senate Bill S2760A

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:
A3059A
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:S2760A

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 Chanter 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
participation 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--A

                       2013-2014 Regular Sessions

                            I N  S E N A T E

                            January 23, 2013
                               ___________

Introduced  by  Sens. RANZENHOFER, DeFRANCISCO -- read twice and ordered
  printed, and when printed to be committed to the  Committee  on  Local
  Government -- committee discharged, bill amended, ordered reprinted as
  amended and recommitted to said committee

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

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD05157-02-3

S. 2760--A                          2

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
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

S. 2760--A                          3

bids  and offers.  A CONTRACTOR 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 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

S. 2760--A                          4

or its discretion, reject all bids or offers  and  readvertise  for  new
bids  or  offers  in  the manner provided by this section.  A CONTRACTOR
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  (I) THE ERECTION, CONSTRUCTION OR ALTERATION OF BUILD-
INGS FOR THE STATE, OR (II) THE CONSTRUCTION, RECONSTRUCTION, REPAIR  OR
IMPROVEMENT TO ROADS, TOLLROADS, HIGHWAYS, RAILWAYS, BRIDGES, TERMINALS,
OR  OTHER  TRANSPORTATION FACILITIES 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 AGREEMENT 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. 2760--A                          5

  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-
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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