S T A T E O F N E W Y O R K
________________________________________________________________________
6410
I N S E N A T E
February 6, 2012
___________
Introduced by Sen. RIVERA -- read twice and ordered printed, and when
printed to be committed to the Committee on Local Government
AN ACT to amend the general municipal law and the state finance law, in
relation to ensuring compliance with the competitive bidding law
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Short title. This act shall be known and may be cited as
the "municipal competitive bidding enforcement act."
S 2. The general municipal law is amended by adding a new section
103-h to read as follows:
S 103-H. ENFORCEMENT OF COMPETITIVE BIDDING LAW. 1. DEFINITIONS. (A)
"PROCUREMENT ACTION" MEANS ANY TRANSACTION WHICH IS CLAIMED TO CONSTI-
TUTE A CONTRACT FOR PUBLIC WORK INVOLVING AN EXPENDITURE OF MORE THAN
TWENTY THOUSAND DOLLARS OR A PURCHASE CONTRACT INVOLVING THE EXPENDITURE
OF MORE THAN TEN THOUSAND DOLLARS WHICH SHOULD BE AWARDED TO THE LOWEST
RESPONSIBLE BIDDER, AS PROVIDED BY SECTION ONE HUNDRED THREE OF THIS
ARTICLE.
(B) "GOOD FAITH BIDDER" MEANS ANY PERSON WHO HAS SUBMITTED A BID IN
RESPONSE TO AN ADVERTISEMENT FOR SEALED BIDS, OR WHO COULD SUBMIT A GOOD
FAITH BID ON A PROCUREMENT ACTION.
2. COMPTROLLER'S OPINIONS. UPON A COMPLAINT FILED BY A TAXPAYER OF THE
POLITICAL SUBDIVISION OR BY A GOOD FAITH BIDDER, THE OFFICE OF THE STATE
COMPTROLLER SHALL ISSUE AN OPINION ON WHETHER A PROPOSED PROCUREMENT
ACTION BY A POLITICAL SUBDIVISION COMPLIES WITH THE COMPETITIVE BIDDING
REQUIREMENTS OF SECTION ONE HUNDRED THREE OF THIS ARTICLE. THE COMPLAINT
SHALL SPECIFY THE PROCUREMENT ACTION THAT IS CLAIMED TO VIOLATE SECTION
ONE HUNDRED THREE OF THIS ARTICLE. THE TAXPAYER OR GOOD FAITH BIDDER
SHALL SERVE A COPY OF THE COMPLAINT ON THE POLITICAL SUBDIVISION PRIOR
TO SERVING THE COMPLAINT ON THE COMPTROLLER. UPON THE FILING OF A PRIMA
FACIE VALID COMPLAINT WITH THE COMPTROLLER, THE COMPTROLLER SHALL NOTIFY
THE POLITICAL SUBDIVISION. UPON RECEIPT OF SUCH NOTICE FROM THE COMP-
TROLLER, THE POLITICAL SUBDIVISION MAY NOT PROCEED WITH THE COMPLAINT OF
PROCUREMENT ACTION FOR A PERIOD OF THIRTY DAYS. IN RENDERING HIS OR HER
OPINION, THE COMPTROLLER MAY CONSULT WITH THE OFFICE OF GENERAL
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD14411-01-2
S. 6410 2
SERVICES AS TO THE REASONABLENESS AND VALIDITY OF ANY BID SPECIFICA-
TIONS. THE COMPTROLLER SHALL ISSUE A WRITTEN OPINION PURSUANT TO THIS
SUBDIVISION WITHIN THIRTY DAYS OF SUCH NOTICE TO THE POLITICAL SUBDIVI-
SION AND SHALL PROMPTLY SERVE COPIES OF THE OPINION ON THE POLITICAL
SUBDIVISION AND ON THE COMPLAINING PARTY.
3. ATTORNEY GENERAL. IF THE COMPTROLLER'S OPINION IS THAT THE PROCURE-
MENT ACTION WOULD VIOLATE SECTION ONE HUNDRED THREE OF THIS ARTICLE, THE
COMPTROLLER SHALL TRANSMIT A COPY OF THE OPINION TO THE ATTORNEY GENER-
AL. NOTWITHSTANDING ANY OTHER PROVISION OF LAW, THE ATTORNEY GENERAL IS
AUTHORIZED TO BRING A SPECIAL PROCEEDING IN THE SUPREME COURT TO HAVE A
PROCUREMENT ACTION ENJOINED OR DECLARED NULL AND VOID ON THE GROUND THAT
IT IS IN VIOLATION OF SECTION ONE HUNDRED THREE OF THIS ARTICLE.
4. DAMAGES TO GOOD FAITH BIDDER. A GOOD FAITH BIDDER MAY BRING AN
ACTION IN THE SUPREME COURT TO RECOVER DAMAGES AND ATTORNEY'S FEES FROM
A POLITICAL SUBDIVISION, WHICH ENGAGES IN A VIOLATION OF SECTION ONE
HUNDRED THREE OF THIS ARTICLE. THE COURT SHALL AWARD DAMAGES AND ATTOR-
NEY'S FEES IF THE COURT FINDS THAT THE GOOD FAITH BIDDER WOULD HAVE BEEN
THE LOWEST RESPONSIBLE BIDDER, BUT FOR THE POLITICAL SUBDIVISION'S
VIOLATION OF SECTION ONE HUNDRED THREE OF THIS ARTICLE. THE COURT IS
AUTHORIZED IN ANY SUCH ACTION TO DECLARE AN ILLEGALLY AWARDED CONTRACT
TO BE NULL AND VOID.
(A) IF THE COMPTROLLER HAS ISSUED AN OPINION THAT THE PROCUREMENT
ACTION WOULD BE IN VIOLATION OF SECTION ONE HUNDRED THREE OF THIS ARTI-
CLE AND THE POLITICAL SUBDIVISION HAS THEREAFTER PROCEEDED WITH THE
PROCUREMENT ACTION, THE MEASURE OF DAMAGES SHALL BE THREE TIMES THE GOOD
FAITH BIDDER'S LOST PROFITS.
(B) IF THE COMPTROLLER HAS NOT ISSUED AN OPINION THAT THE PROCUREMENT
ACTION WOULD BE IN VIOLATION OF SECTION ONE HUNDRED THREE OF THIS ARTI-
CLE, THE MEASURE OF DAMAGES SHALL BE THE LESSER OF (I) THE GOOD FAITH
BIDDER'S LOST PROFITS AND (II) THE DIFFERENCE BETWEEN THE PRICE OF THE
NULLIFIED CONTRACT AND ANY AMOUNT THAT THE COURT AWARDS TO THE PERSON
WHO PERFORMED ON THE NULLIFIED CONTRACT.
5. CIVIL PENALTY. ANY PERSON WHO SHALL WILFULLY AND INTENTIONALLY
VIOLATE THE COMPETITIVE BIDDING REQUIREMENTS OF SECTION ONE HUNDRED
THREE OF THIS ARTICLE SHALL BE PERSONALLY LIABLE FOR A CIVIL PENALTY OF
NOT MORE THAN ONE THOUSAND DOLLARS. IN A PROCEEDING BROUGHT PURSUANT TO
THIS SECTION, THE COMPTROLLER'S OPINIONS AND AUDITS MAY BE ADMITTED INTO
EVIDENCE ON THE ISSUE OF THE RESPONDENT'S STATE OF MIND, PROVIDED THAT
(A) THE OPINION OR AUDIT WAS ISSUED PRIOR TO THE ALLEGED VIOLATION, (B)
THE OPINION OR AUDIT WAS ISSUED NO MORE THAN TEN YEARS PRIOR TO THE
ALLEGED VIOLATION, AND (C) THE OPINION OR AUDIT CONCERNED THE SAME KIND
OF ITEM OR SAME KIND OF PRACTICE AS THE ALLEGED VIOLATION.
6. COMPLAINT FEE. WHENEVER THE COMPTROLLER ACCEPTS A COMPLAINT FOR
FILING PURSUANT TO THIS SECTION, THE COMPTROLLER SHALL REQUIRE AND
COLLECT A FEE OF ONE HUNDRED DOLLARS, WHICH SHALL BE PAID INTO THE STATE
TREASURY AND WHICH SHALL, SO FAR AS IS NECESSARY, BE APPROPRIATED ANNU-
ALLY BY THE LEGISLATURE TO THE COMPTROLLER TO BE USED IN IMPLEMENTING
THIS ARTICLE.
S 3. Section 103 of the general municipal law is amended by adding a
new subdivision 14 to read as follows:
14. EXCEPT AS OTHERWISE EXPRESSLY AUTHORIZED BY THIS ARTICLE, A POLI-
TICAL SUBDIVISION MAY NOT REQUIRE THAT BIDS CONFORM TO UNDULY RESTRIC-
TIVE SPECIFICATIONS. ALL SPECIFICATIONS SHALL BE DRAFTED SO AS TO
PROMOTE OVERALL ECONOMY FOR THE PURPOSES INTENDED AND TO ENCOURAGE
COMPETITION IN SATISFYING THE NEEDS OF THE POLITICAL SUBDIVISION. A
BRAND NAME MAY BE USED AS A SPECIFICATION ONLY IF THE SPECIFICATION
S. 6410 3
CLEARLY STATES THAT THE BRAND NAME OR EQUIVALENT IS ACCEPTABLE. WHERE A
BRAND NAME OR EQUIVALENT SPECIFICATION IS USED IN A BID SOLICITATION,
THE SOLICITATION SHALL CONTAIN EXPLANATORY LANGUAGE THAT THE USE OF A
BRAND NAME IS FOR THE PURPOSE OF DESCRIBING THE STANDARD OF QUALITY,
PERFORMANCE AND CHARACTERISTICS DESIRED AND IS NOT INTENDED TO LIMIT OR
RESTRICT COMPETITION. IN ANY OPINION, PROCEEDING OR ACTION BROUGHT
PURSUANT TO SECTION ONE HUNDRED THREE-H OF THIS ARTICLE, A BID SPECIFI-
CATION DEVELOPED AND PROVIDED BY THE OFFICE OF GENERAL SERVICES SHALL BE
DEEMED VALID.
S 4. Subdivision 2 of section 103 of the general municipal law, as
amended by section 4 of chapter 608 of the laws of 2011, is amended to
read as follows:
2. Advertisement for bids and offers shall be published in the offi-
cial newspaper or newspapers, if any, or otherwise in a newspaper or
newspapers designated for such purpose. Such advertisement shall contain
a statement of the time when and place where all bids received pursuant
to such notice will be publicly opened and read and where the identity
of all offerers will be publicly disclosed, and the designation of the
receiving device if the political subdivision or district has authorized
the receipt of bids and offers in an electronic format. Such board or
agency may by resolution designate any officer or employee to open the
bids and offers at the time and place specified in the notice. Such
designee shall make a record of such bids and offers in such form and
detail as the board or agency shall prescribe and present the same at
the next regular or special meeting of such board or agency. All bids
received shall be publicly opened and read at the time and place so
specified and the identity of all offerers shall be publicly disclosed
at the time and place so specified. ALL BIDS RECEIVED AND OPENED SHALL
BE PUBLIC RECORDS AND SHALL BE AVAILABLE FOR PUBLIC INSPECTION AND COPY-
ING. At least five days shall elapse between the first publication of
such advertisement and the date so specified for the opening and reading
of bids and offers.
S 5. Subdivision 2 of section 103 of the general municipal law, as
amended by section 5 of chapter 608 of the laws of 2011, is amended to
read as follows:
2. Advertisement for bids and offers shall be published in the offi-
cial newspaper or newspapers, if any, or otherwise in a newspaper or
newspapers designated for such purpose. Such advertisement shall contain
a statement of the time when and place where all bids received pursuant
to such notice will be publicly opened and read and where the identity
of all offerers will be publicly disclosed. Such board or agency may by
resolution designate any officer or employee to open the bids and offers
at the time and place specified in the notice. Such designee shall make
a record of such bids and offers in such form and detail as the board or
agency shall prescribe and present the same at the next regular or
special meeting of such board or agency. All bids received shall be
publicly opened and read at the time and place so specified and the
identity of all offerers shall be publicly disclosed at the time and
place so specified. ALL BIDS RECEIVED AND OPENED SHALL BE PUBLIC
RECORDS AND SHALL BE AVAILABLE FOR PUBLIC INSPECTION AND COPYING. At
least five days shall elapse between the first publication of such
advertisement and the date so specified for the opening and reading of
bids and offers.
S 6. Subparagraph 1 of paragraph (b) of subdivision 4 of section 35 of
the general municipal law, as amended by chapter 692 of the laws of
1989, is amended to read as follows:
S. 6410 4
(1) Not later than ninety days after presentation to the governing
board of a report of examination performed by the office of the state
comptroller, or receipt by the governing board of any report of an
external audit performed by an independent public accountant or any
management letter in conjunction with such an audit, the governing board
may, in its discretion, provide to the comptroller, and file in the
office of the clerk, or with the secretary if there is no clerk, of the
municipal corporation, industrial development agency, district, agency
or activity, a written response to the findings and recommendations, if
any, in the report or letter. PROVIDED, HOWEVER, THAT IF SUCH REPORT OR
LETTER CONTAINS A FINDING THAT THE COMPETITIVE BIDDING REQUIREMENTS OF
SECTION ONE HUNDRED THREE OF THIS CHAPTER WERE VIOLATED, THE GOVERNING
BOARD MUST FILE A WRITTEN RESPONSE. In the case of municipal corpo-
rations, industrial development agency, districts, agencies or activ-
ities subject to examination by the commissioner of education, any writ-
ten response shall also be provided to such commissioner.
S 7. The state finance law is amended by adding a new section 164-a to
read as follows:
S 164-A. PROVIDING BID SPECIFICATIONS TO POLITICAL SUBDIVISIONS. THE
COMMISSIONER OF GENERAL SERVICES SHALL PROVIDE TO ANY POLITICAL SUBDIVI-
SION, AT NO CHARGE, ANY SPECIFICATION THAT THE COMMISSIONER HAS DEVEL-
OPED FOR ITEMS TO BE LET FOR BIDS IN PURCHASE CONTRACTS. THE COMMISSION-
ER MAY DEVELOP ADDITIONAL SPECIFICATIONS AT THE REQUEST OF ANY POLITICAL
SUBDIVISION AND MAY PROVIDE SUCH SPECIFICATIONS TO THE POLITICAL SUBDI-
VISION AND MAY CHARGE THE POLITICAL SUBDIVISION FOR THE COST OF DEVELOP-
ING SUCH SPECIFICATIONS.
S 8. If any clause, sentence, paragraph, section or part of this act
shall be adjudged by any court of competent jurisdiction to be invalid,
such judgment shall not affect, impair or invalidate the remainder ther-
eof, but shall be confined in its operation to the clause, sentence,
paragraph, section or part thereof directly involved in the controversy
in which such judgment shall have been rendered.
S 9. This act shall take effect on the first of January next succeed-
ing the date on which it shall have become a law; provided, however, the
amendments to subdivision 2 of section 103 of the general municipal law
made by section four of this act shall not affect the expiration and
reversion of such subdivision pursuant to subdivision (a) of section 41
of part X of chapter 62 of the laws of 2003, as amended, when upon such
date the provisions of section five of this act shall take effect.