Bill Text: NY S01757 | 2023-2024 | General Assembly | Introduced
Bill Title: Requires contracting agencies to contact minority and women-owned business enterprises when such enterprise is listed on a utilization plan and when a contract is awarded; mandates that the prime contractor use such enterprise identified on the utilization plan, unless such enterprise cannot perform or is no longer state certified.
Spectrum: Partisan Bill (Democrat 5-0)
Status: (Introduced) 2024-05-20 - ADVANCED TO THIRD READING [S01757 Detail]
Download: New_York-2023-S01757-Introduced.html
STATE OF NEW YORK ________________________________________________________________________ 1757 2023-2024 Regular Sessions IN SENATE January 13, 2023 ___________ Introduced by Sen. SANDERS -- read twice and ordered printed, and when printed to be committed to the Committee on Procurement and Contracts AN ACT to amend the executive law, in relation to requiring contracting agencies to contact minority and women-owned business enterprises when such enterprise is listed on a utilization plan and when a contract is awarded The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. Paragraphs (a) and (b) of subdivision 5 of section 313 of 2 the executive law, as amended by chapter 96 of the laws of 2019, are 3 amended and six new paragraphs (b-1), (b-2), (b-3), (b-4), (b-5) and (d) 4 are added to read as follows: 5 (a) Contracting agencies shall administer the rules and regulations 6 promulgated by the director in a good faith effort to achieve the maxi- 7 mum feasible participation by [minority] both minority-owned and [women8owned] women-owned business enterprises adopted pursuant to this article 9 and the regulations of the director prior to the prime contractor's 10 inception of the scope of work outlined in an awarded contract. Such 11 rules and regulations: shall require a prime contractor to [submit a] 12 utilize the minority and women-owned business enterprises listed on the 13 utilization plan [after] submitted when bids are opened, [when bids are14required, but prior] provided that the minority-owned or women-owned 15 business enterprise is still certified with New York state. Prior to the 16 award of a state contract[; shall require] with minority and women-owned 17 business enterprise goals the contracting agency [to] shall review the 18 utilization plan submitted by the prime contractor and [to] shall post 19 the utilization plan and any waivers of compliance issued pursuant to 20 subdivision six of this section on the website of the contracting agen- 21 cy[; shall require the]. Within five business days after an award letter 22 is sent to the prime contractor, the contracting agency shall submit an 23 award notification letter to the minority and women-owned business EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD01171-01-3S. 1757 2 1 enterprise listed on the utilization plan. The minority and women-owned 2 business enterprise listed on the original utilization plan at the time 3 of submission shall not be amended or changed by the contractor after 4 submission to the contracting agency for approval. The contracting agen- 5 cy shall be required to notify the prime contractor in writing within [a6period of time specified by the director] ten days as to any deficien- 7 cies contained in the contractor's utilization plan[;] and shall require 8 remedy thereof within [a period of time specified by the director; shall9require the contractor to submit periodic compliance reports relating to10the operation and implementation of any utilization plan;] seven days of 11 such notification. The contracting agency shall not allow any automatic 12 waivers but shall allow a contractor to apply for a partial or total 13 waiver of the minority and women-owned business enterprise participation 14 requirements pursuant to subdivisions six and seven of this section; 15 shall allow a contractor to file a complaint with the director pursuant 16 to subdivision eight of this section in the event a contracting agency 17 has failed or refused to issue a waiver of the minority and women-owned 18 business enterprise participation requirements or has denied such 19 request for a waiver; and shall allow a contracting agency to file a 20 complaint with the director pursuant to subdivision nine of this section 21 in the event a contractor is failing or has failed to comply with the 22 minority and women-owned business enterprise participation requirements 23 set forth in the state contract where no waiver has been granted. 24 (b) The rules and regulations promulgated pursuant to this subdivision 25 regarding a utilization plan shall provide that where enterprises have 26 been identified within a utilization plan, a contractor shall attempt, 27 in good faith, to utilize such enterprise [at least to the extent indi-28cated], unless such enterprise cannot perform under the contract or such 29 enterprise is no longer certified by the state. A contracting agency may 30 require a contractor to indicate, within a utilization plan, what meas- 31 ures and procedures he or she intends to take to comply with the 32 provisions of this article[, but may not require, as a condition of33award of, or compliance with, a contract that a contractor utilize a34particular enterprise in performance of the contract]. 35 (b-1) After the contracting agency awards a contract, the prime 36 contractor shall execute a subcontractor's agreement and provide a work 37 assignment to the minority and women-owned business enterprises listed 38 in the utilization plan within forty-five days of such award. Failure 39 to comply with this requirement shall result in disqualification of the 40 prime contractor and the contracting agency shall re-award the contract 41 to the next lowest bidder or eligible bidder. 42 (b-2) After receiving the first payment on the contract, the prime 43 contractor shall make payments to the minority and women-owned business 44 enterprise for work performed under the contract within twenty days of 45 receipt of each payment received from the contracting agency. A minority 46 and women-owned business enterprise may notify the contracting agency of 47 any violation of this paragraph by the prime contractor and the 48 contracting agency shall then notify the prime contractor to correct 49 such deficiency within ten days of notification. The failure of the 50 contractor to make such payments to the minority and women-owned busi- 51 ness enterprise shall result in disqualification and the contracting 52 agency shall re-award such contract to the next lowest bidder or eligi- 53 ble bidder. 54 (b-3) A prime contractor which is a certified minority-owned business 55 may self-certify and perform under the contract to meet the contract's 56 minority-owned business enterprise goals.S. 1757 3 1 (b-4) A prime contractor which is a certified women-owned business may 2 self-certify and perform under the contract to meet the contract's 3 women-owned business enterprise goal only, and it must utilize a certi- 4 fied minority-owned business enterprise to perform under the contract to 5 meet the contract's minority-owned business goals. 6 (b-5) A prime contractor which is dually certified minority-owned and 7 women-owned business enterprise may self-certify and perform under the 8 contract to meet the contract's minority-owned and women-owned business 9 enterprise goals. 10 (d) This subdivision shall apply to all public contracts where a 11 public agency issues a request for proposals, notwithstanding whether 12 the contract could otherwise be awarded through the agency's discretion- 13 ary contract award process or the non-existence of a discretionary 14 contract award process within the public agency. 15 § 2. This act shall take effect immediately; provided, however, that 16 the amendments to subdivision 5 of section 313 of the executive law made 17 by section one of this act shall not affect the repeal of such section 18 and shall be deemed repealed therewith.