senate Bill S3714

2013-2014 Legislative Session

Defines lowest responsible bidder and unfair labor practices for purposes of the prevailing wage law for public works 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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Assembly Actions - Lowercase
Senate Actions - UPPERCASE
Jan 08, 2014 referred to labor
Feb 12, 2013 referred to labor

S3714 - Bill Details

Current Committee:
Law Section:
Labor Law
Laws Affected:
Add §201-g, Lab L; amd §103, Gen Muni L
Versions Introduced in Previous Legislative Sessions:
2011-2012: S2137
2009-2010: S5013

S3714 - Bill Texts

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Defines lowest responsible bidder for purposes of the prevailing wage law to include only those who have not been found guilty of an unfair labor practice within a three year period preceding the award of a public works project in order to disqualify as the lowest responsible bidder on a public works contract those bidders who have violated certain federal or state labor laws; permits challenges to the determination of the lowest possible bidder.

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BILL NUMBER:S3714

TITLE OF BILL: An act to amend the labor law and the general municipal
law, in relation to the definition of lowest responsible bidder and
unfair labor practices for purposes of public works projects

PURPOSE: This would disqualify a bidder from being determined the
lowest responsible bidder on a public work contract where it has
violated certain federal or state labor laws.

SUMMARY OF PROVISIONS:

Section 1 would disqualify a bidder from being awarded a public work
contract as the "lowest possible bidder" where it has been found to have
committed either of the following within the preceding two years: (a) a
violation of the prevailing wage laws under sections 220 and 231 of the
NYS Labor Law, or (b) a violation of the health and safety provisions of
the Federal Occupational and Safety Health Act or of section 27-a of
NYS's labor law. Section 1 would also authorize a person, corporation or
a labor union to challenge the proposed selection of the lowest respon-
sible bidder by filing an application with the public entity awarding
the contract. The commissioner or chief executive officer of the public
entity would have to conduct a hearing and issue a written determination
on the validity of the application. If the proposed bidder is disquali-
fied, the contract would be awarded to the next lowest responsible
bidder. Sections 2 and 3 would amend the general municipal law and the
state finance law respectively to prohibit the public owner from award-
ing a contract to the lowest bidder who has violated any of the laws
specified in section 1.

JUSTIFICATION: In assessing the responsibility of a low bidder on a
public works contract, the state and municipalities have had to rely on
arbitrary definitions of accountability, reliability and good faith.
Often, contracts are awarded to bidders who are lowest responsible in
financial terms yet are negligent in terms of paying wages and providing
for the safety and health of workers. This bill would provide guidance
to municipalities and the state to insure that public funds are awarded
to low bidders who comply with established standards of responsibility.

LEGISLATIVE HISTORY: 2012 - Died in Labor Committee 2011 - Died in
Labor Committee 2010 - Died in Labor Committee in both Houses 2009 -
Died in Labor Committee in both Houses 2008 - Died in Labor Committee;
reported from Assembly Labor; died in Codes 2007 - Died in Labor Commit-
tee in both Houses 2006 - Died in Labor Committee; reported from Assem-
bly Labor, died in Codes 2005 - Died in Labor Committee; reported from
Assembly Labor, died in Codes 2004 - Died in Labor Committee; reported
from Assembly Labor, died in Codes 2003 - Died in Labor Committee;
reported from Assembly Labor, died in Codes 2002 - Died in Labor Commit-
tee; reported from Assembly Labor, died in Codes 2001 - Died in Labor
Committee; reported from Assembly Labor, died in Codes, Ways and Means,

died in Rules 2000 - Died in Labor Committee; reported from Assembly
Labor, died in Codes 1999 - Died in Labor Committee in both Houses

EFFECTIVE DATE: This act shall take effect on the first day of Septem-
ber next succeeding the date on which it shall have become a law, with
provisions.

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

                                  3714

                       2013-2014 Regular Sessions

                            I N  S E N A T E

                            February 12, 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 the definition of lowest responsible bidder and unfair labor  prac-
  tices for purposes of public works projects

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

  Section 1. The labor law is amended by adding a new section  201-g  to
read as follows:
  S  201-G.  DETERMINATION  OF  LOWEST  RESPONSIBLE  BIDDER. 1. WHENEVER
SELECTION OF THE LOWEST RESPONSIBLE BIDDER IS REQUIRED UNDER SECTION ONE
HUNDRED THREE OF THE GENERAL MUNICIPAL LAW, A PERSON, FIRM, CORPORATION,
SUCCESSOR CORPORATION, CONTRACTOR OR SUBCONTRACTOR SHALL NOT QUALIFY  AS
A RESPONSIBLE BIDDER IF IT HAS COMMITTED ANY OF THE FOLLOWING VIOLATIONS
WITHIN A THREE YEAR PERIOD PRECEDING THE AWARD OF THE CONTRACT:
  (A) A VIOLATION OF ANY PROVISION OF ARTICLE EIGHT OF THIS CHAPTER;
  (B)  A  VIOLATION  OF ANY STATE OR FEDERAL LABOR LAW INCLUDING BUT NOT
LIMITED TO OCCUPATIONAL SAFETY AND HEALTH; WAGES; CHILD LABOR;  WORKERS'
COMPENSATION;  UNEMPLOYMENT  COMPENSATION;  ORGANIZATIONAL  RIGHTS;  AND
LABOR STANDARDS;
  (C) A VIOLATION OF ANY STATE OR FEDERAL LAW RELATING TO BID  COLLUSION
OR RESTRAINT OF TRADE;
  (D) A VIOLATION OF ANY STATE OR FEDERAL ENVIRONMENTAL LAW;
  (E)  A CRIMINAL CONVICTION OF ANY STATE OR FEDERAL LAW FOR ANY CONDUCT
RELATING TO BIDDING OR CONSTRUCTION-RELATED WORK BY THE BIDDER;
  (F) AN OUTSTANDING DISQUALIFICATION FROM BIDDING ON  ANY  PUBLIC  WORK
CONTRACT; OR
  (G) A VIOLATION OF ANY STATE OR FEDERAL CIVIL RIGHTS, EMPLOYMENT DISA-
BILITY OR MINORITY PREFERENCE LAW.
  2.  THE PROVISIONS OF SUBDIVISION ONE OF THIS SECTION SHALL NOT DIMIN-
ISH THE DISCRETION OF THE AWARDING AUTHORITY TO DISQUALIFY A  BIDDER  ON

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD08676-01-3

S. 3714                             2

OTHER  GROUNDS WHICH THE AUTHORITY FINDS APPROPRIATE WHICH SHALL INCLUDE
BUT NOT BE LIMITED TO:
  (A)  LACK  OF  SUFFICIENT  EXPERTISE, PRIOR EXPERIENCE WITH COMPARABLE
PROJECTS, OR SUFFICIENT RESOURCES TO PERFORM THE CONTRACT  IN  A  TIMELY
AND COMPETENT MANNER;
  (B)  WHETHER  THE  BIDDER'S EMPLOYEES ARE PROPERLY TRAINED AND WHETHER
THE EQUIPMENT TO BE USED IS SAFE AND IN GOOD OPERATING CONDITION;
  (C) WHETHER THE BIDDER HAS SUBMITTED A BID THAT IS  MATHEMATICALLY  OR
MATERIALLY UNBALANCED;
  (D)  SUBMISSION  OF  A  BID SO MUCH LOWER THAN THE AGENCY'S ENGINEER'S
ESTIMATE THAT IT SEEMS UNLIKELY THAT THE BIDDER WILL BE ABLE TO  PERFORM
THE CONTRACT SATISFACTORILY AT THE PRICE BID; OR
  (E)  PRESENTATION  OF ANY FALSE OR MISLEADING STATEMENTS TO THE AGENCY
AWARDING THE CONTRACT IN CONNECTION WITH THE BID.
  3. NO PERSON ACTING ON BEHALF OF A BIDDER SHALL LOBBY THE CONSTRUCTING
GOVERNMENTAL ENTITY FOR THE PURPOSE OF ASSISTING SUCH BIDDER IN SECURING
A BID. NO BID SHALL INCLUDE ANY COSTS ATTRIBUTABLE TO LOBBYING.
  4. ANY PERSON, FIRM, CORPORATION, SUCCESSOR CORPORATION, LABOR  ORGAN-
IZATION, CONTRACTOR OR SUBCONTRACTOR MAY, WITHIN TEN DAYS AFTER A BID IS
ACCEPTED,  FILE  AN  APPLICATION  TO  CHALLENGE  THE DETERMINATION UNDER
SECTION ONE HUNDRED THREE OF THE GENERAL MUNICIPAL LAW THAT  THE  BIDDER
CHOSEN WAS THE LOWEST RESPONSIBLE BIDDER.  UPON RECEIPT OF SUCH APPLICA-
TION,  THE  COMMISSIONER OR CHIEF EXECUTIVE OFFICER OF THE PUBLIC ENTITY
SHALL CONDUCT A HEARING TO DETERMINE THE VALIDITY  OF  THE  APPLICATION.
NOTICE  SHALL  BE  GIVEN  TO  THE  APPLICANT  AND TO THE PROPOSED LOWEST
RESPONSIBLE BIDDER OF THE DATE, TIME AND PLACE  OF  THE  HEARING.    THE
APPLICANT  AND THE PROPOSED LOWEST RESPONSIBLE BIDDER SHALL BE GIVEN THE
OPPORTUNITY TO PRESENT EVIDENCE  AND  WITNESSES  ON  THEIR  BEHALF.  THE
COMMISSIONER  OR  CHIEF  EXECUTIVE  OFFICER  PRESIDING OVER SUCH HEARING
SHALL ISSUE A  WRITTEN  DECISION  WITH  FINDINGS  OF  FACT  WHETHER  THE
PROPOSED  LOWEST RESPONSIBLE BIDDER IS RESPONSIBLE.  SUCH CONTRACT SHALL
NOT BE AWARDED PRIOR TO SUCH DECISION.   THE  AWARDING  AUTHORITY  SHALL
NOTIFY  ALL  BIDDERS  REGARDING  THE  SELECTION  OF  ITS PROPOSED LOWEST
RESPONSIBLE BIDDER.
  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

S. 3714                             3

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.
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 subdivi-
sion, 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 identi-
cal 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 deter-
mining  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  artificially  divided
for the purpose of satisfying the discretionary buying thresholds estab-
lished  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 labor law)
shall include bids and offers submitted in an electronic format  includ-
ing 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 meth-
od  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  confi-
dentiality  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 specifica-
tions 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.  FOR PURPOSES OF THIS SECTION, THE TERM "LOWEST RESPON-
SIBLE BIDDER" SHALL MEAN ANY PERSON, FIRM, CORPORATION, SUCCESSOR CORPO-

S. 3714                             4

RATION, CONTRACTOR OR SUBCONTRACTOR WHO (I) SUBMITS THE LOWEST BID FOR A
PUBLIC WORK CONTRACT AND (II) IS NOT DISQUALIFIED ON GROUNDS PROVIDED IN
SECTION TWO HUNDRED ONE-G OF THE LABOR LAW.
  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.
In determining whether a purchase is an expenditure within  the  discre-
tionary  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 artificially divided
for the purpose of satisfying the discretionary buying thresholds estab-
lished 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 agency 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.  FOR PURPOSES  OF
THIS  SECTION,  THE  TERM  "LOWEST  RESPONSIBLE  BIDDER"  SHALL MEAN ANY
PERSON, FIRM, CORPORATION, SUCCESSOR CORPORATION, CONTRACTOR OR  SUBCON-
TRACTOR  WHO  (A)  SUBMITS THE LOWEST BID FOR A PUBLIC WORK CONTRACT AND

S. 3714                             5

(B) IS NOT DISQUALIFIED ON GROUNDS PROVIDED IN SECTION TWO HUNDRED ONE-G
OF THE LABOR LAW.
  S  4.  This  act  shall  take  effect  on  the first of September next
succeeding the date on which it shall have become a law;  provided  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 subdivision pursuant to 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.

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