Relates to public works undertaken pursuant to project labor agreements and the use of the alternative delivery method known as design-build contracts.
NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A10709
SPONSOR: Rules (Benedetto) TITLE OF BILL: An act to authorize, for certain public works under-
taken 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
SUMMARY OF PROVISIONS:
This bill would, for any public work undertaken pursuant to a project
labor agreement in accordance with section 222 of the labor law, author-
ize the New York City Department of Transportation, the New York City
Department of Design and Construction, and the New York City Department
of Environmental Protection, to use the alternative delivery method
known as design-build procurement for the limited purposes of completing
public works related to physical infrastructure. Such an authorized
entity would select the proposal providing the best value, based upon a
request for proposals specifying certain criteria to be used in evalu-
ation. An entity awarding a design-build contract to a contractor offer-
ing the best value would further be authorized (but not required) to use
a cost-plus not to exceed guaranteed maximum price contract or lump sum
contract. Contracts would be subject to applicable federal, state and
local requirements for disadvantaged business enterprises and minority
and women-owned business enterprises. The bill would expire five years
after its effective date, though public works for which requests for
proposals have been issued could continue under the act beyond the expi-
ration date.
REASONS FOR SUPPORT:
Design-build is a method of project delivery in which one entity works
under a single contract to provide design and construction services.
This method minimizes project risk for the owner, increases the account-
ability of contractors and streamlines the delivery schedule by overlap-
ping the design and construction phases of a project.
Design-build contracting saves time and money by eliminating time in
procuring design services separately from construction services, and by
making a single entity responsible for a project, reducing the possibil-
ity of contract claims related to design errors or omissions. Addi-
tionally, design-build contracting introduces the possibility of inno-
vation during project performance by incentivizing the project provider
to think of creative ways to reduce project schedule and delivery meth-
ods.
Today, government entities, including the State of New York, are
increasingly embracing design-build contracting as a preferred method of
project delivery. Certain State agencies and authorities are authorized
to utilize the design-build method of project delivery and have used
design-build for the Tappan Zee Bridge replacement project, and for more
than 30 other projects including the Kosciuszko Bridge and Long Island
Rail Road Rehabilitation of Atlantic Avenue Viaduct. Additionally, the
Federal Highway Administration, which funds a significant portion of the
City's bridge and road infrastructure capital programs, has indicated
that design-build is its preferred method of procurement.
This bill would provide three agencies in the City of New York with the
opportunity to use design-build to provide taxpayers with public works
projects of superior quality and on a faster timetable. Included in the
authorization is a requirement that the City enter into project labor
agreements in accordance with section 222 of the Labor Law and provides
critical public employee protections including non-displacement safe-
guards. The authorization would be limited to twenty five projects that
have an estimated total cost of no less than ten million dollars.
The City has identified projects for which design-build contracting
would be ideal. A key example includes the Brooklyn-Queens Expressway
Triple Cantilever, a major project with an estimated cost of. $1.9B.
Under the design-build project delivery method,. the City would realize
an expedited time frame for the completion of these projects, while also
saving taxpayers tens of millions of dollars.
STATE OF NEW YORK
________________________________________________________________________
10709
IN ASSEMBLY
June 13, 2016
___________
Introduced by COMMITTEE ON RULES -- (at request of M. of A. Benedetto)
-- read once and referred to the Committee on Cities
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. This act shall be known and may be cited as the "New York
2 city public works investment act".
3 § 2. For the purposes of this act:
4 (a) "Authorized entity" shall mean the New York city department of
5 design and construction, the New York city department of environmental
6 protection and the New York city department of transportation.
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 past record of compliance with article 15-A of the
25 executive law or any other applicable laws concerning minority and
26 women-owned business enterprise participation;
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD15872-01-6
A. 10709 2
1 (12) The proposer's past record of compliance with all other federal,
2 state and local laws, rules, licensing requirements, where applicable,
3 and executive orders, including but not limited to compliance with the
4 labor law and other applicable labor and prevailing wage laws; and
5 (13) The proposer's ability to comply with applicable requirements,
6 including the provisions of articles 145, 147 and 148 of the education
7 law.
8 Such basis shall reflect, wherever possible, objective and quantifi-
9 able analysis.
10 (c) "Cost plus" shall mean compensating a contractor for the cost to
11 complete a contract by reimbursing actual costs for labor, equipment and
12 materials plus an additional amount for overhead and profit.
13 (d) "Design-build contract" shall mean a contract for the design and
14 construction of a public work with a single entity, which may be a team
15 comprised of separate entities.
16 (e) "Project labor agreement" shall have the meaning set forth in
17 subdivision 1 of section 222 of the labor law. A project labor agreement
18 shall require participation in apprentice training programs in accord-
19 ance with paragraph (e) of subdivision 2 of such section.
20 § 3. Any contract for a public work undertaken pursuant to a project
21 labor agreement in accordance with section 222 of the labor law may be a
22 design-build contract to the extent authorized by this act.
23 § 4. Notwithstanding any general, special or local law, rule or regu-
24 lation to the contrary, including but not limited to article 5-A of the
25 general municipal law, and in conformity with the requirements of this
26 act, for any public work that has an estimated total cost of not less
27 than ten million dollars and is undertaken pursuant to a project labor
28 agreement in accordance with section 222 of the labor law, an authorized
29 entity charged with awarding a contract for public work may use the
30 alternative delivery method referred to as design-build contracts,
31 provided that such method may be used for no more than twenty-five
32 projects for all authorized entities, and provided further that such
33 method may be used only for public works related to physical infrastruc-
34 ture, including, but not limited to, highways, bridges, dams, flood
35 control projects, canals, and parks, including, but not limited to, to
36 repair damage caused by natural disaster, to correct health and safety
37 defects, to comply with federal and state laws, standards, and regu-
38 lations, to extend the useful life of or replace highways, bridges,
39 dams, flood control projects, canals, and parks or to improve or add to
40 highways, bridges, dams, flood control projects, canals, and parks.
41 (a) A contractor selected by such authorized entity to enter into a
42 design-build contract shall be selected through the submission of a
43 proposal which provides the best value. Such authorized entity shall
44 issue a request for proposals which shall set forth the scope of work,
45 and other requirements, as determined by the authorized entity. The
46 request for proposals shall specify the criteria to be used to evaluate
47 the responses and the relative weight of each of such criteria. Such
48 criteria shall include the proposal's cost, the quality of the
49 proposal's solution, the qualifications and experience of the proposer,
50 and other factors deemed pertinent by the authorized entity, which may
51 include, but shall not be limited to, the proposal's manner and schedule
52 of project implementation, the proposer's ability to complete the work
53 in a timely and satisfactory manner, maintenance costs of the completed
54 public work, maintenance of traffic approach, and community impact. Any
55 contract awarded pursuant to this act shall be awarded to a responsive
56 and responsible entity that submits the proposal, which, in consider-
A. 10709 3
1 ation of these and other specified criteria deemed pertinent, offers the
2 best value, as determined by the authorized entity. Nothing in this act
3 shall be construed to prohibit the authorized entity from negotiating
4 final contract terms and conditions including cost.
5 (b) An authorized entity awarding a design-build contract to a
6 contractor offering the best value may but shall not be required to use
7 the following types of contracts:
8 (1) A cost-plus not to exceed guaranteed maximum price form of
9 contract in which the authorized entity shall be entitled to monitor and
10 audit all costs. In establishing the schedule and process for determin-
11 ing a guaranteed maximum price, the contract between the authorized
12 entity and the contractor shall:
13 (i) Describe the scope of the work and the cost of performing such
14 work,
15 (ii) Include a detailed line item cost breakdown,
16 (iii) Include a list of all drawings, specifications and other infor-
17 mation on which the guaranteed maximum price is based,
18 (iv) Include the dates of substantial and final completion on which
19 the guaranteed maximum price is based, and
20 (v) Include a schedule of unit prices; or
21 (2) A lump sum contract in which the contractor agrees to accept a set
22 dollar amount for a contract which comprises a single bid without
23 providing a cost breakdown for all costs such as for equipment, labor,
24 materials, as well as such contractor's profit for completing all items
25 of work comprising the public work.
26 § 5. Any contract entered into pursuant to this act shall include a
27 clause requiring that any professional services regulated by articles
28 145, 147 and 148 of the education law shall be performed and stamped and
29 sealed, where appropriate, by a professional licensed in accordance with
30 such articles.
31 § 6. Construction with respect to each contract entered into by an
32 authorized entity pursuant to this act shall be deemed a "public work"
33 to be performed in accordance with the provisions of article 8 of the
34 labor law, as well as subject to sections 200, 240, 241 and 242 of the
35 labor law and enforcement of prevailing wage requirements pursuant to
36 applicable law or, for projects or public works receiving federal aid,
37 applicable federal requirements for prevailing wage. Any contract
38 entered into pursuant to this act shall include a clause requiring the
39 selected design builder to obligate every tier of contractor working on
40 the project to comply with the project labor agreement referenced in
41 section three of this act, and shall include project labor agreement
42 compliance monitoring and enforcement provisions consistent with the
43 applicable project labor agreement.
44 § 7. Each contract entered into by an authorized entity pursuant to
45 this act shall comply with the objectives and goals with regard to
46 minority and women-owned business enterprises pursuant to section 6-129
47 of the administrative code of the city of New York, or, for projects or
48 public works receiving federal aid, applicable federal requirements for
49 disadvantaged business enterprises or minority and women-owned business
50 enterprises.
51 § 8. Public works undertaken by an authorized entity pursuant to this
52 act shall be subject to the requirements of article 8 of the environ-
53 mental conservation law, and, where applicable, the requirements of the
54 national environmental policy act.
55 § 9. (a) Notwithstanding any provision of law to the contrary, all
56 rights or benefits, including terms and conditions of employment, and
A. 10709 4
1 protection of civil service and collective bargaining status of all
2 employees of authorized entities, shall not be impaired or reduced
3 because of the use of a design-build contract pursuant to this act.
4 (b) Nothing in this act shall result in the displacement of any
5 current employee of an authorized entity using design-build contracts
6 who is represented by a "certified employee organization" as defined by
7 section 12-303 of the New York city administrative code, or loss of
8 position of such employee (including partial displacement such as a
9 reduction in the hours of non-overtime work, wages or employment bene-
10 fits), or result in the impairment of existing collective bargaining
11 agreements.
12 (c) Employees of authorized entities using design-build contracts
13 serving in positions in newly created titles shall be assigned to the
14 appropriate bargaining unit. Nothing contained herein shall be construed
15 to affect (1) the existing rights of employees of such entities pursuant
16 to an existing collective bargaining agreement, (2) the existing repres-
17 entational relationships among employee organizations representing
18 employees of such entities or (3) the bargaining relationships between
19 such entities and such employee organizations.
20 § 10. The submission of a proposal or responses or the execution of a
21 design-build contract pursuant to this act shall not be construed to be
22 a violation of section 6512 of the education law.
23 § 11. Nothing contained in this act shall limit the right or obli-
24 gation of any authorized entity to comply with the provisions of any
25 existing contract or to award contracts as otherwise provided by law.
26 § 12. This act shall take effect immediately and shall expire and be
27 deemed repealed 5 years after such date; provided that, public works
28 with requests for proposals or requests for qualifications issued prior
29 to such repeal shall be permitted to continue pursuant to this act
30 notwithstanding such repeal.
