Legislative Issues

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Welcome to 2009!  The 2009 Legislative Session brings a whole new look to Albany, not only for the Legislature but also for this Association.

David Paterson became the new Governor last March. The Democrats have now become the majority party in the State Senate, led by new Senate Majority Leader Malcolm Smith from Queens. The Assembly remains firmly in the hands of the Democrats, led by Assembly Speaker Shelton Silver of Manhattan.

The new year also brings with it the Associated General Contractors of New York State, LLC (AGC NYS), resulting from the merger of the GBC NYS and the NYS Chapter, AGC representing the highway contractor community. Together we now represent over 650 construction industry firms from Long Island to Buffalo. As we complete the merger and its many details we will create a new website to reflect our new status in life.

Below, you can read about some of the issues AGC NYS expects to promote and react to in 2009.

Construction Legislative Issues AGC NYS Is Following in 2009

AGC NYS’s bi-monthly AGC Connection newsletters will note individual bills as the session progresses.

For complete information on any current bill, visit the Assembly website at http://assembly.state.ny.us/, or the Senate website at http://senate.state.ny.us/ .  Both websites allow you to search for a bill and find its text and current status. Most of the bills listed below are already linked to the full information on the Assembly website.


AGC NYS-Sponsored Bills 

A.1895 (Morelle) is the longstanding bill endorsed by many to reform Labor Law 240 when and where a contractor can show he had acted safely. While this issue saw no movement, the business, professional and institutional community did reorganize its tort reform effort with the development of a reconstituted effort now known as NYTortReformNow.org. Several groups, including the AGC NYS, are involved in the effort.

S.2011 (Winner) / A.3832 (Schimminger) 
2008 bill and sponsors.  Requires that timely notice of allegations of prevailing wage violations be given to contractors. 
Click here to read AGC NYS's Memo in Support from last session.

A.523 (Destito) 
Requires quality performance and payment bonds on public work. 

A.1047 (Destito) 
2008 bill and sponsors.  Provides standards and procedures for determining whether or not a contractor is responsible for purposes of public construction projects.

S.2725 (Golden)
2008 bill and sponsor.  Clarified on SCA work that a subcontractor claiming payment issues with the general contractor cannot utilize both the lien withholding rights under the law and the complaint provisions to the SCA, thus creating a double withholding. The bill requires the sub to use one of the two procedures, not both. 


Subcontractor Bills to Watch 

S.754 (Breslin) / A.2279 (Cusick)
Provides for a reasonable amount of construction contract sum on a private project to be deposited in a separate interest-bearing escrow account with a third-party escrow agent. 
GBC position: Support

S.801 (Breslin) / A.2372 (Cusick)
Makes provisions in contracts requiring subcontractors or contractors to indemnify certain parties for damages void and unenforceable. 
GBC position: Bill's terms to be reviewed.  Opposed last session, especially given the burdensome provisions of Labor Law 240.  

S.797 (Breslin) / A.2387 (Cusick)
A bill to amend the notice provisions of the State Finance Law in relation to actions on payment bonds.  
GBC position: Oppose in its current form, but working on amendments.

S.802 (Breslin) / A.2347 (Cusick) 
Allows for release of early finishing subcontractors retainage upon completion of their work. 
GBC position: Oppose in its current form. Suggesting amendments.

S.800 (Breslin) / A.2369 (Cusick)
Would make null and void contract language that requires the subcontractor to exhaust his lien and other legal rights before filing a claim or commencing an action on a payment bond.
GBC position: Oppose and have suggested amendments.

S.8422-A (Maltese) / A.11520-A (Rules-John)
2008 bill and sponsors. This bill sought to amend Article 35-E of the General Business Law enacted in 2002 at the behest of the carpenters union and the drywall subcontractors to establish guidelines for prompt payment from owner to contractor to subcontractor on private work. This bill was an effort to significantly amend the bill and remove many of the safeguards and negotiated provisions of the original law. It died in the Senate and was held in the Assembly Codes Committee in 2008.


Wicks Law "Reform" and Alternative Delivery Issues

A.156 (Budget) / S.56 (Budget)
Governor's proposed 2009-10 State Budget bill includes changes to the Wicks Law. Increases threshold for NYC to $10 million for five years. Exempts school districts from Wicks for five years and extends the NYC SCA exemption for five years until 2014.

S.6807-C (Budget) / A.9807-C (Budget)
2008 bill. In the negotiations for the 2008-09 State Budget, the Governor and Legislative Leaders agreed to add significant Wicks Law reform identical to the terms first introduced late in 2007. See the next bill for details.

S.6146-A (Rules) / A.9204 (John) 
GBC, throughout its 50-year history, has sought repeal or reform of New York State’s inflexible separate contract law on public work – commonly referred to as the Wicks Law. In 2007 the Governor urged reform and eventually negotiated a “reform” bill that was agreed to by the legislative leaders. The bill passed the Assembly, but was held in the Senate Rules Committee as other unrelated political issues took precedent. The initial reform sought was a simple increase in the $50,000 project threshold. As the Legislative Session progressed, other unrelated labor issues were added to the bill that effectively, in the opinion of the GBC, negated any modest improvements in the status quo. In the end, GBC opposed the bill. Our memo and an op-ed piece done with the subcontractors explain the GBC’s position. 

A.1147 (Destito Morelle) was introduced at the behest of the GBC and others to carve out or repeal the prequalification provisions found in the passed Wicks bill so they would apply only to New York City. The bill passed the Senate but died in the Assembly in 2008. Another bill to delay the apprenticeship provisions of the new law suffered the same fate.

S.7455 (Flanagan) / A.11022 (Brodsky) would allow the Dormitory Authority to utilize the construction management at risk method on projects in excess of $20 million in value. The bill passed the Senate. GBC supported and had input in the development of the bill. 2008 bill.

S.5150 (LaValle) / A.2178 (Canestrari) would clarify that when design-build contracts are done in New York State, the design firm must be independent of the contracting firm. GBC supported. 2008 bill.


Labor


Prevailing Wage Bills

As in almost every Legislative Session, a series of proposals to toughen the prevailing wage laws on public work were introduced. While some passed the Assembly, few passed the Senate. Only one minor bill did pass, and its confusing terms must be reviewed by the Governor. See S.7180 below. These are all 2008 bills.

S.6797 (Marcellino) / A.6598-A (John) - Prevailing Wages on Offsite Custom Fabrication
This bill would require any custom fabricated work for a public works project done off site to be paid under prevailing wages. GBC's memo in opposition is provided.
GBC Position:  Oppose

S.3184-A (Stewart-Cousins) / A.787 (Latimer) – Prevailing Wage Sign In-Out
This would establish and elaborate a burdensome sign in – sign out system on public works projects. It saw no action.
GBC Position: Oppose

S.6077-A (Maziarz) / A.2720-A (John) – Pattern of Subcontracting
This would debar contractors where it could be proven without any standards established in the bill that a contractor regularly subcontracted to a subcontractor found violating the prevailing wage laws. This bill was vetoed in 2006. It passed the Assembly, but died in the Senate.
GBC Position: Oppose

S.6078 (Maziarz) / A.2723 (John) – Mandatory Written Subcontracts
This would require every subcontract to be in written form and include certain items. Some of the items required make little sense or are impractical.
GBC Position: Oppose

S.7180 (Robach) / A.2457 (John) – Payment Bond Required on Work with a “Permit”
This would require that a payment bond be in place where there is a “permit” and prevailing wages are required. Unfortunately, the terms of the bill are confusing and overreaching. The bill did pass both houses and will go to the Governor for his consideration.
GBC Position: Oppose in its current form

S.7916 (Padavan) / A.10774 (Gianaris) – Prevailing Wages on Utility Work
This would require all utility work done in a public street to be done by utility companies and any private contractors or subcontractors paying prevailing wages. This bill passed both houses and will be considered by the Governor.
GBC Position: No position

IDAs Reforms and Prevailing Wages
IDAs are an important economic development tool generating a lot of construction activity.  There is a strong effort to reform the operation of IDAs, extend their power to fund nonprofit projects and apply living and prevailing wages to these projects. Application of prevailing wages will have a serious impact on the cost of many IDA projects and may stop several of them. A bill on this matter died at the end of the the 2008 session.
GBC Position: Oppose the prevailing wage aspects of this bill.


New York City Building Department and Other Regulatory Issues

During the early part of 2008 there was much attention to Building Department, crane and other regulatory issues in the City of New York. A series of bills on these subjects was introduced, but few passed. A memo to the GBC NYC Building Department Task Force summarizing the bills can be read here.


The Business Council of New York State 

AGC NYS often defers to The Business Council of New York State to advocate on issues that affect not only the construction community, but also the citizens of New York State as a whole. Such issues currently include workers' compensation reform, outsourcing, taxes, the Empire Zones, and a host of other business issues. Visit The Business Council's website at http://www.bcnys.org for more information. Their 2008 Legislative Wrapup can be found at http://www.bcnys.org/inside/gac/2008/sessionwrapup.htm.