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

                                  3805

                       2009-2010 Regular Sessions

                          I N  A S S E M B L Y

                            January 28, 2009
                               ___________

Introduced  by  M.  of A. BRENNAN, GREENE, REILLY, COLTON -- Multi-Spon-
  sored by -- M. of A.  CAHILL, CLARK, COOK, ENGLEBRIGHT, GALEF,  GLICK,
  GOTTFRIED,  HOOPER,  JOHN,  SWEENEY  --  read once and referred to the
  Committee on Governmental Operations

AN ACT to amend the state  finance  law,  in  relation  to  establishing
  guidelines  for  determining the responsibility of a bidder or subcon-
  tractor

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

  Section  1.  The  state finance law is amended by adding a new section
169 to read as follows:
  S 169. GUIDELINES FOR DETERMINING THE RESPONSIBILITY OF  A  BIDDER  OR
SUBCONTRACTOR.  1.  DEFINITIONS.  A. "CONTRACTING AGENCY" SHALL MEAN ANY
NEW YORK STATE AGENCY, DEPARTMENT, BOARD, BUREAU, COMMISSION,  DIVISION,
OR  ANY  PUBLIC  BENEFIT  CORPORATION  OR PUBLIC AUTHORITY A MAJORITY OF
WHOSE MEMBERS ARE APPOINTED BY THE  GOVERNOR,  PROVIDED,  HOWEVER,  THAT
THIS SECTION SHALL NOT BE DEEMED TO APPLY TO ANY MUNICIPAL GOVERNMENT.
  B.  "CONTRACT"  SHALL  MEAN  ANY  WRITTEN  AGREEMENT ENTERED INTO BY A
CONTRACTING  AGENCY  FOR  THE  PROCUREMENT  OR  DISPOSAL  OF  MATERIALS,
SERVICES  OR CONSTRUCTION, EXCEEDING A DOLLAR VALUE OF NOT LESS THAN TEN
THOUSAND DOLLARS.
  C. "BIDDER," "CONTRACTOR" AND "SUBCONTRACTOR"  SHALL  MEAN  A  PERSON,
PARTNERSHIP,  FIRM,  CORPORATION OR BUSINESS ENTITY SUBMITTING A  BID OR
PROPOSAL FOR, OR  SUBMITTED  FOR  APPROVAL  AS  A  SUBCONTRACTOR  FOR  A
CONTRACT BY ANY OF THE CONTRACTING AGENCIES.
  D.  "AFFILIATE  OF THE BIDDER" SHALL MEAN A PERSON, FIRM, CORPORATION,
PARTNERSHIP OR BUSINESS ENTITY WHICH OWNS, CONTROLS, OR HAS THE  ABILITY
TO  CONTROL  THE  BIDDER  OR  PROPOSED  SUBCONTRACTOR;  OR  IS OWNED BY,
CONTROLLED BY OR IS ABLE TO BE CONTROLLED  BY  THE  BIDDER  OR  PROPOSED
SUBCONTRACTOR;  OR  IS  NOT A BIDDER OR SUBCONTRACTOR BUT WHICH IS OWNED
BY, CONTROLLED BY OR IS ABLE TO BE CONTROLLED BY A PERSON, FIRM,  CORPO-

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD05247-01-9
              

A. 3805                             2

RATION,  PARTNERSHIP,  BUSINESS  ENTITY  OR  PROPRIETORSHIP  WHICH OWNS,
CONTROLS, OR HAS THE ABILITY TO CONTROL THE BIDDER OR  PROPOSED  SUBCON-
TRACTOR.
  2.  IN  DETERMINING  THE  RESPONSIBILITY  OF A BIDDER, CONTRACTOR OR A
SUBCONTRACTOR, ALL CONTRACTING AGENCIES SHALL GIVE DUE CONSIDERATION  TO
ANY  CREDIBLE  EVIDENCE OR RELIABLE INFORMATION THAT THE PAST OR CURRENT
RECORD OF A BIDDER, CONTRACTOR OR PROPOSED SUBCONTRACTOR INCLUDES ANY OF
THE FOLLOWING:
  A. LACK OF ADEQUATE EXPERTISE OR FINANCIAL RESOURCES  TO  PERFORM  THE
WORK OF THE CONTRACT OR SUBCONTRACT IN A TIMELY, COMPETENT, AND ACCEPTA-
BLE  MANNER.  EVIDENCE OF SUCH A LACK OF ABILITY TO PERFORM MAY INCLUDE,
BUT SHALL NOT BE LIMITED TO:  EVIDENCE OF SUSPENSION OR  REVOCATION  FOR
CAUSE  OF  ANY  PROFESSIONAL  LICENSE OF ANY DIRECTOR OR OFFICER, OR ANY
HOLDER OF FIVE PERCENT OR MORE OF THE BIDDER'S OR  PROPOSED  SUBCONTRAC-
TOR'S STOCK OR EQUITY; FAILURE TO SUBMIT SATISFACTORY EVIDENCE OF INSUR-
ANCE,  SURETY  BONDS OR FINANCIAL RESPONSIBILITY; OR A HISTORY OF TERMI-
NATION OF PRIOR CONTRACTS FOR CAUSE. NOTHING IN THIS  SECTION  SHALL  BE
CONSTRUED  TO  SUPERSEDE  ANY OF THE PROVISIONS OF SECTION THREE HUNDRED
THIRTEEN OF THE EXECUTIVE LAW OR SECTION ONE  HUNDRED  THIRTY-NINE-I  OF
THIS CHAPTER.
  B.  CRIMINAL  CONDUCT  IN CONNECTION WITH GOVERNMENT CONTRACTS, OR THE
CONDUCT OF ANY BUSINESS ACTIVITIES INVOLVING:
  (1) A PATTERN OF RACKETEERING, EXTORTION, OBSTRUCTION OF  JUSTICE,  OR
OTHER  COMPARABLE CRIMES AS DEFINED IN THE PENAL LAW OR IN FEDERAL STAT-
UTE; OR
  (2)  ORGANIZED  CRIMINAL  ACTIVITY,  ENTERPRISE  CORRUPTION,  BRIBERY,
FRAUD,  BID-RIGGING, EMBEZZLEMENT, OR OTHER COMPARABLE CRIMES AS DEFINED
IN THE PENAL LAW OR IN FEDERAL STATUTE.
  EVIDENCE OF SUCH CONDUCT MAY INCLUDE A JUDGMENT OF CONVICTION, PENDING
CRIMINAL INDICTMENT OR FORMAL GRANT OF IMMUNITY  IN  CONNECTION  WITH  A
CRIMINAL PROSECUTION OF THE BIDDER OR PROPOSED SUBCONTRACTOR, ANY DIREC-
TOR  OR  OFFICER, OR ANY HOLDER OF FIVE PERCENT OR MORE OF THE SHARES OR
EQUITY OF THE BIDDER OR PROPOSED SUBCONTRACTOR, OR ANY AFFILIATE OF  THE
BIDDER OR THE PROPOSED SUBCONTRACTOR.
  C.  WILLFUL,  REPEATED  SERIOUS VIOLATIONS OF THE FEDERAL OCCUPATIONAL
HEALTH AND SAFETY ACT, AND/OR EVIDENCE OF GRAVE AND  SUBSTANTIAL  DISRE-
GARD FOR EMPLOYEE OR PUBLIC SAFETY.
  D.  DETERMINATION  UNDER  THE  HUMAN  RIGHTS LAW, THE LABOR LAW OR THE
WORKERS' COMPENSATION LAW OF:
  (1) UNLAWFUL DISCRIMINATORY PRACTICE AS DEFINED IN  THE  HUMAN  RIGHTS
LAW;
  (2)  WILLFUL  NONCOMPLIANCE  WITH  THE PREVAILING WAGE AND SUPPLEMENTS
PAYMENT REQUIREMENTS OF THE LABOR LAW;
  (3) ANY OTHER LABOR LAW VIOLATIONS, INCLUDING,  BUT  NOT  LIMITED  TO,
CHILD  LABOR VIOLATIONS, FAILURE TO PAY WAGES, OR UNEMPLOYMENT INSURANCE
TAX DELINQUENCIES;
  (4) ANY VIOLATION OF THE WORKERS' COMPENSATION LAW, INCLUDING, BUT NOT
LIMITED TO, THE FAILURE OF  THE  BIDDER  OR  PROPOSED  SUBCONTRACTOR  TO
PROVIDE PROOF OF WORKERS' COMPENSATION DISABILITY BENEFITS COVERAGE; OR
  (5)  FAILURE TO PROVIDE ADEQUATE LEVELS OF WORKERS' COMPENSATION DISA-
BILITY BENEFITS COVERAGE IN THE PAST FIVE YEARS.
  E. CRIMINAL CONDUCT INVOLVING VIOLATIONS OF THE ENVIRONMENTAL  CONSER-
VATION LAW OR OTHER FEDERAL OR STATE ENVIRONMENTAL STATUTES.
  F.  THE  FAILURE  OF  A BIDDER OR CONTRACTOR TO DEMONSTRATE GOOD FAITH
EFFORTS TO COMPLY WITH APPLICABLE FEDERAL OR STATE  STATUTES  AND  REGU-
LATIONS  REQUIRING  EFFORTS  TO  SOLICIT  AND UTILIZE MINORITY-OWNED AND

A. 3805                             3

WOMEN-OWNED BUSINESS ENTERPRISES AND DISADVANTAGED BUSINESS  ENTERPRISES
AS  POTENTIAL  SUBCONTRACTORS  IN  CONNECTION WITH A PENDING BID FOR THE
PERFORMANCE OF A FEDERALLY AIDED OR STATE  FUNDED  OR  ASSISTED  PROJECT
SUBJECT TO SUCH PROJECT'S STATUTORY AND REGULATORY REQUIREMENTS.
  G.  THE  FAILURE  OF  A  BIDDER TO COMPLY WITH FEDERAL AND STATE EQUAL
OPPORTUNITY REQUIREMENTS.
  H. A RECORD WITHIN THE LAST FIVE YEARS OF FAILURE  TO  PERFORM  OR  OF
UNSATISFACTORY  PERFORMANCE  IN ACCORDANCE WITH THE TERMS OF ONE OR MORE
CONTRACTS; PROVIDED THAT FAILURE TO PERFORM OR  UNSATISFACTORY  PERFORM-
ANCE  CAUSED  BY  ACTS BEYOND THE CONTROL OF THE CONTRACTOR SHALL NOT BE
CONSIDERED.
  I. CONVICTION UNDER STATE OR FEDERAL ANTITRUST STATUTES ARISING OUT OF
THE SUBMISSION OF BIDS OR PROPOSALS.
  J. ANY OTHER GROUNDS OR CIRCUMSTANCES CONCERNING THE PRESENT RESPONSI-
BILITY OF A CONTRACTOR OR SUBCONTRACTOR INCLUDING, BUT NOT  LIMITED  TO,
SUBMISSION TO A CONTRACTING AGENCY OF A FALSE OR MISLEADING STATEMENT ON
A UNIFORM QUESTIONNAIRE, PROPOSAL OR OTHER OFFICIAL SUBMISSION.
  K.  ANY  OTHER  FACTORS CONSIDERED BY THE CONTRACTING AGENCIES TO BEAR
UPON RESPONSIBILITY,  INCLUDING  BUT  NOT  LIMITED  TO,  ANY  MITIGATING
FACTORS  BROUGHT  TO  THE  AGENCY'S  ATTENTION BY THE BIDDER OR PROPOSED
SUBCONTRACTOR.
  3. ANY BIDDER, CONTRACTOR OR SUBCONTRACTOR WHO  HAS  BEEN  DETERMINED,
PURSUANT TO THIS SECTION, NOT TO BE A RESPONSIBLE BIDDER, SHALL BE GIVEN
REASONABLE  NOTICE  BY  THE  CONTRACTING  AGENCY  BY CERTIFIED MAIL WITH
RETURN RECEIPT REQUESTED AND A REASONABLE OPPORTUNITY  TO  BE  HEARD.  A
BIDDER,  CONTRACTOR OR SUBCONTRACTOR DECLARED NOT TO BE RESPONSIBLE MAY,
WITHIN TEN DAYS OF BEING HEARD, APPEAL THE DECISION TO THE HEAD  OF  THE
CONTRACTING AGENCY WHO WILL MAKE A FINAL DETERMINATION WITHIN TEN DAYS.
  S 2. This act shall take effect on the one hundred twentieth day after
it shall have become a law.