N.Y. State Finance Law § 139-i: Obligations with respect to procurement contracts with New York state and foreign business enterprises

§ 139-i. Obligations with respect to procurement contracts with New

York state and foreign business enterprises. 1. As used in this section,

the following terms shall have the following meanings, unless a

different meaning appears from the context:

(a) "Foreign business enterprise" shall mean a business enterprise,

including a sole proprietorship, partnership or corporation, which

offers for sale, lease or other form of exchange, goods sought by the

state agency or department and which are substantially produced outside

New York state, or services sought by the state agency or department and

which are substantially performed outside New York state.

(b) "New York state business enterprise" shall mean a business

enterprise, including a sole proprietorship, partnership, or

corporation, which offers for sale or lease or other form of exchange,

goods which are sought by the state agency or department and which are

substantially manufactured, produced or assembled in New York state, or

services which are sought by the state agency or department and which

are substantially performed within New York state.

(c) "New York resident" shall mean a natural person who maintains a

fixed, permanent and principal home located within New York state and to

which such person, whenever temporarily located, always intends to

return.

(d) "Procurement contract" shall have the same meaning as that set

forth in subdivision two of section one hundred forty-one of the

economic development law.

2. In every state agency and department, the chief executive officer

shall:

(a) notify the commissioner of economic development of the award of a

procurement contract for the purchase of goods or services from a

foreign business enterprise in an amount equal to or greater than one

million dollars simultaneously with notifying the successful bidder

therefor. No state agency or department shall thereafter enter into a

procurement contract for said goods or services until at least fifteen

days has elapsed, except for procurement contracts awarded on an

emergency or critical basis, or where the commissioner of economic

development waives the provisions of this sentence. The notification to

the commissioner of economic development shall include the name, address

and telephone and facsimile number of the foreign business enterprise, a

brief description of the goods or services to be obtained pursuant to

the proposed procurement contract, the amount of the proposed

procurement contract, the term of the proposed procurement contract, and

the name of the individual at the foreign business enterprise or acting

on behalf of the same who is principally responsible for the proposed

procurement contract. Such notification shall be used by the

commissioner of economic development solely to provide notification to

New York state business enterprises of opportunities to participate as

subcontractors and suppliers on such procurement contracts, to promote

and encourage the location and development of new business in the state,

to assist New York state business enterprises in obtaining offset

credits from foreign countries, and to otherwise investigate, study and

undertake means of promoting and encouraging the prosperous development

and protection of the legitimate interest and welfare of New York state

business enterprises, industry and commerce.

(b) include in all bid documents provided to potential bidders a

statement that information concerning the availability of New York state

subcontractors and suppliers is available from the New York state

department of economic development, which shall include the directory of

certified minority and women-owned businesses, and it is the policy of

New York state to encourage the use of New York state subcontractors and

suppliers, and to promote the participation of minority and women-owned

businesses, where possible, in the procurement of goods and services.

(c) provide annually, on or before the first business day of June of

each year, to the department of economic development information

pertaining to procurement contracts entered into in an amount equal to

or greater than one hundred thousand dollars by such agency or

department during the previous year. Such information shall include the

subject matter and value of such contracts, designation of each

contractor as a New York state business enterprise or a foreign business

enterprise, the process used to select such contractors, as well as the

status of such contracts; and

(d) adopt policies to promote the participation by New York state

business enterprises and New York state residents in procurement

contracts, with the cooperation of the department of economic

development and the community services division of the department of

labor including, but not limited to, providing through cooperative

efforts with contractors for the notification of New York state business

enterprises of opportunities to participate as subcontractors and

suppliers on procurement contracts in an amount estimated to be equal to

or greater than one million dollars and for the notification of New York

state residents of employment opportunities arising in New York state

out of procurement contracts in an amount estimated to be equal to or

greater than one million dollars; and promulgating procedures which will

assure compliance by contractors with such notification. Once awarded

the contract, such contractors shall document their efforts to encourage

the participation of New York state business enterprises as suppliers

and subcontractors on procurement contracts equal to or greater than one

million dollars. Documented efforts by a successful contractor shall

consist of and be limited to showing that such contractor has (a)

solicited bids, in a timely and adequate manner, from New York state

business enterprises including certified minority and women-owned

business, or (b) contacted the New York state department of economic

development to obtain listings of New York state business enterprises,

or (c) placed notices for subcontractors and suppliers in newspapers,

journals and other trade publications distributed in New York state, or

(d) participated in bidder outreach conferences. If the contractor

determines that New York state business enterprises are not available to

participate on the contract as subcontractors or suppliers, the

contractor shall provide a statement indicating the method by which such

determination was made. If the contractor does not intend to use

subcontractors on the contract, the contractor shall provide a statement

verifying such intent. Such contractors shall also provide notification

to New York state residents of employment opportunities through listing

any such positions with the community services division, or providing

for such notification in such manner as is consistent with existing

collective bargaining contracts or agreements. On or before the

effective date of this section, each state agency or department shall

submit such policies to the division of the budget and copies thereof to

the department of audit and control, the department of economic

development, the senate finance committee and the assembly ways and

means committee.

(e) include in each set of documents soliciting bids on procurement

contracts to let by the state agency or department a statement notifying

potential bidders located in foreign countries that the state agency or

department may assign or otherwise transfer offset credits created by

such procurement contract to third parties located in New York state;

provide for the assignment or other form of transfer of offset credits

created by such procurement contracts, directly or indirectly, to third

parties located in New York state, in accordance with the written

directions of the commissioner of economic development; and provide for

the state agency or department to otherwise cooperate with the

department of economic development in efforts to get foreign countries

to recognize offset credits assigned or transferred to third parties

located in New York state created by such procurement contracts.

(f) promulgate procedures which will assure compliance with the

federal equal employment opportunity act of 1972 (P.L.92-261), as

amended, by contractors of the state agency or department.