Requires qualification-based criteria for awarding certain contracts for services to an entity that submits a statement of qualifications in response to a request for qualifications when an authorized entity utilizes a one-step method.
STATE OF NEW YORK
________________________________________________________________________
10467
IN ASSEMBLY
May 26, 2022
___________
Introduced by COMMITTEE ON RULES -- (at request of M. of A. Braunstein)
-- read once and referred to the Committee on Cities
AN ACT to amend chapter 749 of the laws of 2019 authorizing, for certain
public works undertaken pursuant to project labor agreements, use of
the alternative delivery method known as design-build contracts, in
relation to requiring qualification-based criteria for awarding
certain contracts for services
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Section 2 of chapter 749 of the laws of 2019, authorizing,
2 for certain public works undertaken pursuant to project labor agree-
3 ments, use of the alternative delivery method known as design-build
4 contracts, is amended by adding a new subdivision (f) to read as
5 follows:
6 (f) "Qualifications-based" shall mean the basis for awarding a
7 contract for services to an entity that submits a statement of quali-
8 fications in response to a request for qualifications when an authorized
9 entity utilizes a one-step method.
10 § 2. Subdivision (a) of section 4 of chapter 749 of the laws of 2019,
11 authorizing, for certain public works undertaken pursuant to project
12 labor agreements, use of the alternative delivery method known as
13 design-build contracts, is amended to read as follows:
14 (a) A contractor selected by such an authorized entity to enter into a
15 design-build contract shall be selected through a one-step or two-step
16 method, as follows:
17 (1) Step one. Generation of a list of responding entities that have
18 demonstrated the general capability to perform the design-build
19 contract. Unless the authorized entity is utilizing a one-step method,
20 the authorized entity shall generate a list of responding entities that
21 have demonstrated the general capability to perform the design-build
22 contract. Such list shall consist of a specified number of responding
23 entities, as determined by an authorized entity, and shall be generated
24 based upon the authorized entity's review of responses to a publicly
25 advertised request for qualifications. The authorized entity's request
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD15884-03-2
A. 10467 2
1 for qualifications shall include a general description of the public
2 work, the maximum number of responding entities to be included on the
3 list, the selection criteria to be used and the relative weight of each
4 criteria in generating the list. Such selection criteria shall include
5 the qualifications and experience of the design and construction team,
6 organization, demonstrated responsibility, ability of the team or of a
7 member or members of the team to comply with applicable requirements,
8 including the provisions of articles 145, 147 and 148 of the education
9 law, past record of compliance with the labor law, and such other quali-
10 fications the authorized entity deems appropriate, which may include but
11 are not limited to project understanding, financial capability and
12 record of past performance. [The] Unless the authorized entity is
13 utilizing a one-step method, the authorized entity shall evaluate and
14 rate all responding entities to the request for qualifications. Based
15 upon such ratings, the authorized entity shall list the responding enti-
16 ties that shall receive a request for proposals in accordance with para-
17 graph two of this subdivision. If the authorized entity is utilizing a
18 one-step method, the authorized entity shall evaluate and rate all
19 statements of qualification submitted in response to the request for
20 qualifications and shall award the design-build contract to the best
21 qualified contractor. Notwithstanding any contrary provision of law, any
22 authorizing entity awarding a design-build contract to a contractor
23 determined to be the best qualified contractor in accordance with this
24 paragraph may elect either to enter into a single contract with two
25 phases or separate contracts for each of the two phases. To the extent
26 consistent with applicable federal law, the authorized entity shall
27 consider, when awarding any contract pursuant to this section, the
28 participation of (i) responding entities that are certified as minority-
29 or women-owned business enterprises pursuant to article 15-A of the
30 executive law, or certified pursuant to local law as minority- or
31 women-owned business enterprises, or, where the New York city school
32 construction authority acts as the authorized entity, certified pursuant
33 to section 1743 of the public authorities law; and (ii) small business
34 concerns identified pursuant to subdivision (b) of section 139-g of the
35 state finance law. In addition, nothing in this section shall be deemed
36 to supersede any pre-qualification guidelines or requirements otherwise
37 authorized by law for an authorized entity.
38 (2) Step two. Selection of the proposal which is the best value to the
39 authorized entity. The authorized entity shall issue a request for
40 proposals to the responding entities listed pursuant to paragraph one of
41 this subdivision. If such a responding entity consists of a team of
42 separate entities, the entities that comprise such a team must remain
43 unchanged from the responding entity as listed pursuant to paragraph one
44 of this subdivision unless otherwise approved by the authorized entity.
45 The request for proposals shall set forth the public work's scope of
46 work, and other requirements, as determined by the authorized entity,
47 which may include separate goals for work under the contract to be
48 performed by businesses certified as minority- or women-owned business
49 enterprises pursuant to article 15-A of the executive law or section
50 1743 of the public authorities law, or certified pursuant to local law
51 as minority- or women-owned business enterprises. The request for
52 proposals shall also specify the criteria to be used to evaluate the
53 responses and the relative weight of each of such criteria. Such crite-
54 ria shall include the proposal's cost, the quality of the proposal's
55 solution, the qualifications and experience of the proposer, and other
56 factors deemed pertinent by the authorized entity, which may include,
A. 10467 3
1 but shall not be limited to, the proposal's manner and schedule of
2 project implementation, the proposer's ability to complete the work in a
3 timely and satisfactory manner, maintenance costs of the completed
4 public work, maintenance of traffic approach, and community impact.
5 (3) Any contract awarded pursuant to this act shall be awarded to a
6 responsive and responsible proposer, which, in consideration of these
7 and other specified criteria deemed pertinent, offers the best value, or
8 in the case of a contract awarded utilizing a one-step method, is the
9 best-qualified contractor, as determined by the authorized entity in
10 accordance with this section. The request for proposals, or the request
11 for qualifications if the contract is awarded utilizing a one-step meth-
12 od, shall include a statement that proposers shall designate in writing
13 those portions of the proposal that contain trade secrets or other
14 proprietary information that are to remain confidential; that the mate-
15 rial designated as confidential shall be readily separable from the
16 proposal. Nothing in this subdivision shall be construed to prohibit the
17 authorized entity from negotiating final contract terms and conditions
18 including cost. All proposals or responses submitted shall be scored
19 according to the criteria listed in the request for proposals, or the
20 request for qualifications if the contract is awarded utilizing a one-
21 step method, and such final scores shall be published on the authorized
22 entity's website after registration of such contract or the date upon
23 which such contract may be implemented, if registration requirements do
24 not apply.
25 § 3. This act shall take effect immediately; provided, however that
26 the amendments to chapter 749 of the laws of 2019 made by sections one
27 and two of this act shall not affect the repeal of such chapter and
28 shall be deemed repealed therewith.