senate Bill S3564A

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

See Assembly Version of this Bill:
A4810A
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, A9371, A9371C, S5149F

Sponsor Memo

BILL NUMBER:S3564A

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
inclusion of a project labor agreement to ensure that proper wages and
classifications are utilized under the contract. Clarifies that the
regulation of Job Order contracting does not apply to Superstorm Sandy
or other State disaster clean up projects.

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. Clarifies
that the regulation of Job Order contracting does not apply to
Superstorm Sandy or other State disaster clean up projects.

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 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:

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--A

                       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 -- 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

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,

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD08603-03-3

S. 3564--A                          2

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
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

S. 3564--A                          3

IMPLEMENTATION OF A JOB ORDER CONTRACT, SUCH THIRD PARTY CONSULTANT MUST
BE SELECTED PURSUANT TO A COMPETITIVE BID PROCESS.
  9.  THIS  SECTION  SHALL  NOT  APPLY NOR RESTRICT THE USE OF JOB ORDER
CONTRACTS:
  A. IN  ANY  RECONSTRUCTION,  REPAIR,  REHABILITATION,  OR  MAINTENANCE
EFFORTS  ASSOCIATED  WITH  DAMAGES  FROM  THE TWO THOUSAND TWELVE STORM,
COMMONLY KNOWN AS HURRICANE SANDY, OR
  B. DURING ANY "STATE DISASTER EMERGENCY" THE  RECONSTRUCTION,  REPAIR,
REHABILITATION,  OR  MAINTENANCE EFFORTS RESULTING FROM A NATURAL OR MAN
MADE "DISASTER" AS SUCH TERMS  ARE  DEFINED  UNDER  SUBDIVISION  TWO  OF
SECTION TWENTY OF THE EXECUTIVE LAW.
  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. 3564--A                          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.
  9.  THIS  SECTION  SHALL  NOT  APPLY NOR RESTRICT THE USE OF JOB ORDER
CONTRACTS:
  A. IN  ANY  RECONSTRUCTION,  REPAIR,  REHABILITATION,  OR  MAINTENANCE
EFFORTS  ASSOCIATED  WITH  DAMAGES  FROM  THE TWO THOUSAND TWELVE STORM,
COMMONLY KNOWN AS HURRICANE SANDY, OR
  B. DURING ANY "STATE DISASTER EMERGENCY" THE  RECONSTRUCTION,  REPAIR,
REHABILITATION,  OR MAINTENANCE EFFORTS RESULTING FROM A NATURAL OR MAN-
MADE "DISASTER" AS SUCH TERMS  ARE  DEFINED  UNDER  SUBDIVISION  TWO  OF
SECTION TWENTY OF THE EXECUTIVE LAW.
  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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