Bill S5575-2013

Authorizes public work contracts let by a city having a population of 1,000,000 or more to cover work ancilliary to maintain or support private facilities

Authorizes public work contracts let by a city having a population of 1,000,000 or more to cover work ancilliary to maintain or support private facilities adjacent to the right of way affected by work on such projects.

Details

Actions

  • Mar 6, 2014: ADVANCED TO THIRD READING
  • Mar 5, 2014: 2ND REPORT CAL.
  • Mar 4, 2014: 1ST REPORT CAL.236
  • Jan 8, 2014: REFERRED TO CITIES
  • Jun 21, 2013: COMMITTED TO RULES
  • Jun 4, 2013: ADVANCED TO THIRD READING
  • Jun 3, 2013: 2ND REPORT CAL.
  • May 30, 2013: 1ST REPORT CAL.929
  • May 22, 2013: REFERRED TO CITIES

Meetings

Votes

VOTE: COMMITTEE VOTE: - Cities - May 30, 2013
Ayes (6): Lanza, Ball, DeFrancisco, Grisanti, Avella, Breslin
VOTE: COMMITTEE VOTE: - Cities - Mar 4, 2014
Ayes (5): Lanza, Ball, DeFrancisco, Grisanti, Breslin

Memo

BILL NUMBER:S5575                 REVISED 5/28/13

TITLE OF BILL: An act to amend the general municipal law, in relation to contracts for public work in a city having a population of one million or more

SUMMARY OF SPECIFIC PROVISIONS: This bill amends General Municipal Law to authorize cities with a population of one million or more to include in a contract for any public work project any work deemed necessary or desirable to maintain, support, protect or otherwise accommodate, remove, relocate, alter, replace, reconstruct or improve energy, telecommunications and other private facilities or structures not owned by the City which are located within, traversing or adjacent to the construction area of such project.

The bill deems such work "public work" for the purposes of Section 103 and, thus, permits the City to award a contract to the lowest responsible bidder for all of the work, including the utility interference work.

The bill also provides that the costs of such work are not borne by the municipality.

JUSTIFICATION: Public rights of way generally contain not only municipally owned utility services like water mains and sewers but also utility lines for the transmission of energy and telecommunications These private facilities often must be moved or protected in order for the municipal work to proceed.

The municipal work can be delayed or stopped if the utility is required to negotiate the price of protecting or moving the utility facility with the contractor for the municipal work or locate another contractor to do the work. Because bringing in a second contractor is rarely practical, the negotiations often stall when the de facto monopoly position of the municipal contractor leads to prices that the utility believes to be far in excess of the value of the work. Delay of the municipal work adversely affects the public at large as well as local businesses.

In an effort to reduce the inconvenience resulting from the construction delays as a result of utility interference work, in 1992 the City of New York began the practice of "joint bidding." This practice requires bidders to provide, within a single bid, separate prices for the municipal work and the private utility work, with the contract awarded to the lowest responsible bidder for the combined work. The utilities, by separate agreement reimburse the City for the additional cost of the City's share of the overall low bid if the low bidder on the municipal work was not the same as the low bidder on the combined work. Thus, the cost to the City would never be more than the lowest bid for the municipal work. Taxpayers are able to benefit from the conveniences of joint bidding at no additional cost.

In 1998, the Court of Appeals determined that private utility interference work is not "public work" and cannot be included in a contract for municipal work pursuant to General Municipal Law Section 103 unless specifically authorized by the Legislature. DIAMOND ASPHALT V.SANDER, 92 NY2d 244 (1998).

Enactment of this legislation will benefit the public in the following ways: cities with a population of one million or more will be able to negotiate for the cost of the work with the utilities so that there will be no negative cost impact to the municipality for jointly bidding work; to the extent that the cost of the utility interference work is reasonable, utility customers, including residents and businesses, will benefit; and the massive inconvenience to the public and local businesses caused when the streets are to be opened will be minimized as a result of the shortened duration of construction.

After the September 11, 2001 attack on the World Trade Center, legislation was enacted to grant such authorization to projects in Lower Manhattan thereby acknowledging the significant benefits of joint bidding. This bill would expand the authorization, and benefits, to projects in all five Boroughs.

PRIOR LEGISLATIVE HISTORY: A.4222 (1999-00) A6123 (2001-02); A6136 (2003-04); A5257 (2005)

FISCAL IMPLICATIONS:

EFFECTIVE DATE: This act shall take effect immediately, provided that the amendments to subdivision 1 of section 103 of the general municipal law, made by section one 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 two of this act shall take effect.


Text

STATE OF NEW YORK ________________________________________________________________________ 5575 2013-2014 Regular Sessions IN SENATE May 22, 2013 ___________
Introduced by Sen. LANZA -- read twice and ordered printed, and when printed to be committed to the Committee on Cities AN ACT to amend the general municipal law, in relation to contracts for public work in a city having a population of one million or more 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. (A) Except as otherwise expressly provided by an act of the legis- lature or by a local law adopted prior to September first, nineteen hundred fifty-three, all contracts for public work involving an expendi- ture 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 poli- tical 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 pursuant 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 poli- tical 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 cooper- ative educational services, by rule, regulation or resolution adopted at
a public meeting. In any case where a responsible bidder's or responsi- ble 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 poli- tical subdivision, 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 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 arti- ficially 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 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 method 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 confidentiality 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 spec- ifications 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. (B) NOTWITHSTANDING ANY PROVISION OF LAW TO THE CONTRARY, A CITY WITH A POPULATION OF ONE MILLION OR MORE UNDERTAKING A PUBLIC WORK PROJECT MAY INCLUDE IN THE CONTRACT FOR SUCH PROJECT ANY WORK DEEMED NECESSARY OR DESIRABLE BY SUCH CITY FOR THE COMPLETION OF SUCH PROJECT THAT
REQUIRES THE MAINTENANCE, SUPPORT, PROTECTION OR OTHER ACCOMMODATION OF ENERGY, TELECOMMUNICATIONS OR OTHER PRIVATE FACILITIES OR STRUCTURES NOT OWNED BY SUCH CITY WHICH ARE LOCATED WITHIN, TRAVERSING OR ADJACENT TO THE CONSTRUCTION AREA OF SUCH PROJECT, WHETHER ABOVE, BELOW OR AT GROUND LEVEL, INCLUDING THE REMOVAL, RELOCATION, ALTERATION, REPLACEMENT, RECONSTRUCTION OR IMPROVEMENT OF SUCH FACILITIES OR STRUCTURES, AND SUCH WORK SHALL BE DEEMED PUBLIC WORK FOR THE PURPOSES OF THIS SECTION, PROVIDED, HOWEVER, THAT THE COSTS OF SUCH WORK, INCLUDING ANY INCRE- MENTAL OR ADMINISTRATIVE COSTS ATTRIBUTABLE TO SUCH WORK, ARE NOT BORNE BY SUCH CITY, EXCEPT AS OTHERWISE PROVIDED BY CHAPTER THREE HUNDRED FIFTY-SEVEN OF THE LAWS OF NINETEEN HUNDRED EIGHTY-EIGHT. 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. (A) Except as otherwise expressly provided by an act of the legis- lature or by a local law adopted prior to September first, nineteen hundred fifty-three, all contracts for public work involving an expendi- ture 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 poli- tical 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 pursuant 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 poli- tical 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 cooper- ative educational services, by rule, regulation or resolution adopted at a public meeting. In determining whether a purchase is an expenditure within the discretionary threshold amounts established by this subdivi- sion, 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 arti- ficially 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. 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 agen- cy 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. (B) NOTWITHSTANDING ANY PROVISION OF LAW TO THE CONTRARY, A CITY WITH A POPULATION OF ONE MILLION OR MORE UNDERTAKING A PUBLIC WORK PROJECT MAY INCLUDE IN THE CONTRACT FOR SUCH PROJECT ANY WORK DEEMED NECESSARY OR DESIRABLE BY SUCH CITY FOR THE COMPLETION OF SUCH PROJECT THAT REQUIRES THE MAINTENANCE, SUPPORT, PROTECTION OR OTHER ACCOMMODATION OF ENERGY, TELECOMMUNICATIONS OR OTHER PRIVATE FACILITIES OR STRUCTURES NOT OWNED BY SUCH CITY WHICH ARE LOCATED WITHIN, TRAVERSING OR ADJACENT TO THE CONSTRUCTION AREA OF SUCH PROJECT, WHETHER ABOVE, BELOW OR AT GROUND LEVEL, INCLUDING THE REMOVAL, RELOCATION, ALTERATION, REPLACEMENT, RECONSTRUCTION OR IMPROVEMENT OF SUCH FACILITIES OR STRUCTURES, AND SUCH WORK SHALL BE DEEMED PUBLIC WORK FOR THE PURPOSES OF THIS SECTION, PROVIDED, HOWEVER, THAT THE COSTS OF SUCH WORK, INCLUDING ANY INCRE- MENTAL OR ADMINISTRATIVE COSTS ATTRIBUTABLE TO SUCH WORK, ARE NOT BORNE BY SUCH CITY, EXCEPT AS OTHERWISE PROVIDED BY CHAPTER THREE HUNDRED FIFTY-SEVEN OF THE LAWS OF NINETEEN HUNDRED EIGHTY-EIGHT. S 3. This act shall take effect immediately, provided that the amend- ments to subdivision 1 of section 103 of the general municipal law, made by section one of this act, shall be subject to the expiration and reversion of such subdivision pursuant to section 41 of part X of chap- ter 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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