N.Y. Public Authorities Law § 1735: Certain contracts of the authority

* § 1735. Certain contracts of the authority. 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 twenty-eight, 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 one hundred

fifty percent of 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 one hundred fifty percent of 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. Notwithstanding the

foregoing, in lieu of withholding such amount or amounts in dispute, the

contractor may post a bond or other form of undertaking guaranteeing

payment of such disputed amounts. 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. In the event the authority does not withhold the

required amounts within sixty days after the written notification from

the subcontractor regarding failure of the contractor to make payment,

the subcontractor may file a lien under article two of the lien law as

the sole remedy in lieu of the remedy provided under this subdivision.

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, 2028