December 9, 2019
By Jason Rogovich
Other agencies still missing from Council’s hearing on Park’s capital process. On November 12, 2019, the City Council’s Committee on Parks, Committee on Contracts, and Subcommittee on Capital Budget held a joint oversight hearing titled “Improving the Efficiency of Parks Department Capital Projects.” The hearing was chaired respectively by Council Members Peter Koo, Ben Kallos and Vanessa L. Gibson. This hearing was held in order to create a dialogue about the state of the capital process. In Fiscal 2020, the Parks Department has 619 active capital projects and anticipates spending almost $2.7 billion. These numbers have steadily increased since Fiscal 2016.
At the public hearing, Parks Commissioner Mitchell J. Silver sought to clarify misconceptions about the Parks Department capital process and highlight some of the more recent successes of the agency. Silver stated that since he became Parks commissioner in 2014, the department has completed 648 capital projects, including 130 projects completed or in construction, from before his tenure. He elaborated “Even as the number of active capital projects has increased over 80 percent since the beginning of my tenure, 85 percent of all of our projects have been on time and 87 percent have been on budget in construction. Simply stated, we have taken more projects and finished them faster.”
Silver clarified that “the Parks Department does not have its own capital process… the process is affected by State Law, Local Law, Executive Order, union contracts, public support, contractors, weather and market forces, along with other factors. A change to any of these individual factors can accelerate or delay a project.”
Silver stated “it’s the nature of public facing work to hear a lot more about what is going wrong than what is going right. Parks projects are some of the most visible public works projects in a neighborhood, and are some of the more impactful…We understand the angst around these projects, and we want to build further on these accomplishments and participate in citywide efforts to improve the capital process that all our sister agencies work within, but I hope this hearing helps to correct the record.”
Deputy Commissioner Therese Braddick of the Park’s Department gave a presentation on the Capital process as detailed below:
Capital Process Overview
The Parks department estimates that most capital projects take 30-45 months from the initial “need” identification, to the completion of the projects. The Parks Department breaks down the capital process into the following five stages:
1. Needs Assessment (Ongoing)
The Needs Assessment is a joint process between the Parks Department, members of the community and elected officials. Once the need is identified, the Capital Division of the Parks Department prepares a cost estimate. Project costs are generally requested through the Office of Management and Budget and additional discretionary funds get requested from City Council and the Borough Presidents.
2. Project Initiation (1-2 Months)
Either Parks staff or an outside consultant will be assigned to the project. That team will then conduct a pre-scope meeting to review the project. This often includes review with other outside agencies (i.e. Department of Environmental Protection, Department of Transportation). At this point a decision will be made on whether a new design is appropriate or if it may be replaced. The Parks Department and members of the community will determine this scope.
3. Design (10-15 Months)
The design stage has four sub-stages: design development (two-five months), internal schematic approvals (one month), external schematic approvals (two to three months), and construction document preparation and permit applications (five to six months). These processes involve site analysis and input and review from various agencies such as the Public Design Commission and the Landmarks Preservation Commission. Review will also happen at the Community Board Level and the Office of Management and Budget.
4. Procurement (7-10 Months)
The procurement phase also has four sub-stages: pre-solicitation review (two to three months), solicitation (one to one and a half months), pre-award (three to four and a half months) and award registration (one month). Upon the commencement of pre-solicitation, the contract will be entered into the Parks Department’s Automated Procurement Tracking system. The bids are simultaneous reviewed by multiple offices including the City Planning’s chief contracting officer, Parks Legal department, the Mayor’s Office of Contract Services, the Department of Investigation and the Department of Labor Services. Bids are then advertised as Request for Proposals and followed by pre-bid meetings with contractors. Bids are constantly reviewed for responsiveness and if found non-responsive or non-responsible, contractors may appeal to the Parks Department general counsel. Once the bid is awarded, the contractor will execute a contract, provide insurance or bonds, then the Parks Department submits a package to the Comptroller.
5. Construction (12-18 Months)
Construction typically takes twelve to eighteen months, with most scheduled work weather dependent. All construction is closely supervised by Parks Staff who ensure that the respective projects are built to contract specifications and work to resolve issues as they arise. Supervisor responsibilities include subcontractor approvals, submittals, change orders, overruns and payment. Change orders arise when a contractor must deviate from the drawings. Once a change order is initiated, a scope and cost estimate is prepared. At the substantial completion phase of construction, the Parks Department holds an inspection with the contractor. There, the contractor and Parks Department determine whether the work required is substantially complete, then they create a final punch list. The project then typically becomes open to the public as the contractor closes out the remaining punch list issues. Closing out the remaining issue is projected to take anywhere from two to twelve months.
Council Issues and Concerns
In the City Council Committee Report from November 11, 2019, it states that various concerns about the capital process has been raised by elected officials, community members and park advocates. Most concerns relate to the efficiency of the overall process. Council Members cited frustration with delays, cost overruns and the lack of communication between the Parks department and the respective financiers. The committee report states these delays and cost overruns often relate to problems securing permits, revisions to the project’s scope and coordinating various contractors.
Council Member Peter Koo, Chair of the Committee on Parks and Recreation, asked what the Parks Department might learn from other agencies. Commissioner Silver responded that Parks currently follows the same process as the Department of Design and Construction. Other agencies or entities like the School Construction Authority or the Economic Development Corporation are not required by statute to follow the same processes or guidelines. Silver believes the Parks department can follow the Department of Design and Constructions lead in improving the process.
Council Member Vanessa L. Gibson, Chair of the Subcommittee on Capital Budget/Finance asked what levels of success has the Parks Department had in recent years and what happens when a capital project has excess funds remaining. Silver stated that nearly 90 percent of 2019 capital project were completed at or below budget and 80 percent of those projects were completed on time. Silver then explained that when the excess money is City Council money, the Parks Department meets with the Council Finance Committee to determine how money will be appropriated. If the excess money is Mayoral money, then the Parks Department has some discretion in how to spend it.
Council Member Ben Kallos, Chair of the Committee on Contracts, had extensive questions on the Parks Department’s online platform as it functions to fill vacancies, track projects and offer contracts for public bidding. The Parks Department team did their best orally to navigate their platform from across City Hall Chambers. While not a seamless endeavor, the parties seemed willing to work together to make that the user experience is as functioning and user-friendly as possible.
Various organizations such as New Yorkers for Parks, The American Institute of Architects and the Center for an Urban Future attended the hearing. Each group made a statement and also made recommendations for how to improve the parks capital process.
Lynn Kelly, Executive Director of New Yorkers for Parks, took time to credit the Parks Department for the internal steps they have taken to improve the capital process. She also stated in light of the Parks Department’s responsibility for the maintenance and upkeep of 14 percent of the City’s land, that “it is incredibly troubling that most capital funding for the agency remains contingent on allocations from elected officials.” She urged the Mayor and City Council to fully-fund the needs assessment of the Department’s entire portfolio, as it might take 20 years to complete otherwise.
Kelly also questioned the need for this hearing as it relates solely to the Parks Department. She stated “Since 2013, there have been at least three hearings to examine various components for the NYC Parks capital process. Have other agencies been subject to oversight hearings to this degree? While we understand the frustration that is shared on all sides of this issue, after so many years of having conversations about why the capital process for NYC Parks is broken, we think it’s time to also admit that the capital process is broken across the board. Parks is far from the only agency to experience cost overruns and project delays, so why is it that they are most consistently singled out in the public conversation?”
Kelly pointed out that as part of the Play Fair Coalition, her testimony was representative of nearly 210 participating organizations. The Play Fair Campaign focuses on creating a significant increase to the budget for much-need park maintenance and for gardener and park worker positions. Learn more about the Play Fair campaign here. To see Lynn Kelly’s submitted testimony click here.
Michael Plottel, co-chair of the Public Architecture Committee of the American Institute of Architects New York Chapter, suggested that procurement advance concurrently with administrative review and approval to accelerate project delivery without undermining the goals of the law. He suggested pre-approval or concurrent review of vendor responsibility to shorten the time between bid opening and contract awards. He also suggested a qualification-based selections for construction contracts (similar to the one currently used for consultants).
Eli Dvorkin, the editorial and policy director of the Center for Urban Future, called attention to the fact that parks in New York City are struggling assets, most of which are on average 73 years old. He directed the Council to view his recommendations in the Center’s park infrastructure analysis titled A New Leaf. Recommendations included a larger, dedicated capital budget for the Parks Department, setting clear goals for furthering the capital process and getting more inter-agency cooperation to more efficiently deliver capital projects.
By: Jason Rogovich (Jason Rogovich is the CityLaw Fellow and New York Law School Graduate, Class of 2019)