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

                                  10709

                          I N  A S S E M B L Y

                              June 13, 2016
                               ___________

Introduced  by  COMMITTEE ON RULES -- (at request of M. of A. Benedetto)
  -- read once and referred to the Committee on Cities

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:

  Section  1.  This act shall be known and may be cited as the "New York
city public works investment act".
  S 2. For the purposes of this act:
  (a) "Authorized entity" shall mean the New  York  city  department  of
design  and  construction, the New York city department of environmental
protection and the New York city department of transportation.
  (b) "Best value" shall mean  the  basis  for  awarding  contracts  for
services  to  a  proposer  that  optimizes quality, cost and efficiency,
price and performance criteria, which may include, but  is  not  limited
to:
  (1) The quality of the proposer's performance on previous projects;
  (2) The timeliness of the proposer's performance on previous projects;
  (3) The level of customer satisfaction with the proposer's performance
on previous projects;
  (4)  The  proposer's  record of performing previous projects on budget
and ability to minimize cost overruns;
  (5) The proposer's ability to limit change orders;
  (6) The proposer's ability to prepare appropriate project plans;
  (7) The proposer's technical capacities;
  (8) The individual qualifications of the proposer's key personnel;
  (9) The proposer's ability to assess and manage risk and minimize risk
impact;
  (10) The proposer's financial capability;
  (11) The proposer's past record of compliance with article 15-A of the
executive law or any  other  applicable  laws  concerning  minority  and
women-owned business enterprise participation;

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

                                                           LBD15872-01-6

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  (12)  The proposer's past record of compliance with all other federal,
state and local laws, rules, licensing requirements,  where  applicable,
and  executive  orders, including but not limited to compliance with the
labor law and other applicable labor and prevailing wage laws; and
  (13)  The  proposer's  ability to comply with applicable requirements,
including the provisions of articles 145, 147 and 148 of  the  education
law.
  Such  basis  shall reflect, wherever possible, objective and quantifi-
able analysis.
  (c) "Cost plus" shall mean compensating a contractor for the  cost  to
complete a contract by reimbursing actual costs for labor, equipment and
materials plus an additional amount for overhead and profit.
  (d)  "Design-build  contract" shall mean a contract for the design and
construction of a public work with a single entity, which may be a  team
comprised of separate entities.
  (e)  "Project  labor  agreement"  shall  have the meaning set forth in
subdivision 1 of section 222 of the labor law. A project labor agreement
shall require participation in apprentice training programs  in  accord-
ance with paragraph (e) of subdivision 2 of such section.
  S  3.  Any contract for a public work undertaken pursuant to a project
labor agreement in accordance with section 222 of the labor law may be a
design-build contract to the extent authorized by this act.
  S 4. Notwithstanding any general, special or local law, rule or  regu-
lation  to the contrary, including but not limited to article 5-A of the
general municipal law, and in conformity with the requirements  of  this
act,  for  any  public work that has an estimated total cost of not less
than ten million dollars and is undertaken pursuant to a  project  labor
agreement in accordance with section 222 of the labor law, an authorized
entity  charged  with  awarding  a  contract for public work may use the
alternative delivery  method  referred  to  as  design-build  contracts,
provided  that  such  method  may  be  used for no more than twenty-five
projects for all authorized entities, and  provided  further  that  such
method may be used only for public works related to physical infrastruc-
ture,  including,  but  not  limited  to, highways, bridges, dams, flood
control projects, canals, and parks, including, but not limited  to,  to
repair  damage  caused by natural disaster, to correct health and safety
defects, to comply with federal and state  laws,  standards,  and  regu-
lations,  to  extend  the  useful  life of or replace highways, bridges,
dams, flood control projects, canals, and parks or to improve or add  to
highways, bridges, dams, flood control projects, canals, and parks.
  (a)  A  contractor  selected by such authorized entity to enter into a
design-build contract shall be selected  through  the  submission  of  a
proposal  which  provides  the  best value. Such authorized entity shall
issue a request for proposals which shall set forth the scope  of  work,
and  other  requirements,  as  determined  by the authorized entity. The
request for proposals shall specify the criteria to be used to  evaluate
the  responses  and  the  relative weight of each of such criteria. Such
criteria  shall  include  the  proposal's  cost,  the  quality  of   the
proposal's  solution, the qualifications and experience of the proposer,
and other factors deemed pertinent by the authorized entity,  which  may
include, but shall not be limited to, the proposal's manner and schedule
of  project  implementation, the proposer's ability to complete the work
in a timely and satisfactory manner, maintenance costs of the  completed
public  work, maintenance of traffic approach, and community impact. Any
contract awarded pursuant to this act shall be awarded to  a  responsive
and  responsible  entity  that submits the proposal, which, in consider-

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ation of these and other specified criteria deemed pertinent, offers the
best value, as determined by the authorized entity. Nothing in this  act
shall  be  construed  to prohibit the authorized entity from negotiating
final contract terms and conditions including cost.
  (b)  An  authorized  entity  awarding  a  design-build  contract  to a
contractor offering the best value may but shall not be required to  use
the following types of contracts:
  (1)  A  cost-plus  not  to  exceed  guaranteed  maximum  price form of
contract in which the authorized entity shall be entitled to monitor and
audit all costs. In establishing the schedule and process for  determin-
ing  a  guaranteed  maximum  price,  the contract between the authorized
entity and the contractor shall:
  (i) Describe the scope of the work and the  cost  of  performing  such
work,
  (ii) Include a detailed line item cost breakdown,
  (iii)  Include a list of all drawings, specifications and other infor-
mation on which the guaranteed maximum price is based,
  (iv) Include the dates of substantial and final  completion  on  which
the guaranteed maximum price is based, and
  (v) Include a schedule of unit prices; or
  (2) A lump sum contract in which the contractor agrees to accept a set
dollar  amount  for  a  contract  which  comprises  a single bid without
providing a cost breakdown for all costs such as for  equipment,  labor,
materials,  as well as such contractor's profit for completing all items
of work comprising the public work.
  S 5. Any contract entered into pursuant to this act  shall  include  a
clause  requiring  that  any professional services regulated by articles
145, 147 and 148 of the education law shall be performed and stamped and
sealed, where appropriate, by a professional licensed in accordance with
such articles.
  S 6. Construction with respect to each contract  entered  into  by  an
authorized  entity  pursuant to this act shall be deemed a "public work"
to be performed in accordance with the provisions of article  8  of  the
labor  law,  as well as subject to sections 200, 240, 241 and 242 of the
labor law and enforcement of prevailing wage  requirements  pursuant  to
applicable  law  or, for projects or public works receiving federal aid,
applicable  federal  requirements  for  prevailing  wage.  Any  contract
entered  into  pursuant to this act shall include a clause requiring the
selected design builder to obligate every tier of contractor working  on
the  project  to  comply  with the project labor agreement referenced in
section three of this act, and shall  include  project  labor  agreement
compliance  monitoring  and  enforcement  provisions consistent with the
applicable project labor agreement.
  S 7. Each contract entered into by an authorized  entity  pursuant  to
this  act  shall  comply  with  the  objectives and goals with regard to
minority and women-owned business enterprises pursuant to section  6-129
of  the administrative code of the city of New York, or, for projects or
public works receiving federal aid, applicable federal requirements  for
disadvantaged  business enterprises or minority and women-owned business
enterprises.
  S 8. Public works undertaken by an authorized entity pursuant to  this
act  shall  be  subject to the requirements of article 8 of the environ-
mental conservation law, and, where applicable, the requirements of  the
national environmental policy act.
  S  9.  (a)  Notwithstanding  any provision of law to the contrary, all
rights or benefits, including terms and conditions  of  employment,  and

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protection  of  civil  service  and  collective bargaining status of all
employees of authorized entities,  shall  not  be  impaired  or  reduced
because of the use of a design-build contract pursuant to this act.
  (b)  Nothing  in  this  act  shall  result  in the displacement of any
current employee of an authorized entity  using  design-build  contracts
who  is represented by a "certified employee organization" as defined by
section 12-303 of the New York city  administrative  code,  or  loss  of
position  of  such  employee  (including  partial displacement such as a
reduction in the hours of non-overtime work, wages or  employment  bene-
fits),  or  result  in  the impairment of existing collective bargaining
agreements.
  (c) Employees of  authorized  entities  using  design-build  contracts
serving  in  positions  in newly created titles shall be assigned to the
appropriate bargaining unit. Nothing contained herein shall be construed
to affect (1) the existing rights of employees of such entities pursuant
to an existing collective bargaining agreement, (2) the existing repres-
entational  relationships  among  employee  organizations   representing
employees  of  such entities or (3) the bargaining relationships between
such entities and such employee organizations.
  S 10. The submission of a proposal or responses or the execution of  a
design-build  contract pursuant to this act shall not be construed to be
a violation of section 6512 of the education law.
  S 11. Nothing contained in this act shall limit  the  right  or  obli-
gation  of  any  authorized  entity to comply with the provisions of any
existing contract or to award contracts as otherwise provided by law.
  S 12. This act shall take effect immediately and shall expire  and  be
deemed  repealed  5  years  after such date; provided that, public works
with requests for proposals or requests for qualifications issued  prior
to  such  repeal  shall  be  permitted  to continue pursuant to this act
notwithstanding such repeal.