senate Bill S4121

2011-2012 Legislative Session

Establishes the "Public Construction Savings Act"

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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 local government
Mar 21, 2011 referred to local government

S4121 - Bill Details

See Assembly Version of this Bill:
A7855
Current Committee:
Law Section:
General Municipal Law
Laws Affected:
Amd §103, Gen Muni L; add §148, St Fin L; amd §222, Lab L

S4121 - Bill Texts

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Establishes the "Public Construction Savings Act"; establishes situations where a project labor agreement is unnecessary to receive an award of a contract where they are the lowest bid.

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BILL NUMBER:S4121

TITLE OF BILL:
An act
to amend the general municipal law, the state finance law,
and the labor law, in relation to project
labor agreements for public work projects

PURPOSE OF THE BILL:
To increase the options of
public entities
seeking contracts for public improvements.

SUMMARY OF SPECIFIC PROVISIONS:
Section 1 - would establish the "Public Construction Savings Act".

Sections 2 and 3 - would amend subdivision 1 of section 103 of the
General Municipal Law, (including subdivision 1 that is effective
until June 1, 2013 and the subdivision that becomes effective June
1,2013) to provide that when a municipality enters into a project
labor agreement, participation in the agreement is optional for
bidders, who can choose to bid either with or without participation
in the agreement, and the municipality shall pick the lowest bid
consistent with other laws and regulations.

Section 4 - amends the State Finance Law to add a new section 148
which provides that a contractor bidding on a request for proposal
issued by an officer, board, department, commission or commissions
for the erection, construction or alteration of buildings where such
request contains the option for participation in a project labor
agreement, may submit a bid that does not include such participation
and the bid shall be awarded to the contractor with the low bid
consistent with other laws, regardless of whether participation was
included in the bid.

Section 5 - amends paragraph (a) of subdivision 2 of section 222 of
the Labor Law to provide that participation in a project labor
agreement may not be required, but may be optional at the choice of
the public entity seeking bids for a project, that as part of the
bid, contractors shall be notified of the existence of a project
labor agreement and their option to participate in such agreement,
and that whether a bid includes participation in the agreement or
not, the contract will be awarded to the low bid.

Section 6 - provides that this act shall take effect 60 days after it
shall have become a law, and shall control all contracts advertised
or solicited for bid on or after the effective date of the act under
provisions of any law requiring contracts to be let pursuant to
provisions of law amended by this act, provided that 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 subdivision (a) of
section 41 of the 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.


EXISTING LAW:
Section 222 of the Labor Law authorizes a public entity
to require a PLA where it determines to do so in accordance with
specified statutory criteria. The law provides that where a PLA is
required, the public works project will not be subject to the
separate bidding requirements pursuant to the Wicks Law, but instead
will be subject to the restrictions of the PLA, the contractor
providing a labor and material bond and a performance bond, and
contractor and subcontractor participation in apprentice training
programs for the trades they employ.

JUSTIFICATION:
Current law acts to discourage true arms-length bidding
to obtain the best possible prices on public contracts. Assumptions
are made that bids will be lower with or without inclusion of project
labor agreements without allowing bidding to actually determine what
is the best and most cost effective choice for projects. Jobs bid
without participation in the PLA would, of course, be required to
comply with any laws, such as the Wicks Law, that would be waived
with participation in the PLA. This legislation would allow a bidder
to submit a responsive bid with or without a PLA and would require
the public owner to award the job to the lowest bidder, regardless of
whether such bidder has included a PLA in their proposal. In this
way, taxpayers are assured that they are receiving the lowest price
for needed public construction.

FISCAL IMPLICATIONS:
This bill will result in millions of dollars of
cost-savings to the state, school districts and municipalities.

PRIOR LEGISLATIVE HISTORY:
This is a new bill.

EFFECTIVE DATE:
This act shall take effect 60 days after it shall have
become a law, and shall control all contracts advertised or solicited
for bid on or after the effective date of the act under provisions of
any law requiring contracts to be let pursuant to provisions of law
amended by this act, provided that 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 subdivision (a) of section 41 of the 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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                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  4121

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                             March 21, 2011
                               ___________

Introduced  by  Sen.  RANZENHOFER -- read twice and ordered printed, and
  when printed to be committed to the Committee on Local Government

AN ACT to amend the general municipal law, the state  finance  law,  and
  the labor law, in relation to project labor agreements for public work
  projects

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

  Section 1. This act shall be known and may be  cited  as  the  "public
construction savings act".
  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

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD08866-02-1

S. 4121                             2

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.  A CONTRACTOR BIDDING ON A REQUEST  FOR  PROPOSAL  ISSUED  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, OFFERING AN OPTIONAL PROJECT LABOR AGREEMENT PURSUANT TO PARA-
GRAPH  (A)  OF  SUBDIVISION TWO OF SECTION TWO HUNDRED TWENTY-TWO OF THE
LABOR LAW, MAY SUBMIT A BID THAT DOES NOT INCLUDE A PROJECT LABOR AGREE-
MENT, AND SUCH CONTRACT FOR PUBLIC WORK SHALL BE AWARDED TO THE CONTRAC-
TOR WITH THE LOW BID REGARDLESS OF WHETHER A PROJECT LABOR AGREEMENT WAS
INCLUDED IN A CONTRACTOR'S BID PROPOSAL.
  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

S. 4121                             3

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-
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.    A  CONTRACTOR  BIDDING  ON  A  REQUEST  FOR
PROPOSAL  ISSUED  BY THE APPROPRIATE OFFICER, BOARD OR AGENCY OF A POLI-
TICAL SUBDIVISION OR OF ANY DISTRICT THEREIN, INCLUDING BUT NOT  LIMITED
TO  A  SOIL  CONSERVATION  DISTRICT,  OFFERING AN OPTIONAL PROJECT LABOR
AGREEMENT PURSUANT TO PARAGRAPH (A) OF SUBDIVISION TWO  OF  SECTION  TWO
HUNDRED  TWENTY-TWO  OF  THE LABOR LAW,   MAY SUBMIT A BID THAT DOES NOT
INCLUDE A PROJECT LABOR AGREEMENT, AND SUCH  CONTRACT  FOR  PUBLIC  WORK
SHALL BE AWARDED TO THE CONTRACTOR WITH THE LOW BID REGARDLESS OF WHETH-
ER  A  PROJECT  LABOR  AGREEMENT  WAS  INCLUDED  IN  A  CONTRACTOR'S BID
PROPOSAL.
  S 4. The state finance law is amended by adding a new section  148  to
read as follows:
  S  148.  PROJECT LABOR AGREEMENTS.   A CONTRACTOR BIDDING ON A REQUEST
FOR PROPOSAL ISSUED BY AN  OFFICER,  BOARD,  DEPARTMENT,  COMMISSION  OR
COMMISSIONS  FOR  THE  ERECTION, CONSTRUCTION OR ALTERATION OF BUILDINGS
FOR THE STATE, OFFERING AN OPTIONAL PROJECT LABOR AGREEMENT PURSUANT  TO
PARAGRAPH  (A)  OF  SUBDIVISION TWO OF SECTION TWO HUNDRED TWENTY-TWO OF
THE LABOR LAW, MAY SUBMIT A BID THAT DOES NOT INCLUDE  A  PROJECT  LABOR
AGREEMENT  AND  SUCH  CONTRACT  FOR  PUBLIC WORK SHALL BE AWARDED TO THE
CONTRACTOR WITH THE LOW BID REGARDLESS OF WHETHER A PROJECT LABOR AGREE-
MENT WAS INCLUDED IN A CONTRACTOR'S BID PROPOSAL.
  S 5. Paragraph (a) of subdivision 2 of section 222 of the  labor  law,
as  added by section 18 of part MM of chapter 57 of the laws of 2008, is
amended to read as follows:
  (a) Any agency, board, department, commission or officer of the  state
of  New  York,  or  of  any  political subdivision thereof as defined in
section one hundred of the general municipal law, municipal  corporation
as  defined in section sixty-six of the general construction law, public
benefit corporation, or local or state authority as defined  in  section
two  of  the  public authorities law having jurisdiction over the public
work may NOT  require[a  contractor  awarded  a  contract,  subcontract,
lease,  grant,  bond, covenant or other agreement for a project to enter

S. 4121                             4

into], BUT MAY OFFER AS AN OPTION,  PARTICIPATION  IN  a  project  labor
agreement  [during and for the work involved with such project when such
requirement is], AND SHALL NOTIFY  EACH  CONTRACTOR  OF  THE  OPTION  TO
INCLUDE  OR  NOT INCLUDE PARTICIPATION IN A PROJECT LABOR AGREEMENT WITH
ITS BID, AS part of the agency, board, department, commission or officer
of the state of New York, political subdivision, municipal  corporation,
public  benefit corporation or local or state authority having jurisdic-
tion over the public work request for proposals for the project and when
the agency, board, department, commission or officer of the state of New
York,  political  subdivision,  municipal  corporation,  public  benefit
corporation  or  local  or  state authority having jurisdiction over the
public work determines that its interest in obtaining the best  work  at
the  lowest possible price, preventing favoritism, fraud and corruption,
and other considerations such as the impact of delay, the possibility of
cost savings advantages, and any local history of labor unrest, are best
met by requiring a project labor agreement,   BUT  SHALL  IN  ANY  EVENT
AWARD  THE  SUBCONTRACT, LEASE, CONTRACT, GRANT, BOND, COVENANT OR OTHER
AGREEMENT FOR A PROJECT TO THE CONTRACTOR WITH THE LOW BID REGARDLESS OF
WHETHER A PROJECT LABOR AGREEMENT WAS INCLUDED IN THE  CONTRACTOR'S  BID
PROPOSAL.
  S  6.  This  act  shall take effect on the sixtieth day after it shall
have become a law, and shall control all contracts advertised or  solic-
ited  for  bid  on  or  after  the  effective date of this act under the
provisions of  any  law  requiring  contracts  to  be  let  pursuant  to
provisions of law amended by this act; provided, however that the amend-
ments  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 rever-
sion of such subdivision pursuant to subdivision (a) of  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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