S T A T E O F N E W Y O R K
________________________________________________________________________
2260
2011-2012 Regular Sessions
I N A S S E M B L Y
January 14, 2011
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Introduced by M. of A. BRENNAN, REILLY, COLTON -- Multi-Sponsored by --
M. of A. CAHILL, CLARK, COOK, ENGLEBRIGHT, GALEF, GLICK, GOTTFRIED,
HOOPER, PHEFFER, SWEENEY -- read once and referred to the Committee on
Governmental Operations
AN ACT to amend the state finance law, in relation to establishing
guidelines for determining the responsibility of a bidder or subcon-
tractor
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
169 to read as follows:
S 169. GUIDELINES FOR DETERMINING THE RESPONSIBILITY OF A BIDDER OR
SUBCONTRACTOR. 1. DEFINITIONS. A. "CONTRACTING AGENCY" SHALL MEAN ANY
NEW YORK STATE AGENCY, DEPARTMENT, BOARD, BUREAU, COMMISSION, DIVISION,
OR ANY PUBLIC BENEFIT CORPORATION OR PUBLIC AUTHORITY A MAJORITY OF
WHOSE MEMBERS ARE APPOINTED BY THE GOVERNOR, PROVIDED, HOWEVER, THAT
THIS SECTION SHALL NOT BE DEEMED TO APPLY TO ANY MUNICIPAL GOVERNMENT.
B. "CONTRACT" SHALL MEAN ANY WRITTEN AGREEMENT ENTERED INTO BY A
CONTRACTING AGENCY FOR THE PROCUREMENT OR DISPOSAL OF MATERIALS,
SERVICES OR CONSTRUCTION, EXCEEDING A DOLLAR VALUE OF NOT LESS THAN TEN
THOUSAND DOLLARS.
C. "BIDDER," "CONTRACTOR" AND "SUBCONTRACTOR" SHALL MEAN A PERSON,
PARTNERSHIP, FIRM, CORPORATION OR BUSINESS ENTITY SUBMITTING A BID OR
PROPOSAL FOR, OR SUBMITTED FOR APPROVAL AS A SUBCONTRACTOR FOR A
CONTRACT BY ANY OF THE CONTRACTING AGENCIES.
D. "AFFILIATE OF THE BIDDER" SHALL MEAN A PERSON, FIRM, CORPORATION,
PARTNERSHIP OR BUSINESS ENTITY WHICH OWNS, CONTROLS, OR HAS THE ABILITY
TO CONTROL THE BIDDER OR PROPOSED SUBCONTRACTOR; OR IS OWNED BY,
CONTROLLED BY OR IS ABLE TO BE CONTROLLED BY THE BIDDER OR PROPOSED
SUBCONTRACTOR; OR IS NOT A BIDDER OR SUBCONTRACTOR BUT WHICH IS OWNED
BY, CONTROLLED BY OR IS ABLE TO BE CONTROLLED BY A PERSON, FIRM, CORPO-
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD04775-01-1
A. 2260 2
RATION, PARTNERSHIP, BUSINESS ENTITY OR PROPRIETORSHIP WHICH OWNS,
CONTROLS, OR HAS THE ABILITY TO CONTROL THE BIDDER OR PROPOSED SUBCON-
TRACTOR.
2. IN DETERMINING THE RESPONSIBILITY OF A BIDDER, CONTRACTOR OR A
SUBCONTRACTOR, ALL CONTRACTING AGENCIES SHALL GIVE DUE CONSIDERATION TO
ANY CREDIBLE EVIDENCE OR RELIABLE INFORMATION THAT THE PAST OR CURRENT
RECORD OF A BIDDER, CONTRACTOR OR PROPOSED SUBCONTRACTOR INCLUDES ANY OF
THE FOLLOWING:
A. LACK OF ADEQUATE EXPERTISE OR FINANCIAL RESOURCES TO PERFORM THE
WORK OF THE CONTRACT OR SUBCONTRACT IN A TIMELY, COMPETENT, AND ACCEPTA-
BLE MANNER. EVIDENCE OF SUCH A LACK OF ABILITY TO PERFORM MAY INCLUDE,
BUT SHALL NOT BE LIMITED TO: EVIDENCE OF SUSPENSION OR REVOCATION FOR
CAUSE OF ANY PROFESSIONAL LICENSE OF ANY DIRECTOR OR OFFICER, OR ANY
HOLDER OF FIVE PERCENT OR MORE OF THE BIDDER'S OR PROPOSED SUBCONTRAC-
TOR'S STOCK OR EQUITY; FAILURE TO SUBMIT SATISFACTORY EVIDENCE OF INSUR-
ANCE, SURETY BONDS OR FINANCIAL RESPONSIBILITY; OR A HISTORY OF TERMI-
NATION OF PRIOR CONTRACTS FOR CAUSE. NOTHING IN THIS SECTION SHALL BE
CONSTRUED TO SUPERSEDE ANY OF THE PROVISIONS OF SECTION THREE HUNDRED
THIRTEEN OF THE EXECUTIVE LAW OR SECTION ONE HUNDRED THIRTY-NINE-I OF
THIS CHAPTER.
B. CRIMINAL CONDUCT IN CONNECTION WITH GOVERNMENT CONTRACTS, OR THE
CONDUCT OF ANY BUSINESS ACTIVITIES INVOLVING:
(1) A PATTERN OF RACKETEERING, EXTORTION, OBSTRUCTION OF JUSTICE, OR
OTHER COMPARABLE CRIMES AS DEFINED IN THE PENAL LAW OR IN FEDERAL STAT-
UTE; OR
(2) ORGANIZED CRIMINAL ACTIVITY, ENTERPRISE CORRUPTION, BRIBERY,
FRAUD, BID-RIGGING, EMBEZZLEMENT, OR OTHER COMPARABLE CRIMES AS DEFINED
IN THE PENAL LAW OR IN FEDERAL STATUTE.
EVIDENCE OF SUCH CONDUCT MAY INCLUDE A JUDGMENT OF CONVICTION, PENDING
CRIMINAL INDICTMENT OR FORMAL GRANT OF IMMUNITY IN CONNECTION WITH A
CRIMINAL PROSECUTION OF THE BIDDER OR PROPOSED SUBCONTRACTOR, ANY DIREC-
TOR OR OFFICER, OR ANY HOLDER OF FIVE PERCENT OR MORE OF THE SHARES OR
EQUITY OF THE BIDDER OR PROPOSED SUBCONTRACTOR, OR ANY AFFILIATE OF THE
BIDDER OR THE PROPOSED SUBCONTRACTOR.
C. WILLFUL, REPEATED SERIOUS VIOLATIONS OF THE FEDERAL OCCUPATIONAL
HEALTH AND SAFETY ACT, AND/OR EVIDENCE OF GRAVE AND SUBSTANTIAL DISRE-
GARD FOR EMPLOYEE OR PUBLIC SAFETY.
D. DETERMINATION UNDER THE HUMAN RIGHTS LAW, THE LABOR LAW OR THE
WORKERS' COMPENSATION LAW OF:
(1) UNLAWFUL DISCRIMINATORY PRACTICE AS DEFINED IN THE HUMAN RIGHTS
LAW;
(2) WILLFUL NONCOMPLIANCE WITH THE PREVAILING WAGE AND SUPPLEMENTS
PAYMENT REQUIREMENTS OF THE LABOR LAW;
(3) ANY OTHER LABOR LAW VIOLATIONS, INCLUDING, BUT NOT LIMITED TO,
CHILD LABOR VIOLATIONS, FAILURE TO PAY WAGES, OR UNEMPLOYMENT INSURANCE
TAX DELINQUENCIES;
(4) ANY VIOLATION OF THE WORKERS' COMPENSATION LAW, INCLUDING, BUT NOT
LIMITED TO, THE FAILURE OF THE BIDDER OR PROPOSED SUBCONTRACTOR TO
PROVIDE PROOF OF WORKERS' COMPENSATION DISABILITY BENEFITS COVERAGE; OR
(5) FAILURE TO PROVIDE ADEQUATE LEVELS OF WORKERS' COMPENSATION DISA-
BILITY BENEFITS COVERAGE IN THE PAST FIVE YEARS.
E. CRIMINAL CONDUCT INVOLVING VIOLATIONS OF THE ENVIRONMENTAL CONSER-
VATION LAW OR OTHER FEDERAL OR STATE ENVIRONMENTAL STATUTES.
F. THE FAILURE OF A BIDDER OR CONTRACTOR TO DEMONSTRATE GOOD FAITH
EFFORTS TO COMPLY WITH APPLICABLE FEDERAL OR STATE STATUTES AND REGU-
LATIONS REQUIRING EFFORTS TO SOLICIT AND UTILIZE MINORITY-OWNED AND
A. 2260 3
WOMEN-OWNED BUSINESS ENTERPRISES AND DISADVANTAGED BUSINESS ENTERPRISES
AS POTENTIAL SUBCONTRACTORS IN CONNECTION WITH A PENDING BID FOR THE
PERFORMANCE OF A FEDERALLY AIDED OR STATE FUNDED OR ASSISTED PROJECT
SUBJECT TO SUCH PROJECT'S STATUTORY AND REGULATORY REQUIREMENTS.
G. THE FAILURE OF A BIDDER TO COMPLY WITH FEDERAL AND STATE EQUAL
OPPORTUNITY REQUIREMENTS.
H. A RECORD WITHIN THE LAST FIVE YEARS OF FAILURE TO PERFORM OR OF
UNSATISFACTORY PERFORMANCE IN ACCORDANCE WITH THE TERMS OF ONE OR MORE
CONTRACTS; PROVIDED THAT FAILURE TO PERFORM OR UNSATISFACTORY PERFORM-
ANCE CAUSED BY ACTS BEYOND THE CONTROL OF THE CONTRACTOR SHALL NOT BE
CONSIDERED.
I. CONVICTION UNDER STATE OR FEDERAL ANTITRUST STATUTES ARISING OUT OF
THE SUBMISSION OF BIDS OR PROPOSALS.
J. ANY OTHER GROUNDS OR CIRCUMSTANCES CONCERNING THE PRESENT RESPONSI-
BILITY OF A CONTRACTOR OR SUBCONTRACTOR INCLUDING, BUT NOT LIMITED TO,
SUBMISSION TO A CONTRACTING AGENCY OF A FALSE OR MISLEADING STATEMENT ON
A UNIFORM QUESTIONNAIRE, PROPOSAL OR OTHER OFFICIAL SUBMISSION.
K. ANY OTHER FACTORS CONSIDERED BY THE CONTRACTING AGENCIES TO BEAR
UPON RESPONSIBILITY, INCLUDING BUT NOT LIMITED TO, ANY MITIGATING
FACTORS BROUGHT TO THE AGENCY'S ATTENTION BY THE BIDDER OR PROPOSED
SUBCONTRACTOR.
3. ANY BIDDER, CONTRACTOR OR SUBCONTRACTOR WHO HAS BEEN DETERMINED,
PURSUANT TO THIS SECTION, NOT TO BE A RESPONSIBLE BIDDER, SHALL BE GIVEN
REASONABLE NOTICE BY THE CONTRACTING AGENCY BY CERTIFIED MAIL WITH
RETURN RECEIPT REQUESTED AND A REASONABLE OPPORTUNITY TO BE HEARD. A
BIDDER, CONTRACTOR OR SUBCONTRACTOR DECLARED NOT TO BE RESPONSIBLE MAY,
WITHIN TEN DAYS OF BEING HEARD, APPEAL THE DECISION TO THE HEAD OF THE
CONTRACTING AGENCY WHO WILL MAKE A FINAL DETERMINATION WITHIN TEN DAYS.
S 2. This act shall take effect on the one hundred twentieth day after
it shall have become a law.