S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   11286
 
                           I N  A S S E M B L Y
 
                               July 25, 2018
                                ___________
 
 Introduced  by  COMMITTEE  ON  RULES -- (at request of M. of A. Espinal,
   Aubry) -- 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.  Short title.  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  and  the  New  York city health and hospitals
 corporation.
   (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;
   (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;
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
              

                       [ ] is old law to be omitted.
                                                            LBD16243-01-8

 A. 11286                            2
 
   (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 proposer'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-defined 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.
   (f) "Public work" shall mean a public work in the  city  of  New  York
 related to the following, and shall refer to the Elmhurst Hospital emer-
 gency room renovation in Queens county.
   §  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 and section 8 of the  New  York  city  health  and
 hospitals  corporation  act,  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 pursuant 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 a  two-step  method,  as
 follows:
   (1)  Step  one.  Generation of a list of responding entities that have
 demonstrated  the  general  capability  to  perform   the   design-build
 contract.  Such  list  shall consist of a specified number of responding
 entities, as determined by an authorized entity, and shall be  generated
 based  upon  the  authorized  entity's review of responses to a publicly
 advertised request for qualifications. The authorized  entity's  request
 for  qualifications  shall  include  a general description of the public
 work, the maximum number of responding entities to be  included  on  the
 list,  the selection criteria to be used and the relative weight of each
 criteria in generating the list.  Such selection criteria shall  include

 A. 11286                            3
 
 the  qualifications  and experience of the design and construction team,
 organization, demonstrated responsibility, ability of the team or  of  a
 member  or  members  of the team to comply with applicable requirements,
 including  the  provisions of articles 145, 147 and 148 of the education
 law, past record of compliance with the labor law, and such other quali-
 fications the authorized entity deems appropriate, which may include but
 are not limited  to  project  understanding,  financial  capability  and
 record  of  past  performance.  The authorized entity shall evaluate and
 rate all responding entities to the request for qualifications.    Based
 upon such ratings, the authorized entity shall list the responding enti-
 ties that shall receive a request for proposals in accordance with para-
 graph  two of this subdivision. To the extent consistent with applicable
 federal law, the authorized entity shall  consider,  when  awarding  any
 contract  pursuant  to this section, the participation of (i) responding
 entities that are certified as minority- or women-owned business  enter-
 prises  as defined in subdivisions 1, 7, 15 and 20 of section 310 of the
 executive law, or certified  pursuant  to  local  law  as  minority-  or
 women-owned business enterprises; and (ii) small business concerns iden-
 tified pursuant to subdivision (b) of section 139-g of the state finance
 law; and
   (2) Step two. Selection of the proposal which is the best value to the
 authorized  entity.    The  authorized  entity shall issue a request for
 proposals to the responding entities listed pursuant to paragraph one of
 this subdivision. If such a responding entity  consists  of  a  team  of
 separate  entities,  the  entities that comprise such a team must remain
 unchanged from the responding entity as listed pursuant to paragraph one
 of this subdivision unless otherwise approved by the authorized  entity.
 The  request  for  proposals  shall set forth the public work's 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  executive  law,  or certified pursuant to local law as minority- or
 women-owned business enterprises. The request for proposals  shall  also
 specify  the criteria to be used to evaluate the responses and the rela-
 tive weight of each of such criteria. Such criteria  shall  include  the
 proposal's  cost, the quality of the proposal's solution, the qualifica-
 tions and experience of the proposer, and other factors deemed pertinent
 by the authorized 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,  maintenance  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  proposer,
 which,  in  consideration  of  these and other specified criteria deemed
 pertinent, offers the best value, as determined by the authorized  enti-
 ty.  The  request for proposals shall include a statement that proposers
 shall designate in writing those portions of the proposal  that  contain
 trade secrets or other proprietary information that are to remain confi-
 dential;  that  the material designated as confidential shall be readily
 separable from the  proposal.  Nothing  in  this  subdivision  shall  be
 construed  to  prohibit  the  authorized  entity  from negotiating final
 contract terms and conditions including cost.  All  proposals  submitted
 shall  be  scored  according  to  the criteria listed in the request for
 proposals and such final scores shall be  published  on  the  authorized
 entity's website.

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   (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
 the appropriate article.
   § 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 such
 law and enforcement of prevailing wage requirements pursuant to applica-
 ble law or, for projects or public works receiving federal aid, applica-
 ble 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
 public  work  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.
   § 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
 and subdivision 6 of section 8 of the New York city health and hospitals
 corporation act, 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 solely in connection with the public

 A. 11286                            5
 
 work identified in subdivision (f) of section two of this act, shall  be
 preserved and protected.
   (b)  Nothing  in this act shall result in the: (1) displacement of any
 currently  employed  worker  or  loss  of  position  (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;  and (2) transfer of existing duties
 and functions related to maintenance and operations currently  performed
 by existing employees of authorized entities to a contractor.
   (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  in this act shall be
 construed to affect (1) the existing rights of employees of  such  enti-
 ties  pursuant  to  an existing collective bargaining agreement, (2) the
 existing representational  relationships  among  employee  organizations
 representing employees of such entities, or (3) the bargaining relation-
 ships 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 4 years after such date;  provided  that,  public  works
 with  requests  for  qualifications issued prior to such repeal shall be
 permitted to continue under this act notwithstanding such repeal.