N.Y. HAY Law § 40 — New York Code / Act HAY / Article 3 / Section 40
Authority of commissioner of transportation with respect to the performance of contracts for construction, reconstruction or improvement ...
Status: in_force

§ 40. Authority of commissioner of transportation with respect to the\nperformance of contracts for construction, reconstruction or improvement\nof state highways, highway projects under the supervision of the\ndepartment of transportation, bridges, grade crossing eliminations and\nstream channel improvements; completion of work by surety; cancellation\nof contract by commissioner of transportation.\n  The performance of every contract for the construction, reconstruction\nor improvement of a state highway, bridge, grade crossing elimination or\nstream channel improvement shall be under the supervision and control of\nthe commissioner of transportation, and it shall be his duty to see that\nevery such contract is performed in accordance with the provisions of\nthe contract and with the plans and specifications forming a part\nthereof. If the commissioner of transportation shall determine that the\nwork upon any contract for the construction, improvement, maintenance,\nrepair or reconstruction, of a state highway, other highway under the\nsupervision of the department of transportation, bridge, grade crossing\nelimination or stream channel improvement, is not being performed\naccording to the contract or for the best interest of the state, the\nexecution of the work by the contractor may be temporarily suspended by\nthe commissioner of transportation, who may then proceed with the work\nunder his own direction in such manner as will accord with the contract\nspecifications and be for the best interests of the state; or he may\nterminate the contractor's employment under the contract while it is in\nprogress, and thereupon, proceed with the work, in affirmance of the\ncontract, by contract negotiated or publicly let, by the use of his own\nforces, by calling upon the surety to complete the work in accordance\nwith the plans and specifications or by a combination of any such\nmethods; or he may cancel the contract and either readvertise and relet\nas provided in section thirty-eight of this chapter, or complete the\nwork under his own direction in such manner as will accord with the\ncontract specifications and be for the best interests of the state. Any\nexcess in the cost of completing the contract beyond the price for which\nit was originally awarded shall be charged to and paid by the contractor\nfailing to perform the work or his surety. Where the estimate for the\ncompletion of a cancelled contract or defaulted contract, or a contract\nbeing completed pursuant to the provisions of this section, is in excess\nof the balance of the amount originally set aside by the state to\nprovide for the construction, reconstruction, improvement, maintenance\nor repair of such highway, or other construction project, together with\nany amount appropriated by the county, town or village for such\nimprovement, the commissioner of transportation is authorized to set\naside from any funds available for the construction or reconstruction of\nstate highways, highway projects under the supervision of the department\nof transportation, bridges, grade crossing eliminations and stream\nchannel improvements, an additional sum equal to such excess including\nthe proportionate share of the county, town or village; and to pay such\nexcess in the first instance, including the share of the county, town or\nvillage, pending recovery of excess cost from the defaulting contractor\nor his surety, as provided in this section. In the event that the state\nfails to recover from the defaulting contractor or surety the excess\ncost in completing the contract over the amount for which it was\noriginally awarded, the county, town, or village shall pay to the state\nupon the demand of the commissioner of transportation the same\nproportion of such excess cost as was originally appropriated by the\ncounty, town or village, for the improvement, and the board of\nsupervisors, town board or village trustees shall be subject to mandamus\nproceedings by the attorney general to enforce the payment of the share\nof the county, town or village of such excess cost. Every contract for\nthe construction, improvement, maintenance, repair or reconstruction of\na state highway, highway project under the supervision of the department\nof transportation, bridge, grade crossing elimination or stream channel\nimprovement, shall reserve to the commissioner of transportation the\nright to suspend or cancel the contract as above provided, and to\ncomplete the work thereunder by contract negotiated or publicly let or\nby the use of his own forces, or affirm the contract and thereupon to\ncomplete the work thereunder according to any of the methods above\nprovided as the commissioner of transportation may determine.\n