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

                                  3508

                       2009-2010 Regular Sessions

                            I N  S E N A T E

                             March 20, 2009
                               ___________

Introduced  by  Sen.  SAVINO -- read twice and ordered printed, and when
  printed to be committed to the Committee on Corporations,  Authorities
  and Commissions

AN  ACT to amend the public authorities law, in relation to subcontract-
  ing by public authorities

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

  Section  1.  Article  9  of  the  public authorities law is amended by
adding a new title 4-A to read as follows:

                                TITLE 4-A
                  SUBCONTRACTING BY PUBLIC AUTHORITIES

SECTION 2883. CONTRACTS  FOR  PROFESSIONAL,  MAINTENANCE,  CLERICAL,  OR
                TECHNICAL SERVICES.
  S  2883. CONTRACTS FOR PROFESSIONAL, MAINTENANCE, CLERICAL, OR TECHNI-
CAL SERVICES. 1. DEFINITIONS. AS USED IN THIS TITLE, THE FOLLOWING TERMS
HAVE THE FOLLOWING MEANINGS, UNLESS OTHERWISE SPECIFIED:
  (A) "PUBLIC AUTHORITY" MEANS (1) ANY PUBLIC AUTHORITY, PUBLIC  BENEFIT
CORPORATION,  OR  COMMISSION  CREATED BY OR EXISTING UNDER THIS CHAPTER;
(2) ANY PUBLIC AUTHORITY OR A PUBLIC BENEFIT CORPORATION, AT  LEAST  ONE
OF  WHOSE MEMBERS IS APPOINTED BY THE GOVERNOR OR WHO SERVES AS A MEMBER
BY VIRTUE OF HOLDING A CIVIL OFFICE OF THE STATE; (3)  A  NOT-FOR-PROFIT
CORPORATION AFFILIATED WITH, SPONSORED BY, OR CREATED BY A STATE AGENCY;
(4)  A  NOT-FOR-PROFIT  CORPORATION CREATED BY OR EXISTING UNDER ARTICLE
TWO OF THE RACING, PARI-MUTUEL WAGERING AND BREEDING LAW  AND  OPERATING
UNDER  AN  EXCLUSIVE  FRANCHISE  GRANTED  BY  THE STATE; (5) A MUNICIPAL
INDUSTRIAL DEVELOPMENT AGENCY OR OTHER LOCAL PUBLIC BENEFIT CORPORATION;
OR (6) A SUBSIDIARY OR AFFILIATE OF A PUBLIC AUTHORITY.
  (B) "CONTRACT" MEANS AN  ENFORCEABLE  AGREEMENT,  ENTERED  INTO  BY  A
CONTRACTOR AND A PUBLIC AUTHORITY, WHICH EXCEEDS TWO HUNDRED FIFTY THOU-

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD08201-01-9
              

S. 3508                             2

SAND DOLLARS. A SINGLE CONTRACT WHICH IS DIVIDED INTO SEPARATE CONTRACTS
SOLELY  TO  AVOID THE APPLICATION OF THIS TITLE SHALL BE DEEMED A SINGLE
CONTRACT FOR PURPOSES OF THIS TITLE.
  (C)  "CONTRACTOR"  MEANS  ANY  PERSON, PARTNERSHIP, FIRM, CORPORATION,
ASSOCIATION, LIMITED LIABILITY COMPANY, OR  OTHER  ENTITY  RENDERING  OR
PROVIDING  PROFESSIONAL,  MAINTENANCE,  CLERICAL,  OR TECHNICAL SERVICES
PURSUANT TO A CONTRACT WITH A PUBLIC AUTHORITY.
  (D) "SERVICES" MEANS ANY PROFESSIONAL, MAINTENANCE, CLERICAL, OR TECH-
NICAL SERVICES CURRENTLY PERFORMED BY MEMBERS OF THE PROFESSIONAL, MAIN-
TENANCE, CLERICAL, AND TECHNICAL BARGAINING UNIT OF A  PUBLIC  AUTHORITY
OR  WHICH  COME  WITHIN  THE  SCOPE  OF THE PROFESSIONAL PRACTICE OF THE
MEMBERS OF SUCH BARGAINING UNIT.
  (E) "CHANGE ORDER" MEANS A WRITTEN ORDER BY A PUBLIC AUTHORITY DIRECT-
ING THE CONTRACTOR TO MAKE CHANGES IN A CONTRACT.
  (F) "CONTRACT MODIFICATION" MEANS ANY WRITTEN ALTERATION TO SPECIFICA-
TIONS, DELIVERY POINT, RATE OF DELIVERY, PERIOD OF  PERFORMANCE,  PRICE,
QUALITY,  OR  OTHER  PROVISIONS  OF  ANY CONTRACT ACCOMPLISHED BY MUTUAL
ACTION OF THE PARTIES TO THE CONTRACT.
  2. GUIDELINES  FOR  CONTRACTING  FOR  SERVICES.  NO  CONTRACT  WITH  A
CONTRACTOR  FOR  SERVICES  SHALL  BE  ENTERED INTO BY A PUBLIC AUTHORITY
UNLESS CONTRACTING FOR SUCH SERVICES IS:
  (A) COST EFFECTIVE WHEN COMPARED  TO  THE  COST  OF  HAVING  A  PUBLIC
AUTHORITY PERFORM THE WORK; OR
  (B)  REQUIRED  FOR  A  SHORT  DURATION,  MAKING IT IMPRACTICAL TO HIRE
BARGAINING UNIT EMPLOYEES TO PERFORM THE SERVICE; OR
  (C) REQUIRED FOR SPECIAL EXPERTISE  NOT  CURRENTLY  AVAILABLE  IN  THE
BARGAINING UNIT; OR
  (D)  REQUIRED  DUE  TO  AN  URGENT  NEED SUCH THAT THE DELAY IN HIRING
EMPLOYEES WOULD FRUSTRATE THE PUBLIC INTEREST; OR
  (E) REQUIRED TO AVOID A CONFLICT OF INTEREST; OR
  (F) OTHERWISE REQUIRED TO BE SO CONTRACTED; OR
  (G) IN COMPLIANCE  WITH  THE  PUBLIC  AUTHORITY'S  AFFIRMATIVE  ACTION
EFFORTS  AND  WILL  NOT  CAUSE  THE PUBLIC AUTHORITY TO FAIL TO MEET ITS
AFFIRMATIVE ACTION GOALS. A CONTRACTOR MUST  ALSO  MEET  OR  EXCEED  THE
PUBLIC AUTHORITY'S GOALS FOR AFFIRMATIVE ACTION; OR
  (H)  IN  COMPLIANCE  WITH THE REQUIREMENTS OF APPLICABLE STATE, LOCAL,
AND FEDERAL LAW.
  3. COST BENEFIT ANALYSIS.  IN DETERMINING IF A CONTRACT IS COST EFFEC-
TIVE, THE PUBLIC AUTHORITY SHALL PERFORM A COST BENEFIT  ANALYSIS  WHICH
SHALL EVALUATE, BUT NOT BE LIMITED TO, THE FOLLOWING FACTORS:
  (A) REIMBURSEMENT FROM OTHER SOURCES;
  (B) BOTH THE DIRECT AND INDIRECT COSTS OF PERFORMING THE WORK;
  (C)  WHETHER  OR  NOT THE CONTRACTOR PROVIDES WAGES AND SUPPLEMENTS TO
ITS EMPLOYEES WHICH ARE COMPARABLE TO THOSE PAID  TO  SIMILAR  EMPLOYEES
PERFORMING  SIMILAR  WORK IN THE GEOGRAPHIC AREA WHERE THE WORK IS TO BE
PERFORMED. A CONTRACT MAY NOT BE CONSIDERED COST EFFECTIVE IF SUCH WAGES
AND SUPPLEMENTS ARE SUBSTANTIALLY BELOW THOSE CUSTOMARILY  PAID  IN  THE
AREA; AND
  (D) THE QUALITY OF SERVICE BEING PROVIDED.
  4. REVIEW OF CONTRACTS FOR SERVICES. (A) PRIOR TO EXECUTING A CONTRACT
FOR  SERVICES,  A  PUBLIC  AUTHORITY  SHALL PREPARE A SPECIFIC STATEMENT
WHICH SETS FORTH THE OBJECTIVE  DATA  SUPPORTING  THE  REASONS  WHY  THE
PROPOSED CONTRACT MEETS THE REQUIREMENTS SET FORTH IN SUBDIVISION TWO OF
THIS SECTION.
  (B)  (1)  PRIOR  TO  THE SCHEDULED AWARD OF A CONTRACT FOR SERVICES, A
PUBLIC AUTHORITY SHALL PROVIDE TO THE EMPLOYEE ORGANIZATION THAT REPRES-

S. 3508                             3

ENTS  PUBLIC  AUTHORITY  EMPLOYEES  WHO  WOULD  OTHERWISE  PERFORM  SUCH
SERVICES WITH COPIES OF THE STATEMENT RENDERED PURSUANT TO PARAGRAPH (A)
OF  THIS  SUBDIVISION  AND  THE  PROPOSED CONTRACT SO THAT SUCH EMPLOYEE
ORGANIZATION  SHALL HAVE AT LEAST FIFTEEN DAYS TO OBJECT TO THE PROPOSED
CONTRACT. AN EMPLOYEE ORGANIZATION WHICH PROVIDES TIMELY WRITTEN  NOTICE
OF OBJECTION AND THE REASONS THEREFOR SHALL, UNLESS THE PUBLIC AUTHORITY
AGREES  IN WRITING TO WITHDRAW THE PROPOSED CONTRACT, BE PERMITTED TO BE
HEARD BY THE PUBLIC AUTHORITY ON ITS OBJECTIONS PRIOR TO  THE  AWARD  OF
THE CONTRACT. WITHIN FIFTEEN DAYS OF RECEIPT OF ANY SUCH OBJECTIONS, THE
PUBLIC  AUTHORITY,  AFTER  CONSIDERING  THE  OBJECTIONS  OF THE EMPLOYEE
ORGANIZATION, SHALL NOTIFY THE EMPLOYEE ORGANIZATION WHETHER THE  PUBLIC
AUTHORITY  WILL  WITHDRAW  THE  PROPOSED  CONTRACT  OR  ENTER  INTO  THE
CONTRACT. IF THE PUBLIC AUTHORITY DECIDES TO ENTER  INTO  THE  CONTRACT,
AND  THE  EMPLOYEE  ORGANIZATION  STILL BELIEVES THAT THE CONTRACT IS IN
VIOLATION OF THE GUIDELINES IN SUBDIVISION  TWO  OF  THIS  SECTION,  THE
EMPLOYEE  ORGANIZATION SHALL HAVE THE RIGHT TO BRING A PROCEEDING PURSU-
ANT TO ARTICLE SEVENTY-EIGHT OF THE CIVIL  PRACTICE  LAW  AND  RULES  TO
DETERMINE  WHETHER  OR  NOT  THE  APPROVAL  WAS  IN  ACCORDANCE WITH THE
PROVISIONS OF THIS SECTION.
  (2) NOTWITHSTANDING THE PROVISIONS OF SUBPARAGRAPH ONE OF  THIS  PARA-
GRAPH,  THE EMPLOYEE ORGANIZATION MAY BE PROVIDED LESS THAN THE REQUIRED
FIFTEEN DAYS TO OBJECT TO THE PROPOSED CONTRACT  WHEN  THE  CONTRACT  IS
REQUIRED TO RESPOND TO AN EMERGENCY WITHIN THE SCOPE OF PARAGRAPH (D) OF
SUBDIVISION TWO OF THIS SECTION.
  5.  CHANGE  ORDERS  AND  CONTRACT MODIFICATIONS. IF A PUBLIC AUTHORITY
INTENDS TO CHANGE, BY USE OF A CHANGE ORDER OR CONTRACT MODIFICATION,  A
CONTRACT  FOR SERVICES, AND SUCH CHANGE RESULTS IN CAUSING THE AMOUNT OF
THE CONTRACT TO EXCEED ONE HUNDRED TWENTY-FIVE PERCENT OF  THE  ORIGINAL
CONTRACT  AMOUNT,  THEN APPROVAL OF SUCH CHANGES SHALL BE SUBJECT TO THE
PROVISIONS OF SUBDIVISION FOUR OF THIS SECTION.
  S 2. This act shall take effect on the first of April next  succeeding
the date on which it shall have become a law.