N.Y. Executive Law § 315: Responsibilities of contracting agencies

* § 315. Responsibilities of contracting agencies. 1. Each contracting

agency shall be responsible for monitoring state contracts under its

jurisdiction, and recommending matters to the office respecting

non-compliance with the provisions of this article so that the office

may take such action as is appropriate to ensure compliance with the

provisions of this article, the rules and regulations of the director

issued hereunder and the contractual provisions required pursuant to

this article. All contracting agencies shall comply with the rules and

regulations of the office and are directed to cooperate with the office

and to furnish to the office such information and assistance as may be

required in the performance of its functions under this article.

2. Each contracting agency shall provide to prospective bidders a

current copy of the directory of certified businesses, and a copy of the

regulations required pursuant to sections three hundred twelve and three

hundred thirteen of this article at the time bids or proposals are

solicited.

2-a. To the extent practicable, upon completion of the restrictive

period of a procurement, each contracting agency when notifying a

contractor of a winning bid award shall also notify any minority or

women-owned business enterprise identified in the contractor's submitted

utilization plan of such contractor's receipt of the winning bid award.

3. Each contracting agency shall report to the director with respect

to activities undertaken to promote employment of minority group members

and women and promote and increase participation by certified businesses

with respect to state contracts and subcontracts. Such reports shall be

submitted no later than May fifteenth of every year and shall include

such information as is necessary for the director to determine whether

the contracting agency and any contractor to the contracting agency have

complied with the purposes of this article, including, without

limitation, a summary of all waivers of the requirements of subdivisions

six and seven of section three hundred thirteen of this article allowed

by the contracting agency during the period covered by the report,

including a description of the basis of the waiver request and the

rationale for granting any such waiver and any instances in which the

contract agency has deemed a contractor to have committed a violation

pursuant to section three hundred sixteen of this article and such other

information as the director shall require. Each agency shall also

include in such annual report whether or not it has been required to

prepare a remedial plan, and, if so, the plan and the extent to which

the agency has complied with each element of the plan.

4. The division of minority and women's business development shall

issue an annual report which: (a) summarizes the report submitted by

each contracting agency pursuant to subdivision three of this section;

(b) contains such comparative or other information as the director deems

appropriate, including but not limited to goals compared to actual

participation of minority and women-owned business enterprises in state

contracting and a listing of annual participation rates for each agency,

the total number of certified minority and women-owned businesses for

that reporting year, the number of applications for new certifications

and recertifications including those approved, the average length of

time to determine an approval, the number of applications denied, the

basis for denials and the average length of time to determine a denial,

and the total dollar value of state expenditures on certified minority

and women-owned business contracts and subcontracts for that reporting

year, to evaluate the effectiveness of the activities undertaken by each

such contracting agency to promote increased participation by certified

minority or women-owned businesses with respect to state contracts and

subcontracts; (c) contains a summary of all waivers of the requirements

of subdivisions six and seven of section three hundred thirteen of this

article allowed by each contracting agency during the period covered by

the report, including a description of the basis of the waiver request

and the contracting agency's rationale for granting any such waiver; (d)

describes any efforts to create a database or other information storage

and retrieval system containing information relevant to contracting with

minority and women-owned business enterprises; (e) contains a summary of

(i) all determinations of violations of this article by a contractor or

a contracting agency made during the period covered by the annual report

pursuant to section three hundred sixteen-a of this article and (ii) the

penalties or sanctions, if any, assessed in connection with such

determinations and the rationale for such penalties or sanctions; and

(f) contains information on the annual minority and woman-owned business

enterprise utilization and expenditure categorized by minority-owned

enterprises, women-owned enterprises, and total utilization and

expenditure and organized by the following industry categories: (i)

services including professional services, social services, educational

services, legal services, health services, and business services; (ii)

agriculture; (iii) mining; (iv) construction, including building

construction, heavy construction, and special trade contractors; (v)

manufacturing; (vi) transportation, communication and sanitary services;

(vii) wholesale or retail goods; (viii) construction materials; and (ix)

financial, insurance and real estate services. Copies of the annual

report shall be provided to the commissioner, the governor, the

comptroller, the temporary president of the senate, the speaker of the

assembly, the minority leader of the senate, the minority leader of the

assembly and shall also be made widely available to the public via,

among other things, publication on a website maintained by the division

of minority and women's business development.

5. Each agency shall include in its annual report to the governor and

legislature pursuant to section one hundred sixty-four of this chapter:

(a) its annual goals for contracts with minority-owned and women-owned

business enterprises; (b) the number of actual contracts issued to

minority-owned and women-owned business enterprises; (c) a summary of

all waivers of the requirements of subdivisions six and seven of section

three hundred thirteen of this article allowed by the reporting agency

during the preceding year, including a description of the basis of the

waiver request and the rationale for granting such waiver; (d) whether

or not it has been required to prepare a remedial plan, and, if so, the

plan and the extent to which the agency has complied with each element

of the plan; (e) which expenditures are exempt from participation goals

and the rationale for such exemption; and (f) every four years,

beginning September fifteenth, two thousand twenty, each agency shall

include in such annual report its four-year growth plan pursuant to

section three hundred eleven of this article.

6. Each contracting agency that substantially fails to make a good

faith effort as defined by regulation of the director, to achieve the

maximum feasible participation of minority and women-owned business

enterprises in such agency's contracting shall be required to submit to

the director a remedial action plan to remedy such failure.

7. If it is determined by the director that any agency has failed to

act in good faith to implement the remedial action plan, pursuant to

subdivision six of this section within one year, the director shall

provide written notice of such a finding, which shall be publicly

available, and direct implementation of remedial actions to:

(a) assure that sufficient and effective solicitation efforts to women

and minority-owned business enterprises are being made by said agency;

(b) divide contract requirements, when economically feasible, into

quantities that will expand the participation of women and

minority-owned business enterprises;

(c) eliminate extended experience or capitalization requirements, when

programmatically and economically feasible, that will expand

participation by women and minority-owned business enterprises;

(d) identify specific proposed contracts as particularly attractive or

appropriate for participation by women and minority-owned business

enterprises with such identification to result from and be coupled with

the efforts of paragraphs (a), (b), and (c) of this subdivision; and

(e) upon a finding by the director that an agency has failed to take

affirmative measures to implement the remedial plan and to follow any of

the remedial actions set forth by the director, and in the absence of

any objective progress towards the agency's goals, require some or all

of the agency's procurement, for a specified period of time, be placed

under the direction and control of another agency or agencies.

* NB Repealed July 1, 2028