Senate Bill S5411

2009-2010 Legislative Session

Requires public contracts to include a clause authorizing contractors to recover damages for delay for itself as well as on behalf of subcontractors or materialmen

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Archive: Last Bill Status - In Senate Committee Finance Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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Date of Action	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jan 06, 2010	referred to finance
Jun 11, 2009	print number 5411a
Jun 11, 2009	amend and recommit to finance
Apr 30, 2009	referred to finance

Bill Amendments

Original

A (Active)

2009-S5411 - Details

Current Committee:: Senate Finance
Laws Affected:: Add §138-b, St Fin L

2009-S5411 - Summary

Requires public contracts to include clauses authorizing contractors to recover damages for delay which are caused by acts or omissions by the public owner, as otherwise permitted by law, and requires the contractor, when submitting a claim, to certify that the supporting data is accurate to the best of his or her knowledge and the amount of the claim he or she believes to be the public owner's liability.

2009-S5411 - Sponsor Memo

2009-S5411 - Bill Text download pdf

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

                                  5411

                       2009-2010 Regular Sessions

                            I N  S E N A T E

                             April 30, 2009
                               ___________

Introduced  by  Sen.  KLEIN  -- read twice and ordered printed, and when
  printed to be committed to the Committee on Finance

AN ACT to amend the state finance law, in relation to damages for  delay
  clauses in public contracts

  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
138-b to read as follows:
  S  138-B.  DAMAGES  FOR  DELAY IN PUBLIC CONTRACTS.  1.  ALL CONTRACTS
MADE AND AWARDED BY THE STATE,  ANY  STATE  AGENCY,  PUBLIC  DEPARTMENT,
MUNICIPAL  CORPORATION,  PUBLIC  AUTHORITY,  PUBLIC BENEFIT CORPORATION,
SCHOOL DISTRICT OR A COMMISSION APPOINTED PURSUANT TO  LAW  (HEREINAFTER
REFERRED   TO   IN  THIS  SECTION  AS  A  "PUBLIC  OWNER")  FOR  DESIGN,
CONSTRUCTION, RECONSTRUCTION, DEMOLITION, ALTERATION, REPAIR OR IMPROVE-
MENT OF ANY PUBLIC WORKS SHALL CONTAIN A CLAUSE WHICH ALLOWS A  CONTRAC-
TOR TO MAKE CLAIM FOR ALL ADDITIONAL COSTS FROM THE CAUSES LISTED BELOW,
ATTRIBUTABLE TO DELAY IN THE PERFORMANCE OF THIS CONTRACT, OCCASIONED BY
ANY  ACT  OR OMISSION TO ACT BY THE PUBLIC OWNER OR ANY OF ITS REPRESEN-
TATIVES.
  (A) THE FAILURE OF THE PUBLIC OWNER TO  TAKE  REASONABLE  MEASURES  TO
COORDINATE AND PROGRESS THE PROJECT WORK.
  (B)  EXTENDED DELAYS ATTRIBUTABLE TO THE PUBLIC OWNER IN THE REVIEW OR
ISSUANCE OF CHANGE ORDERS OR FIELD ORDERS, IN SHOP  DRAWING  REVIEWS  OR
APPROVALS  OR  AS  A  RESULT  OF  THE CUMULATIVE IMPACT OF INDIVIDUAL OR
MULTIPLE CHANGE ORDERS, WHICH CONSTITUTE A  QUALITATIVE  CHANGE  TO  THE
PROJECT WORK AND WHICH HAVE A VERIFIABLE IMPACT ON PROJECT COSTS.
  (C) THE UNAVAILABILITY OF THE SITE FOR SUCH AN EXTENDED PERIOD OF TIME
WHICH SIGNIFICANTLY AFFECTS THE SCHEDULED COMPLETION OF THE CONTRACT.
  (D)  THE ISSUANCE BY THE PUBLIC OWNER OF A STOP WORK ORDER RELATIVE TO
A SUBSTANTIAL PORTION OF THE PROJECT WORK FOR A PERIOD EXCEEDING  THIRTY
DAYS.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD10394-03-9

S. 5411                             2

  (E)  CHANGES  IN  THE NATURE OF THE PROJECT WORK DUE TO DIFFERING SITE
CONDITIONS WHICH SIGNIFICANTLY AFFECT THE SCHEDULED  COMPLETION  OF  THE
CONTRACT.
  2.  WHEN  SUBMITTING  ANY  SUCH  CLAIM  AGAINST  THE PUBLIC OWNER, THE
CONTRACTOR, FOR ITSELF AND/OR ON BEHALF OF ANY CLAIMING SUBCONTRACTOR OR
MATERIALMAN, SHALL CERTIFY IN WRITING AND UNDER OATH:
  (A) THAT THE SUPPORTING DATA IS ACCURATE AND COMPLETE TO THE  CONTRAC-
TOR'S  BEST  KNOWLEDGE OR BELIEF, AND THAT OF ANY CLAIMING SUBCONTRACTOR
OR MATERIALMAN; AND
  (B) THAT THE AMOUNT OF THE CLAIM ITSELF REFLECTS WHAT THE  CONTRACTOR,
SUBCONTRACTOR  AND/OR MATERIALMAN IN GOOD FAITH BELIEVE TO BE THE PUBLIC
OWNER'S LIABILITY.
  S 2. This act shall take effect on the one hundred eightieth day after
it shall have become a law.

2009-S5411A (ACTIVE) - Details

Current Committee:: Senate Finance
Laws Affected:: Add §138-b, St Fin L

2009-S5411A (ACTIVE) - Summary

2009-S5411A (ACTIVE) - Sponsor Memo

                                 BILL NUMBER:  S5411A

 TITLE OF BILL :
An act to amend the state finance law, in relation to damages for
delay clauses in public contracts


 PURPOSE OR GENERAL IDEA OF BILL :
Requires all public contracts to include a clause authorizing
contractors to recover damages for delay.

 SUMMARY OF SPECIFIC PROVISIONS :
Section 1: Adds State Finance Law Section 138-b to provide that all
public works contracts include a provision that a contractor,
subcontractor, or materialman may seek recovery for unanticipated
costs due to inexcusable delays which are the result of actions or
omissions caused by the local government or public entity (public
owner) that retained such contractor, subcontractor or materialman.
The act or omission must be within the scope of responsibility or
control of such public owner.

 JUSTIFICATION :
Case law in New York State follows Kalish-Jarcho, Inc.  v. City of New
York (578 NY 2nd 377), which allows a contractor to recover damages
for such delay caused by an owner only where the owner acted in bad
faith and with deliberate intent. In fact, the burden of proof to

establish bad faith and deliberate intent makes it unlikely that
contractors would be able to recover damages for unreasonable delays
caused by such public owner. Several public agencies (NYS Office of
General Services (OGS), Department of Transportation (DOT), and the
Metropolitan Transportation Authority (MTA)) have already recognized
the unfairness of this restriction and have provided in their public
contracts for a more equitable allowance for damages for delays
resulting from public agency action.

In 1998, the Governor vetoed S6711B (same as A10093B), a proposal to
achieve the same relief sought by this legislation. In his veto
message (see Veto Message 1404), Governor Pataki stated that he was
sympathetic to the concept that public owners should compensate
contractors who had caused unreasonable delays and thereby forced
contractors, subcontractors or materialmen to sustain losses due to
the actions of such public owner, Further, to help remedy this
situation, that the policies of NYS OGS and DOT were already directed
to address the needs sought under that bill. This new bill addresses
the issues raised by the Governor and clarifies liability for damages
where actions or omissions of a public agency are directly associated
with the damages incurred by a covered contractor.

 FISCAL IMPLICATIONS :
None.

 EFFECTIVE DATE :
This act shall take effect on the 180th day after becoming a law.

2009-S5411A (ACTIVE) - Bill Text download pdf

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

                                 5411--A

                       2009-2010 Regular Sessions

                            I N  S E N A T E

                             April 30, 2009
                               ___________

Introduced  by  Sen.  KLEIN  -- read twice and ordered printed, and when
  printed to be committed to  the  Committee  on  Finance  --  committee
  discharged, bill amended, ordered reprinted as amended and recommitted
  to said committee

AN  ACT to amend the state finance law, in relation to damages for delay
  clauses in public contracts

  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
138-b to read as follows:
  S 138-B. DAMAGES FOR DELAY IN PUBLIC CONTRACTS.   1.    ALL  CONTRACTS
MADE  AND  AWARDED  BY  THE  STATE, ANY STATE AGENCY, PUBLIC DEPARTMENT,
MUNICIPAL CORPORATION, PUBLIC  AUTHORITY,  PUBLIC  BENEFIT  CORPORATION,
SCHOOL  DISTRICT  OR A COMMISSION APPOINTED PURSUANT TO LAW (HEREINAFTER
REFERRED  TO  IN  THIS  SECTION  AS  A  "PUBLIC  OWNER")   FOR   DESIGN,
CONSTRUCTION, RECONSTRUCTION, DEMOLITION, ALTERATION, REPAIR OR IMPROVE-
MENT  OF ANY PUBLIC WORKS SHALL CONTAIN A CLAUSE WHICH ALLOWS A CONTRAC-
TOR TO MAKE CLAIM FOR ALL ADDITIONAL COSTS FROM THE CAUSES LISTED BELOW,
ATTRIBUTABLE TO DELAY IN THE PERFORMANCE OF THIS CONTRACT, OCCASIONED BY
ANY ACT OR OMISSION TO ACT BY THE PUBLIC OWNER OR ANY OF  ITS  REPRESEN-
TATIVES.
  (A)  THE  FAILURE  OF  THE PUBLIC OWNER TO TAKE REASONABLE MEASURES TO
COORDINATE AND PROGRESS THE PROJECT WORK.
  (B) EXTENDED DELAYS ATTRIBUTABLE TO THE PUBLIC OWNER IN THE REVIEW  OR
ISSUANCE  OF  CHANGE  ORDERS OR FIELD ORDERS, IN SHOP DRAWING REVIEWS OR
APPROVALS OR AS A RESULT OF  THE  CUMULATIVE  IMPACT  OF  INDIVIDUAL  OR
MULTIPLE  CHANGE  ORDERS,  WHICH  CONSTITUTE A QUALITATIVE CHANGE TO THE
PROJECT WORK AND WHICH HAVE A VERIFIABLE AND MATERIAL IMPACT ON  PROJECT
COSTS.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD10394-04-9

S. 5411--A                          2

  (C) THE UNAVAILABILITY OF THE SITE CAUSED BY THE PUBLIC OWNER FOR SUCH
AN  EXTENDED  PERIOD  OF  TIME WHICH SIGNIFICANTLY AFFECTS THE SCHEDULED
COMPLETION OF THE CONTRACT.
  (D)  THE ISSUANCE BY THE PUBLIC OWNER OF A STOP WORK ORDER RELATIVE TO
A SUBSTANTIAL PORTION OF THE PROJECT WORK FOR A PERIOD EXCEEDING  THIRTY
DAYS.
  (E) UNANTICIPATED AND UNDISCLOSED CHANGES IN THE NATURE OF THE PROJECT
WORK  DUE  TO  DIFFERING  SITE CONDITIONS WHICH SIGNIFICANTLY AFFECT THE
SCHEDULED COMPLETION OF THE CONTRACT.
  2.  ANY CONTRACTUAL PROVISION WAIVING,  MODIFYING  OR  ABROGATING,  IN
WHOLE  OR IN PART, THE RIGHT OF CONTRACTORS TO A CLAIM UNDER SUBDIVISION
ONE OF THIS SECTION SHALL BE NULL, VOID AND UNENFORCEABLE.
  3. WHEN SUBMITTING ANY  SUCH  CLAIM  AGAINST  THE  PUBLIC  OWNER,  THE
CONTRACTOR, FOR ITSELF AND/OR ON BEHALF OF ANY CLAIMING SUBCONTRACTOR OR
MATERIALMAN, SHALL CERTIFY IN WRITING AND UNDER OATH:
  (A)  THAT THE SUPPORTING DATA IS ACCURATE AND COMPLETE TO THE CONTRAC-
TOR'S BEST KNOWLEDGE OR BELIEF, AND THAT OF ANY  CLAIMING  SUBCONTRACTOR
OR MATERIALMAN; AND
  (B)  THAT THE AMOUNT OF THE CLAIM ITSELF REFLECTS WHAT THE CONTRACTOR,
SUBCONTRACTOR AND/OR MATERIALMAN IN GOOD FAITH BELIEVE TO BE THE  PUBLIC
OWNER'S LIABILITY.
  S 2. This act shall take effect on the one hundred eightieth day after
it shall have become a law.

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Senate Bill S5411

Sponsored By

Archive: Last Bill Status - In Senate Committee Finance Committee

Actions

Bill Amendments

2009-S5411 - Details

2009-S5411 - Summary

2009-S5411 - Sponsor Memo

2009-S5411 - Bill Text download pdf

2009-S5411A (ACTIVE) - Details

2009-S5411A (ACTIVE) - Summary

2009-S5411A (ACTIVE) - Sponsor Memo

2009-S5411A (ACTIVE) - Bill Text download pdf

Comments

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Sponsored By

Jeffrey D. Klein

Archive: Last Bill Status - In Senate Committee Finance Committee

Actions

Bill Amendments

2009-S5411 - Details

2009-S5411 - Summary

2009-S5411 - Sponsor Memo

2009-S5411 - Bill Text download pdf

2009-S5411A (ACTIVE) - Details

2009-S5411A (ACTIVE) - Summary

2009-S5411A (ACTIVE) - Sponsor Memo

2009-S5411A (ACTIVE) - Bill Text download pdf

Comments