Senate Bill S3507

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

                                  3507

                       2009-2010 Regular Sessions

                            I N  S E N A T E

                             March 20, 2009
                               ___________

Introduced  by  Sen.  SAVINO -- read twice and ordered printed, and when
  printed to be committed to the Committee on  Energy  and  Telecommuni-
  cations

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
              

S. 3507                             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.

S. 3507                             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.