Bill Text: NY S08174 | 2023-2024 | General Assembly | Introduced
Bill Title: Authorizes counties with a population of one million or more persons to undertake certain public works pursuant to project labor agreements; authorizes the use of the alternative delivery method known as design-build contracts; provides for the repeal of such provisions upon expiration thereof.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced) 2024-01-11 - REFERRED TO PROCUREMENT AND CONTRACTS [S08174 Detail]
Download: New_York-2023-S08174-Introduced.html
STATE OF NEW YORK ________________________________________________________________________ 8174 IN SENATE January 11, 2024 ___________ Introduced by Sen. BAILEY -- read twice and ordered printed, and when printed to be committed to the Committee on Procurement and Contracts 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: 1 Section 1. Short title. This act shall be known and may be cited as 2 the "county public works investment act". 3 § 2. For the purposes of this act: 4 (a) "Authorized entity" shall mean any county within the state having 5 a population of one million or more persons. 6 (b) "Best value" shall mean the basis for awarding contracts for 7 services to a proposer that optimizes quality, cost and efficiency, 8 price and performance criteria, which may include, but is not limited 9 to: 10 (1) The quality of the proposer's performance on previous projects; 11 (2) The timeliness of the proposer's performance on previous projects; 12 (3) The level of customer satisfaction with the proposer's performance 13 on previous projects; 14 (4) The proposer's record of performing previous projects on budget 15 and ability to minimize cost overruns; 16 (5) The proposer's ability to limit change orders; 17 (6) The proposer's ability to prepare appropriate project plans; 18 (7) The proposer's technical capacities; 19 (8) The individual qualifications of the proposer's key personnel; 20 (9) The proposer's ability to assess and manage risk and minimize risk 21 impact; 22 (10) The proposer's financial capability; 23 (11) The proposer's ability to comply with applicable requirements, 24 including the provisions of articles 145, 147 and 148 of the education 25 law; EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD09588-01-3S. 8174 2 1 (12) The proposer's past record of compliance with federal, state and 2 local laws, rules, licensing requirements, where applicable, and execu- 3 tive orders, including but not limited to compliance with the labor law 4 and other applicable labor and prevailing wage laws, article 15-A of the 5 executive law, and any other applicable laws concerning minority- and 6 women-owned business enterprise participation; 7 (13) The proposer's record of complying with existing labor standards, 8 maintaining harmonious labor relations, and protecting the health and 9 safety of workers and payment of wages above any locally-defined living 10 wage; and 11 (14) A quantitative factor to be used in evaluation of bids or offers 12 for awarding of contracts for bidders or offerers that are certified as 13 minority- or women-owned business enterprises pursuant to article 15-A 14 of the executive law, and certified pursuant to local law as minority- 15 or women-owned business enterprises. Where an agency identifies a quan- 16 titative factor pursuant to this paragraph, the agency must specify that 17 businesses certified as minority- or women-owned business enterprises 18 pursuant to article 15-A of the executive law as well as those certified 19 as minority- or women-owned business enterprises or pursuant to section 20 1304 of the New York city charter are eligible to qualify for such 21 factor. Nothing in this paragraph shall be construed as a requirement 22 that such businesses be concurrently certified as minority- or women- 23 owned business enterprises under both article 15-A of the executive law 24 and section 1304 of the New York city charter to qualify for such quan- 25 titative factors. 26 Such basis shall reflect, wherever possible, objective and quantifi- 27 able analysis. 28 (c) "Cost plus" shall mean compensating a contractor for the cost to 29 complete a contract by reimbursing actual costs for labor, equipment and 30 materials plus an additional amount for overhead and profit. 31 (d) "Design-build contract" shall mean a contract for the design and 32 construction of a public work with a single entity, which may be a team 33 comprised of separate entities. 34 (e) "Project labor agreement" shall have the meaning set forth in 35 subdivision 1 of section 222 of the labor law. A project labor agreement 36 shall require participation in apprentice training programs in accord- 37 ance with paragraph (e) of subdivision 2 of such section. 38 § 3. Any contract for a public work undertaken pursuant to a project 39 labor agreement in accordance with section 222 of the labor law may be a 40 design-build contract in accordance with this act. 41 § 4. Notwithstanding any general, special or local law, rule or regu- 42 lation to the contrary, including but not limited to section 7210 of the 43 education law, article 5-A of the general municipal law and article 8 of 44 the public housing law, and in conformity with the requirements of this 45 act, for any public work that has an estimated cost of not less than 10 46 million dollars and is undertaken pursuant to a project labor agreement 47 in accordance with section 222 of the labor law, an authorized entity 48 charged with awarding a contract for public work may use the alternative 49 delivery method referred to as design-build contracts; provided that any 50 authorized entity may use the alternative delivery method referred to as 51 design-build contracts for any public work that has an estimated cost of 52 not less than one million two hundred thousand dollars if such public 53 work is otherwise in conformity with the requirements of this act and 54 primarily consists of: pedestrian ramps and similar infrastructure to 55 improve access to sidewalks for people with disabilities; renovation and 56 construction of cultural institutions located on publicly owned realS. 8174 3 1 property and of public libraries; or security infrastructure, including 2 bollards, planters and other physical structures, designed to protect 3 life and property from acts of terror or mass violence. 4 (a) A contractor selected by such an authorized entity to enter into a 5 design-build contract shall be selected through a two-step method, as 6 follows: 7 (1) Step one. Generation of a list of responding entities that have 8 demonstrated the general capability to perform the design-build 9 contract. Such list shall consist of a specified number of responding 10 entities, as determined by an authorized entity, and shall be generated 11 based upon the authorized entity's review of responses to a publicly 12 advertised request for qualifications. The authorized entity's request 13 for qualifications shall include a general description of the public 14 work, the maximum number of responding entities to be included on the 15 list, the selection criteria to be used and the relative weight of each 16 criteria in generating the list. Such selection criteria shall include 17 the qualifications and experience of the design and construction team, 18 organization, demonstrated responsibility, ability of the team or of a 19 member or members of the team to comply with applicable requirements, 20 including the provisions of articles 145, 147 and 148 of the education 21 law, past record of compliance with the labor law, and such other quali- 22 fications the authorized entity deems appropriate, which may include but 23 are not limited to project understanding, financial capability and 24 record of past performance. The authorized entity shall evaluate and 25 rate all responding entities to the request for qualifications. Based 26 upon such ratings, the authorized entity shall list the responding enti- 27 ties that shall receive a request for proposals in accordance with para- 28 graph two of this subdivision. To the extent consistent with applicable 29 federal law, the authorized entity shall consider, when awarding any 30 contract pursuant to this section, the participation of (i) responding 31 entities that are certified as minority- or women-owned business enter- 32 prises pursuant to article 15-A of the executive law or certified pursu- 33 ant to local law as minority- or women-owned business enterprises; and 34 (ii) small business concerns identified pursuant to subdivision (b) of 35 section 139-g of the state finance law. In addition, nothing in this 36 section shall be deemed to supersede any pre-qualification guidelines or 37 requirements otherwise authorized by law for an authorized entity. 38 (2) Step two. Selection of the proposal which is the best value to the 39 authorized entity. The authorized entity shall issue a request for 40 proposals to the responding entities listed pursuant to paragraph one of 41 this subdivision. If such a responding entity consists of a team of 42 separate entities, the entities that comprise such a team must remain 43 unchanged from the responding entity as listed pursuant to paragraph one 44 of this subdivision unless otherwise approved by the authorized entity. 45 The request for proposals shall set forth the public work's scope of 46 work, and other requirements, as determined by the authorized entity, 47 which may include separate goals for work under the contract to be 48 performed by businesses certified as minority- or women-owned business 49 enterprises pursuant to article 15-A of the executive law or section 50 1743 of the public authorities law, or certified pursuant to local law 51 as minority- or women-owned business enterprises. The request for 52 proposals shall also specify the criteria to be used to evaluate the 53 responses and the relative weight of each of such criteria. Such crite- 54 ria shall include the proposal's cost, the quality of the proposal's 55 solution, the qualifications and experience of the proposer, and other 56 factors deemed pertinent by the authorized entity, which may include,S. 8174 4 1 but shall not be limited to, the proposal's manner and schedule of 2 project implementation, the proposer's ability to complete the work in a 3 timely and satisfactory manner, maintenance costs of the completed 4 public work, maintenance of traffic approach, and community impact. Any 5 contract awarded pursuant to this act shall be awarded to a responsive 6 and responsible proposer, which, in consideration of these and other 7 specified criteria deemed pertinent, offers the best value, as deter- 8 mined by the authorized entity. The request for proposals shall include 9 a statement that proposers shall designate in writing those portions of 10 the proposal that contain trade secrets or other proprietary information 11 that are to remain confidential; that the material designated as confi- 12 dential shall be readily separable from the proposal. Nothing in this 13 subdivision shall be construed to prohibit the authorized entity from 14 negotiating final contract terms and conditions including cost. All 15 proposals submitted shall be scored according to the criteria listed in 16 the request for proposals and such final scores shall be published on 17 the authorized entity's website after registration of such contract or 18 the date upon which such contract may be implemented, if registration 19 requirements do not apply. 20 (b) An authorized entity awarding a design-build contract to a 21 contractor offering the best value may but shall not be required to use 22 the following types of contracts: 23 (1) A cost-plus not to exceed guaranteed maximum price form of 24 contract in which the authorized entity shall be entitled to monitor and 25 audit all costs. In establishing the schedule and process for determin- 26 ing a guaranteed maximum price, the contract between the authorized 27 entity and the contractor shall: 28 (i) Describe the scope of the work and the cost of performing such 29 work, 30 (ii) Include a detailed line item cost breakdown, 31 (iii) Include a list of all drawings, specifications and other infor- 32 mation on which the guaranteed maximum price is based, 33 (iv) Include the dates of substantial and final completion on which 34 the guaranteed maximum price is based, and 35 (v) Include a schedule of unit prices; or 36 (2) A lump sum contract in which the contractor agrees to accept a set 37 dollar amount for a contract which comprises a single bid without 38 providing a cost breakdown for all costs such as for equipment, labor, 39 materials, as well as such contractor's profit for completing all items 40 of work comprising the public work. 41 § 5. Any contract entered into pursuant to this act shall include a 42 clause requiring that any professional services regulated by articles 43 145, 147 and 148 of the education law shall be performed and stamped and 44 sealed, where appropriate, by a professional licensed in accordance with 45 the appropriate article. 46 § 6. Construction with respect to each contract entered into by an 47 authorized entity pursuant to this act shall be deemed a "public work" 48 to be performed in accordance with the provisions of article 8 of the 49 labor law, as well as subject to sections 200, 240, 241 and 242 of such 50 law and enforcement of prevailing wage requirements pursuant to applica- 51 ble law or, for projects or public works receiving federal aid, applica- 52 ble federal requirements for prevailing wage. Any contract entered into 53 pursuant to this act shall include a clause requiring the selected 54 design builder to obligate every tier of contractor working on the 55 public work to comply with the project labor agreement referenced in 56 section three of this act, and shall include project labor agreementS. 8174 5 1 compliance monitoring and enforcement provisions consistent with the 2 applicable project labor agreement. 3 § 7. Each contract entered into by an authorized entity pursuant to 4 this act shall comply with the objectives and goals relating to the 5 performance of design and construction services by minority- and women- 6 owned business enterprises, or, for projects or public works receiving 7 federal aid, applicable federal requirements for disadvantaged business 8 enterprises or minority- and women-owned business enterprises. 9 § 8. Public works undertaken by an authorized entity pursuant to this 10 act shall be subject to the requirements of article 8 of the environ- 11 mental conservation law, and, where applicable, the requirements of the 12 National Environmental Policy Act. 13 § 9. (a) Notwithstanding any provision of law to the contrary, all 14 rights or benefits, including terms and conditions of employment, and 15 protection of civil service and collective bargaining status of all 16 employees of authorized entities solely in connection with public work 17 undertaken by an authorized entity pursuant to this act, shall be 18 preserved and protected. 19 (b) Nothing in this act shall result in the: (1) displacement of any 20 currently employed worker or loss of position (including partial 21 displacement such as a reduction in the hours of non-overtime work, 22 wages or employment benefits), or result in the impairment of existing 23 collective bargaining agreements; and (2) transfer of existing duties 24 and functions related to maintenance and operations currently performed 25 by existing employees of authorized entities to a contractor. 26 (c) Employees of authorized entities using design-build contracts 27 serving in positions in newly created titles shall be assigned to the 28 appropriate bargaining unit. Nothing contained in this act shall be 29 construed to affect (1) the existing rights of employees of such enti- 30 ties pursuant to an existing collective bargaining agreement, (2) the 31 existing representational relationships among employee organizations 32 representing employees of such entities, or (3) the bargaining relation- 33 ships between such entities and such employee organizations. 34 (d) Without limiting contractors' obligations under design-build 35 contracts to issue their own initial certifications of substantial 36 completion and final completion, public employees of authorized entities 37 shall review and determine whether the work performed by contractors is 38 acceptable and has been performed in accordance with the applicable 39 design-build contracts, and if such public employees so determine, such 40 public employees shall accept contractors' substantial or final 41 completion of the public works as applicable. Performance by authorized 42 entities of any review described in this subdivision shall not be 43 construed to modify or limit contractors' obligations to perform the 44 work in strict accordance with the applicable design-build contracts or 45 the contractors' or any subcontractors' obligations or liabilities under 46 any law. 47 § 10. The submission of a proposal or responses or the execution of a 48 design-build contract pursuant to this act shall not be construed to be 49 a violation of section 6512 of the education law. 50 § 11. Nothing contained in this act shall limit the right or obli- 51 gation of any authorized entity to comply with the provisions of any 52 existing contract or to award contracts as otherwise provided by law. 53 § 12. A report shall be submitted no later than June 30, 2024 and 54 annually thereafter, to the governor, the temporary president of the 55 senate and the speaker of the assembly by each authorized entity 56 containing information regarding each design-build contract procured byS. 8174 6 1 such authorized entity pursuant to this act. Such report shall include a 2 description of each such design-build contract, information regarding 3 the procurement process for each such design-build contract including 4 the list of responding entities that demonstrated the general capability 5 to perform the design-build contract pursuant to paragraph (1) of subdi- 6 vision (a) of section four of this act, the total cost of each design- 7 build contract, an explanation of the estimated savings resulting from 8 the design-build method, and the participation rate of and total dollar 9 value of monies paid to minority- and women-owned business enterprises 10 under such design-build contract. 11 § 13. This act shall take effect immediately and shall expire and be 12 deemed repealed three years after such date, provided that, public works 13 with requests for qualifications issued prior to such repeal shall be 14 permitted to continue under this act notwithstanding such repeal.
