Bill Text: NY A05059 | 2009-2010 | General Assembly | Introduced
Bill Title: An act to amend the general municipal law and the state finance law, in relation to ensuring compliance with the competitive bidding law
Spectrum: Partisan Bill (Democrat 19-0)
Status: (Introduced - Dead) 2010-01-06 - referred to local governments [A05059 Detail]
Download: New_York-2009-A05059-Introduced.html
S T A T E O F N E W Y O R K ________________________________________________________________________ 5059 2009-2010 Regular Sessions I N A S S E M B L Y February 10, 2009 ___________ Introduced by M. of A. BRENNAN, MILLMAN, CLARK, DINOWITZ, ORTIZ, FIELDS, JOHN, COLTON -- Multi-Sponsored by -- M. of A. CAHILL, CHRISTENSEN, ESPAILLAT, GALEF, GLICK, GOTTFRIED, GREENE, KOON, MARKEY, PHEFFER, ROSENTHAL, SWEENEY -- read once and referred to the Committee on Local Governments AN ACT to amend the general municipal law and the state finance law, in relation to ensuring compliance with the competitive bidding law 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 and may be cited as 2 the "Municipal competitive bidding enforcement act." 3 S 2. The general municipal law is amended by adding a new section 4 103-g to read as follows: 5 S 103-G. ENFORCEMENT OF COMPETITIVE BIDDING LAW. 1. DEFINITIONS. (A) 6 "PROCUREMENT ACTION" MEANS ANY TRANSACTION WHICH IS CLAIMED TO CONSTI- 7 TUTE A CONTRACT FOR PUBLIC WORK INVOLVING AN EXPENDITURE OF MORE THAN 8 TWENTY THOUSAND DOLLARS OR A PURCHASE CONTRACT INVOLVING THE EXPENDITURE 9 OF MORE THAN TEN THOUSAND DOLLARS WHICH SHOULD BE AWARDED TO THE LOWEST 10 RESPONSIBLE BIDDER, AS PROVIDED BY SECTION ONE HUNDRED THREE OF THIS 11 ARTICLE. 12 (B) "GOOD FAITH BIDDER" MEANS ANY PERSON WHO HAS SUBMITTED A BID IN 13 RESPONSE TO AN ADVERTISEMENT FOR SEALED BIDS, OR WHO COULD SUBMIT A GOOD 14 FAITH BID ON A PROCUREMENT ACTION. 15 2. COMPTROLLER'S OPINIONS. UPON A COMPLAINT FILED BY A TAXPAYER OF THE 16 POLITICAL SUBDIVISION OR BY A GOOD FAITH BIDDER, THE OFFICE OF THE STATE 17 COMPTROLLER SHALL ISSUE AN OPINION ON WHETHER A PROPOSED PROCUREMENT 18 ACTION BY A POLITICAL SUBDIVISION COMPLIES WITH THE COMPETITIVE BIDDING 19 REQUIREMENTS OF SECTION ONE HUNDRED THREE OF THIS ARTICLE. THE COMPLAINT 20 SHALL SPECIFY THE PROCUREMENT ACTION THAT IS CLAIMED TO VIOLATE SECTION 21 ONE HUNDRED THREE OF THIS ARTICLE. THE TAXPAYER OR GOOD FAITH BIDDER 22 SHALL SERVE A COPY OF THE COMPLAINT ON THE POLITICAL SUBDIVISION PRIOR EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD03481-02-9 A. 5059 2 1 TO SERVING THE COMPLAINT ON THE COMPTROLLER. UPON THE FILING OF A PRIMA 2 FACIE VALID COMPLAINT WITH THE COMPTROLLER, THE COMPTROLLER SHALL NOTIFY 3 THE POLITICAL SUBDIVISION. UPON RECEIPT OF SUCH NOTICE FROM THE COMP- 4 TROLLER, THE POLITICAL SUBDIVISION MAY NOT PROCEED WITH THE COMPLAINT OF 5 PROCUREMENT ACTION FOR A PERIOD OF THIRTY DAYS. IN RENDERING HIS OR HER 6 OPINION, THE COMPTROLLER MAY CONSULT WITH THE OFFICE OF GENERAL SERVICES 7 AS TO THE REASONABLENESS AND VALIDITY OF ANY BID SPECIFICATIONS. THE 8 COMPTROLLER SHALL ISSUE A WRITTEN OPINION PURSUANT TO THIS SUBDIVISION 9 WITHIN THIRTY DAYS OF SUCH NOTICE TO THE POLITICAL SUBDIVISION AND SHALL 10 PROMPTLY SERVE COPIES OF THE OPINION ON THE POLITICAL SUBDIVISION AND ON 11 THE COMPLAINING PARTY. 12 3. ATTORNEY GENERAL. IF THE COMPTROLLER'S OPINION IS THAT THE PROCURE- 13 MENT ACTION WOULD VIOLATE SECTION ONE HUNDRED THREE OF THIS ARTICLE, THE 14 COMPTROLLER SHALL TRANSMIT A COPY OF THE OPINION TO THE ATTORNEY GENER- 15 AL. NOTWITHSTANDING ANY OTHER PROVISION OF LAW, THE ATTORNEY GENERAL IS 16 AUTHORIZED TO BRING A SPECIAL PROCEEDING IN THE SUPREME COURT TO HAVE A 17 PROCUREMENT ACTION ENJOINED OR DECLARED NULL AND VOID ON THE GROUND THAT 18 IT IS IN VIOLATION OF SECTION ONE HUNDRED THREE OF THIS ARTICLE. 19 4. DAMAGES TO GOOD FAITH BIDDER. A GOOD FAITH BIDDER MAY BRING AN 20 ACTION IN THE SUPREME COURT TO RECOVER DAMAGES AND ATTORNEY'S FEES FROM 21 A POLITICAL SUBDIVISION, WHICH ENGAGES IN A VIOLATION OF SECTION ONE 22 HUNDRED THREE OF THIS ARTICLE. THE COURT SHALL AWARD DAMAGES AND ATTOR- 23 NEY'S FEES IF THE COURT FINDS THAT THE GOOD FAITH BIDDER WOULD HAVE BEEN 24 THE LOWEST RESPONSIBLE BIDDER, BUT FOR THE POLITICAL SUBDIVISION'S 25 VIOLATION OF SECTION ONE HUNDRED THREE OF THIS ARTICLE. THE COURT IS 26 AUTHORIZED IN ANY SUCH ACTION TO DECLARE AN ILLEGALLY AWARDED CONTRACT 27 TO BE NULL AND VOID. 28 (A) IF THE COMPTROLLER HAS ISSUED AN OPINION THAT THE PROCUREMENT 29 ACTION WOULD BE IN VIOLATION OF SECTION ONE HUNDRED THREE OF THIS ARTI- 30 CLE AND THE POLITICAL SUBDIVISION HAS THEREAFTER PROCEEDED WITH THE 31 PROCUREMENT ACTION, THE MEASURE OF DAMAGES SHALL BE THREE TIMES THE GOOD 32 FAITH BIDDER'S LOST PROFITS. 33 (B) IF THE COMPTROLLER HAS NOT ISSUED AN OPINION THAT THE PROCUREMENT 34 ACTION WOULD BE IN VIOLATION OF SECTION ONE HUNDRED THREE OF THIS ARTI- 35 CLE, THE MEASURE OF DAMAGES SHALL BE THE LESSER OF (I) THE GOOD FAITH 36 BIDDER'S LOST PROFITS AND (II) THE DIFFERENCE BETWEEN THE PRICE OF THE 37 NULLIFIED CONTRACT AND ANY AMOUNT THAT THE COURT AWARDS TO THE PERSON 38 WHO PERFORMED ON THE NULLIFIED CONTRACT. 39 5. CIVIL PENALTY. ANY PERSON WHO SHALL WILFULLY AND INTENTIONALLY 40 VIOLATE THE COMPETITIVE BIDDING REQUIREMENTS OF SECTION ONE HUNDRED 41 THREE OF THIS ARTICLE SHALL BE PERSONALLY LIABLE FOR A CIVIL PENALTY OF 42 NO MORE THAN ONE THOUSAND DOLLARS. IN A PROCEEDING BROUGHT PURSUANT TO 43 THIS SECTION, THE COMPTROLLER'S OPINIONS AND AUDITS MAY BE ADMITTED INTO 44 EVIDENCE ON THE ISSUE OF THE RESPONDENT'S STATE OF MIND, PROVIDED THAT 45 (A) THE OPINION OR AUDIT WAS ISSUED PRIOR TO THE ALLEGED VIOLATION, (B) 46 THE OPINION OR AUDIT WAS ISSUED NO MORE THAN TEN YEARS PRIOR TO THE 47 ALLEGED VIOLATION, AND (C) THE OPINION OR AUDIT CONCERNED THE SAME KIND 48 OF ITEM OR SAME KIND OF PRACTICE AS THE ALLEGED VIOLATION. 49 6. COMPLAINT FEE. WHENEVER THE COMPTROLLER ACCEPTS A COMPLAINT FOR 50 FILING PURSUANT TO THIS SECTION, THE COMPTROLLER SHALL REQUIRE AND 51 COLLECT A FEE OF ONE HUNDRED DOLLARS, WHICH SHALL BE PAID INTO THE STATE 52 TREASURY AND WHICH SHALL, SO FAR AS IS NECESSARY, BE APPROPRIATED ANNU- 53 ALLY BY THE LEGISLATURE TO THE COMPTROLLER TO BE USED IN IMPLEMENTING 54 THIS ARTICLE. 55 S 3. Section 103 of the general municipal law is amended by adding a 56 new subdivision 13 to read as follows: A. 5059 3 1 13. EXCEPT AS OTHERWISE EXPRESSLY AUTHORIZED BY THIS ARTICLE, A POLI- 2 TICAL SUBDIVISION MAY NOT REQUIRE THAT BIDS CONFORM TO UNDULY RESTRIC- 3 TIVE SPECIFICATIONS. ALL SPECIFICATIONS SHALL BE DRAFTED SO AS TO 4 PROMOTE OVERALL ECONOMY FOR THE PURPOSES INTENDED AND TO ENCOURAGE 5 COMPETITION IN SATISFYING THE NEEDS OF THE POLITICAL SUBDIVISION. A 6 BRAND NAME MAY BE USED AS A SPECIFICATION ONLY IF THE SPECIFICATION 7 CLEARLY STATES THAT THE BRAND NAME OR EQUIVALENT IS ACCEPTABLE. WHERE A 8 BRAND NAME OR EQUIVALENT SPECIFICATION IS USED IN A BID SOLICITATION, 9 THE SOLICITATION SHALL CONTAIN EXPLANATORY LANGUAGE THAT THE USE OF A 10 BRAND NAME IS FOR THE PURPOSE OF DESCRIBING THE STANDARD OF QUALITY, 11 PERFORMANCE AND CHARACTERISTICS DESIRED AND IS NOT INTENDED TO LIMIT OR 12 RESTRICT COMPETITION. IN ANY OPINION, PROCEEDING OR ACTION BROUGHT 13 PURSUANT TO SECTION ONE HUNDRED THREE-G OF THIS ARTICLE, A BID SPECIFI- 14 CATION DEVELOPED AND PROVIDED BY THE OFFICE OF GENERAL SERVICES SHALL BE 15 DEEMED VALID. 16 S 4. Subdivision 2 of section 103 of the general municipal law, as 17 amended by section 5 of part X of chapter 62 of the laws of 2003, is 18 amended to read as follows: 19 2. Advertisement for bids shall be published in the official newspa- 20 per or newspapers, if any, or otherwise in a newspaper or newspapers 21 designated for such purpose. Such advertisement shall contain a state- 22 ment of the time when and place where all bids received pursuant to such 23 notice will be publicly opened and read, and the designation of the 24 receiving device if the political subdivision or district has authorized 25 the receipt of bids in an electronic format. Such board or agency may by 26 resolution designate any officer or employee to open the bids at the 27 time and place specified in the notice. Such designee shall make a 28 record of such bids in such form and detail as the board or agency shall 29 prescribe and present the same at the next regular or special meeting of 30 such board or agency. All bids received shall be publicly opened and 31 read at the time and place so specified. ALL BIDS RECEIVED AND OPENED 32 SHALL BE PUBLIC RECORDS AND SHALL BE AVAILABLE FOR PUBLIC INSPECTION AND 33 COPYING. At least five days shall elapse between the first publication 34 of such advertisement and the date so specified for the opening and 35 reading of bids. 36 S 5. Subdivision 2 of section 103 of the general municipal law, as 37 amended by chapter 296 of the laws of 1958, is amended to read as 38 follows: 39 2. Advertisement for bids shall be published in the official newspa- 40 per or newspapers, if any, or otherwise in a newspaper or newspapers 41 designated for such purpose. Such advertisement shall contain a state- 42 ment of the time when and place where all bids received pursuant to such 43 notice will be publicly opened and read, and the designation of the 44 receiving device if the political subdivision or district has authorized 45 the receipt of bids in an electronic format. Such board or agency may by 46 resolution designate any officer or employee to open the bids at the 47 time and place specified in the notice. Such designee shall make a 48 record of such bids in such form and detail as the board or agency shall 49 prescribe and present the same at the next regular or special meeting of 50 such board or agency. All bids received shall be publicly opened and 51 read at the time and place so specified. ALL BIDS RECEIVED AND OPENED 52 SHALL BE PUBLIC RECORDS AND SHALL BE AVAILABLE FOR PUBLIC INSPECTION AND 53 COPYING. At least five days shall elapse between the first publication 54 of such advertisement and the date so specified for the opening and 55 reading of bids. A. 5059 4 1 S 6. Subparagraph 1 of paragraph (b) of subdivision 4 of section 35 of 2 the general municipal law, as amended by chapter 692 of the laws of 3 1989, is amended to read as follows: 4 (1) Not later than ninety days after presentation to the governing 5 board of a report of examination performed by the office of the state 6 comptroller, or receipt by the governing board of any report of an 7 external audit performed by an independent public accountant or any 8 management letter in conjunction with such an audit, the governing board 9 may, in its discretion, provide to the comptroller, and file in the 10 office of the clerk, or with the secretary if there is no clerk, of the 11 municipal corporation, industrial development agency, district, agency 12 or activity, a written response to the findings and recommendations, if 13 any, in the report or letter. PROVIDED, HOWEVER, THAT IF SUCH REPORT OR 14 LETTER CONTAINS A FINDING THAT THE COMPETITIVE BIDDING REQUIREMENTS OF 15 SECTION ONE HUNDRED THREE OF THIS CHAPTER WERE VIOLATED, THE GOVERNING 16 BOARD MUST FILE A WRITTEN RESPONSE. In the case of municipal corpo- 17 rations, industrial development agency, districts, agencies or activ- 18 ities subject to examination by the commissioner of education, any writ- 19 ten response shall also be provided to such commissioner. 20 S 7. The state finance law is amended by adding a new section 164-a to 21 read as follows: 22 S 164-A. PROVIDING BID SPECIFICATIONS TO POLITICAL SUBDIVISIONS. THE 23 COMMISSIONER OF GENERAL SERVICES SHALL PROVIDE TO ANY POLITICAL SUBDIVI- 24 SION, AT NO CHARGE, ANY SPECIFICATION THAT THE COMMISSIONER HAS DEVEL- 25 OPED FOR ITEMS TO BE LET FOR BIDS IN PURCHASE CONTRACTS. THE COMMISSION- 26 ER MAY DEVELOP ADDITIONAL SPECIFICATIONS AT THE REQUEST OF ANY POLITICAL 27 SUBDIVISION AND MAY PROVIDE SUCH SPECIFICATIONS TO THE POLITICAL SUBDI- 28 VISION AND MAY CHARGE THE POLITICAL SUBDIVISION FOR THE COST OF DEVELOP- 29 ING SUCH SPECIFICATIONS. 30 S 8. If any clause, sentence, paragraph, section or part of this act 31 shall be adjudged by any court of competent jurisdiction to be invalid, 32 such judgment shall not affect, impair or invalidate the remainder ther- 33 eof, but shall be confined in its operation to the clause, sentence, 34 paragraph, section or part thereof directly involved in the controversy 35 in which such judgment shall have been rendered. 36 S 9. This act shall take effect on the first of January next succeed- 37 ing the date on which it shall have become a law; provided, however, the 38 amendments to subdivision 2 of section 103 of the general municipal law 39 made by section four of this act shall not affect the expiration and 40 reversion of such subdivision as provided in subdivision (a) of section 41 41 of part X of chapter 62 of the laws of 2003, as amended, when upon 42 such date the provisions of section five of this act shall take effect.