senate Bill S6639A

2013-2014 Legislative Session

Authorizes public authorities to negotiate with most qualified architectural and engineering professional firms before negotiating with other firms

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Archive: Last Bill Status - Passed Senate


  • Introduced
  • In Committee
  • On Floor Calendar
    • Passed Senate
    • Passed Assembly
  • Delivered to Governor
  • Signed/Vetoed by Governor

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Actions

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Assembly Actions - Lowercase
Senate Actions - UPPERCASE
Jun 12, 2014 referred to ways and means
delivered to assembly
passed senate
Jun 09, 2014 amended on third reading (t) 6639a
May 14, 2014 advanced to third reading
May 13, 2014 2nd report cal.
May 12, 2014 1st report cal.607
Feb 21, 2014 referred to corporations, authorities and commissions

Votes

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May 12, 2014 - Corporations, Authorities and Commissions committee Vote

S6639
5
0
committee
5
Aye
0
Nay
1
Aye with Reservations
0
Absent
0
Excused
0
Abstained
show committee vote details

Committee Vote: May 12, 2014

aye wr (1)

Bill Amendments

Original
A (Active)
Original
A (Active)

Co-Sponsors

S6639 - Bill Details

See Assembly Version of this Bill:
A7268A
Current Committee:
Law Section:
Public Authorities Law
Laws Affected:
Amd §2879, Pub Auth L
Versions Introduced in Previous Legislative Sessions:
2013-2014: S414
2011-2012: A6814A, S1363A
2009-2010: A7056B, S3531B

S6639 - Bill Texts

view summary

Authorizes 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.

view sponsor memo
BILL NUMBER:S6639

TITLE OF BILL: 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

PURPOSE OF THE BILL:

This bill would allow public authorities a greater opportunity to
negotiate with the most qualified architectural and engineering
professional firms through annual statements of qualifications and
performance data created by professional firms.

SUMMARY OF PROVISIONS:

§ 1-Amends subparagraph (iv) of paragraph (b) of subdivision 3 of
2879 of the Public Authorities Law.

§ 2-Effective date.

JUSTIFICATION:

The intent of this bill is to ensure that public authorities and
public benefit corporations receive the services of the most qualified
contractor through the establishment of a new mechanism for the
procurement of engineering, architectural and surveying services.
Qualifications Based Selections (QBS) is a procurement process that is
used widely throughout the country and has recently been adopted by
New York City. Instead of cost-based procurement which focuses
primarily on price, QBS procurement focuses on qualifications and
experience as the paramount basis for selection. However, after the
highest technically ranked firm is selected and the project scope is
fully defined, QBS generates a realistic fee based on a fee proposal
by the consultant and negotiations with the agency. If an agency
cannot negotiate a fair price with the first choice consultant, it has
the option to negotiate with the next highly qualified consultant, and
so on. QBS allows agencies to select the design firm with the best
experience, capabilities, technical approach and quality of personnel,
matched to the needs of the project and the agency; generates better
plans and specifications, resulting in higher quality contract
documents that make bidding on and carrying out construction easier;
fosters the development of innovative, cost-effective design solutions
at a fair market value, resulting in lower overall project costs; and
generates design solutions that best meet the needs of the project,
emphasizing public health, safety and quality of life. QBS is
mandated in at least 46 other states and has proven to be an effective
procurement tool. QBS generates competition by bringing more firms
into the bidding process. As a result, owners are ensured a better
project and a savings to the taxpayer.

LEGISLATIVE HISTORY:

2009/10 - S.3531B - Died in Rules/A.7056B - Passed Assembly
2008 - Similar to A.11204/S.8305


2007 - Similar to A.5933/S.2162 (Veto Message 93)
2005-06 - A.5672A/S.1894A
2003/04 - A.11880/S.7776 and A.6028/S.3908 (Veto Message 245)

FISCAL IMPLICATIONS:

Should result in cost savings for the State.

EFFECTIVE DATE:

This act shall take effect immediately.

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

                                  6639

                            I N  S E N A T E

                            February 21, 2014
                               ___________

Introduced  by  Sens.  DeFRANCISCO,  VALESKY  --  read twice and ordered
  printed, and when printed to be committed to the Committee  on  Corpo-
  rations, 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
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.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD00703-01-3

S. 6639                             2

  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.

Co-Sponsors

S6639A (ACTIVE) - Bill Details

See Assembly Version of this Bill:
A7268A
Current Committee:
Law Section:
Public Authorities Law
Laws Affected:
Amd §2879, Pub Auth L
Versions Introduced in Previous Legislative Sessions:
2013-2014: S414
2011-2012: A6814A, S1363A
2009-2010: A7056B, S3531B

S6639A (ACTIVE) - Bill Texts

view summary

Authorizes 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.

view sponsor memo
BILL NUMBER:S6639A

TITLE OF BILL: An act to amend the public authorities law, in relation
to authorizing 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

PURPOSE OF THE BILL:

This bill would allow public authorities a greater opportunity to nego-
tiate with the most qualified architectural and engineering professional
firms through annual statements of qualifications and performance data
created by professional firms.

SUMMARY OF PROVISIONS:

§ 1-Amends subparagraph (iv) of paragraph (b) of subdivision 3 of § 2879
of the public Authorities Law.

§ 2-Effective date.

JUSTIFICATION:

The intent of this bill is to ensure that public authorities and public
benefit corporations receive the services of the most qualified contrac-
tor through the establishment of a new mechanism for the procurement of
engineering, architectural and surveying services. Qualifications Based
Selections (QBS) is a procurement process that is used widely throughout
the country and has recently been adopted by New York City. Instead of
cost-based procurement which focuses primarily on price, QBS procurement
focuses on qualifications and experience as the paramount basis for
selection. However, after the highest technically ranked firm is
selected and the project scope is fully defined, QBS generates a realis-
tic fee based on a fee proposal by the consultant and negotiations with
the agency. If an agency cannot negotiate a fair price with the first
choice consultant, it has the option to negotiate with the next highly
qualified consultant, and so on. QBS allows agencies to select the
design firm with the best experience, capabilities, technical approach
and quality of personnel, matched to the needs of the project and the
agency; generates better plans and specifications, resulting in higher
quality contract documents that make bidding on and carrying out
construction easier; fosters the development of innovative, cost-effec-
tive design solutions at a fair market value, resulting in lower overall
project costs; and generates design solutions that best meet the needs
of the project, emphasizing public health, safety and quality of life.
QBS is mandated in at least 46 other states and has proven to be an
effective procurement tool. QBS generates competition by bringing more
firms into the bidding process. As a result, owners are ensured a better
project and a savings to the taxpayer.

LEGISLATIVE HISTORY:

2009/10 - S.3531B - Died in Rules/A.7056B - Passed Assembly
2008 - Similar to A.11204/S.8305
2007 - Similar to A.5933/S.2162 (Veto Message 93)
2005-06 - A.5672A/S.1894A
2003/04 - A.11880/S.7776 and A.6028/S.3908 (Veto Message 245)

FISCAL IMPLICATIONS:

Should result in cost savings for the State.

EFFECTIVE DATE:

This act shall take effect immediately.

view full text
download pdf
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                 6639--A
    Cal. No. 607

                            I N  S E N A T E

                            February 21, 2014
                               ___________

Introduced  by  Sens.  DeFRANCISCO,  MAZIARZ,  VALESKY -- read twice and
  ordered printed, and when printed to be committed to the Committee  on
  Corporations,  Authorities  and Commissions -- reported favorably from
  said committee, ordered to first and second report, ordered to a third
  reading, amended and ordered reprinted, retaining  its  place  in  the
  order of third reading

AN  ACT  to amend the public authorities law, in relation to authorizing
  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 IS AUTHORIZED TO 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 IS AUTHORIZED TO EVALUATE  CURRENT  STATEMENTS  OF
QUALIFICATIONS  AND  PERFORMANCE  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 IS AUTHORIZED  TO
SELECT,  IN  ORDER OF PREFERENCE, BASED UPON CRITERIA ESTABLISHED BY THE

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD00703-04-4

S. 6639--A                          2

CORPORATION, NO LESS THAN THREE PROFESSIONAL FIRMS DEEMED TO BE THE MOST
HIGHLY QUALIFIED TO PROVIDE THE SERVICES REQUIRED.
  EVERY CORPORATION IS AUTHORIZED TO NEGOTIATE A CONTRACT WITH THE HIGH-
EST  QUALIFIED  PROFESSIONAL  FIRM  FOR ARCHITECTURAL AND/OR ENGINEERING
SERVICES AND/OR SURVEYING SERVICES AT COMPENSATION WHICH THE CORPORATION
DETERMINES IN WRITING TO BE FAIR AND REASONABLE TO SUCH CORPORATION.  IN
MAKING THIS DECISION, THE CORPORATION IS AUTHORIZED TO TAKE INTO ACCOUNT
THE ESTIMATED 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 CHOOSE TO ENGAGE IN A QUAL-
IFICATION  BASED  PROCUREMENT  AND 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  TERMI-
NATE  NEGOTIATIONS.  THE  CORPORATION  SHALL THEN UNDERTAKE 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 NEGO-
TIATIONS  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.

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