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: (Passed) 2019-12-31 - APPROVAL MEMO.94 [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. LBD11524-05-9A. 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 anyA. 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.
