This bill has been amended

Bill S5149D-2011

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

  • Jun 5, 2012: REPORTED AND COMMITTED TO FINANCE
  • Apr 9, 2012: PRINT NUMBER 5149D
  • Apr 9, 2012: AMEND AND RECOMMIT TO LABOR
  • Mar 6, 2012: PRINT NUMBER 5149C
  • Mar 6, 2012: AMEND (T) AND RECOMMIT TO LABOR
  • Jan 4, 2012: REFERRED TO LABOR
  • Jun 24, 2011: RECOMMITTED TO RULES
  • Jun 21, 2011: ORDERED TO THIRD READING CAL.1473
  • Jun 21, 2011: COMMITTEE DISCHARGED AND COMMITTED TO RULES
  • Jun 17, 2011: PRINT NUMBER 5149B
  • Jun 17, 2011: AMEND AND RECOMMIT TO LABOR
  • May 11, 2011: PRINT NUMBER 5149A
  • May 11, 2011: AMEND AND RECOMMIT TO LABOR
  • May 3, 2011: REFERRED TO LABOR

Meetings

Votes

VOTE: COMMITTEE VOTE: - Labor - Jun 5, 2012
Ayes (10): Robach, Alesi, Gallivan, Marcellino, McDonald, Peralta, Addabbo, Gianaris, Perkins, Rivera
Ayes W/R (5): DeFrancisco, Grisanti, Johnson, Martins, Dilan
Excused (1): Smith

Memo

BILL NUMBER:S5149D

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 of the bill amends the labor law, defining "job order contract," requiring 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 of the bill adds a new section to the state finance law that will specify requirements and limitations on job order contracts.

Section 3 of the bill adds a new section to the general municipal law that will specify requirements and limitations on job order contracts.

Section 4 of the bill would implement the legislation into law so that it applies to all job order contracts solicited or renewed after its enactment.

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 JOC is generally a multi-year contract that includes a base year with multiple renewal options. A contractor bidding for a JOG 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 JOG. The bidders are bidding on a range of tasks that mayor 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 well 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 A.D. 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: New Bill.

FISCAL IMPLICATIONS: None.

EFFECTIVE DATE: This act shall take effect immediately.


Text

STATE OF NEW YORK ________________________________________________________________________ 5149--D 2011-2012 Regular Sessions IN SENATE May 3, 2011 ___________
Introduced by Sen. BONACIC -- read twice and ordered printed, and when printed to be committed to the Committee on Labor -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said committee -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said committee -- recommitted to the Committee on Labor in accordance with Senate Rule 6, sec. 8 -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said committee -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said committee 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, CENTRAL NEW YORK, GENESEE VALLEY, WESTERN NEW YORK, SOUTHERN TIER, NORTH COUNTRY, LONG ISLAND OR NEW YORK CITY; B. A DEFINED TRADE OF EITHER: (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. 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, CENTRAL NEW YORK, GENESEE VALLEY, WESTERN NEW YORK, SOUTHERN TIER, NORTH COUNTRY, LONG ISLAND OR NEW YORK CITY; B. A DEFINED TRADE OF EITHER: (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. 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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