S T A T E O F N E W Y O R K
________________________________________________________________________
3017
2011-2012 Regular Sessions
I N A S S E M B L Y
January 21, 2011
___________
Introduced by M. of A. SCHROEDER -- read once and referred to the
Committee on Local Governments
AN ACT to amend the state finance law and the general municipal law, in
relation to requirements for selecting the lowest responsible bidder
for certain public works 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
135-b to read as follows:
S 135-B. LOWEST RESPONSIBLE BIDDER. 1. DEFINITION. FOR THE PURPOSES OF
THIS ARTICLE, "LOWEST RESPONSIBLE BIDDER" SHALL MEAN THE PERSON, FIRM,
CORPORATION, CONTRACTOR OR SUBCONTRACTOR OR OTHER ENTITY SUBMITTING A
BID FOR A PUBLIC WORK CONTRACT FOR THE ERECTION, CONSTRUCTION, RECON-
STRUCTION OR ALTERATION OF BUILDINGS WHO:
A. SUBMITS THE LOWEST BID; AND
B. IS NOT DISQUALIFIED ON ANY OF THE GROUNDS LISTED UNDER SUBDIVISION
FIVE OF THIS SECTION.
2. USE OF QUESTIONNAIRE TO DETERMINE RESPONSIBILITY OF CONTRACTORS AND
SUBCONTRACTORS. A. NO PUBLIC WORK CONTRACT MAY BE AWARDED BY AN AGENCY,
DEPARTMENT, PUBLIC AUTHORITY OR PUBLIC BENEFIT CORPORATION, OFFICE OR
OTHER ENTITY OF THE STATE, TO THE LOWEST RESPONSIBLE BIDDER UNLESS EACH
CONTRACTOR AND SUBCONTRACTOR FOR THE CONTRACT SUBMITS, AND THE CONTRACT-
ING ENTITY REVIEWS, A QUESTIONNAIRE DEMONSTRATING ITS RESPONSIBILITY TO
PERFORM THE CONTRACT.
B. QUESTIONNAIRES MUST BE SUBMITTED TO THE CONTRACTING ENTITY AND TO
THE COMPTROLLER WHO SHALL MAINTAIN THE INFORMATION IN AN ELECTRONIC
DATABASE FOR REVIEW BY ANY STATE OR LOCAL CONTRACTING ENTITY THAT AWARDS
PUBLIC WORK CONTRACTS.
3. CONTENTS OF QUESTIONNAIRE. THE COMPTROLLER SHALL PREPARE A UNIFORM
QUESTIONNAIRE FOR USE BY STATE AND LOCAL CONTRACTING ENTITIES, WHICH
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD06860-01-1
A. 3017 2
SHALL REQUIRE EACH CONTRACTOR AND SUBCONTRACTOR TO PROVIDE THE FOLLOWING
INFORMATION:
A. THE NAME, ADDRESS AND TELEPHONE NUMBER OF ITS PRINCIPALS, OWNERS,
OFFICERS, AND SHAREHOLDERS WHO OWN OR CONTROL AT LEAST FIVE PERCENT OF
THE STOCK OF THE CONTRACTOR OR SUBCONTRACTOR;
B. THE TAXPAYER IDENTIFICATION NUMBER OR EMPLOYER IDENTIFICATION
NUMBER, AND THE DUN AND BRADSTREET NUMBER OF THE CONTRACTOR OR SUBCON-
TRACTOR;
C. THE CONTRACTOR OR SUBCONTRACTOR'S TYPE OF BUSINESS ENTITY, INCLUD-
ING BUT NOT LIMITED TO CORPORATION, PARTNERSHIP, LIMITED LIABILITY
CORPORATION, LIMITED PARTNERSHIP, JOINT VENTURE OR SOLE PROPRIETOR;
D. THE NAMES AND ADDRESSES OF THE SUBCONTRACTORS PLANNED FOR THE
PROJECT;
E. THE USE OF REGISTERED AND APPROVED APPRENTICESHIP TRAINING PROGRAMS
FOR THE PAST FIVE YEARS;
F. ANY VIOLATIONS OF THE PREVAILING WAGE LAW UNDER ARTICLE EIGHT OF
THE LABOR LAW OR THE FEDERAL DAVIS-BACON ACT;
G. ANY VIOLATIONS OF STATE OR FEDERAL LAWS RELATING TO UNEMPLOYMENT
COMPENSATION, WORKERS' COMPENSATION, OCCUPATIONAL HEALTH AND SAFETY,
EMPLOYEE MISCLASSIFICATION, EMPLOYMENT DISABILITY, EMPLOYMENT DISCRIMI-
NATION, OR OTHER LABOR LAWS;
H. ANY VIOLATIONS OF STATE OR FEDERAL ENVIRONMENTAL PROTECTION LAWS;
I. ANY FAILURE TO FILE FEDERAL, STATE OR LOCAL TAX RETURNS, ANY TAX
LIABILITIES, JUDGMENTS OR LIENS, AND VIOLATIONS OF AGREEMENTS OR LAWS
UNDER WHICH A TAX CREDIT, TAX EXEMPTION, LOAN OR GRANT WAS AWARDED BY
ANY FEDERAL, STATE OR LOCAL ENTITY;
J. ANY CRIMINAL CONVICTION, INDICTMENT, GRANT OF IMMUNITY OR CIVIL
VIOLATION FOR BUSINESS-RELATED ACTIVITY, INCLUDING BUT NOT LIMITED TO
BRIBERY, EXTORTION, FRAUD, RACKETEERING, CONTRACT BIDDING AND RESTRAINT
OF TRADE;
K. CONTRACT SANCTION HISTORY INCLUDING FEDERAL OR STATE DEBARMENTS,
SUSPENSIONS, FINDINGS OF INELIGIBILITY, OR DISQUALIFICATIONS FOR
NON-COMPLIANCE WITH MINORITY-OWNED, WOMEN-OWNED OR DISADVANTAGED-OWNED
BUSINESS REQUIREMENTS;
L. ANY PENDING INVESTIGATIONS FOR CRIMINAL OR CIVIL VIOLATIONS OF ANY
STATE OR FEDERAL LAWS;
M. PROFESSIONAL LICENSE SANCTION HISTORY AGAINST ITS PRINCIPALS,
OWNERS AND OFFICERS;
N. EXPERTISE AND EXPERIENCE PERFORMING THE TYPE OF WORK REQUIRED UNDER
THE CONTRACT;
O. FINANCIAL CAPABILITY AND RELIABILITY INCLUDING FISCAL RESOURCES TO
PERFORM THE CONTRACT, AND ANY BANKRUPTCIES WITHIN THE PAST SEVEN YEARS;
P. PROOF OF SURETY BOND AND INSURANCE FOR WORKERS' COMPENSATION AND
GENERAL AND PROFESSIONAL LIABILITY FOR THE PROJECT; AND
Q. WHETHER HEALTH INSURANCE IS PROVIDED TO EMPLOYEES.
4. PENALTY. THE QUESTIONNAIRE SHALL BE SUBSCRIBED AND AFFIRMED AS TO
ITS TRUTH, ACCURACY AND COMPLETENESS UNDER PENALTY OF PERJURY.
5. AWARD OF PUBLIC WORK CONTRACT TO LOWEST RESPONSIBLE BIDDER. A.
WHERE A PUBLIC WORK CONTRACT IS REQUIRED TO BE AWARDED TO THE LOWEST
RESPONSIBLE BIDDER, NO CONTRACT MAY BE AWARDED TO A BIDDER IF ANY OF ITS
CONTRACTORS OR SUBCONTRACTORS:
(I) HAVE HAD A FINAL DETERMINATION RENDERED FOR A VIOLATION OF ARTICLE
EIGHT OF THE LABOR LAW, THE WORKERS' COMPENSATION LAW, THE UNEMPLOYMENT
INSURANCE LAW, OR EMPLOYEE MISCLASSIFICATION BY ANY FEDERAL OR STATE
AGENCY WITHIN THE PAST TEN YEARS;
A. 3017 3
(II) HAVE COMMITTED A VIOLATION OF ANY OTHER LAWS UNDER PARAGRAPH G,
H, I, OR J OF SUBDIVISION THREE OF THIS SECTION WITHIN THE PAST FIVE
YEARS;
(III) FAIL TO PARTICIPATE IN AN APPRENTICESHIP TRAINING PROGRAM
APPROVED AND REGISTERED WITH THE STATE OR FEDERAL DEPARTMENT OF LABOR;
OR
(IV) FAIL TO PROVIDE PROOF OF SURETY BOND AND WORKERS' COMPENSATION
COVERAGE.
B. BASED ON THE INFORMATION COLLECTED IN THE QUESTIONNAIRES THE
CONTRACTING ENTITY MAY DETERMINE THAT A BIDDER IS NOT RESPONSIBLE AND
NOT AWARD A CONTRACT TO THE BIDDER UPON FINDING THAT:
(I) THE PROPOSED CONTRACTOR OR SUBCONTRACTORS FOR THE CONTRACT LACK
ADEQUATE EXPERTISE, OR LACK THE FINANCIAL RESOURCES TO PERFORM THE
CONTRACT OR SUBCONTRACT IN A TIMELY AND COMPETENT MANNER;
(II) THE EQUIPMENT TO BE USED FOR THE CONTRACT IS NOT SAFE FOR OPERA-
TION BY EMPLOYEES OF THE CONTRACTOR OR SUBCONTRACTORS, OR FOR THE
PUBLIC;
(III) THE BID SUBMITTED IS 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;
(IV) THE BID SUBMITTED IS MATHEMATICALLY OR MATERIALLY UNBALANCED;
(V) A LACK OF GOOD FAITH EFFORT TO COMPLY WITH STATE AND FEDERAL
REQUIREMENTS FOR USE OF MINORITY-OWNED, WOMEN-OWNED AND
DISADVANTAGED-OWNED BUSINESSES;
(VI) FALSE OR MISLEADING INFORMATION HAS BEEN PRESENTED TO THE
CONTRACTING ENTITY IN CONNECTION WITH THE BID; OR
(VII) ANY OTHER INFORMATION FROM THE QUESTIONNAIRE WHICH RAISES SERI-
OUS QUESTIONS CONCERNING THE PRESENT CAPABILITY AND RESPONSIBILITY OF
THE CONTRACTOR OR ANY SUBCONTRACTOR TO PERFORM THE CONTRACT.
S 2. The general municipal law is amended by adding a new section
100-b to read as follows:
S 100-B. LOWEST RESPONSIBLE BIDDER. 1. DEFINITION. FOR THE PURPOSES
OF THIS ARTICLE, "LOWEST RESPONSIBLE BIDDER" SHALL MEAN THE PERSON,
FIRM, CORPORATION, CONTRACTOR OR SUBCONTRACTOR OR OTHER ENTITY SUBMIT-
TING A BID FOR A PUBLIC WORK CONTRACT FOR THE ERECTION, CONSTRUCTION,
RECONSTRUCTION OR ALTERATION OF BUILDINGS WHO:
A. SUBMITS THE LOWEST BID; AND
B. IS NOT DISQUALIFIED ON ANY OF THE GROUNDS LISTED UNDER SUBDIVISION
FIVE OF THIS SECTION.
2. USE OF QUESTIONNAIRE TO DETERMINE RESPONSIBILITY OF CONTRACTORS AND
SUBCONTRACTORS. A. NO PUBLIC WORK CONTRACT MAY BE AWARDED BY ANY POLI-
TICAL SUBDIVISION OR BY AN OFFICER, BOARD OR AGENCY THEREOF, TO THE
LOWEST RESPONSIBLE BIDDER UNLESS EACH CONTRACTOR AND SUBCONTRACTOR FOR
THE CONTRACT SUBMITS, AND THE CONTRACTING ENTITY REVIEWS, A QUESTION-
NAIRE DEMONSTRATING ITS RESPONSIBILITY TO PERFORM THE CONTRACT.
B. QUESTIONNAIRES MUST BE SUBMITTED TO THE CONTRACTING ENTITY AND TO
THE COMPTROLLER WHO SHALL MAINTAIN THE INFORMATION IN AN ELECTRONIC
DATABASE FOR REVIEW BY ANY STATE OR LOCAL CONTRACTING ENTITY THAT AWARDS
PUBLIC WORK CONTRACTS.
3. CONTENTS OF QUESTIONNAIRE. THE COMPTROLLER SHALL PREPARE A UNIFORM
QUESTIONNAIRE FOR USE BY A POLITICAL SUBDIVISION OR BY AN OFFICER, BOARD
OR AGENCY THEREOF, WHICH SHALL REQUIRE EACH CONTRACTOR AND SUBCONTRACTOR
TO PROVIDE THE FOLLOWING INFORMATION:
A. THE NAME, ADDRESS AND TELEPHONE NUMBER OF ITS PRINCIPALS, OWNERS,
OFFICERS, AND SHAREHOLDERS WHO OWN OR CONTROL AT LEAST FIVE PERCENT OF
THE STOCK OF THE CONTRACTOR OR SUBCONTRACTOR;
A. 3017 4
B. THE TAXPAYER IDENTIFICATION NUMBER OR EMPLOYER IDENTIFICATION
NUMBER, AND THE DUN AND BRADSTREET NUMBER OF THE CONTRACTOR OR SUBCON-
TRACTOR;
C. THE CONTRACTOR OR SUBCONTRACTOR'S TYPE OF BUSINESS ENTITY, INCLUD-
ING BUT NOT LIMITED TO CORPORATION, PARTNERSHIP, LIMITED LIABILITY
CORPORATION, LIMITED PARTNERSHIP, JOINT VENTURE OR SOLE PROPRIETOR;
D. THE NAMES AND ADDRESSES OF THE SUBCONTRACTORS PLANNED FOR THE
PROJECT;
E. THE USE OF REGISTERED AND APPROVED APPRENTICESHIP TRAINING PROGRAMS
FOR THE PAST FIVE YEARS;
F. ANY VIOLATIONS OF THE PREVAILING WAGE LAW UNDER ARTICLE EIGHT OF
THE LABOR LAW OR THE FEDERAL DAVIS-BACON ACT;
G. ANY VIOLATIONS OF STATE OR FEDERAL LAWS RELATING TO UNEMPLOYMENT
COMPENSATION, WORKERS' COMPENSATION, OCCUPATIONAL HEALTH AND SAFETY,
EMPLOYEE MISCLASSIFICATION, EMPLOYMENT DISABILITY, EMPLOYMENT DISCRIMI-
NATION, OR OTHER LABOR LAWS;
H. ANY VIOLATIONS OF STATE OR FEDERAL ENVIRONMENTAL PROTECTION LAWS;
I. ANY FAILURE TO FILE FEDERAL, STATE OR LOCAL TAX RETURNS, ANY TAX
LIABILITIES, JUDGMENTS OR LIENS, AND VIOLATIONS OF AGREEMENTS OR LAWS
UNDER WHICH A TAX CREDIT, TAX EXEMPTION, LOAN OR GRANT WAS AWARDED BY
ANY FEDERAL, STATE OR LOCAL ENTITY;
J. ANY CRIMINAL CONVICTION, INDICTMENT, GRANT OF IMMUNITY OR CIVIL
VIOLATION FOR BUSINESS-RELATED ACTIVITY, INCLUDING BUT NOT LIMITED TO
BRIBERY, EXTORTION, FRAUD, RACKETEERING, CONTRACT BIDDING AND RESTRAINT
OF TRADE;
K. CONTRACT SANCTION HISTORY INCLUDING FEDERAL OR STATE DEBARMENTS,
SUSPENSIONS, FINDINGS OF INELIGIBILITY, OR DISQUALIFICATIONS FOR
NON-COMPLIANCE WITH MINORITY-OWNED, WOMEN-OWNED OR DISADVANTAGED-OWNED
BUSINESS REQUIREMENTS;
L. ANY PENDING INVESTIGATIONS FOR CRIMINAL OR CIVIL VIOLATIONS OF ANY
STATE OR FEDERAL LAWS;
M. PROFESSIONAL LICENSE SANCTION HISTORY AGAINST ITS PRINCIPALS,
OWNERS AND OFFICERS;
N. EXPERTISE AND EXPERIENCE PERFORMING THE TYPE OF WORK REQUIRED UNDER
THE CONTRACT;
O. FINANCIAL CAPABILITY AND RELIABILITY INCLUDING FISCAL RESOURCES TO
PERFORM THE CONTRACT, AND ANY AUDITS OR BANKRUPTCIES WITHIN THE PAST
SEVEN YEARS;
P. PROOF OF SURETY BOND AND INSURANCE FOR WORKERS' COMPENSATION AND
GENERAL AND PROFESSIONAL LIABILITY FOR THE PROJECT; AND
Q. WHETHER HEALTH INSURANCE IS PROVIDED TO EMPLOYEES.
4. PENALTY. THE QUESTIONNAIRE SHALL BE SUBSCRIBED AND AFFIRMED AS TO
ITS TRUTH, ACCURACY AND COMPLETENESS UNDER PENALTY OF PERJURY.
5. AWARD OF PUBLIC WORK CONTRACT TO LOWEST RESPONSIBLE BIDDER. A.
WHERE A PUBLIC WORK CONTRACT IS REQUIRED TO BE AWARDED TO THE LOWEST
RESPONSIBLE BIDDER, NO CONTRACT MAY BE AWARDED TO A BIDDER IF ANY OF ITS
CONTRACTORS OR SUBCONTRACTORS:
(I) HAVE HAD A FINAL DETERMINATION RENDERED FOR A VIOLATION OF ARTICLE
EIGHT OF THE LABOR LAW, THE WORKERS' COMPENSATION LAW, THE UNEMPLOYMENT
INSURANCE LAW, OR EMPLOYEE MISCLASSIFICATION BY ANY FEDERAL OR STATE
AGENCY WITHIN THE PAST TEN YEARS;
(II) HAVE COMMITTED A VIOLATION OF ANY OTHER LAWS UNDER PARAGRAPH G,
H, I, OR J OF SUBDIVISION THREE OF THIS SECTION WITHIN THE PAST FIVE
YEARS;
A. 3017 5
(III) FAIL TO PARTICIPATE IN AN APPRENTICESHIP TRAINING PROGRAM
APPROVED AND REGISTERED WITH THE STATE OR FEDERAL DEPARTMENT OF LABOR;
OR
(IV) FAIL TO PROVIDE PROOF OF SURETY BOND AND WORKERS' COMPENSATION
COVERAGE.
B. BASED ON THE INFORMATION COLLECTED IN THE QUESTIONNAIRES THE
CONTRACTING ENTITY MAY DETERMINE THAT A BIDDER IS NOT RESPONSIBLE AND
NOT AWARD A CONTRACT TO THE BIDDER UPON FINDING THAT:
(I) THE PROPOSED CONTRACTOR OR SUBCONTRACTORS FOR THE CONTRACT LACK
ADEQUATE EXPERTISE, OR LACK THE FINANCIAL RESOURCES TO PERFORM THE
CONTRACT OR SUBCONTRACT IN A TIMELY AND COMPETENT MANNER;
(II) THE EQUIPMENT TO BE USED FOR THE CONTRACT IS NOT SAFE FOR OPERA-
TION BY EMPLOYEES OF THE CONTRACTOR OR SUBCONTRACTORS, OR FOR THE
PUBLIC;
(III) THE BID SUBMITTED IS SO MUCH LOWER THAN THE ENGINEER'S ESTIMATE
THAT IT SEEMS UNLIKELY THAT THE BIDDER WILL BE ABLE TO PERFORM THE
CONTRACT SATISFACTORILY AT THE PRICE BID;
(IV) THE BID SUBMITTED IS MATHEMATICALLY OR MATERIALLY UNBALANCED;
(V) A LACK OF GOOD FAITH EFFORT TO COMPLY WITH STATE AND FEDERAL
REQUIREMENTS FOR USE OF MINORITY-OWNED, WOMEN-OWNED AND
DISADVANTAGED-OWNED BUSINESSES;
(VI) FALSE OR MISLEADING INFORMATION HAS BEEN PRESENTED TO THE
CONTRACTING ENTITY IN CONNECTION WITH THE BID; OR
(VII) ANY OTHER INFORMATION FROM THE QUESTIONNAIRE WHICH RAISES SERI-
OUS QUESTIONS CONCERNING THE PRESENT CAPABILITY AND RESPONSIBILITY OF
THE CONTRACTOR OR ANY SUBCONTRACTOR TO PERFORM THE CONTRACT.
S 3. This act shall take effect on the ninetieth day after it shall
have become a law.