S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                    348
 
                        2017-2018 Regular Sessions
 
                             I N  S E N A T E
 
                                (PREFILED)
 
                              January 4, 2017
                                ___________
 
 Introduced  by  Sen. PERALTA -- read twice and ordered printed, and when
   printed to be committed to the Committee on Labor
 
 AN ACT to amend the labor law, the  general  municipal  law,  the  state
   finance  law  and the education law, in relation to advertisements for
   bids

   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section  1. Paragraph (c) of subdivision 3 of section 220 of the labor
 law, as separately amended by chapter 678 of the laws of 2007 and  chap-
 ter 7 of the laws of 2008, is amended to read as follows:
   (c)  It  shall  be  the duty of the fiscal officer, as defined in this
 section, to ascertain and determine the schedules of supplements  to  be
 provided  and  wages  to be paid workers, laborers and mechanics on such
 public work, prior to the time of the advertisement for bids,  and  such
 schedules  shall be annexed to and form a part of the specifications for
 the work. Such fiscal officer shall  file  with  the  department  having
 jurisdiction such schedules prior to the time of the commencement of the
 advertisement  for  bids on all public works proposed to be constructed.
 IF THE FISCAL OFFICER CANNOT ASCERTAIN OR DETERMINE  SUCH  SCHEDULES  OR
 WAGES,  OR  DISTINGUISH  BETWEEN  THE CLASSIFICATIONS OF WORKERS ON SUCH
 PUBLIC WORK, IT SHALL BE THE DUTY OF THE FISCAL OFFICER  TO  REJECT  ANY
 CONTRACT ASSOCIATED WITH THE ADVERTISEMENT FOR BIDS. The term "contract"
 as  used in this article also shall include reconstruction and repair of
 any such public work, and any  public  work  performed  under  a  lease,
 permit  or other agreement pursuant to which the department of jurisdic-
 tion grants the responsibility of contracting for such  public  work  to
 any  third  party proposing to perform such work to which the provisions
 of  this  article  would  apply  had  the  department  of   jurisdiction
 contracted  directly  for  its  performance, or where there is no lease,
 permit or other agreement and ownership of a public work is intended  to
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
              

                       [ ] is old law to be omitted.
                                                            LBD00051-01-7

 S. 348                              2
 
 be assumed by such public entity at any time subsequent to completion of
 the public work.
   §  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
 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.
 ALL SUBMITTED BIDS FOR SUCH PUBLIC WORK CONTRACTS SHALL BE FOR A  FIXED-
 DOLLAR  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  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

 S. 348                              3
 
 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.
   §  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.
 ALL SUBMITTED BIDS FOR SUCH PUBLIC WORK CONTRACTS SHALL BE FOR A  FIXED-
 DOLLAR AMOUNT. In determining whether a purchase is an expenditure with-
 in  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.

 S. 348                              4
 
 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
 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.
   § 4. Subdivision 2 of section 103 of the  general  municipal  law,  as
 amended  by  section 1 of chapter 367 of the laws of 2014, is amended to
 read as follows:
   2. Advertisement for bids and offers shall be published in  the  offi-
 cial  newspaper  or  newspapers,  if any, or otherwise in a newspaper or
 newspapers designated for such purpose  and  may  be  published  in  the
 procurement  opportunities  newsletter pursuant to article four-C of the
 economic development law. Such advertisement shall contain  a  statement
 of  the  time  when  and  place where all bids received pursuant to such
 notice will be publicly opened and read and where the  identity  of  all
 offerers  will be publicly disclosed, and the designation of the receiv-
 ing device if the political subdivision or district has  authorized  the
 receipt  of bids and offers in an electronic format.  SUCH ADVERTISEMENT
 SHALL DESCRIBE SPECIFICALLY THE NATURE OF THE WORK, INCLUDING  THE  TYPE
 OF  WORK TO BE PERFORMED, AND ENABLE THE BIDDER TO COMPLY WITH PARAGRAPH
 (C) OF SUBDIVISION THREE OF SECTION TWO HUNDRED TWENTY OF THE LABOR LAW.
 Such board or agency may by resolution designate any officer or employee
 to open the bids and offers at the  time  and  place  specified  in  the
 notice.  Such  designee  shall  make a record of such bids and offers in
 such form and detail as the board or agency shall prescribe and  present
 the same at the next regular or special meeting of such board or agency.
 All  bids  received  shall  be  publicly opened and read at the time and
 place so specified and the identity of all offerers  shall  be  publicly
 disclosed  at  the time and place so specified. At least five days shall
 elapse between the first publication of such advertisement and the  date
 so specified for the opening and reading of bids and offers.
   §  5.  Subdivision  2  of section 103 of the general municipal law, as
 amended by section 2 of chapter 367 of the laws of 2014, is  amended  to
 read as follows:
   2.  Advertisement  for bids and offers shall be published in the offi-
 cial newspaper or newspapers, if any, or otherwise  in  a  newspaper  or
 newspapers  designated  for  such  purpose  and  may be published in the
 procurement opportunities newsletter pursuant to article four-C  of  the
 economic  development  law. Such advertisement shall contain a statement
 of the time when and place where all  bids  received  pursuant  to  such
 notice  will  be  publicly opened and read and where the identity of all
 offerers will be publicly disclosed.  SUCH ADVERTISEMENT SHALL  DESCRIBE

 S. 348                              5
 
 SPECIFICALLY  THE  NATURE  OF THE WORK, INCLUDING THE TYPE OF WORK TO BE
 PERFORMED, AND ENABLE THE BIDDER TO COMPLY WITH PARAGRAPH (C) OF  SUBDI-
 VISION  THREE OF SECTION TWO HUNDRED TWENTY OF THE LABOR LAW. Such board
 or  agency  may  by resolution designate any officer or employee to open
 the bids and offers at the time and place specified in the notice.  Such
 designee  shall  make  a record of such bids and offers in such form and
 detail as the board or agency shall prescribe and present  the  same  at
 the  next  regular  or special meeting of such board or agency. All bids
 received shall be publicly opened and read at  the  time  and  place  so
 specified  and  the identity of all offerers shall be publicly disclosed
 at the time and place so specified. At  least  five  days  shall  elapse
 between  the  first  publication  of  such advertisement and the date so
 specified for the opening and reading of bids and offers.
   § 6. Section 135 of the state finance law, as amended by section 3  of
 part  MM  of  chapter  57  of  the  laws  of 2008, is amended to read as
 follows:
   § 135. Separate specifications for contract work for the state. Except
 as otherwise provided in section two hundred  twenty-two  of  the  labor
 law,  every  officer,  board,  department,  commission  or  commissions,
 charged with the duty of preparing specifications or awarding or  enter-
 ing  into  contracts  for  the  erection,  construction or alteration of
 buildings, for the state, when the entire cost of such work shall exceed
 three million dollars in the counties of the  Bronx,  Kings,  New  York,
 Queens,  and  Richmond; one million five hundred thousand dollars in the
 counties of Nassau, Suffolk and Westchester; and five  hundred  thousand
 dollars in all other counties within the state, must have prepared sepa-
 rate  specifications for each of the following three subdivisions of the
 work to be performed:
   1. Plumbing and gas fitting.
   2. Steam heating, hot water heating, ventilating and air  conditioning
 apparatus.
   3. Electric wiring and standard illuminating fixtures.
   Such  specifications  must be so drawn as to permit separate and inde-
 pendent bidding upon each of the above three subdivisions of work.   All
 contracts hereafter awarded by the state or a department, board, commis-
 sioner  or officer thereof, for the erection, construction or alteration
 of buildings, or any part thereof, shall award the three subdivisions of
 the above specified work separately to responsible and reliable persons,
 firms or corporations engaged in these classes of work. A  contract  for
 one  or  more  buildings  in  any project shall be awarded to the lowest
 responsible bidder for all the buildings included in the specifications.
    ALL  SUCH  SPECIFICATIONS  ISSUED  PURSUANT  TO  THIS  ARTICLE  SHALL
 DESCRIBE SPECIFICALLY THE NATURE OF THE WORK, INCLUDING THE TYPE OF WORK
 TO  BE  PERFORMED, AND ENABLE THE BIDDER TO COMPLY WITH PARAGRAPH (C) OF
 SUBDIVISION THREE OF SECTION TWO HUNDRED TWENTY OF THE LABOR  LAW.  EACH
 BIDDER FOR ANY PROJECT UNDER THIS ARTICLE SHALL SUBMIT BIDS FOR A FIXED-
 DOLLAR AMOUNT.
   Each  bidder on a public work contract, where the preparation of sepa-
 rate specifications is not required, shall submit with its bid  a  sepa-
 rate  sealed list that names each subcontractor that the bidder will use
 to perform work on the contract, and the agreed-upon amount to  be  paid
 to each, for: (a) plumbing and gas fitting, (b) steam heating, hot water
 heating,  ventilating  and  air  conditioning apparatus and (c) electric
 wiring  and  standard  illuminating  fixtures.  After  the  low  bid  is
 announced, the sealed list of subcontractors submitted with such low bid
 shall be opened and the names of such subcontractors shall be announced,

 S. 348                              6
 
 and  thereafter  any change of subcontractor or agreed-upon amount to be
 paid to each shall require the approval of  the  public  owner,  upon  a
 showing  presented  to  the public owner of legitimate construction need
 for  such  change,  which shall be open to public inspection. Legitimate
 construction need shall include, but not be  limited  to,  a  change  in
 project  specifications,  a  change  in  construction  material costs, a
 change to subcontractor status as determined pursuant to  paragraph  (e)
 of  subdivision  two of section two hundred twenty-two of the labor law,
 or the subcontractor has become otherwise unwilling, unable or  unavail-
 able  to  perform  the  subcontract.  The sealed lists of subcontractors
 submitted by all other bidders shall be returned to them unopened  after
 the contract award.
   Nothing  in this section shall be construed to prevent the authorities
 in charge of any state building, from performing any  such  branches  of
 work  by  or  through  their regular employees, or in the case of public
 institutions, by the inmates thereof.
   § 7. Paragraphs a and d of subdivision 6  of  section  2590-p  of  the
 education law, paragraph a as amended by chapter 285 of the laws of 2014
 and  paragraph  d  as  amended  by  chapter  91 of the laws of 2002, are
 amended to read as follows:
   a. For each project included  in  an  approved  five-year  educational
 facilities  capital  plan, the chancellor shall develop a detailed scope
 of the project, which shall include the following: (i) the purposes  and
 public  to be served, (ii) the programs to be conducted in the facility,
 (iii) the gross amounts of space and bulk for any building or structure,
 (iv) identification of the intent to use architectural,  engineering  or
 other  consultant  services  and  estimated  fees  for  such  consultant
 services, (v) the schedule of design and construction,  (vi)  the  total
 estimated  project costs, including costs for site acquisition, prepara-
 tion and tenant relocation, design, construction  and  equipment,  (vii)
 maximum  estimated  expenditures  for  the  project for each fiscal year
 until its completion, (viii) costs associated with maintenance and oper-
 ation of the physical plant, (ix) how the data provided by the office of
 city planning, the department of buildings, the  department  of  housing
 preservation  and  development  and  the department of health and mental
 hygiene pursuant to subdivisions thirteen-a, thirteen-b, thirteen-c, and
 thirteen-d of section  seventeen  hundred  twenty-eight  of  the  public
 authorities law is factored and accounted for, and (x) such other infor-
 mation as the chancellor shall specify. In the event, a project consists
 of  a program element without identification of the particular education
 facility at which such project is to be performed, the detailed scope of
 the project shall specify the nature of the work to be performed, appli-
 cable price and quality standards, a list of the  schools  eligible  for
 such  work,  annual performance targets and the total estimated costs of
 such project during each fiscal year  until  its  completion.  ALL  SUCH
 ESTIMATED COSTS AND PRICES SHALL BE FOR A FIXED-DOLLAR AMOUNT.
   d.  For  projects  to  be  funded pursuant to subdivision four of this
 section, the chancellor shall transmit the detailed scope of  each  such
 project  to  the  director  of  management  and  budget  of the city for
 approval.
   (i) Except as provided in paragraph b of this subdivision, no expenses
 shall be incurred by the city  board  or  the  authority  for  any  such
 project  prior  to  approval  of the detailed scope of any such project.
 SUCH DETAILED SCOPE OF  THE  PROJECT  SHALL  DESCRIBE  SPECIFICALLY  THE
 NATURE OF THE WORK, INCLUDING THE TYPE OF WORK TO BE PERFORMED.

 S. 348                              7
 
   (ii)  No  detailed scope of project shall be approved unless the total
 estimated costs of such project, together with the  aggregate  estimated
 costs  of  all  projects for which a detailed scope has theretofore been
 approved, are within city capital budget appropriations available there-
 for. A detailed scope of project that is not disapproved by the director
 of  management  and budget within thirty days of its submission shall be
 deemed approved. To the extent the director disapproves all or part of a
 scope, he or she shall set forth in writing the reasons therefor.
   (iii) Upon approval of the detailed scope of project,  the  chancellor
 shall  refer  such  project  to  the  New  York city school construction
 authority for implementation in accordance with an agreement between the
 authority and the city board and shall  transmit  the  approved  project
 scope  to  the  comptroller, whereupon the total estimated costs of such
 project as set forth in such approved project scope shall  be  available
 for  expenditure.  ALL  SUCH ESTIMATED COSTS SHALL BE FOR A FIXED-DOLLAR
 AMOUNT.
   (iv) Approval of the  director  of  management  and  budget  shall  be
 required  for  any  material  change  in  the approved detailed scope of
 project or for any increase in the total cost of such project in  excess
 of  any reserve provided in the approved detailed scope of project. Such
 approval shall be given or deemed given in the manner provided herein.
   (v) The provisions of this paragraph  shall  not  apply  to  emergency
 projects  undertaken  pursuant to paragraph h of subdivision two of this
 section, the estimated costs of which, together with the costs of  other
 projects  undertaken  pursuant  to said paragraph h, does not exceed the
 amount set forth in the educational facilities capital plan  for  activ-
 ities pursuant to paragraph h of subdivision two of this section.
   §  8.  This  act shall take effect on the ninetieth day after it shall
 have become a law, provided however, 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 subdi-
 vision pursuant to subdivision (a) of 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, provided further, that the
 amendments to subdivision 2 of section 103 of the general municipal  law
 made  by section four of this act shall be subject to the expiration and
 reversion of such subdivision pursuant to subdivision (a) of section  41
 of  part X of chapter 62 of the laws of 2003, as amended, when upon such
 date the provisions of section five  of  this  act  shall  take  effect;
 provided,  further,  that the amendments to paragraph d of subdivision 6
 of section 2590-p of the education law made by section seven of this act
 shall not affect the repeal  of  such  paragraph  and  shall  be  deemed
 repealed therewith.