NY State Senate Bill 2019-S4271

Archive: Last Bill Status - In Senate Committee Corporations, Authorities And Commissions Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jan 08, 2020	referred to corporations, authorities and commissions
Mar 06, 2019	referred to corporations, authorities and commissions

2019-S4271 (ACTIVE) - Details

Current Committee:: Senate Corporations, Authorities And Commissions
Law Section:: Public Authorities Law
Laws Affected:: Add §2882, Pub Auth L; add §109-e, Gen Muni L; add §28, Pub Serv L; add §179-ff, St Fin L

2019-S4271 (ACTIVE) - Summary

Relates to notice provisions in public works contracts.

2019-S4271 (ACTIVE) - Sponsor Memo

                                
 
BILL NUMBER: S4271

SPONSOR: RANZENHOFER
 
TITLE OF BILL:  An act to amend the public authorities law, the gener-
al municipal law, the public service law and the state finance law, in
relation to notice provisions in public works contracts

 
PURPOSE OR GENERAL IDEA OF BILL:

To regulate arbitrary notice provisions.

 
SUMMARY OF SPECIFIC PROVISIONS:

Section 1 - adds a new section 2882 to the Public Authorities Law that:

(1) adds definitions applicable to the section;

(2) provides that notwithstanding anything to the contrary, any contract
made and awarded by a public owner for any public work project shall
contain, or be presumed to contain, a provision or provision equally
favorable that failure to give any notice required to be given by such

contract within the time prescribed therein shall not invalidate any
claim made by the contractor or other claimant, unless the failure to
provide timely notice has materially prejudiced the public owner; a (3)
provides clarification regarding material prejudice.

Section 2 - adds a new section 109-c to the General Municipal Law that:

(1) adds definitions applicable to the section;

(2) provides that notwithstanding anything to the contrary, any contract
made and awarded by a public owner for any public work project shall
contain, or be presumed to contain, a provision or provision equally
favorable that failure to give any notice required to be given by such
contract within the time prescribed therein shall not invalidate any
claim made by the contractor or other claimant, unless the failure to
provide timely notice has materially prejudiced the public owner; (3)
provides clarification regarding material prejudice.

Section 3 - adds a new section 28 to the Public Service Law that:

(1)adds definitions applicable to the section;

(2) provides that notwithstanding anything to the contrary, any contract
made and awarded by a public owner for any public work project shall
contain, or be presumed to contain, a provision or provision equally
favorable that failure to give any notice required to be given by such
contract within the time prescribed therein shall not invalidate any
claim made by the contractor or other claimant, unless the failure to
provide timely notice has materially prejudiced the public owner; (3)
provides clarification regarding material prejudice.

Section 4 - adds a new section 179-ff to the State Finance Law that:

(1) adds definitions applicable to the section;

(2) provides that notwithstanding anything to the contrary, any contract
made and awarded by a public owner for any public work project shall
contain, or be presumed to contain, a provision or provision equally
favorable that failure to give any notice required to be given by such
contract within the time prescribed therein shall not invalidate any
claim made by the contractor or other claimant, unless the failure to
provide timely notice has materially prejudiced the public owner;(3)
provides clarification regarding material prejudice.

Section 5 - provides that the act shall take effect one hundred eighty
days after it shall have become law.

 
JUSTIFICATION:

Some public works contracts across the state have begun to contain
provisions that if any notice is not given within a specific time, which
can be as little as five days, or notice is not reserved on a regular
basis, such as each month thereafter, the contractor or claimant is
totally stopped from claiming, and being paid for, any work related to
the notice. While failure to receive timely notice can materially preju-
dice a public owner in some cases, it is more often the case that the
owner, its employees and agents were well aware of the issue, and even
when they were not aware, a delay in receiving technical notice does not
harm them in any way. These clauses are simply being used by some public
owners to receive free work, especially on change orders that prove to
be expensive to complete.  This bill simply gives contractors their
"day" in court or arbitration to prove their claims, and allows the
public owner to defend against unjust claims or to claim material preju-
dice when appropriate.

 
PRIOR LEGISLATIVE HISTORY:

2016 - S6906/A.10136 - P.S.-VETOED/P.A.-Vetoed

 
FISCAL IMPLICATIONS:  None

 
EFFECTIVE DATE:
This act shall take effect on the one hundred eightieth day after it
shall have become law, and shall apply to all contracts entered into on
and after such date.

2019-S4271 (ACTIVE) - Bill Text download pdf

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   4271
 
                        2019-2020 Regular Sessions
 
                             I N  S E N A T E
 
                               March 6, 2019
                                ___________
 
 Introduced  by  Sen.  RANZENHOFER -- read twice and ordered printed, and
   when printed to be committed to the Committee on Corporations, Author-
   ities and Commissions
 
 AN ACT to amend the public authorities law, the general  municipal  law,
   the  public  service  law  and  the  state finance law, in relation to
   notice provisions in public works contracts
 
   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section  1.    The  public  authorities law is amended by adding a new
 section 2882 to read as follows:
   § 2882. NOTICE PROVISIONS IN PUBLIC WORKS CONTRACTS. 1.  FOR  PURPOSES
 OF THIS SECTION, THE FOLLOWING TERMS SHALL HAVE THE FOLLOWING MEANINGS:
   (A) "PUBLIC OWNER" SHALL MEAN ANY STATE OR LOCAL AUTHORITY, AS DEFINED
 BY SECTION TWO OF THIS CHAPTER.
   (B)  "CONTRACT"  SHALL  MEAN ANY CONTRACT MADE AND AWARDED BY A PUBLIC
 OWNER FOR CONSTRUCTION, RECONSTRUCTION, DEMOLITION,  ALTERATION,  REPAIR
 OR MAINTENANCE OF ANY PUBLIC WORK PROJECT.
   (C)  "CONTRACTOR"  SHALL  MEAN  ANY  PERSON, FIRM, PARTNERSHIP, CORPO-
 RATION, ASSOCIATION, COMPANY, SUB-CONTRACTOR, MATERIALMAN SECURED  BY  A
 CONTRACTOR  OR  A SUBCONTRACTOR, OR OTHER ENTITY OR COMBINATION THEREOF,
 WHICH ENTERS INTO A CONTRACT TO PROVIDE SERVICES TO A PUBLIC OWNER.
   (D) "MATERIALLY PREJUDICE" SHALL  MEAN  TO  SUBSTANTIALLY  IMPAIR  THE
 ABILITY OF THE PUBLIC OWNER TO INVESTIGATE OR DEFEND THE CLAIM, PROVIDED
 THAT THE PUBLIC OWNER'S ACTUAL KNOWLEDGE OF THE EVENTS IN QUESTION SHALL
 PRECLUDE  A  CLAIM  OF  MATERIAL  PREJUDICE  DUE TO LACK OF ANY REQUIRED
 NOTICE.
   2. NOTWITHSTANDING ANY OTHER LAW TO THE CONTRARY,  ANY  CONTRACT  MADE
 AND AWARDED BY A PUBLIC OWNER FOR ANY PUBLIC WORK PROJECT SHALL CONTAIN,
 OR  BE  PRESUMED TO CONTAIN, THE FOLLOWING PROVISION OR A PROVISION THAT
 IS EQUALLY FAVORABLE TO THE CONTRACTOR:
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD10310-01-9

 S. 4271                             2
 
   THE FAILURE TO GIVE ANY NOTICE REQUIRED TO BE GIVEN BY  SUCH  CONTRACT
 WITHIN  THE  TIME PRESCRIBED THEREIN SHALL NOT INVALIDATE ANY CLAIM MADE
 BY THE CONTRACTOR OR ANY OTHER CLAIMANT, UNLESS THE FAILURE  TO  PROVIDE
 TIMELY NOTICE HAS MATERIALLY PREJUDICED THE PUBLIC OWNER.
   3.  IN  ANY  ACTION  IN WHICH A PUBLIC OWNER ALLEGES THAT IT WAS MATE-
 RIALLY PREJUDICED AS A RESULT OF A FAILURE TO PROVIDE TIMELY NOTICE, THE
 BURDEN OF PROOF SHALL BE ON:
   (A) THE PUBLIC OWNER TO PROVE THAT IT  HAS  BEEN  PREJUDICED,  IF  THE
 NOTICE  WAS PROVIDED WITHIN ONE HUNDRED EIGHTY DAYS OF THE TIME REQUIRED
 UNDER THE CONTRACT; OR
   (B) THE CONTRACTOR OR ANY OTHER CLAIMANT, TO  PROVE  THAT  THE  PUBLIC
 OWNER  HAS NOT BEEN PREJUDICED, IF THE NOTICE WAS PROVIDED MORE THAN ONE
 HUNDRED EIGHTY DAYS AFTER THE TIME REQUIRED UNDER THE CONTRACT.
   § 2. The general municipal law is amended  by  adding  a  new  section
 109-e to read as follows:
   §  109-E. NOTICE PROVISIONS IN PUBLIC WORKS CONTRACTS. 1. FOR PURPOSES
 OF THIS SECTION, THE FOLLOWING TERMS SHALL HAVE THE FOLLOWING MEANINGS:
   (A) "PUBLIC OWNER" SHALL MEAN  ANY  POLITICAL  SUBDIVISION,  MUNICIPAL
 CORPORATION,  SCHOOL  DISTRICT, DISTRICT CORPORATION OR BOARD OF COOPER-
 ATIVE EDUCATIONAL SERVICES.
   (B) "CONTRACT" SHALL MEAN ANY CONTRACT MADE AND AWARDED  BY  A  PUBLIC
 OWNER  FOR  CONSTRUCTION, RECONSTRUCTION, DEMOLITION, ALTERATION, REPAIR
 OR MAINTENANCE OF ANY PUBLIC WORK PROJECT.
   (C) "CONTRACTOR" SHALL MEAN  ANY  PERSON,  FIRM,  PARTNERSHIP,  CORPO-
 RATION,  ASSOCIATION,  COMPANY, SUB-CONTRACTOR, MATERIALMAN SECURED BY A
 CONTRACTOR OR A SUBCONTRACTOR, OR OTHER ENTITY OR  COMBINATION  THEREOF,
 WHICH ENTERS INTO A CONTRACT TO PROVIDE SERVICES TO A PUBLIC OWNER.
   (D)  "MATERIALLY  PREJUDICE"  SHALL  MEAN  TO SUBSTANTIALLY IMPAIR THE
 ABILITY OF THE PUBLIC OWNER TO INVESTIGATE OR DEFEND THE CLAIM, PROVIDED
 THAT THE PUBLIC OWNER'S ACTUAL KNOWLEDGE OF THE EVENTS IN QUESTION SHALL
 PRECLUDE A CLAIM OF MATERIAL PREJUDICE  DUE  TO  LACK  OF  ANY  REQUIRED
 NOTICE.
   2.  NOTWITHSTANDING  ANY  OTHER LAW TO THE CONTRARY, ANY CONTRACT MADE
 AND AWARDED BY A PUBLIC OWNER FOR ANY PUBLIC WORK PROJECT SHALL CONTAIN,
 OR BE PRESUMED TO CONTAIN, THE FOLLOWING PROVISION OR A  PROVISION  THAT
 IS EQUALLY FAVORABLE TO THE CONTRACTOR:
   THE  FAILURE  TO GIVE ANY NOTICE REQUIRED TO BE GIVEN BY SUCH CONTRACT
 WITHIN THE TIME PRESCRIBED THEREIN SHALL NOT INVALIDATE ANY  CLAIM  MADE
 BY  THE  CONTRACTOR OR ANY OTHER CLAIMANT, UNLESS THE FAILURE TO PROVIDE
 TIMELY NOTICE HAS MATERIALLY PREJUDICED THE PUBLIC OWNER.
   3. IN ANY ACTION IN WHICH A PUBLIC OWNER ALLEGES  THAT  IT  WAS  MATE-
 RIALLY PREJUDICED AS A RESULT OF A FAILURE TO PROVIDE TIMELY NOTICE, THE
 BURDEN OF PROOF SHALL BE ON:
   (A)  THE  PUBLIC  OWNER  TO  PROVE THAT IT HAS BEEN PREJUDICED, IF THE
 NOTICE WAS PROVIDED WITHIN ONE HUNDRED EIGHTY DAYS OF THE TIME  REQUIRED
 UNDER THE CONTRACT; OR
   (B)  THE  CONTRACTOR  OR  ANY OTHER CLAIMANT, TO PROVE THAT THE PUBLIC
 OWNER HAS NOT BEEN PREJUDICED, IF THE NOTICE WAS PROVIDED MORE THAN  ONE
 HUNDRED EIGHTY DAYS AFTER THE TIME REQUIRED UNDER THE CONTRACT.
   §  3.  The public service law is amended by adding a new section 28 to
 read as follows:
   § 28. NOTICE PROVISIONS IN PUBLIC WORKS CONTRACTS. 1. FOR PURPOSES  OF
 THIS SECTION, THE FOLLOWING TERMS SHALL HAVE THE FOLLOWING MEANINGS:
   (A)  "PUBLIC  OWNER" SHALL MEAN THE STATE, OR ANY STATE AGENCY, PUBLIC
 DEPARTMENT, PUBLIC CORPORATION, BOARD, BUREAU, OR  SUBDIVISION  THEREOF,

 S. 4271                             3
 
 ANY  PUBLIC  BENEFIT  CORPORATION, OR A COMMISSION APPOINTED PURSUANT TO
 LAW.
   (B)  "CONTRACT"  SHALL  MEAN ANY CONTRACT MADE AND AWARDED BY A PUBLIC
 OWNER FOR CONSTRUCTION, RECONSTRUCTION, DEMOLITION,  ALTERATION,  REPAIR
 OR MAINTENANCE OF ANY PUBLIC WORK PROJECT.
   (C)  "CONTRACTOR"  SHALL  MEAN  ANY  PERSON, FIRM, PARTNERSHIP, CORPO-
 RATION, ASSOCIATION, COMPANY, SUB-CONTRACTOR, MATERIALMAN SECURED  BY  A
 CONTRACTOR  OR  A SUBCONTRACTOR, OR OTHER ENTITY OR COMBINATION THEREOF,
 WHICH ENTERS INTO A CONTRACT TO PROVIDE SERVICES TO A PUBLIC OWNER.
   (D) "MATERIALLY PREJUDICE" SHALL  MEAN  TO  SUBSTANTIALLY  IMPAIR  THE
 ABILITY OF THE PUBLIC OWNER TO INVESTIGATE OR DEFEND THE CLAIM, PROVIDED
 THAT THE PUBLIC OWNER'S ACTUAL KNOWLEDGE OF THE EVENTS IN QUESTION SHALL
 PRECLUDE  A  CLAIM  OF  MATERIAL  PREJUDICE  DUE TO LACK OF ANY REQUIRED
 NOTICE.
   2. NOTWITHSTANDING ANY OTHER LAW TO THE CONTRARY,  ANY  CONTRACT  MADE
 AND AWARDED BY A PUBLIC OWNER FOR ANY PUBLIC WORK PROJECT SHALL CONTAIN,
 OR  BE  PRESUMED TO CONTAIN, THE FOLLOWING PROVISION OR A PROVISION THAT
 IS EQUALLY FAVORABLE TO THE CONTRACTOR:
   THE FAILURE TO GIVE ANY NOTICE REQUIRED TO BE GIVEN BY  SUCH  CONTRACT
 WITHIN  THE  TIME PRESCRIBED THEREIN SHALL NOT INVALIDATE ANY CLAIM MADE
 BY THE CONTRACTOR OR ANY OTHER CLAIMANT, UNLESS THE FAILURE  TO  PROVIDE
 TIMELY NOTICE HAS MATERIALLY PREJUDICED THE PUBLIC OWNER.
   3.  IN  ANY  ACTION  IN WHICH A PUBLIC OWNER ALLEGES THAT IT WAS MATE-
 RIALLY PREJUDICED AS A RESULT OF A FAILURE TO PROVIDE TIMELY NOTICE, THE
 BURDEN OF PROOF SHALL BE ON:
   (A) THE PUBLIC OWNER TO PROVE THAT IT  HAS  BEEN  PREJUDICED,  IF  THE
 NOTICE  WAS PROVIDED WITHIN ONE HUNDRED EIGHTY DAYS OF THE TIME REQUIRED
 UNDER THE CONTRACT; OR
   (B) THE CONTRACTOR OR ANY OTHER CLAIMANT, TO  PROVE  THAT  THE  PUBLIC
 OWNER  HAS NOT BEEN PREJUDICED, IF THE NOTICE WAS PROVIDED MORE THAN ONE
 HUNDRED EIGHTY DAYS AFTER THE TIME REQUIRED UNDER THE CONTRACT.
   § 4. The state finance law is amended by adding a new  section  179-ff
 to read as follows:
   § 179-FF. NOTICE PROVISIONS IN PUBLIC WORKS CONTRACTS. 1. FOR PURPOSES
 OF THIS SECTION, THE FOLLOWING TERMS SHALL HAVE THE FOLLOWING MEANINGS:
   (A)  "PUBLIC  OWNER" SHALL MEAN THE STATE, OR ANY STATE AGENCY, PUBLIC
 DEPARTMENT, PUBLIC CORPORATION, BOARD, BUREAU, OR SUBDIVISION THEREOF OR
 ANY POLITICAL SUBDIVISION, MUNICIPAL CORPORATION, PUBLIC BENEFIT  CORPO-
 RATION,  PUBLIC  AUTHORITY,  SCHOOL  DISTRICT  OR A COMMISSION APPOINTED
 PURSUANT TO LAW.
   (B) "CONTRACT" SHALL MEAN ANY CONTRACT MADE AND AWARDED  BY  A  PUBLIC
 OWNER  FOR  CONSTRUCTION, RECONSTRUCTION, DEMOLITION, ALTERATION, REPAIR
 OR MAINTENANCE OF ANY PUBLIC WORK PROJECT.
   (C) "CONTRACTOR" SHALL MEAN  ANY  PERSON,  FIRM,  PARTNERSHIP,  CORPO-
 RATION,  ASSOCIATION,  COMPANY, SUB-CONTRACTOR, MATERIALMAN SECURED BY A
 CONTRACTOR OR A SUBCONTRACTOR, OR OTHER ENTITY OR  COMBINATION  THEREOF,
 WHICH ENTERS INTO A CONTRACT TO PROVIDE SERVICES TO A PUBLIC OWNER.
   (D)  "MATERIALLY  PREJUDICE"  SHALL  MEAN  TO SUBSTANTIALLY IMPAIR THE
 ABILITY OF THE PUBLIC OWNER TO INVESTIGATE OR DEFEND THE CLAIM, PROVIDED
 THAT THE PUBLIC OWNER'S ACTUAL KNOWLEDGE OF THE EVENTS IN QUESTION SHALL
 PRECLUDE A CLAIM OF MATERIAL PREJUDICE  DUE  TO  LACK  OF  ANY  REQUIRED
 NOTICE.
   2.  NOTWITHSTANDING  ANY  OTHER LAW TO THE CONTRARY, ANY CONTRACT MADE
 AND AWARDED BY A PUBLIC OWNER FOR ANY PUBLIC WORK PROJECT SHALL CONTAIN,
 OR BE PRESUMED TO CONTAIN, THE FOLLOWING PROVISION OR A  PROVISION  THAT
 IS EQUALLY FAVORABLE TO THE CONTRACTOR:

 S. 4271                             4
 
   THE  FAILURE  TO GIVE ANY NOTICE REQUIRED TO BE GIVEN BY SUCH CONTRACT
 WITHIN THE TIME PRESCRIBED THEREIN SHALL NOT INVALIDATE ANY  CLAIM  MADE
 BY  THE  CONTRACTOR OR ANY OTHER CLAIMANT, UNLESS THE FAILURE TO PROVIDE
 TIMELY NOTICE HAS MATERIALLY PREJUDICED THE PUBLIC OWNER.
   3.  IN  ANY  ACTION  IN WHICH A PUBLIC OWNER ALLEGES THAT IT WAS MATE-
 RIALLY PREJUDICED AS A RESULT OF A FAILURE TO PROVIDE TIMELY NOTICE, THE
 BURDEN OF PROOF SHALL BE ON:
   (A) THE PUBLIC OWNER TO PROVE THAT IT  HAS  BEEN  PREJUDICED,  IF  THE
 NOTICE  WAS PROVIDED WITHIN ONE HUNDRED EIGHTY DAYS OF THE TIME REQUIRED
 UNDER THE CONTRACT; OR
   (B) THE CONTRACTOR OR ANY OTHER CLAIMANT, TO  PROVE  THAT  THE  PUBLIC
 OWNER  HAS NOT BEEN PREJUDICED, IF THE NOTICE WAS PROVIDED MORE THAN ONE
 HUNDRED EIGHTY DAYS AFTER THE TIME REQUIRED UNDER THE CONTRACT.
   § 5. 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.

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Senate Bill S4271

Sponsored By

Archive: Last Bill Status - In Senate Committee Corporations, Authorities And Commissions Committee

2019-S4271 (ACTIVE) - Details

2019-S4271 (ACTIVE) - Summary

2019-S4271 (ACTIVE) - Sponsor Memo

2019-S4271 (ACTIVE) - Bill Text download pdf

Comments

Senate Bill S4271

Share this bill

Sponsored By

Michael H. Ranzenhofer

Archive: Last Bill Status - In Senate Committee Corporations, Authorities And Commissions Committee

2019-S4271 (ACTIVE) - Details

2019-S4271 (ACTIVE) - Summary

2019-S4271 (ACTIVE) - Sponsor Memo

2019-S4271 (ACTIVE) - Bill Text download pdf

Comments