Assembly Bill A4791A

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

                                 4791--A
                                                        Cal. No. 602

                       2013-2014 Regular Sessions

                          I N  A S S E M B L Y

                            February 8, 2013
                               ___________

Introduced  by  M.  of  A.  TITONE, GOTTFRIED, MILLMAN, BRONSON, LAVINE,
  COOK, KAVANAGH, PERRY, WEPRIN, ABINANTI -- Multi-Sponsored by -- M. of
  A. AUBRY, BRENNAN, FINCH, GALEF, GLICK, HOOPER, MOYA, SWEENEY --  read
  once  and  referred  to  the  Committee  on Governmental Operations --
  reported and referred to  the  Committee  on  Codes  --  reported  and
  referred  to  the  Committee  on Ways and Means -- advanced to a third
  reading, passed by Assembly and delivered to the Senate, recalled from
  the  Senate,  vote  reconsidered,  bill  amended,  ordered  reprinted,
  retaining its place on the order of third reading

AN  ACT  to  amend  the  state  finance  law, in relation to arbitration
  provisions in state contracts

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

  Section 1. Section 165 of the state finance law is amended by adding a
new subdivision 9 to read as follows:
  9.  ARBITRATION  PROVISION.  A.  FOR  THE PURPOSES OF THIS SUBDIVISION
"ARBITRATION PROVISIONS" SHALL MEAN ANY REQUIREMENT THAT AN EMPLOYEE  OR
INDEPENDENT  CONTRACTOR  PERFORMING WORK UNDER SUCH VENDOR'S CONTRACT OR
SUBCONTRACT TO SUBMIT CLAIMS ARISING UNDER TITLE VII OF THE CIVIL RIGHTS
ACT OF 1964 OR ARTICLE FIFTEEN OF THE EXECUTIVE  LAW  TO  PRIVATE  ARBI-
TRATION  FOR  RESOLUTION;  THIS  SHALL  NOT  INCLUDE ARBITRATION THAT IS
MANDATED BY A COLLECTIVE BARGAINING AGREEMENT BETWEEN  SUCH  VENDOR  AND
EMPLOYEE AND/OR INDEPENDENT CONTRACTOR.
  B.  (I)  WITH RESPECT TO CONTRACTS DESCRIBED IN SUBPARAGRAPHS (II) AND
(III) OF THIS PARAGRAPH, AND  IN  ACCORDANCE  WITH  SUCH  SUBPARAGRAPHS,
STATE  AGENCIES  AS  DEFINED  IN THIS ARTICLE SHALL NOT CONTRACT FOR THE
SUPPLY OF COMMODITIES, SERVICE OR CONSTRUCTION WITH ANY  CONTRACTOR  WHO
DOES  NOT  AGREE  TO  STIPULATE  TO  THE  FOLLOWING, IF THERE IS ANOTHER
CONTRACTOR  WHO  WILL  CONTRACT  TO  SUPPLY  COMMODITIES,  SERVICES   OR
CONSTRUCTION  OF  COMPARABLE  QUALITY AT A COMPARABLE PRICE OR COST: THE

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD03998-03-4
              

A. 4791--A                          2

CONTRACTOR SHALL NOT PLACE ANY ARBITRATION PROVISION UPON THEIR  EMPLOY-
EES THAT WORK ON SUCH CONTRACT.
  (II)  IN  THE CASE OF CONTRACTS LET BY A COMPETITIVE PROCESS, WHENEVER
THE RESPONSIVE AND RESPONSIBLE OFFERER HAVING THE LOWEST PRICE  OR  BEST
VALUE  OFFER  HAS NOT AGREED TO STIPULATE TO THE CONDITIONS SET FORTH IN
THIS SUBDIVISION AND ANOTHER RESPONSIVE AND RESPONSIBLE OFFERER WHO  HAS
AGREED  TO  STIPULATE  TO  SUCH CONDITIONS HAS SUBMITTED AN OFFER WITHIN
FIVE PERCENT OF THE LOWEST PRICE OR BEST VALUE OFFER FOR A  CONTRACT  TO
SUPPLY  COMMODITIES, SERVICES OR CONSTRUCTION OF COMPARABLE QUALITY, THE
CONTRACTING ENTITY SHALL REFER SUCH OFFERS TO THE COMMISSIONER OF GENER-
AL SERVICES, WHO MAY DETERMINE, IN ACCORDANCE WITH  APPLICABLE  LAW  AND
RULES, THAT IT IS IN THE BEST INTEREST OF THE STATE THAT THE CONTRACT BE
AWARDED TO OTHER THAN THE LOWEST PRICE OR BEST VALUE OFFER.
  (III) IN THE CASE OF CONTRACTS LET BY OTHER THAN A COMPETITIVE PROCESS
FOR GOODS OR SERVICES INVOLVING AN EXPENDITURE OF AN AMOUNT GREATER THAN
THE  DISCRETIONARY  BUYING THRESHOLD AS SPECIFIED IN SECTION ONE HUNDRED
SIXTY-THREE OF THIS ARTICLE, OR FOR  CONSTRUCTION  INVOLVING  AN  AMOUNT
GREATER  THAN FIFTEEN THOUSAND DOLLARS, THE CONTRACTING ENTITY SHALL NOT
AWARD TO A PROPOSED CONTRACTOR WHO HAS NOT AGREED TO  STIPULATE  TO  THE
CONDITIONS  SET  FORTH  IN THIS SUBDIVISION UNLESS THE ENTITY SEEKING TO
USE THE  COMMODITIES,  SERVICES  OR  CONSTRUCTION  DETERMINES  THAT  THE
COMMODITIES,  SERVICES  OR  CONSTRUCTION ARE NECESSARY FOR THE ENTITY TO
PERFORM ITS FUNCTIONS AND THERE IS NO OTHER RESPONSIBLE  CONTRACTOR  WHO
WILL  SUPPLY COMMODITIES, SERVICES OR CONSTRUCTION OF COMPARABLE QUALITY
AT A COMPARABLE PRICE. SUCH DETERMINATIONS SHALL BE MADE IN WRITING  AND
SHALL BE PUBLIC DOCUMENTS.
  C. UPON RECEIVING INFORMATION THAT A CONTRACTOR WHO HAS MADE THE STIP-
ULATION  REQUIRED  BY  THIS  SUBDIVISION  IS  IN  VIOLATION THEREOF, THE
CONTRACTING ENTITY SHALL REVIEW SUCH INFORMATION AND OFFER THE  CONTRAC-
TOR  AN  OPPORTUNITY  TO RESPOND. IF THE CONTRACTING ENTITY FINDS THAT A
VIOLATION HAS OCCURRED, IT SHALL TAKE SUCH ACTION AS MAY BE  APPROPRIATE
AND  PROVIDED  FOR  BY LAW, RULE OR CONTRACT, INCLUDING, BUT NOT LIMITED
TO,  IMPOSING  SANCTIONS,  SEEKING  COMPLIANCE,  RECOVERING  DAMAGES  OR
DECLARING THE CONTRACTOR IN DEFAULT.
  D.  AS USED IN THIS SUBDIVISION, THE TERM "CONTRACT" SHALL NOT INCLUDE
CONTRACTS WITH  GOVERNMENTAL  AND  NON-PROFIT  ORGANIZATIONS,  CONTRACTS
AWARDED  PURSUANT  TO  EMERGENCY  PROCUREMENT  PROCEDURES  OR CONTRACTS,
RESOLUTIONS, INDENTURES, DECLARATIONS  OF  TRUST  OR  OTHER  INSTRUMENTS
AUTHORIZING  OR  RELATING TO THE AUTHORIZATION, ISSUANCE, AWARD, SALE OR
PURCHASE OF BONDS, CERTIFICATES OF INDEBTEDNESS, NOTES OR  OTHER  FISCAL
OBLIGATIONS,  PROVIDED  THAT  THE  POLICIES OF THIS SUBDIVISION SHALL BE
CONSIDERED WHEN SELECTING A CONTRACTOR TO  PROVIDE  FINANCIAL  OR  LEGAL
ADVICE, AND WHEN SELECTING MANAGING UNDERWRITERS IN CONNECTION WITH SUCH
ACTIVITIES.
  S  2.  This  act  shall take effect immediately and shall apply to all
contracts signed and executed on or after such effective date.