S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                    704
 
                        2023-2024 Regular Sessions
 
                             I N  S E N A T E
 
                              January 6, 2023
                                ___________
 
 Introduced  by  Sen.  COMRIE -- read twice and ordered printed, and when
   printed to be committed to the Committee on Procurement and Contracts
 
 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
 ON CONTRACT, WHICH CONSTITUTE A QUALITATIVE CHANGE TO THE  PROJECT  WORK
 AND WHICH HAVE A VERIFIABLE IMPACT ON PROJECT COSTS; OR
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD03300-01-3
 S. 704                              2
              

 
   (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.