Although not a new case, it is important that those involved 
in the construction industry are aware of this new law(S50002/A40002),
which was signed by Governor Cuomo on Dec 9, 2011.

Prior to this law, only public universities had legislative 
authority to enter into design-build contracts. This authority 
is now extended to include the Department of Transportation,
the Office of Parks, Recreation and Historic Preservation and 
the Department of Environmental Conservation for contracts 
of at least $1.2 million. 

Another highlight is that procurement involves a two-step process. 
Step 1 - a a list of contractors to receive a request for proposal 
will be established based on their qualifications. Step 2 - selection 
of the proposal will be based on "best value" to the State. 
Disappointed contractors will have the right of appeal.

Additionally, the agency is permitted to "establish such performance 
and payment bonds as it deems necessary." This is apparently in 
response to the concern that sureties are going to balk at bonding 
design-build projects for fear that they are going to become 
guarantors of the design which is not what contract bonds are all 
about.   

Also, this provision is incompatible with State Finance Law Section 
137 which requires payment bonds on public works projects basically 
over $100,000. However, it appears that for the sake of expediency 
subs and suppliers just got thrown under the bus. 

FOLLOWING IS A SUMMARY OF PROVISIONS:

Section 1 of this part would provide the title of the act:
"Infrastructure investment act".

Section 2 of this part states the Legislature's findings and
declarations.

Section 3 of this part sets forth applicable definitions for language
used in the bill.

Section 4 of this part would allow an authorized state entity to use
design build contracts for capital projects related to the State's physical
infrastructure, provided that for
contracts entered into by the Department of Transportation, the Office
of Parks, Recreation and Historic Preservation and the Department of
Environmental Conservation, the total cost of each project shall not
be less than $1,200,000.

Section 5 of this part would establish a two-step method to be used by
an authorized state entity to select an entity with which to enter
into a design build contract.

Section 6 of this part would require that any contact entered into
pursuant to the Act include a clause requiring that any professional
services regulated by Articles 145, 147, and 148 of the Education Law
will be performed by and, where appropriate, stamped and sealed by a
professional licensed in accordance with such articles.

Section 7 of this part would provide that construction for each
capital project undertaken pursuant to this section would be deemed a
"public work" to be performed in accordance with certain provisions
of the Labor Law and be subject to enforcement of the prevailing wage
requirements by the New York State Department of Labor.

Section 8 of this part states that, if otherwise applicable, § 222 of
the State Labor Law and § 135 of the State Finance Law would apply to
capital projects undertaken pursuant to this act.

Section 9 of this part would require that contracts entered into
pursuant to the act comply with the objectives and goals of minority
and women-owned businesses pursuant to article 15-A of the Executive
Law, or, in the case of projects receiving federal aid, comply with
federal requirements for disadvantaged business enterprises.

Section 10 of this part would provide that capital projects undertaken
pursuant to this Act would be subject to the requirements of article
8 of the Environmental Conservation Law and, where applicable, the
national environmental policy act.

Section 11 of this part specifies that, if otherwise applicable,
sections 139-d, 139-j, 139-k, paragraph 1 of subdivision 1 and
paragraph g of subdivision 9 of section 163 of the State Finance Law
will govern capital projects undertaken pursuant to this act.

Section 12 of this part would ensure that submissions of proposals or
responses, or execution of a contract pursuant to this act, will not
to be construed as violations of section 6512 of the Education Law.

Section 13 of this part would ensure that the act does not interfere
with provisions of existing contracts, including any existing
contract with or for the benefit of the holders of the obligations of
the authorized state entity, or rights to award contracts as
otherwise permitted by law.

Section 14 of this part would authorize alternative construction
contract awarding processes and details the rules governing such
processes. The contract may provide incentives to the contractor; and 
the agency may require performance and payment bonds as it deems
necessary.

Section 15 of this part would permit authorized state entities to
maintain a list of prequalified contractors who are eligible to
submit a proposal pursuant to the act and
contains a list of criteria that the authorized state entity may take
into consideration for prequalification. This section also would
permit a contractor who is denied
prequalification or whose prequalification is revoked or suspended to
appeal such decision, would provide that if a suspension extends for
more than three months, it will be deemed a revocation, and would
authorize the authorized state entity to proceed with the contract
award during any appeal.

Section 16 of this part states that provisions of this act will not
interfere with the existing powers of New York State public entities
to use alternative project delivery methods.

Section 17 of this part provides that the act will take effect
immediately and will be deemed repealed three years after the date of
enactment, provided that projects with requests for qualifications
issued prior to such repeal will be permitted to continue under this
act notwithstanding such repeal.

EXISTING LAW:

At present, the Department of Transportation, Thruway Authority,
Office of Parks, Recreation and Historic Preservation, Department of
Environmental Conservation, and the Bridge Authority do not have
authority to employ a design build project delivery method.

STATEMENT IN SUPPORT:

Investment in infrastructure is an essential part of a broader policy
to stimulate economic growth. The advantages of design build,
particularly the efficiency and cost savings it could bring to
capital projects, make it an essential tool to facilitate
infrastructure investment. Design build is a project delivery method
in which a single contract is executed with a single entity providing
engineering and construction services. It has proven   especially
useful for expediting infrastructure projects and. accelerating
capital investment; essential ingredients to spur growth,

Design build processes achieve this by (1) overlapping design and
construction, making it possible for materials and equipment
procurement and construction work to begin sooner, (2) reducing
potential for duplication of effort, (3) allowing for focus on best
value rather than on negotiated design cost and the initial low bid,
(4) reducing the potential for contractual disputes, and (5)
involving the contractor during design, an arrangement that helps
create conditions for innovation in construction technologies.
Moreover, these methods disperse some of the State's risk by making
the contractor solely responsible for the completed product, and
providing other motivation for the contractor to advance a quality,
on-time project throughout the design and construction process.

New York has a backlog of unmet infrastructure and capital needs and
limited funds to pay for them. Design-build has the potential to
create jobs and accelerate capital investments throughout the State.

LEGISLATIVE HISTORY:

This is a new proposal, though similar legislation has been proposed
in prior years.

BUDGET IMPLICATIONS:

The fiscal impact, of this pilot program cannot be projected. However,
in addition to job creation through the acceleration of projects,
there will be economic benefits to residents and communities if
projects are completed more quickly or additional projects are
completed.

EFFECTIVE DATE:

The proposal would take effect immediately.