S T A T E O F N E W Y O R K
________________________________________________________________________
6667
2017-2018 Regular Sessions
I N A S S E M B L Y
March 15, 2017
___________
Introduced by M. of A. BENEDETTO, RODRIGUEZ -- read once and referred to
the Committee on Cities
AN ACT to authorize, for certain public works undertaken pursuant to
project labor agreements, use of the alternative delivery method known
as design-build contracts; and providing for the repeal of such
provisions upon expiration thereof
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 "New York
city public works investment act".
§ 2. For the purposes of this act:
(a) "Authorized entity" shall mean the New York city department of
design and construction, the New York city department of environmental
protection, the New York city department of parks and recreation, the
New York city department of transportation, the New York city health and
hospitals corporation, the New York city housing authority and the New
York city school construction authority.
(b) "Best value" shall mean the basis for awarding contracts for
services to a proposer that optimizes quality, cost and efficiency,
price and performance criteria, which may include, but is not limited
to:
(1) The quality of the proposer's performance on previous projects;
(2) The timeliness of the proposer's performance on previous projects;
(3) The level of customer satisfaction with the proposer's performance
on previous projects;
(4) The proposer's record of performing previous projects on budget
and ability to minimize cost overruns;
(5) The proposer's ability to limit change orders;
(6) The proposer's ability to prepare appropriate project plans;
(7) The proposer's technical capacities;
(8) The individual qualifications of the proposer's key personnel;
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD10682-01-7
A. 6667 2
(9) The proposer's ability to assess and manage risk and minimize risk
impact;
(10) The proposer's financial capability;
(11) The proposer's ability to comply with applicable requirements,
including the provisions of articles 145, 147 and 148 of the education
law;
(12) The proposer's past record of compliance with federal, state and
local laws, rules, licensing requirements, where applicable, and execu-
tive orders, including but not limited to compliance with the labor law
and other applicable labor and prevailing wage laws, article 15-A of the
executive law, and any other applicable laws concerning minority- and
women-owned business enterprise participation;
(13) The prospective bidder's record of complying with existing labor
standards, maintaining harmonious labor relations, and protecting the
health and safety of workers and payment of wages above any locally-de-
fined living wage; and
(14) A quantitative factor to be used in evaluation of bids or offers
for awarding of contracts for bidders or offerers that are certified as
minority- or women-owned business enterprises as defined in subdivisions
1, 7, 15 and 20 of section 310 of the executive law, or certified pursu-
ant to local law as minority- or women-owned business enterprises.
Such basis shall reflect, wherever possible, objective and quantifi-
able analysis.
(c) "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.
(d) "Design-build contract" shall mean a contract for the design and
construction of a public work with a single entity, which may be a team
comprised of separate entities.
(e) "Project labor agreement" shall have the meaning set forth in
subdivision 1 of section 222 of the labor law. A project labor agreement
shall require participation in apprentice training programs in accord-
ance with paragraph (e) of subdivision 2 of such section.
§ 3. Any contract for a public work undertaken pursuant to a project
labor agreement in accordance with section 222 of the labor law may be a
design-build contract in accordance with this act.
§ 4. Notwithstanding any general, special or local law, rule or regu-
lation to the contrary, including but not limited to article 5-A of the
general municipal law, section 8 of the New York city health and hospi-
tals corporation act, sections 1734 and 1735 of the public authorities
law and article 8 of the public housing law, and in conformity with the
requirements of this act, for any public work that has an estimated
total cost of not less than ten million dollars and is undertaken pursu-
ant to a project labor agreement in accordance with section 222 of the
labor law, an authorized entity charged with awarding a contract for
public work may use the alternative delivery method referred to as
design-build contracts.
(a) A contractor selected by such authorized entity to enter into a
design-build contract shall be selected through the submission of a
proposal which provides the best value. Such authorized entity shall
issue a request for proposals which shall set forth the scope of work,
and other requirements, as determined by the authorized entity, which
may include separate goals for work under the contract to be performed
by businesses certified as minority- or women-owned business enterprises
as defined in subdivisions 1, 7, 15 and 20 of section 310 of the execu-
tive law, or certified pursuant to local law as minority- or women-owned
A. 6667 3
business enterprises. The request for proposals shall also specify the
criteria to be used to evaluate the responses and the relative weight of
each of such criteria. Such criteria shall include the proposal's cost,
the quality of the proposal's solution, the qualifications and experi-
ence of the proposer, and other factors deemed pertinent by the author-
ized entity, which may include, but shall not be limited to, the
proposal's manner and schedule of project implementation, the proposer's
ability to complete the work in a timely and satisfactory manner, main-
tenance costs of the completed public work, 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, offers the best value, as determined by the
authorized entity. Nothing herein shall be construed to prohibit the
authorized entity from negotiating final contract terms and conditions
including cost.
(b) An authorized entity awarding a design-build contract to a
contractor offering the best value may but shall not be required to use
the following types of contracts:
(1) A cost-plus not to exceed guaranteed maximum price form of
contract in which the authorized entity shall be entitled to monitor and
audit all costs. In establishing the schedule and process for determin-
ing a guaranteed maximum price, the contract between the authorized
entity and the contractor shall:
(i) Describe the scope of the work and the cost of performing such
work,
(ii) Include a detailed line item cost breakdown,
(iii) Include a list of all drawings, specifications and other infor-
mation on which the guaranteed maximum price is based,
(iv) Include the dates of substantial and final completion on which
the guaranteed maximum price is based, and
(v) Include a schedule of unit prices; or
(2) 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 public work.
§ 5. 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.
§ 6. Construction with respect to each contract entered into by an
authorized 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 pursuant to
applicable law or, for projects or public works receiving federal aid,
applicable federal requirements for prevailing wage. Any contract
entered into pursuant to this act shall include a clause requiring the
selected design builder to obligate every tier of contractor working on
the project to comply with the project labor agreement referenced in
section three of this act, and shall include project labor agreement
compliance monitoring and enforcement provisions consistent with the
applicable project labor agreement.
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§ 7. Each contract entered into by an authorized entity pursuant to
this act shall comply with the objectives and goals with regard to
minority- and women-owned business enterprises pursuant to, as applica-
ble, section 6-129 of the administrative code of the city of New York,
subdivision 6 of section 8 of the New York city health and hospitals
corporation act and section 1743 of the public authorities law, or, for
projects or public works receiving federal aid, applicable federal
requirements for disadvantaged business enterprises or minority- and
women-owned business enterprises.
§ 8. Public works undertaken by an authorized entity pursuant to this
act shall be subject to the requirements of article 8 of the environ-
mental conservation law, and, where applicable, the requirements of the
national environmental policy act.
§ 9. (a) Notwithstanding any provision of law to the contrary, all
rights or benefits, including terms and conditions of employment, and
protection of civil service and collective bargaining status of all
employees of authorized entities, shall not be impaired or reduced
because of the use of a design-build contract pursuant to this act.
(b) Nothing in this act shall result in the displacement of any
current employee of an authorized entity using design-build contracts
who is represented by a "certified employee organization" as defined by
section 12-303 of the administrative code of the city of New York, or
loss of position of such employee (including partial displacement such
as a reduction in the hours of non-overtime work, wages or employment
benefits), or result in the impairment of existing collective bargaining
agreements.
(c) Employees of authorized entities using design-build contracts
serving in positions in newly created titles shall be assigned to the
appropriate bargaining unit. Nothing contained herein shall be construed
to affect (1) the existing rights of employees of such entities pursuant
to an existing collective bargaining agreement, (2) the existing repres-
entational relationships among employee organizations representing
employees of such entities or (3) the bargaining relationships between
such entities and such employee organizations.
§ 10. 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.
§ 11. Nothing contained in this act shall limit the right or obli-
gation of any authorized entity to comply with the provisions of any
existing contract or to award contracts as otherwise provided by law.
§ 12. This act shall take effect immediately and shall expire and be
deemed repealed 5 years after such date, provided that, public works
with requests for proposals issued prior to such repeal shall be permit-
ted to continue under this act notwithstanding such repeal.