N.Y. Canal Law § 30: Contracts for improvement, maintenance or repair of the canal system

§ 30. Contracts for improvement, maintenance or repair of the canal

system. Upon the completion and final approval of the plans and

specifications for the improvement, maintenance or repair to the canal

system, contracts therefor shall be executed as provided herein.

1. Advertising for proposals. The corporation shall advertise for

proposals in accordance with plans and specifications prepared by it for

such improvement, maintenance or repair of the canal system as the

corporation deems it expedient to have performed by contract. The

advertisement shall be limited to a brief description of the work

proposed to be done, with an announcement stating where the maps, plans

and specifications may be seen, the terms and conditions under which the

proposals will be received, the time and place where the same will be

opened, the amount of the draft or certified check to accompany the

proposal, and such other matters as the corporation may deem advisable

to include therein. Such advertisement shall be published at least once

in each week for two successive weeks in a newspaper published at the

county seat of the county in which such canal work is to be performed

and in such other newspapers as the corporation may designate. If no

newspaper is published at such county seat, then the publication of the

advertisement shall be in such newspaper or newspapers within the county

as the corporation may select. If no newspaper is published in the

county, the publication of the advertisement shall be in such newspaper

or newspapers in an adjoining county as may be selected by the

corporation. Failure of such newspaper, published in such county or

adjoining county, to publish such advertisement as provided in this

subdivision or as directed by the corporation shall not invalidate the

publication of advertisement for proposals provided such advertisement

is published in another newspaper or trade publication, which will be

most likely to give adequate notice to contractors of the work

contemplated and of the invitation to submit proposals therefor, at

least once in each week for any two successive weeks preceding the date

on which proposals described in such advertisement are to be received

and opened.

2. Proposals. Each proposal shall specify the correct gross sum for

which the work will be performed and shall also include the amount to be

charged for each item specified on the proposal estimate sheet. The

corporation may prescribe and furnish forms for the submission of such

proposals and may prescribe the manner of submitting the same which

shall not be inconsistent herewith. Accompanying each proposal there

shall be a certified check or bank cashier's check for the amount of the

bid deposit, to be fixed by the corporation and specified in the

advertisement for proposals. The checks of the two low bidders shall be

deposited by the corporation in a special account. Provided, however,

that if prior to or upon receipt of said checks by the corporation a

bidder who is one of the two low bidders shall have duly filed a bond as

hereinafter provided, the corporation shall forthwith return to said

bidder his aforesaid check without depositing the same. If alternate

proposals are taken, the checks of the two low bidders of all alternate

proposals shall be deposited. All checks other than those of the two low

bidders shall be returned promptly by the corporation. Notwithstanding

the provisions of any general or special law, the money represented by

the checks of the two low bidders shall be paid from the special account

when the contractor has duly executed and delivered to the corporation

the contract and the bond or bonds required by law for the performance

of the work of a public improvement for the state of New York, or upon

the rejection of all bids. The low bidder, in the discretion of the

corporation, and the second low bidder, as a matter of right, may at any

time after the opening of the respective proposals, file with the

corporation a bond, the principal amount of which shall at least equal

the amount of the respective bidder's check, theretofore deposited with

his proposal, in the form prescribed by the corporation, with sufficient

sureties, to be approved by the corporation, conditioned that the said

bidder will execute a contract and furnish such performance or other

bonds as may be required by law in accordance with the terms of the

bidder's said proposal. If a bidder complies with the aforesaid

provisions, the corporation shall forthwith return the money represented

by the check of such bidder.

In case the bidder to whom the contract shall be awarded shall fail to

execute such contract and bond, the moneys represented by such check

shall be regarded as liquidated damages and shall be forfeited to the

state and shall be deposited by the corporation with the commissioner of

taxation and finance to the credit of the general fund. The gross sums

indicated on the proposals when opened shall be publicly read. The

corporation shall keep the bids for the several items of the proposals

confidential until an award of the contract is made, after which the

proposals shall be subject at all reasonable times to public inspection.

3. Award of contract. The contract for the improvement, maintenance or

repair of any part of the canal system shall be awarded to the lowest

responsible bidder, as will best promote the public interest. No

contract shall be awarded to a bidder other than the lowest responsible

bidder without the written approval of the comptroller. The lowest bid

shall be deemed to be that which specifically states the lowest gross

sum for which the entire work will be performed, including all the items

specified in the estimate therefor. The lowest bid shall be determined

by the corporation on the basis of the gross sum for which the entire

work will be performed, arrived at by a correct computation of all the

items specified in the estimate therefor at the unit prices contained in

the bid.

4. Rejection of proposals. The corporation may reject any or all

proposals and may advertise for new proposals as provided in this

section, if, in its opinion, the best interest of the state and the

corporation will thereby be promoted.

5. Form of contract. The corporation shall prescribe the form of

contract and may include therein such matters the corporation may deem

advantageous to the state and the corporation.

6. Bond of contractor. Each contractor before entering into a contract

for such improvement, maintenance or repair of the canal system shall

execute a bond in the form prescribed by the corporation, with

sufficient sureties, to be approved by the corporation, on condition

that it will perform the work in accordance with the terms of the

contract and the plans and specifications, and that it will commence and

complete the work within the time prescribed in the contract. The bond

shall also provide against any direct or indirect damages that shall be

suffered or claimed on account of such construction or improvement

during the time thereof, and until the work is finally accepted.

7. Payments on contracts, state taxes. The contract shall provide for

partial payments as the work progresses as hereinafter provided:

(a) Ten per centum shall be retained from each progress payment or

estimate until the contract work is fifty per centum completed, after

which no further moneys shall be retained from any progress payments or

estimates paid thereafter, and when the entire contract work has been

completed and accepted, the corporation shall, pending the payment of

the final estimate, pay not to exceed fifty per centum of the amount of

the retained percentage.

(b) Whenever in the judgment of the corporation the withholding of the

retained percentage on account of the closing of the working season

would be an injustice to the contractor, the corporation may, provided

the district engineer certifies that the essential items in the contract

have been completed in accordance with the terms of the contract and the

provisions of this chapter, direct the district engineer to include in

the final account such uncompleted items and pay therefor at the item

prices in the contract upon the contractor depositing with the

corporation securities equal to double the value of such uncompleted

work. The deposit may be used by the corporation to complete the

uncompleted portion of the contract and shall be returned to the

contractor if it completes the uncompleted portion within a specified

number of working days after it has been notified to proceed with the

work.

(c) No certificates approving or authorizing a partial or final

payment shall be made by the corporation until it is satisfied that all

laborers employed on the work have been paid for their services for the

last payroll period preceding the said partial or final payment. The

corporation may, if it deems necessary, require an affidavit to such

effect from the contractor or it may depend on any other source which it

deems proper for such information.

(d) Contracts in force at the date of the enactment of this

subdivision may, in the discretion of the corporation, be amended to

provide for the withholding and the payments contemplated by the

provisions of paragraph (a) of this subdivision, if the surety or

sureties upon the performance and labor and material bonds given by a

contractor upon any such contract shall consent in writing thereto.

(e) No such certificate authorizing or approving the first partial

payment or any final payment to a foreign contractor shall be made

unless such contractor shall furnish satisfactory proof that all taxes

due the commissioner of taxation and finance by such contractor under

the provisions of or pursuant to a law enacted pursuant to the authority

of article nine, nine-A, twelve-A, twenty-one, twenty-two, twenty-eight,

twenty-nine or thirty of the tax law have been paid. The certificate of

the commissioner of taxation and finance to the effect that all such

taxes have been paid shall be, for purpose of this paragraph, conclusive

proof of the payment of such taxes. The term "foreign contractor" as

used in this subdivision means, in the case of an individual, a person

who is not a resident of this state, in the case of a partnership, one

having one or more partners not a resident of this state, and in the

case of a corporation, one not organized under the laws of this state.

8. Contingencies and extra work. Whenever the corporation determines

that from any unforeseen cause the terms of any contract should be

altered to provide for contingencies or extra work, it may, if funds are

available for payment of the cost thereof, issue an order on contract

therefor to the contractor, a copy of which shall be filed with the

director of the budget and the state comptroller. The estimated

expenditure pursuant to the order on contract shall not increase the

total amount of the primary contract until the estimated expenditure

shall have been approved by the corporation and a duplicate of such

approval shall have been filed with the comptroller. No such extra work

shall be commenced or undertaken until the corporation has issued an

order on contract as herein provided.

When such order on contract provides for similar items of work or

materials which increase or decrease the itemized quantity provided for

in the primary contract, the price to be paid therefor shall not exceed

the unit bid price in the primary contract for such items. Agreed prices

for new items of work or materials may be incorporated in the order on

contract as the corporation may deem them to be just and fair and

beneficial to the state, including the corporation.

Whenever the corporation also determines that in the cases herein

provided it is impracticable for it to ascertain in advance the just and

fair prices to be paid by the state for new items of work or materials,

the order on contract therefor may provide for performance of the work

and the furnishing of the materials and equipment, in which event the

contractor shall keep and shall make available at all times to the

corporation such accounting records, data and procedure as may be

required by the corporation.