S T A T E O F N E W Y O R K
________________________________________________________________________
392
2009-2010 Regular Sessions
I N A S S E M B L Y
(PREFILED)
January 7, 2009
___________
Introduced by M. of A. JOHN, HOOPER, SCHROEDER -- Multi-Sponsored by --
M. of A. WEINSTEIN -- read once and referred to the Committee on Labor
AN ACT to amend the labor law, in relation to an action for damages
against a contractor for failure to pay prevailing wages or taxes,
contributions, assessments or benefits
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. The labor law is amended by adding a new section 220-i to
read as follows:
S 220-I. ACTION FOR DAMAGES AGAINST CONTRACTOR FOR FAILURE TO PAY
PREVAILING WAGES OR TAXES, CONTRIBUTIONS, ASSESSMENTS OR BENEFITS. 1.
ANY PERSON WHO SUBMITS A BID DIRECTLY TO A PUBLIC BODY FOR A CONTRACT
FOR ANY PUBLIC WORK SUBJECT TO THE PROVISIONS OF THIS ARTICLE AND IS NOT
AWARDED THE CONTRACT AND WHOSE BID IS THE LOWEST BID OTHER THAN THE BID
ACCEPTED BY THE PUBLIC BODY OR, IF, PURSUANT TO LAW, THE CONTRACT IS
AWARDED ON THE BASIS OF FACTORS OTHER THAN OR IN ADDITION TO THE LOWEST
BID, WHOSE BID IS THE HIGHEST IN RANK OTHER THAN THE BID ACCEPTED BY THE
PUBLIC BODY, HEREINAFTER SHALL BE REFERRED TO IN THIS SECTION AS THE
PLAINTIFF, MAY BRING AN ACTION FOR DAMAGES IN A COURT OF COMPETENT
JURISDICTION AGAINST THE CONTRACTOR WHO WAS DIRECTLY AWARDED THE
CONTRACT BY THE PUBLIC BODY OR ANY SUBCONTRACTOR OF THAT CONTRACTOR,
HEREINAFTER SHALL BE REFERRED TO IN THIS SECTION AS THE DEFENDANT,
ALLEGING THAT THE DEFENDANT HAS, IN CONNECTION WITH WORK PERFORMED
PURSUANT TO THE CONTRACT, VIOLATED THE PROVISIONS OF THIS ARTICLE OR
FAILED TO PAY ANY CONTRIBUTION, TAX, ASSESSMENT OR BENEFIT REQUIRED BY
ANY OTHER APPLICABLE LAW. IF THERE IS MORE THAN ONE LOSING BIDDER, A
BIDDER WITH A HIGHER BID THAN THE SECOND LOWEST BIDDER OR LOWER RANK
THAN THE SECOND HIGHEST RANK, IF, PURSUANT TO LAW, THE CONTRACT IS
AWARDED ON THE BASIS OF FACTORS OTHER THAN OR IN ADDITION TO THE LOWEST
BID, MAY BRING AN ACTION IF THAT BIDDER GIVES WRITTEN NOTICE OF HIS OR
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD02604-01-9
A. 392 2
HER INTENTION TO BRING AN ACTION, TO THE COMMISSIONER AND NONE OF THE
OTHER BIDDERS FILES AN ACTION WITHIN THIRTY DAYS FOLLOWING THE DATE OF
RECEIPT OF WRITTEN NOTICE TO THE DEPARTMENT. THE WRITTEN NOTICE OF
INTENTION TO BRING AN ACTION MUST CONTAIN THE FOLLOWING: A. A STATEMENT
OF THE SPECIFIC VIOLATIONS OR FAILURES TO PAY ALLEGEDLY COMMITTED, WHICH
SHALL NOT PRECLUDE, IN THE COURSE OF THE ACTION, CONSIDERATION OF OTHER
VIOLATIONS OR FAILURES TO PAY AS MAY BE REVEALED IN THE COURSE OF
DISCOVERY,
B. A STATEMENT THAT THE ACTION IS TO BE FILED PURSUANT TO THIS
SECTION, AND
C. A STATEMENT THAT THE OTHER BIDDERS MAY HAVE THE RIGHT TO FILE AN
ACTION AND WILL BE PRECLUDED FROM DOING SO IF THEY DO NOT FILE AN ACTION
WITHIN THIRTY DAYS OF THE WRITTEN NOTICE TO THE DEPARTMENT. IF NO OTHER
LOSING BIDDER SO FILES AN ACTION WITHIN THIRTY DAYS OF THE WRITTEN
NOTICE TO THE DEPARTMENT, THE LOSING BIDDER WHO SENT THE WRITTEN NOTICE
SHALL FILE AN ACTION PURSUANT TO THIS SECTION WITHIN FIFTEEN DAYS OF THE
LAST DAY ANY LOSING BIDDER COULD HAVE SENT WRITTEN NOTICE TO THE DEPART-
MENT OF AN INTENTION TO FILE AN ACTION. IF MORE THAN ONE BIDDER FILES AN
ACTION, ALL ACTIONS OTHER THAN THAT FILED BY THE BIDDER WHOSE BID IS THE
LOWEST OF THE BIDDERS WHO FILED ACTIONS, OR, IF, PURSUANT TO LAW, THE
CONTRACT IS AWARDED ON THE BASIS OF FACTORS OTHER THAN OR IN ADDITION TO
THE LOWEST BID, WHOSE BID IS THE HIGHEST IN RANK OF THE BIDDERS WHO
FILED ACTIONS, SHALL BE DISMISSED.
2. UPON A FINDING BY THE COURT THAT THE PLAINTIFF WAS A RESPONSIBLE
BIDDER FOR THE CONTRACT AND A FINDING THAT ONE OR MORE DEFENDANTS
VIOLATED THE PROVISIONS OF THIS ARTICLE OR FAILED TO PAY ANY CONTRIB-
UTION, TAX, ASSESSMENT OR BENEFIT REQUIRED BY ANY OTHER APPLICABLE LAW
IN CONNECTION WITH WORK PERFORMED PURSUANT TO THE CONTRACT, AND THAT THE
PLAINTIFF SUBMITTED A BID FOR THE CONTRACT WHICH WAS LESS THAN THE SUM
TOTAL OF THE BID ACCEPTED BY THE PUBLIC BODY PLUS ANY ADDITIONAL AMOUNT
THAT THE DEFENDANT OR DEFENDANTS WOULD HAVE PAID DURING THE TERM OF THE
CONTRACT TO BE IN FULL COMPLIANCE WITH THIS ARTICLE AND OTHER APPLICABLE
LAWS IN CONNECTION WITH THE CONTRACT, THE COURT SHALL ORDER THE DEFEND-
ANT OR DEFENDANTS TO PAY TO THE PLAINTIFF THE ENTIRE AMOUNT OF DAMAGES
SUSTAINED PLUS COSTS AND REASONABLE ATTORNEY'S FEES OR, IF THE COURT
FINDS THE NONCOMPLIANCE TO BE INTENTIONAL, THREE TIMES THE AMOUNT OF
DAMAGES SUSTAINED PLUS COSTS AND REASONABLE ATTORNEY'S FEES, EXCEPT THAT
THE COURT SHALL ORDER NO PAYMENT TO THE PLAINTIFF IF THE COURT FINDS
THAT THE VIOLATION OR FAILURE TO PAY WAS CAUSED BY MINOR RECORD KEEPING
MISTAKES OR MINOR COMPUTATIONAL ERRORS OR BY OTHER MINOR MISTAKES. THE
OCCURRENCE OF MORE THAN TWO VIOLATIONS OR FAILURES TO PAY SHALL LEAD TO
THE REBUTTABLE PRESUMPTION THAT THE VIOLATION OR FAILURE TO PAY AT ISSUE
IS NOT MINOR. IF THERE ARE TWO OR MORE DEFENDANTS, THE COURT SHALL ALLO-
CATE THE PAYMENTS FOR DAMAGES SUSTAINED AND ATTORNEY'S FEES AMONG THE
DEFENDANTS IN A REASONABLE MANNER. NOTHING IN THIS SECTION SHALL BE
CONSTRUED AS REQUIRING PAYMENTS TO A PLAINTIFF BY ANY CONTRACTOR OR
SUBCONTRACTOR WHO HAS NOT VIOLATED THE PROVISIONS OF THIS ARTICLE OR
FAILED TO PAY ANY CONTRIBUTION, TAX, ASSESSMENT OR BENEFIT REQUIRED BY
ANY OTHER APPLICABLE LAW IN CONNECTION WITH WORK PERFORMED PURSUANT TO
THE CONTRACT. A PLAINTIFF MAY DESIGNATE AN AGENT OR REPRESENTATIVE TO
MAINTAIN THE ACTION IF THE VIOLATION OR FAILURE TO PAY HAS AN ADVERSE
EFFECT ON THE AGENT OR REPRESENTATIVE OR, IF THE AGENT OR REPRESENTATIVE
IS AN ORGANIZATION OR ASSOCIATION, OR ANY MEMBER OF THE ORGANIZATION OR
ASSOCIATION. IF THE PLAINTIFF PREVAILS, THE AGENT OR REPRESENTATIVE
SHALL BE ENTITLED TO REIMBURSEMENT FOR COSTS AND REASONABLE ATTORNEY'S
A. 392 3
FEES OF THE AGENT OR REPRESENTATIVE BUT NOT TO A FINANCIAL INTEREST IN
THE DAMAGES AWARDED.
3. FOR THE PURPOSES OF THIS SECTION, THE DAMAGES SUSTAINED BY A PLAIN-
TIFF SHALL INCLUDE THE PLAINTIFF'S COSTS OF PREPARING AND SUBMITTING THE
BID AND MAY, IF SOUGHT BY THE PLAINTIFF, INCLUDE PROFITS THAT THE COURT
DETERMINES THE PLAINTIFF WOULD HAVE MADE IF THE PLAINTIFF HAD BEEN
AWARDED THE CONTRACT AND COMPLIED WITH THIS ARTICLE AND OTHER APPLICABLE
LAWS.
4. IF THE COURT DETERMINES THAT THE DEFENDANT DID NOT, IN CONNECTION
WITH WORK PERFORMED PURSUANT TO THE CONTRACT, VIOLATE THE PROVISIONS OF
THIS ARTICLE OR FAIL TO PAY ANY CONTRIBUTION, TAX, ASSESSMENT OR BENEFIT
REQUIRED BY OTHER APPLICABLE LAW, THE COURT SHALL ORDER THE PLAINTIFF TO
PAY THE COSTS AND REASONABLE ATTORNEY'S FEES OF THE DEFENDANT.
5. AS USED IN THIS SECTION:
A. "PERSON" MEANS ANY INDIVIDUAL, CORPORATION, COMPANY, PARTNERSHIP,
FIRM, ASSOCIATION OR BUSINESS;
B. "CONTRACTOR" MEANS A PERSON WHO IS DIRECTLY AWARDED A CONTRACT FOR
A PUBLIC WORK BY A PUBLIC BODY; AND
C. "SUBCONTRACTOR" MEANS ANY SUBCONTRACTOR OR LOWER TIER SUBCONTRACTOR
OF A CONTRACTOR.
S 2. This act shall take effect immediately.