Bill Text: NY A11286 | 2017-2018 | General Assembly | Introduced


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

Spectrum: Partisan Bill (Democrat 2-0)

Status: (Introduced - Dead) 2018-07-25 - referred to cities [A11286 Detail]

Download: New_York-2017-A11286-Introduced.html


                STATE OF NEW YORK
        ________________________________________________________________________
                                          11286
                   IN ASSEMBLY
                                      July 25, 2018
                                       ___________
        Introduced  by  COMMITTEE  ON  RULES -- (at request of M. of A. Espinal,
          Aubry) -- 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.  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  and  the  New  York city health and hospitals
     6  corporation.
     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 ability to comply  with  applicable  requirements,
    25  including  the  provisions of articles 145, 147 and 148 of the education
    26  law;
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD16243-01-8

        A. 11286                            2
     1    (12) The proposer's past record of compliance with federal, state  and
     2  local  laws, rules, licensing requirements, where applicable, and execu-
     3  tive orders, including but not limited to compliance with the labor  law
     4  and other applicable labor and prevailing wage laws, article 15-A of the
     5  executive  law,  and  any other applicable laws concerning minority- and
     6  women-owned business enterprise participation;
     7    (13) The proposer's record of complying with existing labor standards,
     8  maintaining harmonious labor relations, and protecting  the  health  and
     9  safety  of workers and payment of wages above any locally-defined living
    10  wage; and
    11    (14) A quantitative factor to be used in evaluation of bids or  offers
    12  for  awarding of contracts for bidders or offerers that are certified as
    13  minority- or women-owned business enterprises as defined in subdivisions
    14  1, 7, 15 and 20 of section 310 of the executive law, or certified pursu-
    15  ant to local law as minority- or women-owned business enterprises.
    16    Such basis shall reflect, wherever possible, objective  and  quantifi-
    17  able analysis.
    18    (c)  "Cost  plus" shall mean compensating a contractor for the cost to
    19  complete a contract by reimbursing actual costs for labor, equipment and
    20  materials plus an additional amount for overhead and profit.
    21    (d) "Design-build contract" shall mean a contract for the  design  and
    22  construction  of a public work with a single entity, which may be a team
    23  comprised of separate entities.
    24    (e) "Project labor agreement" shall have  the  meaning  set  forth  in
    25  subdivision 1 of section 222 of the labor law. A project labor agreement
    26  shall  require  participation in apprentice training programs in accord-
    27  ance with paragraph (e) of subdivision 2 of such section.
    28    (f) "Public work" shall mean a public work in the  city  of  New  York
    29  related to the following, and shall refer to the Elmhurst Hospital emer-
    30  gency room renovation in Queens county.
    31    §  3.  Any contract for a public work undertaken pursuant to a project
    32  labor agreement in accordance with section 222 of the labor law may be a
    33  design-build contract in accordance with this act.
    34    § 4. Notwithstanding any general, special or local law, rule or  regu-
    35  lation  to the contrary, including but not limited to article 5-A of the
    36  general municipal law and section 8 of the  New  York  city  health  and
    37  hospitals  corporation  act,  and in conformity with the requirements of
    38  this act, for any public work that has an estimated total  cost  of  not
    39  less  than  ten  million dollars and is undertaken pursuant to a project
    40  labor agreement in accordance with section 222  of  the  labor  law,  an
    41  authorized  entity  charged with awarding a contract for public work may
    42  use  the  alternative  delivery  method  referred  to  as   design-build
    43  contracts.
    44    (a)  A  contractor  selected by such authorized entity to enter into a
    45  design-build contract shall be selected through a  two-step  method,  as
    46  follows:
    47    (1)  Step  one.  Generation of a list of responding entities that have
    48  demonstrated  the  general  capability  to  perform   the   design-build
    49  contract.  Such  list  shall consist of a specified number of responding
    50  entities, as determined by an authorized entity, and shall be  generated
    51  based  upon  the  authorized  entity's review of responses to a publicly
    52  advertised request for qualifications. The authorized  entity's  request
    53  for  qualifications  shall  include  a general description of the public
    54  work, the maximum number of responding entities to be  included  on  the
    55  list,  the selection criteria to be used and the relative weight of each
    56  criteria in generating the list.  Such selection criteria shall  include

        A. 11286                            3
     1  the  qualifications  and experience of the design and construction team,
     2  organization, demonstrated responsibility, ability of the team or  of  a
     3  member  or  members  of the team to comply with applicable requirements,
     4  including  the  provisions of articles 145, 147 and 148 of the education
     5  law, past record of compliance with the labor law, and such other quali-
     6  fications the authorized entity deems appropriate, which may include but
     7  are not limited  to  project  understanding,  financial  capability  and
     8  record  of  past  performance.  The authorized entity shall evaluate and
     9  rate all responding entities to the request for qualifications.    Based
    10  upon such ratings, the authorized entity shall list the responding enti-
    11  ties that shall receive a request for proposals in accordance with para-
    12  graph  two of this subdivision. To the extent consistent with applicable
    13  federal law, the authorized entity shall  consider,  when  awarding  any
    14  contract  pursuant  to this section, the participation of (i) responding
    15  entities that are certified as minority- or women-owned business  enter-
    16  prises  as defined in subdivisions 1, 7, 15 and 20 of section 310 of the
    17  executive law, or certified  pursuant  to  local  law  as  minority-  or
    18  women-owned business enterprises; and (ii) small business concerns iden-
    19  tified pursuant to subdivision (b) of section 139-g of the state finance
    20  law; and
    21    (2) Step two. Selection of the proposal which is the best value to the
    22  authorized  entity.    The  authorized  entity shall issue a request for
    23  proposals to the responding entities listed pursuant to paragraph one of
    24  this subdivision. If such a responding entity  consists  of  a  team  of
    25  separate  entities,  the  entities that comprise such a team must remain
    26  unchanged from the responding entity as listed pursuant to paragraph one
    27  of this subdivision unless otherwise approved by the authorized  entity.
    28  The  request  for  proposals  shall set forth the public work's scope of
    29  work, and other requirements, as determined by  the  authorized  entity,
    30  which  may  include  separate  goals  for  work under the contract to be
    31  performed by businesses certified as minority- or  women-owned  business
    32  enterprises as defined in subdivisions 1, 7, 15 and 20 of section 310 of
    33  the  executive  law,  or certified pursuant to local law as minority- or
    34  women-owned business enterprises. The request for proposals  shall  also
    35  specify  the criteria to be used to evaluate the responses and the rela-
    36  tive weight of each of such criteria. Such criteria  shall  include  the
    37  proposal's  cost, the quality of the proposal's solution, the qualifica-
    38  tions and experience of the proposer, and other factors deemed pertinent
    39  by the authorized entity, which may include, but shall  not  be  limited
    40  to,  the  proposal's  manner and schedule of project implementation, the
    41  proposer's ability to complete the work in  a  timely  and  satisfactory
    42  manner,  maintenance  costs of the completed public work, maintenance of
    43  traffic approach, and community impact. Any contract awarded pursuant to
    44  this act shall be awarded to  a  responsive  and  responsible  proposer,
    45  which,  in  consideration  of  these and other specified criteria deemed
    46  pertinent, offers the best value, as determined by the authorized  enti-
    47  ty.  The  request for proposals shall include a statement that proposers
    48  shall designate in writing those portions of the proposal  that  contain
    49  trade secrets or other proprietary information that are to remain confi-
    50  dential;  that  the material designated as confidential shall be readily
    51  separable from the  proposal.  Nothing  in  this  subdivision  shall  be
    52  construed  to  prohibit  the  authorized  entity  from negotiating final
    53  contract terms and conditions including cost.  All  proposals  submitted
    54  shall  be  scored  according  to  the criteria listed in the request for
    55  proposals and such final scores shall be  published  on  the  authorized
    56  entity's website.

        A. 11286                            4
     1    (b)  An  authorized  entity  awarding  a  design-build  contract  to a
     2  contractor offering the best value may but shall not be required to  use
     3  the following types of contracts:
     4    (1)  A  cost-plus  not  to  exceed  guaranteed  maximum  price form of
     5  contract in which the authorized entity shall be entitled to monitor and
     6  audit all costs. In establishing the schedule and process for  determin-
     7  ing  a  guaranteed  maximum  price,  the contract between the authorized
     8  entity and the contractor shall:
     9    (i) Describe the scope of the work and the  cost  of  performing  such
    10  work,
    11    (ii) Include a detailed line item cost breakdown,
    12    (iii)  Include a list of all drawings, specifications and other infor-
    13  mation on which the guaranteed maximum price is based,
    14    (iv) Include the dates of substantial and final  completion  on  which
    15  the guaranteed maximum price is based, and
    16    (v) Include a schedule of unit prices; or
    17    (2) A lump sum contract in which the contractor agrees to accept a set
    18  dollar  amount  for  a  contract  which  comprises  a single bid without
    19  providing a cost breakdown for all costs such as for  equipment,  labor,
    20  materials,  as well as such contractor's profit for completing all items
    21  of work comprising the public work.
    22    § 5. Any contract entered into pursuant to this act  shall  include  a
    23  clause  requiring  that  any professional services regulated by articles
    24  145, 147 and 148 of the education law shall be performed and stamped and
    25  sealed, where appropriate, by a professional licensed in accordance with
    26  the appropriate article.
    27    § 6. Construction with respect to each contract  entered  into  by  an
    28  authorized  entity  pursuant to this act shall be deemed a "public work"
    29  to be performed in accordance with the provisions of article  8  of  the
    30  labor  law, as well as subject to sections 200, 240, 241 and 242 of such
    31  law and enforcement of prevailing wage requirements pursuant to applica-
    32  ble law or, for projects or public works receiving federal aid, applica-
    33  ble federal requirements for prevailing wage. Any contract entered  into
    34  pursuant  to  this  act  shall  include  a clause requiring the selected
    35  design builder to obligate every  tier  of  contractor  working  on  the
    36  public  work  to  comply  with the project labor agreement referenced in
    37  section three of this act, and shall  include  project  labor  agreement
    38  compliance  monitoring  and  enforcement  provisions consistent with the
    39  applicable project labor agreement.
    40    § 7. Each contract entered into by an authorized  entity  pursuant  to
    41  this  act  shall  comply  with  the  objectives and goals with regard to
    42  minority- and women-owned business enterprises pursuant to, as  applica-
    43  ble,  section  6-129  of the administrative code of the city of New York
    44  and subdivision 6 of section 8 of the New York city health and hospitals
    45  corporation act, or, for projects or public works receiving federal aid,
    46  applicable federal requirements for disadvantaged  business  enterprises
    47  or minority- and women-owned business enterprises.
    48    §  8. Public works undertaken by an authorized entity pursuant to this
    49  act shall be subject to the requirements of article 8  of  the  environ-
    50  mental  conservation law, and, where applicable, the requirements of the
    51  National Environmental Policy Act.
    52    § 9. (a) Notwithstanding any provision of law  to  the  contrary,  all
    53  rights  or  benefits,  including terms and conditions of employment, and
    54  protection of civil service and  collective  bargaining  status  of  all
    55  employees  of  authorized  entities solely in connection with the public

        A. 11286                            5
     1  work identified in subdivision (f) of section two of this act, shall  be
     2  preserved and protected.
     3    (b)  Nothing  in this act shall result in the: (1) displacement of any
     4  currently  employed  worker  or  loss  of  position  (including  partial
     5  displacement  such  as  a  reduction  in the hours of non-overtime work,
     6  wages or employment benefits), or result in the impairment  of  existing
     7  collective  bargaining  agreements;  and (2) transfer of existing duties
     8  and functions related to maintenance and operations currently  performed
     9  by existing employees of authorized entities to a contractor.
    10    (c)  Employees  of  authorized  entities  using design-build contracts
    11  serving in positions in newly created titles shall be  assigned  to  the
    12  appropriate  bargaining  unit.  Nothing  contained  in this act shall be
    13  construed to affect (1) the existing rights of employees of  such  enti-
    14  ties  pursuant  to  an existing collective bargaining agreement, (2) the
    15  existing representational  relationships  among  employee  organizations
    16  representing employees of such entities, or (3) the bargaining relation-
    17  ships between such entities and such employee organizations.
    18    §  10. The submission of a proposal or responses or the execution of a
    19  design-build contract pursuant to this act shall not be construed to  be
    20  a violation of section 6512 of the education law.
    21    §  11.  Nothing  contained  in this act shall limit the right or obli-
    22  gation of any authorized entity to comply with  the  provisions  of  any
    23  existing contract or to award contracts as otherwise provided by law.
    24    §  12.  This act shall take effect immediately and shall expire and be
    25  deemed repealed 4 years after such date;  provided  that,  public  works
    26  with  requests  for  qualifications issued prior to such repeal shall be
    27  permitted to continue under this act notwithstanding such repeal.
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