S T A T E   O F   N E W   Y O R K
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                                  1859

                       2009-2010 Regular Sessions

                          I N  A S S E M B L Y

                            January 12, 2009
                               ___________

Introduced  by  M.  of  A. NOLAN -- Multi-Sponsored by -- M. of A. COOK,
  DINOWITZ, GLICK, GOTTFRIED, JACOBS, MARKEY, MILLMAN, PHEFFER  --  read
  once  and  referred  to the Committee on Corporations, Authorities and
  Commissions

AN ACT to amend the state  finance  law,  in  relation  to  awarding  of
  contracts by the metropolitan transportation authority

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

  Section 1. Legislative intent. The  legislature  finds  the  efficient
operation  of  the metropolitan transportation authority is essential to
the economy of our state. It is  the  public  policy  of  the  state  to
provide  a  wide  variety  of services to the people in a cost efficient
manner while assuring the quality of life for the people of this  state.
The  legislature  finds that these objectives can be maximized by estab-
lishing an orderly procedure for cost effectiveness review  prior  to  a
contract  being  authorized.  It  is  necessary, therefore, to establish
minimum standards of cost effectiveness and accountability for all  such
contracts let by the metropolitan transportation authority.
  S  2.  The state finance law is amended by adding a new section 147 to
read as follows:
  S 147. AWARDING OF CONTRACTS. 1. DEFINITIONS. AS USED IN THIS SECTION,
THE FOLLOWING TERMS SHALL HAVE THE FOLLOWING MEANINGS  UNLESS  OTHERWISE
SPECIFIED:
  (A)  "AGENCY"  SHALL MEAN THE METROPOLITAN TRANSPORTATION AUTHORITY AS
DEFINED IN SECTION TWELVE HUNDRED SIXTY-THREE OF THE PUBLIC  AUTHORITIES
LAW, AND ALL OF ITS CONSTITUENT PARTS, INCLUDING THE NEW YORK CITY TRAN-
SIT  AUTHORITY,  THE  TRIBOROUGH  BRIDGE  AND TUNNEL AUTHORITY, THE LONG
ISLAND RAIL ROAD, METRO-NORTH RAILROAD, MANHATTAN AND THE BRONX  SURFACE
TRANSIT  AUTHORITY,  STATEN ISLAND RAPID TRANSIT OPERATING AUTHORITY AND
THE LONG ISLAND BUS DIVISION.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD02120-01-9

              

A. 1859                             2

  (B) "CONTRACT"  SHALL  MEAN  AN  ENFORCEABLE  AGREEMENT  FOR  PERSONAL
SERVICES ENTERED INTO BY A CONTRACTOR AND THE AGENCY FOR AN AMOUNT WHICH
EXCEEDS FIVE THOUSAND DOLLARS.
  (C)  "CONTRACTOR"  SHALL  MEAN  ANY  PERSON, PARTNERSHIP, FIRM, CORPO-
RATION, OR ASSOCIATION RENDERING OR PROVIDING  SERVICES  PURSUANT  TO  A
CONTRACT WITH THE AGENCY.
  (D)  "CHANGE  ORDER" SHALL MEAN A CONTRACT MODIFICATION OR ANY WRITTEN
ALTERATION TO SPECIFICATIONS, DELIVERY POINT, RATE OF  DELIVERY,  PERIOD
OF  PERFORMANCE,  PRICE,  QUALITY,  OR  OTHER PROVISIONS OF ANY CONTRACT
AUTHORIZED BY THE  AGENCY  OR  MUTUAL  ACTION  OF  THE  PARTIES  TO  THE
CONTRACT.
  2.  COST  EFFECTIVENESS  AND ACCOUNTABILITY REVIEW. NO CONTRACT WITH A
CONTRACTOR FOR SERVICES SHALL BE  ENTERED  INTO  BY  THE  AGENCY  UNLESS
CONTRACTING FOR SUCH SERVICES IS:
  (A)  COST  EFFECTIVE  WHEN  COMPARED  TO THE COST OF HAVING THE AGENCY
PERFORM THE WORK;
  (I) THE CONTRACTING AGENCY MUST CLEARLY DEMONSTRATE THAT THE  PROPOSED
CONTRACT WILL RESULT IN ACTUAL COST SAVINGS TO THE AGENCY.  IN COMPARING
COSTS,  THERE  SHALL BE INCLUDED THE AGENCY'S COST OF PROVIDING THE SAME
SERVICE AS THE PROPOSED CONTRACTOR.
  (II) IN COMPUTING COSTS, THERE SHALL  NOT  BE  INCLUDED  THE  AGENCY'S
INDIRECT  OVERHEAD  COSTS UNLESS THESE COSTS CAN BE ATTRIBUTED SOLELY TO
THE FUNCTIONS IN QUESTION AND WOULD NOT EXIST IF THAT FUNCTION WERE  NOT
PERFORMED.  INDIRECT  OVERHEAD COSTS SHALL INCLUDE THE PRO RATA SHARE OF
EXISTING ADMINISTRATIVE SALARIES AND BENEFITS,  RENT,  EQUIPMENT  COSTS,
UTILITIES AND MATERIALS.
  (III)  IN  COMPUTING COSTS, THERE SHALL BE INCLUDED AN ESTIMATE OF ANY
COSTS THAT WILL BE INCURRED BY THE AGENCY AS A RESULT OF  ENTERING  INTO
THE  CONTRACT,  INCLUDING THE COST OF CONTRACT ADMINISTRATION, THE COSTS
OF ANY REGULATORY  OR  INSPECTION  FUNCTION  WHICH  THE  AGENCY  MAY  BE
REQUIRED TO PERFORM IN CONNECTION WITH THE SERVICES PROVIDED PURSUANT TO
THE CONTRACT, THE COST OF PERSONNEL CHANGES AS A RESULT OF THE CONTRACT,
AND  ANY  SIMILAR  COSTS  WHICH THE AGENCY CAN BE REASONABLY EXPECTED TO
INCUR AS A RESULT OF THE CONTRACT.
  (IV) A PROPOSED CONTRACT SHALL NOT BE APPROVED  SOLELY  ON  THE  BASIS
THAT  SAVINGS  WILL  RESULT FROM LOWER CONTRACTOR PAY RATES OR BENEFITS.
PROPOSALS TO CONTRACT WORK SHALL BE ELIGIBLE FOR APPROVAL  PROVIDED  THE
CONTRACTOR'S  WAGES  AND  BENEFITS  ARE  AT  THE  SAME RATE AS EMPLOYEES
CURRENTLY PROVIDING THE SERVICE OR PERFORMING COMPARABLE WORK.
  (V) A PROPOSED CONTRACT SHALL NOT BE APPROVED  UNLESS  IT  CONTAINS  A
DESCRIPTION OF THE SERVICE QUALITY EXPECTATIONS PURSUANT TO THE CONTRACT
AND  A  DESCRIPTION OF THE METHOD BY WHICH THE QUALITY OF SERVICES SHALL
BE  MONITORED  AND  EVALUATED.  THE  CONTRACT  MUST   INCLUDE   SPECIFIC
PROVISIONS  PERTAINING  TO  THE  QUALIFICATIONS  OF  THE STAFF THAT WILL
PERFORM THE WORK UNDER THE CONTRACT.
  (B) REQUIRED DUE TO AN EMERGENCY; "EMERGENCY" SHALL MEAN  A  SITUATION
INVOLVING  DANGER  TO LIFE, SAFETY, OR PROPERTY WHICH REQUIRES IMMEDIATE
ACTION, IS ESSENTIAL TO EFFICIENT OPERATION OR THE ADEQUATE PROVISION OF
SERVICE BY THE AGENCY, AND IS A DIRECT CONSEQUENCE  OF  AN  ACCIDENT  OR
OTHER UNFORESEEN CIRCUMSTANCE.
  (C) REQUIRED FOR A SHORT DURATION WHERE CURRENT EMPLOYEES OF THE AGEN-
CY  ARE  OTHERWISE  ENGAGED  AND  CANNOT  BE  REASSIGNED  TO PERFORM THE
SERVICES AND NEW EMPLOYEES CANNOT BE HIRED WITHIN A REASONABLE  TIME  TO
PERFORM  SUCH  SERVICES  AND SUCH SERVICES ARE NEEDED IN CONNECTION WITH
WORK UNDERTAKEN IN RESPONSE TO AN EMERGENCY.
  (D) REQUIRED FOR SPECIAL EXPERTISE OF A SHORT DURATION.

A. 1859                             3

  (E) REQUIRED TO AVOID A CONFLICT OF INTEREST.
  (F) OTHERWISE EXPRESSLY REQUIRED BY LAW TO BE SO CONTRACTED.
  3.  LETTING  OF CONTRACTS.  NOTWITHSTANDING THE PROVISIONS OF SUBDIVI-
SION TWO OF THIS SECTION, NO CONTRACT SHALL  BE  LET  WHICH  IS  NOT  IN
COMPLIANCE  WITH  THE REQUIREMENTS OF ARTICLE FIFTEEN-A OF THE EXECUTIVE
LAW, IN COMPLIANCE WITH THE AGENCY'S AFFIRMATIVE ACTION EFFORTS AND WILL
NOT CAUSE THE AGENCY TO FAIL TO MEET ITS  AFFIRMATIVE  ACTION  GOALS  OR
CAUSES  THE  DISPLACEMENT  OF WORKERS. FOR THE PURPOSES OF THIS SUBDIVI-
SION, THE TERM "DISPLACEMENT" SHALL INCLUDE LAYOFFS, DEMOTION,  INVOLUN-
TARY TRANSFER TO A NEW CLASS OR TITLE, INVOLUNTARY TRANSFER OR REASSIGN-
MENT  TO  A  NEW  LOCATION  REQUIRING A CHANGE OF RESIDENCE, AND PARTIAL
DISPLACEMENT SUCH AS REDUCTION IN THE CUSTOMARY HOURS TO WORK, WAGES, OR
BENEFITS.
  4. DISCLOSURE. (A) PRIOR TO EXECUTING CONTRACT FOR SERVICES, THE AGEN-
CY SHALL PREPARE A SPECIFIC STATEMENT WHICH  SETS  FORTH  THE  OBJECTIVE
DATA SUPPORTING THE REASONS WHY THE PROPOSED CONTRACT MEETS THE REQUIRE-
MENTS  SET  FORTH  IN  SUBDIVISIONS  TWO  AND THREE OF THIS SECTION. THE
CONTRACTOR SHALL DISCLOSE, IN WRITING, THE NAMES OF CORPORATE  OFFICERS,
PARTNERS OR ASSOCIATES, AND THE NAMES OF ANY STATE OR MUNICIPAL EMPLOYEE
OF  POLITICAL  PARTIES  TO WHOM THE CONTRACTOR OR ITS OFFICERS, PARTNERS
AND ASSOCIATES HAVE MADE ONE OR MORE COMPANY CONTRIBUTIONS TOTALLING TWO
HUNDRED FIFTY DOLLARS OR MORE WITHIN ANY TWELVE MONTH PERIOD DURING  THE
PREVIOUS  THIRTY-SIX  MONTH  PERIOD.  IN  ADDITION, THE CONTRACTOR SHALL
DISCLOSE ANY LABOR LAW VIOLATIONS OR CITATIONS INCLUDING BUT NOT LIMITED
TO OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION VIOLATIONS, WAGE,  HOUR
OR  BENEFITS  VIOLATIONS INCURRED WITHIN THE PAST THIRTY-SIX MONTHS. THE
CONTRACTOR SHALL ALSO DISCLOSE, IN WRITING, WHETHER  EACH  EMPLOYEE  WHO
SHALL  BE  ENGAGED IN THE SERVICES TO BE PROVIDED PURSUANT TO A CONTRACT
IS A RESIDENT OF THE STATE OR, OF NEW YORK CITY.
  (B) PRIOR TO THE SCHEDULED AWARD OF A CONTRACT FOR SERVICES, THE AGEN-
CY SHALL PROVIDE TO THE EMPLOYEE  ORGANIZATION  THAT  REPRESENTS  AGENCY
EMPLOYEES  WHO  WOULD OTHERWISE PERFORM SUCH SERVICES WITH COPIES OF THE
STATEMENTS RENDERED PURSUANT TO PARAGRAPH (A) OF  THIS  SUBDIVISION  AND
THE  PROPOSED  CONTRACT SO THAT SUCH EMPLOYEE ORGANIZATION SHALL HAVE AT
LEAST NINETY DAYS TO OBJECT TO THE PROPOSED CONTRACT. AN EMPLOYEE ORGAN-
IZATION WHICH PROVIDES  TIMELY  WRITTEN  NOTICE  OF  OBJECTION  AND  THE
REASONS  THEREFOR SHALL, UNLESS THE AGENCY AGREES IN WRITING TO WITHDRAW
THE PROPOSED CONTRACT, BE PERMITTED TO BE HEARD  BY  THE  AGENCY'S  HEAD
PRIOR  TO  THE  AWARD OF THE CONTRACT. WITHIN FIFTEEN DAYS OF RECEIPT OF
SUCH OBJECTION, THE AGENCY'S HEAD, AFTER CONSIDERING THE  OBJECTIONS  OF
THE EMPLOYEE ORGANIZATION, SHALL NOTIFY THE EMPLOYEE ORGANIZATION WHETH-
ER  THE  AGENCY  WILL  WITHDRAW  THE PROPOSED CONTRACT OR ENTER INTO THE
CONTRACT. IF THE AGENCY'S HEAD DECIDES TO ENTER INTO THE  CONTRACT,  AND
THE  EMPLOYEE  ORGANIZATION  STILL  BELIEVES  THAT  THE  CONTRACT  IS IN
VIOLATION OF THE GUIDELINES  IN  SUBDIVISIONS  TWO  AND  THREE  OF  THIS
SECTION,  THE  EMPLOYEE  ORGANIZATION  MAY  FORWARD ITS COMPLAINT TO THE
COMPTROLLER WITHIN FIFTEEN DAYS OF RECEIPT OF THE AGENCY HEAD'S  NOTIFI-
CATION.  BEFORE  APPROVING SUCH CONTRACT, THE COMPTROLLER SHALL CONSIDER
THE EMPLOYEE  ORGANIZATION'S  COMPLAINT,  AND  SHALL  NOT  APPROVE  SUCH
CONTRACT  IF THE COMPTROLLER BELIEVES SUCH COMPLAINT IS VALID. THE COMP-
TROLLER SHALL NOTIFY THE  EMPLOYEE  ORGANIZATION  OF  THE  COMPTROLLER'S
DECISION  TO  EITHER APPROVE OR DISAPPROVE THE CONTRACT. IN CARRYING OUT
THE DUTIES OF THIS SECTION, THE COMPTROLLER MAY FORM AN  ADVISORY  BOARD
WHICH SHALL CONSIST OF REPRESENTATIVES OF THE GOVERNMENT, PUBLIC EMPLOY-
EE ORGANIZATIONS, AND THE PUBLIC.

A. 1859                             4

  5.  CHANGE ORDERS. IF THE AGENCY INTENDS TO CHANGE, BY USE OF A CHANGE
ORDER, A CONTRACT FOR SERVICES AND SUCH CHANGE ORDER EITHER BY ITSELF OR
TOGETHER WITH PREVIOUSLY AUTHORIZED CHANGE ORDERS RESULTS IN CAUSING THE
AMOUNT OF THE CONTRACT  TO  EXCEED  ONE  HUNDRED  FIVE  PERCENT  OF  THE
ORIGINAL  CONTRACT AMOUNT, THEN APPROVAL OF SUCH CHANGE SHALL BE SUBJECT
TO THE PROVISIONS OF SUBDIVISIONS TWO, THREE AND FOUR OF THIS SECTION.
  S 3. Nothing contained in this act shall supersede or nullify  any  of
the  terms  of a collective bargaining agreement and shall not be deemed
to authorize any contract which is otherwise prohibited by law or  regu-
lation.
  S 4. Severability. 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 thereof.
  S  5.  This  act shall take effect on the thirtieth day after it shall
have become a law.