Section 3402. Nassau health care corporation

1. (a) There is hereby created
  a  state  board  to be known as the Nassau health care corporation which
  shall be a body corporate and  politic  constituting  a  public  benefit
  corporation.
    (b)  The  corporation  shall  be governed by fifteen voting directors,
  eight of whom  shall  be  appointed  by  the  governor  as  provided  in
  paragraph  (c)  of this subdivision, three of whom shall be appointed by
  the county executive for initial terms of two years, and  four  of  whom
  shall  be appointed by the county legislature for initial terms of three
  years.
    (c) Of the eight directors appointed by the  governor,  two  shall  be
  appointed  upon  the recommendation of the county executive, three shall
  be appointed upon the recommendation  of  the  majority  leader  of  the
  county  legislature,  one  shall be appointed upon the recommendation of
  the minority leader of the county legislature, one  shall  be  appointed
  upon  the recommendation of the speaker of the assembly and one shall be
  appointed upon the recommendation of  the  temporary  president  of  the
  senate.
    (d)  Of  the  directors  first appointed by the governor, the director
  appointed upon the recommendation of  the  temporary  president  of  the
  senate, the director appointed upon the recommendation of the speaker of
  the  assembly, one of the directors appointed upon the recommendation of
  the county executive  and  one  of  the  directors  appointed  upon  the
  recommendation  of  the  majority leader of the county legislature shall
  serve for an  initial  term  of  four  years.  The  remaining  directors
  appointed  by the governor shall serve for an initial term of two years.
  Following their initial terms, directors shall serve for a term of  five
  years.
    2.  (a) The county executive shall designate one of the fifteen voting
  directors as the chairperson of the board. The chairperson shall preside
  over all meetings of the board and shall have such other duties  as  the
  voting directors may direct.
    (b)   The  voting  directors  of  the  corporation  shall  receive  no
  compensation for their services, but may be reimbursed for their  actual
  reasonable expenses.
    (c)  Sixty  percent  of  the  voting  directors  then  in office shall
  constitute a quorum. No action shall be taken by the board of  directors
  except  pursuant  to  the favorable vote of a majority of the board at a
  meeting at which a quorum is present.
    3. There shall be three non-voting directors which shall  include  the
  chief  executive officer of the corporation as appointed by the board of
  directors, one director  selected  by  the  county  executive,  and  one
  selected by the county legislature.
    4.  The  board  of  directors shall select the chief executive officer
  subject to the approval of the county executive and shall determine  the
  salary  and  benefits of the chief executive officer of the corporation.
  The chief executive officer shall serve at the pleasure of the board  of
  directors  provided,  however,  that  removal  without  cause  shall not
  prejudice the contract rights, if any, of the chief executive officer.
    5. Notwithstanding any inconsistent provision of any general,  special
  or  local  law,  ordinance, resolution or charter, no officer, member or
  employee of the state or of any public corporation shall forfeit his  or
  her  office  or  employment  by  reason  of  his  or  her  acceptance of
  appointment as  a  voting  director,  non-voting  director,  officer  or
  employee  of  the  corporation,  nor  shall  service  as  such  a voting
  director,  non-voting  director,   officer   or   employee   be   deemed
  incompatible  or  in  conflict  with  such  office,  or  employment, and
  provided further, however, that no public officer elected to his or  her

  office pursuant to the laws of the state or any municipality thereof may
  serve as a member of the governing body of the corporation during his or
  her term of office.
    6.  The  corporation  and its corporate existence shall continue until
  terminated by law, provided, however, that  no  such  termination  shall
  take  effect  so  long  as  the  corporation  shall  have bonds or other
  obligations outstanding, unless adequate provision has been made for the
  payment or satisfaction thereof. Upon termination of  the  existence  of
  the  corporation,  all  of  the rights and properties of the corporation
  then remaining shall pass to and vest in the county in  such  manner  as
  prescribed by law.
    7. Contracts for public works or purchases to which the corporation is
  a  party  shall  be  subject  to the provisions of article five-A of the
  general municipal law except as provided in subdivisions eight and  nine
  of  this section. In addition to the procedures prescribed under section
  one hundred four of the general municipal law for the utilization of the
  terms of state contracts, the corporation may utilize  the  terms  of  a
  federal  government general services contract where the terms are to the
  advantage of the corporation and have been offered to the corporation by
  the contractor. When bids have already been received by the corporation,
  no purchase under a federal government general services  contract  shall
  be  made unless the purchase may be made upon the same terms, conditions
  and specifications at a lower price through such contractor.
    8. It is the intent of the legislature that overall cost should in all
  cases be a major criterion in the selection of  project  developers  for
  award   of  contracts  pursuant  to  this  section  and  that,  wherever
  practical, such  contracts  should  be  entered  into  pursuant  to  the
  provisions  of  sections  one  hundred  one and one hundred three of the
  general municipal law. It is further the intent of  the  legislature  to
  acknowledge   the  highly  complex  and  innovative  nature  of  medical
  technology, diagnostic and treatment devices, the relative newness of  a
  variety   of  devices,  processes  and  procedures  now  available,  the
  desirability of a single point of responsibility for the development  of
  medical  treatment  and  diagnostic  facilities  and  the  economic  and
  technical utility of contracts for medical  projects  which  include  in
  their  scope  various  combinations  of design, construction, operation,
  management and/or maintenance responsibility over prolonged  periods  of
  time  and that in some instances it may be beneficial to the corporation
  to award a contract for a medical project on the basis of factors  other
  than  capital  cost alone, including but not limited to facility design,
  system reliability, efficiency, safety, long-term  operating  costs  and
  compatibility  with  other  elements  of  patient care. Accordingly, and
  notwithstanding the provisions of any general, special or local  law  or
  chapter,  a  contract  for  a  medical  project entered into between the
  corporation and any project developer pursuant to this  section  may  be
  awarded  pursuant  to  public  bidding  in  compliance with sections one
  hundred one and one hundred  three  of  the  general  municipal  law  or
  pursuant  to  the following provisions for the award of a contract based
  on evaluation of proposals  submitted  in  response  to  a  request  for
  proposals prepared by or for the corporation:
    (a)  The  corporation shall require that each proposal to be submitted
  by a project developer shall include:
    (i) information relating  to  the  experience  and  expertise  of  the
  project  developer on the basis of which said project developer purports
  to be qualified to carry out all work required by a  proposed  contract;
  the  ability  of the project developer to secure adequate financing; and
  proposals for project staffing, implementation of work  tasks,  and  the
  carrying out of all responsibilities by a proposed contract;

    (ii)  a  proposal  clearly  identifying and specifying all elements of
  cost which would become charges to the corporation, in whatever form, in
  return for the  fulfillment  by  the  project  developer  for  the  full
  lifetime  of  a  proposed  contract,  including, as appropriate, but not
  limited  to  the  cost  of  planning,  design,  construction, operation,
  management and/or maintenance of any facility, and  clearly  identifying
  and  specifying  all  elements  of  revenue  which  would  accrue to the
  corporation from the operation of the facility or  device  or  from  any
  other  source; provided, that the corporation may prescribe the form and
  content of such proposal and that, in any event, the  project  developer
  must  submit  sufficiently  detailed  information  to  permit a fair and
  equitable evaluation by the corporation of such proposal; and  provided,
  further,  that  the corporation may set maximum allowable cost limits in
  any form in the request for proposals; and
    (iii) such other information as the corporation may determine to  have
  a material bearing on its ability to evaluate any proposal in accordance
  with this subparagraph;
    (b)  Prior to the issuance of a request for proposals pursuant to this
  paragraph, the corporation shall publish notice of such issuance  in  at
  least   one  newspaper  of  general  circulation.  Concurrent  with  the
  publication of such notice a draft request for proposals shall be  filed
  with the county commissioner of health.
    (c) Proposals received in response to such request for proposals shall
  be  evaluated  by  the  corporation  as to net capital cost or, if a net
  revenue is projected, net revenue,  and  in  a  manner  consistent  with
  provisions  set forth in the request for proposals, and may be evaluated
  on the basis of additional factors, including but  not  limited  to  the
  technical  evaluation of the medical project including medical facility,
  facility design, system reliability, energy  balance,  annual  operating
  cost   and   efficiency.  The  evaluation  of  such  proposals  and  the
  determination of  whether  a  project  developer  is  "responsible"  may
  include,  but  shall  not  be  limited  to,  consideration,  in a manner
  consistent with provisions set forth in the request for  proposals,  the
  record  of  the  project  developer  in  complying  with  existing labor
  standards  and  recognizing  state  and  federally  approved  apprentice
  training  programs,  and  the  willingness  of  the project developer to
  provide for meaningful  participation  of  minority  group  persons  and
  business enterprises in the conduct of the work;
    (d)  The  corporation  may  make  a  contract award to any responsible
  project developer selected pursuant to subparagraph (iii)  of  paragraph
  (a) of this subdivision based on a determination by the corporation that
  the  selected  proposal  is most responsive to the request for proposals
  and may negotiate with any project developer, provided, however, that if
  any award is made to any project developer whose total proposal does not
  provide either the lowest net cost, or if a net  revenue  is  projected,
  the  greatest  net  revenue,  of  any proposal received, the corporation
  shall adopt a resolution which includes particularized findings relevant
  to  factors  pursuant  to  such   subparagraph   indicating   that   the
  corporation's requirements are met by such award and that such action is
  in the public interest.
    Whenever  the  corporation  enters  into  a  contract pursuant to this
  section for a medical project which involves construction the provisions
  of section two hundred twenty of the labor law shall  be  applicable  to
  such construction work.
    9.   Every contract entered into between the corporation and a project
  developer, pursuant to the provisions of paragraph  (d)  of  subdivision
  eight of this section, for a medical project involving construction of a
  medical building by the project developer, shall contain provisions that

  such  building  shall  be  constructed  through  construction  contracts
  awarded through competitive bidding in accordance  with  paragraphs  (a)
  through  (g)  of  this  subdivision;  that  the project developer or the
  project  developer's  construction  subcontractor  shall  furnish a bond
  guaranteeing prompt payment of  moneys  that  are  due  to  all  persons
  furnishing  labor  and  materials  pursuant  to the requirements of such
  construction contracts, and that a copy of such payment  bond  shall  be
  kept  by  the  corporation  and  shall  be  open  to  public inspection;
  provided, however, that the requirements of this subdivision  shall  not
  apply  when  the  cost  of  such  construction, exclusive of the cost of
  medical equipment and devices, is less than  one  million  five  hundred
  thousand dollars.
    (a)   The   project  developer  shall  advertise  for  bids  for  such
  construction contracts in a daily newspaper having  general  circulation
  in the county.  Such advertisement shall contain a statement of the time
  and  place  where  all  bids  received  pursuant  to such notice will be
  publicly opened and read.  An  employee  of  the  corporation  shall  be
  designated  to  open  the  bids  at  the time and place specified in the
  notice. All bids received shall be publicly opened and read at the  time
  and  place  so  specified.  At  least five days shall elapse between the
  publication of such advertisement and date on which the bids are opened.
    (b) Except as otherwise provided in section two hundred twenty-two  of
  the  labor  law,  when  the  entire  cost of constructing such building,
  exclusive of any medical equipment, apparatus or devices,  shall  exceed
  one  million  five hundred thousand dollars, the project developer shall
  prepare separate specifications for the following subdivisions  of  such
  work,  so  as  to  permit  separate  and  independent  bidding upon each
  subdivision:
    (i) plumbing and gas fittings;
    (ii)  steam  heating,  hot  water   heating,   ventilating   and   air
  conditioning apparatus; and
    (iii) electric wiring and standard illuminating fixtures.
    (c)  After  public  competitive  bidding,  the project developer shall
  award one or more separate contracts for each of the above  subdivisions
  of  such work, whenever separate specifications are required pursuant to
  paragraph (b) of this subdivision, and one or  more  contracts  for  the
  remainder  of  such work. The project developer may award such contracts
  at different times. Contracts awarded pursuant to this subdivision shall
  be awarded by the  project  developer  to  the  lowest  responsible  and
  responsive  bidder  and  shall be contracts of the project developer and
  not of the corporation which shall have no  obligation  or  liabilities,
  whatsoever,   thereunder.   The   project   developer   shall  have  the
  responsibility for the supervision,  coordination,  and  termination  of
  such  contracts, unless otherwise specified in contractual terms between
  the project developer and the corporation.
    (c-1) Each bidder on a public work contract, where the preparation  of
  separate  specifications  is  not  required, shall submit with its bid a
  separate sealed list that names each subcontractor that the bidder  will
  use  to  perform  work on the contract, and the agreed-upon amount to be
  paid to each, for: (i) plumbing and gas fitting, (ii) steam heating, hot
  water heating, ventilating and  air  conditioning  apparatus  and  (iii)
  electric wiring and standard illuminating fixtures. After the low bid is
  announced, the sealed list of subcontractors submitted with such low bid
  shall be opened and the names of such subcontractors shall be announced,
  and  thereafter  any change of subcontractor or agreed-upon amount to be
  paid to each shall require the approval of  the  public  owner,  upon  a
  showing  presented  to  the public owner of legitimate construction need
  for such change, which shall be open to  public  inspection.  Legitimate

  construction  need  shall  include,  but  not be limited to, a change in
  project specifications, a  change  in  construction  material  costs,  a
  change  to  subcontractor status as determined pursuant to paragraph (e)
  of  subdivision  two of section two hundred twenty-two of the labor law,
  or  the  subcontractor  has  become  otherwise  unwilling,   unable   or
  unavailable   to   perform   the   subcontract.   The  sealed  lists  of
  subcontractors submitted by all other bidders shall be returned to  them
  unopened after the contract award.
    (d) In determining whether a prospective contractor is responsible and
  responsive,   the   project   developer  may  require  that  prospective
  contractors:
    (i) have adequate financial resources or the ability  to  obtain  such
  resources;
    (ii)  be  able  to  comply  with  the required or proposed delivery or
  performance schedule;
    (iii) have a satisfactory record of performance;
    (iv)  have  the  necessary   organization,   experience,   operational
  controls, and technical skills, or the ability to obtain them;
    (v)   have   the  necessary  production,  construction  and  technical
  equipment and facilities, or the ability to obtain them; and
    (vi) be eligible  to  receive  an  award  under  applicable  laws  and
  regulations and be otherwise qualified.
    (e)  The  project  developer  may reject any bid of a bidder which the
  project developer determines to be nonresponsible  or  nonresponsive  to
  the advertisement for bids.
    (f) The project developer may, in its discretion, reject all bids, and
  may  revise  bid specifications and may readvertise for bids as provided
  herein.
    (g) Only as used in this section:
    (i) "project developer" means any  private  corporation,  partnership,
  limited  liability  company, or individual, or combination thereof which
  has submitted a proposal in response to a request for proposals;
    (ii) "construction" shall include  reconstruction,  rehabilitation  or
  improvement  exclusive  of  the installation and assembly of any medical
  equipment, apparatus or device;
    (iii) "medical building" means that component  of  a  medical  project
  constituting  appurtenant structures or facilities necessary to house or
  render the remaining components  of  the  medical  project  operational.
  Medical  building  shall  not  include  apparatus,  equipment,  devices,
  systems, supplies or any combination thereof;
    (iv)  "medical  project"  means  any  substantial  durable  apparatus,
  equipment,  device  or  system,  or  any  combination  of the foregoing,
  including  services  necessary  to  install,  erect,  or  assemble   the
  foregoing  and  any  appurtenant  structures  or facilities necessary to
  house or render the foregoing operational, to be used for the purpose of
  care, treatment or diagnosis of disease or injury or the relief of  pain
  and  suffering  of  sick  or injured persons. Medical projects shall not
  include ordinary supplies and equipment  expended  or  utilized  in  the
  customary care and treatment of patients.
    10.  (a)  For  purposes of applying section eighty-seven of the public
  officers law, to the corporation, the term "trade secrets" shall include
  marketing strategy or strategic marketing plans,  analyses,  evaluations
  and  pricing  strategies  or  pricing  commitments  of  the corporation,
  relating to business development, which, if disclosed, would  be  likely
  to injure the competitive position of the corporation.
    (b)  In  addition to the matters listed in section one hundred five of
  the public officers  law,  the  corporation  may  conduct  an  executive
  session  for  the purpose of considering marketing strategy or strategic

  marketing plans, analyses, evaluations and  pricing  strategies  of  the
  corporation,  relating  to  business  development,  which, if disclosed,
  would be likely to injure the competitive position of the corporation.