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A08134 Summary:

A08134 Actions:

A08134 Committee Votes:

Committee:CITIES   Chair:Benedetto      
DATE:06/05/2017AYE/NAY:13/2  Action: Favorable refer to committee Ways and Means        
Benedetto
Aye
Castorina
Aye
Crespo
Aye
Goodell
Nay
Weprin
Aye
Brabenec
Aye
Braunstein
Aye
Norris
Nay
Kearns
Aye
Mayer
Aye
McDonald
Aye
Pichardo
Aye
Dilan
Aye
Carroll
Aye
Wright
Aye

Committee:WAYS AND MEANS   Chair:Farrell      
DATE:06/19/2017AYE/NAY:34/0  Action: Favorable refer to committee Rules        
Farrell
Aye
Oaks
Aye
Lentol
Aye
Crouch
Aye
Schimminger
Aye
Barclay
Aye
Gantt
Aye
Fitzpatrick
Aye
Weinstein
Aye
Hawley
Aye
Glick
Aye
Malliotakis
Aye
Nolan
Aye
Walter
Aye
Pretlow
Aye
Montesano
Aye
Perry
Aye
Curran
Aye
Colton
Aye
Ra
Aye
Cook
Aye
Cahill
Aye
Aubry
Aye
Hooper
Aye
Thiele
Aye
Cusick
Aye
Ortiz
Aye
Benedetto
Aye
Moya
Aye
Weprin
Aye
Rodriguez
Excused
Ramos
Aye
Braunstein
Aye
McDonald
Aye
Rozic
Aye

Committee:RULES   Chair:Heastie      
DATE:06/20/2017AYE/NAY:27/0  Action: Favorable         
Heastie
Aye
Kolb
Aye
Gottfried
Aye
Oaks
Aye
Lentol
Aye
Butler
Excused
Farrell
Aye
Crouch
Aye
Gantt
Aye
Finch
Excused
Nolan
Excused
Barclay
Aye
Weinstein
Aye
Raia
Aye
Hooper
Aye
Hawley
Aye
Ortiz
Aye
Pretlow
Aye
Cook
Aye
Glick
Aye
Morelle
Aye
Aubry
Aye
Englebright
Aye
Dinowitz
Aye
Colton
Aye
Magnarelli
Aye
Perry
Aye
Galef
Aye
Paulin
Aye
Titus
Excused
Peoples-Stokes
Aye

A08134 Floor Votes:

A08134 Memo:

NEW YORK STATE ASSEMBLY
MEMORANDUM IN SUPPORT OF LEGISLATION
 submitted in accordance with Assembly Rule III, Sec 1(f)



 
BILL NUMBER: A8134
 
SPONSOR: 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 design and construction, the New
York city department of transportation, and the New York city health and
hospitals corporation to use the alternative delivery method known as
design-build procurement for the purposes of completing eight specified
public works. Such an authorized entity would issue a request for quali-
fications that would result in a list of responding entities that have
demonstrated general capability to perform the contract. The authorized
entity would then issue a request for proposals to these responding
entities and subsequently select the proposal providing the best value,
based upon a clearly stated evaluation. An entity awarding a design-
build contract to a contractor offering the best value would further be
authorized (but not required) to use a cost-plus not to exceed guaran-
teed maximum price contract or lump sum contract. Contracts would be
subject to applicable federal, state and local requirements for disad-
vantaged business enterprises and minority and women-owned business
enterprises. The bill would expire four years after its effective date,
though public works for which requests for qualifications have been
issued prior to repeal could continue under the act beyond the expira-
tion 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
compressing two procurements into one procurement and eliminating one
procurement cycle, and further streamlines the delivery schedule by
overlapping 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 have been
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. Addi-
tionally, 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 the City of New York with the opportunity to use
design-build in order to provide taxpayers with eight 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 for public works that have an esti-
mated 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 projects, while also
saving taxpayers millions of dollars.
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 
 
 
 
 
 

A08134 Text:

 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                          8134
 
                               2017-2018 Regular Sessions
 
                   IN ASSEMBLY
 
                                      May 31, 2017
                                       ___________
 
        Introduced  by  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.  Short title.  This act shall be known and may be cited as
     2  the "New York 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 transportation
     6  and the New York city health and hospitals corporation.
     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;
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD10682-02-7
        A. 8134                             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    (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    (f)  "Public  work"  shall  mean a public work in the city of New York
    32  related to one of the following, and shall refer to any of the following
    33  public works:
    34    (1) the Brooklyn Queens Expressway - Atlantic avenue to Sands street;
    35    (2) the Rodman's Neck firearms and tactical training facility;
    36    (3) the Crossroads youth facility in the Brownsville section of  Kings
    37  county;
    38    (4)  the  Horizons  adolescent  facility  in the Mott Haven section of
    39  Bronx county;
    40    (5) a new police department precinct in Southeast Queens;
    41    (6) the Staten Island ferry terminal and related facilities resiliency
    42  efforts;
    43    (7) the Pelham parkway bridge over the  Hutchinson  river  parkway  in
    44  Bronx county; or
    45    (8) the Elmhurst Hospital emergency room renovation in Queens county.
    46    §  3.  Any contract for a public work undertaken pursuant to a project
    47  labor agreement in accordance with section 222 of the labor law may be a
    48  design-build contract in accordance with this act.
    49    § 4. Notwithstanding any general, special or local law, rule or  regu-
    50  lation  to the contrary, including but not limited to article 5-A of the
    51  general municipal law and section 8 of the  New  York  city  health  and
    52  hospitals  corporation  act,  and in conformity with the requirements of
    53  this act, for any public work that has an estimated total  cost  of  not
    54  less  than  ten  million dollars and is undertaken pursuant to a project
    55  labor agreement in accordance with section 222  of  the  labor  law,  an
    56  authorized  entity  charged with awarding a contract for public work may
        A. 8134                             3
 
     1  use  the  alternative  delivery  method  referred  to  as   design-build
     2  contracts.
     3    (a)  A  contractor  selected by such authorized entity to enter into a
     4  design-build contract shall be selected through a  two-step  method,  as
     5  follows:
     6    (1)  Step  one.  Generation of a list of responding entities that have
     7  demonstrated  the  general  capability  to  perform   the   design-build
     8  contract.  Such  list  shall consist of a specified number of responding
     9  entities, as determined by an authorized entity, and shall be  generated
    10  based  upon  the  authorized  entity's review of responses to a publicly
    11  advertised request for qualifications. The authorized  entity's  request
    12  for  qualifications  shall  include  a general description of the public
    13  work, the maximum number of responding entities to be  included  on  the
    14  list,  the selection criteria to be used and the relative weight of each
    15  criteria in generating the list.  Such selection criteria shall  include
    16  the  qualifications  and experience of the design and construction team,
    17  organization, demonstrated responsibility, ability of the team or  of  a
    18  member  or  members  of the team to comply with applicable requirements,
    19  including the provisions of articles 145, 147 and 148 of  the  education
    20  law, past record of compliance with the labor law, and such other quali-
    21  fications the authorized entity deems appropriate, which may include but
    22  are  not  limited  to  project  understanding,  financial capability and
    23  record of past performance. The authorized  entity  shall  evaluate  and
    24  rate  all  responding entities to the request for qualifications.  Based
    25  upon such ratings, the authorized entity shall list the responding enti-
    26  ties that shall receive a request for proposals in accordance with para-
    27  graph two of this subdivision. To the extent consistent with  applicable
    28  federal  law,  the  authorized  entity shall consider, when awarding any
    29  contract pursuant to this section, the participation of  (i)  responding
    30  entities  that are certified as minority- or women-owned business enter-
    31  prises as defined in subdivisions 1, 7, 15 and 20 of section 310 of  the
    32  executive  law,  or  certified  pursuant  to  local  law as minority- or
    33  women-owned business enterprises; and (ii) small business concerns iden-
    34  tified pursuant to subdivision (b) of section 139-g of the state finance
    35  law; and
    36    (2) Step two. Selection of the proposal which is the best value to the
    37  authorized entity.   The authorized entity shall  issue  a  request  for
    38  proposals to the responding entities listed pursuant to paragraph one of
    39  this  subdivision.  If  such  a  responding entity consists of a team of
    40  separate entities, the entities that comprise such a  team  must  remain
    41  unchanged from the responding entity as listed pursuant to paragraph one
    42  of  this subdivision unless otherwise approved by the authorized entity.
    43  The request for proposals shall set forth the  public  work's  scope  of
    44  work,  and  other  requirements, as determined by the authorized entity,
    45  which may include separate goals for  work  under  the  contract  to  be
    46  performed  by  businesses certified as minority- or women-owned business
    47  enterprises as defined in subdivisions 1, 7, 15 and 20 of section 310 of
    48  the executive law, or certified pursuant to local law  as  minority-  or
    49  women-owned  business  enterprises. The request for proposals shall also
    50  specify the criteria to be used to evaluate the responses and the  rela-
    51  tive  weight  of  each of such criteria. Such criteria shall include the
    52  proposal's cost, the quality of the proposal's solution, the  qualifica-
    53  tions and experience of the proposer, and other factors deemed pertinent
    54  by  the  authorized  entity, which may include, but shall not be limited
    55  to, the proposal's manner and schedule of  project  implementation,  the
    56  proposer's  ability  to  complete  the work in a timely and satisfactory
        A. 8134                             4
 
     1  manner, maintenance costs of the completed public work,  maintenance  of
     2  traffic approach, and community impact. Any contract awarded pursuant to
     3  this  act  shall  be  awarded  to a responsive and responsible proposer,
     4  which,  in  consideration  of  these and other specified criteria deemed
     5  pertinent, offers the best value, as determined by the authorized  enti-
     6  ty.  The  request for proposals shall include a statement that proposers
     7  shall designate in writing those portions of the proposal  that  contain
     8  trade secrets or other proprietary information that are to remain confi-
     9  dential;  that  the material designated as confidential shall be readily
    10  separable from the  proposal.  Nothing  in  this  subdivision  shall  be
    11  construed  to  prohibit  the  authorized  entity  from negotiating final
    12  contract terms and conditions including cost.  All  proposals  submitted
    13  shall  be  scored  according  to  the criteria listed in the request for
    14  proposals and such final scores shall be  published  on  the  authorized
    15  entity's website.
    16    (b)  An  authorized  entity  awarding  a  design-build  contract  to a
    17  contractor offering the best value may but shall not be required to  use
    18  the following types of contracts:
    19    (1)  A  cost-plus  not  to  exceed  guaranteed  maximum  price form of
    20  contract in which the authorized entity shall be entitled to monitor and
    21  audit all costs. In establishing the schedule and process for  determin-
    22  ing  a  guaranteed  maximum  price,  the contract between the authorized
    23  entity and the contractor shall:
    24    (i) Describe the scope of the work and the  cost  of  performing  such
    25  work,
    26    (ii) Include a detailed line item cost breakdown,
    27    (iii)  Include a list of all drawings, specifications and other infor-
    28  mation on which the guaranteed maximum price is based,
    29    (iv) Include the dates of substantial and final  completion  on  which
    30  the guaranteed maximum price is based, and
    31    (v) Include a schedule of unit prices; or
    32    (2) A lump sum contract in which the contractor agrees to accept a set
    33  dollar  amount  for  a  contract  which  comprises  a single bid without
    34  providing a cost breakdown for all costs such as for  equipment,  labor,
    35  materials,  as well as such contractor's profit for completing all items
    36  of work comprising the public work.
    37    § 5. Any contract entered into pursuant to this act  shall  include  a
    38  clause  requiring  that  any professional services regulated by articles
    39  145, 147 and 148 of the education law shall be performed and stamped and
    40  sealed, where appropriate, by a professional licensed in accordance with
    41  the appropriate article.
    42    § 6. Construction with respect to each contract  entered  into  by  an
    43  authorized  entity  pursuant to this act shall be deemed a "public work"
    44  to be performed in accordance with the provisions of article  8  of  the
    45  labor  law, as well as subject to sections 200, 240, 241 and 242 of such
    46  law and enforcement of prevailing wage requirements pursuant to applica-
    47  ble law or, for projects or public works receiving federal aid, applica-
    48  ble federal requirements for prevailing wage. Any contract entered  into
    49  pursuant  to  this  act  shall  include  a clause requiring the selected
    50  design builder to obligate every  tier  of  contractor  working  on  the
    51  public  work  to  comply  with the project labor agreement referenced in
    52  section three of this act, and shall  include  project  labor  agreement
    53  compliance  monitoring  and  enforcement  provisions consistent with the
    54  applicable project labor agreement.
    55    § 7. Each contract entered into by an authorized  entity  pursuant  to
    56  this  act  shall  comply  with  the  objectives and goals with regard to
        A. 8134                             5
 
     1  minority- and women-owned business enterprises pursuant to, as  applica-
     2  ble,  section  6-129  of the administrative code of the city of New York
     3  and subdivision 6 of section 8 of the New York city health and hospitals
     4  corporation act, or, for projects or public works receiving federal aid,
     5  applicable  federal  requirements for disadvantaged business enterprises
     6  or minority- and women-owned business enterprises.
     7    § 8. Public works undertaken by an authorized entity pursuant to  this
     8  act  shall  be  subject to the requirements of article 8 of the environ-
     9  mental conservation law, and, where applicable, the requirements of  the
    10  National Environmental Policy Act.
    11    §  9.  (a)  Notwithstanding  any provision of law to the contrary, all
    12  rights or benefits, including terms and conditions  of  employment,  and
    13  protection  of  civil  service  and  collective bargaining status of all
    14  employees of authorized entities solely in connection  with  the  public
    15  works identified in subdivision (f) of section two of this act, shall be
    16  preserved and protected.
    17    (b)  Nothing  in this act shall result in the: (1) displacement of any
    18  currently  employed  worker  or  loss  of  position  (including  partial
    19  displacement  such  as  a  reduction  in the hours of non-overtime work,
    20  wages or employment benefits), or result in the impairment  of  existing
    21  collective  bargaining  agreements;  and (2) transfer of existing duties
    22  and functions related to maintenance and operations currently  performed
    23  by existing employees of authorized entities to a contractor.
    24    (c)  Employees  of  authorized  entities  using design-build contracts
    25  serving in positions in newly created titles shall be  assigned  to  the
    26  appropriate  bargaining  unit.  Nothing  contained  in this act shall be
    27  construed to affect (1) the existing rights of employees of  such  enti-
    28  ties  pursuant  to  an existing collective bargaining agreement, (2) the
    29  existing representational  relationships  among  employee  organizations
    30  representing employees of such entities, or (3) the bargaining relation-
    31  ships between such entities and such employee organizations.
    32    §  10. The submission of a proposal or responses or the execution of a
    33  design-build contract pursuant to this act shall not be construed to  be
    34  a violation of section 6512 of the education law.
    35    §  11.  Nothing  contained  in this act shall limit the right or obli-
    36  gation of any authorized entity to comply with  the  provisions  of  any
    37  existing contract or to award contracts as otherwise provided by law.
    38    §  12.  This act shall take effect immediately and shall expire and be
    39  deemed repealed 4 years after such date;  provided  that,  public  works
    40  with  requests  for  qualifications issued prior to such repeal shall be
    41  permitted to continue under this act notwithstanding such repeal.