Senate Bill S414

                            
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                   414

                       2013-2014 Regular Sessions

                            I N  S E N A T E

                               (PREFILED)

                             January 9, 2013
                               ___________

Introduced  by  Sen.  DILAN  -- 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 requiring
  public authorities and public benefit corporations to  negotiate  with
  professional  firms providing architectural or engineering services in
  order from the most qualified to the least qualified  with  regard  to
  the provision of services to the authority or corporation

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. Subparagraph (iv) of paragraph  (b)  of  subdivision  3  of
section 2879 of the public authorities law, as amended by chapter 383 of
the laws of 1994, is amended to read as follows:
  (iv)  as used in this subparagraph, the term "professional firm" shall
be defined as any individual or sole proprietorship, partnership, corpo-
ration, association, or other legal entity permitted by law to  practice
the professions of architecture, engineering or surveying.
  IT  IS  THE POLICY OF NEW YORK STATE TO NEGOTIATE CONTRACTS FOR ARCHI-
TECTURAL AND/OR ENGINEERING SERVICES AND/OR SURVEYING  SERVICES  ON  THE
BASIS  OF  DEMONSTRATED  COMPETENCE  AND  QUALIFICATION  FOR THE TYPE OF
PROFESSIONAL SERVICES REQUIRED AND AT FAIR AND REASONABLE FEES.
  IN  THE  PROCUREMENT  OF  ARCHITECTURAL,  ENGINEERING  AND   SURVEYING
SERVICES,  THE CORPORATION SHALL ENCOURAGE PROFESSIONAL FIRMS ENGAGED IN
THE LAWFUL PRACTICE OF THE PROFESSION TO SUBMIT AN ANNUAL  STATEMENT  OF
QUALIFICATIONS  AND  PERFORMANCE DATA. THE CORPORATION FOR EACH PROPOSED
PROJECT SHALL EVALUATE CURRENT STATEMENTS OF QUALIFICATIONS AND PERFORM-
ANCE DATA ON FILE WITH THE CORPORATION.  IF DESIRED, THE CORPORATION MAY
CONDUCT DISCUSSIONS WITH THREE  OR  MORE  PROFESSIONAL  FIRMS  REGARDING
ANTICIPATED  DESIGN  CONCEPTS  AND  PROPOSED  METHODS OF APPROACH TO THE
ASSIGNMENT. THE CORPORATION SHALL SELECT, IN ORDER OF PREFERENCE,  BASED

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
              

                                                           LBD00703-01-3

S. 414                              2

UPON CRITERIA ESTABLISHED BY THE CORPORATION, NO LESS THAN THREE PROFES-
SIONAL  FIRMS  DEEMED  TO  BE  THE  MOST HIGHLY QUALIFIED TO PROVIDE THE
SERVICES REQUIRED.
  EVERY  CORPORATION  SHALL NEGOTIATE A CONTRACT WITH THE HIGHEST QUALI-
FIED PROFESSIONAL FIRM FOR  ARCHITECTURAL  AND/OR  ENGINEERING  SERVICES
AND/OR  SURVEYING  SERVICES AT COMPENSATION WHICH THE CORPORATION DETER-
MINES IN WRITING TO BE FAIR  AND  REASONABLE  TO  SUCH  CORPORATION.  IN
MAKING  THIS DECISION, THE CORPORATION SHALL TAKE INTO ACCOUNT THE ESTI-
MATED VALUE OF THE SERVICES TO BE RENDERED,  INCLUDING  THE  COSTS,  THE
SCOPE, COMPLEXITY AND PROFESSIONAL NATURE THEREOF.
  The corporation shall not refuse to negotiate with a professional firm
solely  because  the  ratio  of the "allowable indirect costs" to direct
labor costs of the professional firm or the hourly  labor  rate  in  any
labor  category  of the professional firm exceeds a limitation generally
set by the corporation in the determination of the reasonableness of the
estimated cost of services to be rendered by the professional firm,  but
rather  the  corporation should also consider the reasonableness of cost
based on the total estimated cost of the  service  of  the  professional
firm  which  should  include,  among  other things, all the direct labor
costs of the professional firm for such  services  plus  all  "allowable
indirect  costs,"  other  direct  costs,  and  negotiated  profit of the
professional firm. "Allowable indirect costs" of a professional firm are
defined as those costs generally associated with overhead  which  cannot
be  specifically  identified  with  a single project or contract and are
considered reasonable and allowable under  specific  state  contract  or
allowability  limits.    SHOULD THE CORPORATION BE UNABLE TO NEGOTIATE A
SATISFACTORY CONTRACT WITH THE PROFESSIONAL FIRM CONSIDERED  TO  BE  THE
MOST  QUALIFIED,  AT  A  FEE  THE  CORPORATION DETERMINES TO BE FAIR AND
REASONABLE TO THE CORPORATION, NEGOTIATIONS WITH THAT PROFESSIONAL  FIRM
SHALL  BE  FORMALLY  TERMINATED.    THE CORPORATION SHALL THEN UNDERTAKE
NEGOTIATIONS WITH THE SECOND MOST QUALIFIED PROFESSIONAL  FIRM.  FAILING
ACCORD WITH THE SECOND MOST QUALIFIED PROFESSIONAL FIRM, THE CORPORATION
SHALL FORMALLY TERMINATE NEGOTIATIONS. THE CORPORATION SHALL THEN UNDER-
TAKE  NEGOTIATIONS  WITH  THE  THIRD  MOST  QUALIFIED PROFESSIONAL FIRM.
SHOULD THE CORPORATION BE UNABLE TO NEGOTIATE  A  SATISFACTORY  CONTRACT
WITH  ANY OF THE SELECTED PROFESSIONAL FIRMS, IT SHALL SELECT ADDITIONAL
PROFESSIONAL FIRMS IN ORDER OF THEIR COMPETENCE AND  QUALIFICATIONS  AND
IT  SHALL CONTINUE NEGOTIATIONS IN ACCORDANCE WITH THIS SECTION UNTIL AN
AGREEMENT IS REACHED.  THE PROVISIONS OF THIS  SUBPARAGRAPH  SHALL  ONLY
APPLY  TO  ENGINEERING  AND/OR  ARCHITECTURAL  SERVICES AND/OR SURVEYING
SERVICES IN EXCESS OF TWENTY-FIVE THOUSAND DOLLARS AND SHALL  NOT  APPLY
TO  THE METROPOLITAN TRANSPORTATION AUTHORITY, THE NEW YORK CITY TRANSIT
AUTHORITY OR THE TRIBOROUGH BRIDGE AND TUNNEL AUTHORITY  OR  TO  ANY  OF
THEIR SUBSIDIARIES.
  S 2. This act shall take effect immediately.