with the minority [and women-owned], women and veteran- 5 owned business enterprise participation requirements set forth in a 6 particular state contract, a contractor may file a written application 7 with the contracting agency requesting a partial or total waiver of such 8 requirements setting forth the reasons for such contractor's inability 9 to meet any or all of the participation requirements together with an 10 explanation of the efforts undertaken by the contractor to obtain the 11 required minority [and women-owned], women and veteran-owned business 12 enterprise participation. In implementing the provisions of this 13 section, the contracting agency shall consider the number and types of 14 minority [and women-owned], women and veteran-owned business enterprises 15 located in the region in which the state contract is to be performed, 16 the total dollar value of the state contract, the scope of work to be 17 performed and the project size and term. If, based on such consider- 18 ations, the contracting agency determines there is not a reasonable 19 availability of contractors on the list of certified [business] busi- 20 nesses to furnish services for the project, it shall issue a waiver of 21 compliance to the contractor. In making such determination, the 22 contracting agency shall first consider the availability of other busi- 23 ness enterprises located in the region and shall thereafter consider the 24 financial ability of minority [and women-owned], women and veteran-owned 25 businesses located outside the region in which the contract is to be 26 performed to perform the state contract. 27 7. For purposes of determining a contractor's good faith effort to 28 comply with the requirements of this section or to be entitled to a 29 waiver therefrom the contracting agency shall consider: 30 (a) whether the contractor has advertised in general circulation 31 media, trade association publications, and [minority-focus and women-fo-32cus] minority-focused, women-focused and veteran-focused media and, in 33 such event, (i) whether or not certified minority [or women-owned], 34 women or veteran-owned businesses which have been solicited by the 35 contractor exhibited interest in submitting proposals for a particular 36 project by attending a pre-bid conference; and 37 (ii) whether certified businesses which have been solicited by the 38 contractor have responded in a timely fashion to the contractor's solic- 39 itations for timely competitive bid quotations prior to the contracting 40 agency's bid date; and 41 (b) whether there has been written notification to appropriate certi- 42 fied businesses that appear in the directory of certified businesses 43 prepared pursuant to paragraph (f) of subdivision three of section three 44 hundred eleven of this article; and 45 (c) whether the contractor can reasonably structure the amount of work 46 to be performed under subcontracts in order to increase the likelihood 47 of participation by certified businesses. 48 8. In the event that a contracting agency fails or refuses to issue a 49 waiver to a contractor as requested within twenty days after having made 50 application therefor pursuant to subdivision six of this section or if 51 the contracting agency denies such application, in whole or in part, the 52 contractor may file a complaint with the director pursuant to section 53 three hundred sixteen of this article setting forth the facts and 54 circumstances giving rise to the contractor's complaint together with a 55 demand for relief. The contractor shall serve a copy of such complaint 56 upon the contracting agency by personal service or by certified mail,A. 3971 11 1 return receipt requested. The contracting agency shall be afforded an 2 opportunity to respond to such complaint in writing. 3 9. If, after the review of a contractor's minority [and women owned], 4 women and veteran-owned business utilization plan or review of a period- 5 ic compliance report and after such contractor has been afforded an 6 opportunity to respond to a notice of deficiency issued by the contract- 7 ing agency in connection therewith, it appears that a contractor is 8 failing or refusing to comply with the minority [and women-owned], women 9 and veteran-owned business participation requirements as set forth in 10 the state contract and where no waiver from such requirements has been 11 granted, the contracting agency may file a written complaint with the 12 director pursuant to section three hundred sixteen of this article 13 setting forth the facts and circumstances giving rise to the contracting 14 agency's complaint together with a demand for relief. The contracting 15 agency shall serve a copy of such complaint upon the contractor by 16 personal service or by certified mail, return receipt requested. The 17 contractor shall be afforded an opportunity to respond to such complaint 18 in writing. 19 § 8. Section 313-a of the executive law, as added by chapter 175 of 20 the laws of 2010, is amended to read as follows: 21 § 313-a. Diversity practices of state contractors. The director shall 22 promulgate rules and regulations setting forth measures and procedures 23 to require all contracting agencies, where practicable, feasible and 24 appropriate, to assess the diversity practices of contractors submitting 25 bids or proposals in connection with the award of a state contract. Such 26 rules and regulations shall take into account: the nature of the labor, 27 services, supplies, equipment or materials being procured by the state 28 agency; the method of procurement required to be used by a state agency 29 to award the contract and minority [and women-owned], women and veter- 30 an-owned business utilization plans required to be submitted pursuant to 31 sections three hundred twelve and three hundred thirteen of this arti- 32 cle; and such other factors as the director deems appropriate or neces- 33 sary to promote the award of state contracts to contractors having sound 34 diversity practices. Such assessment shall not in any way permit the 35 automatic rejection of a bid or procurement contract proposal based on 36 lack of adherence to diversity practices. Each bid or proposal shall be 37 analyzed on an individual per bid or per proposal basis with the 38 contractor's diversity practices considered as only a part of a wider 39 consideration of several factors when deciding to award or decline to 40 award a bid or proposal. The director shall develop the rules and regu- 41 lations required hereunder only after consultation with the state 42 procurement council established by section one hundred sixty-one of the 43 state finance law. 44 § 9. Subdivisions 2 and 2-a of section 314 of the executive law, 45 subdivision 2 as added by chapter 261 of the laws of 1988 and subdivi- 46 sion 2-a as amended by chapter 175 of the laws of 2010, are amended to 47 read as follows: 48 2. For the purposes of this article, the office shall be responsible 49 for verifying businesses as being owned, operated, and controlled by 50 minority group members [or], women or veterans and for certifying such 51 verified businesses. The director shall prepare a directory of certified 52 businesses for use by contracting agencies and contractors in carrying 53 out the provisions of this article. The director shall periodically 54 update the directory. 55 2-a. (a) The director shall establish a procedure enabling the office 56 to accept New York municipal corporation certification verification forA. 3971 12 1 minority [and women-owned], women and veteran-owned business enterprise 2 applicants in lieu of requiring the applicant to complete the state 3 certification process. The director shall promulgate rules and regu- 4 lations to set forth criteria for the acceptance of municipal corpo- 5 ration certification. All eligible municipal corporation certifications 6 shall require business enterprises seeking certification to meet the 7 following standards: 8 (i) have at least fifty-one percent ownership by a minority [or a9women-owned], women or veteran-owned enterprise and be owned by United 10 States citizens or permanent resident aliens; 11 (ii) be an enterprise in which the minority [and/or women-ownership], 12 women and/or veteran-ownership interest is real, substantial and contin- 13 uing; 14 (iii) be an enterprise in which the minority [and/or women-ownership], 15 women and/or veteran-ownership has and exercises the authority to 16 control independently the day-to-day business decisions of the enter- 17 prise; 18 (iv) be an enterprise authorized to do business in this state; 19 (v) be subject to a physical site inspection to verify the fifty-one 20 percent ownership requirement; 21 (vi) be owned by an individual or individuals, whose ownership, 22 control and operation are relied upon for certification, with a personal 23 net worth that does not exceed three million five hundred thousand 24 dollars, as adjusted annually for inflation according to the consumer 25 price index; and 26 (vii) be an enterprise that is a small business pursuant to subdivi- 27 sion twenty of section three hundred ten of this article. 28 (b) The director shall work with all municipal corporations that have 29 a municipal minority [and women-owned], women and veteran-owned business 30 enterprise program to develop standards to accept state certification to 31 meet the municipal corporation minority [and women-owned], women and 32 veteran-owned business enterprise certification standards. 33 (c) The director shall establish a procedure enabling the division to 34 accept federal certification verification for minority [and35women-owned], women and veteran-owned business enterprise applicants, 36 provided said standards comport with those required by the state minori- 37 ty [and women-owned], women and veteran-owned business program, in lieu 38 of requiring the applicant to complete the state certification process. 39 The director shall promulgate rules and regulations to set forth crite- 40 ria for the acceptance of federal certification. 41 § 10. Subdivisions 3, 4, 5 and 7 of section 315 of the executive law, 42 subdivision 3 as amended and subdivisions 4, 5 and 7 as added by chapter 43 175 of the laws of 2010, are amended to read as follows: 44 3. Each contracting agency shall report to the director with respect 45 to activities undertaken to promote employment of minority group members 46 [and], women and veterans and promote and increase participation by 47 certified businesses with respect to state contracts and subcontracts. 48 Such reports shall be submitted periodically, but not less frequently 49 than annually, as required by the director, and shall include such 50 information as is necessary for the director to determine whether the 51 contracting agency and contractor have complied with the purposes of 52 this article, including, without limitation, a summary of all waivers of 53 the requirements of subdivisions six and seven of section three hundred 54 thirteen of this article allowed by the contracting agency during the 55 period covered by the report, including a description of the basis of 56 the waiver request and the rationale for granting any such waiver. EachA. 3971 13 1 agency shall also include in such annual report whether or not it has 2 been required to prepare a remedial plan, and, if so, the plan and the 3 extent to which the agency has complied with each element of the plan. 4 4. The division of minority [and], women's and veterans' business 5 development shall issue an annual report which: (a) summarizes the 6 report submitted by each contracting agency pursuant to subdivision 7 three of this section; (b) contains such comparative or other informa- 8 tion as the director deems appropriate, including but not limited to 9 goals compared to actual participation of minority [and women-owned], 10 women and veteran-owned business enterprises in state contracting, to 11 evaluate the effectiveness of the activities undertaken by each such 12 contracting agency to promote increased participation by certified 13 minority [or women-owned], women or veteran-owned businesses with 14 respect to state contracts and subcontracts; (c) contains a summary of 15 all waivers of the requirements of subdivisions six and seven of section 16 three hundred thirteen of this article allowed by each contracting agen- 17 cy during the period covered by the report, including a description of 18 the basis of the waiver request and the contracting agency's rationale 19 for granting any such waiver; (d) describes any efforts to create a 20 database or other information storage and retrieval system containing 21 information relevant to contracting with minority [and women-owned], 22 women and veteran-owned business enterprises; and (e) contains a summary 23 of (i) all determinations of violations of this article by a contractor 24 or a contracting agency made during the period covered by the annual 25 report pursuant to section three hundred sixteen-a of this article and 26 (ii) the penalties or sanctions, if any, assessed in connection with 27 such determinations and the rationale for such penalties or sanctions. 28 Copies of the annual report shall be provided to the commissioner, the 29 governor, the comptroller, the temporary president of the senate, the 30 speaker of the assembly, the minority leader of the senate, the minority 31 leader of the assembly and shall also be made widely available to the 32 public via, among other things, publication on a website maintained by 33 the division of minority [and], women's and veterans' business develop- 34 ment. 35 5. Each agency shall include in its annual report to the governor and 36 legislature pursuant to section one hundred sixty-four of [the executive37law] this chapter its annual goals for contracts with minority-owned 38 [and], women-owned and veteran-owned business enterprises, the number of 39 actual contracts issued to minority-owned [and], women-owned and veter- 40 an-owned business enterprises; and a summary of all waivers of the 41 requirements of subdivisions six and seven of section three hundred 42 thirteen of this article allowed by the reporting agency during the 43 preceding year, including a description of the basis of the waiver 44 request and the rationale for granting such waiver. Each agency shall 45 also include in such annual report whether or not it has been required 46 to prepare a remedial plan, and, if so, the plan and the extent to which 47 the agency has complied with each element of the plan. 48 7. If it is determined by the director that any agency has failed to 49 act in good faith to implement the remedial action plan, pursuant to 50 subdivision six of this section within one year, the director shall 51 provide written notice of such a finding, which shall be publicly avail- 52 able, and direct implementation of remedial actions to: 53 (a) assure that sufficient and effective solicitation efforts to 54 women, veteran and minority-owned business enterprises are being made by 55 said agency;A. 3971 14 1 (b) divide contract requirements, when economically feasible, into 2 quantities that will expand the participation of women, veteran and 3 minority-owned business enterprises; 4 (c) eliminate extended experience or capitalization requirements, when 5 programmatically and economically feasible, that will expand partic- 6 ipation by women, veteran and minority-owned business enterprises; 7 (d) identify specific proposed contracts as particularly attractive or 8 appropriate for participation by women, veteran and minority-owned busi- 9 ness enterprises with such identification to result from and be coupled 10 with the efforts of paragraphs (a), (b), and (c) of this subdivision; 11 and 12 (e) upon a finding by the director that an agency has failed to take 13 affirmative measures to implement the remedial plan and to follow any of 14 the remedial actions set forth by the director, and in the absence of 15 any objective progress towards the agency's goals, require some or all 16 of the agency's procurement, for a specified period of time, be placed 17 under the direction and control of another agency or agencies. 18 § 11. Section 316 of the executive law, as amended by chapter 175 of 19 the laws of 2010, is amended to read as follows: 20 § 316. Enforcement. Upon receipt by the director of a complaint by a 21 contracting agency that a contractor has violated the provisions of a 22 state contract which have been included to comply with the provisions of 23 this article or of a contractor that a contracting agency has violated 24 such provisions or has failed or refused to issue a waiver where one has 25 been applied for pursuant to subdivision six of section three hundred 26 thirteen of this article or has denied such application, the director 27 shall attempt to resolve the matter giving rise to such complaint. If 28 efforts to resolve such matter to the satisfaction of all parties are 29 unsuccessful, the director shall refer the matter, within thirty days of 30 the receipt of the complaint, to the division's hearing officers. Upon 31 conclusion of the administrative hearing, the hearing officer shall 32 submit to the director his or her decision regarding the alleged 33 violation of the contract and recommendations regarding the imposition 34 of sanctions, fines or penalties. The director, within ten days of 35 receipt of the decision, shall file a determination of such matter and 36 shall cause a copy of such determination along with a copy of this arti- 37 cle to be served upon the contractor by personal service or by certified 38 mail return receipt requested. The decision of the hearing officer shall 39 be final and may only be vacated or modified as provided in article 40 seventy-eight of the civil practice law and rules upon an application 41 made within the time provided by such article. The determination of the 42 director as to the imposition of any fines, sanctions or penalties shall 43 be reviewable pursuant to article seventy-eight of the civil practice 44 law and rules. The penalties imposed for any violation which is premised 45 upon either a fraudulent or intentional misrepresentation by the 46 contractor or the contractor's willful and intentional disregard of the 47 minority [and women-owned], women and veteran-owned participation 48 requirement included in the contract may include a determination that 49 the contractor shall be ineligible to submit a bid to any contracting 50 agency or be awarded any such contract for a period not to exceed one 51 year following the final determination; provided however, if a contrac- 52 tor has previously been determined to be ineligible to submit a bid 53 pursuant to this section, the penalties imposed for any subsequent 54 violation, if such violation occurs within five years of the first 55 violation, may include a determination that the contractor shall be 56 ineligible to submit a bid to any contracting agency or be awarded anyA. 3971 15 1 such contract for a period not to exceed five years following the final 2 determination. The division of minority [and women's], women's and 3 veterans' business development shall maintain a website listing all 4 contractors that have been deemed ineligible to submit a bid pursuant to 5 this section and the date after which each contractor shall once again 6 become eligible to submit bids. 7 § 12. Section 316-a of the executive law, as added by chapter 175 of 8 the laws of 2010, is amended to read as follows: 9 § 316-a. Prohibitions in contracts; violations. Every contracting 10 agency shall include a provision in its state contracts expressly 11 providing that any contractor who willfully and intentionally fails to 12 comply with the minority [and women-owned], women and veteran-owned 13 participation requirements of this article as set forth in such state 14 contract shall be liable to the contracting agency for liquidated or 15 other appropriate damages and shall provide for other appropriate reme- 16 dies on account of such breach. A contracting agency that elects to 17 proceed against a contractor for breach of contract as provided in this 18 section shall be precluded from seeking enforcement pursuant to section 19 three hundred sixteen of this article; provided however, that the 20 contracting agency shall include a summary of all enforcement actions 21 undertaken pursuant to this section in its annual report submitted 22 pursuant to subdivision three of section three hundred fifteen of this 23 article. 24 § 13. Section 317 of the executive law, as added by chapter 261 of the 25 laws of 1988, is amended to read as follows: 26 § 317. Superseding effect of article with respect to state law. The 27 provisions of this article shall supersede any other provision of state 28 law, which expressly implements or mandates an equal employment opportu- 29 nity program or a program for securing participation by minority [and30women-owned], women and veteran-owned business enterprises, concerning 31 action to be taken by any party to a state contract, to which the 32 provisions of this article apply; provided, however, that the provisions 33 of any state law, not as hereinabove superseded, which expressly imple- 34 ment or mandate such programs shall remain unimpaired by the provisions 35 of this article, except that the provisions of any such law shall be 36 construed as if the provisions of subdivisions five, six, seven and 37 eight of section three hundred thirteen and section three hundred 38 sixteen of this article were fully set forth therein and made applicable 39 only to complaints of violations under such provisions of law occurring 40 on or after September first, nineteen hundred eighty-eight; provided, 41 further, that nothing contained in this article shall be construed to 42 limit, impair, or otherwise restrict any state agency's authority or 43 discretionary power in effect prior to the enactment of this article to 44 establish or continue, by rule, regulation or resolution, an equal 45 opportunity program or a program for securing participation of minority 46 [and women-owned], women and veteran-owned business enterprises with 47 regard to banking relationships, the issuance of insurance policies or 48 contracts for the sale of bonds, notes or other securities; and, 49 provided further, that nothing contained in the immediately preceding 50 proviso shall be construed to create, impair, alter, limit, modify, 51 enlarge, abrogate or restrict any agency's authority or discretionary 52 power with respect to an equal opportunity program or a program for 53 securing participation of minority [and women-owned], women and veter- 54 an-owned enterprises. 55 § 14. Section 4-a of the executive law, as added by chapter 175 of the 56 laws of 2010, is amended to read as follows:A. 3971 16 1 § 4-a. Chief diversity officer. A chief diversity officer for the 2 state shall be appointed by the governor and shall receive a salary to 3 be fixed by the governor within the amount appropriated therefor. The 4 chief diversity officer's responsibilities shall include the following: 5 1. Advise and assist the governor in formulating policies relating to 6 workforce diversity and minority [and], women's and veterans' business 7 enterprises; 8 2. Work with the director of the division of minority [and], women's 9 and veterans' business development to prepare an annual plan for ensur- 10 ing full compliance with article [fifteen-a of the executive law] 11 fifteen-A of this chapter by state agencies and the use of diversity 12 practices by such agencies; 13 3. Advise the governor and the agencies regarding any measures neces- 14 sary to ensure full compliance with article [fifteen-a] fifteen-A of 15 this chapter and use of diversity practices by state public authorities; 16 4. Serve as a member of the state procurement council established 17 under section one hundred sixty-one of the state finance law; 18 5. Serve as the governor's liaison with organizations representing 19 minority [and women-owned], women and veteran-owned business enterprises 20 and other organizations related to diversity in the state workforce and 21 in state contracting; 22 6. Serve as the governor's liaison to the small business advisory 23 council for issues related to the creation of a diverse workforce and 24 state procurement practices relating to minority [and women-owned], 25 women and veteran-owned business enterprises; 26 7. Review and consult with the director of minority [and], women's and 27 veterans' business development regarding policies relating to minority 28 [and women-owned], women and veteran-owned business enterprise contract 29 specialists at state agencies; and 30 8. Engage in other actions assigned to him or her by the governor 31 relating to diversity in hiring or promotion of the state workforce and 32 in encouraging diversity practices and compliance with article 33 [fifteen-a] fifteen-A of this chapter in procurement. 34 § 15. The article heading of article 4-A of the economic development 35 law, as added by chapter 55 of the laws of 1992, is amended to read as 36 follows: 37 DIVISION OF MINORITY [AND], WOMEN'S AND VETERANS' BUSINESS DEVELOPMENT 38 § 16. Section 115 of the economic development law, as added by chapter 39 55 of the laws of 1992, is amended to read as follows: 40 § 115. Definitions. As used in this article, the following terms shall 41 have the following meanings: 42 1. "Division" shall mean the division of minority [and], women's and 43 veterans' business development created by this article. 44 2. "Technical assistance" shall mean assistance and services designed 45 to improve the efficiency, effectiveness and viability of a minority [or46women-owned], women or veteran-owned business enterprise, including, but 47 not limited to, management assistance, problem solving, the development 48 of business and marketing plans, market analysis, financial planning, 49 regulatory compliance, safety and security measures, export assistance, 50 procurement assistance, application assistance, state program assist- 51 ance, referral to private and public financing sources, contracting 52 assistance, and other forms of assistance which the commissioner deems 53 necessary and appropriate. 54 § 17. Section 116 of the economic development law, as added by chapter 55 55 of the laws of 1992, is amended to read as follows:A. 3971 17 1 § 116. Office of minority [and], women's and veterans' business devel- 2 opment; transfer. All the functions and powers possessed by and all the 3 obligations and duties of the governor's office of minority [and], 4 women's and veterans' business development office, created and estab- 5 lished in the executive law [pursuant to and by chapter two hundred6sixty-one of the laws of nineteen hundred eighty-eight], are hereby 7 transferred and assigned to, assumed by and devolved upon the department 8 of economic development. 9 § 18. Section 117 of the economic development law, as added by chapter 10 55 of the laws of 1992, is amended to read as follows: 11 § 117. Division of minority [and], women's and veterans' business 12 development. There is hereby created within the department of economic 13 development a division of minority and [women-owned], women and veter- 14 an-owned business development. The director of such division shall be 15 appointed by the governor, shall report directly to the commissioner on 16 the activities of the division, and shall hold office at the pleasure of 17 the commissioner. The commissioner may appoint such officers, employees, 18 agents, consultants and special committees as he or she may deem neces- 19 sary to carry out the provisions of this article and prescribe their 20 duties. 21 § 19. Section 118 of the economic development law, as added by chapter 22 55 of the laws of 1992 and subdivision 7 as further amended by section 23 15 of part GG of chapter 63 of the laws of 2000, is amended to read as 24 follows: 25 § 118. Power and duties. In addition to the power and duties conferred 26 by section one hundred sixteen of this article, the division shall have 27 the additional power and duty to: 28 1. Coordinate with all state agencies performing functions affecting 29 the operations of minority [business enterprises, and women-owned], 30 women and veteran-owned business enterprises, and veteran-owned business 31 enterprises as such terms are defined in section two hundred ten of this 32 chapter; 33 2. Receive complaints and inquiries of operators of minority [and34women-owned], women and veteran-owned business enterprises and refer 35 them to the appropriate federal, state or local agency for appropriate 36 action on such complaints; 37 3. Solicit recommendations from the operators of minority [and women-38owned], women and veteran-owned business enterprises for improving 39 existing state programs and refer such recommendations to the governor, 40 the legislature and appropriate state agencies or authorities; 41 4. Advise and make recommendations to the commissioner and the legis- 42 lature on matters affecting the minority [and women-owned], women or 43 veteran-owned business enterprises of the state and promote and encour- 44 age the protection of the legitimate interests of minority [and women-45owned], women or veteran-owned business enterprises within the state; 46 5. Conduct investigations, research, studies and analyses of matters 47 affecting the interests of minority [and women-owned], women and veter- 48 an-owned business enterprises; 49 6. Study the implementation of the laws affecting minority [and50women-owned], women and veteran-owned business enterprises and recommend 51 to the commissioner new laws and amendments of laws for the benefit of 52 minority [and women-owned], women and veteran-owned business enter- 53 prises; and review pending legislation affecting minority [and women-54owned], women and veteran-owned business enterprises and report its 55 findings to the commissioner;A. 3971 18 1 7. Provide technical assistance and information to minority [and2women-owned], women and veteran-owned business enterprises in the state 3 on economic development programs administered by the department, includ- 4 ing, but not limited to: (a) the empire zones program, established 5 pursuant to article eighteen-B of the general municipal law, (b) the 6 industrial effectiveness program, established pursuant to article seven 7 of this chapter, (c) the economic development skills training program, 8 established pursuant to article eight of this chapter, and (d) the 9 entrepreneurial assistance program, established pursuant to article nine 10 of this chapter; 11 8. Provide technical assistance and information to minority [and12women-owned], women and veteran-owned business enterprises in the state 13 on economic development programs administered by agencies other than the 14 department, including, but not limited to programs administered by the 15 urban development corporation, the job development authority and the 16 science and technology foundation; 17 9. Be responsible for conducting minority [and women-owned], women and 18 veteran-owned business enterprise assistance programs and for coordinat- 19 ing the activities of all other state agencies acting within the scope 20 of this section; and 21 10. Carry out the activities to implement the minority [and women-22owned], women and veteran-owned business enterprise assistance programs, 23 to the extent practicable, within amounts appropriated therefor by; 24 (a) collecting and maintaining information identifying certified 25 minority [and women-owned], women and veteran-owned business enterprises 26 within New York state; 27 (b) collecting, maintaining, and providing information to potential 28 users identifying existing contracting and procurement opportunities 29 within and outside New York state; 30 (c) maintaining, providing and marketing a compilation of existing 31 programs providing assistance for minority [and women-owned], women and 32 veteran-owned business enterprises; 33 (d) identifying special needs and problems facing minority [and34women-owned], women and veteran-owned business enterprises within New 35 York state; 36 (e) contacting institutions, organizations and commercial enterprises 37 that are potential consumers of minority [and women-owned], women and 38 veteran-owned business products and services; urging their expanded 39 consumption of such goods and services; 40 (f) facilitating the establishment of minority [and women-owned], 41 women and veteran-owned business enterprises; and 42 (g) providing information concerning local and regional opportunities 43 for minority [and women-owned], women and veteran-owned business enter- 44 prises. 45 § 20. Subdivisions 1, 3 and 6 of section 120 of the economic develop- 46 ment law, subdivision 1 as amended by chapter 361 of the laws of 2009 47 and subdivisions 3 and 6 as added by chapter 55 of the laws of 1992, are 48 amended to read as follows: 49 1. There is hereby created in the division of minority [and], women's 50 and veterans' business development a minority [and women-owned], women 51 and veteran-owned business enterprise advisory board. The board shall 52 consist of twelve members to be appointed by the governor. The governor 53 shall designate a chairperson from the members of the advisory board, to 54 serve as such at the pleasure of the governor. In appointing the members 55 of the advisory board the governor shall ensure that six of the members 56 are individuals who are currently involved in the ownership and/or oper-A. 3971 19 1 ation of a minority [or women-owned], women or veteran-owned business 2 enterprise or who have extensive experience in minority [and women-3owned], women and veteran-owned business enterprise ownership and/or 4 operation, and that at least two of the members are individuals repres- 5 enting banking, community development financial, insurance or surety 6 bonding institutions. 7 3. The advisory board shall meet regularly at least one time in each 8 year. Special meetings may be called by its chairperson and shall be 9 called by the chairperson at the request of the director of the division 10 of minority [and], women's and veterans' business development. 11 6. The board shall have the power and duty to: 12 (a) advise the commissioner in carrying out the functions, powers and 13 duties of the division, as set forth in this article; 14 (b) advise the commissioner, the governor, and the legislature 15 concerning recommended legislation necessary to foster and promote the 16 prosperity, expansion and development of minority [and women-owned], 17 women and veteran-owned business enterprises within the state; 18 (c) advise the commissioner, the governor, and the legislature 19 concerning existing laws, rules, regulations and practices of state 20 agencies which are counter-productive or inimical to the prosperity, 21 expansion and development of minority [and women-owned], women and 22 veteran-owned business enterprises within the state; 23 (d) advise the commissioner, the governor, and the legislature 24 concerning the development of inter-governmental cooperation among agen- 25 cies of the federal, state and local governments and cooperation between 26 private industry and government so as to assure the optimum development 27 of minority [and women-owned], women and veteran-owned business enter- 28 prises; and 29 (e) serve as a catalyst for creating and maintaining a minority [and30women-owned], women and veteran-owned business enterprise consciousness 31 in New York state. 32 (f) establish procedures for making annual awards to be known as "New 33 York State Minority [and Women-Owned], Women and Veteran-Owned Business 34 Excelsior Awards". These non-monetary awards shall be given in recogni- 35 tion of unusual performance by persons, firms and organizations which 36 are engaged in the operation of a New York state minority [and women-37owned], women and veteran-owned business enterprise or which are engaged 38 in activities to assist minority [and women-owned], women and veteran- 39 owned business enterprises in the state. The board may nominate up to 40 five award winners annually and forward such names to the governor for 41 consideration. The governor may designate award winners from these nomi- 42 nees. Current members of the advisory board are not eligible as nomi- 43 nees. 44 § 21. Section 210 of the economic development law is amended by adding 45 a new subdivision 7 to read as follows: 46 7. "Veteran-owned business enterprise" shall mean any business enter- 47 prise which is at least fifty-one per centum owned by, or in the case of 48 a publicly owned business at least fifty-one per centum of the stock of 49 which is owned by, citizens or permanent resident aliens who are veter- 50 ans where such ownership interest is real, substantial and continuing 51 and where such persons have the authority to independently control the 52 day-to-day business decisions of the entity. 53 § 22. Paragraph (h) of subdivision 6 of section 133 of the economic 54 development law, as amended by chapter 491 of the laws of 2013, is 55 amended to read as follows:A. 3971 20 1 (h) advise the commissioner on recommendations for the selection of a 2 minority [and women-owned], women and veteran-owned business enterprise 3 statewide advocate as set forth by section three hundred eleven-a of the 4 executive law; and 5 § 23. Subdivision 1 of section 231 of the economic development law, as 6 amended by chapter 352 of the laws of 2009, is amended to read as 7 follows: 8 1. The department, through its regional offices, is authorized: (a) to 9 serve as a center for information regarding economic development 10 resources available from state, federal and local agencies; (b) to 11 provide outreach to businesses, with attention to small and medium-sized 12 businesses, including minority [and women-owned], women and veteran- 13 owned business enterprises, for financial and technical assistance 14 offered by state economic development agencies, authorities, or other 15 economic entities; (c) to serve as a regional center to accept applica- 16 tions for state economic development programs; (d) to coordinate the 17 economic development programs and activities of state agencies and 18 authorities within each region including, but not limited to, outreach 19 to businesses, technical assistance services, skills training assist- 20 ance, sharing of information, strategic economic development plans and 21 programs, to provide or arrange for assistance in compliance with feder- 22 al, state, and local rules, regulations, permits, and licenses, and 23 other measures to enhance regional economic development and eliminate 24 duplication of services; (e) to provide or arrange for assistance to 25 persons, firms, agencies, partnerships or corporations, either public or 26 private, in applying for assistance from state economic development 27 programs or for necessary licenses and permits or seeking to comply with 28 federal, state and local rules and regulations; (f) to review and 29 comment, within their knowledge and expertise, with respect to applica- 30 tions for state assistance in a timely manner and form prescribed by the 31 commissioner; (g) to distribute literature and marketing material 32 describing the facilities, advantages and attractions of the region for 33 business; (h) to provide economic development information, planning 34 services and technical assistance to counties and municipalities within 35 the region; (i) to provide information and assistance in the certif- 36 ication of minority [and women-owned], women and veteran-owned business 37 enterprises; (j) to provide or arrange for assistance to private sector 38 employers, whether operating for profit or not for profit, and to organ- 39 izations and associations of such employers in developing and implement- 40 ing innovative and flexible employee compensation, assistance and bene- 41 fit programs to enhance competitiveness and meet emerging demographic 42 and market conditions; and (k) to provide information and assistance to 43 small businesses on environmental compliance requirements of federal and 44 state law and pollution prevention opportunities in furtherance of poli- 45 cies and programs established in article twenty-eight of the environ- 46 mental conservation law and in coordination with the pollution 47 prevention and environmental compliance coordinating council established 48 in article twenty-eight of the environmental conservation law, including 49 programs operated by the department, the department of environmental 50 conservation or other state or local agencies from which technical 51 assistance, or loans, grants or other financial assistance for compli- 52 ance and pollution prevention may be obtained; and in providing such 53 information and assistance, to promote pollution prevention approaches. 54 § 24. Paragraph (i) of subdivision 3 of section 22-c of the state 55 finance law, as amended by section 1 of part O of chapter 59 of the laws 56 of 2009, is amended to read as follows:A. 3971 21 1 (i) An explanation of any actions proposed to be taken to achieve 2 increased opportunity for meaningful participation in the performance of 3 state contracts by minority [and women-owned], women and veteran-owned 4 business enterprises in accordance with article fifteen-A of the execu- 5 tive law, including a compliance report to be submitted by July first of 6 each year commencing with the two thousand five--two thousand six fiscal 7 year and for each subsequent year thereafter that includes: all the 8 items of information required in accordance with regulations promulgated 9 by the director of the division of minority [and], women's and veterans' 10 business development in the department of economic development under 11 article fifteen-A of the executive law; goals for participation by 12 certified minority [or women-owned], women or veteran-owned business 13 enterprises for such fiscal year; and a description of the types of 14 expenditures, projects or contracts. 15 § 25. Paragraphs c and d of subdivision 2 of section 5 of the state 16 finance law, as added by chapter 171 of the laws of 2010, are amended to 17 read as follows: 18 c. Within the discretion of the deferred compensation board and in 19 accordance with and subject to its fiduciary duty and obligations to the 20 deferred compensation plan for state employees and to the members and 21 beneficiaries of such plan and such other investment limitations as may 22 be prescribed by this chapter, the deferred compensation board is 23 authorized to establish an [MWBE] MWVBE asset management and financial 24 institution strategy including reasonable goals for utilization of 25 [MWBE] MWVBE asset managers, [MWBE] MWVBE financial institutions and 26 [MWBE] MWVBE professional service firms, which shall include, but shall 27 not be limited to, the following objectives: 28 (i) conducting procurement procedures in a manner that will assure the 29 inclusion of [MWBE] MWVBE asset managers in any request for proposal or 30 search process for asset management services undertaken in accordance 31 with the rules and regulations and of the board; 32 (ii) subject to best execution policies, developing a strategy to (1) 33 conduct trades of public equity securities with [MWBE] MWVBE financial 34 institutions and (2) conduct trades of fixed-income securities through 35 [MWBE] MWVBE financial institutions; 36 (iii) conducting procurement procedures in a manner that will assure 37 the inclusion of [MWBE] MWVBE financial institutions and other [MWBE] 38 MWVBE professional service firms in procurements for services that 39 include accounting, banking, financial advisory, insurance, legal, 40 research, valuation and other financial and professional services that 41 are undertaken in accordance with the rules and regulations of the 42 board; 43 (iv) cooperating with other fiduciary controlled entities and state 44 agencies and offices to identify [MWBE] MWVBE asset managers, [MWBE] 45 MWVBE financial institutions and [MWBE] MWVBE professional service 46 firms. 47 As used in this section, the terms "[MWBE] MWVBE asset manager", 48 "[MWBE] MWVBE financial institutions", "[MWBE] MWVBE", "fiduciary-cont- 49 rolled entities" and "best execution" shall have the meanings specified 50 in section one hundred seventy-six of the retirement and social security 51 law. 52 d. The board is also authorized to: 53 (i) periodically provide notice of the existence of such strategy so 54 that [MWBE] MWVBE asset managers, [MWBE] MWVBE financial institutions 55 and other [MWBE] MWVBE professional service firms are made aware of the 56 opportunities made available pursuant to this strategy;A. 3971 22 1 (ii) within sixty days of the end of each fiscal year following the 2 effective date of this paragraph, the board shall report to the gover- 3 nor, legislature and the chief diversity officer of the state of New 4 York on the participation of [MWBE] MWVBE asset managers, [MWBE] MWVBE 5 financial institutions and [MWBE] MWVBE professional service providers 6 in investment and brokerage transactions with or as providers of 7 services for the deferred compensation plans, including a comparative 8 analysis of such activity relative to such activity with all asset 9 managers, financial institutions and professional service providers for 10 the relevant period and on the progress and the success of the efforts 11 undertaken during such period to achieve the goals of such strategy. 12 Each report shall be simultaneously published on the website of the 13 deferred compensation plans for not less than sixty days following its 14 release to the governor and the other recipients named above; 15 (iii) work with the other fiduciary-controlled entities to create a 16 database of such [MWBE] MWVBE entities; and 17 (iv) periodically, but not less than annually, hold a conference to 18 promote such strategy in conjunction with the other fiduciary-controlled 19 entities. 20 § 26. Subdivisions 4, 6 and 7 of section 176 of the retirement and 21 social security law, as added by chapter 171 of the laws of 2010, are 22 amended to read as follows: 23 4. The term "[MWBE] MWVBE asset manager" shall mean an asset manager 24 in any of the following asset classes: public equity or fixed income 25 securities, hedge funds, fund of hedge funds, private equity (including 26 venture capital), fund of private equity funds, real estate investment 27 funds, fund of real estate funds, or any other asset class for which an 28 applicable fiduciary-controlled entity engages external asset managers 29 that is (a) a [MWBE] MWVBE; and (b) a registered investment advisor or 30 exempt from such registration and (c) certified pursuant to the 31 provisions of subdivision three of section four hundred twenty-three-c 32 of this chapter. 33 6. The term "[MWBE] MWVBE" for the purpose of engaging in business 34 with the fiduciary-controlled entities covered by this section, means a 35 business enterprise, including without limitation, a sole proprietor- 36 ship, partnership, limited partnership, limited liability partnership, 37 limited liability company, corporation or other similar entity whether 38 domestic or foreign, that is: 39 (a)(i) at least fifty-one percent owned by (A) one or more minority 40 group members, or (B) one or more women, or (C) one or more veterans in 41 each case, who have significant experience in asset management, broker- 42 age, other financial services or related professional services such as 43 accounting, valuation or legal services, or (ii) substantially owned 44 and/or operated by women, veterans or minority group members who have 45 significant experience in asset management, brokerage, other financial 46 services or related professional services such as accounting, valuation 47 or legal services; 48 (b) an enterprise in which such minority [or], women or veteran owner- 49 ship or operation is real, substantial and continuing; 50 (c) an enterprise in which such minority [or], women or veteran owner- 51 ship or operation has and exercises the authority to control independ- 52 ently the day-to-day business decisions of the enterprise; 53 (d) an enterprise authorized to do business in this state; and 54 (e) an enterprise certified by the state comptroller pursuant to 55 section four hundred twenty-three-c of this chapter.A. 3971 23 1 7. The term "[MWBE] MWVBE financial institution" shall mean (a) as it 2 relates to brokerage services, a registered broker dealer that is an 3 [MWBE] MWVBE certified pursuant to the provisions of subdivision three 4 of section four hundred twenty-three-c of this chapter and (b) as it 5 relates to any other financial services, an [MWBE] MWVBE certified 6 pursuant to the provisions of subdivision three of section four hundred 7 twenty-three-c of this chapter that provides banking, financial advi- 8 sory, insurance, financial research, valuation or other financial 9 services. 10 § 27. Section 423-c of the retirement and social security law, as 11 added by chapter 171 of the laws of 2010, is amended to read as follows: 12 § 423-c. [MWBE] MWVBE asset management and financial institution stra- 13 tegy. 1. Within the discretion of the state comptroller and in accord- 14 ance with and subject to his or her fiduciary duties and obligations as 15 trustee of the common retirement fund and to the members, retirees and 16 beneficiaries of such fund and such other investment limitations as may 17 be prescribed by this chapter, the comptroller is authorized to estab- 18 lish an [MWBE] MWVBE asset management and financial institution strategy 19 including reasonable goals for utilization of [MWBE] MWVBE asset manag- 20 ers, [MWBE] MWVBE financial institutions and [MWBE] MWVBE financial and 21 professional service firms, which strategy shall include, but shall not 22 be limited to, the following objectives: 23 (a) investing assets of the common retirement fund with [MWBE] MWVBE 24 asset managers; 25 (b) subject to best execution: (i) conducting trades of public equity 26 securities with [MWBE] MWVBE financial institutions; and (ii) conducting 27 trades of fixed-income securities through [MWBE] MWVBE financial insti- 28 tutions; 29 (c) allocating investments of assets of the common retirement fund 30 either through: (i) direct investments in the equities and debt securi- 31 ties of [MWBEs] MWVBEs; or (ii) indirectly through special programs 32 involving [MWBE] MWVBE asset managers; and 33 (d) awarding contracts for accounting, banking, financial advisory, 34 insurance, legal, research, valuation and other financial and profes- 35 sional services to [MWBE] MWVBE financial institutions and other [MWBE] 36 MWVBE professional service firms. 37 2. The comptroller is also authorized to: (a) periodically advertise 38 the existence of the strategy established in this section so that [MWBE] 39 MWVBE asset managers, [MWBE] MWVBE financial institutions and other 40 [MWBE] MWVBE professional service firms are made aware of the opportu- 41 nities made available pursuant to such strategy; 42 (b) within sixty days of the end of each fiscal year following the 43 effective date of this section, the state comptroller shall report to 44 the governor, legislature and the chief diversity officer of the state 45 of New York on the participation of [MWBE] MWVBE asset managers, [MWBE] 46 MWVBE financial institutions and [MWBE] MWVBE professional service 47 providers in investment and brokerage transactions with or as providers 48 of services for the common retirement fund, including a comparative 49 analysis of such activity relative to such activity with all asset 50 managers, financial institutions and professional service providers for 51 the relevant period and on the progress and success of the efforts 52 undertaken during such period to achieve the goals of such strategy. 53 Each report shall be simultaneously published on the website of the 54 common retirement fund for not less than sixty days following its 55 release to the governor and the other recipients named above;A. 3971 24 1 (c) work with the other fiduciary-controlled entities to create a 2 database of such [MWBE] MWVBE entities; and 3 (d) periodically, but not less than annually, hold a conference to 4 promote such strategy in conjunction with the other fiduciary-controlled 5 entities. 6 3. (a) The state comptroller shall establish and adopt a certification 7 process and guidelines for the sole purpose of identification and 8 reporting on [MWBE] MWVBE firms providing asset management, brokerage, 9 or other financial or professional services as such term is defined in 10 subdivision six of section one hundred seventy-six of this chapter. Such 11 certification shall differentiate and the comptroller shall maintain 12 separate categories for [MWBE] MWVBE asset managers meeting the criteria 13 of subparagraph (i) of paragraph (a) of subdivision six of section one 14 hundred seventy-six of this chapter and [MWBE] MWVBE asset managers 15 meeting the criteria of subparagraph (ii) of paragraph (a) of such 16 subdivision. 17 (b) Such certification process shall include, but need not be limited 18 to, a request for the following information relating to each managing 19 principal, principal, operating principal, chief financial officer, 20 operating vice-president, vice-president, partner, owner and employee 21 associated with a prospective [MWBE] MWVBE entity: 22 (i) title; 23 (ii) position; 24 (iii) ownership percentage; 25 (iv) ethnicity; 26 (v) gender; and 27 (vi) length of service. 28 § 28. Section 147 of the state finance law, as added by chapter 360 of 29 the laws of 2009, is amended to read as follows: 30 § 147. Mentor-protege program. 1. In every state agency, department 31 and authority which has let more than ten million dollars in service and 32 construction contracts in the prior fiscal year, the chief executive 33 officer of that agency, department or authority shall develop a mentor- 34 protege program to foster long-term relationships between approved 35 mentor firms, and small business concerns and minority [and36women-owned], women and veteran-owned businesses certified pursuant to 37 article fifteen-A of the executive law, in order to enhance the capabil- 38 ities of small and minority [and women-owned], women and veteran-owned 39 business concerns, improve their success in contracting with the state 40 or receiving subcontracts under a state contract, and to create sources 41 of reliable contractors and subcontractors ready to perform larger jobs 42 and responsibilities. Participation in the program shall be voluntary 43 for both the mentor firm and the protege firm. 44 2. The chief executive officer of each agency, department or authori- 45 ty, in consultation with the division of minority [and], women's and 46 veterans' business development and the division for small-business shall 47 develop requirements for: 48 (a) approval of contractors participating in the program established 49 pursuant to subdivision one of this section, to be known, for the 50 purposes of such program, as "mentor firms". Mentor firms must demon- 51 strate commitment and ability to assist protege firms, including favora- 52 ble financial health, good character, and experience in contracting with 53 the state. Once approved, a mentor firm must annually certify that it 54 continues to possess good character and a favorable financial position. 55 Incentives for mentor firms to participate in the program may include: 56 (i) where contracts are awarded by best value, additional evaluationA. 3971 25 1 points as specified in the request for proposal; and (ii) where protege 2 firms are certified minority [and women-owned], women and veteran-owned 3 businesses, credit towards fulfillment of minority [and women-owned], 4 women and veteran-owned business participation requirements, including 5 without limitation additional credit towards fulfillment of minority 6 [and women-owned], women and veteran-owned business subcontracting 7 participation goals based on costs incurred by a mentor firm in provid- 8 ing assistance to a certified minority [and women-owned], women and 9 veteran-owned business protege firm. 10 (b) approval for small and certified minority [and women-owned], women 11 and veteran-owned business concerns receiving assistance under the 12 program established pursuant to subdivision one of this section, to be 13 known, for the purposes of such program, as "protege firms". A protege 14 firm may have only one mentor at a time and may participate in the 15 mentor-protege program for a maximum of five years. 16 (c) a process by which each mentor firm, before providing assistance 17 to a protege firm under the program, shall enter into a mentor-protege 18 agreement regarding the assistance to be provided by the mentor firm, 19 for a period as determined by the chief executive officer of the agency, 20 department or authority. A mentor firm may provide a protege firm with 21 assistance and training in general business management; financial 22 management, engineering, safety and technical matters; bonding assist- 23 ance or bonding waivers; subcontracts; rent-free use of facilities 24 and/or equipment; joint venture arrangements; and any other assistance 25 as determined by the chief executive officer of the agency, department 26 or authority. Mentor-protege agreements shall be approved by the chief 27 executive officer of the agency, department or authority, and shall 28 provide that either party may terminate the agreement with thirty days 29 advance notice and notice to the chief executive officer. No determi- 30 nation of affiliation or control may be found between a protege firm and 31 its mentor firm based on the mentor-protege agreement or any assistance 32 provided pursuant to such agreement. 33 § 29. Subdivision 7 of section 2777 of the public authorities law, as 34 added by chapter 686 of the laws of 1993, is amended to read as follows: 35 7. It is hereby found and declared that it has been and remains the 36 policy of the state of New York to promote equal opportunity in employ- 37 ment for all persons, without discrimination on account of race, creed, 38 color, national origin, sex, age, disability or marital status, to 39 promote equality of economic opportunity for minority group members 40 [and], women and veterans, and business enterprises owned by them, and 41 to eradicate the effects of private and governmental discrimination 42 which has erected and continues to maintain barriers that unreasonably 43 impair access by minority [and women-owned], women and veteran-owned 44 business enterprises to state contract opportunities. 45 Recent reviews and analyses of contracting in New York, including the 46 study by the division of minority [and], women's and veterans' business 47 development of the department of economic development entitled "Opportu- 48 nity Denied! A Study of Racial and Sexual Discrimination Related to 49 Government Contracting in New York State," confirm through direct 50 evidence of racial and sexual discrimination in and by New York state 51 sufficient to justify race and sex conscious remedies. For the purpose 52 of furthering the state's compelling interest in eradicating the effects 53 of racial and sexual discrimination therefore, it is necessary and prop- 54 er that article fifteen-A of the executive law, concerning participation 55 by minority group members [and], women and veterans and business enter-A. 3971 26 1 prises owned by them, shall apply to the Albany county airport authori- 2 ty. 3 § 30. Subdivisions 3 and 6 of section 2879 of the public authorities 4 law, subdivision 3 as amended by chapter 564 of the laws of 1988, para- 5 graph (b) of subdivision 3 as amended by chapter 45 of the laws of 1994, 6 subparagraph (iv) of paragraph (b) of subdivision 3 as amended by chap- 7 ter 383 of the laws of 1994, paragraph (m) of subdivision 3 as added by 8 chapter 862 of the laws of 1990, paragraph (n) of subdivision 3 as 9 amended by chapter 531 of the laws of 1993, paragraphs (o) and (p) of 10 subdivision 3 as added by chapter 844 of the laws of 1992, subparagraph 11 (i) of paragraph (b) of subdivision 3 and subdivision 6 as amended, 12 paragraphs (f), (g), (h), (i) and (j) of subdivision 3 as added and 13 paragraphs (k), (l), (m), (n), (o) and (p) of subdivision 3 as relet- 14 tered by chapter 174 of the laws of 2010, are amended to read as 15 follows: 16 3. The guidelines approved by the corporation shall include, but not 17 be limited to the following: 18 (a) A description of the types of goods purchased, and for procurement 19 contracts for services, a description of those areas of responsibility 20 and oversight requiring the use of personal services and the reasons for 21 the use of personal services in such areas. 22 (b) Requirements regarding the selection of contractors, which shall 23 include provisions: 24 (i) for the selection of such contractors on a competitive basis, and 25 provisions relating to the circumstances under which the board may by 26 resolution waive competition, including, notwithstanding any other 27 provision of law requiring competition, the purchase of goods or 28 services from small business concerns or those certified as minority [or29women-owned], women or veteran-owned business enterprises, or goods or 30 technology that are recycled or remanufactured, in an amount not to 31 exceed two hundred thousand dollars without a formal competitive proc- 32 ess; 33 (ii) describing when the award of procurement contracts shall require 34 approval of the board by resolution, provided that any contract involv- 35 ing services to be rendered over a period in excess of one year shall 36 require the approval of the board by resolution and an annual review of 37 the contract by the board; 38 (iii) setting forth responsibilities of contractors; 39 (iv) as used in this subparagraph, the term "professional firm" shall 40 be defined as any individual or sole proprietorship, partnership, corpo- 41 ration, association, or other legal entity permitted by law to practice 42 the professions of architecture, engineering or surveying. 43 The corporation shall not refuse to negotiate with a professional firm 44 solely because the ratio of the "allowable indirect costs" to direct 45 labor costs of the professional firm or the hourly labor rate in any 46 labor category of the professional firm exceeds a limitation generally 47 set by the corporation in the determination of the reasonableness of the 48 estimated cost of services to be rendered by the professional firm, but 49 rather the corporation should also consider the reasonableness of cost 50 based on the total estimated cost of the service of the professional 51 firm which should include, among other things, all the direct labor 52 costs of the professional firm for such services plus all "allowable 53 indirect costs," other direct costs, and negotiated profit of the 54 professional firm. "Allowable indirect costs" of a professional firm are 55 defined as those costs generally associated with overhead which cannot 56 be specifically identified with a single project or contract and areA. 3971 27 1 considered reasonable and allowable under specific state contract or 2 allowability limits. 3 (c) An identification of those areas or types of contracts for which 4 minority [or women-owned], women or veteran-owned business enterprises 5 may best bid so as to promote and assist participation by such enter- 6 prises and facilitate a fair share of the awarding of contracts to such 7 enterprises. For the purposes of this section, a minority business 8 enterprise means any business enterprise, including a sole proprietor- 9 ship, partnership or corporation that is: 10 (i) at least fifty-one percent owned by one or more minority group 11 members or in the case of a publicly-owned business at least fifty-one 12 percent of the common stock or other voting interests of which is owned 13 by one or more minority group members; 14 (ii) an enterprise in which the minority ownership is real, substan- 15 tial and continuing; 16 (iii) an enterprise in which the minority ownership has and exercises 17 the authority to control independently the day-to-day business decisions 18 of the enterprise; and 19 (iv) an enterprise authorized to do business in New York state, inde- 20 pendently owned and operated, and not dominant in its field. 21 (d) For the purposes of this section, a minority group member means a 22 United States citizen or permanent resident alien who is and can demon- 23 strate membership in one of the following groups: 24 (i) Black persons having origins in any of the Black African racial 25 groups not of Hispanic origin; 26 (ii) Hispanic persons of Mexican, Puerto Rican, Dominican, Cuban, 27 Central or South American of either Indian or Hispanic origin, regard- 28 less of race; 29 (iii) Asian and Pacific Islander persons having origins in any of the 30 Far East, Southeast Asia, the Indian sub-continent or the Pacific 31 Islands; or 32 (iv) Native American persons having origins in any of the original 33 peoples of North America. 34 (e) For the purposes of this section, a women-owned business enter- 35 prise means a business enterprise, including a sole proprietorship, 36 partnership or corporation which is: 37 (i) at least fifty-one percent owned by one or more United States 38 citizens or permanent resident aliens who are women or in the case of a 39 publicly-owned business at least fifty-one percent of the common stock 40 or other voting interests of which is owned by United States citizens or 41 permanent resident aliens who are women; 42 (ii) an enterprise in which the ownership interest of women is real, 43 substantial and continuing; 44 (iii) an enterprise in which the women ownership has and exercises the 45 authority to control independently the day-to-day business decisions of 46 the enterprise; and 47 (iv) an enterprise authorized to do business in New York state, inde- 48 pendently owned and operated, and not dominant in its field. 49 (e-1) For the purposes of this section, a veteran-owned business 50 enterprise means a business enterprise, including a sole proprietorship, 51 partnership or corporation which is: 52 (i) at least fifty-one percent owned by one or more United States 53 citizens or permanent resident aliens who are veterans or in the case of 54 a publicly-owned business at least fifty-one percent of the common stock 55 or other voting interests of which is owned by United States citizens or 56 permanent resident aliens who are veterans;A. 3971 28 1 (ii) an enterprise in which the ownership interest of veterans is 2 real, substantial and continuing; 3 (iii) an enterprise in which the veteran ownership has and exercises 4 the authority to control independently the day-to-day business decisions 5 of the enterprise; and 6 (iv) an enterprise authorized to do business in New York state, inde- 7 pendently owned and operated, and not dominant in its field. 8 (f) Requirements for the designation of one or more senior staff of 9 the corporation to oversee the corporation's programs established to 10 promote and assist: (i) participation by certified minority [or women-11owned], women or veteran-owned business enterprises in the corporation's 12 procurement opportunities and facilitation of the award of procurement 13 contracts to such enterprises; (ii) the utilization of certified minori- 14 ty [and women-owned], women and veteran-owned business enterprises as 15 subcontractors and suppliers by entities having procurement contracts 16 with the corporation; and (iii) the utilization of partnerships, joint 17 ventures or other similar arrangements between certified minority [and18women-owned], women and veteran-owned business enterprises and other 19 entities having procurement contracts with the corporation. Such staff 20 shall be familiar with the procurement of the types of construction, 21 financial, legal or professional services utilized by the corporation, 22 report directly to the corporation's executive director, president or 23 chief executive officer and either directly or through their designees 24 participate in the procurement process. 25 (g) Requirements for providing notice, in addition to any other notice 26 of procurement opportunities required by law, to professional and other 27 organizations that serve minority [and women-owned], women and veteran- 28 owned business enterprises providing the types of services procured by 29 the corporation. 30 (h) Procedures for maintaining lists of qualified certified minority 31 [and women-owned], women and veteran-owned business enterprises, includ- 32 ing professional firms that have expressed an interest in doing business 33 with the corporation and ensuring that such lists are updated regularly. 34 The corporation shall also consult the lists of certified minority [and35women-owned], women and veteran-owned business enterprises maintained by 36 the department of economic development pursuant to article fifteen-A of 37 the executive law. 38 (i) The establishment of appropriate goals for participation by minor- 39 ity [or women-owned], women or veteran-owned business enterprises in 40 procurement contracts awarded by the corporation and for the utilization 41 of minority [and women-owned], women or veteran-owned enterprises as 42 subcontractors and suppliers by entities having procurement contracts 43 with the corporation. Statewide numerical participation target goals 44 shall be established by each authority based on the findings of the two 45 thousand ten disparity study and thereafter the two thousand eighteen 46 disparity study. 47 (j) Requirements to conduct procurements in a manner that will enable 48 the corporation to achieve the maximum feasible portion of the goals 49 established pursuant to paragraph (i) of this subdivision and that elim- 50 inates barriers to participation by minority [and women-owned], women 51 and veteran-owned business enterprises in the corporation's procure- 52 ments. Such procurement requirements shall include the following: 53 (A) Measures and procedures to ensure that certified businesses shall 54 be given the opportunity for maximum feasible participation in the 55 performance of state contracts and to assist in the corporation's iden- 56 tification of those state contracts for which certified businesses mayA. 3971 29 1 best bid to actively and affirmatively promote and assist their partic- 2 ipation in the performance of state contracts so as to facilitate the 3 corporation's achievement of the maximum feasible portion of the goals 4 for state contracts to such businesses; 5 (B) Provisions designating the division of minority [and women-owned], 6 women and veteran-owned business development to certify and decertify 7 minority [and women-owned], women and veteran-owned business enterprises 8 for all corporations through a single process that meets applicable 9 state and federal requirements; 10 (C) A requirement that each contract solicitation document accompany- 11 ing each solicitation set forth the expected degree of minority [and12women-owned], women and veteran-owned business enterprise participation 13 based, in part, on: 14 I. the potential subcontract opportunities available in the prime 15 procurement contract; and 16 II. the availability of certified minority [and women-owned], women 17 and veteran-owned business enterprises to respond competitively to the 18 potential subcontract opportunities; 19 (D) A requirement that each corporation provide a current list of 20 certified minority business enterprises to each prospective contractor; 21 (E) Provisions relating to joint ventures, under which a bidder may 22 count toward meeting its minority business enterprise participation 23 goal, the minority [and women-owned], women and veteran-owned business 24 enterprise portion of the joint venture; 25 (F) Provisions under which the corporation may waive obligations of 26 the contractor relating to minority [and women-owned], women and veter- 27 an-owned business enterprise participation after a showing of good faith 28 efforts to comply with the requirements of this act pursuant to the 29 waiver provisions contained in subdivision six of section three hundred 30 thirteen of the executive law; 31 (G) A requirement that the corporation verify that minority [and32women-owned], women and veteran-owned business enterprises listed in a 33 successful bid are actually participating to the extent listed in the 34 project for which the bid was submitted; 35 (H) In the implementation of this section, the contracting corporation 36 shall: 37 I. consider, where practicable, the severability of construction 38 projects and other bundled contracts; 39 II. implement a program that will enable the corporation to evaluate 40 each contract to determine the appropriateness of the goal pursuant to 41 paragraph (i) of this subdivision; 42 III. consider compliance with the requirements of any federal law 43 concerning opportunities for minority [and women-owned], women and 44 veteran-owned business enterprises which effectuates the purpose of this 45 section; and 46 IV. consult the most recent disparity study pursuant to article 47 fifteen-A of the executive law. 48 (k) A listing of the types of provisions to be contained in procure- 49 ment contracts, including provisions concerning the nature and monitor- 50 ing of the work to be performed, the use of corporate supplies and 51 facilities, the use of corporate personnel and any other provisions. 52 (l) Provisions regarding procurement contracts which involve former 53 officers or employees of the corporation. 54 (m) Procedures regarding procurement contracts which are exempt from 55 the publication requirements of article four-C of the economic develop- 56 ment law.A. 3971 30 1 (n) Policies to promote the participation by New York state business 2 enterprises and New York state residents in procurement contracts, 3 including, but not limited to: 4 (i) providing for the corporation to collect and to consult the spec- 5 ifications of New York state business enterprises in developing specifi- 6 cations for any procurement contract for the purchase of goods where 7 possible, practicable, feasible and consistent with open bidding, except 8 for procurement contracts for which the corporation would be expending 9 funds received from another state. The corporation shall, where feasi- 10 ble, make use of the stock item specification forms prepared by the 11 commissioner of general services, and where necessary, consult with the 12 commissioner of the office of general services, in developing such spec- 13 ifications and make such determinations; and 14 (ii) with the cooperation of the department of economic development 15 and through cooperative efforts with contractors, providing for the 16 notification of New York state business enterprises of opportunities to 17 participate as subcontractors and suppliers on procurement contracts let 18 by the corporation in an amount estimated to be equal to or greater than 19 one million dollars and promulgating procedures which will assure 20 compliance by contractors with such notification. Once awarded the 21 contract such contractors shall document their efforts to encourage the 22 participation of New York state business enterprises as suppliers and 23 subcontractors on procurement contracts equal to or greater than one 24 million dollars. Documented efforts by a successful contractor shall 25 consist of and be limited to showing that such contractor has (a) solic- 26 ited bids, in a timely and adequate manner, from New York state business 27 enterprises including certified minority [and women-owned], women and 28 veteran-owned business, or (b) contacted the New York state department 29 of economic development to obtain listings of New York state business 30 enterprises, or (c) placed notices for subcontractors and suppliers in 31 newspapers, journals and other trade publications distributed in New 32 York state, or (d) participated in bidder outreach conferences. If the 33 contractor determines that New York state business enterprises are not 34 available to participate on the contract as subcontractors or suppliers, 35 the contractor shall provide a statement indicating the method by which 36 such determination was made. If the contractor does not intend to use 37 subcontractors on the contract, the contractor shall provide a statement 38 verifying such intent; and 39 (iii) except for procurement contracts for which the corporation would 40 be expending funds received from another state, the corporation shall 41 include in all bid documents provided to potential bidders a statement 42 that information concerning the availability of New York state subcon- 43 tractors and suppliers is available from the New York state department 44 of economic development, which shall include the directory of certified 45 minority [and women-owned], women and veteran-owned businesses, and it 46 is the policy of New York state to encourage the use of New York state 47 subcontractors and suppliers, and to promote the participation of minor- 48 ity [and women-owned], women and veteran-owned businesses where possi- 49 ble, in the procurement of goods and services; and 50 (iv) with the cooperation of the community services division of the 51 department of labor and through cooperative efforts with contractors, 52 providing for the notification of New York state residents of employment 53 opportunities arising in New York state out of procurement contracts let 54 by the corporation in an amount estimated to be equal to or greater than 55 one million dollars; and promulgating procedures which will assure 56 compliance by contractors with such notification by requiring contrac-A. 3971 31 1 tors to submit post-award compliance reports documenting their efforts 2 to provide such notification through listing any such positions with the 3 community services division, or providing for such notification in such 4 manner as is consistent with existing collective bargaining contracts or 5 agreements; and 6 (v) including in each set of documents soliciting bids on procurement 7 contracts to let by the corporation a statement notifying potential 8 bidders located in foreign countries that the corporation may assign or 9 otherwise transfer offset credits created by such procurement contract 10 to third parties located in New York state; providing for the assignment 11 or other form of transfer of offset credits created by such procurement 12 contracts, directly or indirectly, to third parties located in New York 13 state, in accordance with the written directions of the commissioner of 14 economic development; and providing for the corporation to otherwise 15 cooperate with the department of economic development in efforts to get 16 foreign countries to recognize offset credits assigned or transferred to 17 third parties located in New York state created by such procurement 18 contracts; and 19 (vi) promulgating procedures which will assure compliance with the 20 federal equal employment opportunity act of 1972 (P.L. 92-261), as 21 amended, by contractors of the corporation. 22 (o) For the purposes of this section, a "New York state business 23 enterprise" means a business enterprise, including a sole proprietor- 24 ship, partnership, or corporation, which offers for sale or lease or 25 other form of exchange, goods which are sought by the corporation and 26 which are substantially manufactured, produced or assembled in New York 27 state, or services which are sought by the corporation and which are 28 substantially performed within New York state. 29 (p) For the purposes of this section, a "New York resident" means a 30 natural person who maintains a fixed, permanent and principal home 31 located within New York state and to which such person, whenever tempo- 32 rarily located, always intends to return. 33 6. Each corporation, as part of the guidelines established pursuant to 34 subdivision three of this section, shall establish policies regarding 35 the preparation of publicly available reports on procurement contracts 36 entered into by such corporation. Such policies shall provide, at the 37 minimum, for the preparation of a report no less frequently than annual- 38 ly, summarizing procurement activity by such corporation for the period 39 of the report, including a listing of all procurement contracts entered 40 into, all contracts entered into with New York state business enter- 41 prises and the subject matter and value thereof, all contracts entered 42 into with certified minority [or women-owned], women or veteran-owned 43 business enterprises and the subject matter and value thereof, all 44 referrals made and all penalties imposed pursuant to section three 45 hundred sixteen of the executive law, all contracts entered into with 46 foreign business enterprises, and the subject matter and value thereof, 47 the selection process used to select such contractors, all procurement 48 contracts which were exempt from the publication requirements of article 49 four-C of the economic development law, the basis for any such exemption 50 and the status of existing procurement contracts. 51 § 31. Section 6-129 of the administrative code of the city of New 52 York, as amended by local law number 1 of the city of New York for the 53 year 2013, paragraphs 14 and 15 of subdivision e as added by local law 54 number 113 of the city of New York for the year 2016, paragraph 1 of 55 subdivision g as amended by local law number 116 of the city of New York 56 for the year 2016, the opening paragraph of paragraph 1 of subdivision gA. 3971 32 1 as seperately amended, paragraphs 2 and 5 of subdivision g, subparagraph 2 (h) of paragraph 1 and paragraph 3 of subdivision 1 as amended by local 3 law number 118 of the city of New York for the year 2016, subparagraphs 4 (a) and (b) of paragraph 1 and paragraph 4 of subdivision l as amended 5 by local law number 117 of the city of New York for the year 2016, and 6 subdivision s as added by local law number 114 of the city of New York 7 for the year 2016, is amended to read as follows: 8 § 6-129. Participation by minority-owned [and], women-owned and veter- 9 an-owned business enterprises and emerging business enterprises in city 10 procurement. 11 a. Programs established. There are hereby established a program, to be 12 administered by the department of small business services in accordance 13 with the provisions of this section, designed to enhance participation 14 by minority-owned [and], women-owned and veteran-owned business enter- 15 prises in city procurement and a program, also to be administered by 16 such department in accordance with the provisions of this section, 17 designed to enhance participation by emerging business enterprises in 18 city procurement. 19 b. Policy. It is the policy of the city to seek to ensure fair partic- 20 ipation in city procurement; and in furtherance of such policy to fully 21 and vigorously enforce all laws prohibiting discrimination, and to 22 promote equal opportunity in city procurement by vigorously enforcing 23 the city's contractual rights and pursuing its contractual remedies. The 24 program established pursuant to this section is intended to address the 25 impact of discrimination on the city's procurement process, and to 26 promote the public interest in avoiding fraud and favoritism in the 27 procurement process, increasing competition for city business, and 28 lowering contract costs. 29 c. Definitions. For purposes of this section, the following terms 30 shall have the following meaning: 31 (1) "Agency" means a city, county, borough, or other office, position, 32 administration, department, division, bureau, board or commission, or a 33 corporation, institution or agency of government, the expenses of which 34 are paid in whole or in part from the city treasury. 35 (2) "Agency chief contracting officer" means the individual to whom an 36 agency head has delegated authority to organize and supervise the agen- 37 cy's procurement activity. 38 (3) "Availability rate" means the percentage of business enterprises 39 within an industry classification that are owned by minorities, women, 40 veterans or individuals who are socially and economically disadvantaged 41 willing and able to perform agency contracts. 42 (4) "Bidder" means any person submitting a bid or proposal in response 43 to a solicitation for such bid or proposal from an agency. 44 (5) "Bidders list" or "proposers list" means a list maintained by an 45 agency that includes persons from whom bids or proposals can be solicit- 46 ed. 47 (6) "City" means the city of New York. 48 (7) "City chief procurement officer" means the individual to whom the 49 mayor has delegated authority to coordinate and oversee the procurement 50 activity of mayoral agency staff, including the agency chief contracting 51 officers and any offices that have oversight responsibility for procure- 52 ment. 53 (8) "Commercially useful function" means a real and actual service 54 that is a distinct and verifiable element of the work called for in a 55 contract. In determining whether an MBE, WBE, VBE or EBE is performing aA. 3971 33 1 commercially useful function, factors including but not limited to the 2 following shall be considered: 3 (a) whether it has the skill and expertise to perform the work for 4 which it is being utilized, and possesses all necessary licenses; 5 (b) whether it is in the business of performing, managing or supervis- 6 ing the work for which it has been certified and is being utilized; and 7 (c) whether it purchases goods and/or services from another business 8 and whether its participation in the contract would have the principal 9 effect of allowing it to act as a middle person or broker in which case 10 it may not be considered to be performing a commercially useful function 11 for purposes of this section. 12 (9) "Commissioner" shall mean the commissioner of small business 13 services. 14 (10) "Construction" means construction, reconstruction, demolition, 15 excavation, renovation, alteration, improvement, rehabilitation, or 16 repair of any building, facility, physical structure of any kind. 17 (11) "Contract" means any agreement, purchase order or other instru- 18 ment whereby the city is committed to expend or does expend funds in 19 return for goods, professional services, standard services, or 20 construction. 21 (12) "Contractor" means a person who has been awarded a contract by a 22 city agency. 23 (13) "Direct subcontractor" means a person who has entered into an 24 agreement with a contractor to provide services or perform work that is 25 required pursuant to a contract with a city agency. 26 (14) "Director" means an individual designated by the mayor to perform 27 the oversight functions of the director described in this section, who 28 either reports directly to the mayor or is a commissioner. 29 (15) "Directory" means a list prepared by the division of firms certi- 30 fied pursuant to section 1304 of the charter. 31 (16) "Division" shall mean the division of economic and financial 32 opportunity within the department of small business services. 33 (17) "EBE" means an emerging business enterprise certified in accord- 34 ance with section 1304 of the charter. 35 (18) "Geographic market of the city" means the following counties: 36 Bronx, Kings, New York, Queens, Richmond, Nassau, Putnam, Rockland, 37 Suffolk and Westchester within the State of New York; and Bergen, 38 Hudson, and Passaic within the state of New Jersey. 39 (19) "Goal" means a numerical target. 40 (20) "Graduate MBE," "graduate WBE," "graduate VBE," or "graduate EBE" 41 means an MBE, WBE, VBE or EBE which shall have been awarded contracts by 42 one or more agencies within the past three years where the total city 43 funding from the expense and capital budgets for such contracts was 44 equal to or greater than fifty million dollars and whose size has 45 exceeded the size standards established for its industry by the United 46 States small business administration for three years. 47 (21) "Human services" means services provided to third parties, 48 including social services such as day care, foster care, home care, 49 homeless assistance, housing and shelter assistance, preventive 50 services, youth services, and senior centers; health or medical services 51 including those provided by health maintenance organizations; legal 52 services; employment assistance services, vocational and educational 53 programs; and recreation programs. 54 (22) "Indirect subcontractor" means a person who has entered into an 55 agreement with a direct subcontractor to provide services or performA. 3971 34 1 work that is required pursuant to the direct subcontractor's contract 2 with a contractor. 3 (23) "Industry classification" means one of the following classifica- 4 tions: 5 (a) construction; 6 (b) professional services; 7 (c) standard services; and 8 (d) goods. 9 (24) "Joint venture" means an association, of limited scope and dura- 10 tion, between two or more persons who have entered into an agreement to 11 perform and/or provide services required by a contract, in which each 12 such person contributes property, capital, effort, skill and/or know- 13 ledge, and in which each such person is entitled to share in the profits 14 and losses of the venture in reasonable proportion to the economic value 15 of its contribution. 16 (25) "MBE" means a minority-owned business enterprise certified in 17 accordance with section 1304 of the charter. 18 (26) "Minority group" means Black Americans; Asian Americans, and 19 Hispanic Americans, provided that the commissioner shall be authorized 20 to add additional groups to this definition upon a finding that there is 21 statistically significant disparity between the availability of firms 22 owned by individuals in such a group and the utilization of such firms 23 in city procurement. 24 (27) "Non-certified firm" means a business enterprise that has not 25 been certified as an MBE, WBE or EBE in accordance with section 1304 of 26 the charter or VBE. 27 (28) "Person" means any business, individual, partnership, corpo- 28 ration, firm, company, or other form of doing business. 29 (29) "Professional services" means services that require specialized 30 skills and the exercise of judgment, including but not limited to 31 accountants, lawyers, doctors, computer programmers and consultants, 32 architectural and engineering services, and construction management 33 services. 34 (30) "Qualified joint venture agreement" means a joint venture between 35 one or more MBEs, WBEs, VBEs, and/or EBEs and another person, in which 36 the percentage of profit or loss to which the certified firm or firms is 37 entitled or exposed for participation in the contract, as set forth in 38 the joint venture agreement, is at least 25% of the total profit or 39 loss. 40 (31) "Scope of work" means specific tasks required in a contract 41 and/or services or goods that must be provided to perform specific tasks 42 required in a contract. 43 (32) "Standard services" means services other than professional 44 services and human services. 45 (33) "Utilization rate" means the percentage of total contract expend- 46 itures expended on contracts or subcontracts with firms that are owned 47 by women, veterans, minorities, or individuals who are socially and 48 economically disadvantaged, respectively, in one or more industry clas- 49 sifications. 50 (34) "WBE" means a women-owned business enterprise certified in 51 accordance with section 1304 of the charter. 52 (35) "VBE" means a veteran-owned business enterprise. 53 d. Citywide goals. (1) The citywide contracting participation goals 54 for MBEs, WBEs, VBEs and EBEs, which may be met through awards of prime 55 contracts or subcontracts as described in subdivision j of this section, 56 shall be as follows:A. 3971 35 1 For construction contracts: 2 Category: Participation goal: 3 Black Americans 8% of total annual 4 agency expenditures on such contracts 5 Asian Americans 8% of total annual agency 6 expenditures on such contracts 7 Hispanic Americans 4% of total annual agency 8 expenditures on such contracts 9 Women 18% of total annual agency 10 expenditures on such contracts 11 Veterans a percentage to be determined 12 by the commissioner in accordance 13 with the provisions of paragraph 14 four of this subdivision 15 Emerging 6% of total annual agency expenditures 16 on such contracts 17 For professional services contracts: 18 Category: Participation goal: 19 Black Americans 12% of total annual agency 20 expenditures on such contracts 21 Hispanic Americans 8% of total annual agency 22 expenditures on such contracts 23 Women 37% of total annual agency 24 expenditures on such contracts 25 Veterans a percentage to be determined by the 26 commissioner in accordance with the 27 provisions of paragraph four of this 28 subdivision 29 expenditures on such contracts 30 Emerging 6% of total annual agency expenditures 31 on such contracts 32 For standard services contracts: 33 Category: Participation goal: 34 Black Americans 12% of total annual agency 35 expenditures on such contracts 36 Asian Americans 3% of total annual agency 37 expenditures on such contracts 38 Hispanic Americans 6% of total annual agency 39 expenditures on such contracts 40 Women 10% of total annual agency 41 expenditures on such contracts 42 Veterans a percentage to be determined by the 43 commissioner in accordance with the 44 provisions of paragraph four of this 45 subdivision 46 Emerging 6% of total annual agency expenditures 47 on such contracts 48 For goods contracts under one hundred thousand dollars: 49 Category: Participation goal: 50 Black Americans 7% of total annual agency 51 expenditures on such contracts 52 Asian Americans 8% of total annual agency 53 expenditures on such contracts 54 Hispanic Americans 5% of total annual agency 55 expenditures on such contracts 56 Women 25% of total annual agencyA. 3971 36 1 expenditures on such contracts 2 Veterans a percentage to be determined by the 3 commissioner in accordance with the 4 provisions of paragraph four of this 5 subdivision 6 Emerging 6% of total annual agency expenditures 7 on such contracts 8 (2) (a) The division and the city chief procurement officer shall 9 develop a citywide utilization plan for procurements of goods. 10 (b) Agencies shall develop agency utilization plans pursuant to subdi- 11 vision g of this section. The citywide goals shall not be summarily 12 adopted as goals for all annual agency utilization plans; rather, goals 13 for such plans may be set at levels higher, lower, or the same as the 14 citywide goals, subject to the approval of the commissioner as described 15 in paragraph three of subdivision g of this section. When setting its 16 goals, each agency shall consider the citywide goals, the size and 17 nature of its own procurement portfolio, and the availability of MBEs, 18 WBEs, VBEs and EBEs with the capacity to perform the specific types and 19 scale of work for which the agency anticipates it will solicit procure- 20 ments during the year. Agencies shall seek to ensure substantial 21 progress toward the attainment of each of these goals in as short a time 22 as practicable. 23 (3) The citywide goals shall not be summarily adopted as goals for 24 individual procurements; rather, as set forth in subdivision i of this 25 section, goals for such procurements may be set at levels higher, lower, 26 or the same as the citywide goals. In setting such goals, each agency 27 shall take into account the citywide goals and the agency's annual 28 utilization plan, the size and nature of the procurement, and the avail- 29 ability of MBEs, WBEs, VBEs and EBEs with the capacity to perform the 30 specific types and scale of work involved in its procurements. 31 (4) (a) No later than 2015, the commissioner, in consultation with the 32 city chief procurement officer, shall, for each industry classification 33 and each minority group, review and compare the availability rates of 34 firms owned by minorities [and], women and veterans to the utilization 35 rates of such firms in agency contracts and direct subcontracts, and 36 shall on the basis of such review and any other relevant information, 37 where appropriate, revise by rule the citywide participation goals set 38 forth in this subdivision and determine appropriate contracting percent- 39 age goals for veterans. In making such revision, the commissioner shall 40 consider the extent to which discrimination continues to have an impact 41 on the ability of minorities [and], women and veterans to compete for 42 city contracts and subcontracts. The commissioner shall submit the 43 results of such review and any proposed revisions to the participation 44 goals to the speaker of the council at least sixty days prior to 45 publishing a proposed rule that would revise participation goals. Such 46 review shall thereafter be conducted at least once every two years. 47 (b) No later than 2015, the commissioner shall review information 48 collected by the department to determine the availability and utiliza- 49 tion of EBEs, and shall on the basis of such review and any other rele- 50 vant information, where appropriate, revise by rule the citywide partic- 51 ipation goals set forth in this subdivision and include veterans in such 52 goals. Such revised goals shall be set at a level intended to assist in 53 overcoming the impact of discrimination on such businesses. Such review 54 shall be conducted in 2015 and at least once every two years thereafter. 55 e. Responsibilities of the division.A. 3971 37 1 (1) The division shall create and maintain and periodically update 2 directories by industry classification of MBEs, WBEs, VBEs and EBEs 3 which it shall supply to all agencies, post on its website and on other 4 relevant city websites and make available for dissemination and/or 5 public inspection at its offices and other locations within each 6 borough. 7 (2) The division shall make its resources available to assist agencies 8 and contractors in (i) determining the availability of MBEs, WBEs, VBEs 9 and EBEs to participate in their contracts as prime contractors and/or 10 subcontractors; and (ii) identifying opportunities appropriate for 11 participation by MBEs, WBEs, VBEs and EBEs in contracts. 12 (3) The division shall develop and maintain relationships with organ- 13 izations representing contractors, including MBEs, WBEs, VBEs and EBEs, 14 and solicit their support and assistance in efforts to increase partic- 15 ipation of MBEs, WBEs, VBEs and EBEs in city procurement. 16 (4) The division shall coordinate with city and state entities that 17 maintain databases of MBEs, WBEs, VBEs and EBEs and work to enhance city 18 availability data and directories. 19 (5) The division shall keep agency M/WBE and VBE officers informed of 20 conferences, contractor fairs, and other services that are available to 21 assist them in pursuing the objectives of this section. 22 (6) The division shall conduct, coordinate and facilitate technical 23 assistance and educational programs for MBEs, WBEs, VBEs and EBEs and 24 other contractors designed to enhance participation of MBEs, WBEs, VBEs 25 and EBEs in city procurement. The division shall further develop a 26 clearinghouse of information on programs and services available to MBEs, 27 WBEs, VBEs and EBEs. The division shall conduct meetings with MBEs, 28 WBEs, VBEs and EBEs to discuss what agencies look for in evaluating bids 29 and proposals. The division shall also educate prime contractors on 30 opportunities to partner or subcontract with certified MBEs, WBEs, VBEs 31 and EBEs. 32 (7) The division shall develop standardized forms and reporting docu- 33 ments for agencies and contractors to facilitate the reporting require- 34 ments of this section. 35 (8) The division shall direct and assist agencies in their efforts to 36 increase participation by MBEs, WBEs, VBEs and EBEs in any city-operated 37 financial, technical, and management assistance program. 38 (9) The division shall study and recommend to the commissioner methods 39 to streamline the M/WBE, VBE and EBE certification process. 40 (10) Each fiscal year the division, in consultation with the city 41 chief procurement officer, shall audit at least 5% of all open contracts 42 for which contractor utilization plans have been established in accord- 43 ance with subdivision i of this section and 5% of all contracts awarded 44 to MBEs, WBEs, VBEs, and EBEs to assess compliance with this section. 45 All solicitations for contracts for which contractor utilization plans 46 are to be established shall include notice of potential audit. 47 (11) The division shall assist agencies in identifying and seeking 48 ways to reduce or eliminate practices such as bonding requirements or 49 delays in payment by prime contractors that may present barriers to 50 competition by MBEs, WBEs, VBEs and EBEs. 51 (12) The division shall encourage prime contractors to enter joint 52 venture agreements with MBEs, WBEs, VBEs and EBEs. 53 (13) (a) The division shall, upon reviewing applications for certif- 54 ication and recertification, determine whether a firm qualifies as a 55 graduate MBE, WBE, VBE or EBE.A. 3971 38 1 (b) The division shall promulgate regulations establishing a process 2 by which a certified MBE, WBE, VBE or EBE may challenge a determination 3 that it qualifies as a graduate MBE, WBE, VBE or EBE. 4 (c) At any time more than two years after the division has determined 5 that a firm qualifies as a graduate MBE, WBE, VBE or EBE, the firm may 6 apply to have such designation lifted. The division shall lift the 7 designation if the firm demonstrates that it has been below the size 8 standards established by the United States small business administration 9 for its industry for a period of two years or more. 10 (14) The division, in consultation with the city chief procurement 11 officer, shall conduct, coordinate and facilitate mandatory trainings 12 for agency chief contracting officers and agency M/WBE and VBE officers 13 to assist such officers in pursuing the objectives of this section. Each 14 agency chief contracting officer shall undergo such training on or 15 before the ninetieth day after he or she becomes an agency chief 16 contracting officer, and every two years thereafter. Each agency M/WBE 17 and VBE officer shall undergo such training on or before the ninetieth 18 day after he or she becomes an agency M/WBE and VBE officer pursuant to 19 subdivision [(f)] f of this section, and every two years thereafter. 20 Agency chief contracting officers and M/WBE and VBE officers that have 21 already undergone such training within the two years prior to the effec- 22 tive date of the local law that added this paragraph will be determined 23 to be in compliance with the initial training required pursuant to this 24 paragraph. The city chief procurement officer will report to the speaker 25 of the council on an annual basis, and shall post on the City's website, 26 information regarding each agency's compliance with this paragraph. 27 (15) The city shall include on its website a list of city agencies, 28 with the contact information for the M/WBE and VBE officer of each city 29 agency and information about whether the agency's staff have been 30 trained as required by paragraph [14] fourteen of this subdivision. 31 f. Responsibilities of agency M/WBE and VBE officers. Each agency head 32 shall designate a deputy commissioner or other executive officer to act 33 as the agency M/WBE and VBE officer who shall be directly accountable to 34 the agency head concerning the activities of the agency in carrying out 35 its responsibilities pursuant to this section, including the responsi- 36 bilities relating to EBE participation. The duties of the M/WBE and VBE 37 officer shall include, but not be limited to: 38 (1) creating the agency's utilization plan in accordance with subdivi- 39 sion g of this section; 40 (2) acting as the agency's liaison with the division; 41 (3) acting as a liaison with organizations and/or associations of 42 MBEs, WBEs, VBEs and EBEs, informing such organizations and/or associ- 43 ations of the agency's procurement procedures, and advising them of 44 future procurement opportunities; 45 (4) ensuring that agency bid solicitations and requests for proposals 46 are sent to MBEs, WBEs, VBEs and EBEs in a timely manner, consistent 47 with this section and rules of the procurement policy board; 48 (5) referring MBEs, WBEs, VBEs and EBEs to technical assistance 49 services available from agencies and other organizations; 50 (6) reviewing requests for waivers and/or modifications of partic- 51 ipation goals and contractor utilization plans in accordance with para- 52 graphs 11 and/or 12 of subdivision i of this section; 53 (7) working with the division and city chief procurement officer in 54 creating directories as required pursuant to subdivision k of this 55 section. In fulfilling this duty, the agency M/WBE and VBE officer shall 56 track and record each contractor that is an MBE, WBE, VBE or EBE andA. 3971 39 1 each subcontractor hired pursuant to such officer's agency contracts 2 that is an MBE, WBE, VBE or EBE, and shall share such information with 3 the director, the commissioner, and the city chief procurement officer; 4 (8) for contracts for which contractor utilization plans have been 5 established pursuant to subdivision i of this section, monitoring each 6 contractor's compliance with its utilization plan by appropriate means, 7 which shall include, but need not be limited to, job site inspections, 8 contacting MBEs, WBEs, VBEs and EBEs identified in the plan to confirm 9 their participation, and auditing the contractor's books and records; 10 (9) monitoring the agency's procurement activities to ensure compli- 11 ance with its agency utilization plan and progress towards the partic- 12 ipation goals as established in such plan; 13 (10) providing to the city chief procurement officer information for 14 the reports required in subdivision l of this section and providing any 15 other plans and/or reports required pursuant to this section or 16 requested by the director and/or the city chief procurement officer; and 17 (11) participating in meetings required pursuant to subdivision m of 18 this section. 19 g. Agency utilization plans. 20 (1) Beginning May 15, 2006, and on July 31 of each year thereafter, 21 each agency which, during the fiscal year which ended on June 30 of the 22 preceding fiscal year, has made procurements in excess of five million 23 dollars, without counting procurements that are exempt pursuant to para- 24 graph two of subdivision q of this section, shall submit an agency 25 utilization plan for the fiscal year commencing in July of the year when 26 such plan is to be submitted to the commissioner. Upon approval by the 27 commissioner, such plan shall be submitted to the speaker of the coun- 28 cil, and shall be published on the City's website. Each such plan shall, 29 at a minimum, include the following: 30 (a) the agency's participation goals for MBEs, WBEs, VBEs and EBEs for 31 the year, provided however, that when setting its goals, each agency 32 shall consider the citywide goals, the size and nature of its own 33 procurement portfolio (excluding contracts described in paragraph two of 34 subdivision q of this section), and the availability of MBEs, WBEs, VBEs 35 and EBEs with the capacity to perform the specific types and scale of 36 work for which the agency anticipates it will solicit procurements 37 during the year; 38 (b) An explanation for any agency goal that is different than the 39 participation goal for the relevant group and industry classification as 40 determined pursuant to subdivision d of this section; 41 (c) A list of the names and titles of agency personnel responsible for 42 implementation of the agency utilization plan; 43 (d) Methods and relevant activities proposed for achieving the agen- 44 cy's participation goals; and 45 (e) Any other information which the agency or the commissioner deems 46 relevant or necessary. 47 (2) An agency utilization plan shall set forth specific participation 48 goals for MBEs, WBEs, VBEs and/or EBEs for purchases of professional 49 services, standard services, construction and goods. When setting its 50 goals for such purchases, in addition to the factors set forth in para- 51 graph (1) of this subdivision, each agency shall specifically consider 52 the potential for such purchases to provide opportunities for MBEs, 53 WBEs, VBEs and EBEs to develop greater capacity, thereby increasing 54 competition for city procurements. 55 (3) An agency utilization plan may be amended from time to time to 56 reflect changes in the agency's projected expenditures or other relevantA. 3971 40 1 circumstances and resulting changes in such agency's participation 2 goals. Such amendments shall be submitted to the commissioner, the city 3 chief procurement officer and the speaker of the council at least thirty 4 days prior to implementation. 5 (4) Prior to approving individual agency utilization plans, the 6 commissioner, in consultation with the city chief procurement officer, 7 shall consider whether such plans viewed in the aggregate establish any 8 goals exceeding the corresponding citywide goals set forth in subdivi- 9 sion d of this section. If any aggregated goals are found to exceed the 10 corresponding citywide goal, the commissioner shall require agencies to 11 adjust their goals so that plans, viewed in the aggregate, do not estab- 12 lish goals exceeding the citywide goals. Nothing in this paragraph shall 13 be construed to limit the awards of contracts and subcontracts that may 14 be made to MBEs, WBEs, VBEs and EBEs without using goals. 15 (5) The commissioner, in consultation with the city chief procurement 16 officer, shall, no later than June 30 of each year, publish on the divi- 17 sion's website a plan and schedule for each agency detailing the antic- 18 ipated contracting actions for the upcoming fiscal year that form the 19 basis for the agency utilization plan of each such agency. The plan and 20 schedule shall include information specific to each prospective invita- 21 tion for bids, request for proposal, or other solicitation, including, 22 but not limited to, the specific type and scale of the services and/or 23 goods to be procured, the term of the proposed contract, the method of 24 solicitation the agency intends to utilize, and the anticipated fiscal 25 year quarter of the planned solicitation. 26 h. Achieving agency participation goals. 27 (1) Each agency head shall be directly accountable for the goals set 28 forth in his or her agency's utilization plan. 29 (2) Each agency shall make all reasonable efforts to meet the partic- 30 ipation goals established in its agency utilization plan. Agencies 31 shall, at a minimum, use the following methods to achieve participation 32 goals: 33 (a) Agencies shall engage in outreach activities to encourage MBEs, 34 WBEs, VBEs and EBEs to compete for all facets of their procurement 35 activities, including contracts awarded by negotiated acquisition, emer- 36 gency and sole source contracts, and each agency shall seek to utilize 37 MBEs, WBEs, VBEs and/or EBEs for all types of goods, services and 38 construction they procure. 39 (b) Agencies shall encourage eligible businesses to apply for certif- 40 ication as MBEs, WBEs, VBEs and EBEs and inclusion in the directories of 41 MBEs, WBEs, VBEs and EBEs. Agencies shall also encourage MBEs, WBEs, 42 VBEs and EBEs to have their names included on their bidders lists, seek 43 pre-qualification where applicable, and compete for city business as 44 contractors and subcontractors. Agencies are encouraged to advertise 45 procurement opportunities in general circulation media, trade and 46 professional association publications and small business media, and 47 publications of minority [and], women's and veterans' business organiza- 48 tions, and send written notice of specific procurement opportunities to 49 minority [and], women's and veterans' business organizations. 50 (c) All agency solicitations for bids or proposals shall include 51 information referring potential bidders or proposers to the directories 52 of MBEs, WBEs, VBEs and EBEs prepared by the division. 53 (d) In planning procurements, agencies shall consider the effect of 54 the scope, specifications and size of a contract on opportunities for 55 participation by MBEs, WBEs, VBEs and EBEs.A. 3971 41 1 (e) Prior to soliciting bids or proposals for contracts valued at over 2 ten million dollars, other than contracts for capital projects valued at 3 over twenty-five million dollars and contracts that are exempt pursuant 4 to paragraph two of subdivision q of this section, an agency shall 5 submit the bid or proposal to the city chief procurement officer for a 6 determination whether it is practicable to divide the proposed contract 7 into smaller contracts and whether doing so will enhance competition for 8 such contracts among MBEs, WBEs, VBEs and EBEs and other potential 9 bidders or proposers. If the city chief procurement officer determines 10 that it is both practicable and advantageous in light of cost and other 11 relevant factors to divide such contracts into smaller contracts, then 12 he or she shall direct the agency to do so. 13 (f) Agencies shall examine their internal procurement policies, proce- 14 dures and practices and, where practicable, address those elements, if 15 any, that may negatively affect participation of MBEs, WBEs, VBEs and 16 EBEs in city procurement. 17 i. Participation goals for contracts for construction and professional 18 and standard services. 19 (1) Prior to issuing the solicitation of bids or proposals for indi- 20 vidual contracts, agencies shall establish participation goals for MBEs, 21 WBEs, VBEs and/or EBEs. Such goals may be greater than, less than or the 22 same as the relevant citywide goal or goals established pursuant to 23 subdivision d of this section. Taking into account the factors listed in 24 this subdivision, an agency may establish a goal for a procurement that 25 may be achieved by a combination of prime contract and subcontract 26 dollars, a combination of construction and services performed pursuant 27 to the contract, and/or a combination of MBEs, WBEs, VBEs and/or EBEs. 28 Alternatively, an agency may establish specific goals for particular 29 types of services, and/or goals for particular types of certified firms. 30 In determining the participation goals for a particular contract, an 31 agency shall consider the following factors: 32 (a) the scope of work; 33 (b) the availability of MBEs, WBEs, VBEs and EBEs able to perform the 34 particular tasks required in the contract; 35 (c) the extent to which the type and scale of work involved in the 36 contract present prime contracting and subcontracting opportunities for 37 amounts within the capacity of MBEs, WBEs, VBEs and EBEs; 38 (d) the agency's progress to date toward meeting its annual partic- 39 ipation goals through race-neutral, gender-neutral and other means, and 40 the agency's expectations as to the effect such methods will have on 41 participation of MBEs, WBEs, VBEs and EBEs in the agency's future 42 contracts; and 43 (e) any other factors the contracting agency deems relevant. 44 (2) A contracting agency shall not be required to establish partic- 45 ipation goals for 46 (i) procurements described in subdivision q of this section; or 47 (ii) when the agency has already attained the relevant goal in its 48 annual utilization plan, or expects that it will attain such goal with- 49 out the use of such participation goals. 50 (3) For each contract in which a contracting agency has established 51 participation goals, such agency shall state in the solicitation for 52 such contract that bidders and/or proposers shall be required to agree 53 as a material term of the contract that the contractor shall meet the 54 participation goals unless such goals are waived or modified by the 55 agency in accordance with this section. A contractor that is an MBE, 56 WBE, VBE or EBE shall be permitted to count its own participation towardA. 3971 42 1 fulfillment of the relevant participation goal, provided that the value 2 of such a contractor's participation shall be determined by subtracting 3 from the total value of the contract any amounts that the contractor 4 pays to direct subcontractors. A contractor that is a qualified joint 5 venture shall be permitted to count a percentage of its own partic- 6 ipation toward fulfillment of the relevant participation goal. The value 7 of such a contractor's participation shall be determined by subtracting 8 from the total value of the contract any amounts that the contractor 9 pays to direct subcontractors, and then multiplying the remainder by the 10 percentage to be applied to total profit to determine the amount to 11 which an MBE, WBE, VBE or EBE is entitled pursuant to the joint venture 12 agreement. Notwithstanding any provision of this paragraph to the 13 contrary, a contractor's achievement of participation goals shall be 14 determined as described in paragraph two of subdivision j of this 15 section. 16 (4) For each contract in which participation goals are established, 17 the agency shall include in its solicitation and/or bidding materials a 18 referral to the directories prepared by the division pursuant to this 19 section. 20 (5) For each contract for which participation goals are established, 21 the contractor shall be required to submit with its bid or proposal a 22 contractor utilization plan indicating: 23 (a) whether the contractor is an MBE, WBE, VBE, EBE, or a qualified 24 joint venture; 25 (b) the percentage of work it intends to award to direct subcontrac- 26 tors; and 27 (c) in cases where the contractor intends to award direct subcon- 28 tracts, a description of the type and dollar value of work designated 29 for participation by MBEs, WBEs, VBEs and/or EBEs, and the time frames 30 in which such work is scheduled to begin and end. 31 When the contractor utilization plan indicates that the bidder or 32 proposer does not intend to meet the participation goals, the bid or 33 proposal shall not be deemed responsive unless the agency has granted a 34 pre-award request for change pursuant to paragraph 11 of this subdivi- 35 sion. 36 (6) (a) For each contract for which a contractor utilization plan has 37 been submitted, the contracting agency shall require that within thirty 38 days of the issuance of notice to proceed, and at least once per year 39 thereafter, the contractor submit a list of persons to which it intends 40 to award subcontracts within the next twelve months. In the event that a 41 contracting agency disapproves a contractor's selection of a subcontrac- 42 tor or subcontractors, the contracting agency shall allow such contrac- 43 tor a reasonable time to propose alternate subcontractors. 44 (b) The contracting agency may also require the contractor to report 45 periodically about the contracts awarded by its direct subcontractors to 46 indirect subcontractors. 47 (7) For each contract for which a contractor utilization plan has been 48 submitted, the contractor shall, with each voucher for payment, and/or 49 periodically as the agency may require, submit statements, certified 50 under penalty of perjury, which shall include, but not be limited to, 51 the total amount the contractor paid to its direct subcontractors, and, 52 where applicable pursuant to subparagraph (1) of paragraph (1) of subdi- 53 vision j of this section, the total amount direct subcontractors paid to 54 indirect subcontractors, the names, addresses and contact numbers of 55 each MBE, WBE, VBE or EBE hired as a subcontractor by the contractor or 56 any of the contractor's direct subcontractors, as well as the dates andA. 3971 43 1 amounts paid to each MBE, WBE, VBE or EBE. The contractor shall also 2 submit, along with its voucher for final payment, the total amount it 3 paid to subcontractors, and, where applicable pursuant to subparagraph 4 (1) of paragraph (1) of subdivision j of this section, the total amount 5 its direct subcontractors paid directly to their indirect subcontrac- 6 tors; and a final list, certified under penalty of perjury, which shall 7 include the name, address and contact information of each subcontractor 8 that is an MBE, WBE, VBE or EBE, the work performed by, and the dates 9 and amounts paid to each. 10 (8) If payments made to, or work performed by, MBEs, WBEs, VBEs or 11 EBEs are less than the amount specified in the contractor's utilization 12 plan, the agency shall take appropriate action in accordance with subdi- 13 vision o of this section, unless the contractor has obtained a modifica- 14 tion of its utilization plan pursuant to paragraph 12 of this subdivi- 15 sion. 16 (9) When advertising a solicitation for bids or proposals for a 17 contract for which a participation goal has been established, agencies 18 shall include in the advertisement a general statement that the contract 19 will be subject to participation goals for MBEs, WBEs, VBEs and/or EBEs. 20 (10) In the event that a contractor with a contract that includes a 21 contractor utilization plan submits a request for a change order the 22 value of which exceeds the greater of ten percent of such contract or 23 $500,000, the agency shall review the scope of work for the contract, 24 and the scale and types of work involved in the change order, and deter- 25 mine whether the participation goals should be modified. 26 (11) Requests from bidders or proposers for changes in participation 27 goals. 28 (a) A bidder or proposer may request that an agency change the partic- 29 ipation goal or goals established for the procurement on the grounds 30 that goals are unreasonable in light of the availability of certified 31 firms to perform the services required, or by demonstrating that it has 32 legitimate business reasons for proposing a lower level of subcontract- 33 ing in its utilization plan. 34 (b) If the contracting agency determines that the participation goals 35 established for the procurement are unreasonable in light of the avail- 36 ability of certified firms to perform the services required, it shall 37 revise the solicitation and extend the deadline for bids and proposals. 38 (c) Subject to subparagraph (d) of this paragraph, the contracting 39 agency may grant a full or partial waiver of the participation goals to 40 a bidder or proposer who demonstrates that it has legitimate business 41 reasons for proposing the level of subcontracting in its utilization 42 plan. The contracting agency shall make its determination in light of 43 factors that shall include, but not be limited to, whether the bidder or 44 proposer has the capacity and the bona fide intention to perform the 45 contract without any subcontracting, or to perform the contract without 46 awarding the amount of subcontracts represented by the participation 47 goals. In making such determination, the agency may consider whether the 48 utilization plan is consistent with past subcontracting practices of the 49 bidder or proposer, whether the bidder or proposer has made efforts to 50 form a joint venture with a certified firm, and whether the bidder or 51 proposer has made good faith efforts to identify portions of the 52 contract that it intends to subcontract. The city chief contracting 53 officer shall notify the council of any such waiver granted with respect 54 to a registered contract in the quarterly report required pursuant to 55 subdivision 1 of this section.A. 3971 44 1 (d) The agency M/WBE and VBE officer shall provide written notice of 2 requests for a full or partial waiver of the participation goals to the 3 division and the city chief procurement officer and shall not approve 4 any such request without the approval of the city chief procurement 5 officer, provided that the city chief procurement officer, upon adequate 6 assurances of an agency's ability to administer its utilization plan in 7 accordance with the provisions of this section, may determine that 8 further approval from the city chief procurement officer is not required 9 with respect to such requests for an agency's contracts or particular 10 categories of an agency's contracts. The city chief procurement officer 11 shall notify the speaker of the council in writing in the quarterly 12 report required pursuant to subdivision 1 of this section following the 13 registration of a contract for which a request for a full or partial 14 waiver of a participation goal was granted, provided that where an agen- 15 cy has been authorized to grant waivers without approval of the chief 16 procurement officer, such notice shall be provided to the speaker of the 17 council by the agency. Such notification shall include, but not be 18 limited to, the name of the contractor, the original participation goal, 19 the waiver request, including all documentation, and an explanation for 20 the approval of such request. 21 (12) Modification of utilization plans at contractor's request or 22 agency's initiative. (a) A contractor may request modification of its 23 utilization plan after the award of a contract. Subject to subparagraph 24 (b) of this paragraph, an agency may grant such request if it determines 25 that such contractor has established, with appropriate documentary and 26 other evidence, that it made all reasonable, good faith efforts to meet 27 the goals set by the agency for the contract. In making such determi- 28 nation, the agency shall consider evidence of the following efforts, as 29 applicable, along with any other relevant factors: 30 (i) The contractor advertised opportunities to participate in the 31 contract, where appropriate, in general circulation media, trade and 32 professional association publications and small business media, and 33 publications of minority [and], women's and veterans' business organiza- 34 tions; 35 (ii) The contractor provided notice of specific opportunities to 36 participate in the contract, in a timely manner, to minority [and], 37 women's and veterans' business organizations; 38 (iii) The contractor sent written notices, by certified mail or 39 facsimile, in a timely manner, to advise MBEs, WBEs, VBEs or EBEs that 40 their interest in the contract was solicited; 41 (iv) The contractor made efforts to identify portions of the work that 42 could be substituted for portions originally designated for partic- 43 ipation by MBEs, WBEs, VBEs and/or EBEs in the contractor utilization 44 plan, and for which the contractor claims an inability to retain MBEs, 45 WBEs, VBEs or EBEs; 46 (v) The contractor held meetings with MBEs, WBEs, VBEs and/or EBEs 47 prior to the date their bids or proposals were due, for the purpose of 48 explaining in detail the scope and requirements of the work for which 49 their bids or proposals were solicited; 50 (vi) The contractor made efforts to negotiate with MBEs, WBEs, VBEs 51 and/or EBEs as relevant to perform specific subcontracts, or act as 52 suppliers or service providers; 53 (vii) Timely written requests for assistance made by the contractor to 54 the agency M/WBE and VBE liaison officer and to the division; and 55 (viii) Description of how recommendations made by the division and the 56 contracting agency were acted upon and an explanation of why action uponA. 3971 45 1 such recommendations did not lead to the desired level of participation 2 of MBEs, WBEs, VBEs and/or EBEs. 3 (b) The agency M/WBE and VBE officer shall provide written notice of 4 requests for such modifications to the division and the city chief 5 procurement officer and shall not approve any such request for modifica- 6 tion without the approval of the city chief procurement officer, 7 provided that the city chief procurement officer, upon adequate assur- 8 ances of an agency's ability to administer its utilization plan in 9 accordance with the provisions of this section, may determine that 10 further approval from the city chief procurement officer is not required 11 with respect to such requests for an agency's contracts or particular 12 categories of an agency's contracts. The city chief procurement officer, 13 shall notify the speaker of the council in writing within seven days of 14 the approval of a request for modification of a utilization plan, 15 provided that where an agency has been authorized to grant modifications 16 without approval of the chief procurement officer, such notice shall be 17 provided to the speaker of the council by the agency. Such notification 18 shall include, but not be limited to, the name of the contractor, the 19 original utilization plan, the modification request, including all 20 documentation, and an explanation for the approval of such request. 21 (c) An agency may modify the participation goals established for a 22 procurement when the scope of the work has been changed by the agency in 23 a manner that affects the scale and types of work that the contractor 24 indicated in its contractor utilization plan would be awarded to subcon- 25 tractors. 26 (d) The agency M/WBE and VBE officer shall provide written notice to 27 the contractor of its determination that shall include the reasons for 28 such determination. 29 (13) For each contract in which a contracting agency has established 30 participation goals, the agency shall evaluate and assess the contrac- 31 tor's performance in meeting each such goal. Such evaluation and assess- 32 ment shall be a part of the contractor's overall contract performance 33 evaluation required pursuant to section 333 of the charter. 34 j. Determining credit for MBE, WBE, VBE and EBE participation. 35 (1) An agency's achievement of its annual goals shall be calculated as 36 follows: 37 (a) The dollar amount that an agency has paid or is obligated to pay 38 to a prime contractor that is an MBE, WBE, VBE or EBE, reduced by the 39 dollar amount the contractor has paid or is obligated to pay its direct 40 subcontractors upon their completion of work, shall be credited toward 41 the relevant goal. Where an agency has paid or is obligated to pay a 42 prime contractor that is both an MBE and a WBE, such amount shall be 43 credited toward the relevant goal for MBEs or the goal for WBEs. Where 44 an agency has paid or is obligated to pay a prime contractor that is 45 both an MBE or WBE and a VBE, such amount shall be credited toward the 46 relevant goal for MBEs or WBEs, as applicable, or the goal for VBEs. 47 (b) Except as provided in subparagraph (c) of this paragraph, the 48 total dollar amount that a prime contractor of an agency has paid or is 49 obligated to pay to a direct subcontractor that is an MBE, WBE, VBE or 50 EBE shall be credited toward the relevant goal. Where such a contractor 51 has paid or is obligated to pay a direct subcontractor that is both an 52 MBE and a WBE, such amount shall be credited toward the relevant goal 53 for MBEs or the goal for WBEs. Where such a contractor has paid or is 54 obligated to pay a direct subcontractor that is both an MBE or WBE and a 55 VBE, such amount shall be credited toward the relevant goal for MBEs or 56 WBEs, as applicable, or the goal for VBEs.A. 3971 46 1 (c) In the case of contracts of the types identified pursuant to 2 subparagraph (l) of this paragraph, the total dollar amount that a prime 3 contractor of an agency has paid or is obligated to pay a direct subcon- 4 tractor that is an MBE, WBE, VBE or EBE, reduced by the dollar amount 5 the direct subcontractor has paid or is obligated to pay its indirect 6 subcontractors upon completion of work, shall be credited toward the 7 relevant goal. Where such a contractor has paid or is obligated to pay a 8 direct contractor that is both an MBE and a WBE, such amount shall be 9 credited toward the relevant goal for MBEs or the goal for WBEs. Where 10 such contractor has paid or is obligated to pay a direct contractor that 11 is both an MBE or WBE and a VBE, such amount shall be credited toward 12 the relevant goal for MBEs or WBEs, as applicable, or the goal for VBEs. 13 (d) In the case of contracts of the types identified pursuant to 14 subparagraph (1) of this paragraph, the total dollar amount that a 15 direct subcontractor of the prime contractor has paid or is obligated to 16 pay to an indirect subcontractor that is an MBE, WBE, VBE or EBE shall 17 be credited toward the relevant goal. Where such a contractor has paid 18 or is obligated to pay an indirect contractor that is both an MBE and a 19 WBE, such amount shall be credited toward the relevant goal for MBEs or 20 the goal for WBEs. Where such a contractor has paid or is obligated to 21 pay a direct contractor that is both an MBE or WBE and a VBE, such 22 amount shall be credited toward the relevant goal for MBEs or WBEs, as 23 applicable, or the goal for VBEs. 24 (e) For requirements contracts, credit shall be given for the actual 25 dollar amount paid under the contract. 26 (f) Where one or more MBEs, WBEs, VBEs or EBEs is participating in a 27 qualified joint venture, the amounts that the joint venture is required 28 to pay its direct subcontractors shall be subtracted as provided in 29 subparagraph (a) of this paragraph, and then a percentage of the remain- 30 ing dollar amount of the contract equal to the percentage of total 31 profit to which MBEs, WBEs, VBEs or EBEs are entitled pursuant to the 32 joint venture agreement shall be credited toward the relevant goal. 33 Where such a participant in a joint venture is both an MBE and a WBE, 34 such amount shall be credited toward the relevant goal for MBEs or the 35 goal for WBEs. Where such a contractor has paid or is obligated to pay 36 a direct contractor that is both an MBE or WBE and a VBE, such amount 37 shall be credited toward the relevant goal for MBEs or WBEs, as applica- 38 ble, or the goal for VBEs. 39 (g) No credit shall be given for participation in a contract by an 40 MBE, WBE, VBE or EBE that does not perform a commercially useful func- 41 tion. 42 (h) No credit shall be given for the participation in a contract by 43 any company that has not been certified as an MBE, WBE, VBE or EBE in 44 accordance with section 1304 of the charter. 45 (i) In the case of a contract for which the contractor is paid on a 46 commission basis, the dollar amount of the contract may be determined on 47 the basis of the commission earned or reasonably anticipated to be 48 earned under the contract. 49 (j) No credit shall be given to a contractor for participation in a 50 contract by a graduate MBE, WBE, VBE or EBE. 51 (k) The participation of a certified company shall not be credited 52 toward more than one participation goal. 53 (1) The city chief procurement officer may identify types of contracts 54 where payments to indirect subcontractors shall be credited toward the 55 relevant participation goals.A. 3971 47 1 (2) A contractor's achievement of its participation goals established 2 in its utilization plan shall be calculated as follows: 3 (a) A contractor's use of direct subcontractors and their indirect 4 subcontractors toward achievement of each goal established in its utili- 5 zation plan shall be calculated in the same manner as described for 6 calculating the achievement of agency utilization goals as described in 7 paragraph (1) of this subdivision, except that a contractor's use of a 8 subcontractor that is both an MBE and a WBE, or is an MBE or WBE and 9 also a VBE, shall not be credited toward the contractor's achievement of 10 more than one goal; 11 (b) A contractor that is an MBE, WBE, VBE or EBE shall be permitted to 12 count its own participation toward fulfillment of the relevant partic- 13 ipation goal, provided that the value of such a contractor's partic- 14 ipation shall be determined by subtracting from the total value of the 15 contract any amounts that the contractor pays to direct subcontractors, 16 and provided further that a contractor that is both an MBE and a WBE, or 17 is an MBE or WBE and also a VBE, shall not be credited for its partic- 18 ipation toward more than one goal; 19 (c) No credit shall be given to the contractor for the participation 20 of a company that is not certified in accordance with section 1304 of 21 the charter before the date that the subcontractor completes the work 22 under the subcontract. 23 (d) A contractor that is a qualified joint venture shall be permitted 24 to count a percentage of its own participation toward fulfillment of the 25 relevant participation goal. The value of such a contractor's partic- 26 ipation shall be determined by subtracting from the total value of the 27 contract any amounts that the contractor pays to direct subcontractors, 28 and then multiplying the remainder by the percentage to be applied to 29 total profit to determine the amount to which an MBE, WBE, VBE or EBE is 30 entitled pursuant to the joint venture agreement; provided that where 31 such a participant in a joint venture is both an MBE and a WBE, or is an 32 MBE or a WBE and also a VBE, such amount shall not be credited toward 33 more than one goal. 34 k. Small purchases. 35 Whenever an agency solicits bids or proposals for small purchases 36 pursuant to section three hundred fourteen of the charter, the agency 37 shall maintain records identifying the MBEs, WBEs, VBEs and EBEs it 38 solicited, which shall become part of the contract file. 39 l. Compliance reporting. 40 (1) The city chief procurement officer, in consultation with the divi- 41 sion, shall prepare and submit quarterly reports to the speaker of the 42 council as described in this section. Preliminary reports containing 43 information for the fiscal year in progress shall be submitted to the 44 speaker of the council by January first, April first, and July first of 45 each year, and a final report containing information for the preceding 46 fiscal year shall be submitted to the speaker of the council by October 47 first of each year. The reports, which shall also be posted on the divi- 48 sion's website, shall contain the following information, disaggregated 49 by agency: 50 (a) the number and total dollar value of contracts awarded, disaggre- 51 gated by industry classification, size of contract and status as MBE, 52 WBE, VBE, EBE, or non-certified firm, and further disaggregated by 53 minority and gender group, and the number and dollar value of such 54 contracts that were awarded to firms that are certified both as MBEs and 55 WBEs, or as an MBE or WBE and also a VBE, including but not limited to, 56 contracts valued at or below the micropurchase limit as set forth in theA. 3971 48 1 rules of the procurement policy board in paragraph (ii) of subdivision 2 (c) of section 3-08 of title 9 of the rules of the city of New York, 3 contracts valued above the micropurchase limit but at or below the small 4 purchase limit as defined in the rules of the procurement policy board 5 in subdivision (a) of section 3-08 of title 9 of the rules of the city 6 of New York, contracts valued above the small purchase limit and at or 7 below one million dollars, contracts valued above one million dollars 8 and at or below five million dollars, contracts valued above five 9 million dollars and at or below twenty five million dollars, and 10 contracts valued above twenty five million dollars; 11 (b) for those contracts for which an agency set participation goals in 12 accordance with subdivision i of this section: 13 (i) the number and total dollar value of such contracts that were 14 awarded to qualified joint ventures and the total dollar amount attri- 15 buted to the MBE, WBE, VBE or EBE joint venture partners, disaggregated 16 by minority and gender group, size of contract and industry classifica- 17 tion, and the number and dollar value of such contracts that were 18 awarded to firms that are certified both as MBEs and WBEs, or as an MBE 19 or WBE and also a VBE; 20 (ii) The number and total dollar value of subcontracts approved during 21 the reporting period that were entered into pursuant to contracts for 22 which participation requirements under this section have been estab- 23 lished (including both contracts awarded during the current reporting 24 period and those awarded in earlier reporting periods that remain open 25 during the current reporting period), and the number and total dollar 26 amount of such subcontracts awarded to MBEs, WBEs, VBEs and EBEs, disag- 27 gregated by minority and gender group, size of subcontract and industry 28 classification, and the number and dollar value of such subcontracts 29 that were awarded to firms that are certified both as MBEs and WBEs, or 30 as an MBE or WBE and also a VBE; 31 (iii) a list of the requests for full or partial waivers of partic- 32 ipation requirements for such contracts made pursuant to paragraph 11 of 33 subdivision i of this section and the determinations made with respect 34 to such requests, and the number and dollar amount of those contracts 35 for which such waivers were granted, disaggregated by industry classi- 36 fication; and 37 (iv) a list of the requests for modification of participation require- 38 ments for such contracts made pursuant to paragraph 12 of subdivision i 39 of this section and the determinations made with respect to such 40 requests, and the number and dollar amount of those contracts for which 41 such modifications were granted, disaggregated by industry classifica- 42 tion; 43 (c) a detailed list of each complaint received pursuant to paragraph 1 44 of subdivision o of this section which shall, at a minimum, include the 45 nature of each complaint and the action taken in investigating and 46 addressing such complaint including whether and in what manner the 47 enforcement provisions of subdivision o of this section were invoked and 48 the remedies applied; 49 (d) a detailed list of all non-compliance findings made pursuant to 50 paragraph 4 of subdivision o of this section and actions taken in 51 response to such findings; 52 (e) the number of firms certified or recertified in accordance with 53 section 1304 of the charter during the six months immediately preceding 54 such report;A. 3971 49 1 (f) the number and percentage of contracts audited pursuant to 2 [section] paragraph 10 of subdivision e of this section and a summary of 3 the results of each audit. 4 (g) a summary of efforts to reduce or eliminate barriers to competi- 5 tion as required pursuant to paragraph 11 of subdivision e of this 6 section; 7 (h) a list of all solicitations submitted to the city chief procure- 8 ment officer pursuant to subparagraph e of paragraph 2 of subdivision h 9 of this section, and a detailed explanation of the determination made 10 regarding each such submission; and 11 (i) any other information as may be required by the director and/or 12 the commissioner. 13 (2) The annual reports submitted in October shall, in addition, 14 contain a determination made by the director and the commissioner, as to 15 whether each agency has made substantial progress toward achieving its 16 utilization goals and whether the city has made substantial progress 17 toward achieving the citywide goals established pursuant to subdivision 18 d of this section. 19 (3) If an agency that has submitted an agency utilization plan pursu- 20 ant to subdivision g of this section fails to achieve its utilization 21 goal, the agency head shall prepare and submit to the director, the 22 commissioner, the city chief procurement officer, and the speaker of the 23 council by January 31 a performance improvement plan which shall 24 describe in detail the efforts such agency intends to undertake to 25 increase M/WBE and VBE participation. 26 (4) The data that provide the basis for the reports required by this 27 subdivision shall be made available electronically to the council in a 28 non-proprietary format that permits automated processing at the time the 29 reports are submitted. 30 m. Agency compliance. 31 (1) Each agency shall submit to the commissioner and the city chief 32 procurement officer such information as is necessary for the city chief 33 procurement officer to complete his or her reports as required in subdi- 34 vision l of this section. The director, the commissioner, and the city 35 chief procurement officer shall review each agency's submissions. The 36 director shall convene the agency M/WBE and VBE officers for those agen- 37 cies that have submitted utilization plans pursuant to subdivision g of 38 this section as often as the director deems necessary, but no less 39 frequently than once per quarter, in order to have agency M/WBE and VBE 40 officers (i) discuss the results of the reports required in subdivision 41 1 of this section; (ii) offer detailed information concerning their 42 effectuation of their performance improvement plans and any additional 43 efforts undertaken to meet goals established in agency utilization 44 plans; (iii) share the practices that have yielded successes in increas- 45 ing M/WBE and VBE participation; and (iv) devise strategic plans to 46 improve the performance of those failing to meet goals established in 47 agency utilization plans. No less frequently than twice per year, agency 48 heads for those agencies that have submitted utilization plans pursuant 49 to subdivision g of this section shall join such quarterly meetings. 50 Whenever it has been determined that an agency is not making adequate 51 progress toward the goals established in its agency utilization plan, 52 the director, the commissioner, and the city chief procurement officer 53 shall act to improve such agency's performance, and may take any of the 54 following actions: 55 (a) require the agency to submit more frequent reports about its 56 procurement activity;A. 3971 50 1 (b) require the agency to notify the director, the commissioner, and 2 the city chief procurement officer, prior to solicitation of bids or 3 proposals for, and/or prior to award of, contracts in any category where 4 the agency has not made adequate progress toward achieving its utiliza- 5 tion goals; 6 (c) reduce or rescind contract processing authority delegated by the 7 mayor pursuant to sections 317 and 318 of the charter; and 8 (d) any other action the director, the commissioner, and the city 9 chief procurement officer deem appropriate. 10 (2) Noncompliance. Whenever the director, the city chief procurement 11 officer, or the commissioner finds that an agency has failed to comply 12 with its duties under this section, he or she shall attempt to resolve 13 such noncompliance informally with the agency head. In the event that 14 the agency fails to remedy its noncompliance after such informal 15 efforts, the director and the city chief procurement officer shall 16 submit such findings in writing to the mayor and the speaker of the 17 council, and the mayor shall take appropriate measures to ensure compli- 18 ance. 19 (3) Failure by an agency to submit information required by the direc- 20 tor, the division, or the city chief procurement officer, in accordance 21 with this section, including but not limited to the utilization plan 22 required pursuant to subdivision g of this section, shall be deemed 23 noncompliance. 24 n. Pre-qualification. An agency establishing a list of pre-qualified 25 bidders or proposers may deny pre-qualification to prospective contrac- 26 tors who fail to demonstrate in their application for pre-qualification 27 that they have complied with applicable federal, state and local 28 requirements for participation of MBEs, WBEs, VBEs and EBEs in procure- 29 ments. A denial of pre-qualification may be appealed pursuant to appli- 30 cable procurement policy board rules. 31 o. Enforcement. 32 (1) Any person who believes that a violation of the requirements of 33 this section, rules promulgated pursuant to its provisions, or any 34 provision of a contract that implements this section or such rules, 35 including, but not limited to, any contractor utilization plan, has 36 occurred may submit a complaint in writing to the division, the city 37 chief procurement officer and the comptroller. The division shall 38 promptly investigate such complaint and determine whether there has been 39 a violation. 40 (2) Any complaint alleging fraud, corruption or other criminal behav- 41 ior on, the part of a bidder, proposer, contractor, subcontractor or 42 supplier shall be referred to the commissioner of the department of 43 investigation. 44 (3) Contract award. 45 (a) When an agency receives a protest from a bidder or proposer 46 regarding a contracting action that is related to this section, the 47 agency shall send copies of the protest and any appeal thereof, and any 48 decisions made on the protest or such appeal, to the division and the 49 comptroller. 50 (b) Whenever a contracting agency has determined that a bidder or 51 proposer has violated this section, or rules promulgated pursuant to its 52 provisions, the agency may disqualify such bidder or proposer from 53 competing for such contract and the agency may revoke such bidder's or 54 proposer's prequalification status. 55 (4) Contract administration.A. 3971 51 1 (a) For each contract for which participation requirements have been 2 established under this section, at least once annually during the term 3 of such contract, the contracting agency shall review the contractor's 4 progress toward attainment of its utilization plan, including but not 5 limited to, by reviewing the percentage of work the contractor has actu- 6 ally awarded to MBE, WBE, VBE and/or EBE subcontractors and the payments 7 the contractor has made to such subcontractors. 8 (b) Whenever an agency believes that a contractor or a subcontractor 9 is not in compliance with this section, rules promulgated pursuant to 10 its provisions or any provision of a contract that implements this 11 section, including, but not limited to any contractor utilization plan, 12 the agency shall send a written notice to the city chief procurement 13 officer, the division and the contractor describing the alleged noncom- 14 pliance and offering the contractor an opportunity to be heard. The 15 agency shall then conduct an investigation to determine whether such 16 contractor or subcontractor is in compliance. 17 (c) In the event that a contractor has been found to have violated 18 this section, rules promulgated pursuant to its provisions, or any 19 provision of a contract that implements this section, including, but not 20 limited to any contractor utilization plan, the contracting agency 21 shall, after consulting with the city chief procurement officer and the 22 division, determine whether any of the following actions should be 23 taken: 24 (i) enter an agreement with the contractor allowing the contractor to 25 cure the violation; 26 (ii) revoke the contractor's pre-qualification to bid or make 27 proposals for future contracts; 28 (iii) make a finding that the contractor is in default of the 29 contract; 30 (iv) terminate the contract; 31 (v) declare the contractor to be in breach of contract; 32 (vi) withhold payment or reimbursement; 33 (vii) determine not to renew the contract; 34 (viii) assess actual and consequential damages; 35 (ix) assess liquidated damages or reduction of fees, provided that 36 liquidated damages may be based on amounts representing costs of delays 37 in carrying out the purposes of the program established by this section, 38 or in meeting the purposes of the contract, the costs of meeting utili- 39 zation goals through additional procurements, the administrative costs 40 of investigation and enforcement, or other factors set forth in the 41 contract; 42 (x) exercise rights under the contract to procure goods, services or 43 construction from another contractor and charge the cost of such 44 contract to the contractor that has been found to be in noncompliance; 45 or 46 (xi) take any other appropriate remedy. 47 (5) To the extent available pursuant to rules of the procurement poli- 48 cy board, a contractor may seek resolution of a dispute regarding a 49 contract related to this section. The contracting agency shall submit a 50 copy of such submission to the division. 51 (6) Whenever an agency has reason to believe that an MBE, WBE, VBE or 52 EBE is not qualified for certification, or is participating in a 53 contract in a manner that does not serve a commercially useful function, 54 or has violated any provision of this section, the agency shall notify 55 the commissioner who shall determine whether the certification of such 56 business enterprise should be revoked.A. 3971 52 1 (7) Statements made in any instrument submitted to an agency pursuant 2 to these rules shall be submitted under penalty of perjury and any false 3 or misleading statement or omission shall be grounds for the application 4 of any applicable criminal and/or civil penalties for perjury. The 5 making of a false or fraudulent statement by an MBE, WBE, VBE or EBE in 6 any instrument submitted pursuant to these rules shall, in addition, be 7 grounds for revocation of its certification. 8 (8) A contractor's record in implementing its contractor utilization 9 plan shall be a factor in the evaluation of its performance. Whenever a 10 contracting agency determines that a contractor's compliance with a 11 contractor utilization plan has been unsatisfactory, the agency shall, 12 after consultation with the city chief procurement officer, file an 13 advice of caution form for inclusion in VENDEX as caution data. 14 p. Procurements by elected officials and the council. 15 (1) In the case of procurements by independently elected city offi- 16 cials other than the mayor, where these rules provide for any action to 17 be taken by the director or the city chief procurement officer, such 18 action shall instead be taken by such elected officials. 19 (2) In the case of procurements by the council, where these rules 20 provide for any action to be taken by the director or the city chief 21 procurement officer, such action shall instead be taken by the speaker 22 of the council. 23 q. Applicability. Agencies shall not be required to apply partic- 24 ipation requirements to the following types of contracts: 25 (1) those subject to federal or state funding requirements which 26 preclude the city from imposing the requirements of this subdivision; 27 (2) those subject to federal or state law participation requirements 28 for MBEs, WBEs, disadvantaged business enterprises, VBEs, and/or EBEs; 29 (3) contracts between agencies; 30 (4) procurements made through the United States general services 31 administration or another federal agency, or through the New York state 32 office of general services or another state agency, or any other govern- 33 mental agency. 34 (5) emergency procurements pursuant to section three hundred fifteen 35 of the charter; 36 (6) sole source procurements pursuant to section three hundred twen- 37 ty-one of the charter; 38 (7) contracts for human services; and 39 (8) contracts awarded to not-for-profit organizations. 40 r. Comptroller. The comptroller shall randomly examine contracts for 41 which contractor utilization plans are established to assess compliance 42 with such plans. All solicitations for contracts for which contractor 43 utilization plans are to be established shall include notice of poten- 44 tial comptroller examinations. 45 s. Advisory board. There shall be an advisory board to enhance 46 procurement opportunities for minority [and women-owned businesses], 47 woman and veteran-owned businesses. 48 (1) Such board shall consist of a chair appointed by the mayor and no 49 fewer than ten members, all of whom shall be appointed by the mayor and 50 shall serve at the pleasure of the mayor. 51 (2) Such board shall: 52 (a) Advise the mayor on M/WBE and VBE issues and on methods to 53 increase M/WBE and VBE participation in city procurement; 54 (b) Provide information to firms owned by women and minority group 55 members about programs and opportunities for M/WBEs and VBEs in order toA. 3971 53 1 increase participation by such firms in city contracting, and encourage 2 them to become certified as M/WBEs and VBEs; and 3 (c) Educate relevant stakeholders and constituencies in order to 4 support the city's efforts to increase M/WBE and VBE opportunities 5 through regulatory and legislative measures. 6 (3) The chair of the board may direct the board to gather or dissem- 7 inate information and convene meetings in order to improve information 8 sharing about M/WBE and VBE issues and opportunities and to develop and 9 provide advice. 10 § 32. Paragraphs (a), (b) and (c) of subdivision 12 of section 3.07 of 11 the arts and cultural affairs law, as amended by chapter 255 of the laws 12 of 1988, are amended to read as follows: 13 (a) All contracts for design, construction, services and materials 14 pursuant to this section of whatever nature and all documents soliciting 15 bids or proposals therefor shall contain or make reference to the 16 following provisions: 17 (i) That the contractor will not discriminate against employees or 18 applicants for employment because of race, creed, color, national 19 origin, sex, age, disability, or marital status, and will undertake or 20 continue existing programs of affirmative action to ensure that minority 21 group persons [and], women and veterans are afforded equal opportunity 22 without discrimination. Such programs shall include, but not be limited 23 to, recruitment, employment, job assignment, promotion, upgrading, 24 demotion, transfer, layoff, termination, rates of pay or other forms of 25 compensation, and selection for training and retraining, including 26 apprenticeship and on-the-job training; 27 (ii) That the contractor shall request any employment agency, labor 28 union, or authorized representative of workers with which it has a 29 collective bargaining or other agreement or understanding and which is 30 involved in the performance of the contract to furnish a written state- 31 ment that it will not discriminate because of race, creed, color, 32 national origin, sex, age, disability or marital status and it will 33 cooperate in the implementation of the contractor's obligations here- 34 under; 35 (iii) That the contractor will state, in any solicitations or adver- 36 tisements for employees placed by or on behalf of the contractor in the 37 performance of the contract, that all qualified applicants will be 38 afforded equal employment opportunity without discrimination because of 39 race, creed, color, national origin, sex, age, disability or marital 40 status; 41 (iv) That the contractor will include the provisions of subparagraphs 42 (i) through (iii) of this paragraph in every subcontract or purchase 43 order in such a manner that such provisions will be binding upon each 44 subcontractor or vendor as to its work in connection with the contract 45 with the agency. 46 (b) The council shall establish appropriate measures, procedures and 47 guidelines to ensure that contractors and subcontractors undertake mean- 48 ingful programs to employ and promote qualified minority group members 49 [and], women and veterans. Such procedures may require after notice in 50 a bid solicitation, the submission of a minority [and], women and veter- 51 ans workforce utilization program prior to the award of any contract, or 52 at any time thereafter, and may require the submission of compliance 53 reports relating to the operation and implementation of any workforce 54 utilization program adopted hereunder. The council may take appropriate 55 action, including the impositions of sanctions for non-compliance toA. 3971 54 1 effectuate the provisions of this subdivision and the monitoring of 2 compliance with this subdivision. 3 (c) (i) In the performance of projects pursuant to this section, 4 minority [and women-owned], women and veteran-owned business enterprises 5 shall be given the opportunity for meaningful participation. For 6 purposes hereof, minority business enterprise shall mean any business 7 enterprise which is at least fifty-one per centum owned by, or in the 8 case of a publicly owned business, at least fifty-one per centum of the 9 stock or other voting interest is owned by citizens or permanent resi- 10 dent aliens who are Black, Hispanic, Asian, American Indian, Pacific 11 Islander, or Alaskan native, and such ownership interest is real, 12 substantial and continuing and has the authority to independently 13 control the day to day business decisions of the entity for at least one 14 year; [and] women-owned business enterprise shall mean any business 15 enterprise which is at least fifty-one per centum owned by, or in the 16 case of a publicly owned business, at least fifty-one per centum of the 17 stock to other voting interests of which is owned by citizens or perma- 18 nent resident aliens who are women, and such ownership interest is real, 19 substantial and continuing and has the authority to independently 20 control the day to day business decisions of the entity for at least one 21 year and veteran-owned business enterprise shall mean any business 22 enterprise which is at least fifty-one per centum owned by, or in the 23 case of a publicly owned business, at least fifty-one percentum of the 24 stock to other voting interests of which is owned by citizens or perma- 25 nent resident aliens who are veterans, and such ownership interest is 26 real, substantial and continuing and has the authority to independently 27 control the day to day business decisions of the entity for at least one 28 year. 29 The provisions of this subdivision shall not be construed to limit the 30 ability of any minority business enterprise to bid on any contract. 31 (ii) In order to implement the requirements and objectives of this 32 section, the council shall request, as appropriate, the assistance of 33 other state agencies to monitor the contractors' compliance with 34 provisions hereof, provide assistance in obtaining competing qualified 35 minority [and women-owned], women and veteran-owned business enterprises 36 to perform contracts proposed to be awarded, and take other appropriate 37 measures to improve the access of minority [and women-owned], women and 38 veteran-owned business enterprises to these contracts. 39 § 33. Subdivision 33 of section 454 of the banking law, as amended by 40 chapter 679 of the laws of 2003, is amended to read as follows: 41 33. Notwithstanding any other provision of this article to the contra- 42 ry, to participate in the minority - [and women-owned], women - and 43 veteran-owned business development and lending program[, as established44in section 16-c of section 1 of chapter 174 of the laws of 1968, consti-45tuting the urban development corporation act,] to the extent that such 46 program allows participation by credit unions. 47 § 34. Section 52-0113 of the environmental conservation law, as added 48 by chapter 512 of the laws of 1986, is amended to read as follows: 49 § 52-0113. Minority [and women-owned], women and veteran-owned business 50 enterprise program. 51 1. a. In the performance of projects pursuant to this article minority 52 [and women-owned], women and veteran-owned business enterprises shall be 53 given the opportunity for meaningful participation. The department or 54 the office shall establish measures and procedures to secure meaningful 55 participation and identify those contracts and items of work for which 56 minority [and women-owned], women and veteran-owned business enterprisesA. 3971 55 1 may best bid to actively and affirmatively promote and assist their 2 participation in the projects, so as to facilitate the award of a fair 3 share of contracts to such enterprises; provided, however, that nothing 4 in this article shall be construed to limit the ability of the depart- 5 ment or office to assure that qualified minority [and women-owned], 6 women and veteran-owned business enterprises may participate in the 7 program. For purposes hereof, minority business enterprise shall mean 8 any business enterprise which is at least fifty-one per centum owned by, 9 or in the case of a publicly owned business, at least fifty-one per 10 centum of the stock of which is owned by citizens or permanent resident 11 aliens who are Black, Hispanic, Asian or American Indian, Pacific Islan- 12 der or Alaskan natives and such ownership interest is real, substantial 13 and continuing and have the authority to independently control the day 14 to day business decisions of the entity for at least one year; [and] 15 women-owned business enterprise shall mean any business enterprise which 16 is at least fifty-one per centum owned by, or in the case of a publicly 17 owned business, at least fifty-one per centum of the stock of which is 18 owned by citizens or permanent resident aliens who are women, and such 19 ownership interest is real, substantial and continuing and have the 20 authority to independently control the day to day business decisions of 21 the entity for at least one year and veteran-owned business enterprise 22 shall mean any business enterprise which is at least fifty-one per 23 centum owned by, or in the case of a publicly owned business, at least 24 fifty-one per centum of the stock of which is owned by citizens or 25 permanent resident aliens who are veterans, and such ownership interest 26 is real, substantial and continuing and have the authority to independ- 27 ently control the day to day business decisions of the entity for at 28 least one year. 29 The provisions of this paragraph shall not be construed to limit the 30 ability of any minority [or women-owned], women or veteran-owned busi- 31 ness enterprise to bid on any contract. 32 b. In the implementation of this section, the department or the office 33 shall consider compliance by any contractor with the requirements of any 34 federal, state, or local law concerning minority [and women-owned], 35 women and veteran-owned business enterprises, which may effectuate the 36 requirements of this section. If the department or the office determines 37 that by virtue of the imposition of the requirements of any such law, in 38 respect to capital project contracts, the provisions thereof duplicate 39 or conflict with such law, the department may waive the applicability of 40 this section to the extent of such duplication or conflict. 41 c. Nothing in this section shall be deemed to require that overall 42 state and federal requirements for participation of minority [and43women-owned], women and veteran-owned business enterprises in programs 44 authorized under this article be applied without regard to local circum- 45 stances to all projects or in all communities. 46 2. In order to implement the requirements and objectives of this 47 section, the department and the office shall establish procedures to 48 monitor the contractors' compliance with provisions hereof, provide 49 assistance in obtaining competing qualified minority [and women-owned], 50 women and veteran-owned business enterprises to perform contracts 51 proposed to be awarded, and take other appropriate measures to improve 52 the access of minority [and women-owned], women and veteran-owned busi- 53 ness enterprises to these contracts. 54 § 35. Section 957 of the general municipal law is amended by adding a 55 new subdivision (u) to read as follows:A. 3971 56 1 (u) "Veteran-owned business enterprise" shall have the same meaning 2 as provided in section three hundred ten of the executive law. 3 § 36. Subdivisions (a), (g) and (t) of section 959 of the general 4 municipal law, subdivision (a) as amended by section 2 of part R of 5 chapter 57 of the laws of 2010 and subdivisions (g) and (t) as amended 6 by section 3 of part S1 of chapter 57 of the laws of 2009, are amended 7 to read as follows: 8 (a) After consultation with the director of the budget, the commis- 9 sioner of labor, and the commissioner of taxation and finance, promul- 10 gate regulations, which, notwithstanding any provisions to the contrary 11 in the state administrative procedure act, may be adopted on an emergen- 12 cy basis, governing (i) criteria of eligibility for empire zone desig- 13 nation, provided, however, that such criteria be approved by the direc- 14 tor of the budget; (ii) the application process; (iii) the certification 15 by the commissioner as to the eligibility of business enterprises for 16 benefits referred to in section nine hundred sixty-six of this article, 17 which shall be governed by criteria including, but not limited to: (1) 18 whether the business enterprise, if certified, is reasonably likely to 19 create new employment or prevent a loss of employment in the zone, (2) 20 whether such new employment opportunities will be for individuals who 21 will perform a substantial part of their employment activities in the 22 zone, (3) whether certification will have the undesired effect of caus- 23 ing individuals to transfer from existing employment with another busi- 24 ness enterprise to similar employment with the business enterprise so 25 certified, and transferring existing employment from one or more other 26 municipalities, towns or villages in the state, or transferring existing 27 employment from one or more other businesses in the zone, (4) whether 28 such enterprise is likely to enhance the economic climate of the zone, 29 (5) whether the commissioner of labor establishes that such business 30 enterprise, during the three years preceding the submission of an appli- 31 cation for certification, has engaged in a substantial violation or a 32 pattern of violations of laws regulating unemployment insurance, workers 33 compensation, public work, child labor, employment of minorities [and34women], women and veterans, safety and health, or other laws for the 35 protection of workers as determined by final judgment of a judicial or 36 administrative proceeding; (6) whether such business meets the require- 37 ments of the cost benefit analysis as established in paragraph (p) of 38 section nine hundred fifty-seven of this article, and (7) if the commis- 39 sioner of labor establishes that the business enterprise has been found 40 in a criminal proceeding to have violated, in the previous three years, 41 any of the laws referred to in subparagraph five of this paragraph or 42 regulations promulgated pursuant to such laws, the conditions of any 43 permit issued thereunder, or similar statute, regulation, order or 44 permit condition of any other government agency, foreign or domestic, 45 such business shall not be certified; provided, however, that a business 46 enterprise that has shifted its operations, or some portions thereof, 47 from an area within New York state not designated as an empire zone or 48 zone equivalent area to an area so designated shall not be certified to 49 receive such benefits except where such shift is entirely within a muni- 50 cipality and has been approved by the local governing body of such muni- 51 cipality or in situations where it has been established, after a public 52 hearing, that extraordinary circumstances exist which warrant the relo- 53 cation of a business, in whole or part, into an empire zone or a zone 54 equivalent area from another municipality and the municipality from 55 which the business is relocating approves of such relocation; or where 56 such shift in operations is from a business incubator facility operatedA. 3971 57 1 by a municipality or by a public or private not-for-profit entity which 2 provides space and business support services to newly established firms; 3 and (iv) the decertification by the commissioner, upon the recommenda- 4 tion of the commissioner of labor, so as to revoke the certification of 5 business enterprises for benefits referred to in section nine hundred 6 sixty-six of this article with respect to an empire zone or zone equiv- 7 alent area upon a finding that the business enterprise has committed 8 substantial violations of laws for the protection of workers including 9 all federal, state and local labor laws, rules or regulations; and (v) 10 the decertification by the commissioner so as to revoke the certif- 11 ication of business enterprises for benefits referred to in section nine 12 hundred sixty-six of this article with respect to an empire zone or zone 13 equivalent area upon a finding of any one of the following: (1) the 14 business enterprise made material misrepresentations of fact on its 15 application for certification or in any of its business annual reports, 16 or the business enterprise failed to disclose facts in its application 17 for certification that would constitute grounds for not issuing a 18 certification; (2) the business enterprise has failed to construct, 19 expand, rehabilitate or operate or invest in its facility substantially 20 in accordance with the representations contained in its application for 21 certification; (3) the business enterprise has failed to create new 22 employment or prevent a loss of employment in the empire zone or zone 23 equivalent area; (4) where applicable, the business enterprise has 24 failed to submit an annual report after it has applied for zone tax 25 benefits or program assistance based on new hires or investments or 26 failed to submit other information when due; (5) the business enter- 27 prise, if first certified pursuant to this article prior to the first 28 day of August, two thousand two, caused individuals to transfer from 29 existing employment with another business enterprise with similar owner- 30 ship and located in New York state to similar employment with the certi- 31 fied business enterprise or if the enterprise acquired, purchased, 32 leased, or had transferred to it real property previously owned by an 33 entity with similar ownership, regardless of form of incorporation or 34 organization; (6) the business enterprise has failed to provide economic 35 returns to the state in the form of total remuneration to its employees 36 (i.e. wages and benefits) and investments in its facility greater in 37 value to the tax benefits the business enterprise used and had refunded 38 to it; or (7) the business enterprise has changed ownership or moved its 39 operations out of the empire zone; said regulations shall provide that 40 whenever any business enterprise is decertified with respect to an 41 empire zone: (A) the date determined to be the earliest event constitut- 42 ing grounds for revoking certification shall be the effective date of 43 decertification; (B) its certified single enterprise, if any, may also 44 be decertified; and (C) the commissioner shall notify the commissioner 45 of taxation and finance that such decertification has occurred, and such 46 notification should include the effective date of such decertification 47 and the zone or zone equivalent area to which such decertification 48 applies; with respect to any business enterprise whose certification has 49 been revoked pursuant to subparagraph five or six of this paragraph, 50 that revocation (I) will be effective for a taxable year beginning on or 51 after January first, two thousand eight and before January first, two 52 thousand nine and for subsequent taxable years, unless the business 53 enterprise is subsequently re-certified pursuant to part 11 of title 5 54 of the New York state codes, rules and regulations for a business enter- 55 prise for which a review is required to be conducted pursuant to subdi- 56 vision (w) of this section in calendar year two thousand nine, and (II)A. 3971 58 1 thereafter will be effective for the taxable year during which the 2 commissioner makes his or her determination (prior to any appeal) to 3 revoke the certification of a business enterprise and for subsequent 4 taxable years; 5 (g) Coordinate, with the local empire zone administrative board and 6 state agencies and authorities, the provision of business development 7 programs and services for each empire zone in order to stimulate the 8 creation and development of new small businesses, including new small 9 minority-owned [and], women-owned and veteran-owned business enter- 10 prises, and may request and shall receive from any department, division, 11 board, bureau, commission, agency or public authority of the state such 12 assistance as may be necessary; 13 (t) Coordinate with the urban development corporation the creation of 14 a special category of assistance for zones within the regional economic 15 development partnership program, which will make available economic 16 development assistance grants for zone programs and activities, includ- 17 ing, but not limited to, planning, service coordination, and local 18 institutional capacity building for human resource development necessary 19 for economic revitalization; planning and development of small business 20 incubators; job placement and preparedness programs for zones residents; 21 education and training programs for zone businesses; child care programs 22 and projects supportive of business development; technical assistance 23 for minority [and women-owned], women and veteran-owned business devel- 24 opment; training for zone officials; business and tourism development 25 and marketing programs; and other innovative programs and activities in 26 support of economic and community development within the zones; 27 § 37. Paragraphs (iii) and (xii) of subdivision (a) of section 963 of 28 the general municipal law, as amended by chapter 708 of the laws of 1993 29 and further amended by section 15 of part GG of chapter 63 of the laws 30 of 2000, are amended to read as follows: 31 (iii) undertake efforts to ensure meaningful participation by minori- 32 ty-owned [and women-owned], women and veteran-owned business enterprises 33 in empire zone activities; 34 (xii) provide within the zone, or contract with a new or existing 35 community-based local development corporation or entity to provide, 36 strategic economic development planning for the zone, marketing and 37 promotion of the zone, assistance to companies in applying for available 38 benefits, preparation of applications for financing assistance and other 39 technical assistance services; coordination of the delivery of state and 40 local programs within the zones; and operation of such other economic 41 development assistance programs in furtherance of the empire zone devel- 42 opment plan as may be appropriate. Provided, however, within the amount 43 appropriated therefor and allocated by the director of the budget, the 44 commissioner, through annual administrative contracts, shall, to the 45 maximum extent feasible, make equally available financial support, 46 through contracts or other means, to assist with the administrative 47 expenses of the local zone administrative bodies or community-based 48 development organizations. No funds shall be made available for this 49 purpose unless the amount to be provided has been matched by private or 50 governmental sources, other than state sources, in amounts at least 51 equalling that to be provided by the state. Such matching funds shall be 52 earmarked and used exclusively for the local administration of the zone 53 program or for activities of the zone program. At least fifty percent of 54 such matching funds shall be in cash, provided that the commissioner may 55 waive this requirement for communities with populations of twenty-five 56 thousand or less, and provided, further, that any amounts appropriatedA. 3971 59 1 for minority [and women-owned], women and veteran-owned business devel- 2 opment within the zones shall be distributed by the commissioner pursu- 3 ant to a competitive proposal solicitation process. 4 § 38. Subdivision (c) of section 964 of the general municipal law, as 5 amended by chapter 708 of the laws of 1993 and further amended by 6 section 15 of part GG of chapter 63 of the laws of 2000, is amended to 7 read as follows: 8 (c) Each empire zone capital corporation shall, to the maximum extent 9 feasible, undertake measures and procedures to ensure meaningful partic- 10 ipation by minority-owned [and], women-owned and veteran-owned business 11 enterprises in the activities and investments of such corporation. Each 12 such corporation shall additionally, to the maximum extent feasible, 13 undertake measures and procedures to ensure meaningful participation by 14 locally owned business enterprises in the activities and investments of 15 such corporation. 16 § 39. Subparagraph 7 of paragraph f of subdivision 3 of section 970-r 17 of the general municipal law, as amended by section 1 of part F of chap- 18 ter 577 of the laws of 2004, is amended to read as follows: 19 (7) the financial commitments the applicant will make to the brown- 20 field opportunity area for activities including, but not limited to, 21 marketing of the area for business development, human resource services 22 for residents and businesses in the brownfield opportunity area, and 23 services for small [and], minority [and women-owned], women and veter- 24 an-owned businesses. 25 § 40. Section 3 of section 1 of chapter 174 of the laws of 1968, 26 constituting the New York state urban development corporation act, is 27 amended by adding a new subdivision 31 to read as follows: 28 (31) "Veteran business enterprise". A business enterprise which is at 29 least fifty-one percent owned, or in the case of a publicity-owned busi- 30 ness at least fifty-one percent of the common stock or other voting 31 interests of which is owned, by United States citizens or permanent 32 resident aliens who are veterans, regardless of race or ethnicity, and 33 such ownership interest is real, substantial and continuing and such 34 veterans have and exercise the authority to independently control the 35 day to day business decisions of the enterprises. 36 § 41. The second undesignated paragraph of subdivision 1 of section 12 37 of section 1 of chapter 174 of the laws of 1968, constituting the New 38 York state urban development corporation act, as added by section 1 of 39 part EE of chapter 60 of the laws of 2011, is amended to read as 40 follows: 41 The empire state new market corporation, a community development enti- 42 ty certified by the United States Department of the Treasury Community 43 Development Financial Institutions Fund and a corporate subsidiary of 44 the corporation, by resolution, may direct any of its directors, offi- 45 cers, or employees to form limited liability companies pursuant to 46 section 203 of the limited liability company law for the sole purpose of 47 certifying and performing as community development entities that would 48 be eligible to receive an allocation of tax credits under the new 49 markets tax credit program. No limited liability company formed pursu- 50 ant to this section shall merge or consolidate. Each limited liability 51 company shall act solely in relation to projects selected by the corpo- 52 ration, or a corporate subsidiary of the corporation. Each limited 53 liability company shall be empowered to receive an allocation of tax 54 credits from a federal allocation to the corporation, or a corporate 55 subsidiary of the corporation, under the new markets tax credit program 56 and to do any other act or things incidental to or connected with theA. 3971 60 1 foregoing purposes or in advancement thereof. The corporation, or a 2 corporate subsidiary of the corporation, shall be the managing member of 3 each limited liability company created by the corporation. In determin- 4 ing which projects to allocate tax credits to under the new markets tax 5 credit program, the corporation shall prioritize projects demonstrating 6 one or more of the following goals or benefits: (a) creating or retain- 7 ing jobs in low income communities; (b) increasing the provision of 8 goods and services for low income community residents which would other- 9 wise not be available at the same price or quality; (c) supporting 10 minority [and women-owned], women and veteran-owned or controlled busi- 11 nesses; (d) expanding housing opportunities for low income community 12 persons; (e) supporting environmentally sustainable outcomes; and (f) 13 supporting efforts that otherwise benefit low income community residents 14 by leveraging further investment in their communities. Provided 15 further, such projects shall be limited to projects that would be 16 authorized under this act and shall be subject to approval by the board 17 of the urban development corporation. The corporation shall publish 18 information regarding the process used to select projects to receive the 19 new markets tax credits and provide a copy to the temporary president of 20 the senate, the speaker of the assembly, the minority leader of the 21 senate and the minority leader of the assembly. The corporation shall 22 strive for regional diversity in the allocation of tax credits under the 23 new markets tax credit program. The corporation shall include in the 24 information required to be submitted annually in accordance with the 25 provisions of subdivision 1 of section 2800 of the public authorities 26 law information regarding assistance provided by it or its subsidiary 27 under the new markets tax credit program, and shall provide financial 28 information with respect to any subsidiary administering the program in 29 the corporation's financial reports, including its certified audited 30 financial statements. 31 § 42. Paragraph (c) of subdivision 9 of section 16-a of section 1 of 32 chapter 174 of the laws of 1968, constituting the New York state urban 33 development corporation act, as amended by chapter 477 of the laws of 34 2002, is amended to read as follows: 35 (c) of minority [or women-owned], women or veteran-owned enterprises 36 or enterprises owned by dislocated workers, such workers as defined in 37 the Workforce Investment Act (P.L. 105-220); and 38 § 43. Section 16-c of section 1 of chapter 174 of the laws of 1968, 39 constituting the New York state urban development corporation act, as 40 added by chapter 169 of the laws of 1994, subdivision 1 as amended by 41 section 1 of part AA of chapter 55 of the laws of 2014, and subpara- 42 graphs (i) and (ii) of paragraph (a) of subdivision 2 as further amended 43 by section 15 of part GG of chapter 63 of the laws of 2000, is amended 44 to read as follows: 45 § 16-c. Minority- [and women-owned], women- and veteran-owned business 46 development and lending program. 47 (1) Minority- [and women-owned], women- and veteran-owned business 48 development and lending program. (a) There is hereby created a minori- 49 ty- [and women-owned], women- and veteran-owned business development and 50 lending program for the purpose of providing financial and technical 51 assistance to minority [and women-entrepreneurs], women and veteran 52 entrepreneurs. 53 (b) For the purposes of this section the following words or terms 54 shall mean as follows: 55 (i) "minority-owned business enterprise" or "minority-owned business" 56 shall mean the same as "minority business enterprise" as defined inA. 3971 61 1 subdivision three of section two hundred ten of the economic development 2 law. 3 (ii) "women-owned business enterprise" or "women-owned business" shall 4 mean the same as "women-owned business enterprise" as defined in subdi- 5 vision five of section two hundred ten of the economic development law. 6 (iii) "veteran-owned business enterprise" or "veteran-owned business" 7 shall mean the same as "veteran-owned business enterprise" as defined in 8 subdivision seven of section two hundred ten of the economic development 9 law. 10 (iv) "incubator" shall mean a facility providing low-cost space, tech- 11 nical assistance and support services, including, but not limited to, 12 central services shared by tenants of the facility, to minority- [and13women-owned], women- and veteran-owned business enterprises. 14 (c) Assistance shall not be provided under this section for: 15 (i) the purchase or rehabilitation of real property for speculative 16 purposes; 17 (ii) payment of any tax or employee benefit arrearage; 18 (iii) residential construction, renovation or development 19 construction, except for assistance to minority [and], women and veteran 20 contractors under subdivision four of this section; 21 (iv) educational institutions and proprietary education firms, except 22 licensed child care facilities; 23 (v) hospitals or residential health care facilities; 24 (vi) overnight lodging facilities; 25 (vii) refinancing of debt or equity invested in an enterprise or 26 project. 27 (d) The corporation is authorized to: 28 (i) establish programs in conjunction with locally, and community 29 based entities to decentralize lending for small loans and loans to 30 start up minority- [and women-owned], women- and veteran-owned busi- 31 nesses; 32 (ii) establish a comprehensive program for minority [and], women and 33 veteran contractors, which may include assistance through loans, bonding 34 assistance and technical assistance; 35 (iii) establish a program to provide loans to established minority- 36 [and women-owned], women- and veteran-owned businesses and for minority- 37 [and women-owned], women- and veteran-owned businesses, including loans 38 to such businesses seeking to acquire or expand a franchise; 39 (iv) provide loan guarantees to financial institutions and make linked 40 deposits into federally and state chartered credit unions for the 41 purpose of encouraging private financial institutions to make loans to 42 minority- [and women-owned], women- and veteran-owned businesses; 43 (v) establish a program to create incubators to assist small and high 44 risk minority- [and women-owned], women- and veteran-owned businesses to 45 grow and prosper; 46 (vi) promote equity investment in minority- [and women-owned], women- 47 and veteran-owned businesses; [and] 48 (vii) establish a comprehensive technical assistance program in coop- 49 eration with the department of economic development to assist minority- 50 [and women-owned], women- and veteran-owned businesses and potential 51 [minority and women-entrepreneurs] minority-, women- and veteran-entre- 52 preneurs; and 53 (viii) notwithstanding any provision of law to the contrary, establish 54 a minority- [and women-owned], women- and veteran-owned business invest- 55 ment fund to provide critical financial support to foster the develop- 56 ment of new and emerging ideas and products of minority- [and women-A. 3971 62 1owned], women- and veteran-owned business enterprises as well as to 2 promote the long-term financial performance and success of early stage 3 enterprises that are minority- [and women-owned], women- and veteran- 4 owned start-ups. The selection of an eligible applicant and beneficiary 5 companies for the minority- [and women-owned], women- and veteran-owned 6 business investment fund shall be selected by the process established 7 pursuant to subdivisions two through four of section sixteen-u of this 8 act. Minority- [or women-owned], women- and veteran-owned business 9 enterprises who participate in such minority- [and women-owned], women- 10 and veteran-owned business investment fund under this subdivision shall 11 not be precluded from qualifying for any other assistance, grant or loan 12 made available from the state. 13 (2) Minority [and], women and veteran revolving loan trust fund. For 14 the purpose of establishing programs in conjunction with locally and 15 community based entities to decentralize lending for small loans and 16 loans to start up minority- [and women-owned], women- and veteran-owned 17 businesses, the corporation shall establish minority [and], women and 18 veteran revolving loan trust fund accounts and related administrative 19 expenses trust fund accounts. 20 (a) Each minority [and], women and veteran revolving loan trust fund 21 account shall be administered by one or more of the following types of 22 entities that provide services to community businesses and have as one 23 of their primary purposes the provision of services and assistance to 24 minority- [and women-owned], women- and veteran-owned businesses: 25 (i) empire zone capital corporations established pursuant to section 26 nine hundred sixty-four of the general municipal law; 27 (ii) community-based local development corporations or industrial 28 development agencies that serve a municipality in which an empire zone 29 has been established pursuant to article eighteen-B of the general 30 municipal law and have as their primary purpose assistance to minority- 31 [and women-owned], women- and veteran-owned businesses located or to be 32 located in such empire zone; or 33 (iii) local and community development corporations, industrial devel- 34 opment agencies, or other not-for-profit entities, representative of the 35 community. 36 (b) To be eligible to administer a minority [and], women and veteran 37 revolving loan trust fund account, the entity must also: (i) have staff 38 with sufficient expertise to analyze applications for financial assist- 39 ance, to regularly monitor financial assistance to clients, and to 40 provide management or technical assistance to clients; and (ii) have 41 established a loan committee composed of six or more persons experienced 42 in business management, commercial lending or in the operation of a 43 for-profit business, at least one-half of whom shall be experienced in 44 commercial lending, at least [one-third] one-quarter of whom shall be 45 minority persons and at least [one-third] one-quarter of whom shall be 46 women and at least one-quarter of whom shall be veterans. Such loan 47 committee shall review every application, determine the feasibility of 48 the proposed project and the likelihood of repayment of the requested 49 financing and shall recommend to the governing body of the entity such 50 action on the application as the loan committee deems appropriate. The 51 corporation shall identify entities eligible to administer minority and 52 women revolving loan trust fund accounts through a competitive statewide 53 request for proposal process. 54 (c) Any entity selected to administer a minority [and], women and 55 veteran revolving loan trust fund account shall be eligible to draw 56 funds from the account as needed to provide the following types ofA. 3971 63 1 financial assistance to minority- [and women-owned], women- and veter- 2 an-owned businesses upon certification to and acceptance by the corpo- 3 ration that such assistance complies with rules and regulations promul- 4 gated by the corporation: (i) working capital loans, provided that the 5 amount of the loan does not exceed thirty-five thousand dollars and the 6 term of the loan does not exceed five years; and (ii) loans for the 7 acquisition and/or improvement of real property and for the acquisition 8 of machinery and equipment provided that the amount of the loan does not 9 exceed fifty thousand dollars and the term of the loan does not exceed 10 the useful life of the equipment or property. 11 (d) (i) Notwithstanding any provision of law to the contrary, the 12 corporation may establish an administrative expenses trust fund account 13 for the benefit of each entity selected to administer a minority [and], 14 women and veteran revolving loan trust fund account. The initial deposit 15 of funds to an administrative expenses trust fund account shall be an 16 amount determined by the corporation but shall not exceed twenty-five 17 thousand dollars. 18 (ii) An entity selected to administer a minority [and], women and 19 veteran revolving loan trust fund account may use the funds in the 20 administrative expenses trust fund account for costs incurred by it in 21 the start up and administration of the financial assistance program 22 authorized pursuant to this subdivision. 23 (iii) The corporation shall deposit into each administrative expenses 24 trust fund account: 25 (A) all income earned from the moneys on deposit in the corresponding 26 minority [and], women and veteran revolving loan trust fund account 27 during the first year of the entity's administration of said account; 28 and 29 (B) beginning with its second year in administering a minority [and], 30 women and veteran revolving loan trust fund account, said amounts may be 31 used for costs incurred by the entity in administering the minority 32 [and], women and veteran revolving loan trust fund account; and 33 (C) repayments of interest on loans made from the corresponding minor- 34 ity [and], women and veteran revolving loan trust fund account. 35 (iv) Funds from the administrative expenses trust fund account may be 36 used for costs incurred at any time by an administering entity in its 37 administration of a minority [and], women and veteran revolving loan 38 trust fund account pursuant to this section. 39 (v) Funds deposited in an administrative expenses trust fund account 40 shall be disbursed by the corporation to the entity that administers the 41 corresponding minority [and], women and veteran revolving loan trust 42 fund account on a periodic basis and shall be expended by the entity in 43 accordance with an annual budget and any updates of same, approved by 44 the corporation. 45 (e) Any entity selected to administer a minority [and], women and 46 veteran revolving loan trust fund account shall pay to the corporation 47 for deposit any repayments received in connection with financial assist- 48 ance provided from its account. Payments consisting of the repayment of 49 the principal amount of a loan shall be deposited by the corporation 50 into the minority [and], women and veteran revolving loan trust fund 51 account from which the loan was made. The interest earned by the corpo- 52 ration from the investment of moneys in each minority [and], women and 53 veteran revolving loan trust fund account during and after the second 54 year of a selected entity's administration of said account shall be 55 deposited by the corporation into the corresponding minority [and], 56 women and veteran revolving loan trust fund account and used to provideA. 3971 64 1 the financial assistance to minority- [and women-owned], women- and 2 veteran-owned businesses as authorized pursuant to this section. 3 (f) The provisions of subdivisions eight, nine, and fourteen through 4 nineteen of section sixteen-a of this act pertaining to the regional 5 revolving loan trust fund shall also be applicable to the minority 6 [and], women and veteran revolving loan trust fund, provided that: where 7 the term "regional corporation" appears therein it shall be interpreted 8 to mean an entity selected to administer a minority [and], women and 9 veteran revolving loan trust fund account, and "regional revolving loans 10 trust fund" shall mean a minority [and], women and veteran revolving 11 loan trust fund, and where the term "this section" appears therein it 12 shall mean this section sixteen-c. 13 (g) The corporation may provide funds from an appropriation for the 14 minority- [and women-owned], women- and veteran-owned business develop- 15 ment and lending program to any entity selected to administer a minority 16 [and], women and veteran revolving loan trust fund for the purposes of 17 recapitalizing such account and the entity's corresponding administra- 18 tive expenses trust fund account following an evaluation by the corpo- 19 ration of the entity's administration and use of such accounts. 20 (h) Notwithstanding any provision of law to the contrary, the corpo- 21 ration shall establish a minority [and], women and veteran revolving 22 loan trust fund to pay into such fund any moneys made available to the 23 corporation for such fund from any source, including moneys appropriated 24 by the state and any income earned by, or increment to, the account due 25 to the investment thereof, or any repayment of moneys advanced from the 26 fund. The corporation shall not commingle the moneys of such fund with 27 any moneys held in trust by the corporation, except for investment 28 purposes. 29 (3) Micro-loan program. (a) For the purposes of this subdivision 30 "micro-loan" shall mean a loan of under seven thousand five hundred 31 dollars. 32 (b) The corporation shall, pursuant to requests for proposals, enter 33 into agreements for other types of locally, community or regionally 34 administered loan programs than those set forth in subdivision two of 35 this section, including micro-loan programs to be administered by local 36 development corporations, local industrial development organizations, 37 municipalities and not-for-profit organizations, to provide micro-loans 38 to small and high risk minority- [and women-owned], women- and veteran- 39 owned businesses located within their respective service areas, provided 40 that loan review committees are established by such administering enti- 41 ty, including women, veterans and minority persons experienced in busi- 42 ness management, business development, commercial lending, entrepreneur- 43 ship, or in the operation of a for-profit business. 44 (c) Agreements entered into pursuant to paragraph (b) of this subdivi- 45 sion shall be governed by paragraphs (d) through (h) of subdivision two 46 of this section, and minority [and], women and veteran revolving loan 47 trust fund accounts and administrative expenses trust fund accounts 48 shall be established in a similar fashion for entities selected to 49 administer micro-loan funds pursuant to this subdivision. 50 (4) Minority [and], women and veteran contracting program. For the 51 purpose of establishing a comprehensive program to assist minority 52 [and], women and veteran contractors, the corporation may provide loans, 53 loan guarantees, technical assistance and bonding assistance, the corpo- 54 ration may enter into cooperative agreements with cities, counties, 55 municipalities, authorities, agencies, federally and state charteredA. 3971 65 1 credit unions in New York state and federally insured banking organiza- 2 tions and financial institutions for such purposes. 3 (a) To be eligible for a contractor loan, the borrower must have 4 either (i) a construction contract with, or a contract to provide goods 5 or services to, a governmental entity or authority, (ii) a subcontract 6 on a government-sponsored construction contract, (iii) a contract or 7 subcontract on a government sponsored residential project, or (iv) a 8 contract or subcontract on a construction project previously approved by 9 the corporation pursuant to section ten of this act. 10 (b) The corporation shall provide technical assistance specifically 11 oriented to [minority and women-owned] minority-, women- and veteran- 12 owned government contractors as part of its comprehensive technical 13 assistance program. 14 (c) The corporation is authorized to provide assistance through the 15 creation of, or assistance to, a minority [and], women and veteran bond- 16 ing guarantee program to enable minority [and], women and veteran 17 contractors and subcontractors to meet payment or performance bonding 18 requirements. 19 (i) Through such program, assistance in the form of working capital 20 loans and loan guarantees pursuant to subdivision six of this section 21 may also be provided to minority [and], women and veteran contractors 22 and subcontractors who have secured contracts by participating in the 23 program. 24 (ii) The corporation shall either establish criteria for the bonding 25 guarantee program and for any required escrow funds which shall include 26 detailed provisions for eligibility; or if the corporation is providing 27 assistance to a program other than one established by the corporation, 28 review and approve the criteria established for such other program. 29 (5) Direct financial assistance for minority- [and women-owned], 30 women- and veteran-owned businesses. For the purpose of establishing a 31 program to provide direct financial assistance to minority- [and women-32owned], women- and veteran-owned businesses, the corporation is author- 33 ized to provide assistance in the form of: 34 (a) Business development loans and loan guarantees pursuant to subdi- 35 vision six of this section to eligible enterprises for the acquisition 36 or improvement of real property, machinery, equipment or working capi- 37 tal, provided that to be eligible for a business development loan, the 38 borrowers must have been in business for at least three years and 39 provided that the loans must be in an amount equal to or in excess of 40 fifty thousand dollars; 41 (b) Franchise loans to eligible enterprises seeking to acquire or 42 expand franchises of nationally recognized corporations, provided that 43 disbursements by the corporation of such loans shall be conditioned on 44 obtaining such franchises; 45 (c) Equity assistance for eligible [minority and women-owned] minori- 46 ty-, women- and veteran-owned enterprises to match equity contributions 47 to such enterprises by financial institutions and community development 48 equity capital funds, provided, however, that such assistance shall be 49 targeted to start-up and early stage enterprises in the manufacturing, 50 retail and service sectors located in economically distressed areas. 51 (6) Deposits and loan guarantees. For the purpose of encouraging 52 private financial institutions to make loans to eligible enterprises 53 pursuant to this section for any of the eligible projects pursuant to 54 subdivisions four and five of this section, the corporation is author- 55 ized to:A. 3971 66 1 (a) Make linked deposits of funds into federally and state chartered 2 credit unions in New York state, in order to encourage such organiza- 3 tions to make small loans to [minority and women-owned] minority-, 4 women- and veteran-owned businesses; and 5 (b) Provide loan guarantees to private financial institutions for 6 loans made to eligible minority- [and women-owned], women- and veteran- 7 owned businesses pursuant to this subdivision for eligible projects, 8 provided that the guarantee shall be at least fifty percent backed by 9 funds of the corporation. Any such loan guaranteed by the corporation 10 shall be made to borrowers that are approved by the corporation and 11 substantially meet the underwriting criteria the credit union or finan- 12 cial institution customarily applies to similar borrowers for similar 13 loans supported by similar guarantees, and no guaranteed loan funds 14 shall be disbursed until the corporation has received, reviewed and 15 concurred, in writing, with the recommendation of the credit union or 16 banking or financial institution to make a loan. 17 (7) Minority [and], women and veteran small business incubator 18 program. (a) The corporation shall establish a minority [and], women and 19 veteran small business incubator program for the purpose of providing 20 financial support for the creation of incubators to nurture [minority21and women-owned] minority-, women- and veteran-owned business enter- 22 prises with growth potential. 23 (b) Under this subdivision the corporation is authorized to provide 24 low-interest loans and grants for construction financing and permanent 25 financing of up to seventy-five percent of project costs up to a maximum 26 of six hundred fifty thousand dollars per project, provided that the 27 total amount of grant assistance provided pursuant to this paragraph 28 shall not exceed twenty percent of an appropriation provided for the 29 purposes of this section. 30 (c) Incubator projects eligible for such assistance shall involve the 31 renovation or reconstruction of existing facilities or the acquisition 32 of equipment, except that construction shall be allowable in cases in 33 which an applicant can demonstrate to the satisfaction of the corpo- 34 ration that an existing facility is unavailable in the area to be served 35 by the new incubator facility. 36 (d) Incubator projects are not eligible to receive loans for the 37 purpose of covering operating costs or supplying incubator support 38 services, except that incubators in their first eighteen months of oper- 39 ation may receive one-time grants not to exceed forty thousand dollars, 40 which costs may include administrative costs of employing a resident 41 administrator/advisor to the incubator, provided that the corporation 42 shall not expend a sum greater than two hundred fifty thousand dollars 43 in any one state fiscal year, or so much as may be specifically appro- 44 priated for this purpose. 45 (e) Eligible incubator projects shall be required to demonstrate to 46 the corporation's satisfaction: 47 (i) public or private support and involvement sufficient to complete 48 the renovation of existing facilities or the construction of new facili- 49 ties and the acquisition of equipment; 50 (ii) significant community support for the project; 51 (iii) the existence of prospective tenants for such incubator space; 52 (iv) demand for such incubator space, which may include evidence of 53 the unavailability of suitable space for prospective tenants at appro- 54 priate rental or lease costs in the community in which such prospective 55 tenants are located; andA. 3971 67 1 (v) the inability of the project to occur without financial assistance 2 from the corporation. 3 (f) The corporation shall establish criteria for eligibility for fund- 4 ing for incubator projects, including but not limited to the following: 5 (i) the project must be designed to provide low-cost space and support 6 services to incubator tenants, coordination with other sources of 7 assistance and flexible leasing arrangements for tenants; 8 (ii) the project sponsors must provide a management plan and a busi- 9 ness plan for operating the incubator satisfactory to the corporation; 10 and 11 (iii) the project gives preference for incubator space and assistance 12 to minority- [and women-owned], women- and veteran-owned businesses 13 which currently receive, or have received, assistance from the corpo- 14 ration pursuant to this section and to incubator projects proposed to be 15 located in economically distressed areas. 16 (8) Minority- [and women-owned], women- and veteran-owned business 17 technical assistance program. (a) The corporation shall establish a 18 comprehensive technical assistance program within the minority [and], 19 women and veteran business development office, in cooperation with the 20 department of economic development's division of minority- [and women-21business], women- and veteran-business development established pursuant 22 to article four-A of the economic development law, to provide technical 23 assistance to minority- [and women-owned], women- and veteran-owned 24 business enterprises and to prospective minority- [and women-business], 25 women- and veteran-business entrepreneurs through third party service 26 providers, which assistance shall include, but not be limited to: (i) 27 technical assistance in development and execution of business plans, 28 including the formation of, acquisition of, management of, or diversifi- 29 cation of a minority- [or women-owned], women- or veteran-owned business 30 enterprise; (ii) technical assistance with applications for obtaining 31 funds from public and private financing sources; (iii) technical assist- 32 ance in the development of a working capital budget; (iv) referrals to 33 other providers of technical assistance to minority- [and women-owned], 34 women- and veteran-owned businesses and minority [and], women and veter- 35 an entrepreneurs, where appropriate, including the entrepreneurial 36 assistance program established pursuant to article nine of the economic 37 development law; and (v) technical assistance through education programs 38 directed primarily at women , veteran and minority entrepreneurs. 39 (b) Technical assistance may be provided through direct corporate 40 support, through grants to or contracts with service providers or 41 governmental entities, and minority- [and women-owned], women- and 42 veteran-owned business enterprises and individuals. 43 (9) Priorities. The corporation shall give priority to applications 44 for assistance pursuant to this section in which the business seeking 45 such assistance indicates a commitment to first consider persons eligi- 46 ble to participate in federal job training partnership act (P.L. 97-300) 47 programs. 48 (10) Non-application of certain provisions. The provisions of section 49 ten and subdivision two of section sixteen of this act shall not apply 50 to assistance or projects authorized pursuant to this section. 51 (11) Rules and regulations. The corporation shall, assisted by the 52 commissioner of economic development and in consultation with the 53 department of economic development, promulgate rules and regulations in 54 accordance with the state administrative procedure act. Such rules and 55 regulations shall be consistent with the program plan required by subdi- 56 vision nineteen of section one hundred of the economic development law.A. 3971 68 1 No funds shall be disbursed under this program until such rules and 2 regulations have been reviewed and approved by the corporation. All 3 assistance and projects funded under this program shall be funded in 4 accordance with the rules and regulations in effect on the date the 5 completed application for such assistance shall be received by the 6 corporation. 7 (12) Minority [and], women and veteran business development and lend- 8 ing account. Notwithstanding any provision of law to the contrary, the 9 corporation shall establish within the treasury of the corporation a 10 minority [and], women and veteran business development and lending 11 account, and shall pay into such account any moneys which may be made 12 available to the corporation for this purpose from any source including, 13 but not limited to, moneys appropriated by the state and any repayment 14 of principal and interest on loans made by the corporation pursuant to 15 the minority- [and women-owned], women- and veteran-owned business 16 development and lending program. Funds in the minority [and], women and 17 veteran business development and lending account, including funds from 18 the repayment of principal and interest on loans made by the corpo- 19 ration, may be used for any form of assistance authorized hereunder. The 20 amounts deposited in the minority [and], women and veteran business 21 development and lending account may not be interchanged with any other 22 account, but may be commingled with any other account for investment 23 purposes. All loans disbursed by the corporation shall be repaid into 24 the account. The corporation shall enter into a written agreement with 25 the director of the budget for repayment, to the state comptroller to 26 the credit of the capital projects fund, of all moneys in the account 27 after a period of time to be determined by the corporation and the 28 director of the budget. The corporation shall transfer to the minority 29 [and], women and veteran business development and lending account: all 30 moneys appropriated or reappropriated by New York state for the minority 31 [and], women and veteran revolving loan trust fund that have not been 32 committed prior to the effective date of the appropriation for the 33 program in the current fiscal year, or become uncommitted subsequent to 34 the effective date of the program's appropriation for the current fiscal 35 year; and all repayments of principal and interest on loans made by the 36 corporation which are currently on deposit in, or payable to, the minor- 37 ity [and], women and veteran business development and lending account. 38 (13) Standardization. The corporation shall streamline the review and 39 approval process for projects and wherever possible standardize all 40 relevant attendant documentation and legal documents. 41 (14) Approval cycle. The corporation shall approve eligible loans or 42 grants on at least a four-month cycle and shall give priority consider- 43 ation to the comparative degree of economic distress within the areas in 44 which the project is located. Other factors to be considered by the 45 corporation shall include the impact of the project on the employment 46 and economic condition of the community and the financial feasibility of 47 the project. 48 (15) Repayment. Notwithstanding the provisions of section forty-a of 49 the state finance law and any other general or special law, no written 50 agreement under this program shall require repayment at any time or on 51 any terms inconsistent with the provisions of this act or the New York 52 state project finance agency act; except, however, that the corporation 53 may make grants to projects using funds appropriated for this purpose 54 and that the repayment provision may not apply to such grants. 55 (16) Reports. The chairman of the corporation shall submit to the 56 director of the budget, the speaker of the assembly and the temporaryA. 3971 69 1 president of the senate an evaluation of the effectiveness of the 2 program prepared by an entity independent of the corporation. The corpo- 3 ration shall select the program evaluator through a request for proposal 4 process. Such evaluation shall determine whether the assistance provided 5 has enhanced the economic condition of assisted companies or communi- 6 ties, and shall make recommendation for improvements which would make 7 the program more effective. Such evaluation shall be submitted by 8 September first, nineteen hundred ninety-five and September first every 9 two years thereafter. 10 § 44. Subparagraphs (viii) and (x) of paragraph (e) of subdivision 7 11 of section 16-d of section 1 of chapter 174 of the laws of 1968, consti- 12 tuting the New York state urban development corporation act, as added by 13 chapter 169 of the laws of 1994, are amended to read as follows: 14 (viii) export, marketing, procurement and subcontracting assistance to 15 small and medium-sized industrial firms, including minority- [and16women-owned], women- and veteran-owned businesses, and to flexible manu- 17 facturing networks, and programs to assist regional and multi-county 18 business marketing and procurement programs; 19 (x) business planning, management assistance and counseling, and 20 financial packaging assistance to small and medium-sized industrial 21 firms, including minority- [and women-owned], women- and veteran-owned 22 businesses, flexible manufacturing networks, and new enterprises and 23 small businesses, including the establishment of neighborhood-based 24 business service centers designed to deliver comprehensive technical 25 assistance to new and small businesses in specific communities and 26 neighborhoods; 27 § 45. Subparagraph (ii) of paragraph (h) of subdivision 7 of section 28 16-d of section 1 of chapter 174 of the laws of 1968, constituting the 29 New York state urban development corporation act, as added by chapter 30 169 of the laws of 1994, is amended to read as follows: 31 (ii) support for business development projects of women, members of 32 minority groups, veterans or dislocated workers; 33 § 46. Clause (B) of subparagraph (i) of paragraph (h) of subdivision 8 34 of section 16-d of section 1 of chapter 174 of the laws of 1968, consti- 35 tuting the New York state urban development corporation act, as added by 36 chapter 169 of the laws of 1994 and as further amended by section 15 of 37 part GG of chapter 63 of the laws of 2000, is amended to read as 38 follows: 39 (B) community based local development corporations, industrial devel- 40 opment agencies, or other not-for-profit entities which serve a munici- 41 pality in which an empire zone has been established and which, as one of 42 their primary purposes, provide services and assistance to business 43 enterprises located or to be located in such empire zone, including 44 minority- [and women-owned], women- and veteran-owned businesses; 45 § 47. Paragraph (b) of subdivision 14 of section 16-d of section 1 of 46 chapter 174 of the laws of 1968, constituting the New York state urban 47 development corporation act, as added by chapter 169 of the laws of 48 1994, is amended to read as follows: 49 (b) Submit to the director of the budget, the speaker of the assembly 50 and the temporary president of the senate an evaluation of the effec- 51 tiveness of the urban and community development program prepared by an 52 entity independent of the corporation. The corporation shall select the 53 program evaluator through a request for proposal process. Such evalu- 54 ation shall discuss the variety and types of programs supported by the 55 corporation under this program; and, as appropriate, the extent to which 56 the program has served to create and maintain jobs; the extent to whichA. 3971 70 1 the program has helped to increase the vitality of local communities; 2 the extent to which the program is coordinated with other related state 3 and local assistance programs; the extent to which the program serves 4 minorities [and], women and veterans; the extent to which the program 5 serves urban and rural areas; the extent to which the program serves 6 economically distressed and highly distressed areas; the extent to which 7 the program has helped to increase the capacity of local governments and 8 organizations to undertake economic development activities; and such 9 other components as the commissioner of economic development shall deem 10 appropriate; and shall make recommendations for improvements which would 11 make the program more effective. Such evaluation shall be submitted by 12 September first, nineteen hundred ninety-five and by September first 13 every two years thereafter. 14 § 48. Paragraph (h) of subdivision 1 of section 16-e of section 1 of 15 chapter 174 of the laws of 1968, constituting the New York state urban 16 development corporation act, as added by chapter 169 of the laws of 17 1994, is amended to read as follows: 18 (h) "Revolving loan fund account grants" shall include: (i) grants to 19 provide the local match for federally funded community-based loan funds; 20 (ii) grants to capitalize and recapitalize regional revolving loan trust 21 fund accounts pursuant to section sixteen-a of this act; and (iii) 22 grants to recapitalize minority [and], women and veteran revolving loan 23 trust fund accounts established pursuant to section sixteen-c of this 24 act. 25 § 49. Subparagraph (i) of paragraph (c) of subdivision 5 of section 26 16-e of section 1 of chapter 174 of the laws of 1968, constituting the 27 New York state urban development corporation act, as added by chapter 28 169 of the laws of 1994, is amended to read as follows: 29 (i) business development by women, minorities, veterans or unemployed 30 persons; 31 § 50. Subparagraphs (vi) and (ix) of paragraph (c) of subdivision 10 32 of section 16-e of section 1 of chapter 174 of the laws of 1968, consti- 33 tuting the New York state urban development corporation act, as added by 34 chapter 169 of the laws of 1994, are amended to read as follows: 35 (vi) management and procurement assistance to small business, includ- 36 ing minority- [and women-owned], women- and veteran-owned businesses; 37 (ix) assistance to expand the capacity of existing entities adminis- 38 tering minority [and], women and veteran revolving loan funds to deliver 39 services; 40 § 51. Subdivision 13 of section 16-e of section 1 of chapter 174 of 41 the laws of 1968, constituting the New York state urban development 42 corporation act, as added by chapter 169 of the laws of 1994, is amended 43 to read as follows: 44 (13) Regional loan fund account grants. Assistance from this program 45 may be provided for grants of up to five hundred thousand dollars to 46 capitalize, and up to two hundred thousand dollars to recapitalize, 47 regional revolving loan trust fund accounts established pursuant to 48 section sixteen-a of this act and up to two hundred thousand dollars to 49 recapitalize minority [and], women and veteran revolving loan trust fund 50 accounts established pursuant to section sixteen-c of this act; and up 51 to two hundred thousand dollars to provide the local match for appropri- 52 ately federally-financed community-based loan funds. 53 § 52. Paragraph (d) of subdivision 18 of section 16-e of section 1 of 54 chapter 174 of the laws of 1968, constituting the New York state urban 55 development corporation act, as added by chapter 169 of the laws of 56 1994, is amended to read as follows:A. 3971 71 1 (d) The participation of minority- [and women-owned], women- and 2 veteran-owned businesses; 3 § 53. Subdivision 1 of section 16-f of section 1 of chapter 174 of 4 the laws of 1968, constituting the New York state urban development 5 corporation act, as added by chapter 169 of the laws of 1994, is amended 6 to read as follows: 7 (1) Program created. There is hereby created a state bonding guaran- 8 tee assistance program to enable small businesses, and minority-owned 9 [and], women-owned and veteran-owned business enterprises, certified as 10 a minority-owned [or], women-owned or veteran-owned business enterprise 11 pursuant to article fifteen-A of the executive law, to meet payment 12 and/or performance bonding requirements by providing additional finan- 13 cial backing needed to induce a surety company to issue a bond for 14 construction projects, including but not limited to, government spon- 15 sored, transportation related construction projects. For purposes of 16 this section, the term small business shall have the same meaning as 17 defined in section one hundred thirty-one of the economic development 18 law. Such program shall give preference to minority-owned [and], women- 19 owned and veteran-owned business enterprises and shall: 20 (a) Make available funds to surety companies providing bonds to small 21 businesses and [minority- owned or] minority-owned, women-owned or 22 veteran-owned business enterprises in an amount equal to a percentage 23 not to exceed fifty percent of the face value of bonds issued by the 24 surety. 25 (b) Provide technical assistance in completing bonding applications 26 for small businesses and minority-owned [or], women-owned or veteran- 27 owned business enterprises seeking to become eligible for bonding in 28 preparation for bidding on construction projects, including transporta- 29 tion related projects. The corporation shall provide and may refer such 30 businesses to the department of economic development for technical 31 assistance as such businesses may need, including but not limited to: 32 (i) a review of the applicants' market and business competitive strat- 33 egy; 34 (ii) consultation and review of the development and planned implemen- 35 tation of a working capital budget; 36 (iii) assistance with applications for the receipt of funding from 37 other financial sources and providing referrals to other appropriate 38 public and private sources of financing; and 39 (iv) assistance from the regional offices of the department of econom- 40 ic development, pursuant to article eleven of the economic development 41 law, and the entrepreneurial assistance program, pursuant to article 42 nine of such law, and any other such program receiving state funds from 43 this act or the department of economic development or any other state 44 agency that is intended to provide technical assistance to small busi- 45 nesses and minority-owned [and], women-owned and veteran-owned small 46 business enterprises. 47 § 54. Intentionally omitted. 48 § 55. Subparagraph (i) of paragraph (c) of subdivision 2 of section 49 16-k of section 1 of chapter 174 of the laws of 1968, constituting the 50 New York state urban development corporation act, as amended by chapter 51 103 of the laws of 2011, is amended to read as follows: 52 (i) provide a plan to the corporation or its agent for the marketing 53 of the capital access program to small businesses, including those in 54 highly distressed areas and to minority- [and], women-owned and veter- 55 an-owned businesses, with appropriate lending objectives identified by 56 the financial institution for such areas and businesses;A. 3971 72 1 § 56. Subparagraph (i) of paragraph (e) of subdivision 2 of section 2 16-l of section 1 of chapter 174 of the laws of 1968, constituting the 3 New York state urban development corporation act, as added by chapter 4 471 of the laws of 2001, is amended to read as follows: 5 (i) innovative activities and programs designed to encourage value-ad- 6 ded small business development and growth in rural areas, including 7 cottage and crafts industries; group marketing of local products; 8 women-owned industries; veteran-owned industries; natural resources 9 development; and tourism. Such activities and programs shall also 10 include projects pertaining to agriculture and agribusiness development 11 to stimulate the development and implementation of new and alternative 12 production, processing, storage, distribution and marketing technologies 13 and improvements for New York food, agricultural and forest products. 14 Projects promoting strengthened farm management practices shall also be 15 eligible for assistance; 16 § 57. Paragraph (g) of subdivision 1 of section 16-m of section 1 of 17 chapter 174 of the laws of 1968, constituting the New York state urban 18 development corporation act, as added by section 1 of part N of chapter 19 84 of the laws of 2002, is amended to read as follows: 20 (g) Assistance to local or regional organizations to facilitate 21 financing for small- and medium-sized business, including minority- 22 [and], women-owned and veteran-owned business enterprises through flexi- 23 ble financing programs, including, but not limited to, loan loss reserve 24 and revolving loan programs, working capital loans, working capital loan 25 guarantees, or other flexible financing programs that leverage tradi- 26 tional financing; 27 § 58. Subparagraph (i) of paragraph (e) of subdivision 7 of section 28 16-o of section 1 of chapter 174 of the laws of 1968, constituting the 29 New York state urban development corporation act, as added by chapter 30 186 of the laws of 2007, is amended to read as follows: 31 (i) provide jobs for low income people or are owned by low income 32 people, women, veterans or minority entrepreneurs; or 33 § 59. Paragraph (b) of subdivision 1 of section 16-q of section 1 of 34 chapter 174 of the laws of 1968, constituting the New York state urban 35 development corporation act, as added by section 2 of part QQ of chapter 36 57 of the laws of 2008, is amended to read as follows: 37 (b) Support for the attraction or expansion of a business, including, 38 but not limited to, those primarily engaged in activities identified as 39 a strategic industry, and minority-owned [and], women-owned and veter- 40 an-owned business enterprises as defined by subdivisions (c) and (g) of 41 section nine hundred fifty-seven of the general municipal law. 42 § 60. Subdivisions 3 and 11 of section 16-t of section 1 of chapter 43 174 of the laws of 1968, constituting the New York state urban develop- 44 ment corporation act, subdivision 3 as amended by chapter 254 of the 45 laws of 2016 and subdivision 11 as amended by section 1 of part II of 46 chapter 59 of the laws of 2013, are amended to read as follows: 47 3. Program loans to small businesses and micro-businesses shall be 48 targeted and marketed to [minority and women-owned] minority-, women- 49 and veteran-owned enterprises and other small businesses and micro-busi- 50 nesses that are having difficulty accessing traditional credit markets. 51 Program loans to small businesses and micro-businesses shall be used for 52 the creation and retention of jobs, as defined by the corporation, 53 including: (a) working capital; (b) the acquisition and/or improvement 54 of real property; (c) the acquisition of machinery and equipment, prop- 55 erty or improvement; or (d) the refinancing of debt obligations. There 56 shall be two categories of loans to small businesses and micro-business-A. 3971 73 1 es: a micro loan that shall have a principal amount that is less than 2 twenty-five thousand dollars and a regular loan that shall have a prin- 3 cipal amount not less than twenty-five thousand dollars. Prior to 4 receiving program funds, the lending organization must certify to the 5 corporation that such loan complies with this section and rules and 6 regulations promulgated for the program and that the lending organiza- 7 tion has performed its obligations pursuant to and is in compliance with 8 this section, the program rules and regulations and all agreements 9 entered into between the corporation and the lending organization. The 10 program funds amount used by the lending organization to fund a program 11 applicant loan shall not be more than fifty percent of the principal 12 amount of such loan. The program funds amount used by the lending organ- 13 ization to fund a program applicant loan shall not be greater than one 14 hundred and twenty-five thousand dollars. Minority- [and women-owned], 15 women- and veteran-owned business enterprises and other small businesses 16 or micro-businesses who access such program loans under this subdivision 17 shall not be precluded from accessing such short-term financing loans 18 provided under subdivision eleven of this section. 19 11. Notwithstanding anything to the contrary in this section, the 20 corporation may provide at least five hundred thousand dollars in 21 program funds pursuant to this section to lending organizations for the 22 purpose of making short-term financing available to minority- [and23women-owned], women- and veteran-owned business enterprises and other 24 small businesses performing contracts to provide construction or profes- 25 sional services for state procurement purposes. Such loans shall be used 26 to underwrite the cost of labor, materials, and equipment directly asso- 27 ciated with (1) the contract being financed or (2) a contract that has 28 been satisfied for which the business is awaiting payment from the 29 state. The program funds amount used by the lending organization to fund 30 a program applicant loan shall not be more than eighty percent of the 31 principal amount of such loan. The program funds amount used by the 32 lending organization to fund a program applicant loan shall not be 33 greater than one hundred twenty-five thousand dollars. Minority- [and34women-owned], women- and veteran-owned business enterprises and other 35 small businesses who access such short-term financing loans under this 36 subdivision shall not be precluded from accessing such program loans 37 provided under subdivision three of this section. 38 § 61. Subparagraph (xvi) of paragraph (b) of subdivision 2 of section 39 16-v of section 1 of chapter 174 of the laws of 1968, constituting the 40 New York state urban development corporation act, as added by section 1 41 of part C of chapter 59 of the laws of 2013, is amended to read as 42 follows: 43 (xvi) a plan to recruit minority- [and women-owned], women- and veter- 44 an-owned businesses for location and participation with the incubator 45 program. 46 § 62. Paragraph 1 of subdivision (c) of section 30 of section 1 of 47 chapter 174 of the laws of 1968, constituting the New York state urban 48 development corporation act, as amended by chapter 732 of the laws of 49 1990, is amended to read as follows: 50 (1) In addition to any other requirements imposed by the act or other- 51 wise regarding evaluations of programs administered by the corporation, 52 each evaluation shall include an analysis of the job creation effect of 53 such program, the number of small businesses that received assistance, 54 the number of [minority and women-owned] minority-, women- and veteran- 55 owned firms that received assistance, the number of projects undertakenA. 3971 74 1 in distressed and highly distressed communities, and, if applicable, the 2 repayment experience of borrowers of funds from the corporation. 3 § 63. Paragraph 2 of subdivision (e) of section 30-a of section 1 of 4 chapter 174 of the laws of 1968, constituting the New York state urban 5 development corporation act, as added by section 2 of part M1 of chapter 6 62 of the laws of 2003, is amended to read as follows: 7 (2) require projects to be financed out of the empire state economic 8 development fund be approved generally in amounts which are proportional 9 to amounts appropriated for the urban and community development program, 10 and the [minority and women-owned] minority-, women and veteran-owned 11 business development and lending program; 12 § 64. Section 38 of section 1 of chapter 174 of the laws of 1968, 13 constituting the New York state urban development corporation act, as 14 amended by chapter 169 of the laws of 1994, is amended to read as 15 follows: 16 § 38. Small business and minority-owned [and], women-owned and veter- 17 an-owned business enterprises transportation capital assistance and 18 guaranteed loan program. 1. To provide financial assistance to small 19 business and minority-owned [and], women-owned and veteran-owned busi- 20 ness enterprises engaged in government sponsored, transportation related 21 construction projects, the corporation shall establish a small business 22 and minority-owned [and], women-owned and veteran-owned business enter- 23 prise transportation capital assistance revolving loan fund which shall 24 provide loans or loan guarantees to small business and minority-owned 25 [and], women-owned and veteran-owned business enterprises. For purposes 26 of this section: (a) the term small business shall have the same meaning 27 as defined in section one hundred thirty-one of the economic development 28 law and (b) the term project shall mean a project of state agency or 29 authority that sponsors transportation related construction projects and 30 participates in this program and any definition of project contained 31 elsewhere in this act shall not apply. 32 2. Such loans, or loan guarantees for loans made by federally and 33 state chartered credit institutions, financial institutions, and feder- 34 ally insured banking organizations to small business and minority-owned 35 [and], women-owned and veteran-owned business enterprises, shall be used 36 to (a) enable such businesses, through the acquisition, leasing or 37 improvement of real property, machinery or equipment, or through the 38 provision of working capital to secure service, commodity or 39 construction contracts; (b) restore working capital to such businesses 40 which have successfully completed work under a contract but whose 41 liquidity has been adversely affected by problems resulting from delayed 42 payments; and (c) ensure the completion of the work associated with a 43 governmental service, commodity or construction contract in order to 44 prevent default on such contract. 45 3. (a) To be eligible for such loans or loan guarantees (i) a minori- 46 ty-owned [or], women-owned or veteran-owned business enterprise must be 47 certified as a minority-owned [or], women-owned or veteran-owned busi- 48 ness enterprise pursuant to article 15-A of the executive law; and (ii) 49 a small business or a minority-owned [or], women-owned or veteran-owned 50 business enterprise shall have a contract or sub-contract to provide 51 goods or services related to a government sponsored, transportation 52 related construction project. 53 (b) Only such business enterprises referred to the corporation by a 54 written application of a state agency or authority that sponsors trans- 55 portation related construction projects shall be eligible for program 56 assistance. Such assistance shall be provided to such an enterprise onlyA. 3971 75 1 in connection with its performance as a contractor or sub-contractor on 2 a specific transportation related project of the referring agency or 3 authority. In order for such an agency or authority to refer such enter- 4 prises to the corporation, such agency or authority shall enter into a 5 master agreement with the corporation covering procedures and require- 6 ments for providing program assistance. The corporation shall determine 7 whether or not to approve such an agency's or authority's written appli- 8 cation for program assistance to such a business within twenty business 9 days of the corporation's receipt of such application. If it approves 10 the application, the corporation will provide assistance pursuant to the 11 applicable master agreement. 12 4. The corporation shall give preference to minority-owned [and], 13 women-owned and veteran-owned business enterprises in making such loans 14 and loan guarantees and shall establish such other criteria as it may 15 deem necessary for this program and for any required amount that shall 16 be held in reserve for any guarantees made under this program. 17 5. Notwithstanding any inconsistent provision of law, general, special 18 or local, including pursuant to capital projects budget appropriations 19 or reappropriations, where applicable, the corporation is hereby author- 20 ized to enter into such agreements as may be necessary for the operation 21 and administration of a small business and minority-owned [and], women- 22 owned and veteran-owned business enterprises transportation capital 23 assistance and guaranteed loan program. 24 6. The corporation is authorized to establish a revolving loan fund 25 account into which funds may be received and from which funds may be 26 expended for the aforementioned purposes. 27 7. The provisions of section ten and subdivision two of section 28 sixteen of this act shall not apply to assistance provided under this 29 program. 30 § 65. Paragraph (a) of subdivision 1 of section 9-a of section 1 of 31 chapter 359 of the laws of 1968, constituting the facilities development 32 corporation act, as added by chapter 58 of the laws of 1987, is amended 33 to read as follows: 34 (a) The contractor will not discriminate against employees or appli- 35 cants for employment because of race, creed, color, national origin, 36 sex, age, disability, or marital status, and will undertake or continue 37 existing programs of affirmative action to ensure that minority group 38 persons [and], women and veterans are afforded equal opportunity without 39 discrimination. Such programs shall include, but not be limited to, 40 recruitment, employment, job assignment, promotion, upgrading, demotion, 41 transfer, layoff, termination, rates of pay or other forms of compen- 42 sation, and selections for training or retraining, including apprentice- 43 ship and on-the-job training. 44 § 66. Section 9-b of section 1 of chapter 359 of the laws of 1968, 45 constituting the facilities development corporation act, as added by 46 chapter 58 of the laws of 1987, is amended to read as follows: 47 § 9-b. Minority [and women-owned], women and veteran-owned business 48 enterprise program. 1. (a) Minority [and women-owned], women and veter- 49 an-owned business enterprises shall be given the opportunity for mean- 50 ingful participation in all contracts executed by the corporation pursu- 51 ant to the provisions of this act other than contracts the cost of which 52 is borne solely by a municipality or municipalities. The corporation 53 shall establish measures and procedures to secure meaningful partic- 54 ipation and identify those contracts and items of work for which minori- 55 ty [and women-owned], women and veteran-owned business enterprises may 56 best bid to actively and affirmatively promote and assist their partic-A. 3971 76 1 ipation in the projects, so as to facilitate the award of a fair share 2 of contracts to such enterprises; provided, however, that nothing in 3 this act shall be construed to limit the ability of the corporation to 4 assure that qualified minority [and women-owned], women and veteran- 5 owned business enterprises may participate in the program. For purposes 6 hereof, minority business enterprise shall mean any business enterprise 7 which is at least fifty-one per centum owned by, or in the case of a 8 publicly owned business, at least fifty-one per centum of the stock of 9 which is owned by citizens or permanent resident aliens who are Black, 10 Hispanic, Asian or American Indian, Pacific Islander or Alaskan natives 11 and such ownership interest is real, substantial and continuing and have 12 the authority to independently control the day to day business decisions 13 of the entity for at least one year; and women-owned business enterprise 14 shall mean any business enterprise which is at least fifty-one per 15 centum owned by, or in the case of a publicly owned business, at least 16 fifty-one per centum of the stock of which is owned by citizens or 17 permanent resident aliens who are women, and such ownership interest is 18 real, substantial and continuing and have the authority to independently 19 control the day to day business decisions of the entity for at least one 20 year; and veteran-owned business enterprise shall mean any business 21 enterprise which is at least fifty-one per centum owned by, or in the 22 case of a publicly owned business, at least fifty-one per centum of the 23 stock of which is owned by citizens or permanent resident aliens who are 24 veterans, and such ownership interest is real, substantial and continu- 25 ing and have the authority to independently control the day to day busi- 26 ness decisions of the entity for at least one year. 27 The provisions of this paragraph shall not be construed to limit the 28 ability of any minority [or women-owned], women or veteran-owned busi- 29 ness enterprise to bid on any contract. 30 (b) In the implementation of this section, the corporation shall 31 consider compliance by any contractor with the requirements of any 32 federal, state, or local law concerning minority [and women-owned], 33 women or veteran-owned business enterprises, which may effectuate the 34 requirements of this section. If the corporation determines that by 35 virtue of the imposition of the requirements of any such law, in respect 36 to contracts, the provisions thereof duplicate or conflict with this 37 section, the corporation may waive the applicability of this section to 38 the extent of such duplication or conflict. 39 (c) Nothing in this section shall be deemed to require that overall 40 state and federal requirements for participation of minority [and41women-owned], women and veteran-owned business enterprises in programs 42 authorized under this act be applied without regard to local circum- 43 stances to all projects or in all communities. 44 2. In order to implement the requirements and objectives of this 45 section, the corporation shall establish procedures to monitor the 46 contractors' compliance with provisions hereof, provide assistance in 47 obtaining competing qualified minority [and women-owned], women and 48 veteran-owned business enterprises to perform contracts proposed to be 49 awarded, and take other appropriate measures to improve the access of 50 minority [and women-owned], women and veteran-owned business enterprises 51 to these contracts. 52 § 67. Paragraph a of subdivision 1 of section 16-a of section 1 of 53 chapter 392 of the laws of 1973, constituting the New York state medical 54 care facilities finance agency act, as added by chapter 58 of the laws 55 of 1987, is amended to read as follows:A. 3971 77 1 a. The contractor will not discriminate against employees or appli- 2 cants for employment because of race, creed, color, national origin, 3 sex, age, disability, or marital status, and will undertake or continue 4 existing programs of affirmative action to ensure that minority group 5 persons [and], women and veterans are afforded equal opportunity without 6 discrimination. Such programs shall include, but not be limited to, 7 recruitment, employment, job assignment, promotion, upgrading, demotion, 8 transfer, layoff, termination, rates of pay or other forms of compen- 9 sation, and selections for training or retraining, including apprentice- 10 ship and on-the-job training. 11 § 68. Section 16-b of section 1 of chapter 392 of the laws of 1973, 12 constituting the New York state medical care facilities finance agency 13 act, as added by chapter 58 of the laws of 1987, is amended to read as 14 follows: 15 § 16-b. Minority [and women-owned], women and veteran-owned business 16 enterprise program. 1. a. In the performance of projects pursuant to 17 this act minority [and women-owned], women and veteran-owned business 18 enterprises shall be given the opportunity for meaningful participation. 19 The agency shall establish measures and procedures to secure meaningful 20 participation and identify those contracts and items of work for which 21 minority [and women-owned], women and veteran-owned business enterprises 22 may best bid to actively and affirmatively promote and assist their 23 participation in the projects, so as to facilitate the award of a fair 24 share of contracts to such enterprises; provided, however, that nothing 25 in this act shall be construed to limit the ability of the agency to 26 assure that qualified minority [and women-owned], women and veteran- 27 owned business enterprises may participate in the program. For purposes 28 hereof, minority business enterprise shall mean any business enterprise 29 which is at least fifty-one per centum owned by, or in the case of a 30 publicly owned business, at least fifty-one per centum of the stock of 31 which is owned by citizens or permanent resident aliens who are Black, 32 Hispanic, Asian or American Indian, Pacific Islander or Alaskan natives 33 and such ownership interest is real, substantial and continuing and have 34 the authority to independently control the day to day business decisions 35 of the entity for at least one year; and women-owned business enterprise 36 shall mean any business enterprise which is at least fifty-one per 37 centum owned by, or in the case of a publicly owned business, at least 38 fifty-one per centum of the stock of which is owned by citizens or 39 permanent resident aliens who are women, and such ownership interest is 40 real, substantial and continuing and have the authority to independently 41 control the day to day business decisions of the entity for at least one 42 year; and veteran-owned business enterprise shall mean any business 43 enterprise which is at least fifty-one per centum owned by, or in the 44 case of a publicly owned business, at least fifty-one per centum of the 45 stock of which is owned by citizens or permanent resident aliens who are 46 veterans and such ownership interest is real, substantial and continuing 47 and have the authority to independently control the day to day business 48 decisions of the entity for at least one year. 49 The provisions of this paragraph shall not be construed to limit the 50 ability of any minority [or women-owned], women or veteran-owned busi- 51 ness enterprise to bid on any contract. 52 b. In the implementation of this section, the agency shall consider 53 compliance by any contractor with the requirements of any federal, 54 state, or local law concerning minority [and women-owned], women and 55 veteran-owned business enterprises, which may effectuate the require- 56 ments of this section. If the department or the office determines thatA. 3971 78 1 by virtue of the imposition of the requirements of any such law, in 2 respect to contracts, the provisions thereof duplicate or conflict with 3 this act, the agency may waive the applicability of this section to the 4 extent of such duplication or conflict. 5 c. Nothing in this section shall be deemed to require that overall 6 state and federal requirements for participation of minority [and7women-owned], women and veteran-owned business enterprises in programs 8 authorized under this act be applied without regard to local circum- 9 stances to all projects or in all communities. 10 2. In order to implement the requirements and objectives of this 11 section, the agency shall establish procedures to monitor the contrac- 12 tors' compliance with provisions hereof, provide assistance in obtaining 13 competing qualified minority [and women-owned], women and veteran-owned 14 business enterprises to perform contracts proposed to be awarded, and 15 take other appropriate measures to improve the access of minority [and16women-owned], women and veteran-owned business enterprises to these 17 contracts. 18 § 69. This act shall take effect on the sixtieth day after it shall 19 have become a law; provided however, 20 a. the amendments to article 15-A of the executive law made by 21 sections one-a, two, three, three-a, four, five, six, seven, eight, 22 nine, ten, eleven, twelve and thirteen of this act shall not affect the 23 expiration of such article and shall expire therewith; 24 b. that if local law 113 for the year 2016 shall not have taken effect 25 on or before such date, then the amendments to paragraphs (14) and (15) 26 of subdivision e of section 6-129 of the administrative code of the city 27 of New York made by section thirty-one of this act shall take effect on 28 the same date and in the same manner as such local law for the year 2016 29 takes effect; 30 c. the amendments to the second undesignated paragraph of subdivision 31 1 of section 12 of section 1 of chapter 174 of the laws of 1968, consti- 32 tuting the New York state urban development corporation act, made by 33 section forty-one of this act shall not affect the expiration and repeal 34 of such paragraph and shall be deemed to expire and be repealed there- 35 with; and 36 d. the amendments to paragraph (g) of subdivision 1 of section 16-m of 37 section 1 of chapter 179 of the laws of 1968, constituting the New York 38 state urban development corporation act, made by section fifty-seven of 39 this act shall not affect the expiration of such paragraph and shall be 40 deemed to expire therewith.
