S T A T E O F N E W Y O R K
________________________________________________________________________
2714
2011-2012 Regular Sessions
I N A S S E M B L Y
January 20, 2011
___________
Introduced by M. of A. CALHOUN -- Multi-Sponsored by -- M. of A. CONTE
-- read once and referred to the Committee on Local Governments
AN ACT to amend the general municipal law, in relation to granting
authority to prefer certain bidders doing business with the state or a
local government in awarding public contracts
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Subdivision 1 of section 103 of the general municipal law,
as amended by section 1 of part F 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. NOTWITHSTANDING THE FOREGO-
ING, IN ANY CASE WHERE A RESPONSIBLE BIDDER FURNISHING THE REQUIRED
SECURITY IS FOUND BY SUCH OFFICER, BOARD OR AGENCY TO HAVE PAID STATE
AND LOCAL TAXES WITHIN THE STATE FOR THREE SUCCESSIVE YEARS BEFORE
SUBMITTING A BID, AND WHERE SUCH BID IS WITHIN FIVE PERCENT OF THE BID
OF THE LOWEST RESPONSIBLE BIDDER, SUCH OFFICER, BOARD OR AGENCY MAY
PREFER SUCH RESPONSIBLE BIDDER OVER THE LOWEST RESPONSIBLE BIDDER AND
AWARD THE CONTRACT TO SUCH RESPONSIBLE BIDDER UPON A TWO-THIRDS VOTE BY
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD02891-01-1
A. 2714 2
THE LOCAL LEGISLATIVE BODY OF SUCH POLITICAL SUBDIVISION OR DISTRICT
FINDING THAT SUCH AN AWARD WOULD BENEFIT THE LOCAL ECONOMY OF SUCH POLI-
TICAL SUBDIVISION OR DISTRICT; PROVIDED, HOWEVER, WHERE MORE THAN ONE
RESPONSIBLE BIDDER QUALIFIES HEREUNDER, SUCH OFFICER, BOARD OR AGENCY
SHALL AWARD THE CONTRACT TO SUCH QUALIFIED RESPONSIBLE BIDDER SUBMITTING
THE LOWEST BID. IF ANY FEDERAL STATUTE OR REGULATION PRECLUDES THE
GRANTING OF FEDERAL ASSISTANCE OR REDUCES THE AMOUNT OF THAT ASSISTANCE
FOR A PARTICULAR PUBLIC WORK BECAUSE OF THE PROVISIONS OF THIS SECTION,
SUCH PROVISIONS SHALL NOT APPLY INSOFAR AS THEIR APPLICATION WOULD
PRECLUDE OR REDUCE FEDERAL ASSISTANCE FOR SUCH WORK. In cases where two
or more responsible bidders furnishing the required security submit
identical bids as to price, such officer, board or agency may award the
contract to any of such bidders. Such officer, board or agency may, in
his or her or its discretion, reject all bids and readvertise for new
bids in the manner provided by this section. In determining whether a
purchase is an 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 2. 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:
A. 2714 3
1. Except as otherwise expressly provided by an act of the legislature
or by a local law adopted prior to September first, nineteen hundred
fifty-three, all contracts for public work involving an expenditure of
more than thirty-five thousand dollars and all purchase contracts
involving an expenditure of more than twenty thousand dollars, shall be
awarded by the appropriate officer, board or agency of a political
subdivision or of any district therein including but not limited to a
soil conservation district, to the lowest responsible bidder furnishing
the required security after advertisement for sealed bids in the manner
provided by this section. In determining whether a purchase is an
expenditure within the discretionary threshold amounts established by
this subdivision, the officer, board or agency of a political subdivi-
sion or of any district therein shall consider the reasonably expected
aggregate amount of all purchases of the same commodities, services or
technology to be made within the twelve-month period commencing on the
date of purchase. Purchases of commodities, services or technology shall
not be artificially divided for the purpose of satisfying the discre-
tionary buying thresholds established by this subdivision. A change to
or a renewal of a discretionary purchase shall not be permitted if the
change or renewal would bring the reasonably expected aggregate amount
of all purchases of the same commodities, services or technology from
the same provider within the twelve-month period commencing on the date
of the first purchase to an amount greater than the discretionary buying
threshold amount. In any case where a responsible bidder's gross price
is reducible by an allowance for the value of used machinery, equipment,
apparatus or tools to be traded in by a political subdivision, the gross
price shall be reduced by the amount of such allowance, for the purpose
of determining the low bid. NOTWITHSTANDING THE FOREGOING, IN ANY CASE
WHERE A RESPONSIBLE BIDDER FURNISHING THE REQUIRED SECURITY IS FOUND BY
SUCH OFFICER, BOARD OR AGENCY TO HAVE PAID STATE AND LOCAL TAXES WITHIN
THE STATE FOR THREE SUCCESSIVE YEARS BEFORE SUBMITTING A BID, AND WHERE
SUCH BID IS WITHIN FIVE PERCENT OF THE BID OF THE LOWEST RESPONSIBLE
BIDDER, SUCH OFFICER, BOARD OR AGENCY MAY PREFER SUCH RESPONSIBLE BIDDER
OVER THE LOWEST RESPONSIBLE BIDDER AND AWARD THE CONTRACT TO SUCH
RESPONSIBLE BIDDER UPON A TWO-THIRDS VOTE BY THE LOCAL LEGISLATIVE BODY
OF SUCH POLITICAL SUBDIVISION OR DISTRICT FINDING THAT SUCH AN AWARD
WOULD BENEFIT THE LOCAL ECONOMY OF SUCH POLITICAL SUBDIVISION OR
DISTRICT; PROVIDED, HOWEVER, WHERE MORE THAN ONE RESPONSIBLE BIDDER
QUALIFIES HEREUNDER, SUCH OFFICER, BOARD OR AGENCY SHALL AWARD THE
CONTRACT TO SUCH QUALIFIED RESPONSIBLE BIDDER SUBMITTING THE LOWEST BID.
IF ANY FEDERAL STATUTE OR REGULATION PRECLUDES THE GRANTING OF FEDERAL
ASSISTANCE OR REDUCES THE AMOUNT OF THAT ASSISTANCE FOR A PARTICULAR
PUBLIC WORK BECAUSE OF THE PROVISIONS OF THIS SECTION, SUCH PROVISIONS
SHALL NOT APPLY INSOFAR AS THEIR APPLICATION WOULD PRECLUDE OR REDUCE
FEDERAL ASSISTANCE FOR SUCH WORK. In cases where two or more responsible
bidders furnishing the required security submit identical bids as to
price, such officer, board or agency may award the contract to any of
such bidders. Such officer, board or agency may, in his, her or its
discretion, reject all bids and readvertise for new bids in the manner
provided by this section.
S 3. This act shall take effect immediately, provided that the amend-
ments to subdivision 1 of section 103 of the general municipal law made
by section one 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 two of this act shall take effect.