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replacement of the Tappan Zee Bridge, where the process is estimated
to save at least $1.5 billion in costs. There are about 17,378 highway
bridges in New York State, which the State Department of Transportation inspects once every two years.
Still, there is resistance to design/build for public projects. Its proponents argue that while design/build may not be the right choice
for every project, its potential for savings in time and money is critical
at a time when the state's infrastructure is aging and not keeping up
with public demand. Others, including some state legislators, labor
leaders and construction industry groups, believe it could lead to fewer public sector jobs as more design and engineering work is contracted out by government agencies and not done in-house. Others argue
that design/build can lead to a more subjective selection process
because bids would be evaluated for "best value" and not the lowest
bid, and could create incentives for more favoritism and corruption in
an industry that is no stranger to such ills.
Although most states have accepted that design/build is cheaper
and faster, New York lags behind. Significantly, it is expected that state
design/build legislation will not apply to the procurement process
of New York City agencies, which are required to use the design/bid/
build method. Some argue that New York City is further encumbered
by the Wicks law, which requires that all public construction projects
(with limited exceptions) be separately specified and bid out to certain trades rather than allowing the public entity to hire a contractor
who can then hire the various trade subcontractors itself.
The law applies to any public entity that is entering into a contract
for the construction, reconstruction or alteration of buildings in New
York City where the cost of such project exceeds $3 million. The Wicks
Law applies to projects outside of New York if the cost of the project
exceeds $1.5 million in Nassau, Suffolk or Westchester counties or
$500,000 in any other county in New York.
The public entity must bid and enter into separate contracts with
and oversee the work of trades working in plumbing and gas fitting;
steam heating, hot water heating, ventilating and air conditioning;
and electric wiring and standard illuminating fixtures.
Although courts have approved design/build in private construction,
state regulators are another matter.
The New York Court of Appeals, the state's highest court, has held
that a design/build contract does not involve the unauthorized
practice of engineering as long as the design work is performed under
a separate contract between the contractor and the licensed engineer
who is performing the engineering services.
The New York State Education Department (NYED), however,
does not agree. NYED has issued regulations that prohibit a general
contractor from subcontracting with a design professional to provide
Catalano Construction Inc. p.83
Catalano values the
longterm relationships it
builds with owners.
Okland's work on the
Raceway is on track.
Catalano Construction Inc.
Wurster Construction -
Brownsburg Medical Center
The Beck Group
design services to a third-party client.
Although the courts would permit design/
build for private projects, applicable regulations do not.
Does the conflict between the courts and
the NYED stop the use of design/build in
private construction in New York? At the very
least, it has had a dampening and confusing
effect. New rules that would authorize the
use of design/build would be a welcome
change for New York and could help make
construction there more efficient. However, the wheels of change move slowly for
design/build in the private sector.
Sarah Biser is a partner with Fox Rothschild LLP in New York City. She represents
owners, contractors, developers, architects and engineers, both in the United
States and abroad, in all stages of the construction process. Biser can be reached
at 646-601-7636 and email@example.com.
JUNE 2017 CONSTRUCTION-TODAY.COM