§ 1265-A — Contracts

New York § 1265-A

• Jurisdiction: New York
• Law PBA: Public Authorities
• Title 11: Metropolitan Commuter Transportation Authority
• Art. 5: Public Utility Authorities

Text

§ 1265-a. Contracts. 1. The provisions of this section shall only\napply to procurements by the authority commenced during the period from\nApril first, nineteen hundred eighty-seven until December thirty-first,\nnineteen hundred ninety-one, and during the period from December\nsixteenth, nineteen hundred ninety-three until June thirtieth, two\nthousand twenty-eight; provided, however, that the provisions of this\nsection shall not apply to (i) the award of any contract of the\nauthority if the bid documents for such contract so provide and such bid\ndocuments are issued within sixty days of the effective date of this\nsection or within sixty days of December sixteenth, nineteen hundred\nninety-three, or (ii) for a period of one hundred eighty days after the\neffective date of this section or for a period of one hundred eighty\ndays after December sixteenth, nineteen hundred ninety-three, the award\nof any contract for which an invitation to bid, solicitation, request\nfor proposal, or any similar document has been issued by the authority\nprior to the effective date of this section or during the period from\nJanuary first, nineteen hundred ninety-two until December sixteenth,\nnineteen hundred ninety-three.\n 2. * (a) Except as otherwise provided in this section, all purchase\ncontracts for supplies, materials or equipment involving an estimated\nexpenditure in excess of one million dollars and all contracts for\npublic work involving an estimated expenditure in excess of one million\ndollars shall be awarded by the authority to the lowest responsible\nbidder after obtaining sealed bids in the manner hereinafter set forth.\nFor purposes hereof, contracts for public work shall exclude contracts\nfor personal, engineering and architectural, or professional services.\nThe authority may reject all bids and obtain new bids in the manner\nprovided by this section when it is deemed in the public interest to do\nso or, in cases where two or more responsible bidders submit identical\nbids which are the lowest bids, award the contract to any of such\nbidders or obtain new bids from such bidders. Nothing in this paragraph\nshall obligate the authority to seek new bids after the rejection of\nbids or after cancellation of an invitation to bid. Nothing in this\nsection shall prohibit the evaluation of bids on the basis of costs or\nsavings including life cycle costs of the item to be purchased,\ndiscounts, and inspection services so long as the invitation to bid\nreasonably sets forth the criteria to be used in evaluating such costs\nor savings. Life cycle costs may include but shall not be limited to\ncosts or savings associated with installation, energy use, maintenance,\noperation and salvage or disposal.\n * NB Effective until June 30, 2028\n * (a) Except as otherwise provided in this section, all purchase\ncontracts for supplies, materials or equipment involving an estimated\nexpenditure in excess of fifteen thousand dollars and all contracts for\npublic work involving an estimated expenditure in excess of twenty-five\nthousand dollars shall be awarded by the authority to the lowest\nresponsible bidder after obtaining sealed bids in the manner hereinafter\nset forth. For purposes hereof, contracts for public work shall exclude\ncontracts for personal, engineering and architectural, or professional\nservices. The authority may reject all bids and obtain new bids in the\nmanner provided by this section when it is deemed in the public interest\nto do so or, in cases where two or more responsible bidders submit\nidentical bids which are the lowest bids, award the contract to any of\nsuch bidders or obtain new bids from such bidders. Nothing herein shall\nobligate the authority to seek new bids after the rejection of bids or\nafter cancellation of an invitation to bid. Nothing in this section\nshall prohibit the evaluation of bids on the basis of costs or savings\nincluding life cycle costs of the item to be purchased, discounts, and\ninspection services so long as the invitation to bid reasonably sets\nforth the criteria to be used in evaluating such costs or savings. Life\ncycle costs may include but shall not be limited to costs or savings\nassociated with installation, energy use, maintenance, operation and\nsalvage or disposal.\n * NB Effective June 30, 2028\n * (b) Section twenty-eight hundred seventy-nine of this chapter shall\napply to the authority's acquisition of goods or services of any kind,\nin the actual or estimated amount of fifteen thousand dollars or more,\nprovided (i) that a contract for services in the actual or estimated\namount of one million dollars or less shall not require approval by the\nboard of the authority regardless of the length of the period over which\nthe services are rendered, and provided further that a contract for\nservices in the actual or estimated amount in excess of one million\ndollars shall require approval by the board of the authority regardless\nof the length of the period over which the services are rendered unless\nsuch a contract is awarded to the lowest responsible bidder after\nobtaining sealed bids, and (ii) the board of the authority may by\nresolution adopt guidelines that authorize the award of contracts to\nsmall business concerns, to service disabled veteran owned businesses\ncertified pursuant to article seventeen-B of the executive law, or\nminority or women-owned business enterprises certified pursuant to\narticle fifteen-A of the executive law, or purchases of goods or\ntechnology that are recycled or remanufactured, in an amount not to\nexceed one million five hundred thousand dollars without a formal\ncompetitive process and without further board approval. The board of the\nauthority shall adopt guidelines which shall be made publicly available\nfor the awarding of such contract without a formal competitive process.\n * NB Effective until June 30, 2028\n * (b) Section twenty-eight hundred seventy-nine of this chapter shall\napply to the authority's acquisition of goods or services of any kind,\nin the actual or estimated amount of fifteen thousand dollars or more,\nprovided that a contract for personal services in the actual or\nestimated amount of less than twenty thousand dollars shall not require\napproval by the board of the authority regardless of the length of the\nperiod over which the services are rendered, and provided further that a\ncontract for personal services in the actual or estimated amount of\ntwenty thousand dollars or more shall require approval by the board of\nthe authority regardless of the length of the period over which the\nservices are rendered.\n * NB Effective June 30, 2028\n (c)(1) Notwithstanding the provisions of paragraph (a) of this\nsubdivision, the authority shall establish guidelines governing the\nqualifications of bidders entering into contracts for its project to\nbring the Long Island Rail Road into Grand Central Terminal ("East Side\nAccess Project"). The bidding may be restricted to those who have\nqualified prior to the receipt of bids according to standards fixed by\nthe authority; provided, however, that the award of contracts shall, to\nthe extent not inconsistent with this paragraph, be in accordance with\nparagraph (a) of this subdivision.\n (2) In determining whether a prospective bidder qualifies for the\ninclusion on a list of prequalified bidders for the East Side Access\nProject, the authority shall consider: (i) the experience and past\nperformance of the prospective bidder; (ii) the prospective bidder's\nability to undertake work, including but not limited to whether it\nparticipates in state approved apprenticeship programs and whether it\nutilizes employees who are represented by labor organizations; (iii) the\nfinancial capability and responsibility of the prospective bidder; and\n(iv) the records of the prospective bidder in complying with existing\nlabor standards. The authority may also consider such other factors as\nit deems appropriate.\n 3. (a) Advertisement for bids, when required by this section, shall be\npublished at least once in a newspaper of general circulation in the\narea served by the authority and in the procurement opportunities\nnewsletter published pursuant to article four-C of the economic\ndevelopment law provided that, notwithstanding the provisions of article\nfour-C of the economic development law, an advertisement shall only be\nrequired for a purchase contract for supplies, materials or equipment\nwhen required by this section. Publication in a newspaper of general\ncirculation in the area served or in the procurement opportunities\nnewsletter shall not be required if bids for contracts for supplies,\nmaterials or equipment are of a type regularly purchased by the\nauthority and are to be solicited from a list of potential suppliers, if\nsuch list is or has been developed consistent with the provisions of\nsubdivision six of this section. Any such advertisement shall contain a\nstatement of: (i) the time and place where bids received pursuant to any\nnotice requesting sealed bids will be publicly opened and read; (ii) the\nname of the contracting agency; (iii) the contract identification\nnumber; (iv) a brief description of the public work, supplies,\nmaterials, or equipment sought, the location where work is to be\nperformed, goods are to be delivered or services provided and the\ncontract term; (v) the address where bids or proposals are to be\nsubmitted; (vi) the date when bids or proposals are due; (vii) a\ndescription of any eligibility or qualification requirement or\npreference; (viii) a statement as to whether the contract requirements\nmay be fulfilled by a subcontracting, joint venture, or co-production\narrangement; (ix) any other information deemed useful to potential\ncontractors; and (x) the name, address, and telephone number of the\nperson to be contacted for additional information. At least fifteen\nbusiness days shall elapse between the first publication of such\nadvertisement or the solicitation of bids, as the case may be, and the\ndate of opening and reading of bids.\n (b) The authority may designate any officer or employee to open the\nbids at the time and place bids are to be opened and may designate an\nofficer to award the contract to the lowest responsible bidder. Such\ndesignee shall make a record of all bids in such form and detail as the\nauthority shall prescribe. All bids received shall be publicly opened\nand read at the time, place and in the manner specified in the\nadvertisement or at the time of solicitation, or to which the opening\nand reading or posting have been adjourned by the authority, provided\nthat any sealed bid may be received and secured through an electronic\nplatform as permitted by the authority, and that any sealed bid received\nelectronically is made public at the same time as any competing paper\nbid. The authority shall, at minimum, provide the same opportunity and\ntime for submitting sealed bids physically as for sealed bids submitted\nelectronically, and shall provide the opportunity for bidders to submit\nsealed bids physically any time that it provides the opportunity to\nsubmit sealed electronic bids. In addition, the authority shall\nestablish a process for accommodating force majeure events that prevent\nthe submission of a sealed electronic bid, including but not limited to\ninternet and power outage events, and for automatically confirming\nreceipt of any sealed electronic bid received. All bidders shall be\nnotified of the time and place of any such adjournment.\n 4. Notwithstanding the foregoing, the authority may, by resolution\napproved by a two-thirds vote of its members then in office, or by a\nmajority vote of its members with respect to contracts proposed to be\nlet pursuant to paragraph (a) of this subdivision declare that\ncompetitive bidding is impractical or inappropriate because of the\nexistence of any of the circumstances hereinafter set forth and\nthereafter the authority may proceed to award contracts without\ncomplying with the requirements of subdivision two or three of this\nsection. In each case where the authority declares competitive bidding\nimpractical or inappropriate, it shall state the reason therefor in\nwriting and summarize any negotiations that have been conducted. Except\nfor contracts awarded pursuant to paragraphs (a), (b), (c) and (e) of\nthis subdivision, the authority shall not award any contract pursuant to\nthis subdivision earlier than thirty days from the date on which the\nauthority declares that competitive bidding is impractical or\ninappropriate. Competitive bidding may only be declared impractical or\ninappropriate where:\n (a) the existence of an emergency involving danger to life, safety or\nproperty requires immediate action and cannot await competitive bidding\nor the item to be purchased is essential to efficient operation or the\nadequate provision of service and as a consequence of unforeseen\ncircumstance such purchase cannot await competitive bidding;\n (b) the item to be purchased is available only from a single\nresponsible source, provided that if bids have not been solicited for\nsuch item pursuant to subdivision two of this section within the\npreceding twelve months public notice shall first be given pursuant to\nsubdivision three of this section;\n (c) the authority receives no responsive bids or only a single\nresponsive bid in response to an invitation for competitive bids;\n (d) the authority wishes to experiment with or test a product or\ntechnology or new source for such product or technology or evaluate the\nservice or reliability of such product or technology;\n (e) the item is available through an existing contract between a\nvendor and (i) another public authority provided that such other\nauthority utilized a process of competitive bidding or a process of\ncompetitive requests for proposals to award such contracts, (ii) Nassau\ncounty, (iii) the state of New York, (iv) the city of New York or (v)\nthe United States general services administration provided that such\nadministration utilized a process of competitive bidding or a process of\ncompetitive requests for proposals to award such contract, provided that\nin any case when under this paragraph the authority determines that\nobtaining such item thereby would be in the public interest and sets\nforth the reasons for such determination. Such rationale shall include,\nbut need not be limited to, a determination of need, a consideration of\nthe procurement method by which the contract was awarded, an analysis of\nalternative procurement sources including an explanation why a\ncompetitive procurement or the use of a centralized contract let by the\ncommissioner of the office of general services is not in the best\ninterest of the authority, and the reasonableness of cost. The authority\nshall accept sole responsibility for any payment due the vendor as a\nresult of the authority's order; or\n (f) the authority determines that it is in the public interest to\naward contracts pursuant to a process for competitive requests for\nproposals as hereinafter set forth. For purposes of this section, a\nprocess for competitive requests for proposals shall mean a method of\nsoliciting proposals and awarding a contract on the basis of a formal\nevaluation of the characteristics, such as quality, cost, delivery\nschedule and financing of such proposals against stated selection\ncriteria. Public notice of the requests for proposals shall be given in\nthe same manner as provided in subdivision three of this section and\nshall include the selection criteria. In the event the authority makes a\nmaterial change in the selection criteria from those previously stated\nin the notice, it will inform all proposers of such change and permit\nproposers to modify their proposals.\n * (i) Except for a contract with a value of one hundred million\ndollars or less that is awarded pursuant to this paragraph to the\nproposer whose proposal is the lowest cost, the authority may award a\ncontract pursuant to this paragraph only after a resolution approved by\na two-thirds vote of its members then in office at a public meeting of\nthe authority with such resolution (A) disclosing the other proposers\nand the substance of their proposals, (B) summarizing the negotiation\nprocess including the opportunities, if any, available to proposers to\npresent and modify their proposals, and (C) setting forth the criteria\nupon which the selection was made provided however that for purposes of\nthis subparagraph the board may, at its discretion, require such a\nresolution be approved for contracts with a value of one hundred million\ndollars or less.\n * NB Effective until June 30, 2028\n * (i) The authority may award a contract pursuant to this paragraph\nonly after a resolution approved by a two-thirds vote of its members\nthen in office at a public meeting of the authority with such resolution\n(A) disclosing the other proposers and the substance of their proposals,\n(B) summarizing the negotiation process including the opportunities, if\nany, available to proposers to present and modify their proposals, and\n(C) setting forth the criteria upon which the selection was made.\n * NB Effective June 30, 2028\n (ii) Nothing in this paragraph shall require or preclude (A)\nnegotiations with any proposers following the receipt of responses to\nthe request for proposals, or (B) the rejection of any or all proposals\nat any time. Upon the rejection of all proposals, the authority may\nsolicit new proposals or bids in any manner prescribed in this section.\n (g) the authority issues a competitive request for proposals pursuant\nto the procedures of paragraph (f) of this subdivision for the purchase\nor rehabilitation of rail cars and omnibuses. Any such request may\ninclude among the stated selection criteria the performance of all or a\nportion of the contract at sites within the state of New York or the use\nof goods produced or services provided within the state of New York,\nprovided however that in no event shall the authority award a contract\nto a manufacturer whose final offer, as expressed in unit cost is more\nthan ten percent higher than the unit cost of any qualified competing\nfinal offer, if the sole basis for such award is that the higher priced\noffer includes more favorable provision for the performance of the\ncontract within the state of New York or the use of goods produced or\nservices provided within the state of New York, and further provided\nthat the authority's discretion to award a contract to any manufacturer\nshall not be so limited if a basis for such award, as determined by the\nauthority, is superior financing, delivery schedule, life cycle,\nreliability, or any other factor the authority deems relevant to its\noperations.\n * (i) Except for a contract with a value of one hundred million\ndollars or less that is awarded pursuant to this paragraph to the\nproposer whose proposal is the lowest cost, the authority may award a\ncontract pursuant to this paragraph only after a resolution approved by\na vote of not less than a two-thirds vote of its members then in office\nat a public meeting of the authority with such resolution (A) disclosing\nthe other proposers and the substance of their proposals, (B)\nsummarizing the negotiation process including the opportunities, if any,\navailable to proposers to present and modify their proposals, and (C)\nsetting forth the criteria upon which the selection was made provided\nhowever that for purposes of this subparagraph the board may, at its\ndiscretion, require such a resolution be approved for contracts with a\nvalue of one hundred million dollars or less.\n * NB Effective until June 30, 2028\n * (i) The authority may award a contract pursuant to this paragraph\nonly after a resolution approved by a vote of not less than a two-thirds\nvote of its members then in office at a public meeting of the authority\nwith such resolution (A) disclosing the other proposers and the\nsubstance of their proposals, (B) summarizing the negotiation process\nincluding the opportunities, if any, available to proposers to present\nand modify their proposals, and (C) setting forth the criteria upon\nwhich the selection was made.\n * NB Effective June 30, 2028\n (ii) Nothing in this paragraph shall require or preclude (A)\nnegotiations with any proposers following the receipt of responses to\nthe request for proposals, or (B) the rejection of any or all proposals\nat any time. Upon the rejection of all proposals, the authority may\nsolicit new proposals or bids in any manner prescribed in this section.\n 5. Upon the adoption of a resolution by the authority stating, for\nreasons of efficiency, economy, compatibility or maintenance\nreliability, that there is a need for standardization, the authority may\nestablish procedures whereby particular supplies, materials or equipment\nare identified on a qualified products list. Such procedures shall\nprovide for products or vendors to be added to or deleted from such list\nand shall include provisions for public advertisement of the manner in\nwhich such lists are compiled. The authority shall review such list no\nless than once a year for the purpose of making such modifications.\nContracts for particular supplies, materials or equipment identified on\na qualified products list may be awarded by the authority to the lowest\nresponsible bidder after obtaining sealed bids in accordance with this\nsection or without competitive sealed bids in instances when the item is\navailable from only a single source, except that the authority may\ndispense with advertising provided that it mails copies of the\ninvitation to bid to all vendors of the particular item on the qualified\nproducts list.\n 6. The authority shall compile a list of potential sources of\nsupplies, materials or equipment regularly purchased. The authority\nshall, by resolution, set forth the procedures it has established to\nidentify new sources and to notify such new sources of the opportunity\nto bid for contracts for the purchase of supplies, materials or\nequipment. Such procedures shall include, but not be limited to: (a)\nadvertising in trade journals; (b) cooperation with federal, state and\nlocal agencies within its area of operations; (c) publication in the\nstate register quarterly; and (d) procedures established pursuant to\nsubdivision thirteen of section twelve hundred sixty-six-c of this\narticle.\n 7. The provisions of this section shall not supersede any other\nprovisions of law relative to purchases of products or devices\nmanufactured or provided by the blind or other severely handicapped\npersons, to the invitation and acceptance of bids from small or minority\nbusiness enterprises or to the purchases of supplies, materials or\nequipment through the office of general services. Except as may\notherwise be provided by law or as more restrictively defined in the\nofficial policy or bid specifications of the authority, the term "small\nbusiness" means a small business or similar term, under federal\nregulations applicable to projects of the authority which are federally\nassisted.\n * 8. Notwithstanding any other provisions in this section, the\nauthority shall be allowed to use an electronic bidding system for the\npurchase of goods, materials, and commodities that may inform bidders\nwhether their bid is the current low bid, and allow bidders to submit\nnew bids before the date and time assigned for the opening of bids. Such\nprocedure shall not constitute disclosure of bids in violation of\nsection twenty-eight hundred seventy-eight of this chapter.\n * NB Effective until June 30, 2028\n * 8. The provisions of this section shall not apply to any procurement\nmade by any other public entity not otherwise required by law to award\ncontracts for such purchases to the lowest responsible bidder if such\npurchases are made at the sole cost and expense of such entity.\n * NB Effective June 30, 2028\n * 9. The provisions of this section shall not apply to any procurement\nmade by any other public entity not otherwise required by law to award\ncontracts for such purchases to the lowest responsible bidder if such\npurchases are made at the sole cost and expense of such entity.\n * NB Repealed June 30, 2028\n 10. (a) Whenever the comptroller pursuant to section twenty-eight\nhundred seventy-nine-a of this chapter intends to require supervision in\nthe form of prior review and approval of a contract or contract\namendment to be awarded by the authority pursuant to this section, then\nsuch contract or contract amendment shall be submitted to the\ncomptroller by the authority for approval and shall not be a valid\nenforceable contract unless it shall first have been approved by the\ncomptroller but only if the comptroller has notified the authority of\nsuch determination within thirty days of having received written notice\nof such contract or contract amendment either in the authority's annual\nreport or any revised report;\n (b) If the comptroller has timely notified the authority as provided\nin paragraph (a) of this subdivision that any contract or contract\namendment shall be subject to comptroller prior review and approval, and\nsuch contract or contract amendment has been submitted to the\ncomptroller, it shall become valid and enforceable without such approval\nif the comptroller has not approved or disapproved it within thirty days\nof submission to the comptroller.\n