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
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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.