Relates to reciprocity of debarments imposed under the federal Davis-Bacon Act; provides that any contractor who has been debarred from federal job sites for having disregarded obligations to employees under the Davis-Bacon Act shall also be debarred under the labor law from bidding on or being awarded similar contracts on public work job sites sponsored by the state or any of its political subdivisions; provides that the contractor may appeal such a determination to the department of labor; provides that whether or not a contractor is debarred under the Davis-Bacon Act will be considered in the selection of a lowest responsible bidder.
TITLE OF BILL: An act to amend the labor law and the general municipal law, in relation to reciprocity of debarments imposed under the federal Davis-Bacon Act
PURPOSE: The purpose of the bill is to ensure that those contractors who are debarred on the federal level under the Davis-Bacon Act for wage payment violations, are unable to bid on state public work contracts; this legislation would close a loophole in the existing law. Under the current law, contractors who have been debarred from federal job sites are considered on equal footing with law-abiding contractors. This bill would remedy this gross inequity by granting reciprocity to debarments imposed by the federal government on contractors who have violated the Davis-Bacon Act. New York courts have long settled that the right to bid on a public work contract is not a property right. This privilege to bid must be subject to certain restrictions, one of which should be the ability of the bidder to comply with certain prevailing wage provisions.
SUMMARY OF PROVISIONS:
Section 1 of the bill amends § 220-b of the Labor law so that any contractor who has been debarred from federal job sites for having disregarded obligations to employees under the Davis-Bacon Act shall also be debarred under the Labor Law from bidding on or being awarded similar contracts on public work job sites sponsored by the State or any of its political subdivisions. The contractor may appeal such determination to the Department of Labor (DOL).
Section 2 of the bill would add a new subdivision 1-c to section 103 of the general municipal law so that whether or not a contractor is debarred under the David-Bacon Act will be considered in the selection of a lowest responsible bidder. This provision will come into play in the case where a contractor has appealed to DOL and been removed from the state debarment list; the entity awarding the contract will still be able to consider the circumstances of the federal debarment.
Section 3 provides for an immediate effective date and that this shall just apply prospectively.
EXISTING LAW: As stated above, under the current law, contractors who have been debarred from federal job sites are considered on equal footing with law-abiding contractors.
JUSTIFICATION: Under Article 8 of the Labor Law, contractors or subcontractors who engage in a public work project sponsored by the State of New York or any of its political subdivisions are required to pay their laborers, workers and material men not less than the prevailing rate of wage.
Recent studies indicate that fraud in the construction industry in New York State has reached epidemic proportions. Dishonest contractors, in an effort to cut corners and save on labor costs, have engaged in a number of schemes to avoid paying workers the wage to which they are statutorily entitled. They include the kickback of wages, dual payrolls and cash-off-the books schemes.
Under the existing law, a contractor may he debarred from participation in public work projects if the Bureau of Public Works finds that the contractor has knowingly committed two violations of the prevailing wage law within a six-year period, or one violation relating to the falsification of payroll records or the kickback of wages or supplements. Debarments are also imposed when a person or corporation, or any officer or shareholder who owns or controls at least ten percent of the outstanding stock of such corporation has been convicted of any of an enumerated list of felonies for conduct relating to obtaining, performing or attempting to perform a public work contract with the state, any municipal corporation, public benefit corporation or public body. Its federal counterpart, the Davis-Bacon Act, imposes a similar penalty on contractors who are found to have disregarded their obligations to employees under federal wage-and-hour laws. At the present time, however, New York Labor Law fails to recognize debarments imposed by the United States Department of Labor. Working at a public work job site is a privilege, not a right. New Yorkers are entitled to expect the highest standard of integrity from contractors who bid on these projects.
Under this legislation, debarments would run while federal debarment is in effect and would apply prospectively.
LEGISLATIVE HISTORY: 2010 Session - New Bill 2011 Session - S. 5659-B referred to Labor Committee 2012 Session -S. 5659-C - advanced to Third read calendar and recommitted to Rules.
FISCAL IMPLICATIONS: None to State
LOCAL FISCAL IMPLICATIONS: None
EFFECTIVE DATE: Immediately and shall apply prospectively to all public works contracts.
STATE OF NEW YORK ________________________________________________________________________ 2860 2013-2014 Regular Sessions IN SENATE January 24, 2013 ___________Introduced by Sen. SAVINO -- read twice and ordered printed, and when printed to be committed to the Committee on Labor AN ACT to amend the labor law and the general municipal law, in relation to reciprocity of debarments imposed under the federal Davis-Bacon Act THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. Paragraph b of subdivision 3 of section 220-b of the labor law is amended by adding a new subparagraph 3 to read as follows: (3) WHEN ANY PERSON OR ENTITY IS DEBARRED FOR HAVING DISREGARDED OBLI- GATIONS TO EMPLOYEES UNDER THE DAVIS-BACON ACT PURSUANT TO 40 U.S.C. 3144 AND 29 C.F.R. 5.12, SUCH PERSON OR ENTITY, AND ANY FIRM, CORPO- RATION, PARTNERSHIP OR ASSOCIATION IN WHICH THE PERSON OR ENTITY OWNS OR CONTROLS AT LEAST TEN PER CENTUM, SHALL BE INELIGIBLE TO SUBMIT A BID ON OR BE AWARDED ANY PUBLIC WORKS CONTRACT WITH THE STATE, ANY MUNICIPAL CORPORATION, PUBLIC BENEFIT CORPORATION OR PUBLIC BODY WHILE THE NAME OF THE PERSON OR ENTITY IS PUBLISHED IN THE LIST OF DEBARRED CONTRACTORS PURSUANT TO 40 U.S.C. 3144. THE DEPARTMENT WILL NOTIFY THE PERSON OR ENTITY IMMEDIATELY OF SUCH INELIGIBILITY AND SUCH PERSON OR ENTITY MUST BE AFFORDED THE OPPORTUNITY TO APPEAL TO THE DEPARTMENT. S 2. Section 103 of the general municipal law is amended by adding a new subdivision 1-c to read as follows: 1-C. IN DETERMINING THE LOWEST RESPONSIBLE BIDDER, THE OFFICER, BOARD OR AGENCY OF ANY POLITICAL SUBDIVISION OR OF ANY DISTRICT THEREIN CHARGED WITH AWARDING OF CONTRACTS, SHALL CONSIDER WHETHER OR NOT THE BIDDER, OR A PERSON OR ENTITY WITH AN INTEREST OF AT LEAST TEN PER CENTUM IN THE BIDDER, IS DEBARRED FOR HAVING DISREGARDED OBLIGATIONS TO EMPLOYEES UNDER THE DAVIS-BACON ACT PURSUANT TO 40 U.S.C. 3144 AND 29 C.F.R. 5.12, IN MAKING SUCH DETERMINATION OF AWARD. S 3. This act shall take effect immediately and shall apply prospec- tively to all public work bids and contracts. It shall not apply retroactively to previously issued or existing public work contracts with the state, any municipal corporation, public benefit company or public body.EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD07996-01-3