Requires public contracts to include clauses authorizing contractors to recover damages for delay which are caused by acts or omissions by the public owner, as otherwise permitted by law, and requires the contractor, when submitting a claim, to certify that the supporting data is accurate to the best of his or her knowledge and the amount of the claim he or she believes to be the public owner's liability.
Ayes (56): Adams, Addabbo, Alesi, Ball, Bonacic, Breslin, Carlucci, DeFrancisco, Diaz, Dilan, Duane, Espaillat, Farley, Flanagan, Fuschillo, Gallivan, Gianaris, Golden, Griffo, Grisanti, Hannon, Hassell-Thomps, Huntley, Johnson, Kennedy, Klein, Kruger, Lanza, Larkin, LaValle, Libous, Little, Marcellino, Martins, Maziarz, McDonald, Montgomery, Nozzolio, O'Mara, Oppenheimer, Parker, Perkins, Ranzenhofer, Ritchie, Robach, Sampson, Savino, Serrano, Seward, Skelos, Smith, Squadron, Stewart-Cousin, Valesky, Young, Zeldin
Nays (6): Avella, Krueger, Peralta, Rivera, Saland, Stavisky
Ayes (21): DeFrancisco, Alesi, Bonacic, Farley, Flanagan, Fuschillo, Golden, Griffo, Lanza, Larkin, LaValle, Little, Marcellino, Nozzolio, Robach, Seward, Young, Diaz, Dilan, Gianaris, Oppenheimer
Ayes W/R (9): Johnson, Hannon, Saland, Breslin, Duane, Kruger, Peralta, Perkins, Stewart-Cousins
Nays (4): Krueger, Parker, Rivera, Stavisky
Excused (1): Montgomery
Ayes (22): DeFrancisco, Johnson, Alesi, Bonacic, Farley, Flanagan, Fuschillo, Golden, Griffo, Lanza, Larkin, LaValle, Little, Marcellino, Nozzolio, Robach, Saland, Seward, Young, Diaz, Duane, Gianaris
Ayes W/R (5): Hannon, Breslin, Dilan, Stewart-Cousins, Squadron
Nays (7): Krueger, Montgomery, Parker, Peralta, Perkins, Rivera, Stavisky
Excused (1): Oppenheimer
TITLE OF BILL: An act to amend the state finance law, in relation to damages for delay clauses in public contracts
PURPOSE: Requires all public contracts to include a clause authorizing contractors to recover damages for delay
SUMMARY OF PROVISIONS: Section 1 of this bill amends the State Finance Law by adding a new section 138-b which would provide that all public works contracts include provisions that a contractor, subcontractor, or materialman may seek recovery for unanticipated costs due to inexcusable delays which are the result of actions or omissions by a public contractor. The act or omission must be within the scope of their responsibility or control.
JUSTIFICATION: Current case law in New York State follows KALISCH-JARCHO, INC. V. CITY OF NEW YORK (578 NY 2nd 377), which allows a contractor to recover damages for such delay caused by an owner only where the owner acted in bad faith and with deliberate intent. In fact, the burden of proof to establish bad faith and deliberate intent makes it unlikely that contractors would be able to recover damages for delay.
Several public agencies (NYS OGS, DOT and the MTA) have already recognized the unfairness of this restriction and have provided in their public contracts for a more equitable allowance for damages for delays resulting from public agency action.
In 1998, the Governor vetoed S.6711-B, a proposal to achieve the same relief sought by this legislation. In his veto message (see Veto Message 1404), the Governor stated that he was sympathetic to the concept and that the policies of NYS OGS and DOT were already directed to address the needs sought here. This bill addresses the issues raised by the Governor and clarifies liability for damages where actions or omissions of a public agency are directly associated with the damages incurred by a covered contractor.
LEGISLATIVE HISTORY: 2010: Referred to Finance 2008: Rules 2007: Passed Senate 2006: Passed Senate 2005: Passed Senate 2004: Rules 2003: Finance 1998: (Veto 1404)
FISCAL IMPLICATIONS: Unknown.
EFFECTIVE DATE: 180 days after enactment.
STATE OF NEW YORK ________________________________________________________________________ 2465 2011-2012 Regular Sessions IN SENATE January 21, 2011 ___________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. LBD07298-01-1 S. 2465 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.