Bill Text: NY A10180 | 2019-2020 | General Assembly | Introduced
Bill Title: Relates to increased participation in state contracts and subcontracts by certified minority and women-owned business enterprises; requires quarterly reports from contracting agencies; addresses consequences if contracting agency fails to comply with reporting requirements; relates to certain performance and payment bond requirements.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced - Dead) 2020-03-24 - referred to governmental operations [A10180 Detail]
Download: New_York-2019-A10180-Introduced.html
STATE OF NEW YORK ________________________________________________________________________ 10180 IN ASSEMBLY March 24, 2020 ___________ Introduced by M. of A. BICHOTTE -- read once and referred to the Commit- tee on Governmental Operations AN ACT to amend the executive law, in relation to participation by minority group members and women with respect to certain state contracts; and to amend the state finance law, in relation to perform- ance and payment bond requirements The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. Subdivisions 3 and 4 of section 311 of the executive law, 2 subdivision 3 as added by chapter 261 of the laws of 1988, paragraphs 3 (d) and (e) of subdivision 3 as amended by chapter 55 of the laws of 4 1992, paragraph (d-1) of subdivision 3 and paragraphs (d) and (e) of 5 subdivision 4 as added and paragraphs (f), (i) and (j) of subdivision 3 6 and the opening paragraph of subdivision 4 as amended by chapter 96 of 7 the laws of 2019, paragraphs (g) and (h) of subdivision 3 as amended by 8 section 1 of part BB of chapter 59 of the laws of 2006, and subdivision 9 4 as amended by chapter 361 of the laws of 2009, are amended to read as 10 follows: 11 3. The director shall have the following powers and duties: 12 (a) to encourage and assist contracting agencies in their efforts to 13 increase participation by minority and women-owned business enterprises 14 on state contracts and subcontracts [so as] to facilitate the award of a 15 fair share of such contracts to them and to provide on the division's 16 website a list of each contracting agency's minority and women-owned 17 business enterprises certification outreach seminars; 18 (b) to develop standardized forms and reporting documents necessary to 19 implement this article; 20 (c) to conduct educational outreach programs to encourage the certif- 21 ication of minority and women-owned business enterprises consistent with 22 the purposes of this article; 23 (d) to review [periodically] quarterly the practices and procedures of 24 each contracting agency with respect to compliance with the provisions 25 of this article, and to require them to file [periodic] quarterly 26 reports with the division of minority and women's business development EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD07105-03-0A. 10180 2 1 as to the level of minority and women-owned business enterprises partic- 2 ipation in the awarding of agency contracts for goods and services 3 including but not limited to the number of state contracts awarded to 4 certified minority-owned or women-owned business enterprises, the maxi- 5 mum dollar amount obligated pursuant to all those contracts, and the 6 total expenditures made pursuant to all such contracts; the number of 7 state contracts awarded to certified minority or women-owned business 8 enterprises, the maximum dollar amount obligated pursuant to all those 9 contracts, and the total expenditures made pursuant to all such 10 contracts; the number of state contracts awarded which include a utili- 11 zation plan for business participation by certified minority or women- 12 owned business enterprises, the maximum amount obligated pursuant to 13 those contracts, and the total expenditures made pursuant to all such 14 contracts; the number of state contracts awarded upon which a waiver was 15 granted from goals required by the contracts for business participation 16 by certified minority or women-owned business enterprises, and the maxi- 17 mum amount obligated pursuant to those contracts; the number of state 18 contracts awarded which required goals for employment of minority group 19 members and women; and the number of state contracts awarded for which 20 waivers of employment goals required by the contracts have been granted; 21 (d-1) to require all contracting state agencies to develop a four-year 22 growth plan to determine a means of promoting and increasing partic- 23 ipation by minority-owned and women-owned business enterprises with 24 respect to state contracts and subcontracts. Every four years, beginning 25 September fifteenth, two thousand twenty, each contracting state agency 26 shall submit a four-year growth plan as part of its annual report to the 27 governor and legislature pursuant to section one hundred sixty-four of 28 this chapter[.]; 29 (e) on January first of each year report to the governor, the tempo- 30 rary president of the senate, the speaker of the assembly, the minority 31 leaders of the senate and the assembly, and the chairpersons of the 32 senate finance and assembly ways and means committees on the [level] 33 actual versus projected levels of minority and women-owned business 34 enterprises participating in each agency's contracts for goods [and], 35 services and construction, including but not limited to the number of 36 state contracts awarded to certified minority-owned or women-owned busi- 37 ness enterprises, the maximum dollar amount obligated pursuant to all 38 those contracts, and the total expenditures made pursuant to all such 39 contracts, and on activities of the office and effort by each contract- 40 ing agency to promote employment of minority group members and women, 41 and to promote and increase participation by certified businesses with 42 respect to state contracts and subcontracts so as to facilitate the 43 award of a fair share of state contracts to such businesses. The comp- 44 troller shall assist the division in collecting information on the 45 participation of certified business for each contracting agency. Such 46 report may recommend new activities and programs to effectuate the 47 purposes of this article; 48 (f) the director shall list in the division's annual report the names 49 of non-compliant agencies and the extent of their noncompliance in 50 submitting its quarterly minority and women-owned business enterprise 51 utilization reports; and, shall implement a master list of all the state 52 agencies required to file quarterly compliance reports and shall attach 53 such list to the division's annual report. 54 (g) to prepare and update, no less than [annually] quarterly, a direc- 55 tory of certified minority and women-owned business enterprises which 56 shall, wherever practicable, be divided into categories of labor,A. 10180 3 1 services, supplies, equipment, materials and recognized construction 2 trades and which shall indicate areas or locations of the state where 3 such enterprises are available to perform services, and to use this 4 information to create an internet based, centralized state registry to 5 enable appropriate state certified minority and women-owned business 6 enterprises to access contract and subcontract opportunities; 7 [(g)] (h) to appoint independent hearing officers who by contract or 8 terms of employment shall preside over adjudicatory hearings pursuant to 9 section three hundred fourteen of this article for the office and who 10 are assigned no other work by the office; 11 [(h)] (i) notwithstanding the provisions of section two hundred nine- 12 ty-six of this chapter, to file a complaint pursuant to the provisions 13 of section two hundred ninety-seven of this chapter where the director 14 has knowledge that a contractor may have violated the provisions of 15 paragraph (a), (b) or (c) of subdivision one of section two hundred 16 ninety-six of this chapter where such violation is unrelated, separate 17 or distinct from the state contract as expressed by its terms; and 18 [(i)] (j) to streamline the state certification process to accept 19 federal and municipal corporation certifications. 20 [(j)] (k) to make publicly available records of all waivers of compli- 21 ance reported pursuant to paragraph (b) of subdivision six of section 22 three hundred thirteen of this article on the division's website. 23 4. The director shall provide assistance to, and facilitate access to 24 programs serving certified businesses as well as applicants to ensure 25 that such businesses benefit, as needed, from technical, managerial and 26 financial, and general business assistance; training; marketing; organ- 27 ization and personnel skill development; project management assistance; 28 technology assistance; bond and insurance education assistance; and 29 other business development assistance. The director shall maintain a 30 toll-free number at the department of economic development to be used to 31 answer questions concerning the MWBE certification process. In addition, 32 the director [may] shall, either independently or in conjunction with 33 other state agencies: 34 (a) develop a clearinghouse of information on programs and services 35 provided by entities that may assist such businesses; 36 (b) review bonding and paperwork requirements imposed by contracting 37 agencies that may unnecessarily impede the ability of such businesses to 38 compete; [and] 39 (c) seek to maximize utilization by minority and women-owned business 40 enterprises of available federal resources including but not limited to 41 federal grants, loans, loan guarantees, surety bonding guarantees, tech- 42 nical assistance, and programs and services of the federal small busi- 43 ness administration[.]; 44 (d) conduct outreach events, training workshops, seminars, and other 45 such educational programs throughout the state, including all regional 46 offices, to state agencies, external stakeholders, and the public, to 47 promote awareness and utilization of minority and women-owned business 48 enterprises; and 49 (e) identify and establish mentorship opportunities and other business 50 development programs to increase capacity and better prepare MWBEs for 51 bidding on contracts with state agencies upon successful completion of 52 the mentorship opportunity. Such mentorship opportunities shall be 53 intended to ensure that mentor and mentee are connected based on a 54 commercially useful function. 55 § 2. Subdivision 5 of section 312 of the executive law, as added by 56 chapter 261 of the laws of 1988, is amended to read as follows:A. 10180 4 1 5. The director shall promulgate rules and regulations to ensure that 2 contractors and subcontractors undertake programs of affirmative action 3 and equal employment opportunity as required by this section. Such rules 4 and regulations as they pertain to any particular agency shall be devel- 5 oped after consultation with contracting agencies. Such rules and regu- 6 lations [may] shall require a contractor, after notice in a bid solic- 7 itation, to submit an equal employment opportunity program [after bid8opening and prior to the award of any contract] at the time bids are 9 submitted, and [may] shall require the contractor or subcontractor to 10 submit compliance reports relating to the contractor's or subcontrac- 11 tor's operation and implementation of any equal employment opportunity 12 program in effect as of the date the contract is executed. The contract- 13 ing agency [may recommend to the director that] shall have the right to 14 recommend that the director take appropriate action according to the 15 procedures set forth in section three hundred sixteen of this article 16 against the contractor for noncompliance with the requirements of this 17 section. The contracting agency shall be responsible for monitoring 18 compliance with this section. 19 § 3. Paragraph (j) of subdivision 2-a of section 313 of the executive 20 law, as amended by chapter 96 of the laws of 2019, is amended and a new 21 paragraph (k) is added to read as follows: 22 (j) require each agency to consult the most current disparity study 23 when calculating agency-wide and contract specific participation goals 24 pursuant to this article; [and] 25 (k) encourage joint ventures, partnerships, and mentor-protege 26 relationships as defined in section one hundred forty-seven of the state 27 finance law, between prime contractors and minority and women-owned 28 business enterprises; and 29 § 4. Subdivision 3 and paragraph (a) of subdivision 5 of section 313 30 of the executive law, as amended by chapter 96 of the laws of 2019, are 31 amended to read as follows: 32 3. Solely for the purpose of providing the opportunity for [meaning-33ful] increased participation by certified businesses in the performance 34 of state contracts as provided in this section, state contracts shall 35 include leases of real property by a state agency to a lessee where: the 36 terms of such leases provide for the construction, demolition, replace- 37 ment, major repair or renovation of real property and improvements ther- 38 eon by such lessee; and the cost of such construction, demolition, 39 replacement, major repair or renovation of real property and improve- 40 ments thereon shall exceed the sum of one hundred thousand dollars. 41 Reports to the director pursuant to section three hundred fifteen of 42 this article shall include activities with respect to all such state 43 contracts. Contracting agencies shall include or require to be included 44 with respect to state contracts for the acquisition, construction, demo- 45 lition, replacement, major repair or renovation of real property and 46 improvements thereon, such provisions as [may] shall be necessary to 47 effectuate the provisions of this section in every bid specification and 48 state contract, including, but not limited to: (a) provisions requiring 49 contractors to make a good faith effort to solicit active participation 50 by enterprises identified in the directory of certified businesses; (b) 51 requiring the parties to agree as a condition of entering into such 52 contract, to be bound by the provisions of section three hundred sixteen 53 of this article; and (c) requiring the contractor to include the 54 provisions set forth in paragraphs (a) and (b) of this subdivision in 55 every subcontract in a manner that the provisions will be binding upon 56 each subcontractor as to work in connection with such contract.A. 10180 5 1 Provided, however, that no such provisions shall be binding upon 2 contractors or subcontractors in the performance of work or the 3 provision of services that are unrelated, separate or distinct from the 4 state contract as expressed by its terms, and nothing in this section 5 shall authorize the director or any contracting agency to impose any 6 requirement on a contractor or subcontractor except with respect to a 7 state contract. 8 (a) Contracting agencies shall administer the rules and regulations 9 promulgated by the director in a good faith effort to achieve the maxi- 10 mum feasible participation by minority and women owned business enter- 11 prises adopted pursuant to this article and the regulations of the 12 director. Such rules and regulations: shall require a contractor to 13 submit a utilization [plan after bids are opened] at the time bids are 14 submitted, when bids are required[, but prior to the award of a state15contract]; shall require the contracting agency to review the utiliza- 16 tion plan submitted by the contractor and to post the utilization plan 17 and any waivers of compliance issued pursuant to subdivision six of this 18 section on the website of the contracting agency; shall require the 19 contracting agency to notify the contractor in writing within a period 20 of time specified by the director as to any deficiencies contained in 21 the contractor's utilization plan; shall require remedy thereof within a 22 period of time specified by the director; shall require the contractor 23 to submit [periodic] quarterly compliance reports relating to the opera- 24 tion and implementation of any utilization plan; shall not allow any 25 automatic waivers but shall allow a contractor to apply for a partial or 26 total waiver of the minority and women-owned business enterprise partic- 27 ipation requirements pursuant to subdivisions six and seven of this 28 section; shall allow a contractor to file a complaint with the director 29 pursuant to subdivision eight of this section in the event a contracting 30 agency has failed or refused to issue a waiver of the minority and 31 women-owned business enterprise participation requirements or has denied 32 such request for a waiver; and shall allow a contracting agency to file 33 a complaint with the director pursuant to subdivision nine of this 34 section in the event a contractor is failing or has failed to comply 35 with the minority and women-owned business enterprise participation 36 requirements set forth in the state contract where no waiver has been 37 granted. 38 § 5. Subdivisions 1 and 3 of section 315 of the executive law, as 39 amended by chapter 96 of the laws of 2019, are amended and three new 40 subdivisions 2-b, 3-a and 8 are added to read as follows: 41 1. Each contracting agency shall be responsible for monitoring state 42 contracts under its jurisdiction, and recommending matters to the office 43 respecting non-compliance with the provisions of this article so that 44 the office [may] shall take such action as [is appropriate] stated in 45 subdivision three of section three hundred sixteen of this article. Each 46 contracting agency shall have the right to recommend that the director 47 impose a sanction, penalty, or fine for three or more violations of 48 subdivision one of section three hundred sixteen of this article, to 49 ensure compliance with the provisions of this article, the rules and 50 regulations of the director issued hereunder and the contractual 51 provisions required pursuant to this article. All contracting agencies 52 shall comply with the rules and regulations of the office and are 53 directed to cooperate with the office and to furnish to the office such 54 information and assistance as may be required in the performance of its 55 functions under this article.A. 10180 6 1 2-b. Each contracting agency when notifying a contractor of a winning 2 bid award shall also notify any minority or women-owned business enter- 3 prises affiliated with such contractor, per the contractor's submitted 4 utilization plan, of such contractor's receipt of the winning bid award. 5 3. (a) Each contracting agency shall report to the commissioner of 6 economic development, the commissioner of general services and the 7 director with respect to activities undertaken to promote employment of 8 minority group members and women and promote and increase participation 9 by certified businesses with respect to state contracts and subcon- 10 tracts. Such reports shall be submitted [no later than May fifteenth of11every year] quarterly and shall include such information as is necessary 12 for the director to determine whether the contracting agency and any 13 contractor to the contracting agency have complied with the purposes of 14 this article, including, without limitation, the number of state 15 contracts awarded to certified minority or women-owned business enter- 16 prises; the maximum dollar amount obligated pursuant to all those 17 contracts, and the total expenditures made pursuant to all such 18 contracts; the number of state contracts awarded which include a 19 utilization plan for business participation by certified minority or 20 women-owned business enterprises, the maximum amount obligated pursuant 21 to those contracts, and the total expenditures made pursuant to all such 22 contracts; a summary of all waivers of the requirements of subdivisions 23 six and seven of section three hundred thirteen of this article allowed 24 by the contracting agency during the period covered by the report, 25 including a description of the basis of the waiver request [and], the 26 rationale for granting any such waiver and any instances in which the 27 contract agency has deemed a contractor to have committed a violation 28 pursuant to section three hundred sixteen of this article and such other 29 information as the director shall require; and the maximum amount obli- 30 gated pursuant to those contracts; the number of state contracts awarded 31 which required goals for employment of minority group members and 32 women; and the number of state contracts awarded for which waivers of 33 employment goals required by the contracts have been granted. Each 34 agency shall also include in such annual report whether or not it has 35 been required to prepare a remedial plan, and, if so, the plan and the 36 extent to which the agency has complied with each element of the plan. 37 (b) In addition, each contracting agency shall be responsible for the 38 cost of an independent audit resulting from the agency's repeated 39 violations of this section. 40 3-a. Within thirty days after completion, a copy of the quarterly 41 minority and women-owned business enterprise report shall be transmitted 42 to the commissioner of economic development, the commissioner of general 43 services, and the director. A contracting agency, which has not let more 44 than two million dollars in service and/or construction contracts within 45 the applicable period may apply to the commissioner of economic develop- 46 ment, and the director for a waiver of the required annual report. The 47 waiver application shall be made on such form as the commissioner of 48 economic development and the director may prescribe. 49 8. If a contracting agency shall fail to file or substantially 50 complete, as determined by the commissioner of economic development and 51 the director, the report required by this section, the director shall 52 provide notice to the contracting agency. The notice shall state the 53 following: 54 (a) that the failure to file a report as required is a violation of 55 this section, or in the case of an insufficient report, the manner in 56 which the report submitted is deficient;A. 10180 7 1 (b) that the contracting agency has thirty days to comply with this 2 section or provide an adequate written explanation to the commissioner 3 of economic development and the commissioner of general services and the 4 director of the contracting agency's reasons for the inability to 5 comply; and 6 (c) that the contracting agency's continued failure to provide either 7 the required report or an adequate explanation will result in an inde- 8 pendent audit of the contracting agency, the cost of which shall be 9 borne by the contracting agency. 10 § 6. Section 316 of the executive law, as amended by chapter 175 of 11 the laws of 2010, is amended to read as follows: 12 § 316. [Enforcement] Violations and enforcement. 1. It shall be a 13 violation for any person or entity to: 14 a. intentionally use or acquire an MWBE name through deceit or other 15 dishonest means in order to negotiate a lower bid from a non-MWBE. 16 b. submit to the department of economic development, documents or 17 other material as evidence of a good faith effort to comply with the 18 provisions of this article without, in fact, having entered into any 19 contract, agreement, subcontract, or sub-agreement with an MWBE for the 20 use or purchase of such business enterprise's goods or services in the 21 performance of the awarded state contract. 22 c. fail to provide an MWBE with sufficient information or other 23 required supporting documentation in order for the MWBE to prepare a 24 proper bid. 25 2. Upon receipt by the director of a complaint by a contracting agency 26 that a contractor has violated the provisions of a state contract which 27 have been included to comply with the provisions of this article or of a 28 contractor that a contracting agency has violated such provisions or has 29 failed or refused to issue a waiver where one has been applied for 30 pursuant to subdivision six of section three hundred thirteen of this 31 article or has denied such application, the director shall attempt to 32 resolve the matter giving rise to such complaint. If efforts to resolve 33 such matter to the satisfaction of all parties are unsuccessful, the 34 director shall refer the matter, within thirty days of the receipt of 35 the complaint, to the division's hearing officers. Upon conclusion of 36 the administrative hearing, the hearing officer shall submit to the 37 director his or her decision regarding the alleged violation of the 38 contract and recommendations regarding the imposition of sanctions, 39 fines or penalties. The director, within ten days of receipt of the 40 decision, shall file a determination of such matter and shall cause a 41 copy of such determination along with a copy of this article to be 42 served upon the contractor by personal service or by certified mail 43 return receipt requested. The decision of the hearing officer shall be 44 final and may only be vacated or modified as provided in article seven- 45 ty-eight of the civil practice law and rules upon an application made 46 within the time provided by such article. The determination of the 47 director as to the imposition of any fines, sanctions or penalties shall 48 be reviewable pursuant to article seventy-eight of the civil practice 49 law and rules. The penalties imposed for any violation which is premised 50 upon either a fraudulent or intentional misrepresentation by the 51 contractor or the contractor's willful and intentional disregard of the 52 minority and women-owned participation requirement included in the 53 contract may include a determination that the contractor shall be ineli- 54 gible to submit a bid to any contracting agency or be awarded any such 55 contract for a period not to exceed one year following the final deter- 56 mination; provided however, if a contractor has previously been deter-A. 10180 8 1 mined to be ineligible to submit a bid pursuant to this section, the 2 penalties imposed for any subsequent violation, if such violation occurs 3 within five years of the first violation, may include a determination 4 that the contractor shall be ineligible to submit a bid to any contract- 5 ing agency or be awarded any such contract for a period not to exceed 6 five years following the final determination. The division of minority 7 and women's business development shall maintain a website listing all 8 contractors that have been deemed ineligible to submit a bid pursuant to 9 this section and the date after which each contractor shall once again 10 become eligible to submit bids. 11 3. The director shall impose a sanction, penalty, or fine on any 12 individual or entity that has three or more violations of this article 13 within five years. Such fine shall be paid by such individual or entity. 14 Such fine shall be remitted and deposited into a fund, to be managed by 15 the commissioner of economic development. Such funds shall be used to 16 subsidize the facilitation of the provisions of this article. Other 17 sanctions shall include barring such entity or individual from contract- 18 ing with such agency for a period not to exceed five years. 19 § 7. Subdivision 1 of section 137 of the state finance law, as sepa- 20 rately amended by section 17 of part MM of chapter 57 and chapter 619 of 21 the laws of 2008, is amended to read as follows: 22 1. In addition to other bond or bonds, if any, required by law for the 23 completion of a work specified in a contract for the prosecution of a 24 public improvement for the state of New York a municipal corporation, a 25 public benefit corporation or a commission appointed pursuant to law, or 26 in the absence of any such requirement, the comptroller may or the other 27 appropriate official, respectively, shall nevertheless require prior to 28 the approval of any such contract a bond guaranteeing prompt payment of 29 moneys due to all persons furnishing labor or materials to the contrac- 30 tor or any subcontractors in the prosecution of the work provided for in 31 such contract. Whenever a municipal corporation issues a permit subject 32 to compliance with section two hundred twenty of the labor law, such 33 permittee or its contractor or subcontractors furnishing workers shall 34 post a payment bond subject to this section. Provided, however, that all 35 performance bonds and payment bonds may, at the discretion of the head 36 of the state agency, public benefit corporation or commission, or his or 37 her designee, be dispensed with for the completion of a work specified 38 in a contract for the prosecution of a public improvement for the state 39 of New York for which bids are solicited where the aggregate amount of 40 the contract is under one hundred thousand dollars and provided further, 41 that in a case where the contract is not subject to the multiple 42 contract award requirements of section one hundred thirty-five of this 43 article, such requirements may be dispensed with where the head of the 44 state agency, public benefit corporation or commission finds it to be in 45 the public interest and where the aggregate amount of the contract 46 awarded or to be awarded is less than two hundred thousand dollars. In a 47 case where a contract is awarded to a small business concern or to a 48 minority or women-owned business concern, all performance bonds and 49 payment bonds may be dispensed with when the aggregate amount of the 50 contract is under five hundred thousand dollars. Advertisements for bids 51 shall provide information as to the requirements for, or dispensation 52 of, performance and payment bonds. Provided further, that in a case 53 where a performance or payment bond is dispensed with, twenty per centum 54 may be retained from each progress payment or estimate until the entire 55 contract work has been completed and accepted, at which time the head of 56 the state agency, public benefit corporation or commission shall, pend-A. 10180 9 1 ing the payment of the final estimate, pay not to exceed seventy-five 2 per centum of the amount of the retained percentage. 3 § 8. Subdivision 4 of section 139-f of the state finance law, as 4 amended by chapter 83 of the laws of 1995, is amended to read as 5 follows: 6 4. Notwithstanding any other provision of this section or other law, 7 requirements for the furnishing of a performance bond or a payment bond 8 may be dispensed with at the discretion of the head of the state agency 9 or corporation, or his or her designee, where the public owner is a 10 state agency or corporation described in subdivision one-a of this 11 section and the aggregate amount of the contract awarded or to be 12 awarded is under fifty thousand dollars and, in a case where the 13 contract is not subject to the multiple contract award requirements of 14 section one hundred thirty-five of this article, such requirements may 15 be dispensed with where the head of the state agency or corporation 16 finds it to be in the public interest and where the aggregate amount of 17 the contract awarded or to be awarded is under two hundred thousand 18 dollars. In a case where a contract is awarded to a small business 19 concern or to a minority or women-owned business concern, all perform- 20 ance bonds and payment bonds may be dispensed with when the aggregate 21 amount of the contract is under five hundred thousand dollars. Adver- 22 tisements for proposals shall provide information as to the requirements 23 for, or dispensation of, performance and payment bonds. Provided 24 further, that in a case where a performance or payment bond is dispensed 25 with, twenty per centum may be retained from each progress payment or 26 estimate until the entire contract work has been completed and accepted, 27 at which time the head of the state agency or corporation shall, pending 28 the payment of the final estimate, pay not to exceed seventy-five per 29 centum of the amount of the retained percentage. 30 § 9. The opening paragraph of section 139-g of the state finance law, 31 as amended by chapter 636 of the laws of 2003, is amended to read as 32 follows: 33 In every state agency, department and authority which has let more 34 than two million dollars in service and construction contracts and state 35 assisted project contracts in the prior fiscal year, the chief executive 36 officer of that agency, department or authority shall, with respect to 37 those contracts and state assisted project contracts let by his or her 38 agency, department or authority: 39 § 10. The opening paragraph of subdivision (b) of section 139-g of the 40 state finance law, as amended by chapter 636 of the laws of 2003, is 41 amended to read as follows: 42 identify all small-business and certified women and minority-owned 43 business concerns which, in the judgment of the chief executive officer 44 of that agency, department or authority, can bid on those contracts and 45 state assisted project contracts which are usually and customarily let 46 by that agency, department or authority, or in which that authority 47 provides a grant or loan or tax exempt financing, with a reasonable 48 expectation of success. Such chief executive officers shall carry out 49 the provisions of this subdivision: 50 § 11. Section 139-g of the state finance law is amended by adding a 51 new subdivision (e) to read as follows: 52 (e) for the purposes of this section, the following words shall have 53 the following meanings: 54 (i) "State assisted project contract" shall mean any written agreement 55 arising out of a state assisted housing project or state assisted 56 economic development project or state assisted higher education projectA. 10180 10 1 or state assisted hospital or health care facility project, for which 2 the total project cost exceeds two million dollars and for which the 3 project owner is committed to spend or does expend funds for the acqui- 4 sition, construction, demolition, replacement, major repair, or reno- 5 vation of real property and improvements thereon for such project. 6 (ii) "State assisted housing project" shall mean those projects which 7 receive from the New York state housing finance agency tax-exempt 8 financing for all or part of the total project cost. 9 (iii) "State assisted economic development project" shall mean those 10 projects which receive from the New York foundation of science technolo- 11 gy and innovation, or the urban development corporation and its subsid- 12 iaries a grant or loan or tax-exempt financing for all or part of the 13 total project cost. 14 (iv) "State assisted higher education project" shall mean those 15 projects which receive from the dormitory authority of the state of New 16 York a grant or loan or tax-exempt financing for all or part of the 17 total project cost. 18 (v) "State assisted hospital or health care facility project" shall 19 mean those projects which receive from the dormitory authority of the 20 state of New York a grant or loan or tax-exempt financing for all or 21 part of the total project cost. 22 § 12. This act shall take effect immediately, provided however, the 23 amendments to article 15-A of the executive law made by sections one 24 through six of this act shall not affect the expiration of such article 25 and shall expire therewith.
