S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                  5933--A
 
                        2019-2020 Regular Sessions
 
                             I N  S E N A T E
 
                               May 16, 2019
                                ___________
 
 Introduced by Sens. COMRIE, RANZENHOFER -- read twice and ordered print-
   ed,  and  when  printed to be committed to the Committee on Finance --
   committee discharged, bill amended, ordered reprinted as  amended  and
   recommitted to said committee
 
 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) "STATE AGENCY" SHALL MEAN ANY  STATE  DEPARTMENT,  BOARD,  BUREAU,
 COMMISSION,  DIVISION,  OFFICE, COUNCIL, OR STATE COMMITTEE OR ANY STATE
 AUTHORITY AS DEFINED IN SUBDIVISION ONE OF SECTION  TWO  OF  THE  PUBLIC
 AUTHORITIES  LAW. SUCH TERM SHALL NOT INCLUDE THE LEGISLATURE OR JUDICI-
 ARY.
   (B) "CONTRACT" SHALL MEAN ANY AGREEMENT AWARDED BY A STATE AGENCY  FOR
 THE DESIGN, CONSTRUCTION, RECONSTRUCTION, DEMOLITION, ALTERATION, REPAIR
 OR IMPROVEMENT OF ANY PUBLIC WORKS PROJECT.
   (C)  "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.
   (D) "CLAIM" SHALL MEAN A REQUEST FOR ADDITIONAL COSTS  ONLY  FROM  THE
 FOLLOWING CAUSES:
   (I)  THE  FAILURE  OF  THE STATE AGENCY TO TAKE REASONABLE MEASURES TO
 COORDINATE AND PROGRESS THE WORK;
   (II) EXTENDED DELAYS ATTRIBUTABLE TO THE STATE AGENCY 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 MULTIPLE ORDERS
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD11735-03-9
              

 S. 5933--A                          2
 
 ON  CONTRACT,  WHICH CONSTITUTE A QUALITATIVE CHANGE TO THE PROJECT WORK
 AND WHICH HAVE A VERIFIABLE IMPACT ON PROJECT COSTS; OR
   (III)  THE  UNAVAILABILITY  OF THE SITE FOR SUCH AN EXTENDED PERIOD OF
 TIME  WHICH  SIGNIFICANTLY  AFFECTS  THE  SCHEDULED  COMPLETION  OF  THE
 CONTRACT.
   2.  ALL CONTRACTS MADE AND AWARDED SHALL CONTAIN A CLAUSE WHICH ALLOWS
 A CONTRACTOR TO MAKE A CLAIM FOR ADDITIONAL COSTS ARISING FROM DELAY  IN
 THE  PERFORMANCE OF A CONTRACT IF SUCH DELAY IS CAUSED BY A MATERIAL ACT
 OR OMISSION OF THE STATE AGENCY.
   3. THE CONTRACTOR SHALL PROVIDE A NOTICE OF CLAIM  OF  AN  ANTICIPATED
 CLAIM  FOR DELAY TO A STATE AGENCY 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 STATE AGENCY SHALL ACKNOWLEDGE RECEIPT
 OF THE NOTICE, IN WRITING, WITHIN FIVE DAYS.  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, FAILURE TO PROVIDE SUCH NOTICE SHALL BE
 CONSIDERED TO HAVE PREJUDICED THE STATE AGENCY.
   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  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  WRIT-
 TEN  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 STATE AGENCY 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 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
   (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 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 STATE AGENCY'S LIABIL-
 ITY.
   § 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.