S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   6457
 
                        2017-2018 Regular Sessions
 
                           I N  A S S E M B L Y
 
                               March 7, 2017
                                ___________
 
 Introduced  by  M.  of  A.  TITONE,  GOTTFRIED,  BRONSON,  LAVINE, COOK,
   KAVANAGH, PERRY, WEPRIN, ABINANTI -- Multi-Sponsored by --  M.  of  A.
   AUBRY,  FINCH, GALEF, GLICK, HOOPER, MOYA -- read once and referred to
   the Committee on Governmental Operations
 
 AN ACT to amend the  state  finance  law,  in  relation  to  arbitration
   provisions in state contracts
 
   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. Section 165 of the state finance law is amended by adding a
 new subdivision 9 to read as follows:
   9. ARBITRATION PROVISION.
   A. FOR THE PURPOSES OF THIS SUBDIVISION "ARBITRATION PROVISIONS" SHALL
 MEAN ANY REQUIREMENT THAT AN EMPLOYEE OR INDEPENDENT CONTRACTOR PERFORM-
 ING WORK UNDER SUCH VENDOR'S CONTRACT OR SUBCONTRACT  TO  SUBMIT  CLAIMS
 ARISING  UNDER  TITLE  VII  OF  THE  CIVIL RIGHTS ACT OF 1964 OR ARTICLE
 FIFTEEN OF THE EXECUTIVE LAW TO PRIVATE ARBITRATION FOR RESOLUTION; THIS
 SHALL NOT INCLUDE ARBITRATION THAT IS MANDATED BY A COLLECTIVE  BARGAIN-
 ING  AGREEMENT  BETWEEN  SUCH  VENDOR  AND  EMPLOYEE  AND/OR INDEPENDENT
 CONTRACTOR.
   B. (I) WITH RESPECT TO CONTRACTS DESCRIBED IN SUBPARAGRAPHS  (II)  AND
 (III)  OF  THIS  PARAGRAPH,  AND  IN ACCORDANCE WITH SUCH SUBPARAGRAPHS,
 STATE AGENCIES AS DEFINED IN THIS ARTICLE SHALL  NOT  CONTRACT  FOR  THE
 SUPPLY  OF  COMMODITIES, SERVICE OR CONSTRUCTION WITH ANY CONTRACTOR WHO
 DOES NOT AGREE TO STIPULATE  TO  THE  FOLLOWING,  IF  THERE  IS  ANOTHER
 CONTRACTOR   WHO  WILL  CONTRACT  TO  SUPPLY  COMMODITIES,  SERVICES  OR
 CONSTRUCTION OF COMPARABLE QUALITY AT A COMPARABLE PRICE  OR  COST:  THE
 CONTRACTOR  SHALL NOT PLACE ANY ARBITRATION PROVISION UPON THEIR EMPLOY-
 EES THAT WORK ON SUCH CONTRACT.
   (II) IN THE CASE OF CONTRACTS LET BY A COMPETITIVE  PROCESS,  WHENEVER
 THE  RESPONSIVE  AND RESPONSIBLE OFFERER HAVING THE LOWEST PRICE OR BEST
 VALUE OFFER HAS NOT AGREED TO STIPULATE TO THE CONDITIONS SET  FORTH  IN
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD09173-01-7

 A. 6457                             2
 
 THIS  SUBDIVISION AND ANOTHER RESPONSIVE AND RESPONSIBLE OFFERER WHO HAS
 AGREED TO STIPULATE TO SUCH CONDITIONS HAS  SUBMITTED  AN  OFFER  WITHIN
 FIVE  PERCENT  OF THE LOWEST PRICE OR BEST VALUE OFFER FOR A CONTRACT TO
 SUPPLY  COMMODITIES, SERVICES OR CONSTRUCTION OF COMPARABLE QUALITY, THE
 CONTRACTING ENTITY SHALL REFER SUCH OFFERS TO THE COMMISSIONER OF GENER-
 AL SERVICES, WHO MAY DETERMINE, IN ACCORDANCE WITH  APPLICABLE  LAW  AND
 RULES, THAT IT IS IN THE BEST INTEREST OF THE STATE THAT THE CONTRACT BE
 AWARDED TO OTHER THAN THE LOWEST PRICE OR BEST VALUE OFFER.
   (III) IN THE CASE OF CONTRACTS LET BY OTHER THAN A COMPETITIVE PROCESS
 FOR GOODS OR SERVICES INVOLVING AN EXPENDITURE OF AN AMOUNT GREATER THAN
 THE  DISCRETIONARY  BUYING THRESHOLD AS SPECIFIED IN SECTION ONE HUNDRED
 SIXTY-THREE OF THIS ARTICLE, OR FOR  CONSTRUCTION  INVOLVING  AN  AMOUNT
 GREATER  THAN FIFTEEN THOUSAND DOLLARS, THE CONTRACTING ENTITY SHALL NOT
 AWARD TO A PROPOSED CONTRACTOR WHO HAS NOT AGREED TO  STIPULATE  TO  THE
 CONDITIONS  SET  FORTH  IN THIS SUBDIVISION UNLESS THE ENTITY SEEKING TO
 USE THE  COMMODITIES,  SERVICES  OR  CONSTRUCTION  DETERMINES  THAT  THE
 COMMODITIES,  SERVICES  OR  CONSTRUCTION ARE NECESSARY FOR THE ENTITY TO
 PERFORM ITS FUNCTIONS AND THERE IS NO OTHER RESPONSIBLE  CONTRACTOR  WHO
 WILL  SUPPLY COMMODITIES, SERVICES OR CONSTRUCTION OF COMPARABLE QUALITY
 AT A COMPARABLE PRICE. SUCH DETERMINATIONS SHALL BE MADE IN WRITING  AND
 SHALL BE PUBLIC DOCUMENTS.
   C. UPON RECEIVING INFORMATION THAT A CONTRACTOR WHO HAS MADE THE STIP-
 ULATION  REQUIRED  BY  THIS  SUBDIVISION  IS  IN  VIOLATION THEREOF, THE
 CONTRACTING ENTITY SHALL REVIEW SUCH INFORMATION AND OFFER THE  CONTRAC-
 TOR  AN  OPPORTUNITY  TO RESPOND. IF THE CONTRACTING ENTITY FINDS THAT A
 VIOLATION HAS OCCURRED, IT SHALL TAKE SUCH ACTION AS MAY BE  APPROPRIATE
 AND  PROVIDED  FOR  BY LAW, RULE OR CONTRACT, INCLUDING, BUT NOT LIMITED
 TO,  IMPOSING  SANCTIONS,  SEEKING  COMPLIANCE,  RECOVERING  DAMAGES  OR
 DECLARING THE CONTRACTOR IN DEFAULT.
   D.  AS USED IN THIS SUBDIVISION, THE TERM "CONTRACT" SHALL NOT INCLUDE
 CONTRACTS WITH  GOVERNMENTAL  AND  NON-PROFIT  ORGANIZATIONS,  CONTRACTS
 AWARDED  PURSUANT  TO  EMERGENCY  PROCUREMENT  PROCEDURES  OR CONTRACTS,
 RESOLUTIONS, INDENTURES, DECLARATIONS  OF  TRUST  OR  OTHER  INSTRUMENTS
 AUTHORIZING  OR  RELATING TO THE AUTHORIZATION, ISSUANCE, AWARD, SALE OR
 PURCHASE OF BONDS, CERTIFICATES OF INDEBTEDNESS, NOTES OR  OTHER  FISCAL
 OBLIGATIONS,  PROVIDED  THAT  THE  POLICIES OF THIS SUBDIVISION SHALL BE
 CONSIDERED WHEN SELECTING A CONTRACTOR TO  PROVIDE  FINANCIAL  OR  LEGAL
 ADVICE, AND WHEN SELECTING MANAGING UNDERWRITERS IN CONNECTION WITH SUCH
 ACTIVITIES.
   §  2.  This  act  shall take effect immediately and shall apply to all
 contracts signed and executed on or after such effective date.