Bill Text: NY A02086 | 2017-2018 | General Assembly | Introduced
Bill Title: Relates to the use of American-made iron, steel and manufactured products in certain government contracts.
Spectrum: Strong Partisan Bill (Democrat 43-3)
Status: (Introduced - Dead) 2018-01-03 - referred to governmental operations [A02086 Detail]
Download: New_York-2017-A02086-Introduced.html
STATE OF NEW YORK ________________________________________________________________________ 2086 2017-2018 Regular Sessions IN ASSEMBLY January 17, 2017 ___________ Introduced by M. of A. MORELLE, BRAUNSTEIN, GOTTFRIED, ENGLEBRIGHT, BRINDISI, MOSLEY, STIRPE, SKOUFIS, ARROYO, JAFFEE, CYMBROWITZ, TITONE, MAYER, ROZIC, ZEBROWSKI, CUSICK, GALEF, GUNTHER, LUPARDO, MAGNARELLI, OTIS, PERRY, SANTABARBARA, BRONSON, MOYA, QUART, FARRELL, ABBATE, BARRETT, STECK, HOOPER, FAHY, LIFTON, KEARNS, RYAN, JOYNER, ABINANTI, ROSENTHAL -- Multi-Sponsored by -- M. of A. COOK, GRAF, LUPINACCI, MAGEE, McDONOUGH, MONTESANO, RAIA, RAMOS, RIVERA, SIMON, THIELE -- read once and referred to the Committee on Governmental Operations AN ACT to amend the state finance law, the public authorities law, the highway law, the general municipal law, and the public buildings law, in relation to requiring the use of American made iron, steel and manufactured products in certain government contracts, and to repeal certain provisions of the public authorities law and the state finance law relating thereto The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. Short title. This act shall be known as the "New York State 2 Buy American Act". 3 § 2. Section 146 of the state finance law is REPEALED and a new 4 section 146 is added to read as follows: 5 § 146. The New York State Buy American Act. 1. Use of American materi- 6 als. (a) Notwithstanding any other provision of law, each contract for 7 the construction, reconstruction, alteration or improvement of a public 8 building of public works made by a public agency shall contain a 9 provision that the iron, steel, and manufactured products used or 10 supplied in the performance of the contract or any subcontract thereto 11 and permanently incorporated into the public building or public works 12 shall be manufactured in the United States. 13 (b) For the purposes of section one hundred sixty-three of this chap- 14 ter, no bidder shall be deemed to be the lowest responsible and reliable 15 bidder and no bid shall be deemed the best value unless the bid offered EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD01064-01-7A. 2086 2 1 by such bidder will comply with the contract term required by paragraph 2 (a) of this subdivision. 3 (c) The provisions of paragraph (a) of this subdivision shall not 4 apply in any case or category of cases in which the executive head of a 5 public agency finds: 6 (i) that the application of this section would be inconsistent with 7 the public interest; 8 (ii) that such materials and products are not produced in the United 9 States in sufficient and reasonably available quantities and of a satis- 10 factory quality; or 11 (iii) that inclusion of domestic material will increase the cost of 12 the overall project contract by more than twenty-five percent. 13 (d) If the executive receives a request for a waiver under paragraph 14 (c) of this subdivision, the executive shall provide notice of and an 15 opportunity for public comment on the request at least thirty days 16 before making a finding based on the request. 17 (e) A notice provided under paragraph (d) of this subdivision shall: 18 (i) summarize the information available to the executive concerning 19 the request, including whether the request is being made under subpara- 20 graph (i), (ii) or (iii) of paragraph (c) of this subdivision; 21 (ii) be posted prominently on the official public internet web site of 22 the agency; and 23 (iii) be provided by electronic means to any person, firm or corpo- 24 ration that has made a written or electronic request to the public agen- 25 cy for notice of waiver actions by the executive within five (5) years 26 prior to the date of notice. 27 (f) If the executive issues a waiver under paragraph (c) of this 28 subdivision, the executive shall publish in the same manner as the 29 original notice a detailed justification for the waiver that: 30 (i) addresses the public comments received under paragraph (d) of this 31 subdivision; and 32 (ii) is published before the waiver takes effect. 33 (g) If it has been determined by a court or federal or state agency 34 that any person intentionally: 35 (i) affixed a label bearing a "Made in America" inscription, or any 36 inscription with the same meaning, to any iron, steel or manufactured 37 product used in projects to which this section applies, sold in or 38 shipped to the United States that was not made in the United States; or 39 (ii) represented that any iron, steel or manufactured product used in 40 projects to which this section applies that was not produced in the 41 Untied States, was produced in the United States; 42 then that person shall be ineligible to receive any contract or subcon- 43 tract with this state pursuant to the debarment or suspension provisions 44 provided under section one hundred thirty-nine-a of this article. 45 (h) This section shall be applied in a manner consistent with the 46 state's obligations under any applicable international agreements 47 pertaining to government procurement. 48 2. Definitions. For the purposes of this section, the following words 49 shall have the following meanings unless specified otherwise: 50 (a) "Executive" means the executive head of a public agency subject to 51 this section; 52 (b) "Public agency" means a governmental entity as that term is 53 defined in section one hundred thirty-nine-j of this article; 54 (c) "manufactured in the United States" means: (i) in the case of an 55 iron or steel product all manufacturing must take place in the United 56 States, from the initial melting stage through the application of coat-A. 2086 3 1 ings, except metallurgical processes involving the refinement of steel 2 additives; and 3 (ii) in the case of a manufactured product, a product will be consid- 4 ered manufactured in the United States if: 5 (A) all of its manufacturing processes take place in the United 6 States, and 7 (B) more than sixty percent of the components of the manufactured 8 good, by cost, are of domestic origin. If, under the terms of this 9 subparagraph, a component is determined to be of domestic origin, its 10 entire cost may be used in calculating the cost of domestic content of 11 an end product. 12 (d) "United States" means the United States of America and includes 13 all territory, continental or insular, subject to the jurisdiction of 14 the United States. 15 § 3. Section 2603-a of the public authorities law is REPEALED and a 16 new section 2877-a is added to read as follows: 17 § 2877-a. The New York State Buy American Act. 1. Use of American 18 materials. (a) Notwithstanding any other provision of law, each contract 19 for the construction, reconstruction, alteration or improvement of a 20 public building or public works made by a public authority shall contain 21 a provision that the iron, steel, and manufactured products used or 22 supplied in the performance of the contract or any subcontract thereto 23 and permanently incorporated into the public building or public works 24 shall be manufactured in the United States. 25 (b) No bidder shall be deemed to be the lowest responsible and reli- 26 able bidder and no bid shall be deemed the best value unless the bid 27 offered by such bidder will comply with the contract term required by 28 paragraph (a) of this subdivision. 29 (c) The provisions of paragraph (a) of this subdivision shall not 30 apply in any case or category of cases in which the executive head of a 31 public agency finds: 32 (i) that the application of this section would be inconsistent with 33 the public interest; 34 (ii) that such materials and products are not produced in the United 35 States in sufficient and reasonably available quantities and of a satis- 36 factory quality; or 37 (iii) that inclusion of domestic material will increase the cost of 38 the overall project contract by more than twenty-five percent. 39 (d) If the executive receives a request for a waiver under paragraph 40 (c) of this subdivision, the executive shall provide notice of and an 41 opportunity for public comment on the request at least thirty days 42 before making a finding based on the request. 43 (e) A notice provided under paragraph (d) of this subdivision shall: 44 (i) summarize the information available to the executive concerning 45 the request, including whether the request is being made under subpara- 46 graph (i), (ii) or (iii) of paragraph (c) of this subdivision; 47 (ii) be posted prominently on the official public internet web site of 48 the agency; and 49 (iii) be provided by electronic means to any person, firm or corpo- 50 ration that has made a written or electronic request to the public agen- 51 cy for notice of waiver actions by the executive within five (5) years 52 prior to the date of notice. 53 (f) If the executive issues a waiver under paragraph (c) of this 54 subdivision, the executive shall publish in the same manner as the 55 original notice a detailed justification for the waiver that:A. 2086 4 1 (i) addresses the public comments received under paragraph (d) of this 2 subdivision; and 3 (ii) is published before the waiver takes effect. 4 (g) If it has been determined by a court or federal or state agency 5 that any person intentionally: 6 (i) affixed a label bearing a "Made in America" inscription, or any 7 inscription with the same meaning, to any iron, steel or manufactured 8 product used in projects to which this section applies, sold in or 9 shipped to the United States that was not made in the United States; or 10 (ii) represented that any iron, steel, or manufactured product used in 11 projects to which this section applies that was not produced in the 12 United States, was produced in the United States; 13 then that person shall be ineligible to receive any contract or subcon- 14 tract with this State pursuant to the debarment and suspension 15 provisions provided under section one hundred thirty-nine-a of the state 16 finance law. 17 (h) This section shall be applied in a manner consistent with the 18 state's obligations under any applicable international agreements 19 pertaining to government procurement. 20 2. Definitions. For the purpose of this section, the following words 21 shall have the following meanings unless specified otherwise: 22 (a) "Executive" means the executive head of a public agency subject to 23 this section; 24 (b) "Public agency" means a state, local or interstate authority as 25 those terms are defined in section two of this chapter; 26 (c) "Manufactured in the United States" means: (i) in the case of an 27 iron or steel product all manufacturing must take place in the United 28 States, from the initial melting stage through the application of coat- 29 ings, except metallurgical processes involving the refinement of steel 30 additives; and 31 (ii) in the case of a manufactured product, a product will be consid- 32 ered manufactured in the United States if: 33 (A) all of its manufacturing processes take place in the United 34 States, and 35 (B) more than sixty percent of the components of the manufactured 36 good, by cost, are of domestic origin. If, under the terms of this part, 37 a component is determined to be of domestic origin, its entire cost may 38 be used in calculating the cost of domestic content of an end product. 39 (d) "United States" means the United States of America and includes 40 all territory, continental or insular, subject to the jurisdiction of 41 the United States. 42 § 4. Section 38 of the highway law is amended by adding a new subdivi- 43 sion 10 to read as follows: 44 10. Use of American materials. (a) Notwithstanding any other provision 45 of law, each contract for the construction, reconstruction, alteration 46 or improvement of a highway or other public works made by a public agen- 47 cy shall contain a provision that the iron, steel, and manufactured 48 products used or supplied in the performance of the contract or any 49 subcontract thereto and permanently incorporated into the public build- 50 ing or public works shall be manufactured in the United States. 51 (b) No bidder shall be deemed to be the lowest responsible and reli- 52 able bidder and no bid shall be deemed the best value unless the bid 53 offered by such bidder will comply with the contract term required by 54 paragraph (a) of this subdivision.A. 2086 5 1 (c) The provisions of paragraph (a) of this subdivision shall not 2 apply in any case or category of cases in which the executive head of a 3 public agency finds: 4 (i) that the application of this subdivision would be inconsistent 5 with the public interest; 6 (ii) that such materials and products are not produced in the United 7 States in sufficient and reasonably available quantities and of a satis- 8 factory quality; or 9 (iii) that inclusion of domestic material will increase the cost of 10 the overall project contract by more than twenty-five percent. 11 (d) If the executive receives a request for a waiver under paragraph 12 (c) of this subdivision, the executive shall provide notice of and an 13 opportunity for public comment on the request of at least thirty days 14 before making a finding based on the request. 15 (e) A notice provided under paragraph (d) of this subdivision shall: 16 (i) summarize the information available to the executive concerning 17 the request, including whether the request is being made under subpara- 18 graph (i), (ii) or (iii) of paragraph (c) of this subdivision; 19 (ii) be posted prominently on the official public internet web site of 20 the agency; and 21 (iii) be provided by electronic means to any person, firm or corpo- 22 ration that has made a written or electronic request to the public agen- 23 cy for notice of waiver actions by the executive within five (5) years 24 prior to the date of notice. 25 (f) If the executive issues a waiver under paragraph (c) of this 26 subdivision, the executive shall publish in the same manner as the 27 original notice a detailed justification for the waiver that: 28 (i) addresses the public comments received under paragraph (d) of this 29 subdivision; and 30 (ii) is published before the waiver takes effect. 31 (g) If it has been determined by a court of federal or state agency 32 that any person intentionally: 33 (i) affixed a label bearing a "Made in America" inscription, or any 34 inscription with the same meaning, to any iron, steel or manufactured 35 product used in projects to which this subdivision applies, sold in or 36 shipped to the United States that was not made in the United States; or 37 (ii) represented that any iron, steel, or manufactured product used in 38 projects to which this section apples that was not produced in the 39 United States, was produced in the United States; 40 then that person shall be ineligible to receive any contract or subcon- 41 tract with this state pursuant to the debarment or suspension provisions 42 provided under section one hundred thirty-nine-a of the state finance 43 law. 44 (h) This subdivision shall be applied in a manner consistent with the 45 state's obligations under any applicable international agreements 46 pertaining to government procurement. 47 (i) Definitions. For the purpose of this subdivision, the following 48 words shall have the following meanings unless specified otherwise: 49 (i) "Executive" means the executive head of a public agency subject to 50 this subdivision. 51 (ii) "Public agency" means a governmental entity as that term is 52 defined in section one hundred thirty-nine-j of the state finance law; 53 (iii) "Manufactured in the United States" means: (A) in the case of an 54 iron or steel product all manufacturing must take place in the United 55 States, from the initial melting stage through the application of coat-A. 2086 6 1 ings, except metallurgical processes involving the refinement of steel 2 additives; and 3 (B) in the case of a manufactured product, a product will be consid- 4 ered manufactured in the United States if: 5 (1) all of its manufacturing processes take place in the United 6 States, and 7 (2) more than sixty percent of the components of the manufactured 8 good, by cost, are of domestic origin. If, under the terms of this part, 9 a component is determined to be of domestic origin, its entire cost may 10 be used in calculating the cost of domestic content of an end product. 11 (iv) "United States" means the United States of America and includes 12 all territory, continental or insular, subject to the jurisdiction of 13 the United States. 14 § 5. Section 103 of the general municipal law is amended by adding a 15 new subdivision 17 to read as follows: 16 17. Use of American materials. (a) Notwithstanding any other provision 17 of law, each contract for the construction, reconstruction, alteration 18 or improvement of a public building or public works made by a public 19 agency of a political subdivision shall contain a provision that the 20 iron, steel, and manufactured products used or supplied in the perform- 21 ance of the contract or any subcontract thereto and permanently incorpo- 22 rated into the public building or public works shall be manufactured in 23 the United States. 24 (b) No bidder shall be deemed to be the lowest responsible and reli- 25 able bidder and no bid shall be deemed the best value unless the bid 26 offered by such bidder will comply with the contract term required by 27 paragraph (a) of this subdivision. 28 (c) The provisions of paragraph (a) of this subdivision shall not 29 apply in any case or category of cases in which the executive head of a 30 public agency finds: 31 (i) that the application of this subdivision would be inconsistent 32 with the public interest; 33 (ii) that such materials and products are not produced in the United 34 States in sufficient and reasonably available quantities and of a satis- 35 factory quality; or 36 (iii) that inclusion of domestic material will increase the cost of 37 the overall project contract by more than twenty-five percent. 38 (d) If the executive receives a request for a waiver under paragraph 39 (c) of this subdivision, the executive shall provide notice of an oppor- 40 tunity for public comment on the request at least thirty days before 41 making a finding based on the request. 42 (e) A notice provided under paragraph (d) of this subdivision shall: 43 (i) summarize the information available to the executive concerning 44 the request, including whether the request is being made under subpara- 45 graph (i), (ii) or (iii) of paragraph (c) of this subdivision; 46 (ii) be posted prominently on the official public internet web site of 47 the agency; and 48 (iii) be provided by electronic means to any person, firm or corpo- 49 ration that has made a written or electronic request to the public agen- 50 cy for notice of waiver actions by the executive within five (5) years 51 prior to the date of notice. 52 (f) If the executive issues a waiver under paragraph (c) of this 53 subdivision, the executive shall publish in the same manner as the 54 original notice a detailed justification for the waiver that: 55 (i) addresses the public comments received under paragraph (d) of this 56 subdivision; andA. 2086 7 1 (ii) is published before the waiver takes effect. 2 (g) If it has been determined by a court or federal or state agency 3 that any person intentionally: 4 (i) affixed a label bearing a "Made in America" inscription, or any 5 inscription with the same meaning, to any iron, steel or manufactured 6 product used in projects to which this subdivision applies, sold in or 7 shipped to the United States that was not made in the United States; or 8 (ii) represented that any iron, steel, or manufactured product used in 9 projects to which this section applies that was not produced in the 10 United States, was produced in the United States; 11 then that person shall be ineligible to receive any contract or subcon- 12 tract with this state pursuant to the debarment or suspension provisions 13 provided under section one hundred thirty-nine-a of the state finance 14 law. 15 (h) This subdivision shall be applied in a manner consistent with the 16 state's obligations under any applicable international agreements 17 pertaining to government procurement. 18 (i) Definitions. For the purpose of this subdivision, the following 19 words shall have the following meanings unless specified otherwise: 20 (i) "Executive" means the executive head of a public agency subject to 21 this subdivision; 22 (ii) "Public agency" means a governmental entity as that term is 23 defined in section one hundred thirty-nine-j of the state finance law; 24 (iii) "Manufactured in the United States" means: (A) in the case of an 25 iron or steel product all manufacturing must take place in the United 26 States, from the initial melting stage through the application of coat- 27 ings, except metallurgical processes involving the refinement of steel 28 additives; and 29 (B) in the case of a manufactured product, a product will be consid- 30 ered manufactured in the United States if: 31 (1) all of its manufacturing processes take place in the United 32 States, and 33 (2) more than sixty percent of the components of the manufactured 34 good, by cost, are of domestic origin. If, under the terms of this part, 35 a component is determined to be of domestic origin, its entire cost may 36 be used in calculating the cost of domestic content of an end product. 37 (iv) "United States" means the United States of America and includes 38 all territory, continental or insular, subject to the jurisdiction of 39 the United States. 40 § 6. Section 8 of the public buildings law is amended by adding a new 41 subdivision 8 to read as follows: 42 8. Use of American materials. (a) Notwithstanding any other provision 43 of law, each contract for the construction, reconstruction, alteration 44 or improvement of a state building made by a public agency shall contain 45 a provision that the iron, steel, and manufactured products used or 46 supplied in the performance of the contract of any subcontract thereto 47 and permanently incorporated into the public building or public works 48 shall be manufactured in the United States. 49 (b) No bidder shall be deemed to be the lowest responsible and reli- 50 able bidder and no bid shall be deemed the best value unless the bid 51 offered by such bidder will comply with the contract term required by 52 paragraph (a) of this subdivision. 53 (c) The provisions of paragraph (a) of this subdivision shall not 54 apply in any case or category of cases in which the executive head of a 55 public agency finds:A. 2086 8 1 (i) that the application of this subdivision would be inconsistent 2 with the public interest; 3 (ii) that such materials and products are not produced in the United 4 States in sufficient and reasonably available quantities and of a satis- 5 factory quality; or 6 (iii) that inclusion of domestic material will increase the cost of 7 the overall project contract by more than twenty-five percent. 8 (d) If the executive receives a request for a waiver under paragraph 9 (c) of this subdivision, the executive shall provide notice of and an 10 opportunity for public comment on the request at least thirty days 11 before making a finding based on the request. 12 (e) A notice provided under paragraph (d) of this subdivision shall: 13 (i) summarize the information available to the executive concerning 14 the request, including whether the request is being made under subpara- 15 graph (i), (ii) or (iii) of paragraph (c) of this subdivision; 16 (ii) be posted prominently on the official public internet web site of 17 the agency; and 18 (iii) be provided by electronic means to any person, firm or corpo- 19 ration that has made a written or electronic request to the public agen- 20 cy for notice of waiver actions by the executive within five (5) years 21 prior to the date of notice. 22 (f) If the executive issues a waiver under paragraph (c) of this 23 subdivision, the executive shall publish in the same manner as the 24 original notice a detailed justification of the waiver that: 25 (i) addresses the public comments received under paragraph (d) of this 26 subdivision; and 27 (ii) is published before the waiver takes effect. 28 (g) If it has been determined by a court or federal or state agency 29 that any person intentionally: 30 (i) affixed a label bearing a "Made in America" inscription, or any 31 inscription with the same meaning, to any iron, steel or manufactured 32 product used in projects to which this subdivision applies, sold in or 33 shipped to the United States that was not made in the United States; or 34 (ii) represented that any iron, steel, or manufactured product used in 35 projects to which this section applies that was not produced in the 36 United States, was produced in the United States; 37 then that person shall be ineligible to receive any contract or subcon- 38 tract with this state pursuant to the debarment or suspension provisions 39 provided under section one hundred thirty-nine-a of the state finance 40 law. 41 (h) This subdivision shall be applied in a manner consistent with the 42 state's obligations under any applicable international agreements 43 pertaining to government procurement. 44 (i) Definitions. For the purpose of this subdivision, the following 45 words shall have the following meanings unless otherwise specified: 46 (i) "Executive" means the executive head of a public agency subject to 47 this subdivision; 48 (ii) "Public agency" means a governmental entity as that term is 49 defined in section one hundred thirty-nine-j of the state finance law; 50 (iii) "Manufactured in the United States" means: (A) in the case of an 51 iron or steel product all manufacturing must take place in the United 52 States, from the initial melting stage through the application of coat- 53 ings, except metallurgical processes involving the refinement of steel 54 additives; and 55 (B) in the case of a manufactured product, a product will be consid- 56 ered manufactured in the United States if:A. 2086 9 1 (1) all of its manufacturing processes take place in the United 2 States, and 3 (2) more than sixty percent of the components of the manufactured 4 good, by cost, are of domestic origin. If, under the terms of this part, 5 a component is determined to be of domestic origin, its entire cost may 6 be used in calculating the cost of domestic content of an end product. 7 (iv) "United States" means the United States of America and includes 8 all territory, continental or insular, subject to the jurisdiction of 9 the United States. 10 § 7. Severability. If any provisions of this act, or the application 11 thereof to any person or circumstance, is held invalid, such invalidity 12 shall not affect other provisions or applications of this act which can 13 be given effect without the invalid provisions or application, and to 14 that extent, the provisions of this act are declared to be severable. 15 § 8. This act shall take effect immediately.
