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.
NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A7136
SPONSOR: Pretlow 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repealed three years after such date, provided that, public works with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.
STATE OF NEW YORK
________________________________________________________________________
7136
2023-2024 Regular Sessions
IN ASSEMBLY
May 11, 2023
___________
Introduced by M. of A. PRETLOW -- read once and referred to the Commit-
tee on Local Governments
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:
1 Section 1. Short title. This act shall be known and may be cited as
2 the "county public works investment act".
3 § 2. For the purposes of this act:
4 (a) "Authorized entity" shall mean any county within the state having
5 a population of one million or more persons.
6 (b) "Best value" shall mean the basis for awarding contracts for
7 services to a proposer that optimizes quality, cost and efficiency,
8 price and performance criteria, which may include, but is not limited
9 to:
10 (1) The quality of the proposer's performance on previous projects;
11 (2) The timeliness of the proposer's performance on previous projects;
12 (3) The level of customer satisfaction with the proposer's performance
13 on previous projects;
14 (4) The proposer's record of performing previous projects on budget
15 and ability to minimize cost overruns;
16 (5) The proposer's ability to limit change orders;
17 (6) The proposer's ability to prepare appropriate project plans;
18 (7) The proposer's technical capacities;
19 (8) The individual qualifications of the proposer's key personnel;
20 (9) The proposer's ability to assess and manage risk and minimize risk
21 impact;
22 (10) The proposer's financial capability;
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD09588-01-3
A. 7136 2
1 (11) The proposer's ability to comply with applicable requirements,
2 including the provisions of articles 145, 147 and 148 of the education
3 law;
4 (12) The proposer's past record of compliance with federal, state and
5 local laws, rules, licensing requirements, where applicable, and execu-
6 tive orders, including but not limited to compliance with the labor law
7 and other applicable labor and prevailing wage laws, article 15-A of the
8 executive law, and any other applicable laws concerning minority- and
9 women-owned business enterprise participation;
10 (13) The proposer's record of complying with existing labor standards,
11 maintaining harmonious labor relations, and protecting the health and
12 safety of workers and payment of wages above any locally-defined living
13 wage; and
14 (14) A quantitative factor to be used in evaluation of bids or offers
15 for awarding of contracts for bidders or offerers that are certified as
16 minority- or women-owned business enterprises pursuant to article 15-A
17 of the executive law, and certified pursuant to local law as minority-
18 or women-owned business enterprises. Where an agency identifies a quan-
19 titative factor pursuant to this paragraph, the agency must specify that
20 businesses certified as minority- or women-owned business enterprises
21 pursuant to article 15-A of the executive law as well as those certified
22 as minority- or women-owned business enterprises or pursuant to section
23 1304 of the New York city charter are eligible to qualify for such
24 factor. Nothing in this paragraph shall be construed as a requirement
25 that such businesses be concurrently certified as minority- or women-
26 owned business enterprises under both article 15-A of the executive law
27 and section 1304 of the New York city charter to qualify for such quan-
28 titative factors.
29 Such basis shall reflect, wherever possible, objective and quantifi-
30 able analysis.
31 (c) "Cost plus" shall mean compensating a contractor for the cost to
32 complete a contract by reimbursing actual costs for labor, equipment and
33 materials plus an additional amount for overhead and profit.
34 (d) "Design-build contract" shall mean a contract for the design and
35 construction of a public work with a single entity, which may be a team
36 comprised of separate entities.
37 (e) "Project labor agreement" shall have the meaning set forth in
38 subdivision 1 of section 222 of the labor law. A project labor agreement
39 shall require participation in apprentice training programs in accord-
40 ance with paragraph (e) of subdivision 2 of such section.
41 § 3. Any contract for a public work undertaken pursuant to a project
42 labor agreement in accordance with section 222 of the labor law may be a
43 design-build contract in accordance with this act.
44 § 4. Notwithstanding any general, special or local law, rule or regu-
45 lation to the contrary, including but not limited to section 7210 of the
46 education law, article 5-A of the general municipal law and article 8 of
47 the public housing law, and in conformity with the requirements of this
48 act, for any public work that has an estimated cost of not less than 10
49 million dollars and is undertaken pursuant to a project labor agreement
50 in accordance with section 222 of the labor law, an authorized entity
51 charged with awarding a contract for public work may use the alternative
52 delivery method referred to as design-build contracts; provided that any
53 authorized entity may use the alternative delivery method referred to as
54 design-build contracts for any public work that has an estimated cost of
55 not less than one million two hundred thousand dollars if such public
56 work is otherwise in conformity with the requirements of this act and
A. 7136 3
1 primarily consists of: pedestrian ramps and similar infrastructure to
2 improve access to sidewalks for people with disabilities; renovation and
3 construction of cultural institutions located on publicly owned real
4 property and of public libraries; or security infrastructure, including
5 bollards, planters and other physical structures, designed to protect
6 life and property from acts of terror or mass violence.
7 (a) A contractor selected by such an authorized entity to enter into a
8 design-build contract shall be selected through a two-step method, as
9 follows:
10 (1) Step one. Generation of a list of responding entities that have
11 demonstrated the general capability to perform the design-build
12 contract. Such list shall consist of a specified number of responding
13 entities, as determined by an authorized entity, and shall be generated
14 based upon the authorized entity's review of responses to a publicly
15 advertised request for qualifications. The authorized entity's request
16 for qualifications shall include a general description of the public
17 work, the maximum number of responding entities to be included on the
18 list, the selection criteria to be used and the relative weight of each
19 criteria in generating the list. Such selection criteria shall include
20 the qualifications and experience of the design and construction team,
21 organization, demonstrated responsibility, ability of the team or of a
22 member or members of the team to comply with applicable requirements,
23 including the provisions of articles 145, 147 and 148 of the education
24 law, past record of compliance with the labor law, and such other quali-
25 fications the authorized entity deems appropriate, which may include but
26 are not limited to project understanding, financial capability and
27 record of past performance. The authorized entity shall evaluate and
28 rate all responding entities to the request for qualifications. Based
29 upon such ratings, the authorized entity shall list the responding enti-
30 ties that shall receive a request for proposals in accordance with para-
31 graph two of this subdivision. To the extent consistent with applicable
32 federal law, the authorized entity shall consider, when awarding any
33 contract pursuant to this section, the participation of (i) responding
34 entities that are certified as minority- or women-owned business enter-
35 prises pursuant to article 15-A of the executive law or certified pursu-
36 ant to local law as minority- or women-owned business enterprises; and
37 (ii) small business concerns identified pursuant to subdivision (b) of
38 section 139-g of the state finance law. In addition, nothing in this
39 section shall be deemed to supersede any pre-qualification guidelines or
40 requirements otherwise authorized by law for an authorized entity.
41 (2) Step two. Selection of the proposal which is the best value to the
42 authorized entity. The authorized entity shall issue a request for
43 proposals to the responding entities listed pursuant to paragraph one of
44 this subdivision. If such a responding entity consists of a team of
45 separate entities, the entities that comprise such a team must remain
46 unchanged from the responding entity as listed pursuant to paragraph one
47 of this subdivision unless otherwise approved by the authorized entity.
48 The request for proposals shall set forth the public work's scope of
49 work, and other requirements, as determined by the authorized entity,
50 which may include separate goals for work under the contract to be
51 performed by businesses certified as minority- or women-owned business
52 enterprises pursuant to article 15-A of the executive law or section
53 1743 of the public authorities law, or certified pursuant to local law
54 as minority- or women-owned business enterprises. The request for
55 proposals shall also specify the criteria to be used to evaluate the
56 responses and the relative weight of each of such criteria. Such crite-
A. 7136 4
1 ria shall include the proposal's cost, the quality of the proposal's
2 solution, the qualifications and experience of the proposer, and other
3 factors deemed pertinent by the authorized entity, which may include,
4 but shall not be limited to, the proposal's manner and schedule of
5 project implementation, the proposer's ability to complete the work in a
6 timely and satisfactory manner, maintenance costs of the completed
7 public work, maintenance of traffic approach, and community impact. Any
8 contract awarded pursuant to this act shall be awarded to a responsive
9 and responsible proposer, which, in consideration of these and other
10 specified criteria deemed pertinent, offers the best value, as deter-
11 mined by the authorized entity. The request for proposals shall include
12 a statement that proposers shall designate in writing those portions of
13 the proposal that contain trade secrets or other proprietary information
14 that are to remain confidential; that the material designated as confi-
15 dential shall be readily separable from the proposal. Nothing in this
16 subdivision shall be construed to prohibit the authorized entity from
17 negotiating final contract terms and conditions including cost. All
18 proposals submitted shall be scored according to the criteria listed in
19 the request for proposals and such final scores shall be published on
20 the authorized entity's website after registration of such contract or
21 the date upon which such contract may be implemented, if registration
22 requirements do not apply.
23 (b) An authorized entity awarding a design-build contract to a
24 contractor offering the best value may but shall not be required to use
25 the following types of contracts:
26 (1) A cost-plus not to exceed guaranteed maximum price form of
27 contract in which the authorized entity shall be entitled to monitor and
28 audit all costs. In establishing the schedule and process for determin-
29 ing a guaranteed maximum price, the contract between the authorized
30 entity and the contractor shall:
31 (i) Describe the scope of the work and the cost of performing such
32 work,
33 (ii) Include a detailed line item cost breakdown,
34 (iii) Include a list of all drawings, specifications and other infor-
35 mation on which the guaranteed maximum price is based,
36 (iv) Include the dates of substantial and final completion on which
37 the guaranteed maximum price is based, and
38 (v) Include a schedule of unit prices; or
39 (2) A lump sum contract in which the contractor agrees to accept a set
40 dollar amount for a contract which comprises a single bid without
41 providing a cost breakdown for all costs such as for equipment, labor,
42 materials, as well as such contractor's profit for completing all items
43 of work comprising the public work.
44 § 5. Any contract entered into pursuant to this act shall include a
45 clause requiring that any professional services regulated by articles
46 145, 147 and 148 of the education law shall be performed and stamped and
47 sealed, where appropriate, by a professional licensed in accordance with
48 the appropriate article.
49 § 6. Construction with respect to each contract entered into by an
50 authorized entity pursuant to this act shall be deemed a "public work"
51 to be performed in accordance with the provisions of article 8 of the
52 labor law, as well as subject to sections 200, 240, 241 and 242 of such
53 law and enforcement of prevailing wage requirements pursuant to applica-
54 ble law or, for projects or public works receiving federal aid, applica-
55 ble federal requirements for prevailing wage. Any contract entered into
56 pursuant to this act shall include a clause requiring the selected
A. 7136 5
1 design builder to obligate every tier of contractor working on the
2 public work to comply with the project labor agreement referenced in
3 section three of this act, and shall include project labor agreement
4 compliance monitoring and enforcement provisions consistent with the
5 applicable project labor agreement.
6 § 7. Each contract entered into by an authorized entity pursuant to
7 this act shall comply with the objectives and goals relating to the
8 performance of design and construction services by minority- and women-
9 owned business enterprises, or, for projects or public works receiving
10 federal aid, applicable federal requirements for disadvantaged business
11 enterprises or minority- and women-owned business enterprises.
12 § 8. Public works undertaken by an authorized entity pursuant to this
13 act shall be subject to the requirements of article 8 of the environ-
14 mental conservation law, and, where applicable, the requirements of the
15 National Environmental Policy Act.
16 § 9. (a) Notwithstanding any provision of law to the contrary, all
17 rights or benefits, including terms and conditions of employment, and
18 protection of civil service and collective bargaining status of all
19 employees of authorized entities solely in connection with public work
20 undertaken by an authorized entity pursuant to this act, shall be
21 preserved and protected.
22 (b) Nothing in this act shall result in the: (1) displacement of any
23 currently employed worker or loss of position (including partial
24 displacement such as a reduction in the hours of non-overtime work,
25 wages or employment benefits), or result in the impairment of existing
26 collective bargaining agreements; and (2) transfer of existing duties
27 and functions related to maintenance and operations currently performed
28 by existing employees of authorized entities to a contractor.
29 (c) Employees of authorized entities using design-build contracts
30 serving in positions in newly created titles shall be assigned to the
31 appropriate bargaining unit. Nothing contained in this act shall be
32 construed to affect (1) the existing rights of employees of such enti-
33 ties pursuant to an existing collective bargaining agreement, (2) the
34 existing representational relationships among employee organizations
35 representing employees of such entities, or (3) the bargaining relation-
36 ships between such entities and such employee organizations.
37 (d) Without limiting contractors' obligations under design-build
38 contracts to issue their own initial certifications of substantial
39 completion and final completion, public employees of authorized entities
40 shall review and determine whether the work performed by contractors is
41 acceptable and has been performed in accordance with the applicable
42 design-build contracts, and if such public employees so determine, such
43 public employees shall accept contractors' substantial or final
44 completion of the public works as applicable. Performance by authorized
45 entities of any review described in this subdivision shall not be
46 construed to modify or limit contractors' obligations to perform the
47 work in strict accordance with the applicable design-build contracts or
48 the contractors' or any subcontractors' obligations or liabilities under
49 any law.
50 § 10. The submission of a proposal or responses or the execution of a
51 design-build contract pursuant to this act shall not be construed to be
52 a violation of section 6512 of the education law.
53 § 11. Nothing contained in this act shall limit the right or obli-
54 gation of any authorized entity to comply with the provisions of any
55 existing contract or to award contracts as otherwise provided by law.
A. 7136 6
1 § 12. A report shall be submitted no later than June 30, 2024 and
2 annually thereafter, to the governor, the temporary president of the
3 senate and the speaker of the assembly by each authorized entity
4 containing information regarding each design-build contract procured by
5 such authorized entity pursuant to this act. Such report shall include a
6 description of each such design-build contract, information regarding
7 the procurement process for each such design-build contract including
8 the list of responding entities that demonstrated the general capability
9 to perform the design-build contract pursuant to paragraph (1) of subdi-
10 vision (a) of section four of this act, the total cost of each design-
11 build contract, an explanation of the estimated savings resulting from
12 the design-build method, and the participation rate of and total dollar
13 value of monies paid to minority- and women-owned business enterprises
14 under such design-build contract.
15 § 13. This act shall take effect immediately and shall expire and be
16 deemed repealed three years after such date, provided that, public works
17 with requests for qualifications issued prior to such repeal shall be
18 permitted to continue under this act notwithstanding such repeal.
