Spring 2012 Legislative Report

This is the New York State Society of Professional Engineers (NYSSPE) Spring 2012 Legislative Report prepared by Mark C. Kriss, Esq. (NYSSPE Legislative and Legal Counsel).

The 2012 Legislative Session has been marked by the strong leadership of Governor Andrew Cuomo, who has demonstrated an ability to leverage favorable public opinion to advance a number of key policy goals. Among other enactments, the Session has included reforms in the area of public sector pensions (Tier VI) and K-12 teacher evaluations. Redistricting reform has also been enacted and includes both constitutional and legislative components. The redistricting proposals are intended to add some measure of impartiality to the redistricting process. Redistricting occurs only once every 10 years, and as a result it is anticipated that the 2012 redistricting reforms will first be effective a decade from now.

In an unusual step in December of 2011 the Governor used the looming sunset of New York State’s then current personal income tax law, which fixed personal income taxes at the highest levels in the State’s history, to fashion a “middle class tax cut” while at the same time rasing taxes only marginally on “wealthiest” New Yorkers. Tax cuts and tax increases historically are part and parcel of the annual state budget which is enacted in the spring of each year. By advancing the date for addressing New York’s personal income tax rates to December of 2011, the Governor was able to cast the new tax rate structure in the best possible light. Additionally, the Governor was able to burnish his creditials as a fiscal moderate via a 2012-2013 State Budget which limited the growth in spending to 2% with “no new taxes”. Moreover, the Budget was past early for the second year running after almost two decades of late State fiscal plans.

Design Build

A key cornerstone of the December 2011 Budget is legislation authorizing the use of design build for design and construction projects undertaken by a number of state agencies and authorities.

Specifically, the legislation applies to projects under the aegis of the New York State Thruway Authority, the Department of Transportation, the Office of Parks, Recreation and Historic Preservation, the Department of Environmental Conservation and the New York State Bridge Authority costing in excess of 1.2 million dollars.

The design build entity can be a single entity, such as a grandfather corporation permitted to offer and provide professional engineering services pursuant to Education Law Section 7209 (6), or may be comprised of more than one entity, such as a general contractor and a firm authorized to provide professional engineering services.
The legislation provides for a two step selection process. Step 1. A list of design build entities follows an advertised request for qualifications. Step 2. The agency or authority is charged with selecting the proposal which is the “best value” to the state. “Best value” means the basis for awarding contracts for services to the offerer that optimize quality, cost and efficiency, price and performance criteria, which may include, but is not limited to:

1. The quality of the contractor’s performance on previous projects;
2. The timeliness of the contractor’s performance on previous projects;
3. The level of customer satisfaction with the contractor’s perform- ance on previous projects;
4. The contractor’s record of performing previous projects on budget and ability to minimize cost overruns;
5. The contractor’s ability to limit change orders;
6. The contractor’s ability to prepare appropriate project plans;
7. The contractor’s technical capacities;
8. The individual qualifications of the contractor’s key personnel;
9. The contractor’s ability to assess and manage risk and minimize risk impact; and
10. The contractor’s past record of compliance with article 15-A of the Executive Law.
Such basis shall reflect, wherever possible, objective and quantifi- able analysis.

It is important to note that in instances when a design build entity consists of a team of separate entities, the team must remain unchanged from the team initially submitted in response to the RFQ, unless the agency or authority undertaking the project agrees to a change. The legislation, unlike some previous proposals does not set forth an express qualifications based selection process for selection of the design firm, but each agency or authority is authorized to augment the “best value” criteria set forth above. NYSSPE has lobbied for the use of QBS and inclusion of a Certificate of Authorization requirement in the RFQ criteria.

The legislation had an immediate effective date and is subject to a three year sunset provision.

Additional Bills Directly Impacting the Profession

(S1363/A6814 – Senator Dilan/Assemblyman Benedetto)
On the affirmative front 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. 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. This legislation passed the Assembly in 2010.

Statute of Repose –
(S4782/A2475 – Senator Griffo/Assemblyman Canestrari)
This legislation creates a 10-year Statute of Repose requiring that actions for personal injury and wrongful death be commenced not more than 10 years after a project is completed. The bill continues to face vociferous opposition from the New York State Trial Lawyer’s Association. NYSSPE has been assisted in its fight by other organizations including, architects, builders, municipalities, and concerned citizen, all fighting to advance broad-based tort reform in New York, including passage of a Statute of Repose for PEs, RAs, contractors and manufacturers.

Bachelor’s Degree Requirement for Licensure
(NYSSPE – Draft Legislation)
Requires a Bachelor’s Degree as the minimum requirement for licensure. Despite a concerted effort to pass this legislation and strong support from the State Education Department, union opposition from the Public Employees’ Federation has created a roadblock to progress regarding this proposal. In addition to union opposition a number of key legislators oppose the bill arguing that increased formal educational requirements hurt those who are economically disadvantaged. The bill passed the Senate in 2006.

NYSSPE – Support/Neutral

Licensure of professional geologists-
(S2406/A4319 – Senator Thompson / Assemblyman Englebright)
NYSSPE supports legislation licensing geologists, provided geologists are not authorized to provide design services and professional engineers are not precluded from undertaking all aspects of geology within the province of a professional engineer.

NYSSPE – Opposed

The Society to date has been successful in our efforts to defeat a litany of other measures which threaten the interests of the profession as well as the public.

Following is a partial list of bills defeated to date:

Expansion of Exemptions to Engineering Licensure Requirement–
(A5827/S4357 Assemblyman Gunther/Senator Young)
This legislation expands a number of provisions in the Education Law which exempt certain projects from the requirement that design services be provided by a professional engineer. Firstly, pursuant to existing law, professional engineering services required for public projects must be performed by licensed professional engineers, subject to an exemption for minor public works, wherein the project requires an expenditure of less than $5,000.00. NYSSPE emphatically opposes an increase of 900% (to $50,000) in this monetary threshold that, if increased, will seriously jeopardize the public health, safety and welfare. Secondly, pursuant to present law, alterations to buildings and structures costing $10,000 or less, which do involve changes affecting structural safety or public safety, do not require a professional engineer. This bill increases the ceiling 400% to $50,000. Simply put, this change will jeopardize public safety. The determination of whether an alteration affects public safety should not, in the first instance, be left to the general public. Leaving these determinations to individuals lacking a professional engineering license is simply irresponsible. Building department officials and code officers are not professional engineers, they lack the experience needed to insure public safety.

Land Surveyor’s Scope of Practice–
(S4603/A7110 Senator LaValle/Assemblymember Glick)
The NYS Association of Professional Land Surveyors supports legislation to greatly expand the scope of practice of land surveying to include significant aspects of professional engineering and severely limit surveying and other services by Professional Engineers. The legislation reserves the “location of man-made structures and other objects related thereto” to land surveyors, thereby essentially prohibiting non-boundary surveying, including the preparation of site plans, regularly provided by Professional Engineers.

Indoor Air–
(S3471/A3122 Senator Oppenheimer/Assemblyman Lupardo)
Requires that, with respect to state owned leased or operated buildings, owners shall put in place an indoor environmental plan pertaining to building operations and maintenance and sets forth other indoor environmental standards. The Society has opposed the legislation insofar as it fails to expressly require plans and related activities to be undertaken/overseen by a Professional Engineer or Registered Architect.

Outdoor Lighting–
(A1478 Assemblyman Rosenthal)
This legislation provides for the management of outdoor night lighting promoting health, safety, and energy efficiency and reducing the harmful effects of outdoor lighting. The Society has voiced concerned regarding the portion of the legislation which could be construed to permit public officers to make engineering determinations.

Design Build–
(S3035/A4735 Senator Lavalle/Assemblyman Canestrari)
This legislation would permit a variety of state agencies and state and local authorities to broadly utilize alternative project design and construction methodologies, including design build and construction manager at risk. The legislation applies to projects undertaken by the New York State Department of Transportation, large city school districts, SUNY Construction Fund, CUNY Construction Fund, the NYC Educational Construction Fund, the Dormitory Authority of the State of New York, the Triborogh Bridge Authority, the Metropolitan Transit Authority and the New York City Transit Authority.

This legislation builds on the December 2011 Budget Bill discussed infra and includes some additional safeguards to protect against the dangers inherent in vesting too much authority in a general contractor. Safeguards include the use of qualifications based selection of design professionals and the use of qualified professional engineers and architects in the preparation of contract documents. Consideration should be given to the use of additional safeguards, such as the licensure of contractors, before enactment of this legislation.

Liberalization of Firm Ownership –
(S2987/A4581 – Senator LaValle/Assemblyman Canestrari))
In 2011 the Society helped secure enactment of this legislation which permits non-licensees to own not more than twenty-five percent (25%) of a Design Professional Service Corporation (i.e. firms permitted to practice professional engineering, architecture, landscape architecture and/or land surveying). The law helps to level the playing field among consulting firms, by allowing non-grandfathered companies the ability to offer a minority stake in the design firm to non-licensees. Grandfathered firms for decades enjoyed an unfair advantage over the vast majority of other consulting firm, since the grandfathered firms can be entirely owned by non-licensees. NYSSPE has been working with ACEC New York with regard to the implementation of this new law. Efforts are underway to recognize the authority of existing professional service corporations to convert to a design professional service corporation without the need for a formal disolution and refiling of a new certificate of authorization.

The New York State Society of Professional Engineers, Inc.
6 Airline Drive, Albany, NY 12205
Phone: 518-283-7490 Fax: 518-283-7495

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