Current through Register Vol. 46, No. 12, March 20, 2024
(a)
Code of
ethics.
In addition to the requirements imposed by (i) Sections 73
and 74 of the New York Public Officers Law, which govern outside
business/professional activities and conflicts of interest, respectively, and
apply to all employees of the Authority, (ii) Authority Policy 01-01-04 (Code
of Ethics) and (iii) the Board of Commissioners Code of Ethics, the authority
will assure that ethical conduct is maintained by adhering to the following
requirements:
(1) No employee,
officer, commissioner, or agent of the authorityshall participate in the
selection, or in the award or administration of a contract, if a conflict of
interest real or apparent would be involved. Such a conflict would arise when:
(i) the commissioner, officer, employee, or
agent;
(ii) any member of
his* immediate family;
(iii) his partner; or
(iv) an organization that employs, or is
about to employ, any of the above, has a financial or other interest in the
firm selected for award.
(2) The authority's, commissioners, officers,
employees, or agents will neither solicit nor accept gratuities, favors, or
anything of monetary value from contractors, potential contractors, or parties
to sub agreements.
(3) Rule with
respect to conflicts of interest. No commissioner, officer or employee of the
authority should have any interest, financial or otherwise, director indirect,
or engage in any business or transaction or professional activity or incur any
obligation of any nature, which is in substantial conflict with the proper
discharge of his duties in the public interest.
(4) Standards.
(i) No commissioner, officer or employee of
the authority should:
(a) accept other
employment which will impair his independence of judgment in the exercise of
his official duties;
(b) accept
employment or engage in any business or professional activity which will
require him to disclose confidential information which he has gained by reason
of his official position or authority;
(c) disclose confidential information
acquired by him in the course of his official duties nor use such information
to further his personal interests;
(d) use or attempt to use his official
position to secure unwarranted privileges or exemptions for himself or
others;
(e) engage in any
transaction as representative or agent of the authority with any business
entity in which he has a direct or indirect financial interest that might
reasonably tend to conflict with the proper discharge of his official
duties;
(f) by his conduct give
reasonable basis for the impression that any person can improperly influence
him or unduly enjoy his favor in the performance of his official duties, or
that he is affected by the kinship, rank, position or influence of any party or
person.
(ii) A
commissioner, officer or employee of the authority should:
(a) abstain from making personal investments
in enterprises which he has reason to believe may be directly involved in
decisions to be made by him or which will otherwise create substantial conflict
between his duty in the public interest and his private interest;
(b) endeavor to pursue a course of conduct
which will not raise suspicion among the public that he is likely to be engaged
in acts that are in violation of his trust.
(iii) Anyone involved in the negotiation of
contracts shall ensure that all statements, communications and representations
to contractor representatives are accurate and truthful.
(iv) Great care must be exercised to ensure
the proper recording and charging of all costs to the appropriate account,
regardless of the status of the budget for that account. The falsification of
time reports or other cost records will not be tolerated. Every supervisor is
responsible for assuring that the work time of employees is recorded promptly
and charged accurately.
(v) No
employee may submit or concur in the submission of any claims, bids, proposals
or any other document that is false, fictitious or fraudulent.
(vi) Great care must be exercised by
supervisors to avoid placing, or seemingly to place, pressure on subordinates
which might cause them to deviate from acceptable norms of conduct.
(vii) The purchase of supplies, materials,
and services from suppliers, vendors, contractors and subcontractors must be
done in a manner that preserves the integrity of our procurement process based
on the bid process.
(viii) Laws and
regulations regarding entertainment, gifts and payments may be somewhat
complicated. For this reason, questions regarding specific policies should be
referred to authority's ethics officer.
(ix) Employees should report any instance in
which they are offered money, gifts, or anything else of value by a supplier or
prospective supplier or contractor of the authority to the authority's ethics
officer.
(x) Every employee is
charged with the duty to preserve the authority's assets, property, plant and
equipment.
(5)
Violations.
In addition to any penalty contained in any other provision
of law any such commissioner, officer or employee who shall knowingly and
intentionally violate any of the provisions of this section may be subject to
disciplinary action, suspended, or removed from office or employment in the
manner provided by contract, law, or established employment policies.
(b)
Protest
procedures.
The protest procedures set-forth herein apply to both sealed
bids and negotiated procurements.
(1)
Pre-bid opening protests.
If a bidder/proponent can demonstrate that the contract
documents issued by the authority are unduly exclusionary and restrictive or
that Federal, State or local laws or regulations have been violated during the
course of the procurement, then the bidder/proponent may seek a review by the
executive director or his appointed representative, at 181 Ellicott Street,
Buffalo, NY 14203. Protests shall be clearly identified as Protests and
submitted in writing as early as possible but no later than five business days
before bid opening. Within four business days after receipt of a pre-bid
protest, the executive director shall make one of the determinations listed in
paragraph (3) of this subdivision.
(2) Post-bid opening protests.
A protest to the acceptance or rejection of any or of all
offers or bids to a contract, or to the award thereof, or to any such action
proposed or intended by the authority must be received in writing by the
executive director no later than five business days after the protesting party
first learned of the required board action, or reasonably ought to have learned
of the required board action or, if the board action is not required, any
proposed or intended action to which he/she protests.
(3) In the event the protestor alleges that
the executive director or the representative appointed by the executive
director to serve as decision-maker for the particular protest, engaged in
improper conduct during the subject procurement, the general counsel shall
serve as the decision-maker. In the event it has been alleged that the general
counsel has engaged in improper conduct during the subject procurement, either
the executive director or the Director of Engineering shall serve as the
decision-maker.
(4) Rulings on
protests.
Within four business days, the executive director shall
render one of the following determinations:
(i) Protest is overruled.
(ii) Protest is substantiated. Executive
director shall issue instructions to remedy issues relating to the
protest.
(iii) Procurement activity
is suspended until written notification by the executive director. Such
determination shall be in writing and shall provide at a minimum a general
response to each material issue raised in the protest. All documents submitted
by the protestor and/or authority staff and reviewed by the decision-maker in
the reaching of a determination shall form and be retained by the authority as
the formal record of the dispute resolution process. The issuance of the
foregoing determination is the authority's final decision of the dispute. All
interested parties shall be notified of any protests that are filed. The
authority shall refrain from awarding a contract within five business days of
the date of a decision rendered by the executive director regarding a protest,
unless the authority determines that:
(a) the
items to be procured are urgently required;
(b) delivery or performance will be unduly
delayed by failure to make a prompt award;
(c) failure to make a prompt award will
otherwise cause undue harm to the authority or the Federal
government.
(5) Protestor's appeal to Federal or State
agencies.
In the event Federal or State funds are participating in the
procurement, then the protestor may seek a review by the appropriate funding
agency. The Federal Transit Administration will only consider a protest if the
authority:
(i) does not have protest
procedures;
(ii) has not complied
with its protest procedures; or
(iii) has not reviewed the protest when given
the opportunity to do so. The Federal Transit Administration will exercise
discretionary jurisdiction over those appeals involving issues important to the
Federal Transit Administration's overall public transportation program.
Protestors shall file such a protest not later than five
business days after a final decision is rendered under the authority's protest
procedure. In instances where the protestor alleges that the authority failed
to make a final determination on the protest, protestors shall file a protest
with the appropriate agency not later than five business days after the
protestor knew or should have known of authority's failure to render a final
determination on the protest.
(g)
Criteria and standards governing
commercial advertising.
(1) All
advertising placed in the NFTA and/or Metro system should reflect a high level
of good taste, decency and community standards in copy and art. All advertising
should harmonize with the environment of its placement.
(2) All advertising should be truthful and
comply with the spirit and letter of all applicable laws and regulations of the
various jurisdictions into which it is introduced. All copy and art should
avoid conveying derisive, exaggerated, distorted, deceptive or offensive
impressions.
(3) Advertising
promoting contests should insure the contest is being conducted with fairness
to all entrants and complies with all applicable laws and
regulations.
(4) Testimonials
should be authentic and should honestly reflect the response of the person
making them. The advertising sales contract provides for the indemnification of
NFTA and/or Metro against any action by any person quoted or referred to in any
advertisement placed in the NFTA and/or Metro system.
(5) Medical products or treatments should be
presented in a restrained and inoffensive manner to the general
public.
(6) Advertisers should take
special care to avoid illustrations or references that disregard normal safety
precautions.
(7) Advertising
offering premiums or gifts should avoid representations that would enlarge the
value of the item in the minds of the viewers.
(8) Use of NFTA and/or Metro graphics or
representations in advertising is subject to approval by the proper officials
of NFTA and/or Metro.
(9) No
implied or declared endorsement of any product or service by NFTA and/or Metro
is permitted.
(10) NFTA and/or
Metro reserves the right to reject or remove any advertising that it deems to
be not in good taste and decency and not in the public interest.
(11) Items or references which might be
objectionable to a substantial segment of the community should be avoided. For
example, advertising depicting or referring to an undesirable social behavior
or which might be offensive because of racial or religious references should be
avoided. Copy which might be contrary to the best interest of the transit
system and harmful to the users of the system will not be acceptable.
(h)
Criteria and standards
governing public service advertising.
Public service advertising proposed to be posted in any of
the equipment or facilities of NFTA and/or Metro will be such:
(1) The advertisement will be non-commercial,
non-partisan politically and not designed to influence legislation. Advertising
will be accepted only from not-for-profit organizations, corporations or
government agencies, philanthropic or cultural organizations whose activities
would be of interest or benefit to a majority of the area population.
(2) That the advertisement must meet the same
guidelines governing commercial advertising.
(3) The purpose of the project be such that
the advertising methodology can help achieve its objectives and
goals.
(4) That the action message
shall have region-wide appeal, significance and applicability.
(5) That the project be of sufficient
seriousness and public importance to warrant the use of public service
advertising space.
(6) That the
sponsoring organization be classified as a tax exempt organization by the
Internal Revenue Services or that specific activity, or event, being promoted
by the "for-profit" organization be in and of itself "non-profit" in
nature.
(7) That the name of the
sponsoring organization, either as it appears on the document granting
tax-exempt status, or by the name generally recognized by the public as
determined by the Contracting Officer, may be required to be identified on the
advertisement. If the name of the sponsoring organization is not a part of the
message itself, a "sponsored by" line may be required that, in the judgment of
the Contracting Officer, is of a type size and type style to be easily
identifiable and readable by the public.
(8) That public service space will not be
granted to any organization that, in the last twelvemonths, has purchased, or
is purchasing, commercial advertising space or time in any media for the
general subject campaign or promotion.
(9) That the advertisement involves monies
(fund-raising, admission fees, donations and other methods of compensation)
must clearly identify the nature of the appeal (e.g., if
donations are to be sought, whether the collection will be voluntary or if the
donation is a required admission fee must be explained).
(10) That in advertisements where a phone
number or an address is given a written explanation must be furnished to the
Contracting Officer as a condition of the approval, which document will state
exactly what is intended to happen to an individual when he or she either calls
the number listed, writes to, or stops by the address given.
(11) That the sponsoring organization shall
pay the applicable labor cost for installation and removal of the subject
message as charged by the Authority's advertising contractor and approved by
the Contracting Officer. That, prior to installation, the camera-ready artwork,
graphics, photographs be submitted to the Contracting Officer for
approval.
(12) The advertising is
subject to approval by the NFTA and/or Metro director of public relations and
advertising and the advertising contractor. Public service advertising will be
accepted on a space-available basis only. The advertisement will be posted only
for such period of time as the advertisement space remains available and is not
required for commercial advertisement. The public service advertiser will
indemnify and hold harmless NFTA and/or Metro and the advertising contractor
from any and all claims brought as a result of the display of the
advertisement.
Footnotes
* For editorial convenience this use of the masculine
personal pronoun is deemed gender neutral throughout this
document.