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
                               ___________

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.