Establishes the "county of Westchester public works investment act" which allows the county of Westchester, or any department, division, agency, office or subdivision thereof to utilize design-build project delivery.
NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A9503A
SPONSOR: Pretlow TITLE OF BILL:
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
PURPOSE OR GENERAL IDEA OF BILL:
This act will give the county of Westchester the authorization to
utilize Design-Build model.
SUMMARY OF SPECIFIC PROVISIONS:
Section 1. Short title. This act shall be known and may be citied as the
"county of Westchester public works investment act"
SS 2.(a) definition of "authorized entity"
SS 2.(b) definition of "best value"
SS 2.(c) definition of "cost plus"'
SS 2.(d) definition of "design-build contract"
SS 2.(e) definition of "project labor agreement"
SS 3. Any contract for a public work undertaken pursuant to a project
labor. agreement in accordance with section 222 of the labor law may be
a design-build contract
SS 4. Notwithstanding any general, special or local law, rule or regu-
lation to the contrary
SS 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
SS 6. Construction with respect to each contract entered into by an
authorized entity pursuant to this act shall be deemed a "public work"
SS 7. Each contract entered into by an authorized entity pursuant to
this act shall comply with objectives and goals relating to the perform-
ance of design and construction services
SS 8. Public works undertaken by an authorized entity pursuant to this
act shall be subject to the requirements of article 8 of the environ-
mental conservation law
SS 9. (a) Notwithstanding any provision of law to the contrary (b) Noth-
ing in this act shall result in the: (1) displacement of any currently
employed worker or loss of position (2) transfer of existing duties and
functions related to maintenance and operations currently performed by
existing employees of authorized entities to a contractor
(c) employees of authorized entities using design-build contracts serv-
ing in positions in newly created titles shall be assigned to the appro-
priate bargaining unit.
(d) without limiting contractors' obligations under design-build
contracts to issue their own initial certifications of substantial
completion and final completion
SS 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
SS 11. Nothing contained in this act shall limit the right or obligation
of any authorized entity to comply with the provisions of any existing
contract or to award contracts as otherwise provided by law
SS 12. A report shall be submitted no later than June 30, 2025 and annu-
ally thereafter
SS 13. Effective date
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 DesignBid-Build model, the 'Design' and 'Build' compo-
nents of a project are barred from collaboration, slowing project sched-
ules, increasing cost, and resulting in lower auality 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. West-
chester 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.
LEGISLATIVE HISTORY:
New Bill
FISCAL IMPLICATIONS:
None to the State
EFFECTIVE DATE:
This act shall take effect immediately and shall expire 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.
STATE OF NEW YORK
________________________________________________________________________
9503--A
IN ASSEMBLY
March 14, 2024
___________
Introduced by M. of A. PRETLOW -- read once and referred to the Commit-
tee on Local Governments -- committee discharged, bill amended,
ordered reprinted as amended and recommitted to said committee
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:
4 (a) "Authorized entity" shall mean the county of Westchester, or any
5 department, division, agency, office or subdivision thereof having
6 jurisdiction under the laws of Westchester county to undertake projects.
7 (b) "Best value" shall mean the basis for awarding contracts for
8 services to a proposer that optimizes quality, cost and efficiency,
9 price and performance criteria, which may include, but is not limited
10 to:
11 (1) The quality of the proposer's performance on previous projects;
12 (2) The timeliness of the proposer's performance on previous projects;
13 (3) The level of customer satisfaction with the proposer's performance
14 on previous projects;
15 (4) The proposer's record of performing previous projects on budget
16 and ability to minimize cost overruns;
17 (5) The proposer's ability to limit change orders;
18 (6) The proposer's ability to prepare appropriate project plans;
19 (7) The proposer's technical capacities;
20 (8) The individual qualifications of the proposer's key personnel;
21 (9) The proposer's ability to assess and manage risk and minimize risk
22 impact;
23 (10) The proposer's financial capability;
24 (11) The proposer's ability to comply with applicable requirements,
25 including the provisions of articles 145, 147 and 148 of the education
26 law;
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD14257-03-4
A. 9503--A 2
1 (12) The proposer's past record of compliance with federal, state and
2 local laws, rules, licensing requirements, where applicable, and execu-
3 tive orders, including but not limited to compliance with the labor law
4 and other applicable labor and prevailing wage laws, article 15-A of the
5 executive law, and any other applicable laws concerning minority- and
6 women-owned business enterprise participation;
7 (13) The proposer's record of complying with existing labor standards,
8 maintaining harmonious labor relations, and protecting the health and
9 safety of workers and payment of wages above any locally-defined living
10 wage; and
11 (14) A quantitative factor to be used in evaluation of bids or offers
12 for awarding of contracts for bidders or offerers that are certified as
13 minority- or women-owned business enterprises pursuant to article 15-A
14 of the executive law. Where the authorized entity identifies a quantita-
15 tive factor pursuant to this paragraph, the authorized entity must spec-
16 ify that businesses certified as minority- or women-owned business
17 enterprises pursuant to article 15-A of the executive law are eligible
18 to qualify for such factor.
19 Each basis under this subdivision shall reflect, wherever possible,
20 objective and quantifiable analysis.
21 (c) "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 (d) "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 (e) "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 section 7210 of the
36 education law, article 5-A of the general municipal law and article 8 of
37 the public housing law, and in conformity with the requirements of this
38 act, for any public work that has an estimated cost of not less than
39 $10,000,000 and is undertaken pursuant to a project labor agreement in
40 accordance with section 222 of the labor law, an authorized entity
41 charged with awarding a contract for public work may use the alternative
42 delivery method referred to as design-build contracts; provided that any
43 authorized entity may use the alternative delivery method referred to as
44 design-build contracts for any public work that has an estimated cost of
45 not less than $1,200,000 if such public work is otherwise in conformity
46 with the requirements of this act and primarily consists of: pedestrian
47 ramps and similar infrastructure to improve access to sidewalks for
48 people with disabilities; renovation and construction of cultural insti-
49 tutions located on publicly owned real property and of public libraries;
50 or security infrastructure, including bollards, planters and other phys-
51 ical structures, designed to protect life and property from acts of
52 terror or mass violence.
53 (a) A contractor selected by such an authorized entity to enter into a
54 design-build contract shall be selected through a two-step method, as
55 follows:
A. 9503--A 3
1 (1) Step one. Generation of a list of responding entities that have
2 demonstrated the general capability to perform the design-build
3 contract. Such list shall consist of a specified number of responding
4 entities, as determined by an authorized entity, and shall be generated
5 based upon the authorized entity's review of responses to a publicly
6 advertised request for qualifications. The authorized entity's request
7 for qualifications shall include a general description of the public
8 work, the maximum number of responding entities to be included on the
9 list, the selection criteria to be used and the relative weight of each
10 criteria in generating the list. Such selection criteria shall include
11 the qualifications and experience of the design and construction team,
12 organization, demonstrated responsibility, ability of the team or of a
13 member or members of the team to comply with applicable requirements,
14 including the provisions of articles 145, 147 and 148 of the education
15 law, past record of compliance with the labor law, and such other quali-
16 fications the authorized entity deems appropriate, which may include but
17 are not limited to project understanding, financial capability and
18 record of past performance. The authorized entity shall evaluate and
19 rate all responding entities to the request for qualifications. Based
20 upon such ratings, the authorized entity shall list the responding enti-
21 ties that shall receive a request for proposals in accordance with para-
22 graph 2 of this subdivision. To the extent consistent with applicable
23 federal law, the authorized entity shall consider, when awarding any
24 contract pursuant to this section, the participation of responding enti-
25 ties that are certified as minority- or women-owned business enterprises
26 pursuant to article 15-A of the executive law.
27 (2) Step two. Selection of the proposal which is the best value to the
28 authorized entity. The authorized entity shall issue a request for
29 proposals to the responding entities listed pursuant to paragraph 1 of
30 this subdivision. If such a responding entity consists of a team of
31 separate entities, the entities that comprise such a team must remain
32 unchanged from the responding entity as listed pursuant to paragraph 1
33 of this subdivision unless otherwise approved by the authorized entity.
34 The request for proposals shall set forth the public work's scope of
35 work, and other requirements, as determined by the authorized entity,
36 which may include separate goals for work under the contract to be
37 performed by businesses certified as minority- or women-owned business
38 enterprises pursuant to article 15-A of the executive law. The request
39 for proposals shall also specify the criteria to be used to evaluate the
40 responses and the relative weight of each of such criteria. Such crite-
41 ria shall include the proposal's cost, the quality of the proposal's
42 solution, the qualifications and experience of the proposer, and other
43 factors deemed pertinent by the authorized entity, which may include,
44 but shall not be limited to, the proposal's manner and schedule of
45 project implementation, the proposer's ability to complete the work in a
46 timely and satisfactory manner, maintenance costs of the completed
47 public work, maintenance of traffic approach, and community impact. Any
48 contract awarded pursuant to this act shall be awarded to a responsive
49 and responsible proposer, which, in consideration of these and other
50 specified criteria deemed pertinent, offers the best value, as deter-
51 mined by the authorized entity. The request for proposals shall include
52 a statement that proposers shall designate in writing those portions of
53 the proposal that contain trade secrets or other proprietary information
54 that are to remain confidential; that the material designated as confi-
55 dential shall be readily separable from the proposal. Nothing in this
56 subdivision shall be construed to prohibit the authorized entity from
A. 9503--A 4
1 negotiating final contract terms and conditions including cost. All
2 proposals submitted shall be scored according to the criteria listed in
3 the request for proposals.
4 (b) An authorized entity awarding a design-build contract to a
5 contractor offering the best value may but shall not be required to use
6 the following types of contracts:
7 (1) A cost-plus not to exceed guaranteed maximum price form of
8 contract in which the authorized entity shall be entitled to monitor and
9 audit all costs. In establishing the schedule and process for determin-
10 ing a guaranteed maximum price, the contract between the authorized
11 entity and the contractor shall:
12 (i) Describe the scope of the work and the cost of performing such
13 work,
14 (ii) Include a detailed line item cost breakdown,
15 (iii) Include a list of all drawings, specifications and other infor-
16 mation on which the guaranteed maximum price is based,
17 (iv) Include the dates of substantial and final completion on which
18 the guaranteed maximum price is based, and
19 (v) Include a schedule of unit prices; or
20 (2) A lump sum contract in which the contractor agrees to accept a set
21 dollar amount for a contract which comprises a single bid without
22 providing a cost breakdown for all costs such as for equipment, labor,
23 materials, as well as such contractor's profit for completing all items
24 of work comprising the public work.
25 § 5. Any contract entered into pursuant to this act shall include a
26 clause requiring that any professional services regulated by articles
27 145, 147 and 148 of the education law shall be performed and stamped and
28 sealed, where appropriate, by a professional licensed in accordance with
29 the appropriate article.
30 § 6. Construction with respect to each contract entered into by an
31 authorized entity pursuant to this act shall be deemed a "public work"
32 to be performed in accordance with the provisions of article 8 of the
33 labor law, as well as subject to sections 200, 240, 241 and 242 of such
34 law and enforcement of prevailing wage requirements pursuant to applica-
35 ble law or, for projects or public works receiving federal aid, applica-
36 ble federal requirements for prevailing wage. Any contract entered into
37 pursuant to this act shall include a clause requiring the selected
38 design builder to obligate every tier of contractor working on the
39 public work to comply with the project labor agreement referenced in
40 section three of this act, and shall include project labor agreement
41 compliance monitoring and enforcement provisions consistent with the
42 applicable project labor agreement.
43 § 7. Each contract entered into by an authorized entity pursuant to
44 this act shall comply with the objectives and goals relating to the
45 performance of design and construction services by minority- and women-
46 owned business enterprises, or, for projects or public works receiving
47 federal aid, applicable federal requirements for disadvantaged business
48 enterprises or minority- and women-owned business enterprises.
49 § 8. Public works undertaken by an authorized entity pursuant to this
50 act shall be subject to the requirements of article 8 of the environ-
51 mental conservation law, and, where applicable, the requirements of the
52 National Environmental Policy Act.
53 § 9. (a) Notwithstanding any provision of law to the contrary, all
54 rights or benefits, including terms and conditions of employment, and
55 protection of civil service and collective bargaining status of all
56 employees of authorized entities solely in connection with public work
A. 9503--A 5
1 undertaken by an authorized entity pursuant to this act, shall be
2 preserved and protected.
3 (b) Nothing in this act shall result in the: (1) displacement of any
4 currently employed worker or loss of position, including partial
5 displacement such as a reduction in the hours of non-overtime work,
6 wages or employment benefits, or result in the impairment of existing
7 collective bargaining agreements; and (2) transfer of existing duties
8 and functions related to maintenance and operations currently performed
9 by existing employees of authorized entities to a contractor.
10 (c) Employees of authorized entities using design-build contracts
11 serving in positions in newly created titles shall be assigned to the
12 appropriate bargaining unit. Nothing contained in this act shall be
13 construed to affect (1) the existing rights of employees of such enti-
14 ties pursuant to an existing collective bargaining agreement, (2) the
15 existing representational relationships among employee organizations
16 representing employees of such entities, or (3) the bargaining relation-
17 ships between such entities and such employee organizations.
18 (d) Without limiting contractors' obligations under design-build
19 contracts to issue their own initial certifications of substantial
20 completion and final completion, public employees of authorized entities
21 shall review and determine whether the work performed by contractors is
22 acceptable and has been performed in accordance with the applicable
23 design-build contracts, and if such public employees so determine, such
24 public employees shall accept contractors' substantial or final
25 completion of the public works as applicable. Performance by authorized
26 entities of any review described in this subdivision shall not be
27 construed to modify or limit contractors' obligations to perform the
28 work in strict accordance with the applicable design-build contracts or
29 the contractors' or any subcontractors' obligations or liabilities under
30 any law.
31 § 10. The submission of a proposal or responses or the execution of a
32 design-build contract pursuant to this act shall not be construed to be
33 a violation of section 6512 of the education law.
34 § 11. Nothing contained in this act shall limit the right or obli-
35 gation of any authorized entity to comply with the provisions of any
36 existing contract or to award contracts as otherwise provided by law.
37 § 12. A report shall be submitted no later than June 30, 2025 and
38 annually thereafter, to the county executive and the chair of the board
39 of legislators for an authorized entity containing information regarding
40 each design-build contract procured by such authorized entity pursuant
41 to this act. Such report shall include a description of each such
42 design-build contract, information regarding the procurement process for
43 each such design-build contract including the list of responding enti-
44 ties that demonstrated the general capability to perform the design-
45 build contract pursuant to paragraph 1 of subdivision (a) of section
46 four of this act, the total cost of each design-build contract, an
47 explanation of the estimated savings resulting from the design-build
48 method, and the participation rate of and total dollar value of monies
49 paid to minority- and women-owned business enterprises under such
50 design-build contract.
51 § 13. This act shall take effect immediately and shall expire and be
52 deemed repealed 3 years after such date, provided that, public works
53 with requests for qualifications issued prior to such repeal shall be
54 permitted to continue under this act notwithstanding such repeal.
