S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   3427
 
                        2019-2020 Regular Sessions
 
                             I N  S E N A T E
 
                             February 6, 2019
                                ___________
 
 Introduced  by  Sen. SALAZAR -- read twice and ordered printed, and when
   printed to be committed to the Committee on Finance
 
 AN ACT to amend the  state  finance  law,  in  relation  to  arbitration
   provisions in state contracts
 
   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. Section 165 of the state finance law is amended by adding a
 new subdivision 9 to read as follows:
   9. ARBITRATION PROVISION.
   A. FOR THE PURPOSES OF THIS SUBDIVISION "ARBITRATION PROVISIONS" SHALL
 MEAN ANY REQUIREMENT THAT AN EMPLOYEE OR INDEPENDENT CONTRACTOR PERFORM-
 ING WORK UNDER SUCH VENDOR'S CONTRACT OR SUBCONTRACT  TO  SUBMIT  CLAIMS
 ARISING  UNDER  TITLE  VII  OF  THE  CIVIL RIGHTS ACT OF 1964 OR ARTICLE
 FIFTEEN OF THE EXECUTIVE LAW TO PRIVATE ARBITRATION FOR RESOLUTION; THIS
 SHALL NOT INCLUDE ARBITRATION THAT IS MANDATED BY A COLLECTIVE  BARGAIN-
 ING  AGREEMENT  BETWEEN  SUCH  VENDOR  AND  EMPLOYEE  AND/OR INDEPENDENT
 CONTRACTOR.
   B. (I) WITH RESPECT TO CONTRACTS DESCRIBED IN SUBPARAGRAPHS  (II)  AND
 (III)  OF  THIS  PARAGRAPH,  AND  IN ACCORDANCE WITH SUCH SUBPARAGRAPHS,
 STATE AGENCIES AS DEFINED IN THIS ARTICLE SHALL  NOT  CONTRACT  FOR  THE
 SUPPLY  OF  COMMODITIES, SERVICE OR CONSTRUCTION WITH ANY CONTRACTOR WHO
 DOES NOT AGREE TO STIPULATE  TO  THE  FOLLOWING,  IF  THERE  IS  ANOTHER
 CONTRACTOR   WHO  WILL  CONTRACT  TO  SUPPLY  COMMODITIES,  SERVICES  OR
 CONSTRUCTION OF COMPARABLE QUALITY AT A COMPARABLE PRICE  OR  COST:  THE
 CONTRACTOR  SHALL NOT PLACE ANY ARBITRATION PROVISION UPON THEIR EMPLOY-
 EES THAT WORK ON SUCH CONTRACT.
   (II) IN THE CASE OF CONTRACTS LET BY A COMPETITIVE  PROCESS,  WHENEVER
 THE  RESPONSIVE  AND RESPONSIBLE OFFERER HAVING THE LOWEST PRICE OR BEST
 VALUE OFFER HAS NOT AGREED TO STIPULATE TO THE CONDITIONS SET  FORTH  IN
 THIS  SUBDIVISION AND ANOTHER RESPONSIVE AND RESPONSIBLE OFFERER WHO HAS
 AGREED TO STIPULATE TO SUCH CONDITIONS HAS  SUBMITTED  AN  OFFER  WITHIN
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD09726-01-9

 S. 3427                             2
 
 FIVE  PERCENT  OF THE LOWEST PRICE OR BEST VALUE OFFER FOR A CONTRACT TO
 SUPPLY COMMODITIES, SERVICES OR CONSTRUCTION OF COMPARABLE QUALITY,  THE
 CONTRACTING ENTITY SHALL REFER SUCH OFFERS TO THE COMMISSIONER OF GENER-
 AL  SERVICES,  WHO  MAY DETERMINE, IN ACCORDANCE WITH APPLICABLE LAW AND
 RULES, THAT IT IS IN THE BEST INTEREST OF THE STATE THAT THE CONTRACT BE
 AWARDED TO OTHER THAN THE LOWEST PRICE OR BEST VALUE OFFER.
   (III) IN THE CASE OF CONTRACTS LET BY OTHER THAN A COMPETITIVE PROCESS
 FOR GOODS OR SERVICES INVOLVING AN EXPENDITURE OF AN AMOUNT GREATER THAN
 THE DISCRETIONARY BUYING THRESHOLD AS SPECIFIED IN SECTION  ONE  HUNDRED
 SIXTY-THREE  OF  THIS  ARTICLE,  OR FOR CONSTRUCTION INVOLVING AN AMOUNT
 GREATER THAN FIFTEEN THOUSAND DOLLARS, THE CONTRACTING ENTITY SHALL  NOT
 AWARD  TO  A  PROPOSED CONTRACTOR WHO HAS NOT AGREED TO STIPULATE TO THE
 CONDITIONS SET FORTH IN THIS SUBDIVISION UNLESS THE  ENTITY  SEEKING  TO
 USE  THE  COMMODITIES,  SERVICES  OR  CONSTRUCTION  DETERMINES  THAT THE
 COMMODITIES, SERVICES OR CONSTRUCTION ARE NECESSARY FOR  THE  ENTITY  TO
 PERFORM  ITS  FUNCTIONS AND THERE IS NO OTHER RESPONSIBLE CONTRACTOR WHO
 WILL SUPPLY COMMODITIES, SERVICES OR CONSTRUCTION OF COMPARABLE  QUALITY
 AT  A COMPARABLE PRICE. SUCH DETERMINATIONS SHALL BE MADE IN WRITING AND
 SHALL BE PUBLIC DOCUMENTS.
   C. UPON RECEIVING INFORMATION THAT A CONTRACTOR WHO HAS MADE THE STIP-
 ULATION REQUIRED BY  THIS  SUBDIVISION  IS  IN  VIOLATION  THEREOF,  THE
 CONTRACTING  ENTITY SHALL REVIEW SUCH INFORMATION AND OFFER THE CONTRAC-
 TOR AN OPPORTUNITY TO RESPOND. IF THE CONTRACTING ENTITY  FINDS  THAT  A
 VIOLATION  HAS OCCURRED, IT SHALL TAKE SUCH ACTION AS MAY BE APPROPRIATE
 AND PROVIDED FOR BY LAW, RULE OR CONTRACT, INCLUDING,  BUT  NOT  LIMITED
 TO,  IMPOSING  SANCTIONS,  SEEKING  COMPLIANCE,  RECOVERING  DAMAGES  OR
 DECLARING THE CONTRACTOR IN DEFAULT.
   D. AS USED IN THIS SUBDIVISION, THE TERM "CONTRACT" SHALL NOT  INCLUDE
 CONTRACTS  WITH  GOVERNMENTAL  AND  NON-PROFIT  ORGANIZATIONS, CONTRACTS
 AWARDED PURSUANT  TO  EMERGENCY  PROCUREMENT  PROCEDURES  OR  CONTRACTS,
 RESOLUTIONS,  INDENTURES,  DECLARATIONS  OF  TRUST  OR OTHER INSTRUMENTS
 AUTHORIZING OR RELATING TO THE AUTHORIZATION, ISSUANCE, AWARD,  SALE  OR
 PURCHASE  OF  BONDS, CERTIFICATES OF INDEBTEDNESS, NOTES OR OTHER FISCAL
 OBLIGATIONS, PROVIDED THAT THE POLICIES OF  THIS  SUBDIVISION  SHALL  BE
 CONSIDERED  WHEN  SELECTING  A  CONTRACTOR TO PROVIDE FINANCIAL OR LEGAL
 ADVICE, AND WHEN SELECTING MANAGING UNDERWRITERS IN CONNECTION WITH SUCH
 ACTIVITIES.
   § 2. This act shall take effect immediately and  shall  apply  to  all
 contracts signed and executed on or after such effective date.