|SAME AS||SAME AS S07323|
|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.|
|01/08/2018||referred to labor|
|02/13/2018||reported referred to codes|
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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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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 [ debarred10 for having disregarded obligations to employees under the Davis-Bacon11 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 subdivision16 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 is20 published in the list of debarred contractors pursuant to 40 U.S.C.21 3144. Where a contractor or subcontractor is determined to be ineligible22 pursuant to this subparagraph because it is considered a "substantially23 owned-affiliated entity," such contractor or subcontractor shall be24 provided with written notice from the department within seven days and25 shall be afforded the opportunity to appeal the ineligibility determi-26 nation to the department within thirty calendar days of the written27 notice. In order for a substantially-owned affiliated entity to be28 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. LBD13260-02-8A. 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.