senate Bill S5149D

Amended

Relates to labor performed under certain public work contracts

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Bill Status


  • Introduced
  • In Committee
  • On Floor Calendar
    • Passed Senate
    • Passed Assembly
  • Delivered to Governor
  • Signed/Vetoed by Governor
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actions

  • 03 / May / 2011
    • REFERRED TO LABOR
  • 11 / May / 2011
    • AMEND AND RECOMMIT TO LABOR
  • 11 / May / 2011
    • PRINT NUMBER 5149A
  • 17 / Jun / 2011
    • AMEND AND RECOMMIT TO LABOR
  • 17 / Jun / 2011
    • PRINT NUMBER 5149B
  • 21 / Jun / 2011
    • COMMITTEE DISCHARGED AND COMMITTED TO RULES
  • 21 / Jun / 2011
    • ORDERED TO THIRD READING CAL.1473
  • 24 / Jun / 2011
    • RECOMMITTED TO RULES
  • 04 / Jan / 2012
    • REFERRED TO LABOR
  • 06 / Mar / 2012
    • AMEND (T) AND RECOMMIT TO LABOR
  • 06 / Mar / 2012
    • PRINT NUMBER 5149C
  • 09 / Apr / 2012
    • AMEND AND RECOMMIT TO LABOR
  • 09 / Apr / 2012
    • PRINT NUMBER 5149D
  • 05 / Jun / 2012
    • REPORTED AND COMMITTED TO FINANCE
  • 12 / Jun / 2012
    • AMEND AND RECOMMIT TO FINANCE
  • 12 / Jun / 2012
    • PRINT NUMBER 5149E
  • 15 / Jun / 2012
    • AMEND AND RECOMMIT TO FINANCE
  • 15 / Jun / 2012
    • PRINT NUMBER 5149F
  • 21 / Jun / 2012
    • COMMITTEE DISCHARGED AND COMMITTED TO RULES
  • 21 / Jun / 2012
    • ORDERED TO THIRD READING CAL.1528
  • 21 / Jun / 2012
    • PASSED SENATE
  • 21 / Jun / 2012
    • DELIVERED TO ASSEMBLY
  • 22 / Jun / 2012
    • REFERRED TO CODES

Summary

Relates to labor performed under certain public work contracts; defines "job order contract" as certain competitive bid, indefinite quantity, fixed price, multi-task contracts; provides that such contracts shall have a defined scope of work and detailed description of such work; provides that such information shall be filed with the fiscal officer before soliciting for bids; provides that the cost of a job order contract may not exceed $500,000.

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Bill Details

See Assembly Version of this Bill:
A9371A
Versions:
S5149
S5149A
S5149B
S5149C
S5149D
S5149E
S5149F
Legislative Cycle:
2011-2012
Current Committee:
Assembly Codes
Law Section:
Labor Law
Laws Affected:
Amd §220, Lab L; add §148, St Fin L; add §103-h, Gen Mun i L
Versions Introduced in 2011-2012 Legislative Cycle:
A9371

Votes

10
0
10
Aye
0
Nay
5
aye with reservations
0
absent
1
excused
0
abstained
show Labor committee vote details

Sponsor Memo

BILL NUMBER:S5149D

TITLE OF BILL:
An act to amend the labor law, the state finance law and the general
municipal law, in relation to labor performed under certain public work
contracts

PURPOSE OR GENERAL IDEA OF BILL:
To regulate the practice of job order contracting in relation to public
work projects.

SUMMARY OF SPECIFIC PROVISIONS:
Section 1 of the bill amends the labor law, defining "job order
contract," requiring that such contracts be filed with the Department of
Labor and expressly state that all work performed under the contract
applies to section 220 of the labor law.

Section 2 of the bill adds a new section to the state finance law that
will specify requirements and limitations on job order contracts.

Section 3 of the bill adds a new section to the general municipal law
that will specify requirements and limitations on job order contracts.

Section 4 of the bill would implement the legislation into law so that
it applies to all job order contracts solicited or renewed after its
enactment.

EXISTING LAW:
Currently there is no provision of New York State Law that specifically
mentions job order contracting.

JUSTIFICATION:
A job order contract ("JOC") is an indefinite quantity contract for the
performance of construction, renovation, alteration and repair tasks. A
JOC is generally a multi-year contract that includes a base year with
multiple renewal options. A contractor bidding for a JOG does not submit
a fixed dollar figure as a contract. Rather, a contractor submits an
adjustment factor, known as a "multiplier," which is a percentage above
or below prices for tasks that are set forth in a unit price book. For
example, a bid of 1.25 indicates that the bidder would perform work at
125% of the price for each task in the unit price book that the bidder
performs. The bidder who " submits the lowest "multiplier" is awarded
the JOG. The bidders are bidding on a range of tasks that mayor may not
be performed over the course of the contract.

Because of the indefinite nature of these contracts, many contractors
are unable to bid on such a complicated process. Those that do submit
bids, do not know the specifics of the work they will perform and,
therefore, cannot properly ascertain how much the project will cost
them. If the unit bid is too low and they turn out to be underpaid,

cost-saving measures could become necessary; corners might be cut on
these projects which would negate the very purpose of public work.

It is has been well founded by New York courts that imprecise bid spec-
ifications violate the competitive bidding law because they frustrate
bidders' ability to set the lowest possible bid and discourage persons
from bidding (Matter of Sagamore Auto Body v. County of Nassau, 104
A.D. 2d 818, 821, 2nd Dept 1964).

Job order contracting is traditionally appropriate for small
construction projects and this legislation would properly regulate the
practice as such.

PRIOR LEGISLATIVE HISTORY:
New Bill.

FISCAL IMPLICATIONS:
None.

EFFECTIVE DATE:
This act shall take effect immediately.

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

                                 5149--D

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                               May 3, 2011
                               ___________

Introduced  by  Sen. BONACIC -- read twice and ordered printed, and when
  printed to be  committed  to  the  Committee  on  Labor  --  committee
  discharged, bill amended, ordered reprinted as amended and recommitted
  to  said  committee  --  committee  discharged,  bill amended, ordered
  reprinted as amended and recommitted to said committee --  recommitted
  to  the Committee on Labor in accordance with Senate Rule 6, sec. 8 --
  committee discharged, bill amended, ordered reprinted as  amended  and
  recommitted  to  said committee -- committee discharged, bill amended,
  ordered reprinted as amended and recommitted to said committee

AN ACT to amend the labor law, the state finance  law  and  the  general
  municipal  law,  in  relation  to labor performed under certain public
  work contracts

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

  Section 1. Subdivision 5 of section 220 of the labor law is amended by
adding a new paragraph m to read as follows:
  M. "JOB ORDER CONTRACT" SHALL MEAN A COMPETITIVE BID, INDEFINITE QUAN-
TITY, FIXED PRICE, MULTI-TASK CONTRACT, WHERE A BASE CONTRACT IS AWARDED
WITH  PRE-ESTABLISHED  TASKS  AND  PRICES,  SPECIFICATIONS  AND  GENERAL
CONTRACT CONDITIONS. CONTRACTORS ARE PERMITTED TO BID  BY  SUBMITTING  A
COEFFICIENT  OR  COEFFICIENTS  FOR  A JOB ORDER CONTRACT BASED ON A UNIT
PRICE BOOK, WHICH CONTAINS A LIST OF ALL TASKS THAT MAY BE PERFORMED  AS
PART  OF  THE  WORK  TO  BE  PERFORMED  UNDER  THE BASE CONTRACT.   SUCH
CONTRACTS MUST BE FILED WITH  THE  COMMISSIONER  BY  THE  DEPARTMENT  OF
JURISDICTION AND MUST EXPRESSLY STATE THAT ALL WORK PERFORMED UNDER SUCH
CONTRACT IS PURSUANT TO THIS SECTION.
  S  2.  The state finance law is amended by adding a new section 148 to
read as follows:
  S 148. JOB ORDER CONTRACTS. 1. "JOB ORDER CONTRACT",  SHALL  HAVE  THE
SAME  MEANING AS SET FORTH IN PARAGRAPH M OF SUBDIVISION FIVE OF SECTION
TWO HUNDRED TWENTY OF THE LABOR LAW.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD09486-05-2

S. 5149--D                          2

  2. THE JOB ORDER CONTRACT MUST HAVE A DEFINED  SCOPE  OF  WORK,  WHICH
INCLUDES:
  A.  A LIMITATION TO ONE OF THE GEOGRAPHIC REGIONS COMMONLY REFERRED TO
AS THE CAPITAL  DISTRICT,  MOHAWK  VALLEY,  CENTRAL  NEW  YORK,  GENESEE
VALLEY,  WESTERN  NEW YORK, SOUTHERN TIER, NORTH COUNTRY, LONG ISLAND OR
NEW YORK CITY;
  B. A DEFINED TRADE OF EITHER:
  (I) BASIC TRADES, INCLUDING CARPENTERS, LABORERS AND BRICKLAYERS,
  (II) PLUMBING AND GAS FITTING,
  (III) STEAM HEATING, HOT WATER HEATING, VENTILATING AND AIR CONDITION-
ING APPARATUS,
  (IV) ELECTRIC WIRING AND STANDARD ILLUMINATING FIXTURES,
  (V) ROOFING,
  (VI) WELDING,
  (VII) IRONWORK,
  (VIII) CONCRETE FINISHING, OR
  (IX) PAINTING AND PLASTERING; AND
  C. A DETAILED DESCRIPTION OF THE WORK TO BE PERFORMED UNDER  THE  BASE
CONTRACT,  A  LIST  OF  THE  TASKS  NECESSARY TO COMPLETE THE WORK TO BE
PERFORMED UNDER THE BASE CONTRACT AND THE TRADE CLASSIFICATIONS  OF  THE
WORKERS,  MECHANICS  AND  LABORERS  WHO  WILL PERFORM EACH OF THE LISTED
TASKS IN THE BASE CONTRACT.
  3. THE DEFINED SCOPE OF WORK TO BE PERFORMED UNDER THE  BASE  CONTRACT
MUST  NOT BE OVERLY BROAD SO AS TO PREVENT THE CONTRACTOR FROM MAKING AN
INFORMED BID DURING THE COMPETITIVE BID PROCESS. THE CONTRACTING  ENTITY
MUST  LIMIT  THE  WORK  TO BE PERFORMED UNDER THE BASE CONTRACT TO THOSE
PRE-ESTABLISHED TASKS AND PRICES REFERRED TO  IN  THE  GENERAL  CONTRACT
CONDITIONS.
  4. BEFORE SOLICITING BIDS FOR THE BASE CONTRACT, THE CONTRACTING ENTI-
TY  SHALL FILE ALL INFORMATION REQUIRED BY SUBPARAGRAPH (I) OF PARAGRAPH
A OF SUBDIVISION THREE-A OF SECTION TWO HUNDRED TWENTY OF THE LABOR  LAW
WITH THE FISCAL OFFICER. THE CONTRACTING ENTITY MAY NOT SOLICIT BIDS FOR
THE  CONTRACT  UNTIL ALL REQUIREMENTS OF SUBPARAGRAPH (I) OF PARAGRAPH A
OF SUBDIVISION THREE-A OF SECTION TWO HUNDRED TWENTY OF  THE  LABOR  LAW
HAVE BEEN SATISFIED.
  5.  THE COST OF A JOB ORDER CONTRACT MAY NOT EXCEED FIVE HUNDRED THOU-
SAND DOLLARS. SUCH CONTRACT IS LIMITED TO ONE YEAR AND  MAY  BE  RENEWED
FOR  AN ADDITIONAL TWELVE MONTHS TWICE SO LONG AS THE FIVE HUNDRED THOU-
SAND DOLLAR THRESHOLD HAS NOT  BEEN  REACHED.  IT  IS  IMPERMISSIBLE  TO
SUBDIVIDE  A  CONTRACT  INTO  SEPARATE  CONTRACTS  IN  ORDER TO MEET THE
REQUIREMENTS OF THIS SUBDIVISION.
  6. THE JOB ORDER CONTRACT AND ALL SUBCONTRACTS  ASSOCIATED  WITH  SUCH
JOB  ORDER  CONTRACT  MUST EXPRESSLY STATE THAT ALL WORK PERFORMED UNDER
SUCH CONTRACTS IS PURSUANT TO SECTION TWO HUNDRED TWENTY  OF  THE  LABOR
LAW.
  7.  THESE  REQUIREMENTS  APPLY  TO ALL JOB ORDER CONTRACTS ISSUED BY A
STATE AGENCY, AS DEFINED BY SUBDIVISION THREE OF SECTION TWO-A  OF  THIS
CHAPTER,  A  COVERED AUTHORITY, AS DEFINED BY SUBDIVISION SIX OF SECTION
TWO-A OF THIS CHAPTER, THE NEW YORK CITY HOUSING AUTHORITY,  ESTABLISHED
UNDER  TITLE  ONE OF ARTICLE THIRTEEN OF THE PUBLIC HOUSING LAW, AND THE
NEW YORK CITY SCHOOL CONSTRUCTION AUTHORITY, ESTABLISHED UNDER TITLE SIX
OF ARTICLE EIGHT OF THE PUBLIC AUTHORITIES LAW. ALL SUCH  ENTITIES  MUST
LIMIT  ASSIGNMENT  UNDER  CONTRACTS ISSUED PURSUANT TO THIS SECTION TO A
MINORITY PORTION OF ITS ANNUAL CAPITAL BUDGET, IF SUCH BUDGET EXISTS.
  8. IF AN ENTITY DESCRIBED IN SUBDIVISION SEVEN OF THIS SECTION SEEKS A
THIRD PARTY CONSULTANT TO ASSIST, IN ANY MANNER, WITH THE BIDDING AND/OR

S. 5149--D                          3

IMPLEMENTATION OF A JOB ORDER CONTRACT, SUCH THIRD PARTY CONSULTANT MUST
BE SELECTED PURSUANT TO A COMPETITIVE BID PROCESS.
  S  3.  The  general  municipal  law is amended by adding a new section
103-h to read as follows:
  S 103-H. JOB ORDER CONTRACTS. 1. "JOB ORDER CONTRACT", SHALL HAVE  THE
SAME  MEANING AS SET FORTH IN PARAGRAPH M OF SUBDIVISION FIVE OF SECTION
TWO HUNDRED TWENTY OF THE LABOR LAW.
  2. THE JOB ORDER CONTRACT MUST HAVE A DEFINED  SCOPE  OF  WORK,  WHICH
INCLUDES:
  A.  A LIMITATION TO ONE OF THE GEOGRAPHIC REGIONS COMMONLY REFERRED TO
AS THE CAPITAL  DISTRICT,  MOHAWK  VALLEY,  CENTRAL  NEW  YORK,  GENESEE
VALLEY,  WESTERN  NEW YORK, SOUTHERN TIER, NORTH COUNTRY, LONG ISLAND OR
NEW YORK CITY;
  B. A DEFINED TRADE OF EITHER:
  (I) BASIC TRADES, INCLUDING CARPENTERS, LABORERS AND BRICKLAYERS,
  (II) PLUMBING AND GAS FITTING,
  (III) STEAM HEATING, HOT WATER HEATING, VENTILATING AND AIR CONDITION-
ING APPARATUS,
  (IV) ELECTRIC WIRING AND STANDARD ILLUMINATING FIXTURES,
  (V) ROOFING,
  (VI) WELDING,
  (VII) IRONWORK,
  (VIII) CONCRETE FINISHING, OR
  (IX) PAINTING AND PLASTERING; AND
  C. A DETAILED DESCRIPTION OF THE WORK TO BE PERFORMED UNDER  THE  BASE
CONTRACT,  A  LIST  OF  THE  TASKS  NECESSARY TO COMPLETE THE WORK TO BE
PERFORMED UNDER THE BASE CONTRACT AND THE TRADE CLASSIFICATIONS  OF  THE
WORKERS,  MECHANICS  AND  LABORERS  WHO  WILL PERFORM EACH OF THE LISTED
TASKS IN THE BASE CONTRACT.
  3. THE DEFINED SCOPE OF WORK TO BE PERFORMED UNDER THE  BASE  CONTRACT
MUST  NOT BE OVERLY BROAD SO AS TO PREVENT THE CONTRACTOR FROM MAKING AN
INFORMED BID DURING THE COMPETITIVE BID PROCESS. THE CONTRACTING  ENTITY
MUST  LIMIT  THE  WORK  TO BE PERFORMED UNDER THE BASE CONTRACT TO THOSE
PRE-ESTABLISHED TASKS AND PRICES REFERRED TO  IN  THE  GENERAL  CONTRACT
CONDITIONS.
  4. BEFORE SOLICITING BIDS FOR THE BASE CONTRACT, THE CONTRACTING ENTI-
TY  SHALL FILE ALL INFORMATION REQUIRED BY SUBPARAGRAPH (I) OF PARAGRAPH
A OF SUBDIVISION THREE-A OF SECTION TWO HUNDRED TWENTY OF THE LABOR  LAW
WITH THE FISCAL OFFICER. THE CONTRACTING ENTITY MAY NOT SOLICIT BIDS FOR
THE  BASE  CONTRACT  UNTIL ALL REQUIREMENTS OF SUBPARAGRAPH (I) OF PARA-
GRAPH A OF SUBDIVISION THREE-A OF SECTION  TWO  HUNDRED  TWENTY  OF  THE
LABOR LAW HAVE BEEN SATISFIED.
  5.  THE COST OF A JOB ORDER CONTRACT MAY NOT EXCEED FIVE HUNDRED THOU-
SAND DOLLARS. SUCH CONTRACT IS LIMITED TO ONE YEAR AND  MAY  BE  RENEWED
FOR  AN ADDITIONAL TWELVE MONTHS TWICE SO LONG AS THE FIVE HUNDRED THOU-
SAND DOLLAR THRESHOLD HAS NOT  BEEN  REACHED.  IT  IS  IMPERMISSIBLE  TO
SUBDIVIDE  A  CONTRACT  INTO  SEPARATE  CONTRACTS  IN  ORDER TO MEET THE
REQUIREMENTS OF THIS SUBDIVISION.
  6. THE JOB ORDER CONTRACT AND ALL SUBCONTRACTS  ASSOCIATED  WITH  SUCH
JOB  ORDER  CONTRACT  MUST EXPRESSLY STATE THAT ALL WORK PERFORMED UNDER
SUCH CONTRACTS IS PURSUANT TO SECTION TWO HUNDRED TWENTY  OF  THE  LABOR
LAW.
  7.  THESE  REQUIREMENTS  APPLY TO ALL POLITICAL SUBDIVISIONS. ALL SUCH
POLITICAL SUBDIVISIONS MUST LIMIT  ASSIGNMENTS  UNDER  CONTRACTS  ISSUED
PURSUANT  TO  THIS  SECTION  TO A MINORITY PORTION OF ITS ANNUAL CAPITAL
BUDGET, IF SUCH BUDGET EXISTS.

S. 5149--D                          4

  8. IF A POLITICAL  SUBDIVISION  SEEKS  A  THIRD  PARTY  CONSULTANT  TO
ASSIST,  IN  ANY MANNER, WITH THE BIDDING AND/OR IMPLEMENTATION OF A JOB
ORDER CONTRACT, SUCH THIRD PARTY CONSULTANT MUST BE SELECTED PURSUANT TO
A COMPETITIVE BID PROCESS.
  S 4. This act shall take effect immediately and shall apply to all job
order contracts solicited or renewed on or after such effective date.

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