Provides that for public works contracts involving an expenditure of $35,000 or more and purchase contracts for $20,000 or more a responsible bidder who is a New York state resident, firm or corporation and who is within two percent of the bid of the lowest responsible bidder may be awarded the contract; provides that where two or more qualify according to such provisions, the contract is to be awarded to the lowest responsible bidder.
STATE OF NEW YORK
________________________________________________________________________
3174
2015-2016 Regular Sessions
IN SENATE
February 3, 2015
___________
Introduced by Sen. STAVISKY -- 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 granting preferences to New York state domiciliaries in
the awarding of contracts for public work
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Subdivision 1 of section 103 of the general municipal law,
2 as amended by section 1 of chapter 2 of the laws of 2012, is amended to
3 read as follows:
4 1. Except as otherwise expressly provided by an act of the legislature
5 or by a local law adopted prior to September first, nineteen hundred
6 fifty-three, all contracts for public work involving an expenditure of
7 more than thirty-five thousand dollars and all purchase contracts
8 involving an expenditure of more than twenty thousand dollars, shall be
9 awarded by the appropriate officer, board or agency of a political
10 subdivision or of any district therein including but not limited to a
11 soil conservation district to the lowest responsible bidder furnishing
12 the required security after advertisement for sealed bids in the manner
13 provided by this section, provided, however, that purchase contracts
14 (including contracts for service work, but excluding any purchase
15 contracts necessary for the completion of a public works contract pursu-
16 ant to article eight of the labor law) may be awarded on the basis of
17 best value, as defined in section one hundred sixty-three of the state
18 finance law, to a responsive and responsible bidder or offerer in the
19 manner provided by this section except that in a political subdivision
20 other than a city with a population of one million inhabitants or more
21 or any district, board or agency with jurisdiction exclusively therein
22 the use of best value for awarding a purchase contract or purchase
23 contracts must be authorized by local law or, in the case of a district
24 corporation, school district or board of cooperative educational
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD04956-01-5
S. 3174 2
1 services, by rule, regulation or resolution adopted at a public meeting.
2 In any case where a responsible bidder's or responsible offerer's gross
3 price is reducible by an allowance for the value of used machinery,
4 equipment, apparatus or tools to be traded in by a political subdivi-
5 sion, the gross price shall be reduced by the amount of such allowance,
6 for the purpose of determining the best value. Notwithstanding the
7 foregoing, in any case where a responsible bidder who is a New York
8 state resident, firm or corporation and who is furnishing the required
9 security is found by such officer, board or agency to be within two
10 percent of the bid of the lowest responsible bidder, such officer, board
11 or agency may prefer such responsible bidder over the lowest responsible
12 bidder and award the contract to such responsible bidder; provided,
13 however, where more than one responsible bidder qualifies hereunder,
14 such officer, board or agency shall award the contract to such qualified
15 responsible bidder submitting the lowest bid. In cases where two or more
16 responsible bidders furnishing the required security submit identical
17 bids as to price, such officer, board or agency may award the contract
18 to any of such bidders. Such officer, board or agency may, in his or her
19 or its discretion, reject all bids or offers and readvertise for new
20 bids or offers in the manner provided by this section. In determining
21 whether a purchase is an expenditure within the discretionary threshold
22 amounts established by this subdivision, the officer, board or agency of
23 a political subdivision or of any district therein shall consider the
24 reasonably expected aggregate amount of all purchases of the same
25 commodities, services or technology to be made within the twelve-month
26 period commencing on the date of purchase. Purchases of commodities,
27 services or technology shall not be artificially divided for the purpose
28 of satisfying the discretionary buying thresholds established by this
29 subdivision. A change to or a renewal of a discretionary purchase shall
30 not be permitted if the change or renewal would bring the reasonably
31 expected aggregate amount of all purchases of the same commodities,
32 services or technology from the same provider within the twelve-month
33 period commencing on the date of the first purchase to an amount greater
34 than the discretionary buying threshold amount. For purposes of this
35 section, "sealed bids" and "sealed offers", as that term applies to
36 purchase contracts, (including contracts for service work, but excluding
37 any purchase contracts necessary for the completion of a public works
38 contract pursuant to article eight of the labor law) shall include bids
39 and offers submitted in an electronic format including submission of the
40 statement of non-collusion required by section one hundred three-d of
41 this article, provided that the governing board of the political subdi-
42 vision or district, by resolution, has authorized the receipt of bids
43 and offers in such format. Submission in electronic format may, for
44 technology contracts only, be required as the sole method for the
45 submission of bids and offers. Bids and offers submitted in an electron-
46 ic format shall be transmitted by bidders and offerers to the receiving
47 device designated by the political subdivision or district. Any method
48 used to receive electronic bids and offers shall comply with article
49 three of the state technology law, and any rules and regulations promul-
50 gated and guidelines developed thereunder and, at a minimum, must (a)
51 document the time and date of receipt of each bid and offer received
52 electronically; (b) authenticate the identity of the sender; (c) ensure
53 the security of the information transmitted; and (d) ensure the confi-
54 dentiality of the bid or offer until the time and date established for
55 the opening of bids or offers. The timely submission of an electronic
56 bid or offer in compliance with instructions provided for such
S. 3174 3
1 submission in the advertisement for bids or offers and/or the specifica-
2 tions shall be the responsibility solely of each bidder or offerer or
3 prospective bidder or offerer. No political subdivision or district
4 therein shall incur any liability from delays of or interruptions in the
5 receiving device designated for the submission and receipt of electronic
6 bids and offers.
7 § 2. Subdivision 1 of section 103 of the general municipal law, as
8 amended by section 2 of chapter 2 of the laws of 2012, is amended to
9 read as follows:
10 1. Except as otherwise expressly provided by an act of the legislature
11 or by a local law adopted prior to September first, nineteen hundred
12 fifty-three, all contracts for public work involving an expenditure of
13 more than thirty-five thousand dollars and all purchase contracts
14 involving an expenditure of more than twenty thousand dollars, shall be
15 awarded by the appropriate officer, board or agency of a political
16 subdivision or of any district therein including but not limited to a
17 soil conservation district to the lowest responsible bidder furnishing
18 the required security after advertisement for sealed bids in the manner
19 provided by this section, provided, however, that purchase contracts
20 (including contracts for service work, but excluding any purchase
21 contracts necessary for the completion of a public works contract pursu-
22 ant to article eight of the labor law) may be awarded on the basis of
23 best value, as defined in section one hundred sixty-three of the state
24 finance law, to a responsive and responsible bidder or offerer in the
25 manner provided by this section except that in a political subdivision
26 other than a city with a population of one million inhabitants or more
27 or any district, board or agency with jurisdiction exclusively therein
28 the use of best value of awarding a purchase contract or purchase
29 contracts must be authorized by local law or, in the case of a district
30 corporation, school district or board of cooperative educational
31 services, by rule, regulation or resolution adopted at a public meeting.
32 In determining whether a purchase is an expenditure within the discre-
33 tionary threshold amounts established by this subdivision, the officer,
34 board or agency of a political subdivision or of any district therein
35 shall consider the reasonably expected aggregate amount of all purchases
36 of the same commodities, services or technology to be made within the
37 twelve-month period commencing on the date of purchase. Purchases of
38 commodities, services or technology shall not be artificially divided
39 for the purpose of satisfying the discretionary buying thresholds estab-
40 lished by this subdivision. A change to or a renewal of a discretionary
41 purchase shall not be permitted if the change or renewal would bring the
42 reasonably expected aggregate amount of all purchases of the same
43 commodities, services or technology from the same provider within the
44 twelve-month period commencing on the date of the first purchase to an
45 amount greater than the discretionary buying threshold amount. In any
46 case where a responsible bidder's or responsible offerer's gross price
47 is reducible by an allowance for the value of used machinery, equipment,
48 apparatus or tools to be traded in by a political subdivision, the gross
49 price shall be reduced by the amount of such allowance, for the purpose
50 of determining the low bid or best value. Notwithstanding the forego-
51 ing, in any case where a responsible bidder who is a New York state
52 resident, firm or corporation and who is furnishing the required securi-
53 ty is found by such officer, board or agency to be within two percent of
54 the bid of the lowest responsible bidder, such officer, board or agency
55 may prefer such responsible bidder over the lowest responsible bidder
56 and award the contract to such responsible bidder; provided, however,
S. 3174 4
1 where more than one responsible bidder qualifies hereunder, such offi-
2 cer, board or agency shall award the contract to such qualified respon-
3 sible bidder submitting the lowest bid. In cases where two or more
4 responsible bidders furnishing the required security submit identical
5 bids as to price, such officer, board or agency may award the contract
6 to any of such bidders. Such officer, board or agency may, in his, her
7 or its discretion, reject all bids or offers and readvertise for new
8 bids or offers in the manner provided by this section.
9 § 3. Section 135 of the state finance law is amended by adding a new
10 closing paragraph to read as follows:
11 Notwithstanding any other provision of law, whenever the lowest
12 responsible bidder is a foreign or out-of-state individual, firm or
13 corporation and at least one New York state resident, firm or corpo-
14 ration has submitted a responsible bid which is within two percent of
15 the lowest responsible bid, the contract may be awarded to the lowest
16 responsible bidder who is a New York state resident, firm or corpo-
17 ration; provided, however, where more than one responsible bidder quali-
18 fies hereunder, such officer, board or agency shall award the contract
19 to such qualified responsible bidder submitting the lowest bid.
20 § 4. This act shall take effect on the first of September next
21 succeeding the date on which it shall have become a law; provided,
22 however, that the amendments to subdivision 1 of section 103 of the
23 general municipal law made by section one of this act shall not affect
24 the expiration and reversion of such subdivision as provided in subdivi-
25 sion (a) of section 41 of part X of chapter 62 of the laws of 2003, as
26 amended, when upon such date the provisions of section two of this act
27 shall take effect.
