senate Bill S5149F

2011-2012 Legislative Session

Relates to labor performed under certain public work contracts

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Archive: Last Bill Status - Passed Senate


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

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Actions

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Assembly Actions - Lowercase
Senate Actions - UPPERCASE
Jun 22, 2012 referred to codes
Jun 21, 2012 delivered to assembly
passed senate
ordered to third reading cal.1528
committee discharged and committed to rules
Jun 15, 2012 print number 5149f
amend and recommit to finance
Jun 12, 2012 print number 5149e
Jun 12, 2012 amend and recommit to finance
May 03, 2011 referred to labor
Jun 05, 2012 reported and committed to finance
Apr 09, 2012 print number 5149d
amend and recommit to labor
Mar 06, 2012 print number 5149c
amend (t) and recommit to labor
Jan 04, 2012 referred to labor
Jun 24, 2011 recommitted to rules
Jun 21, 2011 ordered to third reading cal.1473
committee discharged and committed to rules
Jun 17, 2011 print number 5149b
amend and recommit to labor
May 11, 2011 print number 5149a
amend and recommit to labor

Votes

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Jun 21, 2012 - Rules committee Vote

S5149F
17
1
committee
17
Aye
1
Nay
6
Aye with Reservations
0
Absent
1
Excused
0
Abstained
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Jun 5, 2012 - Labor committee Vote

S5149D
10
0
committee
10
Aye
0
Nay
5
Aye with Reservations
0
Absent
1
Excused
0
Abstained
show committee vote details

Jun 21, 2011 - Rules committee Vote

S5149B
15
7
committee
15
Aye
7
Nay
2
Aye with Reservations
0
Absent
0
Excused
0
Abstained
show committee vote details

Bill Amendments

Original
A
B
C
D
E
F (Active)
Original
A
B
C
D
E
F (Active)

S5149 - Bill Details

See Assembly Version of this Bill:
A9371C
Current Committee:
Law Section:
Labor Law
Laws Affected:
Amd §220, Lab L; add §148, St Fin L; add §103-h, Gen Mun i L
Versions Introduced in 2011-2012 Legislative Session:
A9371

S5149 - Bill Texts

view summary

Relates to labor performed under certain public work contracts; defines "job order contract" as certain competitive bid, indefinite quantity, fixed price, multi-task contracts; provides that such contracts shall have a defined scope of work and detailed description of such work; provides that such information shall be filed with the fiscal officer before soliciting for bids; provides that the cost of a job order contract may not exceed $500,000.

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BILL NUMBER:S5149

TITLE OF BILL:
An act
to amend the labor law, the general municipal law, the state finance law
and the education law, in relation to advertisements for bids

PURPOSE:
To better ensure integrity and accuracy in the bidding
process by ensuring defined bid specifications are included in
projects funded by taxpayer dollars.

SUMMARY OF PROVISIONS:

Sections 1 & 2 of the bill amend the labor law, clarifying that if the
fiscal officer cannot determine the specific schedules or wages of
the workers based on the specifications for a public work contract,
then the fiscal officer must reject any contract associated with that
specific advertisement for bids.

Sections 3 & 4 of the bill amend subdivision 1 of the general
municipal law to require that all bids for a public work contract
state a fixed dollar amount.

Sections 5 & 6 of the bill amend subdivision 2 of the general
municipal law to require that the bid advertisement specifically
describe the nature and type of work to be performed.

Section 7 of the bill amends section 135 of the state finance law to
require that the specifications for a contract specifically describe
the nature and type of work to be performed and that the bids
submitted state a fixed dollar amount.

Section 8 of the bill amends section 161 of the state finance law to
require the State Procurement Council to consult and advise the
Commissioner of the Office of General Services on the use of job
order contracting with respect to public work projects.

Sections 9 and 10 of the bill amend section 2590-p of the education
law to require that each project for facilities included in the
five-year capital plan for the New York City Community School
District specifically describe the nature and type of work to be
performed and that the estimated costs be for a fixed-dollar amount.

EFFECTS OF PRESENT LAW WHICH THIS BILL WOULD ALTER:

Subdivision 3 of section 220 of the labor law requires the fiscal
officer to determine the schedule of prevailing wages and supplements
required to be paid on a public work contract and also requires that
the schedule be attached to the specifications for the contract.

The current law relating to the advertisement, specifications and bids
for public work does not require the bidder to state a fixed price
for its work in its bid.

JUSTIFICATION:


The practice of job order contracting on public work projects thwarts
the purpose of New York's competitive bidding laws. A job order
contract is an indefinite quantity contract for construction,
renovation or repair work.
It is usually a multi-year contract containing ambiguous project
descriptions that do not require a contractor to submit a bid for a
fixed dollar amount. Instead, the bidders are informed about a range
of tasks that mayor may not be performed under the contract, which
has a minimum to maximum value of its worth. The contractors then use
a job order contracting book to bid on a scale, which is used to
determine the payment of each separate project that comes up under
the contract. The bidders do not know what specific type of work they
are getting involved with and cannot, therefore, properly ascertain
how much the project will cost them. If the unit bid is too low and
they turn out to be underpaid cost-saving measures could become
necessary; corners might be cut on these projects which would negate
the very purpose of public work.

Job order contracting puts potential bidders in the untenable position
of having to submit a proposed contract price without full knowledge
of their responsibilities under the contract. This can discourage
certain contractors from bidding, or deny them a sufficient
opportunity to estimate their lowest possible bid. These consequences
violate one of the central purposes of the state's competitive bidder
laws. The New York Court of Appeals has recognized that competitive
bidding laws are intended to protect the public treasury by obtaining
the best work at the lowest possible price. Associate Builders and
Contractors, Inc. v. City of Rochester, 67 N.Y.2d 854(1986). By
requiring specific descriptions of the nature and type of work to be
performed, along with submittal of a fixed-dollar bid amount, this
legislation will provide a fairer process for bidders seeking to
perform state and local public work in New York.

LEGISLATIVE HISTORY:
New legislation.

FISCAL IMPLICATIONS:
There are no direct fiscal implications to the
State or local government. In reality though, it is a prudent use of
taxpayer dollars to clarify exactly what is being bid.

EFFECTIVE DATE:
90 days after it shall have become a law, provided
however, that the amendments to paragraph (c) of subdivision 3 of
section 220 of the labor law made by section one of this act shall be
subject to the expiration and reversion of such paragraph pursuant to
chapter 678 of the laws of 2007, as amended, when upon such date the
provisions of section two of this act shall take effect, provided
further that the amendments to subdivision 1 of section 103 of the
general municipal law made by section three of this act shall be
subject to expiration and reversion 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
four of this act shall take effect, provided further, that the
amendments to subdivision 2 of section 103 of the general municipal
law made by section five of this act shall be subject to the
expiration and reversion 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 four of this
act shall take effect, provided further, that the amendments to
subdivision 2 of section 103 of the general municipal
law made by section five of this act shall be subject to the
expiration and reversion 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 six of this
act shall take effect; provided, further, that the amendments to
paragraph d of subdivision 6 of section 2590-p of the education law
made by section nine of this act shall not affect the repeal of such
paragraph and shall be deemed repealed therewith.

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

                                  5149

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                               May 3, 2011
                               ___________

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

AN ACT to amend the labor law, the  general  municipal  law,  the  state
  finance  law  and the education law, in relation to advertisements for
  bids

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

  Section  1. Paragraph (c) of subdivision 3 of section 220 of the labor
law, as separately amended by chapter 678 of the laws of 2007 and  chap-
ter 7 of the laws of 2008, is amended to read as follows:
  (c)  It  shall  be  the duty of the fiscal officer, as defined in this
section, to ascertain and determine the schedules of supplements  to  be
provided  and  wages  to be paid workers, laborers and mechanics on such
public work, prior to the time of the advertisement for bids,  and  such
schedules  shall be annexed to and form a part of the specifications for
the work. Such fiscal officer shall  file  with  the  department  having
jurisdiction such schedules prior to the time of the commencement of the
advertisement  for  bids on all public works proposed to be constructed.
IF THE FISCAL OFFICER CANNOT ASCERTAIN OR DETERMINE  SUCH  SCHEDULES  OR
WAGES,  OR  DISTINGUISH  BETWEEN  THE CLASSIFICATIONS OF WORKERS ON SUCH
PUBLIC WORK, IT SHALL BE THE DUTY OF THE FISCAL OFFICER  TO  REJECT  ANY
CONTRACT ASSOCIATED WITH THE ADVERTISEMENT FOR BIDS. The term "contract"
as  used in this article also shall include reconstruction and repair of
any such public work, and any  public  work  performed  under  a  lease,
permit  or other agreement pursuant to which the department of jurisdic-
tion grants the responsibility of contracting for such  public  work  to
any  third  party proposing to perform such work to which the provisions
of  this  article  would  apply  had  the  department  of   jurisdiction
contracted  directly  for  its  performance, or where there is no lease,
permit or other agreement and ownership of a public work is intended  to

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD09486-01-1

S. 5149                             2

be assumed by such public entity at any time subsequent to completion of
the public work.
  S  2.  Paragraph (c) of subdivision 3 of section 220 of the labor law,
as amended by chapter 7 of the laws of  2008,  is  amended  to  read  as
follows:
  (c)  It  shall  be  the duty of the fiscal officer, as defined in this
section, to ascertain and determine the schedules of supplements  to  be
provided  and  wages  to be paid workmen, laborers and mechanics on such
public work, prior to the time of the advertisement for bids,  and  such
schedules  shall be annexed to and form a part of the specifications for
the work. Such fiscal officer shall  file  with  the  department  having
jurisdiction  such  schedules  to  the  time  of the commencement of the
advertisement for bids on all public works proposed to  be  constructed.
IF  THE  FISCAL  OFFICER CANNOT ASCERTAIN OR DETERMINE SUCH SCHEDULES OR
WAGES, OR DISTINGUISH BETWEEN THE CLASSIFICATIONS  OF  WORKERS  ON  SUCH
PUBLIC  WORK,  IT  SHALL BE THE DUTY OF THE FISCAL OFFICER TO REJECT ANY
CONTRACT ASSOCIATED WITH THE ADVERTISEMENT FOR BIDS. The term "contract"
as used in this subdivision also shall include reconstruction and repair
of any such public work.
  S 3. 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.  ALL  SUBMITTED  BIDS  FOR  SUCH  PUBLIC  WORK
CONTRACTS  SHALL  BE  FOR  A  FIXED-DOLLAR  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 agen-
cy 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  read-
vertise  for  new bids in the manner provided by this section. In deter-
mining whether a purchase is an  expenditure  within  the  discretionary
threshold amounts established by this subdivision, the officer, board or
agency  of  a  political  subdivision  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 estab-
lished 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.  For

S. 5149                             3

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 article, 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 meth-
od 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  elec-
tronic bids shall comply with article three of the state technology law,
and any rules and regulations promulgated and guidelines developed ther-
eunder and, at a minimum, must (a) document the time and date of receipt
of  each  bid  received electronically; (b) authenticate the identity of
the sender; (c) ensure the security of the information transmitted;  and
(d) ensure the confidentiality of the bid until the time and date estab-
lished  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 responsi-
bility solely of each bidder or prospective bidder. No political  subdi-
vision  or  district therein shall incur any liability from delays of or
interruptions in the receiving device designated for the submission  and
receipt of electronic bids.
  S  4.  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.  ALL  SUBMITTED  BIDS  FOR SUCH PUBLIC WORK
CONTRACTS SHALL BE FOR A FIXED-DOLLAR AMOUNT. In determining  whether  a
purchase  is  an  expenditure within the discretionary threshold amounts
established by this subdivision, the officer, board or agency of a poli-
tical subdivision or of any district therein shall consider the  reason-
ably 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 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

S. 5149                             4

security submit identical bids as to price, such officer, board or agen-
cy 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  readver-
tise for new bids in the manner provided by this section.
  S  5.  Subdivision  2  of section 103 of the general municipal law, as
amended by section 5 of part X of chapter 62 of the  laws  of  2003,  is
amended to read as follows:
  2. Advertisement for bids shall be published in the official newspaper
or  newspapers, if any, or otherwise in a newspaper or newspapers desig-
nated for such purpose. Such advertisement shall contain a statement  of
the  time when and place where all bids received pursuant to such notice
will be publicly opened and read, and the designation of  the  receiving
device  if  the  political  subdivision  or  district has authorized the
receipt of bids in an  electronic  format.    SUCH  ADVERTISEMENT  SHALL
DESCRIBE SPECIFICALLY THE NATURE OF THE WORK, INCLUDING THE TYPE OF WORK
TO  BE  PERFORMED, AND ENABLE THE BIDDER TO COMPLY WITH PARAGRAPH (C) OF
SUBDIVISION THREE OF SECTION TWO HUNDRED TWENTY OF THE LABOR  LAW.  Such
board  or  agency may by resolution designate any officer or employee to
open the bids at the time and place specified in the notice. Such desig-
nee shall make a record of such bids in such  form  and  detail  as  the
board or agency shall prescribe and present the same at the next regular
or  special  meeting of such board or agency. All bids received shall be
publicly opened and read at the time and place so  specified.  At  least
five  days shall elapse between the first publication of such advertise-
ment and the date so specified for the opening and reading of bids.
  S 6. Subdivision 2 of section 103 of the  general  municipal  law,  as
amended  by  chapter  296  of  the  laws  of 1958, is amended to read as
follows:
  2. Advertisement for bids shall be published in the official newspaper
or newspapers, if any, or otherwise in a newspaper or newspapers  desig-
nated  for such purpose. Such advertisement shall contain a statement of
the time when and place where all bids received pursuant to such  notice
will  be  publicly  opened and read.   SUCH ADVERTISEMENT SHALL DESCRIBE
SPECIFICALLY THE NATURE OF THE WORK, INCLUDING THE TYPE OF  WORK  TO  BE
PERFORMED,  AND ENABLE THE BIDDER TO COMPLY WITH PARAGRAPH (C) OF SUBDI-
VISION THREE OF SECTION TWO HUNDRED TWENTY OF THE LABOR LAW. Such  board
or  agency  may  by resolution designate any officer or employee to open
the bids at the time and place specified in the  notice.  Such  designee
shall make a record of such bids in such form and detail as the board or
agency  shall  prescribe  and  present  the  same at the next regular or
special meeting of such board or agency.  All  bids  received  shall  be
publicly  opened  and  read at the time and place so specified. At least
five days shall elapse between the first publication of such  advertise-
ment and the date so specified for the opening and reading of bids.
  S  7.  The  second  undesignated paragraph of section 135 of the state
finance law, as amended by section 3 of part MM of  chapter  57  of  the
laws of 2008, is amended to read as follows:
  Such  specifications  must be so drawn as to permit separate and inde-
pendent bidding upon each of the above three subdivisions of work.   All
contracts hereafter awarded by the state or a department, board, commis-
sioner  or officer thereof, for the erection, construction or alteration
of buildings, or any part thereof, shall award the three subdivisions of
the above specified work separately to responsible and reliable persons,
firms or corporations engaged in these classes of work. A  contract  for
one  or  more  buildings  in  any project shall be awarded to the lowest
responsible bidder for all the buildings included in the specifications.

S. 5149                             5

 ALL SUCH SPECIFICATIONS ISSUED PURSUANT TO THIS ARTICLE SHALL  DESCRIBE
SPECIFICALLY  THE  NATURE  OF THE WORK, INCLUDING THE TYPE OF WORK TO BE
PERFORMED, AND ENABLE THE BIDDER TO COMPLY WITH PARAGRAPH (C) OF  SUBDI-
VISION THREE OF SECTION TWO HUNDRED TWENTY OF THE LABOR LAW. EACH BIDDER
FOR  ANY PROJECT UNDER THIS ARTICLE SHALL SUBMIT BIDS FOR A FIXED-DOLLAR
AMOUNT.
  S 8. Subdivision 2 of section 161 of the state finance law is  amended
by adding a new paragraph o to read as follows:
  O.  CONSULT  WITH  AND ADVISE THE COMMISSIONER ON THE USE OF JOB ORDER
CONTRACTING WITH RESPECT TO PUBLIC WORK PROJECTS WHICH MUST COMPLY  WITH
ARTICLE EIGHT OF THE LABOR LAW.
  S  9.  Paragraphs  a  and  d of subdivision 6 of section 2590-p of the
education law, paragraph a as added by chapter 738 of the laws  of  1988
and  paragraph  d  as  amended  by  chapter  91 of the laws of 2002, are
amended to read as follows:
  a. For each project included  in  an  approved  five-year  educational
facilities  capital  plan, the chancellor shall develop a detailed scope
of the project, which shall include the following: (i) the purposes  and
public  to be served, (ii) the programs to be conducted in the facility,
(iii) the gross amounts of space and bulk for any building or structure,
(iv) identification of the intent to use architectural,  engineering  or
other  consultant  services  and  estimated  fees  for  such  consultant
services (v) the schedule of design and  construction,  (vi)  the  total
estimated  project costs, including costs for site acquisition, prepara-
tion and tenant relocation, design, construction  and  equipment,  (vii)
maximum  estimated  expenditures  for  the  project for each fiscal year
until its completion, (viii) costs associated with maintenance and oper-
ation of the physical plant and (ix) such other information as the chan-
cellor shall specify. In the event, a  project  consists  of  a  program
element  without  identification of the particular education facility at
which such project is to be performed, the detailed scope of the project
shall specify the nature of the work to be performed,  applicable  price
and  quality  standards,  a  list of the schools eligible for such work,
annual performance targets and the total estimated costs of such project
during each fiscal year until its completion.  ALL SUCH ESTIMATED  COSTS
AND PRICES SHALL BE FOR A FIXED-DOLLAR AMOUNT.
  d.  For  projects  to  be  funded pursuant to subdivision four of this
section, the chancellor shall transmit the detailed scope of  each  such
project  to  the  director  of  management  and  budget  of the city for
approval.
  (i) Except as provided in paragraph b of this subdivision, no expenses
shall be incurred by the city  board  or  the  authority  for  any  such
project  prior  to  approval  of the detailed scope of any such project.
SUCH DETAILED SCOPE OF  THE  PROJECT  SHALL  DESCRIBE  SPECIFICALLY  THE
NATURE OF THE WORK, INCLUDING THE TYPE OF WORK TO BE PERFORMED.
  (ii)  No  detailed scope of project shall be approved unless the total
estimated costs of such project, together with the  aggregate  estimated
costs  of  all  projects for which a detailed scope has theretofore been
approved, are within city capital budget appropriations available there-
for. A detailed scope of project that is not disapproved by the director
of management and budget within thirty days of its submission  shall  be
deemed approved. To the extent the director disapproves all or part of a
scope, he or she shall set forth in writing the reasons therefor.
  (iii)  Upon  approval of the detailed scope of project, the chancellor
shall refer such project  to  the  New  York  city  school  construction
authority for implementation in accordance with an agreement between the

S. 5149                             6

authority  and  the  city  board and shall transmit the approved project
scope to the comptroller, whereupon the total estimated  costs  of  such
project  as  set forth in such approved project scope shall be available
for  expenditure.  ALL  SUCH ESTIMATED COSTS SHALL BE FOR A FIXED-DOLLAR
AMOUNT.
  (iv) Approval of the  director  of  management  and  budget  shall  be
required  for  any  material  change  in  the approved detailed scope of
project or for any increase in the total cost of such project in  excess
of  any reserve provided in the approved detailed scope of project. Such
approval shall be given or deemed given in the manner provided herein.
  (v) The provisions of this paragraph  shall  not  apply  to  emergency
projects  undertaken  pursuant to paragraph h of subdivision two of this
section, the estimated costs of which, together with the costs of  other
projects  undertaken  pursuant  to said paragraph h, does not exceed the
amount set forth in the educational facilities capital plan  for  activ-
ities pursuant to paragraph h of subdivision two of this section.
  S  10.  This act shall take effect on the ninetieth day after it shall
have become a law, provided however, that the  amendments  to  paragraph
(c) of subdivision 3 of section 220 of the labor law made by section one
of  this  act  shall  be subject to the expiration and reversion of such
paragraph pursuant to chapter 678 of the laws of 2007, as amended,  when
upon  such  date  the  provisions  of section two of this act shall take
effect, provided further that the amendments to subdivision 1 of section
103 of the general municipal law made by section three of this act shall
be subject to the expiration and reversion 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 four  of
this  act  shall  take  effect, provided further, that the amendments to
subdivision 2 of section 103  of  the  general  municipal  law  made  by
section  five  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  six  of  this  act  shall  take  effect;
provided,  further,  that the amendments to paragraph d of subdivision 6
of section 2590-p of the education law made by section nine of this  act
shall  not  affect  the  repeal  of  such  paragraph and shall be deemed
repealed therewith.

S5149A - Bill Details

See Assembly Version of this Bill:
A9371C
Current Committee:
Law Section:
Labor Law
Laws Affected:
Amd §220, Lab L; add §148, St Fin L; add §103-h, Gen Mun i L
Versions Introduced in 2011-2012 Legislative Session:
A9371

S5149A - Bill Texts

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Relates to labor performed under certain public work contracts; defines "job order contract" as certain competitive bid, indefinite quantity, fixed price, multi-task contracts; provides that such contracts shall have a defined scope of work and detailed description of such work; provides that such information shall be filed with the fiscal officer before soliciting for bids; provides that the cost of a job order contract may not exceed $500,000.

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BILL NUMBER:S5149A

TITLE OF BILL:
An act
to amend the labor law, the general municipal law, the state finance law
and the education law, in relation to advertisements for bids

PURPOSE:
To better ensure integrity and accuracy in the bidding
process by ensuring defined bid specifications are included in
projects funded by taxpayer dollars.

SUMMARY OF PROVISIONS:

Sections 1 & 2 of the bill amend the labor law, clarifying that if the
fiscal officer cannot determine the specific schedules or wages of
the workers based on the specifications for a public work contract,
then the fiscal officer must reject any contract associated with that
specific advertisement for bids.

Sections 3 & 4 of the bill amend subdivision 1 of the general
municipal law to require that all bids for a public
work contract state a fixed dollar amount.

Sections 5 & 6 of the bill amend subdivision 2 of the general
municipal law to require that the bid advertisement specifically
describe the nature and type of work to be performed.

Section 7 of the bill amends section 135 of the state finance law to
require that the specifications for a contract specifically describe
the nature and type of work to be performed and that the bids
submitted state a fixed dollar amount.

Section 8 of the bill amends section 161 of the state finance law to
require the State Procurement Council to consult and advise the
Commissioner of the Office of General Services on the use of job
order contracting with respect to public work projects.

Sections 9 and 10 of the bill amend section 2590-p of the education
law to require that each project for facilities included in the
five-year capital plan for the New York City Community School
District specifically describe the nature and type of work to be
performed and that the estimated costs be for a fixed-dollar amount.

EFFECTS OF PRESENT LAW WHICH THIS BILL WOULD ALTER:

Subdivision 3 of section 220 of the labor law requires the fiscal
officer to determine the schedule of prevailing wages and supplements
required to be paid on a public work contract and also requires that
the schedule be attached to the specifications for the contract.

The current law relating to the advertisement, specifications and bids
for public work does not require the bidder to state a fixed price
for its work in its bid.

JUSTIFICATION:

The practice of job order contracting on public work projects thwarts
the purpose of New York's competitive bidding laws. A job order
contract is an indefinite quantity contract for construction,
renovation or repair work.
It is usually a multi-year contract containing ambiguous project
descriptions that do not require a contractor to submit a bid for a
fixed dollar amount. Instead, the bidders are informed about a range
of tasks that mayor may not be performed under the contract, which
has a minimum to maximum value of its worth. The contractors then use
a job order contracting book to bid on a scale, which is used to
determine the payment of each separate project that comes up under
the contract. The bidders do not know what specific type of work they
are getting involved with and cannot, therefore, properly ascertain
how much the project will cost them. If the unit bid is too low and
they turn out to be underpaid cost-saving measures could become
necessary; corners might be cut on these projects which would negate
the very purpose of public work.

Job order contracting puts potential bidders in the untenable position
of having to submit a proposed contract price without full knowledge
of their responsibilities under the contract. This can discourage
certain contractors from bidding, or deny them a sufficient
opportunity to estimate their lowest possible bid. These consequences
violate one of the central purposes of the state's competitive bidder
laws. The New York Court of Appeals has recognized that competitive
bidding laws are intended to protect the public treasury by obtaining
the best work at the lowest possible price. Associate Builders and
Contractors, Inc. v. City of Rochester, 67 N.Y.2d 854(1986). By
requiring specific descriptions of the nature and type of work to be
performed, along with submittal of a fixed-dollar bid amount, this
legislation will provide a fairer process for bidders seeking to
perform state and local public work in New York.

LEGISLATIVE HISTORY:
New legislation.

FISCAL IMPLICATIONS:
There are no direct fiscal implications to the
State or local government. In reality though, it is a prudent use of
taxpayer dollars to clarify exactly what is being bid.

EFFECTIVE DATE:
90 days after it shall have become a law, provided
however, that the amendments to paragraph (c) of subdivision 3 of
section 220 of the labor law made by section one of this act shall be
subject to the expiration and reversion of such paragraph pursuant to

chapter 678 of the laws of 2007, as amended, when upon such date the
provisions of section two of this act shall take effect, provided
further that the amendments to subdivision 1 of section 103 of the
general municipal law made by section three of this act shall be
subject to expiration and reversion 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 four
of this act shall take effect, provided further, that the amendments
to subdivision 2 of section 103 of the general municipal law made by
section five of this act shall be subject to the expiration and
reversion 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 four of this act shall take
effect, provided further, that the amendments to subdivision 2 of
section 103 of the general municipal
law made by section five of this act shall be subject to the
expiration and reversion 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 six of this
act shall take effect; provided, further, that the amendments to
paragraph d of subdivision 6 of section 2590-p of the education law
made by section nine of this act shall not affect the repeal of such
paragraph and shall be deemed repealed therewith.

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

                                 5149--A

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                               May 3, 2011
                               ___________

Introduced  by  Sen. BONACIC -- read twice and ordered printed, and when
  printed to be  committed  to  the  Committee  on  Labor  --  committee
  discharged, bill amended, ordered reprinted as amended and recommitted
  to said committee

AN  ACT  to  amend  the  labor law, the general municipal law, the state
  finance law and the education law, in relation to  advertisements  for
  bids

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

  Section 1. Paragraph (c) of subdivision 3 of section 220 of the  labor
law,  as  separately  amended  by  chapter  678  of the laws of 2007 and
section 2 of chapter 7 of the laws  of  2008,  is  amended  to  read  as
follows:
  (c)  It  shall  be  the duty of the fiscal officer, as defined in this
section, to ascertain and determine the schedules of supplements  to  be
provided  and  wages  to be paid workers, laborers and mechanics on such
public work, prior to the time of the advertisement for bids,  and  such
schedules  shall be annexed to and form a part of the specifications for
the work. Such fiscal officer shall  file  with  the  department  having
jurisdiction such schedules prior to the time of the commencement of the
advertisement  for  bids on all public works proposed to be constructed.
IF THE FISCAL OFFICER CANNOT ASCERTAIN OR DETERMINE  SUCH  SCHEDULES  OR
WAGES,  OR  DISTINGUISH  BETWEEN  THE CLASSIFICATIONS OF WORKERS ON SUCH
PUBLIC WORK, IT SHALL BE THE DUTY OF THE FISCAL OFFICER  TO  REJECT  ANY
CONTRACT ASSOCIATED WITH THE ADVERTISEMENT FOR BIDS. The term "contract"
as  used in this article also shall include reconstruction and repair of
any such public work, and any  public  work  performed  under  a  lease,
permit  or other agreement pursuant to which the department of jurisdic-
tion grants the responsibility of contracting for such  public  work  to
any  third  party proposing to perform such work to which the provisions
of  this  article  would  apply  had  the  department  of   jurisdiction

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD09486-02-1

S. 5149--A                          2

contracted  directly  for  its  performance, or where there is no lease,
permit or other agreement and ownership of a public work is intended  to
be assumed by such public entity at any time subsequent to completion of
the public work.
  S  2.  Paragraph (c) of subdivision 3 of section 220 of the labor law,
as amended by section 2 of chapter 7 of the laws of 2008, is amended  to
read as follows:
  (c)  It  shall  be  the duty of the fiscal officer, as defined in this
section, to ascertain and determine the schedules of supplements  to  be
provided  and  wages  to be paid workmen, laborers and mechanics on such
public work, prior to the time of the advertisement for bids,  and  such
schedules  shall be annexed to and form a part of the specifications for
the work. Such fiscal officer shall  file  with  the  department  having
jurisdiction  such  schedules  to  the  time  of the commencement of the
advertisement for bids on all public works proposed to  be  constructed.
IF  THE  FISCAL  OFFICER CANNOT ASCERTAIN OR DETERMINE SUCH SCHEDULES OR
WAGES, OR DISTINGUISH BETWEEN THE CLASSIFICATIONS  OF  WORKERS  ON  SUCH
PUBLIC  WORK,  IT  SHALL BE THE DUTY OF THE FISCAL OFFICER TO REJECT ANY
CONTRACT ASSOCIATED WITH THE ADVERTISEMENT FOR BIDS. The term "contract"
as used in this subdivision also shall include reconstruction and repair
of any such public work.
  S 3. 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. ALL SUBMITTED BIDS FOR SUCH PUBLIC WORK
CONTRACTS  MUST  BE  FOR A FIXED DOLLAR AMOUNT. In determining whether a
purchase is an expenditure within the  discretionary  threshold  amounts
established by this subdivision, the officer, board or agency of a poli-
tical  subdivision or of any district therein shall consider the reason-
ably 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  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

S. 5149--A                          3

period commencing on the date of the first purchase to an amount greater
than the discretionary 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 article, 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 poli-
tical 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 promulgated and  guidelines  developed  there-
under  and, at a minimum, must (a) document the time and date of receipt
of each bid received electronically; (b) authenticate  the  identity  of
the  sender; (c) ensure the security of the information transmitted; and
(d) ensure the confidentiality of the bid until the time and date estab-
lished 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  responsi-
bility  solely of each bidder or prospective bidder. No political subdi-
vision or district therein shall incur any liability from delays  of  or
interruptions  in the receiving device designated for the submission and
receipt of electronic bids.
  S 4. 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.  ALL  SUBMITTED  BIDS  FOR  SUCH  PUBLIC  WORK
CONTRACTS  MUST  BE  FOR A FIXED DOLLAR AMOUNT. In determining whether a
purchase is an expenditure within the  discretionary  threshold  amounts
established by this subdivision, the officer, board or agency of a poli-
tical  subdivision or of any district therein shall consider the reason-
ably 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  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

S. 5149--A                          4

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 agen-
cy 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 readver-
tise for new bids in the manner provided by this section.
  S 5. Subdivision 2 of section 103 of the  general  municipal  law,  as
amended  by  section  5  of part X of chapter 62 of the laws of 2003, is
amended to read as follows:
  2. Advertisement for bids shall be published in the official newspaper
or newspapers, if any, or otherwise in a newspaper or newspapers  desig-
nated  for such purpose. Such advertisement shall contain a statement of
the time when and place where all bids received pursuant to such  notice
will  be  publicly opened and read, and the designation of the receiving
device if the political  subdivision  or  district  has  authorized  the
receipt  of  bids  in  an  electronic  format.  SUCH ADVERTISEMENT SHALL
DESCRIBE SPECIFICALLY THE NATURE OF THE WORK, INCLUDING THE TYPE OF WORK
TO BE PERFORMED, AND ENABLE THE BIDDER TO COMPLY WITH PARAGRAPH  (C)  OF
SUBDIVISION  THREE  OF SECTION TWO HUNDRED TWENTY OF THE LABOR LAW. Such
board or agency may by resolution designate any officer or  employee  to
open the bids at the time and place specified in the notice. Such desig-
nee  shall  make  a  record  of such bids in such form and detail as the
board or agency shall prescribe and present the same at the next regular
or special meeting of such board or agency. All bids received  shall  be
publicly  opened  and  read at the time and place so specified. At least
five days shall elapse between the first publication of such  advertise-
ment and the date so specified for the opening and reading of bids.
  S  6.  Subdivision  2  of section 103 of the general municipal law, as
amended by chapter 296 of the laws  of  1958,  is  amended  to  read  as
follows:
  2. Advertisement for bids shall be published in the official newspaper
or  newspapers, if any, or otherwise in a newspaper or newspapers desig-
nated for such purpose. Such advertisement shall contain a statement  of
the  time when and place where all bids received pursuant to such notice
will be publicly opened and  read.  SUCH  ADVERTISEMENT  SHALL  DESCRIBE
SPECIFICALLY  THE  NATURE  OF THE WORK, INCLUDING THE TYPE OF WORK TO BE
PERFORMED, AND ENABLE THE BIDDER TO COMPLY WITH PARAGRAPH (C) OF  SUBDI-
VISION  THREE OF SECTION TWO HUNDRED TWENTY OF THE LABOR LAW. Such board
or agency may by resolution designate any officer or  employee  to  open
the  bids  at  the time and place specified in the notice. Such designee
shall make a record of such bids in such form and detail as the board or
agency shall prescribe and present the  same  at  the  next  regular  or
special  meeting  of  such  board  or agency. All bids received shall be
publicly opened and read at the time and place so  specified.  At  least
five  days shall elapse between the first publication of such advertise-
ment and the date so specified for the opening and reading of bids.
  S 7. The first undesignated paragraph of  section  135  of  the  state
finance  law,  as  amended  by section 3 of part MM of chapter 57 of the
laws of 2008, is amended to read as follows:
  Such specifications must be so drawn as to permit separate  and  inde-
pendent  bidding upon each of the above three subdivisions of work.  All
contracts hereafter awarded by the state or a department, board, commis-
sioner or officer thereof, for the erection, construction or  alteration
of buildings, or any part thereof, shall award the three subdivisions of
the above specified work separately to responsible and reliable persons,
firms  or  corporations engaged in these classes of work. A contract for

S. 5149--A                          5

one or more buildings in any project shall  be  awarded  to  the  lowest
responsible bidder for all the buildings included in the specifications.
ALL  SUCH  SPECIFICATIONS ISSUED PURSUANT TO THIS ARTICLE SHALL DESCRIBE
SPECIFICALLY  THE  NATURE  OF THE WORK, INCLUDING THE TYPE OF WORK TO BE
PERFORMED, AND ENABLE THE BIDDER TO COMPLY WITH PARAGRAPH (C) OF  SUBDI-
VISION THREE OF SECTION TWO HUNDRED TWENTY OF THE LABOR LAW. EACH BIDDER
FOR  ANY PROJECT UNDER THIS ARTICLE SHALL SUBMIT BIDS FOR A FIXED DOLLAR
AMOUNT.
  S 8. Subdivision 2 of section 161 of the state finance law is  amended
by adding a new paragraph o to read as follows:
  O.  CONSULT  WITH  AND ADVISE THE COMMISSIONER ON THE USE OF JOB ORDER
CONTRACTING WITH RESPECT TO PUBLIC WORK PROJECTS WHICH MUST COMPLY  WITH
ARTICLE EIGHT OF THE LABOR LAW.
  S  9.  Paragraph a of subdivision 6 of section 2590-p of the education
law, as added by chapter 738 of the laws of 1988, is amended to read  as
follows:
  a.  For  each  project  included  in an approved five-year educational
facilities capital plan, the chancellor shall develop a  detailed  scope
of  the project, which shall include the following: (i) the purposes and
public to be served, (ii) the programs to be conducted in the  facility,
(iii) the gross amounts of space and bulk for any building or structure,
(iv)  identification  of the intent to use architectural, engineering or
other  consultant  services  and  estimated  fees  for  such  consultant
services,  (v)  the  schedule of design and construction, (vi) the total
estimated project costs, including costs for site acquisition,  prepara-
tion  and  tenant  relocation, design, construction and equipment, (vii)
maximum estimated expenditures for the  project  for  each  fiscal  year
until its completion, (viii) costs associated with maintenance and oper-
ation of the physical plant and (ix) such other information as the chan-
cellor  shall  specify.  In  the  event, a project consists of a program
element without identification of the particular education  facility  at
which such project is to be performed, the detailed scope of the project
shall  specify  the nature of the work to be performed, applicable price
and quality standards, a list of the schools  eligible  for  such  work,
annual performance targets and the total estimated costs of such project
during  each  fiscal year until its completion. ALL SUCH ESTIMATED COSTS
AND PRICES SHALL BE FOR A FIXED DOLLAR AMOUNT.
  S 10. Paragraph d of subdivision 6 of section 2590-p of the  education
law, as amended by chapter 91 of the laws of 2002, is amended to read as
follows:
  d.  For  projects  to  be  funded pursuant to subdivision four of this
section, the chancellor shall transmit the detailed scope of  each  such
project  to  the  director  of  management  and  budget  of the city for
approval.
  (i) Except as provided in paragraph b of this subdivision, no expenses
shall be incurred by the city  board  or  the  authority  for  any  such
project  prior  to  approval  of the detailed scope of any such project.
SUCH DETAILED SCOPE OF  THE  PROJECT  SHALL  DESCRIBE  SPECIFICALLY  THE
NATURE OF THE WORK, INCLUDING THE TYPE OF WORK TO BE PERFORMED.
  (ii)  No  detailed scope of project shall be approved unless the total
estimated costs of such project, together with the  aggregate  estimated
costs  of  all  projects for which a detailed scope has theretofore been
approved, are within city capital budget appropriations available there-
for. A detailed scope of project that is not disapproved by the director
of management and budget within thirty days of its submission  shall  be

S. 5149--A                          6

deemed approved. To the extent the director disapproves all or part of a
scope, he or she shall set forth in writing the reasons therefor.
  (iii)  Upon  approval of the detailed scope of project, the chancellor
shall refer such project  to  the  New  York  city  school  construction
authority for implementation in accordance with an agreement between the
authority  and  the  city  board and shall transmit the approved project
scope to the comptroller, whereupon the total estimated  costs  of  such
project  as  set forth in such approved project scope shall be available
for expenditure.  ALL SUCH ESTIMATED COSTS SHALL BE FOR A  FIXED  DOLLAR
AMOUNT.
  (iv)  Approval  of  the  director  of  management  and budget shall be
required for any material change  in  the  approved  detailed  scope  of
project  or for any increase in the total cost of such project in excess
of any reserve provided in the approved detailed scope of project.  Such
approval shall be given or deemed given in the manner provided herein.
  (v)  The  provisions  of  this  paragraph shall not apply to emergency
projects undertaken pursuant to paragraph h of subdivision two  of  this
section,  the estimated costs of which, together with the costs of other
projects undertaken pursuant to said paragraph h, does  not  exceed  the
amount  set  forth in the educational facilities capital plan for activ-
ities pursuant to paragraph h of subdivision two of this section.
  S 11. Paragraph d of subdivision 6 of section 2590-p of the  education
law,  as added by chapter 738 of the laws of 1988, is amended to read as
follows:
  d. For projects to be funded pursuant  to  subdivision  four  of  this
section,  the  chancellor shall transmit the detailed scope of each such
project to the director  of  management  and  budget  of  the  city  for
approval.
  (i) Except as provided in paragraph b of this subdivision, no expenses
shall  be  incurred  by  the  city  board  or the authority for any such
project prior to approval of the detailed scope  of  any  such  project.
SUCH  DETAILED  SCOPE  OF  THE  PROJECT  SHALL DESCRIBE SPECIFICALLY THE
NATURE OF THE WORK, INCLUDING THE TYPE OF WORK TO BE PERFORMED.
  (ii) No detailed scope of project shall be approved unless  the  total
estimated  costs  of such project, together with the aggregate estimated
costs of all projects for which a detailed scope  has  theretofore  been
approved, are within city capital budget appropriations available there-
for. A detailed scope of project that is not disapproved by the director
of  management  and budget within thirty days of its submission shall be
deemed approved. To the extent the director disapproves all or part of a
scope, he shall set forth in writing the reasons therefor.
  (iii) Upon approval of the detailed scope of project,  the  chancellor
shall  refer  such  project  to  the  New  York city school construction
authority for implementation in accordance with an agreement between the
authority and the city board and shall  transmit  the  approved  project
scope  to  the  comptroller  whereupon the total estimated costs of such
project as set forth in such approved project scope shall  be  available
for  expenditure.   ALL SUCH ESTIMATED COSTS SHALL BE FOR A FIXED DOLLAR
AMOUNT.
  (iv) Approval of the  director  of  management  and  budget  shall  be
required  for  any  material  change  in  the approved detailed scope of
project or for any increase in the total cost of such project in  excess
of  any reserve provided in the approved detailed scope of project. Such
approval shall be given or deemed given in the manner provided herein.
  (v) The provisions of this paragraph  shall  not  apply  to  emergency
projects  undertaken  pursuant to paragraph h of subdivision two of this

S. 5149--A                          7

section, the estimated costs of which, together with the costs of  other
projects  undertaken  pursuant  to said paragraph h, does not exceed the
amount set forth in the educational facilities capital plan  for  activ-
ities pursuant to paragraph h of subdivision two of this section.
  S  12.  This act shall take effect on the ninetieth day after it shall
have become a law; provided, however, that:
  (a) the amendments to paragraph (c) of subdivision 3 of section 220 of
the labor law made by section one of this act shall be  subject  to  the
expiration  and  reversion  of  such  paragraph pursuant to section 5 of
chapter 678 of the laws of 2007, as amended, when  upon  such  date  the
provisions of section two of this act shall take effect;
  (b)  the  amendments  to  subdivisions  1  and 2 of section 103 of the
general municipal law made by sections three and five of this act  shall
be subject to the expiration and reversion of such subdivisions 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  sections  four
and six of this act, respectively, shall take effect; and
  (c)  the  amendments to paragraph d of subdivision 6 of section 2590-p
of the education law made by section ten of this act shall be subject to
the expiration and reversion of such paragraph pursuant to section 34 of
chapter 91 of the laws of 2002, as amended,  when  upon  such  date  the
provisions of section eleven of this act shall take effect.

S5149B - Bill Details

See Assembly Version of this Bill:
A9371C
Current Committee:
Law Section:
Labor Law
Laws Affected:
Amd §220, Lab L; add §148, St Fin L; add §103-h, Gen Mun i L
Versions Introduced in 2011-2012 Legislative Session:
A9371

S5149B - Bill Texts

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Relates to labor performed under certain public work contracts; defines "job order contract" as certain competitive bid, indefinite quantity, fixed price, multi-task contracts; provides that such contracts shall have a defined scope of work and detailed description of such work; provides that such information shall be filed with the fiscal officer before soliciting for bids; provides that the cost of a job order contract may not exceed $500,000.

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BILL NUMBER:S5149B

TITLE OF BILL:
An act
to amend the labor law, the general municipal law, the state finance law
and the education law, in relation to advertisements for bids

PURPOSE OR GENERAL IDEA OF BILL:
To prohibit the practice of job order
contracting in relation to public work projects.

SUMMARY OF SPECIFIC PROVISIONS:
Sections 1 & 2 of the bill amend the
labor law, clarifying that if the fiscal officer cannot determine the
specific schedules or wages of the workers based on the
specifications for a public work contract, then the fiscal officer
must reject any contract associated with that specific advertisement
for bids.

Sections 3 & 4 of the bill amend subdivision 1 of the general
municipal law to require that all bids for a public work contract
state a fixed dollar amount.

Sections 5 & 6 of the bill amend subdivision 2 of the general
municipal law to require that the bid advertisement specifically
describe the nature and type of work to be performed.

Section 7 of the bill amends section 135 of the state finance law to
require that the specifications for a contract specifically describe
the nature and type of work to be performed and that the bids
submitted state a fixed dollar amount.

Section 8 of the bill amends section 161 of the state finance law to
require the State Procurement Council to consult and advise the
Commissioner of the Office of General Services on the use of job
order contracting with respect to public work projects.

Sections 9 and 10 of the bill amend section 2590-p of the education
law to require that each project for facilities included in the
five-year capital plan for the New York City Community School
District specifically describe the nature and type of work to be
performed and that the estimated costs be for a fixed-dollar amount.

EXISTING LAW:
Subdivision 3 of section 220 of the labor law requires
the fiscal officer to determine the schedule of prevailing wages and
supplements required to be paid on a public work contract and also
requires that the schedule be attached to the specifications for the
contract.

The current law relating to the advertisement, specifications and bids
for public work does not require the bidder to state a fixed price for
its work in its bid.

JUSTIFICATION:


The practice of job order contracting on public work
projects thwarts the purpose of New York's competitive bidding laws.
A job order contract is an indefinite quantity contract for
construction, renovation or repair work. It is usually a multi-year
contract containing ambiguous project descriptions that do not
require a contractor to submit a bid for a fixed dollar amount.
Instead, the bidders are informed about a range of tasks that mayor
may not be performed under the contract, which has a minimum to
maximum value of its worth. The contractors then use a job order
contracting book to bid on a scale, which is used to determine the
payment of each separate project that comes up under the contract,
The bidders do not know what specific type of work they are getting
involved with and cannot, therefore, properly ascertain how much the
project will cost them. If the unit bid is too low and they turn out
to be underpaid cost-saving measures could become necessary; corners
might be cut on these projects which would negate the very purpose of
public work.

Job order contracting puts potential bidders in the untenable position
of having to submit a proposed contract price without full knowledge
of their responsibilities under the contract. This can discourage
certain contractors from bidding, or deny them a sufficient
opportunity to estimate their lowest possible bid. These consequences
violate one of the central purposes of the state's competitive bidder
laws. The New York Court of Appeals has recognized that competitive
bidding laws are intended to protect the public treasury by obtaining
the best work at the lowest possible price. Associate Builders and
Contractors, Inc. v.
City of Rochester, 67 N.Y.2d 854(1986). By requiring Specific
descriptions of the nature and type of work to be performed, along
with submittal of a fixed-dollar bid amount, this legislation will
provide a fairer process for bidders seeking to perform state and
local public work in New York.

Further, this legislation carves out project labor agreements PLA's
that are agreed to by the unions and the City. Enactment of this
legislation will extend the City's ability to have access to the use
of sound labor of various small projects.

PRIOR LEGISLATIVE HISTORY:
None.

FISCAL IMPLICATIONS:
None.

EFFECTIVE DATE:
Ninetieth day after it shall have become law.

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

                                 5149--B

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                               May 3, 2011
                               ___________

Introduced  by  Sen. BONACIC -- read twice and ordered printed, and when
  printed to be  committed  to  the  Committee  on  Labor  --  committee
  discharged, bill amended, ordered reprinted as amended and recommitted
  to  said  committee  --  committee  discharged,  bill amended, ordered
  reprinted as amended and recommitted to said committee

AN ACT to amend the labor law, the  general  municipal  law,  the  state
  finance  law  and the education law, in relation to advertisements for
  bids

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

  Section  1. Paragraph (c) of subdivision 3 of section 220 of the labor
law, as separately amended by chapter  678  of  the  laws  of  2007  and
section  2  of  chapter  7  of  the  laws of 2008, is amended to read as
follows:
  (c) It shall be the duty of the fiscal officer,  as  defined  in  this
section,  to  ascertain and determine the schedules of supplements to be
provided and wages to be paid workers, laborers and  mechanics  on  such
public  work,  prior to the time of the advertisement for bids, and such
schedules shall be annexed to and form a part of the specifications  for
the  work.  Such  fiscal  officer  shall file with the department having
jurisdiction such schedules prior to the time of the commencement of the
advertisement for bids on all public works proposed to  be  constructed.
IF  THE  FISCAL  OFFICER CANNOT ASCERTAIN OR DETERMINE SUCH SCHEDULES OR
WAGES, OR DISTINGUISH BETWEEN THE CLASSIFICATIONS  OF  WORKERS  ON  SUCH
PUBLIC  WORK,  IT  SHALL BE THE DUTY OF THE FISCAL OFFICER TO REJECT ANY
CONTRACT ASSOCIATED WITH THE ADVERTISEMENT FOR BIDS. The term "contract"
as used in this article also shall include reconstruction and repair  of
any  such  public  work,  and  any  public work performed under a lease,
permit or other agreement pursuant to which the department of  jurisdic-
tion  grants  the  responsibility of contracting for such public work to
any third party proposing to perform such work to which  the  provisions

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD09486-03-1

S. 5149--B                          2

of   this  article  would  apply  had  the  department  of  jurisdiction
contracted directly for its performance, or where  there  is  no  lease,
permit  or other agreement and ownership of a public work is intended to
be assumed by such public entity at any time subsequent to completion of
the public work.
  S  2.  Paragraph (c) of subdivision 3 of section 220 of the labor law,
as amended by section 2 of chapter 7 of the laws of 2008, is amended  to
read as follows:
  (c)  It  shall  be  the duty of the fiscal officer, as defined in this
section, to ascertain and determine the schedules of supplements  to  be
provided  and  wages  to be paid workmen, laborers and mechanics on such
public work, prior to the time of the advertisement for bids,  and  such
schedules  shall be annexed to and form a part of the specifications for
the work. Such fiscal officer shall  file  with  the  department  having
jurisdiction  such  schedules  to  the  time  of the commencement of the
advertisement for bids on all public works proposed to  be  constructed.
IF  THE  FISCAL  OFFICER CANNOT ASCERTAIN OR DETERMINE SUCH SCHEDULES OR
WAGES, OR DISTINGUISH BETWEEN THE CLASSIFICATIONS  OF  WORKERS  ON  SUCH
PUBLIC  WORK,  IT  SHALL BE THE DUTY OF THE FISCAL OFFICER TO REJECT ANY
CONTRACT ASSOCIATED WITH THE ADVERTISEMENT FOR BIDS. The term "contract"
as used in this subdivision also shall include reconstruction and repair
of any such public work.
  S 2-a. Section 222 of the labor law is amended by adding a new  subdi-
vision 3 to read as follows:
  3.  FOR  PURPOSES  OF THIS SECTION ONLY, JOB ORDER CONTRACTING WILL BE
PERMISSIBLE WHERE THE CONTRACTOR HAS ENTERED INTO A PROJECT LABOR AGREE-
MENT. "JOB ORDER CONTRACTING" IS A COMPETITIVE BID, INDEFINITE QUANTITY,
FIXED PRICE, MULTI-TASK CONTRACT, WHERE A BASE CONTRACT IS AWARDED  WITH
PRE-ESTABLISHED  TASKS  AND  PRICES, SPECIFICATIONS AND GENERAL CONTRACT
CONDITIONS. CONTRACTORS ARE PERMITTED TO BID BY SUBMITTING A COEFFICIENT
OR COEFFICIENTS, FOR A JOB ORDER CONTRACT, BASED ON A UNIT  PRICE  BOOK,
WHICH  CONTAINS A LIST OF ALL TASKS THAT MAY BE PERFORMED USING THE BASE
CONTRACT.
  S 3. 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. ALL SUBMITTED BIDS FOR SUCH PUBLIC WORK
CONTRACTS  MUST  BE  FOR A FIXED DOLLAR AMOUNT. In determining whether a

S. 5149--B                          3

purchase is an expenditure within the  discretionary  threshold  amounts
established by this subdivision, the officer, board or agency of a poli-
tical  subdivision or of any district therein shall consider the reason-
ably 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 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. 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 article, 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 poli-
tical 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 promulgated and  guidelines  developed  there-
under  and, at a minimum, must (a) document the time and date of receipt
of each bid received electronically; (b) authenticate  the  identity  of
the  sender; (c) ensure the security of the information transmitted; and
(d) ensure the confidentiality of the bid until the time and date estab-
lished 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  responsi-
bility  solely of each bidder or prospective bidder. No political subdi-
vision or district therein shall incur any liability from delays  of  or
interruptions  in the receiving device designated for the submission and
receipt of electronic bids.
  S 4. 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.  ALL  SUBMITTED  BIDS  FOR  SUCH  PUBLIC  WORK
CONTRACTS  MUST  BE  FOR A FIXED DOLLAR AMOUNT. In determining whether a
purchase is an expenditure within the  discretionary  threshold  amounts
established by this subdivision, the officer, board or agency of a poli-
tical  subdivision or of any district therein shall consider the reason-
ably expected aggregate amount of all purchases of the same commodities,
services or  technology  to  be  made  within  the  twelve-month  period

S. 5149--B                          4

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 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 agen-
cy 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  readver-
tise for new bids in the manner provided by this section.
  S  5.  Subdivision  2  of section 103 of the general municipal law, as
amended by section 5 of part X of chapter 62 of the  laws  of  2003,  is
amended to read as follows:
  2. Advertisement for bids shall be published in the official newspaper
or  newspapers, if any, or otherwise in a newspaper or newspapers desig-
nated for such purpose. Such advertisement shall contain a statement  of
the  time when and place where all bids received pursuant to such notice
will be publicly opened and read, and the designation of  the  receiving
device  if  the  political  subdivision  or  district has authorized the
receipt of bids  in  an  electronic  format.  SUCH  ADVERTISEMENT  SHALL
DESCRIBE SPECIFICALLY THE NATURE OF THE WORK, INCLUDING THE TYPE OF WORK
TO  BE  PERFORMED, AND ENABLE THE BIDDER TO COMPLY WITH PARAGRAPH (C) OF
SUBDIVISION THREE OF SECTION TWO HUNDRED TWENTY OF THE LABOR  LAW.  Such
board  or  agency may by resolution designate any officer or employee to
open the bids at the time and place specified in the notice. Such desig-
nee shall make a record of such bids in such  form  and  detail  as  the
board or agency shall prescribe and present the same at the next regular
or  special  meeting of such board or agency. All bids received shall be
publicly opened and read at the time and place so  specified.  At  least
five  days shall elapse between the first publication of such advertise-
ment and the date so specified for the opening and reading of bids.
  S 6. Subdivision 2 of section 103 of the  general  municipal  law,  as
amended  by  chapter  296  of  the  laws  of 1958, is amended to read as
follows:
  2. Advertisement for bids shall be published in the official newspaper
or newspapers, if any, or otherwise in a newspaper or newspapers  desig-
nated  for such purpose. Such advertisement shall contain a statement of
the time when and place where all bids received pursuant to such  notice
will  be  publicly  opened  and  read. SUCH ADVERTISEMENT SHALL DESCRIBE
SPECIFICALLY THE NATURE OF THE WORK, INCLUDING THE TYPE OF  WORK  TO  BE
PERFORMED,  AND ENABLE THE BIDDER TO COMPLY WITH PARAGRAPH (C) OF SUBDI-
VISION THREE OF SECTION TWO HUNDRED TWENTY OF THE LABOR LAW. Such  board
or  agency  may  by resolution designate any officer or employee to open
the bids at the time and place specified in the  notice.  Such  designee
shall make a record of such bids in such form and detail as the board or
agency  shall  prescribe  and  present  the  same at the next regular or
special meeting of such board or agency.  All  bids  received  shall  be
publicly  opened  and  read at the time and place so specified. At least

S. 5149--B                          5

five days shall elapse between the first publication of such  advertise-
ment and the date so specified for the opening and reading of bids.
  S  7.  The  first  undesignated  paragraph of section 135 of the state
finance law, as amended by section 3 of part MM of  chapter  57  of  the
laws of 2008, is amended to read as follows:
  Such  specifications  must be so drawn as to permit separate and inde-
pendent bidding upon each of the above three subdivisions of work.   All
contracts hereafter awarded by the state or a department, board, commis-
sioner  or officer thereof, for the erection, construction or alteration
of buildings, or any part thereof, shall award the three subdivisions of
the above specified work separately to responsible and reliable persons,
firms or corporations engaged in these classes of work. A  contract  for
one  or  more  buildings  in  any project shall be awarded to the lowest
responsible bidder for all the buildings included in the specifications.
ALL SUCH SPECIFICATIONS ISSUED PURSUANT TO THIS ARTICLE  SHALL  DESCRIBE
SPECIFICALLY  THE  NATURE  OF THE WORK, INCLUDING THE TYPE OF WORK TO BE
PERFORMED, AND ENABLE THE BIDDER TO COMPLY WITH PARAGRAPH (C) OF  SUBDI-
VISION THREE OF SECTION TWO HUNDRED TWENTY OF THE LABOR LAW. EACH BIDDER
FOR  ANY PROJECT UNDER THIS ARTICLE SHALL SUBMIT BIDS FOR A FIXED DOLLAR
AMOUNT.
  S 8. Subdivision 2 of section 161 of the state finance law is  amended
by adding a new paragraph o to read as follows:
  O.  CONSULT  WITH  AND ADVISE THE COMMISSIONER ON THE USE OF JOB ORDER
CONTRACTING WITH RESPECT TO PUBLIC WORK PROJECTS WHICH MUST COMPLY  WITH
ARTICLE EIGHT OF THE LABOR LAW.
  S  9.  Paragraph a of subdivision 6 of section 2590-p of the education
law, as added by chapter 738 of the laws of 1988, is amended to read  as
follows:
  a.  For  each  project  included  in an approved five-year educational
facilities capital plan, the chancellor shall develop a  detailed  scope
of  the project, which shall include the following: (i) the purposes and
public to be served, (ii) the programs to be conducted in the  facility,
(iii) the gross amounts of space and bulk for any building or structure,
(iv)  identification  of the intent to use architectural, engineering or
other  consultant  services  and  estimated  fees  for  such  consultant
services,  (v)  the  schedule of design and construction, (vi) the total
estimated project costs, including costs for site acquisition,  prepara-
tion  and  tenant  relocation, design, construction and equipment, (vii)
maximum estimated expenditures for the  project  for  each  fiscal  year
until its completion, (viii) costs associated with maintenance and oper-
ation of the physical plant and (ix) such other information as the chan-
cellor  shall  specify.  In  the  event, a project consists of a program
element without identification of the particular education  facility  at
which such project is to be performed, the detailed scope of the project
shall  specify  the nature of the work to be performed, applicable price
and quality standards, a list of the schools  eligible  for  such  work,
annual performance targets and the total estimated costs of such project
during  each  fiscal year until its completion. ALL SUCH ESTIMATED COSTS
AND PRICES SHALL BE FOR A FIXED DOLLAR AMOUNT.
  S 10. Paragraph d of subdivision 6 of section 2590-p of the  education
law, as amended by chapter 91 of the laws of 2002, is amended to read as
follows:
  d.  For  projects  to  be  funded pursuant to subdivision four of this
section, the chancellor shall transmit the detailed scope of  each  such
project  to  the  director  of  management  and  budget  of the city for
approval.

S. 5149--B                          6

  (i) Except as provided in paragraph b of this subdivision, no expenses
shall be incurred by the city  board  or  the  authority  for  any  such
project  prior  to  approval  of the detailed scope of any such project.
SUCH DETAILED SCOPE OF  THE  PROJECT  SHALL  DESCRIBE  SPECIFICALLY  THE
NATURE OF THE WORK, INCLUDING THE TYPE OF WORK TO BE PERFORMED.
  (ii)  No  detailed scope of project shall be approved unless the total
estimated costs of such project, together with the  aggregate  estimated
costs  of  all  projects for which a detailed scope has theretofore been
approved, are within city capital budget appropriations available there-
for. A detailed scope of project that is not disapproved by the director
of management and budget within thirty days of its submission  shall  be
deemed approved. To the extent the director disapproves all or part of a
scope, he or she shall set forth in writing the reasons therefor.
  (iii)  Upon  approval of the detailed scope of project, the chancellor
shall refer such project  to  the  New  York  city  school  construction
authority for implementation in accordance with an agreement between the
authority  and  the  city  board and shall transmit the approved project
scope to the comptroller, whereupon the total estimated  costs  of  such
project  as  set forth in such approved project scope shall be available
for expenditure.  ALL SUCH ESTIMATED COSTS SHALL BE FOR A  FIXED  DOLLAR
AMOUNT.
  (iv)  Approval  of  the  director  of  management  and budget shall be
required for any material change  in  the  approved  detailed  scope  of
project  or for any increase in the total cost of such project in excess
of any reserve provided in the approved detailed scope of project.  Such
approval shall be given or deemed given in the manner provided herein.
  (v)  The  provisions  of  this  paragraph shall not apply to emergency
projects undertaken pursuant to paragraph h of subdivision two  of  this
section,  the estimated costs of which, together with the costs of other
projects undertaken pursuant to said paragraph h, does  not  exceed  the
amount  set  forth in the educational facilities capital plan for activ-
ities pursuant to paragraph h of subdivision two of this section.
  S 11. Paragraph d of subdivision 6 of section 2590-p of the  education
law,  as added by chapter 738 of the laws of 1988, is amended to read as
follows:
  d. For projects to be funded pursuant  to  subdivision  four  of  this
section,  the  chancellor shall transmit the detailed scope of each such
project to the director  of  management  and  budget  of  the  city  for
approval.
  (i) Except as provided in paragraph b of this subdivision, no expenses
shall  be  incurred  by  the  city  board  or the authority for any such
project prior to approval of the detailed scope  of  any  such  project.
SUCH  DETAILED  SCOPE  OF  THE  PROJECT  SHALL DESCRIBE SPECIFICALLY THE
NATURE OF THE WORK, INCLUDING THE TYPE OF WORK TO BE PERFORMED.
  (ii) No detailed scope of project shall be approved unless  the  total
estimated  costs  of such project, together with the aggregate estimated
costs of all projects for which a detailed scope  has  theretofore  been
approved, are within city capital budget appropriations available there-
for. A detailed scope of project that is not disapproved by the director
of  management  and budget within thirty days of its submission shall be
deemed approved. To the extent the director disapproves all or part of a
scope, he shall set forth in writing the reasons therefor.
  (iii) Upon approval of the detailed scope of project,  the  chancellor
shall  refer  such  project  to  the  New  York city school construction
authority for implementation in accordance with an agreement between the
authority and the city board and shall  transmit  the  approved  project

S. 5149--B                          7

scope  to  the  comptroller  whereupon the total estimated costs of such
project as set forth in such approved project scope shall  be  available
for  expenditure.   ALL SUCH ESTIMATED COSTS SHALL BE FOR A FIXED DOLLAR
AMOUNT.
  (iv)  Approval  of  the  director  of  management  and budget shall be
required for any material change  in  the  approved  detailed  scope  of
project  or for any increase in the total cost of such project in excess
of any reserve provided in the approved detailed scope of project.  Such
approval shall be given or deemed given in the manner provided herein.
  (v)  The  provisions  of  this  paragraph shall not apply to emergency
projects undertaken pursuant to paragraph h of subdivision two  of  this
section,  the estimated costs of which, together with the costs of other
projects undertaken pursuant to said paragraph h, does  not  exceed  the
amount  set  forth in the educational facilities capital plan for activ-
ities pursuant to paragraph h of subdivision two of this section.
  S 12. This act shall take effect on the ninetieth day after  it  shall
have become a law; provided, however, that:
  (a) the amendments to paragraph (c) of subdivision 3 of section 220 of
the  labor  law  made by section one of this act shall be subject to the
expiration and reversion of such paragraph  pursuant  to  section  5  of
chapter  678  of  the  laws of 2007, as amended, when upon such date the
provisions of section two of this act shall take effect;
  (b) the amendments to subdivisions 1 and  2  of  section  103  of  the
general  municipal law made by sections three and five of this act shall
be subject to the expiration and reversion of such subdivisions 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 sections four
and six of this act, respectively, shall take effect; and
  (c) the amendments to paragraph d of subdivision 6 of  section  2590-p
of the education law made by section ten of this act shall be subject to
the expiration and reversion of such paragraph pursuant to section 34 of
chapter  91  of  the  laws  of 2002, as amended, when upon such date the
provisions of section eleven of this act shall take effect.

S5149C - Bill Details

See Assembly Version of this Bill:
A9371C
Current Committee:
Law Section:
Labor Law
Laws Affected:
Amd §220, Lab L; add §148, St Fin L; add §103-h, Gen Mun i L
Versions Introduced in 2011-2012 Legislative Session:
A9371

S5149C - Bill Texts

view summary

Relates to labor performed under certain public work contracts; defines "job order contract" as certain competitive bid, indefinite quantity, fixed price, multi-task contracts; provides that such contracts shall have a defined scope of work and detailed description of such work; provides that such information shall be filed with the fiscal officer before soliciting for bids; provides that the cost of a job order contract may not exceed $500,000.

view sponsor memo
BILL NUMBER:S5149C

TITLE OF BILL:
An act
to amend the labor law, the state finance law and the general municipal
law, in relation to labor performed under certain public work contracts

PURPOSE OR GENERAL IDEA OF BILL:
To regulate the practice of job order contracting in relation to
public work projects.

SUMMARY OF SPECIFIC PROVISIONS:
Section 1 of the bill amends the labor law, defining "job order
contract," requiring that such contracts be filed with the
Department of Labor and expressly state that all work performed
under the contract applies to section 220 of the labor law.

Section 2 of the bill adds a new section to the state finance law that
will specify requirements and limitations on job order contracts.

Section 3 of the bill adds a new section to the general municipal law
that will specify requirements and limitations on job order contracts.

Section 4 of the bill would implement the legislation into law so that
it applies to all job order contracts solicited or renewed after its
enactment.

EXISTING LAW:
Currently there is no provision of New York State Law that
specifically mentions job order contracting.

JUSTIFICATION:
A job order contract ("JOC") is an indefinite quantity contract for
the-performance of construction, renovation, alteration and repair
tasks. A JOC is generally a multi-year contract that includes a base
year with multiple renewal options. A contractor bidding for a JOG
does not submit a fixed dollar figure as a contract. Rather, a
contractor submits an adjustment factor, known as a "multiplier,"
which is a percentage above or below prices for tasks that are set
forth in a unit price book. For example, a bid of 1.25 indicates that
the bidder would perform work at 125% of the price for each task in
the unit price book that the bidder performs. The bidder who
submits the lowest "multiplier" is awarded the JOG. The bidders are
bidding on a range of tasks that may or may not be performed over the
course of the contract.

Because of the indefinite nature of these contracts, many contractors
are unable to bid on such a complicated process. Those that do
submit bids, do not know the specifics of the work they will perform
and, therefore, cannot properly ascertain how much the project will
cost them. If the unit bid is too low and they turn out to be

underpaid, cost-saving measures could become necessary; corners might
be cut on these projects which would negate the very purpose of
public work.

It is has been wall founded by New York courts that imprecise bid
specifications violate the competitive bidding law because they
frustrate bidders' ability to set the lowest possible bid and
discourage persons from bidding (Matter of Sagamore Auto Body v.
County of Nassau, 104 A.D. 2d 818. 821. 2nd Dept 1964).

Job order contracting is traditionally appropriate for small
construction projects and this legislation would properly regulate
the practice as such.

PRIOR LEGISLATIVE HISTORY:
New Bill.

FISCAL IMPLICATIONS:
None.

EFFECTIVE DATE:
This act shall take effect immediately.

view full text
download pdf
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                 5149--C

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                               May 3, 2011
                               ___________

Introduced  by  Sen. BONACIC -- read twice and ordered printed, and when
  printed to be  committed  to  the  Committee  on  Labor  --  committee
  discharged, bill amended, ordered reprinted as amended and recommitted
  to  said  committee  --  committee  discharged,  bill amended, ordered
  reprinted as amended and recommitted to said committee --  recommitted
  to  the Committee on Labor in accordance with Senate Rule 6, sec. 8 --
  committee discharged, bill amended, ordered reprinted as  amended  and
  recommitted to said committee

AN  ACT  to  amend  the labor law, the state finance law and the general
  municipal law, in relation to labor  performed  under  certain  public
  work contracts

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

  Section 1. Subdivision 5 of section 220 of the labor law is amended by
adding a new paragraph m to read as follows:
  M. "JOB ORDER CONTRACT" SHALL MEAN A COMPETITIVE BID, INDEFINITE QUAN-
TITY, FIXED PRICE, MULTI-TASK CONTRACT, WHERE A BASE CONTRACT IS AWARDED
WITH  PRE-ESTABLISHED  TASKS  AND  PRICES,  SPECIFICATIONS  AND  GENERAL
CONTRACT  CONDITIONS.  CONTRACTORS  ARE PERMITTED TO BID BY SUBMITTING A
COEFFICIENT OR COEFFICIENTS FOR A JOB ORDER CONTRACT  BASED  ON  A  UNIT
PRICE  BOOK, WHICH CONTAINS A LIST OF ALL TASKS THAT MAY BE PERFORMED AS
PART OF THE WORK  TO  BE  PERFORMED  UNDER  THE  BASE  CONTRACT.    SUCH
CONTRACTS  MUST  BE  FILED  WITH  THE  COMMISSIONER BY THE DEPARTMENT OF
JURISDICTION AND MUST EXPRESSLY STATE THAT ALL WORK PERFORMED UNDER SUCH
CONTRACT IS PURSUANT TO THIS SECTION.
  S 2. The state finance law is amended by adding a new section  148  to
read as follows:
  S  148.  JOB  ORDER CONTRACTS. 1. "JOB ORDER CONTRACT", SHALL HAVE THE
SAME MEANING AS SET FORTH IN PARAGRAPH M OF SUBDIVISION FIVE OF  SECTION
TWO HUNDRED TWENTY OF THE LABOR LAW.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD09486-04-2

S. 5149--C                          2

  2.  THE  JOB  ORDER  CONTRACT MUST HAVE A DEFINED SCOPE OF WORK, WHICH
INCLUDES:
  A.  A LIMITATION TO ONE OF THE GEOGRAPHIC REGIONS COMMONLY REFERRED TO
AS THE CAPITAL  DISTRICT,  MOHAWK  VALLEY,  CENTRAL  NEW  YORK,  GENESEE
VALLEY,  WESTERN  NEW YORK, SOUTHERN TIER, NORTH COUNTRY, LONG ISLAND OR
NEW YORK CITY;
  B. A DEFINED TRADE OF EITHER:
  (I) BASIC TRADES, INCLUDING CARPENTERS, LABORERS AND BRICKLAYERS,
  (II) PLUMBING AND GAS FITTING,
  (III) STEAM HEATING, HOT WATER HEATING, VENTILATING AND AIR CONDITION-
ING APPARATUS,
  (IV) ELECTRIC WIRING AND STANDARD ILLUMINATING FIXTURES,
  (V) ROOFING,
  (VI) WELDING,
  (VII) IRONWORK,
  (VIII) CONCRETE FINISHING, OR
  (IX) PAINTING AND PLASTERING; AND
  C. A DETAILED DESCRIPTION OF THE WORK TO BE PERFORMED UNDER  THE  BASE
CONTRACT,  A  LIST  OF  THE  TASKS  NECESSARY TO COMPLETE THE WORK TO BE
PERFORMED UNDER THE BASE CONTRACT AND THE TRADE CLASSIFICATIONS  OF  THE
WORKERS,  MECHANICS  AND  LABORERS  WHO  WILL PERFORM EACH OF THE LISTED
TASKS IN THE BASE CONTRACT.
  3. THE DEFINED SCOPE OF WORK TO BE PERFORMED UNDER THE  BASE  CONTRACT
MUST  NOT BE OVERLY BROAD SO AS TO PREVENT THE CONTRACTOR FROM MAKING AN
INFORMED BID DURING THE COMPETITIVE BID PROCESS. THE CONTRACTING  ENTITY
MUST  LIMIT  THE  WORK  TO BE PERFORMED UNDER THE BASE CONTRACT TO THOSE
PRE-ESTABLISHED TASKS AND PRICES REFERRED TO  IN  THE  GENERAL  CONTRACT
CONDITIONS.
  4. BEFORE SOLICITING BIDS FOR THE BASE CONTRACT, THE CONTRACTING ENTI-
TY  SHALL FILE ALL INFORMATION REQUIRED BY SUBPARAGRAPH (I) OF PARAGRAPH
A OF SUBDIVISION THREE-A OF SECTION TWO HUNDRED TWENTY OF THE LABOR  LAW
WITH THE FISCAL OFFICER. THE CONTRACTING ENTITY MAY NOT SOLICIT BIDS FOR
THE  CONTRACT  UNTIL ALL REQUIREMENTS OF SUBPARAGRAPH (I) OF PARAGRAPH A
OF SUBDIVISION THREE-A OF SECTION TWO HUNDRED TWENTY OF  THE  LABOR  LAW
HAVE BEEN SATISFIED.
  5.  THE COST OF A JOB ORDER CONTRACT MAY NOT EXCEED FIVE HUNDRED THOU-
SAND DOLLARS. SUCH CONTRACT IS LIMITED TO ONE YEAR AND  MAY  BE  RENEWED
FOR  AN ADDITIONAL TWELVE MONTHS TWICE SO LONG AS THE FIVE HUNDRED THOU-
SAND DOLLAR THRESHOLD HAS NOT  BEEN  REACHED.  IT  IS  IMPERMISSIBLE  TO
SUBDIVIDE  A  CONTRACT  INTO  SEPARATE  CONTRACTS  IN  ORDER TO MEET THE
REQUIREMENTS OF THIS SUBDIVISION.
  6. THE JOB ORDER CONTRACT AND ALL SUBCONTRACTS  ASSOCIATED  WITH  SUCH
JOB  ORDER  CONTRACT  MUST EXPRESSLY STATE THAT ALL WORK PERFORMED UNDER
SUCH CONTRACTS IS PURSUANT TO SECTION TWO HUNDRED TWENTY  OF  THE  LABOR
LAW.
  7.  THESE  REQUIREMENTS  APPLY  TO ALL JOB ORDER CONTRACTS ISSUED BY A
STATE AGENCY, AS DEFINED BY SUBDIVISION THREE OF SECTION TWO-A  OF  THIS
CHAPTER,  OR  A  COVERED  AUTHORITY,  AS  DEFINED  BY SUBDIVISION SIX OF
SECTION TWO-A OF THIS CHAPTER, OR THE NEW YORK CITY SCHOOL  CONSTRUCTION
AUTHORITY,  ESTABLISHED  UNDER  TITLE SIX OF ARTICLE EIGHT OF THE PUBLIC
AUTHORITIES LAW. ALL SUCH ENTITIES MUST LIMIT ASSIGNMENT UNDER CONTRACTS
ISSUED PURSUANT TO THIS SECTION TO A  MINORITY  PORTION  OF  ITS  ANNUAL
CAPITAL BUDGET, IF SUCH BUDGET EXISTS.
  8. IF AN ENTITY DESCRIBED IN SUBDIVISION SEVEN OF THIS SECTION SEEKS A
THIRD PARTY CONSULTANT TO ASSIST, IN ANY MANNER, WITH THE BIDDING AND/OR

S. 5149--C                          3

IMPLEMENTATION OF A JOB ORDER CONTRACT, SUCH THIRD PARTY CONSULTANT MUST
BE SELECTED PURSUANT TO A COMPETITIVE BID PROCESS.
  S  3.  The  general  municipal  law is amended by adding a new section
103-h to read as follows:
  S 103-H. JOB ORDER CONTRACTS. 1. "JOB ORDER CONTRACT", SHALL HAVE  THE
SAME  MEANING AS SET FORTH IN PARAGRAPH M OF SUBDIVISION FIVE OF SECTION
TWO HUNDRED TWENTY OF THE LABOR LAW.
  2. THE JOB ORDER CONTRACT MUST HAVE A DEFINED  SCOPE  OF  WORK,  WHICH
INCLUDES:
  A.  A LIMITATION TO ONE OF THE GEOGRAPHIC REGIONS COMMONLY REFERRED TO
AS THE CAPITAL  DISTRICT,  MOHAWK  VALLEY,  CENTRAL  NEW  YORK,  GENESEE
VALLEY,  WESTERN  NEW YORK, SOUTHERN TIER, NORTH COUNTRY, LONG ISLAND OR
NEW YORK CITY;
  B. A DEFINED TRADE OF EITHER:
  (I) BASIC TRADES, INCLUDING CARPENTERS, LABORERS AND BRICKLAYERS,
  (II) PLUMBING AND GAS FITTING,
  (III) STEAM HEATING, HOT WATER HEATING, VENTILATING AND AIR CONDITION-
ING APPARATUS,
  (IV) ELECTRIC WIRING AND STANDARD ILLUMINATING FIXTURES,
  (V) ROOFING,
  (VI) WELDING,
  (VII) IRONWORK,
  (VIII) CONCRETE FINISHING, OR
  (IX) PAINTING AND PLASTERING; AND
  C. A DETAILED DESCRIPTION OF THE WORK TO BE PERFORMED UNDER  THE  BASE
CONTRACT,  A  LIST  OF  THE  TASKS  NECESSARY TO COMPLETE THE WORK TO BE
PERFORMED UNDER THE BASE CONTRACT AND THE TRADE CLASSIFICATIONS  OF  THE
WORKERS,  MECHANICS  AND  LABORERS  WHO  WILL PERFORM EACH OF THE LISTED
TASKS IN THE BASE CONTRACT.
  3. THE DEFINED SCOPE OF WORK TO BE PERFORMED UNDER THE  BASE  CONTRACT
MUST  NOT BE OVERLY BROAD SO AS TO PREVENT THE CONTRACTOR FROM MAKING AN
INFORMED BID DURING THE COMPETITIVE BID PROCESS. THE CONTRACTING  ENTITY
MUST  LIMIT  THE  WORK  TO BE PERFORMED UNDER THE BASE CONTRACT TO THOSE
PRE-ESTABLISHED TASKS AND PRICES REFERRED TO  IN  THE  GENERAL  CONTRACT
CONDITIONS.
  4. BEFORE SOLICITING BIDS FOR THE BASE CONTRACT, THE CONTRACTING ENTI-
TY  SHALL FILE ALL INFORMATION REQUIRED BY SUBPARAGRAPH (I) OF PARAGRAPH
A OF SUBDIVISION THREE-A OF SECTION TWO HUNDRED TWENTY OF THE LABOR  LAW
WITH THE FISCAL OFFICER. THE CONTRACTING ENTITY MAY NOT SOLICIT BIDS FOR
THE  BASE  CONTRACT  UNTIL ALL REQUIREMENTS OF SUBPARAGRAPH (I) OF PARA-
GRAPH A OF SUBDIVISION THREE-A OF SECTION  TWO  HUNDRED  TWENTY  OF  THE
LABOR LAW HAVE BEEN SATISFIED.
  5.  THE COST OF A JOB ORDER CONTRACT MAY NOT EXCEED FIVE HUNDRED THOU-
SAND DOLLARS. SUCH CONTRACT IS LIMITED TO ONE YEAR AND  MAY  BE  RENEWED
FOR  AN ADDITIONAL TWELVE MONTHS TWICE SO LONG AS THE FIVE HUNDRED THOU-
SAND DOLLAR THRESHOLD HAS NOT  BEEN  REACHED.  IT  IS  IMPERMISSIBLE  TO
SUBDIVIDE  A  CONTRACT  INTO  SEPARATE  CONTRACTS  IN  ORDER TO MEET THE
REQUIREMENTS OF THIS SUBDIVISION.
  6. THE JOB ORDER CONTRACT AND ALL SUBCONTRACTS  ASSOCIATED  WITH  SUCH
JOB  ORDER  CONTRACT  MUST EXPRESSLY STATE THAT ALL WORK PERFORMED UNDER
SUCH CONTRACTS IS PURSUANT TO SECTION TWO HUNDRED TWENTY  OF  THE  LABOR
LAW.
  7.  THESE  REQUIREMENTS  APPLY TO ALL POLITICAL SUBDIVISIONS. ALL SUCH
POLITICAL SUBDIVISIONS MUST LIMIT  ASSIGNMENTS  UNDER  CONTRACTS  ISSUED
PURSUANT  TO  THIS  SECTION  TO A MINORITY PORTION OF ITS ANNUAL CAPITAL
BUDGET, IF SUCH BUDGET EXISTS.

S. 5149--C                          4

  8. IF A POLITICAL  SUBDIVISION  SEEKS  A  THIRD  PARTY  CONSULTANT  TO
ASSIST,  IN  ANY MANNER, WITH THE BIDDING AND/OR IMPLEMENTATION OF A JOB
ORDER CONTRACT, SUCH THIRD PARTY CONSULTANT MUST BE SELECTED PURSUANT TO
A COMPETITIVE BID PROCESS.
  S 4. This act shall take effect immediately and shall apply to all job
order contracts solicited or renewed on or after such effective date.

Co-Sponsors

S5149D - Bill Details

See Assembly Version of this Bill:
A9371C
Current Committee:
Law Section:
Labor Law
Laws Affected:
Amd §220, Lab L; add §148, St Fin L; add §103-h, Gen Mun i L
Versions Introduced in 2011-2012 Legislative Session:
A9371

S5149D - Bill Texts

view summary

Relates to labor performed under certain public work contracts; defines "job order contract" as certain competitive bid, indefinite quantity, fixed price, multi-task contracts; provides that such contracts shall have a defined scope of work and detailed description of such work; provides that such information shall be filed with the fiscal officer before soliciting for bids; provides that the cost of a job order contract may not exceed $500,000.

view sponsor memo
BILL NUMBER:S5149D

TITLE OF BILL:
An act to amend the labor law, the state finance law and the general
municipal law, in relation to labor performed under certain public work
contracts

PURPOSE OR GENERAL IDEA OF BILL:
To regulate the practice of job order contracting in relation to public
work projects.

SUMMARY OF SPECIFIC PROVISIONS:
Section 1 of the bill amends the labor law, defining "job order
contract," requiring that such contracts be filed with the Department of
Labor and expressly state that all work performed under the contract
applies to section 220 of the labor law.

Section 2 of the bill adds a new section to the state finance law that
will specify requirements and limitations on job order contracts.

Section 3 of the bill adds a new section to the general municipal law
that will specify requirements and limitations on job order contracts.

Section 4 of the bill would implement the legislation into law so that
it applies to all job order contracts solicited or renewed after its
enactment.

EXISTING LAW:
Currently there is no provision of New York State Law that specifically
mentions job order contracting.

JUSTIFICATION:
A job order contract ("JOC") is an indefinite quantity contract for the
performance of construction, renovation, alteration and repair tasks. A
JOC is generally a multi-year contract that includes a base year with
multiple renewal options. A contractor bidding for a JOG does not submit
a fixed dollar figure as a contract. Rather, a contractor submits an
adjustment factor, known as a "multiplier," which is a percentage above
or below prices for tasks that are set forth in a unit price book. For
example, a bid of 1.25 indicates that the bidder would perform work at
125% of the price for each task in the unit price book that the bidder
performs. The bidder who " submits the lowest "multiplier" is awarded
the JOG. The bidders are bidding on a range of tasks that mayor may not
be performed over the course of the contract.

Because of the indefinite nature of these contracts, many contractors
are unable to bid on such a complicated process. Those that do submit
bids, do not know the specifics of the work they will perform and,
therefore, cannot properly ascertain how much the project will cost
them. If the unit bid is too low and they turn out to be underpaid,

cost-saving measures could become necessary; corners might be cut on
these projects which would negate the very purpose of public work.

It is has been well founded by New York courts that imprecise bid spec-
ifications violate the competitive bidding law because they frustrate
bidders' ability to set the lowest possible bid and discourage persons
from bidding (Matter of Sagamore Auto Body v. County of Nassau, 104
A.D. 2d 818, 821, 2nd Dept 1964).

Job order contracting is traditionally appropriate for small
construction projects and this legislation would properly regulate the
practice as such.

PRIOR LEGISLATIVE HISTORY:
New Bill.

FISCAL IMPLICATIONS:
None.

EFFECTIVE DATE:
This act shall take effect immediately.

view full text
download pdf
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                 5149--D

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                               May 3, 2011
                               ___________

Introduced  by  Sen. BONACIC -- read twice and ordered printed, and when
  printed to be  committed  to  the  Committee  on  Labor  --  committee
  discharged, bill amended, ordered reprinted as amended and recommitted
  to  said  committee  --  committee  discharged,  bill amended, ordered
  reprinted as amended and recommitted to said committee --  recommitted
  to  the Committee on Labor in accordance with Senate Rule 6, sec. 8 --
  committee discharged, bill amended, ordered reprinted as  amended  and
  recommitted  to  said committee -- committee discharged, bill amended,
  ordered reprinted as amended and recommitted to said committee

AN ACT to amend the labor law, the state finance  law  and  the  general
  municipal  law,  in  relation  to labor performed under certain public
  work contracts

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

  Section 1. Subdivision 5 of section 220 of the labor law is amended by
adding a new paragraph m to read as follows:
  M. "JOB ORDER CONTRACT" SHALL MEAN A COMPETITIVE BID, INDEFINITE QUAN-
TITY, FIXED PRICE, MULTI-TASK CONTRACT, WHERE A BASE CONTRACT IS AWARDED
WITH  PRE-ESTABLISHED  TASKS  AND  PRICES,  SPECIFICATIONS  AND  GENERAL
CONTRACT CONDITIONS. CONTRACTORS ARE PERMITTED TO BID  BY  SUBMITTING  A
COEFFICIENT  OR  COEFFICIENTS  FOR  A JOB ORDER CONTRACT BASED ON A UNIT
PRICE BOOK, WHICH CONTAINS A LIST OF ALL TASKS THAT MAY BE PERFORMED  AS
PART  OF  THE  WORK  TO  BE  PERFORMED  UNDER  THE BASE CONTRACT.   SUCH
CONTRACTS MUST BE FILED WITH  THE  COMMISSIONER  BY  THE  DEPARTMENT  OF
JURISDICTION AND MUST EXPRESSLY STATE THAT ALL WORK PERFORMED UNDER SUCH
CONTRACT IS PURSUANT TO THIS SECTION.
  S  2.  The state finance law is amended by adding a new section 148 to
read as follows:
  S 148. JOB ORDER CONTRACTS. 1. "JOB ORDER CONTRACT",  SHALL  HAVE  THE
SAME  MEANING AS SET FORTH IN PARAGRAPH M OF SUBDIVISION FIVE OF SECTION
TWO HUNDRED TWENTY OF THE LABOR LAW.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD09486-05-2

S. 5149--D                          2

  2. THE JOB ORDER CONTRACT MUST HAVE A DEFINED  SCOPE  OF  WORK,  WHICH
INCLUDES:
  A.  A LIMITATION TO ONE OF THE GEOGRAPHIC REGIONS COMMONLY REFERRED TO
AS THE CAPITAL  DISTRICT,  MOHAWK  VALLEY,  CENTRAL  NEW  YORK,  GENESEE
VALLEY,  WESTERN  NEW YORK, SOUTHERN TIER, NORTH COUNTRY, LONG ISLAND OR
NEW YORK CITY;
  B. A DEFINED TRADE OF EITHER:
  (I) BASIC TRADES, INCLUDING CARPENTERS, LABORERS AND BRICKLAYERS,
  (II) PLUMBING AND GAS FITTING,
  (III) STEAM HEATING, HOT WATER HEATING, VENTILATING AND AIR CONDITION-
ING APPARATUS,
  (IV) ELECTRIC WIRING AND STANDARD ILLUMINATING FIXTURES,
  (V) ROOFING,
  (VI) WELDING,
  (VII) IRONWORK,
  (VIII) CONCRETE FINISHING, OR
  (IX) PAINTING AND PLASTERING; AND
  C. A DETAILED DESCRIPTION OF THE WORK TO BE PERFORMED UNDER  THE  BASE
CONTRACT,  A  LIST  OF  THE  TASKS  NECESSARY TO COMPLETE THE WORK TO BE
PERFORMED UNDER THE BASE CONTRACT AND THE TRADE CLASSIFICATIONS  OF  THE
WORKERS,  MECHANICS  AND  LABORERS  WHO  WILL PERFORM EACH OF THE LISTED
TASKS IN THE BASE CONTRACT.
  3. THE DEFINED SCOPE OF WORK TO BE PERFORMED UNDER THE  BASE  CONTRACT
MUST  NOT BE OVERLY BROAD SO AS TO PREVENT THE CONTRACTOR FROM MAKING AN
INFORMED BID DURING THE COMPETITIVE BID PROCESS. THE CONTRACTING  ENTITY
MUST  LIMIT  THE  WORK  TO BE PERFORMED UNDER THE BASE CONTRACT TO THOSE
PRE-ESTABLISHED TASKS AND PRICES REFERRED TO  IN  THE  GENERAL  CONTRACT
CONDITIONS.
  4. BEFORE SOLICITING BIDS FOR THE BASE CONTRACT, THE CONTRACTING ENTI-
TY  SHALL FILE ALL INFORMATION REQUIRED BY SUBPARAGRAPH (I) OF PARAGRAPH
A OF SUBDIVISION THREE-A OF SECTION TWO HUNDRED TWENTY OF THE LABOR  LAW
WITH THE FISCAL OFFICER. THE CONTRACTING ENTITY MAY NOT SOLICIT BIDS FOR
THE  CONTRACT  UNTIL ALL REQUIREMENTS OF SUBPARAGRAPH (I) OF PARAGRAPH A
OF SUBDIVISION THREE-A OF SECTION TWO HUNDRED TWENTY OF  THE  LABOR  LAW
HAVE BEEN SATISFIED.
  5.  THE COST OF A JOB ORDER CONTRACT MAY NOT EXCEED FIVE HUNDRED THOU-
SAND DOLLARS. SUCH CONTRACT IS LIMITED TO ONE YEAR AND  MAY  BE  RENEWED
FOR  AN ADDITIONAL TWELVE MONTHS TWICE SO LONG AS THE FIVE HUNDRED THOU-
SAND DOLLAR THRESHOLD HAS NOT  BEEN  REACHED.  IT  IS  IMPERMISSIBLE  TO
SUBDIVIDE  A  CONTRACT  INTO  SEPARATE  CONTRACTS  IN  ORDER TO MEET THE
REQUIREMENTS OF THIS SUBDIVISION.
  6. THE JOB ORDER CONTRACT AND ALL SUBCONTRACTS  ASSOCIATED  WITH  SUCH
JOB  ORDER  CONTRACT  MUST EXPRESSLY STATE THAT ALL WORK PERFORMED UNDER
SUCH CONTRACTS IS PURSUANT TO SECTION TWO HUNDRED TWENTY  OF  THE  LABOR
LAW.
  7.  THESE  REQUIREMENTS  APPLY  TO ALL JOB ORDER CONTRACTS ISSUED BY A
STATE AGENCY, AS DEFINED BY SUBDIVISION THREE OF SECTION TWO-A  OF  THIS
CHAPTER,  A  COVERED AUTHORITY, AS DEFINED BY SUBDIVISION SIX OF SECTION
TWO-A OF THIS CHAPTER, THE NEW YORK CITY HOUSING AUTHORITY,  ESTABLISHED
UNDER  TITLE  ONE OF ARTICLE THIRTEEN OF THE PUBLIC HOUSING LAW, AND THE
NEW YORK CITY SCHOOL CONSTRUCTION AUTHORITY, ESTABLISHED UNDER TITLE SIX
OF ARTICLE EIGHT OF THE PUBLIC AUTHORITIES LAW. ALL SUCH  ENTITIES  MUST
LIMIT  ASSIGNMENT  UNDER  CONTRACTS ISSUED PURSUANT TO THIS SECTION TO A
MINORITY PORTION OF ITS ANNUAL CAPITAL BUDGET, IF SUCH BUDGET EXISTS.
  8. IF AN ENTITY DESCRIBED IN SUBDIVISION SEVEN OF THIS SECTION SEEKS A
THIRD PARTY CONSULTANT TO ASSIST, IN ANY MANNER, WITH THE BIDDING AND/OR

S. 5149--D                          3

IMPLEMENTATION OF A JOB ORDER CONTRACT, SUCH THIRD PARTY CONSULTANT MUST
BE SELECTED PURSUANT TO A COMPETITIVE BID PROCESS.
  S  3.  The  general  municipal  law is amended by adding a new section
103-h to read as follows:
  S 103-H. JOB ORDER CONTRACTS. 1. "JOB ORDER CONTRACT", SHALL HAVE  THE
SAME  MEANING AS SET FORTH IN PARAGRAPH M OF SUBDIVISION FIVE OF SECTION
TWO HUNDRED TWENTY OF THE LABOR LAW.
  2. THE JOB ORDER CONTRACT MUST HAVE A DEFINED  SCOPE  OF  WORK,  WHICH
INCLUDES:
  A.  A LIMITATION TO ONE OF THE GEOGRAPHIC REGIONS COMMONLY REFERRED TO
AS THE CAPITAL  DISTRICT,  MOHAWK  VALLEY,  CENTRAL  NEW  YORK,  GENESEE
VALLEY,  WESTERN  NEW YORK, SOUTHERN TIER, NORTH COUNTRY, LONG ISLAND OR
NEW YORK CITY;
  B. A DEFINED TRADE OF EITHER:
  (I) BASIC TRADES, INCLUDING CARPENTERS, LABORERS AND BRICKLAYERS,
  (II) PLUMBING AND GAS FITTING,
  (III) STEAM HEATING, HOT WATER HEATING, VENTILATING AND AIR CONDITION-
ING APPARATUS,
  (IV) ELECTRIC WIRING AND STANDARD ILLUMINATING FIXTURES,
  (V) ROOFING,
  (VI) WELDING,
  (VII) IRONWORK,
  (VIII) CONCRETE FINISHING, OR
  (IX) PAINTING AND PLASTERING; AND
  C. A DETAILED DESCRIPTION OF THE WORK TO BE PERFORMED UNDER  THE  BASE
CONTRACT,  A  LIST  OF  THE  TASKS  NECESSARY TO COMPLETE THE WORK TO BE
PERFORMED UNDER THE BASE CONTRACT AND THE TRADE CLASSIFICATIONS  OF  THE
WORKERS,  MECHANICS  AND  LABORERS  WHO  WILL PERFORM EACH OF THE LISTED
TASKS IN THE BASE CONTRACT.
  3. THE DEFINED SCOPE OF WORK TO BE PERFORMED UNDER THE  BASE  CONTRACT
MUST  NOT BE OVERLY BROAD SO AS TO PREVENT THE CONTRACTOR FROM MAKING AN
INFORMED BID DURING THE COMPETITIVE BID PROCESS. THE CONTRACTING  ENTITY
MUST  LIMIT  THE  WORK  TO BE PERFORMED UNDER THE BASE CONTRACT TO THOSE
PRE-ESTABLISHED TASKS AND PRICES REFERRED TO  IN  THE  GENERAL  CONTRACT
CONDITIONS.
  4. BEFORE SOLICITING BIDS FOR THE BASE CONTRACT, THE CONTRACTING ENTI-
TY  SHALL FILE ALL INFORMATION REQUIRED BY SUBPARAGRAPH (I) OF PARAGRAPH
A OF SUBDIVISION THREE-A OF SECTION TWO HUNDRED TWENTY OF THE LABOR  LAW
WITH THE FISCAL OFFICER. THE CONTRACTING ENTITY MAY NOT SOLICIT BIDS FOR
THE  BASE  CONTRACT  UNTIL ALL REQUIREMENTS OF SUBPARAGRAPH (I) OF PARA-
GRAPH A OF SUBDIVISION THREE-A OF SECTION  TWO  HUNDRED  TWENTY  OF  THE
LABOR LAW HAVE BEEN SATISFIED.
  5.  THE COST OF A JOB ORDER CONTRACT MAY NOT EXCEED FIVE HUNDRED THOU-
SAND DOLLARS. SUCH CONTRACT IS LIMITED TO ONE YEAR AND  MAY  BE  RENEWED
FOR  AN ADDITIONAL TWELVE MONTHS TWICE SO LONG AS THE FIVE HUNDRED THOU-
SAND DOLLAR THRESHOLD HAS NOT  BEEN  REACHED.  IT  IS  IMPERMISSIBLE  TO
SUBDIVIDE  A  CONTRACT  INTO  SEPARATE  CONTRACTS  IN  ORDER TO MEET THE
REQUIREMENTS OF THIS SUBDIVISION.
  6. THE JOB ORDER CONTRACT AND ALL SUBCONTRACTS  ASSOCIATED  WITH  SUCH
JOB  ORDER  CONTRACT  MUST EXPRESSLY STATE THAT ALL WORK PERFORMED UNDER
SUCH CONTRACTS IS PURSUANT TO SECTION TWO HUNDRED TWENTY  OF  THE  LABOR
LAW.
  7.  THESE  REQUIREMENTS  APPLY TO ALL POLITICAL SUBDIVISIONS. ALL SUCH
POLITICAL SUBDIVISIONS MUST LIMIT  ASSIGNMENTS  UNDER  CONTRACTS  ISSUED
PURSUANT  TO  THIS  SECTION  TO A MINORITY PORTION OF ITS ANNUAL CAPITAL
BUDGET, IF SUCH BUDGET EXISTS.

S. 5149--D                          4

  8. IF A POLITICAL  SUBDIVISION  SEEKS  A  THIRD  PARTY  CONSULTANT  TO
ASSIST,  IN  ANY MANNER, WITH THE BIDDING AND/OR IMPLEMENTATION OF A JOB
ORDER CONTRACT, SUCH THIRD PARTY CONSULTANT MUST BE SELECTED PURSUANT TO
A COMPETITIVE BID PROCESS.
  S 4. This act shall take effect immediately and shall apply to all job
order contracts solicited or renewed on or after such effective date.

Co-Sponsors

S5149E - Bill Details

See Assembly Version of this Bill:
A9371C
Current Committee:
Law Section:
Labor Law
Laws Affected:
Amd §220, Lab L; add §148, St Fin L; add §103-h, Gen Mun i L
Versions Introduced in 2011-2012 Legislative Session:
A9371

S5149E - Bill Texts

view summary

Relates to labor performed under certain public work contracts; defines "job order contract" as certain competitive bid, indefinite quantity, fixed price, multi-task contracts; provides that such contracts shall have a defined scope of work and detailed description of such work; provides that such information shall be filed with the fiscal officer before soliciting for bids; provides that the cost of a job order contract may not exceed $500,000.

view sponsor memo
BILL NUMBER:S5149E

TITLE OF BILL:
An act
to amend the labor law, the state finance law and the general municipal
law, in relation to labor performed under certain public work contracts

PURPOSE OR GENERAL IDEA OF BILL:
To regulate the practice of job order contracting in relation to
public work projects.

SUMMARY OF SPECIFIC PROVISIONS:
Section 1 of the bill amends the labor law, defining "job order
contract," requiring that such contracts be filed with the Department
of Labor and expressly state that all work performed under the
contract applies to section 220 of the labor law.

Section 2 of the bill adds a new section to the state finance law that
will specify requirements and limitations on job order contracts.
Certain requirements will be removed if the public owner requires
inclusion of a project labor agreement to ensure that proper wages
and classifications are utilized under the contract.

Section 3 of the bill adds a new section to the general municipal law
that will specify requirements and limitations on job order
contracts. Certain requirements will be removed if the public owner
requires inclusion of a project labor agreement to ensure that proper
wages and classifications are utilized under the contract.

Section 4 of the bill would implement the legislation into law so that
it applies to all job order contracts solicited or renewed after its
enactment.

EXISTING LAW:
Currently there is no provision of New York State Law that
specifically mentions job order contracting.

JUSTIFICATION:
A job order contract ("JOC") is an indefinite quantity contract for
the-performance of construction, renovation, alteration and repair
tasks. A JOC is generally a multi-year contract that includes a base
year with multiple renewal options. A contractor bidding for a JOC
does not submit a fixed dollar figure as a contract. Rather, a
contractor submits an adjustment factor, known as a "multiplier,"
which is a percentage above or below prices for tasks that are set
forth in a unit price book. For example, a bid of 1.25 indicates that
the bidder would perform work at 125% of the price for each task in
the unit price book that the bidder performs. The bidder who submits
the lowest "multiplier" is awarded the JOC. The bidders are bidding
on a range of tasks that mayor may not be performed over the course
of the contract.

Because of the indefinite nature of these contracts, many contractors
are unable to bid on such a complicated process. Those that do submit
bids, do not know the specifics of the work they will perform and,
therefore, cannot properly ascertain how much the project will cost
them. If the unit bid is too low and they turn out to be
underpaid, cost-saving measures could become necessary; corners might
be cut on these projects which would negate the very purpose of
public work.

It is has been wall founded by New York courts that imprecise bid
specifications violate the competitive bidding law because they
frustrate bidders' ability to set the lowest possible bid and
discourage persons from bidding (Matter of Sagamore Auto Body v.
County of Nassau, 104 AD. 2d 818, 821, 2nd Dept 1964).

Job order contracting is traditionally appropriate for small
construction projects and this legislation would properly regulate
the practice as such.

PRIOR LEGISLATIVE HISTORY:
New Bill.

FISCAL IMPLICATIONS:
Because this legislation would allow for the continuing procurement of
all job order contracting so long as the public owner meets certain
standards in the bidding process, the sponsor does not anticipate a
fiscal impact beyond increased revenue from violations of the
prevailing wage laws that will be easier to ascertain based on the
reporting requirements in this bill.

EFFECTIVE DATE:
This act shall take effect immediately.

view full text
download pdf
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                 5149--E

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                               May 3, 2011
                               ___________

Introduced  by Sens. BONACIC, ADDABBO -- read twice and ordered printed,
  and when printed to be committed to the Committee on Labor --  commit-
  tee  discharged, bill amended, ordered reprinted as amended and recom-
  mitted to  said  committee  --  committee  discharged,  bill  amended,
  ordered  reprinted  as  amended  and  recommitted to said committee --
  recommitted to the Committee on Labor in accordance with  Senate  Rule
  6,  sec. 8 -- committee discharged, bill amended, ordered reprinted as
  amended and recommitted to said  committee  --  committee  discharged,
  bill  amended,  ordered  reprinted  as amended and recommitted to said
  committee -- reported favorably from said committee and  committed  to
  the  Committee  on  Finance  --  committee  discharged,  bill amended,
  ordered reprinted as amended and recommitted to said committee

AN ACT to amend the labor law, the state finance  law  and  the  general
  municipal  law,  in  relation  to labor performed under certain public
  work contracts

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

  Section 1. Subdivision 5 of section 220 of the labor law is amended by
adding a new paragraph m to read as follows:
  M. "JOB ORDER CONTRACT" SHALL MEAN A COMPETITIVE BID, INDEFINITE QUAN-
TITY, FIXED PRICE, MULTI-TASK CONTRACT, WHERE A BASE CONTRACT IS AWARDED
WITH  PRE-ESTABLISHED  TASKS  AND  PRICES,  SPECIFICATIONS  AND  GENERAL
CONTRACT CONDITIONS. CONTRACTORS ARE PERMITTED TO BID  BY  SUBMITTING  A
COEFFICIENT  OR  COEFFICIENTS  FOR  A JOB ORDER CONTRACT BASED ON A UNIT
PRICE BOOK, WHICH CONTAINS A LIST OF ALL TASKS THAT MAY BE PERFORMED  AS
PART  OF  THE  WORK  TO  BE  PERFORMED  UNDER  THE BASE CONTRACT.   SUCH
CONTRACTS MUST BE FILED WITH  THE  COMMISSIONER  BY  THE  DEPARTMENT  OF
JURISDICTION AND MUST EXPRESSLY STATE THAT ALL WORK PERFORMED UNDER SUCH
CONTRACT IS PURSUANT TO THIS SECTION.
  S  2.  The state finance law is amended by adding a new section 148 to
read as follows:

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD09486-06-2

S. 5149--E                          2

  S 148. JOB ORDER CONTRACTS. 1. "JOB ORDER CONTRACT",  SHALL  HAVE  THE
SAME  MEANING AS SET FORTH IN PARAGRAPH M OF SUBDIVISION FIVE OF SECTION
TWO HUNDRED TWENTY OF THE LABOR LAW.
  2.  THE  JOB  ORDER  CONTRACT MUST HAVE A DEFINED SCOPE OF WORK, WHICH
INCLUDES:
  A. A LIMITATION TO ONE OF THE GEOGRAPHIC REGIONS COMMONLY REFERRED  TO
AS  THE  CAPITAL  DISTRICT,  MOHAWK  VALLEY,  CENTRAL  NEW YORK, GENESEE
VALLEY, WESTERN NEW YORK, SOUTHERN TIER, NORTH COUNTRY, LONG  ISLAND  OR
NEW YORK CITY;
  B. A DEFINED TRADE OF EITHER:
  (I) BASIC TRADES, INCLUDING CARPENTERS, LABORERS AND BRICKLAYERS,
  (II) PLUMBING AND GAS FITTING,
  (III) STEAM HEATING, HOT WATER HEATING, VENTILATING AND AIR CONDITION-
ING APPARATUS,
  (IV) ELECTRIC WIRING AND STANDARD ILLUMINATING FIXTURES,
  (V) ROOFING,
  (VI) WELDING,
  (VII) IRONWORK,
  (VIII) CONCRETE FINISHING, OR
  (IX) PAINTING AND PLASTERING; AND
  C.  A  DETAILED DESCRIPTION OF THE WORK TO BE PERFORMED UNDER THE BASE
CONTRACT, A LIST OF THE TASKS NECESSARY  TO  COMPLETE  THE  WORK  TO  BE
PERFORMED  UNDER  THE BASE CONTRACT AND THE TRADE CLASSIFICATIONS OF THE
WORKERS, MECHANICS AND LABORERS WHO WILL  PERFORM  EACH  OF  THE  LISTED
TASKS IN THE BASE CONTRACT.
  3.  THE  DEFINED SCOPE OF WORK TO BE PERFORMED UNDER THE BASE CONTRACT
MUST NOT BE OVERLY BROAD SO AS TO PREVENT THE CONTRACTOR FROM MAKING  AN
INFORMED  BID DURING THE COMPETITIVE BID PROCESS. THE CONTRACTING ENTITY
MUST LIMIT THE WORK TO BE PERFORMED UNDER THE  BASE  CONTRACT  TO  THOSE
PRE-ESTABLISHED  TASKS  AND  PRICES  REFERRED TO IN THE GENERAL CONTRACT
CONDITIONS.
  4. BEFORE SOLICITING BIDS FOR THE BASE CONTRACT, THE CONTRACTING ENTI-
TY SHALL FILE ALL INFORMATION REQUIRED BY SUBPARAGRAPH (I) OF  PARAGRAPH
A  OF SUBDIVISION THREE-A OF SECTION TWO HUNDRED TWENTY OF THE LABOR LAW
WITH THE FISCAL OFFICER. THE CONTRACTING ENTITY MAY NOT SOLICIT BIDS FOR
THE CONTRACT UNTIL ALL REQUIREMENTS OF SUBPARAGRAPH (I) OF  PARAGRAPH  A
OF  SUBDIVISION  THREE-A  OF SECTION TWO HUNDRED TWENTY OF THE LABOR LAW
HAVE BEEN SATISFIED.
  5. THE COST OF A JOB ORDER CONTRACT MAY NOT EXCEED FIVE HUNDRED  THOU-
SAND  DOLLARS.  SUCH  CONTRACT IS LIMITED TO ONE YEAR AND MAY BE RENEWED
FOR AN ADDITIONAL TWELVE MONTHS TWICE SO LONG AS THE FIVE HUNDRED  THOU-
SAND  DOLLAR  THRESHOLD  HAS  NOT  BEEN  REACHED. IT IS IMPERMISSIBLE TO
SUBDIVIDE A CONTRACT INTO  SEPARATE  CONTRACTS  IN  ORDER  TO  MEET  THE
REQUIREMENTS  OF THIS SUBDIVISION.  THE RESTRICTIONS IN THIS SUBDIVISION
SHALL NOT APPLY WHERE THE PUBLIC OWNER REQUIRES A PROJECT  LABOR  AGREE-
MENT CONSISTENT WITH PROVISIONS OF SECTION TWO HUNDRED TWENTY-TWO OF THE
LABOR LAW.
  6.  THE  JOB  ORDER CONTRACT AND ALL SUBCONTRACTS ASSOCIATED WITH SUCH
JOB ORDER CONTRACT MUST EXPRESSLY STATE THAT ALL  WORK  PERFORMED  UNDER
SUCH  CONTRACTS  IS  PURSUANT TO SECTION TWO HUNDRED TWENTY OF THE LABOR
LAW.
  7. THESE REQUIREMENTS APPLY TO ALL JOB ORDER  CONTRACTS  ISSUED  BY  A
STATE  AGENCY,  AS DEFINED BY SUBDIVISION THREE OF SECTION TWO-A OF THIS
CHAPTER, A COVERED AUTHORITY, AS DEFINED BY SUBDIVISION SIX  OF  SECTION
TWO-A  OF THIS CHAPTER, THE NEW YORK CITY HOUSING AUTHORITY, ESTABLISHED
UNDER TITLE ONE OF ARTICLE THIRTEEN OF THE PUBLIC HOUSING LAW,  AND  THE

S. 5149--E                          3

NEW YORK CITY SCHOOL CONSTRUCTION AUTHORITY, ESTABLISHED UNDER TITLE SIX
OF  ARTICLE  EIGHT OF THE PUBLIC AUTHORITIES LAW. ALL SUCH ENTITIES MUST
LIMIT ASSIGNMENT UNDER CONTRACTS ISSUED PURSUANT TO THIS  SECTION  TO  A
MINORITY PORTION OF ITS ANNUAL CAPITAL BUDGET, IF SUCH BUDGET EXISTS.
  8. IF AN ENTITY DESCRIBED IN SUBDIVISION SEVEN OF THIS SECTION SEEKS A
THIRD PARTY CONSULTANT TO ASSIST, IN ANY MANNER, WITH THE BIDDING AND/OR
IMPLEMENTATION OF A JOB ORDER CONTRACT, SUCH THIRD PARTY CONSULTANT MUST
BE SELECTED PURSUANT TO A COMPETITIVE BID PROCESS.
  S  3.  The  general  municipal  law is amended by adding a new section
103-h to read as follows:
  S 103-H. JOB ORDER CONTRACTS. 1. "JOB ORDER CONTRACT", SHALL HAVE  THE
SAME  MEANING AS SET FORTH IN PARAGRAPH M OF SUBDIVISION FIVE OF SECTION
TWO HUNDRED TWENTY OF THE LABOR LAW.
  2. THE JOB ORDER CONTRACT MUST HAVE A DEFINED  SCOPE  OF  WORK,  WHICH
INCLUDES:
  A.  A LIMITATION TO ONE OF THE GEOGRAPHIC REGIONS COMMONLY REFERRED TO
AS THE CAPITAL  DISTRICT,  MOHAWK  VALLEY,  CENTRAL  NEW  YORK,  GENESEE
VALLEY,  WESTERN  NEW YORK, SOUTHERN TIER, NORTH COUNTRY, LONG ISLAND OR
NEW YORK CITY;
  B. A DEFINED TRADE OF EITHER:
  (I) BASIC TRADES, INCLUDING CARPENTERS, LABORERS AND BRICKLAYERS,
  (II) PLUMBING AND GAS FITTING,
  (III) STEAM HEATING, HOT WATER HEATING, VENTILATING AND AIR CONDITION-
ING APPARATUS,
  (IV) ELECTRIC WIRING AND STANDARD ILLUMINATING FIXTURES,
  (V) ROOFING,
  (VI) WELDING,
  (VII) IRONWORK,
  (VIII) CONCRETE FINISHING, OR
  (IX) PAINTING AND PLASTERING; AND
  C. A DETAILED DESCRIPTION OF THE WORK TO BE PERFORMED UNDER  THE  BASE
CONTRACT,  A  LIST  OF  THE  TASKS  NECESSARY TO COMPLETE THE WORK TO BE
PERFORMED UNDER THE BASE CONTRACT AND THE TRADE CLASSIFICATIONS  OF  THE
WORKERS,  MECHANICS  AND  LABORERS  WHO  WILL PERFORM EACH OF THE LISTED
TASKS IN THE BASE CONTRACT.
  3. THE DEFINED SCOPE OF WORK TO BE PERFORMED UNDER THE  BASE  CONTRACT
MUST  NOT BE OVERLY BROAD SO AS TO PREVENT THE CONTRACTOR FROM MAKING AN
INFORMED BID DURING THE COMPETITIVE BID PROCESS. THE CONTRACTING  ENTITY
MUST  LIMIT  THE  WORK  TO BE PERFORMED UNDER THE BASE CONTRACT TO THOSE
PRE-ESTABLISHED TASKS AND PRICES REFERRED TO  IN  THE  GENERAL  CONTRACT
CONDITIONS.
  4. BEFORE SOLICITING BIDS FOR THE BASE CONTRACT, THE CONTRACTING ENTI-
TY  SHALL FILE ALL INFORMATION REQUIRED BY SUBPARAGRAPH (I) OF PARAGRAPH
A OF SUBDIVISION THREE-A OF SECTION TWO HUNDRED TWENTY OF THE LABOR  LAW
WITH THE FISCAL OFFICER. THE CONTRACTING ENTITY MAY NOT SOLICIT BIDS FOR
THE  BASE  CONTRACT  UNTIL ALL REQUIREMENTS OF SUBPARAGRAPH (I) OF PARA-
GRAPH A OF SUBDIVISION THREE-A OF SECTION  TWO  HUNDRED  TWENTY  OF  THE
LABOR LAW HAVE BEEN SATISFIED.
  5.  THE COST OF A JOB ORDER CONTRACT MAY NOT EXCEED FIVE HUNDRED THOU-
SAND DOLLARS. SUCH CONTRACT IS LIMITED TO ONE YEAR AND  MAY  BE  RENEWED
FOR  AN ADDITIONAL TWELVE MONTHS TWICE SO LONG AS THE FIVE HUNDRED THOU-
SAND DOLLAR THRESHOLD HAS NOT  BEEN  REACHED.  IT  IS  IMPERMISSIBLE  TO
SUBDIVIDE  A  CONTRACT  INTO  SEPARATE  CONTRACTS  IN  ORDER TO MEET THE
REQUIREMENTS OF THIS SUBDIVISION.  THE RESTRICTIONS IN THIS  SUBDIVISION
SHALL  NOT  APPLY WHERE THE PUBLIC OWNER REQUIRES A PROJECT LABOR AGREE-

S. 5149--E                          4

MENT CONSISTENT WITH PROVISIONS OF SECTION TWO HUNDRED TWENTY-TWO OF THE
LABOR LAW.
  6.  THE  JOB  ORDER CONTRACT AND ALL SUBCONTRACTS ASSOCIATED WITH SUCH
JOB ORDER CONTRACT MUST EXPRESSLY STATE THAT ALL  WORK  PERFORMED  UNDER
SUCH  CONTRACTS  IS  PURSUANT TO SECTION TWO HUNDRED TWENTY OF THE LABOR
LAW.
  7. THESE REQUIREMENTS APPLY TO ALL POLITICAL  SUBDIVISIONS.  ALL  SUCH
POLITICAL  SUBDIVISIONS  MUST  LIMIT  ASSIGNMENTS UNDER CONTRACTS ISSUED
PURSUANT TO THIS SECTION TO A MINORITY PORTION  OF  ITS  ANNUAL  CAPITAL
BUDGET, IF SUCH BUDGET EXISTS.
  8.  IF  A  POLITICAL  SUBDIVISION  SEEKS  A  THIRD PARTY CONSULTANT TO
ASSIST, IN ANY MANNER, WITH THE BIDDING AND/OR IMPLEMENTATION OF  A  JOB
ORDER CONTRACT, SUCH THIRD PARTY CONSULTANT MUST BE SELECTED PURSUANT TO
A COMPETITIVE BID PROCESS.
  S 4. This act shall take effect immediately and shall apply to all job
order contracts solicited or renewed on or after such effective date.

Co-Sponsors

S5149F (ACTIVE) - Bill Details

See Assembly Version of this Bill:
A9371C
Current Committee:
Law Section:
Labor Law
Laws Affected:
Amd §220, Lab L; add §148, St Fin L; add §103-h, Gen Mun i L
Versions Introduced in 2011-2012 Legislative Session:
A9371

S5149F (ACTIVE) - Bill Texts

view summary

Relates to labor performed under certain public work contracts; defines "job order contract" as certain competitive bid, indefinite quantity, fixed price, multi-task contracts; provides that such contracts shall have a defined scope of work and detailed description of such work; provides that such information shall be filed with the fiscal officer before soliciting for bids; provides that the cost of a job order contract may not exceed $500,000.

view sponsor memo
BILL NUMBER:S5149F

TITLE OF BILL:
An act
to amend the labor law, the state finance law and the general municipal
law, in relation to labor performed under certain public work contracts

PURPOSE OR GENERAL IDEA OF BILL:
To regulate the practice of job order contracting in relation to
public work projects.

SUMMARY OF SPECIFIC PROVISIONS:
Section 1 of the bill amends the labor law, defining "job order
contract," requiring that such contracts be filed with the Department
of Labor and expressly state that all work performed under the
contract applies to section 220 of the labor law.

Section 2 of the bill adds a new section to the state finance law that
will specify requirements and limitations on job order contracts.
Certain requirements will be removed if the public owner requires
inclusion of a project labor agreement to ensure that proper wages
and classifications are utilized under the contract.

Section 3 of the bill adds a new section to the general municipal law
that will specify requirements and limitations on job order
contracts. Certain requirements will be removed if the public owner
requires inclusion of a project labor agreement to ensure that proper
wages and classifications are utilized under the contract.

Section 4 of the bill would implement the legislation into law so that
it applies to all job order contracts solicited or renewed after its
enactment.

EXISTING LAW:
Currently there is no provision of New York State Law that
specifically mentions job order contracting.

JUSTIFICATION:
A job order contract ("JOC") is an indefinite quantity contract for
the-performance of construction, renovation, alteration and repair
tasks. A JOC is generally a multi-year contract that includes a base
year with multiple renewal options. A contractor bidding for a JOC
does not submit a fixed dollar figure as a contract. Rather, a
contractor submits an adjustment factor, known as a "multiplier,"
which is a percentage above or below prices for tasks that are set
forth in a unit price book. For example, a bid of 1.25 indicates that
the bidder would perform work at 125% of the price for each task in
the unit price book that the bidder performs. The bidder who submits
the lowest "multiplier" is awarded the JOC. The bidders are bidding
on a range of tasks that may or may not be performed over the course
of the contract.

Because of the indefinite nature of these contracts, many contractors
are unable to bid on such a complicated process. Those that do submit
bids, do not know the specifics of the work they will perform and,
therefore, cannot properly ascertain how much the project will cost
them. If the unit bid is too low and they turn out to be


underpaid, cost-saving measures could become necessary; corners might
be cut on these projects which would negate the very purpose of
public work.

It is has been wall founded by New York courts that imprecise bid
specifications violate the competitive bidding law because they
frustrate bidders' ability to set the lowest possible bid and
discourage persons from bidding (Matter of Sagamore Auto Body v.
County of Nassau, 104 A.D. 2d 818, 821, 2nd Dept 1964).

Job order contracting is traditionally appropriate for small
construction projects and this legislation would properly regulate
the practice as such.

PRIOR LEGISLATIVE HISTORY:
New Bill.

FISCAL IMPLICATIONS:
Because this legislation would allow for the continuing procurement of
all job order contracting so long as the public owner meets certain
standards in the bidding process, the sponsor does not anticipate a
fiscal impact beyond increased revenue from violations of the
prevailing wage laws that will be easier to ascertain based on the
reporting requirements in this bill.

EFFECTIVE DATE:
This act shall take effect immediately.

view full text
download pdf
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                 5149--F

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                               May 3, 2011
                               ___________

Introduced  by  Sens. BONACIC, ADDABBO, SAVINO -- read twice and ordered
  printed, and when printed to be committed to the Committee on Labor --
  committee discharged, bill amended, ordered reprinted as  amended  and
  recommitted  to  said committee -- committee discharged, bill amended,
  ordered reprinted as amended and  recommitted  to  said  committee  --
  recommitted  to  the Committee on Labor in accordance with Senate Rule
  6, sec. 8 -- committee discharged, bill amended, ordered reprinted  as
  amended  and  recommitted  to  said committee -- committee discharged,
  bill amended, ordered reprinted as amended  and  recommitted  to  said
  committee  --  reported favorably from said committee and committed to
  the Committee  on  Finance  --  committee  discharged,  bill  amended,
  ordered  reprinted  as  amended  and  recommitted to said committee --
  committee discharged, bill amended, ordered reprinted as  amended  and
  recommitted to said committee

AN  ACT  to  amend  the labor law, the state finance law and the general
  municipal law, in relation to labor  performed  under  certain  public
  work contracts

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

  Section 1. Subdivision 5 of section 220 of the labor law is amended by
adding a new paragraph m to read as follows:
  M. "JOB ORDER CONTRACT" SHALL MEAN A COMPETITIVE BID, INDEFINITE QUAN-
TITY, FIXED PRICE, MULTI-TASK CONTRACT, WHERE A BASE CONTRACT IS AWARDED
WITH  PRE-ESTABLISHED  TASKS  AND  PRICES,  SPECIFICATIONS  AND  GENERAL
CONTRACT  CONDITIONS.  CONTRACTORS  ARE PERMITTED TO BID BY SUBMITTING A
COEFFICIENT OR COEFFICIENTS FOR A JOB ORDER CONTRACT  BASED  ON  A  UNIT
PRICE  BOOK, WHICH CONTAINS A LIST OF ALL TASKS THAT MAY BE PERFORMED AS
PART OF THE WORK  TO  BE  PERFORMED  UNDER  THE  BASE  CONTRACT.    SUCH
CONTRACTS  MUST  BE  FILED  WITH  THE  COMMISSIONER BY THE DEPARTMENT OF
JURISDICTION AND MUST EXPRESSLY STATE THAT ALL WORK PERFORMED UNDER SUCH
CONTRACT IS PURSUANT TO THIS SECTION.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD09486-07-2

S. 5149--F                          2

  S 2. The state finance law is amended by adding a new section  148  to
read as follows:
  S  148.  JOB  ORDER CONTRACTS. 1. "JOB ORDER CONTRACT", SHALL HAVE THE
SAME MEANING AS SET FORTH IN PARAGRAPH M OF SUBDIVISION FIVE OF  SECTION
TWO HUNDRED TWENTY OF THE LABOR LAW.
  2.  THE  JOB  ORDER  CONTRACT MUST HAVE A DEFINED SCOPE OF WORK, WHICH
INCLUDES:
  A. A LIMITATION TO ONE OF THE GEOGRAPHIC REGIONS COMMONLY REFERRED  TO
AS THE CAPITAL DISTRICT, MOHAWK VALLEY, HUDSON VALLEY, CENTRAL NEW YORK,
FINGER  LAKES,  WESTERN  NEW  YORK,  SOUTHERN  TIER, NORTH COUNTRY, LONG
ISLAND OR NEW YORK CITY;
  B.  IDENTIFICATION OF TRADES RELEVANT FOR THE SPECIFIC SCOPE  OF  WORK
TO BE PERFORMED, INCLUDING BUT NOT LIMITED TO:
  (I) BASIC TRADES, INCLUDING CARPENTERS, LABORERS AND BRICKLAYERS,
  (II) PLUMBING AND GAS FITTING,
  (III) STEAM HEATING, HOT WATER HEATING, VENTILATING AND AIR CONDITION-
ING APPARATUS,
  (IV) ELECTRIC WIRING AND STANDARD ILLUMINATING FIXTURES,
  (V) ROOFING,
  (VI) WELDING,
  (VII) IRONWORK,
  (VIII) CONCRETE FINISHING, OR
  (IX) PAINTING AND PLASTERING; AND
  C.  A  DETAILED DESCRIPTION OF THE WORK TO BE PERFORMED UNDER THE BASE
CONTRACT, A LIST OF THE TASKS NECESSARY  TO  COMPLETE  THE  WORK  TO  BE
PERFORMED  UNDER  THE BASE CONTRACT AND THE TRADE CLASSIFICATIONS OF THE
WORKERS, MECHANICS AND LABORERS WHO WILL  PERFORM  EACH  OF  THE  LISTED
TASKS IN THE BASE CONTRACT.
  3.  THE  DEFINED SCOPE OF WORK TO BE PERFORMED UNDER THE BASE CONTRACT
MUST NOT BE OVERLY BROAD SO AS TO PREVENT THE CONTRACTOR FROM MAKING  AN
INFORMED  BID DURING THE COMPETITIVE BID PROCESS. THE CONTRACTING ENTITY
MUST LIMIT THE WORK TO BE PERFORMED UNDER THE  BASE  CONTRACT  TO  THOSE
PRE-ESTABLISHED  TASKS  AND  PRICES  REFERRED TO IN THE GENERAL CONTRACT
CONDITIONS.
  4. BEFORE SOLICITING BIDS FOR THE BASE CONTRACT, THE CONTRACTING ENTI-
TY SHALL FILE ALL INFORMATION REQUIRED BY SUBPARAGRAPH (I) OF  PARAGRAPH
A  OF SUBDIVISION THREE-A OF SECTION TWO HUNDRED TWENTY OF THE LABOR LAW
WITH THE FISCAL OFFICER. THE CONTRACTING ENTITY MAY NOT SOLICIT BIDS FOR
THE CONTRACT UNTIL ALL REQUIREMENTS OF SUBPARAGRAPH (I) OF  PARAGRAPH  A
OF  SUBDIVISION  THREE-A  OF SECTION TWO HUNDRED TWENTY OF THE LABOR LAW
HAVE BEEN SATISFIED.
  5. THE COST OF A JOB ORDER CONTRACT MAY NOT EXCEED FIVE HUNDRED  THOU-
SAND  DOLLARS.  SUCH  CONTRACT IS LIMITED TO ONE YEAR AND MAY BE RENEWED
FOR AN ADDITIONAL TWELVE MONTHS TWICE SO LONG AS THE FIVE HUNDRED  THOU-
SAND  DOLLAR  THRESHOLD  HAS  NOT  BEEN  REACHED. IT IS IMPERMISSIBLE TO
SUBDIVIDE A CONTRACT INTO  SEPARATE  CONTRACTS  IN  ORDER  TO  MEET  THE
REQUIREMENTS  OF THIS SUBDIVISION.  THE RESTRICTIONS IN THIS SUBDIVISION
SHALL NOT APPLY WHERE THE PUBLIC OWNER REQUIRES A PROJECT  LABOR  AGREE-
MENT CONSISTENT WITH PROVISIONS OF SECTION TWO HUNDRED TWENTY-TWO OF THE
LABOR LAW.
  6.  THE  JOB  ORDER CONTRACT AND ALL SUBCONTRACTS ASSOCIATED WITH SUCH
JOB ORDER CONTRACT MUST EXPRESSLY STATE THAT ALL  WORK  PERFORMED  UNDER
SUCH  CONTRACTS  IS  PURSUANT TO SECTION TWO HUNDRED TWENTY OF THE LABOR
LAW.
  7. THESE REQUIREMENTS APPLY TO ALL JOB ORDER  CONTRACTS  ISSUED  BY  A
STATE  AGENCY,  AS DEFINED BY SUBDIVISION THREE OF SECTION TWO-A OF THIS

S. 5149--F                          3

CHAPTER, A COVERED AUTHORITY, AS DEFINED BY SUBDIVISION SIX  OF  SECTION
TWO-A  OF THIS CHAPTER, THE NEW YORK CITY HOUSING AUTHORITY, ESTABLISHED
UNDER TITLE ONE OF ARTICLE THIRTEEN OF THE PUBLIC HOUSING LAW,  AND  THE
NEW YORK CITY SCHOOL CONSTRUCTION AUTHORITY, ESTABLISHED UNDER TITLE SIX
OF  ARTICLE  EIGHT OF THE PUBLIC AUTHORITIES LAW. ALL SUCH ENTITIES MUST
LIMIT ASSIGNMENT UNDER CONTRACTS ISSUED PURSUANT TO THIS  SECTION  TO  A
MINORITY PORTION OF ITS ANNUAL CAPITAL BUDGET, IF SUCH BUDGET EXISTS.
  8. IF AN ENTITY DESCRIBED IN SUBDIVISION SEVEN OF THIS SECTION SEEKS A
THIRD PARTY CONSULTANT TO ASSIST, IN ANY MANNER, WITH THE BIDDING AND/OR
IMPLEMENTATION OF A JOB ORDER CONTRACT, SUCH THIRD PARTY CONSULTANT MUST
BE SELECTED PURSUANT TO A COMPETITIVE BID PROCESS.
  S  3.  The  general  municipal  law is amended by adding a new section
103-h to read as follows:
  S 103-H. JOB ORDER CONTRACTS. 1. "JOB ORDER CONTRACT", SHALL HAVE  THE
SAME  MEANING AS SET FORTH IN PARAGRAPH M OF SUBDIVISION FIVE OF SECTION
TWO HUNDRED TWENTY OF THE LABOR LAW.
  2. THE JOB ORDER CONTRACT MUST HAVE A DEFINED  SCOPE  OF  WORK,  WHICH
INCLUDES:
  A.  A LIMITATION TO ONE OF THE GEOGRAPHIC REGIONS COMMONLY REFERRED TO
AS THE CAPITAL DISTRICT, MOHAWK VALLEY, HUDSON VALLEY, CENTRAL NEW YORK,
FINGER LAKES, WESTERN NEW  YORK,  SOUTHERN  TIER,  NORTH  COUNTRY,  LONG
ISLAND OR NEW YORK CITY;
  B.    IDENTIFICATION OF TRADES RELEVANT FOR THE SPECIFIC SCOPE OF WORK
TO BE PERFORMED, INCLUDING BUT NOT LIMITED TO:
  (I) BASIC TRADES, INCLUDING CARPENTERS, LABORERS AND BRICKLAYERS,
  (II) PLUMBING AND GAS FITTING,
  (III) STEAM HEATING, HOT WATER HEATING, VENTILATING AND AIR CONDITION-
ING APPARATUS,
  (IV) ELECTRIC WIRING AND STANDARD ILLUMINATING FIXTURES,
  (V) ROOFING,
  (VI) WELDING,
  (VII) IRONWORK,
  (VIII) CONCRETE FINISHING, OR
  (IX) PAINTING AND PLASTERING; AND
  C. A DETAILED DESCRIPTION OF THE WORK TO BE PERFORMED UNDER  THE  BASE
CONTRACT,  A  LIST  OF  THE  TASKS  NECESSARY TO COMPLETE THE WORK TO BE
PERFORMED UNDER THE BASE CONTRACT AND THE TRADE CLASSIFICATIONS  OF  THE
WORKERS,  MECHANICS  AND  LABORERS  WHO  WILL PERFORM EACH OF THE LISTED
TASKS IN THE BASE CONTRACT.
  3. THE DEFINED SCOPE OF WORK TO BE PERFORMED UNDER THE  BASE  CONTRACT
MUST  NOT BE OVERLY BROAD SO AS TO PREVENT THE CONTRACTOR FROM MAKING AN
INFORMED BID DURING THE COMPETITIVE BID PROCESS. THE CONTRACTING  ENTITY
MUST  LIMIT  THE  WORK  TO BE PERFORMED UNDER THE BASE CONTRACT TO THOSE
PRE-ESTABLISHED TASKS AND PRICES REFERRED TO  IN  THE  GENERAL  CONTRACT
CONDITIONS.
  4. BEFORE SOLICITING BIDS FOR THE BASE CONTRACT, THE CONTRACTING ENTI-
TY  SHALL FILE ALL INFORMATION REQUIRED BY SUBPARAGRAPH (I) OF PARAGRAPH
A OF SUBDIVISION THREE-A OF SECTION TWO HUNDRED TWENTY OF THE LABOR  LAW
WITH THE FISCAL OFFICER. THE CONTRACTING ENTITY MAY NOT SOLICIT BIDS FOR
THE  BASE  CONTRACT  UNTIL ALL REQUIREMENTS OF SUBPARAGRAPH (I) OF PARA-
GRAPH A OF SUBDIVISION THREE-A OF SECTION  TWO  HUNDRED  TWENTY  OF  THE
LABOR LAW HAVE BEEN SATISFIED.
  5.  THE COST OF A JOB ORDER CONTRACT MAY NOT EXCEED FIVE HUNDRED THOU-
SAND DOLLARS. SUCH CONTRACT IS LIMITED TO ONE YEAR AND  MAY  BE  RENEWED
FOR  AN ADDITIONAL TWELVE MONTHS TWICE SO LONG AS THE FIVE HUNDRED THOU-
SAND DOLLAR THRESHOLD HAS NOT  BEEN  REACHED.  IT  IS  IMPERMISSIBLE  TO

S. 5149--F                          4

SUBDIVIDE  A  CONTRACT  INTO  SEPARATE  CONTRACTS  IN  ORDER TO MEET THE
REQUIREMENTS OF THIS SUBDIVISION.  THE RESTRICTIONS IN THIS  SUBDIVISION
SHALL  NOT  APPLY WHERE THE PUBLIC OWNER REQUIRES A PROJECT LABOR AGREE-
MENT CONSISTENT WITH PROVISIONS OF SECTION TWO HUNDRED TWENTY-TWO OF THE
LABOR LAW.
  6.  THE  JOB  ORDER CONTRACT AND ALL SUBCONTRACTS ASSOCIATED WITH SUCH
JOB ORDER CONTRACT MUST EXPRESSLY STATE THAT ALL  WORK  PERFORMED  UNDER
SUCH  CONTRACTS  IS  PURSUANT TO SECTION TWO HUNDRED TWENTY OF THE LABOR
LAW.
  7. THESE REQUIREMENTS APPLY TO ALL POLITICAL  SUBDIVISIONS.  ALL  SUCH
POLITICAL  SUBDIVISIONS  MUST  LIMIT  ASSIGNMENTS UNDER CONTRACTS ISSUED
PURSUANT TO THIS SECTION TO A MINORITY PORTION  OF  ITS  ANNUAL  CAPITAL
BUDGET, IF SUCH BUDGET EXISTS.
  8.  IF  A  POLITICAL  SUBDIVISION  SEEKS  A  THIRD PARTY CONSULTANT TO
ASSIST, IN ANY MANNER, WITH THE BIDDING AND/OR IMPLEMENTATION OF  A  JOB
ORDER CONTRACT, SUCH THIRD PARTY CONSULTANT MUST BE SELECTED PURSUANT TO
A COMPETITIVE BID PROCESS.
  S 4. This act shall take effect immediately and shall apply to all job
order contracts solicited or renewed on or after such effective date.

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