Bill Text: NY S06686 | 2017-2018 | General Assembly | Introduced

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Bill Title: Relates to damages to contracts occasioned by delay.

Spectrum: Bipartisan Bill

Status: (Vetoed) 2018-12-28 - VETOED MEMO.355 [S06686 Detail]

Download: New_York-2017-S06686-Introduced.html

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                STATE OF NEW YORK
        ________________________________________________________________________
                                          6686
                               2017-2018 Regular Sessions
                    IN SENATE
                                      June 13, 2017
                                       ___________
        Introduced  by  Sen.  RANZENHOFER -- read twice and ordered printed, and
          when printed to be committed to the Committee on Rules
        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
    24  has contracted with, but shall not include delay from any  other  cause,
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD05191-05-7
        S. 6686                             2
     1  which  delay  shall be compensated for solely by an extension of time to
     2  complete the performance of the work:
     3    (i)  the  failure  of the public entity to take reasonable measures to
     4  coordinate and progress the work;
     5    (ii) extended delays attributable to the public entity in  the  review
     6  or  issuance  of  orders-on-contract  or  field  orders, in shop drawing
     7  reviews and approvals or as a result of the cumulative impact of  multi-
     8  ple  orders  on  contract,  which constitute a qualitative change to the
     9  project work and which have a verifiable impact on project costs;
    10    (iii) the unavailability of the site for such an  extended  period  of
    11  time  which  significantly  affects  the  scheduled  completion  of  the
    12  contract; or
    13    (iv) the issuance of a stop  work  order  relative  to  a  substantial
    14  portion of work for a period exceeding thirty days.
    15    2.  All contracts made and awarded shall contain a clause which allows
    16  a contractor, subcontractor or materialman to make  a  claim  for  addi-
    17  tional  costs arising from delay if such delay in the performance of the
    18  contract is caused by or occasioned by any act or omission of the entity
    19  with whom they have contracted in the contract, or any of such  entity's
    20  representatives or agents.
    21    3. The contractor, subcontractor or materialman shall provide a notice
    22  of  claim  of  an  anticipated  claim  for  delay  to a public entity by
    23  personal service or certified mail no more than fifteen days after  such
    24  contractor  knew the facts which form the basis of the claim. The public
    25  entity shall acknowledge receipt of the notice, in writing, within  five
    26  days.  Such notice shall at a minimum provide a description of any oper-
    27  ations that were, are being or will be delayed, and the  date  or  dates
    28  and  reasons  for  the  delay.  In  no case shall oral notice constitute
    29  notice pursuant to this section or be deemed to constitute a  waiver  of
    30  the written notice requirement.  For the purposes of this section, fail-
    31  ure  to  provide  such notice shall be considered to have prejudiced the
    32  public entity.
    33    4. Failure by a contractor to adequately progress  the  completion  of
    34  work  shall  be  considered  in determining the causes of delay. For any
    35  claim asserted pursuant to this title, the contractor, subcontractor  or
    36  materialman  shall  keep detailed written records of the costs and shall
    37  make them available for the purposes of audit  and  review.  Failure  to
    38  provide  the  required written notice or to maintain and furnish records
    39  of the costs of such claims shall constitute a waiver of the claim.
    40    5. The following information shall be provided by the contractor  upon
    41  request of a public entity if not previously supplied:
    42    (a) a description of the operations that were delayed, the reasons for
    43  the delay and an explanation of how they were delayed;
    44    (b)  a detailed factual statement of the claim providing all necessary
    45  dates, locations and items of work affected by the claim;
    46    (c) the date on which actions  resulting  in  the  claim  occurred  or
    47  conditions resulting in the claim became evident;
    48    (d)  the  names,  functions and activities of each contractor, subcon-
    49  tractor and materialman involved in, or knowledgeable about  facts  that
    50  gave rise to such claim;
    51    (e)  the  identification of any pertinent documents, and the substance
    52  of any material oral communication relating to such claim;
    53    (f) the amount of additional compensation sought; and
    54    (g) if an extension of time is also requested, the specific number  of
    55  days for which it is sought and the basis for such request as determined
    56  by an analysis of the construction progress schedule.
        S. 6686                             3
     1    6. When submitting any claim, the contractor, subcontractor or materi-
     2  alman  shall  certify in writing and under oath that the supporting data
     3  is accurate and complete to his or her best  knowledge  or  belief,  and
     4  that  any  amount  demanded  reflects,  in  good  faith,  what he or she
     5  believes to be the public entity's liability.
     6    § 2. This act shall take effect on the one hundred eightieth day after
     7  it shall have become a law and shall apply to all contracts entered into
     8  on and after such date.