Bill Text: NY A10709 | 2015-2016 | General Assembly | Introduced
Bill Title: Relates to public works undertaken pursuant to project labor agreements and the use of the alternative delivery method known as design-build contracts.
Spectrum: Partisan Bill (Democrat 3-0)
Status: (Introduced - Dead) 2016-06-16 - ordered to third reading rules cal.510 [A10709 Detail]
Download: New_York-2015-A10709-Introduced.html
STATE OF NEW YORK ________________________________________________________________________ 10709 IN ASSEMBLY June 13, 2016 ___________ Introduced by COMMITTEE ON RULES -- (at request of M. of A. Benedetto) -- read once and referred to the Committee on Cities 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. This act shall be known and may be cited as the "New York 2 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 and the New York city department of transportation. 7 (b) "Best value" shall mean the basis for awarding contracts for 8 services to a proposer that optimizes quality, cost and efficiency, 9 price and performance criteria, which may include, but is not limited 10 to: 11 (1) The quality of the proposer's performance on previous projects; 12 (2) The timeliness of the proposer's performance on previous projects; 13 (3) The level of customer satisfaction with the proposer's performance 14 on previous projects; 15 (4) The proposer's record of performing previous projects on budget 16 and ability to minimize cost overruns; 17 (5) The proposer's ability to limit change orders; 18 (6) The proposer's ability to prepare appropriate project plans; 19 (7) The proposer's technical capacities; 20 (8) The individual qualifications of the proposer's key personnel; 21 (9) The proposer's ability to assess and manage risk and minimize risk 22 impact; 23 (10) The proposer's financial capability; 24 (11) The proposer's past record of compliance with article 15-A of the 25 executive law or any other applicable laws concerning minority and 26 women-owned business enterprise participation; EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD15872-01-6A. 10709 2 1 (12) The proposer's past record of compliance with all other federal, 2 state and local laws, rules, licensing requirements, where applicable, 3 and executive orders, including but not limited to compliance with the 4 labor law and other applicable labor and prevailing wage laws; and 5 (13) The proposer's ability to comply with applicable requirements, 6 including the provisions of articles 145, 147 and 148 of the education 7 law. 8 Such basis shall reflect, wherever possible, objective and quantifi- 9 able analysis. 10 (c) "Cost plus" shall mean compensating a contractor for the cost to 11 complete a contract by reimbursing actual costs for labor, equipment and 12 materials plus an additional amount for overhead and profit. 13 (d) "Design-build contract" shall mean a contract for the design and 14 construction of a public work with a single entity, which may be a team 15 comprised of separate entities. 16 (e) "Project labor agreement" shall have the meaning set forth in 17 subdivision 1 of section 222 of the labor law. A project labor agreement 18 shall require participation in apprentice training programs in accord- 19 ance with paragraph (e) of subdivision 2 of such section. 20 § 3. Any contract for a public work undertaken pursuant to a project 21 labor agreement in accordance with section 222 of the labor law may be a 22 design-build contract to the extent authorized by this act. 23 § 4. Notwithstanding any general, special or local law, rule or regu- 24 lation to the contrary, including but not limited to article 5-A of the 25 general municipal law, and in conformity with the requirements of this 26 act, for any public work that has an estimated total cost of not less 27 than ten million dollars and is undertaken pursuant to a project labor 28 agreement in accordance with section 222 of the labor law, an authorized 29 entity charged with awarding a contract for public work may use the 30 alternative delivery method referred to as design-build contracts, 31 provided that such method may be used for no more than twenty-five 32 projects for all authorized entities, and provided further that such 33 method may be used only for public works related to physical infrastruc- 34 ture, including, but not limited to, highways, bridges, dams, flood 35 control projects, canals, and parks, including, but not limited to, to 36 repair damage caused by natural disaster, to correct health and safety 37 defects, to comply with federal and state laws, standards, and regu- 38 lations, to extend the useful life of or replace highways, bridges, 39 dams, flood control projects, canals, and parks or to improve or add to 40 highways, bridges, dams, flood control projects, canals, and parks. 41 (a) A contractor selected by such authorized entity to enter into a 42 design-build contract shall be selected through the submission of a 43 proposal which provides the best value. Such authorized entity shall 44 issue a request for proposals which shall set forth the scope of work, 45 and other requirements, as determined by the authorized entity. The 46 request for proposals shall specify the criteria to be used to evaluate 47 the responses and the relative weight of each of such criteria. Such 48 criteria shall include the proposal's cost, the quality of the 49 proposal's solution, the qualifications and experience of the proposer, 50 and other factors deemed pertinent by the authorized entity, which may 51 include, but shall not be limited to, the proposal's manner and schedule 52 of project implementation, the proposer's ability to complete the work 53 in a timely and satisfactory manner, maintenance costs of the completed 54 public work, maintenance of traffic approach, and community impact. Any 55 contract awarded pursuant to this act shall be awarded to a responsive 56 and responsible entity that submits the proposal, which, in consider-A. 10709 3 1 ation of these and other specified criteria deemed pertinent, offers the 2 best value, as determined by the authorized entity. Nothing in this act 3 shall be construed to prohibit the authorized entity from negotiating 4 final contract terms and conditions including cost. 5 (b) An authorized entity awarding a design-build contract to a 6 contractor offering the best value may but shall not be required to use 7 the following types of contracts: 8 (1) A cost-plus not to exceed guaranteed maximum price form of 9 contract in which the authorized entity shall be entitled to monitor and 10 audit all costs. In establishing the schedule and process for determin- 11 ing a guaranteed maximum price, the contract between the authorized 12 entity and the contractor shall: 13 (i) Describe the scope of the work and the cost of performing such 14 work, 15 (ii) Include a detailed line item cost breakdown, 16 (iii) Include a list of all drawings, specifications and other infor- 17 mation on which the guaranteed maximum price is based, 18 (iv) Include the dates of substantial and final completion on which 19 the guaranteed maximum price is based, and 20 (v) Include a schedule of unit prices; or 21 (2) A lump sum contract in which the contractor agrees to accept a set 22 dollar amount for a contract which comprises a single bid without 23 providing a cost breakdown for all costs such as for equipment, labor, 24 materials, as well as such contractor's profit for completing all items 25 of work comprising the public work. 26 § 5. Any contract entered into pursuant to this act shall include a 27 clause requiring that any professional services regulated by articles 28 145, 147 and 148 of the education law shall be performed and stamped and 29 sealed, where appropriate, by a professional licensed in accordance with 30 such articles. 31 § 6. Construction with respect to each contract entered into by an 32 authorized entity pursuant to this act shall be deemed a "public work" 33 to be performed in accordance with the provisions of article 8 of the 34 labor law, as well as subject to sections 200, 240, 241 and 242 of the 35 labor law and enforcement of prevailing wage requirements pursuant to 36 applicable law or, for projects or public works receiving federal aid, 37 applicable federal requirements for prevailing wage. Any contract 38 entered into pursuant to this act shall include a clause requiring the 39 selected design builder to obligate every tier of contractor working on 40 the project to comply with the project labor agreement referenced in 41 section three of this act, and shall include project labor agreement 42 compliance monitoring and enforcement provisions consistent with the 43 applicable project labor agreement. 44 § 7. Each contract entered into by an authorized entity pursuant to 45 this act shall comply with the objectives and goals with regard to 46 minority and women-owned business enterprises pursuant to section 6-129 47 of the administrative code of the city of New York, or, for projects or 48 public works receiving federal aid, applicable federal requirements for 49 disadvantaged business enterprises or minority and women-owned business 50 enterprises. 51 § 8. Public works undertaken by an authorized entity pursuant to this 52 act shall be subject to the requirements of article 8 of the environ- 53 mental conservation law, and, where applicable, the requirements of the 54 national environmental policy act. 55 § 9. (a) Notwithstanding any provision of law to the contrary, all 56 rights or benefits, including terms and conditions of employment, andA. 10709 4 1 protection of civil service and collective bargaining status of all 2 employees of authorized entities, shall not be impaired or reduced 3 because of the use of a design-build contract pursuant to this act. 4 (b) Nothing in this act shall result in the displacement of any 5 current employee of an authorized entity using design-build contracts 6 who is represented by a "certified employee organization" as defined by 7 section 12-303 of the New York city administrative code, or loss of 8 position of such employee (including partial displacement such as a 9 reduction in the hours of non-overtime work, wages or employment bene- 10 fits), or result in the impairment of existing collective bargaining 11 agreements. 12 (c) Employees of authorized entities using design-build contracts 13 serving in positions in newly created titles shall be assigned to the 14 appropriate bargaining unit. Nothing contained herein shall be construed 15 to affect (1) the existing rights of employees of such entities pursuant 16 to an existing collective bargaining agreement, (2) the existing repres- 17 entational relationships among employee organizations representing 18 employees of such entities or (3) the bargaining relationships between 19 such entities and such employee organizations. 20 § 10. The submission of a proposal or responses or the execution of a 21 design-build contract pursuant to this act shall not be construed to be 22 a violation of section 6512 of the education law. 23 § 11. Nothing contained in this act shall limit the right or obli- 24 gation of any authorized entity to comply with the provisions of any 25 existing contract or to award contracts as otherwise provided by law. 26 § 12. This act shall take effect immediately and shall expire and be 27 deemed repealed 5 years after such date; provided that, public works 28 with requests for proposals or requests for qualifications issued prior 29 to such repeal shall be permitted to continue pursuant to this act 30 notwithstanding such repeal.