S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   5115
 
                        2019-2020 Regular Sessions
 
                             I N  S E N A T E
 
                               April 9, 2019
                                ___________
 
 Introduced  by  Sen.  COMRIE -- read twice and ordered printed, and when
   printed to be committed to the Committee on Corporations,  Authorities
   and Commissions
 
 AN  ACT  to  amend  the public authorities law, in relation to requiring
   public authorities and public benefit corporations to  negotiate  with
   professional  firms providing architectural or engineering services in
   order from the most qualified to the least qualified  with  regard  to
   the provision of services to the authority or corporation
 
   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. Subparagraph (iv) of paragraph  (b)  of  subdivision  3  of
 section 2879 of the public authorities law, as amended by chapter 383 of
 the laws of 1994, is amended to read as follows:
   (iv)  as used in this subparagraph, the term "professional firm" shall
 be defined as any individual or sole proprietorship, partnership, corpo-
 ration, association, or other legal entity permitted by law to  practice
 the professions of architecture, engineering or surveying.
   IT  IS  THE POLICY OF NEW YORK STATE TO NEGOTIATE CONTRACTS FOR ARCHI-
 TECTURAL AND/OR ENGINEERING SERVICES AND/OR SURVEYING  SERVICES  ON  THE
 BASIS  OF  DEMONSTRATED  COMPETENCE  AND  QUALIFICATION  FOR THE TYPE OF
 PROFESSIONAL SERVICES REQUIRED AND AT FAIR AND REASONABLE FEES.
   IN  THE  PROCUREMENT  OF  ARCHITECTURAL,  ENGINEERING  AND   SURVEYING
 SERVICES,  THE  CORPORATION  IS REQUIRED TO ENCOURAGE PROFESSIONAL FIRMS
 ENGAGED IN THE LAWFUL PRACTICE OF THE PROFESSION  TO  SUBMIT  AN  ANNUAL
 STATEMENT  OF  QUALIFICATIONS  AND PERFORMANCE DATA. THE CORPORATION FOR
 EACH PROPOSED PROJECT IS REQUIRED  TO  EVALUATE  CURRENT  STATEMENTS  OF
 QUALIFICATIONS  AND  PERFORMANCE  DATA ON FILE WITH THE CORPORATION.  IF
 DESIRED, THE CORPORATION MAY CONDUCT  DISCUSSIONS  WITH  THREE  OR  MORE
 PROFESSIONAL  FIRMS  REGARDING  ANTICIPATED DESIGN CONCEPTS AND PROPOSED
 METHODS OF APPROACH TO THE ASSIGNMENT. THE CORPORATION  IS  REQUIRED  TO
 SELECT,  IN  ORDER OF PREFERENCE, BASED UPON CRITERIA ESTABLISHED BY THE
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD11134-01-9

 S. 5115                             2
 
 CORPORATION, NO LESS THAN THREE PROFESSIONAL FIRMS DEEMED TO BE THE MOST
 HIGHLY QUALIFIED TO PROVIDE THE SERVICES REQUIRED.
   EVERY CORPORATION IS REQUIRED TO NEGOTIATE A CONTRACT WITH THE HIGHEST
 QUALIFIED   PROFESSIONAL   FIRM  FOR  ARCHITECTURAL  AND/OR  ENGINEERING
 SERVICES AND/OR SURVEYING SERVICES AT COMPENSATION WHICH THE CORPORATION
 DETERMINES IN WRITING TO BE FAIR AND REASONABLE TO SUCH CORPORATION.  IN
 MAKING  THIS  DECISION, THE CORPORATION IS REQUIRED TO TAKE INTO ACCOUNT
 THE ESTIMATED VALUE OF THE SERVICES TO BE RENDERED, INCLUDING THE COSTS,
 THE SCOPE, COMPLEXITY AND PROFESSIONAL NATURE THEREOF.
   The corporation shall not refuse to negotiate with a professional firm
 solely because the ratio of the "allowable  indirect  costs"  to  direct
 labor  costs  of  the  professional firm or the hourly labor rate in any
 labor category of the professional firm exceeds a  limitation  generally
 set by the corporation in the determination of the reasonableness of the
 estimated  cost of services to be rendered by the professional firm, but
 rather the corporation should also consider the reasonableness  of  cost
 based  on  the  total  estimated cost of the service of the professional
 firm which should include, among other  things,  all  the  direct  labor
 costs  of  the  professional  firm for such services plus all "allowable
 indirect costs," other  direct  costs,  and  negotiated  profit  of  the
 professional firm. "Allowable indirect costs" of a professional firm are
 defined  as  those costs generally associated with overhead which cannot
 be specifically identified with a single project  or  contract  and  are
 considered  reasonable  and  allowable  under specific state contract or
 allowability limits.  SHOULD THE CORPORATION CHOOSE TO ENGAGE IN A QUAL-
 IFICATION BASED PROCUREMENT AND BE UNABLE TO  NEGOTIATE  A  SATISFACTORY
 CONTRACT WITH THE PROFESSIONAL FIRM CONSIDERED TO BE THE MOST QUALIFIED,
 AT  A  FEE  THE  CORPORATION DETERMINES TO BE FAIR AND REASONABLE TO THE
 CORPORATION, NEGOTIATIONS WITH THAT PROFESSIONAL FIRM SHALL BE  FORMALLY
 TERMINATED.   THE CORPORATION SHALL THEN UNDERTAKE NEGOTIATIONS WITH THE
 SECOND MOST QUALIFIED PROFESSIONAL FIRM. FAILING ACCORD WITH THE  SECOND
 MOST  QUALIFIED PROFESSIONAL FIRM, THE CORPORATION SHALL FORMALLY TERMI-
 NATE NEGOTIATIONS. THE CORPORATION  SHALL  THEN  UNDERTAKE  NEGOTIATIONS
 WITH  THE THIRD MOST QUALIFIED PROFESSIONAL FIRM. SHOULD THE CORPORATION
 BE UNABLE TO NEGOTIATE A SATISFACTORY CONTRACT WITH ANY OF THE  SELECTED
 PROFESSIONAL  FIRMS,  IT  SHALL  SELECT ADDITIONAL PROFESSIONAL FIRMS IN
 ORDER OF THEIR COMPETENCE AND QUALIFICATIONS AND IT SHALL CONTINUE NEGO-
 TIATIONS IN ACCORDANCE WITH THIS SECTION UNTIL AN AGREEMENT IS  REACHED.
 THE  PROVISIONS  OF  THIS  SUBPARAGRAPH  SHALL ONLY APPLY TO ENGINEERING
 AND/OR ARCHITECTURAL SERVICES AND/OR SURVEYING  SERVICES  IN  EXCESS  OF
 TWENTY-FIVE  THOUSAND  DOLLARS  AND  SHALL NOT APPLY TO THE METROPOLITAN
 TRANSPORTATION AUTHORITY, THE NEW YORK CITY  TRANSIT  AUTHORITY  OR  THE
 TRIBOROUGH BRIDGE AND TUNNEL AUTHORITY OR TO ANY OF THEIR SUBSIDIARIES.
   § 2. This act shall take effect immediately.