Bill Text: NY A02040 | 2019-2020 | General Assembly | Amended

Bill Title: Relates to damages to contracts occasioned by delay of state agency.

Spectrum: Strong Partisan Bill (Democrat 17-1)

Status: (Introduced) 2019-06-18 - substituted by s5933a [A02040 Detail]

Download: New_York-2019-A02040-Amended.html

                STATE OF NEW YORK


                               2019-2020 Regular Sessions

                   IN ASSEMBLY

                                    January 22, 2019

        Introduced  by  M.  of  A.  KIM -- Multi-Sponsored by -- M. of A. SIMON,
          TAGUE -- read once and referred to the Committee on Governmental Oper-
          ations -- reported and referred to the Committee on Ways and Means  --
          committee  discharged,  bill amended, ordered reprinted as amended and
          recommitted to said committee

        AN ACT to amend the  state  finance  law,  in  relation  to  damages  to
          contracts occasioned by delay

          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  138-b to read as follows:
     3    § 138-b. Damages occasioned by delay.  1. For purposes of this section
     4  the following terms shall have the following meanings:
     5    (a)  "State  agency"  shall  mean any state department, board, bureau,
     6  commission, division, office, council, or state committee or  any  state
     7  authority  as  defined  in  subdivision one of section two of the public
     8  authorities law. Such term shall not include the legislature or  judici-
     9  ary.
    10    (b)  "Contract" shall mean any agreement awarded by a state agency for
    11  the design, construction, reconstruction, demolition, alteration, repair
    12  or improvement of any public works project.
    13    (c) "Delay" shall mean any delay,  disruption,  interference,  ineffi-
    14  ciencies, impedance, hindrance or acceleration in the performance of the
    15  contract which causes damages to be incurred by a contractor.
    16    (d)  "Claim"  shall  mean a request for additional costs only from the
    17  following causes:
    18    (i) the failure of the state agency to  take  reasonable  measures  to
    19  coordinate and progress the work;
    20    (ii) extended delays attributable to the state agency in the review or
    21  issuance  of orders-on-contract or field orders, in shop drawing reviews
    22  and approvals or as a result of the cumulative impact of multiple orders

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.

        A. 2040--A                          2

     1  on contract, which constitute a qualitative change to the  project  work
     2  and which have a verifiable impact on project costs; or
     3    (iii)  the  unavailability  of the site for such an extended period of
     4  time  which  significantly  affects  the  scheduled  completion  of  the
     5  contract.
     6    2.  All contracts made and awarded shall contain a clause which allows
     7  a contractor to make a claim for additional costs arising from delay  in
     8  the  performance of a contract if such delay is caused by a material act
     9  or omission of the state agency.
    10    3. The contractor shall provide a notice of claim  of  an  anticipated
    11  claim  for delay to a state agency by personal service or certified mail
    12  no more than fifteen days after such contractor  knew  the  facts  which
    13  form  the basis of the claim. The state agency shall acknowledge receipt
    14  of the notice, in writing, within five days.  Such  notice  shall  at  a
    15  minimum  provide a description of any operations that were, are being or
    16  will be delayed, and the date or dates and reasons for the delay. In  no
    17  case  shall oral notice constitute notice pursuant to this section or be
    18  deemed to constitute a waiver of the written notice  requirement.    For
    19  the  purposes  of  this section, failure to provide such notice shall be
    20  considered to have prejudiced the state agency.
    21    4. Failure by a contractor to adequately progress  the  completion  of
    22  work  shall  be  considered  in determining the causes of delay. For any
    23  claim asserted  pursuant  to  this  title,  the  contractor  shall  keep
    24  detailed  written records of the costs and shall make them available for
    25  the purposes of audit and review. Failure to provide the required  writ-
    26  ten  notice  or  to  maintain  and  furnish records of the costs of such
    27  claims shall constitute a waiver of the claim.
    28    5. The following information shall be provided by the contractor  upon
    29  request of a state agency if not previously supplied:
    30    (a) a description of the operations that were delayed, the reasons for
    31  the delay and an explanation of how they were delayed;
    32    (b)  a detailed factual statement of the claim providing all necessary
    33  dates, locations and items of work affected by the claim;
    34    (c) the date on which actions  resulting  in  the  claim  occurred  or
    35  conditions resulting in the claim became evident;
    36    (d)  the  names,  functions and activities of each contractor involved
    37  in, or knowledgeable about facts that gave rise to such claim;
    38    (e) the identification of any pertinent documents, and  the  substance
    39  of any material oral communication relating to such claim;
    40    (f) the amount of additional compensation sought; and
    41    (g)  if an extension of time is also requested, the specific number of
    42  days for which it is sought and the basis for such request as determined
    43  by an analysis of the construction progress schedule.
    44    6. When submitting any claim, the contractor shall certify in  writing
    45  and  under oath that the supporting data is accurate and complete to his
    46  or her best knowledge or belief, and that any amount demanded  reflects,
    47  in  good faith, what he or she believes to be the state agency's liabil-
    48  ity.
    49    § 2. This act shall take effect on the one hundred eightieth day after
    50  it shall have become a law and shall apply to all contracts entered into
    51  on and after such date.