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This entry was published on 2014-09-22
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SECTION 30
Contracts for improvement, maintenance or repair of the canal system
Canal (CAL) CHAPTER 5, ARTICLE 4
§ 30. Contracts for improvement, maintenance or repair of the canal
system. Upon the completion and final approval of the plans and
specifications for the improvement, maintenance or repair to the canal
system, contracts therefor shall be executed as provided herein.

1. Advertising for proposals. The corporation shall advertise for
proposals in accordance with plans and specifications prepared by it for
such improvement, maintenance or repair of the canal system as the
corporation deems it expedient to have performed by contract. The
advertisement shall be limited to a brief description of the work
proposed to be done, with an announcement stating where the maps, plans
and specifications may be seen, the terms and conditions under which the
proposals will be received, the time and place where the same will be
opened, the amount of the draft or certified check to accompany the
proposal, and such other matters as the corporation may deem advisable
to include therein. Such advertisement shall be published at least once
in each week for two successive weeks in a newspaper published at the
county seat of the county in which such canal work is to be performed
and in such other newspapers as the corporation may designate. If no
newspaper is published at such county seat, then the publication of the
advertisement shall be in such newspaper or newspapers within the county
as the corporation may select. If no newspaper is published in the
county, the publication of the advertisement shall be in such newspaper
or newspapers in an adjoining county as may be selected by the
corporation. Failure of such newspaper, published in such county or
adjoining county, to publish such advertisement as provided in this
subdivision or as directed by the corporation shall not invalidate the
publication of advertisement for proposals provided such advertisement
is published in another newspaper or trade publication, which will be
most likely to give adequate notice to contractors of the work
contemplated and of the invitation to submit proposals therefor, at
least once in each week for any two successive weeks preceding the date
on which proposals described in such advertisement are to be received
and opened.

2. Proposals. Each proposal shall specify the correct gross sum for
which the work will be performed and shall also include the amount to be
charged for each item specified on the proposal estimate sheet. The
corporation may prescribe and furnish forms for the submission of such
proposals and may prescribe the manner of submitting the same which
shall not be inconsistent herewith. Accompanying each proposal there
shall be a certified check or bank cashier's check for the amount of the
bid deposit, to be fixed by the corporation and specified in the
advertisement for proposals. The checks of the two low bidders shall be
deposited by the corporation in a special account. Provided, however,
that if prior to or upon receipt of said checks by the corporation a
bidder who is one of the two low bidders shall have duly filed a bond as
hereinafter provided, the corporation shall forthwith return to said
bidder his aforesaid check without depositing the same. If alternate
proposals are taken, the checks of the two low bidders of all alternate
proposals shall be deposited. All checks other than those of the two low
bidders shall be returned promptly by the corporation. Notwithstanding
the provisions of any general or special law, the money represented by
the checks of the two low bidders shall be paid from the special account
when the contractor has duly executed and delivered to the corporation
the contract and the bond or bonds required by law for the performance
of the work of a public improvement for the state of New York, or upon
the rejection of all bids. The low bidder, in the discretion of the
corporation, and the second low bidder, as a matter of right, may at any
time after the opening of the respective proposals, file with the
corporation a bond, the principal amount of which shall at least equal
the amount of the respective bidder's check, theretofore deposited with
his proposal, in the form prescribed by the corporation, with sufficient
sureties, to be approved by the corporation, conditioned that the said
bidder will execute a contract and furnish such performance or other
bonds as may be required by law in accordance with the terms of the
bidder's said proposal. If a bidder complies with the aforesaid
provisions, the corporation shall forthwith return the money represented
by the check of such bidder.

In case the bidder to whom the contract shall be awarded shall fail to
execute such contract and bond, the moneys represented by such check
shall be regarded as liquidated damages and shall be forfeited to the
state and shall be deposited by the corporation with the commissioner of
taxation and finance to the credit of the general fund. The gross sums
indicated on the proposals when opened shall be publicly read. The
corporation shall keep the bids for the several items of the proposals
confidential until an award of the contract is made, after which the
proposals shall be subject at all reasonable times to public inspection.

3. Award of contract. The contract for the improvement, maintenance or
repair of any part of the canal system shall be awarded to the lowest
responsible bidder, as will best promote the public interest. No
contract shall be awarded to a bidder other than the lowest responsible
bidder without the written approval of the comptroller. The lowest bid
shall be deemed to be that which specifically states the lowest gross
sum for which the entire work will be performed, including all the items
specified in the estimate therefor. The lowest bid shall be determined
by the corporation on the basis of the gross sum for which the entire
work will be performed, arrived at by a correct computation of all the
items specified in the estimate therefor at the unit prices contained in
the bid.

4. Rejection of proposals. The corporation may reject any or all
proposals and may advertise for new proposals as provided in this
section, if, in its opinion, the best interest of the state and the
corporation will thereby be promoted.

5. Form of contract. The corporation shall prescribe the form of
contract and may include therein such matters the corporation may deem
advantageous to the state and the corporation.

6. Bond of contractor. Each contractor before entering into a contract
for such improvement, maintenance or repair of the canal system shall
execute a bond in the form prescribed by the corporation, with
sufficient sureties, to be approved by the corporation, on condition
that it will perform the work in accordance with the terms of the
contract and the plans and specifications, and that it will commence and
complete the work within the time prescribed in the contract. The bond
shall also provide against any direct or indirect damages that shall be
suffered or claimed on account of such construction or improvement
during the time thereof, and until the work is finally accepted.

7. Payments on contracts, state taxes. The contract shall provide for
partial payments as the work progresses as hereinafter provided:

(a) Ten per centum shall be retained from each progress payment or
estimate until the contract work is fifty per centum completed, after
which no further moneys shall be retained from any progress payments or
estimates paid thereafter, and when the entire contract work has been
completed and accepted, the corporation shall, pending the payment of
the final estimate, pay not to exceed fifty per centum of the amount of
the retained percentage.

(b) Whenever in the judgment of the corporation the withholding of the
retained percentage on account of the closing of the working season
would be an injustice to the contractor, the corporation may, provided
the district engineer certifies that the essential items in the contract
have been completed in accordance with the terms of the contract and the
provisions of this chapter, direct the district engineer to include in
the final account such uncompleted items and pay therefor at the item
prices in the contract upon the contractor depositing with the
corporation securities equal to double the value of such uncompleted
work. The deposit may be used by the corporation to complete the
uncompleted portion of the contract and shall be returned to the
contractor if it completes the uncompleted portion within a specified
number of working days after it has been notified to proceed with the
work.

(c) No certificates approving or authorizing a partial or final
payment shall be made by the corporation until it is satisfied that all
laborers employed on the work have been paid for their services for the
last payroll period preceding the said partial or final payment. The
corporation may, if it deems necessary, require an affidavit to such
effect from the contractor or it may depend on any other source which it
deems proper for such information.

(d) Contracts in force at the date of the enactment of this
subdivision may, in the discretion of the corporation, be amended to
provide for the withholding and the payments contemplated by the
provisions of paragraph (a) of this subdivision, if the surety or
sureties upon the performance and labor and material bonds given by a
contractor upon any such contract shall consent in writing thereto.

(e) No such certificate authorizing or approving the first partial
payment or any final payment to a foreign contractor shall be made
unless such contractor shall furnish satisfactory proof that all taxes
due the commissioner of taxation and finance by such contractor under
the provisions of or pursuant to a law enacted pursuant to the authority
of article nine, nine-A, twelve-A, twenty-one, twenty-two, twenty-eight,
twenty-nine or thirty of the tax law have been paid. The certificate of
the commissioner of taxation and finance to the effect that all such
taxes have been paid shall be, for purpose of this paragraph, conclusive
proof of the payment of such taxes. The term "foreign contractor" as
used in this subdivision means, in the case of an individual, a person
who is not a resident of this state, in the case of a partnership, one
having one or more partners not a resident of this state, and in the
case of a corporation, one not organized under the laws of this state.

8. Contingencies and extra work. Whenever the corporation determines
that from any unforeseen cause the terms of any contract should be
altered to provide for contingencies or extra work, it may, if funds are
available for payment of the cost thereof, issue an order on contract
therefor to the contractor, a copy of which shall be filed with the
director of the budget and the state comptroller. The estimated
expenditure pursuant to the order on contract shall not increase the
total amount of the primary contract until the estimated expenditure
shall have been approved by the corporation and a duplicate of such
approval shall have been filed with the comptroller. No such extra work
shall be commenced or undertaken until the corporation has issued an
order on contract as herein provided.

When such order on contract provides for similar items of work or
materials which increase or decrease the itemized quantity provided for
in the primary contract, the price to be paid therefor shall not exceed
the unit bid price in the primary contract for such items. Agreed prices
for new items of work or materials may be incorporated in the order on
contract as the corporation may deem them to be just and fair and
beneficial to the state, including the corporation.

Whenever the corporation also determines that in the cases herein
provided it is impracticable for it to ascertain in advance the just and
fair prices to be paid by the state for new items of work or materials,
the order on contract therefor may provide for performance of the work
and the furnishing of the materials and equipment, in which event the
contractor shall keep and shall make available at all times to the
corporation such accounting records, data and procedure as may be
required by the corporation.