Requires public authorities and public benefit corporations to negotiate with professional firms providing architectural or engineering services in order from the most qualified to the least qualified with regard to the provision of services to the authority or corporation.
TITLE OF BILL: An act to amend the public authorities law, in relation to requiring public authorities and public benefits corporations to negotiate with professional firms providing architectural or engineering services in order from the most qualified to the least qualified with regard to the provision of services to the authority or corporation
PURPOSE OF THE BILL: This bill would allow public authorities a greater opportunity to negotiate with the most qualified architectural and engineering professional firms through annual statements of qualifications and performance data created by professional firms.
SUMMARY OF PROVISIONS: § 1-Amends subparagraph (iv) of paragraph (b) of subdivision 3 of § 2879 of the public Authorities Law.
§ 2-Effective date.
JUSTIFICATION: The intent of this bill is to ensure that public authorities and public benefit corporations receive the services of the most qualified contractor through the establishment of a new mechanism for the procurement of engineering, architectural and surveying services. Qualifications Based Selections (QBS) is a procurement process that is used widely throughout the country and has recently been adopted by New York City. Instead of cost-based procurement which focuses primarily on price, QBS procurement focuses on qualifications and experience as the paramount basis for selection. However, after the highest technically ranked firm is selected and the project scope is fully defined, QBS generates a realistic fee based on a fee proposal by the consultant and negotiations with the agency. If an agency cannot negotiate a fair price with the first choice consultant, it has the option to negotiate with the next highly qualified consultant, and so on. QBS allows agencies to select the design firm with the best experience, capabilities, technical approach and quality of personnel, matched to the needs of the project and the agency; generates better plans and specifications, resulting in higher quality contract documents that make bidding on an d carrying out construction easier; fosters the development of innovative, cost-effective design solutions at a fair market value, resulting in lower overall project costs; and generates design solutions that best meet the needs of the project, emphasizing public health, safety and quality of life. QBS is mandated in at least 46 other states and has proven to be an effective procurement tool. QBS generates competition by bringing more firms into the bidding process. As a result, owners are ensured a better project and a savings to the taxpayer.
LEGISLATIVE HISTORY: 2011-12: S.1361A/A.6814 2009-10: S.3531B/A.7056B - Passed Assembly
FISCAL IMPLICATIONS: Should result in cost savings for the State.
EFFECTIVE DATE: This act shall take effect immediately.
STATE OF NEW YORK ________________________________________________________________________ 414 2013-2014 Regular Sessions IN SENATE (PREFILED) January 9, 2013 ___________Introduced by Sen. DILAN -- read twice and ordered printed, and when printed to be committed to the Committee on Corporations, Authorities and Commissions AN ACT to amend the public authorities law, in relation to requiring public authorities and public benefit corporations to negotiate with professional firms providing architectural or engineering services in order from the most qualified to the least qualified with regard to the provision of services to the authority or corporation THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. Subparagraph (iv) of paragraph (b) of subdivision 3 of section 2879 of the public authorities law, as amended by chapter 383 of the laws of 1994, is amended to read as follows: (iv) as used in this subparagraph, the term "professional firm" shall be defined as any individual or sole proprietorship, partnership, corpo- ration, association, or other legal entity permitted by law to practice the professions of architecture, engineering or surveying. IT IS THE POLICY OF NEW YORK STATE TO NEGOTIATE CONTRACTS FOR ARCHI- TECTURAL AND/OR ENGINEERING SERVICES AND/OR SURVEYING SERVICES ON THE BASIS OF DEMONSTRATED COMPETENCE AND QUALIFICATION FOR THE TYPE OF PROFESSIONAL SERVICES REQUIRED AND AT FAIR AND REASONABLE FEES. IN THE PROCUREMENT OF ARCHITECTURAL, ENGINEERING AND SURVEYING SERVICES, THE CORPORATION SHALL ENCOURAGE PROFESSIONAL FIRMS ENGAGED IN THE LAWFUL PRACTICE OF THE PROFESSION TO SUBMIT AN ANNUAL STATEMENT OF QUALIFICATIONS AND PERFORMANCE DATA. THE CORPORATION FOR EACH PROPOSED PROJECT SHALL EVALUATE CURRENT STATEMENTS OF QUALIFICATIONS AND PERFORM- ANCE DATA ON FILE WITH THE CORPORATION. IF DESIRED, THE CORPORATION MAY CONDUCT DISCUSSIONS WITH THREE OR MORE PROFESSIONAL FIRMS REGARDING ANTICIPATED DESIGN CONCEPTS AND PROPOSED METHODS OF APPROACH TO THE ASSIGNMENT. THE CORPORATION SHALL SELECT, IN ORDER OF PREFERENCE, BASEDEXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD00703-01-3 S. 414 2
UPON CRITERIA ESTABLISHED BY THE CORPORATION, NO LESS THAN THREE PROFES- SIONAL FIRMS DEEMED TO BE THE MOST HIGHLY QUALIFIED TO PROVIDE THE SERVICES REQUIRED. EVERY CORPORATION SHALL NEGOTIATE A CONTRACT WITH THE HIGHEST QUALI- FIED PROFESSIONAL FIRM FOR ARCHITECTURAL AND/OR ENGINEERING SERVICES AND/OR SURVEYING SERVICES AT COMPENSATION WHICH THE CORPORATION DETER- MINES IN WRITING TO BE FAIR AND REASONABLE TO SUCH CORPORATION. IN MAKING THIS DECISION, THE CORPORATION SHALL TAKE INTO ACCOUNT THE ESTI- MATED VALUE OF THE SERVICES TO BE RENDERED, INCLUDING THE COSTS, THE SCOPE, COMPLEXITY AND PROFESSIONAL NATURE THEREOF. The corporation shall not refuse to negotiate with a professional firm solely because the ratio of the "allowable indirect costs" to direct labor costs of the professional firm or the hourly labor rate in any labor category of the professional firm exceeds a limitation generally set by the corporation in the determination of the reasonableness of the estimated cost of services to be rendered by the professional firm, but rather the corporation should also consider the reasonableness of cost based on the total estimated cost of the service of the professional firm which should include, among other things, all the direct labor costs of the professional firm for such services plus all "allowable indirect costs," other direct costs, and negotiated profit of the professional firm. "Allowable indirect costs" of a professional firm are defined as those costs generally associated with overhead which cannot be specifically identified with a single project or contract and are considered reasonable and allowable under specific state contract or allowability limits. SHOULD THE CORPORATION BE UNABLE TO NEGOTIATE A SATISFACTORY CONTRACT WITH THE PROFESSIONAL FIRM CONSIDERED TO BE THE MOST QUALIFIED, AT A FEE THE CORPORATION DETERMINES TO BE FAIR AND REASONABLE TO THE CORPORATION, NEGOTIATIONS WITH THAT PROFESSIONAL FIRM SHALL BE FORMALLY TERMINATED. THE CORPORATION SHALL THEN UNDERTAKE NEGOTIATIONS WITH THE SECOND MOST QUALIFIED PROFESSIONAL FIRM. FAILING ACCORD WITH THE SECOND MOST QUALIFIED PROFESSIONAL FIRM, THE CORPORATION SHALL FORMALLY TERMINATE NEGOTIATIONS. THE CORPORATION SHALL THEN UNDER- TAKE NEGOTIATIONS WITH THE THIRD MOST QUALIFIED PROFESSIONAL FIRM. SHOULD THE CORPORATION BE UNABLE TO NEGOTIATE A SATISFACTORY CONTRACT WITH ANY OF THE SELECTED PROFESSIONAL FIRMS, IT SHALL SELECT ADDITIONAL PROFESSIONAL FIRMS IN ORDER OF THEIR COMPETENCE AND QUALIFICATIONS AND IT SHALL CONTINUE NEGOTIATIONS IN ACCORDANCE WITH THIS SECTION UNTIL AN AGREEMENT IS REACHED. THE PROVISIONS OF THIS SUBPARAGRAPH SHALL ONLY APPLY TO ENGINEERING AND/OR ARCHITECTURAL SERVICES AND/OR SURVEYING SERVICES IN EXCESS OF TWENTY-FIVE THOUSAND DOLLARS AND SHALL NOT APPLY TO THE METROPOLITAN TRANSPORTATION AUTHORITY, THE NEW YORK CITY TRANSIT AUTHORITY OR THE TRIBOROUGH BRIDGE AND TUNNEL AUTHORITY OR TO ANY OF THEIR SUBSIDIARIES. S 2. This act shall take effect immediately.