senate Bill S5149F

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:
A9371C
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

Sponsor Memo

BILL NUMBER:S5149F

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.
Certain requirements will be removed if the public owner requires
inclusion of a project labor agreement to ensure that proper wages
and classifications are utilized under the contract.

Section 3 of the bill adds a new section to the general municipal law
that will specify requirements and limitations on job order
contracts. Certain requirements will be removed if the public owner
requires inclusion of a project labor agreement to ensure that proper
wages and classifications are utilized under the contract.

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 JOC
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 JOC. The bidders are bidding
on a range of tasks that may or 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 wall founded by New York courts that imprecise bid
specifications 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:
Because this legislation would allow for the continuing procurement of
all job order contracting so long as the public owner meets certain
standards in the bidding process, the sponsor does not anticipate a
fiscal impact beyond increased revenue from violations of the
prevailing wage laws that will be easier to ascertain based on the
reporting requirements in this bill.

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--F

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                               May 3, 2011
                               ___________

Introduced  by  Sens. BONACIC, ADDABBO, SAVINO -- 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  --  reported favorably from said committee and committed to
  the Committee  on  Finance  --  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.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD09486-07-2

S. 5149--F                          2

  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.
  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, HUDSON VALLEY, CENTRAL NEW YORK,
FINGER  LAKES,  WESTERN  NEW  YORK,  SOUTHERN  TIER, NORTH COUNTRY, LONG
ISLAND OR NEW YORK CITY;
  B.  IDENTIFICATION OF TRADES RELEVANT FOR THE SPECIFIC SCOPE  OF  WORK
TO BE PERFORMED, INCLUDING BUT NOT LIMITED TO:
  (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.  THE RESTRICTIONS IN THIS SUBDIVISION
SHALL NOT APPLY WHERE THE PUBLIC OWNER REQUIRES A PROJECT  LABOR  AGREE-
MENT CONSISTENT WITH PROVISIONS OF SECTION TWO HUNDRED TWENTY-TWO OF THE
LABOR LAW.
  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

S. 5149--F                          3

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
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, HUDSON VALLEY, CENTRAL NEW YORK,
FINGER LAKES, WESTERN NEW  YORK,  SOUTHERN  TIER,  NORTH  COUNTRY,  LONG
ISLAND OR NEW YORK CITY;
  B.    IDENTIFICATION OF TRADES RELEVANT FOR THE SPECIFIC SCOPE OF WORK
TO BE PERFORMED, INCLUDING BUT NOT LIMITED TO:
  (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

S. 5149--F                          4

SUBDIVIDE  A  CONTRACT  INTO  SEPARATE  CONTRACTS  IN  ORDER TO MEET THE
REQUIREMENTS OF THIS SUBDIVISION.  THE RESTRICTIONS IN THIS  SUBDIVISION
SHALL  NOT  APPLY WHERE THE PUBLIC OWNER REQUIRES A PROJECT LABOR AGREE-
MENT CONSISTENT WITH PROVISIONS OF SECTION TWO HUNDRED TWENTY-TWO OF THE
LABOR LAW.
  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.
  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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