S T A T E O F N E W Y O R K
________________________________________________________________________
7323
I N S E N A T E
January 5, 2018
___________
Introduced by Sen. MURPHY -- read twice and ordered printed, and when
printed to be committed to the Committee on Rules
AN ACT to amend the labor law, in relation to reciprocity of debarments
imposed under the federal Davis-Bacon Act
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Subparagraph 3 of paragraph b of subdivision 3 of section
220-b of the labor law, as added by a chapter of the laws of 2017,
amending the labor law and the general municipal law relating to reci-
procity of debarments imposed under the federal Davis-Bacon Act; and
relating to a work group to study and make recommendations to the legis-
lature regarding the appropriate payment of supplements to construction
workers, as proposed in legislative bills numbers S. 6790 and A. 8514,
is amended to read as follows:
(3)(i) When any contractor [or], subcontractor, OR PERSON is [debarred
for having disregarded obligations to employees under the Davis-Bacon
Act pursuant to 40 U.S.C. 3144 and 29 C.F.R. 5.12,] LISTED BY THE
FEDERAL GOVERNMENT AS EXCLUDED FROM RECEIVING FEDERAL CONTRACTS AND
CERTAIN SUBCONTRACTS, ASSISTANCE OR BENEFITS, PURSUANT TO 48 C.F.R.
SUBPART 9-4, such contractor [or], subcontractor, [and any "substantial-
ly owned-affiliated entity" as defined by paragraph g of subdivision
five of section two hundred twenty of this article,] OR PERSON shall be
ineligible to submit a bid on or be awarded any public [works] WORK
contract with the state, any municipal corporation, public benefit
corporation or public body [while the name of the person or entity is
published in the list of debarred contractors pursuant to 40 U.S.C.
3144. Where a contractor or subcontractor is determined to be ineligible
pursuant to this subparagraph because it is considered a "substantially
owned-affiliated entity," such contractor or subcontractor shall be
provided with written notice from the department within seven days and
shall be afforded the opportunity to appeal the ineligibility determi-
nation to the department within thirty calendar days of the written
notice. In order for a substantially-owned affiliated entity to be
debarred pursuant to this subparagraph, such substantially-owned affil-
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD13260-02-8
S. 7323 2
iated entity must have substantial involvement in the day to day manage-
ment of the contractor or subcontractor] DURING SUCH PERIOD OF EXCLU-
SION, UNLESS THE DEPARTMENT HAVING JURISDICTION DETERMINES, AFTER PUBLIC
NOTICE AND COMMENT, THAT THERE IS A COMPELLING REASON, CONSISTENT WITH
48 C.F.R. § 9.405, TO ALLOW SUCH CONTRACTOR, SUBCONTRACTOR, OR PERSON TO
SUBMIT A BID OR TO BE AWARDED A PARTICULAR PUBLIC WORK CONTRACT. PUBLIC
NOTICE SHALL INCLUDE NOTICE PROVIDED TO THE DEPARTMENT, WHICH SHALL POST
SUCH NOTICE ON ITS WEBSITE.
(ii) WHEN THE FISCAL OFFICER DETERMINES THAT A CONTRACTOR, SUBCONTRAC-
TOR OR PERSON IS A "SUBSTANTIALLY OWNED-AFFILIATED ENTITY," AS DEFINED
BY PARAGRAPH G OF SUBDIVISION FIVE OF SECTION TWO HUNDRED TWENTY OF THIS
ARTICLE, IN RELATION TO A CONTRACTOR, SUBCONTRACTOR, OR PERSON INELIGI-
BLE TO SUBMIT A BID OR BE AWARDED A PUBLIC WORK CONTRACT UNDER CLAUSE
(I) OF THIS SUBPARAGRAPH, SUCH SUBSTANTIALLY OWNED-AFFILIATED ENTITY
SHALL BE INELIGIBLE TO SUBMIT A BID OR BE AWARDED ANY PUBLIC WORK
CONTRACT WITH THE STATE, ANY MUNICIPAL CORPORATION, PUBLIC BENEFIT
CORPORATION FOR THE DURATION OF THE REMAINING PERIOD OF EXCLUSION OF THE
CONTRACTOR, SUBCONTRACTOR, OR PERSON UNDER CLAUSE (I) OF THIS SUBPARA-
GRAPH. IN ORDER FOR A SUBSTANTIALLY OWNED-AFFILIATED ENTITY TO BE
DEBARRED PURSUANT TO THIS CLAUSE, SUCH SUBSTANTIALLY OWNED-AFFILIATED
ENTITY MUST HAVE HAD SUBSTANTIAL INVOLVEMENT IN THE DAY TO DAY MANAGE-
MENT OF THE CONTRACTOR, SUBCONTRACTOR OR PERSON DEBARRED UNDER CLAUSE
(I) OF THIS SUBPARAGRAPH. SUCH SUBSTANTIALLY OWNED-AFFILIATED ENTITY
SHALL BE PROVIDED WITH WRITTEN NOTICE FROM THE FISCAL OFFICER OF THE
PROPOSED DETERMINATION AND SHALL BE AFFORDED AN OPPORTUNITY TO BE HEARD
REGARDING THE INELIGIBLE DETERMINATION BY THE FISCAL OFFICER WITHIN
THIRTY CALENDAR DAYS OF THE WRITTEN NOTICE. IN ADDITION, THE DEPARTMENT
HAVING JURISDICTION MAY DETERMINE, AFTER PUBLIC NOTICE AND COMMENT, THAT
THERE IS A COMPELLING REASON, CONSISTENT WITH 48 C.F.R. § 9.405, TO
ALLOW SUCH SUBSTANTIALLY OWNED-AFFILIATED ENTITY TO SUBMIT A BID OR TO
BE AWARDED A PARTICULAR PUBLIC WORK CONTRACT. PUBLIC NOTICE SHALL
INCLUDE NOTICE PROVIDED TO THE DEPARTMENT, WHICH SHALL POST SUCH NOTICE
ON ITS WEBSITE.
(III) Any [eligibility determination] DETERMINATIONS made pursuant to
this subparagraph shall be subject to review pursuant to article seven-
ty-eight of the civil practice law and rules.
§ 2. This act shall take effect on the same date and in the same
manner as a chapter of the laws of 2017 amending the labor law and the
general municipal law relating to reciprocity of debarments imposed
under the federal Davis-Bacon Act; and relating to a work group to study
and make recommendations to the legislature regarding the appropriate
payment of supplements to construction workers, as proposed in legisla-
tive bills numbers S. 6790 and A. 8514, takes effect.
