S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                  6293--A
 
                        2019-2020 Regular Sessions
 
                             I N  S E N A T E
 
                               June 3, 2019
                                ___________
 
 Introduced  by  Sens.  COMRIE,  JACKSON,  LIU  -- read twice and ordered
   printed, and when printed to be committed to the Committee on Rules --
   committee discharged, bill amended, ordered reprinted as  amended  and
   recommitted to said committee
 
 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, the New York city department  of  environmental
 protection, the New York city department of transportation, the New York
 city  department  of  parks and recreation, the New York city health and
 hospitals corporation, the New York city school  construction  authority
 and the New York city housing 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;
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD13145-02-9

 S. 6293--A                          2
 
   (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;
   (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 pursuant to article 15-A
 of the executive law, and certified pursuant to local law  as  minority-
 or  women-owned business enterprises. Where an agency identifies a quan-
 titative factor pursuant to this paragraph, the agency must specify that
 businesses certified as minority- or  women-owned  business  enterprises
 pursuant to article 15-A of the executive law as well as those certified
 as  minority- or women-owned business enterprises or pursuant to section
 1304 of the New York city charter  are  eligible  to  qualify  for  such
 factor.  Nothing  in  this paragraph shall be construed as a requirement
 that such businesses be concurrently certified as  minority-  or  women-
 owned  business enterprises under both article 15-A of the executive law
 and section 1304 of the New York city charter to qualify for such  quan-
 titative   factors.   In  addition,  where  the  New  York  city  school
 construction authority acts as the authorized entity, businesses  certi-
 fied  as  minority-  or  women-owned  business  enterprises  pursuant to
 section 1743 of the public authorities law shall be eligible to  qualify
 for such factor.
   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 section 7210 of the
 education  law,  article  5-A of the general municipal law, article 8 of
 the public  housing law, sections 1734 and 1735 of the  public  authori-

 S. 6293--A                          3
 
 ties  law and section 8 of the New York city health and hospitals corpo-
 ration act, and in conformity with the requirements of this act, for any
 public work that has an estimated cost  of  not  less  than  10  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.  Provided, howev-
 er,  that  any  authorized  entity  charged with awarding a contract for
 public work in connection with property within the jurisdiction  of  the
 New  York  city  department of parks and recreation or the New York city
 housing authority is authorized to use the alternative  delivery  method
 referred  to as design-build contracts for any such public work that has
 an estimated cost of not less than  one  million  two  hundred  thousand
 dollars if such public work is otherwise in conformity with the require-
 ments  of  this act. Provided further that any authorized entity may use
 the alternative delivery method referred to  as  design-build  contracts
 for  any  public  work  that  has an estimated cost of not less than one
 million two hundred thousand dollars if such public work is otherwise in
 conformity with the requirements of this act and primarily consists  of:
 pedestrian  ramps  and similar infrastructure to improve access to side-
 walks in the city of New York for people with  disabilities;  renovation
 and construction of cultural institutions located on publicly owned real
 property  and  of  public libraries in the city of New York; or security
 infrastructure, including bollards, planters and other  physical  struc-
 tures, designed to protect life and property from acts of terror or mass
 violence.
   (a) A contractor selected by such an 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
 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  pursuant  to  article  15-A  of  the executive law, or certified
 pursuant to local law as minority- or women-owned business  enterprises,

 S. 6293--A                          4
 
 or,  where  the  New York city school construction authority acts as the
 authorized entity, certified pursuant to  section  1743  of  the  public
 authorities law; and (ii) small business concerns identified pursuant to
 subdivision  (b) of section 139-g of the state finance law. In addition,
 nothing in this section shall be deemed to supersede any  pre-qualifica-
 tion  guidelines  or  requirements  otherwise  authorized  by law for an
 authorized entity.
   (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 pursuant to article 15-A of the  executive  law  or  section
 1743  of  the public authorities 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 relative weight of each of such criteria. Such  crite-
 ria  shall  include  the  proposal's cost, the quality of the proposal's
 solution, the qualifications 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 deter-
 mined by the authorized entity. 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 confidential; that the material designated as  confi-
 dential  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 after registration of such  contract  or
 the  date  upon  which such contract may be implemented, if registration
 requirements do not apply.
   (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,

 S. 6293--A                          5
 
   (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  relating  to  the
 performance  of design and construction services by minority- and women-
 owned business enterprises pursuant to, as applicable, 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,
 section  1743  of the public authorities law, or, for projects or public
 works receiving federal aid, applicable federal requirements for  disad-
 vantaged  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  public  work
 undertaken  by  an  authorized  entity  pursuant  to  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.

 S. 6293--A                          6

   (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.
   (d)  Without  limiting  contractors'  obligations  under  design-build
 contracts to issue  their  own  initial  certifications  of  substantial
 completion and final completion, public employees of authorized entities
 shall  review and determine whether the work performed by contractors is
 acceptable and has been performed  in  accordance  with  the  applicable
 design-build  contracts, and if such public employees so determine, such
 public  employees  shall  accept  contractors'  substantial   or   final
 completion  of the public works as applicable. Performance by authorized
 entities of any review  described  in  this  subdivision  shall  not  be
 construed  to  modify  or  limit contractors' obligations to perform the
 work in strict accordance with the applicable design-build contracts  or
 the contractors' or any subcontractors' obligations or liabilities under
 any law.
   §  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.  The authority conferred by this act shall not impact or impair
 the application of section 1740 of the public authorities law concerning
 the use of outside design, drafting or inspection services, and shall be
 in addition to the authority conferred by any other law upon any author-
 ized entity, provided that any public work covered by the New York  city
 BQE  design-build act, the New York city housing authority modernization
 investment act or the New York city Rikers Island jail complex  replace-
 ment  act  shall  continue  to be governed by the provisions of such act
 while such provisions are in effect.
   § 13. A report shall be submitted no later  than  June  30,  2020  and
 annually  thereafter,  to  the  governor, the temporary president of the
 senate and the speaker of the assembly by the city of New York on behalf
 of its agencies, the New York city housing authority, the New York  city
 school  construction  authority, and the New York city health and hospi-
 tals corporation  containing  information  regarding  each  design-build
 contract  procured  pursuant  to  this  act. Such report shall include a
 description of each such design-build  contract,  information  regarding
 the  procurement  process  for each such design-build contract including
 the list of responding entities that demonstrated the general capability
 to perform the design-build contract pursuant to paragraph (1) of subdi-
 vision (a) of section four of this act, the total cost of  each  design-
 build  contract,  an explanation of the estimated savings resulting from
 the design-build method, and the participation rate of and total  dollar
 value  of  monies paid to minority- and women-owned business enterprises
 under such design-build contract.
   § 14. This act shall take effect immediately and shall expire  and  be
 deemed repealed three 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.