May 2014

PE REPORT
New York Society Backs QBS Expansion for Design-Build Projects

The New York State Society of Professional Engineers issued a position statement in March calling on Governor Andrew Cuomo to expand the use of qualifications-based selection for public projects in his 2014 capital projects budget proposal.

The governor’s budget proposal (S. 6357-B/A.8557-B), which seeks to address the state’s aging infrastructure and expedite project delivery, authorizes the use of design-build for specific public agencies: the State Thruway Authority; the Department of Transportation; the Office of Parks, Recreation, and Historic Preservation; the Department of Environmental Conservation; and the State Bridge Authority. The current proposal is similar to the 2011 budget proposal, but includes a requirement for project labor agreements on specific projects that exceed $10 million and a three-year sunset provision.

NYSSPE originally objected to the 2011 proposal because it failed to require use of qualifications-based selection to procure all professional design services. NSPE supports the procurement of design professional services on the basis of qualifications and strongly supports the the Brooks Act of 1972, which requires federal agencies to use QBS when obtaining the services of a design professional. The Society also supports the adoption of “mini-Brooks” laws at the state and local level.

NYSSPE believes that a mandatory indemnification agreement that provides a fair and balanced contractual indemnification between the project owner and the design-build participants is essential to improving the legislation. Currently, government contracts largely place an undue burden on design consulting firms and contractors for both damages and costs, the statement says.

The legislation should also require project owners to hire a licensed architect or PE to serve as the owner’s expert, says NYSSPE. The requirement seeks to alleviate concerns about the ability of the contractor to exert undue influence on a principal design firm or team of design firms. A quality-assurance provision would also provide the principal design firm unrestricted access to the project owner and the owner’s design professional.