Bill Text: NY S00055 | 2017-2018 | General Assembly | Introduced

Bill Title: Relates to participation by LGBT, disability and veteran-owned businesses in state contracts.

Spectrum: Partisan Bill (Democrat 5-0)

Status: (Introduced - Dead) 2018-01-03 - REFERRED TO VETERANS, HOMELAND SECURITY AND MILITARY AFFAIRS [S00055 Detail]

Download: New_York-2017-S00055-Introduced.html

                STATE OF NEW YORK
                               2017-2018 Regular Sessions
                    IN SENATE
                                     January 4, 2017
        Introduced  by Sens. HOYLMAN, HAMILTON, PARKER, PERALTA, PERKINS -- read
          twice and ordered printed, and when printed to  be  committed  to  the
          Committee on Veterans, Homeland Security and Military Affairs
        AN ACT to amend the executive law, in relation to participation by LGBT,
          disability  and  veteran-owned  businesses  in  state  contracts;  and
          providing for the repeal of such provisions upon expiration thereof
          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:
     1    Section 1. Short title. This act shall be known as "The New York State
     2  Supplier Diversity Act."
     3    § 2. The executive law is amended by adding a new article 17-C to read
     4  as follows:
     5                                ARTICLE 17-C
     7  Section 369-m. Definitions.
     8          369-n. Division of supplier diversity.
     9          369-o. Opportunities  for  certified LGBT, disability and veter-
    10                   an-owned business enterprises.
    11          369-p. Severability.
    12    § 369-m. Definitions. As used in this  article,  the  following  terms
    13  shall have the following meanings:
    14    1.  "Certified LGBT, disability, or veteran-owned business enterprise"
    15  shall mean a business enterprise, including a sole proprietorship, part-
    16  nership, limited liability company or corporation that is:
    17    (a) at least fifty-one percent owned by one or more LGBT  individuals,
    18  disabled individuals or veterans;
    19    (b)  an enterprise in which such LGBT, disability or veteran ownership
    20  is real, substantial, and continuing;
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.

        S. 55                               2
     1    (c) an enterprise in which such LGBT, disability or veteran  ownership
     2  has  and exercises the authority to control independently the day-to-day
     3  business decisions of the enterprise;
     4    (d) an enterprise authorized to do business in this state and which is
     5  independently owned and operated;
     6    (e)  an  enterprise  that  is a small business which has a significant
     7  business presence in the state, not dominant in its field  and  employs,
     8  based  on its industry, a certain number of persons as determined by the
     9  director, but not to exceed three  hundred,  taking  into  consideration
    10  factors  which  include,  but are not limited to, federal small business
    11  administration standards pursuant to 13 CFR part 121 and any  amendments
    12  thereto; and
    13    (f) certified by the office of general services, or an approved third-
    14  party  agency  pursuant  to  subdivision  five  of section three hundred
    15  sixty-nine-n of this article.
    16    2. "Commissioner" shall mean the commissioner of the office of general
    17  services.
    18    3. "Director" shall mean the director  of  the  division  of  supplier
    19  diversity.
    20    4.  "Disabled individual" shall mean a person who has physical, mental
    21  or medical impairment from  anatomical,  physiological  or  neurological
    22  conditions which prevents the exercise of a normal bodily function or is
    23  demonstrable  by  medically  accepted  clinical or laboratory diagnostic
    24  techniques.
    25    5. "Division" shall mean the division of  supplier  diversity  in  the
    26  office of general services.
    27    6.  "LGBT  individual"  shall mean a person who identifies as lesbian,
    28  gay, bisexual or transgender.
    29    7. "State agency" shall mean: (a)(i) any state department; or (ii) any
    30  division, board, commission or bureau of any state department; or  (iii)
    31  the  state  university  of New York and the city university of New York,
    32  including all their constituent units except community colleges and  the
    33  independent  institutions  operating  statutory  or contract colleges on
    34  behalf of the state; or (iv) a board, a majority of  whose  members  are
    35  appointed by the governor or who serve by virtue of being state officers
    36  or  employees as defined in subparagraph (i), (ii) or (iii) of paragraph
    37  (i) of subdivision one of section seventy-three of the  public  officers
    38  law.
    39    (b)  a "state authority," as defined in subdivision one of section two
    40  of the public authorities law, and the following:
    41    Albany County Airport Authority;
    42    Albany Port District Commission;
    43    Alfred, Almond, Hornellsville Sewer Authority;
    44    Battery Park City Authority;
    45    Cayuga County Water and Sewer Authority;
    46    (Nelson A. Rockefeller) Empire  State  Plaza  Performing  Arts  Center
    47  Corporation;
    48    Industrial Exhibit Authority;
    49    Livingston County Water and Sewer Authority;
    50    Long Island Power Authority;
    51    Long Island Rail Road;
    52    Long Island Market Authority;
    53    Manhattan and Bronx Surface Transit Operating Authority;
    54    Metro-North Commuter Railroad;
    55    Metropolitan Suburban Bus Authority;
    56    Metropolitan Transportation Authority;

        S. 55                               3
     1    Natural Heritage Trust;
     2    New York City Transit Authority;
     3    New York Convention Center Operating Corporation;
     4    New York State Bridge Authority;
     5    New York State Olympic Regional Development Authority;
     6    New York State Thruway Authority;
     7    Niagara Falls Public Water Authority;
     8    Niagara Falls Water Board;
     9    Port of Oswego Authority;
    10    Power Authority of the State of New York;
    11    Roosevelt Island Operating Corporation;
    12    Schenectady Metroplex Development Authority;
    13    State Insurance Fund;
    14    Staten Island Rapid Transit Operating Authority;
    15    State University Construction Fund;
    16    Syracuse Regional Airport Authority;
    17    Triborough Bridge and Tunnel Authority;
    18    Upper Mohawk valley regional water board;
    19    Upper Mohawk valley regional water finance authority;
    20    Upper Mohawk valley memorial auditorium authority;
    21    Urban Development Corporation and its subsidiary corporations.
    22    (c)  the  following only to the extent of state contracts entered into
    23  for its own account or for the benefit of a state agency as  defined  in
    24  paragraph (a) or (b) of this subdivision:
    25    Dormitory Authority of the State of New York;
    26    Facilities Development Corporation;
    27    New York State Energy Research and Development Authority;
    28    New York State Science and Technology Foundation.
    29    (d)  "state  contract" shall mean: (i) a written agreement or purchase
    30  order instrument, providing for a total expenditure in excess  of  twen-
    31  ty-five  thousand  dollars, whereby a contracting agency is committed to
    32  expend or does expend funds in return for labor, services including  but
    33  not  limited  to  legal,  financial  and  other  professional  services,
    34  supplies, equipment, materials or any combination of the  foregoing,  to
    35  be  performed  for,  or rendered or furnished to the contracting agency;
    36  (ii) a written agreement in  excess  of  one  hundred  thousand  dollars
    37  whereby a contracting agency is committed to expend or does expend funds
    38  for the acquisition, construction, demolition, replacement, major repair
    39  or  renovation  of  real  property and improvements thereon; and (iii) a
    40  written agreement in excess of one hundred thousand dollars whereby  the
    41  owner of a state assisted housing project is committed to expend or does
    42  expend funds for the acquisition, construction, demolition, replacement,
    43  major repair or renovation of real property and improvements thereon for
    44  such project.
    45    8. "Veteran" shall mean a person who served in and who has received an
    46  honorable  or  general  discharge from the United States army, navy, air
    47  force, marines, coast guard, and/or reserves thereof,  and/or  the  army
    48  national  guard,  air national guard, New York guard and/or the New York
    49  naval militia.
    50    § 369-n. Division of supplier diversity. 1. The head of  the  division
    51  of  supplier  diversity  shall be the director who shall be appointed by
    52  the governor and who shall hold office at the pleasure  of  the  commis-
    53  sioner.
    54    2.  The  director  may  appoint  such  deputies, assistants, and other
    55  employees as may be needed for the performance of the duties  prescribed
    56  herein  subject to the provisions of the civil service law and the rules

        S. 55                               4
     1  and regulations of  the  civil  service  commission.  The  director  may
     2  request  and  shall  receive  from  any (a) department, division, board,
     3  bureau, or executive commission of the state or (b) state  agency,  such
     4  assistance as may be necessary to carry out the provisions of this arti-
     5  cle.
     6    3. The director shall have the following powers and duties:
     7    (a)  Develop, collect, summarize and disseminate information that will
     8  be helpful to persons and organizations throughout the state  in  under-
     9  taking  or  promoting  the  establishment and successful operation of an
    10  LGBT, disability or veteran-owned business.
    11    (b) Develop and make available to state agencies a directory of certi-
    12  fied LGBT,  disability  and  veteran-owned  business  enterprises  which
    13  shall,  wherever  practicable,  be  divided  into  categories  of labor,
    14  services, supplies, equipment,  materials  and  recognized  construction
    15  trades  and  which  shall indicate areas or locations of the state where
    16  such enterprises are available to perform services. Such directory shall
    17  be posted on the office of general services website.
    18    (c) Assist state agencies in the development of programs to foster and
    19  promote the use of LGBT, disability and  veteran-owned  business  enter-
    20  prises on state contracts.
    21    (d) Coordinate the plans, programs and operations of the state govern-
    22  ment  which  affect or may contribute to the establishment, preservation
    23  and development of LGBT, disability and  veteran-owned  business  enter-
    24  prises.
    25    (e)  To  appoint independent hearing officers who by contract or terms
    26  of employment shall preside over adjudicatory hearings pursuant to  this
    27  section for the office of general services and who are assigned no other
    28  work by the office of general services.
    29    (f)  In  conjunction  with  the  commissioner, develop a comprehensive
    30  statewide plan and operational guidelines to  promote  LGBT,  disability
    31  and  veteran-owned  business enterprises and to assist them in obtaining
    32  opportunities to participate in the procurement of goods and services by
    33  the state, including identification of barriers to business  development
    34  and investigation and evaluation of their impact on achieving the objec-
    35  tives of this article.
    36    4. The commissioner shall:
    37    (a)  Coordinate  training  of all procurement personnel of state agen-
    38  cies, emphasizing increased sensitivity and responsiveness to the unique
    39  needs and requirements of LGBT, disability  and  veteran-owned  business
    40  enterprises.
    41    (b)  Conduct  a  coordinated review of all existing and proposed state
    42  training and technical assistance activities in direct  support  of  the
    43  supplier  diversity program to assure consistency with the objectives of
    44  this article.
    45    (c) Evaluate and assess availability  of  firms  for  the  purpose  of
    46  increasing participation of such firms in state contracting in consulta-
    47  tion with relevant state entities.
    48    (d) Provide advice and technical assistance to promote LGBT, disabili-
    49  ty  and  veteran-owned  business  enterprises'  understanding  of  state
    50  procurement laws, practices and procedures to  facilitate  and  increase
    51  the  participation of LGBT, disability and veteran-owned business enter-
    52  prises in state procurement.
    53    (e) Establish regular performance reporting systems  regarding  imple-
    54  mentation  of  the  programs  designed  to increase LGBT, disability and
    55  veteran-owned business participation in procurement contracts  by  state
    56  agencies.

        S. 55                               5
     1    (f)  Submit  a  report by the thirty-first of December each year, with
     2  the first report due by the thirty-first of  December  in  the  calendar
     3  year  next succeeding the calendar year in which this article shall have
     4  become a law, to the governor, the temporary president  of  the  senate,
     5  and  the  speaker of the assembly. Such report shall include information
     6  including, but not limited to, the  number  of  contracts  entered  into
     7  pursuant  to  this  article,  the  average amount of such contracts, the
     8  percentage of contracts awarded to LGBT,  disability  and  veteran-owned
     9  business enterprises by each state agency, the number of LGBT, disabili-
    10  ty  and  veteran-owned  business  enterprises  certified,  the number of
    11  applications for certification as an LGBT, disability  or  veteran-owned
    12  business  enterprise,  the number of denials for such certification, the
    13  number of appeals of such denials, and the outcome of such  appeals  and
    14  the  average  time  that  is  required  for  such  certification  to  be
    15  completed. The report shall be posted on a public website maintained  by
    16  the office of general services.
    17    5. Certification. (a) The director, or in the absence of the director,
    18  the commissioner, within ninety days of the effective date of this arti-
    19  cle, shall promulgate rules and regulations providing for the establish-
    20  ment  of  a  statewide  certification  program including rules and regu-
    21  lations governing the  approval,  denial,  or  revocation  of  any  such
    22  certification.  Such  rules  and  regulations  shall include, but not be
    23  limited to, such matters as may be required to ensure  that  the  estab-
    24  lished  procedures  thereunder  shall at least be in compliance with the
    25  code of fair procedure set forth in section seventy-three of  the  civil
    26  rights law. In addition to a statewide certification program, the direc-
    27  tor,  or in the absence of the director, the commissioner, shall approve
    28  third-party agencies to perform verification of LGBT, disability  and/or
    29  veteran-owned  business  enterprises.  The division shall accept certif-
    30  ications by approved third-party agencies, and is authorized to  develop
    31  and implement a streamlined verification process for any LGBT, disabili-
    32  ty or veteran-owned business enterprise that has a certification through
    33  an  approved  third-party  agency.  Approved  third-party agencies shall
    34  include the National Gay and Lesbian Chamber of Commerce for the certif-
    35  ication of LGBT-owned business enterprises and the United  States  Busi-
    36  ness Leadership Network for the certification of disability-owned enter-
    37  prises.
    38    (b)  Following application for certification pursuant to this section,
    39  the director shall provide the applicant  with  written  notice  of  the
    40  status of the application, including notice of any outstanding deficien-
    41  cies,  within  thirty  days.  Within sixty days of submission of a final
    42  completed application, the director shall  provide  the  applicant  with
    43  written  notice  of a determination by the director approving or denying
    44  such certification and, in the event of a denial,  a  statement  setting
    45  forth  the  reasons  for  such  denial.  Upon a determination denying or
    46  revoking certification, the business enterprise for which  certification
    47  has  been  so  denied or revoked shall, upon written request made within
    48  thirty days from receipt of notice of such determination, be entitled to
    49  a hearing before an independent  hearing  officer  designated  for  such
    50  purpose  by  the  director. In the event that a request for a hearing is
    51  not made within such thirty day  period,  such  determination  shall  be
    52  deemed  to  be  final.  The  independent hearing officer shall conduct a
    53  hearing and upon the conclusion of such hearing, issue a written  recom-
    54  mendation  to  the  director to affirm, reverse, or modify such determi-
    55  nation of the director. Such written recommendation shall be  issued  to
    56  the  parties.   The director, within thirty days, by order, must accept,

        S. 55                               6
     1  reject or modify such recommendation of  the  hearing  officer  and  set
     2  forth in writing the reason therefor. The director shall serve a copy of
     3  such order and reasons therefor upon the business enterprise by personal
     4  service  or by certified mail return receipt requested. The order of the
     5  director shall be subject to review pursuant to article seventy-eight of
     6  the civil practice law and rules.
     7    (c) All certifications shall be valid for a period of two years.
     8    § 369-o. Opportunities for certified  LGBT,  disability  and  veteran-
     9  owned  business  enterprises.  1. The director, or in the absence of the
    10  director, the commissioner, within ninety days of the effective date  of
    11  this  article  shall  promulgate rules and regulations for the following
    12  purposes:
    13    (a) provide measures and procedures to  ensure  that  certified  LGBT,
    14  disability  and  veteran-owned  business  enterprises  are  afforded the
    15  opportunity for meaningful participation in  the  performance  of  state
    16  contracts and to assist in state agencies' identification of those state
    17  contracts  for  which  certified  LGBT,  disability and/or veteran-owned
    18  business enterprises may best perform;
    19    (b) provide for measures and procedures that assist state agencies  in
    20  the identification of state contracts where LGBT, disability and veteran
    21  contract  goals  are practical, feasible and appropriate for the purpose
    22  of increasing the utilization  of  LGBT,  disability  and  veteran-owned
    23  business enterprise participation on state contracts;
    24    (c)  achieve  a statewide goal for participation on state contracts by
    25  LGBT, disability and veteran-owned business enterprises at a  percentage
    26  to be determined by the commissioner;
    27    (d)  provide  for  procedures  relating  to  submission and receipt of
    28  applications by LGBT, disability or veteran-owned  business  enterprises
    29  for certification;
    30    (e)  provide  for  the monitoring and compliance of state contracts by
    31  state agencies with respect to the provisions of this article;
    32    (f) provide for the requirement that  state  agencies  submit  regular
    33  reports,  as  determined by the director, with respect to their supplier
    34  diversity program activity, including but not  limited  to,  utilization
    35  reporting and state contract monitoring and compliance; and
    36    (g) provide for any other purposes to effectuate this article.
    37    2.  State  agencies shall administer the rules and regulations promul-
    38  gated by the director for the implementation of this article.
    39    § 369-p. Severability. If any clause, sentence, paragraph, section  or
    40  part  of this article shall be adjudged by any court of competent juris-
    41  diction to be invalid, the judgment shall not affect, impair or  invali-
    42  date  the  remainder  thereof, but shall be confined in its operation to
    43  the clause, sentence, paragraph, section or part of this article direct-
    44  ly involved in the controversy in which the  judgment  shall  have  been
    45  rendered.
    46    §  3. The commissioner of the office of general services shall conduct
    47  a study to  determine  a  statewide  goal  for  participation  on  state
    48  contracts by LGBT, disability and veteran-owned business enterprises and
    49  to  determine  whether  providing  for  the  reservation or set-aside of
    50  certain procurements by state agencies should be required  in  order  to
    51  achieve the objectives of article 17-C of the executive law.
    52    §  4.  No  later than one year after this act shall have become a law,
    53  the commissioner of the office of general services  shall  complete  the
    54  study pursuant to section three of this act.
    55    §  5.  This  act shall take effect immediately and shall expire and be
    56  deemed repealed five years after such effective date.