§ 3-17 Design-Build Services.
RCNY § 3-17
(a)Design-Build Services Procurement.
(1)Application. Proposals for design-build contracts shall only be solicited as authorized pursuant to Chapter 749 of the laws of 2019, as amended, or any other provision of law authorizing the use of Design-Build Services. Such procurements shall follow a two-step process: 1) RFQ; and 2) RFP.
(2)Step 1: RFQ.
(i)The RFQ is used to initiate a competitive selection for SOQs to establish a shortlist of the most highly qualified proposers.
(ii)The RFQ shall include: (A) a general description of the public work project, including but not limited to program goals, utility relocations, professional licensing requirements, project description and Design-Builder responsibilities, funding sources, list of stakeholders, anticipated project duration, contract type, payment structure, costs, and any special instructions, and, if applicable, a notice that the agency may issue one or more RFPs as a result of the RFQ and a potential list and description of work for each RFP; (B) the maximum number of proposers to be included on the shortlist; (C) general instructions including, but not limited to, rules of communications between proposers, rules of contact between vendors, and the process for questions or clarifications regarding the RFQ; (D) an overview of the procurement process including but not limited to the purpose of the RFQ and RFP and the procurement schedule; (E) the selection criteria to be used to evaluate the vendors, including any mandatory selection criteria set forth in the applicable state law and the relative weight of each criterion used to evaluate the vendors and generate the shortlist including but not limited to: ((i)) the qualifications and experience of the Design-Builder, including entities comprising the Design-Builder’s team; ((ii)) Design-Builder organization; ((iii)) demonstrated responsibility; ((iv)) ability of the Design-Builder to comply with applicable requirements, including the provisions of articles 145, 147 and 148 of the New York State Education Law; ((v)) past record of compliance with the New York State Labor Law; ((vi)) experience with M/WBEs or State-certified M/WBEs and the M/WBE program, and the vendor’s anticipated approach to meet M/WBE goals or, if applicable, experience with DBEs and the DBE program and the Design-Builder’s anticipated approach to meet DBE goals; and ((vii)) any other qualifications the agency deems appropriate, which may include, but is not limited to, understanding, financial capability, and record of past performance and experience. (F) SOQ evaluation process, including but not limited to, the evaluation objectives, evaluation factors, and requests for clarification process; (G) SOQ submission requirements including requirements, if any, for the electronic submission of SOQs, if applicable, and including but not limited to submission address, content requirements including fundamental qualifications, past performance and experience on projects, Design-Builder organization, management approach, description of experience in the line of work being considered including references, and known and potential conflicts of interest; (H) notice of vendor right to protest and file complaints on certain enumerated decisions; (I) agency rights and disclaimers; (J) notice of participation by M/WBEs and State-certified M/WBEs in City procurement, including but not limited to M/WBE policy, M/WBE goals, a notice that contract award shall comply with the objectives and goals of § 6-129 of the New York City Administrative Code (M/WBE and EBE Program) or article 15-A of the executive law, as well as to applicable provisions of federal, State, and other local laws, and executive orders; (K) a requirement for acknowledgment of amendments; (L) requirements of compliance with applicable laws; (M) general, as well as special terms and conditions, if applicable; (N) a provision that proposers should give specific attention to the identification of those portions of their SOQs that they deem to be confidential, proprietary information or trade secrets and provide any justification why such materials, upon request, should not be disclosed by the City. Such information must be easily separable from the non-confidential sections of the SOQs; (O) if applicable, a notice that selection for the shortlist is subject to completion of a PASSPort questionnaire and review of that information by the Department of Investigation; (P) if applicable, information regarding a stipend for unsuccessful qualified, responsive and responsible proposers who are selected for the shortlist and who comply with the relevant stipend criteria and requirements defined in the subsequent RFP and the anticipated stipend amount; and (Q) any other information as determined by the ACCO.
(iii)The RFQ shall be publicly advertised on the City’s website at least twenty-seven days prior to the due date for SOQs.
(iv)Evaluation Process. The agency shall evaluate and rate all vendors’ SOQs based on the selection criteria and evaluation factors set forth in the RFQ. Based upon the results of the evaluation and the ranking of the vendors based on such ratings, the agency shall select the responsive, responsible vendors for the shortlist that shall receive an RFP pursuant to 9 RCNY § 3-17(a)(3).
(v)The ACCO may, upon written approval by the CCPO, issue one RFQ that may result in multiple RFPs upon determination by the ACCO that it is in the best interest of the City to award multiple contracts to multiple Design-Builders and to allocate work among such Design-Builders with separate RFPs. The criteria to be considered by the ACCO in making such determination shall include the following: the nature of the Design-Build Services to be procured; a description of the public work project; the location(s) of the public work project; anticipated cost of the separate RFPs or awards; the capacity of proposers to provide all of the required Design-Build Services within the required timeframes; the potential advantage of multiple contracts (e.g., more favorable terms; more competitive pricing); efficiency in procurement administration and common market practice for certain asset classes; and justification for multiple awards from one RFQ.
(vi)Multiple evaluation committees may be established to evaluate SOQs submitted for a single RFQ for a public work project.
(vii)Randomized evaluation process. If the ACCO determines that such a high volume of competing SOQs is likely to be received that it will be infeasible for each member of the evaluation committee to read each SOQ, the ACCO may, subject to the approval of the CCPO, establish a pool of appropriate evaluators and then randomly assign each SOQ to at least three such evaluators for review.
(viii)Shortlist Notice. (A) Frequency. Notice of shortlist selection shall be posted publicly on the City’s website following the agency’s final determination of a shortlist. (B) Content. Such notice shall include: ((i)) agency name; ((ii)) title or brief description of the project to be procured; ((iii)) name of the shortlisted responding entities; and ((iv)) contact info for the shortlisted responding entities, if provided.
(3)Step 2: RFP.
(ix)Conduct of Discussions During Individual Proposal Discussions After Proposal Submission. (A) Proposers shall be accorded fair treatment with respect to any opportunity for discussions and revisions of proposals. If an agency elects to enter into individual discussions with a proposer, the agency must allow individual discussions with all proposers and give all proposers an equal opportunity to enter into individual discussions with the agency and modify their proposals. (B) The ACCO shall establish an agenda and schedule for conducting discussions. (C) If there is a need for any substantial clarification of, or change in, the RFP, the RFP must be amended to incorporate such clarification or change and shall be provided to all proposers. (D) Any oral clarification of a proposal shall be confirmed in writing by the proposer.
(x)Best and Final Offers. Best and final offers are the revised and corrected final proposals submitted by proposers after discussions, if any, have been held by the procuring agency. (A) The ACCO shall establish a common date and time for the submission of best and final offers. (B) Best and final offers shall be submitted only once unless the ACCO makes a determination that it is in the City’s best interest to conduct additional discussions and/or require another submission of best and final offers. (C) Proposers shall be informed that if they do not submit a notice of withdrawal or another best and final offer, their immediate previous offer will be construed as their best and final offer. (D) All best and final offers shall be maintained and handled in accordance with the control procedures contained in these Rules. (E) The ACCO may request best and final offers on the whole proposal or on any one or combination of its component parts (e.g., price, technical qualifications, approach, and/or capability). The request shall be the same for all proposers. (F) Best and final offers shall be evaluated in accordance with this subdivision.
(xi)Mistakes in Proposals. (A) Confirmation of Proposal. When the ACCO knows or has reason to conclude before award that a mistake has been made, he or she should request the proposer to confirm the proposal. If the proposer alleges mistake, the proposal may be corrected or withdrawn during any discussions that are held or if the conditions set forth in this subdivision are met. (B) Mistakes Discovered After Receipt of Proposals but Before Vendor Selection. ((i)) During Discussions Prior to Best and Final Offers. Once discussions are commenced with any proposer or after best and final offers are requested, any offeror may correct any mistake by modifying or withdrawing the proposal until the time and date set for receipt of best and final offers. ((ii)) Minor Informalities. Minor informalities, unless otherwise corrected by an offeror, shall be treated in accordance with 9 RCNY § 3-02(m)(3)(i). ((iii)) Correction of Mistakes. If discussions are not held or if the best and final offers upon which award will be made have been received, mistakes may be corrected and the intended correct offer considered only in accordance with 9 RCNY § 3-02(m)(3)(ii). (C) Mistakes Discovered After Vendor Selection. Mistakes shall not be corrected after vendor selection except in accordance with 9 RCNY § 3-02(m)(4). (D) Determinations Required. When a proposal is corrected or withdrawn, or correction or withdrawal is denied, a determination shall be prepared in accordance with 9 RCNY § 3-02(m)(5).
(xii)Vendor Selection and Documentation. The ACCO shall make a determination showing the basis on which the contract award was made to the responsible proposer whose proposal was determined to represent the best value to the City, in accordance with the evaluation criteria, including cost, quality, experience, efficiency and other factors, that are set forth in the RFP. Such final scores shall be published on the agency’s website after registration of such contract or the date upon which such contract may be implemented, if registration requirements do not apply. This determination shall be included in a Recommendation of Award. Each Recommendation for Award shall include at a minimum the following information: (A) justification of the award; (B) affirmative finding of responsibility for the selected proposer(s); (C) efforts to negotiate better value; and (D) if applicable, the stipends and amounts being provided to responsive and responsible proposers who complied with the relevant criteria and requirements defined in the RFP.
(4)Protests Procedures Applicable to the RFQ and RFP steps. Vendor protests shall be made only pursuant to the procedures set forth in 9 RCNY § 2-10, except for 9 RCNY § 2-10(a)(2), and vendors shall follow the following procedures with respect to protest submittal procedures: (i) Time for Protest - RFQ Step: (A) Any protests based on the form or content of the RFQ which is or should have been apparent prior to the date established for submittal of the SOQ must be filed no later than fourteen days before the SOQ due date, or if the SOQ due date is revised, no later than seven days before the revised SOQ due date. (B) Any protests other than those set forth in clause (4)(i)(A) above related to the RFQ must be filed no later than ten business days after the agency’s publication of the shortlist.
(b)Dispute Resolution. Resolution of Disputes arising out of design-build contract administration shall be governed by the following provisions rather than 9 RCNY § 4-09, and to the extent not inconsistent with this rule, the design-build contract: (1) Applicability. This section shall apply to disputes between the City and a Design-Builder that arise under, or by virtue of, a contract for design-build services. All contracts shall include a clause providing that such disputes shall be finally resolved in accordance with the provisions of this section. This section includes disputes raised by the Design-Builder solely about the scope of work delineated by the contract, the interpretation of contract documents, the amount to be paid for extra work or disputed work performed in connection with the contract, the conformity of the Design-Builder’s work to the contract, or the acceptability and quality of the Design-Builder’s work. For disputes that are eligible for ADR pursuant to the design-build contract (“ADR-Eligible Disputes”), the Design-Builder may either: (i) File a plenary action in accordance with applicable law and the terms of the contract; or (ii) Dispute the Agency Head’s final decision by following the procedure set forth in 9 RCNY § 3-17(b)(3). (A) An Agency’s decision to terminate of the contract for cause or other than for cause is not an ADR-Eligible Dispute. Such a decision may only be challenged pursuant to an Article 78 proceeding brought in New York Supreme Court, New York County, within four months of the issuance of the decision. (B) For other disputes, the Design-Builder may file an action in New York Supreme Court, New York County, in accordance with applicable law after the Agency Head has made a final decision. (C) Prior to filing a plenary action or presenting its dispute notice (“Notice of ADR Dispute”) to the Comptroller, the Design-Builder must comply with and exhaust the dispute resolution procedures contained in the contract, and the Agency Head must have issued their final decision, unless their time to do so has expired. (D) Once the Design-Builder has filed a Notice of ADR-Dispute, it may only challenge the Agency Head’s decision through the procedure set forth in 9 RCNY § 3-17(b)(3), and may not subsequently file a plenary action as to that dispute, unless the dispute is not an ADR Eligible Dispute. Once the Design-Builder has filed a plenary action, it may not pursue its dispute pursuant to 9 RCNY § 3-17(b)(3).
(c)Contract Administration. Except as provided in subdivision (b)(1) and (b)(2) of this Section or as otherwise stated in these Rules, 9 RCNY Chapter 4 titled Contract Administration shall apply to all contracts for Design-Build Services, including design-build contracts.
