Bill Text: NY A03017 | 2011-2012 | General Assembly | Introduced
Bill Title: Relates to requirements for selecting the lowest responsible bidder for certain public works contracts; requires the submission of a questionnaire to the contracting agency and the comptroller.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced - Dead) 2011-01-21 - referred to local governments [A03017 Detail]
Download: New_York-2011-A03017-Introduced.html
S T A T E O F N E W Y O R K ________________________________________________________________________ 3017 2011-2012 Regular Sessions I N A S S E M B L Y January 21, 2011 ___________ Introduced by M. of A. SCHROEDER -- read once and referred to the Committee on Local Governments AN ACT to amend the state finance law and the general municipal law, in relation to requirements for selecting the lowest responsible bidder for certain public works contracts 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 2 135-b to read as follows: 3 S 135-B. LOWEST RESPONSIBLE BIDDER. 1. DEFINITION. FOR THE PURPOSES OF 4 THIS ARTICLE, "LOWEST RESPONSIBLE BIDDER" SHALL MEAN THE PERSON, FIRM, 5 CORPORATION, CONTRACTOR OR SUBCONTRACTOR OR OTHER ENTITY SUBMITTING A 6 BID FOR A PUBLIC WORK CONTRACT FOR THE ERECTION, CONSTRUCTION, RECON- 7 STRUCTION OR ALTERATION OF BUILDINGS WHO: 8 A. SUBMITS THE LOWEST BID; AND 9 B. IS NOT DISQUALIFIED ON ANY OF THE GROUNDS LISTED UNDER SUBDIVISION 10 FIVE OF THIS SECTION. 11 2. USE OF QUESTIONNAIRE TO DETERMINE RESPONSIBILITY OF CONTRACTORS AND 12 SUBCONTRACTORS. A. NO PUBLIC WORK CONTRACT MAY BE AWARDED BY AN AGENCY, 13 DEPARTMENT, PUBLIC AUTHORITY OR PUBLIC BENEFIT CORPORATION, OFFICE OR 14 OTHER ENTITY OF THE STATE, TO THE LOWEST RESPONSIBLE BIDDER UNLESS EACH 15 CONTRACTOR AND SUBCONTRACTOR FOR THE CONTRACT SUBMITS, AND THE CONTRACT- 16 ING ENTITY REVIEWS, A QUESTIONNAIRE DEMONSTRATING ITS RESPONSIBILITY TO 17 PERFORM THE CONTRACT. 18 B. QUESTIONNAIRES MUST BE SUBMITTED TO THE CONTRACTING ENTITY AND TO 19 THE COMPTROLLER WHO SHALL MAINTAIN THE INFORMATION IN AN ELECTRONIC 20 DATABASE FOR REVIEW BY ANY STATE OR LOCAL CONTRACTING ENTITY THAT AWARDS 21 PUBLIC WORK CONTRACTS. 22 3. CONTENTS OF QUESTIONNAIRE. THE COMPTROLLER SHALL PREPARE A UNIFORM 23 QUESTIONNAIRE FOR USE BY STATE AND LOCAL CONTRACTING ENTITIES, WHICH EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD06860-01-1 A. 3017 2 1 SHALL REQUIRE EACH CONTRACTOR AND SUBCONTRACTOR TO PROVIDE THE FOLLOWING 2 INFORMATION: 3 A. THE NAME, ADDRESS AND TELEPHONE NUMBER OF ITS PRINCIPALS, OWNERS, 4 OFFICERS, AND SHAREHOLDERS WHO OWN OR CONTROL AT LEAST FIVE PERCENT OF 5 THE STOCK OF THE CONTRACTOR OR SUBCONTRACTOR; 6 B. THE TAXPAYER IDENTIFICATION NUMBER OR EMPLOYER IDENTIFICATION 7 NUMBER, AND THE DUN AND BRADSTREET NUMBER OF THE CONTRACTOR OR SUBCON- 8 TRACTOR; 9 C. THE CONTRACTOR OR SUBCONTRACTOR'S TYPE OF BUSINESS ENTITY, INCLUD- 10 ING BUT NOT LIMITED TO CORPORATION, PARTNERSHIP, LIMITED LIABILITY 11 CORPORATION, LIMITED PARTNERSHIP, JOINT VENTURE OR SOLE PROPRIETOR; 12 D. THE NAMES AND ADDRESSES OF THE SUBCONTRACTORS PLANNED FOR THE 13 PROJECT; 14 E. THE USE OF REGISTERED AND APPROVED APPRENTICESHIP TRAINING PROGRAMS 15 FOR THE PAST FIVE YEARS; 16 F. ANY VIOLATIONS OF THE PREVAILING WAGE LAW UNDER ARTICLE EIGHT OF 17 THE LABOR LAW OR THE FEDERAL DAVIS-BACON ACT; 18 G. ANY VIOLATIONS OF STATE OR FEDERAL LAWS RELATING TO UNEMPLOYMENT 19 COMPENSATION, WORKERS' COMPENSATION, OCCUPATIONAL HEALTH AND SAFETY, 20 EMPLOYEE MISCLASSIFICATION, EMPLOYMENT DISABILITY, EMPLOYMENT DISCRIMI- 21 NATION, OR OTHER LABOR LAWS; 22 H. ANY VIOLATIONS OF STATE OR FEDERAL ENVIRONMENTAL PROTECTION LAWS; 23 I. ANY FAILURE TO FILE FEDERAL, STATE OR LOCAL TAX RETURNS, ANY TAX 24 LIABILITIES, JUDGMENTS OR LIENS, AND VIOLATIONS OF AGREEMENTS OR LAWS 25 UNDER WHICH A TAX CREDIT, TAX EXEMPTION, LOAN OR GRANT WAS AWARDED BY 26 ANY FEDERAL, STATE OR LOCAL ENTITY; 27 J. ANY CRIMINAL CONVICTION, INDICTMENT, GRANT OF IMMUNITY OR CIVIL 28 VIOLATION FOR BUSINESS-RELATED ACTIVITY, INCLUDING BUT NOT LIMITED TO 29 BRIBERY, EXTORTION, FRAUD, RACKETEERING, CONTRACT BIDDING AND RESTRAINT 30 OF TRADE; 31 K. CONTRACT SANCTION HISTORY INCLUDING FEDERAL OR STATE DEBARMENTS, 32 SUSPENSIONS, FINDINGS OF INELIGIBILITY, OR DISQUALIFICATIONS FOR 33 NON-COMPLIANCE WITH MINORITY-OWNED, WOMEN-OWNED OR DISADVANTAGED-OWNED 34 BUSINESS REQUIREMENTS; 35 L. ANY PENDING INVESTIGATIONS FOR CRIMINAL OR CIVIL VIOLATIONS OF ANY 36 STATE OR FEDERAL LAWS; 37 M. PROFESSIONAL LICENSE SANCTION HISTORY AGAINST ITS PRINCIPALS, 38 OWNERS AND OFFICERS; 39 N. EXPERTISE AND EXPERIENCE PERFORMING THE TYPE OF WORK REQUIRED UNDER 40 THE CONTRACT; 41 O. FINANCIAL CAPABILITY AND RELIABILITY INCLUDING FISCAL RESOURCES TO 42 PERFORM THE CONTRACT, AND ANY BANKRUPTCIES WITHIN THE PAST SEVEN YEARS; 43 P. PROOF OF SURETY BOND AND INSURANCE FOR WORKERS' COMPENSATION AND 44 GENERAL AND PROFESSIONAL LIABILITY FOR THE PROJECT; AND 45 Q. WHETHER HEALTH INSURANCE IS PROVIDED TO EMPLOYEES. 46 4. PENALTY. THE QUESTIONNAIRE SHALL BE SUBSCRIBED AND AFFIRMED AS TO 47 ITS TRUTH, ACCURACY AND COMPLETENESS UNDER PENALTY OF PERJURY. 48 5. AWARD OF PUBLIC WORK CONTRACT TO LOWEST RESPONSIBLE BIDDER. A. 49 WHERE A PUBLIC WORK CONTRACT IS REQUIRED TO BE AWARDED TO THE LOWEST 50 RESPONSIBLE BIDDER, NO CONTRACT MAY BE AWARDED TO A BIDDER IF ANY OF ITS 51 CONTRACTORS OR SUBCONTRACTORS: 52 (I) HAVE HAD A FINAL DETERMINATION RENDERED FOR A VIOLATION OF ARTICLE 53 EIGHT OF THE LABOR LAW, THE WORKERS' COMPENSATION LAW, THE UNEMPLOYMENT 54 INSURANCE LAW, OR EMPLOYEE MISCLASSIFICATION BY ANY FEDERAL OR STATE 55 AGENCY WITHIN THE PAST TEN YEARS; A. 3017 3 1 (II) HAVE COMMITTED A VIOLATION OF ANY OTHER LAWS UNDER PARAGRAPH G, 2 H, I, OR J OF SUBDIVISION THREE OF THIS SECTION WITHIN THE PAST FIVE 3 YEARS; 4 (III) FAIL TO PARTICIPATE IN AN APPRENTICESHIP TRAINING PROGRAM 5 APPROVED AND REGISTERED WITH THE STATE OR FEDERAL DEPARTMENT OF LABOR; 6 OR 7 (IV) FAIL TO PROVIDE PROOF OF SURETY BOND AND WORKERS' COMPENSATION 8 COVERAGE. 9 B. BASED ON THE INFORMATION COLLECTED IN THE QUESTIONNAIRES THE 10 CONTRACTING ENTITY MAY DETERMINE THAT A BIDDER IS NOT RESPONSIBLE AND 11 NOT AWARD A CONTRACT TO THE BIDDER UPON FINDING THAT: 12 (I) THE PROPOSED CONTRACTOR OR SUBCONTRACTORS FOR THE CONTRACT LACK 13 ADEQUATE EXPERTISE, OR LACK THE FINANCIAL RESOURCES TO PERFORM THE 14 CONTRACT OR SUBCONTRACT IN A TIMELY AND COMPETENT MANNER; 15 (II) THE EQUIPMENT TO BE USED FOR THE CONTRACT IS NOT SAFE FOR OPERA- 16 TION BY EMPLOYEES OF THE CONTRACTOR OR SUBCONTRACTORS, OR FOR THE 17 PUBLIC; 18 (III) THE BID SUBMITTED IS SO MUCH LOWER THAN THE AGENCY'S ENGINEER'S 19 ESTIMATE THAT IT SEEMS UNLIKELY THAT THE BIDDER WILL BE ABLE TO PERFORM 20 THE CONTRACT SATISFACTORILY AT THE PRICE BID; 21 (IV) THE BID SUBMITTED IS MATHEMATICALLY OR MATERIALLY UNBALANCED; 22 (V) A LACK OF GOOD FAITH EFFORT TO COMPLY WITH STATE AND FEDERAL 23 REQUIREMENTS FOR USE OF MINORITY-OWNED, WOMEN-OWNED AND 24 DISADVANTAGED-OWNED BUSINESSES; 25 (VI) FALSE OR MISLEADING INFORMATION HAS BEEN PRESENTED TO THE 26 CONTRACTING ENTITY IN CONNECTION WITH THE BID; OR 27 (VII) ANY OTHER INFORMATION FROM THE QUESTIONNAIRE WHICH RAISES SERI- 28 OUS QUESTIONS CONCERNING THE PRESENT CAPABILITY AND RESPONSIBILITY OF 29 THE CONTRACTOR OR ANY SUBCONTRACTOR TO PERFORM THE CONTRACT. 30 S 2. The general municipal law is amended by adding a new section 31 100-b to read as follows: 32 S 100-B. LOWEST RESPONSIBLE BIDDER. 1. DEFINITION. FOR THE PURPOSES 33 OF THIS ARTICLE, "LOWEST RESPONSIBLE BIDDER" SHALL MEAN THE PERSON, 34 FIRM, CORPORATION, CONTRACTOR OR SUBCONTRACTOR OR OTHER ENTITY SUBMIT- 35 TING A BID FOR A PUBLIC WORK CONTRACT FOR THE ERECTION, CONSTRUCTION, 36 RECONSTRUCTION OR ALTERATION OF BUILDINGS WHO: 37 A. SUBMITS THE LOWEST BID; AND 38 B. IS NOT DISQUALIFIED ON ANY OF THE GROUNDS LISTED UNDER SUBDIVISION 39 FIVE OF THIS SECTION. 40 2. USE OF QUESTIONNAIRE TO DETERMINE RESPONSIBILITY OF CONTRACTORS AND 41 SUBCONTRACTORS. A. NO PUBLIC WORK CONTRACT MAY BE AWARDED BY ANY POLI- 42 TICAL SUBDIVISION OR BY AN OFFICER, BOARD OR AGENCY THEREOF, TO THE 43 LOWEST RESPONSIBLE BIDDER UNLESS EACH CONTRACTOR AND SUBCONTRACTOR FOR 44 THE CONTRACT SUBMITS, AND THE CONTRACTING ENTITY REVIEWS, A QUESTION- 45 NAIRE DEMONSTRATING ITS RESPONSIBILITY TO PERFORM THE CONTRACT. 46 B. QUESTIONNAIRES MUST BE SUBMITTED TO THE CONTRACTING ENTITY AND TO 47 THE COMPTROLLER WHO SHALL MAINTAIN THE INFORMATION IN AN ELECTRONIC 48 DATABASE FOR REVIEW BY ANY STATE OR LOCAL CONTRACTING ENTITY THAT AWARDS 49 PUBLIC WORK CONTRACTS. 50 3. CONTENTS OF QUESTIONNAIRE. THE COMPTROLLER SHALL PREPARE A UNIFORM 51 QUESTIONNAIRE FOR USE BY A POLITICAL SUBDIVISION OR BY AN OFFICER, BOARD 52 OR AGENCY THEREOF, WHICH SHALL REQUIRE EACH CONTRACTOR AND SUBCONTRACTOR 53 TO PROVIDE THE FOLLOWING INFORMATION: 54 A. THE NAME, ADDRESS AND TELEPHONE NUMBER OF ITS PRINCIPALS, OWNERS, 55 OFFICERS, AND SHAREHOLDERS WHO OWN OR CONTROL AT LEAST FIVE PERCENT OF 56 THE STOCK OF THE CONTRACTOR OR SUBCONTRACTOR; A. 3017 4 1 B. THE TAXPAYER IDENTIFICATION NUMBER OR EMPLOYER IDENTIFICATION 2 NUMBER, AND THE DUN AND BRADSTREET NUMBER OF THE CONTRACTOR OR SUBCON- 3 TRACTOR; 4 C. THE CONTRACTOR OR SUBCONTRACTOR'S TYPE OF BUSINESS ENTITY, INCLUD- 5 ING BUT NOT LIMITED TO CORPORATION, PARTNERSHIP, LIMITED LIABILITY 6 CORPORATION, LIMITED PARTNERSHIP, JOINT VENTURE OR SOLE PROPRIETOR; 7 D. THE NAMES AND ADDRESSES OF THE SUBCONTRACTORS PLANNED FOR THE 8 PROJECT; 9 E. THE USE OF REGISTERED AND APPROVED APPRENTICESHIP TRAINING PROGRAMS 10 FOR THE PAST FIVE YEARS; 11 F. ANY VIOLATIONS OF THE PREVAILING WAGE LAW UNDER ARTICLE EIGHT OF 12 THE LABOR LAW OR THE FEDERAL DAVIS-BACON ACT; 13 G. ANY VIOLATIONS OF STATE OR FEDERAL LAWS RELATING TO UNEMPLOYMENT 14 COMPENSATION, WORKERS' COMPENSATION, OCCUPATIONAL HEALTH AND SAFETY, 15 EMPLOYEE MISCLASSIFICATION, EMPLOYMENT DISABILITY, EMPLOYMENT DISCRIMI- 16 NATION, OR OTHER LABOR LAWS; 17 H. ANY VIOLATIONS OF STATE OR FEDERAL ENVIRONMENTAL PROTECTION LAWS; 18 I. ANY FAILURE TO FILE FEDERAL, STATE OR LOCAL TAX RETURNS, ANY TAX 19 LIABILITIES, JUDGMENTS OR LIENS, AND VIOLATIONS OF AGREEMENTS OR LAWS 20 UNDER WHICH A TAX CREDIT, TAX EXEMPTION, LOAN OR GRANT WAS AWARDED BY 21 ANY FEDERAL, STATE OR LOCAL ENTITY; 22 J. ANY CRIMINAL CONVICTION, INDICTMENT, GRANT OF IMMUNITY OR CIVIL 23 VIOLATION FOR BUSINESS-RELATED ACTIVITY, INCLUDING BUT NOT LIMITED TO 24 BRIBERY, EXTORTION, FRAUD, RACKETEERING, CONTRACT BIDDING AND RESTRAINT 25 OF TRADE; 26 K. CONTRACT SANCTION HISTORY INCLUDING FEDERAL OR STATE DEBARMENTS, 27 SUSPENSIONS, FINDINGS OF INELIGIBILITY, OR DISQUALIFICATIONS FOR 28 NON-COMPLIANCE WITH MINORITY-OWNED, WOMEN-OWNED OR DISADVANTAGED-OWNED 29 BUSINESS REQUIREMENTS; 30 L. ANY PENDING INVESTIGATIONS FOR CRIMINAL OR CIVIL VIOLATIONS OF ANY 31 STATE OR FEDERAL LAWS; 32 M. PROFESSIONAL LICENSE SANCTION HISTORY AGAINST ITS PRINCIPALS, 33 OWNERS AND OFFICERS; 34 N. EXPERTISE AND EXPERIENCE PERFORMING THE TYPE OF WORK REQUIRED UNDER 35 THE CONTRACT; 36 O. FINANCIAL CAPABILITY AND RELIABILITY INCLUDING FISCAL RESOURCES TO 37 PERFORM THE CONTRACT, AND ANY AUDITS OR BANKRUPTCIES WITHIN THE PAST 38 SEVEN YEARS; 39 P. PROOF OF SURETY BOND AND INSURANCE FOR WORKERS' COMPENSATION AND 40 GENERAL AND PROFESSIONAL LIABILITY FOR THE PROJECT; AND 41 Q. WHETHER HEALTH INSURANCE IS PROVIDED TO EMPLOYEES. 42 4. PENALTY. THE QUESTIONNAIRE SHALL BE SUBSCRIBED AND AFFIRMED AS TO 43 ITS TRUTH, ACCURACY AND COMPLETENESS UNDER PENALTY OF PERJURY. 44 5. AWARD OF PUBLIC WORK CONTRACT TO LOWEST RESPONSIBLE BIDDER. A. 45 WHERE A PUBLIC WORK CONTRACT IS REQUIRED TO BE AWARDED TO THE LOWEST 46 RESPONSIBLE BIDDER, NO CONTRACT MAY BE AWARDED TO A BIDDER IF ANY OF ITS 47 CONTRACTORS OR SUBCONTRACTORS: 48 (I) HAVE HAD A FINAL DETERMINATION RENDERED FOR A VIOLATION OF ARTICLE 49 EIGHT OF THE LABOR LAW, THE WORKERS' COMPENSATION LAW, THE UNEMPLOYMENT 50 INSURANCE LAW, OR EMPLOYEE MISCLASSIFICATION BY ANY FEDERAL OR STATE 51 AGENCY WITHIN THE PAST TEN YEARS; 52 (II) HAVE COMMITTED A VIOLATION OF ANY OTHER LAWS UNDER PARAGRAPH G, 53 H, I, OR J OF SUBDIVISION THREE OF THIS SECTION WITHIN THE PAST FIVE 54 YEARS; A. 3017 5 1 (III) FAIL TO PARTICIPATE IN AN APPRENTICESHIP TRAINING PROGRAM 2 APPROVED AND REGISTERED WITH THE STATE OR FEDERAL DEPARTMENT OF LABOR; 3 OR 4 (IV) FAIL TO PROVIDE PROOF OF SURETY BOND AND WORKERS' COMPENSATION 5 COVERAGE. 6 B. BASED ON THE INFORMATION COLLECTED IN THE QUESTIONNAIRES THE 7 CONTRACTING ENTITY MAY DETERMINE THAT A BIDDER IS NOT RESPONSIBLE AND 8 NOT AWARD A CONTRACT TO THE BIDDER UPON FINDING THAT: 9 (I) THE PROPOSED CONTRACTOR OR SUBCONTRACTORS FOR THE CONTRACT LACK 10 ADEQUATE EXPERTISE, OR LACK THE FINANCIAL RESOURCES TO PERFORM THE 11 CONTRACT OR SUBCONTRACT IN A TIMELY AND COMPETENT MANNER; 12 (II) THE EQUIPMENT TO BE USED FOR THE CONTRACT IS NOT SAFE FOR OPERA- 13 TION BY EMPLOYEES OF THE CONTRACTOR OR SUBCONTRACTORS, OR FOR THE 14 PUBLIC; 15 (III) THE BID SUBMITTED IS SO MUCH LOWER THAN THE ENGINEER'S ESTIMATE 16 THAT IT SEEMS UNLIKELY THAT THE BIDDER WILL BE ABLE TO PERFORM THE 17 CONTRACT SATISFACTORILY AT THE PRICE BID; 18 (IV) THE BID SUBMITTED IS MATHEMATICALLY OR MATERIALLY UNBALANCED; 19 (V) A LACK OF GOOD FAITH EFFORT TO COMPLY WITH STATE AND FEDERAL 20 REQUIREMENTS FOR USE OF MINORITY-OWNED, WOMEN-OWNED AND 21 DISADVANTAGED-OWNED BUSINESSES; 22 (VI) FALSE OR MISLEADING INFORMATION HAS BEEN PRESENTED TO THE 23 CONTRACTING ENTITY IN CONNECTION WITH THE BID; OR 24 (VII) ANY OTHER INFORMATION FROM THE QUESTIONNAIRE WHICH RAISES SERI- 25 OUS QUESTIONS CONCERNING THE PRESENT CAPABILITY AND RESPONSIBILITY OF 26 THE CONTRACTOR OR ANY SUBCONTRACTOR TO PERFORM THE CONTRACT. 27 S 3. This act shall take effect on the ninetieth day after it shall 28 have become a law.