senate Bill S2137

2011-2012 Legislative Session

Defines lowest responsible bidder and unfair labor practices for purposes of the prevailing wage law for public works projects

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Archive: Last Bill Status - In Committee


  • Introduced
  • In Committee
  • On Floor Calendar
    • Passed Senate
    • Passed Assembly
  • Delivered to Governor
  • Signed/Vetoed by Governor

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Assembly Actions - Lowercase
Senate Actions - UPPERCASE
Jan 04, 2012 referred to labor
Jan 18, 2011 referred to labor

S2137 - Bill Details

Current Committee:
Senate Labor
Law Section:
Labor Law
Laws Affected:
Add §201-g, Lab L; amd §103, Gen Muni L
Versions Introduced in 2009-2010 Legislative Session:
S5013

S2137 - Bill Texts

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Defines lowest responsible bidder for purposes of the prevailing wage law to include only those who have not been found guilty of an unfair labor practice within a three year period preceding the award of a public works project in order to disqualify as the lowest responsible bidder on a public works contract those bidders who have violated certain federal or state labor laws; permits challenges to the determination of the lowest possible bidder.

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BILL NUMBER:S2137

TITLE OF BILL:

An act
to amend the labor law and the general municipal law,
in relation to the definition of lowest responsible
bidder and unfair labor practices for purposes of public works
projects

PURPOSE:

To disqualify a bidder as the lowest responsible bidder on a public work
contract where it has violated certain federal or state labor laws.

SUMMARY OF PROVISIONS:

Section 1: disqualifies a bidder from being awarded a public work
contract as the "lowest possible bidder" where it has violated any of
the following laws within the preceding two years: (a) a violation of
the prevailing wage laws under sections 220 and 231 of the Labor Law, or
(b) violation of the health and safety provisions of the Federal
Occupational and Safety Health Act, or section 27-a of the state's labor
law. Section 1 also authorizes a person, corporation or a labor union to
challenge the proposed selection of the lowest responsible bidder by
filing an application with the public entity awarding the contract. The
commissioner or chief executive officer of the public entity must
conduct a hearing and issue a written determination on the validity of
the application. If the proposed bidder is disqualified, the contract
must be awarded to the next lowest responsible bidder. Sections 2 and 3:
amend the general municipal law and the state finance law respectively
to prohibit the public owner from awarding a contract to the lowest
bidder who has violated any of the laws specified in section 1.

JUSTIFICATION:

In assessing the responsibility of a low bidder on a public works
contract, the state and municipalities have had to rely on arbitrary
definitions of accountability, reliability and good faith. Often,
contracts are awarded to bidders who are lowest responsible in financial
terms yet are negligent in terms of paying wages and the safety and
health of workers. This bill would provide guidance to municipalities
and the state to insure that public funds are awarded to low bidders who
comply with established standards of responsibility.

LEGISLATIVE HISTORY:

2010: Died in Labor Committee
2009: Died in Labor Committee
1008: Reported from Labor Committee, Died in Codes

EFFECTIVE DATE:

This act shall take effect on the first day of September next succeeding
the date on which it shall have become a law, with provisions.


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

                                  2137

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                            January 18, 2011
                               ___________

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

AN ACT to amend the labor law and the general municipal law, in relation
  to the definition of lowest responsible bidder and unfair labor  prac-
  tices for purposes of public works projects

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. The labor law is amended by adding a new section  201-g  to
read as follows:
  S  201-G.  DETERMINATION  OF  LOWEST  RESPONSIBLE  BIDDER. 1. WHENEVER
SELECTION OF THE LOWEST RESPONSIBLE BIDDER IS REQUIRED UNDER SECTION ONE
HUNDRED THREE OF THE GENERAL MUNICIPAL LAW, A PERSON, FIRM, CORPORATION,
SUCCESSOR CORPORATION, CONTRACTOR OR SUBCONTRACTOR SHALL NOT QUALIFY  AS
A RESPONSIBLE BIDDER IF IT HAS COMMITTED ANY OF THE FOLLOWING VIOLATIONS
WITHIN A THREE YEAR PERIOD PRECEDING THE AWARD OF THE CONTRACT:
  (A) A VIOLATION OF ANY PROVISION OF ARTICLE EIGHT OF THIS CHAPTER;
  (B)  A  VIOLATION  OF ANY STATE OR FEDERAL LABOR LAW INCLUDING BUT NOT
LIMITED TO OCCUPATIONAL SAFETY AND HEALTH; WAGES; CHILD LABOR;  WORKERS'
COMPENSATION;  UNEMPLOYMENT  COMPENSATION;  ORGANIZATIONAL  RIGHTS;  AND
LABOR STANDARDS;
  (C) A VIOLATION OF ANY STATE OR FEDERAL LAW RELATING TO BID  COLLUSION
OR RESTRAINT OF TRADE;
  (D) A VIOLATION OF ANY STATE OR FEDERAL ENVIRONMENTAL LAW;
  (E)  A CRIMINAL CONVICTION OF ANY STATE OR FEDERAL LAW FOR ANY CONDUCT
RELATING TO BIDDING OR CONSTRUCTION-RELATED WORK BY THE BIDDER;
  (F) AN OUTSTANDING DISQUALIFICATION FROM BIDDING ON  ANY  PUBLIC  WORK
CONTRACT; OR
  (G) A VIOLATION OF ANY STATE OR FEDERAL CIVIL RIGHTS, EMPLOYMENT DISA-
BILITY OR MINORITY PREFERENCE LAW.
  2.  THE PROVISIONS OF SUBDIVISION ONE OF THIS SECTION SHALL NOT DIMIN-
ISH THE DISCRETION OF THE AWARDING AUTHORITY TO DISQUALIFY A  BIDDER  ON

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD06863-01-1

S. 2137                             2

OTHER  GROUNDS WHICH THE AUTHORITY FINDS APPROPRIATE WHICH SHALL INCLUDE
BUT NOT BE LIMITED TO:
  (A)  LACK  OF  SUFFICIENT  EXPERTISE, PRIOR EXPERIENCE WITH COMPARABLE
PROJECTS, OR SUFFICIENT RESOURCES TO PERFORM THE CONTRACT  IN  A  TIMELY
AND COMPETENT MANNER;
  (B)  WHETHER  THE  BIDDER'S EMPLOYEES ARE PROPERLY TRAINED AND WHETHER
THE EQUIPMENT TO BE USED IS SAFE AND IN GOOD OPERATING CONDITION;
  (C) WHETHER THE BIDDER HAS SUBMITTED A BID THAT IS  MATHEMATICALLY  OR
MATERIALLY UNBALANCED;
  (D)  SUBMISSION  OF  A  BID SO MUCH LOWER THAN THE AGENCY'S ENGINEER'S
ESTIMATE THAT IT SEEMS UNLIKELY THAT THE BIDDER WILL BE ABLE TO  PERFORM
THE CONTRACT SATISFACTORILY AT THE PRICE BID; OR
  (E)  PRESENTATION  OF ANY FALSE OR MISLEADING STATEMENTS TO THE AGENCY
AWARDING THE CONTRACT IN CONNECTION WITH THE BID.
  3. NO PERSON ACTING ON BEHALF OF A BIDDER SHALL LOBBY THE CONSTRUCTING
GOVERNMENTAL ENTITY FOR THE PURPOSE OF ASSISTING SUCH BIDDER IN SECURING
A BID. NO BID SHALL INCLUDE ANY COSTS ATTRIBUTABLE TO LOBBYING.
  4. ANY PERSON, FIRM, CORPORATION, SUCCESSOR CORPORATION, LABOR  ORGAN-
IZATION, CONTRACTOR OR SUBCONTRACTOR MAY, WITHIN TEN DAYS AFTER A BID IS
ACCEPTED,  FILE  AN  APPLICATION  TO  CHALLENGE  THE DETERMINATION UNDER
SECTION ONE HUNDRED THREE OF THE GENERAL MUNICIPAL LAW THAT  THE  BIDDER
CHOSEN WAS THE LOWEST RESPONSIBLE BIDDER.  UPON RECEIPT OF SUCH APPLICA-
TION,  THE  COMMISSIONER OR CHIEF EXECUTIVE OFFICER OF THE PUBLIC ENTITY
SHALL CONDUCT A HEARING TO DETERMINE THE VALIDITY  OF  THE  APPLICATION.
NOTICE  SHALL  BE  GIVEN  TO  THE  APPLICANT  AND TO THE PROPOSED LOWEST
RESPONSIBLE BIDDER OF THE DATE, TIME AND PLACE  OF  THE  HEARING.    THE
APPLICANT  AND THE PROPOSED LOWEST RESPONSIBLE BIDDER SHALL BE GIVEN THE
OPPORTUNITY TO PRESENT EVIDENCE  AND  WITNESSES  ON  THEIR  BEHALF.  THE
COMMISSIONER  OR  CHIEF  EXECUTIVE  OFFICER  PRESIDING OVER SUCH HEARING
SHALL ISSUE A  WRITTEN  DECISION  WITH  FINDINGS  OF  FACT  WHETHER  THE
PROPOSED  LOWEST RESPONSIBLE BIDDER IS RESPONSIBLE.  SUCH CONTRACT SHALL
NOT BE AWARDED PRIOR TO SUCH DECISION.   THE  AWARDING  AUTHORITY  SHALL
NOTIFY  ALL  BIDDERS  REGARDING  THE  SELECTION  OF  ITS PROPOSED LOWEST
RESPONSIBLE BIDDER.
  S 2. Subdivision 1 of section 103 of the  general  municipal  law,  as
amended  by  section  1 of part FF of chapter 56 of the laws of 2010, is
amended to read as follows:
  1. Except as otherwise expressly provided by an act of the legislature
or by a local law adopted prior to  September  first,  nineteen  hundred
fifty-three,  all  contracts for public work involving an expenditure of
more than  thirty-five  thousand  dollars  and  all  purchase  contracts
involving  an expenditure of more than twenty thousand dollars, shall be
awarded by the appropriate officer,  board  or  agency  of  a  political
subdivision  or  of  any district therein including but not limited to a
soil conservation district, to the lowest responsible bidder  furnishing
the  required security after advertisement for sealed bids in the manner
provided by this section. In any case where a responsible bidder's gross
price is reducible by an allowance for  the  value  of  used  machinery,
equipment,  apparatus  or  tools to be traded in by a political subdivi-
sion, the gross price shall be reduced by the amount of such  allowance,
for  the  purpose of determining the low bid. In cases where two or more
responsible bidders furnishing the required  security  submit  identical
bids  as  to price, such officer, board or agency may award the contract
to any of such bidders. Such officer, board or agency may, in his or her
or its discretion, reject all bids and readvertise for new bids  in  the
manner provided by this section. In determining whether a purchase is an

S. 2137                             3

expenditure  within  the  discretionary threshold amounts established by
this subdivision, the officer, board or agency of a  political  subdivi-
sion  or  of any district therein shall consider the reasonably expected
aggregate  amount  of all purchases of the same commodities, services or
technology to be made within the twelve-month period commencing  on  the
date  of  purchase.    Purchases  of commodities, services or technology
shall not be artificially divided for  the  purpose  of  satisfying  the
discretionary  buying  thresholds  established  by  this  subdivision. A
change to or a renewal of a discretionary purchase shall not be  permit-
ted  if the change or renewal would bring the reasonably expected aggre-
gate amount of all purchases of the same commodities, services or  tech-
nology  from the same provider within the twelve-month period commencing
on the date of the first purchase to an amount greater than the  discre-
tionary  buying  threshold amount. For purposes of this section, "sealed
bids", as that term applies to purchase contracts,  shall  include  bids
submitted  in an electronic format including submission of the statement
of non-collusion required by section one hundred three-d of  this  arti-
cle,  provided  that the governing board of the political subdivision or
district, by resolution, has authorized the  receipt  of  bids  in  such
format.    Submission in electronic format may, for technology contracts
only, be required as the sole method for the submission  of  bids.  Bids
submitted in an electronic format shall be transmitted by bidders to the
receiving  device  designated  by the political subdivision or district.
Any method used to receive electronic bids  shall  comply  with  article
three of the state technology law, and any rules and regulations promul-
gated  and  guidelines  developed thereunder and, at a minimum, must (a)
document the time and date of receipt of  each  bid  received  electron-
ically;  (b)  authenticate  the  identity  of the sender; (c) ensure the
security of the information transmitted; and (d)  ensure  the  confiden-
tiality  of  the bid until the time and date established for the opening
of bids. The timely submission of an electronic bid in  compliance  with
instructions  provided for such submission in the advertisement for bids
and/or the specifications shall be the  responsibility  solely  of  each
bidder or prospective bidder. No political subdivision or district ther-
ein  shall  incur  any  liability from delays of or interruptions in the
receiving device designated for the submission and receipt of electronic
bids.   FOR PURPOSES OF  THIS  SECTION,  THE  TERM  "LOWEST  RESPONSIBLE
BIDDER" SHALL MEAN ANY PERSON, FIRM, CORPORATION, SUCCESSOR CORPORATION,
CONTRACTOR  OR SUBCONTRACTOR WHO (I) SUBMITS THE LOWEST BID FOR A PUBLIC
WORK CONTRACT AND (II)  IS  NOT  DISQUALIFIED  ON  GROUNDS  PROVIDED  IN
SECTION TWO HUNDRED ONE-G OF THE LABOR LAW.
  S  3.  Subdivision  1  of section 103 of the general municipal law, as
amended by section 2 of part FF of chapter 56 of the laws  of  2010,  is
amended to read as follows:
  1. Except as otherwise expressly provided by an act of the legislature
or  by  a  local  law adopted prior to September first, nineteen hundred
fifty-three, all contracts for public work involving an  expenditure  of
more  than  thirty-five  thousand  dollars  and  all  purchase contracts
involving an expenditure of more than twenty thousand dollars, shall  be
awarded  by  the  appropriate  officer,  board  or agency of a political
subdivision or of any district therein including but not  limited  to  a
soil  conservation district, to the lowest responsible bidder furnishing
the required security after advertisement for sealed bids in the  manner
provided  by  this  section.  In  determining  whether  a purchase is an
expenditure within the discretionary threshold  amounts  established  by
this  subdivision,  the officer, board or agency of a political subdivi-

S. 2137                             4

sion or of any district therein shall consider the  reasonably  expected
aggregate  amount  of all purchases of the same commodities, services or
technology to be made within the twelve-month period commencing  on  the
date of purchase. Purchases of commodities, services or technology shall
not  be  artificially  divided for the purpose of satisfying the discre-
tionary buying thresholds established by this subdivision. A  change  to
or  a  renewal of a discretionary purchase shall not be permitted if the
change or renewal would bring the reasonably expected  aggregate  amount
of  all  purchases  of the same commodities, services or technology from
the same provider within the twelve-month period commencing on the  date
of the first purchase to an amount greater than the discretionary buying
threshold  amount.  In any case where a responsible bidder's gross price
is reducible by an allowance for the value of used machinery, equipment,
apparatus or tools to be traded in by a political subdivision, the gross
price shall be reduced by the amount of such allowance, for the  purpose
of  determining  the  low  bid.  In  cases where two or more responsible
bidders furnishing the required security submit  identical  bids  as  to
price,  such  officer,  board or agency may award the contract to any of
such bidders. Such officer, board or agency may,  in  his,  her  or  its
discretion,  reject  all bids and readvertise for new bids in the manner
provided by this section.   FOR  PURPOSES  OF  THIS  SECTION,  THE  TERM
"LOWEST  RESPONSIBLE  BIDDER"  SHALL MEAN ANY PERSON, FIRM, CORPORATION,
SUCCESSOR CORPORATION, CONTRACTOR OR SUBCONTRACTOR WHO (A)  SUBMITS  THE
LOWEST  BID  FOR  A  PUBLIC WORK CONTRACT AND (B) IS NOT DISQUALIFIED ON
GROUNDS PROVIDED IN SECTION TWO HUNDRED ONE-G OF THE LABOR LAW.
  S 4. This act shall  take  effect  on  the  first  of  September  next
succeeding  the  date on which it shall have become a law; provided that
the amendments to subdivision 1 of section 103 of the general  municipal
law  made  by section two of this act shall be subject to the expiration
and reversion of such subdivision pursuant to section 41 of  part  X  of
chapter  62  of  the  laws  of 2003, as amended, when upon such date the
provisions of section three of this act shall take effect.

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