senate Bill S2760

Amended

Establishes the "Public Construction Savings Act"

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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

  • 23 / Jan / 2013
    • REFERRED TO LOCAL GOVERNMENT
  • 19 / Mar / 2013
    • AMEND AND RECOMMIT TO LOCAL GOVERNMENT
  • 19 / Mar / 2013
    • PRINT NUMBER 2760A
  • 08 / Jan / 2014
    • REFERRED TO LOCAL GOVERNMENT

Summary

Establishes the "Public Construction Savings Act"; establishes situations where a project labor agreement is unnecessary to receive an award of a contract where they are the lowest bid.

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Bill Details

See Assembly Version of this Bill:
A3059
Versions:
S2760
S2760A
Legislative Cycle:
2013-2014
Current Committee:
Senate Local Government
Law Section:
General Municipal Law
Laws Affected:
Amd §103, Gen Muni L; add §148, St Fin L; amd §222, Lab L
Versions Introduced in 2011-2012 Legislative Cycle:
S4121, A7855

Sponsor Memo

BILL NUMBER:S2760

TITLE OF BILL: An act to amend the general municipal law, the state
finance law, and the labor law, in relation to project labor agreements
for public work projects

PURPOSE OF THE BILL: To increase the options of public entities seeking
contracts for public improvements.

SUMMARY OF SPECIFIC PROVISIONS:

Section 1 - would establish the "Public Construction Savings Act".

Sections 2 and 3 - would amend subdivision 1 of section 103 of the
General Municipal Law, (including subdivision 1 that is effective until
June 1, 2013 and the subdivision that becomes effective June 1,2013) to
provide that when a municipality enters into a project labor agreement,
participation in the agreement is optional for bidders, who can choose
to bid either with or without participation in the agreement, and the
municipality shall pick the lowest bid consistent with other laws and
regulations.

Section 4 - amends the State Finance Law to add a new section 148 which
provides that a contractor bidding on a request for proposal issued by
an officer, board, department, commission or commissions for the
erection, construction or alteration of buildings where such request
contains the option for participation in a project labor agreement, may
submit a bid that does not include such participation and the bid shall
be awarded to the contractor with the low bid consistent with other
laws, regardless of whether participation was included in the bid.

Section 5 - amends paragraph (a) of subdivision 2 of section 222 of the
Labor Law to provide that participation in a project labor agreement may
not be required, but may be optional at the choice of the public entity
seeking bids for a project, that as part of the bid, contractors shall
be notified of the existence of a project labor agreement and their
option to participate in such agreement, and that whether a bid includes
participation in the agreement or not, the contract will be awarded to
the low bid.

Section 6 - provides that this act shall take effect 60 days after it
shall have become a law, and shall control all contracts advertised or
solicited for bid on or after the effective date of the act under
provisions of any law requiring contracts to be let pursuant to
provisions of law amended by this act, provided that 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 subdivision (a)-of section 41 of the X
of Chapter 62 of the laws of 2003, as amended, when upon such date the
provisions of section three of this act shall take effect.

EXISTING LAW:

Section 222 of the Labor Law authorizes a public entity to require a PLA
where it determines to do so in accordance with specified statutory
criteria. The law provides that where a PLA is required, the public
works project will not be subject to the separate bidding requirements
pursuant to the Wicks Law, but instead will be subject to the
restrictions of the PLA, the contractor providing a labor and material
bond and a performance bond, and contractor and subcontractor partic-
ipation in apprentice training programs for the trades they employ.

JUSTIFICATION: Current law acts to discourage true arms-length bidding
to obtain the best possible prices on public contracts. Assumptions are
made that bids will be lower with or without inclusion of project labor
agreements without allowing bidding to actually determine what is the
best and most cost effective choice for projects. Jobs bid without
participation in the PLA would, of course, be required to comply with
any laws, such as the Wicks Law, that would be waived with participation
in the PLA. This legislation would allow a bidder to submit a responsive
bid with or without a PLA and would require the public owner to award
the job to the lowest bidder, regardless of whether such bidder has
included a PLA in their proposal. In this way, taxpayers are assured
that they are receiving the lowest price for needed public construction.

FISCAL IMPLICATIONS: This bill will result in millions of dollars of
cost-savings to the state, school districts and municipalities.

PRIOR LEGISLATIVE HISTORY: 2011-12: S-4121/A.7855 -- LOCAL GOV/local
gov

EFFECTIVE DATE: This act shall take effect 60 days after it shall have
become a law, and shall control all contracts advertised or solicited
for bid on or after the effective date of the act under provisions of
any law requiring contracts to be let pursuant to provisions of law
amended by this act, provided that 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 subdivision (a) of section 41 of the X of Chapter 62 of the
laws of 2003, as amended, when upon such date.the provisions of section
three of this act shall take effect.

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

                                  2760

                       2013-2014 Regular Sessions

                            I N  S E N A T E

                            January 23, 2013
                               ___________

Introduced  by  Sen.  RANZENHOFER -- read twice and ordered printed, and
  when printed to be committed to the Committee on Local Government

AN ACT to amend the general municipal law, the state  finance  law,  and
  the labor law, in relation to project labor agreements for public work
  projects

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

  Section 1. This act shall be known and may be  cited  as  the  "public
construction savings act".
  S  2.  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

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD05157-01-3

S. 2760                             2

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  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.  In cases where two or
more responsible bidders furnishing the required security submit identi-
cal 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 deter-
mining  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 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. 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  includ-
ing 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 subdivision 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 meth-
od  for  the submission of bids and offers. Bids and offers submitted in
an electronic 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
promulgated 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
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.  A CONTRACTOR BIDDING ON A REQUEST FOR PROPOSAL  ISSUED
BY  THE  APPROPRIATE OFFICER, BOARD OR AGENCY OF A POLITICAL SUBDIVISION

S. 2760                             3

OR OF ANY DISTRICT THEREIN, INCLUDING BUT NOT LIMITED TO A SOIL  CONSER-
VATION  DISTRICT,  OFFERING AN OPTIONAL PROJECT LABOR AGREEMENT PURSUANT
TO PARAGRAPH (A) OF SUBDIVISION TWO OF SECTION TWO HUNDRED TWENTY-TWO OF
THE  LABOR  LAW,  MAY SUBMIT A BID THAT DOES NOT INCLUDE A PROJECT LABOR
AGREEMENT, AND SUCH CONTRACT FOR PUBLIC WORK SHALL  BE  AWARDED  TO  THE
CONTRACTOR WITH THE LOW BID REGARDLESS OF WHETHER A PROJECT LABOR AGREE-
MENT WAS INCLUDED IN A CONTRACTOR'S BID PROPOSAL.
  S  3.  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. 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.    A  CONTRACTOR

S. 2760                             4

BIDDING  ON  A  REQUEST  FOR PROPOSAL ISSUED 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, OFFERING AN
OPTIONAL  PROJECT  LABOR AGREEMENT PURSUANT TO PARAGRAPH (A) OF SUBDIVI-
SION TWO OF SECTION TWO HUNDRED TWENTY-TWO OF THE LABOR LAW,  MAY SUBMIT
A BID THAT DOES NOT INCLUDE A PROJECT LABOR AGREEMENT, AND SUCH CONTRACT
FOR PUBLIC WORK SHALL BE AWARDED TO THE  CONTRACTOR  WITH  THE  LOW  BID
REGARDLESS  OF  WHETHER  A  PROJECT  LABOR  AGREEMENT  WAS INCLUDED IN A
CONTRACTOR'S BID PROPOSAL.
  S 4. The state finance law is amended by adding a new section  148  to
read as follows:
  S  148.  PROJECT LABOR AGREEMENTS.   A CONTRACTOR BIDDING ON A REQUEST
FOR PROPOSAL ISSUED BY AN  OFFICER,  BOARD,  DEPARTMENT,  COMMISSION  OR
COMMISSIONS  FOR  THE  ERECTION, CONSTRUCTION OR ALTERATION OF BUILDINGS
FOR THE STATE, OFFERING AN OPTIONAL PROJECT LABOR AGREEMENT PURSUANT  TO
PARAGRAPH  (A)  OF  SUBDIVISION TWO OF SECTION TWO HUNDRED TWENTY-TWO OF
THE LABOR LAW, MAY SUBMIT A BID THAT DOES NOT INCLUDE  A  PROJECT  LABOR
AGREEMENT  AND  SUCH  CONTRACT  FOR  PUBLIC WORK SHALL BE AWARDED TO THE
CONTRACTOR WITH THE LOW BID REGARDLESS OF WHETHER A PROJECT LABOR AGREE-
MENT WAS INCLUDED IN A CONTRACTOR'S BID PROPOSAL.
  S 5. Paragraph (a) of subdivision 2 of section 222 of the  labor  law,
as  added by section 18 of part MM of chapter 57 of the laws of 2008, is
amended to read as follows:
  (a) Any agency, board, department, commission or officer of the  state
of  New  York,  or  of  any  political subdivision thereof as defined in
section one hundred of the general municipal law, municipal  corporation
as  defined in section sixty-six of the general construction law, public
benefit corporation, or local or state authority as defined  in  section
two  of  the  public authorities law having jurisdiction over the public
work may NOT  require[a  contractor  awarded  a  contract,  subcontract,
lease,  grant,  bond, covenant or other agreement for a project to enter
into], BUT MAY OFFER AS AN OPTION,  PARTICIPATION  IN  a  project  labor
agreement  [during and for the work involved with such project when such
requirement is], AND SHALL NOTIFY  EACH  CONTRACTOR  OF  THE  OPTION  TO
INCLUDE  OR  NOT INCLUDE PARTICIPATION IN A PROJECT LABOR AGREEMENT WITH
ITS BID, AS part of the agency, board, department, commission or officer
of the state of New York, political subdivision, municipal  corporation,
public  benefit corporation or local or state authority having jurisdic-
tion over the public work request for proposals for the project and when
the agency, board, department, commission or officer of the state of New
York,  political  subdivision,  municipal  corporation,  public  benefit
corporation  or  local  or  state authority having jurisdiction over the
public work determines that its interest in obtaining the best  work  at
the  lowest possible price, preventing favoritism, fraud and corruption,
and other considerations such as the impact of delay, the possibility of
cost savings advantages, and any local history of labor unrest, are best
met by requiring a project labor agreement,   BUT  SHALL  IN  ANY  EVENT
AWARD  THE  SUBCONTRACT, LEASE, CONTRACT, GRANT, BOND, COVENANT OR OTHER
AGREEMENT FOR A PROJECT TO THE CONTRACTOR WITH THE LOW BID REGARDLESS OF
WHETHER A PROJECT LABOR AGREEMENT WAS INCLUDED IN THE  CONTRACTOR'S  BID
PROPOSAL.
  S  6.  This  act  shall take effect on the sixtieth day after it shall
have become a law, and shall control all contracts advertised or  solic-
ited  for  bid  on  or  after  the  effective date of this act under the
provisions of  any  law  requiring  contracts  to  be  let  pursuant  to
provisions of law amended by this act; provided, however that the amend-

S. 2760                             5

ments  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 rever-
sion of such subdivision pursuant to subdivision (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 three of this act shall take effect.

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