Industry Wide COFED Reform Coalition Needs Your Final Push As Legislation Proceeds to Governor Cuomo

Representatives of the construction industry-wide Coalition seeking the immediate prohibition of the use of COFEDs ("contractor forfeiture enhancement devices") in public contracting in New York are preparing for the successful legislation to proceed to the Governor's desk. At such time, Governor Cuomo will have ten days to either sign or veto the Bills overwhelmingly passed by both houses. If the Governor does not sign or veto the Bills within said ten day period, they will automatically become law. As the Coalition's lobbyists in Albany now advise, of the hundreds of Bills favorably acted upon by Legislature, only 25 remain for the Governor's action, including the COFED Reform Legislation!

The ten day period for the Governor has not yet begun, but will shortly, as soon as the Bills are "called up" by the Governor's office.

As you may recall, the critical need for this COFED Reform Legislation (conceived and authored by G&C Managing Partner, Henry L. Goldberg) is to protect contractors and subcontractors throughout the state from the runaway epidemic of abusive notice provisions (COFEDs) used in public contracting in New York State.

Increasingly, contractors and subcontractors are being forced to strictly comply with notice and damage recordkeeping provisions inserted into public works contracts, or risk losing all rights to any recovery in the event of a contract dispute. This is so even if the failure to comply with the particular contract notice provision caused no real harm or "prejudice" to the public owner.

The COFED Reform Legislation is designed to prevent this abuse by New York public agencies at all levels. Without this critical protection, contractors and subcontractors will continue to suffer the complete forfeiture or unintentional waiver of valuable contract claim rights, often for failing to notify a public agency of that which it is typically already independently aware! The "COFED Reform Legislation" will, for the first time, create a "Prejudice Rule" in New York for the handling of contract notice provisions.

Under such a rule, in order to impose forfeiture or waiver upon a contractor, a public agency would have to show prejudice actually caused by a contractor's lack of compliance with a public contract's notice provisions. Public Agencies simply grasping an unconscionable windfall at the expense of a contractor or subcontractor, which failed to give a contractual notice, would no longer be countenanced under New York Law.

THE FINAL PUSH

It is gratifying that this has been a truly industry-wide effort. It is hard to recall a legislative initiative where the construction industry was so completely united. Everyone has pitched in and deserves credit for our success so far.

It is now time for you to do your part. The following construction industry trade associations constitute the broad-based Coalition supporting the COFED Reform Legislation. I have been advised by the Coalition's lobbyists that each of the following Associations has, at a minimum, submitted a memorandum or letter in support of the Bills. (My regrets if I have left anyone out.) We welcome new additions, particularly at this critical time.

  • Allied Building Metal Industries, Inc.
  • ACEC
  • Associated General Contractors of New York State (AGC NYS)
  • Association of Electrical Contractors, Inc.
  • Association of Master Painters and Decorators of New York, Inc.
  • Boilermakers Association of Greater New York
  • Builders Exchange of Rochester
  • Building Congress
  • Building Restoration Contractors Association, Inc.
  • Building Trades Employers' Association (BTEA)
  • Business Council of New York State
  • Eastern Contractors Association
  • Empire State Subcontractors Association (ESSA)
  • General Contractors Association of New York, Inc.
  • Mechanical Contractors Association of New York, Inc.
  • New York Electrical Contractors Association, Inc. (NYECA)
  • New York State Association of Electrical Contractors, Inc. (NYSEC)
  • Roofing & Waterproofing Contractors Association
  • Sheet Metal & Air Conditioning Contractors Association of New York City, Inc.
  • Subcontractors Trade Association (STA)
  • Women Builders Council (WBC)

Make certain that your association is "on board," and that they have made their support well known to the Governor's office. Please click here for a suggested letter to the Governor's Counsel.

As indicated, at the present time there are only 25 Bills remaining to be sent to the Governor, and the COFED Reform Bill is still one of them! We would like to believe that this is because the Governor is still carefully deliberating the merits of the Bill and/or that he is responding to the significant political pressure being applied by a unified construction industry. This is clearly the "top priority" Bill for the construction industry this year.

Thank you for all your efforts so far. But let's be sure to keep the pressure on. Continue to make your calls and send in your letters.

Please take a moment to be sure that your trade association, your company, and you are making the calls into the Governor's office and submitting any last minute letters in support.

The Governor's contact number is (518) 474-7182. You will likely have to leave a message. Simply state that you support this legislation, identifying the Senate and Assembly Bills by number (S.6906 & A.10136).

This is a time for all of us to pitch in. Otherwise, be prepared to suffer the abusive status quo being perpetrated by public agencies. Please act now!

If you would like copies of the COFED Reform Bills, have any questions or require any further details, please feel free to call me directly at (516) 764-2800 or reach me at hlgoldberg@goldbergconnolly.com.