Bill Text: NY S00704 | 2023-2024 | General Assembly | Introduced
Bill Title: Requires state agency and authority public works contracts to include a clause authorizing contractors to recover reasonable damages for delay under limited circumstances.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced) 2024-01-03 - REFERRED TO PROCUREMENT AND CONTRACTS [S00704 Detail]
Download: New_York-2023-S00704-Introduced.html
STATE OF NEW YORK ________________________________________________________________________ 704 2023-2024 Regular Sessions IN SENATE January 6, 2023 ___________ Introduced by Sen. COMRIE -- read twice and ordered printed, and when printed to be committed to the Committee on Procurement and Contracts 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 23 on contract, which constitute a qualitative change to the project work 24 and which have a verifiable impact on project costs; or EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD03300-01-3S. 704 2 1 (iii) the unavailability of the site for such an extended period of 2 time which significantly affects the scheduled completion of the 3 contract. 4 2. All contracts made and awarded shall contain a clause which allows 5 a contractor to make a claim for additional costs arising from delay in 6 the performance of a contract if such delay is caused by a material act 7 or omission of the state agency. 8 3. The contractor shall provide a notice of claim of an anticipated 9 claim for delay to a state agency by personal service or certified mail 10 no more than fifteen days after such contractor knew the facts which 11 form the basis of the claim. The state agency shall acknowledge receipt 12 of the notice, in writing, within five days. Such notice shall at a 13 minimum provide a description of any operations that were, are being or 14 will be delayed, and the date or dates and reasons for the delay. In no 15 case shall oral notice constitute notice pursuant to this section or be 16 deemed to constitute a waiver of the written notice requirement. For 17 the purposes of this section, failure to provide such notice shall be 18 considered to have prejudiced the state agency. 19 4. Failure by a contractor to adequately progress the completion of 20 work shall be considered in determining the causes of delay. For any 21 claim asserted pursuant to this title, the contractor shall keep 22 detailed written records of the costs and shall make them available for 23 the purposes of audit and review. Failure to provide the required writ- 24 ten notice or to maintain and furnish records of the costs of such 25 claims shall constitute a waiver of the claim. 26 5. The following information shall be provided by the contractor upon 27 request of a state agency if not previously supplied: 28 (a) a description of the operations that were delayed, the reasons for 29 the delay and an explanation of how they were delayed; 30 (b) a detailed factual statement of the claim providing all necessary 31 dates, locations and items of work affected by the claim; 32 (c) the date on which actions resulting in the claim occurred or 33 conditions resulting in the claim became evident; 34 (d) the names, functions and activities of each contractor involved 35 in, or knowledgeable about facts that gave rise to such claim; 36 (e) the identification of any pertinent documents, and the substance 37 of any material oral communication relating to such claim; 38 (f) the amount of additional compensation sought; and 39 (g) if an extension of time is also requested, the specific number of 40 days for which it is sought and the basis for such request as determined 41 by an analysis of the construction progress schedule. 42 6. When submitting any claim, the contractor shall certify in writing 43 and under oath that the supporting data is accurate and complete to his 44 or her best knowledge or belief, and that any amount demanded reflects, 45 in good faith, what he or she believes to be the state agency's liabil- 46 ity. 47 § 2. This act shall take effect on the one hundred eightieth day after 48 it shall have become a law and shall apply to all contracts entered into 49 on and after such date.
