Bill Text: NY A08407 | 2019-2020 | General Assembly | Introduced


Bill Title: Relates to opportunities for small businesses and businesses owned by women and minorities.

Spectrum: Partisan Bill (Democrat 10-0)

Status: (Introduced) 2019-06-19 - substituted by s6418a [A08407 Detail]

Download: New_York-2019-A08407-Introduced.html



                STATE OF NEW YORK
        ________________________________________________________________________

                                          8407

                               2019-2020 Regular Sessions

                   IN ASSEMBLY

                                      June 16, 2019
                                       ___________

        Introduced by M. of A. BICHOTTE -- read once and referred to the Commit-
          tee on Ways and Means

        AN  ACT  to  amend  the New York city charter, the education law and the
          public authorities law, in relation to opportunities for  small  busi-
          nesses and businesses owned by women and minorities

          The  People of the State of New York, represented in Senate and Assem-
        bly, do enact as follows:

     1    Section 1. Legislative findings. The legislature finds that  disparity
     2  studies  conducted by the state and the city of New York demonstrate the
     3  continuing effects of discrimination on businesses owned  by  minorities
     4  and  women  in  the  market  where  the  city conducts its procurements.
     5  Therefore, it continues to be appropriate for the city of  New  York  to
     6  establish  and  implement reasonable procedures to secure the meaningful
     7  participation of minority and women-owned businesses, as well as  emerg-
     8  ing  business enterprises, in its procurement process, including but not
     9  limited to measures already authorized by state  and  local  legislation
    10  and rules and the measures authorized in this act.
    11    §  2. Paragraph 1 of subdivision i of section 311 of the New York city
    12  charter, as amended by chapter 19 of the laws of  2018,  is  amended  to
    13  read as follows:
    14    1.  agencies  may  make  procurements  of  goods  [and],  services and
    15  construction for amounts not exceeding [one] five hundred [fifty]  thou-
    16  sand  dollars from businesses certified as minority or women-owned busi-
    17  ness enterprises pursuant to section thirteen hundred four of the  char-
    18  ter without a formal competitive process.
    19    §  3.  Subdivision  a  of section 324 of the New York city charter, as
    20  amended by local law number 17 for the year 2004, is amended to read  as
    21  follows:
    22    a.  Agencies may maintain lists of prequalified vendors and entry into
    23  a  prequalified  group  shall  be  continuously  available.  Prospective
    24  vendors  may be prequalified as contractors for the provision of partic-

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD11067-09-9

        A. 8407                             2

     1  ular types of goods,  services  and  construction,  in  accordance  with
     2  general  criteria  established  by  rule of the procurement policy board
     3  which may include, but shall not be limited  to,  the  experience,  past
     4  performance,  ability to undertake work, financial capability, responsi-
     5  bility, and reliability of prospective bidders, and their  status  as  a
     6  certified  minority  and  women  owned  business  enterprise pursuant to
     7  section thirteen hundred four of the charter, and which may  be  supple-
     8  mented  by  criteria established by rule of the agency for the prequali-
     9  fication  of  vendors  for  particular  types  of  goods,  services   or
    10  construction  or  by criteria published in the City Record by the agency
    11  prior to the prequalification of vendors for a  particular  procurement.
    12  Such  prequalification may be by categories designated by size and other
    13  factors.
    14    § 4. The New York city charter is amended by adding a new section 1206
    15  to read as follows:
    16    §  1206.  Mentoring  program.  1.  The  department   of   design   and
    17  construction  may establish a mentoring program for small businesses and
    18  minority and women owned business enterprises that have  been  certified
    19  pursuant  to  section  thirteen  hundred  four  of  the  charter  in the
    20  construction trades. The  department  of  design  and  construction  may
    21  determine  the  criteria  pursuant to which a business shall be eligible
    22  for and selected as a mentee business participating in the components of
    23  such a program under paragraph c of subdivision five  of  this  section,
    24  the number of mentee businesses to participate in each such component of
    25  such  a program, the criteria for the competitive selection of the firms
    26  that will provide mentoring services, and the assignment of a mentor  to
    27  a specific mentee business.
    28    2.  The  department  of  design  and construction shall be authorized,
    29  notwithstanding any other provision of law:
    30    a. to designate which eligible contracts shall  be  mentoring  program
    31  contracts  under subparagraphs one and two of paragraph c of subdivision
    32  five of this section, respectively;
    33    b. to establish standards for qualifying mentee businesses to  compete
    34  for  a mentoring program contract, provided that no less than two quali-
    35  fied mentee businesses in the program must submit responsive  offers  to
    36  perform the contract;
    37    c.  to  determine  when  bids  or  proposals  for  a mentoring program
    38  contract should be restricted to mentee businesses that,  prior  to  the
    39  receipt of bids or proposals, have been qualified for such competition;
    40    d.  to  competitively  select, designate and contract with one or more
    41  experienced firms that, under the general supervision of the  department
    42  of  design  and  construction,  will  provide  mentoring services to the
    43  mentee businesses, and to assign such mentors  one  or  more  designated
    44  mentee businesses;
    45    e.  to  assist  mentee  businesses  that  have  been awarded mentoring
    46  program contracts to obtain any surety bond  or  contract  of  insurance
    47  required  of them in connection with such contract only, notwithstanding
    48  any provision of section two thousand five hundred four of the insurance
    49  law to the contrary; and
    50    f. in addition to the benefits of such program and notwithstanding any
    51  other provision of law, to provide mentee businesses  technical  assist-
    52  ance  in  obtaining  bid,  payment and performance bonding for contracts
    53  that are not mentoring program contracts, for which the  businesses  are
    54  otherwise qualified.
    55    3.  If the total number of qualified mentee businesses that respond to
    56  a competition and are considered capable of meeting  the  specifications

        A. 8407                             3

     1  and  terms  of  the  invitation  to  compete is less than two, or if the
     2  department of design and construction determines that acceptance of  the
     3  best  offer  will  result  in  the payment of an unreasonable price, the
     4  department  of design and construction shall reject all offers and with-
     5  draw the designation of the contract as a mentoring program contract. If
     6  the department of design and construction withdraws the  designation  of
     7  the  contract as a mentoring program contract, the mentee businesses, if
     8  any, that made offers shall be notified.
     9    4. A mentor shall provide services and assistance to a mentee business
    10  as designated by the department of design and  construction,  which  may
    11  include the following:
    12    a.  provide  business  training  in  the skills necessary to operate a
    13  successful business and to compete for and perform a contract;
    14    b. provide technical assistance to the mentee business to  assess  the
    15  outcome  if  the  mentee  business  competes  for  but  is not awarded a
    16  contract;
    17    c. if the mentoring program contract is awarded to  the  mentee  busi-
    18  ness,  provide  guidance,  advice and technical assistance to the mentee
    19  business in the performance of the contract; and
    20    d. provide other technical assistance to the mentee business to facil-
    21  itate learning, training and other issues which may arise.
    22    5. As used in this section:
    23    a. "Small business" means a business which (1) is independently  owned
    24  and operated; and (2) has annual revenues not exceeding a fiscal limita-
    25  tion of five million dollars or such lesser amount as established by the
    26  department of design and construction pursuant to this section.
    27    b.  "Mentoring  program  contract"  means a contract designated by the
    28  department of design and construction, in an  estimated  amount  of  not
    29  more  than one million five hundred thousand dollars for contracts under
    30  subparagraph one of paragraph c of this subdivision  and  three  million
    31  dollars  for  contracts  under  subparagraph  two of such paragraph, for
    32  which bids or proposals are to be invited and accepted only  from  busi-
    33  nesses  that  are enrolled in a mentoring program and have been selected
    34  by the  department  of  design  and  construction  to  compete  for  the
    35  contract.
    36    c.  "Mentoring  program"  is  a  program  established pursuant to this
    37  section to provide mentee businesses with the opportunity:
    38    (1) for up to four years,  to  compete  for  and,  where  awarded,  to
    39  perform  certain  contracts  designated  for  inclusion in the mentoring
    40  program, with the assistance of a  competitively  selected  mentor  firm
    41  that  has extensive management and mentoring experience, with the mentor
    42  providing the mentee business with advice and  assistance  in  competing
    43  for and managing contracts; and
    44    (2)   for  a  mentee  business  that  the  department  of  design  and
    45  construction has determined has successfully completed the program under
    46  subparagraph one of this paragraph, for up to four additional years, (A)
    47  additional opportunities to compete with other designated  mentee  busi-
    48  nesses  in the program for certain contracts to be designated for inclu-
    49  sion under  this  subparagraph  and,  where  awarded,  to  perform  such
    50  contracts,  with  the  further  assistance  of  a competitively selected
    51  mentor firm that has extensive management and mentoring experience, with
    52  the mentor providing the mentee with advice and technical assistance  in
    53  competing  for and managing contracts, and (B) assistance, as determined
    54  by the department of design and construction, for such a mentee business
    55  to obtain bonding for contracts that are competitively awarded  pursuant
    56  to any other provision of law.

        A. 8407                             4

     1    6. Commencing on October first, two thousand twenty, the department of
     2  design  and  construction  shall submit an annual report to the governor
     3  and the legislature that contains  the  following  information  for  the
     4  preceding city fiscal year:
     5    a.  the  total  number  and  total  dollar  value of mentoring program
     6  contracts; and
     7    b. mentoring program participation rates.
     8    § 5. Paragraph (a) of subdivision 36 of section 2590-h of  the  educa-
     9  tion  law,  as amended by chapter 345 of the laws of 2009, is amended to
    10  read as follows:
    11    (a) Such policy shall specifically include:
    12    (i) a competitive sealed bidding process for the awarding of contracts
    13  in which sealed bids are  publicly  solicited  and  opened  and  that  a
    14  contract is awarded to the lowest responsive, responsible bidder;
    15    (ii)  processes  for  awarding contracts using alternatives to compet-
    16  itive sealed bidding where competitive sealed bidding is not practicable
    17  or not advantageous, in which  case  the  most  competitive  alternative
    18  method  of  procurement,  which  is appropriate under the circumstances,
    19  shall be used consistent with the requirements of subparagraph (vii)  of
    20  this paragraph;
    21    (iii)  measures  to  enhance  the  ability of minority and women owned
    22  business enterprises pursuant to section thirteen hundred  four  of  the
    23  New  York  city  charter  and a certified business as defined in section
    24  three hundred ten of the executive law, including firms certified pursu-
    25  ant to article fifteen-A of the executive law  and  firms  certified  as
    26  minority  and women owned business enterprises pursuant to section thir-
    27  teen hundred four of the New York city charter, to compete for contracts
    28  and to ensure their meaningful participation in the procurement process.
    29  The school district shall have the authority to use the  same  measures,
    30  to enhance minority and women owned business enterprise participation as
    31  are  available to the city of New York pursuant to article five-A of the
    32  general municipal law, section thirteen hundred four  of  the  New  York
    33  city  charter,  paragraphs one and two of subdivision i of section three
    34  hundred eleven of the New York city charter, and section  6-129  of  the
    35  administrative code of the city of New York;
    36    (iv)  the  manner  for  administering  contracts  and  overseeing  the
    37  performance of contracts and contractors;
    38    (v) standards and procedures to be used in determining whether bidders
    39  are responsible;
    40    (vi) circumstances  under  which  procurement  may  be  used  for  the
    41  provision of technical, consultant or personal services;
    42    (vii)  requiring  written  justification  for the basis, including the
    43  efficiency, benefit,  and  necessity,  for  awarding  a  contract  using
    44  procurement  methods  other  than  competitive  sealed bidding including
    45  competitive sealed proposals and sole source contracts, and for awarding
    46  technical, consultant, or personal services contracts, franchises, revo-
    47  cable consents, or concessions.  Such  written  justification  shall  be
    48  filed with the comptroller of the city of New York along with the corre-
    49  sponding contract, franchise, revocable consent, or concession;
    50    (viii)  maintaining  a  file  for  every contract franchise, revocable
    51  consent, and concession containing information pertaining to the  solic-
    52  itation, award and management of every such contract or agreement.  Such
    53  file  shall  contain  copies  of  each  determination, writing or filing
    54  required by this subdivision and shall be open to public inspection with
    55  adequate protection for information which is confidential;

        A. 8407                             5

     1    (ix) a process for the filing of all contracts, franchises,  revocable
     2  consents, and concessions with the comptroller of the city of New York;
     3    (x)  a  process for emergency procurement in the case of an unforeseen
     4  danger to life, safety, property or a necessary  service  provided  that
     5  such  procurement  shall be made with such competition as is practicable
     6  under the circumstances and that a written determination  of  the  basis
     7  for the emergency procurement shall be required and filed with the comp-
     8  troller  of  the  city of New York when such emergency contract is filed
     9  with such comptroller; and
    10    (xi) procedures for the fair  and  equitable  resolution  of  contract
    11  disputes.
    12    §  6.  Paragraph  b  of  subdivision  2  of section 1743 of the public
    13  authorities law, as added by chapter 562 of the laws of 1990, is amended
    14  to read as follows:
    15    b. The authority shall establish and implement  reasonable  procedures
    16  to secure the meaningful participation of minority and women owned busi-
    17  ness  enterprises  in its procurement process. In addition to procedures
    18  it has already adopted for such purpose, the authority may use the  same
    19  measures,  to  enhance  minority  and  women  owned  business enterprise
    20  participation, as are available to the city  of  New  York  pursuant  to
    21  article  five-A  of  the general municipal law, section thirteen hundred
    22  four of the New York city charter, paragraphs one and two of subdivision
    23  i of section three hundred eleven of the  New  York  city  charter,  and
    24  section 6-129 of the administrative code of the city of New York.
    25    §  7.  This  act  shall take effect immediately and shall apply to any
    26  contract entered into, renewed, modified or amended  on  or  after  such
    27  date; provided that the amendments to paragraph (a) of subdivision 36 of
    28  section  2590-h  of  the  education law made by section five of this act
    29  shall not affect the expiration and reversion of such subdivision pursu-
    30  ant to section 34 of chapter 91 of the laws  of  2002,  as  amended  and
    31  shall be deemed to expire therewith.
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