S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   2074
 
                        2019-2020 Regular Sessions
 
                           I N  A S S E M B L Y
 
                             January 22, 2019
                                ___________
 
 Introduced  by  M.  of  A.  KIM,  ORTIZ -- read once and referred to the
   Committee on Judiciary
 
 AN ACT to amend the  state  finance  law,  in  relation  to  damages  to
   contracts occasioned by delay
 
   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
 138-b to read as follows:
   § 138-B. DAMAGES OCCASIONED BY DELAY.  1. FOR PURPOSES OF THIS SECTION
 THE FOLLOWING TERMS SHALL HAVE THE FOLLOWING MEANINGS:
   (A) "CONTRACT" SHALL MEAN ANY CONTRACT AWARDED BY THE STATE, ANY STATE
 AGENCY, DEPARTMENT, BOARD, BUREAU, MUNICIPAL CORPORATION, PUBLIC BENEFIT
 CORPORATION,  PUBLIC  AUTHORITY  OR  ANY  OTHER STATE ENTITY, ANY SCHOOL
 DISTRICT OR ANY OTHER SPECIAL DISTRICT, OR ANY  INSTRUMENTALITY  OF  THE
 STATE  OR  A  POLITICAL  SUBDIVISION  OF  THE STATE, WHICH ENTERS INTO A
 CONTRACT FOR DESIGN, CONSTRUCTION,  RECONSTRUCTION,  DEMOLITION,  ALTER-
 ATION, REPAIR OR IMPROVEMENT OF ANY PUBLIC WORKS.
   (B)  "DELAY"  SHALL  MEAN ANY DELAY, DISRUPTION, INTERFERENCE, INEFFI-
 CIENCIES, IMPEDANCE, HINDRANCE OR ACCELERATION IN THE PERFORMANCE OF THE
 CONTRACT WHICH CAUSES DAMAGES TO BE INCURRED BY  A  CONTRACTOR,  SUBCON-
 TRACTOR OR MATERIALMAN TO A CONTRACT AND WHICH IS A DIRECT RESULT OF THE
 NEGLIGENCE,  MALFEASANCE,  MISFEASANCE  OF THE PERSON OR ENTITY FOR WHOM
 THE CONTRACTOR, SUBCONTRACTOR OR MATERIALMAN IS  PROVIDING  SERVICES  AS
 PROVIDED  FOR  IN THE CONTRACT, OR ANY DISRUPTION, INTERFERENCE, INEFFI-
 CIENCIES, IMPEDANCE, HINDRANCE OR ACCELERATION  CAUSING  DAMAGES  TO  BE
 SIMILARLY INCURRED BY SUCH PERSON OR ENTITY.
   (C) "CLAIM" SHALL MEAN A REQUEST FOR ADDITIONAL COSTS FROM THE FOLLOW-
 ING  CAUSES  LISTED  IN  THIS  SUBDIVISION  ATTRIBUTABLE TO DELAY IN THE
 PERFORMANCE OF A CONTRACT, OCCASIONED BY ANY ACT OR OMISSION TO  ACT  BY
 THE  PUBLIC  ENTITY WITH WHOM A CONTRACTOR, SUBCONTRACTOR OR MATERIALMAN
 HAS CONTRACTED WITH, BUT SHALL NOT INCLUDE DELAY FROM ANY  OTHER  CAUSE,
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD03871-01-9

 A. 2074                             2
 
 WHICH  DELAY  SHALL BE COMPENSATED FOR SOLELY BY AN EXTENSION OF TIME TO
 COMPLETE THE PERFORMANCE OF THE WORK:
   (I)  THE  FAILURE  OF THE PUBLIC ENTITY TO TAKE REASONABLE MEASURES TO
 COORDINATE AND PROGRESS THE WORK;
   (II) EXTENDED DELAYS ATTRIBUTABLE TO THE PUBLIC ENTITY IN  THE  REVIEW
 OR  ISSUANCE  OF  ORDERS-ON-CONTRACT  OR  FIELD  ORDERS, IN SHOP DRAWING
 REVIEWS AND APPROVALS OR AS A RESULT OF THE CUMULATIVE IMPACT OF  MULTI-
 PLE  ORDERS  ON  CONTRACT,  WHICH CONSTITUTE A QUALITATIVE CHANGE TO THE
 PROJECT WORK AND WHICH HAVE A VERIFIABLE IMPACT ON PROJECT COSTS;
   (III) THE UNAVAILABILITY OF THE SITE FOR SUCH AN  EXTENDED  PERIOD  OF
 TIME  WHICH  SIGNIFICANTLY  AFFECTS  THE  SCHEDULED  COMPLETION  OF  THE
 CONTRACT; OR
   (IV) THE ISSUANCE OF A STOP  WORK  ORDER  RELATIVE  TO  A  SUBSTANTIAL
 PORTION OF WORK FOR A PERIOD EXCEEDING THIRTY DAYS.
   2.  ALL CONTRACTS MADE AND AWARDED SHALL CONTAIN A CLAUSE WHICH ALLOWS
 A CONTRACTOR, SUBCONTRACTOR OR MATERIALMAN TO MAKE  A  CLAIM  FOR  ADDI-
 TIONAL  COSTS ARISING FROM DELAY IF SUCH DELAY IN THE PERFORMANCE OF THE
 CONTRACT IS CAUSED BY OR OCCASIONED BY ANY ACT OR OMISSION OF THE ENTITY
 WITH WHOM THEY HAVE CONTRACTED IN THE CONTRACT, OR ANY OF SUCH  ENTITY'S
 REPRESENTATIVES OR AGENTS.
   3. THE CONTRACTOR, SUBCONTRACTOR OR MATERIALMAN SHALL PROVIDE A NOTICE
 OF  CLAIM  OF  AN  ANTICIPATED  CLAIM  FOR  DELAY  TO A PUBLIC ENTITY BY
 PERSONAL SERVICE OR CERTIFIED MAIL NO MORE THAN FIFTEEN DAYS AFTER  SUCH
 CONTRACTOR  KNEW THE FACTS WHICH FORM THE BASIS OF THE CLAIM. THE PUBLIC
 ENTITY SHALL ACKNOWLEDGE RECEIPT OF THE NOTICE, IN WRITING, WITHIN  FIVE
 DAYS.  NO  PUBLIC ENTITY SHALL INCUR ANY LIABILITY FOR ANY DAMAGES WHICH
 ACCRUE MORE THAN FIFTEEN DAYS PRIOR TO THE DELIVERY OR  MAILING  OF  THE
 REQUIRED NOTICE. SUCH NOTICE SHALL AT A MINIMUM PROVIDE A DESCRIPTION OF
 ANY  OPERATIONS THAT WERE, ARE BEING OR WILL BE DELAYED, AND THE DATE OR
 DATES AND REASONS FOR THE DELAY. IN NO CASE SHALL ORAL NOTICE CONSTITUTE
 NOTICE PURSUANT TO THIS SECTION OR BE DEEMED TO CONSTITUTE A  WAIVER  OF
 THE WRITTEN NOTICE REQUIREMENT.  FOR THE PURPOSES OF THIS SECTION, FAIL-
 URE  TO  PROVIDE  SUCH NOTICE SHALL BE CONSIDERED TO HAVE PREJUDICED THE
 PUBLIC ENTITY.
   4. FAILURE BY A CONTRACTOR TO ADEQUATELY PROGRESS  THE  COMPLETION  OF
 WORK  SHALL  BE  CONSIDERED  IN DETERMINING THE CAUSES OF DELAY. FOR ANY
 CLAIM ASSERTED PURSUANT TO THIS TITLE, THE CONTRACTOR, SUBCONTRACTOR  OR
 MATERIALMAN  SHALL  KEEP DETAILED WRITTEN RECORDS OF THE COSTS AND SHALL
 MAKE THEM AVAILABLE FOR THE PURPOSES OF AUDIT  AND  REVIEW.  FAILURE  TO
 PROVIDE  THE  REQUIRED WRITTEN NOTICE OR TO MAINTAIN AND FURNISH RECORDS
 OF THE COSTS OF SUCH CLAIMS SHALL CONSTITUTE A WAIVER OF THE CLAIM.
   5. THE FOLLOWING INFORMATION SHALL BE PROVIDED BY THE CONTRACTOR  UPON
 REQUEST OF A PUBLIC ENTITY IF NOT PREVIOUSLY SUPPLIED:
   (A) A DESCRIPTION OF THE OPERATIONS THAT WERE DELAYED, THE REASONS FOR
 THE DELAY AND AN EXPLANATION OF HOW THEY WERE DELAYED;
   (B)  A DETAILED FACTUAL STATEMENT OF THE CLAIM PROVIDING ALL NECESSARY
 DATES, LOCATIONS AND ITEMS OF WORK AFFECTED BY THE CLAIM;
   (C) THE DATE ON WHICH ACTIONS  RESULTING  IN  THE  CLAIM  OCCURRED  OR
 CONDITIONS RESULTING IN THE CLAIM BECAME EVIDENT;
   (D)  THE  NAMES,  FUNCTIONS AND ACTIVITIES OF EACH CONTRACTOR, SUBCON-
 TRACTOR AND MATERIALMAN INVOLVED IN, OR KNOWLEDGEABLE ABOUT  FACTS  THAT
 GAVE RISE TO SUCH CLAIM;
   (E)  THE  IDENTIFICATION OF ANY PERTINENT DOCUMENTS, AND THE SUBSTANCE
 OF ANY MATERIAL ORAL COMMUNICATION RELATING TO SUCH CLAIM;
   (F) THE AMOUNT OF ADDITIONAL COMPENSATION SOUGHT; AND

 A. 2074                             3
 
   (G) IF AN EXTENSION OF TIME IS ALSO REQUESTED, THE SPECIFIC NUMBER  OF
 DAYS FOR WHICH IT IS SOUGHT AND THE BASIS FOR SUCH REQUEST AS DETERMINED
 BY AN ANALYSIS OF THE CONSTRUCTION PROGRESS SCHEDULE.
   6. WHEN SUBMITTING ANY CLAIM, THE CONTRACTOR, SUBCONTRACTOR OR MATERI-
 ALMAN  SHALL  CERTIFY IN WRITING AND UNDER OATH THAT THE SUPPORTING DATA
 IS ACCURATE AND COMPLETE TO HIS OR HER BEST  KNOWLEDGE  OR  BELIEF,  AND
 THAT  ANY  AMOUNT  DEMANDED  REFLECTS,  IN  GOOD  FAITH,  WHAT HE OR SHE
 BELIEVES TO BE THE PUBLIC ENTITY'S LIABILITY.
   § 2. This act shall take effect on the one hundred eightieth day after
 it shall have become a law and shall apply to all contracts entered into
 on and after such date.