STATE OF NEW YORK
________________________________________________________________________
1541
2019-2020 Regular Sessions
IN ASSEMBLY
January 15, 2019
___________
Introduced by M. of A. BICHOTTE, MOSLEY, HYNDMAN, WALKER, SEAWRIGHT,
SOLAGES, GOTTFRIED, JEAN-PIERRE, COOK -- Multi-Sponsored by -- M. of
A. ENGLEBRIGHT, SIMON -- read once and referred to the Committee on
Governmental Operations
AN ACT to amend the executive law, in relation to the publication of
information regarding waivers of compliance with state contract
provisions concerning minority and women-owned business enterprise
participation requirements
The People of the State of New York, represented in Senate and Assem-
bly, do enact as follows:
1 Section 1. Subdivision 6 of section 313 of the executive law, as
2 amended by chapter 175 of the laws of 2010, is amended to read as
3 follows:
4 6. (a) Where it appears that a contractor cannot, after a good faith
5 effort, comply with the minority and women-owned business enterprise
6 participation requirements set forth in a particular state contract, a
7 contractor may file a written application with the contracting agency
8 requesting a partial or total waiver of such requirements setting forth
9 the reasons for such contractor's inability to meet any or all of the
10 participation requirements together with an explanation of the efforts
11 undertaken by the contractor to obtain the required minority and women-
12 owned business enterprise participation. In implementing the provisions
13 of this section, the contracting agency shall consider the number and
14 types of minority and women-owned business enterprises located in the
15 region in which the state contract is to be performed, the total dollar
16 value of the state contract, the scope of work to be performed and the
17 project size and term. If, based on such considerations, the contracting
18 agency determines there is not a reasonable availability of contractors
19 on the list of certified business to furnish services for the project,
20 it shall issue a waiver of compliance to the contractor. In making such
21 determination, the contracting agency shall first consider the avail-
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD00217-01-9
A. 1541 2
1 ability of other business enterprises located in the region and shall
2 thereafter consider the financial ability of minority and women-owned
3 businesses located outside the region in which the contract is to be
4 performed to perform the state contract.
5 (b) Within thirty days of the issuance of a partial or total waiver of
6 compliance as provided in paragraph (a) of this subdivision, the
7 contracting agency shall:
8 (i) report the issuance of the waiver to the director; and
9 (ii) publish on the contracting agency's website: (A) information
10 identifying the contract, including the value of the contract; (B) the
11 name of the contractor receiving the waiver; (C) the date of the waiver;
12 (D) whether the waiver was a total or partial waiver; and (E) the
13 specific contract provisions to which the waiver applies.
14 § 2. Paragraphs (h) and (i) of subdivision 3 of section 311 of the
15 executive law, paragraph (h) as amended and paragraph (i) as added by
16 section 1 of part BB of chapter 59 of the laws of 2006, are amended and
17 a new paragraph (j) is added to read as follows:
18 (h) notwithstanding the provisions of section two hundred ninety-six
19 of this chapter, to file a complaint pursuant to the provisions of
20 section two hundred ninety-seven of this chapter where the director has
21 knowledge that a contractor may have violated the provisions of para-
22 graph (a), (b) or (c) of subdivision one of section two hundred ninety-
23 six of this chapter where such violation is unrelated, separate or
24 distinct from the state contract as expressed by its terms; [and]
25 (i) to streamline the state certification process to accept federal
26 and municipal corporation certifications[.]; and
27 (j) to keep a record of partial and total waivers of compliance
28 reported pursuant to paragraph (b) of subdivision six of section three
29 hundred thirteen of this article and to make such record publicly avail-
30 able on the division's website. The record shall provide, at a minimum:
31 (A) information identifying the contract, including the value of the
32 contract; (B) information identifying the contracting agency; (C) the
33 name of the contractor receiving the waiver; and (D) the date of the
34 waiver.
35 § 3. This act shall take effect on the sixtieth day after it shall
36 have become a law; provided, however, that: a. the amendments made to
37 subdivision 6 of section 313 of the executive law by section one of this
38 act shall not affect the expiration of such article and shall be deemed
39 expired therewith; and b. the amendments made to subdivision 3 of
40 section 311 of the executive law by section two of this act shall not
41 affect the expiration of such article and shall be deemed expired there-
42 with. Effective immediately the addition, amendment and/or repeal of
43 any rule or regulation necessary for the implementation of this act on
44 its effective date are authorized to be made on or before such date.