S T A T E   O F   N E W   Y O R K
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                                  4805

                       2011-2012 Regular Sessions

                          I N  A S S E M B L Y

                            February 8, 2011
                               ___________

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.