senate Bill S5659B

2011-2012 Legislative Session

Relates to reciprocity of debarments imposed under the federal Davis-Bacon Act

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Sponsored By

Archive: Last Bill Status - In Committee


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

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Actions

view actions (12)
Assembly Actions - Lowercase
Senate Actions - UPPERCASE
Aug 15, 2012 print number 5659c
amend and recommit to rules
Jun 21, 2012 committed to rules
Jun 11, 2012 advanced to third reading
Jun 06, 2012 2nd report cal.
Jun 05, 2012 1st report cal.1075
Apr 24, 2012 print number 5659b
amend and recommit to labor
Feb 24, 2012 print number 5659a
amend and recommit to labor
Jan 04, 2012 referred to labor
Jun 09, 2011 referred to labor

Votes

view votes

Jun 5, 2012 - Labor committee Vote

S5659B
13
0
committee
13
Aye
0
Nay
2
Aye with Reservations
0
Absent
1
Excused
0
Abstained
show Labor committee vote details

Labor Committee Vote: Jun 5, 2012

aye wr (2)
excused (1)

Bill Amendments

Original
A
B
C (Active)
Original
A
B
C (Active)

S5659 - Bill Details

See Assembly Version of this Bill:
A7401B
Current Committee:
Law Section:
Labor Law
Laws Affected:
Amd §220-b, Lab L; amd §103, Gen Muni L

S5659 - Bill Texts

view summary

Relates to reciprocity of debarments imposed under the federal Davis-Bacon Act; provides that any contractor who has been debarred from federal job sites for having disregarded obligations to employees under the Davis-Bacon Act shall also be debarred under the labor law from bidding on or being awarded similar contracts on public work job sites sponsored by the state or any of its political subdivisions; provides that the contractor may appeal such a determination to the department of labor; provides that whether or not a contractor is debarred under the Davis-Bacon Act will be considered in the selection of a lowest responsible bidder.

view sponsor memo
BILL NUMBER:S5659

TITLE OF BILL:
An act
to amend the labor law and the general municipal law, in relation to
reciprocity of debarments imposed under the federal Davis-Bacon Act

PURPOSE:
The purpose of the bill is to ensure that those contractors who are
debarred on the federal level under the Davis-Bacon Act for wage
payment violations, are unable to bid on state public work contracts;
this legislation would close a loophole in the existing law. Under
the current law, contractors who have been debarred from federal job
sites are considered on equal footing with law-abiding contractors.
This bill would remedy this gross inequity by granting reciprocity to
debarments imposed by the federal government on contractors who have
violated the Davis-Bacon Act. New York courts have long settled that
the right to bid on a public work contract is not a property right.
This privilege to bid must be subject to certain restrictions, one of
which should be the ability of the bidder to comply with certain
prevailing wage provisions.

SUMMARY OF PROVISIONS:
Section 1 of the bill amends §220-b of the Labor law so that any
contractor who has been debarred from federal job sites for having
disregarded obligations to employees under the Davis-Bacon Act shall
also be debarred under the Labor law from bidding on or being awarded
similar contracts on public work job sites sponsored by the State or
any of its political subdivisions. The contractor may appeal such
determination to the Department of Labor (DOL).

Section 2 of the bill would add a new subdivision 1-b to section 103
of the general municipal law so that whether or not a contractor is
debarred under the David-Bacon Act will be considered in the
selection of a lowest responsible bidder. This provision will come
into play in the case where a contractor has appealed to DOL and been
removed from the state debarment list; the entity awarding the
contract will still be able to consider the circumstances of the
federal debarment.

Section 3 provides for an immediate effective date.

EXISTING LAW:
As stated above, under the current law, contractors who have been
debarred from federal job sites are considered on equal footing with
law-abiding contractors.

JUSTIFICATION:
Under Article 8 of the labor law, contractors or subcontractors who
engage in a public work project sponsored by the State of New York or
any of its political subdivisions are required to pay their laborers,
workers and material men not less than the prevailing rate of wage.

Recent studies indicate that fraud in the construction industry in New
York State has reached epidemic proportions. Dishonest contractors,
in an effort to cut corners and save on labor costs, have engaged in


a number of schemes to avoid paying workers the wage to which they
are statutorily entitled. They include the kickback of wages, dual
payrolls and cash-off-the-books schemes.

Under the existing law, a contractor may he debarred from
participation in public work projects if the Bureau of Public Works
finds that the contractor has knowingly committed two violations of
the prevailing wage law within a six-year period, or one violation
relating to the falsification of payroll records or the kickback of
wages or supplements. Debarments are also imposed when a person or
corporation, or any officer or shareholder who Owns or controls at
least ten percent of the outstanding stock of such corporation has
been convicted of any of an enumerated list of felonies for conduct
relating to obtaining, performing or attempting to perform a public
work contract with the state, any municipal corporation, public
benefit corporation or public body. Its federal counterpart, the
Davis-Bacon Act, imposes a similar penalty on contractors who are
found to have disregarded their obligations to employees under
federal wage-and-hour laws. At the present time, however, New York
labor law fails to recognize debarments imposed by the United States
Department of Labor. Working at a public work job site is a
privilege, not a right. New Yorkers are entitled to expect the
highest standard of integrity from contractors who bid on these
projects.

LEGISLATIVE HISTORY:
2010 Session - New Bill

FISCAL IMPLICATIONS:
None to State.

LOCAL FISCAL IMPLICATIONS:
None.

EFFECTIVE DATE:
Immediately.

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

                                  5659

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                              June 9, 2011
                               ___________

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

AN ACT to amend the labor law and the general municipal law, in relation
  to reciprocity of debarments imposed under the federal Davis-Bacon Act

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

  Section  1. Paragraph b of subdivision 3 of section 220-b of the labor
law is amended by adding a new subparagraph 3 to read as follows:
  (3) WHEN ANY PERSON OR ENTITY IS DEBARRED FOR HAVING DISREGARDED OBLI-
GATIONS TO EMPLOYEES UNDER THE DAVIS-BACON ACT  PURSUANT  TO  40  U.S.C.
3144  AND  29  C.F.R.  5.12, SUCH PERSON OR ENTITY, AND ANY FIRM, CORPO-
RATION, PARTNERSHIP OR ASSOCIATION IN WHICH THE PERSON OR ENTITY OWNS OR
CONTROLS AT LEAST TEN PER CENTUM, SHALL BE INELIGIBLE TO SUBMIT A BID ON
OR BE AWARDED ANY PUBLIC WORKS CONTRACT WITH THE  STATE,  ANY  MUNICIPAL
CORPORATION,  PUBLIC  BENEFIT CORPORATION OR PUBLIC BODY FOR A PERIOD OF
THREE YEARS FROM THE DATE ON WHICH THE NAME OF THE PERSON OR  ENTITY  IS
PUBLISHED  IN  THE  LIST  OF  DEBARRED CONTRACTORS PURSUANT TO 40 U.S.C.
3144. THE DEPARTMENT WILL NOTIFY THE PERSON  OR  ENTITY  IMMEDIATELY  OF
SUCH INELIGIBILITY AND SUCH PERSON OR ENTITY MUST BE AFFORDED THE OPPOR-
TUNITY TO APPEAL TO THE DEPARTMENT.
  S  2.  Section 103 of the general municipal law is amended by adding a
new subdivision 1-b to read as follows:
  1-B. IN DETERMINING THE LOWEST RESPONSIBLE BIDDER, THE OFFICER,  BOARD
OR  AGENCY  OF  ANY  POLITICAL  SUBDIVISION  OR  OF ANY DISTRICT THEREIN
CHARGED WITH AWARDING OF CONTRACTS, SHALL CONSIDER WHETHER  OR  NOT  THE
BIDDER,  OR  A  PERSON  OR  ENTITY  WITH AN INTEREST OF AT LEAST TEN PER
CENTUM IN THE BIDDER, IS DEBARRED FOR HAVING DISREGARDED OBLIGATIONS  TO
EMPLOYEES  UNDER  THE  DAVIS-BACON ACT PURSUANT TO 40 U.S.C. 3144 AND 29
C.F.R. 5.12, IN MAKING SUCH DETERMINATION OF AWARD.
  S 3. This act shall take effect immediately.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD10848-01-1

S5659A - Bill Details

See Assembly Version of this Bill:
A7401B
Current Committee:
Law Section:
Labor Law
Laws Affected:
Amd §220-b, Lab L; amd §103, Gen Muni L

S5659A - Bill Texts

view summary

Relates to reciprocity of debarments imposed under the federal Davis-Bacon Act; provides that any contractor who has been debarred from federal job sites for having disregarded obligations to employees under the Davis-Bacon Act shall also be debarred under the labor law from bidding on or being awarded similar contracts on public work job sites sponsored by the state or any of its political subdivisions; provides that the contractor may appeal such a determination to the department of labor; provides that whether or not a contractor is debarred under the Davis-Bacon Act will be considered in the selection of a lowest responsible bidder.

view sponsor memo
BILL NUMBER:S5659A

TITLE OF BILL:
An act to amend the labor law and the general municipal law, in relation
to reciprocity of debarments imposed under the federal Davis-Bacon Act

PURPOSE:
The purpose of the bill is to ensure that those contractors who are
debarred on the federal level under the Davis-Bacon Act for wage payment
violations, are unable to bid on state public work contracts; this
legislation would close a loophole in the existing law. Under the
current law, contractors who have been debarred from federal job sites
are considered on equal footing with law-abiding contractors. This bill
would remedy this gross inequity by granting reciprocity to debarments
imposed by the federal government on contractors who have violated the
Davis-Bacon Act. New York courts have long settled that the right to bid
on a public work contract is not a property right. This privilege to
bid must be subject to certain restrictions, one of which should be the
ability of the bidder to comply with certain prevailing wage provisions.

SUMMARY OF PROVISIONS:
Section 1 of the bill amends §220-b of the Labor law so that any
contractor who has been debarred from federal job sites for having
disregarded obligations to employees under the Davis-Bacon Act shall
also be debarred under the Labor Law from bidding on or being awarded
similar contracts on public work job sites sponsored by the State or any
of its political subdivisions. The contractor may appeal such determi-
nation to the Department of Labor (DOL).

Section 2 of the bill would add a new subdivision 1-c to section 103 of
the general municipal law so that whether or not a contractor is
debarred under the David-Bacon Act will be considered in the selection
of a lowest responsible bidder. This provision will come into play in
the case where a contractor has appealed to DOL and been removed from
the state debarment list; the entity awarding the contract will still be
able to consider the circumstances of the federal debarment.

Section 3 provides for an immediate effective date.

Note on amendment - technical amendment was to section 2 of the bill -
changing subdivision 1-b to subdivision 1-c of § 103 of the general
municipal law.

EXISTING LAW:
As stated above, under the current law, contractors who have been
debarred from federal job sites are considered on equal footing with
law-abiding contractors.

JUSTIFICATION:
Under Article 8 of the labor law, contractors or subcontractors who
engage in a public work project sponsored by the State of New York or

any of its political subdivisions are required to pay their laborers,
workers and material men not less than the prevailing rate of wage.

Recent studies indicate that fraud in the construction industry in New
York State has reached epidemic proportions. Dishonest contractors, in
an effort to cut corners and save on labor costs, have engaged in a
number of schemes to avoid paying workers the wage to which they are
statutorily entitled. They include the kickback of wages, dual payrolls
and cash-off-the-books schemes.

Under the existing law, a contractor may he debarred from participation
in public work projects if the Bureau of Public Works finds that the
contractor has knowingly committed two violations of the prevailing wage
law within a six-year period, or one violation relating to the falsifi-
cation of payroll records or the kickback of wages or supplements.
Debarments are also imposed when a person or corporation, or any officer
or shareholder who owns or controls at least ten percent of the
outstanding stock of such corporation has been convicted of any of an
enumerated list of felonies for conduct relating to obtaining, perform-
ing or attempting to perform a public work contract with the state, any
municipal corporation, public benefit corporation or public body. Its
federal counterpart, the Davis-Bacon Act, imposes a similar penalty on
contractors who are found to have disregarded their obligations to
employees under federal wage-and-hour laws. At the present time, howev-
er, New York labor law fails to recognize debarments imposed by the
United States Department of labor. Working at a public work job site is
a privilege, not a right. New Yorkers are entitled to expect the highest
standard of integrity from contractors who bid on these projects.

LEGISLATIVE HISTORY:
2010 Session - New Bill

FISCAL IMPLICATIONS:
None to State.

LOCAL FISCAL IMPLICATIONS:
None.

EFFECTIVE DATE:
Immediately

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

                                 5659--A

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                              June 9, 2011
                               ___________

Introduced  by  Sen.  SAVINO -- read twice and ordered printed, and when
  printed to be committed to the Committee on Labor  --  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 and the general municipal law, in relation
  to reciprocity of debarments imposed under the federal Davis-Bacon Act

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

  Section 1. Paragraph b of subdivision 3 of section 220-b of the  labor
law is amended by adding a new subparagraph 3 to read as follows:
  (3) WHEN ANY PERSON OR ENTITY IS DEBARRED FOR HAVING DISREGARDED OBLI-
GATIONS  TO  EMPLOYEES  UNDER  THE DAVIS-BACON ACT PURSUANT TO 40 U.S.C.
3144 AND 29 C.F.R. 5.12, SUCH PERSON OR ENTITY,  AND  ANY  FIRM,  CORPO-
RATION, PARTNERSHIP OR ASSOCIATION IN WHICH THE PERSON OR ENTITY OWNS OR
CONTROLS AT LEAST TEN PER CENTUM, SHALL BE INELIGIBLE TO SUBMIT A BID ON
OR  BE  AWARDED  ANY PUBLIC WORKS CONTRACT WITH THE STATE, ANY MUNICIPAL
CORPORATION, PUBLIC BENEFIT CORPORATION OR PUBLIC BODY FOR A  PERIOD  OF
THREE  YEARS  FROM THE DATE ON WHICH THE NAME OF THE PERSON OR ENTITY IS
PUBLISHED IN THE LIST OF DEBARRED  CONTRACTORS  PURSUANT  TO  40  U.S.C.
3144.  THE  DEPARTMENT  WILL  NOTIFY THE PERSON OR ENTITY IMMEDIATELY OF
SUCH INELIGIBILITY AND SUCH PERSON OR ENTITY MUST BE AFFORDED THE OPPOR-
TUNITY TO APPEAL TO THE DEPARTMENT.
  S 2. Section 103 of the general municipal law is amended by  adding  a
new subdivision 1-c to read as follows:
  1-C.  IN DETERMINING THE LOWEST RESPONSIBLE BIDDER, THE OFFICER, BOARD
OR AGENCY OF ANY  POLITICAL  SUBDIVISION  OR  OF  ANY  DISTRICT  THEREIN
CHARGED  WITH  AWARDING  OF CONTRACTS, SHALL CONSIDER WHETHER OR NOT THE
BIDDER, OR A PERSON OR ENTITY WITH AN  INTEREST  OF  AT  LEAST  TEN  PER
CENTUM  IN THE BIDDER, IS DEBARRED FOR HAVING DISREGARDED OBLIGATIONS TO
EMPLOYEES UNDER THE DAVIS-BACON ACT PURSUANT TO 40 U.S.C.  3144  AND  29
C.F.R. 5.12, IN MAKING SUCH DETERMINATION OF AWARD.
  S 3. This act shall take effect immediately.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD10848-05-2

Co-Sponsors

S5659B - Bill Details

See Assembly Version of this Bill:
A7401B
Current Committee:
Law Section:
Labor Law
Laws Affected:
Amd §220-b, Lab L; amd §103, Gen Muni L

S5659B - Bill Texts

view summary

Relates to reciprocity of debarments imposed under the federal Davis-Bacon Act; provides that any contractor who has been debarred from federal job sites for having disregarded obligations to employees under the Davis-Bacon Act shall also be debarred under the labor law from bidding on or being awarded similar contracts on public work job sites sponsored by the state or any of its political subdivisions; provides that the contractor may appeal such a determination to the department of labor; provides that whether or not a contractor is debarred under the Davis-Bacon Act will be considered in the selection of a lowest responsible bidder.

view sponsor memo
BILL NUMBER:S5659B

TITLE OF BILL:
An act to amend the labor law and the general municipal law, in relation
to reciprocity of debarments imposed under the federal Davis-Bacon Act

PURPOSE:
The purpose of the bill is to ensure that those contractors who are
debarred on the federal level under the Davis-Bacon Act for wage payment
violations, are unable to bid on state public work contracts; this
legislation would close a loophole in the existing law. Under the
current law, contractors who have been debarred from federal job sites
are considered on equal footing with law-abiding contractors. This bill
would remedy this gross inequity by granting reciprocity to debarments
imposed by the federal government on contractors who have violated the
Davis-Bacon Act. New York courts have long settled that the right to bid
on a public work contract is not a property right. This privilege to
bid must be subject to certain restrictions, one of which should be the
ability of the bidder to comply with certain prevailing wage provisions.

SUMMARY OF PROVISIONS:
Section 1 of the bill amends §220-b of the Labor law so that any
contractor who has been debarred from federal job sites for having
disregarded obligations to employees under the Davis-Bacon Act shall
also be debarred under the Labor Law from bidding on or being awarded
similar contracts on public work job sites sponsored by the State or any
of its political subdivisions. The contractor may appeal such determi-
nation to the Department of Labor (DOL).

Section 2 of the bill would add a new subdivision 1-c to section 103 of
the general municipal law so that whether or not a contractor is
debarred under the David-Bacon Act will be considered in the selection
of a lowest responsible bidder. This provision will come into play in
the case where a contractor has appealed to DOL and been removed from
the state debarment list; the entity awarding the contract will still be
able to consider the circumstances of the federal debarment.

Section 3 provides for an immediate effective date.

Note on amendment to A print - technical amendment was to section 2 of
the bill - changing subdivision 1-b to subdivision 1-c of § 103 of the
general municipal law.

Note on amendment to B print - removes the three year debarment in NYS,
requires that debarments would run while federal debarment is in effect.

EXISTING LAW:
As stated above, under the current law, contractors who have been
debarred from federal job sites are considered on equal footing with
law-abiding contractors.

JUSTIFICATION
Under Article 8 of the labor law, contractors or subcontractors who
engage in a public work project sponsored by the State of New York or
any of its political subdivisions are required to pay their laborers,
workers and material men not less than the prevailing rate of wage.

Recent studies indicate that fraud in the construction industry in New
York State has reached epidemic Proportions. Dishonest contractors, in
an effort to cut corners and save on labor costs, have engaged in a
number of schemes to avoid paying workers the wage to which they are
statutorily entitled. They include the kickback of wages, dual payrolls
and cash-off-the-books schemes.

Under the existing law, a contractor may be debarred from participation
in public work projects if the Bureau of Public Works finds that the
contractor has knowingly committed two violations of the prevailing wage
law within a six-year period, or one violation relating to the falsifi-
cation of payroll records or the kickback of wages or supplements.
Debarments are also imposed when a person or corporation, or any officer
or shareholder who Owns or controls at least ten percent of the
outstanding stock of such corporation has been convicted of any of an
enumerated list of felonies for conduct relating to obtaining, perform-
ing or attempting to perform a public work contract with the state, any
municipal corporation, public benefit corporation or public body. Its
federal counterpart, the Davis-Bacon Act, imposes a similar penalty on
contractors who are found to have disregarded their obligations to
employees under federal wage-and-hour laws. At the present time, howev-
er, New York labor law fails to recognize debarments imposed by the
United States Department of labor. Working at a public work job site is
a privilege, not a right. New Yorkers are entitled to expect the highest
standard of integrity from contractors who bid on these projects.

LEGISLATIVE HISTORY:
2010 Session - New Bill

FISCAL IMPLICATIONS:
None to State.

LOCAL FISCAL IMPLICATIONS:
None.

EFFECTIVE DATE:
Immediately.

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

                                 5659--B

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                              June 9, 2011
                               ___________

Introduced  by  Sen.  SAVINO -- read twice and ordered printed, and when
  printed to be committed to the Committee on Labor  --  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 and the general municipal law, in relation
  to reciprocity of debarments imposed under the federal Davis-Bacon Act

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

  Section  1. Paragraph b of subdivision 3 of section 220-b of the labor
law is amended by adding a new subparagraph 3 to read as follows:
  (3) WHEN ANY PERSON OR ENTITY IS DEBARRED FOR HAVING DISREGARDED OBLI-
GATIONS TO EMPLOYEES UNDER THE DAVIS-BACON ACT  PURSUANT  TO  40  U.S.C.
3144  AND  29  C.F.R.  5.12, SUCH PERSON OR ENTITY, AND ANY FIRM, CORPO-
RATION, PARTNERSHIP OR ASSOCIATION IN WHICH THE PERSON OR ENTITY OWNS OR
CONTROLS AT LEAST TEN PER CENTUM, SHALL BE INELIGIBLE TO SUBMIT A BID ON
OR BE AWARDED ANY PUBLIC WORKS CONTRACT WITH THE  STATE,  ANY  MUNICIPAL
CORPORATION, PUBLIC BENEFIT CORPORATION OR PUBLIC BODY WHILE THE NAME OF
THE  PERSON  OR  ENTITY IS PUBLISHED IN THE LIST OF DEBARRED CONTRACTORS
PURSUANT TO 40 U.S.C. 3144. THE DEPARTMENT WILL  NOTIFY  THE  PERSON  OR
ENTITY  IMMEDIATELY OF SUCH INELIGIBILITY AND SUCH PERSON OR ENTITY MUST
BE AFFORDED THE OPPORTUNITY TO APPEAL TO THE DEPARTMENT.
  S 2. Section 103 of the general municipal law is amended by  adding  a
new subdivision 1-c to read as follows:
  1-C.  IN DETERMINING THE LOWEST RESPONSIBLE BIDDER, THE OFFICER, BOARD
OR AGENCY OF ANY  POLITICAL  SUBDIVISION  OR  OF  ANY  DISTRICT  THEREIN
CHARGED  WITH  AWARDING  OF CONTRACTS, SHALL CONSIDER WHETHER OR NOT THE
BIDDER, OR A PERSON OR ENTITY WITH AN  INTEREST  OF  AT  LEAST  TEN  PER
CENTUM  IN THE BIDDER, IS DEBARRED FOR HAVING DISREGARDED OBLIGATIONS TO
EMPLOYEES UNDER THE DAVIS-BACON ACT PURSUANT TO 40 U.S.C.  3144  AND  29
C.F.R. 5.12, IN MAKING SUCH DETERMINATION OF AWARD.
  S 3. This act shall take effect immediately.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD10848-06-2

Co-Sponsors

S5659C (ACTIVE) - Bill Details

See Assembly Version of this Bill:
A7401B
Current Committee:
Law Section:
Labor Law
Laws Affected:
Amd §220-b, Lab L; amd §103, Gen Muni L

S5659C (ACTIVE) - Bill Texts

view summary

Relates to reciprocity of debarments imposed under the federal Davis-Bacon Act; provides that any contractor who has been debarred from federal job sites for having disregarded obligations to employees under the Davis-Bacon Act shall also be debarred under the labor law from bidding on or being awarded similar contracts on public work job sites sponsored by the state or any of its political subdivisions; provides that the contractor may appeal such a determination to the department of labor; provides that whether or not a contractor is debarred under the Davis-Bacon Act will be considered in the selection of a lowest responsible bidder.

view sponsor memo
BILL NUMBER:S5659C

TITLE OF BILL:
An act to amend the labor law and the general municipal law, in
relation to reciprocity of debarments imposed under the federal
Davis-Bacon Act

PURPOSE:
The purpose of the bill is to ensure that those contractors who are
debarred on the federal level under the Davis-Bacon Act for wage
payment violations, are unable to bid on state public work contracts;
this legislation would close a loophole in the existing law. Under the
current law, contractors who have been debarred from federal job sites
are considered on equal footing with law-abiding contractors. This
bill would remedy this gross inequity by granting reciprocity to
debarments imposed by the federal government on contractors who have
violated the Davis-Bacon Act. New York courts have long settled that
the right to bid on a public work contract is not a property right.
This privilege to bid must be subject to certain restrictions, one of
which should be the ability of the bidder to comply with certain
prevailing wage provisions.

SUMMARY OF PROVISIONS:
Section 1 of the bill amends §220-b of the Labor law so that any
contractor who has been debarred from federal job sites for having
disregarded obligations to employees under the Davis-Bacon Act shall
also be debarred under the Labor Law from bidding on or being awarded
similar contracts on public work job sites sponsored by the State or
any of its political subdivisions. The contractor may appeal such
determination to the Department of Labor (DOL).

Section 2 of the bill would add a new subdivision 1-c to section 103
of the general municipal law so that whether or not a contractor is
debarred under the Davis-Bacon Act will be considered in the selection
of a lowest responsible bidder. This provision will come into play in
the case where a contractor has appealed to DOL and been removed from
the state debarment list; the entity awarding the contract will still
be able to consider the circumstances of the federal debarment.

Section 3 provides for an immediate effective date and that this shall
just apply prospectively.

Note on amendment to A print - technical amendment was to section 2 of
the bill-changing subdivision 1-b to subdivision 1-c of § 103 of the
general municipal law.

Note on amendment to B print - removes the three year debarment in
NYS, requires that debarments would run while federal debarment is in
effect.

Note on amendment to C print - clarifies that this shall apply
prospectively.

EXISTING LAW:


As stated above, under the current law, contractors who have been
debarred from federal job sites are considered on equal footing with
law-abiding contractors.

JUSTIFICATION:
Under Article 8 of the Labor Law, contractors or subcontractors who
engage in a public work project sponsored by the State of New York or
any of its political subdivisions are required to pay their laborers,
workers and material men not less than the prevailing rate of wage.

Recent studies indicate that fraud in the construction industry in New
York State has reached epidemic proportions. Dishonest contractors, in
an effort to cut corners and save on labor costs, have engaged in a
number of schemes to avoid paying workers the wage to which they are
statutorily entitled. They include the kickback of wages, dual
payrolls and cash-off-the-books schemes.

Under the existing law, a contractor may be debarred from
participation in public work projects if the Bureau of Public Works
finds that the contractor has knowingly committed two violations of
the prevailing wage law within a six-year period, or one violation
relating to the falsification of payroll records or the kickback of
wages or supplements. Debarments are also imposed when a person or
corporation, or any officer or shareholder who owns or controls at
least ten percent of the outstanding stock of such corporation has
been convicted of any of an enumerated list of felonies for conduct
relating to obtaining, performing or attempting to perform a public
work contract with the state, any municipal corporation, public
benefit corporation or public body. Its federal counterpart, the
Davis-Bacon Act, imposes a similar penalty on contractors who are
found to have disregarded their obligations to employees under federal
wage-and-hour laws. At the present time, however, New York Labor Law
fails to recognize debarments imposed by the United States Department
of Labor. Working at a public work job site is a privilege, not a
right. New Yorkers are entitled to expect the highest standard of
integrity from contractors who bid on these projects.

LEGISLATIVE HISTORY:
2010 Session - New Bill

FISCAL IMPLICATIONS:
None to State.

LOCAL FISCAL IMPLICATIONS:
None.

EFFECTIVE DATE:
Immediately.

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

                                 5659--C
    Cal. No. 1075

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                              June 9, 2011
                               ___________

Introduced  by  Sens.  SAVINO, ADDABBO, AVELLA, PARKER -- read twice and
  ordered printed, and when printed to be committed to the Committee  on
  Labor  --  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 -- committee discharged and said bill  committed  to
  the  Committee on Rules -- committee discharged, bill amended, ordered
  reprinted as amended and recommitted to said committee

AN ACT to amend the labor law and the general municipal law, in relation
  to reciprocity of debarments imposed under the federal Davis-Bacon Act

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

  Section  1. Paragraph b of subdivision 3 of section 220-b of the labor
law is amended by adding a new subparagraph 3 to read as follows:
  (3) WHEN ANY PERSON OR ENTITY IS DEBARRED FOR HAVING DISREGARDED OBLI-
GATIONS TO EMPLOYEES UNDER THE DAVIS-BACON ACT  PURSUANT  TO  40  U.S.C.
3144  AND  29  C.F.R.  5.12, SUCH PERSON OR ENTITY, AND ANY FIRM, CORPO-
RATION, PARTNERSHIP OR ASSOCIATION IN WHICH THE PERSON OR ENTITY OWNS OR
CONTROLS AT LEAST TEN PER CENTUM, SHALL BE INELIGIBLE TO SUBMIT A BID ON
OR BE AWARDED ANY PUBLIC WORKS CONTRACT WITH THE  STATE,  ANY  MUNICIPAL
CORPORATION, PUBLIC BENEFIT CORPORATION OR PUBLIC BODY WHILE THE NAME OF
THE  PERSON  OR  ENTITY IS PUBLISHED IN THE LIST OF DEBARRED CONTRACTORS
PURSUANT TO 40 U.S.C. 3144. THE DEPARTMENT WILL  NOTIFY  THE  PERSON  OR
ENTITY  IMMEDIATELY OF SUCH INELIGIBILITY AND SUCH PERSON OR ENTITY MUST
BE AFFORDED THE OPPORTUNITY TO APPEAL TO THE DEPARTMENT.
  S 2. Section 103 of the general municipal law is amended by  adding  a
new subdivision 1-c to read as follows:
  1-C.  IN DETERMINING THE LOWEST RESPONSIBLE BIDDER, THE OFFICER, BOARD
OR AGENCY OF ANY  POLITICAL  SUBDIVISION  OR  OF  ANY  DISTRICT  THEREIN
CHARGED  WITH  AWARDING  OF CONTRACTS, SHALL CONSIDER WHETHER OR NOT THE

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD10848-08-2

S. 5659--C                          2

BIDDER, OR A PERSON OR ENTITY WITH AN  INTEREST  OF  AT  LEAST  TEN  PER
CENTUM  IN THE BIDDER, IS DEBARRED FOR HAVING DISREGARDED OBLIGATIONS TO
EMPLOYEES UNDER THE DAVIS-BACON ACT PURSUANT TO 40 U.S.C.  3144  AND  29
C.F.R. 5.12, IN MAKING SUCH DETERMINATION OF AWARD.
  S  3.  This act shall take effect immediately and shall apply prospec-
tively to all public  work  bids  and  contracts.  It  shall  not  apply
retroactively  to  previously  issued  or existing public work contracts
with the state, any municipal corporation,  public  benefit  company  or
public body.

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