NY State Senate Bill 2023-S8122A

Senate Bill S8122A

2023-2024 Legislative Session

Requires public authorities to negotiate with most qualified architectural, engineering, geological, landscape architectural and/or surveying professional firms before negotiating with other firms

download bill text pdf

Archive: Last Bill Status - In Senate Committee Corporations, Authorities And Commissions Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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Actions

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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
May 09, 2024	print number 8122a
May 09, 2024	amend (t) and recommit to corporations, authorities and commissions
Jan 08, 2024	referred to corporations, authorities and commissions

Bill Amendments

Original

A (Active)

2023-S8122 - Details

See Assembly Version of this Bill:: A9575
Current Committee:: Senate Corporations, Authorities And Commissions
Law Section:: Public Authorities Law
Laws Affected:: Amd §2879, Pub Auth L
Versions Introduced in Other Legislative Sessions:: 2009-2010: S3531
2011-2012: S1363
2013-2014: S414, S6639
2015-2016: S4475
2017-2018: S5600
2019-2020: S5115
2021-2022: S5713

2023-S8122 - Summary

Requires public authorities and public benefit corporations to negotiate with professional firms providing architectural, engineering, geological, landscape architectural or surveying services in order from the most qualified to the least qualified with regard to the provision of services to the authority or corporation.

2023-S8122 - Sponsor Memo

                                 
BILL NUMBER: S8122

SPONSOR: COMRIE
 
TITLE OF BILL:

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

 
PURPOSE OF THE BILL:

This bill would allow public authorities a greater opportunity to nego-
tiate with the most qualified architectural and engineering professional
firms through annual statements of qualifications and performance data
created by professional firms.

 
SUMMARY OF PROVISIONS:

§ 1 - Amends subparagraph (iv) of paragraph (b) of subdivision 3 of 2879
of the public Authorities Law.

§ 2 - Effective date.

 
JUSTIFICATION:

The intent of this bill is to ensure that public authorities and public
benefit corporations receive the services of the most qualified contrac-
tor through the establishment of a new mechanism for the procurement of
engineering, architectural and surveying services.  Qualifications Based
Selections (QBS) is a procurement process that is used widely throughout
the country and has recently been adopted by New York City. Instead of
cost-based procurement which focuses primarily on price, QBS procurement
focuses on qualifications and experience as the paramount basis for
selection. However, after the highest technically ranked firm is
selected and the project scope is fully defined, QBS generates a realis-
tic fee based on a fee proposal by the consultant and negotiations with
the agency. If an agency cannot negotiate a fair price with the first
choice consultant, it has the option to negotiate with the next highly
qualified consultant, and so on. QBS allows agencies to select the
design firm with the best experience, capabilities, technical approach
and quality of personnel, matched to the needs of the project and the
agency; generates better plans and specifications, resulting in higher
quality contract documents that make bidding on an d carrying out
construction easier; fosters the development of innovative, cost-effec-
tive design solutions at a fair market value, resulting in lower overall
project costs; and generates design solutions that best meet the needs
of the project, emphasizing public health, safety and quality of life.

QBS is mandated in at least 46 other states and has proven to be an
effective procurement tool. QBS generates competition by bringing more
firms into the bidding process. As a result, owners are ensured a better
project and a savings to the taxpayer.

 
LEGISLATIVE HISTORY:

2021/22: S5713

2020/21: S5115

2017/18 A.5750/S.5600

2015/16 A.5759A/S.4475A

2013/14 A.7268A/S.6639A

2011/12 A.6814A/S.1363A

 
FISCAL IMPLICATIONS:

Should result in cost savings for the State.

 
EFFECTIVE DATE:
This act shall take effect immediately.

2023-S8122 - Bill Text download pdf

                             
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   8122
 
                             I N  S E N A T E
 
                              January 8, 2024
                                ___________
 
 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
 CORPORATION, NO LESS THAN THREE PROFESSIONAL FIRMS DEEMED TO BE THE MOST
 HIGHLY QUALIFIED TO PROVIDE THE SERVICES REQUIRED.
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD04392-01-3

 S. 8122                             2
 
   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.

2023-S8122A (ACTIVE) - Details

See Assembly Version of this Bill:: A9575
Current Committee:: Senate Corporations, Authorities And Commissions
Law Section:: Public Authorities Law
Laws Affected:: Amd §2879, Pub Auth L
Versions Introduced in Other Legislative Sessions:: 2009-2010: S3531
2011-2012: S1363
2013-2014: S414, S6639
2015-2016: S4475
2017-2018: S5600
2019-2020: S5115
2021-2022: S5713

2023-S8122A (ACTIVE) - Summary

2023-S8122A (ACTIVE) - Sponsor Memo

                                 
BILL NUMBER: S8122A

SPONSOR: COMRIE
 
TITLE OF BILL:

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, engineering, geological,
landscape architectural or surveying services in order from the most
qualified to the least qualified with regard to the provision of
services to the authority or corporation

 
PURPOSE: OF THE BILL:

This bill would allow public authorities a greater opportunity to nego-
tiate with the most qualified architectural, geological, landscape
architectural, and engineering professional firms through annual state-
ments of qualifications and performance data created by professional
firms.

 
SUMMARY OF PROVISIONS:

§ 1 - Amends subparagraph (iv) of paragraph (b) of subdivision 3 of 2879
of the public Authorities Law.  2 - Effective date.

 
JUSTIFICATION:

The intent of this bill is to ensure that public authorities and public
benefit corporations receive the services of the most qualified contrac-
tor through the establishment of a new mechanism for the procurement of
engineering, architectural and surveying services.  Qualifications Based
Selections (QBS) is a procurement process that is used widely throughout
the country and has recently been adopted by New York City. Instead of
cost-based procurement which focuses primarily on price, QBS procurement
focuses on qualifications and experience as the paramount basis for
selection. However, after the highest technically ranked firm is
selected and the project scope is fully defined, QBS generates a realis-
tic fee based on a fee proposal by the consultant and negotiations with
the agency. If an agency cannot negotiate a fair price with the first
choice consultant, it has the option to negotiate with the next highly
qualified consultant, and so on. QBS allows agencies to select the
design firm with the best experience, capabilities, technical approach
and quality of personnel, matched to the needs of the project and the
agency; generates better plans and specifications, resulting in higher
quality contract documents that make bidding on an d carrying out
construction easier; fosters the development of innovative, cost-effec-
tive design solutions at a fair market value, resulting in lower overall
project costs; and generates design solutions that best meet the needs
of the project, emphasizing public health, safety and quality of life.

QBS is mandated in at least 46 other states and has proven to be an
effective procurement tool. QBS generates competition by bringing more
firms into the bidding process. As a result, owners are ensured a better
project and a savings to the taxpayer.

 
LEGISLATIVE HISTORY:

2021/22: S5713

2020/21: S5115

2017/18 A.5750/S.5600

2015/16 A.5759A/S.4475A

2013/14 A.7268A/S.6639A

2011/12 A.6814A/S.1363A

 
FISCAL IMPLICATIONS:

Should result in cost savings for the State.

 
EFFECTIVE DATE:
This act shall take effect immediately.

2023-S8122A (ACTIVE) - Bill Text download pdf

                             
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                  8122--A
 
                             I N  S E N A T E
 
                              January 8, 2024
                                ___________
 
 Introduced  by  Sen.  COMRIE -- read twice and ordered printed, and when
   printed to be committed to the Committee on Corporations,  Authorities
   and   Commissions  --  committee  discharged,  bill  amended,  ordered
   reprinted as amended and recommitted to said committee
 
 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,  engineering,  geological,
   landscape  architectural  or surveying 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 SERVICES AND/OR ENGINEERING SERVICES AND/OR GEOLOGICAL SERVICES
 AND/OR LANDSCAPE ARCHITECTURAL 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, GEOLOGICAL, LAND-
 SCAPE ARCHITECTURAL 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  PERFORM-
 ANCE  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
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.

                                                            LBD04392-02-4
 S. 8122--A                          2

 CRITERIA ESTABLISHED BY THE 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 SERVICES AND/OR ENGINEER-
 ING SERVICES AND/OR GEOLOGICAL SERVICES AND/OR  LANDSCAPE  ARCHITECTURAL
 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
 SERVICES AND/OR ARCHITECTURAL SERVICES AND/OR GEOLOGICAL SERVICES AND/OR
 LANDSCAPE  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.

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