S T A T E   O F   N E W   Y O R K
       ________________________________________________________________________
                                         5887
                              2015-2016 Regular Sessions
                                   I N  S E N A T E
                                     June 10, 2015
                                      ___________
       Introduced  by  Sen.  LANZA  -- read twice and ordered printed, and when
         printed to be committed to the Committee on Rules
       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    S 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, the New York city department of parks  and  recreation,  the
    7  New York city department of transportation, the New York city health and
    8  hospitals  corporation,  the New York city housing authority and the New
    9  York city school construction authority.
   10    (b) "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;
        EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                             [ ] is old law to be omitted.
                                                                  LBD11065-02-5
       S. 5887                             2
    1    (9) The proposer's ability to assess and manage risk and minimize risk
    2  impact;
    3    (10) The proposer's financial capability;
    4    (11) The proposer's past record of compliance with article 15-A of the
    5  executive  law  or  any  other  applicable  laws concerning minority and
    6  women-owned business enterprise participation;
    7    (12) The proposer's past record of compliance with all other  federal,
    8  state  and  local laws, rules, licensing requirements, where applicable,
    9  and executive orders, including but not limited to compliance  with  the
   10  labor law and other applicable labor and prevailing wage laws; and
   11    (13)  The  proposer's  ability to comply with applicable requirements,
   12  including the provisions of articles 145, 147 and 148 of  the  education
   13  law.
   14    Such  basis  shall reflect, wherever possible, objective and quantifi-
   15  able analysis.
   16    (c) "Cost plus" shall mean compensating a contractor for the  cost  to
   17  complete a contract by reimbursing actual costs for labor, equipment and
   18  materials plus an additional amount for overhead and profit.
   19    (d)  "Design-build  contract" shall mean a contract for the design and
   20  construction of a public work with a single entity, which may be a  team
   21  comprised of separate entities.
   22    (e)  "Project  labor  agreement"  shall  have the meaning set forth in
   23  subdivision 1 of section 222 of the labor law. A project labor agreement
   24  shall require participation in apprentice training programs  in  accord-
   25  ance with paragraph (e) of subdivision 2 of such section.
   26    S  3.  Any contract for a public work undertaken pursuant to a project
   27  labor agreement in accordance with section 222 of the labor law may be a
   28  design-build contract in accordance with this act.
   29    S 4. Notwithstanding any general, special or local law, rule or  regu-
   30  lation  to the contrary, including but not limited to article 5-A of the
   31  general municipal law, section 8 of the New York city health and  hospi-
   32  tals  corporation  act, sections 1734 and 1735 of the public authorities
   33  law and article 8 of the public housing law, and in conformity with  the
   34  requirements  of  this act, for any public work undertaken pursuant to a
   35  project labor agreement in accordance with section 222 of the labor law,
   36  an authorized entity charged with awarding a contract  for  public  work
   37  may  use  the  alternative  delivery  method referred to as design-build
   38  contracts.
   39    (a) A contractor selected by such authorized entity to  enter  into  a
   40  design-build  contract  shall  be  selected  through the submission of a
   41  proposal which provides the best value.  Such  authorized  entity  shall
   42  issue  a  request for proposals which shall set forth the scope of work,
   43  and other requirements, as determined  by  the  authorized  entity.  The
   44  request  for proposals shall specify the criteria to be used to evaluate
   45  the responses and the relative weight of each  of  such  criteria.  Such
   46  criteria   shall  include  the  proposal's  cost,  the  quality  of  the
   47  proposal's solution, the qualifications and experience of the  proposer,
   48  and  other  factors deemed pertinent by the authorized entity, which may
   49  include, but shall not be limited to, the proposal's manner and schedule
   50  of project implementation, the proposer's ability to complete  the  work
   51  in  a timely and satisfactory manner, maintenance costs of the completed
   52  public work, maintenance of traffic approach, and community impact.  Any
   53  contract  awarded  pursuant to this act shall be awarded to a responsive
   54  and responsible entity that submits the proposal,  which,  in  consider-
   55  ation of these and other specified criteria deemed pertinent, offers the
   56  best value, as determined by the authorized entity. Nothing herein shall
       S. 5887                             3
    1  be  construed  to  prohibit the authorized entity from negotiating final
    2  contract terms and conditions including cost.
    3    (b)  An  authorized  entity  awarding  a  design-build  contract  to a
    4  contractor offering the best value may but shall not be required to  use
    5  the following types of contracts:
    6    (1)  A  cost-plus  not  to  exceed  guaranteed  maximum  price form of
    7  contract in which the authorized entity shall be entitled to monitor and
    8  audit all costs. In establishing the schedule and process for  determin-
    9  ing  a  guaranteed  maximum  price,  the contract between the authorized
   10  entity and the contractor shall:
   11    (i) Describe the scope of the work and the  cost  of  performing  such
   12  work,
   13    (ii) Include a detailed line item cost breakdown,
   14    (iii)  Include a list of all drawings, specifications and other infor-
   15  mation on which the guaranteed maximum price is based,
   16    (iv) Include the dates of substantial and final  completion  on  which
   17  the guaranteed maximum price is based, and
   18    (v) Include a schedule of unit prices; or
   19    (2) A lump sum contract in which the contractor agrees to accept a set
   20  dollar  amount  for  a  contract  which  comprises  a single bid without
   21  providing a cost breakdown for all costs such as for  equipment,  labor,
   22  materials,  as well as such contractor's profit for completing all items
   23  of work comprising the public work.
   24    S 5. Any contract entered into pursuant to this act  shall  include  a
   25  clause  requiring  that  any professional services regulated by articles
   26  145, 147 and 148 of the education law shall be performed and stamped and
   27  sealed, where appropriate, by a professional licensed in accordance with
   28  such articles.
   29    S 6. Construction with respect to each contract  entered  into  by  an
   30  authorized  entity  pursuant to this act shall be deemed a "public work"
   31  to be performed in accordance with the provisions of article  8  of  the
   32  labor  law,  as well as subject to sections 200, 240, 241 and 242 of the
   33  labor law and enforcement of prevailing wage  requirements  pursuant  to
   34  applicable  law  or, for projects or public works receiving federal aid,
   35  applicable  federal  requirements  for  prevailing  wage.  Any  contract
   36  entered  into  pursuant to this act shall include a clause requiring the
   37  selected design builder to obligate every tier of contractor working  on
   38  the  project  to  comply  with the project labor agreement referenced in
   39  section three of this act, and shall  include  project  labor  agreement
   40  compliance  monitoring  and  enforcement  provisions consistent with the
   41  applicable project labor agreement.
   42    S 7. Each contract entered into by an authorized  entity  pursuant  to
   43  this  act  shall  comply  with  the  objectives and goals with regard to
   44  minority and women-owned business enterprises pursuant to,  as  applica-
   45  ble,  section  6-129 of the administrative code of the city of New York,
   46  subdivision 6 of section 8 of the New York  city  health  and  hospitals
   47  corporation  act and section 1743 of the public authorities law, or, for
   48  projects or public  works  receiving  federal  aid,  applicable  federal
   49  requirements  for  disadvantaged  business  enterprises  or minority and
   50  women-owned business enterprises.
   51    S 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.
       S. 5887                             4
    1    S  9.  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    S  10.  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    S  11.  This act shall take effect immediately and shall expire and be
    8  deemed repealed 5 years after such date,  provided  that,  public  works
    9  with requests for proposals issued prior to such repeal shall be permit-
   10  ted to continue under this act notwithstanding such repeal.