Enacts the "transformational infrastructure and revitalization project act"; defines terms; requires a two step method for any entity selected by the authorized entity to enter into a design-build contract for such project.
STATE OF NEW YORK
________________________________________________________________________
7698
IN SENATE
February 9, 2018
___________
Introduced by Sen. GOLDEN -- read twice and ordered printed, and when
printed to be committed to the Committee on Transportation
AN ACT in relation to enacting the "transformational infrastructure and
revitalization project act"; 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. This act shall be known and may be cited as the "transfor-
2 mational infrastructure and revitalization project act".
3 § 2. Definitions. For the purposes of this act, the following terms
4 shall have the following meanings:
5 (a) "Public work" shall mean the Brooklyn-Queens Expressway, Atlantic
6 Avenue to Sands Street.
7 (b) "Authorized entity" shall mean the New York city department of
8 design and construction, and the New York city department of transporta-
9 tion.
10 (c) "Best value" shall mean the basis for awarding contracts for
11 services to a proposer that optimizes quality, cost and efficiency,
12 price and performance criteria, which may include, but is not limited
13 to:
14 (1) The quality of the proposer's performance on previous projects;
15 (2) The timeliness of the proposer's performance on previous projects;
16 (3) The level of customer satisfaction with the proposer's performance
17 on previous projects;
18 (4) The proposer's record of performing previous projects on budget
19 and ability to minimize cost overruns;
20 (5) The proposer's ability to limit change orders;
21 (6) The proposer's ability to prepare appropriate project plans;
22 (7) The proposer's technical capacities;
23 (8) The individual qualifications of the proposer's key personnel;
24 (9) The proposer's ability to assess and manage risk and minimize risk
25 impact;
26 (10) The proposer's financial capability;
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD14148-01-8
S. 7698 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 as defined in subdivisions
17 1, 7, 15 and 20 of section 310 of the executive law, or certified pursu-
18 ant to local law as minority- or women-owned business enterprises.
19 Such basis shall reflect, wherever possible, objective and quantifi-
20 able analysis.
21 (d) "Cost plus" shall mean compensating a contractor for the cost to
22 complete a contract by reimbursing actual costs for labor, equipment and
23 materials plus an additional amount for overhead and profit.
24 (e) "Design-build contract" shall mean a contract for the design and
25 construction of a public work with a single entity, which may be a team
26 comprised of separate entities.
27 (f) "Project labor agreement" shall have the meaning set forth in
28 subdivision 1 of section 222 of the labor law. A project labor agreement
29 shall require participation in apprentice training programs in accord-
30 ance with paragraph (e) of subdivision 2 of such section.
31 § 3. Any contract for a public work undertaken pursuant to a project
32 labor agreement in accordance with section 222 of the labor law may be a
33 design-build contract in accordance with this act.
34 § 4. Notwithstanding any general, special or local law, rule or regu-
35 lation to the contrary, including but not limited to article 5-A of the
36 general municipal law, and in conformity with the requirements of this
37 act, for any public work that has an estimated total cost of not less
38 than ten million dollars and is undertaken pursuant to a project labor
39 agreement in accordance with section 222 of the labor law, an authorized
40 entity charged with awarding a contract for public work may use the
41 alternative delivery method referred to as design-build contracts.
42 (a) A contractor selected by such authorized entity to enter into a
43 design-build contract shall be selected through a two-step method, as
44 follows:
45 (1) Step one. Generation of a list of responding entities that have
46 demonstrated the general capability to perform the design-build
47 contract. Such list shall consist of a specified number of responding
48 entities, as determined by an authorized entity, and shall be generated
49 based upon the authorized entity's review of responses to a publicly
50 advertised request for qualifications. The authorized entity's request
51 for qualifications shall include a general description of the public
52 work, the maximum number of responding entities to be included on the
53 list, the selection criteria to be used and the relative weight of each
54 criteria in generating the list. Such selection criteria shall include
55 the qualifications and experience of the design and construction team,
56 organization, demonstrated responsibility, ability of the team or of a
S. 7698 3
1 member or members of the team to comply with applicable requirements,
2 including the provisions of articles 145, 147 and 148 of the education
3 law, past record of compliance with the labor law, and such other quali-
4 fications the authorized entity deems appropriate, which may include but
5 are not limited to project understanding, financial capability and
6 record of past performance. The authorized entity shall evaluate and
7 rate all responding entities to the request for qualifications. Based
8 upon such ratings, the authorized entity shall list the responding enti-
9 ties that shall receive a request for proposals in accordance with para-
10 graph two of this subdivision. To the extent consistent with applicable
11 federal law, the authorized entity shall consider, when awarding any
12 contract pursuant to this section, the participation of (i) responding
13 entities that are certified as minority- or women-owned business enter-
14 prises as defined in subdivisions 1, 7, 15 and 20 of section 310 of the
15 executive law, or certified pursuant to local law as minority- or
16 women-owned business enterprises; and (ii) small business concerns iden-
17 tified pursuant to subdivision (b) of section 139-g of the state finance
18 law; and
19 (2) Step two. Selection of the proposal which is the best value to the
20 authorized entity. The authorized entity shall issue a request for
21 proposals to the responding entities listed pursuant to paragraph one of
22 this subdivision. If such a responding entity consists of a team of
23 separate entities, the entities that comprise such a team must remain
24 unchanged from the responding entity as listed pursuant to paragraph one
25 of this subdivision unless otherwise approved by the authorized entity.
26 The request for proposals shall set forth the public work's scope of
27 work, and other requirements, as determined by the authorized entity,
28 which may include separate goals for work under the contract to be
29 performed by businesses certified as minority- or women-owned business
30 enterprises as defined in subdivisions 1, 7, 15 and 20 of section 310 of
31 the executive law, or certified pursuant to local law as minority- or
32 women-owned business enterprises. The request for proposals shall also
33 specify the criteria to be used to evaluate the responses and the rela-
34 tive weight of each of such criteria. Such criteria shall include the
35 proposal's cost, the quality of the proposal's solution, the qualifica-
36 tions and experience of the proposer, and other factors deemed pertinent
37 by the authorized entity, which may include, but shall not be limited
38 to, the proposal's manner and schedule of project implementation, the
39 proposer's ability to complete the work in a timely and satisfactory
40 manner, maintenance costs of the completed public work, maintenance of
41 traffic approach, and community impact. Any contract awarded pursuant to
42 this act shall be awarded to a responsive and responsible proposer,
43 which, in consideration of these and other specified criteria deemed
44 pertinent, offers the best value, as determined by the authorized enti-
45 ty. The request for proposals shall include a statement that proposers
46 shall designate in writing those portions of the proposal that contain
47 trade secrets or other proprietary information that are to remain confi-
48 dential; that the material designated as confidential shall be readily
49 separable from the proposal. Nothing in this subdivision shall be
50 construed to prohibit the authorized entity from negotiating final
51 contract terms and conditions including cost. All proposals submitted
52 shall be scored according to the criteria listed in the request for
53 proposals and such final scores shall be published on the authorized
54 entity's website.
S. 7698 4
1 (b) An authorized entity awarding a design-build contract to a
2 contractor offering the best value may but shall not be required to use
3 the following types of contracts:
4 (1) A cost-plus not to exceed guaranteed maximum price form of
5 contract in which the authorized entity shall be entitled to monitor and
6 audit all costs. In establishing the schedule and process for determin-
7 ing a guaranteed maximum price, the contract between the authorized
8 entity and the contractor shall:
9 (i) Describe the scope of the work and the cost of performing such
10 work,
11 (ii) Include a detailed line item cost breakdown,
12 (iii) Include a list of all drawings, specifications and other infor-
13 mation on which the guaranteed maximum price is based,
14 (iv) Include the dates of substantial and final completion on which
15 the guaranteed maximum price is based, and
16 (v) Include a schedule of unit prices; or
17 (2) A lump sum contract in which the contractor agrees to accept a set
18 dollar amount for a contract which comprises a single bid without
19 providing a cost breakdown for all costs such as for equipment, labor,
20 materials, as well as such contractor's profit for completing all items
21 of work comprising the public work.
22 § 5. Any contract entered into pursuant to this act shall include a
23 clause requiring that any professional services regulated by articles
24 145, 147 and 148 of the education law shall be performed and stamped and
25 sealed, where appropriate, by a professional licensed in accordance with
26 the appropriate article.
27 § 6. Construction with respect to each contract entered into by an
28 authorized entity pursuant to this act shall be deemed a "public work"
29 to be performed in accordance with the provisions of article 8 of the
30 labor law, as well as subject to sections 200, 240, 241 and 242 of such
31 law and enforcement of prevailing wage requirements pursuant to applica-
32 ble law or, for projects or public works receiving federal aid, applica-
33 ble federal requirements for prevailing wage. Any contract entered into
34 pursuant to this act shall include a clause requiring the selected
35 design builder to obligate every tier of contractor working on the
36 public work to comply with the project labor agreement referenced in
37 section three of this act, and shall include project labor agreement
38 compliance monitoring and enforcement provisions consistent with the
39 applicable project labor agreement.
40 § 7. Each contract entered into by an authorized entity pursuant to
41 this act shall comply with the objectives and goals with regard to
42 minority- and women-owned business enterprises pursuant to, as applica-
43 ble, section 6-129 of the administrative code of the city of New York
44 or, for projects or public works receiving federal aid, applicable
45 federal requirements for disadvantaged business enterprises or minority-
46 and women-owned business enterprises.
47 § 8. Public works undertaken by an authorized entity pursuant to this
48 act shall be subject to the requirements of article 8 of the environ-
49 mental conservation law, and, where applicable, the requirements of the
50 National Environmental Policy Act.
51 § 9. (a) Notwithstanding any provision of law to the contrary, all
52 rights or benefits, including terms and conditions of employment, and
53 protection of civil service and collective bargaining status of all
54 employees of authorized entities solely in connection with the public
55 works identified in subdivision (a) of section two of this act, shall be
56 preserved and protected.
S. 7698 5
1 (b) Nothing in this act shall result in the: (1) displacement of any
2 currently employed worker or loss of position (including partial
3 displacement such as a reduction in the hours of non-overtime work,
4 wages or employment benefits), or result in the impairment of existing
5 collective bargaining agreements; and (2) transfer of existing duties
6 and functions related to maintenance and operations currently performed
7 by existing employees of authorized entities to a contractor.
8 (c) Employees of authorized entities using design-build contracts
9 serving in positions in newly created titles shall be assigned to the
10 appropriate bargaining unit. Nothing contained in this act shall be
11 construed to affect (1) the existing rights of employees of such enti-
12 ties pursuant to an existing collective bargaining agreement, (2) the
13 existing representational relationships among employee organizations
14 representing employees of such entities, or (3) the bargaining relation-
15 ships between such entities and such employee organizations.
16 § 10. The submission of a proposal or responses or the execution of a
17 design-build contract pursuant to this act shall not be construed to be
18 a violation of section 6512 of the education law.
19 § 11. Nothing contained in this act shall limit the right or obli-
20 gation of any authorized entity to comply with the provisions of any
21 existing contract or to award contracts as otherwise provided by law.
22 § 12. This act shall take effect immediately and shall expire and be
23 deemed repealed 4 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.
