Establishes the "county of Westchester public works investment act" which allows the Westchester county department of public works and the Westchester county department of transportation to utilize design-build project delivery.
STATE OF NEW YORK
________________________________________________________________________
6428--A
2025-2026 Regular Sessions
IN ASSEMBLY
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:
1 Section 1. Short title. This act shall be known and may be cited as
2 the "county of Westchester public works investment act".
3 § 2. For the purposes of this act, the following terms shall have the
4 following meanings:
5 1. (a) "Authorized entity" shall mean the Westchester county depart-
6 ment of public works and the Westchester county department of transpor-
7 tation.
8 (b) If otherwise applicable, authorized projects undertaken by the
9 authorized entity shall be subject to section 101 of the general munici-
10 pal law; provided, however, that an authorized entity may fulfill its
11 obligations under section 101 of the general municipal law by requiring
12 the contractor to prepare separate specifications in accordance with
13 section 101 of the general municipal law, as the case may be.
14 2. "Authorized project" shall mean, in conformity with the require-
15 ments of this act, any installation, construction, demolition, recon-
16 struction, excavation, rehabilitation, repair, and renovation in
17 connection with the following:
18 (a) a public building known as the "Westchester County Labs and
19 Research Building", located at 10 Dana Road in the hamlet of Valhalla in
20 the town of Mount Pleasant, Westchester county, SBL No. 116.16-1-1 14;
21 (b) a public maintenance facility known as the "Westchester County
22 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
1 House Road behind 65 Hammond House Road in the hamlet of Valhalla in the
2 town of Mount Pleasant, Westchester county, SBL No. 116.12-1-14;
3 (c) a public building known as the "Westchester County Emergency
4 Services Building", located at 4 Dana Road in the hamlet of Valhalla in
5 the town of Mount Pleasant, Westchester county, SBL No. 116.16-1-1;
6 (d) a public building known as the "Westchester County Public Safety
7 Building", located at 1 Saw Mill River Road in the hamlet of Hawthorne
8 in the town of Mount Pleasant, Westchester county, SBL No. 106.18-1-2;
9 3. "Best value" shall mean the basis for awarding contracts for
10 services to a proposer that optimizes quality, cost and efficiency,
11 price and performance criteria, which may include, but is not limited
12 to:
13 (1) The quality of the proposer's performance on previous projects;
14 (2) The timeliness of the proposer's performance on previous projects;
15 (3) The level of customer satisfaction with the proposer's performance
16 on previous projects;
17 (4) The proposer's record of performing previous projects on budget
18 and ability to minimize cost overruns;
19 (5) The proposer's ability to limit change orders;
20 (6) The proposer's ability to prepare appropriate project plans;
21 (7) The proposer's technical capacities;
22 (8) The individual qualifications of the proposer's key personnel;
23 (9) The proposer's ability to assess and manage risk and minimize risk
24 impact;
25 (10) The proposer's financial capability;
26 (11) The proposer's ability to comply with applicable requirements,
27 including the provisions of articles 145, 147 and 148 of the education
28 law;
29 (12) The proposer's past record of compliance with federal, state and
30 local laws, rules, licensing requirements, where applicable, and execu-
31 tive orders, including but not limited to compliance with the labor law
32 and other applicable labor and prevailing wage laws, article 15-A of the
33 executive law, and any other applicable laws concerning minority- and
34 women-owned business enterprise participation;
35 (13) The proposer's record of complying with existing labor standards,
36 maintaining harmonious labor relations, and protecting the health and
37 safety of workers and payment of wages above any locally-defined living
38 wage; and
39 (14) A quantitative factor to be used in evaluation of bids or offers
40 for awarding of contracts for bidders or offerers that are certified as
41 minority- or women-owned business enterprises pursuant to article 15-A
42 of the executive law. Where the authorized entity identifies a quanti-
43 tative factor pursuant to this paragraph, the authorized entity must
44 specify that businesses certified as minority- or women-owned business
45 enterprises pursuant to article 15-A of the executive law, as well as
46 those certified as minority- or women-owned business enterprises pursu-
47 ant to local law are eligible to qualify for such factor. Nothing in
48 this paragraph shall be construed as a requirement that such businesses
49 be concurrently certified as minority- or women-owned business enter-
50 prises under article 15-A of the executive law to qualify for such quan-
51 titative factors. Such basis shall reflect, wherever possible, objective
52 and quantifiable analysis.
53 4. "Cost plus" shall mean compensating a contractor for the cost to
54 complete a contract by reimbursing actual costs for labor, equipment and
55 materials plus an additional amount for overhead and profit.
A. 6428--A 3
1 5. "Design-build contract" shall mean a contract for the design and
2 construction of a public work with a single entity, which may be a team
3 comprised of separate entities.
4 6. "Project labor agreement" shall have the meaning set forth in
5 subdivision 1 of section 222 of the labor law. A project labor agreement
6 shall require participation in apprentice training programs in accord-
7 ance with paragraph (e) of subdivision 2 of such section.
8 § 3. Notwithstanding any general, special or local law, rule or regu-
9 lation to the contrary, including but not limited to article 5-A of the
10 general municipal law, and in conformity with the requirements of this
11 act, and only when a project labor agreement is performed in accordance
12 with section 222 of the labor law, an authorized entity may use the
13 alternative delivery method referred to as a design-build contract for
14 an authorized project in accordance with this act.
15 § 4. (a) A contractor selected by such an authorized entity to enter
16 into a design-build contract shall be selected through a two-step meth-
17 od, as follows:
18 (1) Step one. Generation of a list of responding entities that have
19 demonstrated the general capability to perform the design-build
20 contract. Such list shall consist of a specified number of responding
21 entities, as determined by an authorized entity, and shall be generated
22 based upon the authorized entity's review of responses to a publicly
23 advertised request for qualifications. The authorized entity's request
24 for qualifications shall include a general description of the public
25 work, the maximum number of responding entities to be included on the
26 list, the selection criteria to be used and the relative weight of each
27 criteria in generating the list. Such selection criteria shall include
28 the qualifications and experience of the design and construction team,
29 organization, demonstrated responsibility, ability of the team or of a
30 member or members of the team to comply with applicable requirements,
31 including the provisions of articles 145, 147 and 148 of the education
32 law, past record of compliance with the labor law, and such other quali-
33 fications the authorized entity deems appropriate, which may include but
34 are not limited to project understanding, financial capability and
35 record of past performance. The authorized entity shall evaluate and
36 rate all responding entities to the request for qualifications. Based
37 upon such ratings, the authorized entity shall list the responding enti-
38 ties that shall receive a request for proposals in accordance with para-
39 graph 2 of this subdivision. To the extent consistent with applicable
40 federal law, the authorized entity shall consider, when awarding any
41 contract pursuant to this section, the participation of: (i) responding
42 entities that are certified as minority- or women-owned business enter-
43 prises pursuant to article 15-A of the executive law, or certified
44 pursuant to local law as minority- or women-owned business enterprises;
45 and (ii) small business concerns identified pursuant to subdivision (b)
46 of section 139-g of the state finance law.
47 (2) Step two. Selection of the proposal which is the best value to the
48 authorized entity. The authorized entity shall issue a request for
49 proposals to the responding entities listed pursuant to paragraph 1 of
50 this subdivision. If such a responding entity consists of a team of
51 separate entities, the entities that comprise such a team must remain
52 unchanged from the responding entity as listed pursuant to paragraph 1
53 of this subdivision unless otherwise approved by the authorized entity.
54 The request for proposals shall set forth the public work's scope of
55 work, and other requirements, as determined by the authorized entity,
56 which may include separate goals for work under the contract to be
A. 6428--A 4
1 performed by businesses certified as minority- or women-owned business
2 enterprises pursuant to article 15-A of the executive law, or certified
3 pursuant to local law as minority- or women-owned business enterprises.
4 The request for proposals shall also specify the criteria to be used to
5 evaluate the responses and the relative weight of each of such criteria.
6 Such criteria shall include the proposal's cost, the quality of the
7 proposal's solution, the qualifications and experience of the proposer,
8 and other factors deemed pertinent by the authorized entity, which may
9 include, but shall not be limited to, the proposal's manner and schedule
10 of project implementation, the proposer's ability to complete the work
11 in a timely and satisfactory manner, maintenance costs of the completed
12 public work, maintenance of traffic approach, and community impact. Any
13 contract awarded pursuant to this act shall be awarded to a responsive
14 and responsible proposer, which, in consideration of these and other
15 specified criteria deemed pertinent, offers the best value, as deter-
16 mined by the authorized entity. The request for proposals shall include
17 a statement that proposers shall designate in writing those portions of
18 the proposal that contain trade secrets or other proprietary information
19 that are to remain confidential; that the material designated as confi-
20 dential shall be readily separable from the proposal. Nothing in this
21 subdivision shall be construed to prohibit the authorized entity from
22 negotiating final contract terms and conditions including cost. All
23 proposals submitted shall be scored according to the criteria listed in
24 the request for proposals and such final scores shall be published on
25 the authorized entity's website.
26 (b) An authorized entity awarding a design-build contract to a
27 contractor offering the best value may but shall not be required to use
28 the following types of contracts:
29 (1) A cost-plus not to exceed guaranteed maximum price form of
30 contract in which the authorized entity shall be entitled to monitor and
31 audit all costs. In establishing the schedule and process for determin-
32 ing a guaranteed maximum price, the contract between the authorized
33 entity and the contractor shall:
34 (i) Describe the scope of the work and the cost of performing such
35 work,
36 (ii) Include a detailed line item cost breakdown,
37 (iii) Include a list of all drawings, specifications and other infor-
38 mation on which the guaranteed maximum price is based,
39 (iv) Include the dates of substantial and final completion on which
40 the guaranteed maximum price is based, and
41 (v) Include a schedule of unit prices; or
42 (2) A lump sum contract in which the contractor agrees to accept a set
43 dollar amount for a contract which comprises a single bid without
44 providing a cost breakdown for all costs such as for equipment, labor,
45 materials, as well as such contractor's profit for completing all items
46 of work comprising the public work.
47 § 5. Any contract entered into pursuant to this act shall include a
48 clause requiring that any professional services regulated by articles
49 145, 147 and 148 of the education law shall be performed and stamped and
50 sealed, where appropriate, by a professional licensed in accordance with
51 the appropriate articles of the education law.
52 § 6. Construction with respect to each contract entered into by an
53 authorized entity pursuant to this act shall be deemed a "public work"
54 to be performed in accordance with the provisions of article 8 of the
55 labor law, as well as subject to sections 200, 240, 241 and 242 of such
56 law and enforcement of prevailing wage requirements pursuant to applica-
A. 6428--A 5
1 ble law or, for projects or public works receiving federal aid, applica-
2 ble federal requirements for prevailing wage. Any contract entered into
3 pursuant to this act shall include a clause requiring the selected
4 design builder to obligate every tier of contractor working on the
5 public work to comply with the project labor agreement referenced in
6 section three of this act, and shall include project labor agreement
7 compliance monitoring and enforcement provisions consistent with the
8 applicable project labor agreement.
9 § 7. Each contract entered into by an authorized entity pursuant to
10 this act shall comply with the objectives and goals with regard to
11 minority- and women-owned business enterprises, and, for projects or
12 public works receiving federal aid, applicable federal requirements for
13 disadvantaged business enterprises or minority- and women-owned business
14 enterprises.
15 § 8. Any authorized project undertaken by an authorized entity pursu-
16 ant to this act shall be subject to the requirements of article 8 of the
17 environmental conservation law, and, where applicable, the requirements
18 of the National Environmental Policy Act.
19 § 9. (a) Notwithstanding any provision of law to the contrary, all
20 rights or benefits, including terms and conditions of employment, and
21 protection of civil service and collective bargaining status of all
22 employees of authorized entities solely in connection with public works
23 undertaken by an authorized entity pursuant to this act, shall be
24 preserved and protected.
25 (b) Nothing in this act shall result in the: (1) displacement of any
26 currently employed worker or loss of position, including partial
27 displacement such as a reduction in the hours of non-overtime work,
28 wages or employment benefits, or result in the impairment of existing
29 collective bargaining agreements, (2) transfer of existing duties and
30 functions related to maintenance and operations currently performed by
31 existing employees of authorized entities to a contractor, or (3) trans-
32 fer of future duties and functions ordinarily performed by employees of
33 the authorized entities to the contracting entity.
34 (c) Employees of authorized entities using design-build contracts
35 serving in positions in newly created titles shall be assigned to the
36 appropriate bargaining unit. Nothing contained in this act shall be
37 construed to affect (1) the existing rights of employees of such enti-
38 ties pursuant to an existing collective bargaining agreement, (2) the
39 existing representational relationships among employee organizations
40 representing employees of such entities, or (3) the bargaining relation-
41 ships between such entities and such employee organizations.
42 (d) Without limiting contractors' obligations under design-build
43 contracts to issue their own initial certifications of substantial
44 completion and final completion, public employees of authorized entities
45 shall review and determine whether the work performed by contractors is
46 acceptable and has been performed in accordance with the applicable
47 design-build contracts, and if such public employees so determine, such
48 public employees shall accept contractors' substantial or final
49 completion of the public works as applicable. Performance by authorized
50 entities of any review described in this subdivision shall not be
51 construed to modify or limit contractors' obligations to perform the
52 work in strict accordance with the applicable design-build contracts or
53 the contractors' or any subcontractors' obligations or liabilities under
54 any law.
A. 6428--A 6
1 § 10. The submission of a proposal or responses or the execution of a
2 design-build contract pursuant to this act shall not be construed to be
3 a violation of section 6512 of the education law.
4 § 11. Nothing contained in this act shall limit the right or obli-
5 gation of any authorized entity to comply with the provisions of any
6 existing contract or to award contracts as otherwise provided by law.
7 § 12. A report shall be submitted no later than June 30, 2026 and
8 annually thereafter, to the governor, the temporary president of the
9 senate, the speaker of the assembly, the county executive and the chair
10 of the board of legislators for an authorized entity containing informa-
11 tion regarding each design-build contract procured by such authorized
12 entity pursuant to this act. Such report shall include a description of
13 each such design-build contract, information regarding the procurement
14 process for each such design-build contract including the list of
15 responding entities that demonstrated the general capability to perform
16 the design-build contract pursuant to paragraph 1 of subdivision (a) of
17 section four of this act, the total cost of each design-build contract,
18 an explanation of the estimated savings resulting from the design-build
19 method, and the participation rate of and total dollar value of monies
20 paid to minority- and women-owned business enterprises under such
21 design-build contract.
22 § 13. This act shall take effect immediately and shall expire and be
23 deemed repealed 3 years after such date, provided that, public works
24 with requests for qualifications issued prior to such repeal shall be
25 permitted to continue under this act notwithstanding such repeal.
