By: Mark Kriss Esq., Legislative Counsel
Preliminarily, the Society’s leadership and I extend a sincere thank you to all NYSSPE members who have helped to advance our legislative and regulatory objectives. I am pleased to report that the Society was broadly successful in our efforts to defeat legislation adverse to the interest of the profession. Following are key issues which required an investment of our time and energy. While passage of NYSSPE’s affirmative legislative agenda, including our effort to secure enactment of a Statute of Repose, prevent the use of draconian Indemnification provisions in governmental contracts, and expand the use of QBS remains largely elusive, some progress has been made as detailed below. Moreover, I am pleased to report that a bill strongly supported by the Society, pertaining to adjacent property disputes, has been approved by both houses. (See item 1 below.)
Legislation passed both houses and awaiting delivery to the Governor:
- Adjacent Property – Improvements to the process to facilitate timely and fair resolution of adjacent property disputes when a property owner needs a license to enter upon a neighboring property to facilitate repair or construction – Strongly Support
A357 / S3799 ( Senator Comrie / Assemblymember Rajkumar )
NYSSPE had joined the Real Estate Board of New York, and other interested parties, to advance this legislation which is designed to improve the resolution of cases when access to adjacent parcels is needed to facilitate repairs or improvements to a parcel of property and the adjacent property owner is unwilling to cooperate. We will now be lobbying Governor Hochul to sign this bill when it reaches her desk.
Legislation pending before the NYS Legislature 2025- 2026:
- 2. Indemnification – Strongly Support
S4591 / A7379 – (Senator Cooney / Assemblyman Vanel)
This legislation, which was previously vetoed by former Governor Andrew Cuomo, addresses the issue of design professional contractual indemnification respecting public sector projects (state and local) and is strongly supported by NYSSPE. The legislation addresses public sector contracts wherein municipalities, state agencies and other governmental entities have inordinate leverage over the terms of indemnification. Presently, governmental entities can and do unfairly shift the burden to professional engineers and consulting firms for the cost of future contingent events such as personal injury, property damage and attendant attorneys’ fees.
Broad form defense and indemnification provisions subject design professionals to liability arising out of the circumstances that are well beyond the design professional’s scope of work and for matters over which the design professional has no control. Design professionals in many instances are unable to secure insurance to cover the scope of claims these provisions can generate. Many of the most highly qualified engineering firms simply refuse to participate in RFQs when confronted with adhesion contracts of this nature. As a result both public owners and taxpayers are deprived of the opportunity to benefit from their participation.
This bill addresses indemnification inequity by voiding contractual provisions requiring defense and indemnification involving a public work to the extent that a design professional is required to defend and indemnify a municipality, state agency, and other governmental entity or other parties for damages that are not the result of the negligence, recklessness, or willful misconduct of the design professional. Responsibility for losses related to the actions or failures of other parties that are unrelated to the design professional services rightfully rest with the at-fault party or parties. Design professionals simply should not be compelled to provide indemnification for such conduct.
This legislation continues to face opposition from the general contractor community and efforts are underway to address these concerns. NYSSPE has been most vocal in proposing a compromise placing a cap on designer liability based on the proportional share design services represent in relation to a project as a whole.
- QBS – Support
S 4577 / A5520 – (Senator Comrie / Assemblymember Hyndman)
This legislation requires the use of Qualifications Based Selection by Public Authorities and Public Benefit Corporations, in addition to state agencies. Expanded utilization of QBS has been a long sought-after goal of NYSSPE. In fact, due in substantial part to the Society’s efforts, similar legislation has previously passed the Assembly. QBS assures that price is not the sole criteria in the selection of professional engineering services by affording due consideration to the respective qualifications of consulting firms participating in the procurement process. The cost for design services is a small fraction of overall project costs. Getting the design right can significantly influence the overall cost of construction as well as ongoing life cycle costs. Simply put it is penny wise and pound foolish to employ a low bid methodology in the procurement of design services.
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