S T A T E O F N E W Y O R K
________________________________________________________________________
2303
2011-2012 Regular Sessions
I N A S S E M B L Y
January 18, 2011
___________
Introduced by M. of A. DESTITO -- read once and referred to the Commit-
tee on Governmental Operations
AN ACT to amend the state finance law and the general municipal law, in
relation to determining contractor responsibility on public
construction projects
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. The state finance law is amended by adding a new section
139-l to read as follows:
S 139-L. CONTRACTOR AND SUBCONTRACTOR RESPONSIBILITY. 1. FOR THE
PURPOSE OF THIS SECTION, THE FOLLOWING TERMS SHALL HAVE THE FOLLOWING
MEANINGS UNLESS OTHERWISE SPECIFIED:
A. "APPARENT LOW BIDDER" SHALL MEAN A BIDDER WHO, UPON THE OPENING OF
BIDS FOR A CONTRACT, IS DETERMINED TO HAVE SUBMITTED THE LOWEST BID FOR
SUCH CONTRACT.
B. "BIDDER" SHALL MEAN ANY PERSON, PARTNERSHIP, FIRM, CORPORATION OR
OTHER ENTITY SUBMITTING A COMPETITIVE BID FOR, OR SUBMITTED FOR APPROVAL
AS A SUBCONTRACTOR ON, A CONTRACT BY ANY CONTRACTING ENTITY.
C. "CONTRACT" SHALL MEAN ANY CONTRACT MADE AND AWARDED FOR
CONSTRUCTION, RECONSTRUCTION OR ALTERATION OF ANY PUBLIC WORK PROJECT
WHICH IS REQUIRED BY LAW TO BE LET BY COMPETITIVE BIDDING TO THE LOWEST
RESPONSIBLE BIDDER BY A CONTRACTING ENTITY.
D. "CONTRACTING ENTITY" SHALL MEAN ANY PUBLIC DEPARTMENT, PUBLIC BENE-
FIT CORPORATION OR PUBLIC CORPORATION COVERED BY SECTION ONE HUNDRED
THIRTY-NINE-F OF THIS ARTICLE OR SECTION THIRTY-EIGHT OF THE HIGHWAY
LAW.
E. "CONTRACTOR" SHALL MEAN A BIDDER WHO HAS BEEN AWARDED A CONTRACT.
F. "SUBCONTRACTOR" SHALL MEAN A PERSON, PARTNERSHIP, FIRM, CORPORATION
OR OTHER ENTITY THAT IS PROPOSED TO PERFORM WORK ON THE CONTRACT.
2. IN DELIBERATING UPON THE RESPONSIBILITY OF A BIDDER OR PROPOSED
SUBCONTRACTOR ON A CONTRACT, THE CONTRACTING ENTITY SHALL GIVE DUE
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD06368-01-1
A. 2303 2
CONSIDERATION TO ANY CREDIBLE EVIDENCE OR INFORMATION REASONABLY DEEMED
TO BE RELIABLE THAT THE PAST OR CURRENT RECORD OF A BIDDER OR PROPOSED
SUBCONTRACTOR SHALL WARRANT A DETERMINATION THAT SUCH BIDDER OR SUBCON-
TRACTOR IS NOT A RESPONSIBLE BIDDER. THE CONTRACTING ENTITY, IN DETER-
MINING THE RESPONSIBILITY OF THE APPARENT LOW BIDDER SHALL REQUIRE, AND
THE APPARENT LOW BIDDER SHALL PROVIDE, THE FOLLOWING INFORMATION RELAT-
ING TO THE APPARENT LOW BIDDER IN ORDER FOR THE CONTRACTING ENTITY TO
DETERMINE THE PECUNIARY AND FINANCIAL RESPONSIBILITY, ACCOUNTABILITY,
OPERATIONAL RESPONSIBILITY, RELIABILITY, SKILL, CAPACITY, ABILITY, JUDG-
MENT AND INTEGRITY OF THE APPARENT LOW BIDDER:
A. A DESCRIPTION OF ITS EXPERIENCE WITH PROJECTS OF COMPARATIVE SCOPE,
COMPLEXITY, AND COST WITHIN THE PAST FIVE YEARS, TOGETHER WITH DOCUMEN-
TARY EVIDENCE OF SUCH PROJECTS;
B. DOCUMENTATION REGARDING SUCH PROJECTS DESCRIBING THE FOLLOWING:
TIMELINESS OF PERFORMANCE; QUALITY OF WORK; EXTENSION REQUESTS; LITI-
GATION AND/OR ARBITRATION ARISING FROM SUCH WORK, INCLUDING FINES AND
PENALTIES IMPOSED AND PAYMENT THEREOF; LIENS FILED; HISTORY OF CLAIMS
FOR EXTRA WORK; CONTRACT DEFAULTS; AND AN EXPLANATION OF THE SAME;
C. IDENTIFICATION AND DESCRIPTION OF ANY PROJECTS WITHIN THE PREVIOUS
FIVE YEARS THAT THE APPARENT LOW BIDDER WAS DETERMINED BY THE CONTRACT-
ING ENTITY NOT TO BE A RESPONSIBLE BIDDER, AND THE REASONS GIVEN BY SUCH
ENTITY THEREFORE, TOGETHER WITH AN EXPLANATION THEREOF;
D. AN ADEQUATE DEMONSTRATION OF FINANCIAL RESPONSIBILITY, WHICH MAY
INCLUDE A CERTIFIED FINANCIAL STATEMENT PREPARED BY A CERTIFIED PUBLIC
ACCOUNTANT, TO ASSURE THAT THE APPARENT LOW BIDDER POSSESSES ADEQUATE
RESOURCES AND AVAILABILITY OF CREDIT AND THE MEANS AND ABILITY TO
PROCURE INSURANCE AND BONDS REQUIRED FOR THE PROJECT;
E. DISCLOSURE OF ANY SUSPENSIONS OR REVOCATIONS OF ANY PROFESSIONAL
LICENSE OF ANY DIRECTOR, OFFICER, OWNER OR MANAGERIAL EMPLOYEE OF THE
APPARENT LOW BIDDER, TO THE EXTENT THAT ANY WORK TO BE PERFORMED IS
WITHIN THE FIELD OF SUCH LICENSED PROFESSION;
F. DISCLOSURE OF ANY AND ALL UNITED STATES OCCUPATIONAL SAFETY AND
HEALTH ADMINISTRATION VIOLATIONS WITHIN THE PREVIOUS FIVE YEARS, AS WELL
AS ALL NOTICES OF SUCH VIOLATIONS AGAINST THE APPARENT LOW BIDDER IN THE
SAME FIVE YEAR PERIOD, TOGETHER WITH A DESCRIPTION AND EXPLANATION OF
REMEDIATION OR OTHER STEPS TAKEN REGARDING SUCH VIOLATIONS AND NOTICES
OF VIOLATIONS;
G. DISCLOSURE OF ANY AND ALL VIOLATIONS OF ARTICLE EIGHT OF THE LABOR
LAW AND ANY OTHER PROVISION OF SUCH LAW, INCLUDING BUT NOT LIMITED TO,
CHILD LABOR VIOLATIONS, FAILURE TO PAY WAGES AND UNEMPLOYMENT INSURANCE
TAX DELINQUENCIES WITHIN THE PAST FIVE YEARS;
H. DISCLOSURE OF VIOLATIONS OF THE WORKERS' COMPENSATION LAW, INCLUD-
ING, BUT NOT LIMITED TO THE FAILURE TO PROVIDE PROOF OF WORKERS' COMPEN-
SATION OR DISABILITY COVERAGE AND/OR ANY LAPSES THEREOF;
I. DISCLOSURE OF ANY FELONY CONVICTIONS, INVOLVING THE LOWEST RESPON-
SIBLE BIDDER, ITS OFFICERS, DIRECTORS, OWNERS OR MANAGERIAL EMPLOYEES
WITHIN THE PAST FIVE YEARS; AND
J. DISCLOSURE OF ANY VIOLATIONS WITHIN THE PAST FIVE YEARS OR PENDING
CHARGES CONCERNING FEDERAL, STATE OR MUNICIPAL ENVIRONMENTAL AND/OR
HEALTH LAWS, CODES, RULES AND/OR REGULATIONS.
3. WHEN REQUESTED BY THE CONTRACTING ENTITY AFTER THE BID HAS BEEN
SUBMITTED BUT BEFORE ANY OF THE SUBCONTRACTED WORK COMMENCES, THE
CONTRACTOR SHALL IDENTIFY ALL WORK TO BE SUBCONTRACTED ALONG WITH THE
NAME OF THE FIRM OR FIRMS TO WHICH THE WORK WILL BE SUBCONTRACTED. THE
APPROVAL OF THE SUBCONTRACTOR BY THE CONTRACTING ENTITY, AS PROVIDED BY
A. 2303 3
THE CONTRACT, SHALL BE SUBJECT TO THE SAME EVALUATION OF RESPONSIBILITY
CONTAINED WITHIN THIS SECTION FOR THE CONTRACTOR.
4. PRIOR TO A FINAL DETERMINATION THAT THE APPARENT LOW BIDDER IS NOT
RESPONSIBLE, THE CONTRACTING ENTITY SHALL NOTIFY THE PARTY OF SUCH
DETERMINATION, IN WRITING, STATING THE REASONS FOR SUCH DETERMINATION,
AND SETTING FORTH A TIME, DATE AND PLACE FOR THE APPARENT LOW BIDDER TO
APPEAR AND BE HEARD, PRIOR TO SUCH DETERMINATION BEING MADE REGARDING
ITS RESPONSIBILITY. IN THE EVENT OF A FINAL DETERMINATION THAT THE
APPARENT LOW BIDDER IS NOT RESPONSIBLE, THE NEXT LOWEST BIDDER SHALL
BECOME THE APPARENT LOW BIDDER AND SHALL BE SUBJECT TO THE REQUIREMENTS
SET FORTH IN THIS SECTION.
S 2. The general municipal law is amended by adding a new section
103-g to read as follows:
S 103-G. CONTRACTOR AND SUBCONTRACTOR RESPONSIBILITY. 1. FOR THE
PURPOSE OF THIS SECTION, THE FOLLOWING TERMS SHALL HAVE THE FOLLOWING
MEANINGS UNLESS OTHERWISE SPECIFIED:
A. "APPARENT LOW BIDDER" SHALL MEAN A BIDDER WHO, UPON THE OPENING OF
BIDS FOR A CONTRACT, IS DETERMINED TO HAVE SUBMITTED THE LOWEST BID FOR
SUCH CONTRACT.
B. "BIDDER" SHALL MEAN ANY PERSON, PARTNERSHIP, FIRM, CORPORATION OR
OTHER ENTITY SUBMITTING A COMPETITIVE BID FOR, OR SUBMITTED FOR APPROVAL
AS A SUBCONTRACTOR ON, A CONTRACTOR BY ANY CONTRACTING ENTITY.
C. "CONTRACT" SHALL MEAN ANY CONTRACT WHICH IS REQUIRED BY LAW TO BE
LET BY COMPETITIVE BID BY A CONTRACTING ENTITY FOR CONSTRUCTION, RECON-
STRUCTION OR ALTERATION OF ANY PUBLIC WORK PROJECT TO THE LOWEST RESPON-
SIBLE BIDDER.
D. "CONTRACTING ENTITY" SHALL MEAN A POLITICAL SUBDIVISION OR ANY
DISTRICT THEREIN.
2. IN DELIBERATING UPON THE RESPONSIBILITY OF A BIDDER OR PROPOSED
SUBCONTRACTOR ON A CONTRACT, THE CONTRACTING ENTITY SHALL GIVE DUE
CONSIDERATION TO ANY CREDIBLE EVIDENCE OR INFORMATION REASONABLY DEEMED
TO BE RELIABLE THAT THE PAST OR CURRENT RECORD OF A BIDDER OR PROPOSED
SUBCONTRACTOR SHALL WARRANT A DETERMINATION THAT SUCH BIDDER OR SUBCON-
TRACTOR IS NOT A RESPONSIBLE BIDDER. THE CONTRACTING ENTITY, IN DETER-
MINING THE RESPONSIBILITY OF THE APPARENT LOW BIDDER SHALL REQUIRE, AND
THE APPARENT LOW BIDDER SHALL PROVIDE, THE FOLLOWING INFORMATION RELAT-
ING TO THE APPARENT LOW BIDDER IN ORDER FOR THE CONTRACTING ENTITY TO
DETERMINE THE PECUNIARY AND FINANCIAL RESPONSIBILITY, ACCOUNTABILITY,
OPERATIONAL RESPONSIBILITY, RELIABILITY, SKILL, CAPACITY, ABILITY, JUDG-
MENT AND INTEGRITY OF THE APPARENT LOW BIDDER:
A. A DESCRIPTION OF ITS EXPERIENCE WITH PROJECTS OF COMPARATIVE SCOPE,
COMPLEXITY, AND COST WITHIN THE PAST FIVE YEARS, TOGETHER WITH DOCUMEN-
TARY EVIDENCE OF SUCH PROJECTS;
B. DOCUMENTATION REGARDING SUCH PROJECTS DESCRIBING THE FOLLOWING:
TIMELINESS OF PERFORMANCE; QUALITY OF WORK; EXTENSION REQUESTS; LITI-
GATION AND/OR ARBITRATION ARISING FROM SUCH WORK, INCLUDING FINES AND
PENALTIES IMPOSED AND PAYMENT THEREOF; LIENS FILED; HISTORY OF CLAIMS
FOR EXTRA WORK; CONTRACT DEFAULTS; AND AN EXPLANATION OF THE SAME;
C. IDENTIFICATION AND DESCRIPTION OF ANY PROJECTS WITHIN THE PREVIOUS
FIVE YEARS THAT THE APPARENT LOW BIDDER WAS DETERMINED BY THE CONTRACT-
ING ENTITY NOT TO BE A RESPONSIBLE BIDDER, AND THE REASONS GIVEN BY
SUCH ENTITY THEREFORE, TOGETHER WITH AN EXPLANATION THEREOF;
D. AN ADEQUATE DEMONSTRATION OF FINANCIAL RESPONSIBILITY, WHICH MAY
INCLUDE A CERTIFIED FINANCIAL STATEMENT PREPARED BY A CERTIFIED PUBLIC
ACCOUNTANT, TO ASSURE THAT THE APPARENT LOW BIDDER POSSESSES ADEQUATE
A. 2303 4
RESOURCES AND AVAILABILITY OF CREDIT AND THE MEANS AND ABILITY TO
PROCURE INSURANCE AND BONDS REQUIRED FOR THE PROJECT;
E. DISCLOSURE OF ANY SUSPENSIONS OR REVOCATIONS OF ANY PROFESSIONAL
LICENSE OF ANY DIRECTOR, OFFICER, OWNER OR MANAGERIAL EMPLOYEE OF THE
APPARENT LOW BIDDER, TO THE EXTENT THAT ANY WORK TO BE PERFORMED IS
WITHIN THE FIELD OF SUCH LICENSED PROFESSION;
F. DISCLOSURE OF ANY AND ALL UNITED STATES OCCUPATIONAL SAFETY AND
HEALTH ADMINISTRATION VIOLATIONS WITHIN THE PREVIOUS FIVE YEARS, AS WELL
AS ALL NOTICES OF SUCH VIOLATIONS FILED AGAINST THE APPARENT LOW BIDDER
IN THE SAME FIVE YEAR PERIOD, TOGETHER WITH A DESCRIPTION AND EXPLANA-
TION OF REMEDIATION OR OTHER STEPS TAKEN REGARDING SUCH VIOLATIONS AND
NOTICES OF VIOLATIONS;
G. DISCLOSURE OF ANY AND ALL VIOLATIONS OF ARTICLE EIGHT OF THE LABOR
LAW AND ANY OTHER PROVISION OF SUCH LAW, INCLUDING BUT NOT LIMITED TO,
CHILD LABOR VIOLATIONS, FAILURE TO PAY WAGES AND UNEMPLOYMENT INSURANCE
TAX DELINQUENCIES WITHIN THE PAST FIVE YEARS;
H. DISCLOSURE OF VIOLATIONS OF THE WORKERS' COMPENSATION LAW, INCLUD-
ING BUT NOT LIMITED TO, THE FAILURE TO PROVIDE PROOF OF WORKERS' COMPEN-
SATION OR DISABILITY COVERAGE AND/OR ANY LAPSES THEREOF;
I. DISCLOSURE OF ANY FELONY CONVICTIONS OF THE LOWEST RESPONSIBLE
BIDDER, ITS OFFICERS, DIRECTORS, OWNERS OR MANAGERIAL EMPLOYEES WITHIN
THE PAST FIVE YEARS; AND
J. DISCLOSURE OF ANY VIOLATIONS WITHIN THE PAST FIVE YEARS OR PENDING
CHARGES CONCERNING FEDERAL, STATE OR MUNICIPAL ENVIRONMENTAL AND/OR
HEALTH LAWS, CODES, RULES AND/OR REGULATIONS.
3. WHEN REQUESTED BY THE CONTRACTING ENTITY AFTER THE BID HAS BEEN
SUBMITTED BUT BEFORE ANY OF THE SUBCONTRACTED WORK COMMENCES, THE
CONTRACTOR SHALL IDENTIFY ALL WORK TO BE SUBCONTRACTED ALONG WITH THE
NAME OF THE FIRM OR FIRMS TO WHICH THE WORK WILL BE SUBCONTRACTED. THE
APPROVAL OF THE SUBCONTRACTOR BY THE CONTRACTING ENTITY, AS PROVIDED BY
THE CONTRACT, SHALL BE SUBJECT TO THE SAME EVALUATION OF RESPONSIBILITY
CONTAINED WITHIN THIS SECTION FOR THE CONTRACTOR.
4. PRIOR TO A FINAL DETERMINATION THAT THE APPARENT LOW BIDDER IS NOT
RESPONSIBLE, THE CONTRACTING ENTITY SHALL NOTIFY THE PARTY OF SUCH
DETERMINATION, IN WRITING, STATING THE REASONS FOR SUCH DETERMINATION,
AND SETTING FORTH A TIME, DATE AND PLACE FOR THE APPARENT LOW BIDDER TO
APPEAR AND BE HEARD, PRIOR TO SUCH DETERMINATION BEING MADE REGARDING
ITS RESPONSIBILITY. IN THE EVENT OF A FINAL DETERMINATION THAT THE
APPARENT LOW BIDDER IS NOT RESPONSIBLE, THE NEXT LOWEST BIDDER SHALL
BECOME THE APPARENT LOW BIDDER AND SHALL BE SUBJECT TO THE REQUIREMENTS
SET FORTH IN THIS SECTION.
S 3. This act shall take effect on the thirtieth day after it shall
have become a law and shall be applicable to all contracts advertised
for bid on or after such date.