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: (Passed) 2019-12-31 - APPROVAL MEMO.94 [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. LBD13145-02-9S. 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.
