New York State Department of Transportation



NEW YORK STATE DEPARTMENT OF TRANSPORTATION

CONSULTANT INSTRUCTION

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SUBJECT: SUBMISSION OF PROOF OF AUTHORITY TO PRACTICE PROFESSIONAL

ENGINEERING OR LAND SURVEYING SERVICES IN NEW YORK STATE

DATE: December 30, 1998 CODE: 93-10 SUPERSEDES: May 6, 1998

APPROVED:

______________________________________________________

R. GRATHWOL, DIR., CONTRACT MANAGEMENT BUREAU

CONTACT PERSON: MARK MOODY TELEPHONE: (518) 457-2600

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Sole proprietorships, partnerships, Professional Corporations, Foreign (non-NYS) Professional Corporations, “Grandfathered” Exempt Corporations and the members of a Professional Limited Liability Companies (PLLC’s) (hereafter referred to as authorized firms) may legally engage in the practice of professional engineering, land surveying, architecture and/or landscape architecture (hereafter referred to as “professional engineering-related” services) in New York State. Such entities (with the exception of PLLC’s) must be specifically authorized by the N.Y.S. Education Department to render such services in New York State. This instruction applies to firms providing professional engineering-related services and their subconsultants.

In order to legally measure and plot the dimensions and areas of any portion of the earth utilizing either traditionally used tools or more recent innovations like Global Positioning System technology, a firm must be authorized to perform professional land surveying in New York State (for more information on authorization to perform professional land surveying see CI 97-02, GPS by Consultant, attached).

Persons providing professional engineering-related services on behalf of authorized firms must be licensed by New York State and must have a legal (employee or independent contractor if not otherwise restricted by the project solicitation) relationship to that firm.

The NYSDOT requires firms selected to provide professional engineering or surveying services, on either a prime consultant or a subconsultant basis, to submit proof of authority to render these services in New York State. Such firms will be required to submit such proof within one business day of being requested to do so by the NYSDOT Contract Management Bureau. Prime firms will be responsible for insuring the submission of proofs to NYSDOT by their subconsultants. Proof of authority must be submitted to NYSDOT for each selection in order for a firm to be retained for any professional engineering or land surveying contracts.

Firms previously required to obtain a Certificate of Present Existence/Good Standing from the N.Y.S. Department of State are no longer required to do so to demonstrate that they may legally operate as a business in New York State. The NYSDOT is now able to electronically obtain this information directly from the Department of State.

REQUIRED PROOFS

Firms interested in providing professional engineering-related services should assemble copies of the following documents at the time the firm expresses interest in a project, based upon organization type. Please do not include such proofs in your expression-of-interest, however.

Sole Proprietorship - Owner's current NYS Professional Engineer and/or NYS Land Surveyor license number, registration expiration date AND an Affidavit of Compliance (use the attached revised affidavit).

Domestic General, Limited and Limited Liability Partnerships (LLP) - Current NYS Professional Engineer or NYS Land Surveyor license number and registration expiration date for the partner(s) in charge of the services generally required by NYSDOT, and an Affidavit of Compliance with the NYS Business Corporation Law or Partnership Law (use the attached revised Affidavit).

Professional Corporation (PC) - Current listing of the names and NYS Professional Engineer and/or Land Surveyor license numbers (with expiration dates) of all officers, directors and shareholders of the corporation AND a Certificate of Authority issued by the NYS Education Department that lists all the regulated disciplines that the firm will be called upon to perform.

Professional Limited Liability Company (PLLC) - Current listing of the names and NYS Professional Engineer and/or Land Surveyor license numbers (with expiration dates) of all members of the Company.

Foreign (Non NYS) Professional Corporation (Foreign PC) - Certificate of Authority issued by the NYS Education Department, a current listing of the names and Professional Engineer and/or Land Surveyor license numbers (with expiration dates) and issuing State for all Officers, Directors and Shareholders and the New York State license (with expiration date) of the individual who will actually do the work, AND an affidavit of compliance with Article 15-A of the NYS Business Corporation Law (modeled on the attached Affidavit).

Grandfathered Exempt Corporation (Grandfathered INC) - A copy of the Registration Certificate with Chief Executive Officer (CEO) and expiration date listed. The firm must provide the CEO's current NYS Professional Engineer and/or NYS Land Surveyor license number and registration expiration date. If the name of the corporation was recently changed, a copy of the NYS Education Department consent certificate is also required.

Domestic (NYS) or Foreign General Business Corporation (INC) and Limited Liability Company (LLC) -

1. As a Prime Consultant

General business corporations and Limited Liability Companies, whether NYS or foreign, other than a NYS Grandfathered Exempt Corporation, will not be selected as a prime consultant to perform services requiring authorization in a regulated discipline (professional engineering, professional land surveying, architecture or landscape architecture) for this Department.

2. As a Subconsultant

NYSDOT will not select such a General Business Corporation as a prime firm to perform in disciplines for which authorization is required, nor will it permit such a firm to undertake work in a regulated discipline as a subconsultant, except as follows:

A. INC or LLC Subconsultant in a Non Regulated Discipline

Assistance to an authorized prime firm in a non regulated discipline (e.g. environmental analysis, citizen participation, mapping, etc.) only if the prime firm provides the appropriate NYSDOT Contract Analyst with a letter (see attachment), signed by a principal of the firm, which clearly indicates that the subconsultant will not be performing work which must by law be performed by an authorized entity.

B. INC or LLC Subconsultant in a Regulated Discipline

Assistance of a technical nature in a regulated discipline such as professional engineering or land surveying as a subconsultant in an advisory capacity to the prime consultant only under the following conditions:

1. The subconsultant is demonstrably qualified to assist the prime.

2. The subconsultant’s work will be directly overseen and reviewed by the prime consultant.

3. No plan or real property boundary map will be sealed with the stamp of such a subconsultant. Only a prime firm so authorized and/or a licensed professional employed by the authorized prime firm may seal plans or property maps, thereby retaining full professional responsibility.

TRANSMITTAL TO NYSDOT

Please note that all correspondence to the NYSDOT Contract Management Bureau should prominently display the firm's office’s New York State office Consultant Identification Number (CIN). If a CIN has not been issued by NYSDOT to the firm (specifically to an office or offices that may express interest in a solicitation), please contact the CIN Coordinator at (518) 485-8295 in order to obtain a CIN. Please have the office's Federal identification number and nine-digit zip code available when calling. In addition, please supply the firm’s Internet e-mail address for our records.

Attachments: CI 97-02 Global Positioning System Technology

Sample Letter for Primes

Affidavit form

NEW YORK STATE DEPARTMENT OF TRANSPORTATION

CONSULTANT INSTRUCTION

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SUBJECT: GLOBAL POSITIONING SYSTEM TECHNOLOGY

DATE: April 10, 1997 CODE: 97 - 02

APPROVED:

____________________________________________________

R. GRATHWOL, DIR., CONTRACT MANAGEMENT BUREAU

CONTACT PERSON: MARK MOODY TELEPHONE: (518) 457-2600

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The purpose of this Instruction is to give direction to the consulting industry and Department personnel in acquiring global positioning system (GPS) technology services for land surveying functions. The State Education Department (SED) has issued an opinion from which the following may be inferred:

Professional land surveying functions (i.e., “the measuring and plotting of the dimensions and areas of any portion of the earth”) that have in the past been acquired by the Department continue to be considered to be professional land surveying when accomplished using GPS technology. If the Department has formerly used the qualification based selection process (mandated by Section 136-a of the State Finance Law) to acquire specific professional land surveying services that were accomplished by using techniques that may now be accomplished by GPS technology, the introduction of GPS in no way changes the requirement to use the qualification based acquisition process.

For the Professional Land Surveying services referenced above, the implications of the SED determination are as follows:

1. NYSDOT must acquire such surveying services from professional individuals (proprietorships or partnerships) or corporations authorized by the Education Department to do professional land surveying in the state of New York, or from those individuals or entities exempted by Article 145, Section 7208 of the Education Law from the professional land surveying licensure requirements. For example, the making of surveys (that do not include real property boundaries) that are essential to engineering projects may be undertaken by professional engineers (7208(e)). As survey tasks using GPS technology have been deemed to a part of the professional land surveying process, surveys tasks using GPS may be done by professional engineers as long as the determination of property boundaries are not involved. Professional engineers that obtained a 7208(m) exemption from SED in 1971 may do surveying including the determination of real property boundaries.

2. According to Section 136-a of the State Finance Law, State agencies must select the most highly qualified firm (or team of firms) to perform professional engineering, land surveying, and architecture. In cases where the solicitation for services by NYSDOT requires the prime firm to provide such services itself (i.e., Term Survey Contracts), a subconsultant may not be offered to provide these services. In most NYSDOT contracts, however, a prime firm that is not capable or authorized by SED to provide the necessary survey (using GPS technology or not) may offer an authorized, professional land surveying subconsultant firm as a member of the consultant team. Alternatively, a subconsultant authorized by SED to provide professional engineering that is offered by the prime firm to perform significant engineering tasks may be requested to undertake the required GPS services when such services do not include the determination of real property boundaries.

If the survey work offered to a subconsultant includes GPS services, the subconsultant must demonstrate that it is experienced in the use of GPS and is independently capable of providing the needed GPS services. Any subconsultant offered to perform survey using GPS technology (whether offered to the Contract Management Bureau prior to contract execution or offered subsequent to execution to the Consultant Job Manager) must demonstrate its GPS experience and independent capability to perform the required work by submitting a list of projects (with a listing of specific GPS-related tasks performed, the date and location(s) of such services, the client’s name and address, and the name of the client’s project manager and telephone number) in which the firm has previously provided such services.

To summarize, survey services (using GPS technology or not) must be obtained using qualification-based selection procedures and may not be bid out in whole or in part by NYSDOT, nor may a consultant with a NYSDOT contract bid out such services on behalf of NYSDOT.

Sample Letter for Primes Certifying that Subconsultants Will Not Be Assigned Tasks for Which Authority to Practice a Profession is Required

[Letterhead]

[Date]

Mr. Rex Grathwol

Director

Contract Management Bureau

NYSDOT

1220 Washington Avenue

Albany, NY 12232-0203

Re: [Contract Number, PIN, Description]

Dear Mr. Grathwol:

The firm of [Prime Firm], having been designated by the New York State Department of Transportation as the prime consultant for the above project, recognizes that certain contractual tasks will be performed by subconsultant firms.

On behalf of [Prime Firm], I agree that [Prime Firm] will only assign professional engineering, professional land surveying, professional architecture or professional landscape architecture tasks to subconsultant firms that are authorized by the Education Department of the State of New York to perform such services. I agree further that, should my firm ask a subconsultant firm not so authorized to perform technical assistance related to the abovementioned disciplines, my firm ensures that the subconsultant is qualified to perform the work, my firm will take complete responsibility for that subconsultant firm’s work and only my firm will seal plans or real property boundary surveys.

Should clarification be required as to whether a particular task involves on of the above professions, we will contact the Contract Management Bureau for advice on how to proceed.

Yours truly,

[Name]

[Title of Officer]

AFFIDAVIT

I, _______________, in my capacity as ______________________ with the firm of

____________________, located at _____________________________________,

______________________________, which is a: (check applicable box)

___ DOMESTIC ___ FOREIGN

___ Sole Proprietorship

___ General Partnership

___ Limited Partnership

___ Limited Liability Partnership

___ Professional Corporation

do hereby affirm that I or my agent has complied with all applicable requirements for New York State Law, including but not limited to the General Business Law, General Corporation Law, Partnership Law and Education Law regarding the following contract:

Contract Number: PINS:

Description:

Counties in which work is necessary:

I recognize that this affirmation is submitted for the express purpose of inducing the State of New York Department of Transportation to award a contract; acknowledge that the Department may in its discretion, by means which it may choose, determine the truth and accuracy of all statements made herein; acknowledge that intentional submission of false or misleading information may constitute a felony or misdemeanor as defined in the Penal Law or may be punishable by fine according to applicable sections of the United States Code; and state that the information submitted in this affirmation and any attached pages is true, accurate and complete.

Sworn to before me this

_____day of _______________,________. __________________________

Signature of Principal/Officer

__________________________________ __________________________

Notary Public Title

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