Extend MWBE Program

Section 1. Paragraph (b) of subdivision 8 and subdivisions 21 and 22 of section 310 of the executive law, paragraph (b) of subdivision 8 as added by chapter 261 of the laws of 1988 and subdivisions 21 and 22 as added by chapter 175 of the laws of 2010, are amended to read as follows:

(b) [Hispanic] Hispanic/Latino persons of Mexican, Puerto Rican, Dominican, Cuban, Central or South American of either Indian or Hispanic origin, regardless of race;

21. "The [2010] two thousand sixteen disparity study" shall refer to the disparity study commissioned by the [empire state development corporation] department of economic development, pursuant to section three hundred twelve-a of this article, and published on [April twenty-nine, two thousand ten] June thirtieth, two thousand seventeen.

22. "Diversity practices" shall mean the contractor's practices and policies with respect to:

(a) [utilizing] mentoring certified minority and women-owned business enterprises in contracts awarded by a state agency or other public 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

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(b) entering into partnerships, joint ventures or other similar arrangements with certified minority and women-owned business enterprises as defined in this article or other applicable statute or regulation governing an entity's utilization of minority or women-owned business enterprises; and

(c) the representation of minority group members and women as members of the board of directors or executive officers of the contractor.

§ 2. Section 312-a of the executive law, as amended by section 1 of part Q of chapter 58 of the laws of 2015, is amended to read as follows:

§ 312-a. Study of minority and women-owned business [enterprise programs] enterprises. 1. The director of the division of minority and women-owned business development [in the department of economic development] is authorized and directed to recommission a statewide disparity study regarding the participation of minority and women-owned business enterprises in state contracts since the amendment of this article to be delivered to the governor and legislature no later than August fifteenth, two thousand [sixteen] twenty-three. The study shall be prepared by an entity independent of the department and selected through a request for proposal process. The purpose of such study is:

(a) to determine whether there is a disparity between the number of qualified minority and women-owned businesses ready, willing and able to perform state contracts for commodities, services and construction, and the number of such contractors actually engaged to perform such contracts, and to determine what changes, if any, should be made to state policies affecting minority and women-owned business enterprises; and (b) to determine whether there is a disparity between the number of qualified minorities and women ready, willing and able, with respect to labor markets, qualifications and other relevant factors, to participate in contractor employment, management level bodies, including boards of directors, and as senior executive officers within contracting entities and the number of such group members actually employed or affiliated with state contractors in the aforementioned capacities, and to determine what changes, if any, should be made to state policies affecting minority and women group populations with regard to state contractors' employment and appointment practices relative to diverse group members. Such study shall include, but not be limited to, an analysis of the history of minority and women-owned business enterprise programs and their effectiveness as a means of securing and ensuring participation by minorities and women, and a disparity analysis by market area and region of the state. Such study shall distinguish between minority males, minority females and non-minority females in the statistical analysis.

2. The director of the division of minority and women-owned business development is directed to transmit the disparity study to the governor and the legislature not later than August fifteenth, two thousand [sixteen] twenty-three, and to post the study on the website of the department of economic development.

§ 3. The opening paragraph of subdivision (h) of section 121 of chapter 261 of the laws of 1988, amending the state finance law and other laws relating to the New York state infrastructure trust fund, as amended by section 1 of part OOO of chapter 59 of the laws of 2018, is amended to read as follows:

The provisions of sections sixty-two through sixty-six of this act shall expire April fifteenth, two thousand twenty-four, provided, however, that if the statewide disparity study regarding the participation of minority and women-owned business enterprises in state contracts required pursuant to subdivision 1 of section 312-a of the executive law

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is completed and delivered to the governor and the legislature on or before August fifteenth two thousand twenty-three, then the provisions of sections sixty-two through sixty-six of this act shall expire and be deemed repealed on December thirty-first, two thousand [nineteen] twenty-four, except that:

§ 4. Subdivisions 1, 1-a, 1-b, 2, 2-a, 3, 4 and 5 of section 313 of the executive law, subdivisions 1, 3, 4 and 5 as amended and subdivisions 1-a, 1-b, 2 and 2-a as added by chapter 175 of the laws of 2010, are amended and a new subdivision 1-c is added to read as follows:

1. Goals and requirements for agencies and contractors. Each agency shall structure procurement procedures for contracts made directly or indirectly to minority and women-owned business enterprises, in accordance with the findings of the two thousand [ten] sixteen disparity study, consistent with the purposes of this article, to attempt to achieve the [following] recommended results with regard to total annual statewide procurement for each of the following:

(a) construction industry for certified minority-owned business enterprises[: fourteen and thirty-four hundredths percent];

(b) construction industry for certified women-owned business enterprises[: eight and forty-one hundredths percent];

(c) construction related professional services industry for certified minority-owned business enterprises[: thirteen and twenty-one hundredths percent];

(d) construction related professional services industry for certified women-owned business enterprises[: eleven and thirty-two hundredths percent];

(e) non-construction related services industry for certified minority-owned business enterprises[: nineteen and sixty hundredths percent];

(f) non-construction related services industry for certified womenowned business enterprises[: seventeen and forty-four hundredths percent];

(g) commodities industry for certified minority-owned business enterprises[: sixteen and eleven hundredths percent];

(h) commodities industry for certified women-owned business enterprises[: ten and ninety-three hundredths percent];

(i) overall agency total dollar value of procurement for certified minority-owned business enterprises[: sixteen and fifty-three hundredths percent];

(j) overall agency total dollar value of procurement for certified women-owned business enterprises[: twelve and thirty-nine hundredths percent]; and

(k) overall agency total dollar value of procurement for certified minority, women-owned business enterprises[: twenty-eight and ninety-two hundredths percent].

1-a. The director shall ensure that each state agency has been provided with a copy of the two thousand [ten] sixteen disparity study.

1-b. Each agency shall develop and adopt agency-specific goals based on the findings of the two thousand [ten] sixteen disparity study.

1-c. The goals set pursuant to subdivision one of this section shall be consistent with the findings of the two thousand sixteen disparity study.

2. The director shall promulgate rules and regulations pursuant to the goals established in subdivision one of this section and findings of the two thousand sixteen disparity study that provide measures and procedures to ensure that certified minority and women-owned businesses shall be given the opportunity for maximum feasible participation in the

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performance of state contracts and to assist in the agency's identification of those state contracts for which minority and women-owned certified businesses may best bid to actively and affirmatively promote and assist their participation in the performance of state contracts so as to facilitate the agency's achievement of the maximum feasible portion of the goals for state contracts to such businesses.

2-a. The director shall promulgate rules and regulations that will accomplish the following:

(a) provide for the certification and decertification of minority and women-owned business enterprises for all agencies through a single process that meets applicable requirements;

(b) require that each contract solicitation document accompanying each solicitation set forth the expected degree of minority and women-owned business enterprise participation based, in part, on:

(i) the potential subcontract opportunities available in the prime procurement contract; and

(ii) the availability, as contained within the study, of certified minority and women-owned business enterprises to respond competitively to the potential subcontract opportunities;

(iii) the findings of the two thousand sixteen disparity study;

(c) require that each agency provide a current list of certified minority business enterprises to each prospective contractor;

(d) allow a contractor that is a certified minority-owned or womenowned business enterprise to use the work it performs to meet requirements for use of certified minority-owned or women-owned business enterprises as subcontractors;

(e) establish criteria for agencies to credit the participation of minority and women-owned business enterprises towards the achievement of the minority and women-owned business enterprise participation goals on a state contract based on the commercially useful function provided by each minority and women-owned business enterprise on the contract;

(f) provide for joint ventures, which a bidder may count toward meeting its minority and women-owned business enterprise participation;

[(f)] (g) consistent with subdivision six of this section, provide for circumstances under which an agency may waive obligations of the contractor relating to minority and women-owned business enterprise participation;

[(g)] (h) require that an agency verify that minority and women-owned business enterprises listed in a successful bid are actually participating to the extent listed in the project for which the bid was submitted;

[(h)] (i) provide for the collection of statistical data by each agency concerning actual minority and women-owned business enterprise participation; and

[(i)] (j) require each agency to consult the most current disparity study when calculating agency-wide and contract specific participation goals pursuant to this article.

3. Solely for the purpose of providing the opportunity for meaningful participation by certified businesses in the performance of state contracts as provided in this section, state contracts shall include leases of real property by a state agency to a lessee where: the terms of such leases provide for the construction, demolition, replacement, major repair or renovation of real property and improvements thereon by such lessee; and the cost of such construction, demolition, replacement, major repair or renovation of real property and improvements thereon shall exceed the sum of one hundred thousand dollars. Reports to the director pursuant to section three hundred fifteen of this article shall

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