REVISED: Memorandum In Opposition to New York City Design Build Authorization Bill

Please note the following memorandum replaces the memorandum previously published here.

MEMORANDUM IN OPPOSITION

            S8111 (Lanza) A10709 (Benedetto) New York City Design Build Authorization            

On behalf of the New York State Society of Professional Engineers (NYSSPE), in furtherance of public health, safety and welfare, we are writing in OPPOSITION to the above referenced bill. NYSSPE is a professional trade association representing the interests of its members and more generally the interests of all professional engineers (totaling more than 25,000 licensees in New York State) practicing in all disciplines (civil, structural, mechanical, electrical, geological, environmental, etc.) and practicing in all practice settings (private sector consulting, industry, government, and education.)

A 7590, in relevant part, would vest a number of New York City agencies with the authority to utilize a unique design build project delivery methodology for infrastructure public work projects. Design-build generally is a project delivery system wherein the design and construction of the project proceeds concurrently. This design-build process affords a faster construction timetable than the timetable required by the traditional design-bid-build delivery methodology. The latter entails the production of a set of plans and specifications, which are then offered for bid. (The traditional design-bid-build method construction is predicated upon detailed plans, specifications and performance criteria which clearly define the scope and components of the project before actual construction is commenced.)

NYSSPE has endorsed the use of design build as an alternative project delivery system, provided that the law authorizing same includes both express quality assurance safeguards and public safety protections. Currently, design build is permitted in both the public and private sectors in NYS. (NYSSPE’s websites set forth a summary of design build in New York in an FAQ format and provides a helpful overview most relevant to consideration of this legislation.) Laws authorizing design build must insure that the interests of the project owner and public safety are not compromised in the interest of time or potential cost savings. This can be achieved by requiring that the professional duties owned to the project owner and the public remain predominate.

The instant bill fails to incorporate sufficient quality assurance safeguards. For example, the instant legislation fails to insure that the quality assurance/control, inspection and oversight parameters to be employed on the project are determined by design professionals directly employed or retained by the project owner.

Further, the legislation will permit the selection of design services based on a low bid selection process without sufficient regard to quality based selection procedures (QBS). The use of QBS insures that the quality of the design team is given sufficient weight in the design build selection process. QBS employs a Request for Proposals which leads to the identification of qualified firms which are scrutinized to determine the firm best suited for the project. Price negotiations then ensue, and if the parties cannot agree, the next most qualified firm would be approached until a contract is consummated by the best qualified firm, subject to meaningful cost considerations.

The employment of QBS, which has been widely praised in New York and throughout the country, should not be impeded. The legislation should be amended to insure the broadest possible use of the QBS process in selection of design professionals.

Moreover the instant bill permits the proposer (general contractor) to dismiss a design firm in its discretion after a project has been awarded. In the absence of professional misconduct on the part of a design firm, which owes a duty to protect both the interests of the project owner and public, the proposer should not be afforded the right to discharge the design firm without the owner’s consent. Further, the bill fails to insure that the design professional will be afforded unfettered access to the project owner to insure that the designer can work collaboratively with the contractor to arrive at cost effective solutions which meet the owner’s requirements.

Additional safeguards include those advanced by the New York State Boards for Engineering, Land Surveying, Architecture and Landscape Architecture in a 2013 Summary Statement addressing the use of design build in the public sector. The recommendations of these Boards should be incorporated into the legislation before it is permitted to advance. (For example, the recommendation above respecting the need quality assurance/control, inspection and oversight parameters to be provided by a design professional directly employed or retained by the project owner is one of the many quality assurance safeguards set forth in the 2013 guideline.)

Accordingly, in the absence of amendments which address the concerns detailed herein NYSSPE remains opposed to this bill.

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.