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SUNY Construction Training Elizabeth Barry, Craig Coutant, and Jacklyn Livi

SUNY Construction Training Elizabeth Barry, Craig Coutant, and Jacklyn Livi. Agenda. Laws/New Bulletins/Procedures Types of OSC Construction Reviews Requirements Emergency Construction Contracts Construction Contract Package Change Orders Specific Allowances OSC Contacts Questions.

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SUNY Construction Training Elizabeth Barry, Craig Coutant, and Jacklyn Livi

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  1. SUNY Construction Training Elizabeth Barry, Craig Coutant, and Jacklyn Livi

  2. Agenda • 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

  3. 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

  4. 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

  5. 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

  6. 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

  7. 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

  8. 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

  9. Laws (continued) Construction Definitions • SUNY Construction Contracting Procedures -7554 • “… construction/alteration project …” • “… construction/renovation work …” • “… reconstruction …” • “… construction projects …” Office of Operations 2009 Fall Conference

  10. New Bulletins • DOB Budget Bulletin B-1184 – Spending Controls http://www.budget.state.ny.us/guide/bprm/bulletins/b-1184_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

  11. 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

  12. 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

  13. 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

  14. 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

  15. 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

  16. 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

  17. 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

  18. 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

  19. 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

  20. 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

  21. 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

  22. 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

  23. 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/publicwork/PDFs/debarred.pdf or search DOL’s site at: https://dbr.labor.state.ny.us/EDList/searchPage.do Office of Operations 2009 Fall Conference

  24. 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

  25. 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

  26. 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. • SUCFFunded projects are not exempt. • Attachment A & B forms must be approved in an amount equal to orgreater than contract amount. Office of Operations 2009 Fall Conference

  27. 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

  28. 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

  29. 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 non-approving the contract. Office of Operations 2009 Fall Conference

  30. 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

  31. Requirements Encumbrances • Full encumbrances are required for construction contracts. • Capital construction money is generally reappropriated each year. Office of Operations 2009 Fall Conference

  32. 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

  33. 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

  34. 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

  35. 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

  36. 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

  37. 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

  38. 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

  39. 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

  40. 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

  41. 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

  42. Specific Allowance (continued) OGS Statewide contracts for: Security Systems and Solutions Group 77201 Award #20191 joseph.better@ogs.state.ny.us An example of a justification if the product is available on OGS Statewide Contracts follows. Office of Operations 2009 Fall Conference

  43. 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

  44. 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

  45. OSC Contacts • Elizabeth Barry • (518)486-3033 • ebarry@osc.state.ny.us • Craig Coutant • (518)408-3797 • ccoutant@osc.state.ny.us • Jacklyn Livi • (518)486-3001 • jlivi@osc.state.ny.us Office of Operations 2009 Fall Conference

  46. Questions and Discussion Office of Operations 2009 Fall Conference

  47. Thank you!

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