Requires public contracts to include clauses authorizing contractors to recover damages for delay which are caused by acts or omissions by the public owner, as otherwise permitted by law, and requires the contractor, when submitting a claim, to certify that the supporting data is accurate to the best of his or her knowledge and the amount of the claim he or she believes to be the public owner's liability.

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S977-2013 Actions

• May 6, 2013: ADVANCED TO THIRD READING
• May 1, 2013: 2ND REPORT CAL.
• Apr 30, 2013: 1ST REPORT CAL.517
• Jan 9, 2013: REFERRED TO FINANCE

S977-2013 Meetings

Finance: Apr 30, 2013

S977-2013 Calendars

Floor Calendar: May 1, 2013 , Floor Calendar: May 6, 2013 , Floor Calendar: May 7, 2013 , Floor Calendar: May 8, 2013 , Floor Calendar: May 20, 2013 , Floor Calendar: May 21, 2013 , Floor Calendar: May 22, 2013 , Floor Calendar: May 23, 2013

S977-2013 Votes

S977-2013 Memo

BILL NUMBER:S977

TITLE OF BILL:
An act
to amend the state finance law, in relation to damages for delay clauses
in public contracts

PURPOSE:
Requires all public contracts to include a clause authorizing
contractors to recover damages for delay

SUMMARY OF PROVISIONS:
Section 1 of this bill amends the State Finance Law by adding a new
section 138-b which would provide that all public works contracts
include provisions that a contractor, subcontractor, or materialman
may seek recovery for unanticipated costs due to inexcusable delays
which are the result of actions or omissions by a public contractor.
The act or omission must be within the scope of their responsibility
or control.

JUSTIFICATION:
Current case law in New York State follows KALISCH-JARCHO, INC. V.
CITY OF NEW YORK (578 NY 2nd 377), which allows a contractor to
recover damages for such delay caused by an owner only where the
owner acted in bad faith and with deliberate intent. In fact, the
burden of proof to establish bad faith and deliberate intent makes it
unlikely that contractors would be able to recover damages for delay.

Several public agencies (NYS OGS, DOT and the MTA) have already
recognized the unfairness of this restriction and have provided in
their public contracts for a more equitable allowance for damages for
delays resulting from public agency action.

In 1998, the Governor vetoed S.6711-B, a proposal to achieve the same
relief sought by this legislation. In his veto message (see Veto
Message 1404), the Governor stated that he was sympathetic to the
concept and that the policies of NYS OGS and DOT were already
directed to address the needs sought here. This bill addresses the
issues raised by the Governor and clarifies liability for damages
where actions or omissions of a public agency are directly associated
with the damages incurred by a covered contractor.

LEGISLATIVE HISTORY:
2012: Rules
2010: Referred to Finance
2008: Rules
2007: Passed Senate
2006: Passed Senate
2005: Passed Senate
2004: Rules
2003: Finance
1998: (Veto 1404)

FISCAL IMPLICATIONS:
Unknown.


EFFECTIVE DATE:
180 days after enactment.

S977-2013 Text

                      S T A T E   O F   N E W   Y O R K
  ________________________________________________________________________

                                     977

                         2013-2014 Regular Sessions

                              I N  SENATE

                                 (PREFILED)

                               January 9, 2013
                                 ___________

  Introduced  by  Sen.  LIBOUS -- read twice and ordered printed, and when
    printed to be committed to the Committee on Finance

  AN ACT to amend the state finance law, in relation to damages for  delay
    clauses in public contracts

    THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
  BLY, DO ENACT AS FOLLOWS:


    Section 1. The state finance law is amended by adding  a  new  section
  138-b to read as follows:

    S  138-B.  DAMAGES  FOR  DELAY IN PUBLIC CONTRACTS.  1.  ALL CONTRACTS
  MADE AND AWARDED BY THE STATE,  ANY  STATE  AGENCY,  PUBLIC  DEPARTMENT,
  MUNICIPAL  CORPORATION, PUBLIC BENEFIT CORPORATION, SCHOOL DISTRICT OR A
  COMMISSION APPOINTED PURSUANT TO LAW (HEREINAFTER REFERRED  TO  IN  THIS
  SECTION  AS  A "PUBLIC OWNER") FOR DESIGN, CONSTRUCTION, RECONSTRUCTION,
  DEMOLITION, ALTERATION, REPAIR OR IMPROVEMENT OF ANY PUBLIC WORKS  SHALL
  CONTAIN  A CLAUSE WHICH ALLOWS A CONTRACTOR TO MAKE CLAIM FOR ADDITIONAL
  COSTS FROM CAUSES LISTED BELOW, ATTRIBUTABLE TO DELAY IN THE PERFORMANCE
  OF THIS CONTRACT, OCCASIONED BY ANY ACT OR OMISSION TO ACT BY THE PUBLIC
  OWNER OR ANY OF ITS REPRESENTATIVES.
    (A) THE FAILURE OF THE PUBLIC OWNER TO  TAKE  REASONABLE  MEASURES  TO
  COORDINATE AND PROGRESS THE WORK.
    (B)  EXTENDED DELAYS ATTRIBUTABLE TO THE PUBLIC OWNER IN THE REVIEW OR
  ISSUANCE OF ORDERS-ON-CONTRACT OR FIELD ORDERS, IN SHOP DRAWING  REVIEWS
  OR  APPROVALS OR AS A RESULT OF THE CUMULATIVE IMPACT OF MULTIPLE ORDERS
  ON CONTRACT, WHICH CONSTITUTE A QUALITATIVE CHANGE TO THE  PROJECT  WORK
  AND WHICH HAVE A VERIFIABLE IMPACT ON PROJECT COSTS.
    (C) THE UNAVAILABILITY OF THE SITE FOR SUCH AN EXTENDED PERIOD OF TIME
  WHICH SIGNIFICANTLY AFFECTS THE SCHEDULED COMPLETION OF THE CONTRACT.
    (D)  THE ISSUANCE BY THE PUBLIC OWNER OF A STOP WORK ORDER RELATIVE TO
  A SUBSTANTIAL PORTION OF WORK FOR A PERIOD EXCEEDING THIRTY DAYS.

   EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                        [ ] is old law to be omitted.
                                                             LBD04726-01-3

 S. 977                              2

    2. WHEN SUBMITTING ANY  SUCH  CLAIM  AGAINST  THE  PUBLIC  OWNER,  THE
  CONTRACTOR, FOR ITSELF AND/OR ON BEHALF OF ANY CLAIMING SUBCONTRACTOR OR
  MATERIALMAN, SHALL CERTIFY IN WRITING AND UNDER OATH:

    (A)  THAT THE SUPPORTING DATA IS ACCURATE AND COMPLETE TO THE CONTRAC-
  TOR'S BEST KNOWLEDGE OR BELIEF, AND THAT OF ANY  CLAIMING  SUBCONTRACTOR
  OR MATERIALMAN; AND
    (B)  THAT THE AMOUNT OF THE CLAIM ITSELF REFLECTS WHAT THE CONTRACTOR,
  SUBCONTRACTOR AND/OR MATERIALMAN IN GOOD FAITH BELIEVE TO BE THE  PUBLIC
  OWNER'S LIABILITY.
    S 2. This act shall take effect on the one hundred eightieth day after
  it shall have become a law.