S T A T E   O F   N E W   Y O R K
       ________________________________________________________________________
                                         8044
                              2015-2016 Regular Sessions
                                 I N  A S S E M B L Y
                                     June 5, 2015
                                      ___________
       Introduced by M. of A. BICHOTTE -- read once and referred to the Commit-
         tee on Local Governments
       AN  ACT  to  amend the general municipal law, the state finance law, and
         the New York city charter, in relation to opportunities  for  minority
         and women-owned business enterprises and emerging business enterprises
         THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
       BLY, DO ENACT AS FOLLOWS:
    1    Section 1. Subdivision 1 of section 103 of the general municipal  law,
    2  as  amended by section 1 of chapter 2 of the laws of 2012, is amended to
    3  read as follows:
    4    1. (A) Except as otherwise expressly provided by an act of the  legis-
    5  lature  or  by  a  local  law adopted prior to September first, nineteen
    6  hundred fifty-three, all contracts for public work involving an expendi-
    7  ture  of  more  than  thirty-five  thousand  dollars  and  all  purchase
    8  contracts involving an expenditure of more than twenty thousand dollars,
    9  shall  be awarded by the appropriate officer, board or agency of a poli-
   10  tical subdivision or of any district therein including but  not  limited
   11  to  a  soil  conservation  district  to  the  lowest  responsible bidder
   12  furnishing the required security after advertisement for sealed bids  in
   13  the  manner  provided  by this section, provided, however, that purchase
   14  contracts (including contracts  for  service  work,  but  excluding  any
   15  purchase  contracts  necessary  for  the  completion  of  a public works
   16  contract pursuant to article eight of the labor law) may be  awarded  on
   17  the  basis  of best value, as defined in section one hundred sixty-three
   18  of the state finance law, to a  responsive  and  responsible  bidder  or
   19  offerer  in  the  manner provided by this section except that in a poli-
   20  tical subdivision other than a city with a  population  of  one  million
   21  inhabitants  or  more or any district, board or agency with jurisdiction
   22  exclusively therein the use  of  best  value  for  awarding  a  purchase
   23  contract  or  purchase  contracts must be authorized by local law or, in
   24  the case of a district corporation, school district or board of  cooper-
        EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                             [ ] is old law to be omitted.
                                                                  LBD11529-01-5
       A. 8044                             2
    1  ative educational services, by rule, regulation or resolution adopted at
    2  a public meeting.
    3    (B)  In any case where a responsible bidder's or responsible offerer's
    4  gross price is reducible by an allowance for the value of  used  machin-
    5  ery, equipment, apparatus or tools to be traded in by a political subdi-
    6  vision,  the  gross  price shall be reduced by the amount of such allow-
    7  ance, for the purpose of determining the best value.
    8    (C) In cases where two or  more  responsible  bidders  furnishing  the
    9  required security submit identical bids as to price, such officer, board
   10  or agency may award the contract to any of such bidders.
   11    (D)  Such  officer,  board  or  agency  may,  in  his  or  her  or its
   12  discretion, reject all bids or offers and readvertise for  new  bids  or
   13  offers  in the manner provided by this section. In determining whether a
   14  purchase is an expenditure within the  discretionary  threshold  amounts
   15  established by this subdivision, the officer, board or agency of a poli-
   16  tical  subdivision or of any district therein shall consider the reason-
   17  ably expected aggregate amount of all purchases of the same commodities,
   18  services or  technology  to  be  made  within  the  twelve-month  period
   19  commencing on the date of purchase.
   20    (E)  Purchases  of  commodities,  services  or technology shall not be
   21  artificially divided for the purpose  of  satisfying  the  discretionary
   22  buying thresholds established by this subdivision.
   23    (F)  A change to or a renewal of a discretionary purchase shall not be
   24  permitted if the change or renewal would bring the  reasonably  expected
   25  aggregate  amount  of all purchases of the same commodities, services or
   26  technology  from  the  same  provider  within  the  twelve-month  period
   27  commencing  on  the date of the first purchase to an amount greater than
   28  the discretionary buying threshold amount.
   29    (G) For purposes of this section, (I) NOTWITHSTANDING PARAGRAPH (A) OF
   30  THIS SUBDIVISION, AS APPLIED TO PROCUREMENTS MADE BY A CITY WITH A POPU-
   31  LATION OF ONE MILLION INHABITANTS OR MORE, "BEST VALUE" MEANS THE  BASIS
   32  FOR AWARDING PURCHASE CONTRACTS TO THE BIDDER OR OFFERER WHICH OPTIMIZES
   33  QUALITY,  COST  AND EFFICIENCY, AMONG RESPONSIVE AND RESPONSIBLE BIDDERS
   34  OR OFFERERS. SUCH BASIS SHALL REFLECT, WHEREVER POSSIBLE, OBJECTIVE  AND
   35  QUANTIFIABLE ANALYSIS AND MAY INCLUDE THE PROSPECTIVE BIDDER'S RECORD OF
   36  COMPLYING  WITH  EXISTING  LABOR STANDARDS, MAINTAINING HARMONIOUS LABOR
   37  RELATIONS, PROTECTING THE HEALTH AND SAFETY OF WORKERS  AND  PAYMENT  OF
   38  WAGES ABOVE ANY LOCALLY-DEFINED LIVING WAGE. SUCH BASIS MAY ALSO IDENTI-
   39  FY  A QUANTITATIVE FACTOR TO BE USED IN EVALUATION OF BIDS OR OFFERS FOR
   40  AWARDING OF CONTRACTS FOR BIDDERS OR OFFERERS THAT ARE SMALL  BUSINESSES
   41  OR CERTIFIED MINORITY- OR WOMEN-OWNED BUSINESS ENTERPRISES AS DEFINED IN
   42  SUBDIVISIONS ONE, SEVEN, FIFTEEN AND TWENTY OF SECTION THREE HUNDRED TEN
   43  OF THE EXECUTIVE LAW, OR CERTIFIED PURSUANT TO LOCAL LAW AS MINORITY- OR
   44  WOMEN-OWNED BUSINESS ENTERPRISES OR EMERGING BUSINESS ENTERPRISES.
   45    (II)  "sealed  bids"  and  "sealed  offers",  as  that term applies to
   46  purchase contracts, (including contracts for service work, but excluding
   47  any purchase contracts necessary for the completion of  a  public  works
   48  contract  pursuant to article eight of the labor law) shall include bids
   49  and offers submitted in an electronic format including submission of the
   50  statement of non-collusion required by section one  hundred  three-d  of
   51  this  article, provided that the governing board of the political subdi-
   52  vision or district, by resolution, has authorized the  receipt  of  bids
   53  and  offers  in  such  format.  Submission in electronic format may, for
   54  technology contracts only, be  required  as  the  sole  method  for  the
   55  submission of bids and offers. Bids and offers submitted in an electron-
   56  ic  format shall be transmitted by bidders and offerers to the receiving
       A. 8044                             3
    1  device designated by the political subdivision or district.  Any  method
    2  used  to  receive  electronic  bids and offers shall comply with article
    3  three of the state technology law, and any rules and regulations promul-
    4  gated  and guidelines developed thereunder and, at a minimum, must [(a)]
    5  (A) document the time and date of receipt of each bid and offer received
    6  electronically; [(b)] (B) authenticate the identity of the sender; [(c)]
    7  (C) ensure the security of the information transmitted;  and  [(d)]  (D)
    8  ensure  the  confidentiality of the bid or offer until the time and date
    9  established for the opening of bids or offers. The timely submission  of
   10  an  electronic bid or offer in compliance with instructions provided for
   11  such submission in the advertisement for bids or offers and/or the spec-
   12  ifications shall be the responsibility solely of each bidder or  offerer
   13  or  prospective  bidder or offerer. No political subdivision or district
   14  therein shall incur any liability from delays of or interruptions in the
   15  receiving device designated for the submission and receipt of electronic
   16  bids and offers.
   17    S 2. Subdivision 1 of section 103 of the  general  municipal  law,  as
   18  amended  by  section  2  of chapter 2 of the laws of 2012, is amended to
   19  read as follows:
   20    1. (A) Except as otherwise expressly provided by an act of the  legis-
   21  lature  or  by  a  local  law adopted prior to September first, nineteen
   22  hundred fifty-three, all contracts for public work involving an expendi-
   23  ture  of  more  than  thirty-five  thousand  dollars  and  all  purchase
   24  contracts involving an expenditure of more than twenty thousand dollars,
   25  shall  be awarded by the appropriate officer, board or agency of a poli-
   26  tical subdivision or of any district therein including but  not  limited
   27  to  a  soil  conservation  district  to  the  lowest  responsible bidder
   28  furnishing the required security after advertisement for sealed bids  in
   29  the  manner  provided  by this section, provided, however, that purchase
   30  contracts (including contracts  for  service  work,  but  excluding  any
   31  purchase  contracts  necessary  for  the  completion  of  a public works
   32  contract pursuant to article eight of the labor law) may be  awarded  on
   33  the  basis  of best value, as defined in section one hundred sixty-three
   34  of the state finance law, to a  responsive  and  responsible  bidder  or
   35  offerer  in  the  manner provided by this section except that in a poli-
   36  tical subdivision other than a city with a  population  of  one  million
   37  inhabitants  or  more or any district, board or agency with jurisdiction
   38  exclusively therein the  use  of  best  value  of  awarding  a  purchase
   39  contract  or  purchase  contracts must be authorized by local law or, in
   40  the case of a district corporation, school district or board of  cooper-
   41  ative educational services, by rule, regulation or resolution adopted at
   42  a public meeting.
   43    (B)  In  determining  whether  a purchase is an expenditure within the
   44  discretionary threshold amounts established  by  this  subdivision,  the
   45  officer,  board  or agency of a political subdivision or of any district
   46  therein shall consider the reasonably expected aggregate amount  of  all
   47  purchases  of  the  same  commodities, services or technology to be made
   48  within the twelve-month period commencing on the date of purchase.
   49    (C) Purchases of commodities, services  or  technology  shall  not  be
   50  artificially  divided  for  the  purpose of satisfying the discretionary
   51  buying thresholds established by this subdivision.
   52    (D) A change to or a renewal of a discretionary purchase shall not  be
   53  permitted  if  the change or renewal would bring the reasonably expected
   54  aggregate amount of all purchases of the same commodities,  services  or
   55  technology  from  the  same  provider  within  the  twelve-month  period
   56  commencing on the date of the first purchase to an amount  greater  than
       A. 8044                             4
    1  the discretionary buying threshold amount. In any case where a responsi-
    2  ble  bidder's  or  responsible  offerer's gross price is reducible by an
    3  allowance for the value of used machinery, equipment, apparatus or tools
    4  to  be  traded  in  by a political subdivision, the gross price shall be
    5  reduced by the amount of such allowance, for the purpose of  determining
    6  the low bid or best value.
    7    (E)  In  cases  where  two  or more responsible bidders furnishing the
    8  required security submit identical bids as to price, such officer, board
    9  or agency may award the contract to any of such bidders.  Such  officer,
   10  board  or  agency may, in his, her or its discretion, reject all bids or
   11  offers and readvertise for new bids or offers in the manner provided  by
   12  this section.
   13    (F)  NOTWITHSTANDING  PARAGRAPH (A) OF THIS SUBDIVISION, AS APPLIED TO
   14  PROCUREMENTS MADE BY A CITY WITH A POPULATION OF ONE MILLION INHABITANTS
   15  OR MORE, FOR PURPOSES OF THIS SECTION, "BEST VALUE" MEANS THE BASIS  FOR
   16  AWARDING  PURCHASE  CONTRACTS  TO  THE BIDDER OR OFFERER WHICH OPTIMIZES
   17  QUALITY, COST AND EFFICIENCY, AMONG RESPONSIVE AND  RESPONSIBLE  BIDDERS
   18  OR  OFFERERS. SUCH BASIS SHALL REFLECT, WHEREVER POSSIBLE, OBJECTIVE AND
   19  QUANTIFIABLE ANALYSIS AND MAY INCLUDE THE PROSPECTIVE BIDDER'S RECORD OF
   20  COMPLYING WITH EXISTING LABOR STANDARDS,  MAINTAINING  HARMONIOUS  LABOR
   21  RELATIONS,  PROTECTING  THE  HEALTH AND SAFETY OF WORKERS AND PAYMENT OF
   22  WAGES ABOVE ANY LOCALLY-DEFINED LIVING WAGE.  SUCH BASIS MAY ALSO  IDEN-
   23  TIFY  A  QUANTITATIVE  FACTOR TO BE USED IN EVALUATION OF BIDS OR OFFERS
   24  FOR AWARDING OF CONTRACTS FOR BIDDERS OR OFFERERS THAT ARE  SMALL  BUSI-
   25  NESSES  OR  CERTIFIED  MINORITY-  OR WOMEN-OWNED BUSINESS ENTERPRISES AS
   26  DEFINED IN SUBDIVISIONS ONE, SEVEN, FIFTEEN AND TWENTY OF SECTION  THREE
   27  HUNDRED  TEN OF THE EXECUTIVE LAW, OR CERTIFIED PURSUANT TO LOCAL LAW AS
   28  MINORITY- OR  WOMEN-OWNED  BUSINESS  ENTERPRISES  OR  EMERGING  BUSINESS
   29  ENTERPRISES.
   30    S  3.  Section 103 of the general municipal law is amended by adding a
   31  new subdivision 17 to read as follows:
   32    17. NOTWITHSTANDING ANY OTHER PROVISION OF THIS SECTION, A CITY WITH A
   33  POPULATION OF ONE MILLION INHABITANTS OR MORE MAY ESTABLISH  A  CAPACITY
   34  BUILDING PROGRAM TO INCREASE THE CAPACITY OF BUSINESSES CERTIFIED PURSU-
   35  ANT  TO ARTICLE FIFTEEN-A OF THE EXECUTIVE LAW OR CERTIFIED AS MINORITY-
   36  OR WOMEN-OWNED BUSINESS ENTERPRISES  OR  EMERGING  BUSINESS  ENTERPRISES
   37  PURSUANT  TO  LOCAL  LAW  TO  BID  FOR  AND PERFORM PUBLIC CONTRACTS, TO
   38  PROMOTE THE MEANINGFUL PARTICIPATION OF SUCH FIRMS  IN  SUCH  CONTRACTS.
   39  SUCH PROGRAMS MAY PROVIDE REASONABLE PROCEDURES TO SECURE THE MEANINGFUL
   40  PARTICIPATION OF SUCH FIRMS IN THE PERFORMANCE OF PUBLIC CONTRACTS.
   41    S  4.  Paragraph  (a)  of subdivision 15 of section 103 of the general
   42  municipal law, as added by section 1-a of part MM of chapter 57  of  the
   43  laws of 2008, is amended to read as follows:
   44    (a) Notwithstanding any general, special or local law or rule or regu-
   45  lation  to  the contrary, an officer, board or agency of any county, any
   46  school district or any political subdivision of the state with  a  popu-
   47  lation  of  fifty  thousand or more charged with awarding a contract for
   48  public work, AND AN OFFICER, BOARD OR AGENCY IN A CITY WITH A POPULATION
   49  OF ONE MILLION INHABITANTS OR MORE  CHARGED  WITH  AWARDING  A  PURCHASE
   50  CONTRACT,  may  establish  guidelines  governing  the  qualifications of
   51  bidders seeking to bid or enter into such contracts.  If  such  officer,
   52  board  or agency maintains an appropriate list of qualified bidders, the
   53  bidding shall be restricted to those who have  qualified  prior  to  the
   54  receipt  of  bids according to standards fixed by such officer, board or
   55  agency. In determining whether a prospective bidder qualifies for inclu-
   56  sion on a list of pre-qualified bidders, the officer,  board  or  agency
       A. 8044                             5
    1  shall  consider the experience and record of performance of the prospec-
    2  tive bidder in the particular type of work, as well as: (i) the prospec-
    3  tive bidder's ability to undertake the particular type and complexity of
    4  work;  (ii)  the financial capability, responsibility and reliability of
    5  the prospective bidder for such type and complexity of work;  (iii)  the
    6  record of the prospective bidder in complying with existing labor stand-
    7  ards  and  maintaining  harmonious labor relations; (iv) the prospective
    8  bidder's compliance with equal employment opportunity  requirements  and
    9  anti-discrimination  laws,  and  demonstrated commitment to working with
   10  minority and women-owned businesses through joint  ventures  or  subcon-
   11  tractor  relationships;  and (v) the record of the prospective bidder in
   12  protecting the health and safety of workers on public works projects and
   13  job sites as demonstrated by the prospective bidder's experience modifi-
   14  cation rate for each of the last three years.
   15    S 5. Section 104-b of the general municipal law is amended by adding a
   16  new subdivision 7 to read as follows:
   17    7. THE POLICIES AND PROCEDURES  ADOPTED  UNDER  THIS  SECTION  BY  THE
   18  PROCUREMENT  POLICY  BOARD  OF  A  CITY WITH A POPULATION OF ONE MILLION
   19  INHABITANTS OR MORE MAY CONTAIN PROVISIONS  GOVERNING  THE  AWARD  OF  A
   20  CONTRACT  THAT ALLOW FOR THE CONSIDERATION OF A PROSPECTIVE CONTRACTOR'S
   21  RECORD OF COMPLYING WITH EXISTING LABOR STANDARDS, MAINTAINING  HARMONI-
   22  OUS  LABOR  RELATIONS,  PROTECTING  THE HEALTH AND SAFETY OF WORKERS AND
   23  PAYMENT OF WAGES ABOVE ANY LOCALLY-DEFINED LIVING WAGE AS  PART  OF  THE
   24  BASIS  FOR  CONTRACTOR  SELECTION,  AND MAY ALSO CONTAIN PROVISIONS THAT
   25  ALLOW FOR A QUANTITATIVE FACTOR TO BE USED  IN  EVALUATION  OF  BIDS  OR
   26  OFFERS  FOR AWARDING OF CONTRACTS FOR BIDDERS OR OFFERERS THAT ARE SMALL
   27  BUSINESSES OR CERTIFIED MINORITY- OR WOMEN-OWNED BUSINESS ENTERPRISES AS
   28  DEFINED IN SUBDIVISIONS ONE, SEVEN, FIFTEEN AND TWENTY OF SECTION  THREE
   29  HUNDRED  TEN OF THE EXECUTIVE LAW, OR CERTIFIED PURSUANT TO LOCAL LAW AS
   30  MINORITY- OR  WOMEN-OWNED  BUSINESS  ENTERPRISES  OR  EMERGING  BUSINESS
   31  ENTERPRISES AS PART OF THE BASIS FOR CONTRACTOR SELECTION.
   32    S 6. Subdivision 6 of section 163 of the state finance law, as amended
   33  by  section 1 of part P of chapter 55 of the laws of 2013, is amended to
   34  read as follows:
   35    6. Discretionary buying thresholds. Pursuant to guidelines established
   36  by the state procurement council: the commissioner may purchase services
   37  and commodities in an amount not exceeding eighty-five thousand  dollars
   38  without  a  formal  competitive  process;  state  agencies  may purchase
   39  services and commodities in  an  amount  not  exceeding  fifty  thousand
   40  dollars  without  a  formal  competitive process; and state agencies may
   41  purchase commodities or services from small business concerns  or  those
   42  certified pursuant to article fifteen-A of the executive law, or commod-
   43  ities  or technology that are recycled or remanufactured, or commodities
   44  that are food, including milk and  milk  products,  grown,  produced  or
   45  harvested in New York state in an amount not exceeding two hundred thou-
   46  sand dollars without a formal competitive process.  THE COMMISSIONER MAY
   47  AUTHORIZE  PURCHASES BY AUTHORIZED USERS OF COMMODITIES OR SERVICES IN A
   48  CITY HAVING A POPULATION OF ONE MILLION INHABITANTS OR MORE  FROM  BUSI-
   49  NESSES  CERTIFIED  PURSUANT TO ARTICLE FIFTEEN-A OF THE EXECUTIVE LAW OR
   50  CERTIFIED AS MINORITY- OR WOMEN-OWNED BUSINESS ENTERPRISES  OR  EMERGING
   51  BUSINESS  ENTERPRISES  PURSUANT  TO LOCAL LAW IN AN AMOUNT NOT EXCEEDING
   52  TWO HUNDRED THOUSAND DOLLARS WITHOUT A FORMAL COMPETITIVE PROCESS.
   53    S 7. The New York city charter is amended  by  adding  a  new  section
   54  314-a to read as follows:
   55    S 314-A. SHELTERED MARKET. THE PROCUREMENT POLICY BOARD MAY PROVIDE BY
   56  RULE   THAT   AGENCIES   MAY   MAKE  PROCUREMENTS  OF  GOODS,  SERVICES,
       A. 8044                             6
    1  CONSTRUCTION, OR CONSTRUCTION-RELATED SERVICES FOR AMOUNTS NOT EXCEEDING
    2  TWO HUNDRED THOUSAND DOLLARS FROM BUSINESS ENTERPRISES CERTIFIED  PURSU-
    3  ANT  TO  SECTION  THIRTEEN HUNDRED FOUR OF THIS CHAPTER WITHOUT A FORMAL
    4  COMPETITIVE PROCESS.
    5    S 8. Severability. If any clause, sentence, paragraph, section or part
    6  of  this act shall be adjudged by any court of competent jurisdiction to
    7  be invalid and after exhaustion of  all  further  judicial  review,  the
    8  judgment  shall  not affect, impair or invalidate the remainder thereof,
    9  but shall be confined in its operation to the  clause,  sentence,  para-
   10  graph,  section or part of this act directly involved in the controversy
   11  in which the judgment shall have been rendered.
   12    S 9. This act shall take effect immediately and  shall  apply  to  any
   13  contract  let  or  awarded on or after such date; provided, however that
   14  the amendments to subdivision 1 of section 103 of the general  municipal
   15  law  made by section one of this act shall not affect the expiration and
   16  reversion of such subdivision as provided in subdivision (a) of  section
   17  41  of  part  X of chapter 62 of the laws of 2003, as amended, when upon
   18  such date the provisions of section two of this act shall  take  effect;
   19  provided further that the amendments to section 163 of the state finance
   20  law  made by section six of this act shall not affect the repeal of such
   21  section and shall be repealed therewith.