A 3518: Requires contracting agencies to contact minority and women-owned business enterprises when such enterprise is listed on a utilization plan and when a contract is awarded; mandates that the contractor use such enterprise identified on the utilization plan, unless such enterprise cannot perform or is no longer state certified.

  
  STATE OF NEW YORK ________________________________________________________________________ 3518 2025-2026 Regular Sessions  IN ASSEMBLY January 28, 2025 ___________ Introduced by M. of A. BICHOTTE HERMELYN, SIMON, ZINERMAN, SEAWRIGHT, JACKSON, EPSTEIN, COLTON, WALKER -- read once and referred to the Committee on Governmental Operations AN ACT to amend the executive law, in relation to requiring contracting agencies to contact minority and women-owned business enterprises when such enterprise is listed on a utilization plan and when a contract is awarded The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. Paragraphs (a) and (b) of subdivision 5 of section 313 of 2 the executive law, as amended by chapter 40 of the laws of 2023, are 3 amended and six new paragraphs (b-1), (b-2), (b-3), (b-4), (b-5) and (e) 4 are added to read as follows: 5 (a) Contracting agencies shall administer the rules and regulations 6 promulgated by the director in a good faith effort to achieve the maxi- 7 mum feasible participation by [minority] both minority-owned and [women 8 owned] women-owned business enterprises adopted pursuant to this article 9 and the regulations of the director prior to the prime contractor's 10 inception of the scope of work outlined in an awarded contract. Such 11 rules and regulations: shall require a prime contractor to [submit a] 12 utilize the minority and women-owned business enterprises listed on the 13 utilization plan [after] submitted when bids are opened, [when bids are 14 required, but prior] provided that the minority-owned or women-owned 15 business enterprise is still certified with New York state. Prior to the 16 award of a state contract[; shall require] with minority and women-owned 17 business enterprise goals the contracting agency [to] shall review the 18 utilization plan submitted by the prime contractor and [to] shall post 19 the utilization plan and any waivers of compliance issued pursuant to 20 subdivision six of this section on the website of the contracting agen- 21 cy[; shall require the]. Within five business days after an award letter 22 is sent to the prime contractor, the contracting agency shall submit an EXPLANATION--Matter in italics (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD07242-01-5 
 A. 3518 2 1 award notification letter to the minority and women-owned business 2 enterprise listed on the utilization plan. The minority and women-owned 3 business enterprise listed on the original utilization plan at the time 4 of submission shall not be amended or changed by the contractor after 5 submission to the contracting agency for approval. The contracting agen- 6 cy shall be required to notify the prime contractor in writing within [a 7 period of time specified by the director] ten days as to any deficien- 8 cies contained in the contractor's utilization plan[;] and shall require 9 remedy thereof within [a period of time specified by the director; shall 10 require the contractor to submit compliance reports relating to the 11 operation and implementation of any utilization plan;] seven days of 12 such notification. The contracting agency shall not allow any automatic 13 waivers but shall allow a contractor to apply for a partial or total 14 waiver of the minority and women-owned business enterprise participation 15 requirements pursuant to subdivisions six and seven of this section; 16 shall allow a contractor to file a complaint with the director pursuant 17 to subdivision eight of this section in the event a contracting agency 18 has failed or refused to issue a waiver of the minority and women-owned 19 business enterprise participation requirements or has denied such 20 request for a waiver; and shall allow a contracting agency to file a 21 complaint with the director pursuant to subdivision nine of this section 22 in the event a contractor is failing or has failed to comply with the 23 minority and women-owned business enterprise participation requirements 24 set forth in the state contract where no waiver has been granted. 25 (b) The rules and regulations promulgated pursuant to this subdivision 26 regarding a utilization plan shall provide that where enterprises have 27 been identified within a utilization plan, a contractor shall attempt, 28 in good faith, to utilize such enterprise [at least to the extent indi- 29 cated], unless such enterprise cannot perform under the contract or such 30 enterprise is no longer certified by the state. A contracting agency may 31 require a contractor to indicate, within a utilization plan, what meas- 32 ures and procedures [he or she] the contractor intends to take to comply 33 with the provisions of this article[, but may not require, as a condi- 34 tion of award of, or compliance with, a contract that a contractor 35 utilize a particular enterprise in performance of the contract]. 36 (b-1) After the contracting agency awards a contract, the prime 37 contractor shall execute a subcontractor's agreement and provide a work 38 assignment to the minority and women-owned business enterprises listed 39 in the utilization plan within forty-five days of such award. Failure 40 to comply with this requirement shall result in disqualification of the 41 prime contractor and the contracting agency shall re-award the contract 42 to the next lowest bidder or eligible bidder. 43 (b-2) After receiving the first payment on the contract, the prime 44 contractor shall make payments to the minority and women-owned business 45 enterprise for work performed under the contract within twenty days of 46 receipt of each payment received from the contracting agency. A minority 47 and women-owned business enterprise may notify the contracting agency of 48 any violation of this paragraph by the prime contractor and the 49 contracting agency shall then notify the prime contractor to correct 50 such deficiency within ten days of notification. The failure of the 51 contractor to make such payments to the minority and women-owned busi- 52 ness enterprise shall result in disqualification and the contracting 53 agency shall re-award such contract to the next lowest bidder or eligi- 54 ble bidder. 
 A. 3518 3 1 (b-3) A prime contractor which is a certified minority-owned business 2 may self-certify and perform under the contract to meet the contract's 3 minority-owned business enterprise goals. 4 (b-4) A prime contractor which is a certified women-owned business may 5 self-certify and perform under the contract to meet the contract's 6 women-owned business enterprise goal only, and it must utilize a certi- 7 fied minority-owned business enterprise to perform under the contract to 8 meet the contract's minority-owned business goals. 9 (b-5) A prime contractor which is dually certified minority-owned and 10 women-owned business enterprise may self-certify and perform under the 11 contract to meet the contract's minority-owned and women-owned business 12 enterprise goals. 13 (e) This subdivision shall apply to all public contracts where a 14 public agency issues a request for proposals, notwithstanding whether 15 the contract could otherwise be awarded through the agency's discretion- 16 ary contract award process or the non-existence of a discretionary 17 contract award process within the public agency. 18 § 2. This act shall take effect immediately; provided, however, that 19 the amendments to subdivision 5 of section 313 of the executive law made 20 by section one of this act shall not affect the repeal of such section 21 and shall be deemed repealed therewith.