S T A T E O F N E W Y O R K
________________________________________________________________________
399
2009-2010 Regular Sessions
I N A S S E M B L Y
(PREFILED)
January 7, 2009
___________
Introduced by M. of A. JOHN, NOLAN, PERALTA, SCHROEDER -- Multi-Spon-
sored by -- M. of A. GALEF, GOTTFRIED, HEASTIE, LIFTON, V. LOPEZ,
PERRY, PHEFFER, WEINSTEIN, WEISENBERG -- read once and referred to the
Committee on Labor
AN ACT to amend the labor law, in relation to establishing the responsi-
bility of contractors and subcontractors on public work projects and
establishing a construction contract lowest responsible bidder regis-
try
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Paragraph b of subdivision 3 of section 220-b of the labor
law is amended by adding a new subparagraph 3 to read as follows:
(3) WHEN ANY PERSON OR CORPORATION, OR ANY OFFICER, DIRECTOR, OWNER
AND/OR MANAGERIAL EMPLOYEE OF A CORPORATION, HAS BEEN CONVICTED OF A
FELONY WITH RESPECT TO A PUBLIC WORK PROJECT WITH THE STATE, A MUNICIPAL
CORPORATION, PUBLIC BENEFIT CORPORATION OR PUBLIC BODY AND SUCH FELONY
ARISES FROM A VIOLATION OF THIS CHAPTER IN CONNECTION WITH SUBMITTING A
COMPETITIVE BID FOR OR FULFILLING THE OBLIGATIONS OF A PUBLIC WORK
CONTRACT, OR IS RELATED TO THE EMPLOYMENT OF PERSONS ON SUCH PROJECT,
SUCH PERSON OR CORPORATION SHALL BE INELIGIBLE TO SUBMIT A BID ON OR BE
AWARDED ANY PUBLIC WORK CONTRACT WITH THE STATE, OR ANY MUNICIPAL CORPO-
RATION, PUBLIC BENEFIT CORPORATION OR PUBLIC BODY FOR A PERIOD OF FIVE
YEARS FROM THE DATE OF SUCH FELONY CONVICTION.
S 2. The labor law is amended by adding two new sections 220-i and
220-j to read as follows:
S 220-I. CONTRACTOR AND SUBCONTRACTOR RESPONSIBILITY. 1. FOR THE
PURPOSE OF THIS SECTION, THE FOLLOWING TERMS SHALL HAVE THE FOLLOWING
MEANINGS UNLESS OTHERWISE SPECIFIED:
A. "BIDDER", "APPARENT LOWEST BIDDER", "CONTRACTOR" AND "SUBCONTRAC-
TOR" SHALL MEAN ANY PERSON, PARTNERSHIP, FIRM, LIMITED LIABILITY COMPA-
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD02549-01-9
A. 399 2
NY, CORPORATION OR BUSINESS ENTITY SUBMITTING A COMPETITIVE BID FOR,
RECEIVING THE AWARD OF OR SUBMITTED FOR APPROVAL AS A SUBCONTRACTOR ON A
CONTRACT BY ANY ONE OF THE CONTRACTING ENTITIES.
B. "CONTRACT" SHALL MEAN ANY CONSTRUCTION CONTRACT WITH A VALUE IN
EXCESS OF TEN THOUSAND DOLLARS WHICH IS REQUIRED BY LAW TO BE LET BY
COMPETITIVE BID TO THE LOWEST RESPONSIBLE BIDDER OR ANY CONSTRUCTION
CONTRACT FOR WHICH THE CONTRACTING ENTITY HAS LET A COMPETITIVE BID OR
REQUEST FOR PROPOSAL, ABSENT ANY STATUTORY MANDATE TO DO SO.
C. "CONTRACTING ENTITY" SHALL MEAN THE STATE OR ANY PUBLIC BENEFIT
CORPORATION, MUNICIPAL CORPORATION, CHARTER SCHOOL, COMMISSION APPOINTED
PURSUANT TO LAW, OR ANY SIMILAR ENTITY WHICH IS FINANCED IN WHOLE OR IN
PART THROUGH AN INDUSTRIAL DEVELOPMENT AGENCY, JOB DEVELOPMENT AUTHORI-
TY, THE DORMITORY AUTHORITY, THE STATE UNIVERSITY CONSTRUCTION FUND, OR
THE NEW YORK STATE THRUWAY AUTHORITY.
2. IN DELIBERATING UPON THE RESPONSIBILITY OF A BIDDER, CONTRACTOR OR
SUBCONTRACTOR ON A CONTRACT, TO WHICH THE STATE, OR A PUBLIC BENEFIT
CORPORATION, MUNICIPAL CORPORATION, CHARTER SCHOOL, COMMISSION APPOINTED
PURSUANT TO LAW IS A PARTY OF WHICH IS FINANCED IN WHOLE OR IN PART
THROUGH AN INDUSTRIAL DEVELOPMENT AGENCY, JOB DEVELOPMENT AUTHORITY, THE
DORMITORY AUTHORITY, THE STATE UNIVERSITY CONSTRUCTION FUND, THE NEW
YORK STATE THRUWAY AUTHORITY OR SIMILAR PUBLIC ENTITY, THE CONTRACTING
ENTITY SHALL GIVE DUE CONSIDERATION TO ANY CREDIBLE EVIDENCE OR RELIABLE
INFORMATION THAT THE PAST OR CURRENT RECORD OF A BIDDER OR PROPOSED
SUBCONTRACTOR SHALL WARRANT A DETERMINATION THAT SUCH BIDDER OR SUBCON-
TRACTOR IS NOT A RESPONSIBLE BIDDER.
THE CONTRACTING ENTITY, IN DETERMINING THE RESPONSIBILITY OF THE
APPARENT LOWEST BIDDER SHALL REQUIRE, AND THE APPARENT LOWEST RESPONSI-
BLE BIDDER SHALL PROVIDE, THE FOLLOWING INFORMATION IN ORDER FOR THE
CONTRACTING ENTITY TO DETERMINE THE PECUNIARY AND FINANCIAL RESPONSIBIL-
ITY, ACCOUNTABILITY, OPERATIONAL RESPONSIBLENESS, RELIABILITY, SKILL,
CAPACITY, ABILITY, JUDGMENT, INTEGRITY AND MORAL WORTH OF THE APPARENT
LOWEST RESPONSIBLE BIDDER:
A. A DESCRIPTION OF ITS EXPERIENCE WITH PROJECTS OF COMPARATIVE SIZE,
COMPLEXITY, AND COST WITHIN THE PAST FIVE YEARS, TOGETHER WITH DOCUMEN-
TARY EVIDENCE OF SUCH PROJECTS; AND A DEMONSTRATION OF CONTRACTOR'S
ABILITY AND CAPACITY TO PERFORM A SUBSTANTIAL PORTION OF THE PROJECT
WITH HIS OR HER OWN WORK FORCE;
B. DOCUMENTATION FROM PREVIOUS PROJECTS REGARDING TIMELINESS OF
PERFORMANCE; QUALITY OF WORK; EXTENSION REQUESTS; LABOR DISPUTES; LITI-
GATION AND/OR ARBITRATION ARISING FROM SUCH WORK, INCLUDING FINES AND
PENALTIES IMPOSED AND PAYMENT THEREOF; LIENS FILED; HISTORY OF CLAIMS
FOR EXTRA WORK; CONTRACT DEFAULTS; AND AN EXPLANATION OF THE SAME;
C. IDENTIFICATION AND DESCRIPTION OF ANY PROJECTS WITHIN THE PREVIOUS
FIVE YEARS THAT THE APPARENT LOWEST BIDDER WAS DETERMINED BY THE
CONTRACTING ENTITY NOT TO BE A RESPONSIBLE BIDDER, AND THE REASONS GIVEN
BY SUCH ENTITY THEREFORE, TOGETHER WITH AN EXPLANATION THEREOF;
D. AN ADEQUATE DEMONSTRATION OF FINANCIAL RESPONSIBILITY, WHICH MAY
INCLUDE A CERTIFIED FINANCIAL STATEMENT PREPARED BY A CERTIFIED PUBLIC
ACCOUNTANT, TO ASSURE THAT THE APPARENT LOWEST RESPONSIBLE BIDDER
POSSESSES ADEQUATE RESOURCES AND AVAILABILITY OF CREDIT AND THE MEANS
AND ABILITY TO PROCURE INSURANCE AND BONDS REQUIRED FOR THE PROJECT;
E. DISCLOSURE OF ANY SUSPENSIONS OR REVOCATIONS OF ANY PROFESSIONAL
LICENSE OF ANY DIRECTOR, OFFICER, OWNER OR MANAGERIAL EMPLOYEE OF THE
APPARENT LOWEST RESPONSIBLE BIDDER, TO THE EXTENT THAT ANY WORK TO BE
PERFORMED IS WITHIN THE FIELD OF SUCH LICENSED PROFESSION;
A. 399 3
F. DISCLOSURE OF ANY AND ALL FEDERAL OFFICE OF SAFETY AND HEALTH
ADMINISTRATION VIOLATIONS WITHIN THE PREVIOUS FIVE YEARS, AS WELL AS ALL
NOTICES OF SUCH VIOLATIONS FILED AGAINST THE APPARENT LOWEST BIDDER IN
THE SAME FIVE YEAR PERIOD, TOGETHER WITH A DESCRIPTION AND EXPLANATION
OF REMEDIATION OR OTHER STEPS TAKEN REGARDING SUCH VIOLATIONS AND
NOTICES OF VIOLATIONS;
G. DISCLOSURE OF ANY AND ALL VIOLATIONS OF THIS ARTICLE AND ANY OTHER
PROVISION OF THIS CHAPTER, INCLUDING, BUT NOT LIMITED TO, CHILD LABOR
VIOLATIONS, FAILURE TO PAY WAGES AND UNEMPLOYMENT INSURANCE TAX DELIN-
QUENCIES WITHIN THE PAST FIVE YEARS;
H. CERTIFICATION AND LIST OF EQUIPMENT OWNED AND/OR LEASED BY THE
APPARENT LOWEST RESPONSIBLE BIDDER THAT WILL BE UTILIZED ON THE PROJECT,
TOGETHER WITH MAINTENANCE RECORDS AND SUCH ASSURANCES REGARDING SAFETY
THEREOF AS THE CONTRACTING ENTITY CONSIDERS APPROPRIATE;
I. DISCLOSURE OF ANY LITIGATION, INCLUDING COPIES OF PLEADINGS, IN
WHICH THE APPARENT LOWEST BIDDER HAS BEEN NAMED A DEFENDANT OR THIRD
PARTY DEFENDANT IN AN ACTION INVOLVING A CLAIM FOR PERSONAL INJURY OR
WRONGFUL DEATH, ARISING FROM PERFORMANCE OF WORK RELATED TO ANY PROJECT
IN WHICH IT HAS BEEN ENGAGED WITHIN THE PREVIOUS FIVE YEARS;
J. DISCLOSURE OF VIOLATIONS OF THE WORKERS' COMPENSATION LAW, INCLUD-
ING, BUT NOT LIMITED TO THE FAILURE TO PROVIDE PROOF OF WORKERS' COMPEN-
SATION OR DISABILITY COVERAGE AND/OR ANY LAPSES THEREOF;
K. DISCLOSURE OF ANY FELONY CONVICTIONS, INVOLVING THE LOWEST RESPON-
SIBLE BIDDER, ITS OFFICERS, DIRECTORS, OWNERS AND/OR MANAGERIAL EMPLOY-
EES WITHIN THE PAST FIVE YEARS;
L. DISCLOSURE OF ANY VIOLATIONS WITHIN THE PAST FIVE YEARS OR PENDING
CHARGES CONCERNING FEDERAL, STATE OR MUNICIPAL ENVIRONMENTAL AND/OR
HEALTH LAWS, CODES, RULES AND/OR REGULATIONS; AND
M. IDENTIFY ALL WORK TO BE SUBCONTRACTED ALONG WITH ITS VALUE AND WHEN
REQUESTED BY THE CONTRACTING ENTITY, THE FIRM OR FIRMS TO WHICH THE WORK
WILL BE SUBCONTRACTED; THE APPROVAL OF THE SUBCONTRACTORS BY THE
CONTRACTING ENTITY, AS PROVIDED IN THE GENERAL CONDITIONS, SHALL BE
SUBJECT TO THE SAME EVALUATION OF RESPONSIBILITY CONTAINED WITHIN THIS
SECTION.
3. PRIOR TO A FINAL DETERMINATION THAT THE APPARENT LOWEST RESPONSIBLE
BIDDER IS NOT RESPONSIBLE, THE CONTRACTING ENTITY SHALL NOTIFY THE PARTY
OF SAME, IN WRITING, STATING THE REASONS FOR A DECLINATION, AND SETTING
FORTH A TIME, DATE AND PLACE FOR THE APPARENT LOWEST BIDDER TO APPEAR
AND BE HEARD, PRIOR TO SUCH DETERMINATION BEING MADE REGARDING ITS
RESPONSIBILITY.
IN THE EVENT OF A FINAL DETERMINATION THAT THE APPARENT LOWEST RESPON-
SIBLE BIDDER IS NOT RESPONSIBLE, OR THAT THE APPARENT LOWEST RESPONSIBLE
BIDDER FAILED TO PROVIDE THE REQUIRED INFORMATION AND THEREBY IS
DISQUALIFIED, THE NEXT LOWEST RESPONSIBLE BIDDER SHALL BECOME THE APPAR-
ENT LOWEST RESPONSIBLE BIDDER AND SHALL BE SUBJECT TO THE REQUIREMENTS
CONTAINED IN THIS SECTION.
S 220-J. CONSTRUCTION CONTRACT LOWEST RESPONSIBLE BIDDER REGISTRY. 1.
THE COMMISSIONER SHALL ESTABLISH RULES AND REGULATIONS PROVIDING FOR THE
ESTABLISHMENT OF A CENTRALIZED CONSTRUCTION CONTRACT LOWEST RESPONSIBLE
BIDDER REGISTRY. EACH CONTRACTING ENTITY, AS DEFINED IN SECTION TWO
HUNDRED TWENTY-I OF THIS ARTICLE, UPON AWARDING A CONSTRUCTION CONTRACT
PURSUANT TO COMPETITIVE BID, SHALL PROVIDE THE COMMISSIONER WITH A COPY
OF THE DOCUMENTATION SUBMITTED BY THE BIDDER UNDER THE REQUIREMENTS OF
SUCH SECTION.
2. NOTWITHSTANDING ANY OTHER PROVISION OF LAW, THE COMMISSIONER SHALL
MAKE AVAILABLE ANY AND ALL INFORMATION INCLUDED IN THE CONSTRUCTION
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CONTRACT LOWEST RESPONSIBLE BIDDER REGISTRY TO ANY INDIVIDUAL REQUESTING
SUCH IN WRITING.
S 3. This act shall take effect on the sixtieth day after it shall
have become a law.