STATE OF NEW YORK
________________________________________________________________________
9259--A
IN ASSEMBLY
February 9, 2022
___________
Introduced by M. of A. PEOPLES-STOKES, BICHOTTE HERMELYN, COOK, HYNDMAN,
WALKER, SEAWRIGHT, MEEKS -- Multi-Sponsored by -- M. of A. GALEF,
SIMON -- read once and referred to the Committee on Governmental Oper-
ations -- reported and referred to the Committee on Codes -- reported
and referred to the Committee on Ways and Means -- committee
discharged, bill amended, ordered reprinted as amended and recommitted
to said committee
AN ACT to amend the executive law and the state finance law, in relation
to minority and women-owned business enterprises post completion
certification, duties of the director and creating the minority and
women-owned business enterprise fund
The People of the State of New York, represented in Senate and Assem-
bly, do enact as follows:
1 Section 1. The executive law is amended by adding a new section 314-a
2 to read as follows:
3 § 314-a. Post completion certification. The director, in collaboration
4 with the division of minority and women's business development and the
5 department of small business services, shall develop the following
6 standardized certification forms that must be completed under penalty of
7 perjury prior to the prime contractor being paid:
8 1. certification from a representative of the prime contractor that
9 the minority or women-owned business enterprise in fact performed the
10 services or provided the materials that they were contracted to perform
11 or provide; and
12 2. certification from a representative of the minority or women-owned
13 business enterprise that they in fact performed the services or provided
14 the materials that they were contracted to perform or provide.
15 § 2. Paragraphs (f) and (j) of subdivision 3 of section 311 of the
16 executive law, paragraph (f) as amended by chapter 96 of the laws of
17 2019 and paragraph (j) as amended by chapter 825 of the laws of 2021,
18 are amended and three new paragraphs (l), (m) and (n) are added to read
19 as follows:
20 (f) to prepare and update, no less than annually, a directory of
21 certified minority and women-owned business enterprises which shall,
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD03040-04-2
A. 9259--A 2
1 wherever practicable, be divided into categories of labor, services,
2 supplies, equipment, materials and recognized construction trades and
3 which shall indicate areas or locations of the state where such enter-
4 prises are available to perform services, and to use this information to
5 create an internet based, searchable, centralized state registry detail-
6 ing certifications, waivers, and all documents submitted pertaining to
7 certification or denial of certification, or compliance with goals for
8 utilization of minority and women-owned business enterprises;
9 (j) to make publicly available records of all waivers of compliance
10 reported pursuant to paragraph (b) of subdivision six of section three
11 hundred thirteen of this article on the division's website; [and]
12 (l) to perform inspections of minority or women-owned business's place
13 of business, warehouse or storage facility to confirm the existence of a
14 workforce, equipment and supplies;
15 (m) to perform inspections of financial records of minority or women-
16 owned business enterprises to ensure such enterprises are in compliance
17 with applicable laws; and
18 (n) to ensure the protection of individuals who report suspected
19 violations of this article and applicable laws related to minority and
20 women-owned business enterprises.
21 § 3. Subdivision 1 of section 314 of the executive law, as amended by
22 chapter 96 of the laws of 2019, is amended to read as follows:
23 1. The director shall promulgate rules and regulations providing for
24 the establishment of a statewide certification program including rules
25 and regulations governing the approval, denial or revocation of any such
26 certification including revocations for convictions for fraudulently
27 misrepresenting the status of minority or women-owned business enter-
28 prises. Such rules shall set forth the maximum personal net worth of a
29 minority group member or woman who may be relied upon to certify a busi-
30 ness as a minority-owned business enterprise or women-owned business
31 enterprise with a minimum personal net worth threshold of fifteen
32 million dollars, and may thereafter establish different maximum levels
33 of personal net worth for minority group members and women on an indus-
34 try-by-industry basis for such industries as the director shall deter-
35 mine. Such regulations relating to the classification of the industry-
36 by-industry personal net worth thresholds above the fifteen million
37 dollar threshold shall consider the personal net worth of the owners of
38 both certified and non-certified businesses, including but not limited
39 to, prime contractors and subcontractors, as well as any such other
40 factors needed to establish such thresholds. Such rules and regulations
41 shall include, but not be limited to, such matters as may be required to
42 ensure that the established procedures thereunder shall at least be in
43 compliance with the code of fair procedure set forth in section seven-
44 ty-three of the civil rights law, and consistent with the provisions of
45 article twenty-three-A of the correction law.
46 § 4. Section 316 of the executive law, as amended by chapter 175 of
47 the laws of 2010, is amended to read as follows:
48 § 316. Enforcement. 1. Upon receipt by the director of a complaint by
49 a contracting agency that a contractor has violated the provisions of a
50 state contract which have been included to comply with the provisions of
51 this article or of a contractor that a contracting agency has violated
52 such provisions or has failed or refused to issue a waiver where one has
53 been applied for pursuant to subdivision six of section three hundred
54 thirteen of this article or has denied such application, the director
55 shall attempt to resolve the matter giving rise to such complaint. If
56 efforts to resolve such matter to the satisfaction of all parties are
A. 9259--A 3
1 unsuccessful, the director shall refer the matter, within thirty days of
2 the receipt of the complaint, to the division's hearing officers. Upon
3 conclusion of the administrative hearing, the hearing officer shall
4 submit to the director his or her decision regarding the alleged
5 violation of the contract and recommendations regarding the imposition
6 of sanctions, fines or penalties. The director, within ten days of
7 receipt of the decision, shall file a determination of such matter and
8 shall cause a copy of such determination along with a copy of this arti-
9 cle to be served upon the contractor by personal service or by certified
10 mail return receipt requested. The decision of the hearing officer shall
11 be final and may only be vacated or modified as provided in article
12 seventy-eight of the civil practice law and rules upon an application
13 made within the time provided by such article. The determination of the
14 director as to the imposition of any fines, sanctions or penalties shall
15 be reviewable pursuant to article seventy-eight of the civil practice
16 law and rules. The penalties imposed for any violation which is premised
17 upon either a fraudulent or intentional misrepresentation by the
18 contractor or the contractor's willful and intentional disregard of the
19 minority and women-owned participation requirement included in the
20 contract may include a determination that the contractor shall be ineli-
21 gible to submit a bid to any contracting agency or be awarded any such
22 contract for a period not to exceed one year following the final deter-
23 mination; provided however, if a contractor has previously been deter-
24 mined to be ineligible to submit a bid pursuant to this section, the
25 penalties imposed for any subsequent violation, if such violation occurs
26 within five years of the first violation, may include a determination
27 that the contractor shall be ineligible to submit a bid to any contract-
28 ing agency or be awarded any such contract for a period not to exceed
29 five years following the final determination. The division of minority
30 and women's business development shall maintain a website listing all
31 contractors that have been deemed ineligible to submit a bid pursuant to
32 this section and the date after which each contractor shall once again
33 become eligible to submit bids.
34 2. Any fines, or portion thereof, imposed pursuant to the foregoing
35 subdivision, or imposed by a court of competent jurisdiction related to
36 convictions involving fraud related to this article or otherwise involv-
37 ing a minority or women-owned business enterprise, may be required by
38 the entity imposing such fines to be paid to the minority and women-
39 owned business enterprise fund established pursuant to section ninety-
40 seven-k of the state finance law.
41 § 5. The state finance law is amended by adding a new section 97-k to
42 read as follows:
43 § 97-k. Minority and women-owned business enterprise fund. 1. There is
44 hereby established in the joint custody of the state comptroller and the
45 commissioner of taxation and finance a special fund to be known as the
46 "minority and women-owned business enterprise fund".
47 2. Such funds shall consist of all moneys appropriated for the purpose
48 of such fund, all moneys transferred or paid to such fund pursuant to
49 law, including pursuant to section three hundred sixteen of the execu-
50 tive law, and contributions consisting of grants, including grants or
51 other financial assistance from any agency of government and all moneys
52 required by the provisions of this section or any other law to be paid
53 into or credited to this fund.
54 3. Monies of the fund, following appropriation by the legislature,
55 shall be expended to acquire software, employ personnel to audit, inves-
56 tigate and prosecute minority and women-owned business enterprise fraud
A. 9259--A 4
1 and to underwrite minority and women-owned business enterprise programs
2 to assist minority and women business enterprise owners to develop
3 sustainable businesses.
4 § 6. This act shall take effect immediately; provided, however, that
5 the amendments to article 15-A of the executive law made by sections
6 one, two, three and four of this act shall not affect the repeal of such
7 article and shall be deemed repealed therewith.