S T A T E   O F   N E W   Y O R K
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                                  2949

                       2013-2014 Regular Sessions

                          I N  A S S E M B L Y

                            January 22, 2013
                               ___________

Introduced  by M. of A. WRIGHT, HOOPER -- Multi-Sponsored by -- M. of A.
  AUBRY, COLTON, COOK, MAGEE, MILLMAN -- read once and referred  to  the
  Committee on Local Governments

AN  ACT to amend the general municipal law and the state finance law, in
  relation to granting preferences to New York  state  domiciliaries  in
  the awarding of contracts for public work

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

  Section 1. Subdivision 1 of section 103 of the general municipal  law,
as  amended by section 1 of chapter 2 of the laws of 2012, 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  thirty-five  thousand  dollars  and  all  purchase  contracts
involving  an expenditure of more than twenty 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 security after advertisement for sealed bids in the manner
provided by this section, provided,  however,  that  purchase  contracts
(including  contracts  for  service  work,  but  excluding  any purchase
contracts necessary for the completion of a public works contract pursu-
ant to article eight of the labor law) may be awarded on  the  basis  of
best  value,  as defined in section one hundred sixty-three of the state
finance law, to a responsive and responsible bidder or  offerer  in  the
manner  provided  by this section except that in a political subdivision
other than a city with a population of one million inhabitants  or  more
or  any  district, board or agency with jurisdiction exclusively therein
the use of best value for  awarding  a  purchase  contract  or  purchase
contracts  must be authorized by local law or, in the case of a district

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD00554-01-3
              

A. 2949                             2

corporation,  school  district  or  board  of  cooperative   educational
services, by rule, regulation or resolution adopted at a public meeting.
In  any case where a responsible bidder's or responsible offerer's gross
price  is  reducible  by  an  allowance for the value of used machinery,
equipment, apparatus or tools to be traded in by  a  political  subdivi-
sion,  the gross price shall be reduced by the amount of such allowance,
for the purpose of determining the  best  value.    NOTWITHSTANDING  THE
FOREGOING,  IN  ANY  CASE  WHERE  A RESPONSIBLE BIDDER WHO IS A NEW YORK
STATE RESIDENT, FIRM OR CORPORATION AND WHO IS FURNISHING  THE  REQUIRED
SECURITY  IS  FOUND  BY  SUCH  OFFICER, BOARD OR AGENCY TO BE WITHIN TWO
PERCENT OF THE BID OF THE LOWEST RESPONSIBLE BIDDER, SUCH OFFICER, BOARD
OR AGENCY MAY PREFER SUCH RESPONSIBLE BIDDER OVER THE LOWEST RESPONSIBLE
BIDDER AND AWARD THE CONTRACT  TO  SUCH  RESPONSIBLE  BIDDER;  PROVIDED,
HOWEVER,  WHERE  MORE  THAN  ONE RESPONSIBLE BIDDER QUALIFIES HEREUNDER,
SUCH OFFICER, BOARD OR AGENCY SHALL AWARD THE CONTRACT TO SUCH QUALIFIED
RESPONSIBLE BIDDER SUBMITTING THE LOWEST 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 her
or its discretion, reject all bids or offers  and  readvertise  for  new
bids  or  offers  in the manner provided by this section. In determining
whether a purchase is an expenditure within the discretionary  threshold
amounts established by this subdivision, the officer, board or agency of
a  political  subdivision  or of any district therein shall consider the
reasonably expected aggregate  amount  of  all  purchases  of  the  same
commodities,  services  or technology to be made within the twelve-month
period commencing on the date of purchase.   Purchases  of  commodities,
services or technology shall not be artificially divided for the purpose
of  satisfying  the  discretionary buying thresholds established by this
subdivision. A change to or a renewal of a discretionary purchase  shall
not  be  permitted  if  the change or renewal would bring the reasonably
expected aggregate amount of all  purchases  of  the  same  commodities,
services  or  technology  from the same provider within the twelve-month
period commencing on the date of the first purchase to an amount greater
than the discretionary buying threshold amount.  For  purposes  of  this
section,  "sealed  bids"  and  "sealed  offers", as that term applies to
purchase contracts, (including contracts for service work, but excluding
any purchase contracts necessary for the completion of  a  public  works
contract  pursuant to article eight of the labor law) shall include bids
and offers submitted in an electronic format including submission of the
statement of non-collusion required by section one  hundred  three-d  of
this  article, provided that the governing board of the political subdi-
vision or district, by resolution, has authorized the  receipt  of  bids
and  offers  in  such  format.  Submission in electronic format may, for
technology contracts only, be  required  as  the  sole  method  for  the
submission of bids and offers. Bids and offers submitted in an electron-
ic  format shall be transmitted by bidders and offerers to the receiving
device designated by the political subdivision or district.  Any  method
used  to  receive  electronic  bids and offers shall comply with article
three of the state technology law, and any rules and regulations promul-
gated and guidelines developed thereunder and, at a  minimum,  must  (a)
document  the  time  and  date of receipt of each bid and offer received
electronically; (b) authenticate the identity of the sender; (c)  ensure
the  security  of the information transmitted; and (d) ensure the confi-
dentiality of the bid or offer until the time and date  established  for
the  opening  of  bids or offers. The timely submission of an electronic

A. 2949                             3

bid  or  offer  in  compliance  with  instructions  provided  for   such
submission in the advertisement for bids or offers and/or the specifica-
tions  shall  be  the responsibility solely of each bidder or offerer or
prospective  bidder  or  offerer.  No  political subdivision or district
therein shall incur any liability from delays of or interruptions in the
receiving device designated for the submission and receipt of electronic
bids and offers.
  S 2. Subdivision 1 of section 103 of the  general  municipal  law,  as
amended  by  section  2  of chapter 2 of the laws of 2012, 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  thirty-five  thousand  dollars  and  all  purchase  contracts
involving  an expenditure of more than twenty 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 security after advertisement for sealed bids in the manner
provided by this section, provided,  however,  that  purchase  contracts
(including  contracts  for  service  work,  but  excluding  any purchase
contracts necessary for the completion of a public works contract pursu-
ant to article eight of the labor law) may be awarded on  the  basis  of
best  value,  as defined in section one hundred sixty-three of the state
finance law, to a responsive and responsible bidder or  offerer  in  the
manner  provided  by this section except that in a political subdivision
other than a city with a population of one million inhabitants  or  more
or  any  district, board or agency with jurisdiction exclusively therein
the use of best value  of  awarding  a  purchase  contract  or  purchase
contracts  must be authorized by local law or, in the case of a district
corporation,  school  district  or  board  of  cooperative   educational
services, by rule, regulation or resolution adopted at a public meeting.
In  determining  whether a purchase is an expenditure within the discre-
tionary threshold amounts established by this subdivision, the  officer,
board  or  agency  of a political subdivision or of any district therein
shall consider the reasonably expected aggregate amount of all purchases
of the same commodities, services or technology to be  made  within  the
twelve-month  period  commencing  on  the date of purchase. Purchases of
commodities, services or technology shall not  be  artificially  divided
for the purpose of satisfying the discretionary buying thresholds estab-
lished  by this subdivision. A change to or a renewal of a discretionary
purchase shall not be permitted if the change or renewal would bring the
reasonably expected aggregate  amount  of  all  purchases  of  the  same
commodities,  services  or  technology from the same provider within the
twelve-month period commencing on the date of the first purchase  to  an
amount  greater  than  the discretionary buying threshold amount. In any
case where a responsible bidder's or responsible offerer's  gross  price
is reducible by an allowance for the value of used machinery, equipment,
apparatus 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 or best value.   NOTWITHSTANDING THE  FOREGO-
ING,  IN  ANY  CASE  WHERE  A RESPONSIBLE BIDDER WHO IS A NEW YORK STATE
RESIDENT, FIRM OR CORPORATION AND WHO IS FURNISHING THE REQUIRED SECURI-
TY IS FOUND BY SUCH OFFICER, BOARD OR AGENCY TO BE WITHIN TWO PERCENT OF
THE BID OF THE LOWEST RESPONSIBLE BIDDER, SUCH OFFICER, BOARD OR  AGENCY
MAY  PREFER  SUCH  RESPONSIBLE BIDDER OVER THE LOWEST RESPONSIBLE BIDDER

A. 2949                             4

AND AWARD THE CONTRACT TO SUCH RESPONSIBLE  BIDDER;  PROVIDED,  HOWEVER,
WHERE  MORE  THAN ONE RESPONSIBLE BIDDER QUALIFIES HEREUNDER, SUCH OFFI-
CER, BOARD OR AGENCY SHALL AWARD THE CONTRACT TO SUCH QUALIFIED  RESPON-
SIBLE  BIDDER  SUBMITTING  THE  LOWEST  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,  her
or  its  discretion,  reject  all bids or offers and readvertise for new
bids or offers in the manner provided by this section.
  S 3.  Section 135 of the state finance law is amended by adding a  new
closing paragraph to read as follows:
  NOTWITHSTANDING  ANY  OTHER  PROVISION  OF  LAW,  WHENEVER  THE LOWEST
RESPONSIBLE BIDDER IS A FOREIGN  OR  OUT-OF-STATE  INDIVIDUAL,  FIRM  OR
CORPORATION  AND  AT  LEAST  ONE NEW YORK STATE RESIDENT, FIRM OR CORPO-
RATION HAS SUBMITTED A RESPONSIBLE BID WHICH IS WITHIN  TWO  PERCENT  OF
THE  LOWEST  RESPONSIBLE  BID, THE CONTRACT MAY BE AWARDED TO THE LOWEST
RESPONSIBLE BIDDER WHO IS A NEW YORK  STATE  RESIDENT,  FIRM  OR  CORPO-
RATION; PROVIDED, HOWEVER, WHERE MORE THAN ONE RESPONSIBLE BIDDER QUALI-
FIES  HEREUNDER,  SUCH OFFICER, BOARD OR AGENCY SHALL AWARD THE CONTRACT
TO SUCH QUALIFIED RESPONSIBLE BIDDER SUBMITTING THE LOWEST BID.
  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,
however, that the amendments to subdivision 1  of  section  103  of  the
general  municipal  law made by section one of this act shall not affect
the expiration and reversion of such subdivision as provided in subdivi-
sion (a) of section 41 of part X of chapter 62 of the laws of  2003,  as
amended,  when  upon such date the provisions of section two of this act
shall take effect.