senate Bill S2860

2013-2014 Legislative Session

Relates to reciprocity of debarments imposed under the federal Davis-Bacon Act

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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 labor
Jun 21, 2013 committed to rules
May 23, 2013 advanced to third reading
May 22, 2013 2nd report cal.
May 21, 2013 1st report cal.659
Jan 24, 2013 referred to labor

Votes

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May 21, 2013 - Labor committee Vote

S2860
11
2
committee
11
Aye
2
Nay
3
Aye with Reservations
0
Absent
0
Excused
0
Abstained
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Labor Committee Vote: May 21, 2013

Co-Sponsors

S2860 - Bill Details

See Assembly Version of this Bill:
A3987
Current Committee:
Senate Labor
Law Section:
Labor Law
Laws Affected:
Amd §220-b, Lab L; amd §103, Gen Muni L
Versions Introduced in 2011-2012 Legislative Session:
S5659C

S2860 - Bill Texts

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Relates to reciprocity of debarments imposed under the federal Davis-Bacon Act; provides that any contractor who has been debarred from federal job sites for having disregarded obligations to employees under the Davis-Bacon Act shall also be debarred under the labor law from bidding on or being awarded similar contracts on public work job sites sponsored by the state or any of its political subdivisions; provides that the contractor may appeal such a determination to the department of labor; provides that whether or not a contractor is debarred under the Davis-Bacon Act will be considered in the selection of a lowest responsible bidder.

view sponsor memo
BILL NUMBER:S2860

TITLE OF BILL: An act to amend the labor law and the general municipal
law, in relation to reciprocity of debarments imposed under the federal
Davis-Bacon Act

PURPOSE: The purpose of the bill is to ensure that those contractors
who are debarred on the federal level under the Davis-Bacon Act for wage
payment violations, are unable to bid on state public work contracts;
this legislation would close a loophole in the existing law. Under the
current law, contractors who have been debarred from federal job sites
are considered on equal footing with law-abiding contractors. This bill
would remedy this gross inequity by granting reciprocity to debarments
imposed by the federal government on contractors who have violated the
Davis-Bacon Act. New York courts have long settled that the right to bid
on a public work contract is not a property right. This privilege to
bid must be subject to certain restrictions, one of which should be the
ability of the bidder to comply with certain prevailing wage provisions.

SUMMARY OF PROVISIONS:

Section 1 of the bill amends § 220-b of the Labor law so that any
contractor who has been debarred from federal job sites for having
disregarded obligations to employees under the Davis-Bacon Act shall
also be debarred under the Labor Law from bidding on or being awarded
similar contracts on public work job sites sponsored by the State or any
of its political subdivisions. The contractor may appeal such determi-
nation to the Department of Labor (DOL).

Section 2 of the bill would add a new subdivision 1-c to section 103 of
the general municipal law so that whether or not a contractor is
debarred under the David-Bacon Act will be considered in the selection
of a lowest responsible bidder. This provision will come into play in
the case where a contractor has appealed to DOL and been removed from
the state debarment list; the entity awarding the contract will still be
able to consider the circumstances of the federal debarment.

Section 3 provides for an immediate effective date and that this shall
just apply prospectively.

EXISTING LAW: As stated above, under the current law, contractors who
have been debarred from federal job sites are considered on equal foot-
ing with law-abiding contractors.

JUSTIFICATION: Under Article 8 of the Labor Law, contractors or subcon-
tractors who engage in a public work project sponsored by the State of
New York or any of its political subdivisions are required to pay their
laborers, workers and material men not less than the prevailing rate of
wage.

Recent studies indicate that fraud in the construction industry in New
York State has reached epidemic proportions. Dishonest contractors, in
an effort to cut corners and save on labor costs, have engaged in a
number of schemes to avoid paying workers the wage to which they are
statutorily entitled. They include the kickback of wages, dual payrolls
and cash-off-the books schemes.

Under the existing law, a contractor may he debarred from participation
in public work projects if the Bureau of Public Works finds that the
contractor has knowingly committed two violations of the prevailing wage
law within a six-year period, or one violation relating to the falsifi-
cation of payroll records or the kickback of wages or supplements.
Debarments are also imposed when a person or corporation, or any officer
or shareholder who owns or controls at least ten percent of the
outstanding stock of such corporation has been convicted of any of an
enumerated list of felonies for conduct relating to obtaining, perform-
ing or attempting to perform a public work contract with the state, any
municipal corporation, public benefit corporation or public body. Its
federal counterpart, the Davis-Bacon Act, imposes a similar penalty on
contractors who are found to have disregarded their obligations to
employees under federal wage-and-hour laws. At the present time, howev-
er, New York Labor Law fails to recognize debarments imposed by the
United States Department of Labor. Working at a public work job site is
a privilege, not a right. New Yorkers are entitled to expect the highest
standard of integrity from contractors who bid on these projects.

Under this legislation, debarments would run while federal debarment is
in effect and would apply prospectively.

LEGISLATIVE HISTORY: 2010 Session - New Bill 2011 Session - S. 5659-B -
referred to Labor Committee 2012 Session -S. 5659-C - advanced to Third
read calendar and recommitted to Rules.

FISCAL IMPLICATIONS: None to State

LOCAL FISCAL IMPLICATIONS: None

EFFECTIVE DATE: Immediately and shall apply prospectively to all public
works contracts.

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

                                  2860

                       2013-2014 Regular Sessions

                            I N  S E N A T E

                            January 24, 2013
                               ___________

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

AN ACT to amend the labor law and the general municipal law, in relation
  to reciprocity of debarments imposed under the federal Davis-Bacon Act

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

  Section  1. Paragraph b of subdivision 3 of section 220-b of the labor
law is amended by adding a new subparagraph 3 to read as follows:
  (3) WHEN ANY PERSON OR ENTITY IS DEBARRED FOR HAVING DISREGARDED OBLI-
GATIONS TO EMPLOYEES UNDER THE DAVIS-BACON ACT  PURSUANT  TO  40  U.S.C.
3144  AND  29  C.F.R.  5.12, SUCH PERSON OR ENTITY, AND ANY FIRM, CORPO-
RATION, PARTNERSHIP OR ASSOCIATION IN WHICH THE PERSON OR ENTITY OWNS OR
CONTROLS AT LEAST TEN PER CENTUM, SHALL BE INELIGIBLE TO SUBMIT A BID ON
OR BE AWARDED ANY PUBLIC WORKS CONTRACT WITH THE  STATE,  ANY  MUNICIPAL
CORPORATION, PUBLIC BENEFIT CORPORATION OR PUBLIC BODY WHILE THE NAME OF
THE  PERSON  OR  ENTITY IS PUBLISHED IN THE LIST OF DEBARRED CONTRACTORS
PURSUANT TO 40 U.S.C. 3144. THE DEPARTMENT WILL  NOTIFY  THE  PERSON  OR
ENTITY  IMMEDIATELY OF SUCH INELIGIBILITY AND SUCH PERSON OR ENTITY MUST
BE AFFORDED THE OPPORTUNITY TO APPEAL TO THE DEPARTMENT.
  S 2. Section 103 of the general municipal law is amended by  adding  a
new subdivision 1-c to read as follows:
  1-C.  IN DETERMINING THE LOWEST RESPONSIBLE BIDDER, THE OFFICER, BOARD
OR AGENCY OF ANY  POLITICAL  SUBDIVISION  OR  OF  ANY  DISTRICT  THEREIN
CHARGED  WITH  AWARDING  OF CONTRACTS, SHALL CONSIDER WHETHER OR NOT THE
BIDDER, OR A PERSON OR ENTITY WITH AN  INTEREST  OF  AT  LEAST  TEN  PER
CENTUM  IN THE BIDDER, IS DEBARRED FOR HAVING DISREGARDED OBLIGATIONS TO
EMPLOYEES UNDER THE DAVIS-BACON ACT PURSUANT TO 40 U.S.C.  3144  AND  29
C.F.R. 5.12, IN MAKING SUCH DETERMINATION OF AWARD.
  S  3.  This act shall take effect immediately and shall apply prospec-
tively to all public  work  bids  and  contracts.  It  shall  not  apply
retroactively  to  previously  issued  or existing public work contracts
with the state, any municipal corporation,  public  benefit  company  or
public body.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD07996-01-3

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