A2261-2011 Actions

• Jan 4, 2012: referred to governmental operations
• Jan 14, 2011: referred to governmental operations

A2261-2011 Text

 S T A T E   O F   N E W   Y O R K
 
 
                                         2261
 2011-2012 Regular Sessions
 I N  ASSEMBLY
 January 14, 2011
 
 Introduced by M. of A. BRENNAN, COLTON -- Multi-Sponsored by -- M. of A.
 CAHILL,  COOK,  GALEF,  GLICK,  GOTTFRIED,  SWEENEY  --  read once and
 referred to the Committee on Governmental Operations
 

AN ACT to amend the state finance law, in relation to the  authority  of
 state  agencies, public authorities, or public benefit corporations to
 debar contractors from selling or submitting bids to such entities
 THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM
 BLY, DO ENACT AS FOLLOWS:

 

Section  1.  The  state finance law is amended by adding a new section
 139-b-1 to read as follows:

 

S 139-B-1. DEBARMENT; AUTHORITY AND PROCEDURE.  (A)  DEFINITIONS.  (I)
 "DEBARRING  BODY"  SHALL MEAN A STATE AGENCY, DEPARTMENT, BOARD, BUREAU,
 COMMISSION, DIVISION, PUBLIC AUTHORITY, OR PUBLIC BENEFIT CORPORATION, A
 MAJORITY OF WHOSE MEMBERS ARE APPOINTED BY THE GOVERNOR.
 (II) "POTENTIAL CONTRACTOR" SHALL MEAN A  PERSON,  PARTNERSHIP,  FIRM,
 CORPORATION OR BUSINESS ENTITY.
 (B)  THE  HEAD OF   THE DEBARRING BODY MAY, AFTER REASONABLE NOTICE BY
 CERTIFIED MAIL WITH RETURN RECEIPT REQUESTED, TO THE POTENTIAL  CONTRAC
 TOR  AND  REASONABLE OPPORTUNITY FOR THEM TO BE HEARD, DEBAR SUCH POTEN
 TIAL CONTRACTOR FOR CAUSE FROM SELLING  TO  OR  SUBMITTING  BIDS  TO  OR
 RECEIVING AWARDS FROM OR ENTERING INTO CONTRACTS WITH THE DEBARRING BODY
 FOR A PERIOD OF UP TO FIVE YEARS.
 (C) CAUSES FOR DEBARMENT SHALL INCLUDE BUT NOT BE LIMITED TO A FINDING
 BY  THE  DEBARRING  BODY  OF  THE  FOLLOWING  FACTORS  BY SUCH POTENTIAL
 CONTRACTOR, ANY DIRECTOR OR OFFICER OR ANY HOLDER  OF  FIVE  PERCENT  OR
 MORE OF THE SHARES OR EQUITY OF SUCH POTENTIAL CONTRACTOR, OR ANY AFFIL
 IATE OF SUCH POTENTIAL CONTRACTOR:

 (I) FINAL DETERMINATION OF CONVICTION, WITH ALL APPEALS EXHAUSTED, FOR
 COMMISSION OF A CRIMINAL OFFENSE AS AN INCIDENT TO OBTAINING OR ATTEMPT
 ING  TO  OBTAIN  A  PUBLIC OR PRIVATE CONTRACT OR SUBCONTRACT, OR IN THE
 PERFORMANCE OF SUCH CONTRACT OR SUBCONTRACT;
 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
 [ ] is old law to be omitted.
 LBD04778-01-1
 
       A. 2261                             2
 (II) FINAL DETERMINATION OF CONVICTION, WITH  ALL  APPEALS  EXHAUSTED,
 UNDER  STATE  OR  FEDERAL  STATUTES  OF  EMBEZZLEMENT,  THEFT,  FORGERY,
 BRIBERY, FALSIFICATION OR DESTRUCTION OF RECORDS, RECEIVING STOLEN PROP
 ERTY, OR ANY OTHER OFFENSE INDICATING A LACK OF  BUSINESS  INTEGRITY  OR
 BUSINESS  HONESTY WHICH CURRENTLY, SERIOUSLY, AND DIRECTLY AFFECTS CAPA
 BILITY IN ALL RESPECTS TO PERFORM FULLY CONTRACT REQUIREMENTS AS A STATE
 CONTRACTOR;
 (III) FINAL DETERMINATION OF CONVICTION, WITH ALL  APPEALS  EXHAUSTED,
 UNDER  STATE OR FEDERAL ANTITRUST STATUTES ARISING OUT OF THE SUBMISSION
 OF BIDS OR PROPOSALS;
 (IV) FINAL JUDGEMENT OR DETERMINATION OF CONVICTION, WITH ALL  APPEALS
 EXHAUSTED  OF  UNLAWFUL  DISCRIMINATORY PRACTICE AS DEFINED IN THE HUMAN
 RIGHTS LAW;
 (V) VIOLATION OF ANY DEBARRING  BODY'S  CONTRACT  PROVISIONS,  AS  SET
 FORTH  BELOW, OF A CHARACTER WHICH IS REASONABLY REGARDED BY THE HEAD OF
 SUCH DEBARRING BODY TO BE SO SERIOUS  AS  TO  JUSTIFY  DEBARMENT  ACTION
 INCLUDING,  BUT  NOT  LIMITED TO, A RECORD WITHIN THE LAST FIVE YEARS OF
 WILLFUL FAILURE TO PERFORM OR OF WILLFUL UNSATISFACTORY  PERFORMANCE  IN
 ACCORDANCE  WITH  THE TERMS OF ONE OR MORE SUCH CONTRACTS; PROVIDED THAT
 FAILURE TO PERFORM OR UNSATISFACTORY PERFORMANCE CAUSED BY  ACTS  BEYOND
 THE  CONTROL OF THE CONTRACTOR SHALL NOT BE CONSIDERED TO BE A BASIS FOR
 DEBARMENT;
 (VI) ANY OTHER CAUSE THAT THE HEAD  OF  A  DEBARRING  BODY  REASONABLY
 DETERMINES  TO BE SO SERIOUS AND COMPELLING AS TO PERVASIVELY AFFECT THE
 POTENTIAL CONTRACTOR'S CAPABILITY TO PERFORM FULLY THE CONTRACT REQUIRE
 MENTS ON ALL CONTRACTS OF SUCH DEBARRING BODY,  INCLUDING  DEBARMENT  BY
 ANOTHER DEBARRING BODY FOR ANY CAUSE LISTED IN THIS SUBDIVISION.
 (D)  IN  CONSIDERING WHETHER OR NOT TO DEBAR A POTENTIAL CONTRACTOR, A
 DEBARRING BODY SHALL GIVE DUE CONSIDERATION TO  ANY  MITIGATING  FACTORS
 BROUGHT TO SUCH BODY'S ATTENTION BY SUCH POTENTIAL CONTRACTOR; INCLUDING
 BUT  NOT  LIMITED  TO  ACTIONS TAKEN TO CORRECT THE CAUSES FOR WHICH THE
 DEBARMENT WAS IMPOSED, TIME LAPSED SINCE CONVICTION, OR BONA FIDE CHANG
 ES IN OWNERSHIP OR MANAGEMENT. DEBARMENT SHALL BE FOR A PERIOD COMMENSU
 RATE WITH THE SERIOUSNESS OF THE CAUSES  FOR  WHICH  THE  DEBARMENT  WAS
 IMPOSED.  THE  HEAD  OF  EACH DEBARRING BODY SHALL ESTABLISH REGULATIONS
 CONCERNING THE LENGTH OF THE PERIOD OF DEBARMENT COMMENSURATE  WITH  THE
 CAUSES FOR WHICH THE DEBARMENT WAS IMPOSED.
 (E)  A  WRITTEN NOTICE OF DEBARMENT, STATING THE BASIS THEREFOR, SHALL
 BE MAILED BY CERTIFIED MAIL, WITH RETURN RECEIPT REQUESTED,  WITHIN  TEN
 DAYS OF THE DECISION TO THE DEBARRED POTENTIAL CONTRACTOR BY THE HEAD OF
 THE  DEBARRING  BODY  AND  TO  THE STATE COMPTROLLER AND OTHER DEBARRING
 BODIES FOR THE PURPOSE OF AIDING  IN  DETERMINATIONS  OF  DEBARMENT  AND
 BIDDER  RESPONSIBILITY  AS APPROPRIATE. THE DEBARRING BODY SHALL PROMUL
 GATE REGULATIONS GOVERNING AN INTERNAL APPEALS PROCEDURE FOR  DEBARMENT.
 THE  HEAD  OF  THE  DEBARRING  BODY  SHALL MAKE THE FINAL ADMINISTRATIVE
 DETERMINATION.
 (F) A DEBARRING BODY'S DECISION UNDER THIS SECTION SHALL BE FINAL  AND
 CONCLUSIVE, AND SHALL BE SUBJECT TO APPEAL PURSUANT TO THE PROVISIONS OF
 ARTICLE SEVENTY-EIGHT OF THE CIVIL PRACTICE LAW AND RULES.
 (G)  THE  DEBARRING  BODY MAY REDUCE THE PERIOD OF DEBARMENT OR REVOKE
 THE ORDER OF DEBARMENT NOT LESS THAN SIX MONTHS  AFTER  NOTICE  OF  SUCH
 DEBARMENT  UPON  WRITTEN  REQUEST  OF THE DEBARRED POTENTIAL CONTRACTOR,
 SUPPORTED BY DOCUMENTATION, FOR REASONS INCLUDING, BUT NOT LIMITED TO:

 (I) NEWLY DISCOVERED MATERIAL EVIDENCE;
 (II) REVERSAL OF A CONVICTION OR CIVIL JUDGMENT UPON WHICH THE  DEBAR
 MENT WAS BASED;
 
       A. 2261                             3
 (III) BONA FIDE CHANGE IN OWNERSHIP OR MANAGEMENT; OR
 (IV) ELIMINATION OF OTHER CAUSES FOR WHICH THE DEBARMENT WAS IMPOSED.
 (H)  THE  STATE  COMPTROLLER SHALL MAINTAIN A CURRENT LIST OF DEBARRED
 POTENTIAL CONTRACTORS, WHICH LIST SHALL BE MADE AVAILABLE  UPON  REQUEST
 TO  THE  PUBLIC PURSUANT TO THE PROVISIONS OF THE FREEDOM OF INFORMATION
 LAW. THE DEBARRING BODY SHALL MAKE AVAILABLE TO THE LEGISLATURE AND  THE
 GOVERNOR,  UPON REQUEST, AN ANNUAL LISTING OF DEBARMENT ACTIVITY INCLUD
 ING BUT NOT LIMITED TO NUMBERS OF POTENTIAL CONTRACTORS  DEBARRED  UNDER
 THIS SECTION, THE REASONS FOR SUCH DEBARMENT, AND THE PERIOD OF TIME FOR
 WHICH A POTENTIAL CONTRACTOR HAS BEEN SUSPENDED.
 (I)  NOTHING  IN  THIS  SECTION  SHALL BE CONSTRUED SO AS TO PREVENT A
 DEBARRING BODY FROM DETERMINING ON A CASE BY CASE BASIS THAT A POTENTIAL
 CONTRACTOR SUBMITTING A BID OR PROPOSAL IS NOT RESPONSIBLE.
 

S 2. This act shall take effect on the one hundred twentieth day after
 it shall have become a law provided, however, that any  rules  or  regu
 lations  necessary for the implementation of this act are authorized and
 directed to be completed on or before such effective date.

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