Bill Text: NY S00929 | 2017-2018 | General Assembly | Introduced
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Bill Title: Relates to obligations with respect to contracts with business enterprises which employ individuals with disabilities; defines qualified business enterprise as any business concern which employs a workforce consisting of at least fifteen percent employees with disabilities and has been certified under this section; sets goal of five percent of state contracts going to qualified business enterprises; establishes an office of statewide advocate, certification process, and enforcement mechanism.
Spectrum: Partisan Bill (Republican 5-0)
Status: (Introduced - Dead) 2018-01-29 - PRINT NUMBER 929A [S00929 Detail]
Download: New_York-2017-S00929-Introduced.html
Bill Title: Relates to obligations with respect to contracts with business enterprises which employ individuals with disabilities; defines qualified business enterprise as any business concern which employs a workforce consisting of at least fifteen percent employees with disabilities and has been certified under this section; sets goal of five percent of state contracts going to qualified business enterprises; establishes an office of statewide advocate, certification process, and enforcement mechanism.
Spectrum: Partisan Bill (Republican 5-0)
Status: (Introduced - Dead) 2018-01-29 - PRINT NUMBER 929A [S00929 Detail]
Download: New_York-2017-S00929-Introduced.html
STATE OF NEW YORK ________________________________________________________________________ 929 2017-2018 Regular Sessions IN SENATE January 5, 2017 ___________ Introduced by Sens. ORTT, AKSHAR, DeFRANCISCO, GALLIVAN, GOLDEN -- read twice and ordered printed, and when printed to be committed to the Committee on Finance AN ACT to amend the state finance law, in relation to obligations with respect to contracts with business enterprises which employ individ- uals with disabilities The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. The state finance law is amended by adding a new section 2 139-l to read as follows: 3 § 139-l. Obligations with respect to contracts with qualified business 4 enterprises. 1. Definitions. (a) "Individual with a disability" shall 5 mean a person (i) with a physical, mental or medical impairment of 6 anatomical, physiological or neurological conditions which prevents the 7 exercise of a normal bodily function or is demonstrable by medically 8 accepted clinical or laboratory diagnostic techniques, or (ii) with a 9 record of such an impairment. 10 (b) "Qualified business enterprise" or "certified business enterprise" 11 shall mean any business concern which employs a workforce consisting of 12 at least fifteen percent of employees who are individuals with a disa- 13 bility as defined in this section, which has been certified pursuant to 14 this section. 15 2. Statewide advocate. There is hereby established within the depart- 16 ment of economic development an office of statewide advocate for indi- 17 viduals with disabilities. The statewide advocate shall be appointed by 18 the commissioner of economic development and shall act as a liaison for 19 qualified business enterprises to assist them in obtaining technical, 20 managerial, financial and other business assistance. The advocate shall 21 investigate complaints brought by or on behalf of such enterprises 22 concerning certification delays and instances of violations of law by 23 state agencies. The statewide advocate shall assist certified businesses EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD04600-01-7S. 929 2 1 and applicants in the certification process. Other functions of the 2 statewide advocate shall be directed by the commissioner of economic 3 development. The advocate may appoint staff to assist in his or her 4 duties. The statewide advocate shall establish a toll-free number at the 5 department of economic development to be used to answer questions 6 concerning the certification process. 7 3. Study of qualified business enterprise programs. The commissioner 8 of economic development is authorized and directed to undertake a state- 9 wide disparity study regarding the participation of qualified business 10 enterprises employing individuals with disabilities in state contracts. 11 The study shall be prepared by an entity independent of the department 12 of economic development and selected through a request for proposal 13 process. The purpose of such study is to determine whether there is a 14 disparity between the number of qualified business enterprises ready, 15 willing and able to perform state contracts for commodities, services 16 and construction, and the number of such contractors actually engaged to 17 perform such contracts, and to determine what changes, if any, should be 18 made to state policies affecting these business enterprises. Such study 19 shall include, but not be limited to, a disparity analysis by market 20 area and region of the state. The commissioner of economic development 21 is directed to transmit the disparity study to the governor and the 22 legislature not later than February fifteenth, two thousand eighteen, 23 and to post the study on the website of the department of economic 24 development. 25 4. Opportunities for qualified business enterprises. (a) Each agency 26 shall structure procurement procedures for contracts made directly or 27 indirectly to qualified business enterprises employing individuals with 28 disabilities to attempt to achieve five percent of state contracts 29 awarded to disabled employee business enterprises. 30 (b) The commissioner of economic development shall promulgate rules 31 and regulations pursuant to the goal established in paragraph (a) of 32 this subdivision that provide measures and procedures to ensure that 33 qualified business enterprises under this section shall be given the 34 opportunity for maximum feasible participation in the performance of 35 state contracts and to assist in the agency's identification of those 36 state contracts for which qualified business enterprises may best bid to 37 actively and affirmatively promote and assist their participation in the 38 performance of state contracts so as to facilitate the agency's achieve- 39 ment of the maximum feasible portion of the goals for state contracts to 40 such businesses. Such rules and regulations: shall require a contractor 41 to submit a utilization plan after bids are opened, when bids are 42 required, but prior to the award of a state contract; shall require the 43 contracting agency to review the utilization plan submitted by the 44 contractor and to post the utilization plan and any waivers of compli- 45 ance issued pursuant to paragraph (c) of this subdivision on the website 46 of the contracting agency within a reasonable period of time as estab- 47 lished by the commissioner of economic development; shall require the 48 contracting agency to notify the contractor in writing within a period 49 of time specified by the commissioner of economic development as to any 50 deficiencies contained in the contractor's utilization plan; shall 51 require remedy thereof within a period of time specified by the commis- 52 sioner of economic development; and shall require the contractor to 53 submit periodic compliance reports relating to the operation and imple- 54 mentation of any utilization plan. The rules and regulations promulgated 55 pursuant to this subdivision regarding a utilization plan shall provide 56 that where enterprises have been identified within a utilization plan, aS. 929 3 1 contractor shall attempt, in good faith, to utilize such enterprise at 2 least to the extent indicated. A contracting agency may require a 3 contractor to indicate, within a utilization plan, what measures and 4 procedures he or she intends to take to comply with the provisions of 5 this section, but may not require, as a condition of award of, or 6 compliance with, a contract that a contractor utilize a particular 7 enterprise in performance of the contract. Without limiting other 8 grounds for the disqualification of bids or proposals on the basis of 9 non-responsibility, a contracting agency may disqualify the bid or 10 proposal of a contractor as being non-responsible for failure to remedy 11 notified deficiencies contained in the contractor's utilization plan 12 within a period of time specified in regulations promulgated by the 13 commissioner of economic development after receiving notification of 14 such deficiencies from the contracting agency. Where failure to remedy 15 any notified deficiency in the utilization plan is a ground for disqual- 16 ification, that issue and all other grounds for disqualification shall 17 be stated in writing by the contracting agency. 18 (c) Where it appears that a contractor cannot, after a good faith 19 effort, comply with the qualified business enterprise participation 20 requirements set forth in a particular state contract, a contractor may 21 file a written application with the contracting agency requesting a 22 partial or total waiver of such requirements setting forth the reasons 23 for such contractor's inability to meet any or all of the participation 24 requirements together with an explanation of the efforts undertaken by 25 the contractor to obtain the required disabled employee business enter- 26 prise participation. In implementing the provisions of this section, the 27 contracting agency shall consider the number and types of qualified 28 business enterprises under this section located in the region in which 29 the state contract is to be performed, the total dollar value of the 30 state contract, the scope of work to be performed and the project size 31 and term. If, based on such considerations, the contracting agency 32 determines there is not a reasonable availability of contractors on the 33 list of certified businesses to furnish services for the project, it 34 shall issue a waiver of compliance to the contractor. In making such 35 determination, the contracting agency shall first consider the avail- 36 ability of other business enterprises located in the region and shall 37 thereafter consider the financial ability of businesses located outside 38 the region in which the contract is to be performed to perform the state 39 contract. 40 (d) In the event that a contracting agency fails or refuses to issue a 41 waiver to a contractor as requested within twenty days after having made 42 application therefor pursuant to paragraph (c) of this subdivision or if 43 the contracting agency denies such application, in whole or in part, the 44 contractor may file a complaint with the commissioner of economic devel- 45 opment pursuant to this section setting forth the facts and circum- 46 stances giving rise to the contractor's complaint together with a demand 47 for relief. The contractor shall serve a copy of such complaint upon the 48 contracting agency by personal service or by certified mail, return 49 receipt requested. The contracting agency shall be afforded an opportu- 50 nity to respond to such complaint in writing. 51 (e) If, after the review of a periodic compliance report and after 52 such contractor has been afforded an opportunity to respond to a notice 53 of deficiency issued by the contracting agency in connection therewith, 54 it appears that a contractor is failing or refusing to comply with the 55 qualified business enterprise participation requirements as set forth in 56 the state contract and where no waiver from such requirements has beenS. 929 4 1 granted, the contracting agency may file a written complaint with the 2 commissioner of economic development pursuant to this section setting 3 forth the facts and circumstances giving rise to the contracting agen- 4 cy's complaint together with a demand for relief. The contracting agen- 5 cy shall serve a copy of such complaint upon the contractor by personal 6 service or by certified mail, return receipt requested. The contractor 7 shall be afforded an opportunity to respond to such complaint in writ- 8 ing. 9 5. Statewide certification program. (a) The commissioner of economic 10 development shall promulgate rules and regulations providing for the 11 establishment of a statewide certification program for business enter- 12 prises under this section including rules and regulations governing the 13 approval, denial or revocation of any such certification. Such rules and 14 regulations shall include, but not be limited to, such matters as may be 15 required to ensure that the established procedures thereunder shall at 16 least be in compliance with the code of fair procedure set forth in 17 section seventy-three of the civil rights law. 18 (b) For the purposes of this section, the department of economic 19 development shall be responsible for verifying businesses as having a 20 workforce made up of at least fifteen percent of individuals with disa- 21 bilities and for certifying such verified businesses. The commissioner 22 of economic development shall prepare a directory of certified busi- 23 nesses for use by contracting agencies and contractors in carrying out 24 the provisions of this section. The commissioner of economic development 25 shall periodically update the directory. 26 (c) Following application for certification pursuant to this subdivi- 27 sion, the commissioner of economic development shall provide the appli- 28 cant with written notice of the status of the application, including 29 notice of any outstanding deficiencies, within thirty days. Within sixty 30 days of submission of a final completed application, the commissioner of 31 economic development shall provide the applicant with written notice of 32 a determination by the department of economic development approving or 33 denying such certification and, in the event of a denial a statement 34 setting forth the reasons for such denial. Upon a determination denying 35 or revoking certification, the business enterprise for which certif- 36 ication has been so denied or revoked shall, upon written request made 37 within thirty days from receipt of notice of such determination, be 38 entitled to a hearing before an independent hearing officer designated 39 for such purpose by the commissioner of economic development. In the 40 event that a request for a hearing is not made within such thirty day 41 period, such determination shall be deemed to be final. The independent 42 hearing officer shall conduct a hearing and upon the conclusion of such 43 hearing, issue a written recommendation to the commissioner of economic 44 development to affirm, reverse or modify such determination of the 45 commissioner of economic development. Such written recommendation shall 46 be issued to the parties. The commissioner of economic development, 47 within thirty days, by order, must accept, reject or modify such recom- 48 mendation of the hearing officer and set forth in writing the reasons 49 therefor. The commissioner of economic development shall serve a copy of 50 such order and reasons therefor upon the business enterprise by personal 51 service or by certified mail, return receipt requested. The order of the 52 commissioner of economic development shall be subject to review pursuant 53 to article seventy-eight of the civil practice law and rules. 54 (d) All certifications shall be valid for a period of three years. 55 6. Responsibilities of contracting agencies. (a) Each contracting 56 agency shall be responsible for monitoring state contracts under itsS. 929 5 1 jurisdiction, and recommending matters to the department of economic 2 development respecting non-compliance with the provisions of this arti- 3 cle so that the office may take such action as is appropriate to insure 4 compliance with the provisions of this section, the rules and regu- 5 lations of the commissioner of economic development issued hereunder and 6 the contractual provisions required pursuant to this section. All 7 contracting agencies shall comply with the rules and regulations of the 8 department of economic development and are directed to cooperate with 9 the department of economic development and to furnish to the department 10 of economic development such information and assistance as may be 11 required in the performance of its functions under this section. 12 (b) Each contracting agency shall provide to prospective bidders a 13 current copy of the directory of certified business enterprises, and a 14 copy of the regulations required pursuant to subdivision four of this 15 section at the time bids or proposals are solicited. 16 (c) Each contracting agency shall report to the department of economic 17 development with respect to activities undertaken to promote employment 18 of individuals with disabilities and promote and increase participation 19 by certified businesses with respect to state contracts and subcon- 20 tracts. Such reports shall be submitted periodically, but not less 21 frequently than annually, as required by the commissioner of economic 22 development, and shall include such information as is necessary for the 23 commissioner of economic development to determine whether the contract- 24 ing agency and contractor have complied with the purposes of this 25 section, including, without limitation, a summary of all waivers of the 26 requirements of subdivision four of this section allowed by the 27 contracting agency during the period covered by the report, including a 28 description of the basis of the waiver request and the rationale for 29 granting any such waiver. 30 (d) Each agency shall include in its annual report to the governor and 31 legislature pursuant to section one hundred sixty-four of the executive 32 law its annual goals for contracts with qualified business enterprises, 33 the number of actual contracts issued to qualified business enterprises; 34 and a summary of all waivers of the requirements of subdivision four of 35 this section allowed by the reporting agency during the preceding year, 36 including a description of the basis of the waiver request and the 37 rationale for granting such waiver. 38 7. Enforcement. Upon receipt by the commissioner of economic develop- 39 ment of a complaint by a contracting agency that a contractor has 40 violated the provisions of a state contract which have been included to 41 comply with the provisions of this section or of a contractor that a 42 contracting agency has violated such provisions or has failed or refused 43 to issue a waiver where one has been applied for pursuant to subdivision 44 four of this section or has denied such application, the commissioner of 45 economic development shall attempt to resolve the matter giving rise to 46 such complaint. If efforts to resolve such matter to the satisfaction of 47 all parties are unsuccessful, the commissioner of economic development 48 shall refer the matter, within thirty days of the receipt of the 49 complaint, to the department of economic development's hearing officers. 50 Upon conclusion of the administrative hearing, the hearing officer shall 51 submit to the commissioner of economic development his or her decision 52 regarding the alleged violation of the contract and recommendations 53 regarding the imposition of sanctions, fines or penalties. The commis- 54 sioner of economic development, within ten days of receipt of the deci- 55 sion, shall file a determination of such matter and shall cause a copy 56 of such determination along with a copy of this article to be servedS. 929 6 1 upon the contractor by personal service or by certified mail, return 2 receipt requested. The decision of the hearing officer shall be final 3 and may only be vacated or modified as provided in article seventy-eight 4 of the civil practice law and rules upon an application made within the 5 time provided by such article. The determination of the commissioner of 6 economic development as to the imposition of any fines, sanctions or 7 penalties shall be reviewable pursuant to article seventy-eight of the 8 civil practice law and rules. The penalties imposed for any violation 9 which is premised upon either a fraudulent or intentional misrepresen- 10 tation by the contractor or the contractor's willful and intentional 11 disregard of the employee participation requirement included in the 12 contract may include a determination that the contractor shall be ineli- 13 gible to submit a bid to any contracting agency or be awarded any such 14 contract for a period not to exceed one year following the final deter- 15 mination; provided however, if a contractor has previously been deter- 16 mined to be ineligible to submit a bid pursuant to this section, the 17 penalties imposed for any subsequent violation, if such violation occurs 18 within five years of the first violation, may include a determination 19 that the contractor shall be ineligible to submit a bid to any contract- 20 ing agency or be awarded any such contract for a period not to exceed 21 five years following the final determination. The department of economic 22 development shall maintain a website listing all contractors that have 23 been deemed ineligible to submit a bid pursuant to this section and the 24 date after which each contractor shall once again become eligible to 25 submit bids. 26 § 2. This act shall take effect on the one hundred eightieth day after 27 it shall have become a law, provided however that the commissioner of 28 economic development is authorized to promulgate any and all rules and 29 regulations and take any other measures necessary to implement this act 30 on its effective date.
