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. LBD11514-05-3A. 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 toA. 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 publicA. 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.