§ 3402. Nassau health care corporation. 1. (a) There is hereby created
a state board to be known as the Nassau health care corporation which
shall be a body corporate and politic constituting a public benefit
corporation.

(b) The corporation shall be governed by fifteen voting directors,
eight of whom shall be appointed by the governor as provided in
paragraph (c) of this subdivision, three of whom shall be appointed by
the county executive for initial terms of two years, and four of whom
shall be appointed by the county legislature for initial terms of three
years.

(c) Of the eight directors appointed by the governor, two shall be
appointed upon the recommendation of the county executive, three shall
be appointed upon the recommendation of the majority leader of the
county legislature, one shall be appointed upon the recommendation of
the minority leader of the county legislature, one shall be appointed
upon the recommendation of the speaker of the assembly and one shall be
appointed upon the recommendation of the temporary president of the
senate.

(d) Of the directors first appointed by the governor, the director
appointed upon the recommendation of the temporary president of the
senate, the director appointed upon the recommendation of the speaker of
the assembly, one of the directors appointed upon the recommendation of
the county executive and one of the directors appointed upon the
recommendation of the majority leader of the county legislature shall
serve for an initial term of four years. The remaining directors
appointed by the governor shall serve for an initial term of two years.
Following their initial terms, directors shall serve for a term of five
years.

2. (a) The county executive shall designate one of the fifteen voting
directors as the chairperson of the board. The chairperson shall preside
over all meetings of the board and shall have such other duties as the
voting directors may direct.

(b) The voting directors of the corporation shall receive no
compensation for their services, but may be reimbursed for their actual
reasonable expenses.

(c) Sixty percent of the voting directors then in office shall
constitute a quorum. No action shall be taken by the board of directors
except pursuant to the favorable vote of a majority of the board at a
meeting at which a quorum is present.

3. There shall be three non-voting directors which shall include the
chief executive officer of the corporation as appointed by the board of
directors, one director selected by the county executive, and one
selected by the county legislature.

4. The board of directors shall select the chief executive officer
subject to the approval of the county executive and shall determine the
salary and benefits of the chief executive officer of the corporation.
The chief executive officer shall serve at the pleasure of the board of
directors provided, however, that removal without cause shall not
prejudice the contract rights, if any, of the chief executive officer.

5. Notwithstanding any inconsistent provision of any general, special
or local law, ordinance, resolution or charter, no officer, member or
employee of the state or of any public corporation shall forfeit his or
her office or employment by reason of his or her acceptance of
appointment as a voting director, non-voting director, officer or
employee of the corporation, nor shall service as such a voting
director, non-voting director, officer or employee be deemed
incompatible or in conflict with such office, or employment, and
provided further, however, that no public officer elected to his or her
office pursuant to the laws of the state or any municipality thereof may
serve as a member of the governing body of the corporation during his or
her term of office.

6. The corporation and its corporate existence shall continue until
terminated by law, provided, however, that no such termination shall
take effect so long as the corporation shall have bonds or other
obligations outstanding, unless adequate provision has been made for the
payment or satisfaction thereof. Upon termination of the existence of
the corporation, all of the rights and properties of the corporation
then remaining shall pass to and vest in the county in such manner as
prescribed by law.

7. Contracts for public works or purchases to which the corporation is
a party shall be subject to the provisions of article five-A of the
general municipal law except as provided in subdivisions eight and nine
of this section. In addition to the procedures prescribed under section
one hundred four of the general municipal law for the utilization of the
terms of state contracts, the corporation may utilize the terms of a
federal government general services contract where the terms are to the
advantage of the corporation and have been offered to the corporation by
the contractor. When bids have already been received by the corporation,
no purchase under a federal government general services contract shall
be made unless the purchase may be made upon the same terms, conditions
and specifications at a lower price through such contractor.

8. It is the intent of the legislature that overall cost should in all
cases be a major criterion in the selection of project developers for
award of contracts pursuant to this section and that, wherever
practical, such contracts should be entered into pursuant to the
provisions of sections one hundred one and one hundred three of the
general municipal law. It is further the intent of the legislature to
acknowledge the highly complex and innovative nature of medical
technology, diagnostic and treatment devices, the relative newness of a
variety of devices, processes and procedures now available, the
desirability of a single point of responsibility for the development of
medical treatment and diagnostic facilities and the economic and
technical utility of contracts for medical projects which include in
their scope various combinations of design, construction, operation,
management and/or maintenance responsibility over prolonged periods of
time and that in some instances it may be beneficial to the corporation
to award a contract for a medical project on the basis of factors other
than capital cost alone, including but not limited to facility design,
system reliability, efficiency, safety, long-term operating costs and
compatibility with other elements of patient care. Accordingly, and
notwithstanding the provisions of any general, special or local law or
chapter, a contract for a medical project entered into between the
corporation and any project developer pursuant to this section may be
awarded pursuant to public bidding in compliance with sections one
hundred one and one hundred three of the general municipal law or
pursuant to the following provisions for the award of a contract based
on evaluation of proposals submitted in response to a request for
proposals prepared by or for the corporation:

(a) The corporation shall require that each proposal to be submitted
by a project developer shall include:

(i) information relating to the experience and expertise of the
project developer on the basis of which said project developer purports
to be qualified to carry out all work required by a proposed contract;
the ability of the project developer to secure adequate financing; and
proposals for project staffing, implementation of work tasks, and the
carrying out of all responsibilities by a proposed contract;

(ii) a proposal clearly identifying and specifying all elements of
cost which would become charges to the corporation, in whatever form, in
return for the fulfillment by the project developer for the full
lifetime of a proposed contract, including, as appropriate, but not
limited to the cost of planning, design, construction, operation,
management and/or maintenance of any facility, and clearly identifying
and specifying all elements of revenue which would accrue to the
corporation from the operation of the facility or device or from any
other source; provided, that the corporation may prescribe the form and
content of such proposal and that, in any event, the project developer
must submit sufficiently detailed information to permit a fair and
equitable evaluation by the corporation of such proposal; and provided,
further, that the corporation may set maximum allowable cost limits in
any form in the request for proposals; and

(iii) such other information as the corporation may determine to have
a material bearing on its ability to evaluate any proposal in accordance
with this subparagraph;

(b) Prior to the issuance of a request for proposals pursuant to this
paragraph, the corporation shall publish notice of such issuance in at
least one newspaper of general circulation. Concurrent with the
publication of such notice a draft request for proposals shall be filed
with the county commissioner of health.

(c) Proposals received in response to such request for proposals shall
be evaluated by the corporation as to net capital cost or, if a net
revenue is projected, net revenue, and in a manner consistent with
provisions set forth in the request for proposals, and may be evaluated
on the basis of additional factors, including but not limited to the
technical evaluation of the medical project including medical facility,
facility design, system reliability, energy balance, annual operating
cost and efficiency. The evaluation of such proposals and the
determination of whether a project developer is "responsible" may
include, but shall not be limited to, consideration, in a manner
consistent with provisions set forth in the request for proposals, the
record of the project developer in complying with existing labor
standards and recognizing state and federally approved apprentice
training programs, and the willingness of the project developer to
provide for meaningful participation of minority group persons and
business enterprises in the conduct of the work;

(d) The corporation may make a contract award to any responsible
project developer selected pursuant to subparagraph (iii) of paragraph
(a) of this subdivision based on a determination by the corporation that
the selected proposal is most responsive to the request for proposals
and may negotiate with any project developer, provided, however, that if
any award is made to any project developer whose total proposal does not
provide either the lowest net cost, or if a net revenue is projected,
the greatest net revenue, of any proposal received, the corporation
shall adopt a resolution which includes particularized findings relevant
to factors pursuant to such subparagraph indicating that the
corporation's requirements are met by such award and that such action is
in the public interest.

Whenever the corporation enters into a contract pursuant to this
section for a medical project which involves construction the provisions
of section two hundred twenty of the labor law shall be applicable to
such construction work.

9. Every contract entered into between the corporation and a project
developer, pursuant to the provisions of paragraph (d) of subdivision
eight of this section, for a medical project involving construction of a
medical building by the project developer, shall contain provisions that
such building shall be constructed through construction contracts
awarded through competitive bidding in accordance with paragraphs (a)
through (g) of this subdivision; that the project developer or the
project developer's construction subcontractor shall furnish a bond
guaranteeing prompt payment of moneys that are due to all persons
furnishing labor and materials pursuant to the requirements of such
construction contracts, and that a copy of such payment bond shall be
kept by the corporation and shall be open to public inspection;
provided, however, that the requirements of this subdivision shall not
apply when the cost of such construction, exclusive of the cost of
medical equipment and devices, is less than one million five hundred
thousand dollars.

(a) The project developer shall advertise for bids for such
construction contracts in a daily newspaper having general circulation
in the county. Such advertisement shall contain a statement of the time
and place where all bids received pursuant to such notice will be
publicly opened and read. An employee of the corporation shall be
designated to open the bids at the time and place specified in the
notice. All bids received shall be publicly opened and read at the time
and place so specified. At least five days shall elapse between the
publication of such advertisement and date on which the bids are opened.

(b) Except as otherwise provided in section two hundred twenty-two of
the labor law, when the entire cost of constructing such building,
exclusive of any medical equipment, apparatus or devices, shall exceed
one million five hundred thousand dollars, the project developer shall
prepare separate specifications for the following subdivisions of such
work, so as to permit separate and independent bidding upon each
subdivision:

(i) plumbing and gas fittings;

(ii) steam heating, hot water heating, ventilating and air
conditioning apparatus; and

(iii) electric wiring and standard illuminating fixtures.

(c) After public competitive bidding, the project developer shall
award one or more separate contracts for each of the above subdivisions
of such work, whenever separate specifications are required pursuant to
paragraph (b) of this subdivision, and one or more contracts for the
remainder of such work. The project developer may award such contracts
at different times. Contracts awarded pursuant to this subdivision shall
be awarded by the project developer to the lowest responsible and
responsive bidder and shall be contracts of the project developer and
not of the corporation which shall have no obligation or liabilities,
whatsoever, thereunder. The project developer shall have the
responsibility for the supervision, coordination, and termination of
such contracts, unless otherwise specified in contractual terms between
the project developer and the corporation.

(c-1) Each bidder on a public work contract, where the preparation of
separate specifications is not required, shall submit with its bid a
separate sealed list that names each subcontractor that the bidder will
use to perform work on the contract, and the agreed-upon amount to be
paid to each, for: (i) plumbing and gas fitting, (ii) steam heating, hot
water heating, ventilating and air conditioning apparatus and (iii)
electric wiring and standard illuminating fixtures. After the low bid is
announced, the sealed list of subcontractors submitted with such low bid
shall be opened and the names of such subcontractors shall be announced,
and thereafter any change of subcontractor or agreed-upon amount to be
paid to each shall require the approval of the public owner, upon a
showing presented to the public owner of legitimate construction need
for such change, which shall be open to public inspection. Legitimate
construction need shall include, but not be limited to, a change in
project specifications, a change in construction material costs, a
change to subcontractor status as determined pursuant to paragraph (e)
of subdivision two of section two hundred twenty-two of the labor law,
or the subcontractor has become otherwise unwilling, unable or
unavailable to perform the subcontract. The sealed lists of
subcontractors submitted by all other bidders shall be returned to them
unopened after the contract award.

(d) In determining whether a prospective contractor is responsible and
responsive, the project developer may require that prospective
contractors:

(i) have adequate financial resources or the ability to obtain such
resources;

(ii) be able to comply with the required or proposed delivery or
performance schedule;

(iii) have a satisfactory record of performance;

(iv) have the necessary organization, experience, operational
controls, and technical skills, or the ability to obtain them;

(v) have the necessary production, construction and technical
equipment and facilities, or the ability to obtain them; and

(vi) be eligible to receive an award under applicable laws and
regulations and be otherwise qualified.

(e) The project developer may reject any bid of a bidder which the
project developer determines to be nonresponsible or nonresponsive to
the advertisement for bids.

(f) The project developer may, in its discretion, reject all bids, and
may revise bid specifications and may readvertise for bids as provided
herein.

(g) Only as used in this section:

(i) "project developer" means any private corporation, partnership,
limited liability company, or individual, or combination thereof which
has submitted a proposal in response to a request for proposals;

(ii) "construction" shall include reconstruction, rehabilitation or
improvement exclusive of the installation and assembly of any medical
equipment, apparatus or device;

(iii) "medical building" means that component of a medical project
constituting appurtenant structures or facilities necessary to house or
render the remaining components of the medical project operational.
Medical building shall not include apparatus, equipment, devices,
systems, supplies or any combination thereof;

(iv) "medical project" means any substantial durable apparatus,
equipment, device or system, or any combination of the foregoing,
including services necessary to install, erect, or assemble the
foregoing and any appurtenant structures or facilities necessary to
house or render the foregoing operational, to be used for the purpose of
care, treatment or diagnosis of disease or injury or the relief of pain
and suffering of sick or injured persons. Medical projects shall not
include ordinary supplies and equipment expended or utilized in the
customary care and treatment of patients.

10. (a) For purposes of applying section eighty-seven of the public
officers law, to the corporation, the term "trade secrets" shall include
marketing strategy or strategic marketing plans, analyses, evaluations
and pricing strategies or pricing commitments of the corporation,
relating to business development, which, if disclosed, would be likely
to injure the competitive position of the corporation.

(b) In addition to the matters listed in section one hundred five of
the public officers law, the corporation may conduct an executive
session for the purpose of considering marketing strategy or strategic
marketing plans, analyses, evaluations and pricing strategies of the
corporation, relating to business development, which, if disclosed,
would be likely to injure the competitive position of the corporation.