S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                    926
 
                        2023-2024 Regular Sessions
 
                           I N  A S S E M B L Y
 
                             January 11, 2023
                                ___________
 
 Introduced  by  M. of A. GIBBS, SIMON, HYNDMAN -- read once and referred
   to the Committee on Ways and Means
 
 AN ACT permitting authorized state entities to utilize the  design-build
   method for infrastructure projects
 
   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:

   Section 1. This act shall be known and may be cited  as  the  "Infras-
 tructure investment act".
   § 2. The legislature hereby finds and declares as follows:
   (1) Our state's aging infrastructure, the on-going economic crisis and
 the resulting increase in unemployment in the state have all contributed
 to  a  decline  in  our  state's  competitiveness  and  in a significant
 decrease in New York state tax revenues.
   (2) Sufficient modern infrastructure is of  paramount  importance  not
 only  as  a  catalyst  for job creation but also as a key driver for the
 state's economic performance and competitiveness and the health, safety,
 education and quality of life of our citizens and as the means to ensure
 the efficient movement of people and goods.
   (3) Expediting the delivery of projects in New York state  would  lead
 directly to job creation and increases in the state's competitiveness.
   (4) Businesses in New York state have extensive and diverse experience
 in alternative project delivery methods for the study, planning, design,
 development,  financing, acquisition, installation, construction, recon-
 struction, improvement, maintenance and management of public infrastruc-
 ture facilities. These  alternative  project  delivery  methods  provide
 significant benefits to the public by:
   (a)  Reducing the public cost of delivering and obtaining services for
 infrastructure assets;
   (b) Expediting project delivery;
   (c) Encouraging life cycle efficiencies;
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD01907-01-3
 A. 926                              2
              

 
   (d) Providing better use and leverage  of  public  human  and  capital
 resources, and enhancing capital formation for large projects;
   (e) Creating jobs;
   (f) Promoting performance efficiencies; and
   (g)  Bringing  additional  innovative best practice contracting by the
 private sector to bear on public infrastructure needs within the state.
   (5) For certain projects, the design-build project delivery method has
 the potential to achieve projects delivered on guaranteed or accelerated
 schedules, lower costs and risk shifting to the private sector generally
 retained in conventional design-bid-build projects as well as to  accel-
 erate capital investments throughout the state.
   (6)  Recognizing  the  need to repair the state's aging infrastructure
 and maximize job creation in New York, the Governor and Legislature seek
 to:
   (a) accelerate capital investment in New York state's infrastructure;
   (b) coordinate among New York  state's  agencies  and  authorities  on
 capital investment;
   (c) encourage private sector capital investment in New York;
   (d) ensure that job creation benefits New York workers; and
   (e) assist the use of the most efficient and effective procurement and
 project  management  for  infrastructure projects in the transportation,
 energy,  environment,  public  facilities,  and   economic   development
 sectors.
   § 3. For the purposes of this act:
   (a)  "authorized  state  entity" shall mean the New York state thruway
 authority, the department of transportation, the office of parks, recre-
 ation and historic preservation, the department of environmental conser-
 vation and the New York state bridge authority.
   (b) "best value" shall mean  the  basis  for  awarding  contracts  for
 services  to  the  offerer  that  optimize quality, cost and efficiency,
 price and performance criteria, which may include, but  is  not  limited
 to:
   1. The quality of the contractor's performance on previous projects;
   2.   The  timeliness  of  the  contractor's  performance  on  previous
 projects;
   3. The level of customer satisfaction with the  contractor's  perform-
 ance on previous projects;
   4.  The  contractor's record of performing previous projects on budget
 and ability to minimize cost overruns;
   5. The contractor's ability to limit change orders;
   6. The contractor's ability to prepare appropriate project plans;
   7. The contractor's technical capacities;
   8. The individual qualifications of the contractor's key personnel;
   9. The contractor's ability to assess and  manage  risk  and  minimize
 risk impact; and
   10.  The  contractor's  past record of compliance with article 15-A of
 the executive law.
   Such basis shall reflect, wherever possible, objective  and  quantifi-
 able analysis.
   (c)  "capital  project"  shall  have  the same meaning as such term is
 defined by subdivision 2-a of section 2 of the state finance law.
   (d) "cost plus" shall mean compensating a contractor for the  cost  to
 complete a contract by reimbursing actual costs for labor, equipment and
 materials plus an additional amount for overhead and profit.
 A. 926                              3
 
   (e)  "design-build  contract" shall mean a contract for the design and
 construction of a capital project with a single entity, which may  be  a
 team comprised of separate entities.
   (f) "procurement record" means documentation of the decisions made and
 the approach taken in the procurement process.
   §  4. Notwithstanding the provisions of section 38 of the highway law,
 section 136-a of the state  finance  law,  section  359  of  the  public
 authorities  law,  section 7210 of the education law, and the provisions
 of any other law to the contrary, and in conformity  with  the  require-
 ments  of  this act, an authorized state entity may utilize the alterna-
 tive delivery method referred to as design-build contracts  for  capital
 projects  related to the state's physical infrastructure, including, but
 not limited to, the  state's  highways,  bridges,  dams,  flood  control
 projects,  canals,  and  parks, including, but not limited to, to repair
 damage caused by natural disaster, to correct health and safety defects,
 to comply with federal and state laws, standards,  and  regulations,  to
 extend  the  useful  life  of  or replace the state's highways, bridges,
 dams, flood control projects, canals, and parks or to improve or add  to
 the state's highways, bridges, dams, flood control projects, canals, and
 parks;  provided  that  for  the contracts executed by the department of
 transportation, the office of parks, recreation and  historic  preserva-
 tion, or the department of environmental conservation, the total cost of
 each  such  project shall not be less than one million two hundred thou-
 sand dollars ($1,200,000).
   § 5. An entity selected by an authorized state entity to enter into  a
 design-build  contract  shall  be selected through a two-step method, as
 follows:
   (a) Step one. Generation of a list of entities that have  demonstrated
 the  general capability to perform the design-build contract.  Such list
 shall consist of a specified number of entities,  as  determined  by  an
 authorized  state  entity, and shall be generated based upon the author-
 ized state entity's review of responses to a publicly advertised request
 for qualifications. The authorized state entity's request for qualifica-
 tions shall include a general description of the  project,  the  maximum
 number  of entities to be included on the list, and the selection crite-
 ria to be used in generating the list.  Such  selection  criteria  shall
 include the qualifications and experience of the design and construction
 team,  organization, demonstrated responsibility, ability of the team or
 of a member or members of the team to comply  with  applicable  require-
 ments,  including  the  provisions  of  articles 145, 147 and 148 of the
 education law, past record of compliance with the labor  law,  and  such
 other qualifications the authorized state entity deems appropriate which
 may  include  but  are  not  limited to project understanding, financial
 capability and record of past performance. The authorized  state  entity
 shall evaluate and rate all entities responding to the request for qual-
 ifications.   Based upon such ratings, the authorized state entity shall
 list the entities that shall receive a request for proposals in  accord-
 ance  with  subdivision  (b) of this section.   To the extent consistent
 with applicable federal law, the authorized state entity shall consider,
 when awarding any contract pursuant to this section,  the  participation
 of: (i) firms certified pursuant to article 15-A of the executive law as
 minority  or  women-owned businesses and the ability of other businesses
 under consideration to work with minority and women-owned businesses  so
 as  to  promote  and  assist  participation by such businesses; and (ii)
 small business  concerns  identified  pursuant  to  subdivision  (b)  of
 section 139-g of the state finance law.
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   (b) Step two. Selection of the proposal which is the best value to the
 state.  The  authorized state entity shall issue a request for proposals
 to the entities listed pursuant to subdivision (a) of this section.   If
 such  an  entity  consists  of a team of separate entities, the entities
 that comprise such a team must remain unchanged from the entity as list-
 ed pursuant to subdivision (a) of this section unless otherwise approved
 by  the  authorized  state  entity.  The request for proposals shall set
 forth the project's scope of work, and other requirements, as determined
 by the authorized state entity.  The request for proposals shall specify
 the criteria to be used to  evaluate  the  responses  and  the  relative
 weight  of  each  such  criteria.    Such  criteria  shall  include  the
 proposal's cost, the quality of the proposal's solution, the  qualifica-
 tions  and  experience  of  the  design-build  entity, and other factors
 deemed pertinent by the authorized state entity, which may include,  but
 shall  not be limited to, the proposal's project implementation, ability
 to complete the work in a timely and  satisfactory  manner,  maintenance
 costs  of  the  completed  project, maintenance of traffic approach, and
 community impact. Any contract awarded pursuant to  this  act  shall  be
 awarded  to  a  responsive  and  responsible  entity  that  submits  the
 proposal, which, in consideration of these and other specified  criteria
 deemed  pertinent to the project, offers the best value to the state, as
 determined by the authorized  state  entity.  Nothing  herein  shall  be
 construed  to  prohibit  the  authorized  entity  from negotiating final
 contract terms and conditions including cost.
   § 6. Any contract entered into pursuant to this act  shall  include  a
 clause  requiring  that  any professional services regulated by articles
 145, 147 and 148 of the education law shall be performed and stamped and
 sealed, where appropriate, by a professional licensed in accordance with
 such articles.
   § 7. Construction for each capital project undertaken by  the  author-
 ized  state  entity pursuant to this act shall be deemed a "public work"
 to be performed in accordance with the provisions of article  8  of  the
 labor  law,  as well as subject to sections 200, 240, 241 and 242 of the
 labor law and enforcement of prevailing wage  requirements  by  the  New
 York state department of labor.
   §  8.  If  otherwise  applicable,  capital  projects undertaken by the
 authorized state entity pursuant to this act shall be subject to section
 135 of the state finance law and section 222 of the labor law.
   § 9. Each contract entered into by the authorized state entity  pursu-
 ant to this section shall comply with the objectives and goals of minor-
 ity and women-owned business enterprises pursuant to article 15-A of the
 executive  law or, for projects receiving federal aid, shall comply with
 applicable federal requirements for disadvantaged business enterprises.
   § 10. Capital projects  undertaken  by  the  authorized  state  entity
 pursuant  to  this act shall be subject to the requirements of article 8
 of the  environmental  conservation  law,  and,  where  applicable,  the
 requirements of the national environmental policy act.
   §  11.    If  otherwise applicable, capital projects undertaken by the
 authorized state entity pursuant  to  this  act  shall  be  governed  by
 sections 139-d, 139-j, 139-k, paragraph f of subdivision 1 and paragraph
 g of subdivision 9 of section 163 of the state finance law.
   § 12.  The submission of a proposal or responses or the execution of a
 design-build  contract pursuant to this act shall not be construed to be
 a violation of section 6512 of the education law.
   § 13. Nothing contained in this act shall limit  the  right  or  obli-
 gation  of  the authorized state entity to comply with the provisions of
 A. 926                              5
 
 any existing contract, including any existing contract with or  for  the
 benefit  of the holders of the obligations of the authorized state enti-
 ty, or to award contracts as otherwise provided by law.
   §  14. Alternative construction awarding processes.  (i) Notwithstand-
 ing the provisions of any other law  to  the  contrary,  the  authorized
 state entity may award a construction contract:
   1. To the contractor offering the best value; or
   2.  Utilizing  a cost-plus not to exceed guaranteed maximum price form
 of contract in which the authorized state entity shall  be  entitled  to
 monitor  and  audit  all project costs. In establishing the schedule and
 process for determining a guaranteed maximum price, the contract between
 the authorized state entity and the contractor shall:
   (a) describe the scope of the work and the  cost  of  performing  such
 work;
   (b) include a detailed line item cost breakdown;
   (c)  include a list of all drawings, specifications and other informa-
 tion on which the guaranteed maximum price is based;
   (d) include the dates for substantial and final  completion  on  which
 the guaranteed maximum price is based; and
   (e) include a schedule of unit prices; or
   3.  Utilizing  a  lump  sum contract in which the contractor agrees to
 accept a set dollar amount for a contract which comprises a  single  bid
 without  providing a cost breakdown for all costs such as for equipment,
 labor, materials, as well as such contractor's profit for completing all
 items of work comprising the project.
   (ii) Capital projects undertaken by an  authorized  state  entity  may
 include  an  incentive  clause  in  the contract for various performance
 objectives, but the incentive clause shall not include an incentive that
 exceeds the quantifiable value of the benefit received by the state. The
 authorized state entity shall establish  such  performance  and  payment
 bonds as it deems necessary.
   §   15.   Prequalified  contractors.  (a)  Notwithstanding  any  other
 provision of law, the authorized state entity may  maintain  a  list  of
 prequalified  contractors who are eligible to submit a proposal pursuant
 to this act and entry into such list shall  be  continuously  available.
 Prospective  contractors  may  be prequalified as contractors to provide
 particular types of construction, in accordance  with  general  criteria
 established  by the authorized state entity which may include, but shall
 not be limited to, the experience, past performance, ability  to  under-
 take the type and complexity of work, financial capability, responsibil-
 ity, compliance with equal employment opportunity requirements and anti-
 discrimination  laws,  and  reliability. Such prequalification may be by
 categories designed by size and other factors.
   (b) A contractor who is denied prequalification or whose prequalifica-
 tion is revoked or suspended by the authorized state entity  may  appeal
 such  decision  to  the  authorized  state  entity. If such a suspension
 extends for more than three months, it shall be deemed a  revocation  of
 the  prequalification.  The authorized state entity may proceed with the
 contract award during any appeal.
   § 16. Nothing in this act shall affect existing  powers  of  New  York
 state public entities to use alternative project delivery methods.
   § 17. This act shall take effect immediately.