§ 1735 — Certain contracts of the authority

* § 1735. Certain contracts of the authority. 1. Notwithstanding the\nprovisions of paragraph b of subdivision one of section seventeen\nhundred thirty-four of this title, the award of construction contracts\nby the authority between July first, nineteen hundred eighty-nine and\nJune thirtieth, two thousand twenty-eight, shall not be subject to the\nprovisions of section one hundred one of the general municipal law.\n 2. Notice of the invitation for bids for contracts to be awarded\npursuant to this section shall state the time and place of the receipt\nand opening of bids.\n 3. All bidders shall submit to the authority, prior to the opening of\na bid for the award of a contract under this section, a sealed list\nidentifying the names of each subcontractor each contractor proposes to\nutilize under the contract for the performance of the following\nsubdivisions of work:\n a. Plumbing and gas fitting;\n b. Steam heating, hot water heating, ventilating and air conditioning\napparatus; and\n c. Electric wiring and standard illuminating fixtures.\n The low bidder shall specify in such list the estimated value to be\npaid each such subcontractor for the work to be performed by such\nsubcontractor. After the authority has announced the low bidder at the\nbid opening, the authority shall open only such low bidder's separate\nsealed list and shall read aloud such subcontractors listed therein. All\nsuch sealed lists except those of the low bidder shall be returned\nunopened to their respective contractors following the awarding of a\ncontract.\n 4. The authority shall establish a committee to review and report on\ncontracts issued pursuant to this section and on the procedures and\nmethodology of the authority in awarding such contracts. The review\nshall include, but not be limited to, the degree to which contractors\nawarded contracts pursuant to such paragraph, and the subcontractors\nutilized by them, utilize employees who are represented by labor\norganizations, comply with existing labor standards, maintain harmonious\nlabor relations and recognize state approved apprentice programs. The\ncommittee shall, from time to time, issue economic and statistical\nreports dealing with the costs of construction under this article. Such\nreports shall deal with the costs of labor, material, equipment and\nprofit. The committee shall have no authority to approve or disapprove\ncontracts. The committee shall be composed of two representatives from\nthe authority, one representative from the board, two representatives\nfrom construction-related labor organizations and two representatives\nfrom the construction industry, at least one of whom shall be involved\nin the subdivisions of work described in subdivision three of this\nsection. The president of the authority shall designate the members of\nthe committee, provided, however, that the president shall designate the\nrepresentatives of labor organizations from a list of names submitted by\nthe New York state AFL-CIO.\n 5. In awarding contracts pursuant to this section the authority shall,\nin addition to the factors set forth in subdivision three of section\nseventeen hundred thirty-four of this title, consider the following\nfactors when establishing a list of pre-qualified bidders for\nconstruction work: (a) the degree to which a contractor or subcontractor\nutilizes employees who are represented by a labor organization; (b) the\nabsence of any intentional misrepresentation with regard to lists of\nsubcontractors previously submitted pursuant to the provisions of\nsubdivision two of this section; and (c) the record of the bidder in\ncomplying with existing labor standards, maintaining harmonious labor\nrelations and recognizing state approved apprentice programs.\n 6. The authority shall provide in its construction, erection or\nalteration contracts which implement a five year educational facilities\ncapital plan a provision that shall require each contractor to make\nprompt payment to its subcontractors performing each subdivision of work\nlisted in subdivision three of this section. Within seven calendar days\nof the receipt of any payment from the authority, the contractor shall\npay to each such subcontractor that portion of the proceeds of such\npayment representing the value of the work performed by such\nsubcontractor, based upon the actual value of the subcontract, which has\nbeen approved and paid for by the authority, less an amount necessary to\nsatisfy any claims, liens or judgments against the subcontractor which\nhave not been suitably discharged and less any amount retained by the\ncontractor as provided herein. For such purpose, the subcontract may\nprovide that the contractor may retain not more than five per centum of\neach payment to the subcontractor or not more than ten per centum of\neach such payment if prior to entering into the subcontract the\nsubcontractor is unable or unwilling to provide, at the request of the\ncontractor, a performance bond and a labor and material bond both in the\namount of the subcontract.\n At the time of making a payment to the contractor for work performed\nby the subcontractors set forth in subdivision three of this section,\nthe authority shall file in its office for review a record of such\npayment. If any such subcontractor shall notify the authority and the\ncontractor in writing that the contractor has failed to make a payment\nto it as provided herein and the contractor shall fail, within five\ncalendar days after receipt of such notice, to furnish either proof of\nsuch payment or notice that the amount claimed by the subcontractor is\nin dispute, the authority shall withhold from amounts then or thereafter\nbecoming due and payable to the contractor, other than from amounts\nbecoming due and payable to the contractor representing the value of\nwork approved by the authority and performed by other subcontractors and\nwhich the contractor is required to pay to such subcontractors within\nseven calendar days as herein provided, an amount equal to one hundred\nfifty percent of that portion of the authority's prior payment to the\ncontractor which the subcontractor claims to be due it, shall remit the\namount when and so withheld to the subcontractor and deduct such payment\nfrom the amounts then otherwise due and payable to the contractor, which\npayment shall, as between the contractor and the authority, be deemed a\npayment by the authority to the contractor. In the event the contractor\nshall notify the authority as above provided that the claim of the\nsubcontractor is in dispute, the authority shall withhold from amounts\nthen or thereafter becoming due and payable to the contractor, other\nthan from amounts becoming due and payable to the contractor\nrepresenting the value of work approved by the authority and performed\nby other subcontractors and which the contractor is required to pay to\nsuch subcontractors within seven calendar days as herein provided, an\namount equal to one hundred fifty percent of that portion of the\nauthority's prior payment to the contractor which the subcontractor\nclaims to be due it and deposit such amount when and so withheld in a\nseparate interest-bearing account pending resolution of the dispute, and\nthe amount so deposited together with the interest thereon shall be paid\nto the party or parties ultimately determined to be entitled thereto, or\nuntil the contractor and subcontractor shall otherwise agree as to the\ndisposition thereof. In the event the authority shall be required to\nwithhold amounts from a contractor for the benefit of more than one\nsubcontractor, the amounts so withheld shall be applied to or for such\nsubcontractors in the order in which the written notices of nonpayment\nhave been received by the authority, and if more than one such notice\nwas received on the same day, proportionately based upon the amount of\nthe subcontractor claims received on such day. Notwithstanding the\nforegoing, in lieu of withholding such amount or amounts in dispute, the\ncontractor may post a bond or other form of undertaking guaranteeing\npayment of such disputed amounts. Nothing herein contained shall prevent\nthe authority from commencing an interpleader action to determine\nentitlement to a disputed payment in accordance with section one\nthousand six of the civil practice law and rules, or any successor\nprovision thereto. In the event the authority does not withhold the\nrequired amounts within sixty days after the written notification from\nthe subcontractor regarding failure of the contractor to make payment,\nthe subcontractor may file a lien under article two of the lien law as\nthe sole remedy in lieu of the remedy provided under this subdivision.\n Payment to a subcontractor shall not relieve the contractor from\nresponsibility for the work covered by the payment. Except as otherwise\nprovided, nothing contained herein shall create any obligation on the\npart of the authority to pay any subcontractor, nor shall anything\nprovided herein serve to create any relationship in contract or\notherwise, implied or expressed, between the subcontractor and the\nauthority.\n The provisions of this subdivision shall not be applicable to the\nsubcontractors of a contractor whose contract is limited to the\nperformance of a single subdivision of work listed in subdivision three\nof this section.\n 7. The provisions of this section shall cease to be in effect in the\nevent any of the provisions of this section shall be adjudged to be\ninvalid by the final judgment of a court of competent jurisdiction from\nwhich judgment all appeals or applications for relief have been\nexhausted or the time therefor has expired, provided, however, that such\nappeals or applications are pursued promptly.\n * NB Repealed June 30, 2028\n