S T A T E O F N E W Y O R K
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7494
I N S E N A T E
April 15, 2010
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Introduced by Sen. PERKINS -- (at request of the Dormitory Authority of
the State of New York) -- read twice and ordered printed, and when
printed to be committed to the Committee on Corporations, Authorities
and Commissions
AN ACT to amend the public authorities law, in relation to the require-
ments for soliciting and awarding alternate delivery contracts and
providing for the repeal of certain provisions upon expiration thereof
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Section 1676 of the public authorities law is amended by
adding a new subdivision 46 to read as follows:
46. "ALTERNATIVE DELIVERY SYSTEM CONTRACT" SHALL MEAN A CONTRACT
AWARDED PURSUANT TO AN OPEN, OBJECTIVE AND COMPETITIVE METHOD OF
PROCUREMENT IN WHICH AN ENTITY OR COMBINATION OF ENTITIES IS SELECTED TO
PROVIDE CONSTRUCTION SERVICES TO THE AUTHORITY IN ACCORDANCE WITH THE
PROVISIONS OF SUBDIVISION TWENTY-FIVE OF SECTION SIXTEEN HUNDRED SEVEN-
TY-EIGHT OF THIS TITLE.
S 2. Section 1678 of the public authorities law is amended by adding a
new subdivision 25 to read as follows:
25. (A) TO SOLICIT AND AWARD AN ALTERNATIVE DELIVERY SYSTEM CONTRACT,
NOTWITHSTANDING ANY OTHER PROVISION OF LAW THAT REQUIRES THE AUTHORITY
TO AWARD CONTRACTS TO THE LOWEST RESPONSIBLE BIDDER AFTER ADVERTISING
FOR SEALED BIDS OR THAT REQUIRES THE PREPARATION OF SEPARATE SPECIFICA-
TIONS, FOR ANY PROJECT HAVING A COST IN EXCESS OF TEN MILLION DOLLARS.
PRIOR TO USING THE ALTERNATIVE DELIVERY SYSTEM METHOD OF PROCUREMENT,
THE AUTHORITY SHALL MAKE A WRITTEN DETERMINATION IDENTIFYING THE SPECIF-
IC BENEFITS, SUCH AS SCHEDULE, FINANCIAL, PROJECT FEASIBILITY OR THE
FACILITATION OF COMBINED USE FACILITIES INTENDED FOR PUBLIC AND PRIVATE
PURPOSES, EXPECTED TO BE GAINED FROM AN ALTERNATIVE DELIVERY SYSTEM
METHOD OF PROCUREMENT.
(B) AN ALTERNATE DELIVERY SYSTEM CONTRACT SHALL BE AWARDED ONLY IN
ACCORDANCE WITH GUIDELINES ADOPTED BY THE AUTHORITY. SUCH GUIDELINES
SHALL AT A MINIMUM REQUIRE THE AUTHORITY TO:
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD15704-07-0
S. 7494 2
(1) GENERATE A LIST OF QUALIFIED ENTITIES BASED UPON THE AUTHORITY'S
REVIEW OF RESPONSES TO A PUBLICLY ADVERTISED REQUEST FOR QUALIFICATIONS.
ANY REQUEST FOR QUALIFICATIONS SHALL INCLUDE A GENERAL DESCRIPTION OF
THE PROJECT AND THE SELECTION CRITERIA TO BE USED IN GENERATING THE
LIST. THE SELECTION CRITERIA SHALL INCLUDE, BUT NOT BE LIMITED TO:
QUALIFICATIONS AND EXPERIENCE; PROJECT APPROACH; ORGANIZATION; RECORD OF
PERFORMANCE; FINANCIAL CAPACITY; DEMONSTRATED ABILITY TO COMPLY WITH
APPLICABLE REQUIREMENTS; STATUS AS A MINORITY AND WOMEN-OWNED BUSINESS
ENTERPRISE CERTIFIED UNDER ARTICLE FIFTEEN-A OF THE EXECUTIVE LAW OR ITS
RECORD OF UTILIZATION OF SUCH CERTIFIED ENTERPRISES IN OTHER PROJECTS
COMPLETED BY THE ENTITY; RECORD OF UTILIZATION OF SMALL AND OTHER NEW
YORK STATE BUSINESS ENTERPRISES IN OTHER PROJECTS COMPLETED BY THE ENTI-
TY; AND SUCH OTHER CRITERIA AS THE AUTHORITY DEEMS APPROPRIATE.
(2) EVALUATE AND RATE, IN WRITING, ALL ENTITIES RESPONDING TO THE
REQUEST FOR QUALIFICATIONS AND DOCUMENT THE EVALUATION PROCESS AND BASED
UPON SUCH RATINGS, PREPARE A LIST OF AT LEAST THREE ENTITIES THAT SHALL
RECEIVE A REQUEST FOR PROPOSALS. IF ANY SUCH ENTITY ON THE LIST CONSISTS
OF A TEAM OF SEPARATE ENTITIES, THE TEAM RESPONDING TO THE REQUEST FOR
PROPOSALS MUST REMAIN UNCHANGED FROM THE TEAM ON THE LIST UNLESS OTHER-
WISE APPROVED BY THE AUTHORITY.
(3) ISSUE A REQUEST FOR PROPOSALS TO THE LIST OF ENTITIES ESTABLISHED
PURSUANT TO SUBPARAGRAPH TWO OF THIS PARAGRAPH. THE REQUEST FOR
PROPOSALS SHALL SET FORTH THE PROJECT'S SCOPE OF WORK AND OTHER REQUIRE-
MENTS AS DETERMINED BY THE AUTHORITY AND SHALL SPECIFY THE CRITERIA THE
CORPORATION WILL USE TO EVALUATE THE PROPOSALS. THE CRITERIA SHALL
INCLUDE: (I) THE COST, UNLESS THE REQUEST FOR PROPOSALS SPECIFIES THE
PROJECT COST; (II) THE QUALITY OF THE PROPOSAL'S SOLUTION; (III) THE
QUALIFICATIONS AND EXPERIENCE OF THE ENTITY OR ENTITIES; (IV) THE EXTENT
TO WHICH THE PROPOSAL COMMITS TO ACHIEVE ACTIVE PARTICIPATION BY SMALL
AND OTHER NEW YORK STATE BUSINESS ENTERPRISES AND BY MINORITY AND
WOMEN-OWNED BUSINESS ENTERPRISES CERTIFIED UNDER ARTICLE FIFTEEN-A OF
THE EXECUTIVE LAW (WHICH COMMITMENT MAY INCLUDE JOINT VENTURES, PARTNER-
ING, MENTORING OR OTHER SIMILAR TYPES OF ARRANGEMENTS); (V) THE EXPERI-
ENCE AND PAST PERFORMANCE OF THE ENTITY OR ENTITIES SUBMITTING THE
PROPOSALS; AND (VI) OTHER FACTORS DEEMED PERTINENT BY THE AUTHORITY,
SUCH AS THE PROPOSAL FOR PROJECT IMPLEMENTATION, THE ENTITY'S ABILITY TO
COMPLETE THE WORK IN A TIMELY AND SATISFACTORY MANNER AND THE LIFE-CYCLE
COSTING OF THE COMPLETED PROJECT. FOR ANY DESIGN BUILD CONTRACT, THE
RESPONSE TO THE REQUEST FOR QUALIFICATIONS SHALL ALSO SET FORTH THE
LEGAL RELATIONSHIP BETWEEN THE PROVIDER OF CONSTRUCTION SERVICES AND THE
PROVIDER OF DESIGN SERVICES AND DEMONSTRATE HOW THE PROPOSAL COMPLIES
WITH THE REQUIREMENTS OF PARAGRAPH (E) OF THIS SUBDIVISION.
(4) SELECT AND ADEQUATELY DOCUMENT ITS RATIONALE FOR SELECTION OF THE
SUCCESSFUL ALTERNATIVE DELIVERY SYSTEM CONTRACTOR THAT SUBMITS THE
PROPOSAL WHICH, IN CONSIDERATION OF THE CRITERIA DEEMED PERTINENT TO THE
PROJECT AS SET FORTH IN THE REQUEST FOR PROPOSALS (TAKING INTO ACCOUNT
THE WEIGHTING FACTORS ESTABLISHED BY THE AUTHORITY FOR EACH CRITERIA),
IS THE BEST VALUE TO THE AUTHORITY. THE WEIGHTING FACTOR ASSIGNED TO
EACH CRITERION SHALL BE ESTABLISHED BY THE AUTHORITY PRIOR TO THE ISSU-
ANCE OF THE REQUEST FOR PROPOSALS BY THE AUTHORITY. THE AUTHORITY SHALL
RESERVE THE RIGHT TO NEGOTIATE WITH THE SELECTED ENTITY ANY TERMS OF THE
CONTRACT PRIOR TO CONTRACT EXECUTION.
(C) THE AUTHORITY SHALL, IN THE ANNUAL REPORT ON PROCUREMENT CONTRACTS
REQUIRED BY SECTION TWENTY-EIGHT HUNDRED SEVENTY-NINE OF THIS CHAPTER,
INCLUDE A SEPARATE DESCRIPTION OF EACH ALTERNATIVE DELIVERY SYSTEM
CONTRACT THAT WAS AWARDED PURSUANT TO THIS SUBDIVISION DURING THE
S. 7494 3
PRECEDING FISCAL YEAR, TOGETHER WITH A SUMMARY OF THE SPECIFIC BENEFITS
THAT THE AUTHORITY EXPECTED TO BE ACHIEVED THROUGH THE USE OF THE ALTER-
NATIVE DELIVERY SYSTEM METHOD OF PROCUREMENT AND FOR PROJECTS THAT HAVE
BEEN COMPLETED, A SUMMARY INDICATING THE EXTENT TO WHICH THE ANTICIPATED
BENEFITS WERE ACHIEVED.
(D) THE AUTHORITY SHALL NOT ENTER INTO AN ALTERNATIVE DELIVERY SYSTEM
CONTRACT PURSUANT TO THIS SUBDIVISION UNLESS THE AUTHORITY, CONSISTENT
WITH THE AUTHORITY'S POLICY GOVERNING THE USE OF PROJECT LABOR AGREE-
MENTS, DETERMINES TO REQUIRE THE SELECTED ENTITY TO ENTER INTO A PROJECT
LABOR AGREEMENT THAT COMPLIES WITH THE REQUIREMENTS OF SECTION TWO
HUNDRED TWENTY-TWO OF THE LABOR LAW. THE PROVISIONS OF THIS SUBDIVISION
SHALL NOT BE CONSTRUED TO SUPERSEDE SECTION TWO HUNDRED TWENTY OF THE
LABOR LAW REQUIRING THE PAYMENT OF PREVAILING WAGES FOR PUBLIC WORKS.
(E) ANY ALTERNATIVE DELIVERY SYSTEM CONTRACT ENTERED INTO PURSUANT TO
THIS SUBDIVISION SHALL INCLUDE A CLAUSE REQUIRING THAT ANY PROFESSIONAL
SERVICES REGULATED BY ARTICLES ONE HUNDRED FORTY-FIVE, ONE HUNDRED
FORTY-SEVEN AND ONE HUNDRED FORTY-EIGHT OF THE EDUCATION LAW BE
PERFORMED BY A PROFESSIONAL LICENSED IN ACCORDANCE WITH SUCH ARTICLES.
S 3. Section 1678 of the public authorities law is amended by adding a
new subdivision 26 to read as follows:
26. (A) TO ESTABLISH GUIDELINES GOVERNING THE QUALIFICATIONS OF
BIDDERS FOR THOSE CONTRACTS FOR THE CONSTRUCTION, RECONSTRUCTION,
IMPROVEMENT, REHABILITATION, MAINTENANCE, REPAIR, FURNISHING, EQUIPPING
OF OR OTHERWISE PROVIDING FOR FACILITIES REQUIRED BY LAW TO BE AWARDED
BY THE AUTHORITY TO THE LOWEST RESPONSIBLE BIDDER AFTER ADVERTISING FOR
SEALED BIDS. PURSUANT TO SUCH GUIDELINES, THE BIDDING MAY BE RESTRICTED
TO THOSE WHO HAVE QUALIFIED PRIOR TO THE RECEIPT OF BIDS ACCORDING TO
STANDARDS FIXED BY THE AUTHORITY IN ACCORDANCE WITH PARAGRAPH (B) OF
THIS SUBDIVISION.
(B) IN DETERMINING WHETHER A PROSPECTIVE BIDDER QUALIFIES FOR INCLU-
SION ON A LIST OF PRE-QUALIFIED BIDDERS, THE AUTHORITY SHALL CONSIDER
(I) THE EXPERIENCE AND PAST PERFORMANCE OF THE PROSPECTIVE BIDDER; (II)
THE PROSPECTIVE BIDDER'S ABILITY TO UNDERTAKE THE WORK; (III) THE
PROSPECTIVE BIDDER'S FINANCIAL AND ORGANIZATIONAL CAPACITY, LEGAL
AUTHORITY TO DO BUSINESS IN NEW YORK STATE, INTEGRITY AND PREVIOUS
PERFORMANCE; AND (IV) THE PROSPECTIVE BIDDER'S RECORD OF COMPLIANCE WITH
ARTICLE FIFTEEN-A OF THE EXECUTIVE LAW. THE AUTHORITY MAY ALSO CONSIDER
SUCH OTHER FACTORS AS IT DEEMS APPROPRIATE.
(C) THE AUTHORITY SHALL PUBLISH QUARTERLY IN THE NEW YORK STATE
PROCUREMENT OPPORTUNITIES NEWSLETTER, AN ADVERTISEMENT REQUESTING
PROSPECTIVE BIDDERS TO SUBMIT QUALIFICATION STATEMENTS. THE AUTHORITY
SHALL REVIEW AND UPDATE, NOT LESS THAN ANNUALLY, LISTS OF PRE-QUALIFIED
BIDDERS. THE AUTHORITY MAY DELETE FROM THE LIST OF PRE-QUALIFIED BIDDERS
ANY BIDDER WHO HAS FAILED TO PERFORM ADEQUATELY OR SATISFACTORILY FOR
THE AUTHORITY OR ANY OTHER STATE AGENCY OR PUBLIC CORPORATION OR WHO
OTHERWISE FAILS TO MEET ANY OF THE CRITERIA ENUMERATED IN PARAGRAPH (B)
OF THIS SUBDIVISION. THE AUTHORITY SHALL PROVIDE WRITTEN NOTICE TO ANY
BIDDER PROPOSED TO BE DELETED FROM THE LIST OF PRE-QUALIFIED BIDDERS OF
THE REASONS FOR THE PROPOSED DELETION AND UPON THE WRITTEN REQUEST OF
ANY SUCH BIDDER, THE AUTHORITY SHALL PROVIDE SAID BIDDER WITH AN OPPOR-
TUNITY TO EXPLAIN WHY THE DELETION SHOULD NOT OCCUR.
(D) LISTS OF PRE-QUALIFIED BIDDERS MAY BE ESTABLISHED ON A
PROJECT-SPECIFIC BASIS; PROVIDED, HOWEVER, FOR PROJECTS IN EXCESS OF
FIVE MILLION DOLLARS, THE AUTHORITY SHALL FIRST PUBLISH IN THE NEW YORK
STATE PROCUREMENT OPPORTUNITIES NEWSLETTER AN ADVERTISEMENT REQUESTING
PROSPECTIVE BIDDERS TO SUBMIT QUALIFICATION STATEMENTS IF THEY HAVE NOT
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PREVIOUSLY SUBMITTED THEIR QUALIFICATIONS PURSUANT TO PARAGRAPH (C) OF
THIS SUBDIVISION AND PROVIDED FURTHER THAT ANY SUCH LIST SHALL HAVE NO
LESS THAN THREE BIDDERS.
S 4. This act shall take effect immediately; provided however, that
sections one and two of this act shall expire July 30, 2013 when upon
such date the provisions of such sections shall be deemed repealed;
provided further, that the expiration of such sections of this act shall
not impair or otherwise affect the validity of any alternative delivery
system contract executed by the dormitory authority and other parties
thereto prior to such expiration date.