S T A T E   O F   N E W   Y O R K
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                                  2967

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                            February 4, 2011
                               ___________

Introduced by Sen. ESPAILLAT -- read twice and ordered printed, and when
  printed to be committed to the Committee on Consumer Protection

AN ACT to amend the general business law, in relation to promoting fair-
  ness in competitive bidding by providing for enforcement of prevailing
  wage provisions applicable to public work construction projects

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

  Section 1. The general business law is amended by adding a new section
399-j to read as follows:
  S 399-J. FAIRNESS IN COMPETITIVE BIDDING. 1. FOR THE PURPOSES OF  THIS
SECTION:  (A)  THE TERM "PERSON" SHALL INCLUDE ANY INDIVIDUAL, ORGANIZA-
TION, ASSOCIATION, SCHOOL DISTRICT, LOCAL GOVERNMENT, CORPORATION, PART-
NERSHIP, LIMITED LIABILITY COMPANY OR OTHER BUSINESS ENTITY; AND
  (B) THE TERM "CONSTRUCTION PROJECT" SHALL INCLUDE ANY PROJECT WHICH IS
SUBJECT TO THE PROVISIONS OF ARTICLE EIGHT OF THE LABOR  LAW  AND  WHICH
INVOLVES  THE  CONSTRUCTION, MODERNIZATION, IMPROVEMENT, REHABILITATION,
REPAIR, MAINTENANCE, REPLACEMENT OR RENOVATION OF A  BUILDING,  ROAD  OR
STRUCTURE,  OR  ANY  PORTION  OF  SUCH A PROJECT PERFORMED PURSUANT TO A
SUBCONTRACTING ARRANGEMENT.
  2. (A) ANY PERSON MAY BRING A CIVIL ACTION FOR THE RECOVERY OF DAMAGES
AGAINST THE WINNING BIDDER IF THE WINNING BIDDER HAS VIOLATED THE  LABOR
LAW  BY  FAILING  TO  PAY THE PREVAILING WAGE ON A CONSTRUCTION PROJECT.
SUCH AN ACTION MAY BE MAINTAINED  SOLELY  BY  THE  PERSON  BRINGING  THE
ACTION,  OR  BY  SUCH PERSON, TOGETHER WITH THE ATTORNEY GENERAL. IF THE
WINNING BIDDER IS FOUND NOT  TO  BE  PAYING  THE  PREVAILING  WAGE,  THE
PRESUMPTIVE  MEASURE  OF  DAMAGES  IS  THE VALUE OF THE CONTRACT FOR THE
CONSTRUCTION PROJECT.
  (B) A COPY OF THE COMPLAINT AND WRITTEN  DISCLOSURE  OF  SUBSTANTIALLY
ALL MATERIAL EVIDENCE AND INFORMATION THAT THE PERSON POSSESSES SHALL BE
SERVED ON THE OFFICE OF THE ATTORNEY GENERAL PURSUANT TO THE CIVIL PRAC-
TICE LAW AND RULES. THE COMPLAINT SHALL BE FILED IN CAMERA, SHALL REMAIN

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD07606-01-1
              

S. 2967                             2

UNDER  SEAL  FOR  AT  LEAST SIXTY DAYS, AND SHALL NOT BE SERVED UPON THE
DEFENDANT UNTIL THE COURT SO ORDERS. THE OFFICE OF THE ATTORNEY  GENERAL
MAY  ELECT  TO  INTERVENE  AND PROCEED WITH THE ACTION WITHIN SIXTY DAYS
AFTER  IT  RECEIVES  BOTH  THE  COMPLAINT  AND THE MATERIAL EVIDENCE AND
INFORMATION.
  (C) BEFORE THE EXPIRATION OF THE SIXTY-DAY PERIOD PROVIDED FOR IN THIS
SECTION, THE OFFICE OF THE ATTORNEY GENERAL SHALL: (I) PROCEED WITH  THE
ACTION, IN WHICH CASE THE ACTION SHALL BE CONDUCTED BY THE OFFICE OF THE
ATTORNEY GENERAL ON BEHALF OF THE STATE OF NEW YORK; OR
  (II)  NOTIFY  THE  COURT  THAT IT DECLINES TO TAKE OVER THE ACTION, IN
WHICH CASE THE PERSON BRINGING  THE  ACTION  SHALL  HAVE  THE  RIGHT  TO
CONDUCT THE ACTION.
  3.  WHENEVER  A  PERSON BRINGS AN ACTION UNDER THIS SECTION, NO PERSON
OTHER THAN THE OFFICE OF THE ATTORNEY GENERAL MAY INTERVENE OR  BRING  A
RELATED ACTION BASED ON THE FACTS UNDERLYING THE PENDING ACTION.
  4.  IF THE OFFICE OF THE ATTORNEY GENERAL PROCEEDS WITH THE ACTION, IT
SHALL HAVE THE PRIMARY RESPONSIBILITY FOR PROSECUTING  THE  ACTION,  AND
SHALL  NOT  BE  BOUND  BY AN ACT OF THE PERSON BRINGING THE ACTION. SUCH
PERSON SHALL HAVE THE RIGHT TO  CONTINUE  AS  A  PARTY  TO  THE  ACTION,
SUBJECT  TO  THE  LIMITATIONS  SET  FORTH  IN  SUBDIVISION  FIVE OF THIS
SECTION.
  5. (A) THE OFFICE OF THE  ATTORNEY  GENERAL  MAY  DISMISS  THE  ACTION
NOTWITHSTANDING  THE  OBJECTIONS  OF THE PERSON INITIATING THE ACTION IF
THE PERSON HAS BEEN NOTIFIED BY THE OFFICE OF THE  ATTORNEY  GENERAL  OF
THE  FILING  OF THE MOTION AND THE COURT HAS PROVIDED THE PERSON WITH AN
OPPORTUNITY FOR A HEARING ON THE MOTION.
  (B) THE OFFICE OF THE ATTORNEY GENERAL MAY SETTLE THE ACTION WITH  THE
DEFENDANT  NOTWITHSTANDING  THE  OBJECTIONS OF THE PERSON INITIATING THE
ACTION IF THE COURT DETERMINES,  AFTER  A  HEARING,  THAT  THE  PROPOSED
SETTLEMENT  IS  FAIR,  ADEQUATE,  AND  REASONABLE  UNDER ALL THE CIRCUM-
STANCES. UPON A SHOWING OF GOOD CAUSE,  SUCH  HEARING  MAY  BE  HELD  IN
CAMERA.
  6.  IF  THE  OFFICE OF THE ATTORNEY GENERAL ELECTS NOT TO PROCEED WITH
THE ACTION, THE PERSON WHO INITIATED THE ACTION SHALL HAVE THE RIGHT  TO
CONDUCT THE ACTION. IF THE OFFICE OF THE ATTORNEY GENERAL SO REQUEST, IT
SHALL  BE  SERVED  WITH  COPIES OF ALL PLEADINGS FILED IN THE ACTION AND
SHALL BE SUPPLIED WITH COPIES OF  ALL  DEPOSITION  TRANSCRIPTS  (AT  THE
OFFICE  OF  THE ATTORNEY GENERAL'S EXPENSE). WHEN A PERSON PROCEEDS WITH
THE ACTION, THE COURT, WITHOUT LIMITING THE STATUS  AND  RIGHTS  OF  THE
PERSON  INITIATING THE ACTION, MAY NEVERTHELESS PERMIT THE OFFICE OF THE
ATTORNEY GENERAL TO INTERVENE AT A LATER DATE UPON  A  SHOWING  OF  GOOD
CAUSE.
  7.  THE  OFFICE  OF THE ATTORNEY GENERAL MAY ELECT TO PURSUE ITS CLAIM
THROUGH ANY ALTERNATE REMEDY AVAILABLE TO THE  OFFICE  OF  THE  ATTORNEY
GENERAL,  INCLUDING  ANY  ADMINISTRATIVE PROCEEDING TO DETERMINE A CIVIL
MONEY PENALTY. IF ANY  SUCH  ALTERNATE  REMEDY  IS  PURSUED  IN  ANOTHER
PROCEEDING,  THE PERSON INITIATING THE ACTION SHALL HAVE THE SAME RIGHTS
IN SUCH PROCEEDING AS SUCH PERSON WOULD  HAVE  HAD  IF  THE  ACTION  HAD
CONTINUED  UNDER  THIS SECTION. ANY FINDING OF FACT OR CONCLUSION OF LAW
MADE IN SUCH OTHER PROCEEDING THAT HAS BECOME FINAL SHALL BE  CONCLUSIVE
ON  ALL  PARTIES  TO  AN  ACTION UNDER THIS SECTION. FOR PURPOSES OF THE
PRECEDING SENTENCE, A FINDING OR CONCLUSION IS  FINAL  IF  IT  HAS  BEEN
FINALLY  DETERMINED  ON  APPEAL TO THE APPROPRIATE COURT OF THE STATE OF
NEW YORK, IF ALL TIME FOR FILING SUCH AN  APPEAL  WITH  RESPECT  TO  THE
FINDING  OR  CONCLUSION  HAS EXPIRED, OR IF THE FINDING OR CONCLUSION IS
NOT SUBJECT TO JUDICIAL REVIEW.

S. 2967                             3

  8. IF A WINNING BIDDER IS FOUND NOT TO BE PAYING THE  PREVAILING  WAGE
ON  A  CONSTRUCTION  PROJECT, THE PRESUMPTIVE  MEASURE OF DAMAGES IS THE
VALUE OF THE CONTRACT FOR THE CONSTRUCTION PROJECT.  (A) IF  THE  OFFICE
OF  THE  ATTORNEY  GENERAL  PROCEEDS WITH AN ACTION BROUGHT BY A PERSON,
SUCH  PERSON SHALL, SUBJECT TO THE PROVISIONS OF THIS PARAGRAPH, RECEIVE
AT LEAST FIFTEEN PERCENT BUT NOT MORE THAN TWENTY-FIVE  PERCENT  OF  THE
PROCEEDS  OF  THE  ACTION OR SETTLEMENT OF THE CLAIM, DEPENDING UPON THE
EXTENT TO WHICH THE PERSON SUBSTANTIALLY CONTRIBUTED TO THE  PROSECUTION
OF  THE ACTION. ANY SUCH PERSON SHALL ALSO RECEIVE AN AMOUNT FOR REASON-
ABLE EXPENSES THAT THE COURT FINDS TO HAVE  BEEN  NECESSARILY  INCURRED,
PLUS REASONABLE ATTORNEYS' FEES AND COSTS.  ALL SUCH EXPENSES, FEES, AND
COSTS SHALL BE AWARDED AGAINST THE DEFENDANT.
   (B)  IF  THE  OFFICE OF THE ATTORNEY GENERAL DOES NOT PROCEED WITH AN
ACTION UNDER THIS SECTION, THE PERSON BRINGING THE  ACTION  OR  SETTLING
THE  CLAIM SHALL RECEIVE AN AMOUNT WHICH THE COURT DECIDES IS REASONABLE
FOR COLLECTING THE CIVIL PENALTY AND DAMAGES. THE AMOUNT  SHALL  BE  NOT
LESS  THAN  FIFTY  PERCENT AND NOT MORE THAN SEVENTY-FIVE PERCENT OF THE
PROCEEDS OF THE ACTION OR SETTLEMENT AND  SHALL  BE  PAID  OUT  OF  SUCH
PROCEEDS.  SUCH  PERSON  SHALL  ALSO  RECEIVE  AN  AMOUNT FOR REASONABLE
EXPENSES THAT THE COURT FINDS TO HAVE BEEN  NECESSARILY  INCURRED,  PLUS
REASONABLE ATTORNEYS' FEES AND COSTS. ALL SUCH EXPENSES, FEES, AND COSTS
SHALL BE AWARDED AGAINST THE DEFENDANT.
  S  2.  This  act  shall take effect on the sixtieth day after it shall
have become a law.