A3617-2011 Actions

• Jan 4, 2012: referred to local governments
• Jan 26, 2011: referred to local governments

A3617-2011 Text

 S T A T E   O F   N E W   Y O R K
 
 
                                         3617
 2011-2012 Regular Sessions
 I N  ASSEMBLY
 January 26, 2011
 
 Introduced by M. of A. BRENNAN, MILLMAN, CLARK, DINOWITZ, ORTIZ, COLTON,
 SPANO,  JAFFEE -- Multi-Sponsored by -- M. of A. CAHILL, GALEF, GLICK,
 GOTTFRIED, MARKEY,  PHEFFER,  ROSENTHAL,  SWEENEY  --  read  once  and
 referred to the Committee on Local Governments
 AN  ACT to amend the general municipal law and the state finance law, in
 relation to ensuring compliance with the competitive bidding law
 THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM
 BLY, DO ENACT AS FOLLOWS:

 

Section  1.  Short  title. This act shall be known and may be cited as
 the "Municipal competitive bidding enforcement act."
 

S 2. The general municipal law is amended  by  adding  a  new  section
 103-g to read as follows:

 

S  103-G. ENFORCEMENT OF COMPETITIVE BIDDING LAW. 1. DEFINITIONS.  (A)
 "PROCUREMENT ACTION" MEANS ANY TRANSACTION WHICH IS CLAIMED  TO  CONSTI
 TUTE  A  CONTRACT  FOR PUBLIC WORK INVOLVING AN EXPENDITURE OF MORE THAN
 TWENTY THOUSAND DOLLARS OR A PURCHASE CONTRACT INVOLVING THE EXPENDITURE
 OF MORE THAN TEN THOUSAND DOLLARS WHICH SHOULD BE AWARDED TO THE  LOWEST
 RESPONSIBLE  BIDDER,  AS  PROVIDED  BY SECTION ONE HUNDRED THREE OF THIS
 ARTICLE.
 (B) "GOOD FAITH BIDDER" MEANS ANY PERSON WHO HAS SUBMITTED  A  BID  IN
 RESPONSE TO AN ADVERTISEMENT FOR SEALED BIDS, OR WHO COULD SUBMIT A GOOD
 FAITH BID ON A PROCUREMENT ACTION.
 2. COMPTROLLER'S OPINIONS. UPON A COMPLAINT FILED BY A TAXPAYER OF THE
 POLITICAL SUBDIVISION OR BY A GOOD FAITH BIDDER, THE OFFICE OF THE STATE
 COMPTROLLER  SHALL  ISSUE  AN  OPINION ON WHETHER A PROPOSED PROCUREMENT
 ACTION BY A POLITICAL SUBDIVISION COMPLIES WITH THE COMPETITIVE  BIDDING
 REQUIREMENTS OF SECTION ONE HUNDRED THREE OF THIS ARTICLE. THE COMPLAINT
 SHALL  SPECIFY THE PROCUREMENT ACTION THAT IS CLAIMED TO VIOLATE SECTION
 ONE HUNDRED THREE OF THIS ARTICLE. THE TAXPAYER  OR  GOOD  FAITH  BIDDER
 SHALL  SERVE  A COPY OF THE COMPLAINT ON THE POLITICAL SUBDIVISION PRIOR
 TO SERVING THE COMPLAINT ON THE COMPTROLLER.  UPON THE FILING OF A PRIMA
 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
 [ ] is old law to be omitted.
 LBD05432-01-1
 
       A. 3617                             2
 FACIE VALID COMPLAINT WITH THE COMPTROLLER, THE COMPTROLLER SHALL NOTIFY
 THE POLITICAL SUBDIVISION. UPON RECEIPT OF SUCH NOTICE  FROM  THE  COMP
 TROLLER, THE POLITICAL SUBDIVISION MAY NOT PROCEED WITH THE COMPLAINT OF
 PROCUREMENT  ACTION FOR A PERIOD OF THIRTY DAYS. IN RENDERING HIS OR HER
 OPINION, THE COMPTROLLER MAY CONSULT WITH THE OFFICE OF GENERAL SERVICES
 AS TO THE REASONABLENESS AND VALIDITY OF  ANY  BID  SPECIFICATIONS.  THE
 COMPTROLLER  SHALL  ISSUE A WRITTEN OPINION PURSUANT TO THIS SUBDIVISION
 WITHIN THIRTY DAYS OF SUCH NOTICE TO THE POLITICAL SUBDIVISION AND SHALL
 PROMPTLY SERVE COPIES OF THE OPINION ON THE POLITICAL SUBDIVISION AND ON
 THE COMPLAINING PARTY.
 3. ATTORNEY GENERAL. IF THE COMPTROLLER'S OPINION IS THAT THE PROCURE
 MENT ACTION WOULD VIOLATE SECTION ONE HUNDRED THREE OF THIS ARTICLE, THE
 COMPTROLLER SHALL TRANSMIT A COPY OF THE OPINION TO THE ATTORNEY  GENER
 AL.  NOTWITHSTANDING ANY OTHER PROVISION OF LAW, THE ATTORNEY GENERAL IS
 AUTHORIZED TO BRING A SPECIAL PROCEEDING IN THE SUPREME COURT TO HAVE  A
 PROCUREMENT ACTION ENJOINED OR DECLARED NULL AND VOID ON THE GROUND THAT
 IT IS IN VIOLATION OF SECTION ONE HUNDRED THREE OF THIS ARTICLE.
 4.  DAMAGES  TO  GOOD  FAITH  BIDDER. A GOOD FAITH BIDDER MAY BRING AN
 ACTION IN THE SUPREME COURT TO RECOVER DAMAGES AND ATTORNEY'S FEES  FROM
 A  POLITICAL  SUBDIVISION,  WHICH  ENGAGES IN A VIOLATION OF SECTION ONE
 HUNDRED THREE OF THIS ARTICLE. THE COURT SHALL AWARD DAMAGES AND  ATTOR
 NEY'S FEES IF THE COURT FINDS THAT THE GOOD FAITH BIDDER WOULD HAVE BEEN
 THE  LOWEST  RESPONSIBLE  BIDDER,  BUT  FOR  THE POLITICAL SUBDIVISION'S
 VIOLATION OF SECTION ONE HUNDRED THREE OF THIS  ARTICLE.  THE  COURT  IS
 AUTHORIZED  IN  ANY SUCH ACTION TO DECLARE AN ILLEGALLY AWARDED CONTRACT
 TO BE NULL AND VOID.
 (A) IF THE COMPTROLLER HAS ISSUED  AN  OPINION  THAT  THE  PROCUREMENT
 ACTION  WOULD BE IN VIOLATION OF SECTION ONE HUNDRED THREE OF THIS ARTI
 CLE AND THE POLITICAL SUBDIVISION  HAS  THEREAFTER  PROCEEDED  WITH  THE
 PROCUREMENT ACTION, THE MEASURE OF DAMAGES SHALL BE THREE TIMES THE GOOD
 FAITH BIDDER'S LOST PROFITS.
 (B)  IF THE COMPTROLLER HAS NOT ISSUED AN OPINION THAT THE PROCUREMENT
 ACTION WOULD BE IN VIOLATION OF SECTION ONE HUNDRED THREE OF THIS  ARTI
 CLE,  THE  MEASURE  OF DAMAGES SHALL BE THE LESSER OF (I) THE GOOD FAITH
 BIDDER'S LOST PROFITS AND (II) THE DIFFERENCE BETWEEN THE PRICE  OF  THE
 NULLIFIED  CONTRACT  AND  ANY AMOUNT THAT THE COURT AWARDS TO THE PERSON
 WHO PERFORMED ON THE NULLIFIED CONTRACT.
 5. CIVIL PENALTY. ANY PERSON  WHO  SHALL  WILFULLY  AND  INTENTIONALLY
 VIOLATE  THE  COMPETITIVE  BIDDING  REQUIREMENTS  OF SECTION ONE HUNDRED
 THREE OF THIS ARTICLE SHALL BE PERSONALLY LIABLE FOR A CIVIL PENALTY  OF
 NO  MORE  THAN ONE THOUSAND DOLLARS. IN A PROCEEDING BROUGHT PURSUANT TO
 THIS SECTION, THE COMPTROLLER'S OPINIONS AND AUDITS MAY BE ADMITTED INTO
 EVIDENCE ON THE ISSUE OF THE RESPONDENT'S STATE OF MIND,  PROVIDED  THAT
 (A)  THE OPINION OR AUDIT WAS ISSUED PRIOR TO THE ALLEGED VIOLATION, (B)
 THE OPINION OR AUDIT WAS ISSUED NO MORE THAN  TEN  YEARS  PRIOR  TO  THE
 ALLEGED  VIOLATION, AND (C) THE OPINION OR AUDIT CONCERNED THE SAME KIND
 OF ITEM OR SAME KIND OF PRACTICE AS THE ALLEGED VIOLATION.
 6. COMPLAINT FEE. WHENEVER THE COMPTROLLER  ACCEPTS  A  COMPLAINT  FOR
 FILING  PURSUANT  TO  THIS  SECTION,  THE  COMPTROLLER SHALL REQUIRE AND
 COLLECT A FEE OF ONE HUNDRED DOLLARS, WHICH SHALL BE PAID INTO THE STATE
 TREASURY AND WHICH SHALL, SO FAR AS IS NECESSARY, BE APPROPRIATED  ANNU
 ALLY  BY  THE  LEGISLATURE TO THE COMPTROLLER TO BE USED IN IMPLEMENTING
 THIS ARTICLE.
 

S 3.

Section 103 of the general municipal law is amended by  adding  a
 new subdivision 14 to read as follows:

 
       A. 3617                             3
 14.  EXCEPT AS OTHERWISE EXPRESSLY AUTHORIZED BY THIS ARTICLE, A POLI
 TICAL SUBDIVISION MAY NOT REQUIRE THAT BIDS CONFORM TO  UNDULY  RESTRIC
 TIVE  SPECIFICATIONS.  ALL  SPECIFICATIONS  SHALL  BE  DRAFTED  SO AS TO
 PROMOTE OVERALL ECONOMY FOR  THE  PURPOSES  INTENDED  AND  TO  ENCOURAGE
 COMPETITION  IN  SATISFYING  THE  NEEDS  OF THE POLITICAL SUBDIVISION. A
 BRAND NAME MAY BE USED AS A  SPECIFICATION  ONLY  IF  THE  SPECIFICATION
 CLEARLY  STATES THAT THE BRAND NAME OR EQUIVALENT IS ACCEPTABLE. WHERE A
 BRAND NAME OR EQUIVALENT SPECIFICATION IS USED IN  A  BID  SOLICITATION,
 THE  SOLICITATION  SHALL  CONTAIN EXPLANATORY LANGUAGE THAT THE USE OF A
 BRAND NAME IS FOR THE PURPOSE OF DESCRIBING  THE  STANDARD  OF  QUALITY,
 PERFORMANCE  AND CHARACTERISTICS DESIRED AND IS NOT INTENDED TO LIMIT OR
 RESTRICT COMPETITION. IN  ANY  OPINION,  PROCEEDING  OR  ACTION  BROUGHT
 PURSUANT  TO SECTION ONE HUNDRED THREE-G OF THIS ARTICLE, A BID SPECIFI
 CATION DEVELOPED AND PROVIDED BY THE OFFICE OF GENERAL SERVICES SHALL BE
 DEEMED VALID.
 

S 4. Subdivision 2 of section 103 of the  general  municipal  law,  as
 amended  by  section  5  of part X of chapter 62 of the laws of 2003, is
 amended to read as follows:

 2. Advertisement for bids shall be published in the official  newspa
 per  or  newspapers,  if  any, or otherwise in a newspaper or newspapers
 designated for such purpose. Such advertisement shall contain  a  state
 ment of the time when and place where all bids received pursuant to such
 notice  will  be  publicly  opened  and read, and the designation of the
 receiving device if the political subdivision or district has authorized
 the receipt of bids in an electronic format. Such board or agency may by
 resolution designate any officer or employee to open  the  bids  at  the
 time  and  place  specified  in  the  notice. Such designee shall make a
 record of such bids in such form and detail as the board or agency shall
 prescribe and present the same at the next regular or special meeting of
 such board or agency. All bids received shall  be  publicly  opened  and
 read  at  the  time and place so specified. ALL BIDS RECEIVED AND OPENED
 SHALL BE PUBLIC RECORDS AND SHALL BE AVAILABLE FOR PUBLIC INSPECTION AND
 COPYING. At least five days shall elapse between the  first  publication
 of  such  advertisement  and  the  date so specified for the opening and
 reading of bids.
 

S 5. Subdivision 2 of section 103 of the  general  municipal  law,  as
 amended  by  chapter  296  of  the  laws  of 1958, is amended to read as
 follows:

 2. Advertisement for bids shall be published in the official newspaper
 or newspapers, if any, or otherwise in a newspaper or newspapers  desig
 nated  for such purpose. Such advertisement shall contain a statement of
 the time when and place where all bids received pursuant to such  notice
 will be publicly opened and read. Such board or agency may by resolution
 designate any officer or employee to open the bids at the time and place
 specified  in the notice. Such designee shall make a record of such bids
 in such form and detail as the board or agency shall prescribe and pres
 ent the same at the next regular or special meeting  of  such  board  or
 agency.  All bids received shall be publicly opened and read at the time
 and place so specified. ALL BIDS RECEIVED AND  OPENED  SHALL  BE  PUBLIC
 RECORDS  AND  SHALL  BE  AVAILABLE FOR PUBLIC INSPECTION AND COPYING. At
 least five days shall elapse  between  the  first  publication  of  such
 advertisement  and  the date so specified for the opening and reading of
 bids.
 

S 6. Subparagraph 1 of paragraph (b) of subdivision 4 of section 35 of
 the general municipal law, as amended by chapter  692  of  the  laws  of
 1989, is amended to read as follows:

 
       A. 3617                             4
 (1)  Not  later  than  ninety days after presentation to the governing
 board of a report of examination performed by the office  of  the  state
 comptroller,  or  receipt  by  the  governing  board of any report of an
 external audit performed by an  independent  public  accountant  or  any
 management letter in conjunction with such an audit, the governing board
 may,  in  its  discretion,  provide  to the comptroller, and file in the
 office of the clerk, or with the secretary if there is no clerk, of  the
 municipal  corporation,  industrial development agency, district, agency
 or activity, a written response to the findings and recommendations,  if
 any, in the report or letter.  PROVIDED, HOWEVER, THAT IF SUCH REPORT OR
 LETTER  CONTAINS  A FINDING THAT THE COMPETITIVE BIDDING REQUIREMENTS OF
 SECTION ONE HUNDRED THREE OF THIS CHAPTER WERE VIOLATED,  THE  GOVERNING
 BOARD  MUST  FILE  A  WRITTEN  RESPONSE. In the case of municipal corpo
 rations, industrial development agency, districts,  agencies  or  activ
 ities subject to examination by the commissioner of education, any writ
 ten response shall also be provided to such commissioner.
 

S 7. The state finance law is amended by adding a new section 164-a to
 read as follows:

 

S  164-A. PROVIDING BID SPECIFICATIONS TO POLITICAL SUBDIVISIONS.  THE
 COMMISSIONER OF GENERAL SERVICES SHALL PROVIDE TO ANY POLITICAL SUBDIVI
 SION, AT NO CHARGE, ANY SPECIFICATION THAT THE COMMISSIONER  HAS  DEVEL
 OPED FOR ITEMS TO BE LET FOR BIDS IN PURCHASE CONTRACTS. THE COMMISSION
 ER MAY DEVELOP ADDITIONAL SPECIFICATIONS AT THE REQUEST OF ANY POLITICAL
 SUBDIVISION  AND MAY PROVIDE SUCH SPECIFICATIONS TO THE POLITICAL SUBDI
 VISION AND MAY CHARGE THE POLITICAL SUBDIVISION FOR THE COST OF DEVELOP
 ING SUCH SPECIFICATIONS.
 

S 8. If any clause, sentence, paragraph, section or part of  this  act
 shall  be adjudged by any court of competent jurisdiction to be invalid,
 such judgment shall not affect, impair or invalidate the remainder ther
 eof, but shall be confined in its operation  to  the  clause,  sentence,
 paragraph,  section or part thereof directly involved in the controversy
 in which such judgment shall have been rendered.
 

S 9. This act shall take effect on the first of January next  succeed
 ing the date on which it shall have become a law; provided, however, the
 amendments  to subdivision 2 of section 103 of the general municipal law
 made by section four of this act shall not  affect  the  expiration  and
 reversion  of such subdivision as provided in subdivision (a) of section
 41 of part X of chapter 62 of the laws of 2003, as  amended,  when  upon
 such date the provisions of section five of this act shall take effect.

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