S T A T E   O F   N E W   Y O R K
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                                  3617

                       2011-2012 Regular Sessions

                          I N  A S S E M B L Y

                            January 26, 2011
                               ___________

Introduced by M. of A. BRENNAN, MILLMAN, CLARK, DINOWITZ, ORTIZ, COLTON,
  SPANO,  JAFFEE -- Multi-Sponsored by -- M. of A. CAHILL, GALEF, GLICK,
  GOTTFRIED, MARKEY,  PHEFFER,  ROSENTHAL,  SWEENEY  --  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 ensuring compliance with the competitive bidding law

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

  Section  1.  Short  title. This act shall be known and may be cited as
the "Municipal competitive bidding enforcement act."
  S 2. The general municipal law is amended  by  adding  a  new  section
103-g to read as follows:
  S  103-G. ENFORCEMENT OF COMPETITIVE BIDDING LAW. 1. DEFINITIONS.  (A)
"PROCUREMENT ACTION" MEANS ANY TRANSACTION WHICH IS CLAIMED  TO  CONSTI-
TUTE  A  CONTRACT  FOR PUBLIC WORK INVOLVING AN EXPENDITURE OF MORE THAN
TWENTY THOUSAND DOLLARS OR A PURCHASE CONTRACT INVOLVING THE EXPENDITURE
OF MORE THAN TEN THOUSAND DOLLARS WHICH SHOULD BE AWARDED TO THE  LOWEST
RESPONSIBLE  BIDDER,  AS  PROVIDED  BY SECTION ONE HUNDRED THREE OF THIS
ARTICLE.
  (B) "GOOD FAITH BIDDER" MEANS ANY PERSON WHO HAS SUBMITTED  A  BID  IN
RESPONSE TO AN ADVERTISEMENT FOR SEALED BIDS, OR WHO COULD SUBMIT A GOOD
FAITH BID ON A PROCUREMENT ACTION.
  2. COMPTROLLER'S OPINIONS. UPON A COMPLAINT FILED BY A TAXPAYER OF THE
POLITICAL SUBDIVISION OR BY A GOOD FAITH BIDDER, THE OFFICE OF THE STATE
COMPTROLLER  SHALL  ISSUE  AN  OPINION ON WHETHER A PROPOSED PROCUREMENT
ACTION BY A POLITICAL SUBDIVISION COMPLIES WITH THE COMPETITIVE  BIDDING
REQUIREMENTS OF SECTION ONE HUNDRED THREE OF THIS ARTICLE. THE COMPLAINT
SHALL  SPECIFY THE PROCUREMENT ACTION THAT IS CLAIMED TO VIOLATE SECTION
ONE HUNDRED THREE OF THIS ARTICLE. THE TAXPAYER  OR  GOOD  FAITH  BIDDER
SHALL  SERVE  A COPY OF THE COMPLAINT ON THE POLITICAL SUBDIVISION PRIOR
TO SERVING THE COMPLAINT ON THE COMPTROLLER.  UPON THE FILING OF A PRIMA

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD05432-01-1
              

A. 3617                             2

FACIE VALID COMPLAINT WITH THE COMPTROLLER, THE COMPTROLLER SHALL NOTIFY
THE POLITICAL SUBDIVISION. UPON RECEIPT OF SUCH NOTICE  FROM  THE  COMP-
TROLLER, THE POLITICAL SUBDIVISION MAY NOT PROCEED WITH THE COMPLAINT OF
PROCUREMENT  ACTION FOR A PERIOD OF THIRTY DAYS. IN RENDERING HIS OR HER
OPINION, THE COMPTROLLER MAY CONSULT WITH THE OFFICE OF GENERAL SERVICES
AS TO THE REASONABLENESS AND VALIDITY OF  ANY  BID  SPECIFICATIONS.  THE
COMPTROLLER  SHALL  ISSUE A WRITTEN OPINION PURSUANT TO THIS SUBDIVISION
WITHIN THIRTY DAYS OF SUCH NOTICE TO THE POLITICAL SUBDIVISION AND SHALL
PROMPTLY SERVE COPIES OF THE OPINION ON THE POLITICAL SUBDIVISION AND ON
THE COMPLAINING PARTY.
  3. ATTORNEY GENERAL. IF THE COMPTROLLER'S OPINION IS THAT THE PROCURE-
MENT ACTION WOULD VIOLATE SECTION ONE HUNDRED THREE OF THIS ARTICLE, THE
COMPTROLLER SHALL TRANSMIT A COPY OF THE OPINION TO THE ATTORNEY  GENER-
AL.  NOTWITHSTANDING ANY OTHER PROVISION OF LAW, THE ATTORNEY GENERAL IS
AUTHORIZED TO BRING A SPECIAL PROCEEDING IN THE SUPREME COURT TO HAVE  A
PROCUREMENT ACTION ENJOINED OR DECLARED NULL AND VOID ON THE GROUND THAT
IT IS IN VIOLATION OF SECTION ONE HUNDRED THREE OF THIS ARTICLE.
  4.  DAMAGES  TO  GOOD  FAITH  BIDDER. A GOOD FAITH BIDDER MAY BRING AN
ACTION IN THE SUPREME COURT TO RECOVER DAMAGES AND ATTORNEY'S FEES  FROM
A  POLITICAL  SUBDIVISION,  WHICH  ENGAGES IN A VIOLATION OF SECTION ONE
HUNDRED THREE OF THIS ARTICLE. THE COURT SHALL AWARD DAMAGES AND  ATTOR-
NEY'S FEES IF THE COURT FINDS THAT THE GOOD FAITH BIDDER WOULD HAVE BEEN
THE  LOWEST  RESPONSIBLE  BIDDER,  BUT  FOR  THE POLITICAL SUBDIVISION'S
VIOLATION OF SECTION ONE HUNDRED THREE OF THIS  ARTICLE.  THE  COURT  IS
AUTHORIZED  IN  ANY SUCH ACTION TO DECLARE AN ILLEGALLY AWARDED CONTRACT
TO BE NULL AND VOID.
  (A) IF THE COMPTROLLER HAS ISSUED  AN  OPINION  THAT  THE  PROCUREMENT
ACTION  WOULD BE IN VIOLATION OF SECTION ONE HUNDRED THREE OF THIS ARTI-
CLE AND THE POLITICAL SUBDIVISION  HAS  THEREAFTER  PROCEEDED  WITH  THE
PROCUREMENT ACTION, THE MEASURE OF DAMAGES SHALL BE THREE TIMES THE GOOD
FAITH BIDDER'S LOST PROFITS.
  (B)  IF THE COMPTROLLER HAS NOT ISSUED AN OPINION THAT THE PROCUREMENT
ACTION WOULD BE IN VIOLATION OF SECTION ONE HUNDRED THREE OF THIS  ARTI-
CLE,  THE  MEASURE  OF DAMAGES SHALL BE THE LESSER OF (I) THE GOOD FAITH
BIDDER'S LOST PROFITS AND (II) THE DIFFERENCE BETWEEN THE PRICE  OF  THE
NULLIFIED  CONTRACT  AND  ANY AMOUNT THAT THE COURT AWARDS TO THE PERSON
WHO PERFORMED ON THE NULLIFIED CONTRACT.
  5. CIVIL PENALTY. ANY PERSON  WHO  SHALL  WILFULLY  AND  INTENTIONALLY
VIOLATE  THE  COMPETITIVE  BIDDING  REQUIREMENTS  OF SECTION ONE HUNDRED
THREE OF THIS ARTICLE SHALL BE PERSONALLY LIABLE FOR A CIVIL PENALTY  OF
NO  MORE  THAN ONE THOUSAND DOLLARS. IN A PROCEEDING BROUGHT PURSUANT TO
THIS SECTION, THE COMPTROLLER'S OPINIONS AND AUDITS MAY BE ADMITTED INTO
EVIDENCE ON THE ISSUE OF THE RESPONDENT'S STATE OF MIND,  PROVIDED  THAT
(A)  THE OPINION OR AUDIT WAS ISSUED PRIOR TO THE ALLEGED VIOLATION, (B)
THE OPINION OR AUDIT WAS ISSUED NO MORE THAN  TEN  YEARS  PRIOR  TO  THE
ALLEGED  VIOLATION, AND (C) THE OPINION OR AUDIT CONCERNED THE SAME KIND
OF ITEM OR SAME KIND OF PRACTICE AS THE ALLEGED VIOLATION.
  6. COMPLAINT FEE. WHENEVER THE COMPTROLLER  ACCEPTS  A  COMPLAINT  FOR
FILING  PURSUANT  TO  THIS  SECTION,  THE  COMPTROLLER SHALL REQUIRE AND
COLLECT A FEE OF ONE HUNDRED DOLLARS, WHICH SHALL BE PAID INTO THE STATE
TREASURY AND WHICH SHALL, SO FAR AS IS NECESSARY, BE APPROPRIATED  ANNU-
ALLY  BY  THE  LEGISLATURE TO THE COMPTROLLER TO BE USED IN IMPLEMENTING
THIS ARTICLE.
  S 3. Section 103 of the general municipal law is amended by  adding  a
new subdivision 14 to read as follows:

A. 3617                             3

  14.  EXCEPT AS OTHERWISE EXPRESSLY AUTHORIZED BY THIS ARTICLE, A POLI-
TICAL SUBDIVISION MAY NOT REQUIRE THAT BIDS CONFORM TO  UNDULY  RESTRIC-
TIVE  SPECIFICATIONS.  ALL  SPECIFICATIONS  SHALL  BE  DRAFTED  SO AS TO
PROMOTE OVERALL ECONOMY FOR  THE  PURPOSES  INTENDED  AND  TO  ENCOURAGE
COMPETITION  IN  SATISFYING  THE  NEEDS  OF THE POLITICAL SUBDIVISION. A
BRAND NAME MAY BE USED AS A  SPECIFICATION  ONLY  IF  THE  SPECIFICATION
CLEARLY  STATES THAT THE BRAND NAME OR EQUIVALENT IS ACCEPTABLE. WHERE A
BRAND NAME OR EQUIVALENT SPECIFICATION IS USED IN  A  BID  SOLICITATION,
THE  SOLICITATION  SHALL  CONTAIN EXPLANATORY LANGUAGE THAT THE USE OF A
BRAND NAME IS FOR THE PURPOSE OF DESCRIBING  THE  STANDARD  OF  QUALITY,
PERFORMANCE  AND CHARACTERISTICS DESIRED AND IS NOT INTENDED TO LIMIT OR
RESTRICT COMPETITION. IN  ANY  OPINION,  PROCEEDING  OR  ACTION  BROUGHT
PURSUANT  TO SECTION ONE HUNDRED THREE-G OF THIS ARTICLE, A BID SPECIFI-
CATION DEVELOPED AND PROVIDED BY THE OFFICE OF GENERAL SERVICES SHALL BE
DEEMED VALID.
  S 4. Subdivision 2 of section 103 of the  general  municipal  law,  as
amended  by  section  5  of part X of chapter 62 of the laws of 2003, is
amended to read as follows:
   2. Advertisement for bids shall be published in the official  newspa-
per  or  newspapers,  if  any, or otherwise in a newspaper or newspapers
designated for such purpose. Such advertisement shall contain  a  state-
ment of the time when and place where all bids received pursuant to such
notice  will  be  publicly  opened  and read, and the designation of the
receiving device if the political subdivision or district has authorized
the receipt of bids in an electronic format. Such board or agency may by
resolution designate any officer or employee to open  the  bids  at  the
time  and  place  specified  in  the  notice. Such designee shall make a
record of such bids in such form and detail as the board or agency shall
prescribe and present the same at the next regular or special meeting of
such board or agency. All bids received shall  be  publicly  opened  and
read  at  the  time and place so specified. ALL BIDS RECEIVED AND OPENED
SHALL BE PUBLIC RECORDS AND SHALL BE AVAILABLE FOR PUBLIC INSPECTION AND
COPYING. At least five days shall elapse between the  first  publication
of  such  advertisement  and  the  date so specified for the opening and
reading of bids.
  S 5. Subdivision 2 of section 103 of the  general  municipal  law,  as
amended  by  chapter  296  of  the  laws  of 1958, is amended to read as
follows:
  2. Advertisement for bids shall be published in the official newspaper
or newspapers, if any, or otherwise in a newspaper or newspapers  desig-
nated  for such purpose. Such advertisement shall contain a statement of
the time when and place where all bids received pursuant to such  notice
will be publicly opened and read. Such board or agency may by resolution
designate any officer or employee to open the bids at the time and place
specified  in the notice. Such designee shall make a record of such bids
in such form and detail as the board or agency shall prescribe and pres-
ent the same at the next regular or special meeting  of  such  board  or
agency.  All bids received shall be publicly opened and read at the time
and place so specified. ALL BIDS RECEIVED AND  OPENED  SHALL  BE  PUBLIC
RECORDS  AND  SHALL  BE  AVAILABLE FOR PUBLIC INSPECTION AND COPYING. At
least five days shall elapse  between  the  first  publication  of  such
advertisement  and  the date so specified for the opening and reading of
bids.
  S 6. Subparagraph 1 of paragraph (b) of subdivision 4 of section 35 of
the general municipal law, as amended by chapter  692  of  the  laws  of
1989, is amended to read as follows:

A. 3617                             4

  (1)  Not  later  than  ninety days after presentation to the governing
board of a report of examination performed by the office  of  the  state
comptroller,  or  receipt  by  the  governing  board of any report of an
external audit performed by an  independent  public  accountant  or  any
management letter in conjunction with such an audit, the governing board
may,  in  its  discretion,  provide  to the comptroller, and file in the
office of the clerk, or with the secretary if there is no clerk, of  the
municipal  corporation,  industrial development agency, district, agency
or activity, a written response to the findings and recommendations,  if
any, in the report or letter.  PROVIDED, HOWEVER, THAT IF SUCH REPORT OR
LETTER  CONTAINS  A FINDING THAT THE COMPETITIVE BIDDING REQUIREMENTS OF
SECTION ONE HUNDRED THREE OF THIS CHAPTER WERE VIOLATED,  THE  GOVERNING
BOARD  MUST  FILE  A  WRITTEN  RESPONSE. In the case of municipal corpo-
rations, industrial development agency, districts,  agencies  or  activ-
ities subject to examination by the commissioner of education, any writ-
ten response shall also be provided to such commissioner.
  S 7. The state finance law is amended by adding a new section 164-a to
read as follows:
  S  164-A. PROVIDING BID SPECIFICATIONS TO POLITICAL SUBDIVISIONS.  THE
COMMISSIONER OF GENERAL SERVICES SHALL PROVIDE TO ANY POLITICAL SUBDIVI-
SION, AT NO CHARGE, ANY SPECIFICATION THAT THE COMMISSIONER  HAS  DEVEL-
OPED FOR ITEMS TO BE LET FOR BIDS IN PURCHASE CONTRACTS. THE COMMISSION-
ER MAY DEVELOP ADDITIONAL SPECIFICATIONS AT THE REQUEST OF ANY POLITICAL
SUBDIVISION  AND MAY PROVIDE SUCH SPECIFICATIONS TO THE POLITICAL SUBDI-
VISION AND MAY CHARGE THE POLITICAL SUBDIVISION FOR THE COST OF DEVELOP-
ING SUCH SPECIFICATIONS.
  S 8. If any clause, sentence, paragraph, section or part of  this  act
shall  be adjudged by any court of competent jurisdiction to be invalid,
such judgment shall not affect, impair or invalidate the remainder ther-
eof, but shall be confined in its operation  to  the  clause,  sentence,
paragraph,  section or part thereof directly involved in the controversy
in which such judgment shall have been rendered.
  S 9. This act shall take effect on the first of January next  succeed-
ing the date on which it shall have become a law; provided, however, the
amendments  to subdivision 2 of section 103 of the general municipal law
made by section four of this act shall not  affect  the  expiration  and
reversion  of such subdivision as provided in 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 five of this act shall take effect.