§ 376 — Letting of construction contracts

§ 376. Letting of construction contracts. 1. After May first, nineteen\nhundred sixty-two, the fund as agent for the state university shall\nconstruct, acquire, reconstruct, rehabilitate and improve, or cause to\nbe constructed, acquired, reconstructed, rehabilitated and improved, all\nacademic buildings, dormitories and other facilities to be constructed,\nacquired, reconstructed, rehabilitated or improved at state-operated\ninstitutions or statutory or contract colleges under the jurisdiction of\nthe state university, provided that legislation or appropriations\nauthorizing the same (i) have been requested by the state university\ntrustees, (ii) have been recommended by the governor in a budget bill\nrelating to a state fiscal year commencing on or after April first,\nnineteen hundred sixty-two which specifies the facilities to be\nconstructed, acquired, reconstructed, rehabilitated or improved and the\ntotal estimated cost for each such facility, and (iii) have been\napproved by the legislature for such state fiscal year. With respect to\nstate fiscal years commencing on or after April first, nineteen hundred\nsixty-three, the budget bill referred to in the preceding sentence shall\ninclude in addition to the items stated the date when it is desired that\nthe construction, acquisition, reconstruction, rehabilitation or\nimprovement of each facility referred to therein be completed, and all\nwork for such purposes shall be performed in such manner as to assure\ncompletion, so far as practicable, by the dates specified.\n 2. The fund may construct, acquire, reconstruct, rehabilitate and\nimprove such facilities, other than dormitories, by its own employees,\nby agreement with a state retirement system or any state agency\nauthorized to perform such work, or by contract awarded pursuant to\nsubdivision eight of this section.\n 3. The fund may construct, acquire, reconstruct, rehabilitate and\nimprove dormitories only by agreement with the dormitory authority\nestablished under title four of the public authorities law, except that\nif the dormitory authority indicates its unwillingness to enter into\nsuch an agreement with the fund for such purpose, the fund may\nconstruct, acquire, reconstruct, rehabilitate and improve such\ndormitories by its own employees, by agreement with a state retirement\nsystem or any state agency (other than the dormitory authority)\nauthorized to perform such work, or by contract awarded pursuant to\nsubdivision eight of this section, subject, however, to the rights of\nholders of outstanding bonds and notes of the dormitory authority with\nrespect to existing dormitories.\n 4. In the event that the dormitory authority enters into an agreement\nwith the fund for construction, acquisition, reconstruction,\nrehabilitation or improvement of a facility for the state university, it\nshall perform the work required or cause the work required to be\nperformed in accordance with the terms of such agreement either by its\nown employees or by contract awarded pursuant to the provisions of title\nfour of the public authorities law. In the event any state agency other\nthan the dormitory authority enters into an agreement with the fund for\nsuch work it shall perform the same either by its own employees or by\ncontract awarded pursuant to subdivision eight of this section.\n 5. No contract for the construction, acquisition, reconstruction,\nrehabilitation or improvement of academic buildings, dormitories and\nother facilities shall be awarded by any letting agency unless the state\nuniversity trustees shall have approved the architectural concept of the\nfacility to be constructed, acquired, reconstructed, rehabilitated or\nimproved and unless the fund shall have approved the proposed terms of\nsuch contract, including the detailed plans and specifications for such\nfacility.\n 6. Each contract for the construction, acquisition, reconstruction,\nrehabilitation or improvement of academic buildings, dormitories and\nother facilities shall include a provision that the architect who\ndesigned the facility, or an architect or engineer, or, for projects\nauthorized by section three hundred seventy-two-a of this article a\nconstruction manager or other consultant, retained specifically for the\npurpose of supervision, shall supervise the work to be performed through\nto completion and shall see to it that the materials furnished and the\nwork performed are in accordance with the drawings, plans,\nspecifications and contract therefor.\n 7. Any letting agency may in its discretion award one contract for all\nthe work to be performed in construction, acquisition, reconstruction,\nrehabilitation or improvement without separate and independent bidding\nor letting on subdivisions of work to be performed.\n 8. * All contracts which are to be awarded pursuant to this\nsubdivision shall be awarded by public letting in accordance with the\nfollowing provisions, notwithstanding any contrary provision of section\none hundred thirty-five, one hundred thirty-six, one hundred thirty-nine\nor one hundred forty of the state finance law or any other law,\nprovided, however, that where the estimated expense of any contract\nwhich may be awarded pursuant to this subdivision is less than two\nhundred fifty thousand dollars, a performance bond and a bond for the\npayment of labor and material may, in the discretion of the fund, not be\nrequired, and except that in the discretion of the fund, a contract may\nbe entered into for such purposes without public letting where the\nestimated expense thereof is less than twenty thousand dollars, or where\nin the judgment of the fund an emergency condition exists as a result of\ndamage to an existing academic building, dormitory or other facility\nwhich has been caused by an act of God, fire or other casualty, or any\nother unanticipated, sudden and unexpected occurrence, that has resulted\nin damage to or a malfunction in an existing academic building,\ndormitory or other facility and involves a pressing necessity for\nimmediate repair, reconstruction or maintenance in order to permit the\nsafe continuation of the use or function of such facility, or to protect\nthe facility or the life, health or safety of any person, and the nature\nof the work is such that in the judgment of the fund it would be\nimpractical and against the public interest to have public letting;\nprovided, however, that the fund, prior to awarding a contract hereunder\nbecause of an emergency condition notify the comptroller of its intent\nto award such a contract:\n * NB Effective until June 30, 2026\n * All contracts which are to be awarded pursuant to this subdivision\nshall be awarded by public letting in accordance with the following\nprovisions, notwithstanding any contrary provision of section one\nhundred thirty-five, one hundred thirty-six, one hundred thirty-nine or\none hundred forty of the state finance law, provided, however, that\nwhere the estimated expense of any contract which may be awarded\npursuant to this subdivision is less than fifty thousand dollars, a\nperformance bond and a bond for the payment of labor and material may,\nin the discretion of the fund, not be required, and except that in the\ndiscretion of the fund, a contract may be entered into for such purposes\nwithout public letting where the estimated expense thereof is less than\ntwenty thousand dollars, or where in the judgment of the fund an\nemergency condition exists as a result of damage to an existing academic\nbuilding, dormitory or other facility which has been caused by an act of\nGod, fire or other casualty, or any other unanticipated, sudden and\nunexpected occurrence, that has resulted in damage to or a malfunction\nin an existing academic building, dormitory or other facility and\ninvolves a pressing necessity for immediate repair, reconstruction or\nmaintenance in order to permit the safe continuation of the use or\nfunction of such facility, or to protect the facility or the life,\nhealth or safety of any person, and the nature of the work is such that\nin the judgment of the fund it would be impractical and against the\npublic interest to have public letting; provided, however, that the\nfund, prior to awarding a contract hereunder because of an emergency\ncondition notify the comptroller of its intent to award such a contract:\n * NB Effective June 30, 2026\n a. If contracts are to be publicly let, the letting agency shall\nadvertise the invitation to bid in a newspaper published in the city of\nAlbany and in such other newspapers as will be most likely in its\nopinion to give adequate notice to contractors of the work required and\nof the invitation to bid provided, however, that where the estimated\nexpense of any contract which may be awarded pursuant to this\nsubdivision is less than fifty thousand dollars, the letting agency may\nadvertise the invitation to bid solely through the procurement\nopportunities newsletter published pursuant to section one hundred\nforty-two of the economic development law. The invitation to bid shall\ncontain such information as the letting agency shall deem appropriate\nand a statement of the time and place where all bids received pursuant\nto such notice will be publicly opened and read.\n b. The letting agency shall not award any contract after public\nbidding except to the lowest bidder who in its opinion is qualified to\nperform the work required and is responsible and reliable. The letting\nagency may, however, reject any or all bids, again advertise for bids,\nor waive any informality in a bid if it believes that the public\ninterest will be promoted thereby.\n c. The invitation to bid and the contract awarded shall contain such\nother terms and conditions, and such provisions for penalties, as the\nletting agency may deem desirable.\n * d. Any contract awarded pursuant to this subdivision shall contain a\nclause that the contract shall be deemed executory to the extent of the\nmoneys available and that no liability shall be incurred by the fund\nbeyond the moneys available therefor.\n * NB Effective until June 30, 2026\n * d. The form of any contract awarded pursuant to this subdivision\nshall be approved by the attorney general and by the comptroller and\nshall contain a clause that the contract shall be deemed executory to\nthe extent of the moneys available and that no liability shall be\nincurred by the fund beyond the moneys available therefor.\n * NB Effective June 30, 2026\n e. The letting agency shall require such deposits, bonds and security\nin connection with the submission of bids, the award of contracts and\nthe performance of work as it shall determine to be in the public\ninterest and for the protection of the state, the state university, the\nfund and the letting agency.\n f. Notwithstanding the provisions of any other law to the contrary,\nall contracts for public work awarded by the state university\nconstruction fund pursuant to this subdivision shall be in accordance\nwith section one hundred thirty-nine-f of the state finance law.\n 9. No payments shall be made by the comptroller from appropriated\nmoneys on account of any construction contract for a facility until the\nbills or estimates presented for such payment shall have been duly\ncertified to be correct (i) by the chairman of the fund or by an officer\nof the fund duly designated for that purpose, or (ii) if the dormitory\nauthority is the letting agency, by the chairman thereof or by an\nofficer or employee thereof duly designated for that purpose.\n 10. Whenever the fund deems it necessary as a result of or in\nconnection with the construction, acquisition, reconstruction,\nrehabilitation and improvement of any academic building, dormitory, and\nother facility, to provide for the removal, relocation, replacement,\nreconstruction, repair or extension by a municipality, county, town,\nvillage or public service corporation, of water mains, sewer pipes,\ntelephone lines and other facilities maintained for public use and owned\nby such municipality, county, town, village or public service\ncorporation, it shall have the power to contract with such municipality,\ncounty, town, village or public service corporation and such\nmunicipality, county, town, village or public service corporation shall\nhave the power to contract with the fund, for such removal, relocation,\nreplacement, reconstruction, repair or extension. The contract for such\nremoval, relocation, replacement, reconstruction, repair or extension\nmay, at the discretion of the fund, be entered into by the fund without\nthe necessity of public bidding or public letting. Upon the completion\nand acceptance by the fund of the performance of such removal,\nrelocation, replacement, reconstruction, repair or extension, said water\nmains, sewer pipes, telephone lines and other facilities shall be\nmaintained by the municipality, county, town, village or public service\ncorporation, as the case may be.\n 11. (a) Each contract involving the awarding of a large-scale\nconstruction project shall require the use of a project labor agreement,\nas defined in subdivision one of section two hundred twenty-two of the\nlabor law, for all contractors and subcontractors on the project,\nconsistent with paragraph (a) of subdivision two of section two hundred\ntwenty-two of the labor law, except as otherwise provided in paragraph\n(b) of this subdivision.\n (b) The fund shall not be required to use a project labor agreement\nwhere it determines that such agreement would be inconsistent with\nparagraph (a) of subdivision two of section two hundred twenty-two of\nthe labor law or state competitive bidding laws. Any such determination\nshall be provided in a written explanation for a particular project\ncontract by the solicitation date. The goals and requirements of article\nfifteen-A of the executive law and article three of the veteran services\nlaw shall apply to all project labor agreements.\n (c) An agency may require the use of a project labor agreement on\nconstruction projects where the total cost to the fund is less than that\nfor a large-scale construction project, if consistent with paragraph (a)\nof subdivision two of section two hundred twenty-two of the labor law.\n