Bill Text: NY S09088 | 2017-2018 | General Assembly | Introduced
Bill Title: Authorizes in the city of New York, for certain public work for the Elmhurst Hospital emergency room renovation in Queens undertaken pursuant to project labor agreements, use of the alternative delivery method known as design-build contracts.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced - Dead) 2018-06-15 - REFERRED TO RULES [S09088 Detail]
Download: New_York-2017-S09088-Introduced.html
STATE OF NEW YORK ________________________________________________________________________ 9088 IN SENATE June 15, 2018 ___________ Introduced by Sen. PERALTA -- read twice and ordered printed, and when printed to be committed to the Committee on Rules 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 "New York city public works investment act". 3 § 2. For the purposes of this act: 4 (a) "Authorized entity" shall mean the New York city department of 5 design and construction and the New York city health and hospitals 6 corporation. 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. LBD16243-01-8S. 9088 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 as defined in subdivisions 14 1, 7, 15 and 20 of section 310 of the executive law, or certified pursu- 15 ant to local law as minority- or women-owned business enterprises. 16 Such basis shall reflect, wherever possible, objective and quantifi- 17 able analysis. 18 (c) "Cost plus" shall mean compensating a contractor for the cost to 19 complete a contract by reimbursing actual costs for labor, equipment and 20 materials plus an additional amount for overhead and profit. 21 (d) "Design-build contract" shall mean a contract for the design and 22 construction of a public work with a single entity, which may be a team 23 comprised of separate entities. 24 (e) "Project labor agreement" shall have the meaning set forth in 25 subdivision 1 of section 222 of the labor law. A project labor agreement 26 shall require participation in apprentice training programs in accord- 27 ance with paragraph (e) of subdivision 2 of such section. 28 (f) "Public work" shall mean a public work in the city of New York 29 related to the following, and shall refer to the Elmhurst Hospital emer- 30 gency room renovation in Queens county. 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 article 5-A of the 36 general municipal law and section 8 of the New York city health and 37 hospitals corporation act, and in conformity with the requirements of 38 this act, for any public work that has an estimated total cost of not 39 less than ten million dollars and is undertaken pursuant to a project 40 labor agreement in accordance with section 222 of the labor law, an 41 authorized entity charged with awarding a contract for public work may 42 use the alternative delivery method referred to as design-build 43 contracts. 44 (a) A contractor selected by such authorized entity to enter into a 45 design-build contract shall be selected through a two-step method, as 46 follows: 47 (1) Step one. Generation of a list of responding entities that have 48 demonstrated the general capability to perform the design-build 49 contract. Such list shall consist of a specified number of responding 50 entities, as determined by an authorized entity, and shall be generated 51 based upon the authorized entity's review of responses to a publicly 52 advertised request for qualifications. The authorized entity's request 53 for qualifications shall include a general description of the public 54 work, the maximum number of responding entities to be included on the 55 list, the selection criteria to be used and the relative weight of each 56 criteria in generating the list. Such selection criteria shall includeS. 9088 3 1 the qualifications and experience of the design and construction team, 2 organization, demonstrated responsibility, ability of the team or of a 3 member or members of the team to comply with applicable requirements, 4 including the provisions of articles 145, 147 and 148 of the education 5 law, past record of compliance with the labor law, and such other quali- 6 fications the authorized entity deems appropriate, which may include but 7 are not limited to project understanding, financial capability and 8 record of past performance. The authorized entity shall evaluate and 9 rate all responding entities to the request for qualifications. Based 10 upon such ratings, the authorized entity shall list the responding enti- 11 ties that shall receive a request for proposals in accordance with para- 12 graph two of this subdivision. To the extent consistent with applicable 13 federal law, the authorized entity shall consider, when awarding any 14 contract pursuant to this section, the participation of (i) responding 15 entities that are certified as minority- or women-owned business enter- 16 prises as defined in subdivisions 1, 7, 15 and 20 of section 310 of the 17 executive law, or certified pursuant to local law as minority- or 18 women-owned business enterprises; and (ii) small business concerns iden- 19 tified pursuant to subdivision (b) of section 139-g of the state finance 20 law; and 21 (2) Step two. Selection of the proposal which is the best value to the 22 authorized entity. The authorized entity shall issue a request for 23 proposals to the responding entities listed pursuant to paragraph one of 24 this subdivision. If such a responding entity consists of a team of 25 separate entities, the entities that comprise such a team must remain 26 unchanged from the responding entity as listed pursuant to paragraph one 27 of this subdivision unless otherwise approved by the authorized entity. 28 The request for proposals shall set forth the public work's scope of 29 work, and other requirements, as determined by the authorized entity, 30 which may include separate goals for work under the contract to be 31 performed by businesses certified as minority- or women-owned business 32 enterprises as defined in subdivisions 1, 7, 15 and 20 of section 310 of 33 the executive law, or certified pursuant to local law as minority- or 34 women-owned business enterprises. The request for proposals shall also 35 specify the criteria to be used to evaluate the responses and the rela- 36 tive weight of each of such criteria. Such criteria shall include the 37 proposal's cost, the quality of the proposal's solution, the qualifica- 38 tions and experience of the proposer, and other factors deemed pertinent 39 by the authorized entity, which may include, but shall not be limited 40 to, the proposal's manner and schedule of project implementation, the 41 proposer's ability to complete the work in a timely and satisfactory 42 manner, maintenance costs of the completed public work, maintenance of 43 traffic approach, and community impact. Any contract awarded pursuant to 44 this act shall be awarded to a responsive and responsible proposer, 45 which, in consideration of these and other specified criteria deemed 46 pertinent, offers the best value, as determined by the authorized enti- 47 ty. The request for proposals shall include a statement that proposers 48 shall designate in writing those portions of the proposal that contain 49 trade secrets or other proprietary information that are to remain confi- 50 dential; that the material designated as confidential shall be readily 51 separable from the proposal. Nothing in this subdivision shall be 52 construed to prohibit the authorized entity from negotiating final 53 contract terms and conditions including cost. All proposals submitted 54 shall be scored according to the criteria listed in the request for 55 proposals and such final scores shall be published on the authorized 56 entity's website.S. 9088 4 1 (b) An authorized entity awarding a design-build contract to a 2 contractor offering the best value may but shall not be required to use 3 the following types of contracts: 4 (1) A cost-plus not to exceed guaranteed maximum price form of 5 contract in which the authorized entity shall be entitled to monitor and 6 audit all costs. In establishing the schedule and process for determin- 7 ing a guaranteed maximum price, the contract between the authorized 8 entity and the contractor shall: 9 (i) Describe the scope of the work and the cost of performing such 10 work, 11 (ii) Include a detailed line item cost breakdown, 12 (iii) Include a list of all drawings, specifications and other infor- 13 mation on which the guaranteed maximum price is based, 14 (iv) Include the dates of substantial and final completion on which 15 the guaranteed maximum price is based, and 16 (v) Include a schedule of unit prices; or 17 (2) A lump sum contract in which the contractor agrees to accept a set 18 dollar amount for a contract which comprises a single bid without 19 providing a cost breakdown for all costs such as for equipment, labor, 20 materials, as well as such contractor's profit for completing all items 21 of work comprising the public work. 22 § 5. Any contract entered into pursuant to this act shall include a 23 clause requiring that any professional services regulated by articles 24 145, 147 and 148 of the education law shall be performed and stamped and 25 sealed, where appropriate, by a professional licensed in accordance with 26 the appropriate article. 27 § 6. Construction with respect to each contract entered into by an 28 authorized entity pursuant to this act shall be deemed a "public work" 29 to be performed in accordance with the provisions of article 8 of the 30 labor law, as well as subject to sections 200, 240, 241 and 242 of such 31 law and enforcement of prevailing wage requirements pursuant to applica- 32 ble law or, for projects or public works receiving federal aid, applica- 33 ble federal requirements for prevailing wage. Any contract entered into 34 pursuant to this act shall include a clause requiring the selected 35 design builder to obligate every tier of contractor working on the 36 public work to comply with the project labor agreement referenced in 37 section three of this act, and shall include project labor agreement 38 compliance monitoring and enforcement provisions consistent with the 39 applicable project labor agreement. 40 § 7. Each contract entered into by an authorized entity pursuant to 41 this act shall comply with the objectives and goals with regard to 42 minority- and women-owned business enterprises pursuant to, as applica- 43 ble, section 6-129 of the administrative code of the city of New York 44 and subdivision 6 of section 8 of the New York city health and hospitals 45 corporation act, or, for projects or public works receiving federal aid, 46 applicable federal requirements for disadvantaged business enterprises 47 or minority- and women-owned business enterprises. 48 § 8. Public works undertaken by an authorized entity pursuant to this 49 act shall be subject to the requirements of article 8 of the environ- 50 mental conservation law, and, where applicable, the requirements of the 51 National Environmental Policy Act. 52 § 9. (a) Notwithstanding any provision of law to the contrary, all 53 rights or benefits, including terms and conditions of employment, and 54 protection of civil service and collective bargaining status of all 55 employees of authorized entities solely in connection with the publicS. 9088 5 1 work identified in subdivision (f) of section two of 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 § 10. The submission of a proposal or responses or the execution of a 19 design-build contract pursuant to this act shall not be construed to be 20 a violation of section 6512 of the education law. 21 § 11. Nothing contained in this act shall limit the right or obli- 22 gation of any authorized entity to comply with the provisions of any 23 existing contract or to award contracts as otherwise provided by law. 24 § 12. This act shall take effect immediately and shall expire and be 25 deemed repealed 4 years after such date; provided that, public works 26 with requests for qualifications issued prior to such repeal shall be 27 permitted to continue under this act notwithstanding such repeal.
