Bill Text: NY A07636 | 2019-2020 | General Assembly | Amended
NOTE: There are more recent revisions of this legislation. Read Latest Draft
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: (Passed) 2019-12-31 - APPROVAL MEMO.94 [A07636 Detail]
Download: New_York-2019-A07636-Amended.html
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: (Passed) 2019-12-31 - APPROVAL MEMO.94 [A07636 Detail]
Download: New_York-2019-A07636-Amended.html
STATE OF NEW YORK ________________________________________________________________________ 7636--A 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 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; 18 (4) The proposer's record of performing previous projects on budget 19 and ability to minimize cost overruns; EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD11524-03-9A. 7636--A 2 1 (5) The proposer's ability to limit change orders; 2 (6) The proposer's ability to prepare appropriate project plans; 3 (7) The proposer's technical capacities; 4 (8) The individual qualifications of the proposer's key personnel; 5 (9) The proposer's ability to assess and manage risk and minimize risk 6 impact; 7 (10) The proposer's financial capability; 8 (11) The proposer's ability to comply with applicable requirements, 9 including the provisions of articles 145, 147 and 148 of the education 10 law; 11 (12) The proposer's past record of compliance with federal, state and 12 local laws, rules, licensing requirements, where applicable, and execu- 13 tive orders, including but not limited to compliance with the labor law 14 and other applicable labor and prevailing wage laws, article 15-A of the 15 executive law, and any other applicable laws concerning minority- and 16 women-owned business enterprise participation; 17 (13) The proposer's record of complying with existing labor standards, 18 maintaining harmonious labor relations, and protecting the health and 19 safety of workers and payment of wages above any locally-defined living 20 wage; and 21 (14) A quantitative factor to be used in evaluation of bids or offers 22 for awarding of contracts for bidders or offerers that are certified as 23 minority- or women-owned business enterprises pursuant to article 15-A 24 of the executive law, and certified pursuant to local law as minority- 25 or women-owned business enterprises. Where an agency identifies a quan- 26 titative factor pursuant to this paragraph, the agency must specify that 27 businesses certified as minority- or women-owned business enterprises 28 pursuant to article 15-A of the executive law as well as those certified 29 as minority- or women-owned business enterprises or pursuant to section 30 1304 of the New York city charter are eligible to qualify for such 31 factor. Nothing in this paragraph shall be construed as a requirement 32 that such businesses be concurrently certified as minority- or women- 33 owned business enterprises under both article 15-A of the executive law 34 and section 1304 of the New York city charter to qualify for such quan- 35 titative factors. In addition, where the New York city school 36 construction authority acts as the authorized entity, businesses certi- 37 fied as minority- or women-owned business enterprises pursuant to 38 section 1743 of the public authorities law shall be eligible to qualify 39 for such factor. 40 Such basis shall reflect, wherever possible, objective and quantifi- 41 able analysis. 42 (c) "Cost plus" shall mean compensating a contractor for the cost to 43 complete a contract by reimbursing actual costs for labor, equipment and 44 materials plus an additional amount for overhead and profit. 45 (d) "Design-build contract" shall mean a contract for the design and 46 construction of a public work with a single entity, which may be a team 47 comprised of separate entities. 48 (e) "Project labor agreement" shall have the meaning set forth in 49 subdivision 1 of section 222 of the labor law. A project labor agreement 50 shall require participation in apprentice training programs in accord- 51 ance with paragraph (e) of subdivision 2 of such section. 52 § 3. Any contract for a public work undertaken pursuant to a project 53 labor agreement in accordance with section 222 of the labor law may be a 54 design-build contract in accordance with this act. 55 § 4. Notwithstanding any general, special or local law, rule or regu- 56 lation to the contrary, including but not limited to section 7210 of theA. 7636--A 3 1 education law, article 5-A of the general municipal law, article 8 of 2 the public housing law, sections 1734 and 1735 of the public authori- 3 ties law and section 8 of the New York city health and hospitals corpo- 4 ration act, and in conformity with the requirements of this act, for any 5 public work that has an estimated cost of not less than 1.2 million 6 dollars and is undertaken pursuant to a project labor agreement in 7 accordance with section 222 of the labor law, an authorized entity 8 charged with awarding a contract for public work may use the alternative 9 delivery method referred to as design-build contracts. 10 (a) A contractor selected by such an authorized entity to enter into a 11 design-build contract shall be selected through a two-step method, as 12 follows: 13 (1) Step one. Generation of a list of responding entities that have 14 demonstrated the general capability to perform the design-build 15 contract. Such list shall consist of a specified number of responding 16 entities, as determined by an authorized entity, and shall be generated 17 based upon the authorized entity's review of responses to a publicly 18 advertised request for qualifications. The authorized entity's request 19 for qualifications shall include a general description of the public 20 work, the maximum number of responding entities to be included on the 21 list, the selection criteria to be used and the relative weight of each 22 criteria in generating the list. Such selection criteria shall include 23 the qualifications and experience of the design and construction team, 24 organization, demonstrated responsibility, ability of the team or of a 25 member or members of the team to comply with applicable requirements, 26 including the provisions of articles 145, 147 and 148 of the education 27 law, past record of compliance with the labor law, and such other quali- 28 fications the authorized entity deems appropriate, which may include but 29 are not limited to project understanding, financial capability and 30 record of past performance. The authorized entity shall evaluate and 31 rate all responding entities to the request for qualifications. Based 32 upon such ratings, the authorized entity shall list the responding enti- 33 ties that shall receive a request for proposals in accordance with para- 34 graph two of this subdivision. To the extent consistent with applicable 35 federal law, the authorized entity shall consider, when awarding any 36 contract pursuant to this section, the participation of (i) responding 37 entities that are certified as minority- or women-owned business enter- 38 prises pursuant to article 15-A of the executive law, or certified 39 pursuant to local law as minority- or women-owned business enterprises, 40 or, where the New York city school construction authority acts as the 41 authorized entity, certified pursuant to section 1743 of the public 42 authorities law; and (ii) small business concerns identified pursuant to 43 subdivision (b) of section 139-g of the state finance law. In addition, 44 nothing in this section shall be deemed to supersede any pre-qualifica- 45 tion guidelines or requirements otherwise authorized by law for an 46 authorized entity. 47 (2) Step two. Selection of the proposal which is the best value to the 48 authorized entity. The authorized entity shall issue a request for 49 proposals to the responding entities listed pursuant to paragraph one of 50 this subdivision. If such a responding entity consists of a team of 51 separate entities, the entities that comprise such a team must remain 52 unchanged from the responding entity as listed pursuant to paragraph one 53 of this subdivision unless otherwise approved by the authorized entity. 54 The request for proposals shall set forth the public work's scope of 55 work, and other requirements, as determined by the authorized entity, 56 which may include separate goals for work under the contract to beA. 7636--A 4 1 performed by businesses certified as minority- or women-owned business 2 enterprises pursuant to article 15-A of the executive law or section 3 1743 of the public authorities law, or certified pursuant to local law 4 as minority- or women-owned business enterprises. The request for 5 proposals shall also specify the criteria to be used to evaluate the 6 responses and the relative weight of each of such criteria. Such crite- 7 ria shall include the proposal's cost, the quality of the proposal's 8 solution, the qualifications and experience of the proposer, and other 9 factors deemed pertinent by the authorized entity, which may include, 10 but shall not be limited to, the proposal's manner and schedule of 11 project implementation, the proposer's ability to complete the work in a 12 timely and satisfactory manner, maintenance costs of the completed 13 public work, maintenance of traffic approach, and community impact. Any 14 contract awarded pursuant to this act shall be awarded to a responsive 15 and responsible proposer, which, in consideration of these and other 16 specified criteria deemed pertinent, offers the best value, as deter- 17 mined by the authorized entity. The request for proposals shall include 18 a statement that proposers shall designate in writing those portions of 19 the proposal that contain trade secrets or other proprietary information 20 that are to remain confidential; that the material designated as confi- 21 dential shall be readily separable from the proposal. Nothing in this 22 subdivision shall be construed to prohibit the authorized entity from 23 negotiating final contract terms and conditions including cost. All 24 proposals submitted shall be scored according to the criteria listed in 25 the request for proposals and such final scores shall be published on 26 the authorized entity's website. 27 (b) An authorized entity awarding a design-build contract to a 28 contractor offering the best value may but shall not be required to use 29 the following types of contracts: 30 (1) A cost-plus not to exceed guaranteed maximum price form of 31 contract in which the authorized entity shall be entitled to monitor and 32 audit all costs. In establishing the schedule and process for determin- 33 ing a guaranteed maximum price, the contract between the authorized 34 entity and the contractor shall: 35 (i) Describe the scope of the work and the cost of performing such 36 work, 37 (ii) Include a detailed line item cost breakdown, 38 (iii) Include a list of all drawings, specifications and other infor- 39 mation on which the guaranteed maximum price is based, 40 (iv) Include the dates of substantial and final completion on which 41 the guaranteed maximum price is based, and 42 (v) Include a schedule of unit prices; or 43 (2) A lump sum contract in which the contractor agrees to accept a set 44 dollar amount for a contract which comprises a single bid without 45 providing a cost breakdown for all costs such as for equipment, labor, 46 materials, as well as such contractor's profit for completing all items 47 of work comprising the public work. 48 § 5. Any contract entered into pursuant to this act shall include a 49 clause requiring that any professional services regulated by articles 50 145, 147 and 148 of the education law shall be performed and stamped and 51 sealed, where appropriate, by a professional licensed in accordance with 52 the appropriate article. 53 § 6. Construction with respect to each contract entered into by an 54 authorized entity pursuant to this act shall be deemed a "public work" 55 to be performed in accordance with the provisions of article 8 of the 56 labor law, as well as subject to sections 200, 240, 241 and 242 of suchA. 7636--A 5 1 law and enforcement of prevailing wage requirements pursuant to applica- 2 ble law or, for projects or public works receiving federal aid, applica- 3 ble federal requirements for prevailing wage. Any contract entered into 4 pursuant to this act shall include a clause requiring the selected 5 design builder to obligate every tier of contractor working on the 6 public work to comply with the project labor agreement referenced in 7 section three of this act, and shall include project labor agreement 8 compliance monitoring and enforcement provisions consistent with the 9 applicable project labor agreement. 10 § 7. Each contract entered into by an authorized entity pursuant to 11 this act shall comply with the objectives and goals with regard to 12 minority- and women-owned business enterprises pursuant to, as applica- 13 ble, section 6-129 of the administrative code of the city of New York, 14 subdivision 6 of section 8 of the New York city health and hospitals 15 corporation act, section 1743 of the public authorities law, or, for 16 projects or public works receiving federal aid, applicable federal 17 requirements for disadvantaged business enterprises or minority- and 18 women-owned business enterprises. 19 § 8. Public works undertaken by an authorized entity pursuant to this 20 act shall be subject to the requirements of article 8 of the environ- 21 mental conservation law, and, where applicable, the requirements of the 22 National Environmental Policy Act. 23 § 9. (a) Notwithstanding any provision of law to the contrary, all 24 rights or benefits, including terms and conditions of employment, and 25 protection of civil service and collective bargaining status of all 26 employees of authorized entities solely in connection with public work 27 undertaken by an authorized entity pursuant to this act, shall be 28 preserved and protected. 29 (b) Nothing in this act shall result in the: (1) displacement of any 30 currently employed worker or loss of position (including partial 31 displacement such as a reduction in the hours of non-overtime work, 32 wages or employment benefits), or result in the impairment of existing 33 collective bargaining agreements; and (2) transfer of existing duties 34 and functions related to maintenance and operations currently performed 35 by existing employees of authorized entities to a contractor. 36 (c) Employees of authorized entities using design-build contracts 37 serving in positions in newly created titles shall be assigned to the 38 appropriate bargaining unit. Nothing contained in this act shall be 39 construed to affect (1) the existing rights of employees of such enti- 40 ties pursuant to an existing collective bargaining agreement, (2) the 41 existing representational relationships among employee organizations 42 representing employees of such entities, or (3) the bargaining relation- 43 ships between such entities and such employee organizations. 44 § 10. The submission of a proposal or responses or the execution of a 45 design-build contract pursuant to this act shall not be construed to be 46 a violation of section 6512 of the education law. 47 § 11. Nothing contained in this act shall limit the right or obli- 48 gation of any authorized entity to comply with the provisions of any 49 existing contract or to award contracts as otherwise provided by law. 50 § 12. The authority conferred by this act shall be in addition to the 51 authority conferred by any other law upon any authorized entity, 52 provided that any public work covered by the New York city BQE design- 53 build act, the New York city housing authority modernization investment 54 act or the New York city Rikers Island jail complex replacement act 55 shall continue to be governed by the provisions of such act while such 56 provisions are in effect.A. 7636--A 6 1 § 13. 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.
