Section 1735. Certain contracts of the authority  


Latest version.
  • 1. Notwithstanding the
      provisions of paragraph  b  of  subdivision  one  of  section  seventeen
      hundred  thirty-four  of this title, the award of construction contracts
      by the authority between July first, nineteen  hundred  eighty-nine  and
      June  thirtieth,  two  thousand  fourteen,  shall  not be subject to the
      provisions of section one hundred one of the general municipal law.
        2. Notice of the invitation for  bids  for  contracts  to  be  awarded
      pursuant  to  this section shall state the time and place of the receipt
      and opening of bids.
        3. All bidders shall submit to the authority, prior to the opening  of
      a  bid  for  the  award  of a contract under this section, a sealed list
      identifying the names of each subcontractor each contractor proposes  to
      utilize  under  the  contract  for  the  performance  of  the  following
      subdivisions of work:
        a. Plumbing and gas fitting;
        b. Steam heating, hot water heating, ventilating and air  conditioning
      apparatus; and
        c. Electric wiring and standard illuminating fixtures.
        The  low  bidder  shall specify in such list the estimated value to be
      paid each such subcontractor for  the  work  to  be  performed  by  such
      subcontractor.  After  the authority has announced the low bidder at the
      bid opening, the authority shall open only such  low  bidder's  separate
      sealed list and shall read aloud such subcontractors listed therein. All
      such  sealed  lists  except  those  of  the low bidder shall be returned
      unopened to their respective contractors following  the  awarding  of  a
      contract.
        4.  The  authority shall establish a committee to review and report on
      contracts issued pursuant to this section  and  on  the  procedures  and
      methodology  of  the  authority  in  awarding such contracts. The review
      shall include, but not be limited to, the degree  to  which  contractors
      awarded  contracts  pursuant  to  such paragraph, and the subcontractors
      utilized by  them,  utilize  employees  who  are  represented  by  labor
      organizations, comply with existing labor standards, maintain harmonious
      labor  relations  and  recognize state approved apprentice programs. The
      committee shall, from time  to  time,  issue  economic  and  statistical
      reports  dealing with the costs of construction under this article. Such
      reports shall deal with the costs  of  labor,  material,  equipment  and
      profit.  The  committee shall have no authority to approve or disapprove
      contracts. The committee shall be composed of two  representatives  from
      the  authority,  one  representative from the board, two representatives
      from construction-related labor organizations  and  two  representatives
      from  the  construction industry, at least one of whom shall be involved
      in the subdivisions of work  described  in  subdivision  three  of  this
      section.  The  president of the authority shall designate the members of
      the committee, provided, however, that the president shall designate the
      representatives of labor organizations from a list of names submitted by
      the New York state AFL-CIO.
        5. In awarding contracts pursuant to this section the authority shall,
      in addition to the factors set forth in  subdivision  three  of  section
      seventeen  hundred  thirty-four  of  this  title, consider the following
      factors  when  establishing  a  list  of   pre-qualified   bidders   for
      construction work: (a) the degree to which a contractor or subcontractor
      utilizes  employees who are represented by a labor organization; (b) the
      absence of any intentional misrepresentation with  regard  to  lists  of
      subcontractors  previously  submitted  pursuant  to  the  provisions  of
      subdivision two of this section; and (c) the record  of  the  bidder  in
      complying  with  existing  labor standards, maintaining harmonious labor
      relations and recognizing state approved apprentice programs.
    
        6. The authority  shall  provide  in  its  construction,  erection  or
      alteration  contracts which implement a five year educational facilities
      capital plan a provision that shall  require  each  contractor  to  make
      prompt payment to its subcontractors performing each subdivision of work
      listed  in subdivision three of this section. Within seven calendar days
      of the receipt of any payment from the authority, the  contractor  shall
      pay  to  each  such  subcontractor  that portion of the proceeds of such
      payment  representing  the  value  of  the  work   performed   by   such
      subcontractor, based upon the actual value of the subcontract, which has
      been approved and paid for by the authority, less an amount necessary to
      satisfy  any  claims, liens or judgments against the subcontractor which
      have not been suitably discharged and less any amount  retained  by  the
      contractor  as  provided  herein.  For such purpose, the subcontract may
      provide that the contractor may retain not more than five per centum  of
      each  payment  to  the  subcontractor or not more than ten per centum of
      each such  payment  if  prior  to  entering  into  the  subcontract  the
      subcontractor  is  unable or unwilling to provide, at the request of the
      contractor, a performance bond and a labor and material bond both in the
      amount of the subcontract.
        At the time of making a payment to the contractor for  work  performed
      by  the  subcontractors  set forth in subdivision three of this section,
      the authority shall file in its office  for  review  a  record  of  such
      payment.    If any such subcontractor shall notify the authority and the
      contractor in writing that the contractor has failed to make  a  payment
      to  it  as  provided  herein  and the contractor shall fail, within five
      calendar days after receipt of such notice, to furnish either  proof  of
      such  payment  or notice that the amount claimed by the subcontractor is
      in dispute, the authority shall withhold from amounts then or thereafter
      becoming due and payable to the  contractor,  other  than  from  amounts
      becoming  due  and  payable  to the contractor representing the value of
      work approved by the authority and performed by other subcontractors and
      which the contractor is required to pay to  such  subcontractors  within
      seven  calendar days as herein provided, an amount equal to that portion
      of  the  authority's  prior  payment  to  the   contractor   which   the
      subcontractor  claims  to  be due it, shall remit the amount when and so
      withheld to the subcontractor and deduct such payment from  the  amounts
      then  otherwise  due and payable to the contractor, which payment shall,
      as between the contractor and the authority, be deemed a payment by  the
      authority  to  the  contractor. In the event the contractor shall notify
      the authority as above provided that the claim of the  subcontractor  is
      in dispute, the authority shall withhold from amounts then or thereafter
      becoming  due  and  payable  to  the contractor, other than from amounts
      becoming due and payable to the contractor  representing  the  value  of
      work approved by the authority and performed by other subcontractors and
      which  the  contractor  is required to pay to such subcontractors within
      seven calendar days as herein provided, an amount equal to that  portion
      of   the   authority's   prior  payment  to  the  contractor  which  the
      subcontractor claims to be due it and deposit such amount  when  and  so
      withheld  in  a  separate interest-bearing account pending resolution of
      the dispute, and the amount so  deposited  together  with  the  interest
      thereon  shall  be paid to the party or parties ultimately determined to
      be entitled thereto, or until the  contractor  and  subcontractor  shall
      otherwise  agree  as  to  the  disposition  thereof.  In  the  event the
      authority shall be required to withhold amounts from  a  contractor  for
      the  benefit  of  more  than  one subcontractor, the amounts so withheld
      shall be applied to or for such subcontractors in the order in which the
      written notices of nonpayment have been received by the  authority,  and
      if   more   than   one  such  notice  was  received  on  the  same  day,
    
      proportionately based  upon  the  amount  of  the  subcontractor  claims
      received  on  such  day.  Nothing  herein  contained  shall  prevent the
      authority  from  commencing  an   interpleader   action   to   determine
      entitlement  to  a  disputed  payment  in  accordance  with  section one
      thousand six of the civil practice  law  and  rules,  or  any  successor
      provision thereto.
        Payment  to  a  subcontractor  shall  not  relieve the contractor from
      responsibility for the work covered by the payment. Except as  otherwise
      provided,  nothing  contained  herein shall create any obligation on the
      part of the authority to  pay  any  subcontractor,  nor  shall  anything
      provided  herein  serve  to  create  any  relationship  in  contract  or
      otherwise, implied or  expressed,  between  the  subcontractor  and  the
      authority.
        The  provisions  of  this  subdivision  shall not be applicable to the
      subcontractors  of  a  contractor  whose  contract  is  limited  to  the
      performance  of a single subdivision of work listed in subdivision three
      of this section.
        7. The provisions of this section shall cease to be in effect  in  the
      event  any  of  the  provisions  of this section shall be adjudged to be
      invalid by the final judgment of a court of competent jurisdiction  from
      which  judgment  all  appeals  or  applications  for  relief  have  been
      exhausted or the time therefor has expired, provided, however, that such
      appeals or applications are pursued promptly.
        * NB Repealed June 30, 2014