S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   8134
 
                        2017-2018 Regular Sessions
 
                           I N  A S S E M B L Y
 
                               May 31, 2017
                                ___________
 
 Introduced  by  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.  Short title.  This act shall be known and may be cited as
 the "New York city public works investment act".
   § 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 transportation
 and the New York city health and hospitals corporation.
   (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;
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD10682-02-7

 A. 8134                             2

   (11) The proposer's ability to comply  with  applicable  requirements,
 including  the  provisions of articles 145, 147 and 148 of the education
 law;
   (12)  The proposer's past record of compliance with federal, state and
 local laws, rules, licensing requirements, where applicable, and  execu-
 tive  orders, including but not limited to compliance with the labor law
 and other applicable labor and prevailing wage laws, article 15-A of the
 executive law, and any other applicable laws  concerning  minority-  and
 women-owned business enterprise participation;
   (13) The proposer's record of complying with existing labor standards,
 maintaining  harmonious  labor  relations, and protecting the health and
 safety of workers and payment of wages above any locally-defined  living
 wage; and
   (14)  A quantitative factor to be used in evaluation of bids or offers
 for awarding of contracts for bidders or offerers that are certified  as
 minority- or women-owned business enterprises as defined in subdivisions
 1, 7, 15 and 20 of section 310 of the executive law, or certified pursu-
 ant to local law as minority- or women-owned business enterprises.
   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.
   (f)  "Public  work"  shall  mean a public work in the city of New York
 related to one of the following, and shall refer to any of the following
 public works:
   (1) the Brooklyn Queens Expressway - Atlantic avenue to Sands street;
   (2) the Rodman's Neck firearms and tactical training facility;
   (3) the Crossroads youth facility in the Brownsville section of  Kings
 county;
   (4)  the  Horizons  adolescent  facility  in the Mott Haven section of
 Bronx county;
   (5) a new police department precinct in Southeast Queens;
   (6) the Staten Island ferry terminal and related facilities resiliency
 efforts;
   (7) the Pelham parkway bridge over the  Hutchinson  river  parkway  in
 Bronx county; or
   (8) the Elmhurst Hospital emergency room renovation in Queens county.
   §  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 in accordance with this act.
   § 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 section 8 of the  New  York  city  health  and
 hospitals  corporation  act,  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

 A. 8134                             3
 
 use  the  alternative  delivery  method  referred  to  as   design-build
 contracts.
   (a)  A  contractor  selected by such authorized entity to enter into a
 design-build contract shall be selected through a  two-step  method,  as
 follows:
   (1)  Step  one.  Generation of a list of responding entities that have
 demonstrated  the  general  capability  to  perform   the   design-build
 contract.  Such  list  shall consist of a specified number of responding
 entities, as determined by an authorized entity, and shall be  generated
 based  upon  the  authorized  entity's review of responses to a publicly
 advertised request for qualifications. The authorized  entity's  request
 for  qualifications  shall  include  a general description of the public
 work, the maximum number of responding entities to be  included  on  the
 list,  the selection criteria to be used and the relative weight of each
 criteria 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 requirements,
 including the provisions of articles 145, 147 and 148 of  the  education
 law, past record of compliance with the labor law, and such other quali-
 fications the authorized entity deems appropriate, which may include but
 are  not  limited  to  project  understanding,  financial capability and
 record of past performance. The authorized  entity  shall  evaluate  and
 rate  all  responding entities to the request for qualifications.  Based
 upon such ratings, the authorized entity shall list the responding enti-
 ties that shall receive a request for proposals in accordance with para-
 graph two of this subdivision. To the extent consistent with  applicable
 federal  law,  the  authorized  entity shall consider, when awarding any
 contract pursuant to this section, the participation of  (i)  responding
 entities  that are certified as minority- or women-owned business enter-
 prises as defined in subdivisions 1, 7, 15 and 20 of section 310 of  the
 executive  law,  or  certified  pursuant  to  local  law as minority- or
 women-owned business enterprises; and (ii) small business concerns iden-
 tified pursuant to subdivision (b) of section 139-g of the state finance
 law; and
   (2) Step two. Selection of the proposal which is the best value to the
 authorized entity.   The authorized entity shall  issue  a  request  for
 proposals to the responding entities listed pursuant to paragraph one of
 this  subdivision.  If  such  a  responding entity consists of a team of
 separate entities, the entities that comprise such a  team  must  remain
 unchanged from the responding entity as listed pursuant to paragraph one
 of  this subdivision unless otherwise approved by the authorized entity.
 The request for proposals shall set forth the  public  work's  scope  of
 work,  and  other  requirements, as determined by the authorized entity,
 which may include separate goals for  work  under  the  contract  to  be
 performed  by  businesses certified as minority- or women-owned business
 enterprises as defined in subdivisions 1, 7, 15 and 20 of section 310 of
 the executive law, or certified pursuant to local law  as  minority-  or
 women-owned  business  enterprises. The request for proposals shall also
 specify the criteria to be used to evaluate the responses and the  rela-
 tive  weight  of  each of such criteria. Such criteria shall include the
 proposal's cost, the quality of the proposal's solution, the  qualifica-
 tions 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

 A. 8134                             4
 
 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 proposer,
 which,  in  consideration  of  these and other specified criteria deemed
 pertinent, offers the best value, as determined by the authorized  enti-
 ty.  The  request for proposals shall include a statement that proposers
 shall designate in writing those portions of the proposal  that  contain
 trade secrets or other proprietary information that are to remain confi-
 dential;  that  the material designated as confidential shall be readily
 separable from the  proposal.  Nothing  in  this  subdivision  shall  be
 construed  to  prohibit  the  authorized  entity  from negotiating final
 contract terms and conditions including cost.  All  proposals  submitted
 shall  be  scored  according  to  the criteria listed in the request for
 proposals and such final scores shall be  published  on  the  authorized
 entity's website.
   (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.
   § 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
 the appropriate article.
   § 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 such
 law and enforcement of prevailing wage requirements pursuant to applica-
 ble law or, for projects or public works receiving federal aid, applica-
 ble 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
 public  work  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.
   § 7. Each contract entered into by an authorized  entity  pursuant  to
 this  act  shall  comply  with  the  objectives and goals with regard to

 A. 8134                             5
 
 minority- and women-owned business enterprises pursuant to, as  applica-
 ble,  section  6-129  of the administrative code of the city of New York
 and subdivision 6 of section 8 of the New York city health and hospitals
 corporation act, or, for projects or public works receiving federal aid,
 applicable  federal  requirements for disadvantaged business enterprises
 or minority- and women-owned business enterprises.
   § 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.
   §  9.  (a)  Notwithstanding  any provision of law to the contrary, all
 rights or benefits, including terms and conditions  of  employment,  and
 protection  of  civil  service  and  collective bargaining status of all
 employees of authorized entities solely in connection  with  the  public
 works identified in subdivision (f) of section two of this act, shall be
 preserved and protected.
   (b)  Nothing  in this act shall result in the: (1) displacement of any
 currently  employed  worker  or  loss  of  position  (including  partial
 displacement  such  as  a  reduction  in the hours of non-overtime work,
 wages or employment benefits), or result in the impairment  of  existing
 collective  bargaining  agreements;  and (2) transfer of existing duties
 and functions related to maintenance and operations currently  performed
 by existing employees of authorized entities to a contractor.
   (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  in this act shall be
 construed to affect (1) the existing rights of employees of  such  enti-
 ties  pursuant  to  an existing collective bargaining agreement, (2) the
 existing representational  relationships  among  employee  organizations
 representing employees of such entities, or (3) the bargaining relation-
 ships between such entities and such employee organizations.
   §  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.
   §  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.
   §  12.  This act shall take effect immediately and shall expire and be
 deemed repealed 4 years after such date;  provided  that,  public  works
 with  requests  for  qualifications issued prior to such repeal shall be
 permitted to continue under this act notwithstanding such repeal.