N.Y. Public Authorities Law § 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. All health facilities established, administered,

operated, and/or overseen by the corporation shall be subject to the

provisions of article twenty-eight of the public health law.

(a-1) Notwithstanding any inconsistent provision of law, on June

first, two thousand twenty-five, the term of each director currently in

office, including any vacant directorship, shall be deemed expired, and

the respective appointing authorities shall make new appointments in

accordance with this section. Each director may continue to serve in

holdover status until their successor is appointed.

(b) The corporation shall be governed by eleven voting directors, six

of whom shall be appointed by the governor as provided in paragraph (c)

of this subdivision, two of whom shall be appointed by the county

executive for initial terms of two years, two of whom shall be appointed

by the majority leader of the county legislature for initial terms of

three years, and one of whom shall be appointed by the minority leader

of the county legislature for an initial term of three years.

(c) Of the six directors appointed by the governor, 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. The directors appointed by the county executive, the

majority leader of the county legislature, and the minority leader of

the county legislature shall be residents of Nassau county. Of the

directors appointed by the governor, four of the directors, including

the directors appointed upon the recommendation of the speaker of the

assembly and the temporary president of the senate, shall be residents

of Nassau county.

(d) Of the directors first appointed on or after June first, two

thousand twenty-five, by the governor, the director appointed upon the

recommendation of the temporary president of the senate and the director

appointed upon the recommendation of the speaker of the assembly shall

serve for an initial term of two years. The remaining directors first

appointed on or after June first, two thousand twenty-five by the

governor shall serve for an initial term of four years. Following their

initial terms, directors shall serve for a term of five years.

2. (a) The governor shall designate one of the eleven 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) A majority 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

and, subject to approval of the Nassau county interim finance authority,

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.

11. All contracts or obligations entered into by the corporation for

over one million dollars shall be subject to the approval of the Nassau

county interim finance authority.