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 Section 146 of the state finance law is REPEALED and a new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.
LBD01064-01-7
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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-
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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:
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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.
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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; and
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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:
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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:
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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.