STATE OF NEW YORK ________________________________________________________________________ 1487 2021-2022 Regular Sessions IN ASSEMBLY January 11, 2021 ___________ Introduced by M. of A. PERRY -- Multi-Sponsored by -- M. of A. COOK, GOTTFRIED, J. RIVERA -- read once and referred to the Committee on Labor AN ACT to amend the general business law, in relation to a right of action for violation of statutes in bids on construction projects The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. The general business law is amended by adding a new section 2 399-ggg to read as follows: 3 § 399-ggg. Fairness in competitive bidding. 1. For the purpose of 4 this section: 5 (a) The term "person" shall include any individual, firm, association, 6 partnership or corporation. 7 (b) The term "construction project" shall include any project involv- 8 ing the construction, modernization, improvement, rehabilitation, 9 repair, maintenance, replacement or renovation of a building, road or 10 structure, or any portion of such a project performed pursuant to a 11 subcontracting arrangement. 12 2. (a) Any person whose competitive bid for a construction project has 13 been rejected and instead awarded to another person may bring an action 14 for damages in a court of competent jurisdiction against the winning 15 bidder if the winning bidder has violated the labor law or the workers' 16 compensation law by failing to pay required taxes or secure insurance 17 pursuant to such laws for any reason including misclassifying one or 18 more of its workers other than an employee in its bid cost. 19 (b) The determination whether a worker on a construction project is 20 properly classified as an employee shall be made in accordance with 21 applicable state law. 22 3. (a) A party unsuccessfully bidding on a construction project will 23 be deemed to have suffered an injury by virtue of not having been EXPLANATION--Matter in italics (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD04993-01-1

A. 1487 2 1 awarded the bid, regardless of whether the winning bidder realizes a net 2 profit on the performance of the contract. 3 (b) A winning bidder who is a defendant in an action brought pursuant 4 to this section shall not be liable for damages if he establishes, as an 5 affirmative defense, that the failure to comply with state laws requir- 6 ing employers to pay state unemployment insurance or secure workers' 7 compensation coverage resulting from the misclassification of an employ- 8 ee as other than an employee if the bid was not a knowing violation. 9 4. Any party who successfully maintains an action under this section 10 shall be entitled to damages from the winning bidder in an amount not 11 less than ten percent of the amount of the successful bid, or such 12 greater amount as shall be determined by the court, and in addition to 13 any other damages awarded, shall be entitled to the payment of all of 14 its costs and reasonable attorneys' fees in bringing the action. 15 § 2. This act shall take effect immediately.

Relates to fairness in competitive bidding

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