Sec. 142.13. Provisions in contracts; violations; and debarment

(a) Every contracting agency shall include a provision in its State contracts expressly providing that any contractor who willfully and intentionally fails to comply with the minority- and women-owned participation requirements of these regulations as set forth in such State contract shall be liable to the contracting agency for liquidated or other appropriate damages, as otherwise specified in the contract, and shall provide for other appropriate remedies on account of such breach. Damages shall be calculated based on the actual cost incurred by the State agency related to the State agency’s expenses for personnel, supplies and overhead related to establishing, monitoring, and reviewing certified minority- and women-owned business enterprise programmatic goals and affirmative action and equal opportunity compliance, or the amount stated in the solicitation as liquidated damages. A contracting agency that elects to proceed against a contractor for breach of contract as provided in this section shall be precluded from seeking enforcement pursuant to section 316 of the Executive Law. The contracting agency shall, however, include a summary of all enforcement actions undertaken pursuant to this section in its annual report submitted pursuant to subdivision three of section 315 of the Executive Law.

(b) The penalties or debarment imposed for any violation which is premised upon either a fraudulent or intentional misrepresentation by the contractor or the contractor's willful and intentional disregard of the minority- and women-owned participation requirement included in the contract may include a determination that the contractor shall be ineligible to submit a bid to any contracting State agency or be awarded any State contract for a period not to exceed one year following the final determination; provided however, if a contractor has previously been determined to be ineligible to submit a bid pursuant to this section, the penalties imposed for any subsequent violation, if such violation occurs within five years of the first violation, may include a determination that the contractor shall be ineligible to submit a bid to any contracting State agency or be awarded any State contract for a period not to exceed five years following the final determination. The division shall maintain a website listing all contractors that have been deemed ineligible to submit a bid pursuant to this section and the date after which each contractor shall once again become eligible to submit bids.

(c) The director shall establish guidelines for the implementation of a debarment process which includes notice of hearing and referral to the division’s hearing officer for a hearing. The hearing shall be held in accordance with section 145.3 of this Title.