STATE OF NEW YORK
________________________________________________________________________
7945--A
2017-2018 Regular Sessions
IN ASSEMBLY
May 22, 2017
___________
Introduced by M. of A. KIM, BICHOTTE -- read once and referred to the
Committee on Governmental Operations -- committee discharged, bill
amended, ordered reprinted as amended and recommitted to said commit-
tee
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) "Public entity" shall mean any state agency, department, board,
6 bureau, municipal corporation, public benefit corporation, public
7 authority or any other state entity, any school district or any other
8 special district, or any instrumentality of the state or a political
9 subdivision of the state.
10 (b) "Contract" shall mean any agreement awarded by a public entity for
11 the design, construction, reconstruction, demolition, alteration, repair
12 or improvement of any public works.
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, subcon-
16 tractor or materialman to a contract and which is a direct result of the
17 act or omission of the public entity for whom the contractor, subcon-
18 tractor or materialman is providing services as provided for in the
19 contract.
20 (d) "Claim" shall mean a request for additional costs from the follow-
21 ing causes listed in this subdivision attributable to delay in the
22 performance of a contract, occasioned by any act or omission to act by
23 the public entity with whom a contractor, subcontractor or materialman
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD05191-04-7
A. 7945--A 2
1 has contracted with, but shall not include delay from any other cause,
2 which delay shall be compensated for solely by an extension of time to
3 complete the performance of the work:
4 (i) the failure of the public entity to take reasonable measures to
5 coordinate and progress the work;
6 (ii) extended delays attributable to the public entity in the review
7 or issuance of orders-on-contract or field orders, in shop drawing
8 reviews and approvals or as a result of the cumulative impact of multi-
9 ple orders on contract, which constitute a qualitative change to the
10 project work and which have a verifiable impact on project costs;
11 (iii) the unavailability of the site for such an extended period of
12 time which significantly affects the scheduled completion of the
13 contract; or
14 (iv) the issuance of a stop work order relative to a substantial
15 portion of work for a period exceeding thirty days.
16 2. All contracts made and awarded shall contain a clause which allows
17 a contractor, subcontractor or materialman to make a claim for addi-
18 tional costs arising from delay if such delay in the performance of the
19 contract is caused by or occasioned by any act or omission of the entity
20 with whom they have contracted in the contract, or any of such entity's
21 representatives or agents.
22 3. The contractor, subcontractor or materialman shall provide a notice
23 of claim of an anticipated claim for delay to a public entity by
24 personal service or certified mail no more than fifteen days after such
25 contractor knew the facts which form the basis of the claim. The public
26 entity shall acknowledge receipt of the notice, in writing, within five
27 days. Such notice shall at a minimum provide a description of any oper-
28 ations that were, are being or will be delayed, and the date or dates
29 and reasons for the delay. In no case shall oral notice constitute
30 notice pursuant to this section or be deemed to constitute a waiver of
31 the written notice requirement. For the purposes of this section, fail-
32 ure to provide such notice shall be considered to have prejudiced the
33 public entity.
34 4. Failure by a contractor to adequately progress the completion of
35 work shall be considered in determining the causes of delay. For any
36 claim asserted pursuant to this title, the contractor, subcontractor or
37 materialman shall keep detailed written records of the costs and shall
38 make them available for the purposes of audit and review. Failure to
39 provide the required written notice or to maintain and furnish records
40 of the costs of such claims shall constitute a waiver of the claim.
41 5. The following information shall be provided by the contractor upon
42 request of a public entity if not previously supplied:
43 (a) a description of the operations that were delayed, the reasons for
44 the delay and an explanation of how they were delayed;
45 (b) a detailed factual statement of the claim providing all necessary
46 dates, locations and items of work affected by the claim;
47 (c) the date on which actions resulting in the claim occurred or
48 conditions resulting in the claim became evident;
49 (d) the names, functions and activities of each contractor, subcon-
50 tractor and materialman involved in, or knowledgeable about facts that
51 gave rise to such claim;
52 (e) the identification of any pertinent documents, and the substance
53 of any material oral communication relating to such claim;
54 (f) the amount of additional compensation sought; and
A. 7945--A 3
1 (g) if an extension of time is also requested, the specific number of
2 days for which it is sought and the basis for such request as determined
3 by an analysis of the construction progress schedule.
4 6. When submitting any claim, the contractor, subcontractor or materi-
5 alman shall certify in writing and under oath that the supporting data
6 is accurate and complete to his or her best knowledge or belief, and
7 that any amount demanded reflects, in good faith, what he or she
8 believes to be the public entity's liability.
9 § 2. This act shall take effect on the one hundred eightieth day after
10 it shall have become a law and shall apply to all contracts entered into
11 on and after such date.
