Current through Register Vol. 46, No. 39, September 25, 2024
WHEREAS, it is the established policy of the State of New
York to award certain contracts to the lowest responsible and reliable bidder
as will best promote the public interest;
WHEREAS, the statutes requiring competitive bidding of
State contracts and approval of subcontractors have been interpreted by the
courts to authorize contracting agencies to examine the responsibility of
bidders for contracts and proposed subcontractors on a case-by-case
basis;
WHEREAS, these reviews may include an examination of the
skill, judgment, integrity, financial resources, performance, conduct and labor
practices of bidders and proposed subcontractors on prior contracts, and
consideration of the background of such bidders and subcontractors for this
purpose, including their ownership, management, affiliation, history of past
performance, and compliance with relevant State and federal laws and
regulations;
WHEREAS, the Council of Contracting Agencies, which was
created within the Executive Department by Executive Order Number 125 to ensure
the systematic collection and timely exchange of information relevant to agency
determinations of responsibility and reliability of bidders, contractors and
proposed subcontractors, has recently developed and adopted guidelines for the
determination of contractor responsibility consistent with the duties of
contracting agencies and the court interpretations of State law and regulations
governing competitive bidding; and
WHEREAS, the public interest would be served by the uniform
application of these guidelines by all contracting agencies;
NOW, THEREFORE, I, MARIO M. CUOMO, Governor of the State of
New York, by virtue of the authority vested in me by the Constitution and Laws
of the State of New York, do hereby order as follows:
A. Guidelines for Responsibility
Determinations
In deliberating upon the responsibility of a bidder or a
subcontractor, all contracting agencies shall give due consideration to any
credible evidence or reliable information that the past or current record of a
bidder or proposed subcontractor includes any of the following:
1. Lack of adequate expertise, prior
experience with comparable projects, or financial resources to perform the work
of the contract or subcontract in a timely, competent, and acceptable manner.
Evidence of such a lack of ability to perform may include, but shall not be
limited to, evidence of suspension or revocation for cause of any professional
license of any director or officer, or any holder of five percent or more of
the bidder's or proposed subcontractor's stock or equity; failure to submit
satisfactory evidence of insurance, surety bonds or financial responsibility;
or a history of termination of prior contracts for cause.
2. Criminal conduct in connection with
government contract or the conduct of business activities involving:
a) the infliction, attempted infliction, or
threat of death, intentional personal injury, or intentional property damage,
in connection with involvement in a pattern of racketeering, labor
racketeering, extortion, obstruction of justice, or other comparable
crimes;
b) bribery, fraud,
bid-rigging, embezzlement, or other comparable crimes; or
c) serious moral turpitude, fundamental lack of
integrity, or knowing disregard for the law. Evidence of such conduct may
include a judgment of conviction, pending criminal indictment or formal grant
of immunity in connection with a criminal prosecution of the bidder or proposed
subcontractor, any director or officer, or any holder of five percent or more
of the shares or equity of the bidder or proposed subcontractor, or any
affiliate of the bidder or proposed subcontractor.
3. Grave disregard for the personal safety of
employees, State personnel, or members of the public. Due consideration shall
be given to whether available evidence concerning the training of employees,
equipment actually in use at the work site, and company practices for
identifying and addressing deficiencies and securing employee compliance,
demonstrates a genuine commitment to safety, or lack of same.
4. Willful noncompliance with the prevailing
wage and supplements payment requirements of the Labor Law, including
consideration of any pending violations of the bidder or proposed
subcontractor, or any affiliate of the bidder or proposed
subcontractor.
5. Any other
significant Labor Law violations, including but not limited to, child labor
violations, failure to pay wages, or unemployment insurance tax
delinquencies.
6. Any significant
violation of the Workers' Compensation Law, including but not limited to, the
failure of a bidder or proposed subcontractor to provide proof of workers'
compensation or disability benefits coverage.
7. Any criminal conduct involving violations
of the Environmental Conservation Law or other federal or State environmental
statutes, or repeated or significant civil violations of federal or State
environmental statutes or regulations.
8. The failure of a bidder or contractor to
demonstrate good faith efforts to comply with applicable federal or State
statutes and regulations requiring efforts to solicit and utilize
minority-owned and women-owned business enterprises and disadvantaged business
enterprises as potential subcontractors, in connection with a pending bid for
the performance of a federal-aid or State funded or assisted project subject to
such statutory and regulatory requirements.
9. The failure of a bidder, contractor, or
proposed subcontractor to comply with federal or State statutes or regulations
requiring the hiring, training and employment of persons presumed to be
disadvantaged in accordance with federal and State definitions to meet federal
and State equal employment opportunity requirements.
10. The submission of a bid which is
mathematically or materially unbalanced.
11. The submission of a bid which is so much
lower than the agency's confidential engineers' estimate of the cost of, or
anticipated bids for, the contract, that it appears unlikely that the bidder
will be able to perform the contract satisfactorily at the price bid.
12. Any other cause of so serious or
compelling a nature that it raises questions about the present responsibility
of a contractor or subcontractor, including but not limited to, submission to a
contracting agency of a false or misleading statement on a uniform
questionnaire, or in some other form, in connection with a bid for or award of
a contract or a request for approval of a subcontractor.
In addition to the factors specified above, contracting
agencies may also give due consideration to any other factors considered by the
contracting agencies to bear upon responsibility, including but not limited to,
any mitigating factors brought to the agency's attention by the bidder or
proposed subcontractor.
B. Definitions
1. The term "contracting agencies" shall mean
the Office of General Services, the Department of Transportation, the
Department of Environmental Conservation, the Office of Parks, Recreation and
Historic Preservation, the Facilities Development Corporation, the State
University Construction Fund, the Dormitory Authority, the Thruway Authority
and such other additional agencies as may be designated by the Council of
Contracting Agencies.
2. The term
"contract" shall mean any construction or services contract covered by Article
8 or Article 9 of the Labor Law, exceeding a dollar value not more than $10,000
to be determined by the Council of Contracting Agencies, that is required by
statute to be let by competitive bid to the lowest responsible
bidder.
3. The terms "bidder,"
"contractor" and "subcontractor" shall mean any person or business entity
submitting a competitive bid for, receiving the award of, or submitted for
approval as a subcontractor on, a contract by any one of the contracting
agencies.
4. A corporation,
partnership or proprietorship shall be considered to be an "affiliate" of the
bidder or proposed subcontractor if one owns, controls, or has the ability to
control the other, or if a third person, corporation, partnership or
proprietorship owns, controls, or has the ability to control both.
C. Report of the Council of
Contracting Agencies
The Council of Contracting Agencies shall monitor the
implementation of this Order and shall issue a report no later than March 1,
1994, setting forth its findings and conclusions and making such
recommendations as it shall deem necessary and proper.
D. Cooperation of Other State Agencies
All State agencies, boards, bureaus, departments,
divisions, commissions and offices shall provide any assistance deemed
necessary by the Council of Contracting Agencies to carry out the purposes of
this Order.
Signed: Mario M. CuomoDated: March 24, 1993
WHEREAS, it is the established policy of the State of New
York to award certain contracts to the lowest responsible and reliable bidder
as will best promote the public interest;
WHEREAS, the statutes requiring competitive bidding of
State contracts and approval of subcontractors have been interpreted by the
courts to authorize contracting agencies to examine the responsibility of
bidders for contracts and proposed subcontractors on a case-by-case
basis;
WHEREAS, these reviews may include an examination of the
skill, judgment, integrity, financial resources, performance, conduct and labor
practices of bidders and proposed subcontractors on prior contracts, and
consideration of the background of such bidders and subcontractors for this
purpose, including their ownership, management, affiliation, history of past
performance, and compliance with relevant State and Federal laws and
regulations;
WHEREAS, the Council of Contracting Agencies, which was
created within the Executive Department by Executive Order Number 125 to ensure
the systematic collection and timely exchange of information relevant to agency
determinations of responsibility and reliability of bidders, contractors and
proposed subcontractors, has recently developed and adopted guidelines for the
determination of contractor responsibility consistent with the duties of
contracting agencies and the court interpretations of State law and regulations
governing competitive bidding; and
WHEREAS, the public interest would be served by the uniform
application of these guidelines by all contracting agencies;
NOW, THEREFORE, I Mario M. Cuomo, Governor of the State of
New York, by virtue of the authority vested in me by the Constitution and Laws
of the State of New York, do hereby order as follows:
A. Guidelines for Responsibility
Determinations
In deliberating upon the responsibility of a bidder or a
subcontractor, all contracting agencies shall give due consideration to any
credible evidence or reliable information that the past or current record of a
bidder or proposed subcontractor includes any of the following:
1. Lack of adequate expertise, prior
experience with comparable projects, or financial resources to perform the work
of the contract or subcontract in a timely, competent, and acceptable manner.
Evidence of such a lack of ability to perform may include, but shall not be
limited to, evidence of suspension or revocation for cause of any professional
license of any director or officer, or any holder of five percent or more of
the bidder's or proposed subcontractor's stock or equity; failure to submit
satisfactory evidence of insurance, surety bonds or financial responsibility;
or a history of termination of prior contracts for cause.
2. Criminal conduct in connection with
government contracts or the conduct of business activities involving:
a) the infliction, attempted infliction, or
threat of death, intentional personal injury, or intentional property damage,
in connection with involvement in a pattern of racketeering, labor
racketeering, extortion, obstruction of justice, or other comparable
crimes;
b) bribery, fraud,
bid-rigging, embezzlement, or other comparable crimes; or
c) serious moral turpitude, fundamental lack of
integrity, or knowing disregard for the law. Evidence of such conduct may
include a judgment of conviction, pending criminal indictment or formal grant
of immunity in connection with a criminal prosecution of the bidder or proposed
subcontractor, any director or officer, or any holder of five percent or more
of the shares or equity of the bidder or proposed subcontractor, or any
affiliate of the bidder or proposed subcontractor.
3. Grave disregard for the personal safety of
employees, State personnel, or members of the public. Due consideration shall
be given to whether available evidence concerning the training of employees,
equipment actually in use at the work site, and company practices for
identifying and addressing deficiencies and securing employee compliance,
demonstrates a genuine commitment to safety, or lack of same.
4. Willful noncompliance with the prevailing
wage and supplements payment requirements of the Labor Law, including
consideration of any pending violations of the bidder or proposed
subcontractor, or any affiliate of the bidder or proposed
subcontractor.
5. Any other
significant Labor Law violations, including but not limited to, child labor
violations, failure to pay wages, or unemployment insurance tax
delinquencies.
6. Any significant
violation of the Workers' Compensation Law, including but not limited to, the
failure of a bidder or proposed subcontractor to provide proof of workers'
compensation or disability benefits coverage.
7. Any criminal conduct involving violations
of the Environmental Conservation Law or other Federal or State environmental
statutes, or recurring or significant civil violations of Federal or State
environmental statutes or regulations.
8. The failure of a bidder or contractor to
demonstrate good faith efforts to comply with applicable Federal or State
statutes and regulations requiring efforts to solicit and utilize
minority-owned and women-owned business enterprises and disadvantaged business
enterprises as potential subcontractors, in connection with a pending bid for
the performance of a Federal-aid or State funded or assisted project subject to
such statutory and regulatory requirements.
9. The failure of a bidder, contractor or
proposed subcontractor to demonstrate good faith efforts to provide employee
apprenticeship opportunities through registered apprenticeship training
programs.
10. The failure of a
bidder, contractor, or proposed subcontractor to comply with Federal or State
statutes or regulations requiring the hiring, training and employment of
persons presumed to be disadvantaged in accordance with Federal and State
definitions to meet Federal and State Equal Employment Opportunity
requirements.
11. The submission of
a bid which is mathematically or materially unbalanced.
12. The submission of a bid which is so much
lower than the agency's confidential engineers' estimate of the cost of, or
anticipated bids for, the contract, that it appears unlikely that the bidder
will be able to perform the contract satisfactorily at the price bid.
13. Any other cause of so serious or
compelling a nature that it raises questions about the present responsibility
of a contractor or subcontractor, including but not limited to, submission to a
contracting agency of a false or misleading statement on a uniform
questionnaire, or in some other form, in connection with a bid for or award of
a contract or a request for approval of a subcontractor.
In addition to the factors specified above, contracting
agencies may also give due consideration to any other factors considered by the
contracting agencies to bear upon responsibility, including but not limited to,
any mitigating factors brought to the agency's attention by the bidder or
proposed subcontractor.
B. Definitions
1. The term contracting agencies shall mean
the Office of General Services, the Department of Transportation, the
Department of Environmental Conservation, the Office of Parks, Recreation and
Historic Preservation, the Facilities Development Corporation, the State
University Construction Fund, the Dormitory Authority, the Thruway Authority
and such other additional agencies as may be designated by the Council of
Contracting Agencies.
2. The term
contract shall mean any construction or service contract covered by Article 8
or Article 9 of the Labor Law, exceeding a dollar value not more than $10,000
to be determined by the Council of Contracting Agencies, that is required by
statute to be let by competitive bid to the lowest responsible
bidder.
3. The terms bidder,
contractor and subcontractor shall mean any person or business entity
submitting a competitive bid for, receiving the award of, or submitted for
approval as a subcontractor on, a contract by any one of the contracting
agencies.
4. A corporation,
partnership or proprietorship shall be considered to be an affiliate of the
bidder or proposed subcontractor if one owns, controls, or has the ability to
control the other, or if a third person, corporation, partnership or
proprietorship owns, controls, or has the ability to control both.
C. Report of the Council of
Contracting Agencies The Council of Contracting Agencies shall monitor the
implementation of this Order and shall issue a report no later than March 1,
1994, setting forth its findings and conclusions and making such
recommendations as it shall deem necessary and proper.
D. Cooperation of Other State Agencies All
State agencies, boards, bureaus, departments, divisions, commissions and
offices shall provide any assistance deemed necessary by the Council of
Contracting Agencies to carry out the purposes of this Order.
Signed: Mario M. CuomoDated: June 23, 1993
[FN*] [Revoked by Executive Order No. 2 (Andrew M. Cuomo),
infra.]
