senate Bill S119

2013-2014 Legislative Session

Relates to advertisements for bids for certain public contracts

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Archive: Last Bill Status - In Committee


  • Introduced
  • In Committee
  • On Floor Calendar
    • Passed Senate
    • Passed Assembly
  • Delivered to Governor
  • Signed/Vetoed by Governor

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Actions

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Assembly Actions - Lowercase
Senate Actions - UPPERCASE
Jan 08, 2014 referred to infrastructure and capital investment
Feb 01, 2013 committee discharged and committed to infrastructure and capital investment
Jan 09, 2013 referred to labor

S119 - Bill Details

Current Committee:
Senate Infrastructure And Capital Investment
Law Section:
Labor Law
Laws Affected:
Amd §220, Lab L; amd §103, Gen Muni L; amd §135, St Fin L; amd §2590-p, Ed L
Versions Introduced in Previous Legislative Sessions:
2011-2012: S731
2009-2010: S8077

S119 - Bill Texts

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Relates to advertisements for bids for certain public contracts.

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BILL NUMBER:S119 REVISED 12/06/12

TITLE OF BILL:
An act
to amend the labor law, the general municipal law, the state finance law
and the education law, in relation to advertisements for bids

PURPOSE OR GENERAL IDEA OF BILL:
To prohibit the practice of job order contracting on public work
contracts.

SUMMARY OF SPECIFIC PROVISIONS:
Section 1 of the bill amends section 220 of the labor law to provide
that if the fiscal officer cannot determine the schedules or wages of
the workers based on the specifications for a public work contract,
the fiscal officer must reject any contract associated with that
specific advertisement for bids.

Sections 2 and 3 of the bill amend subdivision I of section 10.3 of
the general municipal law to require that all bids for a local public
work contract state a fixed-dollar amount.

Sections 4 and 5 the bill amend subdivision 2 of section 10J of the
general municipal law to require that the bid advertisement
specifically describe the nature and type of work to be performed.

Section 6 of the bill amends section 135 of the state finance law to
require that the specifications for a contract specifically describe
the nature and type of work to be performed and that the bids
submitted state a fixed-dollar amount.

Section 7 of the bill amends section 2590-p of the education law to
require that each project for facilities included in the five-year
capital plan for the New York City Community School District
specifically describe the nature and type of work to be performed and
that the estimated costs be for a fixed-dollar amount.

Section 8 establishes the effective date of the act.

EXISTING LAW:
Subdivision 3 of section 220 of the labor law requires the fiscal
officer to determine the schedule of prevailing wages and supplements
required to be paid on a public work contract and also requires that
the schedule be attached to the specifications for the contract.

The current law relating to the advertisement, specifications and bids
for public work does not require the bidder to state a fixed price
for its work in its bid.

JUSTIFICATION:

The practice of job order contracting on public work projects thwarts
the purpose of New York's competitive bidding laws. A job order
contract is an indefinite quantity contract for construction,
renovation or repair work. It is usually a multi-year contract
containing ambiguous project descriptions that does not require a


contractor to submit a bid for a fixed dollar amount. Instead, the
bidders are informed about a range of tasks that mayor may not be
needed to perform the contract. The contract is given a minimum to
maximum value of its worth. The contractors then use a job order
contracting book to bid on a scale, which is used to determine
payment, as projects come up under the contract. The bidders do not
know what specific type of work they are getting involved with and,
therefore, cannot properly ascertain how much the project will cost
them. If the unit bid is too low and they turn out to be underpaid
and cost-saving measures become necessary, comers might be cut on
public work projects, which would negate the purpose of this type of
construction work.

Job order contracting puts potential bidders in the untenable position
of having to submit a proposed contract price without full knowledge
of their responsibilities under the contract. This can discourage
certain contractors from bidding, or deny them a sufficient
opportunity to estimate their lowest possible bid. These consequences
violate one of the central purposes of the state's competitive bidder
laws which the New York Court of Appeals has recognized is intended
to protect the public treasury by obtaining the best work at the
lowest possible price. Associated Builders and Contractors, Inc. v.
City of Rochester, 67 N.Y.2d 854(1986). By requiring specific
descriptions of the nature and type of work to be performed, and the
submittal of a fixed bid amount, this legislation will provide a
fairer process for bidders seeking to perform state and local public
work in New York.

PRIOR LEGISLATIVE HISTORY:
2011-12: S.731
2010: S.8077 Referred to Labor

FISCAL IMPLICATIONS:
To be determined.

EFFECTIVE DATE:
This act shall take effect on the ninetieth day after it shall have
become law, with provisions.

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

                                   119

                       2013-2014 Regular Sessions

                            I N  S E N A T E

                               (PREFILED)

                             January 9, 2013
                               ___________

Introduced  by  Sen. PERALTA -- read twice and ordered printed, and when
  printed to be committed to the Committee on Labor

AN ACT to amend the labor law, the  general  municipal  law,  the  state
  finance  law  and the education law, in relation to advertisements for
  bids

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

  Section  1. Paragraph (c) of subdivision 3 of section 220 of the labor
law, as separately amended by chapter 678 of the laws of 2007 and  chap-
ter 7 of the laws of 2008, is amended to read as follows:
  (c)  It  shall  be  the duty of the fiscal officer, as defined in this
section, to ascertain and determine the schedules of supplements  to  be
provided  and  wages  to be paid workers, laborers and mechanics on such
public work, prior to the time of the advertisement for bids,  and  such
schedules  shall be annexed to and form a part of the specifications for
the work. Such fiscal officer shall  file  with  the  department  having
jurisdiction such schedules prior to the time of the commencement of the
advertisement  for  bids on all public works proposed to be constructed.
IF THE FISCAL OFFICER CANNOT ASCERTAIN OR DETERMINE  SUCH  SCHEDULES  OR
WAGES,  OR  DISTINGUISH  BETWEEN  THE CLASSIFICATIONS OF WORKERS ON SUCH
PUBLIC WORK, IT SHALL BE THE DUTY OF THE FISCAL OFFICER  TO  REJECT  ANY
CONTRACT ASSOCIATED WITH THE ADVERTISEMENT FOR BIDS. The term "contract"
as  used in this article also shall include reconstruction and repair of
any such public work, and any  public  work  performed  under  a  lease,
permit  or other agreement pursuant to which the department of jurisdic-
tion grants the responsibility of contracting for such  public  work  to
any  third  party proposing to perform such work to which the provisions
of  this  article  would  apply  had  the  department  of   jurisdiction
contracted  directly  for  its  performance, or where there is no lease,
permit or other agreement and ownership of a public work is intended  to

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD00354-01-3

S. 119                              2

be assumed by such public entity at any time subsequent to completion of
the public work.
  S  2.  Subdivision  1  of section 103 of the general municipal law, as
amended by section 1 of chapter 2 of the laws of  2012,  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,  provided, however, that purchase contracts
(including contracts  for  service  work,  but  excluding  any  purchase
contracts necessary for the completion of a public works contract pursu-
ant  to  article  eight of the labor law) may be awarded on the basis of
best value, as defined in section one hundred sixty-three of  the  state
finance  law,  to  a responsive and responsible bidder or offerer in the
manner provided by this section except that in a  political  subdivision
other  than  a city with a population of one million inhabitants or more
or any district, board or agency with jurisdiction  exclusively  therein
the  use  of  best  value  for  awarding a purchase contract or purchase
contracts must be authorized by local law or, in the case of a  district
corporation,   school  district  or  board  of  cooperative  educational
services, by rule, regulation or resolution adopted at a public meeting.
ALL SUBMITTED BIDS FOR SUCH PUBLIC WORK CONTRACTS SHALL BE FOR A  FIXED-
DOLLAR  AMOUNT.  In any case where a responsible bidder's or responsible
offerer'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  best  value.    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 or offers and
readvertise for new bids or  offers  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 subdivision 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 arti-
ficially 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" and "sealed offers",
as  that  term  applies  to purchase contracts, (including contracts for
service work, but excluding any purchase  contracts  necessary  for  the
completion  of  a public works contract pursuant to article eight of the

S. 119                              3

labor law) shall include bids and  offers  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 and offers in such format. Submission
in  electronic format may, for technology contracts only, be required as
the sole method for the submission of bids and offers. Bids  and  offers
submitted  in  an  electronic format shall be transmitted by bidders and
offerers to the receiving device designated by the political subdivision
or district. Any method used to receive electronic bids and offers shall
comply with article three of the state technology law, and any rules and
regulations promulgated and guidelines developed thereunder  and,  at  a
minimum,  must (a) document the time and date of receipt of each bid and
offer 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 or offer until the time  and  date
established  for the opening of bids or offers. The timely submission of
an electronic bid or offer in compliance with instructions provided  for
such submission in the advertisement for bids or offers and/or the spec-
ifications  shall be the responsibility solely of each bidder or offerer
or prospective bidder or offerer. No political subdivision  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 and offers.
  S  3.  Subdivision  1  of section 103 of the general municipal law, as
amended by section 2 of chapter 2 of the laws of  2012,  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,  provided, however, that purchase contracts
(including contracts  for  service  work,  but  excluding  any  purchase
contracts necessary for the completion of a public works contract pursu-
ant  to  article  eight of the labor law) may be awarded on the basis of
best value, as defined in section one hundred sixty-three of  the  state
finance  law,  to  a responsive and responsible bidder or offerer in the
manner provided by this section except that in a  political  subdivision
other  than  a city with a population of one million inhabitants or more
or any district, board or agency with jurisdiction  exclusively  therein
the  use  of  best  value  of  awarding  a purchase contract or purchase
contracts must be authorized by local law or, in the case of a  district
corporation,   school  district  or  board  of  cooperative  educational
services, by rule, regulation or resolution adopted at a public meeting.
ALL SUBMITTED BIDS FOR SUCH PUBLIC WORK CONTRACTS SHALL BE FOR A  FIXED-
DOLLAR AMOUNT. In determining whether a purchase is an expenditure with-
in  the discretionary threshold amounts established by this subdivision,
the officer, board or agency  of  a  political  subdivision  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.

S. 119                              4

Purchases  of  commodities,  services  or  technology shall not be arti-
ficially 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.  In  any  case  where  a  responsible  bidder's  or  responsible
offerer'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 or best value. In
cases where two or more  responsible  bidders  furnishing  the  required
security submit identical bids as to price, such officer, board or agen-
cy may award the contract to any of such bidders. Such officer, board or
agency may, in his, her or its discretion, reject all bids or offers and
readvertise  for  new  bids  or  offers  in  the manner provided by this
section.
  S 4. Subdivision 2 of section 103 of the  general  municipal  law,  as
amended  by  section 4 of chapter 608 of the laws of 2011, is amended to
read as follows:
  2. Advertisement for bids and offers shall be published in  the  offi-
cial  newspaper  or  newspapers,  if any, or otherwise in a newspaper or
newspapers designated 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 and where the identity
of all offerers will be publicly disclosed, and the designation  of  the
receiving device if the political subdivision or district has authorized
the  receipt of bids and offers in an electronic format. SUCH ADVERTISE-
MENT SHALL DESCRIBE SPECIFICALLY THE NATURE OF THE WORK,  INCLUDING  THE
TYPE OF WORK TO BE PERFORMED, AND ENABLE THE BIDDER TO COMPLY WITH PARA-
GRAPH  (C)  OF  SUBDIVISION  THREE  OF SECTION TWO HUNDRED TWENTY OF THE
LABOR LAW. Such board or agency may by resolution designate any  officer
or  employee to open the bids and offers at the time and place specified
in the notice. Such designee shall make a record of such bids and offers
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 and the identity of all offerers shall be public-
ly disclosed at the time and place so  specified.  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 and offers.
  S  5.  Subdivision  2  of section 103 of the general municipal law, as
amended by section 5 of chapter 608 of the laws of 2011, is  amended  to
read as follows:
  2.  Advertisement  for bids and offers shall be published in the offi-
cial newspaper or newspapers, if any, or otherwise  in  a  newspaper  or
newspapers designated 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 and where  the  identity
of  all  offerers  will  be publicly disclosed. SUCH ADVERTISEMENT SHALL
DESCRIBE SPECIFICALLY THE NATURE OF THE WORK, INCLUDING THE TYPE OF WORK
TO BE PERFORMED, AND ENABLE THE BIDDER TO COMPLY WITH PARAGRAPH  (C)  OF
SUBDIVISION  THREE  OF SECTION TWO HUNDRED TWENTY OF THE LABOR LAW. Such
board or agency may by resolution designate any officer or  employee  to

S. 119                              5

open  the bids and offers at the time and place specified in the notice.
Such designee shall make a record of such bids and offers 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 and the identity of all offerers shall be  publicly  disclosed
at  the  time  and  place  so specified. 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 and offers.
  S  6.  The  second  undesignated paragraph of section 135 of the state
finance law, as amended by section 3 of part MM of  chapter  57  of  the
laws of 2008, is amended to read as follows:
  Such  specifications  must be so drawn as to permit separate and inde-
pendent bidding upon each of the above three subdivisions of work.   All
contracts hereafter awarded by the state or a department, board, commis-
sioner  or officer thereof, for the erection, construction or alteration
of buildings, or any part thereof, shall award the three subdivisions of
the above specified work separately to responsible and reliable persons,
firms or corporations engaged in these classes of work. A  contract  for
one  or  more  buildings  in  any project shall be awarded to the lowest
responsible bidder for all the buildings included in the specifications.
 ALL SUCH SPECIFICATIONS ISSUED PURSUANT TO THIS ARTICLE SHALL  DESCRIBE
SPECIFICALLY  THE  NATURE  OF THE WORK, INCLUDING THE TYPE OF WORK TO BE
PERFORMED, AND ENABLE THE BIDDER TO COMPLY WITH PARAGRAPH (C) OF  SUBDI-
VISION THREE OF SECTION TWO HUNDRED TWENTY OF THE LABOR LAW. EACH BIDDER
FOR  ANY PROJECT UNDER THIS ARTICLE SHALL SUBMIT BIDS FOR A FIXED-DOLLAR
AMOUNT.
  S 7. Paragraphs a and d of subdivision 6  of  section  2590-p  of  the
education  law,  paragraph a as added by chapter 738 of the laws of 1988
and paragraph d as amended by chapter  91  of  the  laws  of  2002,  are
amended to read as follows:
  a.  For  each  project  included  in an approved five-year educational
facilities capital plan, the chancellor shall develop a  detailed  scope
of  the project, which shall include the following: (i) the purposes and
public to be served, (ii) the programs to be conducted in the  facility,
(iii) the gross amounts of space and bulk for any building or structure,
(iv)  identification  of the intent to use architectural, engineering or
other  consultant  services  and  estimated  fees  for  such  consultant
services  (v)  the  schedule  of design and construction, (vi) the total
estimated project costs, including costs for site acquisition,  prepara-
tion  and  tenant  relocation, design, construction and equipment, (vii)
maximum estimated expenditures for the  project  for  each  fiscal  year
until its completion, (viii) costs associated with maintenance and oper-
ation of the physical plant and (ix) such other information as the chan-
cellor  shall  specify.  In  the  event, a project consists of a program
element without identification of the particular education  facility  at
which such project is to be performed, the detailed scope of the project
shall  specify  the nature of the work to be performed, applicable price
and quality standards, a list of the schools  eligible  for  such  work,
annual performance targets and the total estimated costs of such project
during  each fiscal year until its completion.  ALL SUCH ESTIMATED COSTS
AND PRICES SHALL BE FOR A FIXED-DOLLAR AMOUNT.
  d. For projects to be funded pursuant  to  subdivision  four  of  this
section,  the  chancellor shall transmit the detailed scope of each such
project to the director  of  management  and  budget  of  the  city  for
approval.

S. 119                              6

  (i) Except as provided in paragraph b of this subdivision, no expenses
shall  be  incurred  by  the  city  board  or the authority for any such
project prior to approval of the detailed scope  of  any  such  project.
SUCH  DETAILED  SCOPE  OF  THE  PROJECT  SHALL DESCRIBE SPECIFICALLY THE
NATURE OF THE WORK, INCLUDING THE TYPE OF WORK TO BE PERFORMED.
  (ii)  No  detailed scope of project shall be approved unless the total
estimated costs of such project, together with the  aggregate  estimated
costs  of  all  projects for which a detailed scope has theretofore been
approved, are within city capital budget appropriations available there-
for. A detailed scope of project that is not disapproved by the director
of management and budget within thirty days of its submission  shall  be
deemed approved. To the extent the director disapproves all or part of a
scope, he or she shall set forth in writing the reasons therefor.
  (iii)  Upon  approval of the detailed scope of project, the chancellor
shall refer such project  to  the  New  York  city  school  construction
authority for implementation in accordance with an agreement between the
authority  and  the  city  board and shall transmit the approved project
scope to the comptroller, whereupon the total estimated  costs  of  such
project  as  set forth in such approved project scope shall be available
for expenditure. ALL SUCH ESTIMATED COSTS SHALL BE  FOR  A  FIXED-DOLLAR
AMOUNT.
  (iv)  Approval  of  the  director  of  management  and budget shall be
required for any material change  in  the  approved  detailed  scope  of
project  or for any increase in the total cost of such project in excess
of any reserve provided in the approved detailed scope of project.  Such
approval shall be given or deemed given in the manner provided herein.
  (v)  The  provisions  of  this  paragraph shall not apply to emergency
projects undertaken pursuant to paragraph h of subdivision two  of  this
section,  the estimated costs of which, together with the costs of other
projects undertaken pursuant to said paragraph h, does  not  exceed  the
amount  set  forth in the educational facilities capital plan for activ-
ities pursuant to paragraph h of subdivision two of this section.
  S 8. This act shall take effect on the ninetieth day  after  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  two  of
this act shall be subject to the expiration and reversion of such subdi-
vision 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 three of this act shall take effect, provided further, that  the
amendments  to subdivision 2 of section 103 of the general municipal law
made by section four of this act shall be subject to the expiration  and
reversion  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  five  of this act shall take effect;
provided, further, that the amendments to paragraph d of  subdivision  6
of section 2590-p of the education law made by section seven of this act
shall  not  affect  the  repeal  of  such  paragraph and shall be deemed
repealed therewith.

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