Bill Text: NY A02260 | 2011-2012 | General Assembly | Introduced
Bill Title: Requires state agencies and public authorities to give due consideration to credible evidence or reliable information related to the responsibility, reliability or character of a public contract bidder; provides that contractors or subcontractors who have been determined not to be a responsible bidder will be given reasonable notice and an opportunity to be heard, and may appeal the contracting agency's decision to the head of such agency.
Spectrum: Partisan Bill (Democrat 13-0)
Status: (Introduced - Dead) 2012-01-04 - referred to governmental operations [A02260 Detail]
Download: New_York-2011-A02260-Introduced.html
S T A T E O F N E W Y O R K
________________________________________________________________________
2260
2011-2012 Regular Sessions
I N A S S E M B L Y
January 14, 2011
___________
Introduced by M. of A. BRENNAN, REILLY, COLTON -- Multi-Sponsored by --
M. of A. CAHILL, CLARK, COOK, ENGLEBRIGHT, GALEF, GLICK, GOTTFRIED,
HOOPER, PHEFFER, SWEENEY -- read once and referred to the Committee on
Governmental Operations
AN ACT to amend the state finance law, in relation to establishing
guidelines for determining the responsibility of a bidder or subcon-
tractor
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
1 Section 1. The state finance law is amended by adding a new section
2 169 to read as follows:
3 S 169. GUIDELINES FOR DETERMINING THE RESPONSIBILITY OF A BIDDER OR
4 SUBCONTRACTOR. 1. DEFINITIONS. A. "CONTRACTING AGENCY" SHALL MEAN ANY
5 NEW YORK STATE AGENCY, DEPARTMENT, BOARD, BUREAU, COMMISSION, DIVISION,
6 OR ANY PUBLIC BENEFIT CORPORATION OR PUBLIC AUTHORITY A MAJORITY OF
7 WHOSE MEMBERS ARE APPOINTED BY THE GOVERNOR, PROVIDED, HOWEVER, THAT
8 THIS SECTION SHALL NOT BE DEEMED TO APPLY TO ANY MUNICIPAL GOVERNMENT.
9 B. "CONTRACT" SHALL MEAN ANY WRITTEN AGREEMENT ENTERED INTO BY A
10 CONTRACTING AGENCY FOR THE PROCUREMENT OR DISPOSAL OF MATERIALS,
11 SERVICES OR CONSTRUCTION, EXCEEDING A DOLLAR VALUE OF NOT LESS THAN TEN
12 THOUSAND DOLLARS.
13 C. "BIDDER," "CONTRACTOR" AND "SUBCONTRACTOR" SHALL MEAN A PERSON,
14 PARTNERSHIP, FIRM, CORPORATION OR BUSINESS ENTITY SUBMITTING A BID OR
15 PROPOSAL FOR, OR SUBMITTED FOR APPROVAL AS A SUBCONTRACTOR FOR A
16 CONTRACT BY ANY OF THE CONTRACTING AGENCIES.
17 D. "AFFILIATE OF THE BIDDER" SHALL MEAN A PERSON, FIRM, CORPORATION,
18 PARTNERSHIP OR BUSINESS ENTITY WHICH OWNS, CONTROLS, OR HAS THE ABILITY
19 TO CONTROL THE BIDDER OR PROPOSED SUBCONTRACTOR; OR IS OWNED BY,
20 CONTROLLED BY OR IS ABLE TO BE CONTROLLED BY THE BIDDER OR PROPOSED
21 SUBCONTRACTOR; OR IS NOT A BIDDER OR SUBCONTRACTOR BUT WHICH IS OWNED
22 BY, CONTROLLED BY OR IS ABLE TO BE CONTROLLED BY A PERSON, FIRM, CORPO-
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD04775-01-1
A. 2260 2
1 RATION, PARTNERSHIP, BUSINESS ENTITY OR PROPRIETORSHIP WHICH OWNS,
2 CONTROLS, OR HAS THE ABILITY TO CONTROL THE BIDDER OR PROPOSED SUBCON-
3 TRACTOR.
4 2. IN DETERMINING THE RESPONSIBILITY OF A BIDDER, CONTRACTOR OR A
5 SUBCONTRACTOR, ALL CONTRACTING AGENCIES SHALL GIVE DUE CONSIDERATION TO
6 ANY CREDIBLE EVIDENCE OR RELIABLE INFORMATION THAT THE PAST OR CURRENT
7 RECORD OF A BIDDER, CONTRACTOR OR PROPOSED SUBCONTRACTOR INCLUDES ANY OF
8 THE FOLLOWING:
9 A. LACK OF ADEQUATE EXPERTISE OR FINANCIAL RESOURCES TO PERFORM THE
10 WORK OF THE CONTRACT OR SUBCONTRACT IN A TIMELY, COMPETENT, AND ACCEPTA-
11 BLE MANNER. EVIDENCE OF SUCH A LACK OF ABILITY TO PERFORM MAY INCLUDE,
12 BUT SHALL NOT BE LIMITED TO: EVIDENCE OF SUSPENSION OR REVOCATION FOR
13 CAUSE OF ANY PROFESSIONAL LICENSE OF ANY DIRECTOR OR OFFICER, OR ANY
14 HOLDER OF FIVE PERCENT OR MORE OF THE BIDDER'S OR PROPOSED SUBCONTRAC-
15 TOR'S STOCK OR EQUITY; FAILURE TO SUBMIT SATISFACTORY EVIDENCE OF INSUR-
16 ANCE, SURETY BONDS OR FINANCIAL RESPONSIBILITY; OR A HISTORY OF TERMI-
17 NATION OF PRIOR CONTRACTS FOR CAUSE. NOTHING IN THIS SECTION SHALL BE
18 CONSTRUED TO SUPERSEDE ANY OF THE PROVISIONS OF SECTION THREE HUNDRED
19 THIRTEEN OF THE EXECUTIVE LAW OR SECTION ONE HUNDRED THIRTY-NINE-I OF
20 THIS CHAPTER.
21 B. CRIMINAL CONDUCT IN CONNECTION WITH GOVERNMENT CONTRACTS, OR THE
22 CONDUCT OF ANY BUSINESS ACTIVITIES INVOLVING:
23 (1) A PATTERN OF RACKETEERING, EXTORTION, OBSTRUCTION OF JUSTICE, OR
24 OTHER COMPARABLE CRIMES AS DEFINED IN THE PENAL LAW OR IN FEDERAL STAT-
25 UTE; OR
26 (2) ORGANIZED CRIMINAL ACTIVITY, ENTERPRISE CORRUPTION, BRIBERY,
27 FRAUD, BID-RIGGING, EMBEZZLEMENT, OR OTHER COMPARABLE CRIMES AS DEFINED
28 IN THE PENAL LAW OR IN FEDERAL STATUTE.
29 EVIDENCE OF SUCH CONDUCT MAY INCLUDE A JUDGMENT OF CONVICTION, PENDING
30 CRIMINAL INDICTMENT OR FORMAL GRANT OF IMMUNITY IN CONNECTION WITH A
31 CRIMINAL PROSECUTION OF THE BIDDER OR PROPOSED SUBCONTRACTOR, ANY DIREC-
32 TOR OR OFFICER, OR ANY HOLDER OF FIVE PERCENT OR MORE OF THE SHARES OR
33 EQUITY OF THE BIDDER OR PROPOSED SUBCONTRACTOR, OR ANY AFFILIATE OF THE
34 BIDDER OR THE PROPOSED SUBCONTRACTOR.
35 C. WILLFUL, REPEATED SERIOUS VIOLATIONS OF THE FEDERAL OCCUPATIONAL
36 HEALTH AND SAFETY ACT, AND/OR EVIDENCE OF GRAVE AND SUBSTANTIAL DISRE-
37 GARD FOR EMPLOYEE OR PUBLIC SAFETY.
38 D. DETERMINATION UNDER THE HUMAN RIGHTS LAW, THE LABOR LAW OR THE
39 WORKERS' COMPENSATION LAW OF:
40 (1) UNLAWFUL DISCRIMINATORY PRACTICE AS DEFINED IN THE HUMAN RIGHTS
41 LAW;
42 (2) WILLFUL NONCOMPLIANCE WITH THE PREVAILING WAGE AND SUPPLEMENTS
43 PAYMENT REQUIREMENTS OF THE LABOR LAW;
44 (3) ANY OTHER LABOR LAW VIOLATIONS, INCLUDING, BUT NOT LIMITED TO,
45 CHILD LABOR VIOLATIONS, FAILURE TO PAY WAGES, OR UNEMPLOYMENT INSURANCE
46 TAX DELINQUENCIES;
47 (4) ANY VIOLATION OF THE WORKERS' COMPENSATION LAW, INCLUDING, BUT NOT
48 LIMITED TO, THE FAILURE OF THE BIDDER OR PROPOSED SUBCONTRACTOR TO
49 PROVIDE PROOF OF WORKERS' COMPENSATION DISABILITY BENEFITS COVERAGE; OR
50 (5) FAILURE TO PROVIDE ADEQUATE LEVELS OF WORKERS' COMPENSATION DISA-
51 BILITY BENEFITS COVERAGE IN THE PAST FIVE YEARS.
52 E. CRIMINAL CONDUCT INVOLVING VIOLATIONS OF THE ENVIRONMENTAL CONSER-
53 VATION LAW OR OTHER FEDERAL OR STATE ENVIRONMENTAL STATUTES.
54 F. THE FAILURE OF A BIDDER OR CONTRACTOR TO DEMONSTRATE GOOD FAITH
55 EFFORTS TO COMPLY WITH APPLICABLE FEDERAL OR STATE STATUTES AND REGU-
56 LATIONS REQUIRING EFFORTS TO SOLICIT AND UTILIZE MINORITY-OWNED AND
A. 2260 3
1 WOMEN-OWNED BUSINESS ENTERPRISES AND DISADVANTAGED BUSINESS ENTERPRISES
2 AS POTENTIAL SUBCONTRACTORS IN CONNECTION WITH A PENDING BID FOR THE
3 PERFORMANCE OF A FEDERALLY AIDED OR STATE FUNDED OR ASSISTED PROJECT
4 SUBJECT TO SUCH PROJECT'S STATUTORY AND REGULATORY REQUIREMENTS.
5 G. THE FAILURE OF A BIDDER TO COMPLY WITH FEDERAL AND STATE EQUAL
6 OPPORTUNITY REQUIREMENTS.
7 H. A RECORD WITHIN THE LAST FIVE YEARS OF FAILURE TO PERFORM OR OF
8 UNSATISFACTORY PERFORMANCE IN ACCORDANCE WITH THE TERMS OF ONE OR MORE
9 CONTRACTS; PROVIDED THAT FAILURE TO PERFORM OR UNSATISFACTORY PERFORM-
10 ANCE CAUSED BY ACTS BEYOND THE CONTROL OF THE CONTRACTOR SHALL NOT BE
11 CONSIDERED.
12 I. CONVICTION UNDER STATE OR FEDERAL ANTITRUST STATUTES ARISING OUT OF
13 THE SUBMISSION OF BIDS OR PROPOSALS.
14 J. ANY OTHER GROUNDS OR CIRCUMSTANCES CONCERNING THE PRESENT RESPONSI-
15 BILITY OF A CONTRACTOR OR SUBCONTRACTOR INCLUDING, BUT NOT LIMITED TO,
16 SUBMISSION TO A CONTRACTING AGENCY OF A FALSE OR MISLEADING STATEMENT ON
17 A UNIFORM QUESTIONNAIRE, PROPOSAL OR OTHER OFFICIAL SUBMISSION.
18 K. ANY OTHER FACTORS CONSIDERED BY THE CONTRACTING AGENCIES TO BEAR
19 UPON RESPONSIBILITY, INCLUDING BUT NOT LIMITED TO, ANY MITIGATING
20 FACTORS BROUGHT TO THE AGENCY'S ATTENTION BY THE BIDDER OR PROPOSED
21 SUBCONTRACTOR.
22 3. ANY BIDDER, CONTRACTOR OR SUBCONTRACTOR WHO HAS BEEN DETERMINED,
23 PURSUANT TO THIS SECTION, NOT TO BE A RESPONSIBLE BIDDER, SHALL BE GIVEN
24 REASONABLE NOTICE BY THE CONTRACTING AGENCY BY CERTIFIED MAIL WITH
25 RETURN RECEIPT REQUESTED AND A REASONABLE OPPORTUNITY TO BE HEARD. A
26 BIDDER, CONTRACTOR OR SUBCONTRACTOR DECLARED NOT TO BE RESPONSIBLE MAY,
27 WITHIN TEN DAYS OF BEING HEARD, APPEAL THE DECISION TO THE HEAD OF THE
28 CONTRACTING AGENCY WHO WILL MAKE A FINAL DETERMINATION WITHIN TEN DAYS.
29 S 2. This act shall take effect on the one hundred twentieth day after
30 it shall have become a law.
