S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   7985
 
                        2019-2020 Regular Sessions
 
                           I N  A S S E M B L Y
 
                               May 30, 2019
                                ___________
 
 Introduced by M. of A. KIM -- read once and referred to the Committee on
   Governmental Operations
 
 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) "STATE AGENCY" SHALL MEAN ALL ENTITIES AS DEFINED IN  SECTION  ONE
 HUNDRED  SEVENTY-NINE-E  OF  THIS CHAPTER AND SUBDIVISION ONE OF SECTION
 TWO OF THE PUBLIC AUTHORITIES LAW.
   (B) "CONTRACT" SHALL MEAN ANY AGREEMENT AWARDED BY A STATE AGENCY  FOR
 THE DESIGN, CONSTRUCTION, RECONSTRUCTION, DEMOLITION, ALTERATION, REPAIR
 OR IMPROVEMENT OF ANY PUBLIC WORKS PROJECT.
   (C)  "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.
   (D) "CLAIM" SHALL MEAN A REQUEST FOR ADDITIONAL COSTS  ONLY  FROM  THE
 FOLLOWING CAUSES:
   (I)  THE  FAILURE  OF  THE STATE AGENCY TO TAKE REASONABLE MEASURES TO
 COORDINATE AND PROGRESS THE WORK;
   (II) EXTENDED DELAYS ATTRIBUTABLE TO THE STATE AGENCY 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 MULTIPLE ORDERS
 ON  CONTRACT,  WHICH CONSTITUTE A QUALITATIVE CHANGE TO THE PROJECT WORK
 AND WHICH HAVE A VERIFIABLE IMPACT ON PROJECT COSTS; OR
   (III) THE UNAVAILABILITY OF THE SITE FOR SUCH AN  EXTENDED  PERIOD  OF
 TIME  WHICH  SIGNIFICANTLY  AFFECTS  THE  SCHEDULED  COMPLETION  OF  THE
 CONTRACT.
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD11735-02-9

 A. 7985                             2
 
   2. ALL CONTRACTS MADE AND AWARDED SHALL CONTAIN A CLAUSE WHICH  ALLOWS
 A  CONTRACTOR TO MAKE A CLAIM FOR ADDITIONAL COSTS ARISING FROM DELAY IN
 THE PERFORMANCE OF A CONTRACT IF SUCH DELAY IS CAUSED BY A MATERIAL  ACT
 OR OMISSION OF THE STATE AGENCY.
   3.  THE  CONTRACTOR  SHALL PROVIDE A NOTICE OF CLAIM OF AN ANTICIPATED
 CLAIM FOR DELAY TO A STATE AGENCY 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 STATE AGENCY SHALL ACKNOWLEDGE  RECEIPT
 OF  THE  NOTICE,  IN  WRITING,  WITHIN FIVE DAYS. 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, FAILURE TO PROVIDE SUCH  NOTICE  SHALL  BE
 CONSIDERED TO HAVE PREJUDICED THE STATE AGENCY.
   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  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 WRIT-
 TEN 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 STATE AGENCY 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  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
   (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 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 STATE AGENCY'S  LIABIL-
 ITY.
   § 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.