S 8394: Establishes the "county of Westchester public works investment act" which allows the Westchester county department of public works and the Westchester county department of transportation to utilize design-build project delivery.

  
  STATE OF NEW YORK ________________________________________________________________________ 8394 2025-2026 Regular Sessions  IN SENATE June 7, 2025 ___________ Introduced by Sen. STEWART-COUSINS -- read twice and ordered printed, and when printed to be committed to the Committee on Rules AN ACT in relation to enacting the "county of Westchester public works investment act"; and providing for the repeal of such provisions upon the 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 "county of Westchester public works investment act". 3 § 2. For the purposes of this act, the following terms shall have the 4 following meanings: 5 1. (a) "Authorized entity" shall mean the Westchester county depart- 6 ment of public works and the Westchester county department of transpor- 7 tation. 8 (b) If otherwise applicable, authorized projects undertaken by the 9 authorized entity shall be subject to section 101 of the general munici- 10 pal law; provided, however, that an authorized entity may fulfill its 11 obligations under section 101 of the general municipal law by requiring 12 the contractor to prepare separate specifications in accordance with 13 section 101 of the general municipal law, as the case may be. 14 2. "Authorized project" shall mean, in conformity with the require- 15 ments of this act, any installation, construction, demolition, recon- 16 struction, excavation, rehabilitation, repair, and renovation in 17 connection with the following: 18 (a) a public building known as the "Westchester County Labs and 19 Research Building", located at 10 Dana Road in the hamlet of Valhalla in 20 the town of Mount Pleasant, Westchester county, SBL No. 116.16-1-1 14; 21 (b) a public maintenance facility known as the "Westchester County 22 Department of Public Works Maintenance Facility", located at Hammond 23 House Road behind 65 Hammond House Road in the hamlet of Valhalla in the 24 town of Mount Pleasant, Westchester county, SBL No. 116.12-1-14; EXPLANATION--Matter in italics (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD10223-03-5 
 S. 8394 2 1 (c) a public building known as the "Westchester County Emergency 2 Services Building", located at 4 Dana Road in the hamlet of Valhalla in 3 the town of Mount Pleasant, Westchester county, SBL No. 116.16-1-1; 4 (d) a public building known as the "Westchester County Public Safety 5 Building", located at 1 Saw Mill River Road in the hamlet of Hawthorne 6 in the town of Mount Pleasant, Westchester county, SBL No. 106.18-1-2; 7 3. "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; 24 (11) The proposer's ability to comply with applicable requirements, 25 including the provisions of articles 145, 147 and 148 of the education 26 law; 27 (12) The proposer's past record of compliance with federal, state and 28 local laws, rules, licensing requirements, where applicable, and execu- 29 tive orders, including but not limited to compliance with the labor law 30 and other applicable labor and prevailing wage laws, article 15-A of the 31 executive law, and any other applicable laws concerning minority- and 32 women-owned business enterprise participation; 33 (13) The proposer's record of complying with existing labor standards, 34 maintaining harmonious labor relations, and protecting the health and 35 safety of workers and payment of wages above any locally-defined living 36 wage; and 37 (14) A quantitative factor to be used in evaluation of bids or offers 38 for awarding of contracts for bidders or offerers that are certified as 39 minority- or women-owned business enterprises pursuant to article 15-A 40 of the executive law. Where the authorized entity identifies a quanti- 41 tative factor pursuant to this paragraph, the authorized entity must 42 specify that businesses certified as minority- or women-owned business 43 enterprises pursuant to article 15-A of the executive law, as well as 44 those certified as minority- or women-owned business enterprises pursu- 45 ant to local law are eligible to qualify for such factor. Nothing in 46 this paragraph shall be construed as a requirement that such businesses 47 be concurrently certified as minority- or women-owned business enter- 48 prises under article 15-A of the executive law to qualify for such quan- 49 titative factors. Such basis shall reflect, wherever possible, objective 50 and quantifiable analysis. 51 4. "Cost plus" shall mean compensating a contractor for the cost to 52 complete a contract by reimbursing actual costs for labor, equipment and 53 materials plus an additional amount for overhead and profit. 54 5. "Design-build contract" shall mean a contract for the design and 55 construction of a public work with a single entity, which may be a team 56 comprised of separate entities. 
 S. 8394 3 1 6. "Project labor agreement" shall have the meaning set forth in 2 subdivision 1 of section 222 of the labor law. A project labor agreement 3 shall require participation in apprentice training programs in accord- 4 ance with paragraph (e) of subdivision 2 of such section. 5 § 3. Notwithstanding any general, special or local law, rule or regu- 6 lation to the contrary, including but not limited to article 5-A of the 7 general municipal law, and in conformity with the requirements of this 8 act, and only when a project labor agreement is performed in accordance 9 with section 222 of the labor law, an authorized entity may use the 10 alternative delivery method referred to as a design-build contract for 11 an authorized project in accordance with this act. 12 § 4. (a) A contractor selected by such an authorized entity to enter 13 into a design-build contract shall be selected through a two-step meth- 14 od, as follows: 15 (1) Step one. Generation of a list of responding entities that have 16 demonstrated the general capability to perform the design-build 17 contract. Such list shall consist of a specified number of responding 18 entities, as determined by an authorized entity, and shall be generated 19 based upon the authorized entity's review of responses to a publicly 20 advertised request for qualifications. The authorized entity's request 21 for qualifications shall include a general description of the public 22 work, the maximum number of responding entities to be included on the 23 list, the selection criteria to be used and the relative weight of each 24 criteria in generating the list. Such selection criteria shall include 25 the qualifications and experience of the design and construction team, 26 organization, demonstrated responsibility, ability of the team or of a 27 member or members of the team to comply with applicable requirements, 28 including the provisions of articles 145, 147 and 148 of the education 29 law, past record of compliance with the labor law, and such other quali- 30 fications the authorized entity deems appropriate, which may include but 31 are not limited to project understanding, financial capability and 32 record of past performance. The authorized entity shall evaluate and 33 rate all responding entities to the request for qualifications. Based 34 upon such ratings, the authorized entity shall list the responding enti- 35 ties that shall receive a request for proposals in accordance with para- 36 graph 2 of this subdivision. To the extent consistent with applicable 37 federal law, the authorized entity shall consider, when awarding any 38 contract pursuant to this section, the participation of: (i) responding 39 entities that are certified as minority- or women-owned business enter- 40 prises pursuant to article 15-A of the executive law, or certified 41 pursuant to local law as minority- or women-owned business enterprises; 42 and (ii) small business concerns identified pursuant to subdivision (b) 43 of section 139-g of the state finance law. 44 (2) Step two. Selection of the proposal which is the best value to the 45 authorized entity. The authorized entity shall issue a request for 46 proposals to the responding entities listed pursuant to paragraph 1 of 47 this subdivision. If such a responding entity consists of a team of 48 separate entities, the entities that comprise such a team must remain 49 unchanged from the responding entity as listed pursuant to paragraph 1 50 of this subdivision unless otherwise approved by the authorized entity. 51 The request for proposals shall set forth the public work's scope of 52 work, and other requirements, as determined by the authorized entity, 53 which may include separate goals for work under the contract to be 54 performed by businesses certified as minority- or women-owned business 55 enterprises pursuant to article 15-A of the executive law, or certified 56 pursuant to local law as minority- or women-owned business enterprises. 
 S. 8394 4 1 The request for proposals shall also specify the criteria to be used to 2 evaluate the responses and the relative weight of each of such criteria. 3 Such criteria shall include the proposal's cost, the quality of the 4 proposal's solution, the qualifications and experience of the proposer, 5 and other factors deemed pertinent by the authorized entity, which may 6 include, but shall not be limited to, the proposal's manner and schedule 7 of project implementation, the proposer's ability to complete the work 8 in a timely and satisfactory manner, maintenance costs of the completed 9 public work, maintenance of traffic approach, and community impact. Any 10 contract awarded pursuant to this act shall be awarded to a responsive 11 and responsible proposer, which, in consideration of these and other 12 specified criteria deemed pertinent, offers the best value, as deter- 13 mined by the authorized entity. The request for proposals shall include 14 a statement that proposers shall designate in writing those portions of 15 the proposal that contain trade secrets or other proprietary information 16 that are to remain confidential; that the material designated as confi- 17 dential shall be readily separable from the proposal. Nothing in this 18 subdivision shall be construed to prohibit the authorized entity from 19 negotiating final contract terms and conditions including cost. All 20 proposals submitted shall be scored according to the criteria listed in 21 the request for proposals and such final scores shall be published on 22 the authorized entity's website. 23 (b) An authorized entity awarding a design-build contract to a 24 contractor offering the best value may but shall not be required to use 25 the following types of contracts: 26 (1) A cost-plus not to exceed guaranteed maximum price form of 27 contract in which the authorized entity shall be entitled to monitor and 28 audit all costs. In establishing the schedule and process for determin- 29 ing a guaranteed maximum price, the contract between the authorized 30 entity and the contractor shall: 31 (i) Describe the scope of the work and the cost of performing such 32 work, 33 (ii) Include a detailed line item cost breakdown, 34 (iii) Include a list of all drawings, specifications and other infor- 35 mation on which the guaranteed maximum price is based, 36 (iv) Include the dates of substantial and final completion on which 37 the guaranteed maximum price is based, and 38 (v) Include a schedule of unit prices; or 39 (2) A lump sum contract in which the contractor agrees to accept a set 40 dollar amount for a contract which comprises a single bid without 41 providing a cost breakdown for all costs such as for equipment, labor, 42 materials, as well as such contractor's profit for completing all items 43 of work comprising the public work. 44 § 5. Any contract entered into pursuant to this act shall include a 45 clause requiring that any professional services regulated by articles 46 145, 147 and 148 of the education law shall be performed and stamped and 47 sealed, where appropriate, by a professional licensed in accordance with 48 the appropriate articles of the education law. 49 § 6. Construction with respect to each contract entered into by an 50 authorized entity pursuant to this act shall be deemed a "public work" 51 to be performed in accordance with the provisions of article 8 of the 52 labor law, as well as subject to sections 200, 240, 241 and 242 of such 53 law and enforcement of prevailing wage requirements pursuant to applica- 54 ble law or, for projects or public works receiving federal aid, applica- 55 ble federal requirements for prevailing wage. Any contract entered into 56 pursuant to this act shall include a clause requiring the selected 
 S. 8394 5 1 design builder to obligate every tier of contractor working on the 2 public work to comply with the project labor agreement referenced in 3 section three of this act, and shall include project labor agreement 4 compliance monitoring and enforcement provisions consistent with the 5 applicable project labor agreement. 6 § 7. Each contract entered into by an authorized entity pursuant to 7 this act shall comply with the objectives and goals with regard to 8 minority- and women-owned business enterprises, and, for projects or 9 public works receiving federal aid, applicable federal requirements for 10 disadvantaged business enterprises or minority- and women-owned business 11 enterprises. 12 § 8. Any authorized project undertaken by an authorized entity pursu- 13 ant to this act shall be subject to the requirements of article 8 of the 14 environmental conservation law, and, where applicable, the requirements 15 of the National Environmental Policy Act. 16 § 9. (a) Notwithstanding any provision of law to the contrary, all 17 rights or benefits, including terms and conditions of employment, and 18 protection of civil service and collective bargaining status of all 19 employees of authorized entities solely in connection with public works 20 undertaken by an authorized entity pursuant to this act, shall be 21 preserved and protected. 22 (b) Nothing in this act shall result in the: (1) displacement of any 23 currently employed worker or loss of position, including partial 24 displacement such as a reduction in the hours of non-overtime work, 25 wages or employment benefits, or result in the impairment of existing 26 collective bargaining agreements, (2) transfer of existing duties and 27 functions related to maintenance and operations currently performed by 28 existing employees of authorized entities to a contractor, or (3) trans- 29 fer of future duties and functions ordinarily performed by employees of 30 the authorized entities to the contracting entity. 31 (c) Employees of authorized entities using design-build contracts 32 serving in positions in newly created titles shall be assigned to the 33 appropriate bargaining unit. Nothing contained in this act shall be 34 construed to affect (1) the existing rights of employees of such enti- 35 ties pursuant to an existing collective bargaining agreement, (2) the 36 existing representational relationships among employee organizations 37 representing employees of such entities, or (3) the bargaining relation- 38 ships between such entities and such employee organizations. 39 (d) Without limiting contractors' obligations under design-build 40 contracts to issue their own initial certifications of substantial 41 completion and final completion, public employees of authorized entities 42 shall review and determine whether the work performed by contractors is 43 acceptable and has been performed in accordance with the applicable 44 design-build contracts, and if such public employees so determine, such 45 public employees shall accept contractors' substantial or final 46 completion of the public works as applicable. Performance by authorized 47 entities of any review described in this subdivision shall not be 48 construed to modify or limit contractors' obligations to perform the 49 work in strict accordance with the applicable design-build contracts or 50 the contractors' or any subcontractors' obligations or liabilities under 51 any law. 52 § 10. The submission of a proposal or responses or the execution of a 53 design-build contract pursuant to this act shall not be construed to be 54 a violation of section 6512 of the education law. 
 S. 8394 6 1 § 11. Nothing contained in this act shall limit the right or obli- 2 gation of any authorized entity to comply with the provisions of any 3 existing contract or to award contracts as otherwise provided by law. 4 § 12. A report shall be submitted no later than June 30, 2026 and 5 annually thereafter, to the governor, the temporary president of the 6 senate, the speaker of the assembly, the county executive and the chair 7 of the board of legislators for an authorized entity containing informa- 8 tion regarding each design-build contract procured by such authorized 9 entity pursuant to this act. Such report shall include a description of 10 each such design-build contract, information regarding the procurement 11 process for each such design-build contract including the list of 12 responding entities that demonstrated the general capability to perform 13 the design-build contract pursuant to paragraph 1 of subdivision (a) of 14 section four of this act, the total cost of each design-build contract, 15 an explanation of the estimated savings resulting from the design-build 16 method, and the participation rate of and total dollar value of monies 17 paid to minority- and women-owned business enterprises under such 18 design-build contract. 19 § 13. This act shall take effect immediately and shall expire and be 20 deemed repealed 3 years after such date, provided that, public works 21 with requests for qualifications issued prior to such repeal shall be 22 permitted to continue under this act notwithstanding such repeal.