S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                  6428--A
 
                        2025-2026 Regular Sessions
 
                           I N  A S S E M B L Y
 
                               March 4, 2025
                                ___________
 
 Introduced  by  M. of A. SHIMSKY, LEVENBERG -- read once and referred to
   the Committee on  Local  Governments  --  committee  discharged,  bill
   amended,  ordered reprinted as amended and recommitted to said commit-
   tee
 
 AN ACT in relation to enacting the "county of Westchester  public  works
   investment  act"; and providing for the repeal of such provisions upon
   the 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 of Westchester public works investment act".
   § 2. For the purposes of this act, the following terms shall have  the
 following meanings:
   1.  (a)  "Authorized entity" shall mean the Westchester county depart-
 ment of public works and the Westchester county department of  transpor-
 tation.
   (b)  If  otherwise  applicable,  authorized projects undertaken by the
 authorized entity shall be subject to section 101 of the general munici-
 pal law; provided, however, that an authorized entity  may  fulfill  its
 obligations  under section 101 of the general municipal law by requiring
 the contractor to prepare separate  specifications  in  accordance  with
 section 101 of the general municipal law, as the case may be.
   2.  "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 the following:
   (a) a public building  known  as  the  "Westchester  County  Labs  and
 Research Building", located at 10 Dana Road in the hamlet of Valhalla in
 the town of Mount Pleasant, Westchester county, SBL No. 116.16-1-1 14;
   (b)  a  public  maintenance  facility known as the "Westchester County
 Department of Public Works Maintenance  Facility",  located  at  Hammond

  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD10223-02-5
              

 A. 6428--A                          2
 
 House Road behind 65 Hammond House Road in the hamlet of Valhalla in the
 town of Mount Pleasant, Westchester county, SBL No. 116.12-1-14;
   (c)  a  public  building  known  as  the "Westchester County Emergency
 Services Building", located at 4 Dana Road in the hamlet of Valhalla  in
 the town of Mount Pleasant, Westchester county, SBL No. 116.16-1-1;
   (d)  a  public building known as the "Westchester County Public Safety
 Building", located at 1 Saw Mill River Road in the hamlet  of  Hawthorne
 in the town of Mount Pleasant, Westchester county, SBL No.  106.18-1-2;
   3.  "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;
   (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.  Where the authorized entity identifies a  quanti-
 tative  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 enterprises  pursu-
 ant  to  local  law 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 enter-
 prises under article 15-A of the executive law to qualify for such quan-
 titative factors. Such basis shall reflect, wherever possible, objective
 and quantifiable analysis.
   4. "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.
 A. 6428--A                          3
 
   5.  "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.
   6.  "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. 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 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
 alternative delivery method referred to as a design-build  contract  for
 an authorized project in accordance with this act.
   §  4.  (a) A contractor selected by such an authorized entity to enter
 into a design-build contract shall be selected through a two-step  meth-
 od, 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 2 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 1 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  1
 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
 A. 6428--A                          4
 
 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 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.
   (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 of the education law.
   §  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-
 A. 6428--A                          5
 
 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, 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.
   §  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  works
 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, (2) transfer of  existing  duties  and
 functions  related  to maintenance and operations currently performed by
 existing employees of authorized entities to a contractor, or (3) trans-
 fer of future duties and functions ordinarily performed by employees  of
 the authorized entities to the contracting entity.
   (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.
 A. 6428--A                          6
 
   §  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, 2026 and
 annually thereafter, to the governor, the  temporary  president  of  the
 senate,  the speaker of the assembly, the county executive and the chair
 of the board of legislators for an authorized entity containing informa-
 tion regarding each design-build contract procured  by  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 subdivision (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  3  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.