S T A T E O F N E W Y O R K
________________________________________________________________________
4805
2011-2012 Regular Sessions
I N A S S E M B L Y
February 8, 2011
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Introduced by M. of A. KOLB, CONTE, McDONOUGH, REILICH, SAYWARD --
Multi-Sponsored by -- M. of A. AMEDORE, BARCLAY, BOYLE, BURLING,
BUTLER, CALHOUN, CASTELLI, CROUCH, FINCH, FITZPATRICK, GIGLIO, HAWLEY,
JORDAN, McKEVITT, MONTESANO, OAKS, RABBITT, RAIA, SALADINO, TOBACCO --
read once and referred to the Committee on Transportation
AN ACT to amend the highway law and the public authorities law, in
relation to authorizing design-build contracts for transportation
projects
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Legislative intent. The use of a single contract for the
design and construction of transportation projects may reduce or mini-
mize project delivery time, improve project quality, reduce project
costs, and/or improve project coordination through a single point of
responsibility. Therefore, it is appropriate to authorize the department
of transportation and the thruway authority to utilize design-build
contracts.
S 2. The highway law is amended by adding a new section 38-a to read
as follows:
S 38-A. DESIGN-BUILD CONTRACTS. NOTWITHSTANDING THE PROVISIONS OF
SECTION THIRTY-EIGHT OF THIS ARTICLE, SECTION ONE HUNDRED THIRTY-SIX-A
OF THE STATE FINANCE LAW, SECTIONS SIXTY-FIVE HUNDRED TWELVE AND SEVEN-
TY-TWO HUNDRED TEN OF THE EDUCATION LAW, AND THE PROVISIONS OF ANY OTHER
LAW TO THE CONTRARY:
1. DESIGN-BUILD CONTRACTS. THE COMMISSIONER IS HEREBY AUTHORIZED TO
CONTRACT FOR THE DESIGN AND CONSTRUCTION OF HIGHWAYS, STRUCTURES OR
APPURTENANT FACILITIES WITH A SINGLE ENTITY, WHICH MAY BE A TEAM
COMPRISED OF SEPARATE ENTITIES, IN ACCORDANCE WITH THE PROVISIONS OF
THIS SECTION. CONTRACTS ENTERED INTO PURSUANT TO THE PROVISIONS OF THIS
SECTION SHALL BE REFERRED TO AS "DESIGN-BUILD CONTRACTS."
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD05151-01-1
A. 4805 2
2. SELECTION. AN ENTITY SELECTED BY THE DEPARTMENT TO ENTER INTO A
DESIGN-BUILD CONTRACT SHALL BE SELECTED THROUGH A TWO-STEP METHOD AS
FOLLOWS:
(A) STEP ONE SHALL BE THE GENERATION OF A LIST OF ENTITIES THAT HAVE
DEMONSTRATED THE GENERAL CAPABILITY TO PERFORM THE DESIGN-BUILD
CONTRACT. SUCH LIST SHALL CONSIST OF A SPECIFIED NUMBER OF ENTITIES, AS
DETERMINED BY THE COMMISSIONER, AND SHALL BE GENERATED BASED UPON THE
DEPARTMENT'S REVIEW OF RESPONSES TO A PUBLICLY ADVERTISED REQUEST FOR
QUALIFICATIONS. THE DEPARTMENT'S REQUEST FOR QUALIFICATIONS SHALL
INCLUDE A GENERAL DESCRIPTION OF THE PROJECT, THE MAXIMUM NUMBER OF
ENTITIES TO BE INCLUDED ON THE LIST, AND THE SELECTION CRITERIA TO BE
USED IN GENERATING THE LIST. SUCH SELECTION CRITERIA SHALL INCLUDE, BUT
SHALL NOT BE LIMITED TO, THE QUALIFICATIONS AND EXPERIENCE OF THE DESIGN
AND CONSTRUCTION TEAM, PROJECT APPROACH, ORGANIZATION, RECORD OF
PERFORMANCE, FINANCIAL CAPACITY, DEMONSTRATED RESPONSIBILITY, ABILITY OF
THE TEAM OR OF A MEMBER OR MEMBERS OF THE TEAM TO COMPLY WITH APPLICABLE
REQUIREMENTS, INCLUDING THE PROVISIONS OF ARTICLES ONE HUNDRED
FORTY-FIVE, ONE HUNDRED FORTY-SEVEN, AND ONE HUNDRED FORTY-EIGHT OF THE
EDUCATION LAW, AND SUCH OTHER QUALIFICATIONS THE COMMISSIONER DEEMS
APPROPRIATE. THE DEPARTMENT SHALL EVALUATE AND RATE ALL ENTITIES
RESPONDING TO THE REQUEST FOR QUALIFICATIONS. BASED UPON SUCH RATINGS,
THE DEPARTMENT SHALL LIST THE ENTITIES THAT SHALL RECEIVE A REQUEST FOR
PROPOSALS IN ACCORDANCE WITH PARAGRAPH (B) OF THIS SUBDIVISION.
(B) STEP TWO SHALL BE THE SELECTION OF THE PROPOSAL WHICH IS THE BEST
VALUE TO THE STATE. THE DEPARTMENT SHALL ISSUE A REQUEST FOR PROPOSALS
TO THE ENTITIES LISTED PURSUANT TO PARAGRAPH (A) OF THIS SUBDIVISION. IF
SUCH ENTITY CONSISTS OF A TEAM OF SEPARATE ENTITIES, THE ENTITIES THAT
COMPRISE SUCH A TEAM MUST REMAIN UNCHANGED FROM THE ENTITY AS LISTED
PURSUANT TO PARAGRAPH (A) OF THIS SUBDIVISION. THE REQUEST FOR PROPOSALS
SHALL SET FORTH THE PROJECT'S SCOPE OF WORK, AND OTHER REQUIREMENTS, AS
DETERMINED BY THE COMMISSIONER. THE REQUEST FOR PROPOSALS SHALL SPECIFY
THE CRITERIA TO BE USED TO EVALUATE THE RESPONSES. SUCH CRITERIA SHALL
INCLUDE THE PROPOSAL'S COST, THE QUALITY OF THE PROPOSAL'S SOLUTION, THE
QUALIFICATIONS AND EXPERIENCE OF THE DESIGN AND CONSTRUCTION TEAM, AND
OTHER FACTORS DEEMED PERTINENT BY THE DEPARTMENT, WHICH MAY INCLUDE, BUT
SHALL NOT BE LIMITED TO, THE PROPOSAL'S PROJECT IMPLEMENTATION, ABILITY
TO COMPLETE THE WORK IN A TIMELY AND SATISFACTORY MANNER, MAINTAINABIL-
ITY OF THE COMPLETED PROJECT, MAINTENANCE OF TRAFFIC APPROACH, AND
COMMUNITY IMPACT. ANY CONTRACT AWARDED PURSUANT TO THIS SECTION SHALL BE
AWARDED TO A RESPONSIBLE ENTITY THAT SUBMITS THE PROPOSAL, WHICH, IN
CONSIDERATION OF THESE AND OTHER SPECIFIED CRITERIA DEEMED PERTINENT TO
THE PROJECT, IS THE BEST VALUE TO THE STATE, AS DETERMINED BY THE
COMMISSIONER.
3. CONFIDENTIALITY OF BUSINESS INFORMATION. ALL FINANCIAL INFORMATION,
TRADE SECRETS OR OTHER INFORMATION CUSTOMARILY REGARDED AS CONFIDENTIAL
BUSINESS INFORMATION THAT ARE IDENTIFIED AS SUCH INFORMATION AT THE TIME
OF SUBMISSION TO THE DEPARTMENT AS PART OF A RESPONDENT'S RESPONSE TO
THE SOLICITATIONS OR REQUESTS MADE BY THE DEPARTMENT PURSUANT TO SUBDI-
VISION TWO OF THIS SECTION SHALL NOT BE SUBJECT TO DISCLOSURE UNDER
ARTICLE SIX OF THE PUBLIC OFFICERS LAW.
4. CONTRACTS. ANY CONTRACT ENTERED INTO PURSUANT TO THIS SECTION SHALL
INCLUDE A CLAUSE REQUIRING THAT ANY PROFESSIONAL SERVICES REGULATED BY
ARTICLES ONE HUNDRED FORTY-FIVE, ONE HUNDRED FORTY-SEVEN AND ONE HUNDRED
FORTY-EIGHT OF THE EDUCATION LAW SHALL BE PERFORMED BY A PROFESSIONAL
LICENSED IN ACCORDANCE WITH SUCH ARTICLES.
A. 4805 3
S 3. The public authorities law is amended by adding a new section
359-b to read as follows:
S 359-B. DESIGN-BUILD CONTRACTS. NOTWITHSTANDING ANY OTHER PROVISIONS
OF LAW TO THE CONTRARY:
1. DESIGN-BUILD CONTRACTS. THE AUTHORITY IS HEREBY AUTHORIZED TO
CONTRACT FOR THE DESIGN AND CONSTRUCTION OF HIGHWAYS, STRUCTURES OR
APPURTENANT FACILITIES WITH A SINGLE ENTITY, WHICH MAY BE A TEAM
COMPRISED OF SEPARATE ENTITIES, IN ACCORDANCE WITH THE PROVISIONS OF
THIS SECTION. CONTRACTS ENTERED INTO PURSUANT TO THE PROVISIONS OF THIS
SECTION SHALL BE REFERRED TO AS "DESIGN-BUILD CONTRACTS."
2. SELECTION. AN ENTITY SELECTED BY THE AUTHORITY TO ENTER INTO A
DESIGN-BUILD CONTRACT SHALL BE SELECTED THROUGH A TWO-STEP METHOD AS
FOLLOWS:
(A) STEP ONE SHALL BE THE GENERATION OF A LIST OF ENTITIES THAT HAVE
DEMONSTRATED THE GENERAL CAPABILITY TO PERFORM THE DESIGN-BUILD
CONTRACT. SUCH LIST SHALL CONSIST OF A SPECIFIED NUMBER OF ENTITIES, AS
DETERMINED BY THE AUTHORITY, AND SHALL BE GENERATED BASED UPON THE
AUTHORITY'S REVIEW OF RESPONSES TO A PUBLICLY ADVERTISED REQUEST FOR
QUALIFICATIONS. THE REQUEST FOR QUALIFICATIONS SHALL INCLUDE A GENERAL
DESCRIPTION OF THE PROJECT, THE MAXIMUM NUMBER OF ENTITIES TO BE
INCLUDED ON THE LIST, AND THE SELECTION CRITERIA TO BE USED IN GENERAT-
ING THE LIST. SUCH SELECTION CRITERIA SHALL INCLUDE, BUT SHALL NOT BE
LIMITED TO, THE QUALIFICATION AND EXPERIENCE OF THE DESIGN AND
CONSTRUCTION TEAM, PROJECT APPROACH, ORGANIZATION, RECORD OF PERFORM-
ANCE, FINANCIAL CAPACITY, DEMONSTRATED RESPONSIBILITY, ABILITY OF THE
TEAM OR OF A MEMBER OR MEMBERS OF THE TEAM TO COMPLY WITH APPLICABLE
REQUIREMENTS, INCLUDING THE PROVISIONS OF ARTICLES ONE HUNDRED
FORTY-FIVE, ONE HUNDRED FORTY-SEVEN, AND ONE HUNDRED FORTY-EIGHT OF THE
EDUCATION LAW, AND SUCH OTHER QUALIFICATIONS THE AUTHORITY DEEMS APPRO-
PRIATE. THE AUTHORITY SHALL EVALUATE AND RATE ALL ENTITIES RESPONDING TO
THE REQUEST FOR QUALIFICATIONS. BASED UPON SUCH RATINGS, THE AUTHORITY
SHALL LIST THE ENTITIES THAT SHALL RECEIVE A REQUEST FOR PROPOSALS IN
ACCORDANCE WITH PARAGRAPH (B) OF THIS SUBDIVISION.
(B) STEP TWO SHALL BE THE SELECTION OF THE PROPOSAL WHICH IS THE BEST
VALUE TO THE AUTHORITY. THE AUTHORITY SHALL ISSUE A REQUEST FOR
PROPOSALS TO THE ENTITIES LISTED PURSUANT TO PARAGRAPH (A) OF THIS
SUBDIVISION. IF SUCH AN ENTITY CONSISTS OF A TEAM OF SEPARATE ENTITIES,
THE ENTITIES THAT COMPRISE SUCH A TEAM MUST REMAIN UNCHANGED FROM THE
ENTITY AS LISTED PURSUANT TO PARAGRAPH (A) OF THIS SUBDIVISION. THE
REQUEST FOR PROPOSALS SHALL SET FORTH THE PROJECT'S SCOPE OF WORK, AND
OTHER REQUIREMENTS, AS DETERMINED BY THE AUTHORITY. THE REQUEST FOR
PROPOSALS SHALL SPECIFY THE CRITERIA TO BE USED TO EVALUATE THE
RESPONSES. SUCH CRITERIA SHALL INCLUDE THE PROPOSAL'S COST, THE QUALITY
OF THE PROPOSAL'S SOLUTION, THE QUALIFICATIONS AND EXPERIENCE OF THE
DESIGN AND CONSTRUCTION TEAM, AND OTHER FACTORS DEEMED PERTINENT BY THE
AUTHORITY, WHICH MAY INCLUDE, BUT SHALL NOT BE LIMITED TO, THE
PROPOSAL'S PROJECT IMPLEMENTATION, ABILITY TO COMPLETE THE WORK IN A
TIMELY AND SATISFACTORY MANNER, MAINTAINABILITY OF THE COMPLETED
PROJECT, MAINTENANCE OF TRAFFIC APPROACH, AND COMMUNITY IMPACT. ANY
CONTRACT AWARDED PURSUANT TO THIS SECTION SHALL BE AWARDED TO A RESPON-
SIBLE ENTITY THAT SUBMITS THE PROPOSAL WHICH, IN CONSIDERATION OF THESE
AND OTHER SPECIFIED CRITERIA DEEMED PERTINENT TO THE PROJECT, IS THE
BEST VALUE TO THE AUTHORITY.
3. CONFIDENTIALITY OF BUSINESS INFORMATION. ALL FINANCIAL INFORMATION,
TRADE SECRETS OR OTHER INFORMATION CUSTOMARILY REGARDED AS CONFIDENTIAL
BUSINESS INFORMATION THAT ARE IDENTIFIED AS SUCH INFORMATION AT THE TIME
A. 4805 4
OF SUBMISSION TO THE AUTHORITY AS PART OF A RESPONDENT'S RESPONSE TO THE
SOLICITATIONS OR REQUESTS MADE BY THE AUTHORITY PURSUANT TO SUBDIVISION
TWO OF THIS SECTION SHALL NOT BE SUBJECT TO DISCLOSURE UNDER ARTICLE SIX
OF THE PUBLIC OFFICERS LAW.
4. CONTRACTS. ANY CONTRACT ENTERED INTO PURSUANT TO THIS SECTION SHALL
INCLUDE A CLAUSE REQUIRING THAT ANY PROFESSIONAL SERVICES REGULATED BY
ARTICLES ONE HUNDRED FORTY-FIVE, ONE HUNDRED FORTY-SEVEN, AND ONE
HUNDRED FORTY-EIGHT OF THE EDUCATION LAW SHALL BE PERFORMED BY A PROFES-
SIONAL LICENSED IN ACCORDANCE WITH SUCH ARTICLES.
S 4. No later than four years after the effective date of this act,
the commissioner of transportation and the chairman of the thruway
authority shall prepare a report to the governor, the chairs of the
senate and assembly transportation committees, and the ranking minority
members of the senate and assembly transportation committees evaluating
the use of the design-build process for highway projects. Such report
shall be prepared in consultation with the construction and design
consultant communities and may subsequently be supplemented in the same
manner, as deemed appropriate by the commissioner of transportation and
the chairman of the thruway authority.
S 5. This act shall take effect on the one hundred eightieth day after
it shall have become a law.