S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  1479

                       2015-2016 Regular Sessions

                            I N  S E N A T E

                            January 12, 2015
                               ___________

Introduced  by  Sen.  LIBOUS -- read twice and ordered printed, and when
  printed to be committed to the Committee on Finance

AN ACT to amend the state finance law, in relation to damages for  delay
  clauses in public contracts

  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
138-b to read as follows:
  S  138-B.  DAMAGES  FOR  DELAY IN PUBLIC CONTRACTS.  1.  ALL CONTRACTS
MADE AND AWARDED BY THE STATE,  ANY  STATE  AGENCY,  PUBLIC  DEPARTMENT,
MUNICIPAL  CORPORATION, PUBLIC BENEFIT CORPORATION, SCHOOL DISTRICT OR A
COMMISSION APPOINTED PURSUANT TO LAW (HEREINAFTER REFERRED  TO  IN  THIS
SECTION  AS  A "PUBLIC OWNER") FOR DESIGN, CONSTRUCTION, RECONSTRUCTION,
DEMOLITION, ALTERATION, REPAIR OR IMPROVEMENT OF ANY PUBLIC WORKS  SHALL
CONTAIN  A CLAUSE WHICH ALLOWS A CONTRACTOR TO MAKE CLAIM FOR ADDITIONAL
COSTS FROM CAUSES LISTED BELOW, ATTRIBUTABLE TO DELAY IN THE PERFORMANCE
OF THIS CONTRACT, OCCASIONED BY ANY ACT OR OMISSION TO ACT BY THE PUBLIC
OWNER OR ANY OF ITS REPRESENTATIVES.
  (A) THE FAILURE OF THE PUBLIC OWNER TO  TAKE  REASONABLE  MEASURES  TO
COORDINATE AND PROGRESS THE WORK.
  (B)  EXTENDED DELAYS ATTRIBUTABLE TO THE PUBLIC OWNER IN THE REVIEW OR
ISSUANCE OF ORDERS-ON-CONTRACT OR FIELD ORDERS, IN SHOP DRAWING  REVIEWS
OR  APPROVALS OR AS A RESULT OF THE CUMULATIVE IMPACT OF MULTIPLE ORDERS
ON CONTRACT, WHICH CONSTITUTE A QUALITATIVE CHANGE TO THE  PROJECT  WORK
AND WHICH HAVE A VERIFIABLE IMPACT ON PROJECT COSTS.
  (C) THE UNAVAILABILITY OF THE SITE FOR SUCH AN EXTENDED PERIOD OF TIME
WHICH SIGNIFICANTLY AFFECTS THE SCHEDULED COMPLETION OF THE CONTRACT.
  (D)  THE ISSUANCE BY THE PUBLIC OWNER OF A STOP WORK ORDER RELATIVE TO
A SUBSTANTIAL PORTION OF WORK FOR A PERIOD EXCEEDING THIRTY DAYS.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD07155-01-5

S. 1479                             2
              

  2. WHEN SUBMITTING ANY  SUCH  CLAIM  AGAINST  THE  PUBLIC  OWNER,  THE
CONTRACTOR, FOR ITSELF AND/OR ON BEHALF OF ANY CLAIMING SUBCONTRACTOR OR
MATERIALMAN, SHALL CERTIFY IN WRITING AND UNDER OATH:
  (A)  THAT THE SUPPORTING DATA IS ACCURATE AND COMPLETE TO THE CONTRAC-
TOR'S BEST KNOWLEDGE OR BELIEF, AND THAT OF ANY  CLAIMING  SUBCONTRACTOR
OR MATERIALMAN; AND
  (B)  THAT THE AMOUNT OF THE CLAIM ITSELF REFLECTS WHAT THE CONTRACTOR,
SUBCONTRACTOR AND/OR MATERIALMAN IN GOOD FAITH BELIEVE TO BE THE  PUBLIC
OWNER'S LIABILITY.
  S 2. This act shall take effect on the one hundred eightieth day after
it shall have become a law.

                            
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                 1479--A
    Cal. No. 401

                       2015-2016 Regular Sessions

                            I N  S E N A T E

                            January 12, 2015
                               ___________

Introduced  by  Sen.  LIBOUS -- read twice and ordered printed, and when
  printed to be committed to the Committee on Finance -- reported favor-
  ably from said committee, ordered to first and second report,  ordered
  to a third reading, amended and ordered reprinted, retaining its place
  in the order of third reading

AN  ACT  to amend the general obligations law, in relation to damages to
  contracts occasioned by delay

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section  1.  Article  5  of  the general obligations law is amended by
adding a new title 18 to read as follows:
                                TITLE 18
                       DAMAGES OCCASIONED BY DELAY
SECTION 5-1801. DEFINITIONS.
        5-1802. DAMAGES FOR DELAY IN CONTRACTS.
        5-1803. NOTICE OF CLAIM.
        5-1804. FAILURE TO PROGRESS.
        5-1805. CONTENT OF CLAIM.
        5-1806. CERTIFICATION OF CLAIM.
  S 5-1801. DEFINITIONS. FOR PURPOSES OF THIS TITLE THE FOLLOWING  TERMS
SHALL HAVE THE FOLLOWING MEANINGS:
  1.  "CONTRACT" SHALL MEAN ANY CONTRACT AWARDED BY THE STATE, ANY STATE
AGENCY, DEPARTMENT, BOARD, BUREAU, MUNICIPAL CORPORATION, PUBLIC BENEFIT
CORPORATION, PUBLIC AUTHORITY OR ANY  OTHER  STATE  ENTITY,  ANY  SCHOOL
DISTRICT  OR  ANY  OTHER SPECIAL DISTRICT, OR ANY INSTRUMENTALITY OF THE
STATE OR A POLITICAL SUBDIVISION OF THE  STATE,  OR  ANY  OTHER  PERSON,
PARTNERSHIP, CORPORATION OR ENTITY WHICH ENTERS INTO A PUBLIC OR PRIVATE
CONTRACT  FOR  DESIGN,  CONSTRUCTION, RECONSTRUCTION, DEMOLITION, ALTER-
ATION, REPAIR OR IMPROVEMENT TO THE PROPERTY OF ANOTHER.
  2. "DELAY" SHALL MEAN ANY DELAY IN THE  PERFORMANCE  OF  THE  CONTRACT
WHICH  CAUSES  DAMAGES  TO BE INCURRED BY A CONTRACTOR, SUBCONTRACTOR OR

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
              

                                                           LBD07155-02-5

S. 1479--A                          2

MATERIALMAN TO A CONTRACT AND WHICH IS A DIRECT  RESULT  OF  THE  NEGLI-
GENCE,  MALFEASANCE,  MISFEASANCE  OF  THE PERSON OR ENTITY FOR WHOM THE
CONTRACTOR,  SUBCONTRACTOR  OR  MATERIALMAN  IS  PROVIDING  SERVICES  AS
PROVIDED  FOR  IN THE CONTRACT, OR ANY DISRUPTION, INTERFERENCE, INEFFI-
CIENCIES, IMPEDANCE, HINDRANCE AND ACCELERATION CAUSING  DAMAGES  TO  BE
SIMILARLY INCURRED BY SUCH PERSON OR ENTITY.
  3.  "CLAIM" SHALL MEAN A REQUEST FOR ADDITIONAL COSTS FROM THE FOLLOW-
ING CAUSES ATTRIBUTABLE TO DELAY IN THE PERFORMANCE OF A CONTRACT, OCCA-
SIONED BY ANY ACT OR OMISSION TO ACT BY THE PUBLIC OR PRIVATE PERSON  OR
ENTITY   WITH  WHOM  A  CONTRACTOR,  SUBCONTRACTOR  OF  MATERIALMAN  HAS
CONTRACTED WITH, BUT SHALL NOT INCLUDE DELAY FROM ANY OTHER CAUSE, WHICH
DELAY SHALL BE COMPENSATED  FOR  SOLELY  BY  AN  EXTENSION  OF  TIME  TO
COMPLETE THE PERFORMANCE OF THE WORK:
  (A)  THE  FAILURE  OF  THE  PUBLIC OR PRIVATE PERSON OR ENTITY TO TAKE
REASONABLE MEASURES TO COORDINATE AND PROGRESS THE WORK;
  (B) EXTENDED DELAYS ATTRIBUTABLE TO THE PUBLIC OR  PRIVATE  PERSON  OR
ENTITY  IN THE REVIEW OR ISSUANCE OF ORDERS-ON-CONTRACT OR FIELD ORDERS,
IN SHOP DRAWING REVIEWS AND APPROVALS OR AS A RESULT OF  THE  CUMULATIVE
IMPACT  OF  MULTIPLE  ORDERS ON CONTRACT, WHICH CONSTITUTE A QUALITATIVE
CHANGE TO THE PROJECT WORK AND WHICH HAVE A VERIFIABLE IMPACT ON PROJECT
COSTS;
  (C) THE UNAVAILABILITY OF THE SITE FOR SUCH AN EXTENDED PERIOD OF TIME
WHICH SIGNIFICANTLY AFFECT THE SCHEDULED COMPLETION OF THE CONTRACT; OR
  (D) THE ISSUANCE OF A  STOP  WORK  ORDER  RELATIVE  TO  A  SUBSTANTIAL
PORTION OF WORK FOR A PERIOD EXCEEDING THIRTY DAYS.
  S  5-1802.  DAMAGES  FOR  DELAY  IN  CONTRACTS. ALL CONTRACTS MADE AND
AWARDED SHALL CONTAIN A CLAUSE WHICH ALLOWS A CONTRACTOR,  SUBCONTRACTOR
OR  MATERIALMAN  TO MAKE A CLAIM FOR ADDITIONAL COSTS ARISING FROM DELAY
IF SUCH DELAY IN THE PERFORMANCE OF THE CONTRACT IS CAUSED BY  OR  OCCA-
SIONED  BY  ANY  ACT  OR OMISSION OF THE ENTITY OR PERSON WITH WHOM THEY
HAVE CONTRACTED IN THE CONTRACT, OR ANY OF  SUCH  ENTITY'S  OR  PERSON'S
REPRESENTATIVES OR AGENTS.
  S  5-1803. NOTICE OF CLAIM. THE CONTRACTOR, SUBCONTRACTOR OR MATERIAL-
MAN SHALL PROVIDE A NOTICE OF CLAIM OF AN ANTICIPATED CLAIM FOR DELAY TO
A PUBLIC OR PRIVATE PERSON OR ENTITY BY PERSONAL  SERVICE  OR  CERTIFIED
MAIL  NO  MORE  THAN FIFTEEN DAYS AFTER SUCH CONTRACTOR KNEW OR OUGHT TO
HAVE KNOWN OF THE FACTS WHICH FORM THE BASIS OF THE CLAIM. THE PUBLIC OR
PRIVATE PERSON OR ENTITY SHALL ACKNOWLEDGE RECEIPT  OF  THE  NOTICE,  IN
WRITING,  WITHIN  FIVE DAYS. NO PUBLIC OR PRIVATE PERSON OR ENTITY SHALL
INCUR ANY LIABILITY FOR ANY DAMAGES WHICH ACCRUE MORE THAN FIFTEEN  DAYS
PRIOR  TO  THE  DELIVERY  OR MAILING OF THE REQUIRED NOTICE. SUCH NOTICE
SHALL AT A MINIMUM PROVIDE A DESCRIPTION OF ANY  OPERATIONS  THAT  WERE,
ARE  BEING OR WILL BE DELAYED, AND THE DATE OR DATES AND REASONS FOR THE
DELAY. IN NO CASE SHALL ORAL NOTICE CONSTITUTE NOTICE PURSUANT  TO  THIS
SECTION  OR  BE  DEEMED  TO  CONSTITUTE  A  WAIVER OF THE WRITTEN NOTICE
REQUIREMENT.
  S 5-1804. FAILURE TO PROGRESS. FAILURE BY A CONTRACTOR  TO  ADEQUATELY
PROGRESS  THE  COMPLETION OF WORK SHALL BE CONSIDERED IN DETERMINING THE
CAUSES OF DELAY. FOR ANY CLAIM ASSERTED  PURSUANT  TO  THIS  TITLE,  THE
CONTRACTOR,  SUBCONTRACTOR  OR  MATERIALMAN  SHALL KEEP DETAILED WRITTEN
RECORDS OF THE COSTS AND SHALL MAKE THEM AVAILABLE FOR THE  PURPOSES  OF
AUDIT  AND  REVIEW. FAILURE TO PROVIDE THE REQUIRED WRITTEN NOTICE OR TO
MAINTAIN AND FURNISH RECORDS OF THE COSTS OF SUCH CLAIMS  SHALL  CONSTI-
TUTE A WAIVER OF THE CLAIM.

S. 1479--A                          3

  S  5-1805.  CONTENT  OF  CLAIM.  THE  FOLLOWING  INFORMATION  SHALL BE
PROVIDED BY THE CONTRACTOR UPON REQUEST OF A PUBLIC OR PRIVATE PERSON OR
ENTITY IF NOT PREVIOUSLY SUPPLIED:
  (A) A DESCRIPTION OF THE OPERATIONS THAT WERE DELAYED, THE REASONS FOR
THE DELAY AND AN EXPLANATION OF HOW THEY WERE DELAYED;
  (B)  A DETAILED FACTUAL STATEMENT OF THE CLAIM PROVIDING ALL NECESSARY
DATES, LOCATIONS AND ITEMS OF WORK AFFECTED BY THE CLAIM;
  (C) THE DATE ON WHICH ACTIONS  RESULTING  IN  THE  CLAIM  OCCURRED  OR
CONDITIONS RESULTING IN THE CLAIM BECAME EVIDENT;
  (D)  THE  NAMES,  FUNCTIONS AND ACTIVITIES OF EACH CONTRACTOR, SUBCON-
TRACTOR AND MATERIALMAN INVOLVED IN, OR KNOWLEDGEABLE ABOUT  FACTS  THAT
GAVE RISE TO SUCH CLAIM;
  (E)  THE  IDENTIFICATION OF ANY PERTINENT DOCUMENTS, AND THE SUBSTANCE
OF ANY MATERIAL ORAL COMMUNICATION RELATING TO SUCH CLAIM;
  (F) THE AMOUNT OF ADDITIONAL COMPENSATION SOUGHT; AND
  (G) IF AN EXTENSION OF TIME IS ALSO REQUESTED, THE SPECIFIC NUMBER  OF
DAYS FOR WHICH IT IS SOUGHT AND THE BASIS FOR SUCH REQUEST AS DETERMINED
BY AN ANALYSIS OF THE CONSTRUCTION PROGRESS SCHEDULE.
  S  5-1806.  CERTIFICATION  OF  CLAIM.  WHEN  SUBMITTING ANY CLAIM, THE
CONTRACTOR, SUBCONTRACTOR OR MATERIALMAN SHALL CERTIFY  IN  WRITING  AND
UNDER  OATH  THAT THE SUPPORTING DATA IS ACCURATE AND COMPLETE TO HIS OR
HER BEST KNOWLEDGE OR BELIEF, AND THAT ANY AMOUNT DEMANDED REFLECTS,  IN
GOOD FAITH, WHAT HE OR SHE BELIEVES TO BE THE PUBLIC OR PRIVATE PERSON'S
OR ENTITY'S LIABILITY.
  S 2. This act shall take effect on the one hundred eightieth day after
the  date  upon  which it shall have become a law and shall apply to all
contracts entered into on and after such date.