Bill Text: NY S03390 | 2021-2022 | General Assembly | Amended
Bill Title: Requires post completion certifications to be completed, under penalty of perjury, that the MWBE performed the work, performed the services, or delivered the materials; requires that the division of minority and women's business development create an internet registry, and perform inspections of MWBEs to weed out fraud and abuse; requires that additional regulations be adopted related to revocations of certifications for felony convictions for fraudulently misrepresenting the status of an MWBE; permits a court to issue fines double the amount that should have been paid to an MWBE upon conviction for felony fraud related to the MWBE program.
Spectrum: Partisan Bill (Democrat 2-0)
Status: (Introduced - Dead) 2022-06-01 - SUBSTITUTED BY A9259A [S03390 Detail]
Download: New_York-2021-S03390-Amended.html
STATE OF NEW YORK ________________________________________________________________________ 3390--A Cal. No. 599 2021-2022 Regular Sessions IN SENATE January 29, 2021 ___________ Introduced by Sens. BAILEY, RYAN -- read twice and ordered printed, and when printed to be committed to the Committee on Procurement and Contracts -- recommitted to the Committee on Procurement and Contracts in accordance with Senate Rule 6, sec. 8 -- reported favorably from said committee, ordered to first and second report, ordered to a third reading, amended and ordered reprinted, retaining its place in the order of third reading AN ACT to amend the executive law and the state finance law, in relation to minority and women-owned business enterprises post completion certification, duties of the director and creating the minority and women-owned business enterprise fund The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. The executive law is amended by adding a new section 314-a 2 to read as follows: 3 § 314-a. Post completion certification. The director, in collaboration 4 with the division of minority and women's business development and the 5 department of small business services, shall develop the following 6 standardized certification forms that must be completed under penalty of 7 perjury prior to the prime contractor being paid: 8 1. certification from a representative of the prime contractor that 9 the minority or women-owned business enterprise in fact performed the 10 services or provided the materials that they were contracted to perform 11 or provide; and 12 2. certification from a representative of the minority or women-owned 13 business enterprise that they in fact performed the services or provided 14 the materials that they were contracted to perform or provide. 15 § 2. Paragraphs (f) and (j) of subdivision 3 of section 311 of the 16 executive law, paragraph (f) as amended by chapter 96 of the laws of 17 2019 and paragraph (j) as amended by chapter 825 of the laws of 2021, EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD03040-05-2S. 3390--A 2 1 are amended and three new paragraphs (l), (m) and (n) are added to read 2 as follows: 3 (f) to prepare and update, no less than annually, a directory of 4 certified minority and women-owned business enterprises which shall, 5 wherever practicable, be divided into categories of labor, services, 6 supplies, equipment, materials and recognized construction trades and 7 which shall indicate areas or locations of the state where such enter- 8 prises are available to perform services, and to use this information to 9 create an internet based, searchable, centralized state registry detail- 10 ing certifications, waivers, and all documents submitted pertaining to 11 certification or denial of certification, or compliance with goals for 12 utilization of minority and women-owned business enterprises; 13 (j) to make publicly available records of all waivers of compliance 14 reported pursuant to paragraph (b) of subdivision six of section three 15 hundred thirteen of this article on the division's website; [and] 16 (l) to perform inspections of minority or women-owned business's place 17 of business, warehouse or storage facility to confirm the existence of a 18 workforce, equipment and supplies; 19 (m) to perform inspections of financial records of minority or women- 20 owned business enterprises to ensure such enterprises are in compliance 21 with applicable laws; and 22 (n) to ensure the protection of individuals who report suspected 23 violations of this article and applicable laws related to minority and 24 women-owned business enterprises. 25 § 3. Subdivision 1 of section 314 of the executive law, as amended by 26 chapter 96 of the laws of 2019, is amended to read as follows: 27 1. The director shall promulgate rules and regulations providing for 28 the establishment of a statewide certification program including rules 29 and regulations governing the approval, denial or revocation of any such 30 certification including revocations for convictions for fraudulently 31 misrepresenting the status of minority or women-owned business enter- 32 prises. Such rules shall set forth the maximum personal net worth of a 33 minority group member or woman who may be relied upon to certify a busi- 34 ness as a minority-owned business enterprise or women-owned business 35 enterprise with a minimum personal net worth threshold of fifteen 36 million dollars, and may thereafter establish different maximum levels 37 of personal net worth for minority group members and women on an indus- 38 try-by-industry basis for such industries as the director shall deter- 39 mine. Such regulations relating to the classification of the industry- 40 by-industry personal net worth thresholds above the fifteen million 41 dollar threshold shall consider the personal net worth of the owners of 42 both certified and non-certified businesses, including but not limited 43 to, prime contractors and subcontractors, as well as any such other 44 factors needed to establish such thresholds. Such rules and regulations 45 shall include, but not be limited to, such matters as may be required to 46 ensure that the established procedures thereunder shall at least be in 47 compliance with the code of fair procedure set forth in section seven- 48 ty-three of the civil rights law, and consistent with the provisions of 49 article twenty-three-A of the correction law. 50 § 4. Section 316 of the executive law, as amended by chapter 175 of 51 the laws of 2010, is amended to read as follows: 52 § 316. Enforcement. 1. Upon receipt by the director of a complaint by 53 a contracting agency that a contractor has violated the provisions of a 54 state contract which have been included to comply with the provisions of 55 this article or of a contractor that a contracting agency has violated 56 such provisions or has failed or refused to issue a waiver where one hasS. 3390--A 3 1 been applied for pursuant to subdivision six of section three hundred 2 thirteen of this article or has denied such application, the director 3 shall attempt to resolve the matter giving rise to such complaint. If 4 efforts to resolve such matter to the satisfaction of all parties are 5 unsuccessful, the director shall refer the matter, within thirty days of 6 the receipt of the complaint, to the division's hearing officers. Upon 7 conclusion of the administrative hearing, the hearing officer shall 8 submit to the director his or her decision regarding the alleged 9 violation of the contract and recommendations regarding the imposition 10 of sanctions, fines or penalties. The director, within ten days of 11 receipt of the decision, shall file a determination of such matter and 12 shall cause a copy of such determination along with a copy of this arti- 13 cle to be served upon the contractor by personal service or by certified 14 mail return receipt requested. The decision of the hearing officer shall 15 be final and may only be vacated or modified as provided in article 16 seventy-eight of the civil practice law and rules upon an application 17 made within the time provided by such article. The determination of the 18 director as to the imposition of any fines, sanctions or penalties shall 19 be reviewable pursuant to article seventy-eight of the civil practice 20 law and rules. The penalties imposed for any violation which is premised 21 upon either a fraudulent or intentional misrepresentation by the 22 contractor or the contractor's willful and intentional disregard of the 23 minority and women-owned participation requirement included in the 24 contract may include a determination that the contractor shall be ineli- 25 gible to submit a bid to any contracting agency or be awarded any such 26 contract for a period not to exceed one year following the final deter- 27 mination; provided however, if a contractor has previously been deter- 28 mined to be ineligible to submit a bid pursuant to this section, the 29 penalties imposed for any subsequent violation, if such violation occurs 30 within five years of the first violation, may include a determination 31 that the contractor shall be ineligible to submit a bid to any contract- 32 ing agency or be awarded any such contract for a period not to exceed 33 five years following the final determination. The division of minority 34 and women's business development shall maintain a website listing all 35 contractors that have been deemed ineligible to submit a bid pursuant to 36 this section and the date after which each contractor shall once again 37 become eligible to submit bids. 38 2. Any fines, or portion thereof, imposed pursuant to the foregoing 39 subdivision, or imposed by a court of competent jurisdiction related to 40 convictions involving fraud related to this article or otherwise involv- 41 ing a minority or women-owned business enterprise, may be required by 42 the entity imposing such fines to be paid to the minority and women- 43 owned business enterprise fund established pursuant to section ninety- 44 seven-k of the state finance law. 45 § 5. The state finance law is amended by adding a new section 97-k to 46 read as follows: 47 § 97-k. Minority and women-owned business enterprise fund. 1. There is 48 hereby established in the joint custody of the state comptroller and the 49 commissioner of taxation and finance a special fund to be known as the 50 "minority and women-owned business enterprise fund". 51 2. Such funds shall consist of all moneys appropriated for the purpose 52 of such fund, all moneys transferred or paid to such fund pursuant to 53 law, including pursuant to section three hundred sixteen of the execu- 54 tive law, and contributions consisting of grants, including grants or 55 other financial assistance from any agency of government and all moneysS. 3390--A 4 1 required by the provisions of this section or any other law to be paid 2 into or credited to this fund. 3 3. Monies of the fund, following appropriation by the legislature, 4 shall be expended to acquire software, employ personnel to audit, inves- 5 tigate and prosecute minority and women-owned business enterprise fraud 6 and to underwrite minority and women-owned business enterprise programs 7 to assist minority and women business enterprise owners to develop 8 sustainable businesses. 9 § 6. This act shall take effect immediately; provided, however, that 10 the amendments to article 15-A of the executive law made by sections 11 one, two, three and four of this act shall not affect the repeal of such 12 article and shall be deemed repealed therewith.
