S T A T E   O F   N E W   Y O R K
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                                  7372

                       2015-2016 Regular Sessions

                          I N  A S S E M B L Y

                               May 6, 2015
                               ___________

Introduced by M. of A. PICHARDO -- read once and referred to the Commit-
  tee on Local Governments

AN  ACT to amend the general municipal law and the state finance law, in
  relation to ensuring compliance with the competitive bidding law

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

  Section  1.  Short  title. This act shall be known and may be cited as
the "municipal competitive bidding enforcement act".
  S 2. The general municipal law is amended  by  adding  a  new  section
103-h to read as follows:
  S  103-H. ENFORCEMENT OF COMPETITIVE BIDDING LAW. 1.  DEFINITIONS. (A)
"PROCUREMENT ACTION" MEANS ANY TRANSACTION WHICH IS CLAIMED  TO  CONSTI-
TUTE  A  CONTRACT  FOR PUBLIC WORK INVOLVING AN EXPENDITURE OF MORE THAN
TWENTY THOUSAND DOLLARS OR A PURCHASE CONTRACT INVOLVING THE EXPENDITURE
OF MORE THAN TEN THOUSAND DOLLARS WHICH SHOULD BE AWARDED TO THE  LOWEST
RESPONSIBLE  BIDDER,  AS  PROVIDED  BY SECTION ONE HUNDRED THREE OF THIS
ARTICLE.
  (B) "GOOD FAITH BIDDER" MEANS ANY PERSON WHO HAS SUBMITTED  A  BID  IN
RESPONSE TO AN ADVERTISEMENT FOR SEALED BIDS, OR WHO COULD SUBMIT A GOOD
FAITH BID ON A PROCUREMENT ACTION.
  2. COMPTROLLER'S OPINIONS. UPON A COMPLAINT FILED BY A TAXPAYER OF THE
POLITICAL  SUBDIVISION  OR BY A GOOD FAITH BIDDER, THE STATE COMPTROLLER
SHALL ISSUE AN OPINION ON WHETHER A PROPOSED  PROCUREMENT  ACTION  BY  A
POLITICAL SUBDIVISION COMPLIES WITH THE COMPETITIVE BIDDING REQUIREMENTS
OF SECTION ONE HUNDRED THREE OF THIS ARTICLE. THE COMPLAINT SHALL SPECI-
FY THE PROCUREMENT ACTION THAT IS CLAIMED TO VIOLATE SECTION ONE HUNDRED
THREE  OF  THIS ARTICLE. THE TAXPAYER OR GOOD FAITH BIDDER SHALL SERVE A
COPY OF THE COMPLAINT ON THE POLITICAL SUBDIVISION PRIOR TO SERVING  THE
COMPLAINT  ON  THE  COMPTROLLER.  UPON THE FILING OF A PRIMA FACIE VALID
COMPLAINT WITH THE COMPTROLLER, THE COMPTROLLER SHALL NOTIFY  THE  POLI-
TICAL SUBDIVISION. UPON RECEIPT OF SUCH NOTICE FROM THE COMPTROLLER, THE

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD05803-01-5
              

A. 7372                             2

POLITICAL  SUBDIVISION MAY NOT PROCEED WITH THE COMPLAINT OF PROCUREMENT
ACTION FOR A PERIOD OF THIRTY DAYS. IN RENDERING HIS OR HER OPINION, THE
COMPTROLLER MAY CONSULT  WITH THE OFFICE OF GENERAL SERVICES AS  TO  THE
REASONABLENESS  AND  VALIDITY OF ANY BID SPECIFICATIONS. THE COMPTROLLER
SHALL ISSUE A WRITTEN OPINION PURSUANT TO THIS SUBDIVISION WITHIN THIRTY
DAYS OF SUCH NOTICE TO THE  POLITICAL  SUBDIVISION  AND  SHALL  PROMPTLY
SERVE  COPIES  OF  THE  OPINION  ON THE POLITICAL SUBDIVISION AND ON THE
COMPLAINING PARTY.
  3. ATTORNEY GENERAL. IF THE COMPTROLLER'S OPINION IS THAT THE PROCURE-
MENT ACTION WOULD VIOLATE SECTION ONE HUNDRED THREE OF THIS ARTICLE, THE
COMPTROLLER SHALL TRANSMIT A COPY OF THE OPINION TO THE ATTORNEY  GENER-
AL.  NOTWITHSTANDING ANY OTHER PROVISION OF LAW, THE ATTORNEY GENERAL IS
AUTHORIZED TO BRING A SPECIAL PROCEEDING IN THE SUPREME COURT TO HAVE  A
PROCUREMENT ACTION ENJOINED OR DECLARED NULL AND VOID ON THE GROUND THAT
IT IS IN VIOLATION OF SECTION ONE HUNDRED THREE OF THIS ARTICLE.
  4.  DAMAGES  TO  GOOD  FAITH  BIDDER. A GOOD FAITH BIDDER MAY BRING AN
ACTION IN THE SUPREME COURT TO RECOVER DAMAGES AND ATTORNEY'S FEES  FROM
A  POLITICAL  SUBDIVISION,  WHICH  ENGAGES IN A VIOLATION OF SECTION ONE
HUNDRED THREE OF THIS ARTICLE. THE COURT SHALL AWARD DAMAGES AND  ATTOR-
NEY'S FEES IF THE COURT FINDS THAT THE GOOD FAITH BIDDER WOULD HAVE BEEN
THE  LOWEST  RESPONSIBLE  BIDDER,  BUT  FOR  THE POLITICAL SUBDIVISION'S
VIOLATION OF SECTION ONE HUNDRED THREE OF THIS  ARTICLE.  THE  COURT  IS
AUTHORIZED  IN  ANY SUCH ACTION TO DECLARE AN ILLEGALLY AWARDED CONTRACT
TO BE NULL AND VOID.
  (A) IF THE COMPTROLLER HAS ISSUED  AN  OPINION  THAT  THE  PROCUREMENT
ACTION  WOULD BE IN VIOLATION OF SECTION ONE HUNDRED THREE OF THIS ARTI-
CLE AND THE POLITICAL SUBDIVISION  HAS  THEREAFTER  PROCEEDED  WITH  THE
PROCUREMENT ACTION, THE MEASURE OF DAMAGES SHALL BE THREE TIMES THE GOOD
FAITH BIDDER'S LOST PROFITS.
  (B)  IF THE COMPTROLLER HAS NOT ISSUED AN OPINION THAT THE PROCUREMENT
ACTION WOULD BE IN VIOLATION OF SECTION ONE HUNDRED THREE OF THIS  ARTI-
CLE,  THE  MEASURE  OF DAMAGES SHALL BE THE LESSER OF (I) THE GOOD FAITH
BIDDER'S LOST PROFITS AND (II) THE DIFFERENCE BETWEEN THE PRICE  OF  THE
NULLIFIED  CONTRACT  AND  ANY AMOUNT THAT THE COURT AWARDS TO THE PERSON
WHO PERFORMED ON THE NULLIFIED CONTRACT.
  5. CIVIL PENALTY. ANY PERSON  WHO  SHALL  WILFULLY  AND  INTENTIONALLY
VIOLATE  THE  COMPETITIVE  BIDDING  REQUIREMENTS  OF SECTION ONE HUNDRED
THREE OF THIS ARTICLE SHALL BE PERSONALLY LIABLE FOR A CIVIL PENALTY  OF
NOT  MORE THAN ONE THOUSAND DOLLARS. IN A PROCEEDING BROUGHT PURSUANT TO
THIS SECTION, THE COMPTROLLER'S OPINIONS AND AUDITS MAY BE ADMITTED INTO
EVIDENCE ON THE ISSUE OF THE RESPONDENT'S STATE OF MIND,  PROVIDED  THAT
(A)  THE OPINION OR AUDIT WAS ISSUED PRIOR TO THE ALLEGED VIOLATION, (B)
THE OPINION OR AUDIT WAS ISSUED NO MORE THAN  TEN  YEARS  PRIOR  TO  THE
ALLEGED  VIOLATION, AND (C) THE OPINION OR AUDIT CONCERNED THE SAME KIND
OF ITEM OR SAME KIND OF PRACTICE AS THE ALLEGED VIOLATION.
  6. COMPLAINT FEE. WHENEVER THE COMPTROLLER  ACCEPTS  A  COMPLAINT  FOR
FILING  PURSUANT  TO  THIS  SECTION,  THE  COMPTROLLER SHALL REQUIRE AND
COLLECT A FEE OF ONE HUNDRED DOLLARS, WHICH SHALL BE PAID INTO THE STATE
TREASURY AND WHICH SHALL, SO FAR AS IS NECESSARY, BE APPROPRIATED  ANNU-
ALLY  BY  THE  LEGISLATURE TO THE COMPTROLLER TO BE USED IN IMPLEMENTING
THIS ARTICLE.
  S 3. Section 103 of the general municipal law is amended by  adding  a
new subdivision 14 to read as follows:
  14.  EXCEPT AS OTHERWISE EXPRESSLY AUTHORIZED BY THIS ARTICLE, A POLI-
TICAL SUBDIVISION SHALL NOT REQUIRE THAT BIDS CONFORM TO UNDULY RESTRIC-
TIVE SPECIFICATIONS. ALL  SPECIFICATIONS  SHALL  BE  DRAFTED  SO  AS  TO

A. 7372                             3

PROMOTE  OVERALL  ECONOMY  FOR  THE  PURPOSES  INTENDED AND TO ENCOURAGE
COMPETITION IN SATISFYING THE NEEDS  OF  THE  POLITICAL  SUBDIVISION.  A
BRAND  NAME  MAY  BE  USED  AS A SPECIFICATION ONLY IF THE SPECIFICATION
CLEARLY  STATES THAT THE BRAND NAME OR EQUIVALENT IS ACCEPTABLE. WHERE A
BRAND NAME OR EQUIVALENT SPECIFICATION IS USED IN  A  BID  SOLICITATION,
THE  SOLICITATION  SHALL  CONTAIN EXPLANATORY LANGUAGE THAT THE USE OF A
BRAND NAME IS FOR THE PURPOSE OF DESCRIBING  THE  STANDARD  OF  QUALITY,
PERFORMANCE  AND CHARACTERISTICS DESIRED AND IS NOT INTENDED TO LIMIT OR
RESTRICT COMPETITION. IN  ANY  OPINION,  PROCEEDING  OR  ACTION  BROUGHT
PURSUANT  TO SECTION ONE HUNDRED THREE-H OF THIS ARTICLE, A BID SPECIFI-
CATION DEVELOPED AND PROVIDED BY THE OFFICE OF GENERAL SERVICES SHALL BE
DEEMED VALID.
  S 4. Subdivision 2 of section 103 of the  general  municipal  law,  as
amended  by  section 1 of chapter 367 of the laws of 2014, is amended to
read as follows:
  2. Advertisement for bids and offers shall be published in  the  offi-
cial  newspaper  or  newspapers,  if any, or otherwise in a newspaper or
newspapers designated for such purpose  and  may  be  published  in  the
procurement  opportunities  newsletter pursuant to article four-C of the
economic development law. Such advertisement shall contain  a  statement
of  the  time  when  and  place where all bids received pursuant to such
notice will be publicly opened and read and where the  identity  of  all
offerers  will be publicly disclosed, and the designation of the receiv-
ing device if the political subdivision or district has  authorized  the
receipt of bids and offers in an electronic format. Such board or agency
may by resolution designate any officer or employee to open the bids and
offers  at  the  time  and  place specified in the notice. Such designee
shall make a record of such bids and offers in such form and  detail  as
the  board  or  agency  shall prescribe and present the same at the next
regular or special meeting of such board or agency.  All  bids  received
shall be publicly opened and read at the time and place so specified and
the identity of all offerers shall be publicly disclosed at the time and
place so specified. ALL BIDS RECEIVED AND OPENED SHALL BE PUBLIC RECORDS
AND  SHALL BE AVAILABLE FOR PUBLIC INSPECTION AND COPYING. At least five
days shall elapse between the first publication  of  such  advertisement
and  the  date  so  specified  for  the  opening and reading of bids and
offers.
  S 5. Subdivision 2 of section 103 of the  general  municipal  law,  as
amended  by  section 2 of chapter 367 of the laws of 2014, is amended to
read as follows:
  2. Advertisement for bids and offers shall be published in  the  offi-
cial  newspaper  or  newspapers,  if any, or otherwise in a newspaper or
newspapers designated for such purpose  and  may  be  published  in  the
procurement  opportunities  newsletter pursuant to article four-C of the
economic development law. Such advertisement shall contain  a  statement
of  the  time  when  and  place where all bids received pursuant to such
notice will be publicly opened and read and where the  identity  of  all
offerers  will be publicly disclosed. Such board or agency may by resol-
ution designate any officer or employee to open the bids and  offers  at
the  time  and place specified in the notice. Such designee shall make a
record of such bids and offers in such form and detail as the  board  or
agency  shall  prescribe  and  present  the  same at the next regular or
special meeting of such board or agency.  All  bids  received  shall  be
publicly  opened  and  read  at  the time and place so specified and the
identity of all offerers shall be publicly disclosed  at  the  time  and
place so specified. ALL BIDS RECEIVED AND OPENED SHALL BE PUBLIC RECORDS

A. 7372                             4

AND  SHALL BE AVAILABLE FOR PUBLIC INSPECTION AND COPYING. At least five
days shall elapse between the first publication  of  such  advertisement
and  the  date  so  specified  for  the  opening and reading of bids and
offers.
  S 6. Subparagraph 1 of paragraph (b) of subdivision 4 of section 35 of
the  general  municipal  law,  as  amended by chapter 692 of the laws of
1989, is amended to read as follows:
  (1) Not later than ninety days after  presentation  to  the  governing
board  of  a  report of examination performed by the office of the state
comptroller, or receipt by the governing  board  of  any  report  of  an
external  audit  performed  by  an  independent public accountant or any
management letter in conjunction with such an audit, the governing board
may, in its discretion, provide to the  comptroller,  and  file  in  the
office  of the clerk, or with the secretary if there is no clerk, of the
municipal corporation, industrial development agency,  district,  agency
or  activity, a written response to the findings and recommendations, if
any, in the report or letter. PROVIDED, HOWEVER, THAT IF SUCH REPORT  OR
LETTER  CONTAINS  A FINDING THAT THE COMPETITIVE BIDDING REQUIREMENTS OF
SECTION ONE HUNDRED THREE OF THIS CHAPTER WERE VIOLATED,  THE  GOVERNING
BOARD  MUST  FILE  A  WRITTEN  RESPONSE. In the case of municipal corpo-
rations, industrial development agency, districts,  agencies  or  activ-
ities subject to examination by the commissioner of education, any writ-
ten response shall also be provided to such commissioner.
  S 7. The state finance law is amended by adding a new section 164-a to
read as follows:
  S  164-A. PROVIDING BID SPECIFICATIONS TO POLITICAL SUBDIVISIONS.  THE
COMMISSIONER OF GENERAL SERVICES SHALL PROVIDE TO ANY POLITICAL SUBDIVI-
SION, AT NO CHARGE, ANY SPECIFICATION THAT THE COMMISSIONER  HAS  DEVEL-
OPED FOR ITEMS TO BE LET FOR BIDS IN PURCHASE CONTRACTS. THE COMMISSION-
ER MAY DEVELOP ADDITIONAL SPECIFICATIONS AT THE REQUEST OF ANY POLITICAL
SUBDIVISION  AND MAY PROVIDE SUCH SPECIFICATIONS TO THE POLITICAL SUBDI-
VISION AND MAY CHARGE THE POLITICAL SUBDIVISION FOR THE COST OF DEVELOP-
ING SUCH SPECIFICATIONS.
  S 8. If any clause, sentence, paragraph, section or part of  this  act
shall  be adjudged by any court of competent jurisdiction to be invalid,
such judgment shall not affect, impair or invalidate the remainder ther-
eof, but shall be confined in its operation  to  the  clause,  sentence,
paragraph,  section or part thereof directly involved in the controversy
in which such judgment shall have been rendered.
  S 9. This act shall take effect on the first of January next  succeed-
ing the date on which it shall have become a law; provided, however, the
amendments  to subdivision 2 of section 103 of the general municipal law
made by section four of this act shall not  affect  the  expiration  and
reversion  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 five of this act shall take effect.