N.Y. Highway Law § 40: Authority of commissioner of transportation with respect to the performance of contracts for construction, reconstruction or improvement ...

§ 40. Authority of commissioner of transportation with respect to the

performance of contracts for construction, reconstruction or improvement

of state highways, highway projects under the supervision of the

department of transportation, bridges, grade crossing eliminations and

stream channel improvements; completion of work by surety; cancellation

of contract by commissioner of transportation.

The performance of every contract for the construction, reconstruction

or improvement of a state highway, bridge, grade crossing elimination or

stream channel improvement shall be under the supervision and control of

the commissioner of transportation, and it shall be his duty to see that

every such contract is performed in accordance with the provisions of

the contract and with the plans and specifications forming a part

thereof. If the commissioner of transportation shall determine that the

work upon any contract for the construction, improvement, maintenance,

repair or reconstruction, of a state highway, other highway under the

supervision of the department of transportation, bridge, grade crossing

elimination or stream channel improvement, is not being performed

according to the contract or for the best interest of the state, the

execution of the work by the contractor may be temporarily suspended by

the commissioner of transportation, who may then proceed with the work

under his own direction in such manner as will accord with the contract

specifications and be for the best interests of the state; or he may

terminate the contractor's employment under the contract while it is in

progress, and thereupon, proceed with the work, in affirmance of the

contract, by contract negotiated or publicly let, by the use of his own

forces, by calling upon the surety to complete the work in accordance

with the plans and specifications or by a combination of any such

methods; or he may cancel the contract and either readvertise and relet

as provided in section thirty-eight of this chapter, or complete the

work under his own direction in such manner as will accord with the

contract specifications and be for the best interests of the state. Any

excess in the cost of completing the contract beyond the price for which

it was originally awarded shall be charged to and paid by the contractor

failing to perform the work or his surety. Where the estimate for the

completion of a cancelled contract or defaulted contract, or a contract

being completed pursuant to the provisions of this section, is in excess

of the balance of the amount originally set aside by the state to

provide for the construction, reconstruction, improvement, maintenance

or repair of such highway, or other construction project, together with

any amount appropriated by the county, town or village for such

improvement, the commissioner of transportation is authorized to set

aside from any funds available for the construction or reconstruction of

state highways, highway projects under the supervision of the department

of transportation, bridges, grade crossing eliminations and stream

channel improvements, an additional sum equal to such excess including

the proportionate share of the county, town or village; and to pay such

excess in the first instance, including the share of the county, town or

village, pending recovery of excess cost from the defaulting contractor

or his surety, as provided in this section. In the event that the state

fails to recover from the defaulting contractor or surety the excess

cost in completing the contract over the amount for which it was

originally awarded, the county, town, or village shall pay to the state

upon the demand of the commissioner of transportation the same

proportion of such excess cost as was originally appropriated by the

county, town or village, for the improvement, and the board of

supervisors, town board or village trustees shall be subject to mandamus

proceedings by the attorney general to enforce the payment of the share

of the county, town or village of such excess cost. Every contract for

the construction, improvement, maintenance, repair or reconstruction of

a state highway, highway project under the supervision of the department

of transportation, bridge, grade crossing elimination or stream channel

improvement, shall reserve to the commissioner of transportation the

right to suspend or cancel the contract as above provided, and to

complete the work thereunder by contract negotiated or publicly let or

by the use of his own forces, or affirm the contract and thereupon to

complete the work thereunder according to any of the methods above

provided as the commissioner of transportation may determine.