S T A T E O F N E W Y O R K
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4438--A
Cal. No. 727
2013-2014 Regular Sessions
I N S E N A T E
April 1, 2013
___________
Introduced by Sen. MARCELLINO -- read twice and ordered printed, and
when printed to be committed to the Committee on Finance -- recommit-
ted to the Committee on Finance in accordance with Senate Rule 6, sec.
8 -- reported favorably from said committee, ordered to first and
second report, ordered to a third reading, amended and ordered
reprinted, retaining its place in the order of third reading
AN ACT to amend the state finance law, in relation to arbitration
provisions in state contracts
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Section 165 of the state finance law is amended by adding a
new subdivision 9 to read as follows:
9. ARBITRATION PROVISION. A. FOR THE PURPOSES OF THIS SUBDIVISION
"ARBITRATION PROVISIONS" SHALL MEAN ANY REQUIREMENT THAT AN EMPLOYEE OR
INDEPENDENT CONTRACTOR PERFORMING WORK UNDER SUCH VENDOR'S CONTRACT OR
SUBCONTRACT TO SUBMIT CLAIMS ARISING UNDER TITLE VII OF THE CIVIL RIGHTS
ACT OF 1964 OR ARTICLE FIFTEEN OF THE EXECUTIVE LAW TO PRIVATE ARBI-
TRATION FOR RESOLUTION; THIS SHALL NOT INCLUDE ARBITRATION THAT IS
MANDATED BY A COLLECTIVE BARGAINING AGREEMENT BETWEEN SUCH VENDOR AND
EMPLOYEE AND/OR INDEPENDENT CONTRACTOR.
B. (I) WITH RESPECT TO CONTRACTS DESCRIBED IN SUBPARAGRAPHS (II) AND
(III) OF THIS PARAGRAPH, AND IN ACCORDANCE WITH SUCH SUBPARAGRAPHS,
STATE AGENCIES AS DEFINED IN THIS ARTICLE SHALL NOT CONTRACT FOR THE
SUPPLY OF COMMODITIES, SERVICE OR CONSTRUCTION WITH ANY CONTRACTOR WHO
DOES NOT AGREE TO STIPULATE TO THE FOLLOWING, IF THERE IS ANOTHER
CONTRACTOR WHO WILL CONTRACT TO SUPPLY COMMODITIES, SERVICES OR
CONSTRUCTION OF COMPARABLE QUALITY AT A COMPARABLE PRICE OR COST: THE
CONTRACTOR SHALL NOT PLACE ANY ARBITRATION PROVISION UPON THEIR EMPLOY-
EES THAT WORK ON SUCH CONTRACT.
(II) IN THE CASE OF CONTRACTS LET BY A COMPETITIVE PROCESS, WHENEVER
THE RESPONSIVE AND RESPONSIBLE OFFERER HAVING THE LOWEST PRICE OR BEST
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD03998-02-4
S. 4438--A 2
VALUE OFFER HAS NOT AGREED TO STIPULATE TO THE CONDITIONS SET FORTH IN
THIS SUBDIVISION AND ANOTHER RESPONSIVE AND RESPONSIBLE OFFERER WHO HAS
AGREED TO STIPULATE TO SUCH CONDITIONS HAS SUBMITTED AN OFFER WITHIN
FIVE PERCENT OF THE LOWEST PRICE OR BEST VALUE OFFER FOR A CONTRACT TO
SUPPLY COMMODITIES, SERVICES OR CONSTRUCTION OF COMPARABLE QUALITY, THE
CONTRACTING ENTITY SHALL REFER SUCH OFFERS TO THE COMMISSIONER OF GENER-
AL SERVICES, WHO MAY DETERMINE, IN ACCORDANCE WITH APPLICABLE LAW AND
RULES, THAT IT IS IN THE BEST INTEREST OF THE STATE THAT THE CONTRACT BE
AWARDED TO OTHER THAN THE LOWEST PRICE OR BEST VALUE OFFER.
(III) IN THE CASE OF CONTRACTS LET BY OTHER THAN A COMPETITIVE PROCESS
FOR GOODS OR SERVICES INVOLVING AN EXPENDITURE OF AN AMOUNT GREATER THAN
THE DISCRETIONARY BUYING THRESHOLD AS SPECIFIED IN SECTION ONE HUNDRED
SIXTY-THREE OF THIS ARTICLE, OR FOR CONSTRUCTION INVOLVING AN AMOUNT
GREATER THAN FIFTEEN THOUSAND DOLLARS, THE CONTRACTING ENTITY SHALL NOT
AWARD TO A PROPOSED CONTRACTOR WHO HAS NOT AGREED TO STIPULATE TO THE
CONDITIONS SET FORTH IN THIS SUBDIVISION UNLESS THE ENTITY SEEKING TO
USE THE COMMODITIES, SERVICES OR CONSTRUCTION DETERMINES THAT THE
COMMODITIES, SERVICES OR CONSTRUCTION ARE NECESSARY FOR THE ENTITY TO
PERFORM ITS FUNCTIONS AND THERE IS NO OTHER RESPONSIBLE CONTRACTOR WHO
WILL SUPPLY COMMODITIES, SERVICES OR CONSTRUCTION OF COMPARABLE QUALITY
AT A COMPARABLE PRICE. SUCH DETERMINATIONS SHALL BE MADE IN WRITING AND
SHALL BE PUBLIC DOCUMENTS.
C. UPON RECEIVING INFORMATION THAT A CONTRACTOR WHO HAS MADE THE STIP-
ULATION REQUIRED BY THIS SUBDIVISION IS IN VIOLATION THEREOF, THE
CONTRACTING ENTITY SHALL REVIEW SUCH INFORMATION AND OFFER THE CONTRAC-
TOR AN OPPORTUNITY TO RESPOND. IF THE CONTRACTING ENTITY FINDS THAT A
VIOLATION HAS OCCURRED, IT SHALL TAKE SUCH ACTION AS MAY BE APPROPRIATE
AND PROVIDED FOR BY LAW, RULE OR CONTRACT, INCLUDING, BUT NOT LIMITED
TO, IMPOSING SANCTIONS, SEEKING COMPLIANCE, RECOVERING DAMAGES OR
DECLARING THE CONTRACTOR IN DEFAULT.
D. AS USED IN THIS SUBDIVISION, THE TERM "CONTRACT" SHALL NOT INCLUDE
CONTRACTS WITH GOVERNMENTAL AND NON-PROFIT ORGANIZATIONS, CONTRACTS
AWARDED PURSUANT TO EMERGENCY PROCUREMENT PROCEDURES OR CONTRACTS,
RESOLUTIONS, INDENTURES, DECLARATIONS OF TRUST OR OTHER INSTRUMENTS
AUTHORIZING OR RELATING TO THE AUTHORIZATION, ISSUANCE, AWARD, SALE OR
PURCHASE OF BONDS, CERTIFICATES OF INDEBTEDNESS, NOTES OR OTHER FISCAL
OBLIGATIONS, PROVIDED THAT THE POLICIES OF THIS SUBDIVISION SHALL BE
CONSIDERED WHEN SELECTING A CONTRACTOR TO PROVIDE FINANCIAL OR LEGAL
ADVICE, AND WHEN SELECTING MANAGING UNDERWRITERS IN CONNECTION WITH SUCH
ACTIVITIES.
S 2. This act shall take effect immediately and shall apply to all
contracts signed and executed on or after such effective date.