S T A T E O F N E W Y O R K
________________________________________________________________________
2074
2019-2020 Regular Sessions
I N A S S E M B L Y
January 22, 2019
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Introduced by M. of A. KIM, ORTIZ -- read once and referred to the
Committee on Judiciary
AN ACT to amend the state finance law, in relation to damages to
contracts occasioned by delay
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. The state finance law is amended by adding a new section
138-b to read as follows:
§ 138-B. DAMAGES OCCASIONED BY DELAY. 1. FOR PURPOSES OF THIS SECTION
THE FOLLOWING TERMS SHALL HAVE THE FOLLOWING MEANINGS:
(A) "CONTRACT" SHALL MEAN ANY CONTRACT AWARDED BY THE STATE, ANY STATE
AGENCY, DEPARTMENT, BOARD, BUREAU, MUNICIPAL CORPORATION, PUBLIC BENEFIT
CORPORATION, PUBLIC AUTHORITY OR ANY OTHER STATE ENTITY, ANY SCHOOL
DISTRICT OR ANY OTHER SPECIAL DISTRICT, OR ANY INSTRUMENTALITY OF THE
STATE OR A POLITICAL SUBDIVISION OF THE STATE, WHICH ENTERS INTO A
CONTRACT FOR DESIGN, CONSTRUCTION, RECONSTRUCTION, DEMOLITION, ALTER-
ATION, REPAIR OR IMPROVEMENT OF ANY PUBLIC WORKS.
(B) "DELAY" SHALL MEAN ANY DELAY, DISRUPTION, INTERFERENCE, INEFFI-
CIENCIES, IMPEDANCE, HINDRANCE OR ACCELERATION IN THE PERFORMANCE OF THE
CONTRACT WHICH CAUSES DAMAGES TO BE INCURRED BY A CONTRACTOR, SUBCON-
TRACTOR OR MATERIALMAN TO A CONTRACT AND WHICH IS A DIRECT RESULT OF THE
NEGLIGENCE, MALFEASANCE, MISFEASANCE OF THE PERSON OR ENTITY FOR WHOM
THE CONTRACTOR, SUBCONTRACTOR OR MATERIALMAN IS PROVIDING SERVICES AS
PROVIDED FOR IN THE CONTRACT, OR ANY DISRUPTION, INTERFERENCE, INEFFI-
CIENCIES, IMPEDANCE, HINDRANCE OR ACCELERATION CAUSING DAMAGES TO BE
SIMILARLY INCURRED BY SUCH PERSON OR ENTITY.
(C) "CLAIM" SHALL MEAN A REQUEST FOR ADDITIONAL COSTS FROM THE FOLLOW-
ING CAUSES LISTED IN THIS SUBDIVISION ATTRIBUTABLE TO DELAY IN THE
PERFORMANCE OF A CONTRACT, OCCASIONED BY ANY ACT OR OMISSION TO ACT BY
THE PUBLIC ENTITY WITH WHOM A CONTRACTOR, SUBCONTRACTOR OR MATERIALMAN
HAS CONTRACTED WITH, BUT SHALL NOT INCLUDE DELAY FROM ANY OTHER CAUSE,
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD03871-01-9
A. 2074 2
WHICH DELAY SHALL BE COMPENSATED FOR SOLELY BY AN EXTENSION OF TIME TO
COMPLETE THE PERFORMANCE OF THE WORK:
(I) THE FAILURE OF THE PUBLIC ENTITY TO TAKE REASONABLE MEASURES TO
COORDINATE AND PROGRESS THE WORK;
(II) EXTENDED DELAYS ATTRIBUTABLE TO THE PUBLIC ENTITY IN THE REVIEW
OR ISSUANCE OF ORDERS-ON-CONTRACT OR FIELD ORDERS, IN SHOP DRAWING
REVIEWS AND APPROVALS OR AS A RESULT OF THE CUMULATIVE IMPACT OF MULTI-
PLE ORDERS ON CONTRACT, WHICH CONSTITUTE A QUALITATIVE CHANGE TO THE
PROJECT WORK AND WHICH HAVE A VERIFIABLE IMPACT ON PROJECT COSTS;
(III) THE UNAVAILABILITY OF THE SITE FOR SUCH AN EXTENDED PERIOD OF
TIME WHICH SIGNIFICANTLY AFFECTS THE SCHEDULED COMPLETION OF THE
CONTRACT; OR
(IV) THE ISSUANCE OF A STOP WORK ORDER RELATIVE TO A SUBSTANTIAL
PORTION OF WORK FOR A PERIOD EXCEEDING THIRTY DAYS.
2. ALL CONTRACTS MADE AND AWARDED SHALL CONTAIN A CLAUSE WHICH ALLOWS
A CONTRACTOR, SUBCONTRACTOR OR MATERIALMAN TO MAKE A CLAIM FOR ADDI-
TIONAL COSTS ARISING FROM DELAY IF SUCH DELAY IN THE PERFORMANCE OF THE
CONTRACT IS CAUSED BY OR OCCASIONED BY ANY ACT OR OMISSION OF THE ENTITY
WITH WHOM THEY HAVE CONTRACTED IN THE CONTRACT, OR ANY OF SUCH ENTITY'S
REPRESENTATIVES OR AGENTS.
3. THE CONTRACTOR, SUBCONTRACTOR OR MATERIALMAN SHALL PROVIDE A NOTICE
OF CLAIM OF AN ANTICIPATED CLAIM FOR DELAY TO A PUBLIC ENTITY BY
PERSONAL SERVICE OR CERTIFIED MAIL NO MORE THAN FIFTEEN DAYS AFTER SUCH
CONTRACTOR KNEW THE FACTS WHICH FORM THE BASIS OF THE CLAIM. THE PUBLIC
ENTITY SHALL ACKNOWLEDGE RECEIPT OF THE NOTICE, IN WRITING, WITHIN FIVE
DAYS. NO PUBLIC ENTITY SHALL INCUR ANY LIABILITY FOR ANY DAMAGES WHICH
ACCRUE MORE THAN FIFTEEN DAYS PRIOR TO THE DELIVERY OR MAILING OF THE
REQUIRED NOTICE. SUCH NOTICE SHALL AT A MINIMUM PROVIDE A DESCRIPTION OF
ANY OPERATIONS THAT WERE, ARE BEING OR WILL BE DELAYED, AND THE DATE OR
DATES AND REASONS FOR THE DELAY. IN NO CASE SHALL ORAL NOTICE CONSTITUTE
NOTICE PURSUANT TO THIS SECTION OR BE DEEMED TO CONSTITUTE A WAIVER OF
THE WRITTEN NOTICE REQUIREMENT. FOR THE PURPOSES OF THIS SECTION, FAIL-
URE TO PROVIDE SUCH NOTICE SHALL BE CONSIDERED TO HAVE PREJUDICED THE
PUBLIC ENTITY.
4. FAILURE BY A CONTRACTOR TO ADEQUATELY PROGRESS THE COMPLETION OF
WORK SHALL BE CONSIDERED IN DETERMINING THE CAUSES OF DELAY. FOR ANY
CLAIM ASSERTED PURSUANT TO THIS TITLE, THE CONTRACTOR, SUBCONTRACTOR OR
MATERIALMAN SHALL KEEP DETAILED WRITTEN RECORDS OF THE COSTS AND SHALL
MAKE THEM AVAILABLE FOR THE PURPOSES OF AUDIT AND REVIEW. FAILURE TO
PROVIDE THE REQUIRED WRITTEN NOTICE OR TO MAINTAIN AND FURNISH RECORDS
OF THE COSTS OF SUCH CLAIMS SHALL CONSTITUTE A WAIVER OF THE CLAIM.
5. THE FOLLOWING INFORMATION SHALL BE PROVIDED BY THE CONTRACTOR UPON
REQUEST OF A PUBLIC ENTITY IF NOT PREVIOUSLY SUPPLIED:
(A) A DESCRIPTION OF THE OPERATIONS THAT WERE DELAYED, THE REASONS FOR
THE DELAY AND AN EXPLANATION OF HOW THEY WERE DELAYED;
(B) A DETAILED FACTUAL STATEMENT OF THE CLAIM PROVIDING ALL NECESSARY
DATES, LOCATIONS AND ITEMS OF WORK AFFECTED BY THE CLAIM;
(C) THE DATE ON WHICH ACTIONS RESULTING IN THE CLAIM OCCURRED OR
CONDITIONS RESULTING IN THE CLAIM BECAME EVIDENT;
(D) THE NAMES, FUNCTIONS AND ACTIVITIES OF EACH CONTRACTOR, SUBCON-
TRACTOR AND MATERIALMAN INVOLVED IN, OR KNOWLEDGEABLE ABOUT FACTS THAT
GAVE RISE TO SUCH CLAIM;
(E) THE IDENTIFICATION OF ANY PERTINENT DOCUMENTS, AND THE SUBSTANCE
OF ANY MATERIAL ORAL COMMUNICATION RELATING TO SUCH CLAIM;
(F) THE AMOUNT OF ADDITIONAL COMPENSATION SOUGHT; AND
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(G) IF AN EXTENSION OF TIME IS ALSO REQUESTED, THE SPECIFIC NUMBER OF
DAYS FOR WHICH IT IS SOUGHT AND THE BASIS FOR SUCH REQUEST AS DETERMINED
BY AN ANALYSIS OF THE CONSTRUCTION PROGRESS SCHEDULE.
6. WHEN SUBMITTING ANY CLAIM, THE CONTRACTOR, SUBCONTRACTOR OR MATERI-
ALMAN SHALL CERTIFY IN WRITING AND UNDER OATH THAT THE SUPPORTING DATA
IS ACCURATE AND COMPLETE TO HIS OR HER BEST KNOWLEDGE OR BELIEF, AND
THAT ANY AMOUNT DEMANDED REFLECTS, IN GOOD FAITH, WHAT HE OR SHE
BELIEVES TO BE THE PUBLIC ENTITY'S LIABILITY.
§ 2. This act shall take effect on the one hundred eightieth day after
it shall have become a law and shall apply to all contracts entered into
on and after such date.