§ 220-b. Amounts due for wages and supplements may be withheld for
benefit of laborers. 1. In case any interested person shall have
previously filed a protest in writing objecting to the payment to any
contractor or subcontractor to the extent of the amount or amounts due
or to become due to him for daily or weekly wages or supplements for
labor performed on the public improvement for which such contract was
entered into, or if for any other reason it may be deemed advisable, the
comptroller of the state or the financial officer of the municipal
corporation or other officer or person charged with the custody and
disbursement of the state or corporate funds applicable to the contract
for such public improvement may deduct from the whole amount of any
payment on account thereof the sum or sums admitted by any contractor or
subcontractor in such statement or statements so filed to be due and
owing by him on account of labor performed on such public improvement
before making payment of the amount certified for payment in any
estimate or voucher, and may withhold the amount so deducted for the
benefit of the laborers, workmen or mechanics whose wages or supplements
are unpaid or not provided, as the case may be, as shown by the verified
statements filed by any contractor or subcontractor, and may pay
directly to any person the amount or amounts shown to be due to him or
his duly authorized collective bargaining labor organization, as the
case may be, for such wages or supplements by the statements filed as
hereinbefore required, thereby discharging the obligation of the
contractor or subcontractor to the person or his duly authorized
collective bargaining labor organization receiving such payment to the
extent of the amount thereof, or

2. a. (1) When any interested person shall file a written complaint
with the fiscal officer, as herein defined, alleging unpaid wages or
supplements due for labor performed on a public improvement for which a
contract has been entered into, and said labor is alleged to have been
performed within the two-year period immediately preceding the date of
the filing of said complaint, or if, on the fiscal officer's own
initiative, unpaid wages or supplements appear to be due, the fiscal
officer shall immediately so notify the financial officer of the civil
division interested, or, if there are insufficient moneys still due to
the contractor or subcontractor to satisfy said wages and supplements,
including interest and penalty, the financial officer of another civil
division which has entered or subsequently enters into a public
improvement contract with the contractor or subcontractor, who shall
withhold from any payment due or earned the contractor or subcontractor
executing any public improvements, sufficient moneys to satisfy said
wages and supplements, including interest at the rate provided herein,
and any civil penalty that may be assessed as provided herein, pending a
final determination. The financial officer shall immediately confirm in
writing to the fiscal officer the amount of money withheld.

(2) If there are still insufficient moneys due or earned to the
contractor or subcontractor, as a result of work performed, to satisfy
such wages and supplements, including interest and penalties, the
financial officer shall immediately notify the fiscal officer, who may
issue a notice of intent to withhold any of the following:

(i) any substantially-owned affiliated entity or any successor or
subsidiary of the contractor or subcontractor;

(ii) any of the partners, if the contractor or subcontractor is a
partnership, or any of the five largest shareholders of the contractor
or subcontractor, as determined by the fiscal officer; or

(iii) any officer of the contractor or subcontractor who knowingly
participated in the violation of this article.

(3) The notice of intent to withhold shall provide that the fiscal
officer intends to instruct the financial officer, not less than ten
days following service of the notice by mail, to withhold sufficient
moneys to satisfy unpaid wages and supplements, including interest at
the rate provided in this article, and any civil penalty that may be
assessed as provided in this article, from any payment due or earned the
notified party under any public improvement contract pending final
determination. The notice of withholding shall provide that within
thirty days following the date of the notice of withholding the notified
party may contest the withholding on the basis that the notified party
is not a partner or top five shareholder of the subcontractor or
contractor, an officer of the contractor or subcontractor who knowingly
participated in the violation of this article, a substantially-owned
affiliated entity, or successor. If the notified party fails to contest
the notice of withholding, or if the fiscal officer, after reviewing the
information provided by the notified party in such contest, determines
that the notified party is a partner or top five shareholder, any
officer of the contractor or subcontractor who knowingly participated in
the violation of this article, or a substantially-owned affiliated
entity, or successor, the fiscal officer may instruct the financial
officer to withhold sufficient moneys to satisfy said wages and
supplements, including interest at the rate provided in this article,
and any civil penalty that may be assessed as provided in this article
from any payment due the notified party under any public improvement
contract pending the final determination.

(4) The financial officer shall immediately implement the notice of
withholding and confirm in writing to the fiscal officer the amount of
money to be withheld. If the notified party contests the withholding
after a withholding has been effected, and if the fiscal officer
determines, that the notified party is not a partner or top five
shareholder, an officer of the contractor or subcontractor who knowingly
participated in the violation of this article, or a substantially-owned
affiliated entity or successor, the fiscal officer shall immediately
notify the financial officer to release all payments being withheld from
the notified party and the financial officer shall implement the notice.

b. Moneys withheld pursuant to this section shall be held by the
financial officer for the sole and exclusive benefit of the workers
employed on said public improvement and for payment of any civil penalty
that may be assessed as provided herein and shall not be used for any
other purpose except upon court order. Any person, partnership,
association, corporation or governmental body who files a lien or
commences a judicial proceeding with respect to any monies withheld
pursuant to this section shall notify the fiscal officer in writing of
the lien or claim on or before the date of filing of the lien or
commencement of the judicial proceeding. In any proceeding to obtain
moneys withheld pursuant to this section by any person, partnership,
association, corporation or governmental body, the fiscal officer shall
have the right to appear and be heard.

c. The fiscal officer shall cause an investigation to be made to
determine whether any amounts are due to the laborers, workmen or
mechanics, or on their respective behalves, on such public improvement,
for labor performed after the commencement of the three-year period
immediately preceding the filing of the complaint or the commencement of
the investigation on his own initiative, as the case may be, and shall
order a hearing thereon at a time and place to be specified and shall
give notice thereof, together with a copy of such complaint, or a
statement of the facts disclosed upon such investigation, which notice
shall be served personally or by mail on all interested persons,
including the person complained against and upon the financial officer
of the civil division interested; such person complained against shall
have an opportunity to be heard in respect to the matters complained of,
at the time and place specified in such notice, which time shall be not
less than five days from the service of said notice. The fiscal officer
in such an investigation shall be deemed to be acting in a judicial
capacity and shall have the rights to issue subpoenas, administer oaths
and examine witnesses. The enforcement of a subpoena issued under this
section shall be regulated by the civil practice law and rules. Such
investigation and hearing shall be expeditiously conducted, and upon
such hearing and investigation, the fiscal officer shall determine the
issues raised thereon and shall make and file an order in his office
stating such determination and forthwith serve a copy of such order,
either personally or by mail, together with notice of filing, upon the
financial officer of the civil division interested, and the parties to
such proceedings and, if the fiscal officer be the comptroller or other
analogous officer of a city, upon the commissioner. Such order shall
direct payment of wages or supplements found to be due, including
interest at the rate of interest then in effect as prescribed by the
superintendent of financial services pursuant to section fourteen-a of
the banking law per annum from the date of the underpayment to the date
of the payment.

d. In addition to directing payment of wages or supplements including
interest found to be due, the order of the fiscal officer may direct
payment of a further sum as a civil penalty in an amount not exceeding
twenty-five percent of the total amount found to be due. In assessing
the amount of the penalty, due consideration shall be given to the size
of the employer's business, the good faith of the employer, the gravity
of the violation, the history of previous violations of the employer or
any successor or substantially-owned affiliated entity or any of the
partners if the contractor or subcontractor is a partnership or any of
the five largest shareholders of the contractor or subcontractor, as
determined by the fiscal officer, and any officer of the contractor or
subcontractor who knowingly participated in the violation of this
article, and the failure to comply with recordkeeping or other non-wage
requirements. Upon the fiscal officer's determination of the penalty,
where the fiscal officer is the commissioner, the penalty shall be paid
to the commissioner for deposit in the state treasury. Where the fiscal
officer is a city comptroller or other analogous officer, the penalty
shall be paid to said officer for deposit in the city treasury.

e. Upon the entry and service of such order, the financial officer of
the civil division interested shall pay to the claimant, from the moneys
due to the contractor or subcontractor, the amount of the claim as
determined by the fiscal officer and the amount of the civil penalty, if
any, shall be paid as provided herein, provided that no proceeding
pursuant to article seventy-eight of the civil practice law and rules
for review of said order is commenced by any party aggrieved thereby
within thirty days from the date said order was filed in the office of
the fiscal officer. Said proceeding shall be commenced directly in the
appellate division of the supreme court. Where the fiscal officer is the
commissioner, the civil penalty shall be paid to the commissioner for
deposit in the state treasury; where the fiscal officer is a city
comptroller or other analogous officer, the penalty shall be paid to
said officer for deposit in the city treasury. In the event that such a
proceeding for review is instituted, moneys sufficient to satisfy the
claim and civil penalty shall be set aside by the financial officer
interested as provided in paragraph b of this subdivision, subject to
the order of the court.

f. If the financial officer of the civil division interested fails to
pay to the claimant the amount of the claim as determined by the fiscal
officer within ten days after the expiration of the contractor's time to
commence a proceeding for review of the fiscal officer's order or, if
such a proceeding has been commenced, within ten days after entry and
service of a court order confirming the fiscal officer's order, the
civil division interested shall pay to the claimant interest on the
claim at the rate of interest then in effect as prescribed by the
superintendent of financial services pursuant to section fourteen-a of
the banking law from the date the financial officer was required to pay
the claim as provided herein to the date of payment; provided, however,
this paragraph shall not apply if the failure of the financial officer
of the civil division interested to pay the amount of the claim is
pursuant to court order.

g. When a final determination has been made in favor of a complainant
and the contractor or subcontractor found violating this article has
failed to make payment as required by the order of the fiscal officer,
and provided that no relevant proceeding for judicial review shall then
be pending and the time for initiation of such proceeding shall have
expired, the fiscal officer may file a copy of the order of the fiscal
officer containing the amount found to be due with the county clerk of
the county of residence or place of business of any of the following:

(i) any substantially-owned affiliated entity or any successor of the
contractor or subcontractor;

(ii) any of the partners if the contractor or subcontractor is a
partnership or any of the five largest shareholders of the contractor or
subcontractor, as determined by the fiscal officer; or

(iii) any officer of the contractor or subcontractor who knowingly
participated in the violation of this article; provided, however, that
the fiscal officer shall within five days of the filing of the order
provide notice thereof to the partner or top five shareholders or
successor or substantially-owned affiliated entity or other entity
determined to have violated any provision of subdivision five of section
two hundred twenty of this article or this subdivision; the notified
party may contest the filing on the basis that it is not a partner or
top five shareholder, any officer of the contractor or subcontractor who
knowingly participated in the violation of this article, or successor or
substantially-owned affiliated entity. If, after reviewing the
information provided by the notified party in support of such contest,
the fiscal officer determines that the notified party is not subject to
the provision of this paragraph, the fiscal officer shall immediately
withdraw his filing of the order.

The filing of such order shall have the full force and effect of a
judgment duly docketed in the office of such clerk. The order may be
enforced by and in the name of the fiscal officer in the same manner,
and with like effect, as that prescribed by the civil practice law and
rules for the enforcement of a money judgment.

h. When a final determination has been made against a subcontractor in
favor of a complainant and the contractor has made payment to the
complainant of any wages and interest due the complainant and any civil
penalty that has been assessed, and providing that no relevant
proceeding for judicial review shall then be pending and the time for
initiation of such proceeding shall have expired, the contractor may
file a copy of the order of the fiscal officer containing the amount
found to be due with the county clerk of the county of residence or
place of business of the subcontractor. The filing of such order shall
have the full force and effect of a judgment duly docketed in the office
of such clerk. The judgment may be docketed in favor of the contractor
who may proceed as a judgment creditor against the subcontractor for the
recovery of all monies paid by the contractor under such order.

Provided that no proceeding for judicial review shall then be pending
and the time for initiation of such proceeding shall have expired, the
commissioner may file with the county clerk of the county where the
employer resides or has a place of business the order of the fiscal
officer containing the amount found to be due. The filing of such an
order shall have the full force and effect of a judgment duly docketed
in the office of such clerk. The order may be enforced by and in the
name of the commissioner in the same manner, and with like effect, as
that prescribed by the civil practice law and rules for the enforcement
of a money judgment.

2-a. The fiscal officer shall make an inquiry as to the willfulness of
the alleged violation which is the subject of an investigation pursuant
to subdivision two of this section. In the event a formal hearing is
held pursuant to this section, the fiscal officer, upon a review of the
entire record and a finding of credible evidence, must make a
determination, as to the willfulness of such violation. No finding of
willfullness made pursuant to the provisions of this subdivision shall
be dispositive for the purposes of section one hundred ninety-eight-a of
this chapter or of the last undesignated paragraph of subdivision three
of section two hundred twenty of this article.

3. a. When a final determination has been made and such determination
is in favor of the complainant, said complainant may in addition to any
other remedy provided by this article, institute an action in any court
of appropriate jurisdiction against the person or corporation found
violating this article, any substantially-owned affiliated entity or any
successor of the contractor or subcontractor, any officer of the
contractor or subcontractor who knowingly participated in the violation
of this article, and any of the partners if the contractor or
subcontractor is a partnership or any of the five largest shareholders
of the contractor or subcontractor, as determined by the fiscal officer,
for the recovery of the difference between the sum, if any, actually
paid to him by the aforesaid financial officer pursuant to said order
and the amount found to be due him as determined by said order. Such
action must be commenced within three years from the date of the filing
of said order, or if the said order is reviewed in a proceeding pursuant
to article seventy-eight of the civil practice law and rules, within
three years after the termination of such review proceeding.

b. (1) When two final determinations have been rendered against a
contractor, subcontractor, successor, or any substantially-owned
affiliated entity of the contractor or subcontractor, any of the
partners if the contractor or subcontractor is a partnership, any
officer of the contractor or subcontractor who knowingly participated in
the violation of this article, any of the shareholders who own or
control at least ten per centum of the outstanding stock of the
contractor or subcontractor or any successor within any consecutive
six-year period determining that such contractor, subcontractor,
successor, or any substantially-owned affiliated entity of the
contractor or subcontractor, any of the partners or any of the
shareholders who own or control at least ten per centum of the
outstanding stock of the contractor or subcontractor, any officer of the
contractor or subcontractor who knowingly participated in the violation
of this article has wilfully failed to pay the prevailing rate of wages
or to provide supplements in accordance with this article, whether such
failures were concurrent or consecutive and whether or not such final
determinations concerning separate public work projects are rendered
simultaneously, such contractor, subcontractor, successor, or any
substantially-owned affiliated entity of the contractor or
subcontractor, any of the partners if the contractor or subcontractor is
a partnership or any of the shareholders who own or control at least ten
per centum of the outstanding stock of the contractor or subcontractor,
any officer of the contractor or subcontractor who knowingly
participated in the violation of this article shall be ineligible to
submit a bid on or be awarded any public work contract or subcontract
with the state, any municipal corporation or public body for a period of
five years from the second final determination, provided, however, that
where any such final determination involves the falsification of payroll
records or the kickback of wages or supplements, the contractor,
subcontractor, successor, or any substantially-owned affiliated entity
of the contractor or subcontractor, any partner if the contractor or
subcontractor is a partnership or any of the shareholders who own or
control at least ten per centum of the outstanding stock of the
contractor or subcontractor, any officer of the contractor or
subcontractor who knowingly participated in the violation of this
article shall be ineligible to submit a bid on or be awarded any public
work contract with the state, any municipal corporation or public body
for a period of five years from the first final determination.

(2) When any person or corporation, or any officer or shareholder who
owns or controls at least ten per centum of the outstanding stock of
such corporation, has been convicted of a felony offense for conduct
relating to obtaining or attempting to obtain, or performing or
attempting to perform a public work contract with the state, any
municipal corporation, public benefit corporation or public body, and
such felony offense is a violation of:

(i) this chapter; or

(ii) coercion in the first degree as defined in section 135.65 of the
penal law, grand larceny in the fourth degree as defined in section
155.30 of the penal law, grand larceny in the third degree as defined in
section 155.35 of the penal law, grand larceny in the second degree as
defined in section 155.40 of the penal law, grand larceny in the first
degree as defined in section 155.42 of the penal law, forgery in the
second degree as defined in section 170.10 of the penal law, forgery in
the first degree as defined in section 170.15 of the penal law, criminal
possession of a forged instrument in the second degree as defined in
section 170.25 of the penal law, criminal possession of a forged
instrument in the first degree as defined in section 170.30 of the penal
law, criminal possession of forgery devices as defined in section 170.40
of the penal law, falsifying business records in the first degree as
defined in section 175.10 of the penal law, tampering with public
records in the first degree as defined in section 175.25 of the penal
law, offering a false instrument for filing in the first degree as
defined in section 175.35 of the penal law, issuing a false certificate
as defined in section 175.40 of the penal law, insurance fraud in the
fourth degree as defined in section 176.15 of the penal law, insurance
fraud in the third degree as defined in section 176.20 of the penal law,
insurance fraud in the second degree as defined in section 176.25 of the
penal law, insurance fraud in the first degree as defined in section
176.30 of the penal law, aggravated insurance fraud as defined in
section 176.35 of the penal law, commercial bribing in the first degree
as defined in section 180.03 of the penal law, commercial bribe
receiving in the first degree as defined in section 180.08 of the penal
law, bribing a labor official as defined in section 180.15 of the penal
law, bribe receiving by a labor official as defined in section 180.25 of
the penal law, criminal impersonation in the second degree as defined in
section 190.25 of the penal law, criminal impersonation in the first
degree as defined in section 190.26 of the penal law, criminal usury in
the second degree as defined in section 190.40 of the penal law,
criminal usury in the first degree as defined in section 190.42 of the
penal law, scheme to defraud in the first degree as defined in section
190.65 of the penal law, bribery in the third degree as defined in
section 200.00 of the penal law, bribery in the second degree as defined
in section 200.03 of the penal law, bribery in the first degree as
defined in section 200.04 of the penal law, bribe receiving in the third
degree as defined in section 200.10 of the penal law, bribe receiving in
the second degree as defined in section 200.11 of the penal law, bribe
receiving in the first degree as defined in section 200.12 of the penal
law, rewarding official misconduct in the second degree as defined in
section 200.20 of the penal law, rewarding official misconduct in the
first degree as defined in section 200.22 of the penal law, bribe giving
for public office as defined in section 200.45 of the penal law, or the
attempted commission of any of the offenses set forth in this paragraph,
provided that such offense constitutes a felony; or

(iii) criminal solicitation in the second degree as defined in section
100.10 of the penal law, conspiracy in the fourth degree as defined in
section 105.10 of the penal law, conspiracy in the second degree as
defined in section 105.15 of the penal law, or criminal facilitation in
the second degree as defined in section 115.05 of the penal law,
provided that such offense is a felony and was committed in connection
with one or more of the crimes listed in clause (ii) of this
subparagraph; or

(iv) article twenty-two of the general business law; or

(v) assault in the second degree as defined in section 120.05 of the
penal law, assault in the first degree as defined in section 120.10 of
the penal law, reckless endangerment in the first degree as defined in
section 120.25 of the penal law, criminally negligent homicide as
defined in section 125.10 of the penal law, manslaughter in the second
degree as defined in section 125.15 of the penal law, manslaughter in
the first degree as defined in section 125.20 of the penal law and
murder in the second degree as defined in section 125.25 of the penal
law, provided that the victim was an employee of such person or
corporation and further provided that such offense arose from actions or
matters related to the protection of the health or safety of employees
at a work site;
such person shall be ineligible to submit a bid on or be awarded any
public works contract with the state, any municipal corporation, public
benefit corporation or public body for a period of five years from the
date of conviction.

* (3)(i) When any contractor, subcontractor, or person is listed by
the federal government as excluded from receiving federal contracts and
certain subcontracts, assistance or benefits, pursuant to 48 C.F.R.
Subpart 9-4, such contractor, subcontractor, or person shall be
ineligible to submit a bid on or be awarded any public work contract
with the state, any municipal corporation, public benefit corporation or
public body during such period of exclusion, unless the department
having jurisdiction determines, after public notice and comment, that
there is a compelling reason, consistent with 48 C.F.R. § 9.405, to
allow such contractor, subcontractor, or person to submit a bid or to be
awarded a particular public work contract. Public notice shall include
notice provided to the department, which shall post such notice on its
website.

(ii) When the fiscal officer determines that a contractor,
subcontractor or person is a "substantially owned-affiliated entity," as
defined by paragraph g of subdivision five of section two hundred twenty
of this article, in relation to a contractor, subcontractor, or person
ineligible to submit a bid or be awarded a public work contract under
clause (i) of this subparagraph, such substantially owned-affiliated
entity shall be ineligible to submit a bid or be awarded any public work
contract with the state, any municipal corporation, public benefit
corporation for the duration of the remaining period of exclusion of the
contractor, subcontractor, or person under clause (i) of this
subparagraph. In order for a substantially owned-affiliated entity to be
debarred pursuant to this clause, such substantially owned-affiliated
entity must have had substantial involvement in the day to day
management of the contractor, subcontractor or person debarred under
clause (i) of this subparagraph. Such substantially owned-affiliated
entity shall be provided with written notice from the fiscal officer of
the proposed determination and shall be afforded an opportunity to be
heard regarding the ineligible determination by the fiscal officer
within thirty calendar days of the written notice. In addition, the
department having jurisdiction may determine, after public notice and
comment, that there is a compelling reason, consistent with 48 C.F.R. §
9.405, to allow such substantially owned-affiliated entity to submit a
bid or to be awarded a particular public work contract. Public notice
shall include notice provided to the department, which shall post such
notice on its website.

(iii) Any determinations made pursuant to this subparagraph shall be
subject to review pursuant to article seventy-eight of the civil
practice law and rules.

* NB Repealed March 18, 2024

c. Nothing in this subdivision shall be construed as affecting any
provision of any other law or regulation relating to the awarding of
public contracts except that the ineligibility for submission of any bid
or receipt of any award of public work set forth in this chapter shall
not be subject to any mitigation or judicial abatement, including, but
not limited to, the provisions of article twenty-three of the correction
law, and such ineligibility shall continue in full force and effect for
the entire period set forth above.