§ 30 — Contracts for improvement, maintenance or repair of the canal system

§ 30. Contracts for improvement, maintenance or repair of the canal\nsystem. Upon the completion and final approval of the plans and\nspecifications for the improvement, maintenance or repair to the canal\nsystem, contracts therefor shall be executed as provided herein.\n 1. Advertising for proposals. The corporation shall advertise for\nproposals in accordance with plans and specifications prepared by it for\nsuch improvement, maintenance or repair of the canal system as the\ncorporation deems it expedient to have performed by contract. The\nadvertisement shall be limited to a brief description of the work\nproposed to be done, with an announcement stating where the maps, plans\nand specifications may be seen, the terms and conditions under which the\nproposals will be received, the time and place where the same will be\nopened, the amount of the draft or certified check to accompany the\nproposal, and such other matters as the corporation may deem advisable\nto include therein. Such advertisement shall be published at least once\nin each week for two successive weeks in a newspaper published at the\ncounty seat of the county in which such canal work is to be performed\nand in such other newspapers as the corporation may designate. If no\nnewspaper is published at such county seat, then the publication of the\nadvertisement shall be in such newspaper or newspapers within the county\nas the corporation may select. If no newspaper is published in the\ncounty, the publication of the advertisement shall be in such newspaper\nor newspapers in an adjoining county as may be selected by the\ncorporation. Failure of such newspaper, published in such county or\nadjoining county, to publish such advertisement as provided in this\nsubdivision or as directed by the corporation shall not invalidate the\npublication of advertisement for proposals provided such advertisement\nis published in another newspaper or trade publication, which will be\nmost likely to give adequate notice to contractors of the work\ncontemplated and of the invitation to submit proposals therefor, at\nleast once in each week for any two successive weeks preceding the date\non which proposals described in such advertisement are to be received\nand opened.\n 2. Proposals. Each proposal shall specify the correct gross sum for\nwhich the work will be performed and shall also include the amount to be\ncharged for each item specified on the proposal estimate sheet. The\ncorporation may prescribe and furnish forms for the submission of such\nproposals and may prescribe the manner of submitting the same which\nshall not be inconsistent herewith. Accompanying each proposal there\nshall be a certified check or bank cashier's check for the amount of the\nbid deposit, to be fixed by the corporation and specified in the\nadvertisement for proposals. The checks of the two low bidders shall be\ndeposited by the corporation in a special account. Provided, however,\nthat if prior to or upon receipt of said checks by the corporation a\nbidder who is one of the two low bidders shall have duly filed a bond as\nhereinafter provided, the corporation shall forthwith return to said\nbidder his aforesaid check without depositing the same. If alternate\nproposals are taken, the checks of the two low bidders of all alternate\nproposals shall be deposited. All checks other than those of the two low\nbidders shall be returned promptly by the corporation. Notwithstanding\nthe provisions of any general or special law, the money represented by\nthe checks of the two low bidders shall be paid from the special account\nwhen the contractor has duly executed and delivered to the corporation\nthe contract and the bond or bonds required by law for the performance\nof the work of a public improvement for the state of New York, or upon\nthe rejection of all bids. The low bidder, in the discretion of the\ncorporation, and the second low bidder, as a matter of right, may at any\ntime after the opening of the respective proposals, file with the\ncorporation a bond, the principal amount of which shall at least equal\nthe amount of the respective bidder's check, theretofore deposited with\nhis proposal, in the form prescribed by the corporation, with sufficient\nsureties, to be approved by the corporation, conditioned that the said\nbidder will execute a contract and furnish such performance or other\nbonds as may be required by law in accordance with the terms of the\nbidder's said proposal. If a bidder complies with the aforesaid\nprovisions, the corporation shall forthwith return the money represented\nby the check of such bidder.\n In case the bidder to whom the contract shall be awarded shall fail to\nexecute such contract and bond, the moneys represented by such check\nshall be regarded as liquidated damages and shall be forfeited to the\nstate and shall be deposited by the corporation with the commissioner of\ntaxation and finance to the credit of the general fund. The gross sums\nindicated on the proposals when opened shall be publicly read. The\ncorporation shall keep the bids for the several items of the proposals\nconfidential until an award of the contract is made, after which the\nproposals shall be subject at all reasonable times to public inspection.\n 3. Award of contract. The contract for the improvement, maintenance or\nrepair of any part of the canal system shall be awarded to the lowest\nresponsible bidder, as will best promote the public interest. No\ncontract shall be awarded to a bidder other than the lowest responsible\nbidder without the written approval of the comptroller. The lowest bid\nshall be deemed to be that which specifically states the lowest gross\nsum for which the entire work will be performed, including all the items\nspecified in the estimate therefor. The lowest bid shall be determined\nby the corporation on the basis of the gross sum for which the entire\nwork will be performed, arrived at by a correct computation of all the\nitems specified in the estimate therefor at the unit prices contained in\nthe bid.\n 4. Rejection of proposals. The corporation may reject any or all\nproposals and may advertise for new proposals as provided in this\nsection, if, in its opinion, the best interest of the state and the\ncorporation will thereby be promoted.\n 5. Form of contract. The corporation shall prescribe the form of\ncontract and may include therein such matters the corporation may deem\nadvantageous to the state and the corporation.\n 6. Bond of contractor. Each contractor before entering into a contract\nfor such improvement, maintenance or repair of the canal system shall\nexecute a bond in the form prescribed by the corporation, with\nsufficient sureties, to be approved by the corporation, on condition\nthat it will perform the work in accordance with the terms of the\ncontract and the plans and specifications, and that it will commence and\ncomplete the work within the time prescribed in the contract. The bond\nshall also provide against any direct or indirect damages that shall be\nsuffered or claimed on account of such construction or improvement\nduring the time thereof, and until the work is finally accepted.\n 7. Payments on contracts, state taxes. The contract shall provide for\npartial payments as the work progresses as hereinafter provided:\n (a) Ten per centum shall be retained from each progress payment or\nestimate until the contract work is fifty per centum completed, after\nwhich no further moneys shall be retained from any progress payments or\nestimates paid thereafter, and when the entire contract work has been\ncompleted and accepted, the corporation shall, pending the payment of\nthe final estimate, pay not to exceed fifty per centum of the amount of\nthe retained percentage.\n (b) Whenever in the judgment of the corporation the withholding of the\nretained percentage on account of the closing of the working season\nwould be an injustice to the contractor, the corporation may, provided\nthe district engineer certifies that the essential items in the contract\nhave been completed in accordance with the terms of the contract and the\nprovisions of this chapter, direct the district engineer to include in\nthe final account such uncompleted items and pay therefor at the item\nprices in the contract upon the contractor depositing with the\ncorporation securities equal to double the value of such uncompleted\nwork. The deposit may be used by the corporation to complete the\nuncompleted portion of the contract and shall be returned to the\ncontractor if it completes the uncompleted portion within a specified\nnumber of working days after it has been notified to proceed with the\nwork.\n (c) No certificates approving or authorizing a partial or final\npayment shall be made by the corporation until it is satisfied that all\nlaborers employed on the work have been paid for their services for the\nlast payroll period preceding the said partial or final payment. The\ncorporation may, if it deems necessary, require an affidavit to such\neffect from the contractor or it may depend on any other source which it\ndeems proper for such information.\n (d) Contracts in force at the date of the enactment of this\nsubdivision may, in the discretion of the corporation, be amended to\nprovide for the withholding and the payments contemplated by the\nprovisions of paragraph (a) of this subdivision, if the surety or\nsureties upon the performance and labor and material bonds given by a\ncontractor upon any such contract shall consent in writing thereto.\n (e) No such certificate authorizing or approving the first partial\npayment or any final payment to a foreign contractor shall be made\nunless such contractor shall furnish satisfactory proof that all taxes\ndue the commissioner of taxation and finance by such contractor under\nthe provisions of or pursuant to a law enacted pursuant to the authority\nof article nine, nine-A, twelve-A, twenty-one, twenty-two, twenty-eight,\ntwenty-nine or thirty of the tax law have been paid. The certificate of\nthe commissioner of taxation and finance to the effect that all such\ntaxes have been paid shall be, for purpose of this paragraph, conclusive\nproof of the payment of such taxes. The term "foreign contractor" as\nused in this subdivision means, in the case of an individual, a person\nwho is not a resident of this state, in the case of a partnership, one\nhaving one or more partners not a resident of this state, and in the\ncase of a corporation, one not organized under the laws of this state.\n 8. Contingencies and extra work. Whenever the corporation determines\nthat from any unforeseen cause the terms of any contract should be\naltered to provide for contingencies or extra work, it may, if funds are\navailable for payment of the cost thereof, issue an order on contract\ntherefor to the contractor, a copy of which shall be filed with the\ndirector of the budget and the state comptroller. The estimated\nexpenditure pursuant to the order on contract shall not increase the\ntotal amount of the primary contract until the estimated expenditure\nshall have been approved by the corporation and a duplicate of such\napproval shall have been filed with the comptroller. No such extra work\nshall be commenced or undertaken until the corporation has issued an\norder on contract as herein provided.\n When such order on contract provides for similar items of work or\nmaterials which increase or decrease the itemized quantity provided for\nin the primary contract, the price to be paid therefor shall not exceed\nthe unit bid price in the primary contract for such items. Agreed prices\nfor new items of work or materials may be incorporated in the order on\ncontract as the corporation may deem them to be just and fair and\nbeneficial to the state, including the corporation.\n Whenever the corporation also determines that in the cases herein\nprovided it is impracticable for it to ascertain in advance the just and\nfair prices to be paid by the state for new items of work or materials,\nthe order on contract therefor may provide for performance of the work\nand the furnishing of the materials and equipment, in which event the\ncontractor shall keep and shall make available at all times to the\ncorporation such accounting records, data and procedure as may be\nrequired by the corporation.\n