N.Y. State Finance Law § 136-a: Contracts for architectural, engineering, geological, landscape architecture and surveying services

§ 136-a. Contracts for architectural, engineering, geological,

landscape architecture and surveying services. 1. As used in this

section: the term "professional firm" shall be defined as any individual

or sole proprietorship, partnership, corporation, association or other

legal entity permitted by law to practice the professions of

architecture, engineering, geology, landscape architecture or surveying.

The term "state department" shall be defined as those state government

departments, divisions or commissions empowered by the state to enter

into contractual agreements on behalf of the state of New York.

2. It is the policy of New York state to negotiate contracts for

architectural and/or engineering services and/or geological and/or

landscape architecture and/or surveying services on the basis of

demonstrated competence and qualification for the type of professional

services required and at fair and reasonable fees.

3. In the procurement of architectural, engineering, geological,

landscape architecture and surveying services, the requiring state

department shall encourage professional firms engaged in the lawful

practice of the profession to submit an annual statement of

qualifications and performance data. The requiring state department for

each proposed project shall evaluate current statements of

qualifications and performance data on file with the department. If

desired, the requiring state department may conduct discussions with

three or more professional firms regarding anticipated design concepts

and proposed methods of approach to the assignment. The state department

shall select, in order of preference, based upon criteria established by

the requiring state department, no less than three professional firms

deemed to be the most highly qualified to provide the services required.

4. The requiring state department shall negotiate a contract with the

highest qualified professional firm for architectural and/or engineering

services and/or geological service and/or landscape architecture and/or

surveying services at compensation which the department determines in

writing to be fair and reasonable to the state of New York. In making

this decision, the department shall take into account the estimated

value of the services to be rendered, including the costs, the scope,

complexity, and professional nature thereof. The department shall not

refuse to negotiate with a professional firm solely because the ratio of

the "allowable indirect costs" to direct labor costs of the professional

firm or the hourly labor rate in any labor category of the professional

firm exceeds a limitation generally set by the department in the

determination of the reasonableness of the estimated cost of services to

be rendered by the professional firm, but rather the department should

also consider the reasonableness of cost based on the total estimated

cost of the service of the professional firm which should include, among

other things, all the direct labor costs of the professional firm for

such services plus all "allowable indirect costs," other direct costs,

and negotiated profit of the professional firm. "Allowable indirect

costs" of a professional firm are defined as those costs generally

associated with overhead which cannot be specifically identified with a

single project or contract and are considered reasonable and allowable

under specific state contract or allowability limits. Should the

requiring state department be unable to negotiate a satisfactory

contract with the professional firm considered to be the most qualified,

at a fee the department determines to be fair and reasonable to the

state of New York, negotiations with that professional firm shall be

formally terminated. The requiring state department shall then undertake

negotiations with the second most qualified professional firm. Failing

accord with the second most qualified professional firm, the department

shall formally terminate negotiations. The requiring state department

shall then undertake negotiations with the third most qualified

professional firm. Should the requiring state department be unable to

negotiate a satisfactory contract with any of the selected professional

firms, it shall select additional professional firms in order of their

competence and qualification and it shall continue negotiations in

accordance with this section until an agreement is reached.

5. This legislation shall only apply to engineering and/or

architectural services and/or geological and/or landscape architecture

and/or surveying services in excess of twenty-five thousand dollars.