2023 New York Laws › STF - State Finance › Article 9 - Contracts › 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.