2023 New York Laws › CAL - Canal › Article 4 - Canal Contracts › 30 - Contracts for Improvement, Maintenance or Repair of the Canal System.

§  30.  Contracts  for improvement, maintenance or repair of the canal
system. Upon  the  completion  and  final  approval  of  the  plans  and
specifications  for  the improvement, maintenance or repair to the canal
system, contracts therefor shall be executed as provided herein.
1. Advertising for proposals.  The  corporation  shall  advertise  for
proposals in accordance with plans and specifications prepared by it for
such  improvement,  maintenance  or  repair  of  the canal system as the
corporation deems it  expedient  to  have  performed  by  contract.  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 the
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 corporation 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 at the
county seat of the county in which such canal work is  to  be  performed
and  in  such  other  newspapers as the corporation may designate. If no
newspaper is published at such county seat, then the publication of  the
advertisement shall be in such newspaper or newspapers within the county
as  the  corporation  may  select.  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
corporation. 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 corporation 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
corporation  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 a certified check or bank cashier's check for the amount of the
bid deposit, to be  fixed  by  the  corporation  and  specified  in  the
advertisement  for proposals. The checks of the two low bidders shall be
deposited by the corporation in a special  account.  Provided,  however,
that  if  prior  to  or upon receipt of said checks by the corporation a
bidder who is one of the two low bidders shall have duly filed a bond as
hereinafter provided, the corporation 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 corporation. 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 corporation
the contract and the bond or bonds 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
corporation, and the second low bidder, as a matter of right, may at any
time  after  the  opening  of  the  respective  proposals, file with the

corporation 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 corporation, with sufficient
sureties,  to  be approved by the corporation, 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
provisions, the corporation 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, 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 corporation with the commissioner of
taxation  and  finance to the credit of the general fund. The gross sums
indicated on the proposals when  opened  shall  be  publicly  read.  The
corporation  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.
3. Award of contract. The contract for the improvement, maintenance or
repair  of  any  part of the canal system 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 therefor. The lowest bid shall  be  determined
by  the  corporation  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  corporation  may reject any or all
proposals and may advertise  for  new  proposals  as  provided  in  this
section,  if,  in  its  opinion,  the best interest of the state and the
corporation will thereby be promoted.
5. Form of contract. The  corporation  shall  prescribe  the  form  of
contract  and  may include therein such matters the corporation may deem
advantageous to the state and the corporation.
6. Bond of contractor. Each contractor before entering into a contract
for such improvement, maintenance or repair of the  canal  system  shall
execute  a  bond  in  the  form  prescribed  by  the  corporation,  with
sufficient sureties, to be approved by  the  corporation,  on  condition
that  it  will  perform  the  work  in  accordance with the terms of the
contract and the plans and specifications, and that it 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 work is finally accepted.
7.  Payments on contracts, state taxes. The contract shall provide for
partial payments as the work progresses as hereinafter provided:
(a) Ten per centum shall be retained from  each  progress  payment  or
estimate  until  the  contract work is fifty per centum completed, after
which no further moneys shall be retained from any progress payments  or
estimates  paid  thereafter,  and when the entire contract work has been
completed and accepted, the corporation shall, pending  the  payment  of
the  final estimate, pay not to exceed fifty per centum of the amount of
the retained percentage.
(b) Whenever in the judgment of the corporation the withholding of the
retained percentage on account of the  closing  of  the  working  season

would  be  an injustice to the contractor, the corporation may, provided
the district engineer 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 district engineer 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
corporation securities equal to double the  value  of  such  uncompleted
work.  The  deposit  may  be  used  by  the  corporation to complete the
uncompleted portion of  the  contract  and  shall  be  returned  to  the
contractor  if  it  completes the uncompleted portion within a specified
number of working days after it has been notified to  proceed  with  the
work.
(c)  No  certificates  approving  or  authorizing  a  partial or final
payment shall be made by the corporation until it 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
corporation  may,  if  it  deems necessary, require an affidavit to such
effect from the contractor or it may depend on any other source which it
deems proper for such information.
(d)  Contracts  in  force  at  the  date  of  the  enactment  of  this
subdivision  may,  in  the  discretion of the corporation, be amended to
provide for  the  withholding  and  the  payments  contemplated  by  the
provisions  of  paragraph  (a)  of  this  subdivision,  if the surety or
sureties upon the performance and labor and material bonds  given  by  a
contractor upon any such contract shall consent in writing thereto.
(e)  No  such  certificate  authorizing or approving 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 commissioner of taxation and finance by  such  contractor  under
the provisions of or pursuant to a law enacted pursuant to the authority
of article nine, nine-A, twelve-A, twenty-one, twenty-two, twenty-eight,
twenty-nine  or thirty of the tax law have been paid. The certificate of
the commissioner of taxation and finance 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.
8.  Contingencies  and extra work. Whenever the corporation determines
that from any unforeseen cause the  terms  of  any  contract  should  be
altered to provide for contingencies or extra work, it 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 corporation  and  a  duplicate  of  such
approval  shall have been filed with the comptroller. No such extra work
shall be commenced or undertaken until the  corporation  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  corporation  may  deem  them  to be just and fair and
beneficial to the state, including the corporation.
Whenever the corporation also determines  that  in  the  cases  herein
provided it is impracticable for it to ascertain in advance the just and
fair  prices 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
corporation  such  accounting  records,  data  and  procedure  as may be
required by the corporation.