Bill Text: NY A07636 | 2019-2020 | General Assembly | Amended


Bill Title: Authorizes in the city of New York, for certain public work undertaken pursuant to project labor agreements, use of the alternative delivery method known as design-build contracts.

Spectrum: Partisan Bill (Democrat 7-0)

Status: (Introduced) 2019-06-19 - substituted by s6293a [A07636 Detail]

Download: New_York-2019-A07636-Amended.html



                STATE OF NEW YORK
        ________________________________________________________________________

                                         7636--B

                               2019-2020 Regular Sessions

                   IN ASSEMBLY

                                      May 14, 2019
                                       ___________

        Introduced  by  M.  of  A.  BRAUNSTEIN,  RODRIGUEZ,  FALL, D. ROSENTHAL,
          WEPRIN, EICHENSTEIN -- read once and  referred  to  the  Committee  on
          Cities  -- reported and referred to the Committee on Ways and Means --
          reported and referred to the Committee on  Rules  --  Rules  Committee
          discharged, bill amended, ordered reprinted as amended and recommitted
          to the Committee on Rules -- Rules Committee discharged, bill amended,
          ordered reprinted as amended and recommitted to the Committee on Rules

        AN  ACT  to  authorize,  for certain public works undertaken pursuant to
          project labor agreements, use of the alternative delivery method known
          as design-build contracts;  and  providing  for  the  repeal  of  such
          provisions upon expiration thereof

          The  People of the State of New York, represented in Senate and Assem-
        bly, do enact as follows:

     1    Section 1. Short title.  This act shall be known and may be  cited  as
     2  the "New York city public works investment act".
     3    § 2. For the purposes of this act:
     4    (a)  "Authorized  entity"  shall  mean the New York city department of
     5  design and construction, the New York city department  of  environmental
     6  protection, the New York city department of transportation, the New York
     7  city  department  of  parks and recreation, the New York city health and
     8  hospitals corporation, the New York city school  construction  authority
     9  and the New York city housing authority.
    10    (b)  "Best  value"  shall  mean  the  basis for awarding contracts for
    11  services to a proposer that  optimizes  quality,  cost  and  efficiency,
    12  price  and  performance  criteria, which may include, but is not limited
    13  to:
    14    (1) The quality of the proposer's performance on previous projects;
    15    (2) The timeliness of the proposer's performance on previous projects;
    16    (3) The level of customer satisfaction with the proposer's performance
    17  on previous projects;

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD11524-05-9

        A. 7636--B                          2

     1    (4) The proposer's record of performing previous  projects  on  budget
     2  and ability to minimize cost overruns;
     3    (5) The proposer's ability to limit change orders;
     4    (6) The proposer's ability to prepare appropriate project plans;
     5    (7) The proposer's technical capacities;
     6    (8) The individual qualifications of the proposer's key personnel;
     7    (9) The proposer's ability to assess and manage risk and minimize risk
     8  impact;
     9    (10) The proposer's financial capability;
    10    (11)  The  proposer's  ability to comply with applicable requirements,
    11  including the provisions of articles 145, 147 and 148 of  the  education
    12  law;
    13    (12)  The proposer's past record of compliance with federal, state and
    14  local laws, rules, licensing requirements, where applicable, and  execu-
    15  tive  orders, including but not limited to compliance with the labor law
    16  and other applicable labor and prevailing wage laws, article 15-A of the
    17  executive law, and any other applicable laws  concerning  minority-  and
    18  women-owned business enterprise participation;
    19    (13) The proposer's record of complying with existing labor standards,
    20  maintaining  harmonious  labor  relations, and protecting the health and
    21  safety of workers and payment of wages above any locally-defined  living
    22  wage; and
    23    (14)  A quantitative factor to be used in evaluation of bids or offers
    24  for awarding of contracts for bidders or offerers that are certified  as
    25  minority-  or  women-owned business enterprises pursuant to article 15-A
    26  of the executive law, and certified pursuant to local law  as  minority-
    27  or  women-owned business enterprises. Where an agency identifies a quan-
    28  titative factor pursuant to this paragraph, the agency must specify that
    29  businesses certified as minority- or  women-owned  business  enterprises
    30  pursuant to article 15-A of the executive law as well as those certified
    31  as  minority- or women-owned business enterprises or pursuant to section
    32  1304 of the New York city charter  are  eligible  to  qualify  for  such
    33  factor.  Nothing  in  this paragraph shall be construed as a requirement
    34  that such businesses be concurrently certified as  minority-  or  women-
    35  owned  business enterprises under both article 15-A of the executive law
    36  and section 1304 of the New York city charter to qualify for such  quan-
    37  titative   factors.   In  addition,  where  the  New  York  city  school
    38  construction authority acts as the authorized entity, businesses  certi-
    39  fied  as  minority-  or  women-owned  business  enterprises  pursuant to
    40  section 1743 of the public authorities law shall be eligible to  qualify
    41  for such factor.
    42    Such  basis  shall reflect, wherever possible, objective and quantifi-
    43  able analysis.
    44    (c) "Cost plus" shall mean compensating a contractor for the  cost  to
    45  complete a contract by reimbursing actual costs for labor, equipment and
    46  materials plus an additional amount for overhead and profit.
    47    (d)  "Design-build  contract" shall mean a contract for the design and
    48  construction of a public work with a single entity, which may be a  team
    49  comprised of separate entities.
    50    (e)  "Project  labor  agreement"  shall  have the meaning set forth in
    51  subdivision 1 of section 222 of the labor law. A project labor agreement
    52  shall require participation in apprentice training programs  in  accord-
    53  ance with paragraph (e) of subdivision 2 of such section.
    54    §  3.  Any contract for a public work undertaken pursuant to a project
    55  labor agreement in accordance with section 222 of the labor law may be a
    56  design-build contract in accordance with this act.

        A. 7636--B                          3

     1    § 4. Notwithstanding any general, special or local law, rule or  regu-
     2  lation to the contrary, including but not limited to section 7210 of the
     3  education  law,  article  5-A of the general municipal law, article 8 of
     4  the public  housing law, sections 1734 and 1735 of the  public  authori-
     5  ties  law and section 8 of the New York city health and hospitals corpo-
     6  ration act, and in conformity with the requirements of this act, for any
     7  public work that has an estimated cost  of  not  less  than  10  million
     8  dollars  and  is  undertaken  pursuant  to  a project labor agreement in
     9  accordance with section 222 of  the  labor  law,  an  authorized  entity
    10  charged with awarding a contract for public work may use the alternative
    11  delivery method referred to as design-build contracts.  Provided, howev-
    12  er,  that  any  authorized  entity  charged with awarding a contract for
    13  public work in connection with property within the jurisdiction  of  the
    14  New  York  city  department of parks and recreation or the New York city
    15  housing authority is authorized to use the alternative  delivery  method
    16  referred  to as design-build contracts for any such public work that has
    17  an estimated cost of not less than  one  million  two  hundred  thousand
    18  dollars if such public work is otherwise in conformity with the require-
    19  ments  of  this act. Provided further that any authorized entity may use
    20  the alternative delivery method referred to  as  design-build  contracts
    21  for  any  public  work  that  has an estimated cost of not less than one
    22  million two hundred thousand dollars if such public work is otherwise in
    23  conformity with the requirements of this act and primarily consists  of:
    24  pedestrian  ramps  and similar infrastructure to improve access to side-
    25  walks in the city of New York for people with  disabilities;  renovation
    26  and construction of cultural institutions located on publicly owned real
    27  property  and  of  public libraries in the city of New York; or security
    28  infrastructure, including bollards, planters and other  physical  struc-
    29  tures, designed to protect life and property from acts of terror or mass
    30  violence.
    31    (a) A contractor selected by such an authorized entity to enter into a
    32  design-build  contract  shall  be selected through a two-step method, as
    33  follows:
    34    (1) Step one. Generation of a list of responding  entities  that  have
    35  demonstrated   the   general  capability  to  perform  the  design-build
    36  contract. Such list shall consist of a specified  number  of  responding
    37  entities,  as determined by an authorized entity, and shall be generated
    38  based upon the authorized entity's review of  responses  to  a  publicly
    39  advertised  request  for qualifications. The authorized entity's request
    40  for qualifications shall include a general  description  of  the  public
    41  work,  the  maximum  number of responding entities to be included on the
    42  list, the selection criteria to be used and the relative weight of  each
    43  criteria  in generating the list.  Such selection criteria shall include
    44  the qualifications and experience of the design and  construction  team,
    45  organization,  demonstrated  responsibility, ability of the team or of a
    46  member or members of the team to comply  with  applicable  requirements,
    47  including  the  provisions of articles 145, 147 and 148 of the education
    48  law, past record of compliance with the labor law, and such other quali-
    49  fications the authorized entity deems appropriate, which may include but
    50  are not limited  to  project  understanding,  financial  capability  and
    51  record  of  past  performance.  The authorized entity shall evaluate and
    52  rate all responding entities to the request for qualifications.    Based
    53  upon such ratings, the authorized entity shall list the responding enti-
    54  ties that shall receive a request for proposals in accordance with para-
    55  graph  two of this subdivision. To the extent consistent with applicable
    56  federal law, the authorized entity shall  consider,  when  awarding  any

        A. 7636--B                          4

     1  contract  pursuant  to this section, the participation of (i) responding
     2  entities that are certified as minority- or women-owned business  enter-
     3  prises  pursuant  to  article  15-A  of  the executive law, or certified
     4  pursuant  to local law as minority- or women-owned business enterprises,
     5  or, where the New York city school construction authority  acts  as  the
     6  authorized  entity,  certified  pursuant  to  section 1743 of the public
     7  authorities law; and (ii) small business concerns identified pursuant to
     8  subdivision (b) of section 139-g of the state finance law. In  addition,
     9  nothing  in this section shall be deemed to supersede any pre-qualifica-
    10  tion guidelines or requirements  otherwise  authorized  by  law  for  an
    11  authorized entity.
    12    (2) Step two. Selection of the proposal which is the best value to the
    13  authorized  entity.    The  authorized  entity shall issue a request for
    14  proposals to the responding entities listed pursuant to paragraph one of
    15  this subdivision. If such a responding entity  consists  of  a  team  of
    16  separate  entities,  the  entities that comprise such a team must remain
    17  unchanged from the responding entity as listed pursuant to paragraph one
    18  of this subdivision unless otherwise approved by the authorized  entity.
    19  The  request  for  proposals  shall set forth the public work's scope of
    20  work, and other requirements, as determined by  the  authorized  entity,
    21  which  may  include  separate  goals  for  work under the contract to be
    22  performed by businesses certified as minority- or  women-owned  business
    23  enterprises  pursuant  to  article  15-A of the executive law or section
    24  1743 of the public authorities law, or certified pursuant to  local  law
    25  as  minority-  or  women-owned  business  enterprises.  The  request for
    26  proposals shall also specify the criteria to be  used  to  evaluate  the
    27  responses  and the relative weight of each of such criteria. Such crite-
    28  ria shall include the proposal's cost, the  quality  of  the  proposal's
    29  solution,  the  qualifications and experience of the proposer, and other
    30  factors deemed pertinent by the authorized entity,  which  may  include,
    31  but  shall  not  be  limited  to,  the proposal's manner and schedule of
    32  project implementation, the proposer's ability to complete the work in a
    33  timely and satisfactory  manner,  maintenance  costs  of  the  completed
    34  public  work, maintenance of traffic approach, and community impact. Any
    35  contract awarded pursuant to this act shall be awarded to  a  responsive
    36  and  responsible  proposer,  which,  in consideration of these and other
    37  specified criteria deemed pertinent, offers the best  value,  as  deter-
    38  mined  by the authorized entity. The request for proposals shall include
    39  a statement that proposers shall designate in writing those portions  of
    40  the proposal that contain trade secrets or other proprietary information
    41  that  are to remain confidential; that the material designated as confi-
    42  dential shall be readily separable from the proposal.  Nothing  in  this
    43  subdivision  shall  be  construed to prohibit the authorized entity from
    44  negotiating final contract terms  and  conditions  including  cost.  All
    45  proposals  submitted shall be scored according to the criteria listed in
    46  the request for proposals and such final scores shall  be  published  on
    47  the  authorized  entity's website after registration of such contract or
    48  the date upon which such contract may be  implemented,  if  registration
    49  requirements do not apply.
    50    (b)  An  authorized  entity  awarding  a  design-build  contract  to a
    51  contractor offering the best value may but shall not be required to  use
    52  the following types of contracts:
    53    (1)  A  cost-plus  not  to  exceed  guaranteed  maximum  price form of
    54  contract in which the authorized entity shall be entitled to monitor and
    55  audit all costs. In establishing the schedule and process for  determin-

        A. 7636--B                          5

     1  ing  a  guaranteed  maximum  price,  the contract between the authorized
     2  entity and the contractor shall:
     3    (i)  Describe  the  scope  of the work and the cost of performing such
     4  work,
     5    (ii) Include a detailed line item cost breakdown,
     6    (iii) Include a list of all drawings, specifications and other  infor-
     7  mation on which the guaranteed maximum price is based,
     8    (iv)  Include  the  dates of substantial and final completion on which
     9  the guaranteed maximum price is based, and
    10    (v) Include a schedule of unit prices; or
    11    (2) A lump sum contract in which the contractor agrees to accept a set
    12  dollar amount for a  contract  which  comprises  a  single  bid  without
    13  providing  a  cost breakdown for all costs such as for equipment, labor,
    14  materials, as well as such contractor's profit for completing all  items
    15  of work comprising the public work.
    16    §  5.  Any  contract entered into pursuant to this act shall include a
    17  clause requiring that any professional services  regulated  by  articles
    18  145, 147 and 148 of the education law shall be performed and stamped and
    19  sealed, where appropriate, by a professional licensed in accordance with
    20  the appropriate article.
    21    §  6.  Construction  with  respect to each contract entered into by an
    22  authorized entity pursuant to this act shall be deemed a  "public  work"
    23  to  be  performed  in accordance with the provisions of article 8 of the
    24  labor law, as well as subject to sections 200, 240, 241 and 242 of  such
    25  law and enforcement of prevailing wage requirements pursuant to applica-
    26  ble law or, for projects or public works receiving federal aid, applica-
    27  ble  federal requirements for prevailing wage. Any contract entered into
    28  pursuant to this act shall  include  a  clause  requiring  the  selected
    29  design  builder  to  obligate  every  tier  of contractor working on the
    30  public work to comply with the project  labor  agreement  referenced  in
    31  section  three  of  this  act, and shall include project labor agreement
    32  compliance monitoring and enforcement  provisions  consistent  with  the
    33  applicable project labor agreement.
    34    §  7.  Each  contract entered into by an authorized entity pursuant to
    35  this act shall comply with the objectives  and  goals  relating  to  the
    36  performance  of design and construction services by minority- and women-
    37  owned business enterprises pursuant to, as applicable, section 6-129  of
    38  the  administrative  code  of  the  city  of  New York, subdivision 6 of
    39  section 8 of the New York city health  and  hospitals  corporation  act,
    40  section  1743  of the public authorities law, or, for projects or public
    41  works receiving federal aid, applicable federal requirements for  disad-
    42  vantaged  business  enterprises  or  minority-  and women-owned business
    43  enterprises.
    44    § 8. Public works undertaken by an authorized entity pursuant to  this
    45  act  shall  be  subject to the requirements of article 8 of the environ-
    46  mental conservation law, and, where applicable, the requirements of  the
    47  National Environmental Policy Act.
    48    §  9.  (a)  Notwithstanding  any provision of law to the contrary, all
    49  rights or benefits, including terms and conditions  of  employment,  and
    50  protection  of  civil  service  and  collective bargaining status of all
    51  employees of authorized entities solely in connection with  public  work
    52  undertaken  by  an  authorized  entity  pursuant  to  this act, shall be
    53  preserved and protected.
    54    (b) Nothing in this act shall result in the: (1) displacement  of  any
    55  currently  employed  worker  or  loss  of  position  (including  partial
    56  displacement such as a reduction in  the  hours  of  non-overtime  work,

        A. 7636--B                          6

     1  wages  or  employment benefits), or result in the impairment of existing
     2  collective bargaining agreements; and (2) transfer  of  existing  duties
     3  and  functions related to maintenance and operations currently performed
     4  by existing employees of authorized entities to a contractor.
     5    (c)  Employees  of  authorized  entities  using design-build contracts
     6  serving in positions in newly created titles shall be  assigned  to  the
     7  appropriate  bargaining  unit.  Nothing  contained  in this act shall be
     8  construed to affect (1) the existing rights of employees of  such  enti-
     9  ties  pursuant  to  an existing collective bargaining agreement, (2) the
    10  existing representational  relationships  among  employee  organizations
    11  representing employees of such entities, or (3) the bargaining relation-
    12  ships between such entities and such employee organizations.
    13    (d)  Without  limiting  contractors'  obligations  under  design-build
    14  contracts to issue  their  own  initial  certifications  of  substantial
    15  completion and final completion, public employees of authorized entities
    16  shall  review and determine whether the work performed by contractors is
    17  acceptable and has been performed  in  accordance  with  the  applicable
    18  design-build  contracts, and if such public employees so determine, such
    19  public  employees  shall  accept  contractors'  substantial   or   final
    20  completion  of the public works as applicable. Performance by authorized
    21  entities of any review  described  in  this  subdivision  shall  not  be
    22  construed  to  modify  or  limit contractors' obligations to perform the
    23  work in strict accordance with the applicable design-build contracts  or
    24  the contractors' or any subcontractors' obligations or liabilities under
    25  any law.
    26    §  10. The submission of a proposal or responses or the execution of a
    27  design-build contract pursuant to this act shall not be construed to  be
    28  a violation of section 6512 of the education law.
    29    §  11.  Nothing  contained  in this act shall limit the right or obli-
    30  gation of any authorized entity to comply with  the  provisions  of  any
    31  existing contract or to award contracts as otherwise provided by law.
    32    §  12.  The authority conferred by this act shall not impact or impair
    33  the application of section 1740 of the public authorities law concerning
    34  the use of outside design, drafting or inspection services, and shall be
    35  in addition to the authority conferred by any other law upon any author-
    36  ized entity, provided that any public work covered by the New York  city
    37  BQE  design-build act, the New York city housing authority modernization
    38  investment act or the New York city Rikers Island jail complex  replace-
    39  ment  act  shall  continue  to be governed by the provisions of such act
    40  while such provisions are in effect.
    41    § 13. A report shall be submitted no later  than  June  30,  2020  and
    42  annually  thereafter,  to  the  governor, the temporary president of the
    43  senate and the speaker of the assembly by the city of New York on behalf
    44  of its agencies, the New York city housing authority, the New York  city
    45  school  construction  authority, and the New York city health and hospi-
    46  tals corporation  containing  information  regarding  each  design-build
    47  contract  procured  pursuant  to  this  act. Such report shall include a
    48  description of each such design-build  contract,  information  regarding
    49  the  procurement  process  for each such design-build contract including
    50  the list of responding entities that demonstrated the general capability
    51  to perform the design-build contract pursuant to paragraph (1) of subdi-
    52  vision (a) of section four of this act, the total cost of  each  design-
    53  build  contract,  an explanation of the estimated savings resulting from
    54  the design-build method, and the participation rate of and total  dollar
    55  value  of  monies paid to minority- and women-owned business enterprises
    56  under such design-build contract.

        A. 7636--B                          7

     1    § 14. This act shall take effect immediately and shall expire  and  be
     2  deemed repealed three years after such date, provided that, public works
     3  with  requests  for  qualifications issued prior to such repeal shall be
     4  permitted to continue under this act notwithstanding such repeal.
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