Bill Text: NY S04448 | 2017-2018 | General Assembly | Introduced
Bill Title: Relates to increased participation in state contracts and subcontracts by certified minority and women owned business enterprises; relates to certain performance and payment bond requirements.
Spectrum: Partisan Bill (Democrat 5-0)
Status: (Introduced - Dead) 2018-01-03 - REFERRED TO FINANCE [S04448 Detail]
Download: New_York-2017-S04448-Introduced.html
STATE OF NEW YORK ________________________________________________________________________ 4448 2017-2018 Regular Sessions IN SENATE February 15, 2017 ___________ Introduced by Sens. MONTGOMERY, COMRIE, PARKER -- 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 estab- lishing a mentor-protege program for small and minority and women- owned business concerns and in relation to performance 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 EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD00975-01-7S. 4448 2 1 of this article, and to require them to file [periodic] quarterly 2 reports with the division of minority and women's business development 3 as to the level of minority and women-owned business enterprises partic- 4 ipation in the awarding of agency contracts for goods and services 5 including but not limited to the number of state contracts awarded to 6 certified minority-owned or women-owned business enterprises, the maxi- 7 mum dollar amount obligated pursuant to all those contracts, and the 8 total expenditures made pursuant to all such contracts; the number of 9 state contracts awarded to certified minority or women-owned business 10 enterprises, the maximum dollar amount obligated pursuant to all those 11 contracts, and the total expenditures made pursuant to all such 12 contracts; the number of state contracts awarded which include a utili- 13 zation plan for business participation by certified minority or women- 14 owned business enterprises, the maximum amount obligated pursuant to 15 those contracts, and the total expenditures made pursuant to all such 16 contracts; the number of state contracts awarded upon which a waiver was 17 granted from goals required by the contracts for business participation 18 by certified minority or women-owned business enterprises, and the maxi- 19 mum amount obligated pursuant to those contracts; the number of state 20 contracts awarded which required goals for employment of minority group 21 members and women; and the number of state contracts awarded for which 22 waivers of employment goals required by the contracts have been granted; 23 (e) on January first of each year report to the governor, the tempo- 24 rary president of the senate, the speaker of the assembly, the minority 25 leaders of the senate and the assembly, and the chairpersons of the 26 senate finance and assembly ways and means committees on the [level] 27 actual versus projected levels of minority and women-owned business 28 enterprises participating in each agency's contracts for goods [and], 29 services and construction, including but not limited to the number of 30 state contracts awarded to certified minority-owned or women-owned busi- 31 ness enterprises, the maximum dollar amount obligated pursuant to all 32 those contracts, and the total expenditures made pursuant to all such 33 contracts, and on activities of the office and effort by each contract- 34 ing agency to promote employment of minority group members and women, 35 and to promote and increase participation by certified businesses with 36 respect to state contracts and subcontracts so as to facilitate the 37 award of a fair share of state contracts to such businesses. The comp- 38 troller shall assist the division in collecting information on the 39 participation of certified business for each contracting agency. Such 40 report may recommend new activities and programs to effectuate the 41 purposes of this article; 42 (f) the director shall list in the division's annual report the names 43 of non-compliant agencies and the extent of their noncompliance in 44 submitting its quarterly minority and women-owned business enterprise 45 utilization reports; and, shall implement a master list of all the state 46 agencies required to file quarterly compliance reports and shall attach 47 such list to the division's annual report. 48 (g) to prepare and update [periodically] quarterly a directory of 49 certified minority and women-owned business enterprises which shall, 50 wherever practicable, be divided into categories of labor, services, 51 supplies, equipment, materials and recognized construction trades and 52 which shall indicate areas or locations of the state where such enter- 53 prises are available to perform services, and to use this information to 54 create an internet based, centralized state registry to enable appropri- 55 ate state certified minority and women-owned business enterprises to 56 access contract and subcontract opportunities;S. 4448 3 1 [(g)] (h) to appoint independent hearing officers who by contract or 2 terms of employment shall preside over adjudicatory hearings pursuant to 3 section three hundred fourteen of this article for the office and who 4 are assigned no other work by the office; 5 [(h)] (i) notwithstanding the provisions of section two hundred nine- 6 ty-six of this chapter, to file a complaint pursuant to the provisions 7 of section two hundred ninety-seven of this chapter where the director 8 has knowledge that a contractor may have violated the provisions of 9 paragraph (a), (b) or (c) of subdivision one of section two hundred 10 ninety-six of this chapter where such violation is unrelated, separate 11 or distinct from the state contract as expressed by its terms; and 12 [(i)] (j) to streamline the state certification process to accept 13 federal and municipal corporation certifications. 14 4. The director [may] shall provide assistance to, and facilitate 15 access to programs serving certified businesses as well as applicants to 16 ensure that such businesses benefit, as needed, from technical, manage- 17 rial and financial, and general business assistance; training; market- 18 ing; organization and personnel skill development; project management 19 assistance; technology assistance; bond and insurance education assist- 20 ance; and other business development assistance. In addition, the direc- 21 tor [may] shall, either independently or in conjunction with other state 22 agencies: 23 (a) develop a clearinghouse of information on programs and services 24 provided by entities that may assist such businesses; 25 (b) review bonding and paperwork requirements imposed by contracting 26 agencies that may unnecessarily impede the ability of such businesses to 27 compete; and 28 (c) seek to maximize utilization by minority and women-owned business 29 enterprises of available federal resources including but not limited to 30 federal grants, loans, loan guarantees, surety bonding guarantees, tech- 31 nical assistance, and programs and services of the federal small busi- 32 ness administration. 33 § 2. Subdivision 5 of section 312 of the executive law, as added by 34 chapter 261 of the laws of 1988, is amended to read as follows: 35 5. The director shall promulgate rules and regulations to ensure that 36 contractors and subcontractors undertake programs of affirmative action 37 and equal employment opportunity as required by this section. Such rules 38 and regulations as they pertain to any particular agency shall be devel- 39 oped after consultation with contracting agencies. Such rules and regu- 40 lations [may] shall require a contractor, after notice in a bid solic- 41 itation, to submit an equal employment opportunity program [after bid42opening and prior to the award of any contract] at the time bids are 43 submitted, and [may] shall require the contractor or subcontractor to 44 submit compliance reports relating to the contractor's or subcontrac- 45 tor's operation and implementation of any equal employment opportunity 46 program in effect as of the date the contract is executed. The contract- 47 ing agency [may recommend to the director that] shall have the right to 48 recommend that the director take appropriate action according to the 49 procedures set forth in section three hundred sixteen of this article 50 against the contractor for noncompliance with the requirements of this 51 section. The contracting agency shall be responsible for monitoring 52 compliance with this section. 53 § 3. Subdivisions 2-a, 3 and paragraph (a) of subdivision 5 of section 54 313 of the executive law, subdivision 2-a as added and subdivision 3 and 55 paragraph (a) of subdivision 5 as amended by chapter 175 of the laws of 56 2010, are amended to read as follows:S. 4448 4 1 2-a. The director shall promulgate rules and regulations that will 2 accomplish the following: 3 (a) provide for the certification and decertification of minority and 4 women-owned business enterprises for all agencies through a single proc- 5 ess that meets applicable requirements; 6 (b) require that each contract solicitation document accompanying each 7 solicitation set forth the expected degree of minority and women-owned 8 business enterprise participation based, in part, on: 9 (i) the potential subcontract opportunities available in the prime 10 procurement contract; and 11 (ii) the availability, as contained within the study, of certified 12 minority and women-owned business enterprises to respond competitively 13 to the potential subcontract opportunities; 14 (c) require that each agency provide a current list of certified 15 minority business enterprises to each prospective contractor; 16 (d) allow a contractor that is a certified minority-owned or women- 17 owned business enterprise to use the work it performs to meet require- 18 ments for use of certified minority-owned or women-owned business enter- 19 prises as subcontractors; 20 (e) provide for joint ventures, which a bidder may count toward meet- 21 ing its minority and women-owned business enterprise participation; 22 (f) consistent with subdivision six of this section, provide for 23 circumstances under which an agency may waive obligations of the 24 contractor relating to minority and women-owned business enterprise 25 participation; 26 (g) require that an agency verify that minority and women-owned busi- 27 ness enterprises listed in a successful bid are actually participating 28 to the extent listed in the project for which the bid was submitted; 29 (h) provide for the collection of statistical data by each agency 30 concerning actual minority and women-owned business enterprise partic- 31 ipation; [and] 32 (i) require each agency to consult the most current disparity study 33 when calculating agency-wide and contract specific participation goals 34 pursuant to this article[.]; and 35 (j) encourage joint ventures, partnerships, and mentor-protege 36 relationships as defined in section one hundred forty-seven of the state 37 finance law, between prime contractors and minority and women-owned 38 business enterprises. 39 3. Solely for the purpose of providing the opportunity for meaningful 40 participation by certified businesses in the performance of state 41 contracts as provided in this section, state contracts shall include 42 leases of real property by a state agency to a lessee where: the terms 43 of such leases provide for the construction, demolition, replacement, 44 major repair or renovation of real property and improvements thereon by 45 such lessee; and the cost of such construction, demolition, replacement, 46 major repair or renovation of real property and improvements thereon 47 shall exceed the sum of one hundred thousand dollars. Reports to the 48 director pursuant to section three hundred fifteen of this article shall 49 include activities with respect to all such state contracts. Contracting 50 agencies shall include or require to be included with respect to state 51 contracts for the acquisition, construction, demolition, replacement, 52 major repair or renovation of real property and improvements thereon, 53 such provisions as [may] shall be necessary to effectuate the provisions 54 of this section in every bid specification and state contract, includ- 55 ing, but not limited to: (a) provisions requiring contractors to make a 56 good faith effort to solicit active participation by enterprises identi-S. 4448 5 1 fied in the directory of certified businesses provided to the contract- 2 ing agency by the office; (b) requiring the parties to agree as a condi- 3 tion of entering into such contract, to be bound by the provisions of 4 section three hundred sixteen of this article; and (c) requiring the 5 contractor to include the provisions set forth in paragraphs (a) and (b) 6 of this subdivision in every subcontract in a manner that the provisions 7 will be binding upon each subcontractor as to work in connection with 8 such contract. Provided, however, that no such provisions shall be bind- 9 ing upon contractors or subcontractors in the performance of work or the 10 provision of services that are unrelated, separate or distinct from the 11 state contract as expressed by its terms, and nothing in this section 12 shall authorize the director or any contracting agency to impose any 13 requirement on a contractor or subcontractor except with respect to a 14 state contract. 15 (a) Contracting agencies shall administer the rules and regulations 16 promulgated by the director in a good faith effort to meet the maximum 17 feasible portion of the agency's goals adopted pursuant to this article 18 and the regulations of the director. Such rules and regulations: shall 19 require a contractor to submit a utilization plan [after bids are20opened] at the time the bids are submitted, when bids are required[, but21prior to the award of a state contract]; shall require the contracting 22 agency to review the utilization plan submitted by the contractor and to 23 post the utilization plan and any waivers of compliance issued pursuant 24 to subdivision six of this section on the website of the contracting 25 agency within a reasonable period of time as established by the direc- 26 tor; shall require the contracting agency to notify the contractor in 27 writing within a period of time specified by the director as to any 28 deficiencies contained in the contractor's utilization plan; shall 29 require remedy thereof within a period of time specified by the direc- 30 tor; shall require the contractor to submit [periodic] quarterly compli- 31 ance reports relating to the operation and implementation of any utili- 32 zation plan; shall not allow any automatic waivers but shall allow a 33 contractor to apply for a partial or total waiver of the minority and 34 women-owned business enterprise participation requirements pursuant to 35 subdivisions six and seven of this section; shall allow a contractor to 36 file a complaint with the director pursuant to subdivision eight of this 37 section in the event a contracting agency has failed or refused to issue 38 a waiver of the minority and women-owned business enterprise partic- 39 ipation requirements or has denied such request for a waiver; and shall 40 allow a contracting agency to file a complaint with the director pursu- 41 ant to subdivision nine of this section in the event a contractor is 42 failing or has failed to comply with the minority and women-owned busi- 43 ness enterprise participation requirements set forth in the state 44 contract where no waiver has been granted. 45 § 4. Subdivisions 1, 2 and 3 of section 315 of the executive law, 46 subdivisions 1 and 2 as added by chapter 261 of the laws of 1988 and 47 subdivision 3 as amended by chapter 175 of the laws of 2010 are amended 48 and a new subdivision 2-a is added to read as follows: 49 1. Each contracting agency shall be responsible for monitoring state 50 contracts under its jurisdiction, and recommending matters to the office 51 respecting non-compliance with the provisions of this article so that 52 the office [may] shall take such action as [is appropriate] stated in 53 subdivision three of section three hundred sixteen of this article. Each 54 contracting agency shall have the right to recommend that the director 55 impose a sanction, penalty, or fine for three or more violations of 56 subdivision one of section three hundred sixteen of this article, toS. 4448 6 1 insure compliance with the provisions of this article, the rules and 2 regulations of the director issued hereunder and the contractual 3 provisions required pursuant to this article. All contracting agencies 4 shall comply with the rules and regulations of the office and are 5 directed to cooperate with the office and to furnish to the office such 6 information and assistance as may be required in the performance of its 7 functions under this article. 8 2. Each contracting agency shall provide to prospective bidders a 9 current copy of the directory of certified businesses, and a copy of the 10 regulations required pursuant to sections three hundred twelve and three 11 hundred thirteen of this article at the time bids or proposals are 12 solicited. 13 2-a. Each contracting agency when notifying a contractor of a winning 14 bid award shall also notify any minority or women-owned business enter- 15 prises affiliated with such contractor, per the contractor's submitted 16 utilization plan, of such contractor's receipt of the winning bid award. 17 3. [Each contracting agency shall report to the director with respect18to activities undertaken to promote employment of minority group members19and women and promote and increase participation by certified businesses20with respect to state contracts and subcontracts. Such reports shall be21submitted periodically, but not less frequently than annually, as22required by the director, and shall include such information as is23necessary for the director to determine whether the contracting agency24and contractor have complied with the purposes of this article, includ-25ing, without limitation, a summary of all waivers of the requirements of26subdivisions six and seven of section three hundred thirteen of this27article allowed by the contracting agency during the period covered by28the report, including a description of the basis of the waiver request29and the rationale for granting any such waiver. Each agency shall also30include in such annual report whether or not it has been required to31prepare a remedial plan, and, if so, the plan and the extent to which32the agency has complied with each element of the plan.] (a) Each 33 contracting agency shall prepare a quarterly report and submit copies to 34 the commissioner of economic development, the commissioner of general 35 services, and the director as to the level of minority and women-owned 36 business enterprises participation in the awarding of agency contracts 37 for goods and services, including but not limited to, the number of 38 state contracts awarded to certified minority or women-owned business 39 enterprises; the maximum dollar amount obligated pursuant to all those 40 contracts, and the total expenditures made pursuant to all such 41 contracts; the number of state contracts awarded which include a utili- 42 zation plan for business participation by certified minority or women- 43 owned business enterprises, the maximum amount obligated pursuant to 44 those contracts, and the total expenditures made pursuant to all such 45 contracts; the number of state contracts awarded upon which a waiver was 46 granted from goals required by the contracts for business participation 47 by certified minority or women-owned business enterprises, and the maxi- 48 mum amount obligated pursuant to those contracts; the number of state 49 contracts awarded which required goals for employment of minority group 50 members and women; and the number of state contracts awarded for which 51 waivers of employment goals required by the contracts have been granted; 52 (b) In addition, each contracting agency shall be responsible for the 53 cost of an independent audit resulting from the agency's repeated 54 violations of this section. 55 (c) Within thirty days after completion, a copy of the quarterly 56 minority and women-owned business enterprise report shall be transmittedS. 4448 7 1 to the commissioner of economic development, the commissioner of general 2 services, and the director. A contracting agency, which has not let more 3 than two million dollars in service and/or construction contracts within 4 the applicable period may apply to the commissioner of economic develop- 5 ment, and the director for a waiver of the required annual report. The 6 waiver application shall be made on such form as the commissioner of 7 economic development and the director may prescribe. 8 (d) If a contracting agency shall fail to file or substantially 9 complete, as determined by the commissioner of economic development and 10 the director, the report required by this section, the director shall 11 provide notice to the contracting agency. The notice shall state the 12 following: 13 (i) that the failure to file a report as required is a violation of 14 this section, or in the case of an insufficient report, the manner in 15 which the report submitted is deficient; 16 (ii) that the contracting agency has thirty days to comply with this 17 section or provide an adequate written explanation to the commissioner 18 of economic development and the commissioner of general services and the 19 director of the contracting agency's reasons for the inability to 20 comply; and 21 (iii) that the contracting agency's continued failure to provide 22 either the required report or an adequate explanation will result in an 23 independent audit of the contracting agency, the cost of which shall be 24 borne by the contracting agency. 25 § 5. Section 316 of the executive law, as amended by chapter 175 of 26 the laws of 2010, is amended to read as follows: 27 § 316. [Enforcement] Violations and enforcement. 1. It shall be a 28 violation for any person or entity to: 29 (a) intentionally use or acquire an MWBE name through deceit or other 30 dishonest means in order to negotiate a lower bid from a non-MWBE. 31 (b) submit to the department of economic development, documents or 32 other material as evidence of a good faith effort to comply with the 33 provisions of this article without, in fact, having entered into any 34 contract, agreement, subcontract, or sub-agreement with an MWBE for the 35 use or purchase of such business enterprise's goods or services in the 36 performance of the awarded state contract. 37 (c) fail to provide an MWBE with sufficient information or other 38 required supporting documentation in order for the MWBE to prepare a 39 proper bid. 40 2. Upon receipt by the director of a complaint by a contracting agency 41 that a contractor has violated the provisions of a state contract which 42 have been included to comply with the provisions of this article or of a 43 contractor that a contracting agency has violated such provisions or has 44 failed or refused to issue a waiver where one has been applied for 45 pursuant to subdivision six of section three hundred thirteen of this 46 article or has denied such application, the director shall attempt to 47 resolve the matter giving rise to such complaint. If efforts to resolve 48 such matter to the satisfaction of all parties are unsuccessful, the 49 director shall refer the matter, within thirty days of the receipt of 50 the complaint, to the division's hearing officers. Upon conclusion of 51 the administrative hearing, the hearing officer shall submit to the 52 director his or her decision regarding the alleged violation of the 53 contract and recommendations regarding the imposition of sanctions, 54 fines or penalties. The director, within ten days of receipt of the 55 decision, shall file a determination of such matter and shall cause a 56 copy of such determination along with a copy of this article to beS. 4448 8 1 served upon the contractor by personal service or by certified mail 2 return receipt requested. The decision of the hearing officer shall be 3 final and may only be vacated or modified as provided in article seven- 4 ty-eight of the civil practice law and rules upon an application made 5 within the time provided by such article. The determination of the 6 director as to the imposition of any fines, sanctions or penalties shall 7 be reviewable pursuant to article seventy-eight of the civil practice 8 law and rules. The penalties imposed for any violation which is premised 9 upon either a fraudulent or intentional misrepresentation by the 10 contractor or the contractor's willful and intentional disregard of the 11 minority and women-owned 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 division of minority 22 and women's business development shall maintain a website listing all 23 contractors that have been deemed ineligible to submit a bid pursuant to 24 this section and the date after which each contractor shall once again 25 become eligible to submit bids. 26 3. The director shall impose a sanction, penalty, or fine on any 27 individual or entity that has three or more violations of this article 28 within five years. Such fine shall be paid by such individual or entity. 29 Such fine shall be remitted and deposited into a fund, to be managed by 30 the commissioner of economic development. Such funds shall be used to 31 subsidize the facilitation of the provisions of this article. Other 32 sanctions shall include barring such entity or individual from contract- 33 ing with such agency for a period not to exceed five years. 34 § 6. Subdivision 1 of section 137 of the state finance law, as sepa- 35 rately amended by section 17 of part MM of chapter 57 and by chapter 619 36 of the laws of 2008, is amended to read as follows: 37 1. In addition to other bond or bonds, if any, required by law for the 38 completion of a work specified in a contract for the prosecution of a 39 public improvement for the state of New York a municipal corporation, a 40 public benefit corporation or a commission appointed pursuant to law, or 41 in the absence of any such requirement, the comptroller may or the other 42 appropriate official, respectively, shall nevertheless require prior to 43 the approval of any such contract a bond guaranteeing prompt payment of 44 moneys due to all persons furnishing labor or materials to the contrac- 45 tor or any subcontractors in the prosecution of the work provided for in 46 such contract. Whenever a municipal corporation issues a permit subject 47 to compliance with section two hundred twenty of the labor law, such 48 permittee or its contractor or subcontractors furnishing workers shall 49 post a payment bond subject to this section. Provided, however, that all 50 performance bonds and payment bonds may, at the discretion of the head 51 of the state agency, public benefit corporation or commission, or his or 52 her designee, be dispensed with for the completion of a work specified 53 in a contract for the prosecution of a public improvement for the state 54 of New York for which bids are solicited where the aggregate amount of 55 the contract is under one hundred fifty thousand dollars and provided 56 further, that in a case where the contract is not subject to the multi-S. 4448 9 1 ple contract award requirements of section one hundred thirty-five of 2 this article, such requirements may be dispensed with where the head of 3 the state agency, public benefit corporation or commission finds it to 4 be in the public interest and where the aggregate amount of the contract 5 awarded or to be awarded is less than two hundred thousand dollars. The 6 head of the state agency, public benefit corporation or commission, or 7 his or her designee, shall adjust the aggregate contract amounts listed 8 in this subdivision every year to account for increases in the costs of 9 construction. Advertisements for bids shall provide information on the 10 requirements for, or dispensation of, performance and payment bonds. 11 Provided further, that in a case where a performance or payment bond is 12 dispensed with, twenty per centum may be retained from each progress 13 payment or estimate until the entire contract work has been completed 14 and accepted, at which time the head of the state agency, public benefit 15 corporation or commission shall, pending the payment of the final esti- 16 mate, pay not to exceed seventy-five per centum of the amount of the 17 retained percentage. 18 § 7. Subdivision 4 of section 139-f of the state finance law, as 19 amended by chapter 83 of the laws of 1995, is amended to read as 20 follows: 21 4. Notwithstanding any other provision of this section or other law, 22 requirements for the furnishing of a performance bond or a payment bond 23 may be dispensed with at the discretion of the head of the state agency 24 or corporation, or his or her designee, where the public owner is a 25 state agency or corporation described in subdivision one-a of this 26 section and the aggregate amount of the contract awarded or to be 27 awarded is under fifty thousand dollars and, in a case where the 28 contract is not subject to the multiple contract award requirements of 29 section one hundred thirty-five of this article, such requirements may 30 be dispensed with where the head of the state agency or corporation 31 finds it to be in the public interest and where the aggregate amount of 32 the contract awarded or to be awarded is under [two] three hundred thou- 33 sand dollars. The head of the state agency, public benefit corporation 34 or commission, or his or her designee, shall adjust the aggregate 35 contract amounts listed in this subdivision every year to account for 36 increases in the costs of construction. Advertisements for bids shall 37 provide information on the requirements for, or dispensation of, 38 performance and payment bonds. Provided further, that in a case where a 39 performance or payment bond is dispensed with, twenty per centum may be 40 retained from each progress payment or estimate until the entire 41 contract work has been completed and accepted, at which time the head of 42 the state agency or corporation shall, pending the payment of the final 43 estimate, pay not to exceed seventy-five per centum of the amount of the 44 retained percentage. 45 § 8. The opening paragraph of section 139-g of the state finance law, 46 as amended by chapter 636 of the laws of 2003, is amended to read as 47 follows: 48 In every state agency, department and authority which has let more 49 than two million dollars in service and construction contracts and state 50 assisted project contracts in the prior fiscal year, the chief executive 51 officer of that agency, department or authority shall, with respect to 52 those contracts and state assisted project contracts let by his or her 53 agency, department or authority: 54 § 9. The opening paragraph of subdivision (b) of section 139-g of the 55 state finance law, as amended by chapter 636 of the laws of 2003, is 56 amended to read as follows:S. 4448 10 1 identify all small-business and certified women and minority-owned 2 business concerns which, in the judgment of the chief executive officer 3 of that agency, department or authority, can bid on those contracts and 4 state assisted project contracts which are usually and customarily let 5 by that agency, department or authority, or in which that authority 6 provides a grant or loan or tax exempt financing, with a reasonable 7 expectation of success. Such chief executive officers shall carry out 8 the provisions of this subdivision: 9 § 10. Section 139-g of the state finance law is amended by adding a 10 new subdivision (e) to read as follows: 11 (e) For the purposes of this section, the following words shall have 12 the following meanings: 13 (i) "State assisted project contract" shall mean any written agreement 14 arising out of a state assisted housing project or state assisted 15 economic development project or state assisted higher education project 16 or state assisted hospital or health care facility project, for which 17 the total project cost exceeds two million dollars and for which the 18 project owner is committed to spend or does expend funds for the acqui- 19 sition, construction, demolition, replacement, major repair, or reno- 20 vation of real property and improvements thereon for such project. 21 (ii) "State assisted housing project" shall mean those projects which 22 receive from the New York state housing finance agency tax-exempt 23 financing for all or part of the total project cost. 24 (iii) "State assisted economic development project" shall mean those 25 projects which receive from the New York foundation of science technolo- 26 gy and innovation, or the urban development corporation and its subsid- 27 iaries a grant or loan or tax-exempt financing for all or part of the 28 total project cost. 29 (iv) "State assisted higher education project" shall mean those 30 projects which receive from the dormitory authority of the state of New 31 York a grant or loan or tax-exempt financing for all or part of the 32 total project cost. 33 (v) "State assisted hospital or health care facility project" shall 34 mean those projects which receive from the dormitory authority of the 35 state of New York a grant or loan or tax-exempt financing for all or 36 part of the total project cost. 37 § 11. This act shall take effect immediately, provided however, the 38 amendments to article 15-A of the executive law made by sections one, 39 two, three, four and five of this act shall not affect the expiration of 40 such article and shall expire therewith.