S T A T E O F N E W Y O R K
________________________________________________________________________
8531--A
Cal. No. 1015
I N S E N A T E
March 9, 2022
___________
Introduced by Sen. GAUGHRAN -- read twice and ordered printed, and when
printed to be committed to the Committee on Local Government --
reported favorably from said committee and committed to the Committee
on Finance -- 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 in relation to establishing the "Wyandanch Health and Wellness
Center Design-Build Act"; 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 "Wyandanch
Health and Wellness Center Design-Build Act".
§ 2. For the purposes of this act:
(a) "Authorized entity" shall mean the Town of Babylon and the Town of
Babylon L.D. Corp. II.
(b) "Authorized project" shall mean, in conformity with the require-
ments of this act, any installation, construction, demolition, recon-
struction, excavation, rehabilitation, repair, and renovation in
connection with a health and recreational facility known as the "Wyan-
danch Health and Wellness Center" located in the hamlet of Wyandanch in
the town of Babylon at 20 Station Drive.
(c) "Best value" shall mean the basis for awarding contracts for
services to the bidder that optimizes quality, cost and efficiency,
price and performance criteria, which may include, but is not limited
to:
(1) The quality of the contractor's performance on previous projects;
(2) The timeliness of the contractor's performance on previous
projects;
(3) The level of customer satisfaction with the contractor's perform-
ance on previous projects;
(4) The contractor's record of performing previous projects on budget
and ability to minimize cost overruns;
(5) The contractor's ability to limit change orders;
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD14810-05-2
S. 8531--A 2
(6) The contractor's ability to prepare appropriate project plans;
(7) The contractor's technical capacities;
(8) The individual qualifications of the contractor's key personnel;
(9) The contractor's ability to assess and manage risk and minimize
risk impact;
(10) The contractor's financial capability;
(11) The contractor's ability to comply with applicable requirements,
including the provisions of articles 145, 147 and 148 of the education
law;
(12) The contractor's past record of compliance with federal, state
and local laws, rules, licensing requirements, where applicable, and
executive 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 contractor's record of complying with existing labor stand-
ards, 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 the authorized entity identi-
fies a quantitative factor pursuant to this paragraph, the authorized
entity 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 enter-
prises are eligible to qualify for such factor. Nothing in this para-
graph shall be construed as a requirement that such businesses be
concurrently certified as minority- or women-owned business enterprises
under article 15-A of the executive law to qualify for such quantitative
factors. Such basis shall reflect, wherever possible, objective and
quantifiable analysis.
(d) "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.
(e) "Design-build contract" shall mean a contract for the design and
construction of the authorized project with a single entity, which may
be a team comprised of separate entities.
(f) "Project labor agreement" shall have the meaning as described 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. 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, in conformity with the requirements of this act,
and only when a project labor agreement is performed in accordance with
section 222 of the labor law, an authorized entity may use the alterna-
tive delivery method referred to as a design-build contract for the
authorized project in accordance with this act.
§ 4. (a) A contractor selected by the 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
S. 8531--A 3
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;
and (ii) small business concerns identified pursuant to subdivision (b)
of section 139-g of the state finance law.
(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 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 criteria 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 contractor'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-
S. 8531--A 4
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.
(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 articles.
§ 6. Construction with respect to any 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
contractor to obligate every tier of contractor working on the public
work to comply with the project labor agreement referenced in section
four of this act, and shall include project labor agreement compliance
monitoring and enforcement provisions consistent with the applicable
project labor agreement.
§ 7. Any 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 and, for projects or
public works receiving federal aid, applicable federal requirements for
disadvantaged business enterprises or minority- and women-owned business
enterprises.
§ 8. Any authorized project undertaken by an authorized entity pursu-
ant to this act shall be subject to the requirements of article 8 of the
environmental conservation law, and, where applicable, the requirements
of the national environmental policy act.
S. 8531--A 5
§ 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
works 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 two years after such date; provided, however, that,
public works with requests for qualifications issued prior to such
repeal shall be permitted to continue under this act notwithstanding
such repeal.
