STATE OF NEW YORK ________________________________________________________________________ 6268 2023-2024 Regular Sessions IN ASSEMBLY 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: 1 Section 1. The state finance law is amended by adding a new section 2 139-m to read as follows: 3 § 139-m. Contractor and subcontractor responsibility. 1. For the 4 purpose of this section, the following terms shall have the following 5 meanings unless otherwise specified: 6 a. "Apparent low bidder" shall mean a bidder who, upon the opening of 7 bids for a contract, is determined to have submitted the lowest bid for 8 such contract. 9 b. "Bidder" shall mean any person, partnership, firm, corporation or 10 other entity submitting a competitive bid for, or submitted for approval 11 as a subcontractor on, a contract by any contracting entity. 12 c. "Contract" shall mean any contract made and awarded for 13 construction, reconstruction or alteration of any public work project 14 which is required by law to be let by competitive bidding to the lowest 15 responsible bidder by a contracting entity. 16 d. "Contracting entity" shall mean any public department, public bene- 17 fit corporation or public corporation covered by section one hundred 18 thirty-nine-f of this article or section thirty-eight of the highway 19 law. 20 e. "Contractor" shall mean a bidder who has been awarded a contract. 21 f. "Subcontractor" shall mean a person, partnership, firm, corporation 22 or other entity that is proposed to perform work on the contract. 23 2. In deliberating upon the responsibility of a bidder or proposed 24 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. LBD10088-01-3A. 6268 2 1 consideration to any credible evidence or information reasonably deemed 2 to be reliable that the past or current record of a bidder or proposed 3 subcontractor shall warrant a determination that such bidder or subcon- 4 tractor is not a responsible bidder. The contracting entity, in deter- 5 mining the responsibility of the apparent low bidder shall require, and 6 the apparent low bidder shall provide, the following information relat- 7 ing to the apparent low bidder in order for the contracting entity to 8 determine the pecuniary and financial responsibility, accountability, 9 operational responsibility, reliability, skill, capacity, ability, judg- 10 ment and integrity of the apparent low bidder: 11 a. a description of its experience with projects of comparative scope, 12 complexity, and cost within the past five years, together with documen- 13 tary evidence of such projects; 14 b. documentation regarding such projects describing the following: 15 timeliness of performance; quality of work; extension requests; liti- 16 gation and/or arbitration arising from such work, including fines and 17 penalties imposed and payment thereof; liens filed; history of claims 18 for extra work; contract defaults; and an explanation of the same; 19 c. identification and description of any projects within the previous 20 five years that the apparent low bidder was determined by the contract- 21 ing entity not to be a responsible bidder, and the reasons given by such 22 entity therefor, together with an explanation thereof; 23 d. an adequate demonstration of financial responsibility, which may 24 include a certified financial statement prepared by a certified public 25 accountant, to ensure that the apparent low bidder possesses adequate 26 resources and availability of credit and the means and ability to 27 procure insurance and bonds required for the project; 28 e. disclosure of any suspensions or revocations of any professional 29 license of any director, officer, owner or managerial employee of the 30 apparent low bidder, to the extent that any work to be performed is 31 within the field of such licensed profession; 32 f. disclosure of any and all United States occupational safety and 33 health administration violations within the previous five years, as well 34 as all notices of such violations against the apparent low bidder in the 35 same five year period, together with a description and explanation of 36 remediation or other steps taken regarding such violations and notices 37 of violations; 38 g. disclosure of any and all violations of article eight of the labor 39 law and any other provision of such law, including but not limited to, 40 child labor violations, failure to pay wages and unemployment insurance 41 tax delinquencies within the past five years; 42 h. disclosure of violations of the workers' compensation law, includ- 43 ing, but not limited to the failure to provide proof of workers' compen- 44 sation or disability coverage and/or any lapses thereof; 45 i. disclosure of any felony convictions, involving the lowest respon- 46 sible bidder, its officers, directors, owners or managerial employees 47 within the past five years; and 48 j. disclosure of any violations within the past five years or pending 49 charges concerning federal, state or municipal environmental and/or 50 health laws, codes, rules and/or regulations. 51 3. When requested by the contracting entity after the bid has been 52 submitted but before any of the subcontracted work commences, the 53 contractor shall identify all work to be subcontracted along with the 54 name of the firm or firms to which the work will be subcontracted. The 55 approval of the subcontractor by the contracting entity, as provided byA. 6268 3 1 the contract, shall be subject to the same evaluation of responsibility 2 contained within this section for the contractor. 3 4. Prior to a final determination that the apparent low bidder is not 4 responsible, the contracting entity shall notify the party of such 5 determination, in writing, stating the reasons for such determination, 6 and setting forth a time, date and place for the apparent low bidder to 7 appear and be heard, prior to such determination being made regarding 8 its responsibility. In the event of a final determination that the 9 apparent low bidder is not responsible, the next lowest bidder shall 10 become the apparent low bidder and shall be subject to the requirements 11 set forth in this section. 12 § 2. The general municipal law is amended by adding a new section 13 103-h to read as follows: 14 § 103-h. Contractor and subcontractor responsibility. 1. For the 15 purpose of this section, the following terms shall have the following 16 meanings unless otherwise specified: 17 a. "Apparent low bidder" shall mean a bidder who, upon the opening of 18 bids for a contract, is determined to have submitted the lowest bid for 19 such contract. 20 b. "Bidder" shall mean any person, partnership, firm, corporation or 21 other entity submitting a competitive bid for, or submitted for approval 22 as a subcontractor on, a contract by any contracting entity. 23 c. "Contract" shall mean any contract which is required by law to be 24 let by competitive bid by a contracting entity for construction, recon- 25 struction or alteration of any public work project to the lowest respon- 26 sible bidder. 27 d. "Contracting entity" shall mean a political subdivision or any 28 district therein. 29 2. In deliberating upon the responsibility of a bidder or proposed 30 subcontractor on a contract, the contracting entity shall give due 31 consideration to any credible evidence or information reasonably deemed 32 to be reliable that the past or current record of a bidder or proposed 33 subcontractor shall warrant a determination that such bidder or subcon- 34 tractor is not a responsible bidder. The contracting entity, in deter- 35 mining the responsibility of the apparent low bidder shall require, and 36 the apparent low bidder shall provide, the following information relat- 37 ing to the apparent low bidder in order for the contracting entity to 38 determine the pecuniary and financial responsibility, accountability, 39 operational responsibility, reliability, skill, capacity, ability, judg- 40 ment and integrity of the apparent low bidder: 41 a. a description of its experience with projects of comparative scope, 42 complexity, and cost within the past five years, together with documen- 43 tary evidence of such projects; 44 b. documentation regarding such projects describing the following: 45 timeliness of performance; quality of work; extension requests; liti- 46 gation and/or arbitration arising from such work, including fines and 47 penalties imposed and payment thereof; liens filed; history of claims 48 for extra work; contract defaults; and an explanation of the same; 49 c. identification and description of any projects within the previous 50 five years that the apparent low bidder was determined by the contract- 51 ing entity not to be a responsible bidder, and the reasons given by 52 such entity therefor, together with an explanation thereof; 53 d. an adequate demonstration of financial responsibility, which may 54 include a certified financial statement prepared by a certified public 55 accountant, to ensure that the apparent low bidder possesses adequateA. 6268 4 1 resources and availability of credit and the means and ability to 2 procure insurance and bonds required for the project; 3 e. disclosure of any suspensions or revocations of any professional 4 license of any director, officer, owner or managerial employee of the 5 apparent low bidder, to the extent that any work to be performed is 6 within the field of such licensed profession; 7 f. disclosure of any and all United States occupational safety and 8 health administration violations within the previous five years, as well 9 as all notices of such violations filed against the apparent low bidder 10 in the same five year period, together with a description and explana- 11 tion of remediation or other steps taken regarding such violations and 12 notices of violations; 13 g. disclosure of any and all violations of article eight of the labor 14 law and any other provision of such law, including but not limited to, 15 child labor violations, failure to pay wages and unemployment insurance 16 tax delinquencies within the past five years; 17 h. disclosure of violations of the workers' compensation law, includ- 18 ing but not limited to, the failure to provide proof of workers' compen- 19 sation or disability coverage and/or any lapses thereof; 20 i. disclosure of any felony convictions of the lowest responsible 21 bidder, its officers, directors, owners or managerial employees within 22 the past five years; and 23 j. disclosure of any violations within the past five years or pending 24 charges concerning federal, state or municipal environmental and/or 25 health laws, codes, rules and/or regulations. 26 3. When requested by the contracting entity after the bid has been 27 submitted but before any of the subcontracted work commences, the 28 contractor shall identify all work to be subcontracted along with the 29 name of the firm or firms to which the work will be subcontracted. The 30 approval of the subcontractor by the contracting entity, as provided by 31 the contract, shall be subject to the same evaluation of responsibility 32 contained within this section for the contractor. 33 4. Prior to a final determination that the apparent low bidder is not 34 responsible, the contracting entity shall notify the party of such 35 determination, in writing, stating the reasons for such determination, 36 and setting forth a time, date and place for the apparent low bidder to 37 appear and be heard, prior to such determination being made regarding 38 its responsibility. In the event of a final determination that the 39 apparent low bidder is not responsible, the next lowest bidder shall 40 become the apparent low bidder and shall be subject to the requirements 41 set forth in this section. 42 § 3. This act shall take effect on the thirtieth day after it shall 43 have become a law and shall be applicable to all contracts advertised 44 for bid on or after such date.