Bill Text: NY A07368 | 2023-2024 | General Assembly | Amended


Bill Title: Enacts the "Syracuse regional airport authority design-build act" allowing for the Syracuse regional airport authority to enter into a design-build contract for the installation, construction, demolition, reconstruction, excavation, rehabilitation, repair, and renovation in connection with a landside improvement project, terminal operational enhancement and aircraft deicing facility located in the towns of Cicero, De Witt and Salina at the Syracuse Hancock International Airport.

Spectrum: Partisan Bill (Democrat 2-0)

Status: (Passed) 2023-09-15 - signed chap.418 [A07368 Detail]

Download: New_York-2023-A07368-Amended.html



                STATE OF NEW YORK
        ________________________________________________________________________

                                         7368--A

                               2023-2024 Regular Sessions

                   IN ASSEMBLY

                                      May 18, 2023
                                       ___________

        Introduced  by  M. of A. MAGNARELLI, STIRPE -- read once and referred to
          the Committee on Corporations, Authorities and Commissions --  commit-
          tee  discharged, bill amended, ordered reprinted as amended and recom-
          mitted to said committee

        AN ACT enacting the "Syracuse regional  airport  authority  design-build
          act";  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.  This act shall be known and may be cited as the "Syracuse
     2  regional airport authority design-build act".
     3    § 2. For purposes of this act, the  following  terms  shall  have  the
     4  following meanings:
     5    1.  (a)  "Authorized  entity" shall mean the Syracuse regional airport
     6  authority as established by title thirty-four of article  eight  of  the
     7  public authorities law.
     8    (b)  If  otherwise  applicable,  authorized projects undertaken by the
     9  authorized entity shall be subject to section 135 of the  state  finance
    10  law  and  section  101  of the general municipal law; provided, however,
    11  that an authorized entity may fulfill its obligations under section  135
    12  of  the state finance law or section 101 of the general municipal law by
    13  requiring the contractor to prepare separate specifications  in  accord-
    14  ance  with  section  135  of the state finance law or section 101 of the
    15  general municipal law, as the case may be.
    16    2. "Authorized project" shall mean, in conformity  with  the  require-
    17  ments  of  this  act, any installation, construction, demolition, recon-
    18  struction,  excavation,  rehabilitation,  repair,  and   renovation   in
    19  connection  with  a  landside  improvement project, terminal operational
    20  enhancement and aircraft deicing facility located in the towns of  Cice-
    21  ro,  De Witt and Salina at the Syracuse Hancock International Airport at
    22  1000 Colonel Eileen Collins Boulevard.

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD11514-05-3

        A. 7368--A                          2

     1    3. "Best value" shall  mean  the  basis  for  awarding  contracts  for
     2  services  to  the  bidder  that  optimizes quality, cost and efficiency,
     3  price and performance criteria, which may include, but  is  not  limited
     4  to:
     5    (a) the quality of the contractor's performance on previous projects;
     6    (b)  the  timeliness  of  the  contractor's  performance  on  previous
     7  projects;
     8    (c) the level of customer satisfaction with the contractor's  perform-
     9  ance on previous projects;
    10    (d)  the contractor's record of performing previous projects on budget
    11  and ability to minimize cost overruns;
    12    (e) the contractor's ability to limit change orders;
    13    (f) the contractor's ability to prepare appropriate project plans;
    14    (g) the contractor's technical capacities;
    15    (h) the individual qualifications of the contractor's key personnel;
    16    (i) the contractor's ability to assess and manage  risk  and  minimize
    17  risk impact;
    18    (j) the contractor's financial capability;
    19    (k)  the  contractor's ability to comply with applicable requirements,
    20  including the provisions of articles 145, 147 and 148 of  the  education
    21  law;
    22    (l) the contractor's past record of compliance with federal, state and
    23  local  laws, rules, licensing requirements, where applicable, and execu-
    24  tive orders, including but not limited to compliance with the labor  law
    25  and other applicable labor and prevailing wage laws, article 15-A of the
    26  executive  law,  and  any other applicable laws concerning minority- and
    27  women-owned business enterprise participation;
    28    (m) the contractor's record of complying with  existing  labor  stand-
    29  ards,  maintaining harmonious labor relations, and protecting the health
    30  and safety of workers and payment of  wages  above  any  locally-defined
    31  living wage; and
    32    (n)  a  quantitative factor to be used in evaluation of bids or offers
    33  for awarding of contracts for bidders or offerers that are certified  as
    34  minority-  or  women-owned business enterprises pursuant to article 15-A
    35  of the executive law, and certified pursuant to local law  as  minority-
    36  or women-owned business enterprises. Where the authorized entity identi-
    37  fies  a  quantitative  factor pursuant to this paragraph, the authorized
    38  entity must specify that businesses certified  as  minority-  or  women-
    39  owned business enterprises pursuant to article 15-A of the executive law
    40  as  well  as those certified as minority- or women-owned business enter-
    41  prises pursuant to local law are eligible to qualify  for  such  factor.
    42  Nothing  in this paragraph shall be construed as a requirement that such
    43  businesses be concurrently certified as minority- or  women-owned  busi-
    44  ness  enterprises under article 15-A of the executive law to qualify for
    45  such quantitative factors. Such basis shall reflect, wherever  possible,
    46  objective and quantifiable analysis.
    47    4.  "Cost  plus"  shall mean compensating a contractor for the cost to
    48  complete a contract by reimbursing actual costs for labor, equipment and
    49  materials plus an additional amount for overhead and profit.
    50    5. "Design-build contract" shall mean a contract for  the  design  and
    51  construction  of  the authorized project with a single entity, which may
    52  be a team comprised of separate entities.
    53    6. "Project labor agreement" shall have the same meaning as such  term
    54  is  defined pursuant to subdivision 1 of section 222 of the labor law. A
    55  project labor agreement shall require participation in apprentice train-

        A. 7368--A                          3

     1  ing programs in accordance with paragraph (e) of subdivision 2  of  such
     2  section.
     3    §  3. Notwithstanding any general, special or local law, rule or regu-
     4  lation to the contrary, including but not limited to article 5-A of  the
     5  general  municipal  law  and  section 136-a of the state finance law, in
     6  conformity with the requirements of this act, and only  when  a  project
     7  labor agreement is performed in accordance with section 222 of the labor
     8  law,  an  authorized  entity  may  use  the  alternative delivery method
     9  referred to as a design-build contract for  the  authorized  project  in
    10  accordance with this act.
    11    § 4. 1. A contractor selected by the authorized entity to enter into a
    12  design-build  contract  shall  be selected through a two-step method, as
    13  follows:
    14    (a) Step one. Generation of a list of responding  entities  that  have
    15  demonstrated   the   general  capability  to  perform  the  design-build
    16  contract.  Such list shall consist of a specified number  of  responding
    17  entities,  as determined by an authorized entity, and shall be generated
    18  based upon the authorized entity's review of  responses  to  a  publicly
    19  advertised  request  for qualifications. The authorized entity's request
    20  for qualifications shall include a general  description  of  the  public
    21  work,  the  maximum  number of responding entities to be included on the
    22  list, the selection criteria to be used and the relative weight of  each
    23  criteria  in  generating the list. Such selection criteria shall include
    24  the qualifications and experience of the design and  construction  team,
    25  organization,  demonstrated  responsibility, ability of the team or of a
    26  member or members of the team to comply  with  applicable  requirements,
    27  including  the  provisions of articles 145, 147 and 148 of the education
    28  law, past record of compliance with the labor law, and such other quali-
    29  fications the authorized entity deems appropriate, which may include but
    30  are not limited  to  project  understanding,  financial  capability  and
    31  record  of  past  performance.  The authorized entity shall evaluate and
    32  rate all responding entities to the request for qualifications.    Based
    33  upon such ratings, the authorized entity shall list the responding enti-
    34  ties that shall receive a request for proposals in accordance with para-
    35  graph  two of this subdivision. To the extent consistent with applicable
    36  federal law, the authorized entity shall  consider,  when  awarding  any
    37  contract pursuant to this section, the participation of:  (i) responding
    38  entities  that are certified as minority- or women-owned business enter-
    39  prises pursuant to article 15-A  of  the  executive  law,  or  certified
    40  pursuant  to local law as minority- or women-owned business enterprises;
    41  and (ii) small business concerns identified pursuant to subdivision  (b)
    42  of section 139-g of the state finance law.
    43    (b) Step two. Selection of the proposal which is the best value to the
    44  authorized  entity.  The  authorized  entity  shall  issue a request for
    45  proposals to the responding entities listed pursuant to subdivision  one
    46  of this section. If such a responding entity consists of a team of sepa-
    47  rate  entities,  the  entities  that  comprise  such  a team must remain
    48  unchanged from the responding entity as listed pursuant  to  subdivision
    49  one  of this section unless otherwise approved by the authorized entity.
    50  The request for proposals shall set forth the  public  work's  scope  of
    51  work,  and  other  requirements, as determined by the authorized entity,
    52  which may include separate goals for  work  under  the  contract  to  be
    53  performed  by  businesses certified as minority- or women-owned business
    54  enterprises pursuant to article 15-A of the executive law, or  certified
    55  pursuant  to local law as minority- or women-owned business enterprises.
    56  The request for proposals shall also specify the criteria to be used  to

        A. 7368--A                          4

     1  evaluate the responses and the relative weight of each of such criteria.
     2  Such  criteria  shall  include  the  proposal's cost, the quality of the
     3  proposal's solution, the qualifications and experience of the  proposer,
     4  and  other  factors deemed pertinent by the authorized entity, which may
     5  include, but shall not be limited to, the proposal's manner and schedule
     6  of project implementation, the contractor's ability to complete the work
     7  in a timely and satisfactory manner, maintenance costs of the  completed
     8  public  work, maintenance of traffic approach, and community impact. Any
     9  contract awarded pursuant to this act shall be awarded to  a  responsive
    10  and  responsible  proposer,  which,  in consideration of these and other
    11  specified criteria deemed pertinent, offers the best  value,  as  deter-
    12  mined  by the authorized entity. The request for proposals shall include
    13  a statement that proposers shall designate in writing those portions  of
    14  the proposal that contain trade secrets or other proprietary information
    15  that  are to remain confidential; that the material designated as confi-
    16  dential shall be readily separable from the proposal.  Nothing  in  this
    17  subdivision  shall  be  construed to prohibit the authorized entity from
    18  negotiating final contract terms  and  conditions  including  cost.  All
    19  proposals  submitted shall be scored according to the criteria listed in
    20  the request for proposals and such final scores shall  be  published  on
    21  the authorized entity's website.
    22    2.  The  authorized  entity  awarding  a  design-build  contract  to a
    23  contractor offering the best value may but shall not be required to  use
    24  the following types of contracts:
    25    (a)  a  cost-plus  not  to  exceed  guaranteed  maximum  price form of
    26  contract in which the authorized entity shall be entitled to monitor and
    27  audit all costs. In establishing the schedule and process for  determin-
    28  ing  a  guaranteed  maximum  price,  the contract between the authorized
    29  entity and the contractor shall:
    30    (i) describe the scope of the work and the  cost  of  performing  such
    31  work;
    32    (ii) include a detailed line-item cost breakdown;
    33    (iii)  include a list of all drawings, specifications and other infor-
    34  mation on which the guaranteed maximum price is based;
    35    (iv) include the dates of substantial and final  completion  on  which
    36  the guaranteed maximum price is based; and
    37    (v) include a schedule of unit prices; or
    38    (b) a lump sum contract in which the contractor agrees to accept a set
    39  dollar  amount  for  a  contract  which  comprises  a single bid without
    40  providing a cost breakdown for all costs such as for  equipment,  labor,
    41  materials,  as well as such contractor's profit for completing all items
    42  of work comprising the public work.
    43    § 5. Any contract entered into pursuant to this act  shall  include  a
    44  clause  requiring  that  any professional services regulated by articles
    45  145, 147 and 148 of the education law shall be performed and stamped and
    46  sealed, where appropriate, by a professional licensed in accordance with
    47  the appropriate articles of the education law.
    48    § 6. Construction with respect to any  contract  entered  into  by  an
    49  authorized  entity  pursuant to this act shall be deemed a "public work"
    50  to be performed in accordance with the provisions of article  8  of  the
    51  labor  law, as well as subject to sections 200, 240, 241 and 242 of such
    52  law and enforcement of prevailing wage requirements pursuant to applica-
    53  ble law or, for projects or public works receiving federal aid, applica-
    54  ble federal requirements for prevailing wage. Any contract entered  into
    55  pursuant  to  this  act  shall  include  a clause requiring the selected
    56  contractor to obligate every tier of contractor working  on  the  public

        A. 7368--A                          5

     1  work  to  comply  with the project labor agreement referenced in section
     2  four of this act, and shall include project labor  agreement  compliance
     3  monitoring  and  enforcement  provisions  consistent with the applicable
     4  project labor agreement.
     5    §  7.  Any  contract  entered into by an authorized entity pursuant to
     6  this act shall comply with the  objectives  and  goals  with  regard  to
     7  minority-  and  women-owned  business  enterprises  and, for projects or
     8  public works receiving federal aid, applicable federal requirements  for
     9  disadvantaged business enterprises or minority- and women-owned business
    10  enterprises.
    11    §  8. Any authorized project undertaken by an authorized entity pursu-
    12  ant to this act shall be subject to the requirements of article 8 of the
    13  environmental conservation law, and, where applicable, the  requirements
    14  of the national environmental policy act.
    15    §  9.  1.  Notwithstanding  any  provision of law to the contrary, all
    16  rights or benefits, including terms and conditions  of  employment,  and
    17  protection  of  civil  service  and  collective bargaining status of all
    18  employees of authorized entities solely in connection  with  the  public
    19  works identified in subdivision six of section two of this act, shall be
    20  preserved and protected.
    21    2.  Nothing  in  this act shall result in the: (a) displacement of any
    22  currently  employed  worker  or  loss  of  position,  including  partial
    23  displacement  such  as  a  reduction  in the hours of non-overtime work,
    24  wages or employment benefits, or result in the  impairment  of  existing
    25  collective  bargaining  agreements,  (b) transfer of existing duties and
    26  functions related to maintenance and operations currently  performed  by
    27  existing employees of authorized entities to a contractor, or (c) trans-
    28  fer  of future duties and functions ordinarily performed by employees of
    29  the authorized entities to the contracting entity.
    30    3. Employees of authorized entities using design-build contracts serv-
    31  ing in positions in newly created titles shall be assigned to the appro-
    32  priate bargaining unit. Nothing contained in this act shall be construed
    33  to affect: (a) the existing rights of employees of such entities  pursu-
    34  ant  to  an  existing  collective bargaining agreement, (b) the existing
    35  representational relationships among employee organizations representing
    36  employees of such entities, or (c) the bargaining relationships  between
    37  such entities and such employee organizations.
    38    §  10. The submission of a proposal or responses or the execution of a
    39  design-build contract pursuant to this act shall not be construed to  be
    40  a violation of section 6512 of the education law.
    41    §  11.  Nothing  contained  in this act shall limit the right or obli-
    42  gation of any authorized entity to comply with  the  provisions  of  any
    43  existing contract or to award contracts as otherwise provided by law.
    44    §  12.  This act shall take effect immediately and shall expire and be
    45  deemed repealed two years  after  such  date;  provided,  however,  that
    46  public  works  with  requests  for  qualifications  issued prior to such
    47  repeal shall be permitted to continue  under  this  act  notwithstanding
    48  such repeal.
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