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

                                  3854

                       2009-2010 Regular Sessions

                          I N  A S S E M B L Y

                            January 28, 2009
                               ___________

Introduced  by  M. of A. BRENNAN, JOHN -- Multi-Sponsored by -- M. of A.
  CAHILL, COOK, GLICK, GOTTFRIED, SWEENEY -- read once and  referred  to
  the Committee on Governmental Operations

AN  ACT  to amend the state finance law, in relation to the authority of
  state agencies, public authorities, or public benefit corporations  to
  debar contractors from selling or submitting bids to such entities

  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
139-b-1 to read as follows:
  S  139-B-1.  DEBARMENT;  AUTHORITY AND PROCEDURE. (A) DEFINITIONS. (I)
"DEBARRING BODY" SHALL MEAN A STATE AGENCY, DEPARTMENT,  BOARD,  BUREAU,
COMMISSION, DIVISION, PUBLIC AUTHORITY, OR PUBLIC BENEFIT CORPORATION, A
MAJORITY OF WHOSE MEMBERS ARE APPOINTED BY THE GOVERNOR.
  (II)  "POTENTIAL  CONTRACTOR"  SHALL MEAN A PERSON, PARTNERSHIP, FIRM,
CORPORATION OR BUSINESS ENTITY.
  (B) THE HEAD OF  THE DEBARRING BODY MAY, AFTER  REASONABLE  NOTICE  BY
CERTIFIED  MAIL WITH RETURN RECEIPT REQUESTED, TO THE POTENTIAL CONTRAC-
TOR AND REASONABLE OPPORTUNITY FOR THEM TO BE HEARD, DEBAR  SUCH  POTEN-
TIAL  CONTRACTOR  FOR  CAUSE  FROM  SELLING  TO OR SUBMITTING BIDS TO OR
RECEIVING AWARDS FROM OR ENTERING INTO CONTRACTS WITH THE DEBARRING BODY
FOR A PERIOD OF UP TO FIVE YEARS.
  (C) CAUSES FOR DEBARMENT SHALL INCLUDE BUT NOT BE LIMITED TO A FINDING
BY THE DEBARRING  BODY  OF  THE  FOLLOWING  FACTORS  BY  SUCH  POTENTIAL
CONTRACTOR,  ANY  DIRECTOR  OR  OFFICER OR ANY HOLDER OF FIVE PERCENT OR
MORE OF THE SHARES OR EQUITY OF SUCH POTENTIAL CONTRACTOR, OR ANY AFFIL-
IATE OF SUCH POTENTIAL CONTRACTOR:
  (I) FINAL DETERMINATION OF CONVICTION, WITH ALL APPEALS EXHAUSTED, FOR
COMMISSION OF A CRIMINAL OFFENSE AS AN INCIDENT TO OBTAINING OR ATTEMPT-
ING TO OBTAIN A PUBLIC OR PRIVATE CONTRACT OR  SUBCONTRACT,  OR  IN  THE
PERFORMANCE OF SUCH CONTRACT OR SUBCONTRACT;

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD05242-02-9
              

A. 3854                             2

  (II)  FINAL  DETERMINATION  OF CONVICTION, WITH ALL APPEALS EXHAUSTED,
UNDER  STATE  OR  FEDERAL  STATUTES  OF  EMBEZZLEMENT,  THEFT,  FORGERY,
BRIBERY, FALSIFICATION OR DESTRUCTION OF RECORDS, RECEIVING STOLEN PROP-
ERTY,  OR  ANY  OTHER OFFENSE INDICATING A LACK OF BUSINESS INTEGRITY OR
BUSINESS  HONESTY WHICH CURRENTLY, SERIOUSLY, AND DIRECTLY AFFECTS CAPA-
BILITY IN ALL RESPECTS TO PERFORM FULLY CONTRACT REQUIREMENTS AS A STATE
CONTRACTOR;
  (III) FINAL DETERMINATION OF CONVICTION, WITH ALL  APPEALS  EXHAUSTED,
UNDER  STATE OR FEDERAL ANTITRUST STATUTES ARISING OUT OF THE SUBMISSION
OF BIDS OR PROPOSALS;
  (IV) FINAL JUDGEMENT OR DETERMINATION OF CONVICTION, WITH ALL  APPEALS
EXHAUSTED  OF  UNLAWFUL  DISCRIMINATORY PRACTICE AS DEFINED IN THE HUMAN
RIGHTS LAW;
  (V) VIOLATION OF ANY DEBARRING  BODY'S  CONTRACT  PROVISIONS,  AS  SET
FORTH  BELOW, OF A CHARACTER WHICH IS REASONABLY REGARDED BY THE HEAD OF
SUCH DEBARRING BODY TO BE SO SERIOUS  AS  TO  JUSTIFY  DEBARMENT  ACTION
INCLUDING,  BUT  NOT  LIMITED TO, A RECORD WITHIN THE LAST FIVE YEARS OF
WILLFUL FAILURE TO PERFORM OR OF WILLFUL UNSATISFACTORY  PERFORMANCE  IN
ACCORDANCE  WITH  THE TERMS OF ONE OR MORE SUCH CONTRACTS; PROVIDED THAT
FAILURE TO PERFORM OR UNSATISFACTORY PERFORMANCE CAUSED BY  ACTS  BEYOND
THE  CONTROL OF THE CONTRACTOR SHALL NOT BE CONSIDERED TO BE A BASIS FOR
DEBARMENT;
  (VI) ANY OTHER CAUSE THAT THE HEAD  OF  A  DEBARRING  BODY  REASONABLY
DETERMINES  TO BE SO SERIOUS AND COMPELLING AS TO PERVASIVELY AFFECT THE
POTENTIAL CONTRACTOR'S CAPABILITY TO PERFORM FULLY THE CONTRACT REQUIRE-
MENTS ON ALL CONTRACTS OF SUCH DEBARRING BODY,  INCLUDING  DEBARMENT  BY
ANOTHER DEBARRING BODY FOR ANY CAUSE LISTED IN THIS SUBDIVISION.
  (D)  IN  CONSIDERING WHETHER OR NOT TO DEBAR A POTENTIAL CONTRACTOR, A
DEBARRING BODY SHALL GIVE DUE CONSIDERATION TO  ANY  MITIGATING  FACTORS
BROUGHT TO SUCH BODY'S ATTENTION BY SUCH POTENTIAL CONTRACTOR; INCLUDING
BUT  NOT  LIMITED  TO  ACTIONS TAKEN TO CORRECT THE CAUSES FOR WHICH THE
DEBARMENT WAS IMPOSED, TIME LAPSED SINCE CONVICTION, OR BONA FIDE CHANG-
ES IN OWNERSHIP OR MANAGEMENT. DEBARMENT SHALL BE FOR A PERIOD COMMENSU-
RATE WITH THE SERIOUSNESS OF THE CAUSES  FOR  WHICH  THE  DEBARMENT  WAS
IMPOSED.  THE  HEAD  OF  EACH DEBARRING BODY SHALL ESTABLISH REGULATIONS
CONCERNING THE LENGTH OF THE PERIOD OF DEBARMENT COMMENSURATE  WITH  THE
CAUSES FOR WHICH THE DEBARMENT WAS IMPOSED.
  (E)  A  WRITTEN NOTICE OF DEBARMENT, STATING THE BASIS THEREFOR, SHALL
BE MAILED BY CERTIFIED MAIL, WITH RETURN RECEIPT REQUESTED,  WITHIN  TEN
DAYS OF THE DECISION TO THE DEBARRED POTENTIAL CONTRACTOR BY THE HEAD OF
THE  DEBARRING  BODY  AND  TO  THE STATE COMPTROLLER AND OTHER DEBARRING
BODIES FOR THE PURPOSE OF AIDING  IN  DETERMINATIONS  OF  DEBARMENT  AND
BIDDER  RESPONSIBILITY  AS APPROPRIATE. THE DEBARRING BODY SHALL PROMUL-
GATE REGULATIONS GOVERNING AN INTERNAL APPEALS PROCEDURE FOR  DEBARMENT.
THE  HEAD  OF  THE  DEBARRING  BODY  SHALL MAKE THE FINAL ADMINISTRATIVE
DETERMINATION.
  (F) A DEBARRING BODY'S DECISION UNDER THIS SECTION SHALL BE FINAL  AND
CONCLUSIVE, AND SHALL BE SUBJECT TO APPEAL PURSUANT TO THE PROVISIONS OF
ARTICLE SEVENTY-EIGHT OF THE CIVIL PRACTICE LAW AND RULES.
  (G)  THE  DEBARRING  BODY MAY REDUCE THE PERIOD OF DEBARMENT OR REVOKE
THE ORDER OF DEBARMENT NOT LESS THAN SIX MONTHS  AFTER  NOTICE  OF  SUCH
DEBARMENT  UPON  WRITTEN  REQUEST  OF THE DEBARRED POTENTIAL CONTRACTOR,
SUPPORTED BY DOCUMENTATION, FOR REASONS INCLUDING, BUT NOT LIMITED TO:
  (I) NEWLY DISCOVERED MATERIAL EVIDENCE;
  (II) REVERSAL OF A CONVICTION OR CIVIL JUDGMENT UPON WHICH THE  DEBAR-
MENT WAS BASED;

A. 3854                             3

  (III) BONA FIDE CHANGE IN OWNERSHIP OR MANAGEMENT; OR
  (IV) ELIMINATION OF OTHER CAUSES FOR WHICH THE DEBARMENT WAS IMPOSED.
  (H)  THE  STATE  COMPTROLLER SHALL MAINTAIN A CURRENT LIST OF DEBARRED
POTENTIAL CONTRACTORS, WHICH LIST SHALL BE MADE AVAILABLE  UPON  REQUEST
TO  THE  PUBLIC PURSUANT TO THE PROVISIONS OF THE FREEDOM OF INFORMATION
LAW. THE DEBARRING BODY SHALL MAKE AVAILABLE TO THE LEGISLATURE AND  THE
GOVERNOR,  UPON REQUEST, AN ANNUAL LISTING OF DEBARMENT ACTIVITY INCLUD-
ING BUT NOT LIMITED TO NUMBERS OF POTENTIAL CONTRACTORS  DEBARRED  UNDER
THIS SECTION, THE REASONS FOR SUCH DEBARMENT, AND THE PERIOD OF TIME FOR
WHICH A POTENTIAL CONTRACTOR HAS BEEN SUSPENDED.
  (I)  NOTHING  IN  THIS  SECTION  SHALL BE CONSTRUED SO AS TO PREVENT A
DEBARRING BODY FROM DETERMINING ON A CASE BY CASE BASIS THAT A POTENTIAL
CONTRACTOR SUBMITTING A BID OR PROPOSAL IS NOT RESPONSIBLE.
  S 2. This act shall take effect on the one hundred twentieth day after
it shall have become a law provided, however, that any  rules  or  regu-
lations  necessary for the implementation of this act are authorized and
directed to be completed on or before such effective date.