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

                                  3285

                       2011-2012 Regular Sessions

                          I N  A S S E M B L Y

                            January 24, 2011
                               ___________

Introduced  by  M. of A. WRIGHT, HOOPER, SCHROEDER -- Multi-Sponsored by
  -- M. of A. AUBRY, COLTON, COOK, MAGEE, MILLMAN,  PHEFFER,  REILLY  --
  read once and referred to the Committee on Local Governments

AN  ACT to amend the general municipal law and the state finance law, in
  relation to granting preferences to New York  state  domiciliaries  in
  the awarding of contracts for public work

  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 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.  NOTWITHSTANDING THE FOREGO-
ING, IN ANY CASE WHERE A RESPONSIBLE BIDDER WHO  IS  A  NEW  YORK  STATE
RESIDENT, FIRM OR CORPORATION AND WHO IS FURNISHING THE REQUIRED SECURI-
TY IS FOUND BY SUCH OFFICER, BOARD OR AGENCY TO BE WITHIN TWO 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; PROVIDED, HOWEVER,

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD06381-01-1
              

A. 3285                             2

WHERE MORE THAN ONE RESPONSIBLE BIDDER QUALIFIES HEREUNDER,  SUCH  OFFI-
CER,  BOARD OR AGENCY SHALL AWARD THE CONTRACT TO SUCH QUALIFIED RESPON-
SIBLE BIDDER SUBMITTING THE LOWEST 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. 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
discretionary  buying  thresholds  established  by  this  subdivision. A
change to or a renewal of a discretionary purchase shall not be  permit-
ted  if the change or renewal would bring the reasonably expected aggre-
gate amount of all purchases of the same commodities, services or  tech-
nology  from the same provider within the twelve-month period commencing
on the date of the first purchase to an amount greater than the  discre-
tionary  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  arti-
cle,  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 political 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 promul-
gated  and  guidelines  developed thereunder and, at a minimum, must (a)
document the time and date of receipt of  each  bid  received  electron-
ically;  (b)  authenticate  the  identity  of the sender; (c) ensure the
security of the information transmitted; and (d)  ensure  the  confiden-
tiality  of  the bid until the time and date established 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  responsibility  solely  of  each
bidder or prospective bidder. No political subdivision or district ther-
ein  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:
  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

A. 3285                             3

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 WHO IS A NEW YORK  STATE  RESIDENT,  FIRM  OR
CORPORATION AND WHO IS FURNISHING THE REQUIRED SECURITY IS FOUND BY SUCH
OFFICER,  BOARD  OR  AGENCY  TO  BE WITHIN TWO 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; PROVIDED, HOWEVER, WHERE MORE THAN
ONE RESPONSIBLE BIDDER QUALIFIES HEREUNDER, SUCH OFFICER, BOARD OR AGEN-
CY SHALL AWARD THE CONTRACT TO SUCH QUALIFIED RESPONSIBLE BIDDER SUBMIT-
TING THE LOWEST 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, her or its discretion, reject
all bids and readvertise for new bids in the  manner  provided  by  this
section.
  S  3.  Section 135 of the state finance law is amended by adding a new
closing paragraph to read as follows:
  NOTWITHSTANDING ANY  OTHER  PROVISION  OF  LAW,  WHENEVER  THE  LOWEST
RESPONSIBLE  BIDDER  IS  A  FOREIGN  OR OUT-OF-STATE INDIVIDUAL, FIRM OR
CORPORATION AND AT LEAST ONE NEW YORK STATE  RESIDENT,  FIRM  OR  CORPO-
RATION  HAS  SUBMITTED  A RESPONSIBLE BID WHICH IS WITHIN TWO PERCENT OF
THE LOWEST RESPONSIBLE BID, THE CONTRACT MAY BE AWARDED  TO  THE  LOWEST
RESPONSIBLE  BIDDER  WHO  IS  A  NEW YORK STATE RESIDENT, FIRM OR CORPO-
RATION; PROVIDED, HOWEVER, WHERE MORE THAN ONE RESPONSIBLE BIDDER QUALI-
FIES HEREUNDER, SUCH OFFICER, BOARD OR AGENCY SHALL AWARD  THE  CONTRACT
TO SUCH QUALIFIED RESPONSIBLE BIDDER SUBMITTING THE LOWEST BID.
  S  4.  This  act  shall  take  effect  on  the first of September next
succeeding the date on which it  shall  have  become  a  law;  provided,
however,  that  the  amendments  to  subdivision 1 of section 103 of the
general municipal law made by section one of this act shall  not  affect
the expiration and reversion of such subdivision as provided in subdivi-
sion  (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.