S T A T E O F N E W Y O R K
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2064
2009-2010 Regular Sessions
I N A S S E M B L Y
January 15, 2009
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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
OTHER GROUNDS WHICH THE AUTHORITY FINDS APPROPRIATE WHICH SHALL INCLUDE
BUT NOT BE LIMITED TO:
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD03197-01-9
A. 2064 2
(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 chapter 741 of the laws of 2005, 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 twenty thousand dollars and all purchase contracts involving
an expenditure of more than ten 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 secu-
rity after advertisement for sealed bids in the manner provided by this
section. In any case where a responsible bidder's gross price is reduci-
ble by an allowance for the value of used machinery, equipment, appara-
tus 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 or its discretion, reject all
bids and readvertise for new bids in the manner provided by this
section. For purposes of this section, "sealed bids", as that term
applies to purchase contracts, shall include bids submitted in an elec-
tronic format, provided that the governing board of the political subdi-
A. 2064 3
vision or district, by resolution, has authorized the receipt of bids in
such format. Submission in electronic format may not, however, 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 promulgated and
guidelines developed thereunder and, at a minimum, must (a) document the
time and date of receipt of each bid 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
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 specifica-
tions shall be the responsibility solely of each bidder or prospective
bidder. No political subdivision or district therein shall incur any
liability from delays of or interruptions in the receiving device desig-
nated 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 SUBCON-
TRACTOR 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 chapter 413 of the laws of 1991, 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 twenty thousand dollars and all purchase contracts involving
an expenditure of more than ten 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 secu-
rity after advertisement for sealed bids in the manner provided by this
section. In any case where a responsible bidder's gross price is reduci-
ble by an allowance for the value of used machinery, equipment, appara-
tus 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 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 such date the
provisions of section three of this act shall take effect.