2022 NYS Legislative Session
by Mark Kriss Esq., Legislative Counsel
Preliminarily, the Society’s leadership wants to again thank all of our members who helped advocate for legislation to require that an applicant seeking licensure as a professional engineer in New York State have a Bachelor’s Degree in Engineering (BDE). After a prolonged effort, over multiple legislative sessions, the bill has been signed into law, and the state has joined the majority of other states with similar licensure requirements. (The law does have a transition provision allowing those currently seeking licensure via the 12-year experience ladder to continue on their career path, provided a timely application is pursued with the State Education Department. In addition, the Commissioner of Education is authorized to permit exceptions to the BDE requirement including, for example, an applicant holding a bachelor’s degree in physics or mathematics and a master’s degree in engineering.)
- Indemnification – To be introduced early 2022
This legislation, which was previously vetoed by ex-Governor Cuomo, addresses the issue of design professional contractual indemnification on 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 design consulting firms for the cost of future contingent events such as property damage, personal injury 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, or 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 professions simply should not be compelled to provide indemnification for such conduct.
- Emergency Responder – Support
(A5769/Englebright and S6377/Savino) Combines Emergency Responder / Good Samaritan
As previously reported NYSSPE has joined a broad-based coalition, including other design professional organizations and the construction community, in support of this measure which combines enhanced good Samaritan protection with a proposal offering liability protection for emergency responders hired in the wake of a natural or man-made disaster. (The coalition includes the New York Building Congress, Associated General Contractors of New York, ACEC New York, AIA New York, and a number of other organizations representing the construction and design communities.)
In essence, this bill is designed to ensure that the liability for services rendered under emergency conditions (whether voluntary or based on contract) rests with the governmental bodies which are principally charged with restoring normalcy following a disaster. Under the proposal, service providers are held harmless in the absence of gross negligence or intentional wrongdoing for services rendered in the wake of a disaster. The governmental entity securing services will stand in the shoes of the design professional or contractor in instances of ordinary negligence, thereby affording the injured party a source of recovery. The measure does not apply to businesses whose primary business is responding to disasters fully cognizant of the risks such as a company routinely advertising its emergency response services.
- QBS – Support
(A8504 –Comptroller’s Program Bill)
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 passed the Assembly in 2010. 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. Adoption of QBS also helps to avoid steering of service contract to politically favored firms. Since former Governor Cuomo opposed expanding QBS, his departure from office has enhanced our assessment of the prospects for this bill. In fact, NYS Comptroller Thomas DiNapoli has advanced the legislation with the goal of to preventing some of the abuses identified under one or more prior administrations.
- Statute of Repose – Support
(A1706/S4127 – Assemblyman Pretlow/Senator Griffo)
This legislation creates a 10-year Statute of Repose requiring that actions for personal injury and wrongful death against a design professional and construction contractors be commenced not more than 10 years after a project is completed. The bill continues to face strong opposition from the New York State Trial Lawyers Association. NYSSPE has been assisted in its fight by other organizations including associations representing general contractors and AIA. [Read more…]