NY Hwy L § 38 (2021)
2021 New York Laws HAY - Highway Article 3 - State Highways 38 - Contracts for Construction or Improvement of Highways.

§  38.  Contracts  for  construction or improvement of highways. State highways  shall  be  constructed  or  improved  by  contract.  Upon  the completion  and  final  adoption or approval, as provided by law, of the plans and specifications for the construction or improvement of a  state highway, contracts therefor shall be executed as provided herein.   1. Advertising for proposals. The commissioner of transportation shall advertise  for  proposals  for  the  construction or improvement of such highways or sections thereof according to the plans  and  specifications prepared  therefor.  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 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 commissioner of transportation 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 in the county in which such highway or section thereof is to be constructed or improved, and in such other newspapers as the commissioner of transportation may designate. 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 commissioner of transportation. 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 commissioner of transportation 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 commissioner  of  transportation 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 either a certified check or bank cashier's check for the amount of the bid deposit, to be fixed by  the  commissioner  of transportation  and specified in the advertisement for proposals or such other security from the bidder as may be acceptable to the  commissioner of  transportation. The checks of the two low bidders shall be deposited by the commissioner of transportation in a  special  account.  Provided, however,  that  if  prior  to  or  upon  receipt  of  said checks by the commissioner of transportation a bidder  who  is  one  of  the  two  low bidders  shall  have  duly  filed  a  bond  as  hereinafter provided the commissioner of transportation 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  commissioner  of transportation. 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  commissioner  of transportation the contract and the bond or bonds, if any, 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  commissioner  of transportation,  and the second low bidder, as a matter of right, may at any time after the opening of the respective proposals,  file  with  the commissioner  of  transportation  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 commissioner of transportation, with sufficient sureties, to be approved by the commissioner of transportation, 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  provision,  the commissioner   of   transportation  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 if required, 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 commissioner of transportation with the commissioner of taxation and finance to  the  credit  of  the  general  fund.  Provided, however,  that although a performance bond or a payment bond or both may be accepted from a bidder  by  the  commissioner  of  transportation,  a requirement  to  furnish  such bond or bonds may be dispensed with where the aggregate gross sums of the contracts to be awarded for the  project is  under  fifty  thousand  dollars and provided further, that in a case where a single contract is issued for a project which is not subject  to the   multiple  contract  award  requirements  of  section  one  hundred thirty-five of the state finance law, such requirements may be dispensed with where the commissioner finds it to be in the  public  interest  and where  the  aggregate amount of the contract awarded or to be awarded is less than two hundred fifty thousand dollars. The gross  sums  indicated on  the  proposals  when opened shall be publicly read. The commissioner 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.   2-a.  Contracts;  rubber-modified  asphalt  materials.  In  regard  to contracts  for construction or improvement of highways incorporating the use of asphalt construction materials after May first, nineteen  hundred eighty-nine,  the  commissioner  may  require  that the paving materials incorporate a percentage of scrap  rubber  derived  from  motor  vehicle tires discarded in the state. Such percentage of rubber additives may be established  by  the  commissioner  subsequent  to  the  completion of a rubber-modified asphalt  pilot  project  to  be  conducted  pursuant  to section twenty-three of this chapter.   3.   Award   of  contracts.  The  contract  for  the  construction  or improvement of such highway or section thereof 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 thereof. The lowest bid shall be determined by the  commissioner  of  transportation  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  commissioner  of  transportation  may reject  any  or  all  proposals  and  may advertise for new proposals as provided in this section, if, in his opinion, the best interests of  the state will thereby be promoted.    5.   Form  of  contract.  The  commissioner  of  transportation  shall prescribe the form of contract and may include therein such  matters  as he may deem advantageous to the state.   6.  Bond  of  contractor.  Each  contractor,  before  entering  into a contract for such construction or improvement, shall execute a  bond  in the   form  prescribed  by  the  commissioner  of  transportation,  with sufficient  sureties,  to   be   approved   by   the   commissioner   of transportation,  conditioned that he will perform the work in accordance with the terms of the contract and the  plans  and  specifications,  and that  he  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 highway is accepted.   7.  Payments  on contract, state taxes. The contract shall provide for partial payments as the work progresses as hereinafter provided:  (c) Whenever a contract shall in the judgment of the  commissioner  of transportation   be   substantially   completed,   the  commissioner  of transportation may, provided the regional director  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 regional director 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  commissioner  of transportation a certified check drawn upon a legally incorporated bank or  trust  company  equal  to  at least double the value of such uncompleted work or, with the approval of the  state comptroller, securities as are listed in subdivision three of section one hundred thirty-nine of the state finance law,  equal  to  at least double the value of such uncompleted work. The deposit may be used by  the  commissioner  of  transportation  to  complete  the uncompleted portion of the contract and shall be returned to the  contractor  if  he completes  the  uncompleted portion within a specified number of working days after he has been notified to proceed with the work.  (d) No certificates  approving  or  authorizing  a  partial  or  final payment  shall be made by the commissioner of transportation until he 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  commissioner  of  transportation  may, if he deems necessary, require an affidavit to such effect from the contractor or he may  depend  on  any  other  source  which  he  deems  proper  for  such information.  (e)  No  such  certificate  approving or authorizing 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 state tax commission by such contractor, under the provisions of or pursuant to a law enacted pursuant to the authority of article  nine, nine-a,    twelve-a,   sixteen,   sixteen-a,   twenty-one,   twenty-two, twenty-three, twenty-eight, twenty-nine or thirty  of  the  tax  law  or article two-E of the general city law have been paid. The certificate of the  state  tax  commission  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.  (f)  Payment  of  the  moneys  due  under  a contract shall be made in accordance with the provisions of article eleven-A of the state  finance  law,  provided  failure  to make such payment, as heretofore prescribed, shall not be due to any fault, neglect, or omission on the part  of  the contractor  or by reason of the filing of any lien, attachment, or other legal process against the money due said contractor.  (g)   For  the  purpose  of  making  a  final  payment  on  a  highway construction contract, the date to be used for determining  the  receipt of  an  invoice in subdivision two of section one hundred seventy-nine-f of the state finance law shall be the date on which  the  contract  work has been accepted as completed by the commissioner of transportation.   8.   Contingencies  and  extra  work.  Whenever  the  commissioner  of transportation determines that from any unforeseen cause  the  terms  of any  contract  should  be  altered to provide for contingencies or extra work, he 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  commissioner  of transportation  and  a  duplicate of such approval shall have been filed with  the  comptroller.  No  such  extra  work  shall  be  commenced  or undertaken  until the commissioner of transportation 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 commissioner of transportation may deem them to be  just and fair and beneficial to the state.   Whenever  the  commissioner  of transportation also determines that in the cases herein provided it is impracticable for him  to  ascertain  in advance the just and fair price 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  commissioner  of  transportation  such accounting  records,  data  and  procedure  as  may  be  required by the commissioner of transportation. An estimate of the value  of  such  work and  the furnishing of materials and equipment shall be submitted by the commissioner of transportation to the state comptroller  who  is  hereby empowered  to approve such estimate. Partial and final payments shall be made upon proper records and data itemized as hereinbefore indicated.   Before any final accounting shall  become  effective,  a  supplemental contract and final agreement shall first be approved by the comptroller, and  filed  in  his  office.  The  director  of  the  budget  may at his discretion require the commissioner of transportation to submit periodic summaries of and reports on the scope and status of highway projects  in such form and at such intervals as he may require, including any and all contract documents.   9.  Adjustment  of  disputes.  Notwithstanding  the  provisions of any general or special law, and in case of a dispute  between  a  contractor and  the  commissioner  of  transportation  concerning questions of fact which may arise under a contract, the contractor may, at any time before the  final  estimate  is  rendered,   petition   the   commissioner   of transportation  for  a  hearing  in  relation  thereto, provided (1) the amount involved therein as shown by such petition does not  exceed  five thousand  dollars  or  five  per  centum  of  the  final estimate of the completed  contract,  whichever  is  greater,  (2)  the  contractor  has  complied  with  all provisions of the contract that relate to the filing of any protest and also of any statement concerning  the  subject-matter thereof,  and  (3) the contractor shall expressly agree in such petition that  any  determination  as  hereinafter  provided,  shall be final and conclusive  upon  all  parties   thereto.   If   the   commissioner   of transportation grants such petition, he shall, within a reasonable time, mail  a  notice  to the contractor which shall specify the place of such hearing and the date thereof which shall be within thirty days after the mailing of  such  notice.  Within  ten  days  after  such  mailing,  the commissioner  of  transportation  shall also mail a copy of the petition and of such notice of hearing to the attorney general, who together with the commissioner of transportation, shall constitute a board to (a) hear such dispute, either personally or by any  duly  authorized  officer  or employee  of  their respective departments, and (b) determine the issues thereof.   Any amount fixed in the determination to be  paid  to  the  contractor shall  be  deemed  to  be  a  special item to be incorporated in a final supplemental contract and shall be payable  from  monies  available  for construction  and  reconstruction  of  state  highways, on the audit and warrant of the comptroller on vouchers approved by the  commissioner  of transportation.