Enacts the "transformational infrastructure and revitalization project act"
Martin J. Golden
(R, C, IP) 0 Senate District
Archive: Last Bill Status - In Senate Committee Transportation Committee
Get Status Alerts for S7698
Feb 09, 2018 referred to transportation
Simcha Felder
Brian Kavanagh
S7698 (ACTIVE) - Details
General Municipal
S7698 (ACTIVE) - Summary
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.
S7698 (ACTIVE) - Sponsor Memo
BILL NUMBER: S7698
SPONSOR: GOLDEN
TITLE OF BILL:  An act in relation to enacting the "transformational
infrastructure and revitalization project act"; and providing for the
repeal of such provisions upon expiration thereof
PURPOSE OR GENERAL IDEA OF BILL:
To allow the City of New York to use design-build contracts for the
Brooklyn-Queens Expressway.
Section one of this bill states this act shall be known and may be cited
as the "Transformational Infrastructure and Revitalization Project Act".
Section two of this bill provides definitions for this act. These defi-
nitions include a definition for the terms "authorized entity," "best
value," and "design-build contract." Additionally, "transformational
infrastructure and revitalization project" or "project" is defined as
the Brooklyn-Queens Expressway from Atlantic Avenue to Sands Street.
Section three of this bill provides that any contract undertaken for the
two projects that pursuant to a project labor agreement (PLA) may be a
design-build contract.
Section four of this bill provides the two-step method the authorized
entity will use to select an entity to enter a design-build contract.
Section five of this bill provides any contract entered under this act
shall include a clause that requires professional services regulated by
articles 145, 147 and 148 of the Education Law shall be performed,
stamped, and sealed by a professional licensed in accordance with such
Sections six through nine of this bill contains provisions regarding
prevailing wage, minority- and women-owned businesses, terms and condi-
tions of employment, and the National Environmental Policy Act.
Section ten of this bill provides the submission of a proposal or
responses or the execution of a design-build contract pursuant to this
act shall not be interpreted as a violation of section 6512 of the
Education Law.
Section eleven of this bill provides nothing in this act shall restrict
the authorized entity from complying with the provisions of any existing
contract.
Section twelve of this bill provides that this act shall take effect
immediately and shall expire and be deemed repealed four years after
such date, provided that, public works projects with requests for quali-
fication issued prior to such repeal shall be permitted to continue
under this act notwithstanding such repeal.
This legislation would allow for an efficient and cost-effective reno-
vation of one project in New York City, the Brooklyn-Queens Expressway,
by utilizing design-build. When using design-build, a project will
utilize only one contract for both project design and project
construction services. Utilizing only one contract has many benefits,
including increasing contractor accountability, and minimizing project
down time by eliminating one procurement cycle and allowing the
project's design and construction phases to overlap.
In the 2017-8 budget, the Legislature and the Executive recognized the
value of using design-build for projects by authorizing design-build for
several projects. Unfortunately, all of the authorized projects are
located outside New York City. This bill would allow New York City to
reap the benefits of design-build for the Brooklyn-Queens Expressway.
PRIOR LEGISLATIVE HISTORY:
New bill.
To be determined.
This act shall take effect immediately and shall expire and be deemed
repealed four years after such date, provided that, public works
projects with requests for qualification issued prior to such repeal
shall be permitted to continue under this act notwithstanding such
repeal.
S7698 (ACTIVE) - Bill Text download pdf
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
Section  1. This act shall be known and may be cited as the "transfor-
mational infrastructure and revitalization project act".
§ 2. Definitions. For the purposes of this act,  the  following  terms
shall have the following meanings:
(a)  "Public work" shall mean the Brooklyn-Queens Expressway, Atlantic
Avenue to Sands Street.
(b) "Authorized entity" shall mean the New  York  city  department  of
design and construction, and the New York city department of transporta-
(c)  "Best  value"  shall  mean  the  basis for awarding contracts for
services to a proposer that  optimizes  quality,  cost  and  efficiency,
price  and  performance  criteria, which may include, but is not limited
(1) The quality of the proposer's performance on previous projects;
(2) The timeliness of the proposer's performance on previous projects;
(3) The level of customer satisfaction with the proposer's performance
on previous projects;
(4) The proposer's record of performing previous  projects  on  budget
and ability to minimize cost overruns;
(5) The proposer's ability to limit change orders;
(6) The proposer's ability to prepare appropriate project plans;
(7) The proposer's technical capacities;
(8) The individual qualifications of the proposer's key personnel;
(9) The proposer's ability to assess and manage risk and minimize risk
impact;
(10) The proposer's financial capability;
(11)  The  proposer's  ability to comply with applicable requirements,
including the provisions of articles 145, 147 and 148 of  the  education
law;
(12)  The proposer's past record of compliance with federal, state and
local laws, rules, licensing requirements, where applicable, and  execu-
tive  orders, including but not limited to compliance with the labor law
and other applicable labor and prevailing wage laws, article 15-A of the
executive law, and any other applicable laws  concerning  minority-  and
women-owned business enterprise participation;
(13) The proposer's record of complying with existing labor standards,
maintaining  harmonious  labor  relations, and protecting the health and
safety of workers and payment of wages above any locally-defined  living
wage; and
(14)  A quantitative factor to be used in evaluation of bids or offers
for awarding of contracts for bidders or offerers that are certified  as
minority- or women-owned business enterprises as defined in subdivisions
1, 7, 15 and 20 of section 310 of the executive law, or certified pursu-
ant to local law as minority- or women-owned business enterprises.
Such  basis  shall reflect, wherever possible, objective and quantifi-
able analysis.
(d) "Cost plus" shall mean compensating a contractor for the  cost  to
complete a contract by reimbursing actual costs for labor, equipment and
materials plus an additional amount for overhead and profit.
(e)  "Design-build  contract" shall mean a contract for the design and
construction of a public work with a single entity, which may be a  team
comprised of separate entities.
(f)  "Project  labor  agreement"  shall  have the meaning set forth in
subdivision 1 of section 222 of the labor law. A project labor agreement
shall require participation in apprentice training programs  in  accord-
ance with paragraph (e) of subdivision 2 of such section.
§  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 in accordance with this act.
§ 4. Notwithstanding any general, special or local law, rule or  regu-
lation  to the contrary, including but not limited to article 5-A of the
general municipal law, and in conformity with the requirements  of  this
act,  for  any  public work that has an estimated total cost of not less
than ten million dollars and is undertaken pursuant to a  project  labor
agreement in accordance with section 222 of the labor law, an authorized
entity  charged  with  awarding  a  contract for public work may use the
alternative delivery method referred to as design-build contracts.
(a) A contractor selected by such authorized entity to  enter  into  a
design-build  contract  shall  be selected through a two-step method, as
(1) Step one. Generation of a list of responding  entities  that  have
demonstrated   the   general  capability  to  perform  the  design-build
contract. Such list shall consist of a specified  number  of  responding
entities,  as determined by an authorized entity, and shall be generated
based upon the authorized entity's review of  responses  to  a  publicly
advertised  request  for qualifications. The authorized entity's request
for qualifications shall include a general  description  of  the  public
work,  the  maximum  number of responding entities to be included on the
list, the selection criteria to be used and the relative weight of  each
criteria  in generating the list.  Such selection criteria shall include
the qualifications and experience of the design and  construction  team,
organization,  demonstrated  responsibility, ability of the team or of a
member or members of the team to comply  with  applicable  requirements,
including  the  provisions of articles 145, 147 and 148 of the education
law, past record of compliance with the labor law, and such other quali-
fications the authorized entity deems appropriate, which may include but
are  not  limited  to  project  understanding,  financial capability and
record of past performance. The authorized  entity  shall  evaluate  and
rate  all  responding entities to the request for qualifications.  Based
upon such ratings, the authorized entity shall list the responding enti-
ties that shall receive a request for proposals in accordance with para-
graph two of this subdivision. To the extent consistent with  applicable
federal  law,  the  authorized  entity shall consider, when awarding any
contract pursuant to this section, the participation of  (i)  responding
entities  that are certified as minority- or women-owned business enter-
prises as defined in subdivisions 1, 7, 15 and 20 of section 310 of  the
executive  law,  or  certified  pursuant  to  local  law as minority- or
women-owned business enterprises; and (ii) small business concerns iden-
tified pursuant to subdivision (b) of section 139-g of the state finance
law; and
(2) Step two. Selection of the proposal which is the best value to the
authorized entity.   The authorized entity shall  issue  a  request  for
proposals to the responding entities listed pursuant to paragraph one of
this  subdivision.  If  such  a  responding entity consists of a team of
separate entities, the entities that comprise such a  team  must  remain
unchanged from the responding entity as listed pursuant to paragraph one
of  this subdivision unless otherwise approved by the authorized entity.
The request for proposals shall set forth the  public  work's  scope  of
work,  and  other  requirements, as determined by the authorized entity,
which may include separate goals for  work  under  the  contract  to  be
performed  by  businesses certified as minority- or women-owned business
enterprises as defined in subdivisions 1, 7, 15 and 20 of section 310 of
the executive law, or certified pursuant to local law  as  minority-  or
women-owned  business  enterprises. The request for proposals shall also
specify the criteria to be used to evaluate the responses and the  rela-
tive  weight  of  each of such criteria. Such criteria shall include the
proposal's cost, the quality of the proposal's solution, the  qualifica-
tions and experience of the proposer, and other factors deemed pertinent
by  the  authorized  entity, which may include, but shall not be limited
to, the proposal's manner and schedule of  project  implementation,  the
proposer's  ability  to  complete  the work in a timely and satisfactory
manner, maintenance costs of the completed public work,  maintenance  of
traffic approach, and community impact. Any contract awarded pursuant to
this  act  shall  be  awarded  to a responsive and responsible proposer,
which, in consideration of these and  other  specified  criteria  deemed
pertinent,  offers the best value, as determined by the authorized enti-
ty. The request for proposals shall include a statement  that  proposers
shall  designate  in writing those portions of the proposal that contain
trade secrets or other proprietary information that are to remain confi-
dential; that the material designated as confidential shall  be  readily
separable  from  the  proposal.  Nothing  in  this  subdivision shall be
construed to prohibit  the  authorized  entity  from  negotiating  final
contract  terms  and  conditions including cost. All proposals submitted
shall be scored according to the criteria  listed  in  the  request  for
proposals  and  such  final  scores shall be published on the authorized
entity's website.
(b) An  authorized  entity  awarding  a  design-build  contract  to  a
contractor  offering the best value may but shall not be required to use
the following types of contracts:
(1)  A  cost-plus  not  to  exceed  guaranteed  maximum  price form of
contract in which the authorized entity shall be entitled to monitor and
audit all costs. In establishing the schedule and process for  determin-
ing  a  guaranteed  maximum  price,  the contract between the authorized
entity and the contractor shall:
(i) Describe the scope of the work and the  cost  of  performing  such
(ii) Include a detailed line item cost breakdown,
(iii)  Include a list of all drawings, specifications and other infor-
mation on which the guaranteed maximum price is based,
(iv) Include the dates of substantial and final  completion  on  which
the guaranteed maximum price is based, and
(v) Include a schedule of unit prices; or
(2) A lump sum contract in which the contractor agrees to accept a set
dollar  amount  for  a  contract  which  comprises  a single bid without
providing a cost breakdown for all costs such as for  equipment,  labor,
materials,  as well as such contractor's profit for completing all items
of work comprising the public work.
§ 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, by a professional licensed in accordance with
the appropriate article.
§ 6. Construction with respect to each contract  entered  into  by  an
authorized  entity  pursuant to this act shall be deemed a "public work"
to be performed in accordance with the provisions of article  8  of  the
labor  law, as well as subject to sections 200, 240, 241 and 242 of such
law and enforcement of prevailing wage requirements pursuant to applica-
ble law or, for projects or public works receiving federal aid, applica-
ble federal requirements for prevailing wage. Any contract entered  into
pursuant  to  this  act  shall  include  a clause requiring the selected
design builder to obligate every  tier  of  contractor  working  on  the
public  work  to  comply  with the project labor agreement referenced in
section three of this act, and shall  include  project  labor  agreement
compliance  monitoring  and  enforcement  provisions consistent with the
applicable project labor agreement.
§ 7. Each contract entered into by an authorized  entity  pursuant  to
this  act  shall  comply  with  the  objectives and goals with regard to
minority- and women-owned business enterprises pursuant to, as  applica-
ble,  section  6-129  of the administrative code of the city of New York
or, for projects or  public  works  receiving  federal  aid,  applicable
federal requirements for disadvantaged business enterprises or minority-
and women-owned business enterprises.
§  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, and, where applicable, the requirements of the
National Environmental Policy Act.
§ 9. (a) Notwithstanding any provision of law  to  the  contrary,  all
rights  or  benefits,  including terms and conditions of employment, and
protection of civil service and  collective  bargaining  status  of  all
employees  of  authorized  entities solely in connection with the public
works identified in subdivision (a) of section two of this act, shall be
preserved and protected.
(b) Nothing in this act shall result in the: (1) displacement  of  any
currently  employed  worker  or  loss  of  position  (including  partial
displacement such as a reduction in  the  hours  of  non-overtime  work,
wages  or  employment benefits), or result in the impairment of existing
collective  bargaining  agreements;  and (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
serving in positions in newly created titles shall be  assigned  to  the
appropriate  bargaining  unit.  Nothing  contained  in this act shall be
construed to affect (1) the existing rights of employees of  such  enti-
ties  pursuant  to  an existing collective bargaining agreement, (2) the
existing representational  relationships  among  employee  organizations
representing employees of such entities, or (3) the bargaining relation-
ships between such entities and such employee organizations.
§  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.
§  11.  Nothing  contained  in this act shall limit the right or obli-
gation of any authorized entity to comply with  the  provisions  of  any
existing contract or to award contracts as otherwise provided by law.
§  12.  This act shall take effect immediately and shall expire and be
deemed repealed 4 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.