Bill Text: NY A06943 | 2017-2018 | General Assembly | Amended
Bill Title: Provides for payment of damages occasioned by a delay in the performance of a contract.
Spectrum: Partisan Bill (Democrat 2-0)
Status: (Introduced - Dead) 2018-01-03 - referred to judiciary [A06943 Detail]
Download: New_York-2017-A06943-Amended.html
STATE OF NEW YORK ________________________________________________________________________ 6943--A 2017-2018 Regular Sessions IN ASSEMBLY March 24, 2017 ___________ Introduced by M. of A. KIM, ORTIZ -- read once and referred to the Committee on Judiciary -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said committee 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: 1 Section 1. The state finance law is amended by adding a new section 2 138-b to read as follows: 3 § 138-b. Damages occasioned by delay. 1. For purposes of this section 4 the following terms shall have the following meanings: 5 (a) "Contract" shall mean any contract awarded by the state, any state 6 agency, department, board, bureau, municipal corporation, public benefit 7 corporation, public authority or any other state entity, any school 8 district or any other special district, or any instrumentality of the 9 state or a political subdivision of the state, which enters into a 10 contract for design, construction, reconstruction, demolition, alter- 11 ation, repair or improvement of any public works. 12 (b) "Delay" shall mean any delay, disruption, interference, ineffi- 13 ciencies, impedance, hindrance or acceleration in the performance of the 14 contract which causes damages to be incurred by a contractor, subcon- 15 tractor or materialman to a contract and which is a direct result of the 16 negligence, malfeasance, misfeasance of the person or entity for whom 17 the contractor, subcontractor or materialman is providing services as 18 provided for in the contract, or any disruption, interference, ineffi- 19 ciencies, impedance, hindrance or acceleration causing damages to be 20 similarly incurred by such person or entity. 21 (c) "Claim" shall mean a request for additional costs from the follow- 22 ing causes listed in this subdivision attributable to delay in the 23 performance of a contract, occasioned by any act or omission to act by 24 the public entity with whom a contractor, subcontractor or materialman EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD05257-02-7A. 6943--A 2 1 has contracted with, but shall not include delay from any other cause, 2 which delay shall be compensated for solely by an extension of time to 3 complete the performance of the work: 4 (i) the failure of the public entity to take reasonable measures to 5 coordinate and progress the work; 6 (ii) extended delays attributable to the public entity in the review 7 or issuance of orders-on-contract or field orders, in shop drawing 8 reviews and approvals or as a result of the cumulative impact of multi- 9 ple orders on contract, which constitute a qualitative change to the 10 project work and which have a verifiable impact on project costs; 11 (iii) the unavailability of the site for such an extended period of 12 time which significantly affects the scheduled completion of the 13 contract; or 14 (iv) the issuance of a stop work order relative to a substantial 15 portion of work for a period exceeding thirty days. 16 2. All contracts made and awarded shall contain a clause which allows 17 a contractor, subcontractor or materialman to make a claim for addi- 18 tional costs arising from delay if such delay in the performance of the 19 contract is caused by or occasioned by any act or omission of the entity 20 with whom they have contracted in the contract, or any of such entity's 21 representatives or agents. 22 3. The contractor, subcontractor or materialman shall provide a notice 23 of claim of an anticipated claim for delay to a public entity by 24 personal service or certified mail no more than fifteen days after such 25 contractor knew the facts which form the basis of the claim. The public 26 entity shall acknowledge receipt of the notice, in writing, within five 27 days. No public entity shall incur any liability for any damages which 28 accrue more than fifteen days prior to the delivery or mailing of the 29 required notice. Such notice shall at a minimum provide a description of 30 any operations that were, are being or will be delayed, and the date or 31 dates and reasons for the delay. In no case shall oral notice constitute 32 notice pursuant to this section or be deemed to constitute a waiver of 33 the written notice requirement. For the purposes of this section, fail- 34 ure to provide such notice shall be considered to have prejudiced the 35 public entity. 36 4. Failure by a contractor to adequately progress the completion of 37 work shall be considered in determining the causes of delay. For any 38 claim asserted pursuant to this title, the contractor, subcontractor or 39 materialman shall keep detailed written records of the costs and shall 40 make them available for the purposes of audit and review. Failure to 41 provide the required written notice or to maintain and furnish records 42 of the costs of such claims shall constitute a waiver of the claim. 43 5. The following information shall be provided by the contractor upon 44 request of a public entity if not previously supplied: 45 (a) a description of the operations that were delayed, the reasons for 46 the delay and an explanation of how they were delayed; 47 (b) a detailed factual statement of the claim providing all necessary 48 dates, locations and items of work affected by the claim; 49 (c) the date on which actions resulting in the claim occurred or 50 conditions resulting in the claim became evident; 51 (d) the names, functions and activities of each contractor, subcon- 52 tractor and materialman involved in, or knowledgeable about facts that 53 gave rise to such claim; 54 (e) the identification of any pertinent documents, and the substance 55 of any material oral communication relating to such claim; 56 (f) the amount of additional compensation sought; andA. 6943--A 3 1 (g) if an extension of time is also requested, the specific number of 2 days for which it is sought and the basis for such request as determined 3 by an analysis of the construction progress schedule. 4 6. When submitting any claim, the contractor, subcontractor or materi- 5 alman shall certify in writing and under oath that the supporting data 6 is accurate and complete to his or her best knowledge or belief, and 7 that any amount demanded reflects, in good faith, what he or she 8 believes to be the public entity's liability. 9 § 2. This act shall take effect on the one hundred eightieth day after 10 it shall have become a law and shall apply to all contracts entered into 11 on and after such date.
