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A08931 Summary:

BILL NOA08931
 
SAME ASSAME AS S07323
 
SPONSORBronson
 
COSPNSR
 
MLTSPNSR
 
Amd 220-b, Lab L (as proposed in S. 6790 and A. 8514)
 
Relates to reciprocity of debarments imposed under the federal Davis-Bacon Act; bars a substantially owned-affiliated entity from submitting a bid or being awarded any public work contract in the state.
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A08931 Actions:

BILL NOA08931
 
01/08/2018referred to labor
02/13/2018reported referred to codes
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A08931 Memo:

NEW YORK STATE ASSEMBLY
MEMORANDUM IN SUPPORT OF LEGISLATION
submitted in accordance with Assembly Rule III, Sec 1(f)
 
BILL NUMBER: A8931
 
SPONSOR: Bronson
  TITLE OF BILL: An act to amend the labor law, in relation to reci- procity of debarments imposed under the federal Davis-Bacon Act   PURPOSE OR GENERAL IDEA OF BILL: This bill would make changes to chapter 461 of the laws of 2017 to effectuate the intent of the law.   SUMMARY OF PROVISIONS: Section 1 - Makes changes to chapter 461 of the laws of 2017 that would prohibit all contractors, subcontractors, substantially owned-affiliated entities, or persons listed on the federal debarment list from being eligible to bid or be awarded a public work contract with the state, any municipal corporation, public benefit corporation, or public body for the duration that they are on the federal exclusion list, while provid- ing the contracting entity with discretion to allow contractors, subcon- tractors, substantially owned-affiliated entities, or persons to submit a bid or award them a particular public work contract, if there is a compelling reason. This bill also modifies chapter 461 of the laws of 2017 regarding substantially owned-affiliated entities ability to contest the determination that they are ineligible to bid. Section 2 - Effective date.   DIFFERENCE BETWEEN ORIGINAL AND AMENDED VERSION (IF APPLICABLE): N/A   JUSTIFICATION: Recent studies indicate that fraud in the construction industry in New York State has reached epidemic proportions. Dishonest contractors, in an effort to cut corners and save on labor costs, have engaged in a number of schemes to avoid paying workers the wage to which they are statutorily entitled. They include the kickback of wages, dual payrolls and cash-off-the books schemes. Under the existing law, a contractor may be debarred from participation in public work projects if the Bureau of Public Works finds that the contractor has knowingly committed two violations of the prevailing wage law within a six-year period. Debar- ments are also imposed when a person or corporation, or any officer or shareholder who owns or controls at least ten percent of the outstanding stock of such corporation has been convicted of any of an enumerated list of felonies for conduct relating to obtaining, performing or attempting to perform a public work contract with the state, any munici- pal corporation, public benefit corporation or public body. Its federal counterpart, the Davis-Bacon Act, imposes a similar penalty on contrac- tors who are found to have disregarded their obligations to employees under federal wage-and-hour laws. At the present time, however, New York Labor Law fails to recognize debarments imposed by the United States Department of Labor. Working at a public work job site is a privilege, not a right. New Yorkers are entitled to expect the highest standard of integrity from contractors who bid on these projects. Under this legis- lation, debarments would run while federal debarment is in effect and would apply prospectively.   PRIOR LEGISLATIVE HISTORY: New bill.   FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS: None   EFFECTIVE DATE: This act shall take effect on the same date and in the same manner as a chapter of the laws of 2017 amending the labor law and the general municipal law relating to reciprocity of debarments imposed under the federal Davis-Bacon Act; and relating to a work group to study and make recommendations to the legislature regarding the appropriate payment of supplements to construction workers, as proposed in legislative bills numbers S.6790 and A.8514, takes effect.
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A08931 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                          8931
 
                   IN ASSEMBLY
 
                                     January 8, 2018
                                       ___________
 
        Introduced  by M. of A. BRONSON -- read once and referred to the Commit-
          tee on Labor
 
        AN ACT to amend the labor law, in relation to reciprocity of  debarments
          imposed under the federal Davis-Bacon Act
 
          The  People of the State of New York, represented in Senate and Assem-
        bly, do enact as follows:
 
     1    Section 1.  Subparagraph 3 of paragraph b of subdivision 3 of  section
     2  220-b  of  the  labor  law,  as  added by a chapter of the laws of 2017,
     3  amending the labor law and the general municipal law relating  to  reci-
     4  procity  of  debarments  imposed  under the federal Davis-Bacon Act; and
     5  relating to a work group to study and make recommendations to the legis-
     6  lature regarding the appropriate payment of supplements to  construction
     7  workers,  as  proposed in legislative bills numbers S. 6790 and A. 8514,
     8  is amended to read as follows:
     9    (3)(i) When any contractor [or], subcontractor, or person is [debarred
    10  for having disregarded obligations to employees  under  the  Davis-Bacon
    11  Act  pursuant  to  40  U.S.C.    3144 and 29 C.F.R. 5.12,] listed by the
    12  federal government as excluded  from  receiving  federal  contracts  and
    13  certain  subcontracts,  assistance  or  benefits,  pursuant to 48 C.F.R.
    14  Subpart 9-4, such contractor [or], subcontractor, [and any "substantial-
    15  ly owned-affiliated entity" as defined by  paragraph  g  of  subdivision
    16  five  of section two hundred twenty of this article,] or person shall be
    17  ineligible to submit a bid on or be  awarded  any  public  [works]  work
    18  contract  with  the  state,  any  municipal  corporation, public benefit
    19  corporation or public body [while the name of the person  or  entity  is
    20  published  in  the  list  of  debarred contractors pursuant to 40 U.S.C.
    21  3144. Where a contractor or subcontractor is determined to be ineligible
    22  pursuant to this subparagraph because it is considered a  "substantially
    23  owned-affiliated  entity,"  such  contractor  or  subcontractor shall be
    24  provided with written notice from the department within seven  days  and
    25  shall  be  afforded the opportunity to appeal the ineligibility determi-
    26  nation to the department within thirty  calendar  days  of  the  written
    27  notice.  In  order  for  a  substantially-owned  affiliated entity to be
    28  debarred pursuant to this subparagraph, such substantially-owned  affil-

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD13260-02-8

        A. 8931                             2

     1  iated entity must have substantial involvement in the day to day manage-
     2  ment  of  the  contractor or subcontractor] during such period of exclu-
     3  sion, unless the department having jurisdiction determines, after public
     4  notice  and  comment, that there is a compelling reason, consistent with
     5  48 C.F.R. § 9.405, to allow such contractor, subcontractor, or person to
     6  submit a bid or to be awarded a particular public work contract.  Public
     7  notice shall include notice provided to the department, which shall post
     8  such notice on its website.
     9    (ii) When the fiscal officer determines that a contractor, subcontrac-
    10  tor or person is a "substantially owned-affiliated entity,"  as  defined
    11  by paragraph g of subdivision five of section two hundred twenty of this
    12  article,  in relation to a contractor, subcontractor, or person ineligi-
    13  ble to submit a bid or be awarded a public work  contract  under  clause
    14  (i)  of  this  subparagraph,  such substantially owned-affiliated entity
    15  shall be ineligible to submit a  bid  or  be  awarded  any  public  work
    16  contract  with  the  state,  any  municipal  corporation, public benefit
    17  corporation for the duration of the remaining period of exclusion of the
    18  contractor, subcontractor, or person under clause (i) of  this  subpara-
    19  graph.  In  order  for  a  substantially  owned-affiliated  entity to be
    20  debarred pursuant to this clause,  such  substantially  owned-affiliated
    21  entity  must  have had substantial involvement in the day to day manage-
    22  ment of the contractor, subcontractor or person  debarred  under  clause
    23  (i)  of  this subparagraph.   Such substantially owned-affiliated entity
    24  shall be provided with written notice from the  fiscal  officer  of  the
    25  proposed  determination and shall be afforded an opportunity to be heard
    26  regarding the ineligible determination  by  the  fiscal  officer  within
    27  thirty calendar days of the written notice.  In addition, the department
    28  having jurisdiction may determine, after public notice and comment, that
    29  there  is  a  compelling  reason,  consistent with 48 C.F.R. § 9.405, to
    30  allow such substantially owned-affiliated entity to submit a bid  or  to
    31  be  awarded  a  particular  public  work  contract.  Public notice shall
    32  include notice provided to the department, which shall post such  notice
    33  on its website.
    34    (iii)  Any [eligibility determination] determinations made pursuant to
    35  this subparagraph shall be subject to review pursuant to article  seven-
    36  ty-eight of the civil practice law and rules.
    37    §  2.  This  act  shall  take  effect on the same date and in the same
    38  manner as a chapter of the laws of 2017 amending the labor law  and  the
    39  general  municipal  law  relating  to  reciprocity of debarments imposed
    40  under the federal Davis-Bacon Act; and relating to a work group to study
    41  and make recommendations to the legislature  regarding  the  appropriate
    42  payment  of supplements to construction workers, as proposed in legisla-
    43  tive bills numbers S. 6790 and A.  8514, takes effect.
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