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.