S T A T E   O F   N E W   Y O R K
       ________________________________________________________________________
                                         2791
                              2015-2016 Regular Sessions
                                 I N  A S S E M B L Y
                                   January 20, 2015
                                      ___________
       Introduced by M. of A. WEPRIN -- read once and referred to the Committee
         on Governmental Operations
       AN  ACT to amend the state finance law and the general municipal law, in
         relation  to   determining   contractor   responsibility   on   public
         construction projects
         THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
       BLY, DO ENACT AS FOLLOWS:
    1    Section 1. The state finance law is amended by adding  a  new  section
    2  139-l to read as follows:
    3    S  139-L.  CONTRACTOR  AND  SUBCONTRACTOR  RESPONSIBILITY.  1. FOR THE
    4  PURPOSE OF THIS SECTION, THE FOLLOWING TERMS SHALL  HAVE  THE  FOLLOWING
    5  MEANINGS UNLESS OTHERWISE SPECIFIED:
    6    A.  "APPARENT LOW BIDDER" SHALL MEAN A BIDDER WHO, UPON THE OPENING OF
    7  BIDS FOR A CONTRACT, IS DETERMINED TO HAVE SUBMITTED THE LOWEST BID  FOR
    8  SUCH CONTRACT.
    9    B.  "BIDDER"  SHALL MEAN ANY PERSON, PARTNERSHIP, FIRM, CORPORATION OR
   10  OTHER ENTITY SUBMITTING A COMPETITIVE BID FOR, OR SUBMITTED FOR APPROVAL
   11  AS A SUBCONTRACTOR ON, A CONTRACT BY ANY CONTRACTING ENTITY.
   12    C.  "CONTRACT"  SHALL  MEAN  ANY  CONTRACT  MADE   AND   AWARDED   FOR
   13  CONSTRUCTION,  RECONSTRUCTION  OR  ALTERATION OF ANY PUBLIC WORK PROJECT
   14  WHICH IS REQUIRED BY LAW TO BE LET BY COMPETITIVE BIDDING TO THE  LOWEST
   15  RESPONSIBLE BIDDER BY A CONTRACTING ENTITY.
   16    D. "CONTRACTING ENTITY" SHALL MEAN ANY PUBLIC DEPARTMENT, PUBLIC BENE-
   17  FIT  CORPORATION  OR  PUBLIC  CORPORATION COVERED BY SECTION ONE HUNDRED
   18  THIRTY-NINE-F OF THIS ARTICLE OR SECTION  THIRTY-EIGHT  OF  THE  HIGHWAY
   19  LAW.
   20    E. "CONTRACTOR" SHALL MEAN A BIDDER WHO HAS BEEN AWARDED A CONTRACT.
   21    F. "SUBCONTRACTOR" SHALL MEAN A PERSON, PARTNERSHIP, FIRM, CORPORATION
   22  OR OTHER ENTITY THAT IS PROPOSED TO PERFORM WORK ON THE CONTRACT.
   23    2.  IN  DELIBERATING  UPON  THE RESPONSIBILITY OF A BIDDER OR PROPOSED
   24  SUBCONTRACTOR ON A CONTRACT,  THE  CONTRACTING  ENTITY  SHALL  GIVE  DUE
        EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                             [ ] is old law to be omitted.
                                                                  LBD07521-01-5
       A. 2791                             2
    1  CONSIDERATION  TO ANY CREDIBLE EVIDENCE OR INFORMATION REASONABLY DEEMED
    2  TO BE RELIABLE THAT THE PAST OR CURRENT RECORD OF A BIDDER  OR  PROPOSED
    3  SUBCONTRACTOR  SHALL WARRANT A DETERMINATION THAT SUCH BIDDER OR SUBCON-
    4  TRACTOR  IS  NOT A RESPONSIBLE BIDDER. THE CONTRACTING ENTITY, IN DETER-
    5  MINING THE RESPONSIBILITY OF THE APPARENT LOW BIDDER SHALL REQUIRE,  AND
    6  THE  APPARENT LOW BIDDER SHALL PROVIDE, THE FOLLOWING INFORMATION RELAT-
    7  ING TO THE APPARENT LOW BIDDER IN ORDER FOR THE  CONTRACTING  ENTITY  TO
    8  DETERMINE  THE  PECUNIARY  AND FINANCIAL RESPONSIBILITY, ACCOUNTABILITY,
    9  OPERATIONAL RESPONSIBILITY, RELIABILITY, SKILL, CAPACITY, ABILITY, JUDG-
   10  MENT AND INTEGRITY OF THE APPARENT LOW BIDDER:
   11    A. A DESCRIPTION OF ITS EXPERIENCE WITH PROJECTS OF COMPARATIVE SCOPE,
   12  COMPLEXITY, AND COST WITHIN THE PAST FIVE YEARS, TOGETHER WITH  DOCUMEN-
   13  TARY EVIDENCE OF SUCH PROJECTS;
   14    B.  DOCUMENTATION  REGARDING  SUCH  PROJECTS DESCRIBING THE FOLLOWING:
   15  TIMELINESS OF PERFORMANCE; QUALITY OF WORK;  EXTENSION  REQUESTS;  LITI-
   16  GATION  AND/OR  ARBITRATION  ARISING FROM SUCH WORK, INCLUDING FINES AND
   17  PENALTIES IMPOSED AND PAYMENT THEREOF; LIENS FILED;  HISTORY  OF  CLAIMS
   18  FOR EXTRA WORK; CONTRACT DEFAULTS; AND AN EXPLANATION OF THE SAME;
   19    C.  IDENTIFICATION AND DESCRIPTION OF ANY PROJECTS WITHIN THE PREVIOUS
   20  FIVE YEARS THAT THE APPARENT LOW BIDDER WAS DETERMINED BY THE  CONTRACT-
   21  ING ENTITY NOT TO BE A RESPONSIBLE BIDDER, AND THE REASONS GIVEN BY SUCH
   22  ENTITY THEREFOR, TOGETHER WITH AN EXPLANATION THEREOF;
   23    D.  AN  ADEQUATE  DEMONSTRATION OF FINANCIAL RESPONSIBILITY, WHICH MAY
   24  INCLUDE A CERTIFIED FINANCIAL STATEMENT PREPARED BY A  CERTIFIED  PUBLIC
   25  ACCOUNTANT,  TO  ASSURE  THAT THE APPARENT LOW BIDDER POSSESSES ADEQUATE
   26  RESOURCES AND AVAILABILITY OF  CREDIT  AND  THE  MEANS  AND  ABILITY  TO
   27  PROCURE INSURANCE AND BONDS REQUIRED FOR THE PROJECT;
   28    E.  DISCLOSURE  OF  ANY SUSPENSIONS OR REVOCATIONS OF ANY PROFESSIONAL
   29  LICENSE OF ANY DIRECTOR, OFFICER, OWNER OR MANAGERIAL  EMPLOYEE  OF  THE
   30  APPARENT  LOW  BIDDER,  TO  THE  EXTENT THAT ANY WORK TO BE PERFORMED IS
   31  WITHIN THE FIELD OF SUCH LICENSED PROFESSION;
   32    F. DISCLOSURE OF ANY AND ALL UNITED  STATES  OCCUPATIONAL  SAFETY  AND
   33  HEALTH ADMINISTRATION VIOLATIONS WITHIN THE PREVIOUS FIVE YEARS, AS WELL
   34  AS ALL NOTICES OF SUCH VIOLATIONS AGAINST THE APPARENT LOW BIDDER IN THE
   35  SAME  FIVE  YEAR  PERIOD, TOGETHER WITH A DESCRIPTION AND EXPLANATION OF
   36  REMEDIATION OR OTHER STEPS TAKEN REGARDING SUCH VIOLATIONS  AND  NOTICES
   37  OF VIOLATIONS;
   38    G.  DISCLOSURE OF ANY AND ALL VIOLATIONS OF ARTICLE EIGHT OF THE LABOR
   39  LAW AND ANY OTHER PROVISION OF SUCH LAW, INCLUDING BUT NOT  LIMITED  TO,
   40  CHILD  LABOR VIOLATIONS, FAILURE TO PAY WAGES AND UNEMPLOYMENT INSURANCE
   41  TAX DELINQUENCIES WITHIN THE PAST FIVE YEARS;
   42    H.  DISCLOSURE OF VIOLATIONS OF THE WORKERS' COMPENSATION LAW, INCLUD-
   43  ING, BUT NOT LIMITED TO THE FAILURE TO PROVIDE PROOF OF WORKERS' COMPEN-
   44  SATION OR DISABILITY COVERAGE AND/OR ANY LAPSES THEREOF;
   45    I. DISCLOSURE OF ANY FELONY CONVICTIONS, INVOLVING THE LOWEST  RESPON-
   46  SIBLE  BIDDER,  ITS  OFFICERS, DIRECTORS, OWNERS OR MANAGERIAL EMPLOYEES
   47  WITHIN THE PAST FIVE YEARS; AND
   48    J. DISCLOSURE OF ANY VIOLATIONS WITHIN THE PAST FIVE YEARS OR  PENDING
   49  CHARGES  CONCERNING  FEDERAL,  STATE  OR  MUNICIPAL ENVIRONMENTAL AND/OR
   50  HEALTH LAWS, CODES, RULES AND/OR REGULATIONS.
   51    3. WHEN REQUESTED BY THE CONTRACTING ENTITY AFTER  THE  BID  HAS  BEEN
   52  SUBMITTED  BUT  BEFORE  ANY  OF  THE  SUBCONTRACTED  WORK COMMENCES, THE
   53  CONTRACTOR SHALL IDENTIFY ALL WORK TO BE SUBCONTRACTED  ALONG  WITH  THE
   54  NAME  OF  THE FIRM OR FIRMS TO WHICH THE WORK WILL BE SUBCONTRACTED. THE
   55  APPROVAL OF THE SUBCONTRACTOR BY THE CONTRACTING ENTITY, AS PROVIDED  BY
       A. 2791                             3
    1  THE  CONTRACT, SHALL BE SUBJECT TO THE SAME EVALUATION OF RESPONSIBILITY
    2  CONTAINED WITHIN THIS SECTION FOR THE CONTRACTOR.
    3    4.  PRIOR TO A FINAL DETERMINATION THAT THE APPARENT LOW BIDDER IS NOT
    4  RESPONSIBLE, THE CONTRACTING ENTITY  SHALL  NOTIFY  THE  PARTY  OF  SUCH
    5  DETERMINATION,  IN  WRITING, STATING THE REASONS FOR SUCH DETERMINATION,
    6  AND SETTING FORTH A TIME, DATE AND PLACE FOR THE APPARENT LOW BIDDER  TO
    7  APPEAR  AND  BE  HEARD, PRIOR TO SUCH DETERMINATION BEING MADE REGARDING
    8  ITS RESPONSIBILITY. IN THE EVENT  OF  A  FINAL  DETERMINATION  THAT  THE
    9  APPARENT  LOW  BIDDER  IS  NOT RESPONSIBLE, THE NEXT LOWEST BIDDER SHALL
   10  BECOME THE APPARENT LOW BIDDER AND SHALL BE SUBJECT TO THE  REQUIREMENTS
   11  SET FORTH IN THIS SECTION.
   12    S  2.  The  general  municipal  law is amended by adding a new section
   13  103-h to read as follows:
   14    S 103-H. CONTRACTOR  AND  SUBCONTRACTOR  RESPONSIBILITY.  1.  FOR  THE
   15  PURPOSE  OF  THIS  SECTION, THE FOLLOWING TERMS SHALL HAVE THE FOLLOWING
   16  MEANINGS UNLESS OTHERWISE SPECIFIED:
   17    A. "APPARENT LOW BIDDER" SHALL MEAN A BIDDER WHO, UPON THE OPENING  OF
   18  BIDS  FOR A CONTRACT, IS DETERMINED TO HAVE SUBMITTED THE LOWEST BID FOR
   19  SUCH CONTRACT.
   20    B. "BIDDER" SHALL MEAN ANY PERSON, PARTNERSHIP, FIRM,  CORPORATION  OR
   21  OTHER ENTITY SUBMITTING A COMPETITIVE BID FOR, OR SUBMITTED FOR APPROVAL
   22  AS A SUBCONTRACTOR ON, A CONTRACT BY ANY CONTRACTING ENTITY.
   23    C.  "CONTRACT"  SHALL MEAN ANY CONTRACT WHICH IS REQUIRED BY LAW TO BE
   24  LET BY COMPETITIVE BID BY A CONTRACTING ENTITY FOR CONSTRUCTION,  RECON-
   25  STRUCTION OR ALTERATION OF ANY PUBLIC WORK PROJECT TO THE LOWEST RESPON-
   26  SIBLE BIDDER.
   27    D.  "CONTRACTING  ENTITY"  SHALL  MEAN  A POLITICAL SUBDIVISION OR ANY
   28  DISTRICT THEREIN.
   29    2. IN DELIBERATING UPON THE RESPONSIBILITY OF  A  BIDDER  OR  PROPOSED
   30  SUBCONTRACTOR  ON  A  CONTRACT,  THE  CONTRACTING  ENTITY SHALL GIVE DUE
   31  CONSIDERATION TO ANY CREDIBLE EVIDENCE OR INFORMATION REASONABLY  DEEMED
   32  TO  BE  RELIABLE THAT THE PAST OR CURRENT RECORD OF A BIDDER OR PROPOSED
   33  SUBCONTRACTOR SHALL WARRANT A DETERMINATION THAT SUCH BIDDER OR  SUBCON-
   34  TRACTOR  IS  NOT A RESPONSIBLE BIDDER. THE CONTRACTING ENTITY, IN DETER-
   35  MINING THE RESPONSIBILITY OF THE APPARENT LOW BIDDER SHALL REQUIRE,  AND
   36  THE  APPARENT LOW BIDDER SHALL PROVIDE, THE FOLLOWING INFORMATION RELAT-
   37  ING TO THE APPARENT LOW BIDDER IN ORDER FOR THE  CONTRACTING  ENTITY  TO
   38  DETERMINE  THE  PECUNIARY  AND FINANCIAL RESPONSIBILITY, ACCOUNTABILITY,
   39  OPERATIONAL RESPONSIBILITY, RELIABILITY, SKILL, CAPACITY, ABILITY, JUDG-
   40  MENT AND INTEGRITY OF THE APPARENT LOW BIDDER:
   41    A. A DESCRIPTION OF ITS EXPERIENCE WITH PROJECTS OF COMPARATIVE SCOPE,
   42  COMPLEXITY, AND COST WITHIN THE PAST FIVE YEARS, TOGETHER WITH  DOCUMEN-
   43  TARY EVIDENCE OF SUCH PROJECTS;
   44    B.  DOCUMENTATION  REGARDING  SUCH  PROJECTS DESCRIBING THE FOLLOWING:
   45  TIMELINESS OF PERFORMANCE; QUALITY OF WORK;  EXTENSION  REQUESTS;  LITI-
   46  GATION  AND/OR  ARBITRATION  ARISING FROM SUCH WORK, INCLUDING FINES AND
   47  PENALTIES IMPOSED AND PAYMENT THEREOF; LIENS FILED;  HISTORY  OF  CLAIMS
   48  FOR EXTRA WORK; CONTRACT DEFAULTS; AND AN EXPLANATION OF THE SAME;
   49    C.  IDENTIFICATION AND DESCRIPTION OF ANY PROJECTS WITHIN THE PREVIOUS
   50  FIVE YEARS THAT THE APPARENT LOW BIDDER WAS DETERMINED BY THE  CONTRACT-
   51  ING    ENTITY  NOT  TO BE A RESPONSIBLE BIDDER, AND THE REASONS GIVEN BY
   52  SUCH ENTITY THEREFOR, TOGETHER WITH AN EXPLANATION THEREOF;
   53    D. AN ADEQUATE DEMONSTRATION OF FINANCIAL  RESPONSIBILITY,  WHICH  MAY
   54  INCLUDE  A  CERTIFIED FINANCIAL STATEMENT PREPARED BY A CERTIFIED PUBLIC
   55  ACCOUNTANT, TO ASSURE THAT THE APPARENT LOW  BIDDER  POSSESSES  ADEQUATE
       A. 2791                             4
    1  RESOURCES  AND  AVAILABILITY  OF  CREDIT  AND  THE  MEANS AND ABILITY TO
    2  PROCURE INSURANCE AND BONDS REQUIRED FOR THE PROJECT;
    3    E.  DISCLOSURE  OF  ANY SUSPENSIONS OR REVOCATIONS OF ANY PROFESSIONAL
    4  LICENSE OF ANY DIRECTOR, OFFICER, OWNER OR MANAGERIAL  EMPLOYEE  OF  THE
    5  APPARENT  LOW  BIDDER,  TO  THE  EXTENT THAT ANY WORK TO BE PERFORMED IS
    6  WITHIN THE FIELD OF SUCH LICENSED PROFESSION;
    7    F. DISCLOSURE OF ANY AND ALL UNITED  STATES  OCCUPATIONAL  SAFETY  AND
    8  HEALTH ADMINISTRATION VIOLATIONS WITHIN THE PREVIOUS FIVE YEARS, AS WELL
    9  AS  ALL NOTICES OF SUCH VIOLATIONS FILED AGAINST THE APPARENT LOW BIDDER
   10  IN THE SAME FIVE YEAR PERIOD, TOGETHER WITH A DESCRIPTION  AND  EXPLANA-
   11  TION  OF  REMEDIATION OR OTHER STEPS TAKEN REGARDING SUCH VIOLATIONS AND
   12  NOTICES OF VIOLATIONS;
   13    G. DISCLOSURE OF ANY AND ALL VIOLATIONS OF ARTICLE EIGHT OF THE  LABOR
   14  LAW  AND  ANY OTHER PROVISION OF SUCH LAW, INCLUDING BUT NOT LIMITED TO,
   15  CHILD LABOR VIOLATIONS, FAILURE TO PAY WAGES AND UNEMPLOYMENT  INSURANCE
   16  TAX DELINQUENCIES WITHIN THE PAST FIVE YEARS;
   17    H.  DISCLOSURE OF VIOLATIONS OF THE WORKERS' COMPENSATION LAW, INCLUD-
   18  ING BUT NOT LIMITED TO, THE FAILURE TO PROVIDE PROOF OF WORKERS' COMPEN-
   19  SATION OR DISABILITY COVERAGE AND/OR ANY LAPSES THEREOF;
   20    I. DISCLOSURE OF ANY FELONY  CONVICTIONS  OF  THE  LOWEST  RESPONSIBLE
   21  BIDDER,  ITS  OFFICERS, DIRECTORS, OWNERS OR MANAGERIAL EMPLOYEES WITHIN
   22  THE PAST FIVE YEARS; AND
   23    J. DISCLOSURE OF ANY VIOLATIONS WITHIN THE PAST FIVE YEARS OR  PENDING
   24  CHARGES  CONCERNING  FEDERAL,  STATE  OR  MUNICIPAL ENVIRONMENTAL AND/OR
   25  HEALTH LAWS, CODES, RULES AND/OR REGULATIONS.
   26    3. WHEN REQUESTED BY THE CONTRACTING ENTITY AFTER  THE  BID  HAS  BEEN
   27  SUBMITTED  BUT  BEFORE  ANY  OF  THE  SUBCONTRACTED  WORK COMMENCES, THE
   28  CONTRACTOR SHALL IDENTIFY ALL WORK TO BE SUBCONTRACTED  ALONG  WITH  THE
   29  NAME  OF  THE FIRM OR FIRMS TO WHICH THE WORK WILL BE SUBCONTRACTED. THE
   30  APPROVAL OF THE SUBCONTRACTOR BY THE CONTRACTING ENTITY, AS PROVIDED  BY
   31  THE  CONTRACT, SHALL BE SUBJECT TO THE SAME EVALUATION OF RESPONSIBILITY
   32  CONTAINED WITHIN THIS SECTION FOR THE CONTRACTOR.
   33    4. PRIOR TO A FINAL DETERMINATION THAT THE APPARENT LOW BIDDER IS  NOT
   34  RESPONSIBLE,  THE  CONTRACTING  ENTITY  SHALL  NOTIFY  THE PARTY OF SUCH
   35  DETERMINATION, IN WRITING, STATING THE REASONS FOR  SUCH  DETERMINATION,
   36  AND  SETTING FORTH A TIME, DATE AND PLACE FOR THE APPARENT LOW BIDDER TO
   37  APPEAR AND BE HEARD, PRIOR TO SUCH DETERMINATION  BEING  MADE  REGARDING
   38  ITS  RESPONSIBILITY.  IN  THE  EVENT  OF  A FINAL DETERMINATION THAT THE
   39  APPARENT LOW BIDDER IS NOT RESPONSIBLE, THE  NEXT  LOWEST  BIDDER  SHALL
   40  BECOME  THE APPARENT LOW BIDDER AND SHALL BE SUBJECT TO THE REQUIREMENTS
   41  SET FORTH IN THIS SECTION.
   42    S 3. This act shall take effect on the thirtieth day  after  it  shall
   43  have  become  a  law and shall be applicable to all contracts advertised
   44  for bid on or after such date.