2023 New York Laws › PBG - Public Housing › Article 15 - New York City Public Housing Preservation Trust › 634 - Alternative Project Delivery Contracts.

§  634. Alternative project delivery contracts. 1. Notwithstanding any
provision of law to the contrary, including but not limited  to  section
seventy-two hundred ten of the education law, and in conformity with the
requirements of this article, for any public work undertaken pursuant to
a project labor agreement the trust may use alternative project delivery
contracts,  provided  that  the  authority  to  advertise  a request for
qualification in accordance with this section shall  expire  five  years
after the effective date of this section.
(a)  A  contractor  selected by the trust to enter into an alternative
project delivery contract may be selected through a two-step method,  as
follows:
(1)  Step  one.  The  first  step shall be the generation of a list of
responding entities that have demonstrated  the  general  capability  to
perform  the  alternative  project  delivery  contract.  Such list shall
consist of a specified number of responding entities, as  determined  by
the  trust,  and  shall  be  generated  based upon the trust's review of
responses to a  publicly  advertised  request  for  qualifications.  The
trust's  request  for qualifications shall include a general description
of the public work, the maximum number  of  responding  entities  to  be
included  on  such  list,  the  selection  criteria  to  be used and the
relative weight of each criteria in generating such list. Such selection
criteria shall include the qualifications and experience of  the  entity
or  team of entities, organization, demonstrated responsibility, ability
of the entity or team of entities or of  a  member  or  members  of  the
entity  or  team  of  entities  to  comply with applicable requirements,
including the provisions of articles one hundred forty-five, one hundred
forty-seven and one hundred  forty-eight  of  the  education  law,  past
record  of  compliance with the labor law, and such other qualifications
the trust deems appropriate, which may include but are  not  limited  to
project   understanding,   financial   capability  and  record  of  past
performance. The trust shall evaluate and rate all  responding  entities
to  the  request  for qualifications. Based upon such ratings, the trust
shall list the responding entities that  shall  receive  a  request  for
proposals  in accordance with subparagraph two of this paragraph. To the
extent consistent with applicable federal law, the trust 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 enterprises pursuant to article fifteen-A of the executive law,
or  certified  pursuant to local law as minority or women owned business
enterprises,  (ii)  small  business  concerns  identified  pursuant   to
subdivision  (b)  of  section  one  hundred  thirty-nine-g  of the state
finance  law,  and  (iii)  business  concerns  that   provide   economic
opportunities  for  low  and  very low-income persons in accordance with
section three of the  federal  housing  and  urban  development  act  of
nineteen hundred sixty-eight, as amended, or any successor provision. In
addition,  nothing  in  this  section  shall  be deemed to supersede any
prequalification policies adopted by the trust pursuant to  section  six
hundred thirty-three of this article.
(2)  Step  two. The second step shall be the selection of the proposal
which is the best value to the trust. The trust shall  issue  a  request
for proposals to the responding entities listed pursuant to subparagraph
one of this paragraph. If such a responding entity consists of a team of
separate  entities,  the entities that comprise such a team shall remain
unchanged from the responding entity as listed pursuant to  subparagraph
one  of  this  paragraph  unless  otherwise  approved  by the trust. The
request for proposals shall set forth the public work's scope  of  work,
and  other  requirements,  as determined by the trust, which may include
separate goals for work under the contract to be performed by businesses

certified as minority or women owned business  enterprises  pursuant  to
article  fifteen-A  of the executive law, or certified pursuant to local
law  as  minority  or  women  owned  business  enterprises,   or   goals
established  pursuant  to section three of the federal housing and urban
development act of nineteen hundred  sixty-eight,  as  amended,  or  any
successor provision, if applicable. The request for proposals shall also
specify  the  criteria  to  be  used  to  evaluate the responses and the
relative weight of each of such criteria. Such criteria  shall  include:
the   quality   of  the  proposal's  solution;  the  qualifications  and
experience of the proposer;  the  proposal's  cost,  which  may  include
factors that may be considered individually or in the aggregate, such as
the   proposed   cost  of  design  phase  work,  the  proposed  cost  of
construction phase work, or cost factors relating to construction  phase
work,  as  applicable;  and other factors deemed pertinent by the trust,
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.  The  trust  may  engage  in  negotiations  or  other
discussions with all qualified vendors  that  have  expressed  interest,
provided  that  the  trust  maintains a written record of the conduct of
negotiations or discussions and the basis  for  every  determination  to
continue or suspend negotiations, and further provided that if the trust
determines  for  a  particular  contract  or  for  a  particular type of
contract that it is in the trust's best interest to negotiate  or  enter
into  discussions with fewer proposers, it may make such a determination
in writing. If the trust enters into such negotiations, the trust  shall
allow  all  proposers  to  revise  their  proposals  upon  conclusion of
negotiations, and  the  trust  shall  evaluate  the  proposers'  revised
proposals  using the criteria included in the request for proposals. Any
contract awarded  pursuant  to  this  section  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  trust.  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  confidential,  so that the material designated as
confidential shall be readily separable from the  proposal.  Nothing  in
this   subdivision  shall  be  construed  to  prohibit  the  trust  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  trust's  website  after  the  date  upon which such contract may be
implemented.
(b) The trust, in awarding an alternative project delivery contract to
a contractor offering the best value may  use  the  following  types  of
contracts:
(1)  a  cost-plus  not  to  exceed  guaranteed  maximum  price form of
contract in which the trust shall be entitled to monitor and  audit  all
costs.  In  establishing  the  schedule  and  process  for determining a
guaranteed maximum  price,  the  contract  between  the  trust  and  the
contractor shall include terms specifying the price for the design phase
of  the  work,  the  scope  of the work, and any applicable cost factors
relating  to  construction  phase  work  that  were  included   in   the
contractor's  proposal.   A fair and reasonable guaranteed maximum price
for the construction phase of the work, or portions of the  construction
phase  of  the  work, may be agreed to as one or more amendments to such
contract based on developments in the design of the project  that  occur

after such contract is executed. Each guaranteed maximum price amendment
shall:  (i)  describe the scope of the portion of the construction phase
work subject to the amendment, the cost of performing such work, and the
maximum  costs of any contingencies related to such work, (ii) include a
detailed line item cost breakdown, (iii) include a list of all drawings,
specifications and other information 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,   as
applicable,  and  (v) include a schedule of unit prices. The trust shall
maintain a written record of each guaranteed  maximum  price  amendment,
which  shall  include  a  summary  of  the  negotiation  process  and  a
description of the relevant developments in the design of  the  project,
independent  cost  estimates  prepared  by or on behalf of the trust, as
required pursuant to a policy established by the trust, the contractor's
actual cost schedules and unit prices, and any other  factors  that  the
trust  considered.  If  the trust and the contractor cannot agree upon a
guaranteed maximum price for one or more portions of construction  phase
work,  the trust may direct the contractor to assign all or a portion of
the duties and rights under such alternative project  delivery  contract
to  another responsive and responsible proposer pursuant to subparagraph
two of paragraph (a) of this subdivision that offered the best value  of
the  remaining  proposers and that will agree to accept such assignment.
This subparagraph shall not  be  deemed  to  prohibit  the  use  of  any
contract  terms  or  procedures  pursuant to any other provision of law,
including but not limited to provisions included in this article;
(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;
(3)  incentive  payments  identified  in  the text of the contract for
performance objectives; or
(4) a combination of elements of the contract types listed herein.
2. All alternative project delivery contracts entered into pursuant to
this section shall include a  clause  requiring  that  any  professional
services  regulated  by  articles  one  hundred  forty-five, one hundred
forty-seven and one hundred forty-eight of the education  law  shall  be
performed  and  stamped and sealed, where appropriate, by a professional
licensed in accordance with the appropriate article.
3. The submission of a proposal or responses or the  execution  of  an
alternative project delivery contract pursuant to this article shall not
be  construed  to  be  a  violation of section six thousand five hundred
twelve of the education law.
4. Each alternative project delivery  contract  entered  into  by  the
trust  pursuant  to  this  article  shall comply with the objectives and
goals relating to the performance of design and construction services by
minority and women owned business enterprises pursuant to 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  and  section  three  of  the  federal  housing  and   urban
development  act  of  nineteen  hundred  sixty-eight, as amended, or any
successor provision, if applicable.
5. (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 NYCHA and the trust solely in connection with the use of an

alternative  project delivery contract pursuant to this section shall be
preserved and protected.
(b) The use of alternative project delivery contracts pursuant to this
section  shall  not  result  in  the  (1)  displacement of any currently
employed  worker  of  NYCHA  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  to  which  NYCHA  is a party, or (2)
transfer of existing duties and functions  related  to  maintenance  and
operations  currently  performed  by  existing  employees  of NYCHA to a
contractor.
(c) Employees of the trust and NYCHA serving  in  positions  in  newly
created  titles  shall  be  assigned to the appropriate bargaining unit.
Nothing contained in this section shall be construed to affect  (1)  the
existing rights of employees of NYCHA pursuant to an existing collective
bargaining  agreement,  (2)  the existing representational relationships
among employee organizations representing employees of NYCHA, or (3) the
bargaining relationships between NYCHA and such employee organizations.
(d)  Without  limiting  contractors'  obligations  under   alternative
project  delivery contracts to issue their own initial certifications of
substantial completion and final completion,  public  employees  of  the
trust   shall  review  and  determine  whether  the  work  performed  by
contractors is acceptable and has been performed in accordance with  the
applicable  alternative  project  delivery contracts, and if such public
employees so determine, such public employees shall accept  contractors'
substantial  or  final  completion  of  the  public works as applicable.
Performance by public employees of the trust of any review described  in
this  subdivision shall not be construed to modify or limit contractors'
obligations to perform the work in strict accordance with the applicable
alternative  project  delivery  contract  or  the  contractors'  or  any
subcontractors' obligations or liabilities under any law.