N.Y. PBG Law § 634 — New York Code / Act PBG / Article 15 / Section 634
Alternative project delivery contracts
Status: in_force

§ 634. Alternative project delivery contracts. 1. Notwithstanding any\nprovision of law to the contrary, including but not limited to section\nseventy-two hundred ten of the education law, and in conformity with the\nrequirements of this article, for any public work undertaken pursuant to\na project labor agreement the trust may use alternative project delivery\ncontracts, provided that the authority to advertise a request for\nqualification in accordance with this section shall expire five years\nafter the effective date of this section.\n  (a) A contractor selected by the trust to enter into an alternative\nproject delivery contract may be selected through a two-step method, as\nfollows:\n  (1) Step one. The first step shall be the generation of a list of\nresponding entities that have demonstrated the general capability to\nperform the alternative project delivery contract. Such list shall\nconsist of a specified number of responding entities, as determined by\nthe trust, and shall be generated based upon the trust's review of\nresponses to a publicly advertised request for qualifications. The\ntrust's request for qualifications shall include a general description\nof the public work, the maximum number of responding entities to be\nincluded on such list, the selection criteria to be used and the\nrelative weight of each criteria in generating such list. Such selection\ncriteria shall include the qualifications and experience of the entity\nor team of entities, organization, demonstrated responsibility, ability\nof the entity or team of entities or of a member or members of the\nentity or team of entities to comply with applicable requirements,\nincluding the provisions of articles one hundred forty-five, one hundred\nforty-seven and one hundred forty-eight of the education law, past\nrecord of compliance with the labor law, and such other qualifications\nthe trust deems appropriate, which may include but are not limited to\nproject understanding, financial capability and record of past\nperformance. The trust shall evaluate and rate all responding entities\nto the request for qualifications. Based upon such ratings, the trust\nshall list the responding entities that shall receive a request for\nproposals in accordance with subparagraph two of this paragraph. To the\nextent consistent with applicable federal law, the trust shall consider,\nwhen awarding any contract pursuant to this section, the participation\nof (i) responding entities that are certified as minority or women owned\nbusiness enterprises pursuant to article fifteen-A of the executive law,\nor certified pursuant to local law as minority or women owned business\nenterprises, (ii) small business concerns identified pursuant to\nsubdivision (b) of section one hundred thirty-nine-g of the state\nfinance law, and (iii) business concerns that provide economic\nopportunities for low and very low-income persons in accordance with\nsection three of the federal housing and urban development act of\nnineteen hundred sixty-eight, as amended, or any successor provision. In\naddition, nothing in this section shall be deemed to supersede any\nprequalification policies adopted by the trust pursuant to section six\nhundred thirty-three of this article.\n  (2) Step two. The second step shall be the selection of the proposal\nwhich is the best value to the trust. The trust shall issue a request\nfor proposals to the responding entities listed pursuant to subparagraph\none of this paragraph. If such a responding entity consists of a team of\nseparate entities, the entities that comprise such a team shall remain\nunchanged from the responding entity as listed pursuant to subparagraph\none of this paragraph unless otherwise approved by the trust. The\nrequest for proposals shall set forth the public work's scope of work,\nand other requirements, as determined by the trust, which may include\nseparate goals for work under the contract to be performed by businesses\ncertified as minority or women owned business enterprises pursuant to\narticle fifteen-A of the executive law, or certified pursuant to local\nlaw as minority or women owned business enterprises, or goals\nestablished pursuant to section three of the federal housing and urban\ndevelopment act of nineteen hundred sixty-eight, as amended, or any\nsuccessor provision, if applicable. The request for proposals shall also\nspecify the criteria to be used to evaluate the responses and the\nrelative weight of each of such criteria. Such criteria shall include:\nthe quality of the proposal's solution; the qualifications and\nexperience of the proposer; the proposal's cost, which may include\nfactors that may be considered individually or in the aggregate, such as\nthe proposed cost of design phase work, the proposed cost of\nconstruction phase work, or cost factors relating to construction phase\nwork, as applicable; and other factors deemed pertinent by the trust,\nwhich may include, but shall not be limited to, the proposal's manner\nand schedule of project implementation, the proposer's ability to\ncomplete the work in a timely and satisfactory manner, maintenance costs\nof the completed public work, maintenance of traffic approach, and\ncommunity impact. The trust may engage in negotiations or other\ndiscussions with all qualified vendors that have expressed interest,\nprovided that the trust maintains a written record of the conduct of\nnegotiations or discussions and the basis for every determination to\ncontinue or suspend negotiations, and further provided that if the trust\ndetermines for a particular contract or for a particular type of\ncontract that it is in the trust's best interest to negotiate or enter\ninto discussions with fewer proposers, it may make such a determination\nin writing. If the trust enters into such negotiations, the trust shall\nallow all proposers to revise their proposals upon conclusion of\nnegotiations, and the trust shall evaluate the proposers' revised\nproposals using the criteria included in the request for proposals. Any\ncontract awarded pursuant to this section shall be awarded to a\nresponsive and responsible proposer, which, in consideration of these\nand other specified criteria deemed pertinent, offers the best value as\ndetermined by the trust. The request for proposals shall include a\nstatement that proposers shall designate in writing those portions of\nthe proposal that contain trade secrets or other proprietary information\nthat are to remain confidential, so that the material designated as\nconfidential shall be readily separable from the proposal. Nothing in\nthis subdivision shall be construed to prohibit the trust from\nnegotiating final contract terms and conditions including cost. All\nproposals submitted shall be scored according to the criteria listed in\nthe request for proposals and such final scores shall be published on\nthe trust's website after the date upon which such contract may be\nimplemented.\n  (b) The trust, in awarding an alternative project delivery contract to\na contractor offering the best value may use the following types of\ncontracts:\n  (1) a cost-plus not to exceed guaranteed maximum price form of\ncontract in which the trust shall be entitled to monitor and audit all\ncosts. In establishing the schedule and process for determining a\nguaranteed maximum price, the contract between the trust and the\ncontractor shall include terms specifying the price for the design phase\nof the work, the scope of the work, and any applicable cost factors\nrelating to construction phase work that were included in the\ncontractor's proposal.  A fair and reasonable guaranteed maximum price\nfor the construction phase of the work, or portions of the construction\nphase of the work, may be agreed to as one or more amendments to such\ncontract based on developments in the design of the project that occur\nafter such contract is executed. Each guaranteed maximum price amendment\nshall: (i) describe the scope of the portion of the construction phase\nwork subject to the amendment, the cost of performing such work, and the\nmaximum costs of any contingencies related to such work, (ii) include a\ndetailed line item cost breakdown, (iii) include a list of all drawings,\nspecifications and other information on which the guaranteed maximum\nprice is based, (iv) include the dates of substantial and final\ncompletion on which the guaranteed maximum price is based, as\napplicable, and (v) include a schedule of unit prices. The trust shall\nmaintain a written record of each guaranteed maximum price amendment,\nwhich shall include a summary of the negotiation process and a\ndescription of the relevant developments in the design of the project,\nindependent cost estimates prepared by or on behalf of the trust, as\nrequired pursuant to a policy established by the trust, the contractor's\nactual cost schedules and unit prices, and any other factors that the\ntrust considered. If the trust and the contractor cannot agree upon a\nguaranteed maximum price for one or more portions of construction phase\nwork, the trust may direct the contractor to assign all or a portion of\nthe duties and rights under such alternative project delivery contract\nto another responsive and responsible proposer pursuant to subparagraph\ntwo of paragraph (a) of this subdivision that offered the best value of\nthe remaining proposers and that will agree to accept such assignment.\nThis subparagraph shall not be deemed to prohibit the use of any\ncontract terms or procedures pursuant to any other provision of law,\nincluding but not limited to provisions included in this article;\n  (2) a lump sum contract in which the contractor agrees to accept a set\ndollar amount for a contract which comprises a single bid without\nproviding a cost breakdown for all costs such as for equipment, labor,\nmaterials, as well as such contractor's profit for completing all items\nof work comprising the public work;\n  (3) incentive payments identified in the text of the contract for\nperformance objectives; or\n  (4) a combination of elements of the contract types listed herein.\n  2. All alternative project delivery contracts entered into pursuant to\nthis section shall include a clause requiring that any professional\nservices regulated by articles one hundred forty-five, one hundred\nforty-seven and one hundred forty-eight of the education law shall be\nperformed and stamped and sealed, where appropriate, by a professional\nlicensed in accordance with the appropriate article.\n  3. The submission of a proposal or responses or the execution of an\nalternative project delivery contract pursuant to this article shall not\nbe construed to be a violation of section six thousand five hundred\ntwelve of the education law.\n  4. Each alternative project delivery contract entered into by the\ntrust pursuant to this article shall comply with the objectives and\ngoals relating to the performance of design and construction services by\nminority and women owned business enterprises pursuant to section 6-129\nof the administrative code of the city of New York, or, for projects or\npublic works receiving federal aid, applicable federal requirements for\ndisadvantaged business enterprises or minority and women owned business\nenterprises and section three of the federal housing and urban\ndevelopment act of nineteen hundred sixty-eight, as amended, or any\nsuccessor provision, if applicable.\n  5. (a) Notwithstanding any provision of law to the contrary, all\nrights or benefits, including terms and conditions of employment, and\nprotection of civil service and collective bargaining status of all\nemployees of NYCHA and the trust solely in connection with the use of an\nalternative project delivery contract pursuant to this section shall be\npreserved and protected.\n  (b) The use of alternative project delivery contracts pursuant to this\nsection shall not result in the (1) displacement of any currently\nemployed worker of NYCHA or loss of position, including partial\ndisplacement such as a reduction in the hours of non-overtime work,\nwages or employment benefits, or result in the impairment of existing\ncollective bargaining agreements to which NYCHA is a party, or (2)\ntransfer of existing duties and functions related to maintenance and\noperations currently performed by existing employees of NYCHA to a\ncontractor.\n  (c) Employees of the trust and NYCHA serving in positions in newly\ncreated titles shall be assigned to the appropriate bargaining unit.\nNothing contained in this section shall be construed to affect (1) the\nexisting rights of employees of NYCHA pursuant to an existing collective\nbargaining agreement, (2) the existing representational relationships\namong employee organizations representing employees of NYCHA, or (3) the\nbargaining relationships between NYCHA and such employee organizations.\n  (d) Without limiting contractors' obligations under alternative\nproject delivery contracts to issue their own initial certifications of\nsubstantial completion and final completion, public employees of the\ntrust shall review and determine whether the work performed by\ncontractors is acceptable and has been performed in accordance with the\napplicable alternative project delivery contracts, and if such public\nemployees so determine, such public employees shall accept contractors'\nsubstantial or final completion of the public works as applicable.\nPerformance by public employees of the trust of any review described in\nthis subdivision shall not be construed to modify or limit contractors'\nobligations to perform the work in strict accordance with the applicable\nalternative project delivery contract or the contractors' or any\nsubcontractors' obligations or liabilities under any law.\n