This is the New York State Society of Professional Engineers (NYSSPE) Spring 2013 Legislative Report prepared by Mark C. Kriss, Esq. (NYSSPE Legislative and Legal Counsel).
The 2013 Legislative Session commenced with the formation of an unprecedented “coalition government” in the New York State Senate. Four moderate Democratic senators headed by Senator Jeff Klein (the Independent Democratic Caucus or IDC) have joined thirty Republican Senators, together with Democratic Senator Simcha Felder, to elect Senator Skelos (R) from Long Island and Senator Jeff Klein (NYC) Co-Senate Majority Leaders. In order for legislation to reach the floor of the Senate both Senators Skelos and Klein must agree. Despite some skepticism to date, the Senate coalition has worked reasonably well with prompt action on gun control legislation aggressively promoted by Governor Cuomo, minimum wage and adoption of a timely State Budget for the 2013-2014 fiscal year. It is anticipated that the legislature will now turns its attention to a number of policy initiatives put forth by the Governor and legislative leaders. Among the topics in the political cross hairs are anti-corruption legislation, campaign finance reform (including consideration of public financing), ethics reform, and state mandate relief. In light of a series of recent scandals involving a number of state legislators anti-corruption legislation, campaign finance and ethics reform are likely to see some legislative action. On the other hand, mandate relief, so important to our counties, cites, town and villages, remains an elusive target.
A key cornerstone of the December 2011 Budget was 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 (joint venture).
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:
- The quality of the contractor’s performance on previous projects;
- The timeliness of the contractor’s performance on previous projects;
- The level of customer satisfaction with the contractor’s performance on previous projects;
- The contractor’s record of performing previous projects on budget and ability to minimize cost overruns;
- The contractor’s ability to limit change orders;
- The contractor’s ability to prepare appropriate project plans;
- The contractor’s technical capacities;
- The individual qualifications of the contractor’s key personnel;
- The contractor’s ability to assess and manage risk and minimize risk impact; and
- The contractor’s past record of compliance with article 15-A of the Executive Law.
Such basis shall reflect, wherever possible, objective and quantifiable 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.
Governor Cuomo’s 2013-2014 budget submittal included a proposal which would have substantially expanded the 2011 Design Build Pilot program. This proposal would have expanded the pilot to include virtually all state agencies and public authorities excluding SUNY and CUNY and permitted smaller projects (< 1.2 million dollars) to qualify in specified instances.
NYSSPE recommended that a number of quality assurance safeguards be adopted in connection with an expansion of the program. The Society urged that a bridging engineer be retained to act as the project owner’s expert for all design build projects. NYSSPE further recommended that retention of engineering services utilize QBS across the board. The recommendation applied to retention of a project engineer (owner’s representative or bridging engineer), as well as in connection with selection the principal design firm (PDF). Other recommendations included amendments to insure that PDF engineers will have unfettered access to an owner and/or his project representative and the use of independent testing firms with direct reports to the owner and/or his project representative. Finally, NYSSPE recommended inclusion of mandatory contractual indemnification language to prevent inequitable liability allocations to designers in the event of property and/or casualty loses.
As finally enacted the 2013-14 Budget did not include an expansion of the Design Build Pilot program as originally proposed by the Governor. NYSSPE remains vigilant and will continue to press for inclusion of the aforementioned quality assurance safeguards in forthcoming legislative proposal in this area.
Additional Bills Directly Impacting the Profession
Good Samaritan – Support
(S 3942/A4380A Senator Hannon/Assembly Englebright)
This legislation provides enhanced immunity to professional engineers who volunteer to assist victims in the wake of natural or man-made disasters. Federal law provides liability protection under specified circumstances for a 30 day period following a triggering event. Pursuant to federal law ordinary acts of negligence are covered and the entity which requested assistance will stand in the shoes of the volunteer and be responsible for any loses. This proposal would provide similar protection for up to 90 days. NYSSPE is working with the bill sponsors and other legislators to broaden this measure to provide additional protections to engineers who are retained in a post disaster period as well as volunteers. Post disaster recovery entails exposure to unusual liability risk which should be borne by the state or political subdivisions and not transferred to the design community. For example, in the wake of 911 terrorist attacks recovery workers sought compensation for exposure to toxic chemicals ingested via ambient air. Structural engineers assisting in the rescue and recovery phases of the post 911 operations had no control over the atmospheric analysis and the determination to proceed with rescue and recovery notwithstanding the atmospheric conditions. The EPA, DEC and other governmental bodies responsible for rescue and recovery should have been required to defend and indemnify the engineering community for its work preformed during the entire rescue and recovery period notwithstanding that a number of firm were retained soon after briefly volunteering.
QBS – Support
(S414 – Senator Dilan)
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 – Support
(S3334/A5301 – Senator Griffo/Assemblyman Pretlow)
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 and contractors.
Bachelor’s Degree Requirement for Licensure – Support
(NYSSPE – Draft Legislation)
Requires a Bachelor’s Degree as the minimum requirement for licensure. Despite a concerted effort to pass this legislation by NYSSPE and strong support from the State Education Department, union opposition from the Public Employees’ Federation (PEF) has created a roadblock to progress regarding this proposal. However, recent efforts to secure reconsideration of the issue by PEF’s leadership are underway and may lead to progress on the legislation. 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.
Licensure of Professional Geologists – Support
(S3810/A4753 – Senator Marcellino / Assemblyman Englebright)
NYSSPE strongly supports this legislation which provides for licensure of geologists. The bill provides that geologists are not authorized to provide design services. Further, professional engineers may provide any and all aspects of geology, subject to the general ethical constraint that the geological work to be undertaken by a professional engineer is within his or her area of competency. The legislation further expressly permits professional geologists to become principals in firms providing inter-professional design services (engineering, architecture, land surveying and/or landscape architecture).
Liberalization of Firm Ownership – Chapter 9 of the Laws of 2013
In 2011 the Society helped secure enactment of this legislation which permits non-licensees to own not more than twenty-four and 99/100 percent (24.99%) 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. This Chapter Amendment will enable existing professional service corporations to convert to a design professional service corporation with a minimum of red tape. NYSSPE is working with ACEC New York to enact parallel legislation to facilitate conversion of professional limited liability companies and registered limited liability partnerships practicing one or more of the design professions.
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 of significant interest:
Expansion of Exemptions to Engineering Licensure Requirement – Oppose
(A1267 – Assemblyman Gunther)
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 – Oppose
(S4603/A7110 – 2012 – Senator LaValle/Assemblymember Glick) (awaiting new bill #s)
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 – Oppose
(A3599 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 – Oppose
(A751 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.
In total NYSSPE monitors more than two hundred bills during a typical legislative session in furtherance of its mission to promote the role of the professional engineer in furtherance of public health, safety and welfare. NYSSPE leadership welcomes the input of its members.
Note: NYSSPE facilitates posting on this blog, but the views and accounts expressed herein are those of the author(s) and not the views or accounts of NYSSPE, its officers or directors whose views and accounts may or may not be similar or identical. NYSSPE, its officers and directors do not express any opinion regarding any product or service by virtue of reference to such product or service in this blog.