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

                                  3258

                       2011-2012 Regular Sessions

                          I N  A S S E M B L Y

                            January 24, 2011
                               ___________

Introduced  by  M.  of A. PERRY -- Multi-Sponsored by -- M. of A. CANES-
  TRARI, COOK, GOTTFRIED, JACOBS, PHEFFER, J. RIVERA, ROBINSON, TOWNS --
  read once and referred to the Committee on Labor

AN ACT to amend the general business law, in  relation  to  a  right  of
  action for violation of statutes in bids on construction projects

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

  Section 1. The general business law is amended by adding a new section
399-ff to read as follows:
  S 399-FF.  FAIRNESS IN COMPETITIVE BIDDING. 1. FOR THE PURPOSE OF THIS
SECTION:
  (A) THE TERM "PERSON" SHALL INCLUDE ANY INDIVIDUAL, FIRM, ASSOCIATION,
PARTNERSHIP OR CORPORATION.
  (B) THE TERM "CONSTRUCTION PROJECT" SHALL INCLUDE ANY PROJECT  INVOLV-
ING   THE   CONSTRUCTION,  MODERNIZATION,  IMPROVEMENT,  REHABILITATION,
REPAIR, MAINTENANCE, REPLACEMENT OR RENOVATION OF A  BUILDING,  ROAD  OR
STRUCTURE,  OR  ANY  PORTION  OF  SUCH A PROJECT PERFORMED PURSUANT TO A
SUBCONTRACTING ARRANGEMENT.
  2. (A) ANY PERSON WHOSE COMPETITIVE BID FOR A CONSTRUCTION PROJECT HAS
BEEN REJECTED AND INSTEAD AWARDED TO ANOTHER PERSON MAY BRING AN  ACTION
FOR  DAMAGES  IN  A  COURT OF COMPETENT JURISDICTION AGAINST THE WINNING
BIDDER IF THE WINNING BIDDER HAS VIOLATED THE LABOR LAW OR THE  WORKERS'
COMPENSATION  LAW  BY  FAILING TO PAY REQUIRED TAXES OR SECURE INSURANCE
PURSUANT TO SUCH LAWS FOR ANY REASON  INCLUDING  MISCLASSIFYING  ONE  OR
MORE OF ITS WORKERS OTHER THAN AN EMPLOYEE IN ITS BID COST.
  (B)  THE  DETERMINATION  WHETHER A WORKER ON A CONSTRUCTION PROJECT IS
PROPERLY CLASSIFIED AS AN EMPLOYEE SHALL  BE  MADE  IN  ACCORDANCE  WITH
APPLICABLE STATE LAW.
  3.  (A)  A PARTY UNSUCCESSFULLY BIDDING ON A CONSTRUCTION PROJECT WILL
BE DEEMED TO HAVE SUFFERED AN  INJURY  BY  VIRTUE  OF  NOT  HAVING  BEEN

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD02550-01-1

              

A. 3258                             2

AWARDED THE BID, REGARDLESS OF WHETHER THE WINNING BIDDER REALIZES A NET
PROFIT ON THE PERFORMANCE OF THE CONTRACT.
  (B)  A WINNING BIDDER WHO IS A DEFENDANT IN AN ACTION BROUGHT PURSUANT
TO THIS SECTION SHALL NOT BE LIABLE FOR DAMAGES IF HE ESTABLISHES, AS AN
AFFIRMATIVE DEFENSE, THAT THE FAILURE TO COMPLY WITH STATE LAWS  REQUIR-
ING  EMPLOYERS  TO  PAY  STATE UNEMPLOYMENT INSURANCE OR SECURE WORKERS'
COMPENSATION COVERAGE RESULTING FROM THE MISCLASSIFICATION OF AN EMPLOY-
EE AS OTHER THAN AN EMPLOYEE IF THE BID WAS NOT A KNOWING VIOLATION.
  4. ANY PARTY WHO SUCCESSFULLY MAINTAINS AN ACTION UNDER  THIS  SECTION
SHALL  BE  ENTITLED  TO DAMAGES FROM THE WINNING BIDDER IN AN AMOUNT NOT
LESS THAN TEN PERCENT OF THE AMOUNT  OF  THE  SUCCESSFUL  BID,  OR  SUCH
GREATER  AMOUNT  AS SHALL BE DETERMINED BY THE COURT, AND IN ADDITION TO
ANY OTHER DAMAGES AWARDED, SHALL BE ENTITLED TO THE PAYMENT  OF  ALL  OF
ITS COSTS AND REASONABLE ATTORNEYS' FEES IN BRINGING THE ACTION.
  S 2. This act shall take effect immediately.