Establishes a construction industry advisory council on public contracting reform to consider and advise on matters concerning the improvement of the current public works contracting process.
NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A6232C Revised 1/26/2022
SPONSOR: Bichotte Hermelyn TITLE OF BILL:
An act to establish a construction industry advisory council on public
contracting reform
PURPOSE:
This bill will establish an independent advisory council that will study
the current public contracting process, adopt recommendations and best
practices in• four clear issue areas as well as further legislative
proposals in order to improve the current state of public contract proc-
ess to make it fair, predictable, and equitable for all involved.
SUMMARY OF PROVISIONS:
Provides for an independent advisory council that will study the current
public contracting process, adopt recommendations and best practices in
four clear issue areas as well as further legislative proposals in order
to improve the current state of public contract process--to make it
fair, predictable, and equitable for all involved.
JUSTIFICATION:
Contractors often face significant challenges when bidding and working
on public works projects in New York state. Often, the inclusion of
onerous or inequitable contract terms and conditions governing issues
such as contractor payment, job delays and dispute resolution, can place
an unfair burden on contractors in public works projects. Furthermore,
the legislature finds that many prior, piecemeal attempts to address
these inequities through individual approaches have proven unsuccessful,
and therefore a more equitable and comprehensive approach is warranted.
The legislature also finds that current inefficiencies in the public
contracting process are responsible for driving up the cost of
construction, making New York a less competitive place to engage in such
work in relation to other states, which in turn harms the New York state
economy and costs jobs. Therefore, it is the intent of the legislature
to establish an independent advisory council charged with (a) studying
the current public contracting process; and (b) adopting recommenda-
tions, best practices and legislative proposals in order to reform and
improve the current state public contracting process, by making it fair-
er, predictable and equitable for all parties involved.
This bill will allow us to take a focused look at four of the prevalent
issues in public contracting and create an actionable plan to solve them
all at once.
The "Construction Industry Advisory Council On Public Contracting
Reform" will address itself to four key issues contractor payment delays
due to "no damages for delay" clauses and problematic contractual notice
provisions, as examples, substantial completion, MWBE-specific issues
and retainage. It recognizes the principle that our collective interests
are best served by a system that is fair, equitable, just and effective.
The beauty of this bill is that it is more than a study--it calls for a
legislative blueprint for reform-thus we can take concrete suggestions
and turn them into a real reform package with buy-in from all. With a
plethora of diverse and dynamic members, and a clear charge with four
specification items, we will make sure that everyone has a voice, the
subcontractors, MBE's, public authorities and agencies.
LEGISLATIVE HISTORY:
New Bill
FISCAL IMPLICATIONS:
Minimal at best.
LOCAL FISCAL IMPLICATIONS:
Minimal at best.
EFFECTIVE DATE:
This act shall take effect immediately.
STATE OF NEW YORK
________________________________________________________________________
6232--C
2021-2022 Regular Sessions
IN ASSEMBLY
March 10, 2021
___________
Introduced by M. of A. BICHOTTE HERMELYN, DICKENS -- read once and
referred to the Committee on Governmental Operations -- committee
discharged, bill amended, ordered reprinted as amended and recommitted
to said committee -- reported and referred to the Committee on Ways
and Means -- committee discharged, bill amended, ordered reprinted as
amended and recommitted to said committee -- again reported from said
committee with amendments, ordered reprinted as amended and recommit-
ted to said committee
AN ACT to establish a construction industry advisory council on public
contracting reform
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Legislative intent. The legislature finds that construction
2 contractors often face significant challenges when bidding and working
3 on public works projects in New York state. Often, the inclusion of
4 onerous or inequitable contract terms and conditions governing issues
5 such as contractor payment, job delays and dispute resolution, can place
6 an unfair burden on contractors in public works projects. Furthermore,
7 the legislature finds that many prior, piecemeal attempts to address
8 these inequities through individual approaches have proven unsuccessful,
9 and therefore a more equitable and comprehensive approach is warranted.
10 The legislature also finds that current inefficiencies in the public
11 contracting process are responsible for driving up the cost of
12 construction, making New York a less competitive place to engage in such
13 work in relation to other states, which in turn harms the New York state
14 economy and costs jobs.
15 Therefore, it is the intent of the legislature to establish an inde-
16 pendent advisory council charged with (a) studying the current public
17 contracting process; and (b) adopting recommendations, best practices
18 and legislative proposals in order to reform and improve the current
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD08796-07-1
A. 6232--C 2
1 state public contracting process, by making it fairer, predictable and
2 equitable for all parties involved.
3 § 2. There is hereby created a construction industry advisory council
4 on public contracting reform (the "advisory council"), which shall
5 consider and advise on matters concerning the improvement of the current
6 public works contracting process in New York state.
7 § 3. The advisory council shall consist of the following members
8 appointed by the governor as follows: three members representing the
9 various state agencies and authorities, two members upon the recommenda-
10 tion of the speaker of the assembly, one member upon recommendation of
11 the minority leader of the assembly, two members upon the recommendation
12 of the temporary president of the senate, one member upon the recommen-
13 dation of the minority leader of the senate, one member upon the recom-
14 mendation of the comptroller, three members representing general
15 contractors in the construction industry, three members representing
16 subcontractors in the construction industry, three members representing
17 employee trade councils in the construction industry and two members
18 representing minority and women business-owned enterprise contractors.
19 Appointments shall be made within 60 days of the effective date of this
20 act. Vacancies in the advisory council shall be filled in the same
21 manner.
22 § 4. The advisory council shall elect a chair by majority vote and
23 other necessary officers from among all appointed members.
24 § 5. The advisory council shall first meet no later than 30 days after
25 the last member has been appointed and shall have the power to convene
26 public meetings. The advisory council may also meet at such other times
27 as called by the chair at the request of a majority of the members of
28 the advisory council. Meetings may be conducted via teleconference or
29 other electronic means.
30 § 6. The advisory council may also consult with other state agencies
31 and authorities, contractor and subcontractor trade associations and
32 their representatives, related professional trade associations, and
33 other experts and consultants in the construction industry, and with
34 such other persons as it shall determine necessary. Further, any state
35 or local government agency or authority that engages in construction,
36 construction financing or construction project ownership or oversight
37 shall cooperate in good faith with an inquiry or request of the advisory
38 council on matters germane to its work.
39 § 7. Members of the advisory council shall serve without compensation
40 for their services as members but shall be reimbursed for their actual
41 expenses incurred in the performance of their duties in the work of the
42 advisory council.
43 § 8. The advisory council shall convene not less than 3 regional
44 meetings on issues relating to the public contracting process, with a
45 sole focus on the following subject matters, without exception:
46 a. Damages incurred by contractors, subcontractors and other parties
47 due to delay in payments by public project owners or managers;
48 b. Substantial completion as it is defined in subdivision 1 of section
49 139-f of the state finance law;
50 c. Public works contracting issues affecting minority and women
51 contractors and subcontractors; and
52 d. Retainage in public works contracts.
53 § 9. No later than 365 days after the effective date of this act, the
54 advisory council shall issue a report of its findings, including any
55 recommendations for legislative, executive or regulatory action as it
56 may deem necessary and appropriate, and suggest best practices for a
A. 6232--C 3
1 more fair and efficient public works contracting process by addressing
2 the subject matters specified in section 8 of this act. The advisory
3 council shall terminate 60 days after the date on which it submits its
4 report as required by this section.
5 § 10. The report required by section nine of this act shall be deliv-
6 ered to the governor, the temporary president of the senate, the speaker
7 of the assembly, and the minority leaders of the senate and assembly.
8 The advisory council shall submit along with its report such legisla-
9 tive, executive or regulatory proposals as it deems necessary to imple-
10 ment its recommendations with respect to the subject matters specified
11 in section eight of this act.
12 § 11. This act shall take effect immediately.
