S T A T E O F N E W Y O R K
________________________________________________________________________
5198
2009-2010 Regular Sessions
I N A S S E M B L Y
February 11, 2009
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Introduced by M. of A. BRODSKY -- read once and referred to the Commit-
tee on Energy
AN ACT to amend the public service law, in relation to service contracts
entered into by a regulated electric and gas utility
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Legislative findings and intent. The employees of New York
state's electric and gas utilities provide a wide variety of essential
services that enhance the quality of life for the people of this state.
It is the public policy of this state, expressed in the public service
law, that these services be provided in the most reliable, cost effi-
cient, and effective manner, with the highest possible standards and the
least threat of corruption. This can best be achieved through the
employment of regulated utility employees who have a record of success-
ful, high quality, professional maintenance, clerical, and other techni-
cal work. Therefore, it is the intent of this legislature that profes-
sional, maintenance, clerical, and technical duties be performed by
employees of a regulated utility unless, due to special and particular
circumstances, they must be performed by a private contractor or unless
such duties have customarily and historically been performed by such
contractors.
S 2. Article 9 and sections 150, 151, 152, 153 and 154 of the public
service law, article 9 and sections 151, 152 and 154, as renumbered by
chapter 792 of the laws of 1930, are renumbered article 10 and sections
155 to 159, respectively, and a new article 9 is added to read as
follows:
ARTICLE 9
SUBCONTRACTING
SECTION 150. CONTRACTS FOR PROFESSIONAL, MAINTENANCE, CLERICAL, OR TECH-
NICAL SERVICES.
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD08219-01-9
A. 5198 2
S 150. CONTRACTS FOR PROFESSIONAL, MAINTENANCE, CLERICAL, OR TECHNICAL
SERVICES. 1. AS USED IN THIS ARTICLE, THE FOLLOWING TERMS HAVE THE
FOLLOWING MEANINGS, UNLESS OTHERWISE SPECIFIED:
(A) "UTILITY" MEANS AN ELECTRIC CORPORATION, A GAS CORPORATION, OR AN
ELECTRIC AND GAS CORPORATION AS DEFINED IN SECTION TWO OF THIS CHAPTER.
(B) "CONTRACT" MEANS AN ENFORCEABLE AGREEMENT, ENTERED INTO BY A
CONTRACTOR AND THE UTILITY, WHICH EXCEEDS TWO HUNDRED FIFTY THOUSAND
DOLLARS. A SINGLE CONTRACT WHICH IS DIVIDED INTO SEPARATE CONTRACTS
SOLELY TO AVOID THE APPLICATION OF THIS ARTICLE SHALL BE DEEMED A SINGLE
CONTRACT FOR PURPOSES OF THIS ARTICLE.
(C) "CONTRACTOR" MEANS ANY PERSON, PARTNERSHIP, FIRM, CORPORATION,
ASSOCIATION, LIMITED LIABILITY COMPANY, OR OTHER ENTITY RENDERING OR
PROVIDING PROFESSIONAL, MAINTENANCE, CLERICAL, OR TECHNICAL SERVICES
PURSUANT TO A CONTRACT WITH THE UTILITY.
(D) "SERVICES" MEANS ANY PROFESSIONAL, MAINTENANCE, CLERICAL, OR TECH-
NICAL SERVICES CURRENTLY PERFORMED BY MEMBERS OF THE PROFESSIONAL, MAIN-
TENANCE, CLERICAL, AND TECHNICAL BARGAINING UNIT OF THE UTILITY OR WHICH
COME WITHIN THE SCOPE OF THE PROFESSIONAL PRACTICE OF THE MEMBERS OF
SUCH BARGAINING UNIT.
(E) "CHANGE ORDER" MEANS A WRITTEN ORDER BY A UTILITY DIRECTING THE
CONTRACTOR TO MAKE CHANGES IN A CONTRACT.
(F) "CONTRACT MODIFICATION" MEANS ANY WRITTEN ALTERATION TO SPECIFICA-
TIONS, DELIVERY POINT, RATE OF DELIVERY, PERIOD OF PERFORMANCE, PRICE,
QUALITY, OR OTHER PROVISIONS OF ANY CONTRACT ACCOMPLISHED BY MUTUAL
ACTION OF THE PARTIES TO THE CONTRACT.
2. GUIDELINES FOR CONTRACTING FOR SERVICES. NO CONTRACT WITH A
CONTRACTOR FOR SERVICES SHALL BE ENTERED INTO BY A UTILITY UNLESS
CONTRACTING FOR SUCH SERVICES IS:
(A) COST EFFECTIVE WHEN COMPARED TO THE COST OF HAVING A UTILITY
PERFORM THE WORK; OR
(B) REQUIRED FOR A SHORT DURATION, MAKING IT IMPRACTICAL TO HIRE
BARGAINING UNIT EMPLOYEES TO PERFORM THE SERVICE; OR
(C) REQUIRED FOR SPECIAL EXPERTISE NOT CURRENTLY AVAILABLE IN THE
BARGAINING UNIT; OR
(D) REQUIRED DUE TO AN URGENT NEED SUCH THAT THE DELAY IN HIRING
EMPLOYEES WOULD FRUSTRATE THE PUBLIC INTEREST; OR
(E) REQUIRED TO AVOID A CONFLICT OF INTEREST; OR
(F) OTHERWISE REQUIRED TO BE SO CONTRACTED; OR
(G) IN COMPLIANCE WITH THE UTILITY'S AFFIRMATIVE ACTION EFFORTS AND
WILL NOT CAUSE THE UTILITY TO FAIL TO MEET ITS AFFIRMATIVE ACTION GOALS.
A CONTRACTOR MUST ALSO MEET OR EXCEED THE UTILITY'S GOALS FOR AFFIRMA-
TIVE ACTION; OR
(H) IN COMPLIANCE WITH THE REQUIREMENTS OF APPLICABLE STATE, LOCAL,
AND FEDERAL LAW.
3. IN DETERMINING IF A CONTRACT IS COST EFFECTIVE, THE UTILITY SHALL
PERFORM A COST BENEFIT ANALYSIS WHICH SHALL EVALUATE, BUT NOT BE LIMITED
TO, THE FOLLOWING FACTORS:
(A) REIMBURSEMENT FROM OTHER SOURCES;
(B) BOTH THE DIRECT AND INDIRECT COSTS OF PERFORMING THE WORK;
(C) WHETHER OR NOT THE CONTRACTOR PROVIDES WAGES AND SUPPLEMENTS TO
ITS EMPLOYEES WHICH ARE COMPARABLE TO THOSE PAID TO SIMILAR EMPLOYEES
PERFORMING SIMILAR WORK IN THE GEOGRAPHIC AREA WHERE THE WORK IS TO BE
PROVIDED. A CONTRACT MAY NOT BE CONSIDERED COST EFFECTIVE IF SUCH WAGES
AND SUPPLEMENTS ARE SUBSTANTIALLY BELOW THOSE CUSTOMARILY PAID IN THE
AREA;
(D) THE QUALITY OF SERVICE BEING PROVIDED.
A. 5198 3
4. REVIEW OF CONTRACTS FOR SERVICES. (A) PRIOR TO EXECUTING A CONTRACT
FOR SERVICES, A UTILITY SHALL PREPARE A SPECIFIC STATEMENT WHICH SETS
FORTH THE OBJECTIVE DATA SUPPORTING THE REASONS WHY THE PROPOSED
CONTRACT MEETS THE REQUIREMENTS SET FORTH IN SUBDIVISION TWO OF THIS
SECTION.
(B) (1) PRIOR TO THE SCHEDULED AWARD OF A CONTRACT FOR SERVICES, A
UTILITY SHALL PROVIDE TO THE EMPLOYEE ORGANIZATION THAT REPRESENTS UTIL-
ITY EMPLOYEES WHO WOULD OTHERWISE PERFORM SUCH SERVICES WITH COPIES OF
THE STATEMENT RENDERED PURSUANT TO PARAGRAPH (A) OF THIS SUBDIVISION AND
THE PROPOSED CONTRACT SO THAT SUCH EMPLOYEE ORGANIZATION SHALL HAVE AT
LEAST FIFTEEN DAYS TO OBJECT TO THE PROPOSED CONTRACT. AN EMPLOYEE
ORGANIZATION WHICH PROVIDES TIMELY WRITTEN NOTICE OF OBJECTION AND THE
REASONS THEREFOR SHALL, UNLESS THE UTILITY AGREES IN WRITING TO WITHDRAW
THE PROPOSED CONTRACT, BE PERMITTED TO BE HEARD BY THE COMMISSION ON ITS
OBJECTIONS PRIOR TO THE AWARD OF THE CONTRACT. WITHIN FIFTEEN DAYS OF
RECEIPT OF ANY SUCH OBJECTIONS, THE COMMISSION, AFTER CONSIDERING THE
OBJECTIONS OF THE EMPLOYEE ORGANIZATION, SHALL NOTIFY THE EMPLOYEE
ORGANIZATION WHETHER THE UTILITY WILL WITHDRAW THE PROPOSED CONTRACT OR
ENTER INTO THE CONTRACT. IF THE UTILITY DECIDES TO ENTER INTO THE
CONTRACT, AND THE EMPLOYEE ORGANIZATION STILL BELIEVES THAT THE CONTRACT
IS IN VIOLATION OF THE GUIDELINES IN SUBDIVISION TWO OF THIS SECTION,
THE EMPLOYEE ORGANIZATION MAY FORWARD ITS COMPLAINT TO THE COMMISSION
WITHIN FIVE DAYS OF RECEIPT OF THE COMMISSION'S NOTIFICATION. BEFORE
APPROVING SUCH CONTRACT, THE COMMISSION SHALL CONSIDER THE EMPLOYEE
ORGANIZATION'S COMPLAINT, AND SHALL NOT APPROVE SUCH CONTRACT IF IT
BELIEVES SUCH COMPLAINT IS VALID. THE COMMISSION SHALL NOTIFY THE
EMPLOYEE ORGANIZATION OF ITS DECISION TO EITHER APPROVE OR DISAPPROVE
THE CONTRACT. IF THE COMMISSION APPROVES THE CONTRACT, THE EMPLOYEE
ORGANIZATION, IF IT HAS COMPLIED WITH THE PROVISIONS OF THIS SECTION,
SHALL HAVE THE RIGHT TO BRING A PROCEEDING PURSUANT TO ARTICLE SEVENTY-
EIGHT OF THE CIVIL PRACTICE LAW AND RULES TO DETERMINE WHETHER THE
APPROVAL WAS IN ACCORDANCE WITH THE PROVISIONS OF THIS SECTION. IN
CARRYING OUT ITS DUTIES UNDER THIS SECTION, THE COMMISSION SHALL FORM AN
ADVISORY BOARD, WHICH SHALL CONSIST OF REPRESENTATIVES OF THE STATE
GOVERNMENT, EMPLOYEE ORGANIZATIONS, AND THE PUBLIC.
(2) NOTWITHSTANDING THE PROVISIONS CONTAINED WITHIN SUBPARAGRAPH ONE
OF THIS PARAGRAPH, THE EMPLOYEE ORGANIZATION MAY BE PROVIDED LESS THAN
THE REQUIRED FIFTEEN DAYS TO OBJECT TO THE PROPOSED CONTRACT WHEN THE
CONTRACT IS REQUIRED TO RESPOND TO AN EMERGENCY AS DEFINED IN PARAGRAPH
(D) OF SUBDIVISION TWO OF THIS SECTION.
5. CHANGE ORDERS AND CONTRACT MODIFICATIONS. IF A UTILITY INTENDS TO
CHANGE, BY USE OF A CHANGE ORDER OR CONTRACT MODIFICATION, A CONTRACT
FOR SERVICES, AND SUCH CHANGE RESULTS IN CAUSING THE AMOUNT OF THE
CONTRACT TO EXCEED ONE HUNDRED TWENTY-FIVE PERCENT OF THE ORIGINAL
CONTRACT AMOUNT, THEN APPROVAL OF SUCH CHANGES SHALL BE SUBJECT TO THE
PROVISIONS OF SUBDIVISION FOUR OF THIS SECTION.
S 3. This act shall take effect on the first of April next succeeding
the date on which it shall have become a law.