NY State Senate Bill 2009-S4671

Senate Bill S4671

2009-2010 Legislative Session

Requires public contracts to include a clause authorizing contractors to recover damages for delay for itself as well as on behalf of subcontractors or materialmen

download bill text pdf

Archive: Last Bill Status - In Senate Committee Finance Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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Actions

View Actions

	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jan 06, 2010	referred to finance
Apr 27, 2009	referred to finance

2009-S4671 (ACTIVE) - Details

Current Committee:: Senate Finance
Law Section:: State Finance Law
Laws Affected:: Add §138-b, St Fin L
Versions Introduced in Other Legislative Sessions:: 2011-2012: S2465
2013-2014: S977

2009-S4671 (ACTIVE) - Summary

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.

2009-S4671 (ACTIVE) - Sponsor Memo

                                 BILL NUMBER:  S4671

 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 :
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.

2009-S4671 (ACTIVE) - Bill Text download pdf

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

                                  4671

                       2009-2010 Regular Sessions

                            I N  S E N A T E

                             April 27, 2009
                               ___________

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.
                                                           LBD10394-01-9

S. 4671                             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.

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