S T A T E O F N E W Y O R K
________________________________________________________________________
293
2013-2014 Regular Sessions
I N S E N A T E
(PREFILED)
January 9, 2013
___________
Introduced by Sen. STAVISKY -- 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 granting preferences to New York state domiciliaries in
the awarding of contracts for public work
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Subdivision 1 of section 103 of the general municipal law,
as amended by section 1 of chapter 2 of the laws of 2012, 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 thirty-five thousand dollars and all purchase contracts
involving an expenditure of more than twenty 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 security after advertisement for sealed bids in the manner
provided by this section, provided, however, that purchase contracts
(including contracts for service work, but excluding any purchase
contracts necessary for the completion of a public works contract pursu-
ant to article eight of the labor law) may be awarded on the basis of
best value, as defined in section one hundred sixty-three of the state
finance law, to a responsive and responsible bidder or offerer in the
manner provided by this section except that in a political subdivision
other than a city with a population of one million inhabitants or more
or any district, board or agency with jurisdiction exclusively therein
the use of best value for awarding a purchase contract or purchase
contracts must be authorized by local law or, in the case of a district
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD00554-01-3
S. 293 2
corporation, school district or board of cooperative educational
services, by rule, regulation or resolution adopted at a public meeting.
In any case where a responsible bidder's or responsible offerer's gross
price is reducible by an allowance for the value of used machinery,
equipment, apparatus or tools to be traded in by a political subdivi-
sion, the gross price shall be reduced by the amount of such allowance,
for the purpose of determining the best value. NOTWITHSTANDING THE
FOREGOING, IN ANY CASE WHERE A RESPONSIBLE BIDDER WHO IS A NEW YORK
STATE RESIDENT, FIRM OR CORPORATION AND WHO IS FURNISHING THE REQUIRED
SECURITY IS FOUND BY SUCH OFFICER, BOARD OR AGENCY TO BE WITHIN TWO
PERCENT OF THE BID OF THE LOWEST RESPONSIBLE BIDDER, SUCH OFFICER, BOARD
OR AGENCY MAY PREFER SUCH RESPONSIBLE BIDDER OVER THE LOWEST RESPONSIBLE
BIDDER AND AWARD THE CONTRACT TO SUCH RESPONSIBLE BIDDER; PROVIDED,
HOWEVER, WHERE MORE THAN ONE RESPONSIBLE BIDDER QUALIFIES HEREUNDER,
SUCH OFFICER, BOARD OR AGENCY SHALL AWARD THE CONTRACT TO SUCH QUALIFIED
RESPONSIBLE BIDDER SUBMITTING THE LOWEST 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 her
or its discretion, reject all bids or offers and readvertise for new
bids or offers in the manner provided by this section. In determining
whether a purchase is an expenditure within the discretionary threshold
amounts established by this subdivision, the officer, board or agency of
a political subdivision or of any district therein shall consider the
reasonably expected aggregate amount of all purchases of the same
commodities, services or technology to be made within the twelve-month
period commencing on the date of purchase. Purchases of commodities,
services or technology shall not be artificially divided for the purpose
of satisfying the discretionary buying thresholds established by this
subdivision. A change to or a renewal of a discretionary purchase shall
not be permitted if the change or renewal would bring the reasonably
expected aggregate amount of all purchases of the same commodities,
services or technology from the same provider within the twelve-month
period commencing on the date of the first purchase to an amount greater
than the discretionary buying threshold amount. For purposes of this
section, "sealed bids" and "sealed offers", as that term applies to
purchase contracts, (including contracts for service work, but excluding
any purchase contracts necessary for the completion of a public works
contract pursuant to article eight of the labor law) shall include bids
and offers submitted in an electronic format including submission of the
statement of non-collusion required by section one hundred three-d of
this article, provided that the governing board of the political subdi-
vision or district, by resolution, has authorized the receipt of bids
and offers in such format. Submission in electronic format may, for
technology contracts only, be required as the sole method for the
submission of bids and offers. Bids and offers submitted in an electron-
ic format shall be transmitted by bidders and offerers to the receiving
device designated by the political subdivision or district. Any method
used to receive electronic bids and offers shall comply with article
three of the state technology law, and any rules and regulations promul-
gated and guidelines developed thereunder and, at a minimum, must (a)
document the time and date of receipt of each bid and offer received
electronically; (b) authenticate the identity of the sender; (c) ensure
the security of the information transmitted; and (d) ensure the confi-
dentiality of the bid or offer until the time and date established for
the opening of bids or offers. The timely submission of an electronic
S. 293 3
bid or offer in compliance with instructions provided for such
submission in the advertisement for bids or offers and/or the specifica-
tions shall be the responsibility solely of each bidder or offerer or
prospective bidder or offerer. No political subdivision or district
therein shall incur any liability from delays of or interruptions in the
receiving device designated for the submission and receipt of electronic
bids and offers.
S 2. Subdivision 1 of section 103 of the general municipal law, as
amended by section 2 of chapter 2 of the laws of 2012, 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 thirty-five thousand dollars and all purchase contracts
involving an expenditure of more than twenty 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 security after advertisement for sealed bids in the manner
provided by this section, provided, however, that purchase contracts
(including contracts for service work, but excluding any purchase
contracts necessary for the completion of a public works contract pursu-
ant to article eight of the labor law) may be awarded on the basis of
best value, as defined in section one hundred sixty-three of the state
finance law, to a responsive and responsible bidder or offerer in the
manner provided by this section except that in a political subdivision
other than a city with a population of one million inhabitants or more
or any district, board or agency with jurisdiction exclusively therein
the use of best value of awarding a purchase contract or purchase
contracts must be authorized by local law or, in the case of a district
corporation, school district or board of cooperative educational
services, by rule, regulation or resolution adopted at a public meeting.
In determining whether a purchase is an expenditure within the discre-
tionary threshold amounts established by this subdivision, the officer,
board or agency of a political subdivision or of any district therein
shall consider the reasonably expected aggregate amount of all purchases
of the same commodities, services or technology to be made within the
twelve-month period commencing on the date of purchase. Purchases of
commodities, services or technology shall not be artificially divided
for the purpose of satisfying the discretionary buying thresholds estab-
lished by this subdivision. A change to or a renewal of a discretionary
purchase shall not be permitted if the change or renewal would bring the
reasonably expected aggregate amount of all purchases of the same
commodities, services or technology from the same provider within the
twelve-month period commencing on the date of the first purchase to an
amount greater than the discretionary buying threshold amount. In any
case where a responsible bidder's or responsible offerer's gross price
is reducible by an allowance for the value of used machinery, equipment,
apparatus 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 or best value. NOTWITHSTANDING THE FOREGO-
ING, IN ANY CASE WHERE A RESPONSIBLE BIDDER WHO IS A NEW YORK STATE
RESIDENT, FIRM OR CORPORATION AND WHO IS FURNISHING THE REQUIRED SECURI-
TY IS FOUND BY SUCH OFFICER, BOARD OR AGENCY TO BE WITHIN TWO PERCENT OF
THE BID OF THE LOWEST RESPONSIBLE BIDDER, SUCH OFFICER, BOARD OR AGENCY
MAY PREFER SUCH RESPONSIBLE BIDDER OVER THE LOWEST RESPONSIBLE BIDDER
S. 293 4
AND AWARD THE CONTRACT TO SUCH RESPONSIBLE BIDDER; PROVIDED, HOWEVER,
WHERE MORE THAN ONE RESPONSIBLE BIDDER QUALIFIES HEREUNDER, SUCH OFFI-
CER, BOARD OR AGENCY SHALL AWARD THE CONTRACT TO SUCH QUALIFIED RESPON-
SIBLE BIDDER SUBMITTING THE LOWEST 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, her
or its discretion, reject all bids or offers and readvertise for new
bids or offers in the manner provided by this section.
S 3. Section 135 of the state finance law is amended by adding a new
closing paragraph to read as follows:
NOTWITHSTANDING ANY OTHER PROVISION OF LAW, WHENEVER THE LOWEST
RESPONSIBLE BIDDER IS A FOREIGN OR OUT-OF-STATE INDIVIDUAL, FIRM OR
CORPORATION AND AT LEAST ONE NEW YORK STATE RESIDENT, FIRM OR CORPO-
RATION HAS SUBMITTED A RESPONSIBLE BID WHICH IS WITHIN TWO PERCENT OF
THE LOWEST RESPONSIBLE BID, THE CONTRACT MAY BE AWARDED TO THE LOWEST
RESPONSIBLE BIDDER WHO IS A NEW YORK STATE RESIDENT, FIRM OR CORPO-
RATION; PROVIDED, HOWEVER, WHERE MORE THAN ONE RESPONSIBLE BIDDER QUALI-
FIES HEREUNDER, SUCH OFFICER, BOARD OR AGENCY SHALL AWARD THE CONTRACT
TO SUCH QUALIFIED RESPONSIBLE BIDDER SUBMITTING THE LOWEST BID.
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,
however, that the amendments to subdivision 1 of section 103 of the
general municipal law made by section one of this act shall not affect
the expiration and reversion of such subdivision as provided in subdivi-
sion (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 two of this act
shall take effect.