Bill Text: NY S06046 | 2019-2020 | General Assembly | Introduced


Bill Title: Relates to the minority and women-owned business enterprise program and extends authorization for the minority and women-owned business enterprise program.

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Introduced - Dead) 2020-01-08 - REFERRED TO FINANCE [S06046 Detail]

Download: New_York-2019-S06046-Introduced.html



                STATE OF NEW YORK
        ________________________________________________________________________

                                          6046

                               2019-2020 Regular Sessions

                    IN SENATE

                                      May 16, 2019
                                       ___________

        Introduced  by  Sen.  KAPLAN -- 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  the  minority  and
          women-owned  business  enterprise program; to amend chapter 261 of the
          laws of 1988, amending the state finance law and other  laws  relating
          to  the  New  York state infrastructure trust fund, in relation to the
          effectiveness thereof; to amend the  executive  law,  in  relation  to
          goals  and requirements of contractors and agencies under the minority
          and women-owned business enterprise program; and to amend  the  execu-
          tive law, in relation to reporting requirements under 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. Paragraph (b) of subdivision 8 and subdivisions 21  and  22
     2  of  section  310 of the executive law, paragraph (b) of subdivision 8 as
     3  added by chapter 261 of the laws of 1988 and subdivisions 21 and  22  as
     4  added  by  chapter  175  of  the  laws  of  2010, are amended to read as
     5  follows:
     6    (b) [Hispanic]  Hispanic/Latino  persons  of  Mexican,  Puerto  Rican,
     7  Dominican, Cuban, Central or South American of either Indian or Hispanic
     8  origin, regardless of race;
     9    21.  "The  [2010] two thousand sixteen disparity study" shall refer to
    10  the disparity study commissioned by the [empire state development corpo-
    11  ration] department of economic development, pursuant  to  section  three
    12  hundred  twelve-a  of this article, and published on [April twenty-nine,
    13  two thousand ten] June thirtieth, two thousand seventeen.
    14    22. "Diversity practices" shall mean the  contractor's  practices  and
    15  policies with respect to:
    16    (a)  [utilizing] mentoring certified minority and women-owned business
    17  enterprises in contracts awarded by  a  state  agency  or  other  public
    18  corporation, as subcontractors and suppliers; [and]

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD11788-02-9

        S. 6046                             2

     1    (b)  entering  into  partnerships,  joint  ventures  or  other similar
     2  arrangements with certified minority  and  women-owned  business  enter-
     3  prises  as  defined in this article or other applicable statute or regu-
     4  lation governing an entity's  utilization  of  minority  or  women-owned
     5  business enterprises; and
     6    (c)  the representation of minority group members and women as members
     7  of the board of directors or executive officers of the contractor.
     8    § 2. Section 312-a of the executive law, as amended by  section  1  of
     9  part Q of chapter 58 of the laws of 2015, is amended to read as follows:
    10    §  312-a.  Study  of  minority  and  women-owned  business [enterprise
    11  programs] enterprises. 1. The director of the division of  minority  and
    12  women-owned business development [in the department of economic develop-
    13  ment]  is  authorized and directed to recommission a statewide disparity
    14  study regarding the participation of minority and  women-owned  business
    15  enterprises in state contracts since the amendment of this article to be
    16  delivered   to  the  governor  and  legislature  no  later  than  August
    17  fifteenth, two thousand  [sixteen]  twenty-three.  The  study  shall  be
    18  prepared by an entity independent of the department and selected through
    19  a request for proposal process. The purpose of such study is:
    20    (a)  to  determine  whether there is a disparity between the number of
    21  qualified minority and women-owned businesses ready, willing and able to
    22  perform state contracts for commodities, services and construction,  and
    23  the  number  of  such  contractors  actually  engaged  to  perform  such
    24  contracts, and to determine what changes, if  any,  should  be  made  to
    25  state  policies affecting minority and women-owned business enterprises;
    26  and (b) to determine whether there is a disparity between the number  of
    27  qualified  minorities and women ready, willing and able, with respect to
    28  labor markets, qualifications and other relevant factors, to participate
    29  in contractor employment, management level bodies, including  boards  of
    30  directors,  and as senior executive officers within contracting entities
    31  and the number of such group members  actually  employed  or  affiliated
    32  with  state  contractors in the aforementioned capacities, and to deter-
    33  mine what changes, if any, should be made to  state  policies  affecting
    34  minority  and  women group populations with regard to state contractors'
    35  employment and appointment practices relative to diverse group  members.
    36  Such  study  shall  include,  but  not be limited to, an analysis of the
    37  history of minority and women-owned  business  enterprise  programs  and
    38  their effectiveness as a means of securing and ensuring participation by
    39  minorities and women, and a disparity analysis by market area and region
    40  of  the  state.  Such  study  shall  distinguish between minority males,
    41  minority females and non-minority females in the statistical analysis.
    42    2. The director of the division of minority and  women-owned  business
    43  development  is directed to transmit the disparity study to the governor
    44  and the legislature  not  later  than  August  fifteenth,  two  thousand
    45  [sixteen]  twenty-three,  and  to  post  the study on the website of the
    46  department of economic development.
    47    § 3. The opening paragraph of subdivision (h) of section 121 of  chap-
    48  ter  261  of  the laws of 1988, amending the state finance law and other
    49  laws relating to the  New  York  state  infrastructure  trust  fund,  as
    50  amended  by  section 1 of part OOO of chapter 59 of the laws of 2018, is
    51  amended to read as follows:
    52    The provisions of sections sixty-two through  sixty-six  of  this  act
    53  shall expire April fifteenth, two thousand twenty-four, provided, howev-
    54  er, that if the statewide disparity study regarding the participation of
    55  minority   and  women-owned  business  enterprises  in  state  contracts
    56  required pursuant to subdivision 1 of section 312-a of the executive law

        S. 6046                             3

     1  is completed and delivered to the governor and  the  legislature  on  or
     2  before  August  fifteenth two thousand twenty-three, then the provisions
     3  of sections sixty-two through sixty-six of this act shall expire and  be
     4  deemed  repealed on December thirty-first, two thousand [nineteen] twen-
     5  ty-four, except that:
     6    § 4. Subdivisions 1, 1-a, 1-b, 2, 2-a, 3, 4 and 5 of  section  313  of
     7  the  executive  law,  subdivisions 1, 3, 4 and 5 as amended and subdivi-
     8  sions 1-a, 1-b, 2 and 2-a as added by chapter 175 of the laws  of  2010,
     9  are amended and a new subdivision 1-c is added to read as follows:
    10    1.  Goals  and requirements for agencies and contractors.  Each agency
    11  shall structure procurement procedures for contracts  made  directly  or
    12  indirectly  to minority and women-owned business enterprises, in accord-
    13  ance with the findings of  the  two  thousand  [ten]  sixteen  disparity
    14  study,  consistent  with  the  purposes  of  this article, to attempt to
    15  achieve the [following] recommended results with regard to total  annual
    16  statewide procurement for each of the following:
    17    (a) construction industry for certified minority-owned business enter-
    18  prises[: fourteen and thirty-four hundredths percent];
    19    (b)  construction  industry  for certified women-owned business enter-
    20  prises[: eight and forty-one hundredths percent];
    21    (c) construction related professional services industry for  certified
    22  minority-owned business enterprises[: thirteen and twenty-one hundredths
    23  percent];
    24    (d)  construction related professional services industry for certified
    25  women-owned business  enterprises[:  eleven  and  thirty-two  hundredths
    26  percent];
    27    (e)  non-construction  related services industry for certified minori-
    28  ty-owned business enterprises[: nineteen and sixty hundredths percent];
    29    (f) non-construction related services industry  for  certified  women-
    30  owned   business   enterprises[:  seventeen  and  forty-four  hundredths
    31  percent];
    32    (g) commodities industry for certified minority-owned business  enter-
    33  prises[: sixteen and eleven hundredths percent];
    34    (h)  commodities  industry  for  certified women-owned business enter-
    35  prises[:  ten and ninety-three hundredths percent];
    36    (i) overall agency total dollar value  of  procurement  for  certified
    37  minority-owned business enterprises[: sixteen and fifty-three hundredths
    38  percent];
    39    (j)  overall  agency  total  dollar value of procurement for certified
    40  women-owned business enterprises[:  twelve  and  thirty-nine  hundredths
    41  percent]; and
    42    (k)  overall  agency  total  dollar value of procurement for certified
    43  minority, women-owned business enterprises[: twenty-eight and ninety-two
    44  hundredths percent].
    45    1-a. The director  shall  ensure  that  each  state  agency  has  been
    46  provided with a copy of the two thousand [ten] sixteen disparity study.
    47    1-b.  Each  agency shall develop and adopt agency-specific goals based
    48  on the findings of the two thousand [ten] sixteen disparity study.
    49    1-c. The goals set pursuant to subdivision one of this  section  shall
    50  be  consistent  with  the findings of the two thousand sixteen disparity
    51  study.
    52    2. The director shall promulgate rules and regulations pursuant to the
    53  goals established in subdivision one of this section and findings of the
    54  two thousand sixteen disparity study that provide  measures  and  proce-
    55  dures to ensure that certified minority and women-owned businesses shall
    56  be  given  the  opportunity  for  maximum  feasible participation in the

        S. 6046                             4

     1  performance of state contracts and to assist in the agency's identifica-
     2  tion of those state contracts for which minority and women-owned  certi-
     3  fied  businesses  may best bid to actively and affirmatively promote and
     4  assist  their  participation in the performance of state contracts so as
     5  to facilitate the agency's achievement of the maximum  feasible  portion
     6  of the goals for state contracts to such businesses.
     7    2-a.  The  director  shall  promulgate rules and regulations that will
     8  accomplish the following:
     9    (a) provide for the certification and decertification of minority  and
    10  women-owned business enterprises for all agencies through a single proc-
    11  ess that meets applicable requirements;
    12    (b) require that each contract solicitation document accompanying each
    13  solicitation  set  forth the expected degree of minority and women-owned
    14  business enterprise participation based, in part, on:
    15    (i) the potential subcontract opportunities  available  in  the  prime
    16  procurement contract; and
    17    (ii)  the  availability,  as  contained within the study, of certified
    18  minority and women-owned business enterprises to  respond  competitively
    19  to the potential subcontract opportunities;
    20    (iii) the findings of the two thousand sixteen disparity study;
    21    (c)  require  that  each  agency  provide  a current list of certified
    22  minority business enterprises to each prospective contractor;
    23    (d) allow a contractor that is a certified  minority-owned  or  women-
    24  owned  business  enterprise to use the work it performs to meet require-
    25  ments for use of certified minority-owned or women-owned business enter-
    26  prises as subcontractors;
    27    (e) establish criteria for agencies to  credit  the  participation  of
    28  minority and women-owned business enterprises towards the achievement of
    29  the  minority and women-owned business enterprise participation goals on
    30  a state contract based on the commercially useful function  provided  by
    31  each minority and women-owned business enterprise on the contract;
    32    (f)  provide for joint ventures, which a bidder may count toward meet-
    33  ing its minority and women-owned business enterprise participation;
    34    [(f)] (g) consistent with subdivision six of this section, provide for
    35  circumstances under  which  an  agency  may  waive  obligations  of  the
    36  contractor  relating  to  minority  and  women-owned business enterprise
    37  participation;
    38    [(g)] (h) require that an agency verify that minority and  women-owned
    39  business enterprises listed in a successful bid are actually participat-
    40  ing to the extent listed in the project for which the bid was submitted;
    41    [(h)] (i) provide for the collection of statistical data by each agen-
    42  cy  concerning  actual  minority  and  women-owned  business  enterprise
    43  participation; and
    44    [(i)] (j) require each agency to consult the  most  current  disparity
    45  study  when  calculating agency-wide and contract specific participation
    46  goals pursuant to this article.
    47    3. Solely for the purpose of providing the opportunity for  meaningful
    48  participation  by  certified  businesses  in  the  performance  of state
    49  contracts as provided in this section,  state  contracts  shall  include
    50  leases  of  real property by a state agency to a lessee where: the terms
    51  of such leases provide for the  construction,  demolition,  replacement,
    52  major  repair or renovation of real property and improvements thereon by
    53  such lessee; and the cost of such construction, demolition, replacement,
    54  major repair or renovation of real  property  and  improvements  thereon
    55  shall  exceed  the  sum  of one hundred thousand dollars. Reports to the
    56  director pursuant to section three hundred fifteen of this article shall

        S. 6046                             5

     1  include activities with respect to all such state contracts. Contracting
     2  agencies shall include or require to be included with respect  to  state
     3  contracts  for  the  acquisition, construction, demolition, replacement,
     4  major  repair  or  renovation of real property and improvements thereon,
     5  such provisions as may be necessary to effectuate the provisions of this
     6  section in every bid specification and state  contract,  including,  but
     7  not  limited  to:  (a)  provisions  requiring contractors to make a good
     8  faith effort to solicit active participation by  enterprises  identified
     9  in  the  directory  of  certified businesses provided to the contracting
    10  agency by the office; (b) requiring the parties to agree as a  condition
    11  of entering into such contract, to be bound by the provisions of section
    12  three  hundred sixteen of this article; and (c) requiring the contractor
    13  to include the provisions set forth in paragraphs (a) and  (b)  of  this
    14  subdivision in every subcontract in a manner that the provisions will be
    15  binding  upon  each  subcontractor  as  to  work in connection with such
    16  contract. Provided, however, that no such provisions  shall  be  binding
    17  upon  contractors  or  subcontractors  in the performance of work or the
    18  provision of services that are unrelated, separate or distinct from  the
    19  state  contract  as  expressed by its terms, and nothing in this section
    20  shall authorize the director or any contracting  agency  to  impose  any
    21  requirement  on  a  contractor or subcontractor except with respect to a
    22  state contract.
    23    4. In the implementation of this section, the contracting agency shall
    24  (a) consult the findings contained within the disparity study evidencing
    25  relevant industry specific availability of certified businesses;
    26    (b) implement a program that will enable the agency to  evaluate  each
    27  contract  to  determine  the  [appropriateness  of the] appropriate goal
    28  pursuant to subdivision one of this section for participation by minori-
    29  ty-owned business enterprises and women-owned business enterprises;
    30    (c) consider  where  practicable,  the  severability  of  construction
    31  projects and other bundled contracts; and
    32    (d)  consider  compliance  with  the  requirements  of any federal law
    33  concerning opportunities for minority and  women-owned  business  enter-
    34  prises  which  effectuates  the purpose of this section. The contracting
    35  agency shall determine whether the imposition of the requirements of any
    36  such law duplicate or conflict with the provisions hereof  and  if  such
    37  duplication  or  conflict exists, the contracting agency shall waive the
    38  applicability of this section to  the  extent  of  such  duplication  or
    39  conflict.
    40    5. (a) Contracting agencies shall administer the rules and regulations
    41  promulgated  by  the director in a good faith effort to meet the maximum
    42  feasible portion of the agency's goals adopted pursuant to this  article
    43  and  the  regulations of the director. Such rules and regulations: shall
    44  require a contractor to submit a utilization plan after bids are opened,
    45  when bids are required, but prior to the  award  of  a  state  contract;
    46  shall  require  the  contracting  agency  to review the utilization plan
    47  submitted by the contractor and to post the  utilization  plan  and  any
    48  waivers of compliance issued pursuant to subdivision six of this section
    49  on  the website of the contracting agency [within a reasonable period of
    50  time as established by the  director];  shall  require  the  contracting
    51  agency to notify the contractor in writing within a period of time spec-
    52  ified  by  the director as to any deficiencies contained in the contrac-
    53  tor's utilization plan; shall require remedy thereof within a period  of
    54  time  specified  by the director; shall require the contractor to submit
    55  periodic compliance reports relating to the operation and implementation
    56  of any utilization plan; shall not allow any automatic waivers but shall

        S. 6046                             6

     1  allow a contractor to apply for a partial or total waiver of the minori-
     2  ty and women-owned business enterprise participation requirements pursu-
     3  ant to subdivisions six  and  seven  of  this  section;  shall  allow  a
     4  contractor to file a complaint with the director pursuant to subdivision
     5  eight  of  this  section in the event a contracting agency has failed or
     6  refused to issue a waiver  of  the  minority  and  women-owned  business
     7  enterprise  participation  requirements or has denied such request for a
     8  waiver; and shall allow a contracting agency to file  a  complaint  with
     9  the director pursuant to subdivision nine of this section in the event a
    10  contractor  is  failing  or  has  failed to comply with the minority and
    11  women-owned business enterprise participation requirements set forth  in
    12  the state contract where no waiver has been granted.
    13    (b) The rules and regulations promulgated pursuant to this subdivision
    14  regarding  a  utilization plan shall provide that where enterprises have
    15  been identified within a utilization plan, a contractor  shall  attempt,
    16  in  good  faith, to utilize such enterprise at least to the extent indi-
    17  cated. A contracting agency may require a contractor to indicate, within
    18  a utilization plan, what measures and procedures he or  she  intends  to
    19  take to comply with the provisions of this article, but may not require,
    20  as  a  condition  of  award  of,  or  compliance with, a contract that a
    21  contractor  utilize  a  particular  enterprise  in  performance  of  the
    22  contract.
    23    (c) Without limiting other grounds for the disqualification of bids or
    24  proposals  on  the basis of non-responsibility, a contracting agency may
    25  disqualify the bid or proposal of a contractor as being  non-responsible
    26  for  failure  to  remedy notified deficiencies contained in the contrac-
    27  tor's utilization plan within a period of time specified in  regulations
    28  promulgated  by  the director after receiving notification of such defi-
    29  ciencies from the contracting agency. Where failure to remedy any  noti-
    30  fied  deficiency  in  the utilization plan is a ground for disqualifica-
    31  tion, that issue and all other grounds  for  disqualification  shall  be
    32  stated in writing by the contracting agency. Where the contracting agen-
    33  cy states that a failure to remedy any notified deficiency in the utili-
    34  zation  plan  is  a  ground for disqualification the contractor shall be
    35  entitled to an  administrative  hearing,  on  a  record,  involving  all
    36  grounds  stated  by  the  contracting  agency.  Such  hearing  shall  be
    37  conducted by the appropriate authority  of  the  contracting  agency  to
    38  review  the  determination  of  disqualification. A final administrative
    39  determination made following such  hearing  shall  be  reviewable  in  a
    40  proceeding  commenced  under article seventy-eight of the civil practice
    41  law and rules, provided that such proceeding is commenced within  thirty
    42  days  of  the  notice  given  by certified mail return receipt requested
    43  rendering such final administrative determination. Such proceeding shall
    44  be commenced in the supreme court, appellate division, third  department
    45  and  such  proceeding  shall  be  preferred  over all other civil causes
    46  except election causes, and shall be heard and determined in  preference
    47  to  all  other  civil business pending therein, except election matters,
    48  irrespective of position on the calendar. Appeals taken to the court  of
    49  appeals  of  the  state of New York shall be subject to the same prefer-
    50  ence.
    51    § 5. Section 315 of the executive law, as added by chapter 261 of  the
    52  laws of 1988, subdivision 3 as amended and subdivisions 4, 5, 6 and 7 as
    53  added by chapter 175 of the laws of 2010, is amended to read as follows:
    54    § 315. Responsibilities  of  contracting agencies. 1. Each contracting
    55  agency shall be responsible for monitoring  state  contracts  under  its
    56  jurisdiction, and recommending matters to the office respecting non-com-

        S. 6046                             7

     1  pliance  with the provisions of this article so that the office may take
     2  such action as is appropriate to [insure]  ensure  compliance  with  the
     3  provisions  of  this  article, the rules and regulations of the director
     4  issued  hereunder  and  the  contractual provisions required pursuant to
     5  this article. All contracting agencies shall comply with the  rules  and
     6  regulations  of the office and are directed to cooperate with the office
     7  and to furnish to the office such information and assistance as  may  be
     8  required in the performance of its functions under this article.
     9    2.  Each  contracting  agency  shall  provide to prospective bidders a
    10  current copy of the directory of certified businesses, and a copy of the
    11  regulations required pursuant to sections three hundred twelve and three
    12  hundred thirteen of this article at  the  time  bids  or  proposals  are
    13  solicited.
    14    2-a.  Each contracting agency when notifying a contractor of a winning
    15  bid award shall also notify any minority or women-owned business  enter-
    16  prises  affiliated  with such contractor, per the contractor's submitted
    17  utilization plan, of such contractor's receipt of the winning bid award.
    18    3. Each contracting agency shall report to the director  with  respect
    19  to activities undertaken to promote employment of minority group members
    20  and women and promote and increase participation by certified businesses
    21  with  respect to state contracts and subcontracts. Such reports shall be
    22  submitted [periodically, but  not  less  frequently  than  annually,  as
    23  required by the director,] no later than January fifteenth of every year
    24  and  shall  include such information as is necessary for the director to
    25  determine whether the contracting  agency  and  any  contractor  to  the
    26  contracting  agency  have  complied  with  the purposes of this article,
    27  including, without limitation, a summary of all waivers of the  require-
    28  ments of subdivisions six and seven of section three hundred thirteen of
    29  this article allowed by the contracting agency during the period covered
    30  by  the  report,  including  a  description  of  the basis of the waiver
    31  request [and], the rationale  for  granting  any  such  waiver  and  any
    32  instances  in  which  the  contracting agency has deemed a contractor to
    33  have committed a violation pursuant to section three hundred sixteen  of
    34  this  article  and such other information as the director shall require.
    35  Each agency shall also include in such annual report whether or  not  it
    36  has  been  required to prepare a remedial plan, and, if so, the plan and
    37  the extent to which the agency has complied with  each  element  of  the
    38  plan.
    39    4.  The  division  of  minority and women's business development shall
    40  issue an annual report which: (a) summarizes  the  report  submitted  by
    41  each  contracting  agency pursuant to subdivision three of this section;
    42  (b) contains such comparative or other information as the director deems
    43  appropriate, including but not  limited  to  goals  compared  to  actual
    44  participation  of minority and women-owned business enterprises in state
    45  contracting and a listing of annual goals  compared  to  actual  partic-
    46  ipation  for  each  agency,  the  total number of certified minority and
    47  women-owned businesses for that reporting year  as  well  as  the  total
    48  number reported in each of the previous five years, and the total dollar
    49  value  of state expenditures on certified minority and women-owned busi-
    50  ness contracts and subcontracts for the previous five years, to evaluate
    51  the effectiveness of the activities undertaken by each such  contracting
    52  agency  to  promote  increased  participation  by  certified minority or
    53  women-owned businesses with respect to state contracts and subcontracts;
    54  (c) contains a summary of all waivers of the  requirements  of  subdivi-
    55  sions  six  and  seven of section three hundred thirteen of this article
    56  allowed by each contracting agency during  the  period  covered  by  the

        S. 6046                             8

     1  report,  including  a description of the basis of the waiver request and
     2  the contracting agency's rationale for granting  any  such  waiver;  (d)
     3  describes  any efforts to create a database or other information storage
     4  and retrieval system containing information relevant to contracting with
     5  minority  and  women-owned  business  enterprises;  [and] (e) contains a
     6  summary of (i) all determinations of violations of  this  article  by  a
     7  contractor or a contracting agency made during the period covered by the
     8  annual  report pursuant to section three hundred sixteen-a of this arti-
     9  cle and (ii) the penalties or sanctions, if any, assessed in  connection
    10  with  such  determinations and the rationale for such penalties or sanc-
    11  tions; (f) provides a written rationale for instances where an  agency's
    12  participation goals or remedial plans do not meet the goals supported by
    13  the  two thousand sixteen disparity study; (g) provides a written expla-
    14  nation of the reason that agency expenditures are exempt from  complying
    15  with  participation  goals;  (h)  contains  information on each contract
    16  identifying the following: (i) whether it is a  contract  for  goods  or
    17  services;  (ii)  whether the contract was awarded to a certified minori-
    18  ty-owned business enterprise or a certified women-owned business  enter-
    19  prise  and identify which minority group member the minority-owned busi-
    20  ness enterprise relies on for certification pursuant  to  this  article;
    21  (iii) the name and business address of prime contractors and subcontrac-
    22  tors  providing  services under such contract; and (iv) the dollar value
    23  of such contract; and (i) contains a summary of all  certified  minority
    24  and  women-owned business enterprises, categorized by the minority group
    25  member that  such  minority-owned  business  enterprise  relies  on  for
    26  certification  pursuant  to  this  article  and by gender. Copies of the
    27  annual report shall be provided to the commissioner, the  governor,  the
    28  comptroller,  the  temporary president of the senate, the speaker of the
    29  assembly, the minority leader of the senate, the minority leader of  the
    30  assembly  and  shall  also  be  made widely available to the public via,
    31  among other things, publication on a website maintained by the  division
    32  of minority and women's business development.
    33    5.  Each agency shall include in its annual report to the governor and
    34  legislature pursuant to section one hundred sixty-four of [the executive
    35  law]  this  chapter:  (a)  its annual goals for contracts with minority-
    36  owned and women-owned business enterprises[,]; (b) the number of  actual
    37  contracts issued to minority-owned and women-owned business enterprises;
    38  [and]  (c)  a summary of all waivers of the requirements of subdivisions
    39  six and seven of section three hundred thirteen of this article  allowed
    40  by   the  reporting  agency  during  the  preceding  year,  including  a
    41  description of the basis of the waiver request  and  the  rationale  for
    42  granting  such  waiver[.  Each  agency shall also include in such annual
    43  report]; (d) whether or not it has been required to prepare  a  remedial
    44  plan,  and,  if  so,  the  plan  and  the extent to which the agency has
    45  complied with each element of the plan; and (e) which  expenditures  are
    46  exempt  from  participation  goals and the rationale for such exemption.
    47  Such report shall also itemize the total value of design-build contracts
    48  used by each contracting agency when applicable,  and  each  contracting
    49  agency authorized to enter into design-build contracts shall itemize the
    50  rate  of  minority and women-owned business enterprises participation on
    51  design-build contracts, design-bid-build contracts, as well as the agen-
    52  cy's overall participation rate.
    53    6. Each contracting agency that substantially fails to meet the  goals
    54  supported by the disparity study, as defined by regulation of the direc-
    55  tor,  shall be required to submit to the director a remedial action plan
    56  to remedy such failure.

        S. 6046                             9

     1    7. If it is determined by the director that any agency has  failed  to
     2  act  in  good  faith  to implement the remedial action plan, pursuant to
     3  subdivision six of this section within  one  year,  the  director  shall
     4  provide written notice of such a finding, which shall be publicly avail-
     5  able, and direct implementation of remedial actions to:
     6    (a) assure that sufficient and effective solicitation efforts to women
     7  and minority-owned business enterprises are being made by said agency;
     8    (b)  divide  contract  requirements,  when economically feasible, into
     9  quantities that will expand the participation  of  women  and  minority-
    10  owned business enterprises;
    11    (c) eliminate extended experience or capitalization requirements, when
    12  programmatically  and  economically  feasible,  that will expand partic-
    13  ipation by women and minority-owned business enterprises;
    14    (d) identify specific proposed contracts as particularly attractive or
    15  appropriate for  participation  by  women  and  minority-owned  business
    16  enterprises  with such identification to result from and be coupled with
    17  the efforts of paragraphs (a), (b), and (c) of this subdivision; and
    18    (e) upon a finding by the director that an agency has failed  to  take
    19  affirmative measures to implement the remedial plan and to follow any of
    20  the  remedial  actions  set forth by the director, and in the absence of
    21  any objective progress towards the agency's goals, require some  or  all
    22  of  the  agency's procurement, for a specified period of time, be placed
    23  under the direction and control of another agency or agencies.
    24    § 6. This act shall take effect immediately; provided,  however,  that
    25  the  amendments to sections 310, 312-a, 313 and 315 of the executive law
    26  made by sections one, two, four and five of this act shall be not affect
    27  the expiration of such sections and shall expire and be deemed  repealed
    28  therewith.
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