S. 3035--A 2 A. 4735--A
S 2. Subdivision 10 of section 2556 of the education law, as added by
chapter 861 of the laws of 1953, is amended to read as follows:
10. The board of education shall let all contracts for public work and
all purchase contracts to the lowest responsible bidder after advertise-
ment for bids where so required by section one hundred three of the
general municipal law, PROVIDED, HOWEVER THAT NOTWITHSTANDING ANY OTHER
PROVISION OF THE LAW THAT REQUIRES THE BOARD OF EDUCATION TO AWARD
PUBLIC WORK CONTRACTS TO THE LOWEST RESPONSIBLE BIDDER AFTER ADVERTISING
FOR SEALED BIDS, THE BOARD OF EDUCATION SHALL HAVE THE POWER TO AWARD A
CONTRACT USING AN ALTERNATIVE PROJECT DELIVERY METHOD, INCLUDING THE
POWER TO SOLICIT AND AWARD A CONSTRUCTION MANAGEMENT-AT-RISK CONTRACT OR
A DESIGN-BUILD CONTRACT AS SET FORTH IN SECTION ONE HUNDRED
THIRTY-FIVE-B OF THE STATE FINANCE LAW.
S 3. Subdivisions 8 and 12 of section 373 of the education law, as
added by chapter 251 of the laws of 1962, are amended to read as
follows:
8. To design, construct, acquire, reconstruct, rehabilitate and
improve academic buildings, dormitories and other facilities for the
state university [in accordance with sections three hundred seventy-five
and three hundred seventy-six of this chapter] USING AN ALTERNATIVE
PROJECT DELIVERY METHOD, INCLUDING BUT NOT LIMITED TO CONSTRUCTION
MANAGEMENT-AT-RISK OR DESIGN-BUILD THAT WILL ASSIST THE FUND IN FULFILL-
ING ITS PURPOSES UNDER SECTION THREE HUNDRED SEVENTY-TWO OF THIS
ARTICLE;
12. To [make] PROCURE and execute contracts, lease agreements, and all
other instruments necessary or convenient for the exercise of its corpo-
rate powers and the fulfillment of its corporate purposes under this
article;
S 4. Section 6275 of the education law is amended by adding a new
subdivision 16 to read as follows:
(16) NOTWITHSTANDING ANY OTHER PROVISION OF THE LAW THAT REQUIRES THE
FUND TO AWARD PUBLIC WORK CONTRACTS TO THE LOWEST RESPONSIBLE BIDDER
AFTER ADVERTISING FOR SEALED BIDS, THE FUND SHALL HAVE THE POWER TO
AWARD A CONTRACT USING AN ALTERNATIVE PROJECT DELIVERY METHOD, INCLUDING
THE POWER TO SOLICIT AND AWARD A CONSTRUCTION MANAGEMENT-AT-RISK
CONTRACT OR DESIGN-BUILD CONTRACT, AS SET FORTH IN SECTION ONE HUNDRED
THIRTY-FIVE-B OF THE STATE FINANCE LAW.
S 5. Section 454 of the education law is amended by adding a new
subdivision 24 to read as follows:
24. NOTWITHSTANDING ANY OTHER PROVISION OF THE LAW THAT REQUIRES THE
FUND TO AWARD PUBLIC WORK CONTRACTS TO THE LOWEST RESPONSIBLE BIDDER
AFTER ADVERTISING FOR SEALED BIDS, THE FUND SHALL HAVE THE POWER TO
AWARD A CONTRACT USING AN ALTERNATIVE PROJECT DELIVERY METHOD, INCLUDING
THE POWER TO SOLICIT AND AWARD A CONSTRUCTION MANAGEMENT-AT-RISK
CONTRACT OR DESIGN-BUILD CONTRACT, AS SET FORTH IN SECTION ONE HUNDRED
THIRTY-FIVE-B OF THE STATE FINANCE LAW.
S 6. Subdivision 1 of section 7306 of the education law is amended by
adding a new paragraph h to read as follows:
H. DESIGN-BUILD SERVICES PROVIDED BY A DESIGN-BUILD FIRM WHERE AN
ARCHITECT WHO MEETS THE REQUIREMENTS OF SECTION SEVENTY-THREE HUNDRED
FOUR OF THIS ARTICLE COMPLETES ALL DESIGN ELEMENTS.
S 7. Section 7208 of the education law is amended by adding a new
subdivision q to read as follows:
Q. DESIGN-BUILD SERVICES PROVIDED BY A DESIGN-BUILD FIRM WHERE AN
ENGINEER WHO MEETS THE REQUIREMENTS OF SECTION SEVENTY-TWO HUNDRED SIX
S. 3035--A 3 A. 4735--A
OF THIS ARTICLE IS RESPONSIBLE FOR COMPLIANCE WITH ALL ENGINEERING
DESIGN REQUIREMENTS.
S 8. The state finance law is amended by adding a new section 135-b to
read as follows:
S 135-B. ALTERNATIVE PROJECT DELIVERY. NOTWITHSTANDING ANY OTHER
PROVISION OF THE LAW THAT REQUIRES A STATE AGENCY TO AWARD CONTRACTS TO
THE LOWEST RESPONSIBLE BIDDER AFTER ADVERTISING FOR SEALED BIDS, ANY
STATE AGENCY SHALL HAVE THE POWER TO AWARD A CONTRACT USING AN ALTERNA-
TIVE PROJECT DELIVERY METHOD, INCLUDING THE POWER TO SOLICIT AND AWARD A
DESIGN-BUILD CONTRACT OR A CONSTRUCTION MANAGEMENT-AT-RISK CONTRACT.
1. (A) ANY STATE AGENCY MAY USE THE DESIGN-BUILD METHOD FOR THE
CONSTRUCTION, RECONSTRUCTION, ALTERATION, REPAIR OR IMPROVEMENT OF A
STATE BUILDING. IN USING THAT METHOD AND IN ENTERING INTO A CONTRACT FOR
THE SERVICES OF A DESIGN-BUILD FIRM, THE STATE AGENCY AND THE
DESIGN-BUILD FIRM SHALL FOLLOW THE PROCEDURES PROVIDED BY THIS SECTION.
(B) THE STATE AGENCY SHALL SELECT OR DESIGNATE AN ENGINEER OR ARCHI-
TECT INDEPENDENT OF THE DESIGN-BUILD FIRM TO ACT AS ITS REPRESENTATIVE
FOR THE DURATION OF THE WORK ON THE FACILITY. IF THE STATE AGENCY'S
ARCHITECT OR ENGINEER IS NOT A FULL-TIME EMPLOYEE OF THE STATE, THE
GOVERNMENTAL ENTITY SHALL SELECT THE ARCHITECT OR ENGINEER ON THE BASIS
OF DEMONSTRATED COMPETENCE AND QUALIFICATIONS AS PROVIDED BY SECTION ONE
HUNDRED THIRTY-SIX-A OF THIS ARTICLE.
(C) THE STATE AGENCY SHALL PREPARE A REQUEST FOR QUALIFICATIONS THAT
INCLUDES GENERAL INFORMATION ON THE PROJECT SITE, PROJECT SCOPE, BUDGET,
SPECIAL SYSTEMS, SELECTION CRITERIA, AND OTHER INFORMATION THAT MAY
ASSIST A POTENTIAL DESIGN-BUILD FIRM IN SUBMITTING PROPOSALS FOR THE
PROJECT. THE STATE AGENCY SHALL ALSO PREPARE A DESIGN CRITERIA PACKAGE
THAT INCLUDES MORE DETAILED INFORMATION ON THE PROJECT. IF THE PREPARA-
TION OF THE DESIGN CRITERIA PACKAGE REQUIRES ENGINEERING OR ARCHITEC-
TURAL SERVICES THAT CONSTITUTE THE PRACTICE OF ENGINEERING WITHIN THE
MEANING OF ARTICLE ONE HUNDRED FORTY-FIVE OF THE EDUCATION LAW, OR THE
PRACTICE OF ARCHITECTURE WITHIN THE MEANING OF ARTICLE ONE HUNDRED
FORTY-SEVEN OF THE EDUCATION LAW, THOSE SERVICES SHALL BE PROVIDED IN
ACCORDANCE WITH SECTION ONE HUNDRED THIRTY-SIX-A OF THIS ARTICLE.
(D) THE STATE AGENCY SHALL EVALUATE STATEMENTS OF QUALIFICATIONS AND
SELECT A DESIGN-BUILD FIRM IN TWO PHASES. (I) IN PHASE ONE, THE STATE
AGENCY SHALL PREPARE A REQUEST FOR QUALIFICATIONS AND EVALUATE EACH
OFFERER'S EXPERIENCE, QUALIFICATIONS, 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 ENTITY, AND SUCH OTHER CRITERIA AS THE AUTHORITY DEEMS
APPROPRIATE, EXCEPT THAT COST-RELATED OR PRICE-RELATED EVALUATION
FACTORS ARE NOT PERMITTED. EACH OFFEROR MUST CERTIFY TO THE STATE AGENCY
THAT EACH ENGINEER OR ARCHITECT THAT IS A MEMBER OF ITS TEAM WAS
SELECTED BASED ON DEMONSTRATED COMPETENCE AND QUALIFICATIONS. THE STATE
AGENCY SHALL QUALIFY A MAXIMUM OF FIVE OFFERORS TO SUBMIT ADDITIONAL
INFORMATION AND, IF THE STATE AGENCY CHOOSES, TO INTERVIEW FOR FINAL
SELECTION.
(II) IN PHASE TWO, THE STATE AGENCY SHALL EVALUATE THE INFORMATION
SUBMITTED BY THE OFFERORS ON THE BASIS OF THE SELECTION CRITERIA STATED
IN THE REQUEST FOR QUALIFICATIONS AND THE RESULTS OF AN INTERVIEW. THE
STATE AGENCY MAY REQUEST ADDITIONAL INFORMATION REGARDING DEMONSTRATED
S. 3035--A 4 A. 4735--A
COMPETENCE AND QUALIFICATIONS, CONSIDERATIONS OF THE SAFETY AND
LONG-TERM DURABILITY OF THE PROJECT, THE FEASIBILITY OF IMPLEMENTING THE
PROJECT AS PROPOSED, THE ABILITY OF THE OFFEROR TO MEET SCHEDULES, COST-
ING METHODOLOGY, OR OTHER FACTORS AS APPROPRIATE. THE STATE AGENCY MAY
NOT REQUIRE OFFERORS TO SUBMIT DETAILED ENGINEERING OR ARCHITECTURAL
DESIGNS AS PART OF THE PROPOSAL. THE STATE AGENCY SHALL RANK EACH
PROPOSAL SUBMITTED ON THE BASIS OF THE CRITERIA SET FORTH IN THE REQUEST
FOR QUALIFICATIONS. THE STATE AGENCY SHALL SELECT THE DESIGN-BUILD FIRM
THAT SUBMITS THE PROPOSAL OFFERING THE BEST VALUE FOR THE STATE AGENCY
ON THE BASIS OF THE PUBLISHED SELECTION CRITERIA AND ON ITS RANKING
EVALUATIONS. THE STATE AGENCY SHALL FIRST ATTEMPT TO NEGOTIATE A
CONTRACT WITH THE SELECTED OFFEROR. IF THE STATE AGENCY IS UNABLE TO
NEGOTIATE A SATISFACTORY CONTRACT WITH THE SELECTED OFFEROR, THE STATE
AGENCY SHALL, FORMALLY AND IN WRITING, END NEGOTIATIONS WITH THAT OFFE-
ROR AND PROCEED TO NEGOTIATE WITH THE NEXT OFFEROR IN THE ORDER OF THE
SELECTION RANKING UNTIL A CONTRACT IS REACHED OR NEGOTIATIONS WITH ALL
RANKED OFFERORS END.
(E) FOLLOWING SELECTION OF A DESIGN-BUILD FIRM UNDER PARAGRAPH (D) OF
THIS SUBDIVISION, THAT DESIGN-BUILD FIRM'S ARCHITECTS OR ENGINEERS SHALL
COMPLETE THE DESIGN, SUBMITTING ALL DESIGN ELEMENTS FOR REVIEW AND
DETERMINATION OF SCOPE COMPLIANCE TO THE STATE AGENCY OR THE STATE AGEN-
CY'S ARCHITECT OR ENGINEER BEFORE OR CONCURRENTLY WITH CONSTRUCTION.
(F) AN ENGINEER SHALL HAVE RESPONSIBILITY FOR COMPLIANCE WITH THE
ENGINEERING DESIGN REQUIREMENTS AND ALL OTHER APPLICABLE REQUIREMENTS OF
ARTICLE ONE HUNDRED FORTY-FIVE OF THE EDUCATION LAW. AN ARCHITECT SHALL
HAVE RESPONSIBILITY FOR COMPLIANCE WITH THE REQUIREMENTS OF ARTICLE ONE
HUNDRED FORTY-SEVEN OF THE EDUCATION LAW.
(G) THE STATE AGENCY SHALL PROVIDE OR CONTRACT FOR, INDEPENDENTLY OF
THE DESIGN-BUILD FIRM, THE INSPECTION SERVICES, THE TESTING OF
CONSTRUCTION MATERIALS ENGINEERING, AND THE VERIFICATION TESTING
SERVICES NECESSARY FOR ACCEPTANCE OF THE BUILDING BY THE STATE AGENCY.
THE STATE AGENCY SHALL SELECT THOSE SERVICES FOR WHICH IT CONTRACTS IN
ACCORDANCE WITH SECTION ONE HUNDRED THIRTY-SIX-A OF THIS ARTICLE.
(H) THE STATE AGENCY MAY DEVELOP WRITTEN PROCEDURES GOVERNING THE
SELECTION, EVALUATION, AND AWARD OF DESIGN-BUILD CONTRACTS. SUCH PROCE-
DURES SHALL BE CONSISTENT WITH THOSE DESCRIBED IN THIS SECTION AND MAY
BE REVISED FROM TIME TO TIME AS DEEMED NECESSARY.
(I) THIS SECTION SHALL NOT BE CONSTRUED TO SUPERSEDE SECTION TWO
HUNDRED TWENTY OF THE LABOR LAW REQUIRING THE PAYMENT OF PREVAILING
WAGES FOR PUBLIC WORKS.
2. (A) ANY STATE AGENCY MAY USE THE CONSTRUCTION MANAGEMENT-AT-RISK
METHOD FOR THE CONSTRUCTION, RECONSTRUCTION, ALTERATION, REPAIR OR
IMPROVEMENT OF A STATE BUILDING. IN USING THAT METHOD AND IN ENTERING
INTO A CONTRACT WITH A CONSTRUCTION MANAGER-AT-RISK, THE STATE AGENCY
AND THE CONSTRUCTION MANAGER-AT-RISK SHALL FOLLOW THE PROCEDURES
PROVIDED BY THIS SECTION.
(B) BEFORE OR CONCURRENTLY WITH SELECTING A CONSTRUCTION
MANAGER-AT-RISK, THE STATE AGENCY SHALL SELECT OR DESIGNATE AN ENGINEER
QUALIFIED UNDER ARTICLE ONE HUNDRED FORTY-FIVE OF THE EDUCATION LAW OR
ARCHITECT QUALIFIED UNDER ARTICLE ONE HUNDRED FORTY-SEVEN OF THE EDUCA-
TION LAW WHO SHALL PREPARE THE CONSTRUCTION DOCUMENTS FOR THE PROJECT.
IF THE ENGINEER OR ARCHITECT IS NOT A FULL-TIME EMPLOYEE OF THE STATE,
THE STATE AGENCY SHALL SELECT THE ENGINEER OR ARCHITECT ON THE BASIS OF
DEMONSTRATED COMPETENCE AND QUALIFICATIONS AS PROVIDED BY SECTION ONE
HUNDRED THIRTY-SIX-A OF THIS ARTICLE. THE AGENCY'S ENGINEER OR ARCHITECT
FOR A PROJECT MAY NOT SERVE, ALONE OR IN COMBINATION WITH ANOTHER, AS
S. 3035--A 5 A. 4735--A
THE CONSTRUCTION MANAGER-AT-RISK. THIS SUBDIVISION DOES NOT PROHIBIT A
STATE AGENCY ENGINEER OR ARCHITECT FROM PROVIDING CUSTOMARY CONSTRUCTION
PHASE SERVICES UNDER THE ENGINEER'S OR ARCHITECT'S ORIGINAL PROFESSIONAL
SERVICE AGREEMENT IN ACCORDANCE WITH APPLICABLE LICENSING LAWS.
(C) THE STATE AGENCY SHALL PROVIDE OR CONTRACT FOR, INDEPENDENTLY OF
THE CONSTRUCTION MANAGER-AT-RISK, THE INSPECTION SERVICES, THE TESTING
OF CONSTRUCTION MATERIALS ENGINEERING, AND THE VERIFICATION TESTING
SERVICES NECESSARY FOR ACCEPTANCE OF THE BUILDING BY THE STATE AGENCY.
THE STATE AGENCY SHALL SELECT THOSE SERVICES FOR WHICH IT CONTRACTS IN
ACCORDANCE WITH SECTION ONE HUNDRED THIRTY-SIX-A OF THIS ARTICLE.
(D) THE STATE AGENCY SHALL SELECT THE CONSTRUCTION MANAGER-AT-RISK IN
EITHER A ONE-STEP OR TWO-STEP PROCESS. THE STATE AGENCY SHALL PREPARE A
REQUEST FOR PROPOSALS, IN THE CASE OF A ONE-STEP PROCESS, OR A REQUEST
FOR QUALIFICATIONS, IN THE CASE OF A TWO-STEP PROCESS, THAT INCLUDES
GENERAL INFORMATION ON THE PROJECT SITE, PROJECT SCOPE, SCHEDULE,
SELECTION CRITERIA, AND THE TIME AND PLACE FOR RECEIPT OF PROPOSALS OR
QUALIFICATIONS, AS APPLICABLE; A STATEMENT AS TO WHETHER THE SELECTION
PROCESS IS A ONE-STEP OR TWO-STEP PROCESS; AND OTHER INFORMATION THAT
MAY ASSIST THE STATE AGENCY IN ITS SELECTION OF A CONSTRUCTION MANAGER-
AT-RISK. THE STATE AGENCY SHALL STATE THE SELECTION CRITERIA IN THE
REQUEST FOR PROPOSALS OR QUALIFICATIONS, AS APPLICABLE. THE SELECTION
CRITERIA MAY INCLUDE THE OFFEROR'S EXPERIENCE, PAST PERFORMANCE, SAFETY
RECORD, PROPOSED PERSONNEL AND METHODOLOGY, AND OTHER APPROPRIATE
FACTORS THAT DEMONSTRATE THE CAPABILITY OF THE CONSTRUCTION MANAGER-AT-
RISK. IF A ONE-STEP PROCESS IS USED, THE STATE AGENCY MAY REQUEST, AS
PART OF THE OFFEROR'S PROPOSAL, PROPOSED FEES AND PRICES FOR FULFILLING
THE GENERAL CONDITIONS. IF A TWO-STEP PROCESS IS USED, THE STATE AGENCY
MAY NOT REQUEST FEES OR PRICES IN STEP ONE. IN STEP TWO, THE STATE AGEN-
CY MAY REQUEST THAT FIVE OR FEWER OFFERORS, SELECTED SOLELY ON THE BASIS
OF QUALIFICATIONS, PROVIDE ADDITIONAL INFORMATION, INCLUDING THE
CONSTRUCTION MANAGER-AT-RISK'S PROPOSED FEE AND ITS PRICE FOR FULFILLING
THE GENERAL CONDITIONS.
(E) THE STATE AGENCY SHALL PUBLISH THE REQUEST FOR QUALIFICATIONS IN A
MANNER PRESCRIBED BY THE STATE AGENCY.
(F) AT EACH STEP, THE STATE AGENCY SHALL RECEIVE, PUBLICLY OPEN, AND
READ ALOUD THE NAMES OF THE OFFERORS. THE STATE AGENCY OR ITS REPRESEN-
TATIVE SHALL EVALUATE AND RANK EACH PROPOSAL SUBMITTED IN RELATION TO
THE CRITERIA SET FORTH IN THE REQUEST FOR PROPOSALS.
(G) THE STATE AGENCY OR ITS REPRESENTATIVE SHALL SELECT THE OFFEROR
THAT SUBMITS THE PROPOSAL THAT OFFERS THE BEST VALUE FOR THE STATE AGEN-
CY BASED ON THE PUBLISHED SELECTION CRITERIA AND ON ITS RANKING EVALU-
ATION. THE STATE AGENCY OR ITS REPRESENTATIVE SHALL FIRST ATTEMPT TO
NEGOTIATE A CONTRACT WITH THE SELECTED OFFEROR. IF THE STATE AGENCY OR
ITS REPRESENTATIVE IS UNABLE TO NEGOTIATE A SATISFACTORY CONTRACT WITH
THE SELECTED OFFEROR, THE AGENCY OR ITS REPRESENTATIVE SHALL, FORMALLY
AND IN WRITING, END NEGOTIATIONS WITH THAT OFFEROR AND PROCEED TO NEGO-
TIATE WITH THE NEXT OFFEROR IN THE ORDER OF THE SELECTION RANKING UNTIL
A CONTRACT IS REACHED OR NEGOTIATIONS WITH ALL RANKED OFFERORS END.
(H) A CONSTRUCTION MANAGER-AT-RISK SHALL PUBLICLY ADVERTISE, IN THE
MANNER PRESCRIBED BY THE AGENCY, AND RECEIVE BIDS OR PROPOSALS FROM
TRADE CONTRACTORS OR SUBCONTRACTORS FOR THE PERFORMANCE OF ALL MAJOR
ELEMENTS OF THE WORK OTHER THAN THE MINOR WORK THAT MAY BE INCLUDED IN
THE GENERAL CONDITIONS. A CONSTRUCTION MANAGER-AT-RISK MAY SEEK TO
PERFORM PORTIONS OF THE WORK ITSELF IF THE CONSTRUCTION MANAGER-AT-RISK
SUBMITS ITS BID OR PROPOSAL FOR THOSE PORTIONS OF THE WORK IN THE SAME
MANNER AS ALL OTHER TRADE CONTRACTORS OR SUBCONTRACTORS AND IF THE AGEN-
S. 3035--A 6 A. 4735--A
CY DETERMINES THAT THE CONSTRUCTION MANAGER-AT-RISK'S BID OR PROPOSAL
PROVIDES THE BEST VALUE FOR THE STATE AGENCY.
(I) THE CONSTRUCTION MANAGER-AT-RISK AND THE STATE AGENCY OR ITS
REPRESENTATIVE SHALL REVIEW ALL TRADE CONTRACTOR OR SUBCONTRACTOR BIDS
OR PROPOSALS IN A MANNER THAT DOES NOT DISCLOSE THE CONTENTS OF THE BID
OR PROPOSAL DURING THE SELECTION PROCESS TO A PERSON NOT EMPLOYED BY THE
CONSTRUCTION MANAGER-AT-RISK, ENGINEER, ARCHITECT, OR STATE AGENCY. ALL
BIDS OR PROPOSALS SHALL BE MADE PUBLIC AFTER THE AWARD OF THE CONTRACT
OR WITHIN SEVEN DAYS AFTER THE DATE OF FINAL SELECTION OF BIDS AND
PROPOSALS, WHICHEVER IS LATER.
(J) IF THE CONSTRUCTION MANAGER-AT-RISK REVIEWS, EVALUATES, AND RECOM-
MENDS TO THE STATE AGENCY A BID OR PROPOSAL FROM A TRADE CONTRACTOR OR
SUBCONTRACTOR BUT THE STATE AGENCY REQUIRES ANOTHER BID OR PROPOSAL TO
BE ACCEPTED, THE STATE AGENCY SHALL COMPENSATE THE CONSTRUCTION MANAG-
ER-AT-RISK BY A CHANGE IN PRICE, TIME, OR GUARANTEED MAXIMUM COST FOR
ANY ADDITIONAL COST AND RISK THAT THE CONSTRUCTION MANAGER-AT-RISK MAY
INCUR BECAUSE OF THE STATE AGENCY'S REQUIREMENT THAT ANOTHER BID OR
PROPOSAL BE ACCEPTED.
(K) IF A SELECTED TRADE CONTRACTOR OR SUBCONTRACTOR DEFAULTS IN THE
PERFORMANCE OF ITS WORK OR FAILS TO EXECUTE A SUBCONTRACT AFTER BEING
SELECTED IN ACCORDANCE WITH THIS SECTION, THE CONSTRUCTION
MANAGER-AT-RISK MAY, WITHOUT ADVERTISING, ITSELF FULFILL THE CONTRACT
REQUIREMENTS OR SELECT A REPLACEMENT TRADE CONTRACTOR OR SUBCONTRACTOR
TO FULFILL THE CONTRACT REQUIREMENTS.
(L) IF A FIXED CONTRACT AMOUNT OR GUARANTEED MAXIMUM PRICE HAS NOT
BEEN DETERMINED AT THE TIME THE CONTRACT IS AWARDED, THE PENAL SUMS OF
THE PERFORMANCE AND PAYMENT BONDS DELIVERED TO THE STATE AGENCY MUST
EACH BE IN AN AMOUNT EQUAL TO THE PROJECT BUDGET, AS SET FORTH IN THE
REQUEST FOR QUALIFICATIONS. THE CONSTRUCTION MANAGER-AT-RISK SHALL
DELIVER THE BONDS NOT LATER THAN THE TENTH DAY AFTER THE DATE THE
CONSTRUCTION MANAGER-AT-RISK EXECUTES THE CONTRACT UNLESS THE
CONSTRUCTION MANAGER-AT-RISK FURNISHES A BID BOND OR OTHER FINANCIAL
SECURITY ACCEPTABLE TO THE STATE AGENCY TO ENSURE THAT THE CONSTRUCTION
MANAGER-AT-RISK WILL FURNISH THE REQUIRED PERFORMANCE AND PAYMENT BONDS
WHEN A GUARANTEED MAXIMUM PRICE IS ESTABLISHED.
(M) THIS SECTION SHALL NOT BE CONSTRUED TO SUPERSEDE SECTION TWO
HUNDRED TWENTY OF THE LABOR LAW REQUIRING THE PAYMENT OF PREVAILING
WAGES FOR PUBLIC WORKS.
S 9. Section 135-a of the state finance law, as added by chapter 840
of the laws of 1980, is amended to read as follows:
S 135-a. Definitions. As used in this chapter, unless otherwise indi-
cated, the [term "small business concern" shall mean] FOLLOWING TERMS
SHALL HAVE THE FOLLOWING MEANINGS:
1. "SMALL BUSINESS CONCERN" MEANS a business which is resident in this
state, independently owned and operated, not dominant in its field and
employs one hundred or less persons.
2. "ARCHITECT" MEANS AN INDIVIDUAL LICENSED AS AN ARCHITECT UNDER
ARTICLE ONE HUNDRED FORTY-SEVEN OF THE EDUCATION LAW.
3. "CONTRACTOR" IN THE CONTEXT OF A CONTRACT FOR THE CONSTRUCTION,
RECONSTRUCTION, ALTERATION, REPAIR OR IMPROVEMENT OF A STATE BUILDING
MEANS A SOLE PROPRIETORSHIP, PARTNERSHIP, CORPORATION, OR OTHER LEGAL
ENTITY THAT ASSUMES THE RISK FOR CONSTRUCTING, REHABILITATING, ALTERING,
OR REPAIRING ALL OR PART OF THE STATE BUILDING AT THE CONTRACTED PRICE.
4. "CONSTRUCTION MANAGER-AT-RISK" MEANS A SOLE PROPRIETORSHIP, PART-
NERSHIP, CORPORATION, OR OTHER LEGAL ENTITY THAT ASSUMES THE RISK FOR
CONSTRUCTION, REHABILITATION, ALTERATION, OR REPAIR OF A FACILITY AT A
S. 3035--A 7 A. 4735--A
GUARANTEED MAXIMUM PRICE AS A GENERAL CONTRACTOR AND PROVIDES CONSULTA-
TION TO THE AGENCY REGARDING CONSTRUCTION DURING AND AFTER THE DESIGN OF
THE FACILITY.
5. "DESIGN-BUILD CONTRACT" MEANS A SINGLE CONTRACT WITH A DESIGN-BUILD
FIRM FOR THE DESIGN AND CONSTRUCTION OF A FACILITY.
6. "DESIGN-BUILD FIRM" MEANS A CORPORATION ORGANIZED UNDER ARTICLE
FIFTEEN OF THE BUSINESS CORPORATION LAW THAT INCLUDES AN ARCHITECT OR
ENGINEER AND CONTRACTOR QUALIFIED TO ENGAGE IN BUILDING DESIGN AND
CONSTRUCTION IN NEW YORK.
7. "DESIGN CRITERIA PACKAGE" MEANS A SET OF DOCUMENTS THAT PROVIDES
SUFFICIENT INFORMATION TO PERMIT A DESIGN-BUILD FIRM TO PREPARE A
RESPONSE TO THE STATE AGENCY'S REQUEST FOR QUALIFICATIONS AND ANY ADDI-
TIONAL INFORMATION REQUESTED, INCLUDING CRITERIA FOR SELECTION. THE
DESIGN CRITERIA PACKAGE MUST SPECIFY CRITERIA THE STATE AGENCY CONSIDERS
NECESSARY TO DESCRIBE THE PROJECT AND MAY INCLUDE, AS APPROPRIATE, THE
LEGAL DESCRIPTION OF THE SITE, SURVEY INFORMATION CONCERNING THE SITE,
INTERIOR SPACE REQUIREMENTS, SPECIAL MATERIAL REQUIREMENTS, MATERIAL
QUALITY STANDARDS, CONCEPTUAL CRITERIA FOR THE PROJECT, SPECIAL EQUIP-
MENT REQUIREMENTS, COST OR BUDGET ESTIMATES, TIME SCHEDULES, QUALITY
ASSURANCE AND QUALITY CONTROL REQUIREMENTS, SITE DEVELOPMENT REQUIRE-
MENTS, APPLICABLE CODES AND ORDINANCES, PROVISIONS FOR UTILITIES, PARK-
ING REQUIREMENTS, OR ANY OTHER REQUIREMENT, AS APPLICABLE.
8. "ENGINEER" MEANS AN INDIVIDUAL LICENSED AS AN ENGINEER UNDER ARTI-
CLE ONE HUNDRED FORTY-FIVE OF THE EDUCATION LAW.
9. "GUARANTEED MAXIMUM PRICE" MEANS THE AGREED TOTAL DOLLAR AMOUNT
FOR THE CONSTRUCTION MANAGEMENT-AT-RISK SERVICES, INCLUDING THE COST OF
THE WORK, THE GENERAL CONDITIONS AND THE FEES CHARGED BY THE
CONSTRUCTION MANAGEMENT-AT-RISK FIRM.
10. "STATE AGENCY" MEANS ANY OFFICER, DEPARTMENT, BOARD, COMMISSION,
BUREAU, DIVISION, PUBLIC BENEFIT CORPORATION, AGENCY OR INSTRUMENTALITY
OF THE STATE.
S 10. Subdivision 4 of section 163 of the state finance law is amended
by adding a new paragraph h to read as follows:
H. NOTHING IN THIS SECTION SHALL PROHIBIT THE USE OF AN ALTERNATIVE
PROJECT DELIVERY METHOD, INCLUDING CONSTRUCTION MANAGEMENT-AT-RISK OR
DESIGN-BUILD, AS DEFINED IN SECTION ONE HUNDRED THIRTY-FIVE-B OF THIS
CHAPTER, AS METHODS FOR THE CONSTRUCTION, RECONSTRUCTION, ALTERATION,
REPAIR OR IMPROVEMENT OF A STATE BUILDING.
S 11. Subdivision 15 of section 14 of the transportation law, as
amended by chapter 1065 of the laws of 1969, is amended to read as
follows:
15. To prepare the plans, specifications, designs and estimates, and,
by the procedures and methods provided by the laws relating thereto,
NOTWITHSTANDING ANY OTHER PROVISION OF THE LAW THAT REQUIRES A STATE
AGENCY TO AWARD CONTRACTS TO THE LOWEST RESPONSIBLE BIDDER AFTER ADVER-
TISING FOR SEALED BIDS, to construct and reconstruct USING AN ALTERNA-
TIVE PROJECT DELIVERY METHOD, INCLUDING CONSTRUCTION MANAGEMENT-AT-RISK
OR DESIGN-BUILD:
(a) The highways and other public ways that are now or shall hereafter
be under the jurisdiction of the department for such purposes, whether
generally or specially;
(b) The canals, waterways of the state and structures that are now or
shall hereafter be under the jurisdiction of the department for such
purposes;
(c) The bridges and grade separation structures that are now or shall
hereafter be under the jurisdiction of the department for such purposes;
S. 3035--A 8 A. 4735--A
(d) Parking facilities and appurtenances at or adjacent to transporta-
tion interfaces and connections to such facilities.
S 12. Subdivision 10 of section 354 of the public authorities law, as
amended by chapter 766 of the laws of 1992, is amended to read as
follows:
10. To construct, reconstruct or improve on or along the thruway
system in the manner herein provided, suitable facilities for gas
stations, restaurants, and other facilities for the public, or to lease
the right to construct, reconstruct or improve and operate such facili-
ties; such facilities shall be publicly offered for leasing for opera-
tion, or the right to construct, reconstruct or improve and operate such
facilities shall be publicly offered under rules and regulations to be
established by the authority, provided, however, that lessees operating
such facilities at the time [this act becomes] CHAPTER THREE HUNDRED
FORTY-ONE OF THE LAWS OF NINETEEN HUNDRED SIXTY-FIVE BECAME effective,
may reconstruct or improve them or may construct additional like facili-
ties, in the manner and upon such terms and conditions as the board
shall determine; and provided further, however, that such facilities
constructed, reconstructed or improved on or along the canal system
shall be consistent with the canal recreationway plan approved pursuant
to section one hundred thirty-eight-c of the canal law and section three
hundred eighty-two of this title; AND PROVIDED FURTHER THAT NOTWITH-
STANDING ANY OTHER PROVISION OF THE LAW THAT REQUIRES A STATE AGENCY TO
AWARD CONTRACTS TO THE LOWEST RESPONSIBLE BIDDER AFTER ADVERTISING FOR
SEALED BIDS, THE AUTHORITY MAY USE AN ALTERNATIVE PROJECT DELIVERY METH-
OD, INCLUDING CONSTRUCTION MANAGEMENT-AT-RISK OR DESIGN-BUILD TO
CONSTRUCT, RECONSTRUCT OR IMPROVE ON OR ALONG THE THRUWAY SYSTEM IN THE
MANNER HEREIN PROVIDED, SUITABLE FACILITIES FOR GAS STATIONS, RESTAU-
RANTS, AND OTHER FACILITIES FOR THE PUBLIC;
S 13. Section 1680 of the public authorities law is amended by adding
a new subdivision 41 to read as follows:
41. THE AUTHORITY SHALL, NOTWITHSTANDING ANY OTHER PROVISION OF THE
LAW THAT REQUIRES THE AUTHORITY TO AWARD CONTRACTS TO THE LOWEST RESPON-
SIBLE BIDDER AFTER ADVERTISING FOR SEALED BIDS, HAVE THE POWER TO AWARD
A CONTRACT USING AN ALTERNATIVE PROJECT DELIVERY METHOD, INCLUDING THE
POWER TO SOLICIT AND AWARD A CONSTRUCTION MANAGEMENT-AT-RISK CONTRACT OR
DESIGN-BUILD CONTRACT, AS SET FORTH IN SECTION ONE HUNDRED THIRTY-FIVE-B
OF THE STATE FINANCE LAW, FOR ANY PROJECT THAT WOULD BENEFIT FROM THE
UTILIZATION OF AN ALTERNATIVE PROJECT DELIVERY METHOD OF PROCUREMENT.
S 14. Subdivision 9 of section 1204 of the public authorities law, as
amended by chapter 732 of the laws of 1959, is amended to read as
follows:
9. To construct, reconstruct, improve, maintain and operate buildings,
structures and facilities as may be necessary or convenient and to main-
tain and operate, directly or enter into contracts or leases for the
acquisition, maintenance, and operation of areas for the parking of
motor vehicles in the vicinity of its transit facilities, and in its
discretion to fix and charge for such parking a combination fee which
shall include the established rate of fare for use of its transit facil-
ities. NOTWITHSTANDING ANY OTHER PROVISION OF THE LAW THAT REQUIRES THE
AUTHORITY TO AWARD CONTRACTS TO THE LOWEST RESPONSIBLE BIDDER AFTER
ADVERTISING FOR SEALED BIDS, THE AUTHORITY MAY USE AN ALTERNATIVE
PROJECT DELIVERY METHOD, INCLUDING BUT NOT LIMITED TO CONSTRUCTION
MANAGEMENT-AT-RISK OR DESIGN-BUILD, TO CONSTRUCT, RECONSTRUCT, IMPROVE,
MAINTAIN AND OPERATE BUILDINGS, STRUCTURES AND FACILITIES AS MAY BE
NECESSARY OR CONVENIENT AND TO MAINTAIN AND OPERATE.
S. 3035--A 9 A. 4735--A
S 15. Paragraph (a) of subdivision 2 of section 1265-a of the public
authorities law, as amended by chapter 334 of the laws of 2001, is
amended to read as follows:
(a) Except as otherwise provided in this section, all purchase
contracts for supplies, materials or equipment involving an estimated
expenditure in excess of fifteen thousand dollars and all contracts for
public work involving an estimated expenditure in excess of twenty-five
thousand dollars shall be awarded by the authority to the lowest respon-
sible bidder after obtaining sealed bids in the manner hereinafter set
forth. For purposes hereof, contracts for public work shall exclude
contracts for personal, engineering and architectural, or professional
services. NOTWITHSTANDING ANY OTHER PROVISION OF THE LAW THAT REQUIRES
THE AUTHORITY TO AWARD PUBLIC WORK CONTRACTS TO THE LOWEST RESPONSIBLE
BIDDER AFTER ADVERTISING FOR SEALED BIDS, THE AUTHORITY SHALL HAVE THE
POWER TO AWARD A CONTRACT USING AN ALTERNATIVE PROJECT DELIVERY METHOD,
INCLUDING THE POWER TO SOLICIT AND AWARD A CONSTRUCTION
MANAGEMENT-AT-RISK CONTRACT OR DESIGN-BUILD CONTRACT, AS SET FORTH IN
SECTION ONE HUNDRED THIRTY-FIVE-B OF THE STATE FINANCE LAW. The authori-
ty may reject all bids and obtain new bids in the manner provided by
this section when it is deemed in the public interest to do so or, in
cases where two or more responsible bidders submit identical bids which
are the lowest bids, award the contract to any of such bidders or obtain
new bids from such bidders. Nothing herein shall obligate the authority
to seek new bids after the rejection of bids or after cancellation of an
invitation to bid. Nothing in this section shall prohibit the evaluation
of bids on the basis of costs or savings including life cycle costs of
the item to be purchased, discounts, and inspection services so long as
the invitation to bid reasonably sets forth the criteria to be used in
evaluating such costs or savings. Life cycle costs may include but shall
not be limited to costs or savings associated with installation, energy
use, maintenance, operation and salvage or disposal.
S 16. Section 559 of the public authorities law, as amended by chapter
6 of the laws of 1940, is amended to read as follows:
S 559. Construction contracts. The authority shall do all construction
pursuant to a contract or contracts in the manner, so far as practica-
ble, provided in the charter of the city for contracts of such city
except that where the estimated expense of a contract does not exceed
ten thousand dollars such contract may be entered into without public
letting, but failure to comply with this section shall not invalidate
such contracts. NOTWITHSTANDING ANY OTHER PROVISION OF THE LAW THAT
REQUIRES THE AUTHORITY TO AWARD PUBLIC WORK CONTRACTS TO THE LOWEST
RESPONSIBLE BIDDER AFTER ADVERTISING FOR SEALED BIDS, THE AUTHORITY
SHALL HAVE THE POWER TO AWARD A CONTRACT USING AN ALTERNATIVE PROJECT
DELIVERY METHOD, INCLUDING THE POWER TO SOLICIT AND AWARD A CONSTRUCTION
MANAGEMENT-AT-RISK CONTRACT OR A DESIGN-BUILD CONTRACT, AS SET FORTH IN
SECTION ONE HUNDRED THIRTY-FIVE-B OF THE STATE FINANCE LAW.
S 17. Paragraph a of subdivision 2 of section 1734 of the public
authorities law, as added by chapter 738 of the laws of 1988, is amended
to read as follows:
a. Except as otherwise provided in this section, all purchase
contracts for supplies, materials or equipment involving an estimated
expenditure in excess of ten thousand dollars and all contracts for
public work involving an estimated expenditure in excess of fifty thou-
sand dollars shall be awarded by the authority to the lowest responsible
bidder after obtaining sealed bids in the manner hereinafter set forth.
For purposes hereof, contracts for public work shall exclude contracts
S. 3035--A 10 A. 4735--A
for personal, engineering and architectural, or professional services.
NOTWITHSTANDING ANY OTHER PROVISION OF THE LAW THAT REQUIRES THE AUTHOR-
ITY TO AWARD PUBLIC WORK CONTRACTS TO THE LOWEST RESPONSIBLE BIDDER
AFTER ADVERTISING FOR SEALED BIDS, THE AUTHORITY SHALL HAVE THE POWER TO
AWARD A CONTRACT USING AN ALTERNATIVE PROJECT DELIVERY METHOD, INCLUDING
THE POWER TO SOLICIT AND AWARD A CONSTRUCTION MANAGEMENT-AT-RISK
CONTRACT OR A DESIGN-BUILD CONTRACT, AS SET FORTH IN SECTION ONE HUNDRED
THIRTY-FIVE-B OF THE STATE FINANCE LAW.
S 18. Section 103 of the general municipal law is amended by adding a
new subdivision 16 to read as follows:
16. NOTWITHSTANDING ANY OTHER PROVISION OF THE LAW THAT REQUIRES THE
APPROPRIATE OFFICER, BOARD OR AGENCY OF A POLITICAL SUBDIVISION OR OF
ANY DISTRICT THEREIN TO AWARD PUBLIC WORK CONTRACTS TO THE LOWEST
RESPONSIBLE BIDDER AFTER ADVERTISING FOR SEALED BIDS, THE APPROPRIATE
OFFICER, BOARD OR AGENCY OF A POLITICAL SUBDIVISION OR OF ANY DISTRICT
THEREIN SHALL HAVE THE POWER TO AWARD A CONTRACT USING AN ALTERNATIVE
PROJECT DELIVERY METHOD, INCLUDING THE POWER TO SOLICIT AND AWARD A
CONSTRUCTION MANAGEMENT-AT-RISK CONTRACT OR DESIGN-BUILD CONTRACT, AS
SET FORTH IN SECTION ONE HUNDRED THIRTY-FIVE-B OF THE STATE FINANCE LAW.
S 19. Section 1501 of the business corporation law, as added by chap-
ter 974 of the laws of 1970, is amended to read as follows:
S 1501. Definitions.
As used in this article, unless the context otherwise requires, the
term: (a) "licensing authority" means the regents of the university of
the state of New York or the state education department, as the case may
be, in the case of all professions licensed under title eight of the
education law, and the appropriate appellate division of the supreme
court in the case of the profession of law.
(b) "Profession" includes any practice as an attorney and counselor-
at-law, or as a licensed physician, and those occupations designated in
title eight of the education law.
(c) "Professional service" means any type of service to the public
which may be lawfully rendered by a member of a profession within the
purview of his profession.
(d) "Professional service corporation" means a corporation organized
under this article, INCLUDING A DESIGN-BUILD FIRM.
(e) "Officer" does not include the secretary or an assistant secretary
of a corporation having only one shareholder.
(F) "DESIGN-BUILD FIRM" MEANS A CORPORATION ORGANIZED UNDER THIS ARTI-
CLE TO ENGAGE IN THE DESIGN-BUILD METHOD AS SET FORTH IN SECTION ONE
HUNDRED THIRTY-FIVE-B OF THE STATE FINANCE LAW THAT INCLUDES AN ARCHI-
TECT OR ENGINEER AND CONTRACTOR QUALIFIED TO ENGAGE IN BUILDING DESIGN
AND CONSTRUCTION IN NEW YORK.
S 20. Paragraph (a) of section 1503 of the business corporation law,
as added by chapter 974 of the laws of 1970, is amended to read as
follows:
(a) Notwithstanding any other provision of law, one or more individ-
uals duly authorized by law to render the same professional service
within the state may organize, or cause to be organized, a professional
service corporation for pecuniary profit under this article for the
purpose of rendering the same professional service, except that one or
more individuals duly authorized by law to practice professional engi-
neering, architecture, landscape architecture or land surveying within
the state may organize, or cause to be organized, a professional service
corporation for pecuniary profit under this article for the purpose of
rendering such professional services as such individuals are authorized
S. 3035--A 11 A. 4735--A
to practice. ONE OR MORE INDIVIDUALS DULY AUTHORIZED BY LAW TO PRACTICE
PROFESSIONAL ARCHITECTURE OR ENGINEERING WITHIN THE STATE, ALONG WITH A
CONTRACTOR, MAY ALSO ORGANIZE, OR CAUSE TO BE ORGANIZED, A PROFESSIONAL
SERVICE CORPORATION FOR PECUNIARY PROFIT UNDER THIS ARTICLE FOR THE
PURPOSE OF ENGAGING IN THE DESIGN-BUILD METHOD AS SET FORTH IN SECTION
ONE HUNDRED THIRTY-FIVE-B OF THE STATE FINANCE LAW.
S 21. This act shall take effect on the ninetieth day after it shall
have become a law; provided that the amendment to subdivision 12 of
section 373 of the education law made by section three of this act shall
take effect on the same date as the reversion of such subdivision as
provided in section 4 of subpart A of part D of chapter 58 of the laws
of 2011, as amended; and further provided that the amendment to subdivi-
sion 4 of section 163 of the state finance law made by section ten of
this act shall not affect the repeal of such section and shall be deemed
repealed therewith.