Bill S293-2013

Provides for preference for certain N.Y. state domiciliaries in the awarding of contracts for public work

Provides that for public works contracts involving an expenditure of $20,000 or more and purchase contracts for $10,000 or more a responsible bidder who is a New York state resident, firm or corporation and who is within two percent of the bid of the lowest responsible bidder may be awarded the contract; provides that where two or more qualify according to such provisions, the contract is to be awarded to the lowest responsible bidder.

Details

Actions

  • Jan 8, 2014: REFERRED TO LOCAL GOVERNMENT
  • Jan 9, 2013: REFERRED TO LOCAL GOVERNMENT

Memo

BILL NUMBER:S293

TITLE OF BILL: An act to amend the general municipal law and the state finance law, in relation to granting preferences to New York state domiciliaries in the awarding of contracts for public work

PURPOSE OR GENERAL IDEA OF BILL: This legislation provides a preference to New York State contractors over non-resident contractors if the resident contractor submits a bid within 2% of the lowest responsible bid submitted by a non-resident contractor.

EFFECTS OF PRESENT LAW WHICH THIS BILL WOULD ALTER: This legislation amends subdivision 1 of section 103 of the general municipal law as amended by section 1 of chapter 2 of the laws of 2012.

JUSTIFICATION: During difficult financial times, the construction industry in New York state has suffered tremendously.

This proposal would give a preference to a responsible bidder· who is a New York State domiciliary if his/her bid is within 2% of the lowest responsible bidder. This preference, although it permits awarding of contracts to a "higher" bidder, would actually save the State money by creating jobs for New York residents, promoting our state construction industry, and supporting the overall economic growth within the state.

It is important that we first protect our families at home before we extend our means and support others. Our in- state contractors are an integral part of the New York State family and we must protect them.

LEGISLATIVE HISTORY: This bill has been previously introduced.

FISCAL IMPLICATIONS: This will have no direct fiscal impact on State appropriation or expenditures. The possible direct impact on State Revenues is speculative and, as such, is not measurable. To the extent this proposed legislation would result in the award of a contract that would not otherwise have been awarded to a New York State resident, firm, or corporation, there may be impacts. This legislation permits awarding contracts to New York bidders whose bids are 2% higher than foreign or out-of-state bidders. It could result in an increased tax base in the State, create jobs for New York residents and increase revenues for the company. It is not possible to calculate the actual impact this bill would have because the number of contracts and the dollar amount of the contract awards that would be affected are unknown. Further, if a contract is awarded to a New York State company that does not manufacture, produce, grow or construct the goods or services called for in the contract in New York State, impacts may exist but would be significantly reduced. A

different consequence of granting preferences to New York bidders could be that this practice may invite retaliation by other states resulting in a negative impact on New York companies.

Other states may choose not to contract with New York companies based on this preference; thus New York companies could lose business opportunities and potential revenues It is conceivable that the loss or revenues to New York businesses as a result of retaliatory measures of other states would outweigh the benefits to New York businesses in securing New York contracts for public work It is impossible to estimate the amount of revenue that would be gained or lost in this scenario, as all figures would be speculative.

EFFECTIVE DATE: This act shall take effect on the first of September next succeeding the date on which it shall have become a law; provided, however, that the amendments to subdivision 1 of section 103 of the general municipal law made by section one 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 two of this act shall take effect.


Text

STATE OF NEW YORK ________________________________________________________________________ 293 2013-2014 Regular Sessions IN SENATE (PREFILED) January 9, 2013 ___________
Introduced by Sen. STAVISKY -- read twice and ordered printed, and when printed to be committed to the Committee on Local Government AN ACT to amend the general municipal law and the state finance law, in relation to granting preferences to New York state domiciliaries in the awarding of contracts for public work THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. Subdivision 1 of section 103 of the general municipal law, as amended by section 1 of chapter 2 of the laws of 2012, is amended to read as follows: 1. Except as otherwise expressly provided by an act of the legislature or by a local law adopted prior to September first, nineteen hundred fifty-three, all contracts for public work involving an expenditure of more than thirty-five thousand dollars and all purchase contracts involving an expenditure of more than twenty thousand dollars, shall be awarded by the appropriate officer, board or agency of a political subdivision or of any district therein including but not limited to a soil conservation district to the lowest responsible bidder furnishing the required security after advertisement for sealed bids in the manner provided by this section, provided, however, that purchase contracts (including contracts for service work, but excluding any purchase contracts necessary for the completion of a public works contract pursu- ant to article eight of the labor law) may be awarded on the basis of best value, as defined in section one hundred sixty-three of the state finance law, to a responsive and responsible bidder or offerer in the manner provided by this section except that in a political subdivision other than a city with a population of one million inhabitants or more or any district, board or agency with jurisdiction exclusively therein the use of best value for awarding a purchase contract or purchase contracts must be authorized by local law or, in the case of a district
corporation, school district or board of cooperative educational services, by rule, regulation or resolution adopted at a public meeting. In any case where a responsible bidder's or responsible offerer's gross price is reducible by an allowance for the value of used machinery, equipment, apparatus or tools to be traded in by a political subdivi- sion, the gross price shall be reduced by the amount of such allowance, for the purpose of determining the best value. NOTWITHSTANDING THE FOREGOING, IN ANY CASE WHERE A RESPONSIBLE BIDDER WHO IS A NEW YORK STATE RESIDENT, FIRM OR CORPORATION AND WHO IS FURNISHING THE REQUIRED SECURITY IS FOUND BY SUCH OFFICER, BOARD OR AGENCY TO BE WITHIN TWO PERCENT OF THE BID OF THE LOWEST RESPONSIBLE BIDDER, SUCH OFFICER, BOARD OR AGENCY MAY PREFER SUCH RESPONSIBLE BIDDER OVER THE LOWEST RESPONSIBLE BIDDER AND AWARD THE CONTRACT TO SUCH RESPONSIBLE BIDDER; PROVIDED, HOWEVER, WHERE MORE THAN ONE RESPONSIBLE BIDDER QUALIFIES HEREUNDER, SUCH OFFICER, BOARD OR AGENCY SHALL AWARD THE CONTRACT TO SUCH QUALIFIED RESPONSIBLE BIDDER SUBMITTING THE LOWEST BID. In cases where two or more responsible bidders furnishing the required security submit identical bids as to price, such officer, board or agency may award the contract to any of such bidders. Such officer, board or agency may, in his or her or its discretion, reject all bids or offers and readvertise for new bids or offers in the manner provided by this section. In determining whether a purchase is an expenditure within the discretionary threshold amounts established by this subdivision, the officer, board or agency of a political subdivision or of any district therein shall consider the reasonably expected aggregate amount of all purchases of the same commodities, services or technology to be made within the twelve-month period commencing on the date of purchase. Purchases of commodities, services or technology shall not be artificially divided for the purpose of satisfying the discretionary buying thresholds established by this subdivision. A change to or a renewal of a discretionary purchase shall not be permitted if the change or renewal would bring the reasonably expected aggregate amount of all purchases of the same commodities, services or technology from the same provider within the twelve-month period commencing on the date of the first purchase to an amount greater than the discretionary buying threshold amount. For purposes of this section, "sealed bids" and "sealed offers", as that term applies to purchase contracts, (including contracts for service work, but excluding any purchase contracts necessary for the completion of a public works contract pursuant to article eight of the labor law) shall include bids and offers submitted in an electronic format including submission of the statement of non-collusion required by section one hundred three-d of this article, provided that the governing board of the political subdi- vision or district, by resolution, has authorized the receipt of bids and offers in such format. Submission in electronic format may, for technology contracts only, be required as the sole method for the submission of bids and offers. Bids and offers submitted in an electron- ic format shall be transmitted by bidders and offerers to the receiving device designated by the political subdivision or district. Any method used to receive electronic bids and offers shall comply with article three of the state technology law, and any rules and regulations promul- gated and guidelines developed thereunder and, at a minimum, must (a) document the time and date of receipt of each bid and offer received electronically; (b) authenticate the identity of the sender; (c) ensure the security of the information transmitted; and (d) ensure the confi- dentiality of the bid or offer until the time and date established for the opening of bids or offers. The timely submission of an electronic
bid or offer in compliance with instructions provided for such submission in the advertisement for bids or offers and/or the specifica- tions shall be the responsibility solely of each bidder or offerer or prospective bidder or offerer. No political subdivision or district therein shall incur any liability from delays of or interruptions in the receiving device designated for the submission and receipt of electronic bids and offers. S 2. Subdivision 1 of section 103 of the general municipal law, as amended by section 2 of chapter 2 of the laws of 2012, is amended to read as follows: 1. Except as otherwise expressly provided by an act of the legislature or by a local law adopted prior to September first, nineteen hundred fifty-three, all contracts for public work involving an expenditure of more than thirty-five thousand dollars and all purchase contracts involving an expenditure of more than twenty thousand dollars, shall be awarded by the appropriate officer, board or agency of a political subdivision or of any district therein including but not limited to a soil conservation district to the lowest responsible bidder furnishing the required security after advertisement for sealed bids in the manner provided by this section, provided, however, that purchase contracts (including contracts for service work, but excluding any purchase contracts necessary for the completion of a public works contract pursu- ant to article eight of the labor law) may be awarded on the basis of best value, as defined in section one hundred sixty-three of the state finance law, to a responsive and responsible bidder or offerer in the manner provided by this section except that in a political subdivision other than a city with a population of one million inhabitants or more or any district, board or agency with jurisdiction exclusively therein the use of best value of awarding a purchase contract or purchase contracts must be authorized by local law or, in the case of a district corporation, school district or board of cooperative educational services, by rule, regulation or resolution adopted at a public meeting. In determining whether a purchase is an expenditure within the discre- tionary threshold amounts established by this subdivision, the officer, board or agency of a political subdivision or of any district therein shall consider the reasonably expected aggregate amount of all purchases of the same commodities, services or technology to be made within the twelve-month period commencing on the date of purchase. Purchases of commodities, services or technology shall not be artificially divided for the purpose of satisfying the discretionary buying thresholds estab- lished by this subdivision. A change to or a renewal of a discretionary purchase shall not be permitted if the change or renewal would bring the reasonably expected aggregate amount of all purchases of the same commodities, services or technology from the same provider within the twelve-month period commencing on the date of the first purchase to an amount greater than the discretionary buying threshold amount. In any case where a responsible bidder's or responsible offerer's gross price is reducible by an allowance for the value of used machinery, equipment, apparatus or tools to be traded in by a political subdivision, the gross price shall be reduced by the amount of such allowance, for the purpose of determining the low bid or best value. NOTWITHSTANDING THE FOREGO- ING, IN ANY CASE WHERE A RESPONSIBLE BIDDER WHO IS A NEW YORK STATE RESIDENT, FIRM OR CORPORATION AND WHO IS FURNISHING THE REQUIRED SECURI- TY IS FOUND BY SUCH OFFICER, BOARD OR AGENCY TO BE WITHIN TWO PERCENT OF THE BID OF THE LOWEST RESPONSIBLE BIDDER, SUCH OFFICER, BOARD OR AGENCY MAY PREFER SUCH RESPONSIBLE BIDDER OVER THE LOWEST RESPONSIBLE BIDDER
AND AWARD THE CONTRACT TO SUCH RESPONSIBLE BIDDER; PROVIDED, HOWEVER, WHERE MORE THAN ONE RESPONSIBLE BIDDER QUALIFIES HEREUNDER, SUCH OFFI- CER, BOARD OR AGENCY SHALL AWARD THE CONTRACT TO SUCH QUALIFIED RESPON- SIBLE BIDDER SUBMITTING THE LOWEST BID. In cases where two or more responsible bidders furnishing the required security submit identical bids as to price, such officer, board or agency may award the contract to any of such bidders. Such officer, board or agency may, in his, her or its discretion, reject all bids or offers and readvertise for new bids or offers in the manner provided by this section. S 3. Section 135 of the state finance law is amended by adding a new closing paragraph to read as follows: NOTWITHSTANDING ANY OTHER PROVISION OF LAW, WHENEVER THE LOWEST RESPONSIBLE BIDDER IS A FOREIGN OR OUT-OF-STATE INDIVIDUAL, FIRM OR CORPORATION AND AT LEAST ONE NEW YORK STATE RESIDENT, FIRM OR CORPO- RATION HAS SUBMITTED A RESPONSIBLE BID WHICH IS WITHIN TWO PERCENT OF THE LOWEST RESPONSIBLE BID, THE CONTRACT MAY BE AWARDED TO THE LOWEST RESPONSIBLE BIDDER WHO IS A NEW YORK STATE RESIDENT, FIRM OR CORPO- RATION; PROVIDED, HOWEVER, WHERE MORE THAN ONE RESPONSIBLE BIDDER QUALI- FIES HEREUNDER, SUCH OFFICER, BOARD OR AGENCY SHALL AWARD THE CONTRACT TO SUCH QUALIFIED RESPONSIBLE BIDDER SUBMITTING THE LOWEST BID. S 4. This act shall take effect on the first of September next succeeding the date on which it shall have become a law; provided, however, that the amendments to subdivision 1 of section 103 of the general municipal law made by section one of this act shall not affect the expiration and reversion of such subdivision as provided in subdivi- sion (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 two of this act shall take effect.

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