S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   6268
 
                        2023-2024 Regular Sessions
 
                           I N  A S S E M B L Y
 
                               April 3, 2023
                                ___________
 
 Introduced by M. of A. WEPRIN -- read once and referred to the Committee
   on Governmental Operations
 
 AN  ACT to amend the state finance law and the general municipal law, in
   relation  to   determining   contractor   responsibility   on   public
   construction projects
 
   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
 139-m to read as follows:
   §  139-M.  CONTRACTOR  AND  SUBCONTRACTOR  RESPONSIBILITY.  1. FOR THE
 PURPOSE OF THIS SECTION, THE FOLLOWING TERMS SHALL  HAVE  THE  FOLLOWING
 MEANINGS UNLESS OTHERWISE SPECIFIED:
   A.  "APPARENT LOW BIDDER" SHALL MEAN A BIDDER WHO, UPON THE OPENING OF
 BIDS FOR A CONTRACT, IS DETERMINED TO HAVE SUBMITTED THE LOWEST BID  FOR
 SUCH CONTRACT.
   B.  "BIDDER"  SHALL MEAN ANY PERSON, PARTNERSHIP, FIRM, CORPORATION OR
 OTHER ENTITY SUBMITTING A COMPETITIVE BID FOR, OR SUBMITTED FOR APPROVAL
 AS A SUBCONTRACTOR ON, A CONTRACT BY ANY CONTRACTING ENTITY.
   C.  "CONTRACT"  SHALL  MEAN  ANY  CONTRACT  MADE   AND   AWARDED   FOR
 CONSTRUCTION,  RECONSTRUCTION  OR  ALTERATION OF ANY PUBLIC WORK PROJECT
 WHICH IS REQUIRED BY LAW TO BE LET BY COMPETITIVE BIDDING TO THE  LOWEST
 RESPONSIBLE BIDDER BY A CONTRACTING ENTITY.
   D. "CONTRACTING ENTITY" SHALL MEAN ANY PUBLIC DEPARTMENT, PUBLIC BENE-
 FIT  CORPORATION  OR  PUBLIC  CORPORATION COVERED BY SECTION ONE HUNDRED
 THIRTY-NINE-F OF THIS ARTICLE OR SECTION  THIRTY-EIGHT  OF  THE  HIGHWAY
 LAW.
   E. "CONTRACTOR" SHALL MEAN A BIDDER WHO HAS BEEN AWARDED A CONTRACT.
   F. "SUBCONTRACTOR" SHALL MEAN A PERSON, PARTNERSHIP, FIRM, CORPORATION
 OR OTHER ENTITY THAT IS PROPOSED TO PERFORM WORK ON THE CONTRACT.
   2.  IN  DELIBERATING  UPON  THE RESPONSIBILITY OF A BIDDER OR PROPOSED
 SUBCONTRACTOR ON A CONTRACT,  THE  CONTRACTING  ENTITY  SHALL  GIVE  DUE
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD10088-01-3
              

 A. 6268                             2
 
 CONSIDERATION  TO ANY CREDIBLE EVIDENCE OR INFORMATION REASONABLY DEEMED
 TO BE RELIABLE THAT THE PAST OR CURRENT RECORD OF A BIDDER  OR  PROPOSED
 SUBCONTRACTOR  SHALL WARRANT A DETERMINATION THAT SUCH BIDDER OR SUBCON-
 TRACTOR  IS  NOT A RESPONSIBLE BIDDER. THE CONTRACTING ENTITY, IN DETER-
 MINING THE RESPONSIBILITY OF THE APPARENT LOW BIDDER SHALL REQUIRE,  AND
 THE  APPARENT LOW BIDDER SHALL PROVIDE, THE FOLLOWING INFORMATION RELAT-
 ING TO THE APPARENT LOW BIDDER IN ORDER FOR THE  CONTRACTING  ENTITY  TO
 DETERMINE  THE  PECUNIARY  AND FINANCIAL RESPONSIBILITY, ACCOUNTABILITY,
 OPERATIONAL RESPONSIBILITY, RELIABILITY, SKILL, CAPACITY, ABILITY, JUDG-
 MENT AND INTEGRITY OF THE APPARENT LOW BIDDER:
   A. A DESCRIPTION OF ITS EXPERIENCE WITH PROJECTS OF COMPARATIVE SCOPE,
 COMPLEXITY, AND COST WITHIN THE PAST FIVE YEARS, TOGETHER WITH  DOCUMEN-
 TARY EVIDENCE OF SUCH PROJECTS;
   B.  DOCUMENTATION  REGARDING  SUCH  PROJECTS DESCRIBING THE FOLLOWING:
 TIMELINESS OF PERFORMANCE; QUALITY OF WORK;  EXTENSION  REQUESTS;  LITI-
 GATION  AND/OR  ARBITRATION  ARISING FROM SUCH WORK, INCLUDING FINES AND
 PENALTIES IMPOSED AND PAYMENT THEREOF; LIENS FILED;  HISTORY  OF  CLAIMS
 FOR EXTRA WORK; CONTRACT DEFAULTS; AND AN EXPLANATION OF THE SAME;
   C.  IDENTIFICATION AND DESCRIPTION OF ANY PROJECTS WITHIN THE PREVIOUS
 FIVE YEARS THAT THE APPARENT LOW BIDDER WAS DETERMINED BY THE  CONTRACT-
 ING ENTITY NOT TO BE A RESPONSIBLE BIDDER, AND THE REASONS GIVEN BY SUCH
 ENTITY THEREFOR, TOGETHER WITH AN EXPLANATION THEREOF;
   D.  AN  ADEQUATE  DEMONSTRATION OF FINANCIAL RESPONSIBILITY, WHICH MAY
 INCLUDE A CERTIFIED FINANCIAL STATEMENT PREPARED BY A  CERTIFIED  PUBLIC
 ACCOUNTANT,  TO  ENSURE  THAT THE APPARENT LOW BIDDER POSSESSES ADEQUATE
 RESOURCES AND AVAILABILITY OF  CREDIT  AND  THE  MEANS  AND  ABILITY  TO
 PROCURE INSURANCE AND BONDS REQUIRED FOR THE PROJECT;
   E.  DISCLOSURE  OF  ANY SUSPENSIONS OR REVOCATIONS OF ANY PROFESSIONAL
 LICENSE OF ANY DIRECTOR, OFFICER, OWNER OR MANAGERIAL  EMPLOYEE  OF  THE
 APPARENT  LOW  BIDDER,  TO  THE  EXTENT THAT ANY WORK TO BE PERFORMED IS
 WITHIN THE FIELD OF SUCH LICENSED PROFESSION;
   F. DISCLOSURE OF ANY AND ALL UNITED  STATES  OCCUPATIONAL  SAFETY  AND
 HEALTH ADMINISTRATION VIOLATIONS WITHIN THE PREVIOUS FIVE YEARS, AS WELL
 AS ALL NOTICES OF SUCH VIOLATIONS AGAINST THE APPARENT LOW BIDDER IN THE
 SAME  FIVE  YEAR  PERIOD, TOGETHER WITH A DESCRIPTION AND EXPLANATION OF
 REMEDIATION OR OTHER STEPS TAKEN REGARDING SUCH VIOLATIONS  AND  NOTICES
 OF VIOLATIONS;
   G.  DISCLOSURE OF ANY AND ALL VIOLATIONS OF ARTICLE EIGHT OF THE LABOR
 LAW AND ANY OTHER PROVISION OF SUCH LAW, INCLUDING BUT NOT  LIMITED  TO,
 CHILD  LABOR VIOLATIONS, FAILURE TO PAY WAGES AND UNEMPLOYMENT INSURANCE
 TAX DELINQUENCIES WITHIN THE PAST FIVE YEARS;
   H.  DISCLOSURE OF VIOLATIONS OF THE WORKERS' COMPENSATION LAW, INCLUD-
 ING, BUT NOT LIMITED TO THE FAILURE TO PROVIDE PROOF OF WORKERS' COMPEN-
 SATION OR DISABILITY COVERAGE AND/OR ANY LAPSES THEREOF;
   I. DISCLOSURE OF ANY FELONY CONVICTIONS, INVOLVING THE LOWEST  RESPON-
 SIBLE  BIDDER,  ITS  OFFICERS, DIRECTORS, OWNERS OR MANAGERIAL EMPLOYEES
 WITHIN THE PAST FIVE YEARS; AND
   J. DISCLOSURE OF ANY VIOLATIONS WITHIN THE PAST FIVE YEARS OR  PENDING
 CHARGES  CONCERNING  FEDERAL,  STATE  OR  MUNICIPAL ENVIRONMENTAL AND/OR
 HEALTH LAWS, CODES, RULES AND/OR REGULATIONS.
   3. WHEN REQUESTED BY THE CONTRACTING ENTITY AFTER  THE  BID  HAS  BEEN
 SUBMITTED  BUT  BEFORE  ANY  OF  THE  SUBCONTRACTED  WORK COMMENCES, THE
 CONTRACTOR SHALL IDENTIFY ALL WORK TO BE SUBCONTRACTED  ALONG  WITH  THE
 NAME  OF  THE FIRM OR FIRMS TO WHICH THE WORK WILL BE SUBCONTRACTED. THE
 APPROVAL OF THE SUBCONTRACTOR BY THE CONTRACTING ENTITY, AS PROVIDED  BY
 A. 6268                             3
 
 THE  CONTRACT, SHALL BE SUBJECT TO THE SAME EVALUATION OF RESPONSIBILITY
 CONTAINED WITHIN THIS SECTION FOR THE CONTRACTOR.
   4.  PRIOR TO A FINAL DETERMINATION THAT THE APPARENT LOW BIDDER IS NOT
 RESPONSIBLE, THE CONTRACTING ENTITY  SHALL  NOTIFY  THE  PARTY  OF  SUCH
 DETERMINATION,  IN  WRITING, STATING THE REASONS FOR SUCH DETERMINATION,
 AND SETTING FORTH A TIME, DATE AND PLACE FOR THE APPARENT LOW BIDDER  TO
 APPEAR  AND  BE  HEARD, PRIOR TO SUCH DETERMINATION BEING MADE REGARDING
 ITS RESPONSIBILITY. IN THE EVENT  OF  A  FINAL  DETERMINATION  THAT  THE
 APPARENT  LOW  BIDDER  IS  NOT RESPONSIBLE, THE NEXT LOWEST BIDDER SHALL
 BECOME THE APPARENT LOW BIDDER AND SHALL BE SUBJECT TO THE  REQUIREMENTS
 SET FORTH IN THIS SECTION.
   §  2.  The  general  municipal  law is amended by adding a new section
 103-h to read as follows:
   § 103-H. CONTRACTOR  AND  SUBCONTRACTOR  RESPONSIBILITY.  1.  FOR  THE
 PURPOSE  OF  THIS  SECTION, THE FOLLOWING TERMS SHALL HAVE THE FOLLOWING
 MEANINGS UNLESS OTHERWISE SPECIFIED:
   A. "APPARENT LOW BIDDER" SHALL MEAN A BIDDER WHO, UPON THE OPENING  OF
 BIDS  FOR A CONTRACT, IS DETERMINED TO HAVE SUBMITTED THE LOWEST BID FOR
 SUCH CONTRACT.
   B. "BIDDER" SHALL MEAN ANY PERSON, PARTNERSHIP, FIRM,  CORPORATION  OR
 OTHER ENTITY SUBMITTING A COMPETITIVE BID FOR, OR SUBMITTED FOR APPROVAL
 AS A SUBCONTRACTOR ON, A CONTRACT BY ANY CONTRACTING ENTITY.
   C.  "CONTRACT"  SHALL MEAN ANY CONTRACT WHICH IS REQUIRED BY LAW TO BE
 LET BY COMPETITIVE BID BY A CONTRACTING ENTITY FOR CONSTRUCTION,  RECON-
 STRUCTION OR ALTERATION OF ANY PUBLIC WORK PROJECT TO THE LOWEST RESPON-
 SIBLE BIDDER.
   D.  "CONTRACTING  ENTITY"  SHALL  MEAN  A POLITICAL SUBDIVISION OR ANY
 DISTRICT THEREIN.
   2. IN DELIBERATING UPON THE RESPONSIBILITY OF  A  BIDDER  OR  PROPOSED
 SUBCONTRACTOR  ON  A  CONTRACT,  THE  CONTRACTING  ENTITY SHALL GIVE DUE
 CONSIDERATION TO ANY CREDIBLE EVIDENCE OR INFORMATION REASONABLY  DEEMED
 TO  BE  RELIABLE THAT THE PAST OR CURRENT RECORD OF A BIDDER OR PROPOSED
 SUBCONTRACTOR SHALL WARRANT A DETERMINATION THAT SUCH BIDDER OR  SUBCON-
 TRACTOR  IS  NOT A RESPONSIBLE BIDDER. THE CONTRACTING ENTITY, IN DETER-
 MINING THE RESPONSIBILITY OF THE APPARENT LOW BIDDER SHALL REQUIRE,  AND
 THE  APPARENT LOW BIDDER SHALL PROVIDE, THE FOLLOWING INFORMATION RELAT-
 ING TO THE APPARENT LOW BIDDER IN ORDER FOR THE  CONTRACTING  ENTITY  TO
 DETERMINE  THE  PECUNIARY  AND FINANCIAL RESPONSIBILITY, ACCOUNTABILITY,
 OPERATIONAL RESPONSIBILITY, RELIABILITY, SKILL, CAPACITY, ABILITY, JUDG-
 MENT AND INTEGRITY OF THE APPARENT LOW BIDDER:
   A. A DESCRIPTION OF ITS EXPERIENCE WITH PROJECTS OF COMPARATIVE SCOPE,
 COMPLEXITY, AND COST WITHIN THE PAST FIVE YEARS, TOGETHER WITH  DOCUMEN-
 TARY EVIDENCE OF SUCH PROJECTS;
   B.  DOCUMENTATION  REGARDING  SUCH  PROJECTS DESCRIBING THE FOLLOWING:
 TIMELINESS OF PERFORMANCE; QUALITY OF WORK;  EXTENSION  REQUESTS;  LITI-
 GATION  AND/OR  ARBITRATION  ARISING FROM SUCH WORK, INCLUDING FINES AND
 PENALTIES IMPOSED AND PAYMENT THEREOF; LIENS FILED;  HISTORY  OF  CLAIMS
 FOR EXTRA WORK; CONTRACT DEFAULTS; AND AN EXPLANATION OF THE SAME;
   C.  IDENTIFICATION AND DESCRIPTION OF ANY PROJECTS WITHIN THE PREVIOUS
 FIVE YEARS THAT THE APPARENT LOW BIDDER WAS DETERMINED BY THE  CONTRACT-
 ING    ENTITY  NOT  TO BE A RESPONSIBLE BIDDER, AND THE REASONS GIVEN BY
 SUCH ENTITY THEREFOR, TOGETHER WITH AN EXPLANATION THEREOF;
   D. AN ADEQUATE DEMONSTRATION OF FINANCIAL  RESPONSIBILITY,  WHICH  MAY
 INCLUDE  A  CERTIFIED FINANCIAL STATEMENT PREPARED BY A CERTIFIED PUBLIC
 ACCOUNTANT, TO ENSURE THAT THE APPARENT LOW  BIDDER  POSSESSES  ADEQUATE
 A. 6268                             4
 
 RESOURCES  AND  AVAILABILITY  OF  CREDIT  AND  THE  MEANS AND ABILITY TO
 PROCURE INSURANCE AND BONDS REQUIRED FOR THE PROJECT;
   E.  DISCLOSURE  OF  ANY SUSPENSIONS OR REVOCATIONS OF ANY PROFESSIONAL
 LICENSE OF ANY DIRECTOR, OFFICER, OWNER OR MANAGERIAL  EMPLOYEE  OF  THE
 APPARENT  LOW  BIDDER,  TO  THE  EXTENT THAT ANY WORK TO BE PERFORMED IS
 WITHIN THE FIELD OF SUCH LICENSED PROFESSION;
   F. DISCLOSURE OF ANY AND ALL UNITED  STATES  OCCUPATIONAL  SAFETY  AND
 HEALTH ADMINISTRATION VIOLATIONS WITHIN THE PREVIOUS FIVE YEARS, AS WELL
 AS  ALL NOTICES OF SUCH VIOLATIONS FILED AGAINST THE APPARENT LOW BIDDER
 IN THE SAME FIVE YEAR PERIOD, TOGETHER WITH A DESCRIPTION  AND  EXPLANA-
 TION  OF  REMEDIATION OR OTHER STEPS TAKEN REGARDING SUCH VIOLATIONS AND
 NOTICES OF VIOLATIONS;
   G. DISCLOSURE OF ANY AND ALL VIOLATIONS OF ARTICLE EIGHT OF THE  LABOR
 LAW  AND  ANY OTHER PROVISION OF SUCH LAW, INCLUDING BUT NOT LIMITED TO,
 CHILD LABOR VIOLATIONS, FAILURE TO PAY WAGES AND UNEMPLOYMENT  INSURANCE
 TAX DELINQUENCIES WITHIN THE PAST FIVE YEARS;
   H.  DISCLOSURE OF VIOLATIONS OF THE WORKERS' COMPENSATION LAW, INCLUD-
 ING BUT NOT LIMITED TO, THE FAILURE TO PROVIDE PROOF OF WORKERS' COMPEN-
 SATION OR DISABILITY COVERAGE AND/OR ANY LAPSES THEREOF;
   I. DISCLOSURE OF ANY FELONY  CONVICTIONS  OF  THE  LOWEST  RESPONSIBLE
 BIDDER,  ITS  OFFICERS, DIRECTORS, OWNERS OR MANAGERIAL EMPLOYEES WITHIN
 THE PAST FIVE YEARS; AND
   J. DISCLOSURE OF ANY VIOLATIONS WITHIN THE PAST FIVE YEARS OR  PENDING
 CHARGES  CONCERNING  FEDERAL,  STATE  OR  MUNICIPAL ENVIRONMENTAL AND/OR
 HEALTH LAWS, CODES, RULES AND/OR REGULATIONS.
   3. WHEN REQUESTED BY THE CONTRACTING ENTITY AFTER  THE  BID  HAS  BEEN
 SUBMITTED  BUT  BEFORE  ANY  OF  THE  SUBCONTRACTED  WORK COMMENCES, THE
 CONTRACTOR SHALL IDENTIFY ALL WORK TO BE SUBCONTRACTED  ALONG  WITH  THE
 NAME  OF  THE FIRM OR FIRMS TO WHICH THE WORK WILL BE SUBCONTRACTED. THE
 APPROVAL OF THE SUBCONTRACTOR BY THE CONTRACTING ENTITY, AS PROVIDED  BY
 THE  CONTRACT, SHALL BE SUBJECT TO THE SAME EVALUATION OF RESPONSIBILITY
 CONTAINED WITHIN THIS SECTION FOR THE CONTRACTOR.
   4. PRIOR TO A FINAL DETERMINATION THAT THE APPARENT LOW BIDDER IS  NOT
 RESPONSIBLE,  THE  CONTRACTING  ENTITY  SHALL  NOTIFY  THE PARTY OF SUCH
 DETERMINATION, IN WRITING, STATING THE REASONS FOR  SUCH  DETERMINATION,
 AND  SETTING FORTH A TIME, DATE AND PLACE FOR THE APPARENT LOW BIDDER TO
 APPEAR AND BE HEARD, PRIOR TO SUCH DETERMINATION  BEING  MADE  REGARDING
 ITS  RESPONSIBILITY.  IN  THE  EVENT  OF  A FINAL DETERMINATION THAT THE
 APPARENT LOW BIDDER IS NOT RESPONSIBLE, THE  NEXT  LOWEST  BIDDER  SHALL
 BECOME  THE APPARENT LOW BIDDER AND SHALL BE SUBJECT TO THE REQUIREMENTS
 SET FORTH IN THIS SECTION.
   § 3. This act shall take effect on the thirtieth day  after  it  shall
 have  become  a  law and shall be applicable to all contracts advertised
 for bid on or after such date.