Bill Text: NY S06293 | 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 5-0)

Status: (Engrossed) 2019-06-19 - returned to senate [S06293 Detail]

Download: New_York-2019-S06293-Amended.html



                STATE OF NEW YORK
        ________________________________________________________________________

                                         6293--A

                               2019-2020 Regular Sessions

                    IN SENATE

                                      June 3, 2019
                                       ___________

        Introduced  by  Sens.  COMRIE,  JACKSON,  LIU  -- read twice and ordered
          printed, and when printed to be committed to the Committee on Rules --
          committee discharged, bill amended, ordered reprinted as  amended  and
          recommitted to said committee

        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;
    20    (5) The proposer's ability to limit change orders;
    21    (6) The proposer's ability to prepare appropriate project plans;

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD13145-02-9

        S. 6293--A                          2

     1    (7) The proposer's technical capacities;
     2    (8) The individual qualifications of the proposer's key personnel;
     3    (9) The proposer's ability to assess and manage risk and minimize risk
     4  impact;
     5    (10) The proposer's financial capability;
     6    (11)  The  proposer's  ability to comply with applicable requirements,
     7  including the provisions of articles 145, 147 and 148 of  the  education
     8  law;
     9    (12)  The proposer's past record of compliance with federal, state and
    10  local laws, rules, licensing requirements, where applicable, and  execu-
    11  tive  orders, including but not limited to compliance with the labor law
    12  and other applicable labor and prevailing wage laws, article 15-A of the
    13  executive law, and any other applicable laws  concerning  minority-  and
    14  women-owned business enterprise participation;
    15    (13) The proposer's record of complying with existing labor standards,
    16  maintaining  harmonious  labor  relations, and protecting the health and
    17  safety of workers and payment of wages above any locally-defined  living
    18  wage; and
    19    (14)  A quantitative factor to be used in evaluation of bids or offers
    20  for awarding of contracts for bidders or offerers that are certified  as
    21  minority-  or  women-owned business enterprises pursuant to article 15-A
    22  of the executive law, and certified pursuant to local law  as  minority-
    23  or  women-owned business enterprises. Where an agency identifies a quan-
    24  titative factor pursuant to this paragraph, the agency must specify that
    25  businesses certified as minority- or  women-owned  business  enterprises
    26  pursuant to article 15-A of the executive law as well as those certified
    27  as  minority- or women-owned business enterprises or pursuant to section
    28  1304 of the New York city charter  are  eligible  to  qualify  for  such
    29  factor.  Nothing  in  this paragraph shall be construed as a requirement
    30  that such businesses be concurrently certified as  minority-  or  women-
    31  owned  business enterprises under both article 15-A of the executive law
    32  and section 1304 of the New York city charter to qualify for such  quan-
    33  titative   factors.   In  addition,  where  the  New  York  city  school
    34  construction authority acts as the authorized entity, businesses  certi-
    35  fied  as  minority-  or  women-owned  business  enterprises  pursuant to
    36  section 1743 of the public authorities law shall be eligible to  qualify
    37  for such factor.
    38    Such  basis  shall reflect, wherever possible, objective and quantifi-
    39  able analysis.
    40    (c) "Cost plus" shall mean compensating a contractor for the  cost  to
    41  complete a contract by reimbursing actual costs for labor, equipment and
    42  materials plus an additional amount for overhead and profit.
    43    (d)  "Design-build  contract" shall mean a contract for the design and
    44  construction of a public work with a single entity, which may be a  team
    45  comprised of separate entities.
    46    (e)  "Project  labor  agreement"  shall  have the meaning set forth in
    47  subdivision 1 of section 222 of the labor law. A project labor agreement
    48  shall require participation in apprentice training programs  in  accord-
    49  ance with paragraph (e) of subdivision 2 of such section.
    50    §  3.  Any contract for a public work undertaken pursuant to a project
    51  labor agreement in accordance with section 222 of the labor law may be a
    52  design-build contract in accordance with this act.
    53    § 4. Notwithstanding any general, special or local law, rule or  regu-
    54  lation to the contrary, including but not limited to section 7210 of the
    55  education  law,  article  5-A of the general municipal law, article 8 of
    56  the public  housing law, sections 1734 and 1735 of the  public  authori-

        S. 6293--A                          3

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

        S. 6293--A                          4

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

        S. 6293--A                          5

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

        S. 6293--A                          6

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