N.Y. Public Housing Law § 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.