Bill Text: NY S00929 | 2017-2018 | General Assembly | Amended
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-Amended.html
STATE OF NEW YORK ________________________________________________________________________ 929--A 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 -- recommitted to the Committee on Finance in accordance with Senate Rule 6, sec. 8 -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said commit- tee 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 EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD04600-02-8S. 929--A 2 1 investigate complaints brought by or on behalf of such enterprises 2 concerning certification delays and instances of violations of law by 3 state agencies. The statewide advocate shall assist certified businesses 4 and applicants in the certification process. Other functions of the 5 statewide advocate shall be directed by the commissioner of economic 6 development. The advocate may appoint staff to assist in his or her 7 duties. The statewide advocate shall establish a toll-free number at the 8 department of economic development to be used to answer questions 9 concerning the certification process. 10 3. Study of qualified business enterprise programs. The commissioner 11 of economic development is authorized and directed to undertake a state- 12 wide disparity study regarding the participation of qualified business 13 enterprises employing individuals with disabilities in state contracts. 14 The study shall be prepared by an entity independent of the department 15 of economic development and selected through a request for proposal 16 process. The purpose of such study is to determine whether there is a 17 disparity between the number of qualified business enterprises ready, 18 willing and able to perform state contracts for commodities, services 19 and construction, and the number of such contractors actually engaged to 20 perform such contracts, and to determine what changes, if any, should be 21 made to state policies affecting these business enterprises. Such study 22 shall include, but not be limited to, a disparity analysis by market 23 area and region of the state. The commissioner of economic development 24 is directed to transmit the disparity study to the governor and the 25 legislature not later than February fifteenth, two thousand nineteen, 26 and to post the study on the website of the department of economic 27 development. 28 4. Opportunities for qualified business enterprises. (a) Each agency 29 shall structure procurement procedures for contracts made directly or 30 indirectly to qualified business enterprises employing individuals with 31 disabilities to attempt to achieve five percent of state contracts 32 awarded to disabled employee business enterprises. 33 (b) The commissioner of economic development shall promulgate rules 34 and regulations pursuant to the goal established in paragraph (a) of 35 this subdivision that provide measures and procedures to ensure that 36 qualified business enterprises under this section shall be given the 37 opportunity for maximum feasible participation in the performance of 38 state contracts and to assist in the agency's identification of those 39 state contracts for which qualified business enterprises may best bid to 40 actively and affirmatively promote and assist their participation in the 41 performance of state contracts so as to facilitate the agency's achieve- 42 ment of the maximum feasible portion of the goals for state contracts to 43 such businesses. Such rules and regulations: shall require a contractor 44 to submit a utilization plan after bids are opened, when bids are 45 required, but prior to the award of a state contract; shall require the 46 contracting agency to review the utilization plan submitted by the 47 contractor and to post the utilization plan and any waivers of compli- 48 ance issued pursuant to paragraph (c) of this subdivision on the website 49 of the contracting agency within a reasonable period of time as estab- 50 lished by the commissioner of economic development; shall require the 51 contracting agency to notify the contractor in writing within a period 52 of time specified by the commissioner of economic development as to any 53 deficiencies contained in the contractor's utilization plan; shall 54 require remedy thereof within a period of time specified by the commis- 55 sioner of economic development; and shall require the contractor to 56 submit periodic compliance reports relating to the operation and imple-S. 929--A 3 1 mentation of any utilization plan. The rules and regulations promulgated 2 pursuant to this subdivision regarding a utilization plan shall provide 3 that where enterprises have been identified within a utilization plan, a 4 contractor shall attempt, in good faith, to utilize such enterprise at 5 least to the extent indicated. A contracting agency may require a 6 contractor to indicate, within a utilization plan, what measures and 7 procedures he or she intends to take to comply with the provisions of 8 this section, but may not require, as a condition of award of, or 9 compliance with, a contract that a contractor utilize a particular 10 enterprise in performance of the contract. Without limiting other 11 grounds for the disqualification of bids or proposals on the basis of 12 non-responsibility, a contracting agency may disqualify the bid or 13 proposal of a contractor as being non-responsible for failure to remedy 14 notified deficiencies contained in the contractor's utilization plan 15 within a period of time specified in regulations promulgated by the 16 commissioner of economic development after receiving notification of 17 such deficiencies from the contracting agency. Where failure to remedy 18 any notified deficiency in the utilization plan is a ground for disqual- 19 ification, that issue and all other grounds for disqualification shall 20 be stated in writing by the contracting agency. 21 (c) Where it appears that a contractor cannot, after a good faith 22 effort, comply with the qualified business enterprise participation 23 requirements set forth in a particular state contract, a contractor may 24 file a written application with the contracting agency requesting a 25 partial or total waiver of such requirements setting forth the reasons 26 for such contractor's inability to meet any or all of the participation 27 requirements together with an explanation of the efforts undertaken by 28 the contractor to obtain the required disabled employee business enter- 29 prise participation. In implementing the provisions of this section, the 30 contracting agency shall consider the number and types of qualified 31 business enterprises under this section located in the region in which 32 the state contract is to be performed, the total dollar value of the 33 state contract, the scope of work to be performed and the project size 34 and term. If, based on such considerations, the contracting agency 35 determines there is not a reasonable availability of contractors on the 36 list of certified businesses to furnish services for the project, it 37 shall issue a waiver of compliance to the contractor. In making such 38 determination, the contracting agency shall first consider the avail- 39 ability of other business enterprises located in the region and shall 40 thereafter consider the financial ability of businesses located outside 41 the region in which the contract is to be performed to perform the state 42 contract. 43 (d) In the event that a contracting agency fails or refuses to issue a 44 waiver to a contractor as requested within twenty days after having made 45 application therefor pursuant to paragraph (c) of this subdivision or if 46 the contracting agency denies such application, in whole or in part, the 47 contractor may file a complaint with the commissioner of economic devel- 48 opment pursuant to this section setting forth the facts and circum- 49 stances giving rise to the contractor's complaint together with a demand 50 for relief. The contractor shall serve a copy of such complaint upon the 51 contracting agency by personal service or by certified mail, return 52 receipt requested. The contracting agency shall be afforded an opportu- 53 nity to respond to such complaint in writing. 54 (e) If, after the review of a periodic compliance report and after 55 such contractor has been afforded an opportunity to respond to a notice 56 of deficiency issued by the contracting agency in connection therewith,S. 929--A 4 1 it appears that a contractor is failing or refusing to comply with the 2 qualified business enterprise participation requirements as set forth in 3 the state contract and where no waiver from such requirements has been 4 granted, the contracting agency may file a written complaint with the 5 commissioner of economic development pursuant to this section setting 6 forth the facts and circumstances giving rise to the contracting agen- 7 cy's complaint together with a demand for relief. The contracting agen- 8 cy shall serve a copy of such complaint upon the contractor by personal 9 service or by certified mail, return receipt requested. The contractor 10 shall be afforded an opportunity to respond to such complaint in writ- 11 ing. 12 5. Statewide certification program. (a) The commissioner of economic 13 development shall promulgate rules and regulations providing for the 14 establishment of a statewide certification program for business enter- 15 prises under this section including rules and regulations governing the 16 approval, denial or revocation of any such certification. Such rules and 17 regulations shall include, but not be limited to, such matters as may be 18 required to ensure that the established procedures thereunder shall at 19 least be in compliance with the code of fair procedure set forth in 20 section seventy-three of the civil rights law. 21 (b) For the purposes of this section, the department of economic 22 development shall be responsible for verifying businesses as having a 23 workforce made up of at least fifteen percent of individuals with disa- 24 bilities and for certifying such verified businesses. The commissioner 25 of economic development shall prepare a directory of certified busi- 26 nesses for use by contracting agencies and contractors in carrying out 27 the provisions of this section. The commissioner of economic development 28 shall periodically update the directory. 29 (c) Following application for certification pursuant to this subdivi- 30 sion, the commissioner of economic development shall provide the appli- 31 cant with written notice of the status of the application, including 32 notice of any outstanding deficiencies, within thirty days. Within sixty 33 days of submission of a final completed application, the commissioner of 34 economic development shall provide the applicant with written notice of 35 a determination by the department of economic development approving or 36 denying such certification and, in the event of a denial a statement 37 setting forth the reasons for such denial. Upon a determination denying 38 or revoking certification, the business enterprise for which certif- 39 ication has been so denied or revoked shall, upon written request made 40 within thirty days from receipt of notice of such determination, be 41 entitled to a hearing before an independent hearing officer designated 42 for such purpose by the commissioner of economic development. In the 43 event that a request for a hearing is not made within such thirty day 44 period, such determination shall be deemed to be final. The independent 45 hearing officer shall conduct a hearing and upon the conclusion of such 46 hearing, issue a written recommendation to the commissioner of economic 47 development to affirm, reverse or modify such determination of the 48 commissioner of economic development. Such written recommendation shall 49 be issued to the parties. The commissioner of economic development, 50 within thirty days, by order, must accept, reject or modify such recom- 51 mendation of the hearing officer and set forth in writing the reasons 52 therefor. The commissioner of economic development shall serve a copy of 53 such order and reasons therefor upon the business enterprise by personal 54 service or by certified mail, return receipt requested. The order of the 55 commissioner of economic development shall be subject to review pursuant 56 to article seventy-eight of the civil practice law and rules.S. 929--A 5 1 (d) All certifications shall be valid for a period of three years. 2 6. Responsibilities of contracting agencies. (a) Each contracting 3 agency shall be responsible for monitoring state contracts under its 4 jurisdiction, and recommending matters to the department of economic 5 development respecting non-compliance with the provisions of this arti- 6 cle so that the office may take such action as is appropriate to insure 7 compliance with the provisions of this section, the rules and regu- 8 lations of the commissioner of economic development issued hereunder and 9 the contractual provisions required pursuant to this section. All 10 contracting agencies shall comply with the rules and regulations of the 11 department of economic development and are directed to cooperate with 12 the department of economic development and to furnish to the department 13 of economic development such information and assistance as may be 14 required in the performance of its functions under this section. 15 (b) Each contracting agency shall provide to prospective bidders a 16 current copy of the directory of certified business enterprises, and a 17 copy of the regulations required pursuant to subdivision four of this 18 section at the time bids or proposals are solicited. 19 (c) Each contracting agency shall report to the department of economic 20 development with respect to activities undertaken to promote employment 21 of individuals with disabilities and promote and increase participation 22 by certified businesses with respect to state contracts and subcon- 23 tracts. Such reports shall be submitted periodically, but not less 24 frequently than annually, as required by the commissioner of economic 25 development, and shall include such information as is necessary for the 26 commissioner of economic development to determine whether the contract- 27 ing agency and contractor have complied with the purposes of this 28 section, including, without limitation, a summary of all waivers of the 29 requirements of subdivision four of this section allowed by the 30 contracting agency during the period covered by the report, including a 31 description of the basis of the waiver request and the rationale for 32 granting any such waiver. 33 (d) Each agency shall include in its annual report to the governor and 34 legislature pursuant to section one hundred sixty-four of the executive 35 law its annual goals for contracts with qualified business enterprises, 36 the number of actual contracts issued to qualified business enterprises; 37 and a summary of all waivers of the requirements of subdivision four of 38 this section allowed by the reporting agency during the preceding year, 39 including a description of the basis of the waiver request and the 40 rationale for granting such waiver. 41 7. Enforcement. Upon receipt by the commissioner of economic develop- 42 ment of a complaint by a contracting agency that a contractor has 43 violated the provisions of a state contract which have been included to 44 comply with the provisions of this section or of a contractor that a 45 contracting agency has violated such provisions or has failed or refused 46 to issue a waiver where one has been applied for pursuant to subdivision 47 four of this section or has denied such application, the commissioner of 48 economic development shall attempt to resolve the matter giving rise to 49 such complaint. If efforts to resolve such matter to the satisfaction of 50 all parties are unsuccessful, the commissioner of economic development 51 shall refer the matter, within thirty days of the receipt of the 52 complaint, to the department of economic development's hearing officers. 53 Upon conclusion of the administrative hearing, the hearing officer shall 54 submit to the commissioner of economic development his or her decision 55 regarding the alleged violation of the contract and recommendations 56 regarding the imposition of sanctions, fines or penalties. The commis-S. 929--A 6 1 sioner of economic development, within ten days of receipt of the deci- 2 sion, shall file a determination of such matter and shall cause a copy 3 of such determination along with a copy of this article to be served 4 upon the contractor by personal service or by certified mail, return 5 receipt requested. The decision of the hearing officer shall be final 6 and may only be vacated or modified as provided in article seventy-eight 7 of the civil practice law and rules upon an application made within the 8 time provided by such article. The determination of the commissioner of 9 economic development as to the imposition of any fines, sanctions or 10 penalties shall be reviewable pursuant to article seventy-eight of the 11 civil practice law and rules. The penalties imposed for any violation 12 which is premised upon either a fraudulent or intentional misrepresen- 13 tation by the contractor or the contractor's willful and intentional 14 disregard of the employee participation requirement included in the 15 contract may include a determination that the contractor shall be ineli- 16 gible to submit a bid to any contracting agency or be awarded any such 17 contract for a period not to exceed one year following the final deter- 18 mination; provided however, if a contractor has previously been deter- 19 mined to be ineligible to submit a bid pursuant to this section, the 20 penalties imposed for any subsequent violation, if such violation occurs 21 within five years of the first violation, may include a determination 22 that the contractor shall be ineligible to submit a bid to any contract- 23 ing agency or be awarded any such contract for a period not to exceed 24 five years following the final determination. The department of economic 25 development shall maintain a website listing all contractors that have 26 been deemed ineligible to submit a bid pursuant to this section and the 27 date after which each contractor shall once again become eligible to 28 submit bids. 29 § 2. This act shall take effect on the one hundred eightieth day after 30 it shall have become a law, provided however that the commissioner of 31 economic development is authorized to promulgate any and all rules and 32 regulations and take any other measures necessary to implement this act 33 on its effective date.