Current through Register Vol. 46, No. 12, March 20, 2024
(a)
Procurement protocol.
The primary objective of procurement is to ensure and foster
economy, efficiency and effectiveness in the acquisition of goods and services.
To achieve these goals it is essential that all of the participants in the
procurement process have a clear understanding of their roles and
responsibilities. Set forth in this subdivision is a general outline of the
various departmental functions to be fulfilled in the procurement process. The
procurement department maintains a comprehensive written procurement systems
manual based on these concepts.
(1)
Procurement department.
(i) The procurement
department shall be responsible for conducting the following minimum
pre-procurement planning activities on at least an annual basis:
(a) forecasting the price and availability of
items and materials for user departments;
(b) developing a purchasing schedule for IFBs
and RFPs;
(c) establishing
purchasing goals and objectives.
(ii) The functions of the procurement
department shall be to:
(a) analyze the
marketplace to determine the status of competition, technological developments,
the impact of the economy on potential vendors, labor conditions, and changes
in pricing or delivery methods;
(b)
communicate and coordinate with similarly situated procurement departments to
explore joint purchasing arrangements and to share marketplace
information;
(c) analyze user
department procurement requisitions to ensure the proper authorizations are
present, and that the procurement is tailored to meet the authority's needs and
is not unnecessary or duplicative. Consideration should be given to
consolidating or breaking out procurements to obtain a more economical
purchase. Where appropriate, an analysis will be made of lease versus purchase
alternatives and any other appropriate analysis to determine the most
economical approach;
(d) prepare
invitation for bids, requests for proposals, informal solicitations, and
notices of procurement opportunity, as needed;
(e) administer the acquisition process,
including: ensuring adequate advertisement of the notice of procurement
opportunity; surveying sources; serving as contact for potential contractors;
and accepting, opening, evaluating, and tabulating bids;
(f) remain current and in compliance with
applicable Federal and State laws;
(g) maintain vendors files;
(h) maintain all support documentation
including small purchases procurement authorization, small purchase tabulation
and solicitation summary, single bid/proposal validation reports and single
source validation report.
(i)
develop MWBE and SDVOB participation goals, monitor MWBE and SD VOB
participation, and report MWBE and SDVOB utilization to appropriate state
agencies.
(2)
User department (the department in need of and requesting the procurement of
goods or services).
(i) It shall be the
responsibility of each user department to evaluate its projected procurement
needs on an annual basis, and to undertake and coordinate procurement planning
activities with the procurement department, annually.
(ii) For the procurement of any product or
service of $50,000, or more, the user department shall prepare a written
requisition and submit same to the procurement department a minimum of three
months prior to the desired delivery, bid opening, performance, or proposal due
date. For purchases under $50,000, the requisitions shall be submitted to the
procurement department 10 days in advance. The requisition shall serve as the
mechanism by which the user department communicates its specific procurement
need to the procurement department and it represents the beginning of the
procurement process.
(iii) The
requisition shall include the following elements:
(a) properly completed form per the
authority's requisition procedures; and
(b) budget; including proposed funding source
by designation of the account funding code, estimated cost and basis for
estimated cost; and
(c)
specifications; completed in accordance with subdivision (o) of this
section.
(iv) The user
department is responsible for:
(a) managing
all phases of the contract administration procedure;
(b) monitoring the performance of the
contract to ensure compliance with its terms; and
(c) the final contract and/or purchase order
in accordance with authority procedure 2-01-01, as amended from time to
time.
(3)
Engineering department.
(i) The engineering
department shall serve as the user department for major public work
projects.
(ii) The preparation and
submittal of a requisition shall be required for public work projects which
have been developed or identified under board authorization or which have
received State or Federal funding approval.
(4) Internal audit. The internal audit
department shall have responsibility for evaluating the adequacy and
effectiveness of internal controls governing the procurement process and for
providing cost analysis services upon the request of the procurement department
and for conducting any necessary audits, such as those required by the Federal
Buy America Act.
(5) Office of
General Counsel. The Office of General Counsel shall provide interpretations of
the procurement guidelines, advice to the user and procurement departments on
statutory and regulatory compliance and assist in the board agenda process for
awards requiring board approval. All issues regarding disqualification and/or
release of a low bidder must be reviewed by the Office of General Counsel prior
to a decision being made.
(6)
EEO/diversity development will monitor DBE participation for Federal and State
funded projects. The EEO/diversity development department will also report DBE
utilization to appropriate Federal agencies.
(b)
Evaluating responsiveness and
responsibility.
(1) Factors which
should be considered by the authority in evaluating responsiveness should
include the following considerations:
(i) Has
all required information been provided?
(ii) Does the bid contain mistakes?
(iii) Has bidder failed to commit to a firm
price?
(iv) Are there unacceptable
qualifications or conditions tied to the bid?
(v) Has the bid been prepared in accordance
with the bidding instructions?
(vi)
Are unacceptable provisions included in the bid?
(vii) Has the bidder altered or limited any
of the contract or solicitation provisions?
(viii) Has the bidder offered nonconforming
products or services?
(ix) Has the
bidder failed to acknowledge amendments to the IFB issued by the authority?
Note that the foregoing list is not exhaustive. Minor
deviations which are immaterial and do not effect quantity, quality or
delivery, may be waived by the authority if such waiver does not prejudice or
affect the relative standing of the bidders.
(2) In evaluating the responsibility of an
apparent low bidder or proposed subcontractor, the authority may consider,
among other factors, whether the subjects' record with the authority or other
public owners includes or demonstrates:
(i)
being listed on a Federal or State debarred contractors list;
(ii) poor prior performance on an authority
contract;
(iii) lack of adequate
expertise; prior experience with comparable projects; or financial resources
necessary to perform the work outlined in the contract in timely, competent and
acceptable manner. Evidence of such factors may include failure to submit
satisfactory evidence of insurance, surety bonds, or financial responsibility;
or a history of terminations for cause;
(iv) engagement in criminal conduct in
connection with any other government contracts or the conduct of business
activity that involves such crimes as extortion, racketeering, bribery, fraud,
bid-rigging and embezzlement;
(v)
grave disregard for the safety of employees, State personnel, or members of the
public. Consideration will be given to whether employees who will be assigned
to work on the project are properly trained and whether the equipment to be
used is safe and functioning properly;
(vi) willful noncompliance with the State's
Labor Laws regarding prevailing wage and supplement payment requirements,
including consideration of any pending violations;
(vii) disregard for other State Labor Laws,
including child labor, proper and timely wage payments and unemployment
insurance laws;
(viii) violations
of the State Workers' Compensation Law including failure to provide proof of
proper workers' compensation or disability coverage;
(ix) violations of the State's Environmental
Conservation Law or violations of any other Federal or State environmental
statutes;
(x) the failure to abide
by State and Federal statutes and regulations regarding efforts to solicit and
utilize disadvantaged, minority and women-owned business enterprises as
potential sub-contractors;
(xi) the
submission of a bid which is mathematically or materially unbalanced;
(xii) the submission of a bid which is so
much lower than the authority's confidential engineer's estimate that it
appears unlikely that the contractor will be able to complete the project
satisfactorily at the price bid;
(xiii) the presentation of false or
misleading statements or any other issue that raises serious questions about
the responsibility of the bidder or proposed subcontractor.
(c)
Board
approval.
Board approval is required for each of the following:
(1) all contracts for goods or services in
the actual or estimated value of $100,000 or more; and
(2) contracts where performance is to
continue for a period in excess of one year.
(d)
Buy America.
(1) Federal requirements. Procurements which
include Federal funds are subject to Federal Buy America requirements.
Generally, this means that steel, iron, and/or manufactured products which are
incorporated in public works or product purchases are to have been produced in
the United States, unless a waiver has been granted by a Federal agency or the
project is subject to a general waiver (see,
49 CFR
661.7 appendix A) or included in the FAA
Nationwide Buy America Waivers Issued list. General waivers have been
established for microcomputer equipment, including software, and purchases of $
150,000 or less.
(2) State
requirements.
(i) Product purchase contracts
involving an estimated expenditure in excess of $50,000 shall require that to
the extent such products are made of, fabricated from, or contain steel
components that such steel components are produced or made in whole or
substantial part in the U.S., its territories or possessions, except in the
procurement of motor vehicles and automobile equipment assembled in Canada in
conformity with the Automotive Products Trade Act of 1965 or any amendments
thereto.
(ii) Public work projects
in excess of $100,000 shall require that all structural steel, reinforcing
steel or other major steel items to be incorporated in the project shall be
produced or made in whole or substantial part in the U.S., its territories or
possessions.
(iii) By resolution of
the board of commissioners these State provisions may be waived if it is
determined that such provisions would result in unreasonable costs or that such
steel products or steel components cannot be produced or made in the U.S. in
sufficient and reasonably available quantities or of satisfactory quality or
design.
(e)
Foreign business enterprises.
In the event of the award of a contract for goods or services
from a foreign business enterprise in an amount equal to or greater than one
million dollars, simultaneously with notifying the successful bidder or
proposer, the authority shall notify the NYS Commissioner of Economic
Development of the pending award. The pending contract for goods or services
shall not be entered in to until at least 15 days have elapsed. However, this
provision does not apply to contracts for goods or services awarded on an
emergency or exigency basis or where a waiver of this requirement has been
obtained from the NYS Commissioner of Economic Development. The notification to
the NYS Commissioner of Economic Development shall include the name, address
and telephone and facsimile number of the foreign business enterprise, a brief
description of the goods or services to be obtained, the amount and term of the
proposed contract for goods or services, and the name of the individual at the
foreign business enterprise or acting on behalf of the same who is principally
responsible for the proposed contract for goods or services. Pursuant to
section
2879 of the Public Authorities Law, the
authority shall not enter into a contract for goods or services with a foreign
business enterprise which has its principal place of business located in a
discriminatory jurisdiction contained on the list prepared by the NYS
Commissioner of Economic Development pursuant to subdivision 6 of section
165 of the State Finance Law. The provisions
of this subparagraph may be waived by the executive director if the executive
director determines in writing that it is in the best interest of the authority
to do so. The executive director shall deliver each such waiver to the NYS
Commissioner of Economic Development.
(f)
Performance security and bonding
requirements.
(1) Bid security. All
public work contracts equal to or in excess of $50,000 shall require bid
security equal to 10 percent of the bid price. Bid security may be in the form
of a bid bond, certified check or other guaranteed negotiable instrument, or
letter of credit. The bid security of the bidders submitting the three lowest
bids will be retained until execution of the contract or a maximum of 180
calendar days after bid opening, whichever is sooner. Bid security of the
remaining bidders will be returned within 10 calendar days after the bid
opening date. In the event of neglect or refusal on the part of the successful
bidder to execute the contract and furnish evidence of insurances within 10
days after written notification of notice of intent to award the contract, and
furnish the performance security and labor and material payment bond within
three days after receipt of the executed contract, the entire bid security
shall be forfeited to and retained by the authority as liquidated damages for
such neglect or refusal. Bid security is not mandated for product
contracts.
(2) Performance
security. All public work contracts of $10,000 or more, shall require a
performance bond or certified check or other guaranteed negotiable instrument
or letter of credit guaranteeing the contractor's faithful performance.
Performance security is not mandated for product contracts. In instances where
a performance bond is offered, the bond shall be in the amount of the contract
and be issued by a duly incorporated entity authorized to guarantee the
faithful performance of contracts and to do business in the State of New York
as a surety.
(3) Letter of credit.
A letter of credit used as bid or performance security should be an irrevocable
letter of credit issued by a bank or financial institution of B-rating or
better, as determined by Moody's and Standard & Poors, signed by an
authorized representative of the issuing institution and naming the authority
as beneficiary. The letter of credit must state that an amount representing at
least 10 percent of the bid price is available to be drawn on unconditionally
by the authority under the expressed terms and conditions. These terms and
conditions including the location at which the authority can draw the funds, an
effective date, and expiration date should be clearly stated in the letter of
credit.
(4) Labor and material
payment bonds. All public work contracts, regardless of amount, shall require
labor and material payment bonds in an amount equal to the contract
amount.
(5) Maintenance bonds. All
public work contracts, regardless of amount, shall require as a minimum, a
one-year maintenance bond, which period shall commence as of the date of final
acceptance. The maintenance bond shall be in the full contract
amount.
(6) Waiver.
(i) Bid and maintenance bond requirements may
be waived prior to bid date by the executive director or his designee for
cause. In instances where such bonds are not required payment shall be withheld
until full and complete performance has been accomplished under the terms of
the contract.
(ii) Performance
security and labor and material payment bonds may be waived by the executive
director or his designee, prior to the bid date, in accordance with State
Finance Law, section
137(1), provided that the
aggregate amount of the contract is under $100,000 and that the authority
retains 20 percent from each progress payment or estimate until the entire
contract work has been completed and accepted, at which time the executive
director or his designee may authorize, pending the payment of the final
estimate, the release of up to 75 percent of the retained percentage.
(g)
Prevailing
wage rates.
Certain public work contracts maybe subject to the payment of
prevailing wage rates, regardless of the dollar amount of the contract. It
shall be the responsibility of the procurement and/or the engineering
department to obtain the applicable prevailing wage rates for the particular
procurement and ensure that the rates are included in the bid solicitation.
Generally, projects for construction, reconstruction or maintenance done on
behalf of a public entity involving the employment of laborers, workers or
mechanics are public works. In instances where there is a question regarding
whether this condition exists, the Bureau of Public Work will make a
determination based on the particular project details. Generally, agreements
between a contractor and a public entity in which the principal purpose is to
furnish services through the use of building service employees are subject to
prevailing wage rates. A building service employee includes, but is not limited
to, building cleaner, janitor, gardener, groundskeeper, window cleaner, and
occupations relating to the collection of garbage or refuse, and to the
transportation of office furniture and equipment and the transportation and
delivery of fossil fuel. The procurement and engineering departments are
encouraged to contact the legal department for assistance in the event they are
uncertain as to the applicability of prevailing rates to a particular
procurement.
(h)
Sealed bidding.
(1) Sealed
bidding is the preferred procurement method for acquisitions of $50,000 or more
where the following factors are present:
(i)
the contract will be based upon a complete, adequate and realistic
specification or purchase description and/or an itemized bid
proposal;
(ii) two or more
responsible bidders are willing and able to compete effectively for the
award;
(iii) a fair and reasonable
award can be made principally on the basis of price; and
(iv) the procurement lends itself to a
FFP-type contract.
(2)
Sealed bidding is not required when:
(i) the
purchase is under $50,000 and an informal, small purchase procurement procedure
is being followed;
(ii) an
emergency or exigency exists which renders delay impermissible;
(iii) a single source has been
validated;
(iv) a single bid has
been validated;
(v) Federal or
State authorization for noncompetitive negotiations has been
obtained;
(vi) a modification or
amendment to a contract is justified;
(vii) the procurement lends itself to a
CR-type contract; or
(viii) a
resolution adopted by a vote of at least two-thirds of the members in
attendance at a meeting of the board states that the board has determined that
it is not in the best interest of the authority to advertise for
bids.
(3) Minimum
requirements for sealed bidding include:
(i)
the preparation of an independent estimate prior to bid opening;
(ii) the advertisement of an invitation for
bids (IFB) or a synopsis of a procurement action;
(iii) the acceptance of sealed
bids;
(iv) the public opening of
sealed bids;
(v) the preparation of
a written bid analysis; and
(vi)
the award of a FFP type contract to the lowest priced responsive, responsible
bidder.
(4) In the event
of a tied-bid, the contract shall be awarded based upon the following
descending order of priorities:
(i) small
businesses which are labor surplus area firms;
(ii) other small businesses;
(iii) other businesses that are also labor
surplus area firms;
(iv) other
businesses (i.e., DBEs, WBEs and MBEs); and
(v) if two or more bidders still remain
equally eligible after application of the above order of priority, award shall
be made by a drawing by lot limited to those bidders. If time permits, the
bidders involved shall be given an opportunity to attend the drawing. The
drawing shall be witnessed by at least three persons, and the contract file
shall contain the names and addresses of the witnesses and the person
supervising the drawing.
(i)
Sealed bidding (two-step
variation).
(1) The two-step sealed
bidding method may be appropriate in instances where the specification is
functional or performance based and there may exist a variety of acceptable
technical approaches.
(i) Step one consists
of the request for, submittal, evaluation, and discussion (optional) of a
technical proposal. For purposes of two-step sealed bidding, this includes
engineering approach, special manufacturing processes and special testing
techniques. No pricing is considered in step one. Discussions may be conducted
for clarification of questions relating to technical requirements.
(ii) Step two consists of the submission of
sealed price bids by those who submitted acceptable technical proposals in step
one. Each bidder's price shall be based on its own technical proposal. If an
award is made, a FFP-type contract is awarded to the lowest priced responsive,
responsible bidder.
(j)
Negotiation.
(1) Procurement by negotiation is the
preferred procurement method for acquisitions of $50,000 or more where one or
more of the following factors are present:
(i) the desired goods or services cannot be
precisely defined, described or standardized;
(ii) the desired end product is conceptual in
nature;
(iii) a CR type contract is
contemplated;
(iv) discussions
concerning the technical aspects and price negotiation are intended;
(v) offerors are to be given the opportunity
to revise the price or technical aspects of their proposal;
(vi) price alone cannot be the determinative
factor in award. Quality, qualifications, performance data, or other
contractual factors are to be considered in selecting the most advantageous
offering; or
(vii) artistic or
aesthetic values supersede price as primary selection criteria.
(2) Procurement by negotiation is
not required when:
(i) the purchase is under
$50,000 and an informal, small purchase procurement procedure is being
followed;
(ii) an emergency or
exigency exists which renders delay impermissible;
(iii) a single source award or single bid
award is validated;
(iv) Federal or
State authorization for noncompetitive procurement has been obtained;
(v) a resolution adopted by a vote of at
least two-thirds of the members in attendance at a meeting of the board states
that the board has determined that it is impractical to advertise for
competitive proposals or it is not in the best interest of the authority to do
so; or
(vi) a modification or
amendment to a contract is justified.
(3) Minimum requirements for negotiation
include:
(i) the solicitation of statements of
qualifications (SOQ) and/or the advertisement of a request for proposals (RFP)
a minimum of 21 days shall be allowed for the preparation of proposals and the
setting of the proposal due date;
(ii) in the event that an SOQ is advertised,
preparation of a preselection list of the best qualified consultants, based on
the experience and qualification data supplied by the consultants. Generally,
the preselection list may consist of between three to five consultants. If
technical proposals were solicited in conjunction with the advertisement, all
consultants who submitted responsive proposals must be included for
evaluation;
(iii) the acceptance of
sealed proposals;
(iv) the
evaluation of the proposals on the basis of published selection
criteria;
(v) the published
selection criteria shall be as follows:
(a)
professional services, 40 percent qualifications and experience, 30 percent
technical criteria and 30 percent cost;
(b) revenue generating and other services, 20
percent qualifications and experience, 30 percent technical criteria and 50
percent cost;
(c)
technical/operation sensitive services, 20 percent qualifications and
experience, 40 percent technical criteria and 40 percent cost;
(d) specialty vehicles, equipment and
technical products, 20 percent qualifications and experience, 50 percent
technical criteria and 30 percent cost;
(vi) the preparation of an independent
estimate before opening the sealed proposal;
(vii) proposals within the competitive range
are identified and discussions are held with each proposer;
(viii) best and final offers (BAFOs) may be
requested of all proposers determined to be within the competitive range or on
the short-list; and
(ix) the
authority evaluates BAFOs and awards either a FFP-type or a CR-type contract to
the proposer whose BAFO is most advantageous to the authority.
(4) If so stated in the RFP,
selection may be based on the basis of the original proposals, without
discussions with any offeror. However, in the event discussions are conducted
with any one offeror, discussions must then be conducted with all offerors in
the competitive range.
(k)
Qualifications-based
procurement.
(1) This method is
required in procuring architectural, engineering, planning and certain related
services whenever State or Federal funds will or may be used. There are
differences between the Federal Aviation Administration and Federal Transit
Administration as to what services are required to be procured in this manner,
so reference should be made to the most current version of FAA Advisory
Circular 150/5100-14 E, FTA Advisory Circular 4220.1 For New York State law for
guidance.
(2) Minimum requirements
for a qualifications based procurement include:
(i) empaneling of the selection board,
consisting of usually at least three qualified members. If the intended
procurement is for a GBNRTC/NITTEC study either a GBNRTC/ NITTEC study manager
or the GBNRTC/NITTEC executive director shall be included on the selection
board, as is appropriate for the scope of the study. The selection board shall
be prepared to evaluate qualifications, proposals, potential consultants
(i.e., conduct interviews and inquiries as required), and make
recommendations. Where a GBNRTC/NITTEC study may not be in the direct interest
of the authority, the selection board may include representatives from outside
agencies which have an interest in the study;
(ii) development by the selection board, of
the selection criteria and the evaluation system to be used in preparing a
preselection list of consultants, and in determining the final
selection;
(iii) the solicitation
of qualifications by either advertisement of a request for qualifications (RFQ)
or by requiring qualifications as part of a request for proposals (RFP)
advertisement a minimum of 21 calendar days shall be allowed for the
preparation of proposals and the setting of the proposal due date;
(iv) in the event that an RFQ is advertised,
preparation of a preselection list of the best qualified consultants, by the
selection board, based on the experience and qualification data supplied by the
consultants. If technical proposals were solicited in conjunction with the
advertisement, all consultants who submitted proposals must be included for
evaluation. Generally, the pre-selection list may consist of between three to
five consultants;
(v) notification
to the unsuccessful consultants who expressed an interest;
(vi) solicitation of sealed technical
proposals from each of the consultants;
(vii) the selection board, at its option may
conduct interviews, presentations, and/or discussions. If this option is
elected, interviews, presentations, and/or discussions must be held with each
consultant who has submitted a technical proposal if the initial solicitation
was by way of RFQ. If not, interviews, presentations, and/or discussions must
be held with each consultant in the competitive range in accordance with the
evaluation of the technical proposals;
(viii) evaluation of technical proposals and
experience and qualification data based upon published selection criteria of
which price shall not be a factor, rank and identify most qualified
consultant;
(ix) initiate
discussions with the most qualified, acceptable proposer to develop and agree
upon the scope of work. Thereafter, the authority prepares its engineer's
estimate and requests the cost proposal of the most qualified, acceptable
proposer;
(x) upon completion of
the engineer's estimate the selection board shall open and review the cost
proposal. Thereafter, negotiations are undertaken;
(xi) if a fair and reasonable price cannot be
reached with the most qualified, acceptable proposer, negotiations are
commenced with the next most qualified and acceptable proposer. The cost
proposal of the next most qualified proposer may be requested only after
negotiations with the most qualified proposer have been formally terminated.
This process shall be repeated until the successful negotiation of a fair and
reasonable contract price for an acceptable proposal from a qualified proposer
is reached, or until the procurement is discontinued;
(xii) in accordance with the requirements of
New York Public Authorities Law section
2879(3)(b)(iv) the
authority will not refuse to negotiate with a professional firm solely because
the ratio of the allowable indirect costs to direct labor costs of the
professional firm or the hourly rate in any labor category of the professional
firm exceeds a limitation, generally set by the authority in the determination
of the reasonableness of the estimated cost of services to be rendered by the
professional firm but rather the authority should also consider the
reasonableness of cost based on the total estimated cost of the service of the
professional firm which should include, among other things, all the direct
labor costs of the professional firm for such services, plus all allowable
indirect costs, other direct costs and negotiated profit of the professional
firm. A professional firm is defined for the purpose of this
subparagraph as any legal entity permitted by law to practice the professions
of architecture, engineering or surveying; and
(xiii) submittal of written and documented
recommendation for award by the selection board to the board of commissioners
when required. In addition, the GBNRTC/NITTEC studies documentation of the
selection board's recommendation for award will be maintained at the
GBNRTC/NITTEC offices and will be available to interested parties.
(l)
Options.
An option is a unilateral right in a contract by which, for a
specified time, the authority may acquire additional equipment, supplies, or
services than originally procured. An option may also extend the term of the
contract. An option must be evaluated as part of the original contract award.
In addition, for procurements funded by the Federal Transit Administration, a
cost and price analysis must be conducted at the time of exercise of the option
in order to ensure that the option price is still fair and reasonable.
(m)
New York State Contract
Reporter.
All procurements of goods or services having an actual or
estimated value of $50,000 or more shall be published in the New York
State Contract Reporter (NYSCR). The notice of procurement opportunity
shall appear in the NYSCR at least 15 business days prior to the bid or
proposal due date. However, advance publication shall not be required under
emergency or exigency conditions, or when an expediency action has been adopted
by the board, or if the procurement is being solicited within 45 business days
after the date bids or proposals were originally due. At the time a
determination of intent to award a procurement contract is made, the following
information shall be submitted for publication in NYSCR: for procurement
contracts obtained through the sealed bidding process, the result of the bid
opening including the names of bidding firms and the amounts bid by each; for
procurement contracts obtained through the negotiation and/or
qualification-based processes, the names of firms submitting proposals and the
proposal selected as the best value offer; and for all other procurement
contracts, the name of the proposed awardee.
(n)
Sole-source awards.
(1) A sole source award shall not be
justified on the basis of:
(i) a lack of
advance planning by the initiating department; or
(ii) concerns related to the amount of funds
available (i.e., funds will expire) to the authority for the
acquisition of supplies or services.
(2) A sole-source award is justified under
circumstances limited to the following:
(i) a
validated "single bid";
(ii)
emergency (subdivision [lx] of this section);
(iii) exigency (subdivision [lx] of this
section);
(iv) expediency (waiver
of competition, for cause, by a two-thirds vote of the board of commissioners)
(subdivision [y] of this section); or
(v) a validated "single source" (paragraph
[4] of this subdivision).
A cost or price analysis must be prepared for all sole source
awards in accordance with FTA guidelines.
(3) A single bid is not validated for
purposes of sole source award until authority staff:
(i) canvasses all, or in the alternative,
three or more prospective bidders from whom bids were solicited to learn the
causes for the lack of bidding activity;
(ii) evaluates and documents the
responses;
(iii) reconsiders its
requirements and specifications;
(iv) makes findings supporting the need for
the original requirements and the sufficiency of the specifications, and that
the single bidder is responsive and responsible or that the proposer is
qualified and the proposal is acceptable; and
(v) conducts a price or cost analysis to
establish that the bid price is fair and reasonable. The cost analysis shall
verify the proposed cost data, the projections of the data and the evaluation
of specific elements of cost and profit.
(4) A single source is not validated for
purposes of a sole source award until authority staff investigates and
documents one or more of the following circumstances:
(i) the proposed source is the original
manufacturer and the terms and conditions of a viable warranty would be
violated by the installation of unauthorized parts or components in existing
equipment, machinery, vehicles, or systems, or servicing by uncertified or
unauthorized personnel, and there are no other sources from which authorized
parts or components or servicing from certified or authorized personnel may be
obtained;
(ii) the proposed source
possesses exclusive, limited rights in data, patent rights, copyrights, secret
processes, or the control of basic raw material;
(iii) the proposed source is the provider
under an existing "term contract" (see, definitions) and the procurement
constitutes a sub award thereunder;
(iv) prior approval by a State or Federal
funding agency;
(v) the executive
director has determined, in accordance with a standardization program adopted
by the authority, that only specified makes and models of technical equipment
and parts will satisfy the authority's needs for additional units or
replacement items and only one source is available; or
Note: With the exception of awards made under subparagraphs
(n)(4) (i), (ii) and (iii) the aggregate value of single source, unadvertised
awards to any one firm or person shall not exceed $ 100,000 per year, absent
board approval.
(5) All eligible contracts for the purpose of
goods or services which are to be awarded on a single source basis, sole source
basis or pursuant to any other method of procurement that is not a competitive
procurement and where the aggregate consideration under the contract may
reasonably be valued in excess of $1,000,000 and eligible amendments to
contracts previously approved by the Comptroller where the value of the
amendment is 10 percent or more of the contract amount previously approved by
the Comptroller are subject to the prior review and approval of the New York
State Comptroller. Please refer to section 2979-a of the Public Authorities Law
and Part 206 of Title 2 NYCRR for relevant definitions and the process to be
followed.
(o)
Contract types.
(1) A firm fixed
price (FFP) type contract should be used where there are no substantial
uncertainties relating to cost, performance or schedule (lump sum and unit
price contracts are examples of FFP-type contracts).
(2) Cost-reimbursement (CR) type contracts
are generally appropriate for qualifications-based procurements and negotiated
procurements based on a scope of services rather than detailed
specifications.
(3) Cost plus
percentage of cost type contracts, and cost plus percentage of construction
cost type contracts are prohibited.
(4) Time and material (T&M) contracts are
permitted only:
(i) after a determination that
no other compensation arrangement is suitable; and
(ii) the contract or purchase order contains
a price ceiling that the contractor exceeds at its own risk; and
(iii) all labor and equipment rates
(including overhead and profit), are predetermined and set forth in the
contract and materials are to be paid for at cost.
(p)
Specifications.
(1) To permit the preparation and evaluation
of bids on a common basis, specifications shall present a clear and accurate
description of the desired technical requirements for materials, products or
services. Further, the specifications shall state the criteria by which the
authority shall determine whether the requirements have been
satisfied.
(2) The specifications
shall reflect the authority's actual needs and shall not contain features which
unduly restrict competition.
(3) A
brand name or equal description may be used when:
(i) it is impractical or uneconomical to make
an accurate description of technical requirements; or
(ii) an adequate or more detailed description
could not be provided, other than by inspection and analysis, in time for the
procurement; and
(iii) the
specification clearly sets forth the salient physical and functional
characteristics of the brand name product which are essential to the
authority's minimum requirements and will be used to evaluate proposed or equal
substitutions; and
(iv) the
specification includes the complete common generic identification of the brand
name product, together with applicable model, make or catalog number, and
address of the company.
(4) Or equal substitutions should be
considered for acceptance where the authority determines that the proposed
substitution is equal in all material respects to the brand-name product. Or
equal substitutions should not be rejected on the basis of minor differences in
design, construction or features which do not affect the suitability of the
products for their intended use.
(5) Prior to developing acquisition
specifications authority staff shall conduct a study of the market place to
determine market availability to satisfy the intended acquisition. If a
specification is in any way restrictive, a needs analysis must be prepared
establishing justification for the specifications. Also, a market analysis must
be prepared to document the efforts made in identifying the available market
place.
(q)
Small
purchases.
(1) Small purchase
acquisitions do not require board approval unless the term of such acquisition
will continue in excess of one year.
(2) Formal bidding. Contracts for goods or
services equal to or in excess of $50,000, but less than $100,000 may be
awarded by the executive director or his designee, upon satisfaction of the
following minimum requirements:
(i)
Publication of a notice of procurement opportunity in the New York
State Contract Reporter (NYSCR), and either advertisement of a notice
of procurement opportunity in any other appropriate forum, or dissemination of
a notice of procurement to at least three potential offerors by telephone or in
writing.
(ii) Dissemination of
detailed information regarding the proposed procurement, including but not
limited to, terms and conditions of the contractual relationship and the scope
of services to all interested potential offerors.
(iii) Receipt of competitive bids or
proposals pursuant to sealed bidding procedures or negotiation procedures, as
is applicable.
(iv) Examination of
OGS NYS Commodity Index to determine whether the procurement may be obtained
from that source on terms advantageous to the authority.
(v) Documentation of the procedures followed
and report of same including identification of the budget line item, to the
executive director or his designee.
(3) Informal bidding. Contracts for goods or
services for:
(i) less than $100,000 may be
awarded by the executive director or his/her designee; provided, however, that
if such contract is a GBNRTC or NITTEC contract, it shall first be approved by
its board of directors; or
(ii)
less than $10,000 may be awarded by the general counsel, the chief financial
officer, any general manager or director, the executive director of the GBNRTC
or the executive director of NITTEC, or their respective designee (note, that
any such delegation must be in writing), upon satisfaction of the following
minimum requirements:
(a) if appropriate,
examination of OGS NYS Commodity Index to determine whether the procurement may
be obtained from that source on terms advantageous to the authority;
(b) at least three written or telephonic
quotes must be solicited for purchases equal to or over $3,000 and under
$50,000. Purchases under $3,000 may be made without quotes, if the procurement
manager or her designee considers the prices to be fair and
reasonable;
(c) for each
procurement records shall be maintained which set forth: the names and
addresses of the contractors or vendors solicited; the terms and prices quoted;
whether the goods or service may be procured under the OGS NYS Commodity Index,
and if so, the price;
(d) in the
case of procurements of $3,000 or more, if three or more quotations cannot be
obtained because there is not a sufficient number of suppliers able to meet the
purchase requirements (including timely delivery), such facts shall be set
forth in writing.
(e) approval of a
small purchase contract award shall not be granted unless and until the
foregoing written information has been reviewed and found to be acceptable.
Approval may be indicated by dated signature authorization by the executive
director or the authorized individual;
(f) price lists or catalogs may be used in
obtaining three or more quotes.
(4) A written confirmation of the successful
contractor's quotation, including price and relevant contract terms shall be
obtained in the case of verbal quotes or offers, prior to award.
(5) In the event a single source or single
bid selection is the subject of a small purchase under $50,000, authorization
for the purchase must come from the executive director.
(r)
Federal, State and county contract
lists.
The State Office of General Services contract prices and
county contract prices are deemed competitive prices. Contracts may be awarded
based on the State or county contract price without additional competitive
procedures. The United States General Services Administration (GSA) has
identified specific contracts that the authority is authorized to use.
Contracts maybe awarded based on the Federal contract price when allowed by the
GSA. If the contract price available through the Federal, State or county price
lists is lower than the lowest bid price after sealed bidding, formal bidding,
or informal bidding, the bids shall be rejected and a contract awarded based
upon the Federal, State or county contract price.
(s)
Funding.
(1) In all cases where contracts are being
funded by State or Federal funds, applicable regulations of the State or
Federal authorities governing the award of such contracts shall be
observed.
(2) The Federal Aviation
Administration and the Federal Transit Administration each have specific
criteria for the procurement of design-bid-build and design-build contracts.
Please refer to the relevant advisory circular for specific
requirements.
(3) The Federal
Aviation Administration and the Federal Transit Administration each prohibit
the use of in-State or local geographical preferences, with the exception of
architectural and engineering services.
(4) The Federal Aviation Administration and
the Federal Transit Administration require a cost analysis or a price analysis
in connection with every procurement action.
(5) The Federal Transit Administration
requires the use of part 31 of the Federal Acquisition Regulations with respect
to pricing issues.
(6) The Federal
Transit Administration has specific rules governing advance payments and
progress payments. Advance payments are prohibited. Progress payments are
permitted provided that title has been obtained. Please refer to FTA circular
4220.1F.
(7) No contract shall be
awarded or obligation incurred for any purpose which involves the expenditure
of money, in excess of the monies appropriated and available in the authority's
budgets for said purpose, except as otherwise authorized by the
board.
(t)
Professional service contracts.
(1) The following guidelines apply to the
procurement of consulting or professional services such as legal, audit,
planning, testing, accounting, architectural, engineering or surveying
services, except to the extent that the procurement of such services are
governed by State or Federal regulations.
(2) Professional service contracts which do
not exceed $100,000 and will not involve services to be rendered in excess of
one year may be awarded following either the formal bidding or informal bidding
small purchase guidelines set forth in subdivision (o) of this section, as is
appropriate.
(3) The selection of
professional service contractors shall be on a competitive basis, except that
the board may waive competition by a two-thirds vote of the members in
attendance at a meeting of the board, if it is in the best interests of the
authority to do so. The standard of best interest of the authority may, but
need not be based upon one or more of the following criteria for the selection
of professional service contractors:
(i)
confidentiality;
(ii) specialized
expertise or unusual qualifications or services are obtainable from one source
only;
(iii) historical relationship
with the authority, the continuation of which will result in some economy
advantage to the authority and will avoid duplication of costs;
(iv) specialized knowledge;
(v) lack of responsible competition, as
validated pursuant to subdivision (k) of this section,
supra;
(vi)
nature, magnitude or complexity of services required;
(vii) lack of resources, support staff,
specialized facilities or equipment;
(viii) short term or infrequent need for
services; and
(ix) selection which
is necessary as a result of emergency or exigency conditions.
(u)
Disadvantaged
and Airport Concession Disadvantaged business enterprises/minority women
business enterprises/service disabled veteran-owned business.
(1) It is the desire of the board to promote
and assist participation by DBEs, ACDBEs, MBEs and WBEs and to facilitate a
fair share of the awarding of contracts thereto.
(2) An updated list of all DBE certified
firms in New York State may be obtained from the New York State Unified
Certification Program website at
www.nysucp.newnycontracts.com . A
directory of MWBE certified firms may be obtained from the New York State MWBE
website at ny.new.nycontracts.com. A list of all SDVOB certified firms in New
York State may be obtained from the New York State Office of General Services
website at
www.online.ogs.ny.gov/
SDVOB/search. The procurement department shall be responsible for referencing
such lists prior to the publication of a notice of procurement opportunity to
determine the availability of certified , MBE and WBE entities.
The Office of Equal Opportunity/Diversity Development shall
be responsible for referencing such lists prior to the publication of a notice
of procurement opportunity to determine the availability of certified DBE and
ACDBE.
(3) The director,
EEO/diversity development shall ensure that the authority establishes
appropriate goals for participation by minority or women-owned business
enterprises in procurement contracts awarded by the authority and for the
utilization of minority and women-owned business enterprises as subcontractors
and suppliers by entities having procurement contracts with the authority.
Statewide numerical participation target goals shall be established by the
authority based on the findings of the 2010 disparity study.
(4) Every effort will be made to achieve the
MWBE goals assigned to projects. The authority's procurement solicitation
documents shall include MWBE goals as appropriate. These documents are
advertised and posted on the authority's website. MWBE utilization will be
monitored and reported by the EEO/diversity development department with
assistance from the engineering and procurement
departments.
(v)
Confidentiality and conflicts of interest.
(1) Authority staff engaged in the
procurement process shall ensure that proprietary information submitted by
bidders and proposers, and source selection information, including the number
or identity of offerors is not disclosed to any unauthorized person. In the
event a request for such confidential information is made, the Office of
General Counsel shall determine the appropriateness of disclosure.
(2) No procurement contracts shall be entered
into with former commissioners, officers or employees of the authority except
to the extent permitted by section
73 of the Public Officers Law and the
authority Board of Commissioners' Code of Ethics.
(3) No procurement contracts shall be awarded
to a firm to:
(i) prepare the work
statement/specifications for purchase of supplies or a proposed public work
when the firm is affiliated with another company whose business is related to
the pending procurement. (In order to ensure objective contractor performance
and eliminate any unfair competitive advantage, a contractor that develops or
drafts specifications for a particular procurement shall be excluded from
competing for and performing work under the directly ensuing procurement,
unless the initial design contract was awarded under a competitive selection
process); or
(ii) perform a study
or work effort concerning a certain organization, technical field or geographic
area when the firm has a business relationship or common interest with the
organization, field or area to be studied.
(4) The files for procurement contracts
covered by section
139-k of the State Finance Law must
include the required information regarding persons or organizations retained to
attempt to influence the procurement process. Any contracts that reasonably
appear to be an attempt to influence the procurement process by persons or
organizations other than those identified in the bid or proposal documents
shall be recorded as required by section
139-k of the State Finance Law.
(w)
Minimum contract
requirements.
(1) The following types
of provisions shall be contained in all goods and services contracts, except
that any of the provisions listed which are inapplicable or unnecessary because
of the nature or duration of the services to be performed, or goods to be
supplied, the location or locations where they are to be performed or supplied,
or the type of the compensation being paid therefor, need not be included:
(i) description of services or goods or the
scope and extent of contract work;
(ii) compensation, delineating the contract
price and method of payment or the rates and fees upon which compensation shall
be based;
(iii) time for
performance or date of completion, including when appropriate, dates for
completion of significant tasks. The authority shall not enter into any
contract for rolling stock or replacement parts with a period of performance
exceeding five years inclusive of options;
(iv) liability of contractor; indemnification
of authority;
(v) reports of
contractor;
(vi) ownership of
plans, drawings or other products of the performance of the service;
(vii) no assignments or subcontracts without
the express prior written consent of the authority;
(viii) maintenance of records,
accounts;
(ix) rights of inspection
and audit of books and records;
(x)
insurance requirements;
(xi)
termination;
(xii) monitoring of
the performance of services;
(xiii)
the extent of subcontracting and subconsulting agreements;
(xiv) contract modification or change order
requirements;
(xv) notice of
claim/disputes;
(xvi) use of
authority's supplies, facilities or property;
(xvii) use of authority's personnel, and
certification of key personnel and facilities necessary to accomplish the work
within the time required; and
(xviii) all provisions required to be
included in the contracts of the authority by Federal, State or local laws,
ordinances, codes, rules or regulations, including when appropriate, notice to
the contractor that the proposed procurement action will be subject to State
and/or Federal funding regulations and approval.
(x)
Contract modifications,
change orders and supplemental agreements.
(1) Change orders, supplemental agreements or
other contract modifications which alter a procurement contract shall be
approved by either the board, the executive director, the general counsel, the
chief financial officer, the executive directors of GBNRTC and NITTEC, a
general manager, or director as is appropriate and as is limited by the levels
of authorization outlined in subdivision (n) of this section, small
purchases.
(2) The authority shall
perform a cost analysis unless price reasonableness can be established on the
basis of a catalog or market price of a commercial product sold in substantial
quantities to the general public or on the basis of prices set by law or
regulation.
(3) Profit shall be
negotiated as a separate element, taking into consideration:
(i) complexity of the work;
(ii) the risk borne by the
contractor;
(iii) the contractor's
investment;
(iv) the degree of
subcontracting;
(v) the
contractor's past performance; and
(vi) industry profit rates for similar
work.
(4) Any change
order, supplemental agreement or other contract modification shall contain a
justification assuring that the proposed action is an appropriate alternative,
under the circumstances, to a competitive procurement.
(5) The Federal Transit Administration
prohibits cardinal changes, defined as significant changes in contract work
that cause major deviations from the original purpose of the work or the
intended method of achievement, or cause revisions of contract work so
extensive, significant, or cumulative that, in effect, the contractor is
required to perform very different work from that described in the original
contract. Please refer to FTA circular 4220.1F for further
information.
(y)
Emergency or exigency.
(1) The
general counsel, chief financial officer, executive directors of GBNRTC and
NITTEC and general managers and directors, or their designees, are authorized
to declare an emergency or exigency and to make awards not to exceed Nine
Thousand Nine Hundred Ninety-Nine Dollars ($9,999), per occurrence, and shall
report same to the executive director at the earliest opportunity, as described
in paragraph (5) of this subdivision.
(2) In the event the authorization limit set
forth in paragraph (1) of this subdivision will be exceeded, the general
counsel, chief financial officer, executive directors of the GBNRTC and NITTEC,
directors or general managers shall contact the executive director or in his
absence the chairman of the board. The executive director is authorized to
declare an emergency or exigency and to make awards not to exceed $100,000, per
occurrence and shall report same to the chairman at the earliest opportunity,
as described in paragraph (5) of this subdivision.
(3) In the event the authorization limit set
forth in paragraph (2) of this subdivision will be exceeded, the executive
director shall contact the chairman of the board, or in his absence, the vice
chairman of the board. The chairman (or if applicable, the vice chairman), is
authorized to declare an emergency or exigency and to make awards which may
exceed $100,000.
(4) In the event
the final contract amount owed is equal to or greater than $100,000, the
individual responsible for declaring the emergency or exigency shall prepare
and submit a " Declaration of Emergency/Exigency Report" to the executive
director for submittal to the board at the earliest possible board meeting. The
"Single Source Validation Report" form, in section
1159.5(f)
of this Part, may be used. At a minimum, the "Declaration Report" shall set
forth the following information:
(i) a
description of the emergency or exigent circumstances, or the unforeseen
circumstance;
(ii) a description of
the perceived damages or threat of harm or loss, or the perceived interruption
to or obstruction of operation or provision of service;
(iii) a description of the preventative
action taken;
(iv) a listing of all
authority personnel involved in the response or the occurrence;
(v) an explanation of the steps taken to
procure goods or services and the rationale for the award and procurement
decisions made by the individual;
(vi) identification of the source of funds
used to pay for the response;
(vii)
a request for board ratification of the response to the emergency or
exigency.
(5) In the
event the final contract amount is less than $100,000, the individual
responsible for declaring the emergency or exigency shall prepare and submit a
"Declaration of Emergency/Exigency Report" to the executive director at the
earliest possible time, documenting the information outlined in subparagraphs
(4)(i) through (vi) of this subdivision.
(z)
Expediency.
(1) The provisions of this article shall be
implemented under special and limited circumstances as determined by a
two-third's vote of the members in attendance at a meeting of the board, based
on the best interests of the authority upon request by staff seeking board
waiver of one or more procurement guidelines. The criteria for establishing
best interests of the authority for the purposes of this subdivision may be
found in paragraph (q)(3) of this section.
(2) The request shall include but not be
limited to the following:
(i) statement of
objective and rationale for expediency;
(ii) course of action outlining:
(a) step-by-step procedure to accomplish the
objective;
(b) specific guideline
waiver request(s);
(c)
justification and anticipated benefit to the authority;
(iii) request for authorization to
proceed.
(aa)
Waiver of competition pursuant to section
2879 of the Public Authorities Law.
Pursuant to section
2879 of the Public Authorities Law the
board may waive competition for the purchase of goods or services from small
business concerns or lose certified as minority- or women-owned business
enterprises, or goods or technology that recycled or manufactured, in an amount
not-to-exceed $500,000 in accordance with changes in New York State law. Such a
waiver may only be granted for non-federally funded purchases and shall require
a two-thirds vote of the members in attendance at a meeting of the
board.
(ab)
Records
retention.
Procurement records shall be retained in accordance with the
New York State Records Retention Manual. Every procurement
file shall contain, at a minimum, records detailing:
(1) the rationale for the method of
procurement;
(2) the rational for
the selection of contract type;
(3)
reasons for contractor selection or rejection; and
(4) the basis for the contract
price.
(ac)
Procurement reporting.
(1) The
procurement department shall ensure that on an annual basis, the authority
shall prepare, approve and make publicly available, a report summarizing the
authority's procurement activity for the period of the report. The report shall
include a listing of all contracts of $5,000, or more, the selection process
used to select such contractors and the status of existing procurement
contracts.
(2) On an annual basis
the office of general counsel shall prepare and submit for board approval a
report on procurement guidelines. This report shall include a copy of the
existing guidelines, an explanation of the guidelines and any amendments
thereto since the last annual report. This report may be made a part of any
other reports that the authority is required to make.
(3) This information shall be submitted
annually through the New York State Public Authorities Data Report to the New
York State Division of the Budget, and copies thereof to the New York State
Department of Audit and Control, the Senate Finance Committee, the Assembly
Ways and Means Committee and the Executive Officers and Legislatures of Erie
and Niagara County.
(ad)
Split procurements.
The splitting of procurements for the purpose of
circumventing the requirements of more complex procurement procedures or a
higher level of authority or decisionmaking is prohibited.
(ae)
Updating, monitoring and control
of procurement guidelines and procedures.
(1) The procurement department and the office
of general counsel shall ensure that the procurement guidelines and procedures
are submitted to the board for review, updating (if deemed necessary), and
reauthorization, on an annual basis.
(2) The department of internal audit shall
develop and implement a program to monitor the authority's compliance with the
procurement guidelines and procedures.
(3) The procurement department shall develop
and implement a control system to ensure that the guidelines and procedures are
being followed.
(af)
Utilities, surplus and second-hand supplies.
(1) Utilities and utility services such as
telephone, water, electric power and natural gas (except for those utilities
and utility services which are competitively procured), may be purchased upon
the authorization of the CFO without board approval, provided that the
cumulative dollar amount for such purchases for the year is within the amounts
budgeted for such utilities or services, as approved by the board.
(2) The authority may purchase surplus and
second hand supplies, materials or equipment from the Federal Government, the
State of New York or any political subdivision municipality, or district
without advertising or the solicitation of bids, proposals or quotations,
however, purchases involving an expenditure of $100,000 or more shall require
board approval.
(ag)
Contract Management and Monitoring. The responsibility for
Contract management and monitoring rests with the Executive Director acting in
consultation with the Executive Director 's Management Team. This
responsibility includes, but is not limited to, decisions to terminate a
contract, and/or invoking breach, default or other provisions of a contract. In
keeping with the proper separation of Board oversight and Executive Management
functions as recognized by the NY Authority Budget Office, the Executive
Director should carry out appropriate policies, make day-to-day operating
decisions and keep the Board informed with sufficient information of actions,
issues of concern, potential risks, and liabilities, while the Board has a
separate responsibility to provide active oversight of management, and an
obligation to make reasonable inquiry of activities when appropriate. See NY
Authority Budget Policy Guidance No. 06-02.