Relates to requirements for selecting the lowest responsible bidder for certain public works contracts; requires the submission of a questionnaire to the contracting agency and the comptroller.
STATE OF NEW YORK
________________________________________________________________________
3017
2011-2012 Regular Sessions
IN ASSEMBLY
January 21, 2011
___________
Introduced by M. of A. SCHROEDER -- read once and referred to the
Committee on Local Governments
AN ACT to amend the state finance law and the general municipal law, in
relation to requirements for selecting the lowest responsible bidder
for certain public works contracts
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
2 135-b to read as follows:
3 § 135-b. Lowest responsible bidder. 1. Definition. For the purposes of
4 this article, "lowest responsible bidder" shall mean the person, firm,
5 corporation, contractor or subcontractor or other entity submitting a
6 bid for a public work contract for the erection, construction, recon-
7 struction or alteration of buildings who:
8 a. submits the lowest bid; and
9 b. is not disqualified on any of the grounds listed under subdivision
10 five of this section.
11 2. Use of questionnaire to determine responsibility of contractors and
12 subcontractors. a. No public work contract may be awarded by an agency,
13 department, public authority or public benefit corporation, office or
14 other entity of the state, to the lowest responsible bidder unless each
15 contractor and subcontractor for the contract submits, and the contract-
16 ing entity reviews, a questionnaire demonstrating its responsibility to
17 perform the contract.
18 b. Questionnaires must be submitted to the contracting entity and to
19 the comptroller who shall maintain the information in an electronic
20 database for review by any state or local contracting entity that awards
21 public work contracts.
22 3. Contents of questionnaire. The comptroller shall prepare a uniform
23 questionnaire for use by state and local contracting entities, which
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD06860-01-1
A. 3017 2
1 shall require each contractor and subcontractor to provide the following
2 information:
3 a. the name, address and telephone number of its principals, owners,
4 officers, and shareholders who own or control at least five percent of
5 the stock of the contractor or subcontractor;
6 b. the taxpayer identification number or employer identification
7 number, and the Dun and Bradstreet number of the contractor or subcon-
8 tractor;
9 c. the contractor or subcontractor's type of business entity, includ-
10 ing but not limited to corporation, partnership, limited liability
11 corporation, limited partnership, joint venture or sole proprietor;
12 d. the names and addresses of the subcontractors planned for the
13 project;
14 e. the use of registered and approved apprenticeship training programs
15 for the past five years;
16 f. any violations of the prevailing wage law under article eight of
17 the labor law or the federal Davis-Bacon Act;
18 g. any violations of state or federal laws relating to unemployment
19 compensation, workers' compensation, occupational health and safety,
20 employee misclassification, employment disability, employment discrimi-
21 nation, or other labor laws;
22 h. any violations of state or federal environmental protection laws;
23 i. any failure to file federal, state or local tax returns, any tax
24 liabilities, judgments or liens, and violations of agreements or laws
25 under which a tax credit, tax exemption, loan or grant was awarded by
26 any federal, state or local entity;
27 j. any criminal conviction, indictment, grant of immunity or civil
28 violation for business-related activity, including but not limited to
29 bribery, extortion, fraud, racketeering, contract bidding and restraint
30 of trade;
31 k. contract sanction history including federal or state debarments,
32 suspensions, findings of ineligibility, or disqualifications for non-
33 compliance with minority-owned, women-owned or disadvantaged-owned busi-
34 ness requirements;
35 l. any pending investigations for criminal or civil violations of any
36 state or federal laws;
37 m. professional license sanction history against its principals,
38 owners and officers;
39 n. expertise and experience performing the type of work required under
40 the contract;
41 o. financial capability and reliability including fiscal resources to
42 perform the contract, and any bankruptcies within the past seven years;
43 p. proof of surety bond and insurance for workers' compensation and
44 general and professional liability for the project; and
45 q. whether health insurance is provided to employees.
46 4. Penalty. The questionnaire shall be subscribed and affirmed as to
47 its truth, accuracy and completeness under penalty of perjury.
48 5. Award of public work contract to lowest responsible bidder. a.
49 Where a public work contract is required to be awarded to the lowest
50 responsible bidder, no contract may be awarded to a bidder if any of its
51 contractors or subcontractors:
52 (i) have had a final determination rendered for a violation of article
53 eight of the labor law, the workers' compensation law, the unemployment
54 insurance law, or employee misclassification by any federal or state
55 agency within the past ten years;
A. 3017 3
1 (ii) have committed a violation of any other laws under paragraph g,
2 h, i, or j of subdivision three of this section within the past five
3 years;
4 (iii) fail to participate in an apprenticeship training program
5 approved and registered with the state or federal department of labor;
6 or
7 (iv) fail to provide proof of surety bond and workers' compensation
8 coverage.
9 b. Based on the information collected in the questionnaires the
10 contracting entity may determine that a bidder is not responsible and
11 not award a contract to the bidder upon finding that:
12 (i) the proposed contractor or subcontractors for the contract lack
13 adequate expertise, or lack the financial resources to perform the
14 contract or subcontract in a timely and competent manner;
15 (ii) the equipment to be used for the contract is not safe for opera-
16 tion by employees of the contractor or subcontractors, or for the
17 public;
18 (iii) the bid submitted is so much lower than the agency's engineer's
19 estimate that it seems unlikely that the bidder will be able to perform
20 the contract satisfactorily at the price bid;
21 (iv) the bid submitted is mathematically or materially unbalanced;
22 (v) a lack of good faith effort to comply with state and federal
23 requirements for use of minority-owned, women-owned and disadvantaged-
24 owned businesses;
25 (vi) false or misleading information has been presented to the
26 contracting entity in connection with the bid; or
27 (vii) any other information from the questionnaire which raises seri-
28 ous questions concerning the present capability and responsibility of
29 the contractor or any subcontractor to perform the contract.
30 § 2. The general municipal law is amended by adding a new section
31 100-b to read as follows:
32 § 100-b. Lowest responsible bidder. 1. Definition. For the purposes
33 of this article, "lowest responsible bidder" shall mean the person,
34 firm, corporation, contractor or subcontractor or other entity submit-
35 ting a bid for a public work contract for the erection, construction,
36 reconstruction or alteration of buildings who:
37 a. submits the lowest bid; and
38 b. is not disqualified on any of the grounds listed under subdivision
39 five of this section.
40 2. Use of questionnaire to determine responsibility of contractors and
41 subcontractors. a. No public work contract may be awarded by any poli-
42 tical subdivision or by an officer, board or agency thereof, to the
43 lowest responsible bidder unless each contractor and subcontractor for
44 the contract submits, and the contracting entity reviews, a question-
45 naire demonstrating its responsibility to perform the contract.
46 b. Questionnaires must be submitted to the contracting entity and to
47 the comptroller who shall maintain the information in an electronic
48 database for review by any state or local contracting entity that awards
49 public work contracts.
50 3. Contents of questionnaire. The comptroller shall prepare a uniform
51 questionnaire for use by a political subdivision or by an officer, board
52 or agency thereof, which shall require each contractor and subcontractor
53 to provide the following information:
54 a. the name, address and telephone number of its principals, owners,
55 officers, and shareholders who own or control at least five percent of
56 the stock of the contractor or subcontractor;
A. 3017 4
1 b. the taxpayer identification number or employer identification
2 number, and the Dun and Bradstreet number of the contractor or subcon-
3 tractor;
4 c. the contractor or subcontractor's type of business entity, includ-
5 ing but not limited to corporation, partnership, limited liability
6 corporation, limited partnership, joint venture or sole proprietor;
7 d. the names and addresses of the subcontractors planned for the
8 project;
9 e. the use of registered and approved apprenticeship training programs
10 for the past five years;
11 f. any violations of the prevailing wage law under article eight of
12 the labor law or the federal Davis-Bacon Act;
13 g. any violations of state or federal laws relating to unemployment
14 compensation, workers' compensation, occupational health and safety,
15 employee misclassification, employment disability, employment discrimi-
16 nation, or other labor laws;
17 h. any violations of state or federal environmental protection laws;
18 i. any failure to file federal, state or local tax returns, any tax
19 liabilities, judgments or liens, and violations of agreements or laws
20 under which a tax credit, tax exemption, loan or grant was awarded by
21 any federal, state or local entity;
22 j. any criminal conviction, indictment, grant of immunity or civil
23 violation for business-related activity, including but not limited to
24 bribery, extortion, fraud, racketeering, contract bidding and restraint
25 of trade;
26 k. contract sanction history including federal or state debarments,
27 suspensions, findings of ineligibility, or disqualifications for non-
28 compliance with minority-owned, women-owned or disadvantaged-owned busi-
29 ness requirements;
30 l. any pending investigations for criminal or civil violations of any
31 state or federal laws;
32 m. professional license sanction history against its principals,
33 owners and officers;
34 n. expertise and experience performing the type of work required under
35 the contract;
36 o. financial capability and reliability including fiscal resources to
37 perform the contract, and any audits or bankruptcies within the past
38 seven years;
39 p. proof of surety bond and insurance for workers' compensation and
40 general and professional liability for the project; and
41 q. whether health insurance is provided to employees.
42 4. Penalty. The questionnaire shall be subscribed and affirmed as to
43 its truth, accuracy and completeness under penalty of perjury.
44 5. Award of public work contract to lowest responsible bidder. a.
45 Where a public work contract is required to be awarded to the lowest
46 responsible bidder, no contract may be awarded to a bidder if any of its
47 contractors or subcontractors:
48 (i) have had a final determination rendered for a violation of article
49 eight of the labor law, the workers' compensation law, the unemployment
50 insurance law, or employee misclassification by any federal or state
51 agency within the past ten years;
52 (ii) have committed a violation of any other laws under paragraph g,
53 h, i, or j of subdivision three of this section within the past five
54 years;
A. 3017 5
1 (iii) fail to participate in an apprenticeship training program
2 approved and registered with the state or federal department of labor;
3 or
4 (iv) fail to provide proof of surety bond and workers' compensation
5 coverage.
6 b. Based on the information collected in the questionnaires the
7 contracting entity may determine that a bidder is not responsible and
8 not award a contract to the bidder upon finding that:
9 (i) the proposed contractor or subcontractors for the contract lack
10 adequate expertise, or lack the financial resources to perform the
11 contract or subcontract in a timely and competent manner;
12 (ii) the equipment to be used for the contract is not safe for opera-
13 tion by employees of the contractor or subcontractors, or for the
14 public;
15 (iii) the bid submitted is so much lower than the engineer's estimate
16 that it seems unlikely that the bidder will be able to perform the
17 contract satisfactorily at the price bid;
18 (iv) the bid submitted is mathematically or materially unbalanced;
19 (v) a lack of good faith effort to comply with state and federal
20 requirements for use of minority-owned, women-owned and disadvantaged-
21 owned businesses;
22 (vi) false or misleading information has been presented to the
23 contracting entity in connection with the bid; or
24 (vii) any other information from the questionnaire which raises seri-
25 ous questions concerning the present capability and responsibility of
26 the contractor or any subcontractor to perform the contract.
27 § 3. This act shall take effect on the ninetieth day after it shall
28 have become a law.
