This bill has been amended

Bill S6618-2013

Requires job order contracts to be in use for labor performed under certain public work contracts

Requires job order contracts to be in use for labor performed under certain public work contracts.

Details

Actions

  • Mar 3, 2014: REPORTED AND COMMITTED TO FINANCE
  • Feb 14, 2014: REFERRED TO LABOR

Meetings

Votes

VOTE: COMMITTEE VOTE: - Labor - Mar 3, 2014
Ayes (9): Savino, Ball, Robach, Peralta, Addabbo, Dilan, Perkins, Rivera, Sanders
Ayes W/R (6): DeFrancisco, Gallivan, Grisanti, Hannon, Marcellino, Martins
Nays (1): Marchione

Memo

BILL NUMBER:S6618

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 available for review by the Department of Labor and also to the public through a Freedom of Information Law (FOIL) request

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 JOC 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.

LEGISLATIVE HISTORY: Similar legislation to S. 3564 of 2013 Session Veto Message 259

FISCAL IMPLICATIONS: None

EFFECTIVE DATE: This act shall take effect 120 after it becomes law and apply to all job order contracts solicited or renewed on or after such effective date.


Text

STATE OF NEW YORK ________________________________________________________________________ 6618 IN SENATE February 14, 2014 ___________
Introduced by Sens. SAVINO, BONACIC -- 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. IF THE STATE OR A PUBLIC BENEFIT CORPORATION OR A MUNICIPAL CORPORATION OR A COMMIS- SION APPOINTED PURSUANT TO LAW IS A PARTY TO A JOB ORDER CONTRACT, SUCH ENTITY MUST MAKE ALL INFORMATION ASSOCIATED WITH THE CONTRACT, INCLUDING SUBCONTRACTS, AVAILABLE TO THE DEPARTMENT PURSUANT TO A REQUEST BY THE COMMISSIONER, AND TO THE PUBLIC IN COMPLIANCE WITH THE FREEDOM OF INFOR- MATION LAW PURSUANT TO ARTICLE SIX OF THE PUBLIC OFFICERS LAW. 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. "PROJECT" SHALL MEAN AN INDIVIDUAL JOB ORDER PERFORMED UNDER THE CONTRACT. 2. THE JOB ORDER CONTRACT MUST BE IN COMPLIANCE WITH SECTION ONE HUNDRED THIRTY-FIVE OF THIS ARTICLE, HAVE A DEFINED SCOPE OF WORK AND INCLUDE A DESCRIPTION OF THE TYPE OF WORK TO BE PERFORMED UNDER THE BASE CONTRACT, INCLUDING IDENTIFICATION OF TRADES WHICH WILL BE UTILIZED ON PROJECTS ASSOCIATED WITH THE CONTRACT.
3. THE COST OF A JOB ORDER CONTRACT MAY NOT EXCEED ONE MILLION FIVE HUNDRED THOUSAND DOLLARS PER TWELVE MONTHS. NO PROJECT PERFORMED UNDER THE JOB ORDER CONTRACT MAY EXCEED FIVE HUNDRED THOUSAND DOLLARS. THE RESTRICTIONS IN THIS SUBDIVISION SHALL NOT APPLY WHERE THE PUBLIC OWNER REQUIRES A PROJECT LABOR AGREEMENT CONSISTENT WITH PROVISIONS OF SECTION TWO HUNDRED TWENTY-TWO OF THE LABOR LAW. 4. THE JOB ORDER CONTRACT MUST COMPLY WITH THE REQUIREMENTS FOR MINOR- ITY AND WOMEN'S BUSINESS DEVELOPMENT PURSUANT TO ARTICLE FOUR-A OF THE ECONOMIC DEVELOPMENT LAW. 5. 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. 6. 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. UPON WINNING SUCH JOB ORDER CONTRACT, THE ENTITY DESCRIBED IN SUBDIVISION SEVEN OF THIS SECTION SHALL ONLY COMPENSATE SUCH THIRD PARTY CONSULTANT BASED ON A FIXED-PRICE. 7. THIS SECTION SHALL NOT APPLY NOR RESTRICT THE USE OF JOB ORDER CONTRACTS: (A) IN ANY RECONSTRUCTION, REPAIR, REHABILITATION, OR MAINTENANCE EFFORTS ASSOCIATED WITH DAMAGES FROM THE TWO THOUSAND TWELVE STORM, COMMONLY KNOWN AS HURRICANE SANDY, OR (B) DURING ANY "STATE DISASTER EMERGENCY" THE RECONSTRUCTION, REPAIR, REHABILITATION, OR MAINTENANCE EFFORTS RESULTING FROM A NATURAL OR MAN- MADE "DISASTER" AS SUCH TERMS ARE DEFINED UNDER SUBDIVISION TWO OF SECTION TWENTY OF THE EXECUTIVE LAW. 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. "PROJECT" SHALL MEAN AN INDIVIDUAL JOB ORDER PERFORMED UNDER THE CONTRACT. 2. THE JOB ORDER CONTRACT MUST BE IN COMPLIANCE WITH SECTION ONE HUNDRED THIRTY-FIVE OF THE STATE FINANCE LAW, HAVE A DEFINED SCOPE OF WORK AND INCLUDE A DESCRIPTION OF THE TYPE OF WORK TO BE PERFORMED UNDER THE BASE CONTRACT, INCLUDING IDENTIFICATION OF TRADES WHICH WILL BE UTILIZED ON PROJECTS ASSOCIATED WITH THE CONTRACT. 3. THE COST OF A JOB ORDER CONTRACT MAY NOT EXCEED ONE MILLION FIVE HUNDRED THOUSAND DOLLARS PER TWELVE MONTHS. NO PROJECT PERFORMED UNDER THE JOB ORDER CONTRACT MAY EXCEED FIVE HUNDRED THOUSAND DOLLARS. THE RESTRICTIONS IN THIS SUBDIVISION SHALL NOT APPLY WHERE THE PUBLIC OWNER REQUIRES A PROJECT LABOR AGREEMENT CONSISTENT WITH PROVISIONS OF SECTION TWO HUNDRED TWENTY-TWO OF THE LABOR LAW. 4. THE JOB ORDER CONTRACT MUST COMPLY WITH THE REQUIREMENTS FOR MINOR- ITY AND WOMEN'S BUSINESS DEVELOPMENT PURSUANT TO ARTICLE FOUR-A OF THE ECONOMIC DEVELOPMENT LAW. 5. THESE REQUIREMENTS APPLY TO ALL POLITICAL SUBDIVISIONS. 6. 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. UPON WINNING SUCH JOB ORDER CONTRACT, THE POLITICAL SUBDIVISION DESCRIBED IN SUBDIVISION SEVEN OF THIS SECTION SHALL ONLY COMPENSATE SUCH THIRD PARTY CONSULTANT BASED ON A FIXED-PRICE. 7. THIS SECTION SHALL NOT APPLY NOR RESTRICT THE USE OF JOB ORDER CONTRACTS: A. IN ANY RECONSTRUCTION, REPAIR, REHABILITATION, OR MAINTENANCE EFFORTS ASSOCIATED WITH DAMAGES FROM THE TWO THOUSAND TWELVE STORM, COMMONLY KNOWN AS HURRICANE SANDY, OR B. DURING ANY "STATE DISASTER EMERGENCY" THE RECONSTRUCTION, REPAIR, REHABILITATION, OR MAINTENANCE EFFORTS RESULTING FROM A NATURAL OR MAN- MADE "DISASTER" AS SUCH TERMS ARE DEFINED UNDER SUBDIVISION TWO OF SECTION TWENTY OF THE EXECUTIVE LAW. S 4. This act shall take effect on the one hundred twentieth day after it shall have become a law and shall apply to all job order contracts solicited or renewed on or after such effective date.

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