Transcript Slide 1

Office of Operations
2009 Fall Conference
Navigating Uncertain Times
SUNY Construction Training
Elizabeth Barry, Craig Coutant,
and Jacklyn Livi
October 21-22, 2009
Agenda
I.
II.
III.
IV.
V.
VI.
VII.
VIII.
IX.
Laws/New Bulletins/Procedures
Types of OSC Construction Reviews
Requirements
Emergency Construction Contracts
Construction Contract Package
Change Orders
Specific Allowances
OSC Contacts
Questions
Office of Operations 2009 Fall Conference
2
Laws

Education Law:



Article 5, Sections 201 - 292 SUNY
Article 8, Section 355 – SUNY Flex
If SUNY campus is letting their own
project
Article 8-A, Sections 370 – 384
If funded through State University
Construction Fund (SUCF)
Office of Operations 2009 Fall Conference
3
Laws (continued)

State Finance Law:
 Article 7, Section 112 – Comptroller’s approval
of contracts
 Article 9, Section 135 - WICKS/separate trades
 Article 9, Section 137 – Bonds
 Article 9, Section 139 – Retainage
 Article 9, Section 140 – Return of bid deposit
Office of Operations 2009 Fall Conference
4
Laws (continued)

Labor Law:


Article 8, Sections 220 – 223 Wage Rate
Requirements
Worker’s Compensation Law:



Article 8, Section 141-b – Debarring Contractor
or Subcontractor for violations
Article 4, Section 57 – WC Insurance Coverage
Article 9, Section 220 – Disability Benefits
Coverage
Office of Operations 2009 Fall Conference
5
Laws (continued)
Construction/Capital Project Definitions State Finance Law

Article 2, Section 2:


“…, construction, demolition or replacement of a
fixed asset or assets …”
“the major repair or renovation of a fixed asset,
or assets, which materially extends its useful life
or materially improves or increases its
capacity...”
Office of Operations 2009 Fall Conference
6
Laws (continued)
Construction/Capital Project Definitions State Finance Law (continued)

Article 9, Section 135:


“… construction, or alteration of buildings, or
any part thereof …”
Article 9, Sections 139-f & 146:

“… construction, reconstruction, or alteration of
any public work project…”
Office of Operations 2009 Fall Conference
7
Laws (continued)
Construction Definitions – Education Law

Article 8, Section 355:


“… construction, reconstruction, rehabilitation
or improvement of academic buildings,
dormitories and other facilities ...”
Article 8-A, Sections 370-378:

“… construction, acquisition, reconstruction,
rehabilitation or improvement project …”

“… improvement of a facility for the state
university …”
Office of Operations 2009 Fall Conference
8
Laws (continued)
Construction Definitions

SUNY Construction Contracting Procedures -7554

“… construction/alteration project …”

“… construction/renovation work …”


“… reconstruction …”
“… construction projects …”
Office of Operations 2009 Fall Conference
9
New Bulletins

DOB Budget Bulletin B-1184 – Spending
Controls
http://www.budget.state.ny.us/guide/bprm/bulletins/b1184_reissue.html

OSC G-235 Bulletin - Agency Contracts,
Non-Personal Service and Capital
Spending Controls for 2008-09
http://www.osc.state.ny.us/agencies/gbull/index.htm
Office of Operations 2009 Fall Conference
10
Procedures

SUNY
Construction
Contracting
Procedures
SUNY Construction Contracting Procedures 7554
http://www.suny.edu/sunypp/documents.cfm?doc_id=429
Office of Operations 2009 Fall Conference
11
Types of OSC Construction
Reviews



Non-Quick – a construction procurement
requiring all necessary documents be submitted
to OSC for review.
Quick – an expedited process audit of a
construction procurement (must be authorized by
OSC to participate in the Quick Contracting
Program).
Emergency - sudden and unexpected damage to
an existing building or facility requiring
immediate remediation in order to permit safe
usage, to protect the facility, or to protect the
life, health and safety of any person.
Office of Operations 2009 Fall Conference
12
Requirements
Advertising

City of Albany newspaper (Times Union)

A local paper of general circulation


Contract Reporter advertisement must
be published at least 15 business days
before bid due date
Contact a reasonable number of local
contractors
Office of Operations 2009 Fall Conference
13
Requirements
Wicks

When entire cost of the
construction or alteration of
building(s) exceeds $500k,
$1.5M or $3M, depending on
region, specifications must
be prepared and bid
separately for:



Plumbing and gas fitting.
Steam heating, hot water, heating ventilation
and air conditioning apparatus (HVAC).
Electric wiring and standard illuminating
fixtures.
Office of Operations 2009 Fall Conference
14
Requirements
Wicks (continued)

New Wicks Thresholds effective 7/1/2008:



$3M in Bronx, Kings, NY, Queens, and
Richmond counties
$1.5M in Nassau, Suffolk, and Westchester
counties
$0.5M in all other counties within the state
Office of Operations 2009 Fall Conference
15
Requirements
Wicks (continued)

When the entire cost of a project is within
the region’s threshold, the project does not
need separately prepared specifications
and the following applies:

Bids must contain a separate, sealed list naming
each subcontractor that the bidder will use to
perform the separate trade work.

After the low bid is announced, the sealed list of
subcontractors shall be opened & announced.

Any changes, thereafter, shall require approval
of the Campus.

The awarded vendor’s subcontractor list must
be submitted to OSC with procurement record.
Office of Operations 2009 Fall Conference
16
Requirements
Wicks (continued)


If Campus is bidding a project with State
University Construction Fund (SUCF)
money, the Campus may apply for an
SUCF Wicks waiver.
The SUCF approved Wicks waiver must
be submitted to OSC.
Office of Operations 2009 Fall Conference
17
Requirements
Wicks (continued)

If Campus is bidding its own project with
its own money, separate specifications
must be prepared for each trade when
the project value is greater than the
region’s threshold.
Office of Operations 2009 Fall Conference
18
Requirements
Prevailing Wages


Bid specifications & contract must contain
prevailing wage rate schedules for the
type of work and county where work is
being done.
Contact Department of Labor:
http://www.labor.state.ny.us/workerprotection/publicwork/
PWContents.shtm
Office of Operations 2009 Fall Conference
19
Requirements
Bonds

Labor & Material Bonds (Payment Bonds)
and Performance Bonds:




Required for SUNY construction projects over
$20,000 (SFL $200,000 single trade &
$100,000 for Wicks projects).
Labor & Material Bonds can’t be waived.
Bonds must equal the contract amount.
If more than one contract for project the
entire project must be fully bonded.
Office of Operations 2009 Fall Conference
20
Requirements
Bonds (continued)

Requires original signatures of vendor,
surety company and notary
acknowledgement

Surety Financial Statement

Surety Power of Attorney

Approved by Attorney General
Office of Operations 2009 Fall Conference
21
Requirements
Retainage

State Finance Law Section 139:


A minimum of 5 percent of each progress
payment is required to be retained.
In the rare case that the performance bond is
waived (waiving must occur before bid
opening, not after) retainage can be up to 20
percent.
Office of Operations 2009 Fall Conference
22
Requirements
Debarred Contractors

Labor Law allows Dept. of Labor to debar
contractors from bidding on public works
projects. Check DOL’s list at:
http://www.labor.state.ny.us/workerprotection/p
ublicwork/PDFs/debarred.pdf
or search DOL’s site at:
https://dbr.labor.state.ny.us/EDList/searchPage.
do
Office of Operations 2009 Fall Conference
23
Requirements
Worker’s Compensation Law

Article 8, Section 141-b


Contractors and their affiliates, convicted of a
misdemeanor or felony for violations of
Worker’s Comp. Law Sections 26, 52, or 131
shall be debarred from contracting or
subcontracting with NYS for a period of 1 to 5
years from the date of conviction.
Effective 7/11/2007
https://dbr.labor.state.ny.us/EDList/searchPage.do
Office of Operations 2009 Fall Conference
24
Requirements
Worker’s Compensation Law



Article 4, Section 57
 Requires Agencies/Campuses to ensure that
businesses entering into contracts have the
appropriate WC Insurance coverage.
Article 9, Section 220(8)
 Requires Agencies/Campuses to ensure that
businesses entering into contracts have the
appropriate Disability Benefits.
Effective 9/1/07 - Please note that ACORD (or
SUNY UF-14) forms are not acceptable proof of NYS
WC or Disability Benefits Insurance Coverage.
Acceptable forms revised 12/1/08.
http://www.wcb.state.ny.us/content/main/Employers/IM.pdf
Office of Operations 2009 Fall Conference
25
Requirements
DOB Budget Bulletin B-1184

Capital Spending Controls


Effective 11/4/08 – For New Contracts and
Change Orders (CO).
All construction projects require a DOB approved
Attachment A or an Agency approved Attachment
B (for Emergencies or 75% Federal Funded
projects).

SUNY Funded projects are exempt.

SUCF Funded projects are not exempt.

Attachment A & B forms must be approved in an
amount equal to or greater than contract
amount.
Office of Operations 2009 Fall Conference
26
Requirements
Bid Rejections

Per SUNY Procedures 7554 , Section III, F
(5):
 If the apparent low bidder cannot obtain the
required bonds, or informs SUNY they are not
able to meet the obligations of the contract, or
informs SUNY the bid was in error, etc., the
contract may be awarded to the next lowest
bidder.
 When a vendor withdraws their bid, SUNY
must determine whether to retain or return the
rejected bidder’s Bid Security subject to
compliance with SFL Article 9, Section 140.
Office of Operations 2009 Fall Conference
27
Requirements
Informalities - Major vs. Minor




Minor - Campus may allow reasonable
time for vendor to comply.
Major – Automatic bid rejection.
Informalities must be pre-defined by
Campus (ex. Signed and dated document,
open/available to public (website), etc).
Once defined, Campus cannot deviate
from list.
Office of Operations 2009 Fall Conference
28
Requirements
Alternates



Campus must determine the order of
selection for the Alternates and document
that order.
Once the selection order is defined, the
Campus must award based on that
predefined order.
If the Campus awards Alternates in any
order that deviates from the original
sequence, it may result in OSC nonapproving the contract.
Office of Operations 2009 Fall Conference
29
Requirements
Early Completion Bonuses, Delay
Claims
(as defined in the contract)


Compensation for work completed ahead
of schedule – calculations must be
reviewed carefully.
Delay Claims – delay shall be through no
fault of the contractor, such as site
unavailability, SUNY campus’ act or failure
to act. Costs attributed to the delay must
be detailed.
Office of Operations 2009 Fall Conference
30
Requirements
Encumbrances


Full encumbrances are required for
construction contracts.
Capital construction money is generally
reappropriated each year.
Office of Operations 2009 Fall Conference
31
Emergency Construction
Contracts



Refer to SUNY Procedures 7554, Part IV,
Section A, Paragraphs 1-2.
Identify the emergency (document
time, date, place, location and what
occurred).
Notify OSC, as soon as practicable,
seeking their concurrence and initiate
an emergency project.
Office of Operations 2009 Fall Conference
32
Emergency Construction
Contracts (continued)



Have Campus President or designee
approve/sign the written Emergency
Justification.
Submit a Contract Reporter Exemption
Request (CRER) to OSC following CUNY’s
7554 procedures.
Obtain a minimum of 3 verbal or written
quotes.
Office of Operations 2009 Fall Conference
33
Emergency Construction
Contracts (continued)

Bonds are waived.

Newspaper advertising is waived (via an
OSC approved CRER).

Submit OSC approved CRER with
contract submission.

Award to lowest responsible bidder.

Quotes must be reflected in
procurement record.

If lump sum bid, make sure there is a
scope of work.
Office of Operations 2009 Fall Conference
34
Construction Contract Package



Complete and submit the SUNY
Construction Procurement Record Checklist
(see handout).
Only Authorized Signatories, on file with
OSC, may sign the contract.
If low vendor/awarded vendor’s bid differs
from the A&E est and/or the next lowest
bid, include the Campus’ Price Justification
analysis.
Office of Operations 2009 Fall Conference
35
Construction Contract Package
(continued)



Include the “Less Than 3 Bid” letter analysis
showing how the Campus determined the specs
were not restrictive or ambiguous and how the
Campus attempted to achieve adequate
competition.
When submitting additional contract signature
pages for OSC to approve and return, separate
from the entire contract documents, make sure to
include the contract number on those pages.
Explain any irregularities/informalities
(major/minor) with the vendors’ bids and how the
Campus determined to proceed with award (i.e.,
Campus’ analysis reaching their conclusion).
Office of Operations 2009 Fall Conference
36
Change Orders

SUNY Procedures 7554, Part IV, Section E

Required Backup Documentation:

Approved DOB B-1184 Spending Control form

Description of modified/added/deleted work

Explanation as to what caused the change

Price reasonableness analysis

Explanation for time extension:

What caused the delay?

Was it through fault of the Contractor?

Will liquidated Damages be assessed?
Office of Operations 2009 Fall Conference
37
Change Orders (continued)


Time extension must be noted on the
UF-11 and AC340.
Submit up to four UF-11 forms:



Signed by Contractor and Authorized
Campus official.
At least one original, to be filed at OSC.
Upon approval, OSC will stamp and
return additional forms.
Office of Operations 2009 Fall Conference
38
Specific Allowance



NYS Law requires construction projects
be publicly bid.
A Specific Allowance is for the purchase
of integrated systems currently operating
at the Agency/Campus, and requires OSC
approval. These systems must be shown
to be the only systems that are
compatible and necessary to interface
with the existing systems.
Examples:



Fire alarm systems
Locks/security systems
Building/energy management systems
Office of Operations 2009 Fall Conference
39
Specific Allowance (continued)
Procedures for Specific Allowance Requests:



Agency/Campus submits a request to OSC
for an allowance to be included in a
building project for a particular vendor’s
system.
Request needs to include items identified
on the handout.
OSC reviews request and will make
determination to approve or non-approve.
Office of Operations 2009 Fall Conference
40
Specific Allowance (continued)
Procedures for Specific Allowance Requests
(continued):



OSC approval letter will be sent to the
Agency/Campus with the vendor’s name
and dollar amount of the allowance.
The amount of the Specific Allowance
becomes part of the specifications,
vendor’s bid and contract agreement.
The signed OSC approval letter should be
included in the contact procurement
record when contract is sent to OSC for
approval.
Office of Operations 2009 Fall Conference
41
Specific Allowance (continued)
OGS Statewide contracts for:
Security Systems and Solutions
Group 77201
Award #20191
[email protected]
An example of a justification if the product
is available on OGS Statewide Contracts
follows.
Office of Operations 2009 Fall Conference
42
Specific Allowance (continued)
Criterion – (Vendor’s Name) reviewed
these documents and determined the
price based on similar projects done at
other facilities and pricing in (Vendor’s
Name) contract with NYS OGS
Procurement Services. Based on this
information a cost of $_____ was
determined.
Office of Operations 2009 Fall Conference
43
Specific Allowance (continued)
Reasonable – (SUNY’s A&E) compared
the price for each of the products and
services listed in Vendor’s contract with
NYS OGS Procurement Services. The
cost of each product or service was equal
to or less than what was listed. Based on
this comparison, (SUNY’s A&E),
determined the Specific Allowance price
of $_____ is reasonable.
Office of Operations 2009 Fall Conference
44
OSC Contacts

Elizabeth Barry



Craig Coutant



(518)486-3033
[email protected]
(518)408-3797
[email protected]
Jacklyn Livi


(518)486-3001
[email protected]
Office of Operations 2009 Fall Conference
45
Questions
and
Discussion
Office of Operations 2009 Fall Conference
46
Thank you!