senate Bill S5575

2013-2014 Legislative Session

Authorizes public work contracts let by a city having a population of 1,000,000 or more to cover work ancilliary to maintain or support private facilities

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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
Jun 20, 2014 committed to rules
Mar 06, 2014 advanced to third reading
Mar 05, 2014 2nd report cal.
Mar 04, 2014 1st report cal.236
Jan 08, 2014 referred to cities
Jun 21, 2013 committed to rules
Jun 04, 2013 advanced to third reading
Jun 03, 2013 2nd report cal.
May 30, 2013 1st report cal.929
May 22, 2013 referred to cities

Votes

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Mar 4, 2014 - Cities committee Vote

S5575
5
0
committee
5
Aye
0
Nay
0
Aye with Reservations
0
Absent
0
Excused
0
Abstained
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Cities Committee Vote: Mar 4, 2014

May 30, 2013 - Cities committee Vote

S5575
6
0
committee
6
Aye
0
Nay
0
Aye with Reservations
0
Absent
0
Excused
0
Abstained
show Cities committee vote details

Cities Committee Vote: May 30, 2013

S5575 - Bill Details

Current Committee:
Law Section:
General Municipal Law
Laws Affected:
Amd ยง103, Gen Muni L

S5575 - Bill Texts

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Authorizes public work contracts let by a city having a population of 1,000,000 or more to cover work ancilliary to maintain or support private facilities adjacent to the right of way affected by work on such projects.

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BILL NUMBER:S5575 REVISED 5/28/13

TITLE OF BILL: An act to amend the general municipal law, in relation
to contracts for public work in a city having a population of one
million or more

SUMMARY OF SPECIFIC PROVISIONS: This bill amends General Municipal
Law to authorize cities with a population of one million or more to
include in a contract for any public work project any work deemed
necessary or desirable to maintain, support, protect or otherwise
accommodate, remove, relocate, alter, replace, reconstruct or improve
energy, telecommunications and other private facilities or structures
not owned by the City which are located within, traversing or adjacent
to the construction area of such project.

The bill deems such work "public work" for the purposes of Section 103
and, thus, permits the City to award a contract to the lowest
responsible bidder for all of the work, including the utility
interference work.

The bill also provides that the costs of such work are not borne by
the municipality.

JUSTIFICATION: Public rights of way generally contain not only
municipally owned utility services like water mains and sewers but
also utility lines for the transmission of energy and
telecommunications These private facilities often must be moved or
protected in order for the municipal work to proceed.

The municipal work can be delayed or stopped if the utility is
required to negotiate the price of protecting or moving the utility
facility with the contractor for the municipal work or locate another
contractor to do the work. Because bringing in a second contractor is
rarely practical, the negotiations often stall when the de facto
monopoly position of the municipal contractor leads to prices that the
utility believes to be far in excess of the value of the work. Delay
of the municipal work adversely affects the public at large as well as
local businesses.

In an effort to reduce the inconvenience resulting from the
construction delays as a result of utility interference work, in 1992
the City of New York began the practice of "joint bidding." This
practice requires bidders to provide, within a single bid, separate
prices for the municipal work and the private utility work, with the
contract awarded to the lowest responsible bidder for the combined
work. The utilities, by separate agreement reimburse the City for the
additional cost of the City's share of the overall low bid if the low
bidder on the municipal work was not the same as the low bidder on the
combined work. Thus, the cost to the City would never be more than the
lowest bid for the municipal work. Taxpayers are able to benefit from
the conveniences of joint bidding at no additional cost.

In 1998, the Court of Appeals determined that private utility
interference work is not "public work" and cannot be included in a
contract for municipal work pursuant to General Municipal Law Section
103 unless specifically authorized by the Legislature. DIAMOND ASPHALT
V.SANDER, 92 NY2d 244 (1998).


Enactment of this legislation will benefit the public in the following
ways: cities with a population of one million or more will be able to
negotiate for the cost of the work with the utilities so that there
will be no negative cost impact to the municipality for jointly
bidding work; to the extent that the cost of the utility interference
work is reasonable, utility customers, including residents and
businesses, will benefit; and the massive inconvenience to the public
and local businesses caused when the streets are to be opened will be
minimized as a result of the shortened duration of construction.

After the September 11, 2001 attack on the World Trade Center,
legislation was enacted to grant such authorization to projects in
Lower Manhattan thereby acknowledging the significant benefits of
joint bidding. This bill would expand the authorization, and benefits,
to projects in all five Boroughs.

PRIOR LEGISLATIVE HISTORY: A.4222 (1999-00) A6123 (2001-02); A6136
(2003-04); A5257 (2005)

FISCAL IMPLICATIONS:

EFFECTIVE DATE: This act shall take effect immediately, provided that
the amendments to subdivision 1 of section 103 of the general
municipal law, made by section one 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 two of this act shall take effect.

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

                                  5575

                       2013-2014 Regular Sessions

                            I N  S E N A T E

                              May 22, 2013
                               ___________

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

AN ACT to amend the general municipal law, in relation to contracts  for
  public work in a city having a population of one million or more

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

  Section 1. 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. (A) Except as otherwise expressly provided by an act of the  legis-
lature  or  by  a  local  law adopted prior to September first, nineteen
hundred fifty-three, all contracts for public work involving an expendi-
ture  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 poli-
tical 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 pursuant 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 poli-
tical 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  cooper-
ative educational services, by rule, regulation or resolution adopted at

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD11232-01-3

S. 5575                             2

a  public meeting. In any case where a responsible bidder's or responsi-
ble 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 poli-
tical  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
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.
  (B) NOTWITHSTANDING ANY PROVISION OF LAW TO THE CONTRARY, A CITY  WITH
A  POPULATION  OF  ONE MILLION OR MORE UNDERTAKING A PUBLIC WORK PROJECT
MAY INCLUDE IN THE CONTRACT FOR SUCH PROJECT ANY WORK  DEEMED  NECESSARY
OR  DESIRABLE  BY  SUCH  CITY  FOR  THE  COMPLETION OF SUCH PROJECT THAT

S. 5575                             3

REQUIRES THE MAINTENANCE, SUPPORT, PROTECTION OR OTHER ACCOMMODATION  OF
ENERGY, TELECOMMUNICATIONS OR OTHER PRIVATE FACILITIES OR STRUCTURES NOT
OWNED  BY  SUCH CITY WHICH ARE LOCATED WITHIN, TRAVERSING OR ADJACENT TO
THE CONSTRUCTION AREA OF SUCH PROJECT, WHETHER ABOVE, BELOW OR AT GROUND
LEVEL,  INCLUDING  THE  REMOVAL,  RELOCATION,  ALTERATION,  REPLACEMENT,
RECONSTRUCTION OR IMPROVEMENT OF SUCH FACILITIES OR STRUCTURES, AND SUCH
WORK SHALL BE DEEMED PUBLIC WORK  FOR  THE  PURPOSES  OF  THIS  SECTION,
PROVIDED,  HOWEVER,  THAT  THE  COSTS OF SUCH WORK, INCLUDING ANY INCRE-
MENTAL OR ADMINISTRATIVE COSTS ATTRIBUTABLE TO SUCH WORK, ARE NOT  BORNE
BY  SUCH  CITY,  EXCEPT  AS  OTHERWISE PROVIDED BY CHAPTER THREE HUNDRED
FIFTY-SEVEN OF THE LAWS OF NINETEEN HUNDRED EIGHTY-EIGHT.
  S 2. 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. (A) Except as otherwise expressly provided by an act of the  legis-
lature  or  by  a  local  law adopted prior to September first, nineteen
hundred fifty-three, all contracts for public work involving an expendi-
ture  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 poli-
tical 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 pursuant 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 poli-
tical 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  cooper-
ative educational services, by rule, regulation or resolution adopted at
a  public  meeting.  In determining whether a purchase is an expenditure
within the discretionary threshold amounts established by this  subdivi-
sion,  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.  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

S. 5575                             4

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.
  (B) NOTWITHSTANDING ANY PROVISION OF LAW TO THE CONTRARY, A CITY  WITH
A  POPULATION  OF  ONE MILLION OR MORE UNDERTAKING A PUBLIC WORK PROJECT
MAY INCLUDE IN THE CONTRACT FOR SUCH PROJECT ANY WORK  DEEMED  NECESSARY
OR  DESIRABLE  BY  SUCH  CITY  FOR  THE  COMPLETION OF SUCH PROJECT THAT
REQUIRES THE MAINTENANCE, SUPPORT, PROTECTION OR OTHER ACCOMMODATION  OF
ENERGY, TELECOMMUNICATIONS OR OTHER PRIVATE FACILITIES OR STRUCTURES NOT
OWNED  BY  SUCH CITY WHICH ARE LOCATED WITHIN, TRAVERSING OR ADJACENT TO
THE CONSTRUCTION AREA OF SUCH PROJECT, WHETHER ABOVE, BELOW OR AT GROUND
LEVEL,  INCLUDING  THE  REMOVAL,  RELOCATION,  ALTERATION,  REPLACEMENT,
RECONSTRUCTION OR IMPROVEMENT OF SUCH FACILITIES OR STRUCTURES, AND SUCH
WORK  SHALL  BE  DEEMED  PUBLIC  WORK  FOR THE PURPOSES OF THIS SECTION,
PROVIDED, HOWEVER, THAT THE COSTS OF SUCH  WORK,  INCLUDING  ANY  INCRE-
MENTAL  OR ADMINISTRATIVE COSTS ATTRIBUTABLE TO SUCH WORK, ARE NOT BORNE
BY SUCH CITY, EXCEPT AS OTHERWISE  PROVIDED  BY  CHAPTER  THREE  HUNDRED
FIFTY-SEVEN OF THE LAWS OF NINETEEN HUNDRED EIGHTY-EIGHT.
  S  3. This act shall take effect immediately, provided that the amend-
ments to subdivision 1 of section 103 of the general municipal law, made
by section one of this act, shall  be  subject  to  the  expiration  and
reversion  of such subdivision pursuant to section 41 of part X of chap-
ter 62 of the laws  of  2003,  as  amended,  when  upon  such  date  the
provisions of section two of this act shall take effect.

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