N.Y. Comp. Codes R. & Regs. tit. 21 § 109.3

Current through Register Vol. 46, No. 50, December 11, 2024

Section 109.3 - Statement

(a) The Thruway Authority is implementing the procedures herein in order to compensate the contractors doing business with the authority in an expeditious, timely and fair manner in return for the proper verified delivery of their goods and services to the authority. These standards are being promulgated in conformance with Public Authorities Law, section 2880(1)-(16).

(b) A contractor shall submit to the specified designated payment office all written invoices, purchase orders, delivery tickets, price or quantity tabulations or other documents which are necessary in order to verify the name, type and quantity of goods or services actually delivered or provided and for which payment is requested by or on behalf of a contractor.

(c) The authority will make prompt payment under a contract:

(1) within 45 calendar days after the receipt of a proper invoice at its designated payment office, for the amount of the contract payment then due, such time allowance to apply to the payment of a proper invoice received by the authority on or after May 1, 1988;

(2) within 30 calendar days, excluding legal holidays, after the receipt of a proper invoice at its designated payment office, for the amount of the contract payment then due, such time allowance to apply to the payment of a proper invoice received by the authority on or after July 1, 1989;

(3) except when the contract or contract payment is of a type where the facts and conditions are as defined pursuant to paragraphs (f)(1)-(12) of this section. Any time taken to satisfy or rectify any of the facts or conditions described therein (except for paragraphs [f][10]-[11] of this section) shall extend the date by which contract payment must be made in order for the authority not to become liable for interest payments by an equal period of time.

(d) Pursuant to these rules and regulations, the authority shall pay interest on its contracts whenever prompt payment is not made to its contractors as prescribed for in subdivision (c) of this section and any other applicable provisions herein; interest under this Part shall be computed at the daily rate in effect on the date the interest is paid, as set by the State Tax Commission for corporate taxes pursuant to section 1096 (e)(1) of the Tax Law.

(e) Interest hereunder will be payable from general toll revenues and other miscellaneous revenues.

(f) Adjustments to the contract payment date and the receipt of an invoice date shall be made by the authority whenever, in its opinion, the facts and conditions reasonably justify such an extension. The authority has determined that such facts and conditions exist in the following types of contracts and situations, and that an extension of the payment date is reasonably justified, when:

(1) in the case of final payments on construction contracts:

(i) the authority's chief engineer determines that the contractor has failed or neglected to properly submit the necessary documentation and other performance verification specifically prescribed by the contract requirements and specifications;

(ii) and/or the final agreement together with the final estimate has not been approved as required pursuant to such construction contract, before payment can be made;

(2) in the case of regular progress payments on construction contracts:

(i) the authority's chief engineer determines that the contractor has failed to properly submit the necessary documentation and other supporting data required by the contract, or mandated by any other State or Federal law, rule or regulation;

(ii) the specific contractual provisions, any applicable statute, or any State or Federal regulation, require or allow, a periodic inspection or a periodic audit prior to such payments, provided that if no time is specified for completing such periodic inspection or audit, it is completed within a reasonable time;

(3) in the case of engineering/architectural agreements for professional services, construction inspection or design, and:

(i) in respect to final payments:

(a) the specific contractual provisions, any applicable statute, or any State or Federal regulation, require, or allow, an inspection period or an audit, prior to such payment, provided that if no time is specified for completing such an audit or inspection, it is completed within a reasonable time;

(b) the authority's chief engineer determines that the contractor has failed or neglected to properly submit the necessary documentation and other performance verification specifically prescribed by the contract requirements and specifications; or

(c) the authority has not received an approved certification of audit or such other final verifying document as may be required pursuant to such contract before payment can be made;

(ii) in respect to regular progress payments:

(a) the specific contractual provisions, any applicable statute, or any State or Federal regulation, require, or allow, a periodic inspection or a periodic audit prior to such payments, provided that if no time is specified for completing such periodic inspection or audit, it is completed within a reasonable time;

(b) the authority's chief engineer determines that the contractor has failed to properly submit the necessary documentation and other performance verification specifically prescribed by the contract requirements and specifications;

(4) the Thruway Authority department of finance and accounts, in the course of its preaudit function and investigation, determines that there is reasonable cause to believe that, as a substantive matter, ascertained in the review of specific purchase or financial documents and other substantiating documentation, payment may not properly be due to the vendor or contractor, either in whole or in part;

(5) in the case of contracts or obligations which require an investigation by authority field personnel of the facts, circumstances, or other background detail, for proper documentation of the submitted invoice, and the authority conducts or is conducting such an investigation in order to verify that payment is due, and such investigation results in a verified voucher submitted to the director of operations for approval, said voucher will be considered a proper invoice upon such final approval by the director of that department, or any other applicable department involved;

(6) the necessary State or Federal government appropriation required to authorize payment has yet to be enacted or released;

(7) a proper invoice must be examined and approved pursuant to contract or law by any other governmental entity prior to payment;

(8) Federal funds are involved in any project, and specified Federal requirements are yet to be completed before payment is authorized;

(9) in the event that any contract, as defined herein in section 109.1(c) of this Part, entered into between the authority and a contractor on or after May 1, 1988 is not a valid, enforceable agreement until it has been approved either by the Comptroller, or any other State or Federal agency, if so required by law or by such contract, provided that either the agreement shall contain a provision, or the contractor shall receive notice, stating that the agreement is subject to the approval of the Comptroller or some other required agency and that until such approval is given, the 45-day period (or the 30-day period after July 1, 1989) for the payment of invoices without interest shall not begin;

(10) such date by which payment must be made is modified in accordance with paragraph (11) of this subdivision;

(11)

(i) in the case of defects or improprieties, the authority shall have 15 calendar days after receipt of an invoice at its designated payment office to notify the contractor of either:

(a) defects in the delivered goods, property or services;

(b) defects in the invoice; or

(c) suspected improprieties of any kind;

(ii) except as provided in subparagraph (iii) of this paragraph, when the authority notifies a contractor of such defects or suspected improprieties, and the contractor thereafter submits a corrected invoice or delivers corrected goods or services, the authority shall be considered as in receipt of an invoice on the date upon which the corrected invoice or corrected goods or services are received by the authority, whichever is later. If a corrected invoice or corrected goods or services are not required, the date of receipt of an invoice shall be the date upon which the authority determines that the suspected improprieties have been resolved;

(iii) if the authority fails to notify a contractor of such suspected defects or suspected improprieties within 15 calendar days of its first receipt of an invoice, the new ROI date, as determined by subparagraph (ii) of this paragraph, shall be adjusted to an earlier date, by a number of days equal to the number of days in excess of 15 that the authority took after its first receipt of an invoice;

(12) in the case of contracts, purchases, or other types of transactions where, either the specific contractual provisions, any applicable statute, any State or Federal regulation or the circumstances surrounding the transaction itself, would mandate, require, or call for an inspection, investigation, audit or other period of delay before the authority could be considered to be in receipt of an invoice. Examples of these types of transactions would include, but not be limited to, situations where:

(i) equipment or services require a detailed inspection and testing of the final product by appropriate authority personnel (example: electronics, component parts, mechanical equipment, etc.);

(ii) the agreement calls for special provisions to be met before payment is due, for example, receipt of specific data sheets, instruction manuals, parts manuals, on-site training, even though the particular product may have already been received by the authority;

(iii) the agreement calls for a multifaceted system, completed system, or a working system, and only a portion of the system has been delivered or is operational, even though a vendor may have invoiced for the portion delivered or working; in such cases the authority will not be in receipt of an invoice until the total system or product is delivered and operational, or in whatever condition the particular agreement or situation calls for; and

(iv) a discrepancy appears between a vendor's invoice received at the designated payment office, and an authority receiving report or other record of delivery, submitted from a field office. In any and all situations falling within this paragraph ([12][i]-[iv]), the authority will not be considered in receipt of an invoice until or unless any such inspection, investigation, audit or other period of delay, has been completed and any and all conditions, deliveries, provisions, installations or other performances, have been completed and/or any and all discrepancies have been resolved. The notice of defect provisions of this subdivision do not apply to any of the situations within this paragraph ([12][i]-[iv]), until the authority:

(a) conducts its inspections, investigations or other verification procedure;

(b) full performance has been completed by the vendor; and/or

(c) any and all discrepancies have been resolved.

The facts and conditions which the authority has determined to reasonably justify an extension of the contract payment date and/or the receipt of the invoice date are in no event limited to those specifically set forth in paragraphs (1)-(12) of this subdivision. Thus the authority may amend this statement at any time in the future to formally include any such additions as a part of its rules and regulations;

(13) any time taken to satisfy, rectify or complete any of the types of conditions, situations or contingencies described in paragraphs (1)-(12) of this subdivision shall extend the required payment date by an equal period of time.

N.Y. Comp. Codes R. & Regs. Tit. 21 § 109.3