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STA & ESSA STATE LEGISLATION

By Hank Kita, STA Executive Director

I am pleased to inform you that the STA and the Empire State Subcontractors Association (ESSA) had legislation approved by the State Senate and Assembly in the final days of the legislative session which wrapped up this past Friday.

  • Delay Damages (S.5933-A/Comrie & A.2040-A/Kim)

The Delay Damages Bill was the STA’s priority legislation for this session and includes changes to a similar STA bill that Governor Cuomo vetoed in late 2018.  Delay Damages was approved by the Senate by 92-0 and the Assembly by 104-7.  The bill provides for fair and uniform treatment of contractor delay damages in public construction contracts.  This bill uses delay damages standards that have been included by the New York State Office of General Services (OGS) in its contracts.  OGS modified its standard contract in 1996 to allow for delay damages in state construction contracts where the delay was not the fault of the contractor or subcontractor.

This 2019 Delay Damages Bill addresses Governor Cuomo’s veto of the aforementioned 2018 legislation.  Specifically, the bill addresses technical issues raised in the veto message and clarifies liability for damages where actions or omissions of a state agency or state authority are directly associated with the damages incurred by a covered contractor.  This revised legislation:  a) is limited in action and scope only to state agencies and state authorities; b) removes prior language that the Governor was concerned could establish privity of contract between a subcontractor and a public agency, and other third parties; and c) further limits and narrows the criteria for a delay damages claim against a state agency.

  • Substantial Completion (S.2394/Breslin & A.3553/Cusick) 

This ESSA priority legislation, also supported by the STA, defines “substantial completion” with regard to public works contracts, and would prescribe timelines and procedures to be followed by public owners and contractors with respect to the “punch list” once substantial completion has been reached.  Both the Senate and Assembly approved this bill within the last few days.

This legislation would prescribe timelines and procedures to be followed by public owners and contractors in managing the punch list once substantial completion of a project has been reached.  More specifically, it would require the public owner to provide the contractor with a complete punch list no later than 45 days after substantial completion has been reached.  The contractor, in turn, would be required to provide subcontractors with their portions of the punch list within 7 days after receiving the punch list from the public owner.

The passage of these two bills is but the first step in the process to having them become law.  These two bills will require the signature of approval of Governor Cuomo to become law.  A new campaign will be required to get the Governor’s approval of these two bills prior to the end of this year.  My office will be reaching out to you, our membership, and other contractor associations to solicit your assistance in pressing the Governor’s Office for approval of these bills.

I would like to recognize the efforts of STA Legislative Committee Chair Arthur Rubinstein and STA Legislative Counsel Perry Ochacher in getting the Delay Damages legislation approved by the Senate and Assembly.  Congratulations are also in order for the efforts of ESSA Executive Director Mike Misenhimer in getting the Substantial Completion legislation approved.

We are still sifting through other legislative actions taken by the Senate and Assembly in the last few days that might impact the construction industry, and will report on them as soon as they can be identified and analyzed.