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(d) Providing better use and leverage of public human and capital
resources, and enhancing capital formation for large projects;
(e) Creating jobs;
(f) Promoting performance efficiencies; and
(g) Bringing additional innovative best practice contracting by the
private sector to bear on public infrastructure needs within the state.
(5) For certain projects, the design-build project delivery method has
the potential to achieve projects delivered on guaranteed or accelerated
schedules, lower costs and risk shifting to the private sector generally
retained in conventional design-bid-build projects as well as to accel-
erate capital investments throughout the state.
(6) Recognizing the need to repair the state's aging infrastructure
and maximize job creation in New York, the Governor and Legislature seek
to:
(a) accelerate capital investment in New York state's infrastructure;
(b) coordinate among New York state's agencies and authorities on
capital investment;
(c) encourage private sector capital investment in New York;
(d) ensure that job creation benefits New York workers; and
(e) assist the use of the most efficient and effective procurement and
project management for infrastructure projects in the transportation,
energy, environment, public facilities, and economic development
sectors.
§ 3. For the purposes of this act:
(a) "authorized state entity" shall mean the New York state thruway
authority, the department of transportation, the office of parks, recre-
ation and historic preservation, the department of environmental conser-
vation and the New York state bridge authority.
(b) "best value" shall mean the basis for awarding contracts for
services to the offerer that optimize quality, cost and efficiency,
price and performance criteria, which may include, but is not limited
to:
1. The quality of the contractor's performance on previous projects;
2. The timeliness of the contractor's performance on previous
projects;
3. The level of customer satisfaction with the contractor's perform-
ance on previous projects;
4. The contractor's record of performing previous projects on budget
and ability to minimize cost overruns;
5. The contractor's ability to limit change orders;
6. The contractor's ability to prepare appropriate project plans;
7. The contractor's technical capacities;
8. The individual qualifications of the contractor's key personnel;
9. The contractor's ability to assess and manage risk and minimize
risk impact; and
10. The contractor's past record of compliance with article 15-A of
the executive law.
Such basis shall reflect, wherever possible, objective and quantifi-
able analysis.
(c) "capital project" shall have the same meaning as such term is
defined by subdivision 2-a of section 2 of the state finance law.
(d) "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.
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(e) "design-build contract" shall mean a contract for the design and
construction of a capital project with a single entity, which may be a
team comprised of separate entities.
(f) "procurement record" means documentation of the decisions made and
the approach taken in the procurement process.
§ 4. Notwithstanding the provisions of section 38 of the highway law,
section 136-a of the state finance law, section 359 of the public
authorities law, section 7210 of the education law, and the provisions
of any other law to the contrary, and in conformity with the require-
ments of this act, an authorized state entity may utilize the alterna-
tive delivery method referred to as design-build contracts for capital
projects related to the state's physical infrastructure, including, but
not limited to, the state's 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 regulations, to
extend the useful life of or replace the state's highways, bridges,
dams, flood control projects, canals, and parks or to improve or add to
the state's highways, bridges, dams, flood control projects, canals, and
parks; provided that for the contracts executed by the department of
transportation, the office of parks, recreation and historic preserva-
tion, or the department of environmental conservation, the total cost of
each such project shall not be less than one million two hundred thou-
sand dollars ($1,200,000).
§ 5. An entity selected by an authorized state entity to enter into a
design-build contract shall be selected through a two-step method, as
follows:
(a) Step one. 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 an
authorized state entity, and shall be generated based upon the author-
ized state entity's review of responses to a publicly advertised request
for qualifications. The authorized state entity's request for qualifica-
tions shall include a general description of the project, the maximum
number of entities to be included on the list, and the selection crite-
ria to be used in generating the list. Such selection criteria shall
include the qualifications and experience of the design and construction
team, organization, demonstrated responsibility, ability of the team or
of a member or members of the team to comply with applicable require-
ments, including the provisions of articles 145, 147 and 148 of the
education law, past record of compliance with the labor law, and such
other qualifications the authorized state entity deems appropriate which
may include but are not limited to project understanding, financial
capability and record of past performance. The authorized state entity
shall evaluate and rate all entities responding to the request for qual-
ifications. Based upon such ratings, the authorized state entity shall
list the entities that shall receive a request for proposals in accord-
ance with subdivision (b) of this section. To the extent consistent
with applicable federal law, the authorized state entity shall consider,
when awarding any contract pursuant to this section, the participation
of: (i) firms certified pursuant to article 15-A of the executive law as
minority or women-owned businesses and the ability of other businesses
under consideration to work with minority and women-owned businesses so
as to promote and assist participation by such businesses; and (ii)
small business concerns identified pursuant to subdivision (b) of
section 139-g of the state finance law.
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(b) Step two. Selection of the proposal which is the best value to the
state. The authorized state entity shall issue a request for proposals
to the entities listed pursuant to subdivision (a) of this section. 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 list-
ed pursuant to subdivision (a) of this section unless otherwise approved
by the authorized state entity. The request for proposals shall set
forth the project's scope of work, and other requirements, as determined
by the authorized state entity. The request for proposals shall specify
the criteria to be used to evaluate the responses and the relative
weight of each such criteria. Such criteria shall include the
proposal's cost, the quality of the proposal's solution, the qualifica-
tions and experience of the design-build entity, and other factors
deemed pertinent by the authorized state entity, 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, maintenance
costs of the completed project, 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 consideration of these and other specified criteria
deemed pertinent to the project, offers the best value to the state, as
determined by the authorized state entity. Nothing herein shall be
construed to prohibit the authorized entity from negotiating final
contract terms and conditions including cost.
§ 6. 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.
§ 7. Construction for each capital project undertaken by the author-
ized state 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 by the New
York state department of labor.
§ 8. If otherwise applicable, capital projects undertaken by the
authorized state entity pursuant to this act shall be subject to section
135 of the state finance law and section 222 of the labor law.
§ 9. Each contract entered into by the authorized state entity pursu-
ant to this section shall comply with the objectives and goals of minor-
ity and women-owned business enterprises pursuant to article 15-A of the
executive law or, for projects receiving federal aid, shall comply with
applicable federal requirements for disadvantaged business enterprises.
§ 10. Capital projects undertaken by the authorized state entity
pursuant to this act shall be subject to the requirements of article 8
of the environmental conservation law, and, where applicable, the
requirements of the national environmental policy act.
§ 11. If otherwise applicable, capital projects undertaken by the
authorized state entity pursuant to this act shall be governed by
sections 139-d, 139-j, 139-k, paragraph f of subdivision 1 and paragraph
g of subdivision 9 of section 163 of the state finance law.
§ 12. 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.
§ 13. Nothing contained in this act shall limit the right or obli-
gation of the authorized state entity to comply with the provisions of
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any existing contract, including any existing contract with or for the
benefit of the holders of the obligations of the authorized state enti-
ty, or to award contracts as otherwise provided by law.
§ 14. Alternative construction awarding processes. (i) Notwithstand-
ing the provisions of any other law to the contrary, the authorized
state entity may award a construction contract:
1. To the contractor offering the best value; or
2. Utilizing a cost-plus not to exceed guaranteed maximum price form
of contract in which the authorized state entity shall be entitled to
monitor and audit all project costs. In establishing the schedule and
process for determining a guaranteed maximum price, the contract between
the authorized state entity and the contractor shall:
(a) describe the scope of the work and the cost of performing such
work;
(b) include a detailed line item cost breakdown;
(c) include a list of all drawings, specifications and other informa-
tion on which the guaranteed maximum price is based;
(d) include the dates for substantial and final completion on which
the guaranteed maximum price is based; and
(e) include a schedule of unit prices; or
3. Utilizing 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 project.
(ii) Capital projects undertaken by an authorized state entity may
include an incentive clause in the contract for various performance
objectives, but the incentive clause shall not include an incentive that
exceeds the quantifiable value of the benefit received by the state. The
authorized state entity shall establish such performance and payment
bonds as it deems necessary.
§ 15. Prequalified contractors. (a) Notwithstanding any other
provision of law, the authorized state entity may maintain a list of
prequalified contractors who are eligible to submit a proposal pursuant
to this act and entry into such list shall be continuously available.
Prospective contractors may be prequalified as contractors to provide
particular types of construction, in accordance with general criteria
established by the authorized state entity which may include, but shall
not be limited to, the experience, past performance, ability to under-
take the type and complexity of work, financial capability, responsibil-
ity, compliance with equal employment opportunity requirements and anti-
discrimination laws, and reliability. Such prequalification may be by
categories designed by size and other factors.
(b) A contractor who is denied prequalification or whose prequalifica-
tion is revoked or suspended by the authorized state entity may appeal
such decision to the authorized state entity. If such a suspension
extends for more than three months, it shall be deemed a revocation of
the prequalification. The authorized state entity may proceed with the
contract award during any appeal.
§ 16. Nothing in this act shall affect existing powers of New York
state public entities to use alternative project delivery methods.
§ 17. This act shall take effect immediately.