With record infrastructure investment, don’t kneecap project delivery w/ PLA mandates on design/build or limits on using consultant design

By American Council of Engineering Companies of NY, Associated General Contractors of NYS, American Institute of Architects NYS, Minority & Women Contractors & Developers Association | March 25, 2022

Dear Governor Hochul, Majority Leader Stewart-Cousins and Speaker Heastie,

The American Council of Engineering Companies of New York (ACEC New York), the leading trade association representing the State’s consulting engineering and professional design industry, the Associated General Contractors of New York State, (AGC NYS) the leading statewide trade association representing union and open shop construction companies and The American Institute of Architects New York State (AIA NYS) strongly oppose the mandated project-labor agreement and Public Employee Utilization provisions of Senate and Assembly Budget Resolution (Budget – Part AA) which extends the Infrastructure Investment Act and expands the definition of an authorized entity that may utilize design-build contracts.

PLA Mandates Will Diminish the Value of Design-Build and Will Harm Efforts to Address the States’ Infrastructure Needs: 

Amending the design-build provision to add mandated project-labor agreements will significantly reduce or even negate the benefits found in the application of design-build and will significantly hinder the ability of New York State to timely deliver necessary infrastructure projects.  Throughout the country, states that have authorized the design-build form of project delivery have recognized the negative impact of such a PLA mandate and have thus refrained from imposing them in a similar manner.  Mandating PLAs on design-bill procurements will also send a clear signal to New York’s MWBE firms that they need not apply.  Most MWBE firms are open shop and, as a result, mandated PLAs would be a barrier to their participation in these procurements.  The negative impact of mandated PLAs on MWBE firms was described in great detail in New York State’s own 2016 Disparity Study.

Consultant Study Requirement Will Delay Delivery of Much Needed Infrastructure and Create and Undue Burden on State Agencies:

Requiring every State agency to initiate a study for a consultant contract over the specified amount would add several months to the front-end of a project and divert staff away from their core duties. Relative specifically to Design-Build projects, it will greatly diminish if not eliminate the value of the process.  In fact, it may place undue risk on the marketplace and have a chilling effect on competition.  Further, an in-house basis.

Required Presence of Public Employees on Design-Build Worksites is Unnecessary and Imposes Unnecessary Burden on Public Agencies

The proposed language requiring the presence of a public employee design professional on the site of a design-build project for the duration of the project as such employees deem fit is superfluous since there is no prohibition against such employees being on site. This complicated language accomplishes nothing and only serves to add uncertainty and confusion.

Risk Transfer Will Slow Down Projects

The schedule, completion and time benefits of design-build flow in part from the delegation of certain oversight responsibilities, and the attendant liability, to the design-build entity and the licensed professionals in its employ. The proposed transfer of responsibility for acceptance of certifications of conformance from the design build entity to public employee design professionals will likely diminish these time savings and add unnecessary risk to the State.

Sincerely yours,

John Evers, President & CEO – American Council of Engineering Companies of New York

Michael J. Elmendorf II, President & CEO – Associated General Contractors of New York State

Georgi Ann Bailey, Executive Vice President – American Institute of Architects NYS

Kenneth Thomas, Executive Director – Minority & Women Contractors & Developers Association