senate Bill S3564

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

  • 05 / Feb / 2013
    • REFERRED TO LABOR
  • 27 / Feb / 2013
    • REPORTED AND COMMITTED TO FINANCE
  • 11 / Jun / 2013
    • AMEND AND RECOMMIT TO FINANCE
  • 11 / Jun / 2013
    • PRINT NUMBER 3564A
  • 21 / Jun / 2013
    • COMMITTEE DISCHARGED AND COMMITTED TO RULES
  • 21 / Jun / 2013
    • ORDERED TO THIRD READING CAL.1637
  • 21 / Jun / 2013
    • SUBSTITUTED BY A4810A

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

Versions:
S3564
S3564A
Legislative Cycle:
2013-2014
Law Section:
Labor Law
Laws Affected:
Amd §220, Lab L; add §148, St Fin L; add §103-h, Gen Muni L
Versions Introduced in 2011-2012 Legislative Cycle:
A9371, S5149F

Votes

8
0
8
Aye
0
Nay
7
aye with reservations
1
absent
0
excused
0
abstained
show Labor committee vote details

Sponsor Memo

BILL NUMBER:S3564

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: Amends subdivision 5 of section 220 of the Labor Law by
adding a new paragraph m which defines the term "job order contract" and
requires 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: Amends the State Finance Law by adding a new section 148
which specifies requirements and limitations on job order contracts.
Certain requirements will be removed if the public owner requires inclu-
sion of a project labor agreement to ensure that proper wages and clas-
sifications are utilized under the contract.

Section 3: Amends the General Municipal Law by adding a new section
103-h which specifies 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: Effective date.

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 30C 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 contrac-
tor 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 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 AD.
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: S.5149-F of 2012: Passed Senate, Died in
Assembly Codes S.5149-B of 2011: Died on Senate Floor Calendar

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 and apply to all
job order contracts solicited or renewed on or after such effective
date.

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

                                  3564

                       2013-2014 Regular Sessions

                            I N  S E N A T E

                            February 5, 2013
                               ___________

Introduced  by Sens. BONACIC, ADDABBO -- read twice and ordered printed,
  and when printed to be committed to the Committee on Labor

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.
  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;

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD08603-01-3

S. 3564                             2

  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
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. 3564                             3

  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
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

S. 3564                             4

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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