Bill Text: NY S06410 | 2011-2012 | General Assembly | Introduced
Bill Title: Ensures compliance with competitive bidding law.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced - Dead) 2012-02-06 - REFERRED TO LOCAL GOVERNMENT [S06410 Detail]
Download: New_York-2011-S06410-Introduced.html
S T A T E O F N E W Y O R K ________________________________________________________________________ 6410 I N S E N A T E February 6, 2012 ___________ Introduced by Sen. RIVERA -- read twice and ordered printed, and when printed to be committed to the Committee on Local Government AN ACT to amend the general municipal law and the state finance law, in relation to ensuring compliance with the competitive bidding law THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: 1 Section 1. Short title. This act shall be known and may be cited as 2 the "municipal competitive bidding enforcement act." 3 S 2. The general municipal law is amended by adding a new section 4 103-h to read as follows: 5 S 103-H. ENFORCEMENT OF COMPETITIVE BIDDING LAW. 1. DEFINITIONS. (A) 6 "PROCUREMENT ACTION" MEANS ANY TRANSACTION WHICH IS CLAIMED TO CONSTI- 7 TUTE A CONTRACT FOR PUBLIC WORK INVOLVING AN EXPENDITURE OF MORE THAN 8 TWENTY THOUSAND DOLLARS OR A PURCHASE CONTRACT INVOLVING THE EXPENDITURE 9 OF MORE THAN TEN THOUSAND DOLLARS WHICH SHOULD BE AWARDED TO THE LOWEST 10 RESPONSIBLE BIDDER, AS PROVIDED BY SECTION ONE HUNDRED THREE OF THIS 11 ARTICLE. 12 (B) "GOOD FAITH BIDDER" MEANS ANY PERSON WHO HAS SUBMITTED A BID IN 13 RESPONSE TO AN ADVERTISEMENT FOR SEALED BIDS, OR WHO COULD SUBMIT A GOOD 14 FAITH BID ON A PROCUREMENT ACTION. 15 2. COMPTROLLER'S OPINIONS. UPON A COMPLAINT FILED BY A TAXPAYER OF THE 16 POLITICAL SUBDIVISION OR BY A GOOD FAITH BIDDER, THE OFFICE OF THE STATE 17 COMPTROLLER SHALL ISSUE AN OPINION ON WHETHER A PROPOSED PROCUREMENT 18 ACTION BY A POLITICAL SUBDIVISION COMPLIES WITH THE COMPETITIVE BIDDING 19 REQUIREMENTS OF SECTION ONE HUNDRED THREE OF THIS ARTICLE. THE COMPLAINT 20 SHALL SPECIFY THE PROCUREMENT ACTION THAT IS CLAIMED TO VIOLATE SECTION 21 ONE HUNDRED THREE OF THIS ARTICLE. THE TAXPAYER OR GOOD FAITH BIDDER 22 SHALL SERVE A COPY OF THE COMPLAINT ON THE POLITICAL SUBDIVISION PRIOR 23 TO SERVING THE COMPLAINT ON THE COMPTROLLER. UPON THE FILING OF A PRIMA 24 FACIE VALID COMPLAINT WITH THE COMPTROLLER, THE COMPTROLLER SHALL NOTIFY 25 THE POLITICAL SUBDIVISION. UPON RECEIPT OF SUCH NOTICE FROM THE COMP- 26 TROLLER, THE POLITICAL SUBDIVISION MAY NOT PROCEED WITH THE COMPLAINT OF 27 PROCUREMENT ACTION FOR A PERIOD OF THIRTY DAYS. IN RENDERING HIS OR HER 28 OPINION, THE COMPTROLLER MAY CONSULT WITH THE OFFICE OF GENERAL EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD14411-01-2 S. 6410 2 1 SERVICES AS TO THE REASONABLENESS AND VALIDITY OF ANY BID SPECIFICA- 2 TIONS. THE COMPTROLLER SHALL ISSUE A WRITTEN OPINION PURSUANT TO THIS 3 SUBDIVISION WITHIN THIRTY DAYS OF SUCH NOTICE TO THE POLITICAL SUBDIVI- 4 SION AND SHALL PROMPTLY SERVE COPIES OF THE OPINION ON THE POLITICAL 5 SUBDIVISION AND ON THE COMPLAINING PARTY. 6 3. ATTORNEY GENERAL. IF THE COMPTROLLER'S OPINION IS THAT THE PROCURE- 7 MENT ACTION WOULD VIOLATE SECTION ONE HUNDRED THREE OF THIS ARTICLE, THE 8 COMPTROLLER SHALL TRANSMIT A COPY OF THE OPINION TO THE ATTORNEY GENER- 9 AL. NOTWITHSTANDING ANY OTHER PROVISION OF LAW, THE ATTORNEY GENERAL IS 10 AUTHORIZED TO BRING A SPECIAL PROCEEDING IN THE SUPREME COURT TO HAVE A 11 PROCUREMENT ACTION ENJOINED OR DECLARED NULL AND VOID ON THE GROUND THAT 12 IT IS IN VIOLATION OF SECTION ONE HUNDRED THREE OF THIS ARTICLE. 13 4. DAMAGES TO GOOD FAITH BIDDER. A GOOD FAITH BIDDER MAY BRING AN 14 ACTION IN THE SUPREME COURT TO RECOVER DAMAGES AND ATTORNEY'S FEES FROM 15 A POLITICAL SUBDIVISION, WHICH ENGAGES IN A VIOLATION OF SECTION ONE 16 HUNDRED THREE OF THIS ARTICLE. THE COURT SHALL AWARD DAMAGES AND ATTOR- 17 NEY'S FEES IF THE COURT FINDS THAT THE GOOD FAITH BIDDER WOULD HAVE BEEN 18 THE LOWEST RESPONSIBLE BIDDER, BUT FOR THE POLITICAL SUBDIVISION'S 19 VIOLATION OF SECTION ONE HUNDRED THREE OF THIS ARTICLE. THE COURT IS 20 AUTHORIZED IN ANY SUCH ACTION TO DECLARE AN ILLEGALLY AWARDED CONTRACT 21 TO BE NULL AND VOID. 22 (A) IF THE COMPTROLLER HAS ISSUED AN OPINION THAT THE PROCUREMENT 23 ACTION WOULD BE IN VIOLATION OF SECTION ONE HUNDRED THREE OF THIS ARTI- 24 CLE AND THE POLITICAL SUBDIVISION HAS THEREAFTER PROCEEDED WITH THE 25 PROCUREMENT ACTION, THE MEASURE OF DAMAGES SHALL BE THREE TIMES THE GOOD 26 FAITH BIDDER'S LOST PROFITS. 27 (B) IF THE COMPTROLLER HAS NOT ISSUED AN OPINION THAT THE PROCUREMENT 28 ACTION WOULD BE IN VIOLATION OF SECTION ONE HUNDRED THREE OF THIS ARTI- 29 CLE, THE MEASURE OF DAMAGES SHALL BE THE LESSER OF (I) THE GOOD FAITH 30 BIDDER'S LOST PROFITS AND (II) THE DIFFERENCE BETWEEN THE PRICE OF THE 31 NULLIFIED CONTRACT AND ANY AMOUNT THAT THE COURT AWARDS TO THE PERSON 32 WHO PERFORMED ON THE NULLIFIED CONTRACT. 33 5. CIVIL PENALTY. ANY PERSON WHO SHALL WILFULLY AND INTENTIONALLY 34 VIOLATE THE COMPETITIVE BIDDING REQUIREMENTS OF SECTION ONE HUNDRED 35 THREE OF THIS ARTICLE SHALL BE PERSONALLY LIABLE FOR A CIVIL PENALTY OF 36 NOT MORE THAN ONE THOUSAND DOLLARS. IN A PROCEEDING BROUGHT PURSUANT TO 37 THIS SECTION, THE COMPTROLLER'S OPINIONS AND AUDITS MAY BE ADMITTED INTO 38 EVIDENCE ON THE ISSUE OF THE RESPONDENT'S STATE OF MIND, PROVIDED THAT 39 (A) THE OPINION OR AUDIT WAS ISSUED PRIOR TO THE ALLEGED VIOLATION, (B) 40 THE OPINION OR AUDIT WAS ISSUED NO MORE THAN TEN YEARS PRIOR TO THE 41 ALLEGED VIOLATION, AND (C) THE OPINION OR AUDIT CONCERNED THE SAME KIND 42 OF ITEM OR SAME KIND OF PRACTICE AS THE ALLEGED VIOLATION. 43 6. COMPLAINT FEE. WHENEVER THE COMPTROLLER ACCEPTS A COMPLAINT FOR 44 FILING PURSUANT TO THIS SECTION, THE COMPTROLLER SHALL REQUIRE AND 45 COLLECT A FEE OF ONE HUNDRED DOLLARS, WHICH SHALL BE PAID INTO THE STATE 46 TREASURY AND WHICH SHALL, SO FAR AS IS NECESSARY, BE APPROPRIATED ANNU- 47 ALLY BY THE LEGISLATURE TO THE COMPTROLLER TO BE USED IN IMPLEMENTING 48 THIS ARTICLE. 49 S 3. Section 103 of the general municipal law is amended by adding a 50 new subdivision 14 to read as follows: 51 14. EXCEPT AS OTHERWISE EXPRESSLY AUTHORIZED BY THIS ARTICLE, A POLI- 52 TICAL SUBDIVISION MAY NOT REQUIRE THAT BIDS CONFORM TO UNDULY RESTRIC- 53 TIVE SPECIFICATIONS. ALL SPECIFICATIONS SHALL BE DRAFTED SO AS TO 54 PROMOTE OVERALL ECONOMY FOR THE PURPOSES INTENDED AND TO ENCOURAGE 55 COMPETITION IN SATISFYING THE NEEDS OF THE POLITICAL SUBDIVISION. A 56 BRAND NAME MAY BE USED AS A SPECIFICATION ONLY IF THE SPECIFICATION S. 6410 3 1 CLEARLY STATES THAT THE BRAND NAME OR EQUIVALENT IS ACCEPTABLE. WHERE A 2 BRAND NAME OR EQUIVALENT SPECIFICATION IS USED IN A BID SOLICITATION, 3 THE SOLICITATION SHALL CONTAIN EXPLANATORY LANGUAGE THAT THE USE OF A 4 BRAND NAME IS FOR THE PURPOSE OF DESCRIBING THE STANDARD OF QUALITY, 5 PERFORMANCE AND CHARACTERISTICS DESIRED AND IS NOT INTENDED TO LIMIT OR 6 RESTRICT COMPETITION. IN ANY OPINION, PROCEEDING OR ACTION BROUGHT 7 PURSUANT TO SECTION ONE HUNDRED THREE-H OF THIS ARTICLE, A BID SPECIFI- 8 CATION DEVELOPED AND PROVIDED BY THE OFFICE OF GENERAL SERVICES SHALL BE 9 DEEMED VALID. 10 S 4. Subdivision 2 of section 103 of the general municipal law, as 11 amended by section 4 of chapter 608 of the laws of 2011, is amended to 12 read as follows: 13 2. Advertisement for bids and offers shall be published in the offi- 14 cial newspaper or newspapers, if any, or otherwise in a newspaper or 15 newspapers designated for such purpose. Such advertisement shall contain 16 a statement of the time when and place where all bids received pursuant 17 to such notice will be publicly opened and read and where the identity 18 of all offerers will be publicly disclosed, and the designation of the 19 receiving device if the political subdivision or district has authorized 20 the receipt of bids and offers in an electronic format. Such board or 21 agency may by resolution designate any officer or employee to open the 22 bids and offers at the time and place specified in the notice. Such 23 designee shall make a record of such bids and offers in such form and 24 detail as the board or agency shall prescribe and present the same at 25 the next regular or special meeting of such board or agency. All bids 26 received shall be publicly opened and read at the time and place so 27 specified and the identity of all offerers shall be publicly disclosed 28 at the time and place so specified. ALL BIDS RECEIVED AND OPENED SHALL 29 BE PUBLIC RECORDS AND SHALL BE AVAILABLE FOR PUBLIC INSPECTION AND COPY- 30 ING. At least five days shall elapse between the first publication of 31 such advertisement and the date so specified for the opening and reading 32 of bids and offers. 33 S 5. Subdivision 2 of section 103 of the general municipal law, as 34 amended by section 5 of chapter 608 of the laws of 2011, is amended to 35 read as follows: 36 2. Advertisement for bids and offers shall be published in the offi- 37 cial newspaper or newspapers, if any, or otherwise in a newspaper or 38 newspapers designated for such purpose. Such advertisement shall contain 39 a statement of the time when and place where all bids received pursuant 40 to such notice will be publicly opened and read and where the identity 41 of all offerers will be publicly disclosed. Such board or agency may by 42 resolution designate any officer or employee to open the bids and offers 43 at the time and place specified in the notice. Such designee shall make 44 a record of such bids and offers in such form and detail as the board or 45 agency shall prescribe and present the same at the next regular or 46 special meeting of such board or agency. All bids received shall be 47 publicly opened and read at the time and place so specified and the 48 identity of all offerers shall be publicly disclosed at the time and 49 place so specified. ALL BIDS RECEIVED AND OPENED SHALL BE PUBLIC 50 RECORDS AND SHALL BE AVAILABLE FOR PUBLIC INSPECTION AND COPYING. At 51 least five days shall elapse between the first publication of such 52 advertisement and the date so specified for the opening and reading of 53 bids and offers. 54 S 6. Subparagraph 1 of paragraph (b) of subdivision 4 of section 35 of 55 the general municipal law, as amended by chapter 692 of the laws of 56 1989, is amended to read as follows: S. 6410 4 1 (1) Not later than ninety days after presentation to the governing 2 board of a report of examination performed by the office of the state 3 comptroller, or receipt by the governing board of any report of an 4 external audit performed by an independent public accountant or any 5 management letter in conjunction with such an audit, the governing board 6 may, in its discretion, provide to the comptroller, and file in the 7 office of the clerk, or with the secretary if there is no clerk, of the 8 municipal corporation, industrial development agency, district, agency 9 or activity, a written response to the findings and recommendations, if 10 any, in the report or letter. PROVIDED, HOWEVER, THAT IF SUCH REPORT OR 11 LETTER CONTAINS A FINDING THAT THE COMPETITIVE BIDDING REQUIREMENTS OF 12 SECTION ONE HUNDRED THREE OF THIS CHAPTER WERE VIOLATED, THE GOVERNING 13 BOARD MUST FILE A WRITTEN RESPONSE. In the case of municipal corpo- 14 rations, industrial development agency, districts, agencies or activ- 15 ities subject to examination by the commissioner of education, any writ- 16 ten response shall also be provided to such commissioner. 17 S 7. The state finance law is amended by adding a new section 164-a to 18 read as follows: 19 S 164-A. PROVIDING BID SPECIFICATIONS TO POLITICAL SUBDIVISIONS. THE 20 COMMISSIONER OF GENERAL SERVICES SHALL PROVIDE TO ANY POLITICAL SUBDIVI- 21 SION, AT NO CHARGE, ANY SPECIFICATION THAT THE COMMISSIONER HAS DEVEL- 22 OPED FOR ITEMS TO BE LET FOR BIDS IN PURCHASE CONTRACTS. THE COMMISSION- 23 ER MAY DEVELOP ADDITIONAL SPECIFICATIONS AT THE REQUEST OF ANY POLITICAL 24 SUBDIVISION AND MAY PROVIDE SUCH SPECIFICATIONS TO THE POLITICAL SUBDI- 25 VISION AND MAY CHARGE THE POLITICAL SUBDIVISION FOR THE COST OF DEVELOP- 26 ING SUCH SPECIFICATIONS. 27 S 8. If any clause, sentence, paragraph, section or part of this act 28 shall be adjudged by any court of competent jurisdiction to be invalid, 29 such judgment shall not affect, impair or invalidate the remainder ther- 30 eof, but shall be confined in its operation to the clause, sentence, 31 paragraph, section or part thereof directly involved in the controversy 32 in which such judgment shall have been rendered. 33 S 9. This act shall take effect on the first of January next succeed- 34 ing the date on which it shall have become a law; provided, however, the 35 amendments to subdivision 2 of section 103 of the general municipal law 36 made by section four of this act shall not affect the expiration and 37 reversion of such subdivision pursuant to subdivision (a) of section 41 38 of part X of chapter 62 of the laws of 2003, as amended, when upon such 39 date the provisions of section five of this act shall take effect.