NY State Senate Bill 2009-S5013

Senate Bill S5013

2009-2010 Legislative Session

Defines lowest responsible bidder and unfair labor practices for purposes of the prevailing wage law for public works projects

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Archive: Last Bill Status - In Senate Committee Labor Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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Actions

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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jan 06, 2010	referred to labor
Apr 27, 2009	referred to labor

co-Sponsors

2009-S5013 (ACTIVE) - Details

See Assembly Version of this Bill:: A2064
Current Committee:: Senate Labor
Law Section:: Labor Law
Laws Affected:: Add §201-g, Lab L; amd §103, Gen Muni L
Versions Introduced in Other Legislative Sessions:: 2011-2012: S2137, A4500
2013-2014: S3714

2009-S5013 (ACTIVE) - Summary

Defines lowest responsible bidder for purposes of the prevailing wage law to include only those who have not been found guilty of an unfair labor practice within a three year period preceding the award of a public works project in order to disqualify as the lowest responsible bidder on a public works contract those bidders who have violated certain federal or state labor laws; permits challenges to the determination of the lowest possible bidder.

2009-S5013 (ACTIVE) - Sponsor Memo

                                 BILL NUMBER:  S5013

 TITLE OF BILL :

An act to amend the labor law and the general municipal law, in
relation to the definition of lowest responsible bidder and unfair
labor practices for purposes of public works projects

 PURPOSE :

To disqualify a bidder as the lowest responsible bidder on a public
work contract where it has violated certain federal or state labor
laws.

 SUMMARY OF PROVISIONS :

Section 1: disqualifies a bidder from being awarded a public work
contract as the "lowest possible bidder" where it has violated any of
the following laws within the preceding two years: (a) a violation of
the prevailing wage laws under sections 220 and 231 of the Labor Law,
or (b) violation of the health and safety provisions of the Federal
Occupational and Safety Health Act, or section 27-a of the state's
labor law. Section 1 also authorizes a person, corporation or a labor
union to challenge the proposed selection of the lowest responsible
bidder by filing an application with the public entity awarding the
contract. The commissioner or chief executive officer of the public

entity must conduct a hearing and issue a written determination on the
validity of the application. If the proposed bidder is disqualified,
the contract must be awarded to the next lowest responsible bidder.
Sections 2 and 3:  amend the general municipal law and the state
finance law respectively to prohibit the public owner from awarding a
contract to the lowest bidder who has violated any of the laws
specified in section 1.

 JUSTIFICATION :

In assessing the responsibility of a low bidder on a public works
contract, the state and municipalities have had to rely on arbitrary
definitions of accountability, reliability and good faith. Often,
contracts are awarded to bidders who are lowest responsible in
financial terms yet are negligent in terms of paying wages and the
safety and health of workers. This bill would provide guidance to
municipalities and the state to insure that public funds are awarded
to low bidders who comply with established standards of
responsibility.

 LEGISLATIVE HISTORY :

2008: Reported referred to codes

 EFFECTIVE DATE :
This act shall take effect on the first day of September next
succeeding the date on which it shall have become a law.

2009-S5013 (ACTIVE) - Bill Text download pdf

                            
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  5013

                       2009-2010 Regular Sessions

                            I N  S E N A T E

                             April 27, 2009
                               ___________

Introduced  by Sens. STACHOWSKI, SAVINO -- read twice and ordered print-
  ed, and when printed to be committed to the Committee on Labor

AN ACT to amend the labor law and the general municipal law, in relation
  to the definition of lowest responsible bidder and unfair labor  prac-
  tices for purposes of public works projects

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. The labor law is amended by adding a new section  201-g  to
read as follows:
  S  201-G.  DETERMINATION  OF  LOWEST  RESPONSIBLE  BIDDER. 1. WHENEVER
SELECTION OF THE LOWEST RESPONSIBLE BIDDER IS REQUIRED UNDER SECTION ONE
HUNDRED THREE OF THE GENERAL MUNICIPAL LAW, A PERSON, FIRM, CORPORATION,
SUCCESSOR CORPORATION, CONTRACTOR OR SUBCONTRACTOR SHALL NOT QUALIFY  AS
A RESPONSIBLE BIDDER IF IT HAS COMMITTED ANY OF THE FOLLOWING VIOLATIONS
WITHIN A THREE YEAR PERIOD PRECEDING THE AWARD OF THE CONTRACT:
  (A) A VIOLATION OF ANY PROVISION OF ARTICLE EIGHT OF THIS CHAPTER;
  (B)  A  VIOLATION  OF ANY STATE OR FEDERAL LABOR LAW INCLUDING BUT NOT
LIMITED TO OCCUPATIONAL SAFETY AND HEALTH; WAGES; CHILD LABOR;  WORKERS'
COMPENSATION;  UNEMPLOYMENT  COMPENSATION;  ORGANIZATIONAL  RIGHTS;  AND
LABOR STANDARDS;
  (C) A VIOLATION OF ANY STATE OR FEDERAL LAW RELATING TO BID  COLLUSION
OR RESTRAINT OF TRADE;
  (D) A VIOLATION OF ANY STATE OR FEDERAL ENVIRONMENTAL LAW;
  (E)  A CRIMINAL CONVICTION OF ANY STATE OR FEDERAL LAW FOR ANY CONDUCT
RELATING TO BIDDING OR CONSTRUCTION-RELATED WORK BY THE BIDDER;
  (F) AN OUTSTANDING DISQUALIFICATION FROM BIDDING ON  ANY  PUBLIC  WORK
CONTRACT; OR
  (G) A VIOLATION OF ANY STATE OR FEDERAL CIVIL RIGHTS, EMPLOYMENT DISA-
BILITY OR MINORITY PREFERENCE LAW.
  2.  THE PROVISIONS OF SUBDIVISION ONE OF THIS SECTION SHALL NOT DIMIN-
ISH THE DISCRETION OF THE AWARDING AUTHORITY TO DISQUALIFY A  BIDDER  ON
OTHER  GROUNDS WHICH THE AUTHORITY FINDS APPROPRIATE WHICH SHALL INCLUDE
BUT NOT BE LIMITED TO:

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets

                      [ ] is old law to be omitted.
                                                           LBD03197-01-9

S. 5013                             2

  (A) LACK OF SUFFICIENT EXPERTISE,  PRIOR  EXPERIENCE  WITH  COMPARABLE
PROJECTS,  OR  SUFFICIENT  RESOURCES TO PERFORM THE CONTRACT IN A TIMELY
AND COMPETENT MANNER;
  (B)  WHETHER  THE  BIDDER'S EMPLOYEES ARE PROPERLY TRAINED AND WHETHER
THE EQUIPMENT TO BE USED IS SAFE AND IN GOOD OPERATING CONDITION;
  (C) WHETHER THE BIDDER HAS SUBMITTED A BID THAT IS  MATHEMATICALLY  OR
MATERIALLY UNBALANCED;
  (D)  SUBMISSION  OF  A  BID SO MUCH LOWER THAN THE AGENCY'S ENGINEER'S
ESTIMATE THAT IT SEEMS UNLIKELY THAT THE BIDDER WILL BE ABLE TO  PERFORM
THE CONTRACT SATISFACTORILY AT THE PRICE BID; OR
  (E)  PRESENTATION  OF ANY FALSE OR MISLEADING STATEMENTS TO THE AGENCY
AWARDING THE CONTRACT IN CONNECTION WITH THE BID.
  3. NO PERSON ACTING ON BEHALF OF A BIDDER SHALL LOBBY THE CONSTRUCTING
GOVERNMENTAL ENTITY FOR THE PURPOSE OF ASSISTING SUCH BIDDER IN SECURING
A BID. NO BID SHALL INCLUDE ANY COSTS ATTRIBUTABLE TO LOBBYING.
  4. ANY PERSON, FIRM, CORPORATION, SUCCESSOR CORPORATION, LABOR  ORGAN-
IZATION, CONTRACTOR OR SUBCONTRACTOR MAY, WITHIN TEN DAYS AFTER A BID IS
ACCEPTED,  FILE  AN  APPLICATION  TO  CHALLENGE  THE DETERMINATION UNDER
SECTION ONE HUNDRED THREE OF THE GENERAL MUNICIPAL LAW THAT  THE  BIDDER
CHOSEN WAS THE LOWEST RESPONSIBLE BIDDER.  UPON RECEIPT OF SUCH APPLICA-
TION,  THE  COMMISSIONER OR CHIEF EXECUTIVE OFFICER OF THE PUBLIC ENTITY
SHALL CONDUCT A HEARING TO DETERMINE THE VALIDITY  OF  THE  APPLICATION.
NOTICE  SHALL  BE  GIVEN  TO  THE  APPLICANT  AND TO THE PROPOSED LOWEST
RESPONSIBLE BIDDER OF THE DATE, TIME AND PLACE  OF  THE  HEARING.    THE
APPLICANT  AND THE PROPOSED LOWEST RESPONSIBLE BIDDER SHALL BE GIVEN THE
OPPORTUNITY TO PRESENT EVIDENCE  AND  WITNESSES  ON  THEIR  BEHALF.  THE
COMMISSIONER  OR  CHIEF  EXECUTIVE  OFFICER  PRESIDING OVER SUCH HEARING
SHALL ISSUE A  WRITTEN  DECISION  WITH  FINDINGS  OF  FACT  WHETHER  THE
PROPOSED  LOWEST RESPONSIBLE BIDDER IS RESPONSIBLE.  SUCH CONTRACT SHALL
NOT BE AWARDED PRIOR TO SUCH DECISION.   THE  AWARDING  AUTHORITY  SHALL
NOTIFY  ALL  BIDDERS  REGARDING  THE  SELECTION  OF  ITS PROPOSED LOWEST
RESPONSIBLE BIDDER.
  S 2. Subdivision 1 of section 103 of the  general  municipal  law,  as
amended  by  chapter  741  of  the  laws  of 2005, is amended to read as
follows:
  1. Except as otherwise expressly provided by an act of the legislature
or by a local law adopted prior to  September  first,  nineteen  hundred
fifty-three,  all  contracts for public work involving an expenditure of
more than twenty thousand dollars and all purchase  contracts  involving
an  expenditure  of  more than ten thousand dollars, shall be awarded by
the appropriate officer, board or agency of a political  subdivision  or
of any district therein including but not limited to a soil conservation
district, to the lowest responsible bidder furnishing the required secu-
rity  after advertisement for sealed bids in the manner provided by this
section. In any case where a responsible bidder's gross price is reduci-
ble by an allowance for the value of used machinery, equipment,  appara-
tus or tools to be traded in by a political subdivision, the gross price
shall  be  reduced  by  the amount of such allowance, for the purpose of
determining the low bid. In cases where two or more responsible  bidders
furnishing the required security submit identical bids as to price, such
officer,  board or agency may award the contract to any of such bidders.
Such officer, board or agency may, in his or its discretion, reject  all
bids  and  readvertise  for  new  bids  in  the  manner provided by this
section. For purposes of this  section,  "sealed  bids",  as  that  term
applies  to purchase contracts, shall include bids submitted in an elec-
tronic format, provided that the governing board of the political subdi-

S. 5013                             3

vision or district, by resolution, has authorized the receipt of bids in
such format. Submission  in  electronic  format  may  not,  however,  be
required  as  the sole method for the submission of bids. Bids submitted
in an electronic format shall be transmitted by bidders to the receiving
device  designated  by the political subdivision or district. Any method
used to receive electronic bids shall comply with article three  of  the
state  technology  law,  and  any  rules and regulations promulgated and
guidelines developed thereunder and, at a minimum, must (a) document the
time and date of  receipt  of  each  bid  received  electronically;  (b)
authenticate  the identity of the sender; (c) ensure the security of the
information transmitted; and (d) ensure the confidentiality of  the  bid
until  the time and date established for the opening of bids. The timely
submission of an electronic bid in compliance with instructions provided
for such submission in the advertisement for bids and/or the  specifica-
tions  shall  be the responsibility solely of each bidder or prospective
bidder. No political subdivision or district  therein  shall  incur  any
liability from delays of or interruptions in the receiving device desig-
nated  for  the submission and receipt of electronic bids.  FOR PURPOSES
OF THIS SECTION, THE TERM "LOWEST RESPONSIBLE  BIDDER"  SHALL  MEAN  ANY
PERSON,  FIRM, CORPORATION, SUCCESSOR CORPORATION, CONTRACTOR OR SUBCON-
TRACTOR WHO (I) SUBMITS THE LOWEST BID FOR A PUBLIC  WORK  CONTRACT  AND
(II)  IS  NOT  DISQUALIFIED  ON  GROUNDS PROVIDED IN SECTION TWO HUNDRED
ONE-G OF THE LABOR LAW.
  S 3. Subdivision 1 of section 103 of the  general  municipal  law,  as
amended  by  chapter  413  of  the  laws  of 1991, is amended to read as
follows:
  1. Except as otherwise expressly provided by an act of the legislature
or by a local law adopted prior to  September  first,  nineteen  hundred
fifty-three,  all  contracts for public work involving an expenditure of
more than twenty thousand dollars and all purchase  contracts  involving
an  expenditure  of  more than ten thousand dollars, shall be awarded by
the appropriate officer, board or agency of a political  subdivision  or
of any district therein including but not limited to a soil conservation
district, to the lowest responsible bidder furnishing the required secu-
rity  after advertisement for sealed bids in the manner provided by this
section. In any case where a responsible bidder's gross price is reduci-
ble by an allowance for the value of used machinery, equipment,  appara-
tus or tools to be traded in by a political subdivision, the gross price
shall  be  reduced  by  the amount of such allowance, for the purpose of
determining the low bid. In cases where two or more responsible  bidders
furnishing the required security submit identical bids as to price, such
officer,  board or agency may award the contract to any of such bidders.
Such officer, board or agency may, in his or its discretion, reject  all
bids  and  readvertise  for  new  bids  in  the  manner provided by this
section.  FOR PURPOSES OF THIS SECTION,  THE  TERM  "LOWEST  RESPONSIBLE
BIDDER" SHALL MEAN ANY PERSON, FIRM, CORPORATION, SUCCESSOR CORPORATION,
CONTRACTOR  OR SUBCONTRACTOR WHO (A) SUBMITS THE LOWEST BID FOR A PUBLIC
WORK CONTRACT AND (B) IS NOT DISQUALIFIED ON GROUNDS PROVIDED IN SECTION
TWO HUNDRED ONE-G OF THE LABOR LAW.
  S 4. This act shall  take  effect  on  the  first  of  September  next
succeeding  the  date on which it shall have become a law; provided that
the amendments to subdivision 1 of section 103 of the general  municipal
law  made  by section two of this act shall be subject to the expiration
and reversion of such subdivision pursuant to section 41 of  part  X  of
chapter  62  of  the  laws  of  2003,  as  amended,  when  such date the
provisions of section three of this act shall take effect.

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Senate Bill S5013

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Sponsored By

William T. Stachowski