S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   2580
 
                        2017-2018 Regular Sessions
 
                           I N  A S S E M B L Y
 
                             January 20, 2017
                                ___________
 
 Introduced  by  M.  of  A. PERRY -- Multi-Sponsored by -- M. of A. COOK,
   GOTTFRIED, RIVERA -- read once and referred to the Committee on Labor
 
 AN ACT to amend the general business law, in  relation  to  a  right  of
   action for violation of statutes in bids on 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-ggg to read as follows:
   § 399-GGG.  FAIRNESS IN COMPETITIVE BIDDING. 1.  FOR  THE  PURPOSE  OF
 THIS SECTION:
   (A) THE TERM "PERSON" SHALL INCLUDE ANY INDIVIDUAL, FIRM, ASSOCIATION,
 PARTNERSHIP OR CORPORATION.
   (B)  THE TERM "CONSTRUCTION PROJECT" SHALL INCLUDE ANY PROJECT INVOLV-
 ING  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 WHOSE COMPETITIVE BID FOR A CONSTRUCTION PROJECT HAS
 BEEN  REJECTED AND INSTEAD AWARDED TO ANOTHER PERSON MAY BRING AN ACTION
 FOR DAMAGES IN A COURT OF COMPETENT  JURISDICTION  AGAINST  THE  WINNING
 BIDDER  IF THE WINNING BIDDER HAS VIOLATED THE LABOR LAW OR THE WORKERS'
 COMPENSATION LAW BY FAILING TO PAY REQUIRED TAXES  OR  SECURE  INSURANCE
 PURSUANT  TO  SUCH  LAWS  FOR ANY REASON INCLUDING MISCLASSIFYING ONE OR
 MORE OF ITS WORKERS OTHER THAN AN EMPLOYEE IN ITS BID COST.
   (B) THE DETERMINATION WHETHER A WORKER ON A  CONSTRUCTION  PROJECT  IS
 PROPERLY  CLASSIFIED  AS  AN  EMPLOYEE  SHALL BE MADE IN ACCORDANCE WITH
 APPLICABLE STATE LAW.
   3. (A) A PARTY UNSUCCESSFULLY BIDDING ON A CONSTRUCTION  PROJECT  WILL
 BE  DEEMED  TO  HAVE  SUFFERED  AN  INJURY  BY VIRTUE OF NOT HAVING BEEN
 AWARDED THE BID, REGARDLESS OF WHETHER THE WINNING BIDDER REALIZES A NET
 PROFIT ON THE PERFORMANCE OF THE CONTRACT.
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD08110-01-7

 A. 2580                             2
 
   (B) A WINNING BIDDER WHO IS A DEFENDANT IN AN ACTION BROUGHT  PURSUANT
 TO THIS SECTION SHALL NOT BE LIABLE FOR DAMAGES IF HE ESTABLISHES, AS AN
 AFFIRMATIVE  DEFENSE, THAT THE FAILURE TO COMPLY WITH STATE LAWS REQUIR-
 ING EMPLOYERS TO PAY STATE UNEMPLOYMENT  INSURANCE  OR  SECURE  WORKERS'
 COMPENSATION COVERAGE RESULTING FROM THE MISCLASSIFICATION OF AN EMPLOY-
 EE AS OTHER THAN AN EMPLOYEE IF THE BID WAS NOT A KNOWING VIOLATION.
   4.  ANY  PARTY WHO SUCCESSFULLY MAINTAINS AN ACTION UNDER THIS SECTION
 SHALL BE ENTITLED TO DAMAGES FROM THE WINNING BIDDER IN  AN  AMOUNT  NOT
 LESS  THAN  TEN  PERCENT  OF  THE  AMOUNT OF THE SUCCESSFUL BID, OR SUCH
 GREATER AMOUNT AS SHALL BE DETERMINED BY THE COURT, AND IN  ADDITION  TO
 ANY  OTHER  DAMAGES  AWARDED, SHALL BE ENTITLED TO THE PAYMENT OF ALL OF
 ITS COSTS AND REASONABLE ATTORNEYS' FEES IN BRINGING THE ACTION.
   § 2. This act shall take effect immediately.