2023 New York Laws › HAY - Highway › Article 3 - State Highways › 40 - Authority of Commissioner of Transportation With Respect to the Performance of Contracts for Construction, Reconstruction or Improvement of State High

§  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.