S T A T E O F N E W Y O R K
________________________________________________________________________
5924
2015-2016 Regular Sessions
I N S E N A T E
June 12, 2015
___________
Introduced by Sen. SANDERS -- read twice and ordered printed, and when
printed to be committed to the Committee on Rules
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
S. 5924 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
S. 5924 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
S. 5924 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
S. 5924 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,
S. 5924 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.