Bill Text: NY A07985 | 2019-2020 | General Assembly | Introduced

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

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Introduced) 2019-05-30 - referred to governmental operations [A07985 Detail]

Download: New_York-2019-A07985-Introduced.html

                STATE OF NEW YORK


                               2019-2020 Regular Sessions

                   IN ASSEMBLY

                                      May 30, 2019

        Introduced by M. of A. KIM -- read once and referred to the Committee on
          Governmental Operations

        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 all entities as defined in  section  one
     6  hundred  seventy-nine-e  of  this chapter and subdivision one of section
     7  two of the public authorities law.
     8    (b) "Contract" shall mean any agreement awarded by a state agency  for
     9  the design, construction, reconstruction, demolition, alteration, repair
    10  or improvement of any public works project.
    11    (c)  "Delay"  shall  mean any delay, disruption, interference, ineffi-
    12  ciencies, impedance, hindrance or acceleration in the performance of the
    13  contract which causes damages to be incurred by a contractor.
    14    (d) "Claim" shall mean a request for additional costs  only  from  the
    15  following causes:
    16    (i)  the  failure  of  the state agency to take reasonable measures to
    17  coordinate and progress the work;
    18    (ii) extended delays attributable to the state agency in the review or
    19  issuance of orders-on-contract or field orders, in shop drawing  reviews
    20  and approvals or as a result of the cumulative impact of multiple orders
    21  on  contract,  which constitute a qualitative change to the project work
    22  and which have a verifiable impact on project costs; or
    23    (iii) the unavailability of the site for such an  extended  period  of
    24  time  which  significantly  affects  the  scheduled  completion  of  the
    25  contract.

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

        A. 7985                             2

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