N.Y. Education Law § 376: Letting of construction contracts

§ 376. Letting of construction contracts. 1. After May first, nineteen

hundred sixty-two, the fund as agent for the state university shall

construct, acquire, reconstruct, rehabilitate and improve, or cause to

be constructed, acquired, reconstructed, rehabilitated and improved, all

academic buildings, dormitories and other facilities to be constructed,

acquired, reconstructed, rehabilitated or improved at state-operated

institutions or statutory or contract colleges under the jurisdiction of

the state university, provided that legislation or appropriations

authorizing the same (i) have been requested by the state university

trustees, (ii) have been recommended by the governor in a budget bill

relating to a state fiscal year commencing on or after April first,

nineteen hundred sixty-two which specifies the facilities to be

constructed, acquired, reconstructed, rehabilitated or improved and the

total estimated cost for each such facility, and (iii) have been

approved by the legislature for such state fiscal year. With respect to

state fiscal years commencing on or after April first, nineteen hundred

sixty-three, the budget bill referred to in the preceding sentence shall

include in addition to the items stated the date when it is desired that

the construction, acquisition, reconstruction, rehabilitation or

improvement of each facility referred to therein be completed, and all

work for such purposes shall be performed in such manner as to assure

completion, so far as practicable, by the dates specified.

2. The fund may construct, acquire, reconstruct, rehabilitate and

improve such facilities, other than dormitories, by its own employees,

by agreement with a state retirement system or any state agency

authorized to perform such work, or by contract awarded pursuant to

subdivision eight of this section.

3. The fund may construct, acquire, reconstruct, rehabilitate and

improve dormitories only by agreement with the dormitory authority

established under title four of the public authorities law, except that

if the dormitory authority indicates its unwillingness to enter into

such an agreement with the fund for such purpose, the fund may

construct, acquire, reconstruct, rehabilitate and improve such

dormitories by its own employees, by agreement with a state retirement

system or any state agency (other than the dormitory authority)

authorized to perform such work, or by contract awarded pursuant to

subdivision eight of this section, subject, however, to the rights of

holders of outstanding bonds and notes of the dormitory authority with

respect to existing dormitories.

4. In the event that the dormitory authority enters into an agreement

with the fund for construction, acquisition, reconstruction,

rehabilitation or improvement of a facility for the state university, it

shall perform the work required or cause the work required to be

performed in accordance with the terms of such agreement either by its

own employees or by contract awarded pursuant to the provisions of title

four of the public authorities law. In the event any state agency other

than the dormitory authority enters into an agreement with the fund for

such work it shall perform the same either by its own employees or by

contract awarded pursuant to subdivision eight of this section.

5. No contract for the construction, acquisition, reconstruction,

rehabilitation or improvement of academic buildings, dormitories and

other facilities shall be awarded by any letting agency unless the state

university trustees shall have approved the architectural concept of the

facility to be constructed, acquired, reconstructed, rehabilitated or

improved and unless the fund shall have approved the proposed terms of

such contract, including the detailed plans and specifications for such

facility.

6. Each contract for the construction, acquisition, reconstruction,

rehabilitation or improvement of academic buildings, dormitories and

other facilities shall include a provision that the architect who

designed the facility, or an architect or engineer, or, for projects

authorized by section three hundred seventy-two-a of this article a

construction manager or other consultant, retained specifically for the

purpose of supervision, shall supervise the work to be performed through

to completion and shall see to it that the materials furnished and the

work performed are in accordance with the drawings, plans,

specifications and contract therefor.

7. Any letting agency may in its discretion award one contract for all

the work to be performed in construction, acquisition, reconstruction,

rehabilitation or improvement without separate and independent bidding

or letting on subdivisions of work to be performed.

8. * All contracts which are to be awarded pursuant to this

subdivision shall be awarded by public letting in accordance with the

following provisions, notwithstanding any contrary provision of section

one hundred thirty-five, one hundred thirty-six, one hundred thirty-nine

or one hundred forty of the state finance law or any other law,

provided, however, that where the estimated expense of any contract

which may be awarded pursuant to this subdivision is less than two

hundred fifty thousand dollars, a performance bond and a bond for the

payment of labor and material may, in the discretion of the fund, not be

required, and except that in the discretion of the fund, a contract may

be entered into for such purposes without public letting where the

estimated expense thereof is less than one hundred fifty thousand

dollars, or where in the judgment of the fund an emergency condition

exists as a result of damage to an existing academic building, dormitory

or other facility which has been caused by an act of God, fire or other

casualty, or any other unanticipated, sudden and unexpected occurrence,

that has resulted in damage to or a malfunction in an existing academic

building, dormitory or other facility and involves a pressing necessity

for immediate repair, reconstruction or maintenance in order to permit

the safe continuation of the use or function of such facility, or to

protect the facility or the life, health or safety of any person, and

the nature of the work is such that in the judgment of the fund it would

be impractical and against the public interest to have public letting;

provided, however, that the fund, prior to awarding a contract hereunder

because of an emergency condition notify the comptroller of its intent

to award such a contract:

* NB Effective until June 30, 2031

* All contracts which are to be awarded pursuant to this subdivision

shall be awarded by public letting in accordance with the following

provisions, notwithstanding any contrary provision of section one

hundred thirty-five, one hundred thirty-six, one hundred thirty-nine or

one hundred forty of the state finance law, provided, however, that

where the estimated expense of any contract which may be awarded

pursuant to this subdivision is less than fifty thousand dollars, a

performance bond and a bond for the payment of labor and material may,

in the discretion of the fund, not be required, and except that in the

discretion of the fund, a contract may be entered into for such purposes

without public letting where the estimated expense thereof is less than

twenty thousand dollars, or where in the judgment of the fund an

emergency condition exists as a result of damage to an existing academic

building, dormitory or other facility which has been caused by an act of

God, fire or other casualty, or any other unanticipated, sudden and

unexpected occurrence, that has resulted in damage to or a malfunction

in an existing academic building, dormitory or other facility and

involves a pressing necessity for immediate repair, reconstruction or

maintenance in order to permit the safe continuation of the use or

function of such facility, or to protect the facility or the life,

health or safety of any person, and the nature of the work is such that

in the judgment of the fund it would be impractical and against the

public interest to have public letting; provided, however, that the

fund, prior to awarding a contract hereunder because of an emergency

condition notify the comptroller of its intent to award such a contract:

* NB Effective June 30, 2031

a. If contracts are to be publicly let, the letting agency shall

advertise the invitation to bid in a newspaper published in the city of

Albany and in such other newspapers as will be most likely in its

opinion to give adequate notice to contractors of the work required and

of the invitation to bid provided, however, that where the estimated

expense of any contract which may be awarded pursuant to this

subdivision is less than one hundred fifty thousand dollars, the letting

agency may advertise the invitation to bid solely through the

procurement opportunities newsletter published pursuant to section one

hundred forty-two of the economic development law. The invitation to bid

shall contain such information as the letting agency shall deem

appropriate and a statement of the time and place where all bids

received pursuant to such notice will be publicly opened and read.

b. The letting agency shall not award any contract after public

bidding except to the lowest bidder who in its opinion is qualified to

perform the work required and is responsible and reliable. The letting

agency may, however, reject any or all bids, again advertise for bids,

or waive any informality in a bid if it believes that the public

interest will be promoted thereby.

c. The invitation to bid and the contract awarded shall contain such

other terms and conditions, and such provisions for penalties, as the

letting agency may deem desirable.

* d. Any contract awarded pursuant to this subdivision shall contain a

clause that the contract shall be deemed executory to the extent of the

moneys available and that no liability shall be incurred by the fund

beyond the moneys available therefor.

* NB Effective until June 30, 2031

* d. The form of any contract awarded pursuant to this subdivision

shall be approved by the attorney general and by the comptroller and

shall contain a clause that the contract shall be deemed executory to

the extent of the moneys available and that no liability shall be

incurred by the fund beyond the moneys available therefor.

* NB Effective June 30, 2031

e. The letting agency shall require such deposits, bonds and security

in connection with the submission of bids, the award of contracts and

the performance of work as it shall determine to be in the public

interest and for the protection of the state, the state university, the

fund and the letting agency.

f. Notwithstanding the provisions of any other law to the contrary,

all contracts for public work awarded by the state university

construction fund pursuant to this subdivision shall be in accordance

with section one hundred thirty-nine-f of the state finance law.

9. No payments shall be made by the comptroller from appropriated

moneys on account of any construction contract for a facility until the

bills or estimates presented for such payment shall have been duly

certified to be correct (i) by the chairman of the fund or by an officer

of the fund duly designated for that purpose, or (ii) if the dormitory

authority is the letting agency, by the chairman thereof or by an

officer or employee thereof duly designated for that purpose.

10. Whenever the fund deems it necessary as a result of or in

connection with the construction, acquisition, reconstruction,

rehabilitation and improvement of any academic building, dormitory, and

other facility, to provide for the removal, relocation, replacement,

reconstruction, repair or extension by a municipality, county, town,

village or public service corporation, of water mains, sewer pipes,

telephone lines and other facilities maintained for public use and owned

by such municipality, county, town, village or public service

corporation, it shall have the power to contract with such municipality,

county, town, village or public service corporation and such

municipality, county, town, village or public service corporation shall

have the power to contract with the fund, for such removal, relocation,

replacement, reconstruction, repair or extension. The contract for such

removal, relocation, replacement, reconstruction, repair or extension

may, at the discretion of the fund, be entered into by the fund without

the necessity of public bidding or public letting. Upon the completion

and acceptance by the fund of the performance of such removal,

relocation, replacement, reconstruction, repair or extension, said water

mains, sewer pipes, telephone lines and other facilities shall be

maintained by the municipality, county, town, village or public service

corporation, as the case may be.

11. (a) Each contract involving the awarding of a large-scale

construction project shall require the use of a project labor agreement,

as defined in subdivision one of section two hundred twenty-two of the

labor law, for all contractors and subcontractors on the project,

consistent with paragraph (a) of subdivision two of section two hundred

twenty-two of the labor law, except as otherwise provided in paragraph

(b) of this subdivision.

(b) The fund shall not be required to use a project labor agreement

where it determines that such agreement would be inconsistent with

paragraph (a) of subdivision two of section two hundred twenty-two of

the labor law or state competitive bidding laws. Any such determination

shall be provided in a written explanation for a particular project

contract by the solicitation date. The goals and requirements of article

fifteen-A of the executive law and article three of the veteran services

law shall apply to all project labor agreements.

(c) An agency may require the use of a project labor agreement on

construction projects where the total cost to the fund is less than that

for a large-scale construction project, if consistent with paragraph (a)

of subdivision two of section two hundred twenty-two of the labor law.