NYS Budget Update (2015-2016) – Design Build

Of significant interest to NYSSPE and its membership is the renewal of the DESIGN BUILD pilot program first enacted in December of 2011.

S4610-A / A6721-A re-authorizes the use of design build for design and construction projects if undertaken by a number of state agencies and authorities. The legislation is virtually identical to the original pilot program, provided that the 2015 legislation calls for consultation with relevant local labor organizations and the construction industry. The 2015 legislation sunsets in April 1, 2017.

Specifically, the legislation applies to projects under the aegis of the New York State Thruway Authority, the Department of Transportation, the Office of Parks, Recreation and Historic Preservation, the Department of Environmental Conservation and the New York State Bridge Authority costing in excess of 1.2 million dollars.

The design build entity can be a single entity, such as a grandfather corporation permitted to offer and provide professional engineering services pursuant to Education Law Section 7209 (6), or may be comprised of more than one entity, such as a general contractor and a firm authorized to provide professional engineering services.

The legislation provides for a two step selection process. Step 1. A list of design build entities follows an advertised request for qualifications. Step 2. The agency or authority is charged with selecting the proposal which is the “best value” to the state. “Best value” means the basis for awarding contracts for services to the offerer that optimize quality, cost and efficiency, price and performance criteria, which may include, but is not limited to:
1. The quality of the contractor’s performance on previous projects;
2. The timeliness of the contractor’s performance on previous
projects;
3. The level of customer satisfaction with the contractor’s perform-
ance on previous projects;
4. The contractor’s record of performing previous projects on budget
and ability to minimize cost overruns;
5. The contractor’s ability to limit change orders;
6. The contractor’s ability to prepare appropriate project plans;
7. The contractor’s technical capacities;
8. The individual qualifications of the contractor’s key personnel;
9. The contractor’s ability to assess and manage risk and minimize
risk impact; and
10. The contractor’s past record of compliance with article 15-A of
the executive law.
Such basis shall reflect, wherever possible, objective and quantifi-
able analysis.

It is important to note that in instances when a design build entity consists of a team of separate entities, the team must remain unchanged from team initially submitted in response to the RFQ, unless the agency or authority undertaking the project agrees to a change. The RFQ selection criteria requires consideration of the qualifications and experience of participating design firms and expressly requires the credentialing of engineering firms to insure that they are authorized to do business in New York. Unfortunately, detailed quality assurance safeguards offered by NYSSPE and others within the design professional community have not been expressly incorporated into the legislation. At the same time, to date, most of these recommendations have been incorporated at the agency level.

In addition to authorizing design build as detailed above, the legislation permits the use of alternative construction awarding processes, including best value and cost-plus not to exceed a guaranteed maximum price.

(Summary by Mark C. Kriss, Legislative and Legal Counsel NYSSPE)

Note: NYSSPE facilitates posting on this blog, but the views and accounts expressed herein are those of the author(s) and not the views or accounts of NYSSPE, its officers or directors whose views and accounts may or may not be similar or identical.  NYSSPE, its officers and directors do not express any opinion regarding any product or service by virtue of reference to such product or service in this blog.

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