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

                                  8948

                          I N  A S S E M B L Y

                               (PREFILED)

                             January 4, 2012
                               ___________

Introduced by M. of A. WEPRIN -- read once and referred to the Committee
  on Governmental Operations

AN  ACT to amend the state finance law and the general municipal law, in
  relation  to   determining   contractor   responsibility   on   public
  construction projects

  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
139-l to read as follows:
  S  139-L.  CONTRACTOR  AND  SUBCONTRACTOR  RESPONSIBILITY.  1. FOR THE
PURPOSE OF THIS SECTION, THE FOLLOWING TERMS SHALL  HAVE  THE  FOLLOWING
MEANINGS UNLESS OTHERWISE SPECIFIED:
  A.  "APPARENT LOW BIDDER" SHALL MEAN A BIDDER WHO, UPON THE OPENING OF
BIDS FOR A CONTRACT, IS DETERMINED TO HAVE SUBMITTED THE LOWEST BID  FOR
SUCH CONTRACT.
  B.  "BIDDER"  SHALL MEAN ANY PERSON, PARTNERSHIP, FIRM, CORPORATION OR
OTHER ENTITY SUBMITTING A COMPETITIVE BID FOR, OR SUBMITTED FOR APPROVAL
AS A SUBCONTRACTOR ON, A CONTRACT BY ANY CONTRACTING ENTITY.
  C.  "CONTRACT"  SHALL  MEAN  ANY  CONTRACT  MADE   AND   AWARDED   FOR
CONSTRUCTION,  RECONSTRUCTION  OR  ALTERATION OF ANY PUBLIC WORK PROJECT
WHICH IS REQUIRED BY LAW TO BE LET BY COMPETITIVE BIDDING TO THE  LOWEST
RESPONSIBLE BIDDER BY A CONTRACTING ENTITY.
  D. "CONTRACTING ENTITY" SHALL MEAN ANY PUBLIC DEPARTMENT, PUBLIC BENE-
FIT  CORPORATION  OR  PUBLIC  CORPORATION COVERED BY SECTION ONE HUNDRED
THIRTY-NINE-F OF THIS ARTICLE OR SECTION  THIRTY-EIGHT  OF  THE  HIGHWAY
LAW.
  E. "CONTRACTOR" SHALL MEAN A BIDDER WHO HAS BEEN AWARDED A CONTRACT.
  F. "SUBCONTRACTOR" SHALL MEAN A PERSON, PARTNERSHIP, FIRM, CORPORATION
OR OTHER ENTITY THAT IS PROPOSED TO PERFORM WORK ON THE CONTRACT.
  2.  IN  DELIBERATING  UPON  THE RESPONSIBILITY OF A BIDDER OR PROPOSED
SUBCONTRACTOR ON A CONTRACT,  THE  CONTRACTING  ENTITY  SHALL  GIVE  DUE
CONSIDERATION  TO ANY CREDIBLE EVIDENCE OR INFORMATION REASONABLY DEEMED
TO BE RELIABLE THAT THE PAST OR CURRENT RECORD OF A BIDDER  OR  PROPOSED

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
              

                      [ ] is old law to be omitted.
                                                           LBD06368-01-1

A. 8948                             2

SUBCONTRACTOR  SHALL WARRANT A DETERMINATION THAT SUCH BIDDER OR SUBCON-
TRACTOR IS NOT A RESPONSIBLE BIDDER. THE CONTRACTING ENTITY,  IN  DETER-
MINING  THE RESPONSIBILITY OF THE APPARENT LOW BIDDER SHALL REQUIRE, AND
THE  APPARENT LOW BIDDER SHALL PROVIDE, THE FOLLOWING INFORMATION RELAT-
ING TO THE APPARENT LOW BIDDER IN ORDER FOR THE  CONTRACTING  ENTITY  TO
DETERMINE  THE  PECUNIARY  AND FINANCIAL RESPONSIBILITY, ACCOUNTABILITY,
OPERATIONAL RESPONSIBILITY, RELIABILITY, SKILL, CAPACITY, ABILITY, JUDG-
MENT AND INTEGRITY OF THE APPARENT LOW BIDDER:
  A. A DESCRIPTION OF ITS EXPERIENCE WITH PROJECTS OF COMPARATIVE SCOPE,
COMPLEXITY, AND COST WITHIN THE PAST FIVE YEARS, TOGETHER WITH  DOCUMEN-
TARY EVIDENCE OF SUCH PROJECTS;
  B.  DOCUMENTATION  REGARDING  SUCH  PROJECTS DESCRIBING THE FOLLOWING:
TIMELINESS OF PERFORMANCE; QUALITY OF WORK;  EXTENSION  REQUESTS;  LITI-
GATION  AND/OR  ARBITRATION  ARISING FROM SUCH WORK, INCLUDING FINES AND
PENALTIES IMPOSED AND PAYMENT THEREOF; LIENS FILED;  HISTORY  OF  CLAIMS
FOR EXTRA WORK; CONTRACT DEFAULTS; AND AN EXPLANATION OF THE SAME;
  C.  IDENTIFICATION AND DESCRIPTION OF ANY PROJECTS WITHIN THE PREVIOUS
FIVE YEARS THAT THE APPARENT LOW BIDDER WAS DETERMINED BY THE  CONTRACT-
ING ENTITY NOT TO BE A RESPONSIBLE BIDDER, AND THE REASONS GIVEN BY SUCH
ENTITY THEREFORE, TOGETHER WITH AN EXPLANATION THEREOF;
  D.  AN  ADEQUATE  DEMONSTRATION OF FINANCIAL RESPONSIBILITY, WHICH MAY
INCLUDE A CERTIFIED FINANCIAL STATEMENT PREPARED BY A  CERTIFIED  PUBLIC
ACCOUNTANT,  TO  ASSURE  THAT THE APPARENT LOW BIDDER POSSESSES ADEQUATE
RESOURCES AND AVAILABILITY OF  CREDIT  AND  THE  MEANS  AND  ABILITY  TO
PROCURE INSURANCE AND BONDS REQUIRED FOR THE PROJECT;
  E.  DISCLOSURE  OF  ANY SUSPENSIONS OR REVOCATIONS OF ANY PROFESSIONAL
LICENSE OF ANY DIRECTOR, OFFICER, OWNER OR MANAGERIAL  EMPLOYEE  OF  THE
APPARENT  LOW  BIDDER,  TO  THE  EXTENT THAT ANY WORK TO BE PERFORMED IS
WITHIN THE FIELD OF SUCH LICENSED PROFESSION;
  F. DISCLOSURE OF ANY AND ALL UNITED  STATES  OCCUPATIONAL  SAFETY  AND
HEALTH ADMINISTRATION VIOLATIONS WITHIN THE PREVIOUS FIVE YEARS, AS WELL
AS ALL NOTICES OF SUCH VIOLATIONS AGAINST THE APPARENT LOW BIDDER IN THE
SAME  FIVE  YEAR  PERIOD, TOGETHER WITH A DESCRIPTION AND EXPLANATION OF
REMEDIATION OR OTHER STEPS TAKEN REGARDING SUCH VIOLATIONS  AND  NOTICES
OF VIOLATIONS;
  G.  DISCLOSURE OF ANY AND ALL VIOLATIONS OF ARTICLE EIGHT OF THE LABOR
LAW AND ANY OTHER PROVISION OF SUCH LAW, INCLUDING BUT NOT  LIMITED  TO,
CHILD  LABOR VIOLATIONS, FAILURE TO PAY WAGES AND UNEMPLOYMENT INSURANCE
TAX DELINQUENCIES WITHIN THE PAST FIVE YEARS;
  H.  DISCLOSURE OF VIOLATIONS OF THE WORKERS' COMPENSATION LAW, INCLUD-
ING, BUT NOT LIMITED TO THE FAILURE TO PROVIDE PROOF OF WORKERS' COMPEN-
SATION OR DISABILITY COVERAGE AND/OR ANY LAPSES THEREOF;
  I. DISCLOSURE OF ANY FELONY CONVICTIONS, INVOLVING THE LOWEST  RESPON-
SIBLE  BIDDER,  ITS  OFFICERS, DIRECTORS, OWNERS OR MANAGERIAL EMPLOYEES
WITHIN THE PAST FIVE YEARS; AND
  J. DISCLOSURE OF ANY VIOLATIONS WITHIN THE PAST FIVE YEARS OR  PENDING
CHARGES  CONCERNING  FEDERAL,  STATE  OR  MUNICIPAL ENVIRONMENTAL AND/OR
HEALTH LAWS, CODES, RULES AND/OR REGULATIONS.
  3. WHEN REQUESTED BY THE CONTRACTING ENTITY AFTER  THE  BID  HAS  BEEN
SUBMITTED  BUT  BEFORE  ANY  OF  THE  SUBCONTRACTED  WORK COMMENCES, THE
CONTRACTOR SHALL IDENTIFY ALL WORK TO BE SUBCONTRACTED  ALONG  WITH  THE
NAME  OF  THE FIRM OR FIRMS TO WHICH THE WORK WILL BE SUBCONTRACTED. THE
APPROVAL OF THE SUBCONTRACTOR BY THE CONTRACTING ENTITY, AS PROVIDED  BY
THE  CONTRACT, SHALL BE SUBJECT TO THE SAME EVALUATION OF RESPONSIBILITY
CONTAINED WITHIN THIS SECTION FOR THE CONTRACTOR.

A. 8948                             3

  4. PRIOR TO A FINAL DETERMINATION THAT THE APPARENT LOW BIDDER IS  NOT
RESPONSIBLE,  THE  CONTRACTING  ENTITY  SHALL  NOTIFY  THE PARTY OF SUCH
DETERMINATION, IN WRITING, STATING THE REASONS FOR  SUCH  DETERMINATION,
AND  SETTING FORTH A TIME, DATE AND PLACE FOR THE APPARENT LOW BIDDER TO
APPEAR  AND  BE  HEARD, PRIOR TO SUCH DETERMINATION BEING MADE REGARDING
ITS RESPONSIBILITY. IN THE EVENT  OF  A  FINAL  DETERMINATION  THAT  THE
APPARENT  LOW  BIDDER  IS  NOT RESPONSIBLE, THE NEXT LOWEST BIDDER SHALL
BECOME THE APPARENT LOW BIDDER AND SHALL BE SUBJECT TO THE  REQUIREMENTS
SET FORTH IN THIS SECTION.
  S  2.  The  general  municipal  law is amended by adding a new section
103-g to read as follows:
  S 103-G. CONTRACTOR  AND  SUBCONTRACTOR  RESPONSIBILITY.  1.  FOR  THE
PURPOSE  OF  THIS  SECTION, THE FOLLOWING TERMS SHALL HAVE THE FOLLOWING
MEANINGS UNLESS OTHERWISE SPECIFIED:
  A. "APPARENT LOW BIDDER" SHALL MEAN A BIDDER WHO, UPON THE OPENING  OF
BIDS  FOR A CONTRACT, IS DETERMINED TO HAVE SUBMITTED THE LOWEST BID FOR
SUCH CONTRACT.
  B. "BIDDER" SHALL MEAN ANY PERSON, PARTNERSHIP, FIRM,  CORPORATION  OR
OTHER ENTITY SUBMITTING A COMPETITIVE BID FOR, OR SUBMITTED FOR APPROVAL
AS A SUBCONTRACTOR ON, A CONTRACTOR BY ANY CONTRACTING ENTITY.
  C.  "CONTRACT"  SHALL MEAN ANY CONTRACT WHICH IS REQUIRED BY LAW TO BE
LET BY COMPETITIVE BID BY A CONTRACTING ENTITY FOR CONSTRUCTION,  RECON-
STRUCTION OR ALTERATION OF ANY PUBLIC WORK PROJECT TO THE LOWEST RESPON-
SIBLE BIDDER.
  D.  "CONTRACTING  ENTITY"  SHALL  MEAN  A POLITICAL SUBDIVISION OR ANY
DISTRICT THEREIN.
  2. IN DELIBERATING UPON THE RESPONSIBILITY OF  A  BIDDER  OR  PROPOSED
SUBCONTRACTOR  ON  A  CONTRACT,  THE  CONTRACTING  ENTITY SHALL GIVE DUE
CONSIDERATION TO ANY CREDIBLE EVIDENCE OR INFORMATION REASONABLY  DEEMED
TO  BE  RELIABLE THAT THE PAST OR CURRENT RECORD OF A BIDDER OR PROPOSED
SUBCONTRACTOR SHALL WARRANT A DETERMINATION THAT SUCH BIDDER OR  SUBCON-
TRACTOR  IS  NOT A RESPONSIBLE BIDDER. THE CONTRACTING ENTITY, IN DETER-
MINING THE RESPONSIBILITY OF THE APPARENT LOW BIDDER SHALL REQUIRE,  AND
THE  APPARENT LOW BIDDER SHALL PROVIDE, THE FOLLOWING INFORMATION RELAT-
ING TO THE APPARENT LOW BIDDER IN ORDER FOR THE  CONTRACTING  ENTITY  TO
DETERMINE  THE  PECUNIARY  AND FINANCIAL RESPONSIBILITY, ACCOUNTABILITY,
OPERATIONAL RESPONSIBILITY, RELIABILITY, SKILL, CAPACITY, ABILITY, JUDG-
MENT AND INTEGRITY OF THE APPARENT LOW BIDDER:
  A. A DESCRIPTION OF ITS EXPERIENCE WITH PROJECTS OF COMPARATIVE SCOPE,
COMPLEXITY, AND COST WITHIN THE PAST FIVE YEARS, TOGETHER WITH  DOCUMEN-
TARY EVIDENCE OF SUCH PROJECTS;
  B.  DOCUMENTATION  REGARDING  SUCH  PROJECTS DESCRIBING THE FOLLOWING:
TIMELINESS OF PERFORMANCE; QUALITY OF WORK;  EXTENSION  REQUESTS;  LITI-
GATION  AND/OR  ARBITRATION  ARISING FROM SUCH WORK, INCLUDING FINES AND
PENALTIES IMPOSED AND PAYMENT THEREOF; LIENS FILED;  HISTORY  OF  CLAIMS
FOR EXTRA WORK; CONTRACT DEFAULTS; AND AN EXPLANATION OF THE SAME;
  C.  IDENTIFICATION AND DESCRIPTION OF ANY PROJECTS WITHIN THE PREVIOUS
FIVE YEARS THAT THE APPARENT LOW BIDDER WAS DETERMINED BY THE  CONTRACT-
ING    ENTITY  NOT  TO BE A RESPONSIBLE BIDDER, AND THE REASONS GIVEN BY
SUCH ENTITY THEREFORE, TOGETHER WITH AN EXPLANATION THEREOF;
  D. AN ADEQUATE DEMONSTRATION OF FINANCIAL  RESPONSIBILITY,  WHICH  MAY
INCLUDE  A  CERTIFIED FINANCIAL STATEMENT PREPARED BY A CERTIFIED PUBLIC
ACCOUNTANT, TO ASSURE THAT THE APPARENT LOW  BIDDER  POSSESSES  ADEQUATE
RESOURCES  AND  AVAILABILITY  OF  CREDIT  AND  THE  MEANS AND ABILITY TO
PROCURE INSURANCE AND BONDS REQUIRED FOR THE PROJECT;

A. 8948                             4

  E. DISCLOSURE OF ANY SUSPENSIONS OR REVOCATIONS  OF  ANY  PROFESSIONAL
LICENSE  OF  ANY  DIRECTOR, OFFICER, OWNER OR MANAGERIAL EMPLOYEE OF THE
APPARENT LOW BIDDER, TO THE EXTENT THAT ANY  WORK  TO  BE  PERFORMED  IS
WITHIN THE FIELD OF SUCH LICENSED PROFESSION;
  F.  DISCLOSURE  OF  ANY  AND ALL UNITED STATES OCCUPATIONAL SAFETY AND
HEALTH ADMINISTRATION VIOLATIONS WITHIN THE PREVIOUS FIVE YEARS, AS WELL
AS ALL NOTICES OF SUCH VIOLATIONS FILED AGAINST THE APPARENT LOW  BIDDER
IN  THE  SAME FIVE YEAR PERIOD, TOGETHER WITH A DESCRIPTION AND EXPLANA-
TION OF REMEDIATION OR OTHER STEPS TAKEN REGARDING SUCH  VIOLATIONS  AND
NOTICES OF VIOLATIONS;
  G.  DISCLOSURE OF ANY AND ALL VIOLATIONS OF ARTICLE EIGHT OF THE LABOR
LAW AND ANY OTHER PROVISION OF SUCH LAW, INCLUDING BUT NOT  LIMITED  TO,
CHILD  LABOR VIOLATIONS, FAILURE TO PAY WAGES AND UNEMPLOYMENT INSURANCE
TAX DELINQUENCIES WITHIN THE PAST FIVE YEARS;
  H. DISCLOSURE OF VIOLATIONS OF THE WORKERS' COMPENSATION LAW,  INCLUD-
ING BUT NOT LIMITED TO, THE FAILURE TO PROVIDE PROOF OF WORKERS' COMPEN-
SATION OR DISABILITY COVERAGE AND/OR ANY LAPSES THEREOF;
  I.  DISCLOSURE  OF  ANY  FELONY  CONVICTIONS OF THE LOWEST RESPONSIBLE
BIDDER, ITS OFFICERS, DIRECTORS, OWNERS OR MANAGERIAL  EMPLOYEES  WITHIN
THE PAST FIVE YEARS; AND
  J.  DISCLOSURE OF ANY VIOLATIONS WITHIN THE PAST FIVE YEARS OR PENDING
CHARGES CONCERNING FEDERAL,  STATE  OR  MUNICIPAL  ENVIRONMENTAL  AND/OR
HEALTH LAWS, CODES, RULES AND/OR REGULATIONS.
  3.  WHEN  REQUESTED  BY  THE CONTRACTING ENTITY AFTER THE BID HAS BEEN
SUBMITTED BUT BEFORE  ANY  OF  THE  SUBCONTRACTED  WORK  COMMENCES,  THE
CONTRACTOR  SHALL  IDENTIFY  ALL WORK TO BE SUBCONTRACTED ALONG WITH THE
NAME OF THE FIRM OR FIRMS TO WHICH THE WORK WILL BE  SUBCONTRACTED.  THE
APPROVAL  OF THE SUBCONTRACTOR BY THE CONTRACTING ENTITY, AS PROVIDED BY
THE CONTRACT, SHALL BE SUBJECT TO THE SAME EVALUATION OF  RESPONSIBILITY
CONTAINED WITHIN THIS SECTION FOR THE CONTRACTOR.
  4.  PRIOR TO A FINAL DETERMINATION THAT THE APPARENT LOW BIDDER IS NOT
RESPONSIBLE, THE CONTRACTING ENTITY  SHALL  NOTIFY  THE  PARTY  OF  SUCH
DETERMINATION,  IN  WRITING, STATING THE REASONS FOR SUCH DETERMINATION,
AND SETTING FORTH A TIME, DATE AND PLACE FOR THE APPARENT LOW BIDDER  TO
APPEAR  AND  BE  HEARD, PRIOR TO SUCH DETERMINATION BEING MADE REGARDING
ITS RESPONSIBILITY. IN THE EVENT  OF  A  FINAL  DETERMINATION  THAT  THE
APPARENT  LOW  BIDDER  IS  NOT RESPONSIBLE, THE NEXT LOWEST BIDDER SHALL
BECOME THE APPARENT LOW BIDDER AND SHALL BE SUBJECT TO THE  REQUIREMENTS
SET FORTH IN THIS SECTION.
  S  3.  This  act shall take effect on the thirtieth day after it shall
have become a law and shall be applicable to  all  contracts  advertised
for bid on or after such date.