2023 New York Laws › STF - State Finance › Article 11 - State Purchasing › 165-A - Iran Divestment.

§  165-a.  Iran  divestment. 1. As used in this section, the following
definitions shall apply:
(a) "Energy sector" of Iran means activities to develop  petroleum  or
natural gas resources or nuclear power in Iran.
(b)  "Financial  institution"  means the term as used in Section 14 of
the Iran Sanctions Act of 1996  (Public  Law  104-172;  50  U.S.C.  1701
note).
(c)  "Investment"  means  a  commitment  or  contribution  of funds or
property, a loan or other extension of credit; and  the  entry  into  or
renewal of a contract for goods or services.
(d)  "Iran"  includes  the  government  of  Iran  and  any  agency  or
instrumentality of Iran.
(e) "Person" means any of the following:
(1) A natural person, corporation, company, limited liability company,
business  association,  partnership,  society,  trust,  or   any   other
nongovernmental entity, organization, or group.
(2)  Any  governmental  entity  or  instrumentality  of  a government,
including a multilateral development institution, as defined in  Section
1701(c)(3)  of  the  International Financial Institutions Act (22 U.S.C.
262r(c)(3)).
(3) Any successor, subunit, parent entity, or subsidiary  of,  or  any
entity  under  common ownership or control with, any entity described in
subparagraph one or two of this paragraph.
2. For purposes of  this  section,  a  person  engages  in  investment
activities in Iran if:
(a) The person provides goods or services of twenty million dollars or
more  in the energy sector of Iran, including a person that provides oil
or liquefied natural gas tankers,  or  products  used  to  construct  or
maintain  pipelines  used to transport oil or liquefied natural gas, for
the energy sector of Iran; or
(b) The person is a financial institution that extends twenty  million
dollars  or  more  in  credit  to another person, for forty-five days or
more, if that person will use the credit to provide goods or services in
the energy sector in Iran and is identified on a list  created  pursuant
to  paragraph  (b)  of  subdivision  three  of  this section as a person
engaging in investment activities in Iran as described in paragraph  (a)
of this subdivision.
3.  (a)  A  person  that  is  identified on a list created pursuant to
paragraph (b) of this subdivision as a  person  engaging  in  investment
activities  in  Iran  as  described  in subdivision two of this section,
shall not be deemed a responsive bidder or offerer pursuant  to  section
one hundred sixty-three of this article.
(b)  (1)  Not  later  than one hundred twenty days after the effective
date of this section, the commissioner  shall  develop  or  contract  to
develop,  using  credible information available to the public, a list of
persons it  determines  engage  in  investment  activities  in  Iran  as
described  in  subdivision  two of this section. If the commissioner has
contracted to develop the list, the list shall be finally developed  not
later than one hundred twenty days after this section shall take effect.
Such  list, when completed, shall be posted on the website of the office
of general services.
(2) The commissioner shall update the list every  one  hundred  eighty
days.
(3)  Before finalizing an initial list pursuant to subparagraph one of
this paragraph or an updated list pursuant to subparagraph two  of  this
paragraph,  the  commissioner  shall  do  all  of the following before a
person is included on the list:
(A) Provide ninety days' written notice of the  commissioner's  intent
to  include  the  person on the list. The notice shall inform the person
that inclusion on the list would make the person a non-responsive bidder
or offerer. The notice shall specify that the person, if it  ceases  its
engagement  in investment activities in Iran as described in subdivision
two of this section, may be removed from the list.
(B) The commissioner shall provide a person  with  an  opportunity  to
comment  in  writing  that it is not engaged in investment activities in
Iran. If the person demonstrates to the commissioner that the person  is
not engaged in investment activities in Iran as described in subdivision
two of this section, the person shall not be included on the list.
(4)  The  commissioner  shall  make  every effort to avoid erroneously
including a person on the list.
(5) A person that has a  contract  with  the  New  York  state  common
retirement  fund,  the  New  York  state and local employees' retirement
system, the New York state and local police and fire retirement  system,
or the New York state teachers' retirement system, shall not be deemed a
person  that  engages  in  investment activities in Iran as described in
subdivision two of this section on  the  basis  of  those  contracts  or
investments with such retirement systems, provided however, that nothing
in  this subparagraph shall prevent the New York state common retirement
fund, the New York state and local  employees'  retirement  system,  New
York  state  and local police and fire retirement system or the New York
state teachers' retirement system from pursuing a policy  of  divestment
in the Iranian economy.
(c)  Notwithstanding paragraph (a) of this subdivision, a state agency
may permit  a  person  engaged  in  investment  activities  in  Iran  as
described  by  subdivision two of this section to be deemed a responsive
bidder or offerer, on a case-by-case basis with a state agency if:
(1) The investment activities in Iran were made before  the  effective
date  of  this  section, the investment activities in Iran have not been
expanded or renewed after the effective date of this  section,  and  the
person  has  adopted,  publicized,  and is implementing a formal plan to
cease the investment activities in Iran and to refrain from engaging  in
any new investments in Iran; or
(2)  The  state  agency  makes a determination that the commodities or
services are necessary for the state agency to perform its functions and
that, absent such an exemption, the state  agency  would  be  unable  to
obtain  the  commodities  or services for which the contract is offered.
Such determination shall be entered into the procurement record.
4. (a) A state agency shall require a person that  submits  a  bid  or
offer  in response to a notice of procurement, or that proposes to renew
an existing procurement contract with a  state  agency  or  proposes  to
assume  the  responsibility  of  a  contractor pursuant to a procurement
contract with a state agency or  otherwise  proposes  to  enter  into  a
contract with a state agency with respect to a contract for commodities,
services,  construction,  or  contracts entered pursuant to sections six
and seven of the New York  state  printing  and  public  documents  law,
section  eight  of  the public buildings law, or section thirty-eight of
the highway law, to certify, at the time the bid  is  submitted  or  the
contract  is renewed or assigned, that the person or the assignee is not
identified on a list created pursuant to paragraph  (b)  of  subdivision
three  of  this  section.    A  state agency shall include certification
information in the procurement record.
(b) A person that submits a bid or offer in response to  a  notice  of
procurement  or  that proposes to renew an existing procurement contract
with a state agency or  proposes  to  assume  the  responsibility  of  a
contractor  pursuant  to  a procurement contract with a state agency, or

otherwise proposes to enter into a contract with  a  state  agency  with
respect  to  a  contract  for  commodities,  services,  construction, or
contracts entered pursuant to sections six and seven  of  the  New  York
state  printing  and  public  documents law, section eight of the public
buildings law, or section thirty-eight of  the  highway  law  shall  not
utilize,  on  the contract with the state agency, any subcontractor that
is identified on a list created pursuant to paragraph (b) of subdivision
three of this section.
5.  Upon  receiving  information  that  a  person  who  has  made  the
certification  required  by  subdivision  four  of  this  section  is in
violation thereof, the state agency shall review  such  information  and
offer  the  person  an  opportunity  to  respond. If the person fails to
demonstrate that is has ceased its engagement in the investment which is
in violation of this act within ninety days after the  determination  of
such  violation,  then the state agency shall take such action as may be
appropriate and provided for by law, rule or  contract,  including,  but
not  limited  to,  imposing  sanctions,  seeking  compliance, recovering
damages or declaring the contractor in default.
6. The commissioner shall report to the governor and  the  legislature
annually  on  or  before  October  first,  on  the status of the federal
"Comprehensive Iran Sanctions, Accountability,  and  Divestment  Act  of
2010"  (Public  Law 111-195), "the Iran divestment act of 2012", and any
rules or regulations adopted thereunder.