senate Bill S1717

2013-2014 Legislative Session

Promotes fairness in competitive bidding by providing for enforcement of prevailing wage provisions applicable to public work construction projects

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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 consumer protection
Jan 09, 2013 referred to consumer protection

Co-Sponsors

S1717 - Bill Details

Current Committee:
Law Section:
General Business Law
Laws Affected:
Add ยง399-j, Gen Bus L
Versions Introduced in Previous Legislative Sessions:
2011-2012: S2967
2009-2010: S4937

S1717 - Bill Texts

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Promotes fairness in competitive bidding by providing for enforcement of prevailing wage provisions applicable to public work construction projects; permits any person to bring a civil action for the recovery of damages against the winning bidder if the winning bidder has violated the labor law by failing to pay the prevailing wage on a construction project; authorizes attorney general enforcement and a private right of action; makes related provisions.

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BILL NUMBER:S1717

TITLE OF BILL:
An act
to amend the general business law, in relation to promoting fairness in
competitive bidding by providing for enforcement of prevailing wage
provisions applicable to public work construction projects

PURPOSE OR GENERAL IDEA OF BILL:
This bill promotes fairness in competitive bidding by providing for
enforcement of prevailing wage provisions applicable to public work
construction projects.

SUMMARY OF SPECIFIC PROVISIONS:

Section one amends the general business law by adding a new section
399-J. It defines "person" to include individual, organization,
school district, corporation, partnership or other business entity;
and "construction project" to include any project which is subject to
the provisions of article eight of the labor law and which involves
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.

The section allows any Person to bring a civil action for the recovery
of damages against the winning bidder if the winning bidder has
violated the labor law by failing to pay the prevailing wage on a
construction. Project. The action may be maintained solely by the
person bringing the action, or by such person, together with the
attorney general. If the winning bidder is found not to be paying the
prevailing wage, the presumptive measure of damages is the value of
the contract for the construction project.

If the winning bidder is found not to be paying the prevailing wage on
a construction Project, the presumptive measure of damages is the
value of the contract for the construction project. If the office of
the attorney general proceeds with an action brought by a person,
such person shall
receive at least 15% but not mere than twenty-five percent of the
proceeds, and attorney fees plus costs.

If the attorney general does not proceed with an action under this
section, the person bringing the action or settling the claim shall
receive an amount not less than 50% and not more than 75% of the
proceeds of the action or settlement.

JUSTIFICATION:
Present law does not contain an effective means for redress in a
prevailing wage dispute where the winning bidder has violated the
labor law by failing to pay prevailing wages on the project. The
payment of prevailing wages is now enforced primarily on a complaint
basis. The purpose of this bill is to provide losing bidders on
prevailing wage contracts a mechanism to achieve redress. This bill
provides an opportunity for civil enforcement through the bidding
procedure. At times contractors win contracts to perform prevailing


wage work by presenting themselves as the low bidder, artificially
deflating the wage costs by neglecting to pay the prevailing wage.
Their lower wages put more conscientious contractors at a
disadvantage. Passage of this legislation
would result in more self-policing of the industry, by encouraging
contractors to realistically calculate prevailing wage costs.

PRIOR LEGISLATIVE HISTORY:
A.6156 of 2001-02: Referred to Labor
A.8155 of 2003-04: Referred to Labor
A.3293 of 2005-06: Referred to Labor
A.5851 of 2007-08: Referred to Labor

FISCAL IMPLICATIONS: None.

EFFECTIVE DATE:
Sixty days after it becomes a law.

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

                                  1717

                       2013-2014 Regular Sessions

                            I N  S E N A T E

                               (PREFILED)

                             January 9, 2013
                               ___________

Introduced by Sen. ESPAILLAT -- read twice and ordered printed, and when
  printed to be committed to the Committee on Consumer Protection

AN ACT to amend the general business law, in relation to promoting fair-
  ness in competitive bidding by providing for enforcement of prevailing
  wage provisions applicable to public work 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-j to read as follows:
  S 399-J. FAIRNESS IN COMPETITIVE BIDDING. 1. FOR THE PURPOSES OF  THIS
SECTION:  (A)  THE TERM "PERSON" SHALL INCLUDE ANY INDIVIDUAL, ORGANIZA-
TION, ASSOCIATION, SCHOOL DISTRICT, LOCAL GOVERNMENT, CORPORATION, PART-
NERSHIP, LIMITED LIABILITY COMPANY OR OTHER BUSINESS ENTITY; AND
  (B) THE TERM "CONSTRUCTION PROJECT" SHALL INCLUDE ANY PROJECT WHICH IS
SUBJECT TO THE PROVISIONS OF ARTICLE EIGHT OF THE LABOR  LAW  AND  WHICH
INVOLVES  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 MAY BRING A CIVIL ACTION FOR THE RECOVERY OF DAMAGES
AGAINST THE WINNING BIDDER IF THE WINNING BIDDER HAS VIOLATED THE  LABOR
LAW  BY  FAILING  TO  PAY THE PREVAILING WAGE ON A CONSTRUCTION PROJECT.
SUCH AN ACTION MAY BE MAINTAINED  SOLELY  BY  THE  PERSON  BRINGING  THE
ACTION,  OR  BY  SUCH PERSON, TOGETHER WITH THE ATTORNEY GENERAL. IF THE
WINNING BIDDER IS FOUND NOT  TO  BE  PAYING  THE  PREVAILING  WAGE,  THE
PRESUMPTIVE  MEASURE  OF  DAMAGES  IS  THE VALUE OF THE CONTRACT FOR THE
CONSTRUCTION PROJECT.
  (B) A COPY OF THE COMPLAINT AND WRITTEN  DISCLOSURE  OF  SUBSTANTIALLY
ALL MATERIAL EVIDENCE AND INFORMATION THAT THE PERSON POSSESSES SHALL BE
SERVED ON THE OFFICE OF THE ATTORNEY GENERAL PURSUANT TO THE CIVIL PRAC-

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD02992-01-3

S. 1717                             2

TICE LAW AND RULES. THE COMPLAINT SHALL BE FILED IN CAMERA, SHALL REMAIN
UNDER  SEAL  FOR  AT  LEAST SIXTY DAYS, AND SHALL NOT BE SERVED UPON THE
DEFENDANT UNTIL THE COURT SO ORDERS. THE OFFICE OF THE ATTORNEY  GENERAL
MAY  ELECT  TO  INTERVENE  AND PROCEED WITH THE ACTION WITHIN SIXTY DAYS
AFTER IT RECEIVES BOTH THE  COMPLAINT  AND  THE  MATERIAL  EVIDENCE  AND
INFORMATION.
  (C) BEFORE THE EXPIRATION OF THE SIXTY-DAY PERIOD PROVIDED FOR IN THIS
SECTION,  THE OFFICE OF THE ATTORNEY GENERAL SHALL: (I) PROCEED WITH THE
ACTION, IN WHICH CASE THE ACTION SHALL BE CONDUCTED BY THE OFFICE OF THE
ATTORNEY GENERAL ON BEHALF OF THE STATE OF NEW YORK; OR
  (II) NOTIFY THE COURT THAT IT DECLINES TO TAKE  OVER  THE  ACTION,  IN
WHICH  CASE  THE  PERSON  BRINGING  THE  ACTION  SHALL HAVE THE RIGHT TO
CONDUCT THE ACTION.
  3. WHENEVER A PERSON BRINGS AN ACTION UNDER THIS  SECTION,  NO  PERSON
OTHER  THAN  THE OFFICE OF THE ATTORNEY GENERAL MAY INTERVENE OR BRING A
RELATED ACTION BASED ON THE FACTS UNDERLYING THE PENDING ACTION.
  4. IF THE OFFICE OF THE ATTORNEY GENERAL PROCEEDS WITH THE ACTION,  IT
SHALL  HAVE  THE  PRIMARY RESPONSIBILITY FOR PROSECUTING THE ACTION, AND
SHALL NOT BE BOUND BY AN ACT OF THE PERSON  BRINGING  THE  ACTION.  SUCH
PERSON  SHALL  HAVE  THE  RIGHT  TO  CONTINUE  AS A PARTY TO THE ACTION,
SUBJECT TO THE  LIMITATIONS  SET  FORTH  IN  SUBDIVISION  FIVE  OF  THIS
SECTION.
  5.  (A)  THE  OFFICE  OF  THE  ATTORNEY GENERAL MAY DISMISS THE ACTION
NOTWITHSTANDING THE OBJECTIONS OF THE PERSON INITIATING  THE  ACTION  IF
THE  PERSON  HAS  BEEN NOTIFIED BY THE OFFICE OF THE ATTORNEY GENERAL OF
THE FILING OF THE MOTION AND THE COURT HAS PROVIDED THE PERSON  WITH  AN
OPPORTUNITY FOR A HEARING ON THE MOTION.
  (B)  THE OFFICE OF THE ATTORNEY GENERAL MAY SETTLE THE ACTION WITH THE
DEFENDANT NOTWITHSTANDING THE OBJECTIONS OF THE  PERSON  INITIATING  THE
ACTION  IF  THE  COURT  DETERMINES,  AFTER  A HEARING, THAT THE PROPOSED
SETTLEMENT IS FAIR, ADEQUATE,  AND  REASONABLE  UNDER  ALL  THE  CIRCUM-
STANCES.  UPON  A  SHOWING  OF  GOOD  CAUSE, SUCH HEARING MAY BE HELD IN
CAMERA.
  6. IF THE OFFICE OF THE ATTORNEY GENERAL ELECTS NOT  TO  PROCEED  WITH
THE  ACTION, THE PERSON WHO INITIATED THE ACTION SHALL HAVE THE RIGHT TO
CONDUCT THE ACTION. IF THE OFFICE OF THE ATTORNEY GENERAL SO REQUEST, IT
SHALL BE SERVED WITH COPIES OF ALL PLEADINGS FILED  IN  THE  ACTION  AND
SHALL  BE  SUPPLIED  WITH  COPIES  OF ALL DEPOSITION TRANSCRIPTS (AT THE
OFFICE OF THE ATTORNEY GENERAL'S EXPENSE). WHEN A PERSON  PROCEEDS  WITH
THE  ACTION,  THE  COURT,  WITHOUT LIMITING THE STATUS AND RIGHTS OF THE
PERSON INITIATING THE ACTION, MAY NEVERTHELESS PERMIT THE OFFICE OF  THE
ATTORNEY  GENERAL  TO  INTERVENE  AT A LATER DATE UPON A SHOWING OF GOOD
CAUSE.
  7. THE OFFICE OF THE ATTORNEY GENERAL MAY ELECT TO  PURSUE  ITS  CLAIM
THROUGH  ANY  ALTERNATE  REMEDY  AVAILABLE TO THE OFFICE OF THE ATTORNEY
GENERAL, INCLUDING ANY ADMINISTRATIVE PROCEEDING TO  DETERMINE  A  CIVIL
MONEY  PENALTY.  IF  ANY  SUCH  ALTERNATE  REMEDY  IS PURSUED IN ANOTHER
PROCEEDING, THE PERSON INITIATING THE ACTION SHALL HAVE THE SAME  RIGHTS
IN  SUCH  PROCEEDING  AS  SUCH  PERSON  WOULD HAVE HAD IF THE ACTION HAD
CONTINUED UNDER THIS SECTION. ANY FINDING OF FACT OR CONCLUSION  OF  LAW
MADE  IN SUCH OTHER PROCEEDING THAT HAS BECOME FINAL SHALL BE CONCLUSIVE
ON ALL PARTIES TO AN ACTION UNDER THIS  SECTION.  FOR  PURPOSES  OF  THE
PRECEDING  SENTENCE,  A  FINDING  OR  CONCLUSION IS FINAL IF IT HAS BEEN
FINALLY DETERMINED ON APPEAL TO THE APPROPRIATE COURT OF  THE  STATE  OF
NEW  YORK,  IF  ALL  TIME  FOR FILING SUCH AN APPEAL WITH RESPECT TO THE

S. 1717                             3

FINDING OR CONCLUSION HAS EXPIRED, OR IF THE FINDING  OR  CONCLUSION  IS
NOT SUBJECT TO JUDICIAL REVIEW.
  8.  IF  A WINNING BIDDER IS FOUND NOT TO BE PAYING THE PREVAILING WAGE
ON A CONSTRUCTION PROJECT, THE PRESUMPTIVE   MEASURE OF DAMAGES  IS  THE
VALUE  OF  THE CONTRACT FOR THE CONSTRUCTION PROJECT.  (A) IF THE OFFICE
OF THE ATTORNEY GENERAL PROCEEDS WITH AN ACTION  BROUGHT  BY  A  PERSON,
SUCH  PERSON SHALL, SUBJECT TO THE PROVISIONS OF THIS PARAGRAPH, RECEIVE
AT LEAST FIFTEEN PERCENT BUT NOT MORE THAN TWENTY-FIVE  PERCENT  OF  THE
PROCEEDS  OF  THE  ACTION OR SETTLEMENT OF THE CLAIM, DEPENDING UPON THE
EXTENT TO WHICH THE PERSON SUBSTANTIALLY CONTRIBUTED TO THE  PROSECUTION
OF  THE ACTION. ANY SUCH PERSON SHALL ALSO RECEIVE AN AMOUNT FOR REASON-
ABLE EXPENSES THAT THE COURT FINDS TO HAVE  BEEN  NECESSARILY  INCURRED,
PLUS REASONABLE ATTORNEYS' FEES AND COSTS.  ALL SUCH EXPENSES, FEES, AND
COSTS SHALL BE AWARDED AGAINST THE DEFENDANT.
   (B)  IF  THE  OFFICE OF THE ATTORNEY GENERAL DOES NOT PROCEED WITH AN
ACTION UNDER THIS SECTION, THE PERSON BRINGING THE  ACTION  OR  SETTLING
THE  CLAIM SHALL RECEIVE AN AMOUNT WHICH THE COURT DECIDES IS REASONABLE
FOR COLLECTING THE CIVIL PENALTY AND DAMAGES. THE AMOUNT  SHALL  BE  NOT
LESS  THAN  FIFTY  PERCENT AND NOT MORE THAN SEVENTY-FIVE PERCENT OF THE
PROCEEDS OF THE ACTION OR SETTLEMENT AND  SHALL  BE  PAID  OUT  OF  SUCH
PROCEEDS.  SUCH  PERSON  SHALL  ALSO  RECEIVE  AN  AMOUNT FOR REASONABLE
EXPENSES THAT THE COURT FINDS TO HAVE BEEN  NECESSARILY  INCURRED,  PLUS
REASONABLE ATTORNEYS' FEES AND COSTS. ALL SUCH EXPENSES, FEES, AND COSTS
SHALL BE AWARDED AGAINST THE DEFENDANT.
  S  2.  This  act  shall take effect on the sixtieth day after it shall
have become a law.

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