2023 New York Laws › EDN - Education › Title 1 - General Provisions › Article 8-A - State University Construction Fund › 376 - Letting of Construction Contracts.

§ 376. Letting of construction contracts. 1. After May first, nineteen
hundred  sixty-two,  the  fund  as  agent for the state university shall
construct, acquire, reconstruct, rehabilitate and improve, or  cause  to
be constructed, acquired, reconstructed, rehabilitated and improved, all
academic  buildings, dormitories and other facilities to be constructed,
acquired, reconstructed, rehabilitated  or  improved  at  state-operated
institutions or statutory or contract colleges under the jurisdiction of
the  state  university,  provided  that  legislation  or  appropriations
authorizing the same (i) have been requested  by  the  state  university
trustees,  (ii)  have  been recommended by the governor in a budget bill
relating to a state fiscal year commencing  on  or  after  April  first,
nineteen   hundred  sixty-two  which  specifies  the  facilities  to  be
constructed, acquired, reconstructed, rehabilitated or improved and  the
total  estimated  cost  for  each  such  facility,  and  (iii) have been
approved by the legislature for such state fiscal year. With respect  to
state  fiscal years commencing on or after April first, nineteen hundred
sixty-three, the budget bill referred to in the preceding sentence shall
include in addition to the items stated the date when it is desired that
the  construction,  acquisition,   reconstruction,   rehabilitation   or
improvement  of  each facility referred to therein be completed, and all
work for such purposes shall be performed in such manner  as  to  assure
completion, so far as practicable, by the dates specified.
2.  The  fund  may  construct,  acquire, reconstruct, rehabilitate and
improve such facilities, other than dormitories, by its  own  employees,
by  agreement  with  a  state  retirement  system  or  any  state agency
authorized to perform such work, or  by  contract  awarded  pursuant  to
subdivision eight of this section.
3.  The  fund  may  construct,  acquire, reconstruct, rehabilitate and
improve dormitories only  by  agreement  with  the  dormitory  authority
established  under title four of the public authorities law, except that
if the dormitory authority indicates its  unwillingness  to  enter  into
such  an  agreement  with  the  fund  for  such  purpose,  the  fund may
construct,  acquire,  reconstruct,   rehabilitate   and   improve   such
dormitories  by  its own employees, by agreement with a state retirement
system  or  any  state  agency  (other  than  the  dormitory  authority)
authorized  to  perform  such  work,  or by contract awarded pursuant to
subdivision eight of this section, subject, however, to  the  rights  of
holders  of  outstanding bonds and notes of the dormitory authority with
respect to existing dormitories.
4. In the event that the dormitory authority enters into an  agreement
with   the   fund   for   construction,   acquisition,   reconstruction,
rehabilitation or improvement of a facility for the state university, it
shall perform the work  required  or  cause  the  work  required  to  be
performed  in  accordance with the terms of such agreement either by its
own employees or by contract awarded pursuant to the provisions of title
four of the public authorities law. In the event any state agency  other
than  the dormitory authority enters into an agreement with the fund for
such work it shall perform the same either by its own  employees  or  by
contract awarded pursuant to subdivision eight of this section.
5.  No  contract  for  the  construction, acquisition, reconstruction,
rehabilitation or improvement of  academic  buildings,  dormitories  and
other facilities shall be awarded by any letting agency unless the state
university trustees shall have approved the architectural concept of the
facility  to  be  constructed, acquired, reconstructed, rehabilitated or
improved and unless the fund shall have approved the proposed  terms  of
such  contract, including the detailed plans and specifications for such
facility.
6. Each contract for the  construction,  acquisition,  reconstruction,
rehabilitation  or  improvement  of  academic buildings, dormitories and
other facilities shall  include  a  provision  that  the  architect  who
designed  the  facility,  or  an architect or engineer, or, for projects
authorized  by  section  three  hundred  seventy-two-a of this article a
construction manager or other consultant, retained specifically for  the
purpose of supervision, shall supervise the work to be performed through
to  completion  and shall see to it that the materials furnished and the
work  performed  are   in   accordance   with   the   drawings,   plans,
specifications and contract therefor.
7. Any letting agency may in its discretion award one contract for all
the  work  to be performed in construction, acquisition, reconstruction,
rehabilitation or improvement without separate and  independent  bidding
or letting on subdivisions of work to be performed.
8.   * All  contracts  which  are  to  be  awarded  pursuant  to  this
subdivision shall be awarded by public letting in  accordance  with  the
following  provisions, notwithstanding any contrary provision of section
one hundred thirty-five, one hundred thirty-six, one hundred thirty-nine
or one hundred forty  of  the  state  finance  law  or  any  other  law,
provided,  however,  that  where  the  estimated expense of any contract
which may be awarded pursuant to  this  subdivision  is  less  than  two
hundred  fifty  thousand  dollars, a performance bond and a bond for the
payment of labor and material may, in the discretion of the fund, not be
required, and except that in the discretion of the fund, a contract  may
be  entered  into  for  such  purposes  without public letting where the
estimated expense thereof is less than twenty thousand dollars, or where
in the judgment of the fund an emergency condition exists as a result of
damage to an existing academic building,  dormitory  or  other  facility
which  has  been caused by an act of God, fire or other casualty, or any
other unanticipated, sudden and unexpected occurrence, that has resulted
in damage  to  or  a  malfunction  in  an  existing  academic  building,
dormitory  or  other  facility  and  involves  a  pressing necessity for
immediate repair, reconstruction or maintenance in order to  permit  the
safe continuation of the use or function of such facility, or to protect
the facility or the life, health or safety of any person, and the nature
of  the  work  is  such  that  in  the  judgment of the fund it would be
impractical and against the public  interest  to  have  public  letting;
provided, however, that the fund, prior to awarding a contract hereunder
because  of  an emergency condition notify the comptroller of its intent
to award such a contract:
* NB Effective until June 30, 2026
* All contracts which are to be awarded pursuant to  this  subdivision
shall  be  awarded  by  public  letting in accordance with the following
provisions,  notwithstanding  any  contrary  provision  of  section  one
hundred  thirty-five, one hundred thirty-six, one hundred thirty-nine or
one hundred forty of the state  finance  law,  provided,  however,  that
where  the  estimated  expense  of  any  contract  which  may be awarded
pursuant to this subdivision is less  than  fifty  thousand  dollars,  a
performance  bond  and a bond for the payment of labor and material may,
in the discretion of the fund, not be required, and except that  in  the
discretion of the fund, a contract may be entered into for such purposes
without  public letting where the estimated expense thereof is less than
twenty thousand dollars, or  where  in  the  judgment  of  the  fund  an
emergency condition exists as a result of damage to an existing academic
building, dormitory or other facility which has been caused by an act of
God,  fire  or  other  casualty,  or any other unanticipated, sudden and
unexpected occurrence, that has resulted in damage to or  a  malfunction
in  an  existing  academic  building,  dormitory  or  other facility and

involves a pressing necessity for immediate  repair,  reconstruction  or
maintenance  in  order  to  permit  the  safe continuation of the use or
function of such facility, or to  protect  the  facility  or  the  life,
health  or safety of any person, and the nature of the work is such that
in the judgment of the fund it would  be  impractical  and  against  the
public  interest  to  have  public  letting; provided, however, that the
fund, prior to awarding a contract hereunder  because  of  an  emergency
condition notify the comptroller of its intent to award such a contract:
* NB Effective June 30, 2026
a.  If  contracts  are  to  be  publicly let, the letting agency shall
advertise the invitation to bid in a newspaper published in the city  of
Albany  and  in  such  other  newspapers  as  will be most likely in its
opinion to give adequate notice to contractors of the work required  and
of  the  invitation  to  bid provided, however, that where the estimated
expense  of  any  contract  which  may  be  awarded  pursuant  to   this
subdivision  is less than fifty thousand dollars, the letting agency may
advertise  the  invitation  to  bid  solely  through   the   procurement
opportunities  newsletter  published  pursuant  to  section  one hundred
forty-two of the economic development law. The invitation to  bid  shall
contain  such  information  as the letting agency shall deem appropriate
and a statement of the time and place where all bids  received  pursuant
to such notice will be publicly opened and read.
b.  The  letting  agency  shall  not  award  any contract after public
bidding except to the lowest bidder who in its opinion is  qualified  to
perform  the  work required and is responsible and reliable. The letting
agency may, however, reject any or all bids, again advertise  for  bids,
or  waive  any  informality  in  a  bid  if  it believes that the public
interest will be promoted thereby.
c. The invitation to bid and the contract awarded shall  contain  such
other  terms  and  conditions, and such provisions for penalties, as the
letting agency may deem desirable.
* d. Any contract awarded pursuant to this subdivision shall contain a
clause that the contract shall be deemed executory to the extent of  the
moneys  available  and  that  no liability shall be incurred by the fund
beyond the moneys available therefor.
* NB Effective until June 30, 2026
* d. The form of any contract awarded  pursuant  to  this  subdivision
shall  be  approved  by  the attorney general and by the comptroller and
shall contain a clause that the contract shall be  deemed  executory  to
the  extent  of  the  moneys  available  and  that no liability shall be
incurred by the fund beyond the moneys available therefor.
* NB Effective June 30, 2026
e. The letting agency shall require such deposits, bonds and  security
in  connection  with  the submission of bids, the award of contracts and
the performance of work as it  shall  determine  to  be  in  the  public
interest  and for the protection of the state, the state university, the
fund and the letting agency.
f. Notwithstanding the provisions of any other law  to  the  contrary,
all   contracts   for  public  work  awarded  by  the  state  university
construction fund pursuant to this subdivision shall  be  in  accordance
with section one hundred thirty-nine-f of the state finance law.
9.  No  payments  shall  be  made by the comptroller from appropriated
moneys on account of any construction contract for a facility until  the
bills  or  estimates  presented  for  such  payment shall have been duly
certified to be correct (i) by the chairman of the fund or by an officer
of the fund duly designated for that purpose, or (ii) if  the  dormitory
authority  is  the  letting  agency,  by  the  chairman thereof or by an
officer or employee thereof duly designated for that purpose.
10. Whenever the fund  deems  it  necessary  as  a  result  of  or  in
connection   with   the   construction,   acquisition,   reconstruction,
rehabilitation and improvement of any academic building, dormitory,  and
other  facility,  to  provide  for the removal, relocation, replacement,
reconstruction,  repair  or  extension  by a municipality, county, town,
village or public service corporation,  of  water  mains,  sewer  pipes,
telephone lines and other facilities maintained for public use and owned
by   such   municipality,   county,  town,  village  or  public  service
corporation, it shall have the power to contract with such municipality,
county,  town,  village  or  public   service   corporation   and   such
municipality,  county, town, village or public service corporation shall
have the power to contract with the fund, for such removal,  relocation,
replacement,  reconstruction, repair or extension. The contract for such
removal, relocation, replacement, reconstruction,  repair  or  extension
may,  at the discretion of the fund, be entered into by the fund without
the necessity of public bidding or public letting. Upon  the  completion
and  acceptance  by  the  fund  of  the  performance  of  such  removal,
relocation, replacement, reconstruction, repair or extension, said water
mains, sewer pipes,  telephone  lines  and  other  facilities  shall  be
maintained  by the municipality, county, town, village or public service
corporation, as the case may be.
* 11. (a) Each  contract  involving  the  awarding  of  a  large-scale
construction project shall require the use of a project labor agreement,
as  defined  in subdivision one of section two hundred twenty-two of the
labor law, for  all  contractors  and  subcontractors  on  the  project,
consistent  with paragraph (a) of subdivision two of section two hundred
twenty-two of the labor law, except as otherwise provided  in  paragraph
(b) of this subdivision.
(b)  The  fund  shall not be required to use a project labor agreement
where it determines that  such  agreement  would  be  inconsistent  with
paragraph  (a)  of  subdivision two of section two hundred twenty-two of
the labor law or state competitive bidding laws. Any such  determination
shall  be  provided  in  a  written explanation for a particular project
contract by the solicitation date. The goals and requirements of article
fifteen-A of the executive law and article three of the veteran services
law shall apply to all project labor agreements.
(c) An agency may require the use of  a  project  labor  agreement  on
construction projects where the total cost to the fund is less than that
for a large-scale construction project, if consistent with paragraph (a)
of subdivision two of section two hundred twenty-two of the labor law.
* NB Effective January 1, 2025