Bill Text: NY S02233 | 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) 2020-01-08 - REFERRED TO FINANCE [S02233 Detail]

Download: New_York-2019-S02233-Introduced.html


                STATE OF NEW YORK
        ________________________________________________________________________
                                          2233
                               2019-2020 Regular Sessions
                    IN SENATE
                                    January 23, 2019
                                       ___________
        Introduced  by  Sen. SANDERS -- read twice and ordered printed, and when
          printed to be committed to the Committee on Finance
        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, paragraphs (g) and (h) of subdivision 3 as amended  and  paragraph
     5  (i)  of  subdivision 3 as added by section 1 of part BB of chapter 59 of
     6  the laws of 2006 and subdivision 4 as amended by chapter 361 of the laws
     7  of 2009, are amended to read as follows:
     8    3. The director shall have the following powers and duties:
     9    (a) to encourage and assist contracting agencies in their  efforts  to
    10  increase  participation by minority and women-owned business enterprises
    11  on state contracts and subcontracts [so as] to facilitate the award of a
    12  fair share of such contracts to them and to provide  on  the  division's
    13  website  a  list  of  each contracting agency's minority and women-owned
    14  business enterprises certification outreach seminars;
    15    (b) to develop standardized forms and reporting documents necessary to
    16  implement this article;
    17    (c) to conduct educational outreach programs to encourage the  certif-
    18  ication of minority and women-owned business enterprises consistent with
    19  the purposes of this article;
    20    (d) to review [periodically] quarterly the practices and procedures of
    21  each  contracting  agency with respect to compliance with the provisions
    22  of this article, and  to  require  them  to  file  [periodic]  quarterly
    23  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.
                                                                   LBD07105-01-9

        S. 2233                             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    (e)  on  January first of each year report to the governor, the tempo-
    22  rary president of the senate, the speaker of the assembly, the  minority
    23  leaders  of  the  senate  and  the assembly, and the chairpersons of the
    24  senate finance and assembly ways and means  committees  on  the  [level]
    25  actual  versus  projected  levels  of  minority and women-owned business
    26  enterprises participating in each agency's contracts  for  goods  [and],
    27  services  and  construction,  including but not limited to the number of
    28  state contracts awarded to certified minority-owned or women-owned busi-
    29  ness enterprises, the maximum dollar amount obligated  pursuant  to  all
    30  those  contracts,  and  the total expenditures made pursuant to all such
    31  contracts, and on activities of the office and effort by each  contract-
    32  ing  agency  to  promote employment of minority group members and women,
    33  and to promote and increase participation by certified  businesses  with
    34  respect  to  state  contracts  and  subcontracts so as to facilitate the
    35  award of a fair share of state contracts to such businesses.  The  comp-
    36  troller  shall  assist  the  division  in  collecting information on the
    37  participation of certified business for each  contracting  agency.  Such
    38  report  may  recommend  new  activities  and  programs to effectuate the
    39  purposes of this article;
    40    (f) the director shall list in the division's annual report the  names
    41  of  non-compliant  agencies  and  the  extent  of their noncompliance in
    42  submitting its quarterly minority and  women-owned  business  enterprise
    43  utilization reports; and, shall implement a master list of all the state
    44  agencies  required to file quarterly compliance reports and shall attach
    45  such list to the division's annual report.
    46    (g) to prepare and update  [periodically]  quarterly  a  directory  of
    47  certified  minority  and  women-owned  business enterprises which shall,
    48  wherever practicable, be divided into  categories  of  labor,  services,
    49  supplies,  equipment,  materials  and recognized construction trades and
    50  which shall indicate areas or locations of the state where  such  enter-
    51  prises are available to perform services, and to use this information to
    52  create an internet based, centralized state registry to enable appropri-
    53  ate  state  certified  minority  and women-owned business enterprises to
    54  access contract and subcontract opportunities;
    55    [(g)] (h) to appoint independent hearing officers who by  contract  or
    56  terms of employment shall preside over adjudicatory hearings pursuant to

        S. 2233                             3
     1  section  three  hundred  fourteen of this article for the office and who
     2  are assigned no other work by the office;
     3    [(h)]  (i) notwithstanding the provisions of section two hundred nine-
     4  ty-six of this chapter, to file a complaint pursuant to  the  provisions
     5  of  section  two hundred ninety-seven of this chapter where the director
     6  has knowledge that a contractor may  have  violated  the  provisions  of
     7  paragraph  (a),  (b)  or  (c)  of subdivision one of section two hundred
     8  ninety-six of this chapter where such violation is  unrelated,  separate
     9  or distinct from the state contract as expressed by its terms; and
    10    [(i)]  (j)  to  streamline  the  state certification process to accept
    11  federal and municipal corporation certifications.
    12    4. The director [may] shall  provide  assistance  to,  and  facilitate
    13  access to programs serving certified businesses as well as applicants to
    14  ensure  that such businesses benefit, as needed, from technical, manage-
    15  rial and financial, and general business assistance;  training;  market-
    16  ing;  organization  and  personnel skill development; project management
    17  assistance; technology assistance; bond and insurance education  assist-
    18  ance; and other business development assistance. In addition, the direc-
    19  tor [may] shall, either independently or in conjunction with other state
    20  agencies:
    21    (a)  develop  a  clearinghouse of information on programs and services
    22  provided by entities that may assist such businesses;
    23    (b) review bonding and paperwork requirements imposed  by  contracting
    24  agencies that may unnecessarily impede the ability of such businesses to
    25  compete; and
    26    (c)  seek to maximize utilization by minority and women-owned business
    27  enterprises of available federal resources including but not limited  to
    28  federal grants, loans, loan guarantees, surety bonding guarantees, tech-
    29  nical  assistance,  and programs and services of the federal small busi-
    30  ness administration.
    31    § 2. Subdivision 5 of section 312 of the executive law,  as  added  by
    32  chapter 261 of the laws of 1988, is amended to read as follows:
    33    5.  The director shall promulgate rules and regulations to ensure that
    34  contractors and subcontractors undertake programs of affirmative  action
    35  and equal employment opportunity as required by this section. Such rules
    36  and regulations as they pertain to any particular agency shall be devel-
    37  oped  after consultation with contracting agencies. Such rules and regu-
    38  lations [may] shall require a contractor, after notice in a  bid  solic-
    39  itation,  to  submit  an equal employment opportunity program [after bid
    40  opening and prior to the award of any contract] at  the  time  bids  are
    41  submitted,  and  [may]  shall require the contractor or subcontractor to
    42  submit compliance reports relating to the  contractor's  or  subcontrac-
    43  tor's  operation  and implementation of any equal employment opportunity
    44  program in effect as of the date the contract is executed. The contract-
    45  ing agency [may recommend to the director that] shall have the right  to
    46  recommend  that  the  director  take appropriate action according to the
    47  procedures set forth in section three hundred sixteen  of  this  article
    48  against  the  contractor for noncompliance with the requirements of this
    49  section. The contracting agency  shall  be  responsible  for  monitoring
    50  compliance with this section.
    51    §  3.  Paragraphs (h) and (i) of subdivision 2-a of section 313 of the
    52  executive law, as added by chapter 175 of the laws of 2010, are  amended
    53  and a new paragraph (j) is added to read as follows:
    54    (h)  provide  for  the  collection  of statistical data by each agency
    55  concerning actual minority and women-owned business  enterprise  partic-
    56  ipation; [and]

        S. 2233                             4
     1    (i)  require  each  agency to consult the most current disparity study
     2  when calculating agency-wide and contract specific  participation  goals
     3  pursuant to this article[.]; and
     4    (j)   encourage   joint  ventures,  partnerships,  and  mentor-protege
     5  relationships as defined in section one hundred forty-seven of the state
     6  finance law, between prime  contractors  and  minority  and  women-owned
     7  business enterprises.
     8    §  4.  Subdivision 3 and paragraph (a) of subdivision 5 of section 313
     9  of the executive law, as amended by chapter 175 of the laws of 2010, are
    10  amended to read as follows:
    11    3. Solely for the purpose of providing the opportunity  for  [meaning-
    12  ful]  increased participation by certified businesses in the performance
    13  of state contracts as provided in this section,  state  contracts  shall
    14  include leases of real property by a state agency to a lessee where: the
    15  terms  of such leases provide for the construction, demolition, replace-
    16  ment, major repair or renovation of real property and improvements ther-
    17  eon by such lessee; and  the  cost  of  such  construction,  demolition,
    18  replacement,  major  repair  or renovation of real property and improve-
    19  ments thereon shall exceed the sum  of  one  hundred  thousand  dollars.
    20  Reports  to  the  director  pursuant to section three hundred fifteen of
    21  this article shall include activities with respect  to  all  such  state
    22  contracts.  Contracting agencies shall include or require to be included
    23  with respect to state contracts for the acquisition, construction, demo-
    24  lition, replacement, major repair or renovation  of  real  property  and
    25  improvements  thereon,  such  provisions  as [may] shall be necessary to
    26  effectuate the provisions of this section in every bid specification and
    27  state contract, including, but not limited to: (a) provisions  requiring
    28  contractors  to make a good faith effort to solicit active participation
    29  by enterprises identified  in  the  directory  of  certified  businesses
    30  provided  to  the  contracting  agency  by the office; (b) requiring the
    31  parties to agree as a condition of entering into such  contract,  to  be
    32  bound  by  the provisions of section three hundred sixteen of this arti-
    33  cle; and (c) requiring the contractor  to  include  the  provisions  set
    34  forth in paragraphs (a) and (b) of this subdivision in every subcontract
    35  in  a manner that the provisions will be binding upon each subcontractor
    36  as to work in connection with such contract. Provided, however, that  no
    37  such  provisions  shall be binding upon contractors or subcontractors in
    38  the performance of work or the provision of services that are unrelated,
    39  separate or distinct from the state contract as expressed by its  terms,
    40  and  nothing  in  this  section  shall  authorize  the  director  or any
    41  contracting agency to impose any requirement on a contractor or  subcon-
    42  tractor except with respect to a state contract.
    43    (a)  Contracting  agencies  shall administer the rules and regulations
    44  promulgated by the director in a good faith effort to meet  the  maximum
    45  feasible  portion of the agency's goals adopted pursuant to this article
    46  and the regulations of the director. Such rules and  regulations:  shall
    47  require  a  contractor  to  submit  a  utilization  plan [after bids are
    48  opened] at the time bids are submitted, when  bids  are  required[,  but
    49  prior  to  the award of a state contract]; shall require the contracting
    50  agency to review the utilization plan submitted by the contractor and to
    51  post the utilization plan and any waivers of compliance issued  pursuant
    52  to  subdivision  six  of  this section on the website of the contracting
    53  agency within a reasonable period of time as established by  the  direc-
    54  tor;  shall  require  the contracting agency to notify the contractor in
    55  writing within a period of time specified by  the  director  as  to  any
    56  deficiencies  contained  in  the  contractor's  utilization  plan; shall

        S. 2233                             5
     1  require remedy thereof within a period of time specified by  the  direc-
     2  tor; shall require the contractor to submit [periodic] quarterly compli-
     3  ance  reports relating to the operation and implementation of any utili-
     4  zation  plan;  shall  not  allow any automatic waivers but shall allow a
     5  contractor to apply for a partial or total waiver of  the  minority  and
     6  women-owned  business  enterprise participation requirements pursuant to
     7  subdivisions six and seven of this section; shall allow a contractor  to
     8  file a complaint with the director pursuant to subdivision eight of this
     9  section in the event a contracting agency has failed or refused to issue
    10  a  waiver  of  the  minority and women-owned business enterprise partic-
    11  ipation requirements or has denied such request for a waiver; and  shall
    12  allow  a contracting agency to file a complaint with the director pursu-
    13  ant to subdivision nine of this section in the  event  a  contractor  is
    14  failing  or has failed to comply with the minority and women-owned busi-
    15  ness enterprise  participation  requirements  set  forth  in  the  state
    16  contract where no waiver has been granted.
    17    §  5. Subdivisions 1 and 3 of section 315 of the executive law, subdi-
    18  vision 1 as added by chapter 261 of the laws of 1988 and  subdivision  3
    19  as amended by chapter 175 of the laws of 2010, are amended and three new
    20  subdivisions 2-a, 3-a and 8 are added to read as follows:
    21    1.  Each  contracting agency shall be responsible for monitoring state
    22  contracts under its jurisdiction, and recommending matters to the office
    23  respecting non-compliance with the provisions of this  article  so  that
    24  the  office  [may]  shall take such action as [is appropriate] stated in
    25  subdivision three of section three hundred sixteen of this article. Each
    26  contracting agency shall have the right to recommend that  the  director
    27  impose  a  sanction,  penalty,  or  fine for three or more violations of
    28  subdivision one of section three hundred sixteen  of  this  article,  to
    29  insure  compliance  with  the  provisions of this article, the rules and
    30  regulations  of  the  director  issued  hereunder  and  the  contractual
    31  provisions  required  pursuant to this article. All contracting agencies
    32  shall comply with the rules  and  regulations  of  the  office  and  are
    33  directed  to cooperate with the office and to furnish to the office such
    34  information and assistance as may be required in the performance of  its
    35  functions under this article.
    36    2-a.  Each contracting agency when notifying a contractor of a winning
    37  bid  award shall also notify any minority or women-owned business enter-
    38  prises affiliated with such contractor, per the  contractor's  submitted
    39  utilization plan, of such contractor's receipt of the winning bid award.
    40    3.  (a)  Each  contracting  agency shall report to the commissioner of
    41  economic development, the  commissioner  of  general  services  and  the
    42  director  with respect to activities undertaken to promote employment of
    43  minority group members and women and promote and increase  participation
    44  by  certified  businesses  with  respect  to state contracts and subcon-
    45  tracts. Such reports shall be  submitted  [periodically,  but  not  less
    46  frequently  than  annually,  as required by the director,] quarterly and
    47  shall include such information as  is  necessary  for  the  director  to
    48  determine  whether  the  contracting agency and contractor have complied
    49  with the purposes of this article, including,  without  limitation,  the
    50  number  of  state contracts awarded to certified minority or women-owned
    51  business enterprises; the maximum dollar amount  obligated  pursuant  to
    52  all  those  contracts,  and  the total expenditures made pursuant to all
    53  such contracts; the number of state contracts awarded  which  include  a
    54  utilization  plan  for  business  participation by certified minority or
    55  women-owned business enterprises, the maximum amount obligated  pursuant
    56  to those contracts, and the total expenditures made pursuant to all such

        S. 2233                             6
     1  contracts;  a summary of all waivers of the requirements of subdivisions
     2  six and seven of section three hundred thirteen of this article  allowed
     3  by  the  contracting  agency  during  the  period covered by the report,
     4  including  a  description  of the basis of the waiver request [and], the
     5  rationale for granting any such waiver and the maximum amount  obligated
     6  pursuant to those contracts; the number of state contracts awarded which
     7  required  goals  for employment of minority group members and women; and
     8  the number of state contracts awarded for which  waivers  of  employment
     9  goals  required  by  the contracts have been granted.  Each agency shall
    10  also include in such annual report whether or not it has  been  required
    11  to prepare a remedial plan, and, if so, the plan and the extent to which
    12  the agency has complied with each element of the plan.
    13    (b)  In addition, each contracting agency shall be responsible for the
    14  cost of an  independent  audit  resulting  from  the  agency's  repeated
    15  violations of this section.
    16    3-a.  Within  thirty  days  after  completion, a copy of the quarterly
    17  minority and women-owned business enterprise report shall be transmitted
    18  to the commissioner of economic development, the commissioner of general
    19  services, and the director. A contracting agency, which has not let more
    20  than two million dollars in service and/or construction contracts within
    21  the applicable period may apply to the commissioner of economic develop-
    22  ment, and the director for a waiver of the required annual  report.  The
    23  waiver  application  shall  be  made on such form as the commissioner of
    24  economic development and the director may prescribe.
    25    8. If a  contracting  agency  shall  fail  to  file  or  substantially
    26  complete,  as determined by the commissioner of economic development and
    27  the director, the report required by this section,  the  director  shall
    28  provide  notice  to  the  contracting agency. The notice shall state the
    29  following:
    30    (a) that the failure to file a report as required is  a  violation  of
    31  this  section,  or  in the case of an insufficient report, the manner in
    32  which the report submitted is deficient;
    33    (b) that the contracting agency has thirty days to  comply  with  this
    34  section  or  provide an adequate written explanation to the commissioner
    35  of economic development and the commissioner of general services and the
    36  director of the  contracting  agency's  reasons  for  the  inability  to
    37  comply; and
    38    (c)  that the contracting agency's continued failure to provide either
    39  the required report or an adequate explanation will result in  an  inde-
    40  pendent  audit  of  the  contracting  agency, the cost of which shall be
    41  borne by the contracting agency.
    42    § 6. Section 316 of the executive law, as amended by  chapter  175  of
    43  the laws of 2010, is amended to read as follows:
    44    §  316.  [Enforcement]  Violations and enforcement.   1. It shall be a
    45  violation for any person or entity to:
    46    a. intentionally use or acquire an MWBE name through deceit  or  other
    47  dishonest means in order to negotiate a lower bid from a non-MWBE.
    48    b.  submit  to  the  department  of economic development, documents or
    49  other material as evidence of a good faith effort  to  comply  with  the
    50  provisions  of  this  article  without, in fact, having entered into any
    51  contract, agreement, subcontract, or sub-agreement with an MWBE for  the
    52  use  or  purchase of such business enterprise's goods or services in the
    53  performance of the awarded state contract.
    54    c. fail to provide  an  MWBE  with  sufficient  information  or  other
    55  required  supporting  documentation  in  order for the MWBE to prepare a
    56  proper bid.

        S. 2233                             7
     1    2. Upon receipt by the director of a complaint by a contracting agency
     2  that a contractor has violated the provisions of a state contract  which
     3  have been included to comply with the provisions of this article or of a
     4  contractor that a contracting agency has violated such provisions or has
     5  failed  or  refused  to  issue  a  waiver where one has been applied for
     6  pursuant to subdivision six of section three hundred  thirteen  of  this
     7  article  or  has  denied such application, the director shall attempt to
     8  resolve the matter giving rise to such complaint. If efforts to  resolve
     9  such  matter  to  the  satisfaction of all parties are unsuccessful, the
    10  director shall refer the matter, within thirty days of  the  receipt  of
    11  the  complaint,  to  the division's hearing officers. Upon conclusion of
    12  the administrative hearing, the hearing  officer  shall  submit  to  the
    13  director  his  or  her  decision  regarding the alleged violation of the
    14  contract and recommendations  regarding  the  imposition  of  sanctions,
    15  fines  or  penalties.  The  director,  within ten days of receipt of the
    16  decision, shall file a determination of such matter and  shall  cause  a
    17  copy  of  such  determination  along  with  a copy of this article to be
    18  served upon the contractor by personal  service  or  by  certified  mail
    19  return  receipt  requested. The decision of the hearing officer shall be
    20  final and may only be vacated or modified as provided in article  seven-
    21  ty-eight  of  the  civil practice law and rules upon an application made
    22  within the time provided by  such  article.  The  determination  of  the
    23  director as to the imposition of any fines, sanctions or penalties shall
    24  be  reviewable  pursuant  to article seventy-eight of the civil practice
    25  law and rules. The penalties imposed for any violation which is premised
    26  upon  either  a  fraudulent  or  intentional  misrepresentation  by  the
    27  contractor  or the contractor's willful and intentional disregard of the
    28  minority and  women-owned  participation  requirement  included  in  the
    29  contract may include a determination that the contractor shall be ineli-
    30  gible  to  submit a bid to any contracting agency or be awarded any such
    31  contract for a period not to exceed one year following the final  deter-
    32  mination;  provided  however, if a contractor has previously been deter-
    33  mined to be ineligible to submit a bid pursuant  to  this  section,  the
    34  penalties imposed for any subsequent violation, if such violation occurs
    35  within  five  years  of the first violation, may include a determination
    36  that the contractor shall be ineligible to submit a bid to any contract-
    37  ing agency or be awarded any such contract for a period  not  to  exceed
    38  five  years  following the final determination. The division of minority
    39  and women's business development shall maintain a  website  listing  all
    40  contractors that have been deemed ineligible to submit a bid pursuant to
    41  this  section  and the date after which each contractor shall once again
    42  become eligible to submit bids.
    43    3.  The director shall impose a sanction,  penalty,  or  fine  on  any
    44  individual  or  entity that has three or more violations of this article
    45  within five years. Such fine shall be paid by such individual or entity.
    46  Such fine shall be remitted and deposited into a fund, to be managed  by
    47  the  commissioner  of economic development.  Such funds shall be used to
    48  subsidize the facilitation of the  provisions  of  this  article.  Other
    49  sanctions shall include barring such entity or individual from contract-
    50  ing with such agency for a period not to exceed five years.
    51    §  7.  Subdivision 1 of section 137 of the state finance law, as sepa-
    52  rately amended by section 17 of part MM of chapter 57 and chapter 619 of
    53  the laws of 2008, is amended to read as follows:
    54    1. In addition to other bond or bonds, if any, required by law for the
    55  completion of a work specified in a contract for the  prosecution  of  a
    56  public  improvement for the state of New York a municipal corporation, a

        S. 2233                             8
     1  public benefit corporation or a commission appointed pursuant to law, or
     2  in the absence of any such requirement, the comptroller may or the other
     3  appropriate official, respectively, shall nevertheless require prior  to
     4  the  approval of any such contract a bond guaranteeing prompt payment of
     5  moneys due to all persons furnishing labor or materials to the  contrac-
     6  tor or any subcontractors in the prosecution of the work provided for in
     7  such  contract. Whenever a municipal corporation issues a permit subject
     8  to compliance with section two hundred twenty of  the  labor  law,  such
     9  permittee  or  its contractor or subcontractors furnishing workers shall
    10  post a payment bond subject to this section. Provided, however, that all
    11  performance bonds and payment bonds may, at the discretion of  the  head
    12  of the state agency, public benefit corporation or commission, or his or
    13  her  designee,  be dispensed with for the completion of a work specified
    14  in a contract for the prosecution of a public improvement for the  state
    15  of  New  York for which bids are solicited where the aggregate amount of
    16  the contract is under one hundred thousand dollars and provided further,
    17  that in a case where  the  contract  is  not  subject  to  the  multiple
    18  contract  award  requirements of section one hundred thirty-five of this
    19  article, such requirements may be dispensed with where the head  of  the
    20  state agency, public benefit corporation or commission finds it to be in
    21  the  public  interest  and  where  the  aggregate amount of the contract
    22  awarded or to be awarded is less than two hundred thousand dollars. In a
    23  case where a contract is awarded to a small business  concern  or  to  a
    24  minority  or  women-owned  business  concern,  all performance bonds and
    25  payment bonds may be dispensed with when the  aggregate  amount  of  the
    26  contract is under five hundred thousand dollars. Advertisements for bids
    27  shall  provide  information  as to the requirements for, or dispensation
    28  of, performance and payment bonds. Provided  further,  that  in  a  case
    29  where a performance or payment bond is dispensed with, twenty per centum
    30  may  be retained from each progress payment or estimate until the entire
    31  contract work has been completed and accepted, at which time the head of
    32  the state agency, public benefit corporation or commission shall,  pend-
    33  ing  the  payment  of the final estimate, pay not to exceed seventy-five
    34  per centum of the amount of the retained percentage.
    35    § 8. Subdivision 4 of section 139-f  of  the  state  finance  law,  as
    36  amended  by  chapter  83  of  the  laws  of  1995, is amended to read as
    37  follows:
    38    4. Notwithstanding any other provision of this section or  other  law,
    39  requirements  for the furnishing of a performance bond or a payment bond
    40  may be dispensed with at the discretion of the head of the state  agency
    41  or  corporation,  or  his  or  her designee, where the public owner is a
    42  state agency or corporation  described  in  subdivision  one-a  of  this
    43  section  and  the  aggregate  amount  of  the  contract awarded or to be
    44  awarded is under fifty  thousand  dollars  and,  in  a  case  where  the
    45  contract  is  not subject to the multiple contract award requirements of
    46  section one hundred thirty-five of this article, such  requirements  may
    47  be  dispensed  with  where  the  head of the state agency or corporation
    48  finds it to be in the public interest and where the aggregate amount  of
    49  the  contract  awarded  or  to  be awarded is under two hundred thousand
    50  dollars. In a case where a contract  is  awarded  to  a  small  business
    51  concern  or  to a minority or women-owned business concern, all perform-
    52  ance bonds and payment bonds may be dispensed with  when  the  aggregate
    53  amount  of  the  contract is under five hundred thousand dollars. Adver-
    54  tisements for proposals shall provide information as to the requirements
    55  for,  or  dispensation  of,  performance  and  payment  bonds.  Provided
    56  further, that in a case where a performance or payment bond is dispensed

        S. 2233                             9
     1  with,  twenty  per  centum may be retained from each progress payment or
     2  estimate until the entire contract work has been completed and accepted,
     3  at which time the head of the state agency or corporation shall, pending
     4  the  payment  of  the final estimate, pay not to exceed seventy-five per
     5  centum of the amount of the retained percentage.
     6    § 9. The opening paragraph of section 139-g of the state finance  law,
     7  as  amended  by  chapter  636 of the laws of 2003, is amended to read as
     8  follows:
     9    In every state agency, department and authority  which  has  let  more
    10  than two million dollars in service and construction contracts and state
    11  assisted project contracts in the prior fiscal year, the chief executive
    12  officer  of  that agency, department or authority shall, with respect to
    13  those contracts and state assisted project contracts let by his  or  her
    14  agency, department or authority:
    15    § 10. The opening paragraph of subdivision (b) of section 139-g of the
    16  state  finance  law,  as  amended by chapter 636 of the laws of 2003, is
    17  amended to read as follows:
    18    identify all small-business and  certified  women  and  minority-owned
    19  business  concerns which, in the judgment of the chief executive officer
    20  of that agency, department or authority, can bid on those contracts  and
    21  state  assisted  project contracts which are usually and customarily let
    22  by that agency, department or authority,  or  in  which  that  authority
    23  provides  a  grant  or  loan  or tax exempt financing, with a reasonable
    24  expectation of success. Such chief executive officers  shall  carry  out
    25  the provisions of this subdivision:
    26    §  11.   Section 139-g of the state finance law is amended by adding a
    27  new subdivision (e) to read as follows:
    28    (e) for the purposes of this section, the following words  shall  have
    29  the following meanings:
    30    (i) "State assisted project contract" shall mean any written agreement
    31  arising  out  of  a  state  assisted  housing  project or state assisted
    32  economic development project or state assisted higher education  project
    33  or  state  assisted  hospital or health care facility project, for which
    34  the total project cost exceeds two million dollars  and  for  which  the
    35  project  owner is committed to spend or does expend funds for the acqui-
    36  sition, construction, demolition, replacement, major  repair,  or  reno-
    37  vation of real property and improvements thereon for such project.
    38    (ii)  "State assisted housing project" shall mean those projects which
    39  receive from the  New  York  state  housing  finance  agency  tax-exempt
    40  financing for all or part of the total project cost.
    41    (iii)  "State  assisted economic development project" shall mean those
    42  projects which receive from the New York foundation of science technolo-
    43  gy and innovation, or the urban development corporation and its  subsid-
    44  iaries  a  grant  or loan or tax-exempt financing for all or part of the
    45  total project cost.
    46    (iv) "State  assisted  higher  education  project"  shall  mean  those
    47  projects  which receive from the dormitory authority of the state of New
    48  York a grant or loan or tax-exempt financing for  all  or  part  of  the
    49  total project cost.
    50    (v)  "State  assisted  hospital or health care facility project" shall
    51  mean those projects which receive from the dormitory  authority  of  the
    52  state  of  New  York  a grant or loan or tax-exempt financing for all or
    53  part of the total project cost.
    54    § 12. This act shall take effect immediately,  provided  however,  the
    55  amendments  to  article  15-A  of the executive law made by sections one

        S. 2233                            10
     1  through six of this act shall not affect the expiration of such  article
     2  and shall expire therewith.
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