S T A T E O F N E W Y O R K
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4500
2011-2012 Regular Sessions
I N A S S E M B L Y
February 3, 2011
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Introduced by M. of A. SCHROEDER -- read once and referred to the
Committee on Labor
AN ACT to amend the labor law and the general municipal law, in relation
to the definition of lowest responsible bidder and unfair labor prac-
tices for purposes of public works projects
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. The labor law is amended by adding a new section 201-g to
read as follows:
S 201-G. DETERMINATION OF LOWEST RESPONSIBLE BIDDER. 1. WHENEVER
SELECTION OF THE LOWEST RESPONSIBLE BIDDER IS REQUIRED UNDER SECTION ONE
HUNDRED THREE OF THE GENERAL MUNICIPAL LAW, A PERSON, FIRM, CORPORATION,
SUCCESSOR CORPORATION, CONTRACTOR OR SUBCONTRACTOR SHALL NOT QUALIFY AS
A RESPONSIBLE BIDDER IF IT HAS COMMITTED ANY OF THE FOLLOWING VIOLATIONS
WITHIN A THREE YEAR PERIOD PRECEDING THE AWARD OF THE CONTRACT:
(A) A VIOLATION OF ANY PROVISION OF ARTICLE EIGHT OF THIS CHAPTER;
(B) A VIOLATION OF ANY STATE OR FEDERAL LABOR LAW INCLUDING BUT NOT
LIMITED TO OCCUPATIONAL SAFETY AND HEALTH; WAGES; CHILD LABOR; WORKERS'
COMPENSATION; UNEMPLOYMENT COMPENSATION; ORGANIZATIONAL RIGHTS; AND
LABOR STANDARDS;
(C) A VIOLATION OF ANY STATE OR FEDERAL LAW RELATING TO BID COLLUSION
OR RESTRAINT OF TRADE;
(D) A VIOLATION OF ANY STATE OR FEDERAL ENVIRONMENTAL LAW;
(E) A CRIMINAL CONVICTION OF ANY STATE OR FEDERAL LAW FOR ANY CONDUCT
RELATING TO BIDDING OR CONSTRUCTION-RELATED WORK BY THE BIDDER;
(F) AN OUTSTANDING DISQUALIFICATION FROM BIDDING ON ANY PUBLIC WORK
CONTRACT; OR
(G) A VIOLATION OF ANY STATE OR FEDERAL CIVIL RIGHTS, EMPLOYMENT DISA-
BILITY OR MINORITY PREFERENCE LAW.
2. THE PROVISIONS OF SUBDIVISION ONE OF THIS SECTION SHALL NOT DIMIN-
ISH THE DISCRETION OF THE AWARDING AUTHORITY TO DISQUALIFY A BIDDER ON
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD06863-01-1
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OTHER GROUNDS WHICH THE AUTHORITY FINDS APPROPRIATE WHICH SHALL INCLUDE
BUT NOT BE LIMITED TO:
(A) LACK OF SUFFICIENT EXPERTISE, PRIOR EXPERIENCE WITH COMPARABLE
PROJECTS, OR SUFFICIENT RESOURCES TO PERFORM THE CONTRACT IN A TIMELY
AND COMPETENT MANNER;
(B) WHETHER THE BIDDER'S EMPLOYEES ARE PROPERLY TRAINED AND WHETHER
THE EQUIPMENT TO BE USED IS SAFE AND IN GOOD OPERATING CONDITION;
(C) WHETHER THE BIDDER HAS SUBMITTED A BID THAT IS MATHEMATICALLY OR
MATERIALLY UNBALANCED;
(D) SUBMISSION OF A BID SO MUCH LOWER THAN THE AGENCY'S ENGINEER'S
ESTIMATE THAT IT SEEMS UNLIKELY THAT THE BIDDER WILL BE ABLE TO PERFORM
THE CONTRACT SATISFACTORILY AT THE PRICE BID; OR
(E) PRESENTATION OF ANY FALSE OR MISLEADING STATEMENTS TO THE AGENCY
AWARDING THE CONTRACT IN CONNECTION WITH THE BID.
3. NO PERSON ACTING ON BEHALF OF A BIDDER SHALL LOBBY THE CONSTRUCTING
GOVERNMENTAL ENTITY FOR THE PURPOSE OF ASSISTING SUCH BIDDER IN SECURING
A BID. NO BID SHALL INCLUDE ANY COSTS ATTRIBUTABLE TO LOBBYING.
4. ANY PERSON, FIRM, CORPORATION, SUCCESSOR CORPORATION, LABOR ORGAN-
IZATION, CONTRACTOR OR SUBCONTRACTOR MAY, WITHIN TEN DAYS AFTER A BID IS
ACCEPTED, FILE AN APPLICATION TO CHALLENGE THE DETERMINATION UNDER
SECTION ONE HUNDRED THREE OF THE GENERAL MUNICIPAL LAW THAT THE BIDDER
CHOSEN WAS THE LOWEST RESPONSIBLE BIDDER. UPON RECEIPT OF SUCH APPLICA-
TION, THE COMMISSIONER OR CHIEF EXECUTIVE OFFICER OF THE PUBLIC ENTITY
SHALL CONDUCT A HEARING TO DETERMINE THE VALIDITY OF THE APPLICATION.
NOTICE SHALL BE GIVEN TO THE APPLICANT AND TO THE PROPOSED LOWEST
RESPONSIBLE BIDDER OF THE DATE, TIME AND PLACE OF THE HEARING. THE
APPLICANT AND THE PROPOSED LOWEST RESPONSIBLE BIDDER SHALL BE GIVEN THE
OPPORTUNITY TO PRESENT EVIDENCE AND WITNESSES ON THEIR BEHALF. THE
COMMISSIONER OR CHIEF EXECUTIVE OFFICER PRESIDING OVER SUCH HEARING
SHALL ISSUE A WRITTEN DECISION WITH FINDINGS OF FACT WHETHER THE
PROPOSED LOWEST RESPONSIBLE BIDDER IS RESPONSIBLE. SUCH CONTRACT SHALL
NOT BE AWARDED PRIOR TO SUCH DECISION. THE AWARDING AUTHORITY SHALL
NOTIFY ALL BIDDERS REGARDING THE SELECTION OF ITS PROPOSED LOWEST
RESPONSIBLE BIDDER.
S 2. Subdivision 1 of section 103 of the general municipal law, as
amended by section 1 of part FF of chapter 56 of the laws of 2010, is
amended to read as follows:
1. Except as otherwise expressly provided by an act of the legislature
or by a local law adopted prior to September first, nineteen hundred
fifty-three, all contracts for public work involving an expenditure 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 political
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. In any case where a responsible bidder'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 subdivi-
sion, the gross price shall be reduced by the amount of such allowance,
for the purpose of determining the low bid. 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 and readvertise for new bids in the
manner provided by this section. In determining whether a purchase is an
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expenditure within the discretionary threshold amounts established by
this subdivision, the officer, board or agency of a political subdivi-
sion 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 artificially 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 permit-
ted if the change or renewal would bring the reasonably expected aggre-
gate amount of all purchases of the same commodities, services or tech-
nology from the same provider within the twelve-month period commencing
on the date of the first purchase to an amount greater than the discre-
tionary buying threshold amount. For purposes of this section, "sealed
bids", as that term applies to purchase contracts, shall include bids
submitted in an electronic format including submission of the statement
of non-collusion required by section one hundred three-d of this arti-
cle, provided that the governing board of the political subdivision or
district, by resolution, has authorized the receipt of bids in such
format. Submission in electronic format may, for technology contracts
only, be required as the sole method for the submission of bids. Bids
submitted in an electronic format shall be transmitted by bidders to the
receiving device designated by the political subdivision or district.
Any method used to receive electronic bids shall comply with article
three of the state technology law, and any rules and regulations promul-
gated and guidelines developed thereunder and, at a minimum, must (a)
document the time and date of receipt of each bid received electron-
ically; (b) authenticate the identity of the sender; (c) ensure the
security of the information transmitted; and (d) ensure the confiden-
tiality of the bid until the time and date established for the opening
of bids. The timely submission of an electronic bid in compliance with
instructions provided for such submission in the advertisement for bids
and/or the specifications shall be the responsibility solely of each
bidder or prospective bidder. No political subdivision or district ther-
ein shall incur any liability from delays of or interruptions in the
receiving device designated for the submission and receipt of electronic
bids. FOR PURPOSES OF THIS SECTION, THE TERM "LOWEST RESPONSIBLE
BIDDER" SHALL MEAN ANY PERSON, FIRM, CORPORATION, SUCCESSOR CORPORATION,
CONTRACTOR OR SUBCONTRACTOR WHO (I) SUBMITS THE LOWEST BID FOR A PUBLIC
WORK CONTRACT AND (II) IS NOT DISQUALIFIED ON GROUNDS PROVIDED IN
SECTION TWO HUNDRED ONE-G OF THE LABOR LAW.
S 3. Subdivision 1 of section 103 of the general municipal law, as
amended by section 2 of part FF of chapter 56 of the laws of 2010, is
amended to read as follows:
1. Except as otherwise expressly provided by an act of the legislature
or by a local law adopted prior to September first, nineteen hundred
fifty-three, all contracts for public work involving an expenditure 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 political
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. 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 subdivi-
A. 4500 4
sion 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 artificially divided for the purpose of satisfying the discre-
tionary 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 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. 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, her or its
discretion, reject all bids and readvertise for new bids in the manner
provided by this section. FOR PURPOSES OF THIS SECTION, THE TERM
"LOWEST RESPONSIBLE BIDDER" SHALL MEAN ANY PERSON, FIRM, CORPORATION,
SUCCESSOR CORPORATION, CONTRACTOR OR SUBCONTRACTOR WHO (A) SUBMITS THE
LOWEST BID FOR A PUBLIC WORK CONTRACT AND (B) IS NOT DISQUALIFIED ON
GROUNDS PROVIDED IN SECTION TWO HUNDRED ONE-G OF THE LABOR LAW.
S 4. This act shall take effect on the first of September next
succeeding the date on which it shall have become a law; provided that
the amendments to subdivision 1 of section 103 of the general municipal
law made by section two 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 three of this act shall take effect.