2023 New York Laws › STF - State Finance › Article 9 - Contracts › 139 - Retained Percentages.

§  139.  Retained  percentages.  1.  A clause shall be inserted in all
  specifications or contracts hereafter made or awarded by the  state,  or
  by  any  public  department  or official thereof for work to be executed
  except as provided in section thirty-eight of the highway law  in  which
  the execution and delivery by the contractor of a performance bond shall
  be  required,  providing  that the state shall retain five per centum of
  the amount of each progress  payment  in  accordance  with  section  one
  hundred thirty-nine-f of the state finance law.
2.  The  clause  specified  in  subdivision one of this section may be
  inserted in the specifications of any uncompleted  public  contract,  of
  the  kind referred to in such subdivision, heretofore made or awarded by
  the state or by any public department, or  official  thereof,  with  the
  written  consent  of  the  commissioner  of  general services and of the
  official of the public department by whom such contract was awarded  and
  of  the contractor, provided the surety or sureties upon the performance
  and labor and material bonds given  by  the  contractor  upon  any  such
  contract shall consent in writing thereto and the retained percentage of
  moneys  earned  under  such  contract shall, after the insertion of such
  clause, be payable in accordance with the provisions set forth  in  said
  clause.
3.  Under  any contract heretofore or hereafter made or awarded by the
  state, or by any public department or official thereof,  the  contractor
  may,  from time to time, withdraw the whole or any portion of the amount
  retained from payments to the contractor pursuant to the  terms  of  the
  contract,  upon depositing with the state comptroller or, if so directed
  by the state comptroller, with a bank or trust company which has entered
  into an agreement with the state comptroller  to  provide  the  services
  which  the  state  comptroller  is  required  to perform pursuant to the
  provisions of this subdivision (1) United States treasury bonds,  United
  States   treasury   notes,   United   States  treasury  certificates  of
  indebtedness or United States treasury bills, (2) bonds or notes of  the
  state  of  New York, (3) bonds of any political subdivision in the state
  of New York, (4) bonds of the New York state housing finance agency,  or
  (5)  bonds of the New York state medical care facilities finance agency,
  of a market value not exceeding par, at the time of  deposit,  equal  to
  the amount so withdrawn. The state comptroller shall, from time to time,
  collect  all  interest  or  income  on the obligations so deposited, and
  shall pay the same,  when  and  as  collected,  to  the  contractor  who
  deposited  the  obligations.  If  the  deposit  be in the form of coupon
  bonds, the coupons as they respectively become  due  shall  be  clipped,
  presented  for payment, and the proceeds remitted to the contractor. The
  contractor shall not be entitled to interest or coupons or income on any
  of the deposited obligations, the proceeds of which shall  be  or  shall
  have  been used, or applied by the state, or by any public department or
  official thereof, pursuant to the  terms  of  the  contract.  The  state
  comptroller  or  any  such  bank or trust company when authorized by the
  state comptroller, may impose upon each contractor a service charge  for
  receiving,  handling  and  disbursing  obligations,  funds  and  coupons
  pursuant to the provisions of  this  subdivision  in  an  amount  to  be
  determined  by the state comptroller. The provisions of this section, as
  amended,  shall  supersede  the  provisions  of  any  act   inconsistent
  herewith.