Bill Text: NY S06293 | 2019-2020 | General Assembly | Introduced
NOTE: There are more recent revisions of this legislation. Read Latest Draft
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-Introduced.html
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-Introduced.html
STATE OF NEW YORK ________________________________________________________________________ 6293 2019-2020 Regular Sessions IN SENATE June 3, 2019 ___________ Introduced by Sens. COMRIE, JACKSON -- read twice and ordered printed, and when printed to be committed to the Committee on Rules AN ACT to amend chapter 59 of the laws of 2018, constituting the New York city BQE Design-Build act, in relation to public work authori- zation and the effectiveness thereof and repealing certain provisions of such chapter relating thereto The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. Section 1 of part QQQ of chapter 59 of the laws of 2018, 2 constituting the New York city BQE Design-Build act, is amended to read 3 as follows: 4 Section 1. This act shall be known and may be cited as the "New York 5 city [BQE] Design-Build act". 6 § 2. Section 2 of part QQQ of chapter 59 of the laws of 2018, consti- 7 tuting the New York city BQE Design-Build act, is amended to read as 8 follows: 9 § 2. For the purposes of this act: 10 (a) "Authorized entity" shall mean the New York city department of 11 design and construction, [and] the New York city department of transpor- 12 tation, the New York city department of environmental protection, the 13 New York city school construction authority, the New York city depart- 14 ment of parks and recreation, the New York city health and hospitals 15 corporation, and New York city housing authority. 16 (b) "Best value" shall mean the basis for awarding contracts for 17 services to a proposer that optimizes quality, cost and efficiency, 18 price and performance criteria, which may include, but is not limited 19 to: 20 (1) The quality of the proposer's performance on previous projects; 21 (2) The timeliness of the proposer's performance on previous projects; 22 (3) The level of customer satisfaction with the proposer's performance 23 on previous projects; EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD13145-01-9S. 6293 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. Such basis shall reflect, wherever possible, objective 42 and quantifiable analysis. 43 (c) "Cost plus" shall mean compensating a contractor for the cost to 44 complete a contract by reimbursing actual costs for labor, equipment and 45 materials plus an additional amount for overhead and profit. 46 (d) "Design-build contract" shall mean a contract for the design and 47 construction of a public work with a single entity, which may be a team 48 comprised of separate entities. 49 (e) "Project labor agreement" shall have the meaning set forth in 50 subdivision 1 of section 222 of the labor law. A project labor agreement 51 shall require participation in apprentice training programs in accord- 52 ance with paragraph (e) of subdivision 2 of such section. 53 [(f) "Public work" shall mean a public work in the city of New York54related to the following, and shall refer to this public work; Brooklyn55Queens Expressway, from the vicinity of Atlantic avenue to the vicinity56of Sands street in Kings county.]S. 6293 3 1 § 3. Section 4 of part QQQ of chapter 59 of the laws of 2018, consti- 2 tuting the New York city BQE Design-Build act, is amended to read as 3 follows: 4 § 4. Notwithstanding any general, special or local law, rule or regu- 5 lation to the contrary, including but not limited to article 5-A of the 6 general municipal law, sections 1734 and 1735 of the public authorities 7 law, article 8 of the public housing law, section 7210 of the education 8 law, and section 8 of the New York city health and hospitals corporation 9 act, and in conformity with the requirements of this act, for any public 10 work that has an estimated cost of not less than ten million dollars and 11 is undertaken pursuant to a project labor agreement in accordance with 12 section 222 of the labor law, an authorized entity charged with awarding 13 a contract for public work may use the alternative delivery method 14 referred to as design-build contracts. Provided, however, that the New 15 York city department of parks and recreation is authorized to use the 16 alternative delivery method referred to as design-build contracts for 17 any public work and the New York city department of design and 18 construction is authorized to use design-build contracts for any munici- 19 pally owned homeland security bollard, library, museum, or pedestrian 20 ramp project that has an estimated cost of not less than one million two 21 hundred thousand dollars if such public work is otherwise in conformity 22 with the requirements of this act. 23 (a) A contractor selected by such authorized entity to enter into a 24 design-build contract shall be selected through a two-step method, as 25 follows: 26 (1) Step one. Generation of a list of responding entities that have 27 demonstrated the general capability to perform the design-build 28 contract. Such list shall consist of a specified number of responding 29 entities, as determined by an authorized entity, and shall be generated 30 based upon the authorized entity's review of responses to a publicly 31 advertised request for qualifications. The authorized entity's request 32 for qualifications shall include a general description of the public 33 work, the maximum number of responding entities to be included on the 34 list, the selection criteria to be used and the relative weight of each 35 criteria in generating the list. Such selection criteria shall include 36 the qualifications and experience of the design and construction team, 37 organization, demonstrated responsibility, ability of the team or of a 38 member or members of the team to comply with applicable requirements, 39 including the provisions of articles 145, 147, and 148 of the education 40 law, past record of compliance with the labor law, and such other quali- 41 fications the authorized entity deems appropriate, which may include but 42 are not limited to project understanding, financial capability and 43 record of past performance. The authorized entity shall evaluate and 44 rate all responding entities to the request for qualifications. Based 45 upon such ratings, the authorized entity shall list the responding enti- 46 ties that shall receive a request for proposals in accordance with para- 47 graph two of this subdivision. To the extent consistent with applicable 48 federal law, the authorized entity shall consider, when awarding any 49 contract pursuant to this section, the participation of: (i) responding 50 entities that are certified as minority- or women-owned business enter- 51 prises pursuant to article 15-A of the executive law, or certified 52 pursuant to local law as minority- or women-owned business enterprises; 53 and (ii) small business concerns identified pursuant to subdivision (b) 54 of section 139-g of the state finance law. 55 (2) Step two. Selection of the proposal which is the best value to the 56 authorized entity. The authorized entity shall issue a request forS. 6293 4 1 proposals to the responding entities listed pursuant to paragraph one of 2 this subdivision. If such a responding entity consists of a team of 3 separate entities, the entities that comprise such a team must remain 4 unchanged from the responding entity as listed pursuant to paragraph one 5 of this subdivision unless otherwise approved by the authorized entity. 6 The request for proposals shall set forth the public work's scope of 7 work, and other requirements, as determined by the authorized entity, 8 which may include separate goals for work under the contract to be 9 performed by businesses certified as minority- or women-owned business 10 enterprises pursuant to article 15-A of the executive law or section 11 1743 of the public authorities law, or certified pursuant to local law 12 as minority- or women-owned business enterprises. The request for 13 proposals shall also specify the criteria to be used to evaluate the 14 responses and the relative weight of each of such criteria. Such crite- 15 ria shall include the proposal's cost, the quality of the proposal's 16 solution, the qualifications and experience of the proposer, and other 17 factors deemed pertinent by the authorized entity, which may include, 18 but shall not be limited to, the proposal's manner and schedule of 19 project implementation, the proposer's ability to complete the work in a 20 timely and satisfactory manner, maintenance costs of the completed 21 public work, maintenance of traffic approach, and community impact. Any 22 contract awarded pursuant to this act shall be awarded to a responsive 23 and responsible proposer, which, in consideration of these and other 24 specified criteria deemed pertinent, offers the best value, as deter- 25 mined by the authorized entity. The request for proposals shall include 26 a statement that proposers shall designate in writing those portions of 27 the proposal that contain trade secrets or other proprietary information 28 that are to remain confidential; that the material designated as confi- 29 dential shall be readily separable from the proposal. Nothing in this 30 subdivision shall be construed to prohibit the authorized entity from 31 negotiating final contract terms and conditions including cost. All 32 proposals submitted shall be scored according to the criteria listed in 33 the request for proposals and such final scores shall be published on 34 the authorized entity's website. 35 (b) An authorized entity awarding a design-build contract to a 36 contractor offering the best value may but shall not be required to use 37 the following types of contracts: 38 (1) A cost-plus not to exceed guaranteed maximum price form of 39 contract in which the authorized entity shall be entitled to monitor and 40 audit all costs. In establishing the schedule and process for determin- 41 ing a guaranteed maximum price, the contract between the authorized 42 entity and the contractor shall: 43 (i) Describe the scope of the work and the cost of performing such 44 work, 45 (ii) Include a detailed line item cost breakdown, 46 (iii) Include a list of all drawings, specifications and other infor- 47 mation on which the guaranteed maximum price is based, 48 (iv) Include the dates of substantial and final completion on which 49 the guaranteed maximum price is based, and 50 (v) Include a schedule of unit prices; or 51 (2) A lump sum contract in which the contractor agrees to accept a set 52 dollar amount for a contract which comprises a single bid without 53 providing a cost breakdown for all costs such as for equipment, labor, 54 materials, as well as such contractor's profit for completing all items 55 of work comprising the public work.S. 6293 5 1 § 4. Section 7 of part QQQ of chapter 59 of the laws of 2018, consti- 2 tuting the New York city BQE Design-Build act, is amended to read as 3 follows: 4 § 7. Each contract entered into by an authorized entity pursuant to 5 this act shall comply with the objectives and goals with regard to 6 minority- and women-owned business enterprises pursuant to, as applica- 7 ble, section 6-129 of the administrative code of the city of New York, 8 subdivision 6 of section 8 of the New York city health and hospitals 9 corporation act, section 1743 of the public authorities law or, for 10 projects or public works receiving federal aid, applicable federal 11 requirements for disadvantaged business enterprises or minority- and 12 women-owned business enterprises. 13 § 5. Section 9 of part QQQ of chapter 59 of the laws of 2018, consti- 14 tuting the New York city BQE Design-Build act, is amended by adding a 15 new subdivision (d) to read as follows: 16 (d) Provided further that any design-build contract and project 17 authorized pursuant to this act shall require quality assurance activ- 18 ities, including but not limited to construction inspection functions, 19 to be performed by city employees or city workforce engineers through 20 the project completion or final acceptance phase. 21 § 6. Section 12 of part QQQ of chapter 59 of the laws of 2018, consti- 22 tuting the New York city BQE Design-Build act, is REPEALED and a new 23 section 12 is added to read as follows: 24 § 12. The authority conferred by this act shall not impact or impair 25 the authorization granted to any public work covered by the New York 26 city BQE Design-Build act, the New York city housing authority modern- 27 ization investment act or the New York city Rikers Island jail complex 28 replacement act shall continue to be governed by the provisions of such 29 act while such provisions are in effect. 30 § 7. Part QQQ of chapter 59 of the laws of 2018, constituting the New 31 York city BQE Design-Build act, is amended by adding a new section 12-a 32 to read as follows: 33 § 12-a. A report shall be submitted no later than June 30, 2020 and 34 annually thereafter, to the governor, the temporary president of the 35 senate and the speaker of the assembly by the city of New York contain- 36 ing information on each authorized city entity that has entered into a 37 design-build or best value contract pursuant to this act, which shall 38 include, but not be limited to, a description of each project, procure- 39 ment information including the short list of qualified bidders, the 40 total cost of each project, the estimated cost and schedule savings of 41 each project, an explanation of how the savings were determined, and the 42 participation rate and total dollar value of expenditures on minority- 43 and women-owned business enterprises for each contract. 44 § 8. Section 13 of part QQQ of chapter 59 of the laws of 2018, consti- 45 tuting the New York city BQE Design-Build act, is amended to read as 46 follows: 47 § 13. This act shall take effect immediately and shall expire and be 48 deemed repealed [2 years after such date] July 1, 2022, provided that, 49 public works with requests for qualifications issued prior to such 50 repeal shall be permitted to continue under this act notwithstanding 51 such repeal. 52 § 9. This act shall take effect immediately; provided, however that 53 the amendments to the "New York city BQE Design-Build act" made by 54 sections one, two, three, four, five, six, seven and eight of this act 55 shall not affect the repeal of such act and shall be deemed repealed 56 therewith.
