Bill S3714-2013

Defines lowest responsible bidder and unfair labor practices for purposes of the prevailing wage law for public works projects

Defines lowest responsible bidder for purposes of the prevailing wage law to include only those who have not been found guilty of an unfair labor practice within a three year period preceding the award of a public works project in order to disqualify as the lowest responsible bidder on a public works contract those bidders who have violated certain federal or state labor laws; permits challenges to the determination of the lowest possible bidder.

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  • Jan 8, 2014: REFERRED TO LABOR
  • Feb 12, 2013: REFERRED TO LABOR

Memo

BILL NUMBER:S3714

TITLE OF BILL: An act to amend the labor law and the general municipal law, in relation to the definition of lowest responsible bidder and unfair labor practices for purposes of public works projects

PURPOSE: This would disqualify a bidder from being determined the lowest responsible bidder on a public work contract where it has violated certain federal or state labor laws.

SUMMARY OF PROVISIONS:

Section 1 would disqualify a bidder from being awarded a public work contract as the "lowest possible bidder" where it has been found to have committed either of the following within the preceding two years: (a) a violation of the prevailing wage laws under sections 220 and 231 of the NYS Labor Law, or (b) a violation of the health and safety provisions of the Federal Occupational and Safety Health Act or of section 27-a of NYS's labor law. Section 1 would also authorize a person, corporation or a labor union to challenge the proposed selection of the lowest responsible bidder by filing an application with the public entity awarding the contract. The commissioner or chief executive officer of the public entity would have to conduct a hearing and issue a written determination on the validity of the application. If the proposed bidder is disqualified, the contract would be awarded to the next lowest responsible bidder. Sections 2 and 3 would amend the general municipal law and the state finance law respectively to prohibit the public owner from awarding a contract to the lowest bidder who has violated any of the laws specified in section 1.

JUSTIFICATION: In assessing the responsibility of a low bidder on a public works contract, the state and municipalities have had to rely on arbitrary definitions of accountability, reliability and good faith. Often, contracts are awarded to bidders who are lowest responsible in financial terms yet are negligent in terms of paying wages and providing for the safety and health of workers. This bill would provide guidance to municipalities and the state to insure that public funds are awarded to low bidders who comply with established standards of responsibility.

LEGISLATIVE HISTORY: 2012 - Died in Labor Committee 2011 - Died in Labor Committee 2010 - Died in Labor Committee in both Houses 2009 Died in Labor Committee in both Houses 2008 - Died in Labor Committee; reported from Assembly Labor; died in Codes 2007 - Died in Labor Committee in both Houses 2006 - Died in Labor Committee; reported from Assembly Labor, died in Codes 2005 - Died in Labor Committee; reported from Assembly Labor, died in Codes 2004 - Died in Labor Committee; reported from Assembly Labor, died in Codes 2003 - Died in Labor Committee; reported from Assembly Labor, died in Codes 2002 - Died in Labor Committee; reported from Assembly Labor, died in Codes 2001 - Died in Labor Committee; reported from Assembly Labor, died in Codes, Ways and Means,

died in Rules 2000 - Died in Labor Committee; reported from Assembly Labor, died in Codes 1999 - Died in Labor Committee in both Houses

EFFECTIVE DATE: This act shall take effect on the first day of September next succeeding the date on which it shall have become a law, with provisions.


Text

STATE OF NEW YORK ________________________________________________________________________ 3714 2013-2014 Regular Sessions IN SENATE February 12, 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 the definition of lowest responsible bidder and unfair labor prac- tices for purposes of public works projects THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. The labor law is amended by adding a new section 201-g to read as follows: S 201-G. DETERMINATION OF LOWEST RESPONSIBLE BIDDER. 1. WHENEVER SELECTION OF THE LOWEST RESPONSIBLE BIDDER IS REQUIRED UNDER SECTION ONE HUNDRED THREE OF THE GENERAL MUNICIPAL LAW, A PERSON, FIRM, CORPORATION, SUCCESSOR CORPORATION, CONTRACTOR OR SUBCONTRACTOR SHALL NOT QUALIFY AS A RESPONSIBLE BIDDER IF IT HAS COMMITTED ANY OF THE FOLLOWING VIOLATIONS WITHIN A THREE YEAR PERIOD PRECEDING THE AWARD OF THE CONTRACT: (A) A VIOLATION OF ANY PROVISION OF ARTICLE EIGHT OF THIS CHAPTER; (B) A VIOLATION OF ANY STATE OR FEDERAL LABOR LAW INCLUDING BUT NOT LIMITED TO OCCUPATIONAL SAFETY AND HEALTH; WAGES; CHILD LABOR; WORKERS' COMPENSATION; UNEMPLOYMENT COMPENSATION; ORGANIZATIONAL RIGHTS; AND LABOR STANDARDS; (C) A VIOLATION OF ANY STATE OR FEDERAL LAW RELATING TO BID COLLUSION OR RESTRAINT OF TRADE; (D) A VIOLATION OF ANY STATE OR FEDERAL ENVIRONMENTAL LAW; (E) A CRIMINAL CONVICTION OF ANY STATE OR FEDERAL LAW FOR ANY CONDUCT RELATING TO BIDDING OR CONSTRUCTION-RELATED WORK BY THE BIDDER; (F) AN OUTSTANDING DISQUALIFICATION FROM BIDDING ON ANY PUBLIC WORK CONTRACT; OR (G) A VIOLATION OF ANY STATE OR FEDERAL CIVIL RIGHTS, EMPLOYMENT DISA- BILITY OR MINORITY PREFERENCE LAW. 2. THE PROVISIONS OF SUBDIVISION ONE OF THIS SECTION SHALL NOT DIMIN- ISH THE DISCRETION OF THE AWARDING AUTHORITY TO DISQUALIFY A BIDDER ON
OTHER GROUNDS WHICH THE AUTHORITY FINDS APPROPRIATE WHICH SHALL INCLUDE BUT NOT BE LIMITED TO: (A) LACK OF SUFFICIENT EXPERTISE, PRIOR EXPERIENCE WITH COMPARABLE PROJECTS, OR SUFFICIENT RESOURCES TO PERFORM THE CONTRACT IN A TIMELY AND COMPETENT MANNER; (B) WHETHER THE BIDDER'S EMPLOYEES ARE PROPERLY TRAINED AND WHETHER THE EQUIPMENT TO BE USED IS SAFE AND IN GOOD OPERATING CONDITION; (C) WHETHER THE BIDDER HAS SUBMITTED A BID THAT IS MATHEMATICALLY OR MATERIALLY UNBALANCED; (D) SUBMISSION OF A BID SO MUCH LOWER THAN THE AGENCY'S ENGINEER'S ESTIMATE THAT IT SEEMS UNLIKELY THAT THE BIDDER WILL BE ABLE TO PERFORM THE CONTRACT SATISFACTORILY AT THE PRICE BID; OR (E) PRESENTATION OF ANY FALSE OR MISLEADING STATEMENTS TO THE AGENCY AWARDING THE CONTRACT IN CONNECTION WITH THE BID. 3. NO PERSON ACTING ON BEHALF OF A BIDDER SHALL LOBBY THE CONSTRUCTING GOVERNMENTAL ENTITY FOR THE PURPOSE OF ASSISTING SUCH BIDDER IN SECURING A BID. NO BID SHALL INCLUDE ANY COSTS ATTRIBUTABLE TO LOBBYING. 4. ANY PERSON, FIRM, CORPORATION, SUCCESSOR CORPORATION, LABOR ORGAN- IZATION, CONTRACTOR OR SUBCONTRACTOR MAY, WITHIN TEN DAYS AFTER A BID IS ACCEPTED, FILE AN APPLICATION TO CHALLENGE THE DETERMINATION UNDER SECTION ONE HUNDRED THREE OF THE GENERAL MUNICIPAL LAW THAT THE BIDDER CHOSEN WAS THE LOWEST RESPONSIBLE BIDDER. UPON RECEIPT OF SUCH APPLICA- TION, THE COMMISSIONER OR CHIEF EXECUTIVE OFFICER OF THE PUBLIC ENTITY SHALL CONDUCT A HEARING TO DETERMINE THE VALIDITY OF THE APPLICATION. NOTICE SHALL BE GIVEN TO THE APPLICANT AND TO THE PROPOSED LOWEST RESPONSIBLE BIDDER OF THE DATE, TIME AND PLACE OF THE HEARING. THE APPLICANT AND THE PROPOSED LOWEST RESPONSIBLE BIDDER SHALL BE GIVEN THE OPPORTUNITY TO PRESENT EVIDENCE AND WITNESSES ON THEIR BEHALF. THE COMMISSIONER OR CHIEF EXECUTIVE OFFICER PRESIDING OVER SUCH HEARING SHALL ISSUE A WRITTEN DECISION WITH FINDINGS OF FACT WHETHER THE PROPOSED LOWEST RESPONSIBLE BIDDER IS RESPONSIBLE. SUCH CONTRACT SHALL NOT BE AWARDED PRIOR TO SUCH DECISION. THE AWARDING AUTHORITY SHALL NOTIFY ALL BIDDERS REGARDING THE SELECTION OF ITS PROPOSED LOWEST RESPONSIBLE BIDDER. S 2. 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. In cases where two or more responsible bidders furnishing the required security submit identi- cal 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 deter- mining 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 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. 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 includ- ing 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 subdivision 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 meth- od for the submission of bids and offers. Bids and offers submitted in an electronic 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 promulgated 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. FOR PURPOSES OF THIS SECTION, THE TERM "LOWEST RESPON- SIBLE BIDDER" SHALL MEAN ANY PERSON, FIRM, CORPORATION, SUCCESSOR CORPO-
RATION, CONTRACTOR OR SUBCONTRACTOR WHO (I) SUBMITS THE LOWEST BID FOR A PUBLIC WORK CONTRACT AND (II) IS NOT DISQUALIFIED ON GROUNDS PROVIDED IN SECTION TWO HUNDRED ONE-G OF THE LABOR LAW. S 3. 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. 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. FOR PURPOSES OF THIS SECTION, THE TERM "LOWEST RESPONSIBLE BIDDER" SHALL MEAN ANY PERSON, FIRM, CORPORATION, SUCCESSOR CORPORATION, CONTRACTOR OR SUBCON- TRACTOR WHO (A) SUBMITS THE LOWEST BID FOR A PUBLIC WORK CONTRACT AND
(B) IS NOT DISQUALIFIED ON GROUNDS PROVIDED IN SECTION TWO HUNDRED ONE-G OF THE LABOR LAW. 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 that the amendments to subdivision 1 of section 103 of the general municipal law made by section two of this act shall be subject to the expiration and reversion of such subdivision pursuant to section 41 of part X of chapter 62 of the laws of 2003, as amended, when upon such date the provisions of section three of this act shall take effect.

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