S T A T E O F N E W Y O R K ________________________________________________________________________ 6753 I N S E N A T E March 16, 2012 ___________ Introduced by Sen. PERALTA -- 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 including the provision of professional services in the minority and women-owned business enterprise program THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: 1 Section 1. Subdivision 13 of section 310 of the executive law, as 2 amended by chapter 506 of the laws of 2009, is amended and a new subdi- 3 vision 23 is added to read as follows: 4 13. "State contract" shall mean: (a) a written agreement or purchase 5 order instrument, providing for a total expenditure in excess of twen- 6 ty-five thousand dollars, whereby a contracting agency is committed to 7 expend or does expend funds in return for labor, services including but 8 not limited to legal, financial and other professional services, 9 supplies, equipment, materials or any combination of the foregoing, to 10 be performed for, or rendered or furnished to the contracting agency; 11 (b) A WRITTEN AGREEMENT, PROVIDING FOR A TOTAL EXPENDITURE IN EXCESS OF 12 FIVE THOUSAND DOLLARS, WHEREBY A CONTRACTING AGENCY IS COMMITTED TO 13 EXPEND OR DOES EXPEND FUNDS IN RETURN FOR PROFESSIONAL SERVICES TO BE 14 PERFORMED FOR, OR RENDERED OR FURNISHED TO THE CONTRACTING AGENCY; (C) a 15 written agreement in excess of one hundred thousand dollars whereby a 16 contracting agency is committed to expend or does expend funds for the 17 acquisition, construction, demolition, replacement, major repair or 18 renovation of real property and improvements thereon; and [(c)] (D) a 19 written agreement in excess of one hundred thousand dollars whereby the 20 owner of a state assisted housing project is committed to expend or does 21 expend funds for the acquisition, construction, demolition, replacement, 22 major repair or renovation of real property and improvements thereon for 23 such project. 24 23. "PROFESSIONAL SERVICES" SHALL MEAN THE PROVISION OF SERVICE FOR 25 WHICH THE PROVIDER OF SUCH SERVICE IS REQUIRED TO HOLD A LICENSE ISSUED 26 PURSUANT TO TITLE EIGHT OF THE EDUCATION LAW OR ARTICLE FIFTEEN OF THE 27 JUDICIARY LAW. EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD14848-01-2 S. 6753 2 1 S 2. Paragraphs (d), (e) and (f) of subdivision 3 of section 311 of 2 the executive law, paragraphs (d) and (e) as amended by chapter 55 of 3 the laws of 1992 and paragraph (f) as added by chapter 261 of the laws 4 of 1988, are amended to read as follows: 5 (d) to review periodically the practices and procedures of each 6 contracting agency with respect to compliance with the provisions of 7 this article, and to require them to file periodic reports with the 8 division of minority and women's business development as to the level of 9 minority and women-owned business enterprises participation in the 10 awarding of agency contracts for goods [and], services AND PROFESSIONAL 11 SERVICES; 12 (e) on January first of each year report to the governor and the 13 chairpersons of the senate finance and assembly ways and means commit- 14 tees on the level of minority and women-owned business enterprises 15 participating in each agency's contracts for goods [and], services AND 16 PROFESSIONAL SERVICES and on activities of the office and effort by each 17 contracting agency to promote employment of minority group members and 18 women, and to promote and increase participation by certified businesses 19 with respect to state contracts and subcontracts so as to facilitate the 20 award of a fair share of state contracts to such businesses. The comp- 21 troller shall assist the division in collecting information on the 22 participation of certified business for each contracting agency. Such 23 report may recommend new activities and programs to effectuate the 24 purposes of this article; 25 (f) to prepare and update periodically a directory of certified minor- 26 ity and women-owned business enterprises which shall, wherever practica- 27 ble, be divided into categories of labor, services, PROFESSIONAL 28 SERVICES, supplies, equipment, materials and recognized construction 29 trades and which shall indicate areas or locations of the state where 30 such enterprises are available to perform services; 31 S 3. Paragraph (a) of subdivision 1 of section 312-a of the executive 32 law, as amended by chapter 175 of the laws of 2010, is amended to read 33 as follows: 34 (a) to determine whether there is a disparity between the number of 35 qualified minority and women-owned businesses ready, willing and able to 36 perform state contracts for commodities, services, PROFESSIONAL SERVICES 37 and construction, and the number of such contractors actually engaged to 38 perform such contracts, and to determine what changes, if any, should be 39 made to state policies affecting minority and women-owned business 40 enterprises; and 41 S 4. Paragraphs (j) and (k) of subdivision 1 of section 313 of the 42 executive law, as added by chapter 175 of the laws of 2010, are amended 43 and two new paragraphs (l) and (m) are added to read as follows: 44 (j) overall agency total dollar value of procurement for certified 45 women-owned business enterprises: twelve and thirty-nine hundredths 46 percent; [and] 47 (k) overall agency total dollar value of procurement for certified 48 minority, women-owned business enterprises: twenty-eight and ninety-two 49 hundredths percent[.]; 50 (L) PROFESSIONAL SERVICES FOR CERTIFIED MINORITY-OWNED BUSINESS ENTER- 51 PRISES: FIFTEEN PERCENT; AND 52 (M) PROFESSIONAL SERVICES FOR CERTIFIED WOMEN-OWNED BUSINESS ENTER- 53 PRISES: FIFTEEN PERCENT. 54 S 5. Section 313-a of the executive law, as added by chapter 175 of 55 the laws of 2010, is amended to read as follows: S. 6753 3 1 S 313-a. Diversity practices of state contractors. The director shall 2 promulgate rules and regulations setting forth measures and procedures 3 to require all contracting agencies, where practicable, feasible and 4 appropriate, to assess the diversity practices of contractors submitting 5 bids or proposals in connection with the award of a state contract. Such 6 rules and regulations shall take into account: the nature of the labor, 7 services, PROFESSIONAL SERVICES, supplies, equipment or materials being 8 procured by the state agency; the method of procurement required to be 9 used by a state agency to award the contract and minority and women- 10 owned business utilization plans required to be submitted pursuant to 11 sections three hundred twelve and three hundred thirteen of this arti- 12 cle; and such other factors as the director deems appropriate or neces- 13 sary to promote the award of state contracts to contractors having sound 14 diversity practices. Such assessment shall not in any way permit the 15 automatic rejection of a bid or procurement contract proposal based on 16 lack of adherence to diversity practices. Each bid or proposal shall be 17 analyzed on an individual per bid or per proposal basis with the 18 contractor's diversity practices considered as only a part of a wider 19 consideration of several factors when deciding to award or decline to 20 award a bid or proposal. The director shall develop the rules and regu- 21 lations required hereunder only after consultation with the state 22 procurement council established by section one hundred sixty-one of the 23 state finance law. 24 S 6. This act shall take effect on the first of January next succeed- 25 ing the date on which it shall have become a law; provided that the 26 amendments to article 15-A of the executive law made by sections one, 27 two, three, four and five of this act, shall not affect the expiration 28 of such article and shall expire therewith. Provided, further, that, 29 effective immediately, any rules and regulations necessary to implement 30 the provisions of this act on its effective date are authorized and 31 directed to be completed on or before such date.