NY State Senate Bill 2023-S8174

Senate Bill S8174

2023-2024 Legislative Session

Authorizes counties with a population of one million or more persons to use the alternative delivery method known as design-build contracts

download bill text pdf

Current Bill Status - In Senate Committee Procurement And Contracts Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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Actions

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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jan 11, 2024	referred to procurement and contracts

2023-S8174 (ACTIVE) - Details

See Assembly Version of this Bill:: A7136
Current Committee:: Senate Procurement And Contracts
Law Section:: State Finance

2023-S8174 (ACTIVE) - Summary

Authorizes counties with a population of one million or more persons to undertake certain public works pursuant to project labor agreements; authorizes the use of the alternative delivery method known as design-build contracts; provides for the repeal of such provisions upon expiration thereof.

2023-S8174 (ACTIVE) - Sponsor Memo

                                 
BILL NUMBER: S8174

SPONSOR: BAILEY
 
TITLE OF BILL:

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

 
PURPOSE OR GENERAL IDEA OF BILL:

Authorizes counties with a population of one million or more persons to
use the alternative delivery method known as design-build contracts

 
JUSTIFICATION:

In 2019, seven New York City agencies received authorization to utilize
Design-Build project delivery (as opposed to Design-Bid-Build) through
the Public Works Investment Act (PWIA).  Design-Build consolidates
projects into one point of responsibility on the basis, of which, design
and construction team can deliver the best project at the best value.

Westchester County believes this novel strategy would allow it to save
money and deliver an enhanced level of quality on forthcoming projects.

Under the current Design-Bid-Build model,. the 'Design' and 'Build'
components of a project are barred from collaboration, slowing project
schedules, increasing cost, and resulting in lower quality in final
completed projects. New York City is required to provide annual reports
on design-build projects, including short lists and proposers, cost
savings, time savings and MWBE utilization within the project. Westches-
ter County would be willing to provide this information as well. We
intend to work closely with organized labor representatives in imple-
menting this program.

In order to save costs for taxpayers and implement a more logistically
robust project delivery system, Westchester requests authorization from
New York State to utilize Design-Build.

 
PRIOR LEGISLATIVE HISTORY:

2023 New bill

 
FISCAL IMPLICATIONS:

None.

 
EFFECTIVE DATE:
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 permit-
ted to continue under this act notwithstanding such repeal.

2023-S8174 (ACTIVE) - Bill Text download pdf

                             
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   8174
 
                             I N  S E N A T E
 
                             January 11, 2024
                                ___________
 
 Introduced  by  Sen.  BAILEY -- read twice and ordered printed, and when
   printed to be committed to the Committee on Procurement and Contracts
 
 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 "county public works investment act".
   § 2. For the purposes of this act:
   (a) "Authorized entity" shall mean any county within the state  having
 a population of one million or more persons.
   (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.
                                                            LBD09588-01-3

 S. 8174                             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 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.
   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 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 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 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 sidewalks for people with disabilities; renovation and
 construction of cultural institutions located  on  publicly  owned  real
 S. 8174                             3
 
 property  and of public libraries; or security infrastructure, including
 bollards, planters and other physical structures,  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 pursu-
 ant  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. In addition, nothing in this
 section shall be deemed to supersede any pre-qualification 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,
 S. 8174                             4
 
 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,
   (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
 S. 8174                             5
 
 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, 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  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.
   (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. A report shall be submitted no later  than  June  30,  2024  and
 annually  thereafter,  to  the  governor, the temporary president of the
 senate and the  speaker  of  the  assembly  by  each  authorized  entity
 containing  information regarding each design-build contract procured by
 S. 8174                             6
 
 such authorized entity 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.
   §  13.  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.

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