S T A T E O F N E W Y O R K
________________________________________________________________________
6293--A
2019-2020 Regular Sessions
I N S E N A T E
June 3, 2019
___________
Introduced by Sens. COMRIE, JACKSON, LIU -- read twice and ordered
printed, and when printed to be committed to the Committee on Rules --
committee discharged, bill amended, ordered reprinted as amended and
recommitted to said committee
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 environmental
protection, the New York city department of transportation, the New York
city department of parks and recreation, the New York city health and
hospitals corporation, the New York city school construction authority
and the New York city housing authority.
(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;
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD13145-02-9
S. 6293--A 2
(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 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 pursuant to article 15-A
of the executive law, and certified pursuant to local law as minority-
or women-owned business enterprises. Where an agency identifies a quan-
titative factor pursuant to this paragraph, the agency must specify that
businesses certified as minority- or women-owned business enterprises
pursuant to article 15-A of the executive law as well as those certified
as minority- or women-owned business enterprises or pursuant to section
1304 of the New York city charter are eligible to qualify for such
factor. Nothing in this paragraph shall be construed as a requirement
that such businesses be concurrently certified as minority- or women-
owned business enterprises under both article 15-A of the executive law
and section 1304 of the New York city charter to qualify for such quan-
titative factors. In addition, where the New York city school
construction authority acts as the authorized entity, businesses certi-
fied as minority- or women-owned business enterprises pursuant to
section 1743 of the public authorities law shall be eligible to qualify
for such factor.
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.
§ 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 section 7210 of the
education law, article 5-A of the general municipal law, article 8 of
the public housing law, sections 1734 and 1735 of the public authori-
S. 6293--A 3
ties law and section 8 of the New York city health and hospitals corpo-
ration act, and in conformity with the requirements of this act, for any
public work that has an estimated cost of not less than 10 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, howev-
er, that any authorized entity charged with awarding a contract for
public work in connection with property within the jurisdiction of the
New York city department of parks and recreation or the New York city
housing authority is authorized to use the alternative delivery method
referred to as design-build contracts for any such public work that has
an estimated cost of not less than one million two hundred thousand
dollars if such public work is otherwise in conformity with the require-
ments of this act. Provided further that any authorized entity may use
the alternative delivery method referred to as design-build contracts
for any public work that has an estimated cost of not less than one
million two hundred thousand dollars if such public work is otherwise in
conformity with the requirements of this act and primarily consists of:
pedestrian ramps and similar infrastructure to improve access to side-
walks in the city of New York for people with disabilities; renovation
and construction of cultural institutions located on publicly owned real
property and of public libraries in the city of New York; or security
infrastructure, including bollards, planters and other physical struc-
tures, designed to protect life and property from acts of terror or mass
violence.
(a) A contractor selected by such an 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 pursuant to article 15-A of the executive law, or certified
pursuant to local law as minority- or women-owned business enterprises,
S. 6293--A 4
or, where the New York city school construction authority acts as the
authorized entity, certified pursuant to section 1743 of the public
authorities law; and (ii) small business concerns identified pursuant to
subdivision (b) of section 139-g of the state finance law. In addition,
nothing in this section shall be deemed to supersede any pre-qualifica-
tion guidelines or requirements otherwise authorized by law for an
authorized entity.
(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 pursuant to article 15-A of the executive law or section
1743 of the public authorities 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 relative weight of each of such criteria. Such crite-
ria 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 proposer, which, in consideration of these and other
specified criteria deemed pertinent, offers the best value, as deter-
mined by the authorized entity. 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 confidential; that the material designated as confi-
dential 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 after registration of such contract or
the date upon which such contract may be implemented, if registration
requirements do not apply.
(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,
S. 6293--A 5
(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 relating to the
performance of design and construction services by minority- and women-
owned business enterprises pursuant to, as applicable, section 6-129 of
the administrative code of the city of New York, subdivision 6 of
section 8 of the New York city health and hospitals corporation act,
section 1743 of the public authorities law, or, for projects or public
works receiving federal aid, applicable federal requirements for disad-
vantaged 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 public work
undertaken by an authorized entity pursuant to 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.
S. 6293--A 6
(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.
(d) Without limiting contractors' obligations under design-build
contracts to issue their own initial certifications of substantial
completion and final completion, public employees of authorized entities
shall review and determine whether the work performed by contractors is
acceptable and has been performed in accordance with the applicable
design-build contracts, and if such public employees so determine, such
public employees shall accept contractors' substantial or final
completion of the public works as applicable. Performance by authorized
entities of any review described in this subdivision shall not be
construed to modify or limit contractors' obligations to perform the
work in strict accordance with the applicable design-build contracts or
the contractors' or any subcontractors' obligations or liabilities under
any law.
§ 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. The authority conferred by this act shall not impact or impair
the application of section 1740 of the public authorities law concerning
the use of outside design, drafting or inspection services, and shall be
in addition to the authority conferred by any other law upon any author-
ized entity, provided that any public work covered by the New York city
BQE design-build act, the New York city housing authority modernization
investment act or the New York city Rikers Island jail complex replace-
ment act shall continue to be governed by the provisions of such act
while such provisions are in effect.
§ 13. A report shall be submitted no later than June 30, 2020 and
annually thereafter, to the governor, the temporary president of the
senate and the speaker of the assembly by the city of New York on behalf
of its agencies, the New York city housing authority, the New York city
school construction authority, and the New York city health and hospi-
tals corporation containing information regarding each design-build
contract procured pursuant to this act. Such report shall include a
description of each such design-build contract, information regarding
the procurement process for each such design-build contract including
the list of responding entities that demonstrated the general capability
to perform the design-build contract pursuant to paragraph (1) of subdi-
vision (a) of section four of this act, the total cost of each design-
build contract, an explanation of the estimated savings resulting from
the design-build method, and the participation rate of and total dollar
value of monies paid to minority- and women-owned business enterprises
under such design-build contract.
§ 14. This act shall take effect immediately and shall expire and be
deemed repealed three 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.
