Bill Text: NY A02121 | 2009-2010 | General Assembly | Introduced
Bill Title: An act to amend the general business law, in relation to promoting fairness in competitive bidding by providing for enforcement of prevailing wage provisions applicable to public work construction projects
Spectrum: Partisan Bill (Democrat 2-0)
Status: (Introduced - Dead) 2010-01-06 - referred to labor [A02121 Detail]
Download: New_York-2009-A02121-Introduced.html
S T A T E O F N E W Y O R K ________________________________________________________________________ 2121 2009-2010 Regular Sessions I N A S S E M B L Y January 15, 2009 ___________ Introduced by M. of A. JOHN, NOLAN -- read once and referred to the Committee on Labor AN ACT to amend the general business law, in relation to promoting fair- ness in competitive bidding by providing for enforcement of prevailing wage provisions applicable to public work construction projects THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: 1 Section 1. The general business law is amended by adding a new section 2 399-i to read as follows: 3 S 399-I. FAIRNESS IN COMPETITIVE BIDDING. 1. FOR THE PURPOSES OF THIS 4 SECTION: (A) THE TERM "PERSON" SHALL INCLUDE ANY INDIVIDUAL, ORGANIZA- 5 TION, ASSOCIATION, SCHOOL DISTRICT, LOCAL GOVERNMENT, CORPORATION, PART- 6 NERSHIP, LIMITED LIABILITY COMPANY OR OTHER BUSINESS ENTITY; AND 7 (B) THE TERM "CONSTRUCTION PROJECT" SHALL INCLUDE ANY PROJECT WHICH IS 8 SUBJECT TO THE PROVISIONS OF ARTICLE EIGHT OF THE LABOR LAW AND WHICH 9 INVOLVES THE CONSTRUCTION, MODERNIZATION, IMPROVEMENT, REHABILITATION, 10 REPAIR, MAINTENANCE, REPLACEMENT OR RENOVATION OF A BUILDING, ROAD OR 11 STRUCTURE, OR ANY PORTION OF SUCH A PROJECT PERFORMED PURSUANT TO A 12 SUBCONTRACTING ARRANGEMENT. 13 2. (A) ANY PERSON MAY BRING A CIVIL ACTION FOR THE RECOVERY OF DAMAGES 14 AGAINST THE WINNING BIDDER IF THE WINNING BIDDER HAS VIOLATED THE LABOR 15 LAW BY FAILING TO PAY THE PREVAILING WAGE ON A CONSTRUCTION PROJECT. 16 SUCH AN ACTION MAY BE MAINTAINED SOLELY BY THE PERSON BRINGING THE 17 ACTION, OR BY SUCH PERSON, TOGETHER WITH THE ATTORNEY GENERAL. IF THE 18 WINNING BIDDER IS FOUND NOT TO BE PAYING THE PREVAILING WAGE, THE 19 PRESUMPTIVE MEASURE OF DAMAGES IS THE VALUE OF THE CONTRACT FOR THE 20 CONSTRUCTION PROJECT. 21 (B) A COPY OF THE COMPLAINT AND WRITTEN DISCLOSURE OF SUBSTANTIALLY 22 ALL MATERIAL EVIDENCE AND INFORMATION THAT THE PERSON POSSESSES SHALL BE 23 SERVED ON THE OFFICE OF THE ATTORNEY GENERAL PURSUANT TO THE CIVIL PRAC- 24 TICE LAW AND RULES. THE COMPLAINT SHALL BE FILED IN CAMERA, SHALL REMAIN EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD04147-01-9 A. 2121 2 1 UNDER SEAL FOR AT LEAST SIXTY DAYS, AND SHALL NOT BE SERVED UPON THE 2 DEFENDANT UNTIL THE COURT SO ORDERS. THE OFFICE OF THE ATTORNEY GENERAL 3 MAY ELECT TO INTERVENE AND PROCEED WITH THE ACTION WITHIN SIXTY DAYS 4 AFTER IT RECEIVES BOTH THE COMPLAINT AND THE MATERIAL EVIDENCE AND 5 INFORMATION. 6 (C) BEFORE THE EXPIRATION OF THE SIXTY-DAY PERIOD PROVIDED FOR IN THIS 7 SECTION, THE OFFICE OF THE ATTORNEY GENERAL SHALL: (I) PROCEED WITH THE 8 ACTION, IN WHICH CASE THE ACTION SHALL BE CONDUCTED BY THE OFFICE OF THE 9 ATTORNEY GENERAL ON BEHALF OF THE STATE OF NEW YORK; OR 10 (II) NOTIFY THE COURT THAT IT DECLINES TO TAKE OVER THE ACTION, IN 11 WHICH CASE THE PERSON BRINGING THE ACTION SHALL HAVE THE RIGHT TO 12 CONDUCT THE ACTION. 13 3. WHENEVER A PERSON BRINGS AN ACTION UNDER THIS SECTION, NO PERSON 14 OTHER THAN THE OFFICE OF THE ATTORNEY GENERAL MAY INTERVENE OR BRING A 15 RELATED ACTION BASED ON THE FACTS UNDERLYING THE PENDING ACTION. 16 4. IF THE OFFICE OF THE ATTORNEY GENERAL PROCEEDS WITH THE ACTION, IT 17 SHALL HAVE THE PRIMARY RESPONSIBILITY FOR PROSECUTING THE ACTION, AND 18 SHALL NOT BE BOUND BY AN ACT OF THE PERSON BRINGING THE ACTION. SUCH 19 PERSON SHALL HAVE THE RIGHT TO CONTINUE AS A PARTY TO THE ACTION, 20 SUBJECT TO THE LIMITATIONS SET FORTH IN SUBDIVISION FIVE OF THIS 21 SECTION. 22 5. (A) THE OFFICE OF THE ATTORNEY GENERAL MAY DISMISS THE ACTION 23 NOTWITHSTANDING THE OBJECTIONS OF THE PERSON INITIATING THE ACTION IF 24 THE PERSON HAS BEEN NOTIFIED BY THE OFFICE OF THE ATTORNEY GENERAL OF 25 THE FILING OF THE MOTION AND THE COURT HAS PROVIDED THE PERSON WITH AN 26 OPPORTUNITY FOR A HEARING ON THE MOTION. 27 (B) THE OFFICE OF THE ATTORNEY GENERAL MAY SETTLE THE ACTION WITH THE 28 DEFENDANT NOTWITHSTANDING THE OBJECTIONS OF THE PERSON INITIATING THE 29 ACTION IF THE COURT DETERMINES, AFTER A HEARING, THAT THE PROPOSED 30 SETTLEMENT IS FAIR, ADEQUATE, AND REASONABLE UNDER ALL THE CIRCUM- 31 STANCES. UPON A SHOWING OF GOOD CAUSE, SUCH HEARING MAY BE HELD IN 32 CAMERA. 33 6. IF THE OFFICE OF THE ATTORNEY GENERAL ELECTS NOT TO PROCEED WITH 34 THE ACTION, THE PERSON WHO INITIATED THE ACTION SHALL HAVE THE RIGHT TO 35 CONDUCT THE ACTION. IF THE OFFICE OF THE ATTORNEY GENERAL SO REQUEST, IT 36 SHALL BE SERVED WITH COPIES OF ALL PLEADINGS FILED IN THE ACTION AND 37 SHALL BE SUPPLIED WITH COPIES OF ALL DEPOSITION TRANSCRIPTS (AT THE 38 OFFICE OF THE ATTORNEY GENERAL'S EXPENSE). WHEN A PERSON PROCEEDS WITH 39 THE ACTION, THE COURT, WITHOUT LIMITING THE STATUS AND RIGHTS OF THE 40 PERSON INITIATING THE ACTION, MAY NEVERTHELESS PERMIT THE OFFICE OF THE 41 ATTORNEY GENERAL TO INTERVENE AT A LATER DATE UPON A SHOWING OF GOOD 42 CAUSE. 43 7. THE OFFICE OF THE ATTORNEY GENERAL MAY ELECT TO PURSUE ITS CLAIM 44 THROUGH ANY ALTERNATE REMEDY AVAILABLE TO THE OFFICE OF THE ATTORNEY 45 GENERAL, INCLUDING ANY ADMINISTRATIVE PROCEEDING TO DETERMINE A CIVIL 46 MONEY PENALTY. IF ANY SUCH ALTERNATE REMEDY IS PURSUED IN ANOTHER 47 PROCEEDING, THE PERSON INITIATING THE ACTION SHALL HAVE THE SAME RIGHTS 48 IN SUCH PROCEEDING AS SUCH PERSON WOULD HAVE HAD IF THE ACTION HAD 49 CONTINUED UNDER THIS SECTION. ANY FINDING OF FACT OR CONCLUSION OF LAW 50 MADE IN SUCH OTHER PROCEEDING THAT HAS BECOME FINAL SHALL BE CONCLUSIVE 51 ON ALL PARTIES TO AN ACTION UNDER THIS SECTION. FOR PURPOSES OF THE 52 PRECEDING SENTENCE, A FINDING OR CONCLUSION IS FINAL IF IT HAS BEEN 53 FINALLY DETERMINED ON APPEAL TO THE APPROPRIATE COURT OF THE STATE OF 54 NEW YORK, IF ALL TIME FOR FILING SUCH AN APPEAL WITH RESPECT TO THE 55 FINDING OR CONCLUSION HAS EXPIRED, OR IF THE FINDING OR CONCLUSION IS 56 NOT SUBJECT TO JUDICIAL REVIEW. A. 2121 3 1 8. IF A WINNING BIDDER IS FOUND NOT TO BE PAYING THE PREVAILING WAGE 2 ON A CONSTRUCTION PROJECT, THE PRESUMPTIVE MEASURE OF DAMAGES IS THE 3 VALUE OF THE CONTRACT FOR THE CONSTRUCTION PROJECT. (A) IF THE OFFICE 4 OF THE ATTORNEY GENERAL PROCEEDS WITH AN ACTION BROUGHT BY A PERSON, 5 SUCH PERSON SHALL, SUBJECT TO THE PROVISIONS OF THIS PARAGRAPH, RECEIVE 6 AT LEAST FIFTEEN PERCENT BUT NOT MORE THAN TWENTY-FIVE PERCENT OF THE 7 PROCEEDS OF THE ACTION OR SETTLEMENT OF THE CLAIM, DEPENDING UPON THE 8 EXTENT TO WHICH THE PERSON SUBSTANTIALLY CONTRIBUTED TO THE PROSECUTION 9 OF THE ACTION. ANY SUCH PERSON SHALL ALSO RECEIVE AN AMOUNT FOR REASON- 10 ABLE EXPENSES THAT THE COURT FINDS TO HAVE BEEN NECESSARILY INCURRED, 11 PLUS REASONABLE ATTORNEYS' FEES AND COSTS. ALL SUCH EXPENSES, FEES, AND 12 COSTS SHALL BE AWARDED AGAINST THE DEFENDANT. 13 (B) IF THE OFFICE OF THE ATTORNEY GENERAL DOES NOT PROCEED WITH AN 14 ACTION UNDER THIS SECTION, THE PERSON BRINGING THE ACTION OR SETTLING 15 THE CLAIM SHALL RECEIVE AN AMOUNT WHICH THE COURT DECIDES IS REASONABLE 16 FOR COLLECTING THE CIVIL PENALTY AND DAMAGES. THE AMOUNT SHALL BE NOT 17 LESS THAN FIFTY PERCENT AND NOT MORE THAN SEVENTY-FIVE PERCENT OF THE 18 PROCEEDS OF THE ACTION OR SETTLEMENT AND SHALL BE PAID OUT OF SUCH 19 PROCEEDS. SUCH PERSON SHALL ALSO RECEIVE AN AMOUNT FOR REASONABLE 20 EXPENSES THAT THE COURT FINDS TO HAVE BEEN NECESSARILY INCURRED, PLUS 21 REASONABLE ATTORNEYS' FEES AND COSTS. ALL SUCH EXPENSES, FEES, AND COSTS 22 SHALL BE AWARDED AGAINST THE DEFENDANT. 23 S 2. This act shall take effect on the sixtieth day after it shall 24 have become a law.