Senate Bill S5109

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

                                  5109

                       2009-2010 Regular Sessions

                            I N  S E N A T E

                             April 27, 2009
                               ___________

Introduced  by  Sen.  SAVINO -- read twice and ordered printed, and when
  printed to be committed 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
HER  INTENTION  TO  BRING AN ACTION, TO THE COMMISSIONER AND NONE OF THE

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD02604-01-9
              

S. 5109                             2

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
FEES OF THE AGENT OR REPRESENTATIVE BUT NOT TO A FINANCIAL  INTEREST  IN
THE DAMAGES AWARDED.

S. 5109                             3

  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.