This bill has been amended

Bill S3564-2013

Relates to labor performed under certain public work contracts

Relates to labor performed under certain public work contracts; defines "job order contract" as certain competitive bid, indefinite quantity, fixed price, multi-task contracts; provides that such contracts shall have a defined scope of work and detailed description of such work; provides that such information shall be filed with the fiscal officer before soliciting for bids; provides that the cost of a job order contract may not exceed $500,000.

Details

Actions

  • Feb 27, 2013: REPORTED AND COMMITTED TO FINANCE
  • Feb 5, 2013: REFERRED TO LABOR

Meetings

Votes

VOTE: COMMITTEE VOTE: - Labor - Feb 27, 2013
Ayes (8): Savino, DeFrancisco, Robach, Peralta, Addabbo, Dilan, Perkins, Sanders
Ayes W/R (7): Gallivan, Grisanti, Hannon, Marcellino, Marchione, Martins, Rivera
Absent (1): Ball

Memo

BILL NUMBER:S3564

TITLE OF BILL: An act to amend the labor law, the state finance law and the general municipal law, in relation to labor performed under certain public work contracts

PURPOSE OR GENERAL IDEA OF BILL: To regulate the practice of job order contracting in relation to public work projects.

SUMMARY OF SPECIFIC PROVISIONS:

Section 1: Amends subdivision 5 of section 220 of the Labor Law by adding a new paragraph m which defines the term "job order contract" and requires that such contracts be filed with the Department of Labor and expressly state that all work performed under the contract applies to section 220 of the Labor Law.

Section 2: Amends the State Finance Law by adding a new section 148 which specifies requirements and limitations on job order contracts. Certain requirements will be removed if the public owner requires inclusion of a project labor agreement to ensure that proper wages and classifications are utilized under the contract.

Section 3: Amends the General Municipal Law by adding a new section 103-h which specifies requirements and limitations on job order contracts. Certain requirements will be removed if the public owner requires inclusion of a project labor agreement to ensure that proper wages and classifications are utilized under the contract.

Section 4: Effective date.

EXISTING LAW: Currently there is no provision of New York State Law that specifically mentions job order contracting.

JUSTIFICATION: A job order contract ("JOC") is an indefinite quantity contract for the-performance of construction, renovation, alteration and repair tasks. A 30C is generally a multi-year contract that includes a base year with multiple renewal options. A contractor bidding for a JOC does not submit a fixed dollar figure as a contract. Rather, a contractor submits an adjustment factor, known as a "multiplier," which is a percentage above or below prices for tasks that are set forth in a unit price book. For example, a bid of 1.25 indicates that the bidder would perform work at 125% of the price for each task in the unit price book that the bidder performs. The bidder who submits the lowest "multiplier" is awarded the JOC. The bidders are bidding on a range of tasks that may or may not be performed over the course of the contract.

Because of the indefinite nature of these contracts, many contractors are unable to bid on such a complicated process. Those that do submit bids, do not know the specifics of the work they will perform and, therefore, cannot properly ascertain how much the project will cost

them. If the unit bid is too low and they turn out to be underpaid, cost-saving measures could become necessary; corners might be cut on these projects which would negate the very purpose of public work.

It is has been wall founded by New York courts that imprecise bid specifications violate the competitive bidding law because they frustrate bidders' ability to set the lowest possible bid and discourage persons from bidding (Matter of Sagamore Auto Body v. County of Nassau, 104 AD. 2d 818, 821, 2nd Dept 1964).

Job order contracting is traditionally appropriate for small construction projects and this legislation would properly regulate the practice as such.

PRIOR LEGISLATIVE HISTORY: S.5149-F of 2012: Passed Senate, Died in Assembly Codes S.5149-B of 2011: Died on Senate Floor Calendar

FISCAL IMPLICATIONS: Because this legislation would allow for the continuing procurement of all job order contracting so long as the public owner meets certain standards in the bidding process, the sponsor does not anticipate a fiscal impact beyond increased revenue from violations of the prevailing wage laws that will be easier to ascertain based on the reporting requirements in this bill.

EFFECTIVE DATE: This act shall take effect immediately and apply to all job order contracts solicited or renewed on or after such effective date.


Text

STATE OF NEW YORK ________________________________________________________________________ 3564 2013-2014 Regular Sessions IN SENATE February 5, 2013 ___________
Introduced by Sens. BONACIC, ADDABBO -- read twice and ordered printed, and when printed to be committed to the Committee on Labor AN ACT to amend the labor law, the state finance law and the general municipal law, in relation to labor performed under certain public work contracts THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. Subdivision 5 of section 220 of the labor law is amended by adding a new paragraph m to read as follows: M. "JOB ORDER CONTRACT" SHALL MEAN A COMPETITIVE BID, INDEFINITE QUAN- TITY, FIXED PRICE, MULTI-TASK CONTRACT, WHERE A BASE CONTRACT IS AWARDED WITH PRE-ESTABLISHED TASKS AND PRICES, SPECIFICATIONS AND GENERAL CONTRACT CONDITIONS. CONTRACTORS ARE PERMITTED TO BID BY SUBMITTING A COEFFICIENT OR COEFFICIENTS FOR A JOB ORDER CONTRACT BASED ON A UNIT PRICE BOOK, WHICH CONTAINS A LIST OF ALL TASKS THAT MAY BE PERFORMED AS PART OF THE WORK TO BE PERFORMED UNDER THE BASE CONTRACT. SUCH CONTRACTS MUST BE FILED WITH THE COMMISSIONER BY THE DEPARTMENT OF JURISDICTION AND MUST EXPRESSLY STATE THAT ALL WORK PERFORMED UNDER SUCH CONTRACT IS PURSUANT TO THIS SECTION. S 2. The state finance law is amended by adding a new section 148 to read as follows: S 148. JOB ORDER CONTRACTS. 1. "JOB ORDER CONTRACT", SHALL HAVE THE SAME MEANING AS SET FORTH IN PARAGRAPH M OF SUBDIVISION FIVE OF SECTION TWO HUNDRED TWENTY OF THE LABOR LAW. 2. THE JOB ORDER CONTRACT MUST HAVE A DEFINED SCOPE OF WORK, WHICH INCLUDES: A. A LIMITATION TO ONE OF THE GEOGRAPHIC REGIONS COMMONLY REFERRED TO AS THE CAPITAL DISTRICT, MOHAWK VALLEY, HUDSON VALLEY, CENTRAL NEW YORK, FINGER LAKES, WESTERN NEW YORK, SOUTHERN TIER, NORTH COUNTRY, LONG ISLAND OR NEW YORK CITY;
B. IDENTIFICATION OF TRADES RELEVANT FOR THE SPECIFIC SCOPE OF WORK TO BE PERFORMED, INCLUDING BUT NOT LIMITED TO: (I) BASIC TRADES, INCLUDING CARPENTERS, LABORERS AND BRICKLAYERS, (II) PLUMBING AND GAS FITTING, (III) STEAM HEATING, HOT WATER HEATING, VENTILATING AND AIR CONDITION- ING APPARATUS, (IV) ELECTRIC WIRING AND STANDARD ILLUMINATING FIXTURES, (V) ROOFING, (VI) WELDING, (VII) IRONWORK, (VIII) CONCRETE FINISHING, OR (IX) PAINTING AND PLASTERING; AND C. A DETAILED DESCRIPTION OF THE WORK TO BE PERFORMED UNDER THE BASE CONTRACT, A LIST OF THE TASKS NECESSARY TO COMPLETE THE WORK TO BE PERFORMED UNDER THE BASE CONTRACT AND THE TRADE CLASSIFICATIONS OF THE WORKERS, MECHANICS AND LABORERS WHO WILL PERFORM EACH OF THE LISTED TASKS IN THE BASE CONTRACT. 3. THE DEFINED SCOPE OF WORK TO BE PERFORMED UNDER THE BASE CONTRACT MUST NOT BE OVERLY BROAD SO AS TO PREVENT THE CONTRACTOR FROM MAKING AN INFORMED BID DURING THE COMPETITIVE BID PROCESS. THE CONTRACTING ENTITY MUST LIMIT THE WORK TO BE PERFORMED UNDER THE BASE CONTRACT TO THOSE PRE-ESTABLISHED TASKS AND PRICES REFERRED TO IN THE GENERAL CONTRACT CONDITIONS. 4. BEFORE SOLICITING BIDS FOR THE BASE CONTRACT, THE CONTRACTING ENTI- TY SHALL FILE ALL INFORMATION REQUIRED BY SUBPARAGRAPH (I) OF PARAGRAPH A OF SUBDIVISION THREE-A OF SECTION TWO HUNDRED TWENTY OF THE LABOR LAW WITH THE FISCAL OFFICER. THE CONTRACTING ENTITY MAY NOT SOLICIT BIDS FOR THE CONTRACT UNTIL ALL REQUIREMENTS OF SUBPARAGRAPH (I) OF PARAGRAPH A OF SUBDIVISION THREE-A OF SECTION TWO HUNDRED TWENTY OF THE LABOR LAW HAVE BEEN SATISFIED. 5. THE COST OF A JOB ORDER CONTRACT MAY NOT EXCEED FIVE HUNDRED THOU- SAND DOLLARS. SUCH CONTRACT IS LIMITED TO ONE YEAR AND MAY BE RENEWED FOR AN ADDITIONAL TWELVE MONTHS TWICE SO LONG AS THE FIVE HUNDRED THOU- SAND DOLLAR THRESHOLD HAS NOT BEEN REACHED. IT IS IMPERMISSIBLE TO SUBDIVIDE A CONTRACT INTO SEPARATE CONTRACTS IN ORDER TO MEET THE REQUIREMENTS OF THIS SUBDIVISION. THE RESTRICTIONS IN THIS SUBDIVISION SHALL NOT APPLY WHERE THE PUBLIC OWNER REQUIRES A PROJECT LABOR AGREE- MENT CONSISTENT WITH PROVISIONS OF SECTION TWO HUNDRED TWENTY-TWO OF THE LABOR LAW. 6. THE JOB ORDER CONTRACT AND ALL SUBCONTRACTS ASSOCIATED WITH SUCH JOB ORDER CONTRACT MUST EXPRESSLY STATE THAT ALL WORK PERFORMED UNDER SUCH CONTRACTS IS PURSUANT TO SECTION TWO HUNDRED TWENTY OF THE LABOR LAW. 7. THESE REQUIREMENTS APPLY TO ALL JOB ORDER CONTRACTS ISSUED BY A STATE AGENCY, AS DEFINED BY SUBDIVISION THREE OF SECTION TWO-A OF THIS CHAPTER, A COVERED AUTHORITY, AS DEFINED BY SUBDIVISION SIX OF SECTION TWO-A OF THIS CHAPTER, THE NEW YORK CITY HOUSING AUTHORITY, ESTABLISHED UNDER TITLE ONE OF ARTICLE THIRTEEN OF THE PUBLIC HOUSING LAW, AND THE NEW YORK CITY SCHOOL CONSTRUCTION AUTHORITY, ESTABLISHED UNDER TITLE SIX OF ARTICLE EIGHT OF THE PUBLIC AUTHORITIES LAW. ALL SUCH ENTITIES MUST LIMIT ASSIGNMENT UNDER CONTRACTS ISSUED PURSUANT TO THIS SECTION TO A MINORITY PORTION OF ITS ANNUAL CAPITAL BUDGET, IF SUCH BUDGET EXISTS. 8. IF AN ENTITY DESCRIBED IN SUBDIVISION SEVEN OF THIS SECTION SEEKS A THIRD PARTY CONSULTANT TO ASSIST, IN ANY MANNER, WITH THE BIDDING AND/OR IMPLEMENTATION OF A JOB ORDER CONTRACT, SUCH THIRD PARTY CONSULTANT MUST BE SELECTED PURSUANT TO A COMPETITIVE BID PROCESS.
S 3. The general municipal law is amended by adding a new section 103-h to read as follows: S 103-H. JOB ORDER CONTRACTS. 1. "JOB ORDER CONTRACT", SHALL HAVE THE SAME MEANING AS SET FORTH IN PARAGRAPH M OF SUBDIVISION FIVE OF SECTION TWO HUNDRED TWENTY OF THE LABOR LAW. 2. THE JOB ORDER CONTRACT MUST HAVE A DEFINED SCOPE OF WORK, WHICH INCLUDES: A. A LIMITATION TO ONE OF THE GEOGRAPHIC REGIONS COMMONLY REFERRED TO AS THE CAPITAL DISTRICT, MOHAWK VALLEY, HUDSON VALLEY, CENTRAL NEW YORK, FINGER LAKES, WESTERN NEW YORK, SOUTHERN TIER, NORTH COUNTRY, LONG ISLAND OR NEW YORK CITY; B. IDENTIFICATION OF TRADES RELEVANT FOR THE SPECIFIC SCOPE OF WORK TO BE PERFORMED, INCLUDING BUT NOT LIMITED TO: (I) BASIC TRADES, INCLUDING CARPENTERS, LABORERS AND BRICKLAYERS, (II) PLUMBING AND GAS FITTING, (III) STEAM HEATING, HOT WATER HEATING, VENTILATING AND AIR CONDITION- ING APPARATUS, (IV) ELECTRIC WIRING AND STANDARD ILLUMINATING FIXTURES, (V) ROOFING, (VI) WELDING, (VII) IRONWORK, (VIII) CONCRETE FINISHING, OR (IX) PAINTING AND PLASTERING; AND C. A DETAILED DESCRIPTION OF THE WORK TO BE PERFORMED UNDER THE BASE CONTRACT, A LIST OF THE TASKS NECESSARY TO COMPLETE THE WORK TO BE PERFORMED UNDER THE BASE CONTRACT AND THE TRADE CLASSIFICATIONS OF THE WORKERS, MECHANICS AND LABORERS WHO WILL PERFORM EACH OF THE LISTED TASKS IN THE BASE CONTRACT. 3. THE DEFINED SCOPE OF WORK TO BE PERFORMED UNDER THE BASE CONTRACT MUST NOT BE OVERLY BROAD SO AS TO PREVENT THE CONTRACTOR FROM MAKING AN INFORMED BID DURING THE COMPETITIVE BID PROCESS. THE CONTRACTING ENTITY MUST LIMIT THE WORK TO BE PERFORMED UNDER THE BASE CONTRACT TO THOSE PRE-ESTABLISHED TASKS AND PRICES REFERRED TO IN THE GENERAL CONTRACT CONDITIONS. 4. BEFORE SOLICITING BIDS FOR THE BASE CONTRACT, THE CONTRACTING ENTI- TY SHALL FILE ALL INFORMATION REQUIRED BY SUBPARAGRAPH (I) OF PARAGRAPH A OF SUBDIVISION THREE-A OF SECTION TWO HUNDRED TWENTY OF THE LABOR LAW WITH THE FISCAL OFFICER. THE CONTRACTING ENTITY MAY NOT SOLICIT BIDS FOR THE BASE CONTRACT UNTIL ALL REQUIREMENTS OF SUBPARAGRAPH (I) OF PARA- GRAPH A OF SUBDIVISION THREE-A OF SECTION TWO HUNDRED TWENTY OF THE LABOR LAW HAVE BEEN SATISFIED. 5. THE COST OF A JOB ORDER CONTRACT MAY NOT EXCEED FIVE HUNDRED THOU- SAND DOLLARS. SUCH CONTRACT IS LIMITED TO ONE YEAR AND MAY BE RENEWED FOR AN ADDITIONAL TWELVE MONTHS TWICE SO LONG AS THE FIVE HUNDRED THOU- SAND DOLLAR THRESHOLD HAS NOT BEEN REACHED. IT IS IMPERMISSIBLE TO SUBDIVIDE A CONTRACT INTO SEPARATE CONTRACTS IN ORDER TO MEET THE REQUIREMENTS OF THIS SUBDIVISION. THE RESTRICTIONS IN THIS SUBDIVISION SHALL NOT APPLY WHERE THE PUBLIC OWNER REQUIRES A PROJECT LABOR AGREE- MENT CONSISTENT WITH PROVISIONS OF SECTION TWO HUNDRED TWENTY-TWO OF THE LABOR LAW. 6. THE JOB ORDER CONTRACT AND ALL SUBCONTRACTS ASSOCIATED WITH SUCH JOB ORDER CONTRACT MUST EXPRESSLY STATE THAT ALL WORK PERFORMED UNDER SUCH CONTRACTS IS PURSUANT TO SECTION TWO HUNDRED TWENTY OF THE LABOR LAW. 7. THESE REQUIREMENTS APPLY TO ALL POLITICAL SUBDIVISIONS. ALL SUCH POLITICAL SUBDIVISIONS MUST LIMIT ASSIGNMENTS UNDER CONTRACTS ISSUED
PURSUANT TO THIS SECTION TO A MINORITY PORTION OF ITS ANNUAL CAPITAL BUDGET, IF SUCH BUDGET EXISTS. 8. IF A POLITICAL SUBDIVISION SEEKS A THIRD PARTY CONSULTANT TO ASSIST, IN ANY MANNER, WITH THE BIDDING AND/OR IMPLEMENTATION OF A JOB ORDER CONTRACT, SUCH THIRD PARTY CONSULTANT MUST BE SELECTED PURSUANT TO A COMPETITIVE BID PROCESS. S 4. This act shall take effect immediately and shall apply to all job order contracts solicited or renewed on or after such effective date.

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