New York Codes, Rules and Regulations
Title 21 - Miscellaneous
Chapter XXIII - NIAGARA FRONTIER TRANSPORTATION AUTHORITY
Part 1159 - Procurement Guidelines of Niagara Frontier Transportation Authority and Niagara Frontier Transit Metro System, Inc
Section 1159.3 - Definitions

(a) Advertisement.

(b) Allowable indirect costs.

Those costs generally associated with overhead that cannot be specifically identified with a single project or contract and are considered reasonable and allowable under specific State contract or allow ability limits.

(c) Board.

The authority board of commissioners.

(d) Competitive range.

All proposals that are determined to have a reasonable chance of being selected for award based upon price and other factors as stated in the notice of procurement opportunity or request for proposals (RFP).

(e) Contract for goods or services.

Any authorized written agreement; including contracts, purchase orders, letter agreements or memoranda of understanding, which creates a mutually binding legal relationship, which obligates the seller to furnish or dispose of products, services or public work, and the buyer to pay for same.

(f) Contractor.

Any individual (or group of individuals), business, firm, union, club, organization, or other entity obligated to sell, furnish, provide or render goods or services to the authority pursuant to a contract including sellers, consultants, vendors, suppliers and construction contractors.

(g) Cost-reimbursement (CR) type contract.

A general compensation arrangement which requires the authority to pay the consultant a fixed fee plus all allowable actual costs (as established by predetermined cost principles and rates) provided such costs and fee do not exceed the final negotiated contract price, as incurred by the consultant in performing the "agreed to" scope of work.

(h) Disadvantaged business enterprise (DBE).

Small business concern as defined pursuant to section 3 of the Small Business Act:

(i) Discriminatory jurisdiction.

Any other country, nation, province, state or political subdivision thereof which employs a preference or price distorting mechanism to the detriment of or otherwise discriminates against a New York State business enterprise in the procurement of goods and services by the same or a non-governmental entity influenced by the same, as defined in section 2879 of the Public Authorities Law.

(j) Discussion.

Discussion is defined as any oral or written communication between the authority and an offer or, other than communication conducted for the purpose of minor clarification whether or not initiated by the authority, that:

(k) Emergency.

Danger or threat of harm to life, health, safety, environment or property which requires immediate action; provided, that an emergency procurement shall be made with such competition as is practicable under the circumstances and a written determination of the basis for the emergency and for the selection of the particular contractor shall be included in the procurement file. Emergency is a subcategory of "sole source".

(l) Exigency.

Prospect of interruption to, or obstruction of, the authority's efficient operation or adequate provision of service, arising from an unforeseen circumstance. Exigency is a subcategory of "sole source".

(m) Expediency.

Prospect of an outcomes not in the best interest of the authority arising from adherence to the means and method of the procurement prescribed herein or, alternatively, adherence to these guidelines is impractical or inappropriate given all the existing circumstances, none of which were foreseeable or controllable by the authority. Expediency is a subcategory of "sole source."

(n) Firm-fixed-price (FFP) type contract.

A general compensation arrangement which places the risk of performance for a lump sum on the contractor, regardless of the actual costs incurred by the contractor. The only allowable adjustments to the lump sum contract price are those arising from authorized changes in scope of services or changes in specifications.

(o) Foreign business enterprise.

A business enterprise, including a sole proprietorship, partnership or corporation, which offers for sale, lease or other form of exchange, goods sought by the authority and which are substantially produced outside New York State, or services, other than construction services, sought by the authority which are substantially performed outside New York State. For purposes of construction services, foreign business enterprise shall mean a business enterprise which has its principal place of business outside New York State.

(p) Labor surplus area firm.

A business entity which performs substantially in a labor surplus area (a geographical area as is defined by the U.S. Department of Labor as an area of concentrated unemployment, underemployment or labor surplus).

(q) Minority business enterprise (MBE).

Any business enterprise which is at least 51 percent owned by, or in the case of a publicly owned business, at least 51 percent of the common stock or other voting interests of which is owned by minority group members, and such ownership interest is real, substantial and continuing. The minority ownership must have and exercise the authority to independently control the business decisions of the entity. The enterprise must also be authorized to do business in New York State, be independently owned and operated, and not be dominant in its field. For the purposes of these guidelines minority group member shall have the meaning set forth in section 2879(3) of the Public Authorities Law.

(r) Negotiation.

Procurement by evaluation of proposals in the competitive range on the basis of pre-established and published selection criteria which criteria may be evaluated with price as a factor.

(s) New York State Contract Reporter.

A publication of procurement opportunities printed for the New York State Economic Development Bureau pursuant to the New York State Economic Development Law.

(t) Notice of procurement opportunity.

A written or verbal communication which shall identify the proposed procurement action and the terms of pursuing the opportunity.

(u) Procurement.

The buying, purchasing, renting, leasing, or other acquisition by the authority, of products, services, or public works, excepting:

(v) Product.

Equipment, materials and supplies including, but not limited to, printing, insurance (except for health/welfare-related insurance required under a collective bargaining agreement pursuant to which the authority is bound) and leases of property excluding land or interests in land.

(w) Public work.

The construction, demolition, repair, rehabilitation, restoration or maintenance of any building, roadway, structure, fixture, facility or improvement owned by, or leased to, the authority and the authority or metro must be a party to the related contract. For the avoidance of doubt, a public work does not include the routine operation, repair, or maintenance of any existing public structure, building, or real property.

(x) Purchase.

The receipt of products, services or public works by the authority, in exchange for money, property, or other valuable consideration including like-kind trades.

(y) Qualifications based procurement.

A competitive procurement method under which competitors' qualifications are evaluated on the basis of pre-established and published selection criteria and negotiations are conducted with only the most qualified offer or. Price shall not be considered as a factor in determining the most qualified offer or.

(z) Responsible.

A potential contractor is responsible if it can demonstrate that it has the capability to perform fully and successfully under the terms of the proposed contract, taking into account the offeror's technical and financial capability, and the integrity and reliability necessary to ensure good faith performance.

(aa) Responsive.

A bid is responsive if it complies with the terms of the solicitation in all material respects, and it is completed, executed and submitted in accordance with the instructions in the solicitation.

(ab) Sealed bidding.

A competitive procurement method under which a contract is awarded to the lowest priced responsive, responsible bidder.

(ac) Service-disabled veteran-owned small business.

A business that is at least 51 percent owned and controlled by a service-disabled veteran, and the daily management operations of such business are controlled by a service-disabled veteran or caregiver of a service-disabled veteran, and such business must be a "small business," as defined by the Small Business Administration.

(ad) Services.

A personal, professional, consulting, technical, or other service, including but not limited to legal, testing.

(ae) Single bid.

Two or more competitive bids are solicited and only one bid is received. A single bid is a subcategory of "sole source".

(af) Single source.

The goods or services to be procured are available from only one responsible source; or no other goods or services will satisfy the authority's requirements; or prior State, Federal or board approval has been granted. Single source is a subcategory of "sole source".

(ag) Small purchase.

The acquisition of goods or services having an actual price less than $100,000.

(ah) Small purchase formal bidding.

A small purchases method of procuring goods or services under $100,000, based upon competitive selection following the publication of a notice of procurement opportunity in the New York State Contract Reporter and the acceptance of sealed bids or proposals.

(ai) Small purchase informal bidding.

A small purchases method of procuring goods or services under $50,000, based upon competitive selection which may be made on the basis of written or telephonic quotes and in accordance with the guidelines set forth in section 1159.4(o)(3) of this Part; provided, however, that procurement requirements shall not be artificially divided in order to constitute a small purchase.

(aj) Sole source.

A general category of awards where competition is waivable, or is not feasible under the circumstances, as determined by the procurement department and authorized by the executive director. The included subcategories are: single bid; exigency; expedience, and single source.

(ak) Solicitation.

The process by which the authority contacts prospective vendors, suppliers or consultants to provide notice of a procurement opportunity and invite the submission of quotes, bids, proposals or statements of qualifications.

(al) Term contract.

A competitively procured contract based on qualifications, that allows the authority, at its discretion, to retain the services of the term consultant or term contractor, on a project-by-project basis, subject to pre-negotiated terms and conditions.

(am) Tied-bid.

The receipt of two or more equally low, responsive bids from responsible bidders. See section 1159.4(f)(4) of this Part.

(an) Time and material (T&M) contract.

A general compensation arrangement which provides for a fixed rate including overhead and profit, and material paid for at cost plus handling charges.

(ao) Women-owned business enterprise (WBE).

Any business enterprise which is at least 51 percent owned by, or in the case of a publicly owned business, at least 51 percent of the common stock or other voting interests of which is owned by citizens or permanent resident aliens who are women, and such ownership interest is real, substantial and continuing. Women business owners must have and exercise the authority to independently control the business decisions of the entity. The enterprise must also be authorized to do business in New York State, be independently owned and operated, and not be dominant in its field.