NY Pub Auth L § 3402 (2021)
2021 New York Laws PBA - Public Authorities Article 10-C - New York Health Care Corporations Title 2 - Nassau Health Care Corporation 3402 - Nassau Health Care Corporation.

§ 3402. Nassau health care corporation. 1. (a) There is hereby created a  state  board  to be known as the Nassau health care corporation which shall be a body corporate and  politic  constituting  a  public  benefit corporation.  (b)  The  corporation  shall  be governed by fifteen voting directors, eight of whom  shall  be  appointed  by  the  governor  as  provided  in paragraph  (c)  of this subdivision, three of whom shall be appointed by the county executive for initial terms of two years, and  four  of  whom shall  be appointed by the county legislature for initial terms of three years.  (c) Of the eight directors appointed by the  governor,  two  shall  be appointed  upon  the recommendation of the county executive, three shall be appointed upon the recommendation  of  the  majority  leader  of  the county  legislature,  one  shall be appointed upon the recommendation of the minority leader of the county legislature, one  shall  be  appointed upon  the recommendation of the speaker of the assembly and one shall be appointed upon the recommendation of  the  temporary  president  of  the senate.  (d)  Of  the  directors  first appointed by the governor, the director appointed upon the recommendation of  the  temporary  president  of  the senate, the director appointed upon the recommendation of the speaker of the  assembly, one of the directors appointed upon the recommendation of the county executive  and  one  of  the  directors  appointed  upon  the recommendation  of  the  majority leader of the county legislature shall serve for an  initial  term  of  four  years.  The  remaining  directors appointed  by the governor shall serve for an initial term of two years. Following their initial terms, directors shall serve for a term of  five years.   2.  (a) The county executive shall designate one of the fifteen voting directors as the chairperson of the board. The chairperson shall preside over all meetings of the board and shall have such other duties  as  the voting directors may direct.  (b)   The  voting  directors  of  the  corporation  shall  receive  no compensation for their services, but may be reimbursed for their  actual reasonable expenses.  (c)  Sixty  percent  of  the  voting  directors  then  in office shall constitute a quorum. No action shall be taken by the board of  directors except  pursuant  to  the favorable vote of a majority of the board at a meeting at which a quorum is present.   3. There shall be three non-voting directors which shall  include  the chief  executive officer of the corporation as appointed by the board of directors, one director  selected  by  the  county  executive,  and  one selected by the county legislature.   4.  The  board  of  directors shall select the chief executive officer subject to the approval of the county executive and shall determine  the salary  and  benefits of the chief executive officer of the corporation. The chief executive officer shall serve at the pleasure of the board  of directors  provided,  however,  that  removal  without  cause  shall not prejudice the contract rights, if any, of the chief executive officer.   5. Notwithstanding any inconsistent provision of any general,  special or  local  law,  ordinance, resolution or charter, no officer, member or employee of the state or of any public corporation shall forfeit his  or her  office  or  employment  by  reason  of  his  or  her  acceptance of appointment as  a  voting  director,  non-voting  director,  officer  or employee  of  the  corporation,  nor  shall  service  as  such  a voting director,  non-voting  director,   officer   or   employee   be   deemed incompatible  or  in  conflict  with  such  office,  or  employment, and provided further, however, that no public officer elected to his or  her  office pursuant to the laws of the state or any municipality thereof may serve as a member of the governing body of the corporation during his or her term of office.   6.  The  corporation  and its corporate existence shall continue until terminated by law, provided, however, that  no  such  termination  shall take  effect  so  long  as  the  corporation  shall  have bonds or other obligations outstanding, unless adequate provision has been made for the payment or satisfaction thereof. Upon termination of  the  existence  of the  corporation,  all  of  the rights and properties of the corporation then remaining shall pass to and vest in the county in  such  manner  as prescribed by law.   7. Contracts for public works or purchases to which the corporation is a  party  shall  be  subject  to the provisions of article five-A of the general municipal law except as provided in subdivisions eight and  nine of  this section. In addition to the procedures prescribed under section one hundred four of the general municipal law for the utilization of the terms of state contracts, the corporation may utilize  the  terms  of  a federal  government general services contract where the terms are to the advantage of the corporation and have been offered to the corporation by the contractor. When bids have already been received by the corporation, no purchase under a federal government general services  contract  shall be  made unless the purchase may be made upon the same terms, conditions and specifications at a lower price through such contractor.   8. It is the intent of the legislature that overall cost should in all cases be a major criterion in the selection of  project  developers  for award   of  contracts  pursuant  to  this  section  and  that,  wherever practical, such  contracts  should  be  entered  into  pursuant  to  the provisions  of  sections  one  hundred  one and one hundred three of the general municipal law. It is further the intent of  the  legislature  to acknowledge   the  highly  complex  and  innovative  nature  of  medical technology, diagnostic and treatment devices, the relative newness of  a variety   of  devices,  processes  and  procedures  now  available,  the desirability of a single point of responsibility for the development  of medical  treatment  and  diagnostic  facilities  and  the  economic  and technical utility of contracts for medical  projects  which  include  in their  scope  various  combinations  of design, construction, operation, management and/or maintenance responsibility over prolonged  periods  of time  and that in some instances it may be beneficial to the corporation to award a contract for a medical project on the basis of factors  other than  capital  cost alone, including but not limited to facility design, system reliability, efficiency, safety, long-term  operating  costs  and compatibility  with  other  elements  of  patient care. Accordingly, and notwithstanding the provisions of any general, special or local  law  or chapter,  a  contract  for  a  medical  project entered into between the corporation and any project developer pursuant to this  section  may  be awarded  pursuant  to  public  bidding  in  compliance with sections one hundred one and one hundred  three  of  the  general  municipal  law  or pursuant  to  the following provisions for the award of a contract based on evaluation of proposals  submitted  in  response  to  a  request  for proposals prepared by or for the corporation:  (a)  The  corporation shall require that each proposal to be submitted by a project developer shall include:  (i) information relating  to  the  experience  and  expertise  of  the project  developer on the basis of which said project developer purports to be qualified to carry out all work required by a  proposed  contract; the  ability  of the project developer to secure adequate financing; and proposals for project staffing, implementation of work  tasks,  and  the carrying out of all responsibilities by a proposed contract;  (ii)  a  proposal  clearly  identifying and specifying all elements of cost which would become charges to the corporation, in whatever form, in return for the  fulfillment  by  the  project  developer  for  the  full lifetime  of  a  proposed  contract,  including, as appropriate, but not limited  to  the  cost  of  planning,  design,  construction, operation, management and/or maintenance of any facility, and  clearly  identifying and  specifying  all  elements  of  revenue  which  would  accrue to the corporation from the operation of the facility or  device  or  from  any other  source; provided, that the corporation may prescribe the form and content of such proposal and that, in any event, the  project  developer must  submit  sufficiently  detailed  information  to  permit a fair and equitable evaluation by the corporation of such proposal; and  provided, further,  that  the corporation may set maximum allowable cost limits in any form in the request for proposals; and  (iii) such other information as the corporation may determine to  have a material bearing on its ability to evaluate any proposal in accordance with this subparagraph;  (b)  Prior to the issuance of a request for proposals pursuant to this paragraph, the corporation shall publish notice of such issuance  in  at least   one  newspaper  of  general  circulation.  Concurrent  with  the publication of such notice a draft request for proposals shall be  filed with the county commissioner of health.  (c) Proposals received in response to such request for proposals shall be  evaluated  by  the  corporation  as to net capital cost or, if a net revenue is projected, net revenue,  and  in  a  manner  consistent  with provisions  set forth in the request for proposals, and may be evaluated on the basis of additional factors, including but  not  limited  to  the technical  evaluation of the medical project including medical facility, facility design, system reliability, energy  balance,  annual  operating cost   and   efficiency.  The  evaluation  of  such  proposals  and  the determination of  whether  a  project  developer  is  "responsible"  may include,  but  shall  not  be  limited  to,  consideration,  in a manner consistent with provisions set forth in the request for  proposals,  the record  of  the  project  developer  in  complying  with  existing labor standards  and  recognizing  state  and  federally  approved  apprentice training  programs,  and  the  willingness  of  the project developer to provide for meaningful  participation  of  minority  group  persons  and business enterprises in the conduct of the work;  (d)  The  corporation  may  make  a  contract award to any responsible project developer selected pursuant to subparagraph (iii)  of  paragraph (a) of this subdivision based on a determination by the corporation that the  selected  proposal  is most responsive to the request for proposals and may negotiate with any project developer, provided, however, that if any award is made to any project developer whose total proposal does not provide either the lowest net cost, or if a net  revenue  is  projected, the  greatest  net  revenue,  of  any proposal received, the corporation shall adopt a resolution which includes particularized findings relevant to  factors  pursuant  to  such   subparagraph   indicating   that   the corporation's requirements are met by such award and that such action is in the public interest.   Whenever  the  corporation  enters  into  a  contract pursuant to this section for a medical project which involves construction the provisions of section two hundred twenty of the labor law shall  be  applicable  to such construction work.   9.   Every contract entered into between the corporation and a project developer, pursuant to the provisions of paragraph  (d)  of  subdivision eight of this section, for a medical project involving construction of a medical building by the project developer, shall contain provisions that  such  building  shall  be  constructed  through  construction  contracts awarded through competitive bidding in accordance  with  paragraphs  (a) through  (g)  of  this  subdivision;  that  the project developer or the project  developer's  construction  subcontractor  shall  furnish a bond guaranteeing prompt payment of  moneys  that  are  due  to  all  persons furnishing  labor  and  materials  pursuant  to the requirements of such construction contracts, and that a copy of such payment  bond  shall  be kept  by  the  corporation  and  shall  be  open  to  public inspection; provided, however, that the requirements of this subdivision  shall  not apply  when  the  cost  of  such  construction, exclusive of the cost of medical equipment and devices, is less than  one  million  five  hundred thousand dollars.  (a)   The   project  developer  shall  advertise  for  bids  for  such construction contracts in a daily newspaper having  general  circulation in the county.  Such advertisement shall contain a statement of the time and  place  where  all  bids  received  pursuant  to such notice will be publicly opened and read.  An  employee  of  the  corporation  shall  be designated  to  open  the  bids  at  the time and place specified in the notice. All bids received shall be publicly opened and read at the  time and  place  so  specified.  At  least five days shall elapse between the publication of such advertisement and date on which the bids are opened.  (b) Except as otherwise provided in section two hundred twenty-two  of the  labor  law,  when  the  entire  cost of constructing such building, exclusive of any medical equipment, apparatus or devices,  shall  exceed one  million  five hundred thousand dollars, the project developer shall prepare separate specifications for the following subdivisions  of  such work,  so  as  to  permit  separate  and  independent  bidding upon each subdivision:  (i) plumbing and gas fittings;  (ii)  steam  heating,  hot  water   heating,   ventilating   and   air conditioning apparatus; and  (iii) electric wiring and standard illuminating fixtures.  (c)  After  public  competitive  bidding,  the project developer shall award one or more separate contracts for each of the above  subdivisions of  such work, whenever separate specifications are required pursuant to paragraph (b) of this subdivision, and one or  more  contracts  for  the remainder  of  such work. The project developer may award such contracts at different times. Contracts awarded pursuant to this subdivision shall be awarded by the  project  developer  to  the  lowest  responsible  and responsive  bidder  and  shall be contracts of the project developer and not of the corporation which shall have no  obligation  or  liabilities, whatsoever,   thereunder.   The   project   developer   shall  have  the responsibility for the supervision,  coordination,  and  termination  of such  contracts, unless otherwise specified in contractual terms between the project developer and the corporation.  (c-1) Each bidder on a public work contract, where the preparation  of separate  specifications  is  not  required, shall submit with its bid a separate sealed list that names each subcontractor that the bidder  will use  to  perform  work on the contract, and the agreed-upon amount to be paid to each, for: (i) plumbing and gas fitting, (ii) steam heating, hot water heating, ventilating and  air  conditioning  apparatus  and  (iii) electric wiring and standard illuminating fixtures. After the low bid is announced, the sealed list of subcontractors submitted with such low bid shall be opened and the names of such subcontractors shall be announced, and  thereafter  any change of subcontractor or agreed-upon amount to be paid to each shall require the approval of  the  public  owner,  upon  a showing  presented  to  the public owner of legitimate construction need for such change, which shall be open to  public  inspection.  Legitimate  construction  need  shall  include,  but  not be limited to, a change in project specifications, a  change  in  construction  material  costs,  a change  to  subcontractor status as determined pursuant to paragraph (e) of  subdivision  two of section two hundred twenty-two of the labor law, or  the  subcontractor  has  become  otherwise  unwilling,   unable   or unavailable   to   perform   the   subcontract.   The  sealed  lists  of subcontractors submitted by all other bidders shall be returned to  them unopened after the contract award.  (d) In determining whether a prospective contractor is responsible and responsive,   the   project   developer  may  require  that  prospective contractors:  (i) have adequate financial resources or the ability  to  obtain  such resources;  (ii)  be  able  to  comply  with  the required or proposed delivery or performance schedule;  (iii) have a satisfactory record of performance;  (iv)  have  the  necessary   organization,   experience,   operational controls, and technical skills, or the ability to obtain them;  (v)   have   the  necessary  production,  construction  and  technical equipment and facilities, or the ability to obtain them; and  (vi) be eligible  to  receive  an  award  under  applicable  laws  and regulations and be otherwise qualified.  (e)  The  project  developer  may reject any bid of a bidder which the project developer determines to be nonresponsible  or  nonresponsive  to the advertisement for bids.  (f) The project developer may, in its discretion, reject all bids, and may  revise  bid specifications and may readvertise for bids as provided herein.  (g) Only as used in this section:  (i) "project developer" means any  private  corporation,  partnership, limited  liability  company, or individual, or combination thereof which has submitted a proposal in response to a request for proposals;  (ii) "construction" shall include  reconstruction,  rehabilitation  or improvement  exclusive  of  the installation and assembly of any medical equipment, apparatus or device;  (iii) "medical building" means that component  of  a  medical  project constituting  appurtenant structures or facilities necessary to house or render the remaining components  of  the  medical  project  operational. Medical  building  shall  not  include  apparatus,  equipment,  devices, systems, supplies or any combination thereof;  (iv)  "medical  project"  means  any  substantial  durable  apparatus, equipment,  device  or  system,  or  any  combination  of the foregoing, including  services  necessary  to  install,  erect,  or  assemble   the foregoing  and  any  appurtenant  structures  or facilities necessary to house or render the foregoing operational, to be used for the purpose of care, treatment or diagnosis of disease or injury or the relief of  pain and  suffering  of  sick  or injured persons. Medical projects shall not include ordinary supplies and equipment  expended  or  utilized  in  the customary care and treatment of patients.   10.  (a)  For  purposes of applying section eighty-seven of the public officers law, to the corporation, the term "trade secrets" shall include marketing strategy or strategic marketing plans,  analyses,  evaluations and  pricing  strategies  or  pricing  commitments  of  the corporation, relating to business development, which, if disclosed, would  be  likely to injure the competitive position of the corporation.  (b)  In  addition to the matters listed in section one hundred five of the public officers  law,  the  corporation  may  conduct  an  executive session  for  the purpose of considering marketing strategy or strategic  marketing plans, analyses, evaluations and  pricing  strategies  of  the corporation,  relating  to  business  development,  which, if disclosed, would be likely to injure the competitive position of the corporation.