Bill Text: NY A09503 | 2023-2024 | General Assembly | Amended
Bill Title: Establishes the "county of Westchester public works investment act" which allows the county of Westchester, or any department, division, agency, office or subdivision thereof to utilize design-build project delivery.
Spectrum: Partisan Bill (Democrat 5-0)
Status: (Introduced) 2024-03-19 - print number 9503a [A09503 Detail]
Download: New_York-2023-A09503-Amended.html
STATE OF NEW YORK ________________________________________________________________________ 9503--A IN ASSEMBLY March 14, 2024 ___________ Introduced by M. of A. PRETLOW -- read once and referred to the Commit- tee on Local Governments -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said committee AN ACT in relation to enacting the "county of Westchester public works investment act"; and providing for the repeal of such provisions upon the 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 of Westchester public works investment act". 3 § 2. For the purposes of this act: 4 (a) "Authorized entity" shall mean the county of Westchester, or any 5 department, division, agency, office or subdivision thereof having 6 jurisdiction under the laws of Westchester county to undertake projects. 7 (b) "Best value" shall mean the basis for awarding contracts for 8 services to a proposer that optimizes quality, cost and efficiency, 9 price and performance criteria, which may include, but is not limited 10 to: 11 (1) The quality of the proposer's performance on previous projects; 12 (2) The timeliness of the proposer's performance on previous projects; 13 (3) The level of customer satisfaction with the proposer's performance 14 on previous projects; 15 (4) The proposer's record of performing previous projects on budget 16 and ability to minimize cost overruns; 17 (5) The proposer's ability to limit change orders; 18 (6) The proposer's ability to prepare appropriate project plans; 19 (7) The proposer's technical capacities; 20 (8) The individual qualifications of the proposer's key personnel; 21 (9) The proposer's ability to assess and manage risk and minimize risk 22 impact; 23 (10) The proposer's financial capability; 24 (11) The proposer's ability to comply with applicable requirements, 25 including the provisions of articles 145, 147 and 148 of the education 26 law; EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD14257-03-4A. 9503--A 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. Where the authorized entity identifies a quantita- 15 tive factor pursuant to this paragraph, the authorized entity must spec- 16 ify that businesses certified as minority- or women-owned business 17 enterprises pursuant to article 15-A of the executive law are eligible 18 to qualify for such factor. 19 Each basis under this subdivision shall reflect, wherever possible, 20 objective and quantifiable analysis. 21 (c) "Cost plus" shall mean compensating a contractor for the cost to 22 complete a contract by reimbursing actual costs for labor, equipment and 23 materials plus an additional amount for overhead and profit. 24 (d) "Design-build contract" shall mean a contract for the design and 25 construction of a public work with a single entity, which may be a team 26 comprised of separate entities. 27 (e) "Project labor agreement" shall have the meaning set forth in 28 subdivision 1 of section 222 of the labor law. A project labor agreement 29 shall require participation in apprentice training programs in accord- 30 ance with paragraph (e) of subdivision 2 of such section. 31 § 3. Any contract for a public work undertaken pursuant to a project 32 labor agreement in accordance with section 222 of the labor law may be a 33 design-build contract in accordance with this act. 34 § 4. Notwithstanding any general, special or local law, rule or regu- 35 lation to the contrary, including but not limited to section 7210 of the 36 education law, article 5-A of the general municipal law and article 8 of 37 the public housing law, and in conformity with the requirements of this 38 act, for any public work that has an estimated cost of not less than 39 $10,000,000 and is undertaken pursuant to a project labor agreement in 40 accordance with section 222 of the labor law, an authorized entity 41 charged with awarding a contract for public work may use the alternative 42 delivery method referred to as design-build contracts; provided that any 43 authorized entity may use the alternative delivery method referred to as 44 design-build contracts for any public work that has an estimated cost of 45 not less than $1,200,000 if such public work is otherwise in conformity 46 with the requirements of this act and primarily consists of: pedestrian 47 ramps and similar infrastructure to improve access to sidewalks for 48 people with disabilities; renovation and construction of cultural insti- 49 tutions located on publicly owned real property and of public libraries; 50 or security infrastructure, including bollards, planters and other phys- 51 ical structures, designed to protect life and property from acts of 52 terror or mass violence. 53 (a) A contractor selected by such an authorized entity to enter into a 54 design-build contract shall be selected through a two-step method, as 55 follows:A. 9503--A 3 1 (1) Step one. Generation of a list of responding entities that have 2 demonstrated the general capability to perform the design-build 3 contract. Such list shall consist of a specified number of responding 4 entities, as determined by an authorized entity, and shall be generated 5 based upon the authorized entity's review of responses to a publicly 6 advertised request for qualifications. The authorized entity's request 7 for qualifications shall include a general description of the public 8 work, the maximum number of responding entities to be included on the 9 list, the selection criteria to be used and the relative weight of each 10 criteria in generating the list. Such selection criteria shall include 11 the qualifications and experience of the design and construction team, 12 organization, demonstrated responsibility, ability of the team or of a 13 member or members of the team to comply with applicable requirements, 14 including the provisions of articles 145, 147 and 148 of the education 15 law, past record of compliance with the labor law, and such other quali- 16 fications the authorized entity deems appropriate, which may include but 17 are not limited to project understanding, financial capability and 18 record of past performance. The authorized entity shall evaluate and 19 rate all responding entities to the request for qualifications. Based 20 upon such ratings, the authorized entity shall list the responding enti- 21 ties that shall receive a request for proposals in accordance with para- 22 graph 2 of this subdivision. To the extent consistent with applicable 23 federal law, the authorized entity shall consider, when awarding any 24 contract pursuant to this section, the participation of responding enti- 25 ties that are certified as minority- or women-owned business enterprises 26 pursuant to article 15-A of the executive law. 27 (2) Step two. Selection of the proposal which is the best value to the 28 authorized entity. The authorized entity shall issue a request for 29 proposals to the responding entities listed pursuant to paragraph 1 of 30 this subdivision. If such a responding entity consists of a team of 31 separate entities, the entities that comprise such a team must remain 32 unchanged from the responding entity as listed pursuant to paragraph 1 33 of this subdivision unless otherwise approved by the authorized entity. 34 The request for proposals shall set forth the public work's scope of 35 work, and other requirements, as determined by the authorized entity, 36 which may include separate goals for work under the contract to be 37 performed by businesses certified as minority- or women-owned business 38 enterprises pursuant to article 15-A of the executive law. The request 39 for proposals shall also specify the criteria to be used to evaluate the 40 responses and the relative weight of each of such criteria. Such crite- 41 ria shall include the proposal's cost, the quality of the proposal's 42 solution, the qualifications and experience of the proposer, and other 43 factors deemed pertinent by the authorized entity, which may include, 44 but shall not be limited to, the proposal's manner and schedule of 45 project implementation, the proposer's ability to complete the work in a 46 timely and satisfactory manner, maintenance costs of the completed 47 public work, maintenance of traffic approach, and community impact. Any 48 contract awarded pursuant to this act shall be awarded to a responsive 49 and responsible proposer, which, in consideration of these and other 50 specified criteria deemed pertinent, offers the best value, as deter- 51 mined by the authorized entity. The request for proposals shall include 52 a statement that proposers shall designate in writing those portions of 53 the proposal that contain trade secrets or other proprietary information 54 that are to remain confidential; that the material designated as confi- 55 dential shall be readily separable from the proposal. Nothing in this 56 subdivision shall be construed to prohibit the authorized entity fromA. 9503--A 4 1 negotiating final contract terms and conditions including cost. All 2 proposals submitted shall be scored according to the criteria listed in 3 the request for proposals. 4 (b) An authorized entity awarding a design-build contract to a 5 contractor offering the best value may but shall not be required to use 6 the following types of contracts: 7 (1) A cost-plus not to exceed guaranteed maximum price form of 8 contract in which the authorized entity shall be entitled to monitor and 9 audit all costs. In establishing the schedule and process for determin- 10 ing a guaranteed maximum price, the contract between the authorized 11 entity and the contractor shall: 12 (i) Describe the scope of the work and the cost of performing such 13 work, 14 (ii) Include a detailed line item cost breakdown, 15 (iii) Include a list of all drawings, specifications and other infor- 16 mation on which the guaranteed maximum price is based, 17 (iv) Include the dates of substantial and final completion on which 18 the guaranteed maximum price is based, and 19 (v) Include a schedule of unit prices; or 20 (2) A lump sum contract in which the contractor agrees to accept a set 21 dollar amount for a contract which comprises a single bid without 22 providing a cost breakdown for all costs such as for equipment, labor, 23 materials, as well as such contractor's profit for completing all items 24 of work comprising the public work. 25 § 5. Any contract entered into pursuant to this act shall include a 26 clause requiring that any professional services regulated by articles 27 145, 147 and 148 of the education law shall be performed and stamped and 28 sealed, where appropriate, by a professional licensed in accordance with 29 the appropriate article. 30 § 6. Construction with respect to each contract entered into by an 31 authorized entity pursuant to this act shall be deemed a "public work" 32 to be performed in accordance with the provisions of article 8 of the 33 labor law, as well as subject to sections 200, 240, 241 and 242 of such 34 law and enforcement of prevailing wage requirements pursuant to applica- 35 ble law or, for projects or public works receiving federal aid, applica- 36 ble federal requirements for prevailing wage. Any contract entered into 37 pursuant to this act shall include a clause requiring the selected 38 design builder to obligate every tier of contractor working on the 39 public work to comply with the project labor agreement referenced in 40 section three of this act, and shall include project labor agreement 41 compliance monitoring and enforcement provisions consistent with the 42 applicable project labor agreement. 43 § 7. Each contract entered into by an authorized entity pursuant to 44 this act shall comply with the objectives and goals relating to the 45 performance of design and construction services by minority- and women- 46 owned business enterprises, or, for projects or public works receiving 47 federal aid, applicable federal requirements for disadvantaged business 48 enterprises or minority- and women-owned business enterprises. 49 § 8. Public works undertaken by an authorized entity pursuant to this 50 act shall be subject to the requirements of article 8 of the environ- 51 mental conservation law, and, where applicable, the requirements of the 52 National Environmental Policy Act. 53 § 9. (a) Notwithstanding any provision of law to the contrary, all 54 rights or benefits, including terms and conditions of employment, and 55 protection of civil service and collective bargaining status of all 56 employees of authorized entities solely in connection with public workA. 9503--A 5 1 undertaken by an authorized entity pursuant to this act, shall be 2 preserved and protected. 3 (b) Nothing in this act shall result in the: (1) displacement of any 4 currently employed worker or loss of position, including partial 5 displacement such as a reduction in the hours of non-overtime work, 6 wages or employment benefits, or result in the impairment of existing 7 collective bargaining agreements; and (2) transfer of existing duties 8 and functions related to maintenance and operations currently performed 9 by existing employees of authorized entities to a contractor. 10 (c) Employees of authorized entities using design-build contracts 11 serving in positions in newly created titles shall be assigned to the 12 appropriate bargaining unit. Nothing contained in this act shall be 13 construed to affect (1) the existing rights of employees of such enti- 14 ties pursuant to an existing collective bargaining agreement, (2) the 15 existing representational relationships among employee organizations 16 representing employees of such entities, or (3) the bargaining relation- 17 ships between such entities and such employee organizations. 18 (d) Without limiting contractors' obligations under design-build 19 contracts to issue their own initial certifications of substantial 20 completion and final completion, public employees of authorized entities 21 shall review and determine whether the work performed by contractors is 22 acceptable and has been performed in accordance with the applicable 23 design-build contracts, and if such public employees so determine, such 24 public employees shall accept contractors' substantial or final 25 completion of the public works as applicable. Performance by authorized 26 entities of any review described in this subdivision shall not be 27 construed to modify or limit contractors' obligations to perform the 28 work in strict accordance with the applicable design-build contracts or 29 the contractors' or any subcontractors' obligations or liabilities under 30 any law. 31 § 10. The submission of a proposal or responses or the execution of a 32 design-build contract pursuant to this act shall not be construed to be 33 a violation of section 6512 of the education law. 34 § 11. Nothing contained in this act shall limit the right or obli- 35 gation of any authorized entity to comply with the provisions of any 36 existing contract or to award contracts as otherwise provided by law. 37 § 12. A report shall be submitted no later than June 30, 2025 and 38 annually thereafter, to the county executive and the chair of the board 39 of legislators for an authorized entity containing information regarding 40 each design-build contract procured by such authorized entity pursuant 41 to this act. Such report shall include a description of each such 42 design-build contract, information regarding the procurement process for 43 each such design-build contract including the list of responding enti- 44 ties that demonstrated the general capability to perform the design- 45 build contract pursuant to paragraph 1 of subdivision (a) of section 46 four of this act, the total cost of each design-build contract, an 47 explanation of the estimated savings resulting from the design-build 48 method, and the participation rate of and total dollar value of monies 49 paid to minority- and women-owned business enterprises under such 50 design-build contract. 51 § 13. This act shall take effect immediately and shall expire and be 52 deemed repealed 3 years after such date, provided that, public works 53 with requests for qualifications issued prior to such repeal shall be 54 permitted to continue under this act notwithstanding such repeal.