S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                    864
 
                        2023-2024 Regular Sessions
 
                           I N  A S S E M B L Y
 
                             January 11, 2023
                                ___________
 
 Introduced  by  M.  of  A.  BRAUNSTEIN  -- read once and referred to the
   Committee on Cities
 
 AN ACT to amend chapter 749 of the laws of 2019 authorizing, for certain
   public works undertaken pursuant to project labor agreements,  use  of
   the  alternative  delivery  method known as design-build contracts, in
   relation  to  requiring  qualification-based  criteria  for   awarding
   certain contracts for services
 
   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. Section 2 of chapter 749 of the laws of 2019,  authorizing,
 for  certain  public  works  undertaken pursuant to project labor agree-
 ments, use of the alternative  delivery  method  known  as  design-build
 contracts,  is  amended  by  adding  a  new  subdivision  (f) to read as
 follows:
   (F)  "QUALIFICATIONS-BASED"  SHALL  MEAN  THE  BASIS  FOR  AWARDING  A
 CONTRACT  FOR  SERVICES  TO AN ENTITY THAT SUBMITS A STATEMENT OF QUALI-
 FICATIONS IN RESPONSE TO A REQUEST FOR QUALIFICATIONS WHEN AN AUTHORIZED
 ENTITY UTILIZES A ONE-STEP METHOD.
   § 2. Subdivision (a) of section 4 of chapter 749 of the laws of  2019,
 authorizing,  for  certain  public  works undertaken pursuant to project
 labor agreements, use  of  the  alternative  delivery  method  known  as
 design-build contracts, is amended to read as follows:
   (a) A contractor selected by such an authorized entity to enter into a
 design-build  contract  shall be selected through a ONE-STEP OR 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. UNLESS THE AUTHORIZED ENTITY IS UTILIZING A  ONE-STEP  METHOD,
 THE  AUTHORIZED ENTITY SHALL GENERATE 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
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD03202-01-3
              

 A. 864                              2
 
 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]  UNLESS  THE  AUTHORIZED  ENTITY  IS
 UTILIZING  A  ONE-STEP  METHOD, 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. IF THE AUTHORIZED ENTITY IS UTILIZING A
 ONE-STEP METHOD, THE AUTHORIZED  ENTITY  SHALL  EVALUATE  AND  RATE  ALL
 STATEMENTS  OF  QUALIFICATION  SUBMITTED  IN RESPONSE TO THE REQUEST FOR
 QUALIFICATIONS AND SHALL AWARD THE DESIGN-BUILD  CONTRACT  TO  THE  BEST
 QUALIFIED CONTRACTOR. NOTWITHSTANDING ANY CONTRARY PROVISION OF LAW, ANY
 AUTHORIZING  ENTITY  AWARDING  A  DESIGN-BUILD  CONTRACT TO A CONTRACTOR
 DETERMINED TO BE THE BEST QUALIFIED CONTRACTOR IN ACCORDANCE  WITH  THIS
 PARAGRAPH  MAY  ELECT  EITHER  TO  ENTER INTO A SINGLE CONTRACT WITH TWO
 PHASES OR SEPARATE CONTRACTS FOR EACH OF THE TWO PHASES. 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  enterprises  pursuant  to article 15-A of the
 executive law, or certified  pursuant  to  local  law  as  minority-  or
 women-owned  business  enterprises,  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-qualification 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-
 A. 864                              3
 
 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.
   (3)  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, OR
 IN  THE  CASE  OF A CONTRACT AWARDED UTILIZING A ONE-STEP METHOD, IS THE
 BEST-QUALIFIED CONTRACTOR, as determined by  the  authorized  entity  IN
 ACCORDANCE WITH THIS SECTION.  The request for proposals, OR THE REQUEST
 FOR QUALIFICATIONS IF THE CONTRACT IS AWARDED UTILIZING A ONE-STEP METH-
 OD,  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 mate-
 rial 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 OR RESPONSES  submitted  shall  be  scored
 according  to  the  criteria listed in the request for proposals, OR THE
 REQUEST FOR QUALIFICATIONS IF THE CONTRACT IS AWARDED UTILIZING  A  ONE-
 STEP  METHOD, 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.
   § 3. This act shall take effect immediately;  provided,  however  that
 the  amendments  to chapter 749 of the laws of 2019 made by sections one
 and two of this act shall not affect the  repeal  of  such  chapter  and
 shall be deemed repealed therewith.