Relates to advertisements for bids for certain public contracts

Summary of specific provisions

Sections 1 and 2 of the bill amend section 220 of the labor law to provide that if the fiscal officer cannot determine the schedules or wages of the workers based on the specifications for a public work contract, the fiscal officer must reject any contract associated with that specific advertisement for bids.

Sections 3 and 4 of the bill amend subdivision 1 of section 103 of the general municipal law to require that all bids for a local public work contract state a fixed-dollar amount.

Sections 5 and 6 of the bill amend subdivision 1 of section l03 of the general municipal law to require that the bid advertisement specifically describe the nature and type of work to be performed.

Section 7 of the bill amends section 135 of the state finance law to require that the specifications for a contract specifically describe the nature and type of work to be performed and that the bids submitted state a fixed-dollar amount.

Section 8 of the bill amends section 2590-p of the education law to require that each project for facilities included in the five-year capital plan for the New York City Community School District specifically describe the nature and type of work to be performed and that the estimated costs be for a fixed-dollar amount.

Section 7 establishes the effective date of the act.

Existing law

Subdivision 3 of section 220 of the labor law requires the fiscal officer to determine the schedule of prevailing wages and supplements required to be paid on a public work contract and also requires that the schedule be attached to the specifications for the contract.

The current law relating to the advertisement, specifications and bids for public work does not require the bidder to state a fixed price for its work in its bid.

Justification

The practice of job order contracting on public work projects thwarts the purpose of New York's competitive bidding laws. A job order contract is an indefinite quantity contract for construction, renovation or repair work. It is usually a multi-year contract

containing ambiguous project descriptions that does not require a contractor to submit a bid for a fixed dollar amount. Instead, the bidders are informed about a range of tasks that mayor may not be needed to perform the contract. The contract is given a minimum to maximum value of its worth. The contractors then use a job order contracting book to bid on a scale, which is used to determine payment, as projects come up under the contract. The bidders do not know what specific type of work they are getting involved with and, therefore, cannot properly ascertain how much the project will cost them. If the unit bid is too low and they turn out to be underpaid and cost-saving measures become necessary, comers might be cut on public work projects, which would negate the purpose of this type of construction work.

Job order contracting puts potential bidders in the untenable position of having to submit a proposed contract price without full knowledge of their responsibilities under the contract. This can discourage certain contractors from bidding, or deny them a sufficient opportunity to estimate their lowest possible bid. These consequences violate one of the central purposes of the state's competitive bidder laws which the New York Court of Appeals has recognized is intended to protect the public treasury by obtaining the best work at the lowest possible price. Associated Builders and Contractors, Inc. v. City of Rochester, 67 N.Y.2d 854(1986). By requiring specific descriptions of the nature and type of work to be performed, and the submittal of a fixed bid amount, this legislation will provide a fairer process for bidders seeking to perform state and local public work in New York.

Prior legislative history

2010: S.8077 Referred to Labor

Fiscal implications

To be determined.

Effective date

This act shall take effect on the ninetieth day after it shall have become law, with provisions.