§ 139. Retained percentages. 1. A clause shall be inserted in all\nspecifications or contracts hereafter made or awarded by the state, or\nby any public department or official thereof for work to be executed\nexcept as provided in section thirty-eight of the highway law in which\nthe execution and delivery by the contractor of a performance bond shall\nbe required, providing that the state shall retain five per centum of\nthe amount of each progress payment in accordance with section one\nhundred thirty-nine-f of the state finance law.\n 2. The clause specified in subdivision one of this section may be\ninserted in the specifications of any uncompleted public contract, of\nthe kind referred to in such subdivision, heretofore made or awarded by\nthe state or by any public department, or official thereof, with the\nwritten consent of the commissioner of general services and of the\nofficial of the public department by whom such contract was awarded and\nof the contractor, provided the surety or sureties upon the performance\nand labor and material bonds given by the contractor upon any such\ncontract shall consent in writing thereto and the retained percentage of\nmoneys earned under such contract shall, after the insertion of such\nclause, be payable in accordance with the provisions set forth in said\nclause.\n 3. Under any contract heretofore or hereafter made or awarded by the\nstate, or by any public department or official thereof, the contractor\nmay, from time to time, withdraw the whole or any portion of the amount\nretained from payments to the contractor pursuant to the terms of the\ncontract, upon depositing with the state comptroller or, if so directed\nby the state comptroller, with a bank or trust company which has entered\ninto an agreement with the state comptroller to provide the services\nwhich the state comptroller is required to perform pursuant to the\nprovisions of this subdivision (1) United States treasury bonds, United\nStates treasury notes, United States treasury certificates of\nindebtedness or United States treasury bills, (2) bonds or notes of the\nstate of New York, (3) bonds of any political subdivision in the state\nof New York, (4) bonds of the New York state housing finance agency, or\n(5) bonds of the New York state medical care facilities finance agency,\nof a market value not exceeding par, at the time of deposit, equal to\nthe amount so withdrawn. The state comptroller shall, from time to time,\ncollect all interest or income on the obligations so deposited, and\nshall pay the same, when and as collected, to the contractor who\ndeposited the obligations. If the deposit be in the form of coupon\nbonds, the coupons as they respectively become due shall be clipped,\npresented for payment, and the proceeds remitted to the contractor. The\ncontractor shall not be entitled to interest or coupons or income on any\nof the deposited obligations, the proceeds of which shall be or shall\nhave been used, or applied by the state, or by any public department or\nofficial thereof, pursuant to the terms of the contract. The state\ncomptroller or any such bank or trust company when authorized by the\nstate comptroller, may impose upon each contractor a service charge for\nreceiving, handling and disbursing obligations, funds and coupons\npursuant to the provisions of this subdivision in an amount to be\ndetermined by the state comptroller. The provisions of this section, as\namended, shall supersede the provisions of any act inconsistent\nherewith.\n
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