§ 2879 — Procurement contracts

§ 2879. Procurement contracts. 1. Every public authority and public\nbenefit corporation, a majority of the members of which consist of\npersons either appointed by the governor or who serve as members by\nvirtue of holding a civil office of the state, or a combination thereof,\n(such entities to be hereinafter in this section referred to as\n"corporation") shall adopt by resolution comprehensive guidelines which\ndetail the corporation's operative policy and instructions regarding the\nuse, awarding, monitoring and reporting of procurement contracts.\nGuidelines approved by the corporation shall be annually reviewed and\napproved by the corporation.\n 2. For purposes of this section, procurement contracts shall mean any\nwritten agreement for the acquisition of goods or services of any kind,\nin the actual or estimated amount of five thousand dollars or more.\n 3. The guidelines approved by the corporation shall include, but not\nbe limited to the following:\n (a) A description of the types of goods purchased, and for procurement\ncontracts for services, a description of those areas of responsibility\nand oversight requiring the use of personal services and the reasons for\nthe use of personal services in such areas.\n (b) Requirements regarding the selection of contractors, which shall\ninclude provisions:\n (i) for the selection of such contractors on a competitive basis, and\nprovisions relating to the circumstances under which the board may by\nresolution waive competition, including, notwithstanding any other\nprovision of law requiring competition, the purchase of goods or\nservices from: (A) small business concerns, or sellers of goods or\ntechnology that are recycled or remanufactured, or, for corporations not\ndefined as a state authority in section three hundred ten of the\nexecutive law, those certified as minority or women-owned business\nenterprises in an amount not to exceed five hundred thousand dollars\nwithout a formal competitive process, and (B) for corporations defined\nas a state authority in section three hundred ten of the executive law\nthose certified as minority or women-owned business enterprises and\nservice-disabled veteran-owned business enterprises for any state\nauthority as defined in section forty of the veterans' services law, in\nan amount not to exceed one million five hundred thousand dollars\nwithout a formal competitive process;\n (ii) describing when the award of procurement contracts shall require\napproval of the board by resolution, provided that any contract\ninvolving services to be rendered over a period in excess of one year\nshall require the approval of the board by resolution and an annual\nreview of the contract by the board;\n (iii) setting forth responsibilities of contractors;\n (iv) as used in this subparagraph, the term "professional firm" shall\nbe defined as any individual or sole proprietorship, partnership,\ncorporation, association, or other legal entity permitted by law to\npractice the professions of architecture, engineering or surveying.\n The corporation shall not refuse to negotiate with a professional firm\nsolely because the ratio of the "allowable indirect costs" to direct\nlabor costs of the professional firm or the hourly labor rate in any\nlabor category of the professional firm exceeds a limitation generally\nset by the corporation in the determination of the reasonableness of the\nestimated cost of services to be rendered by the professional firm, but\nrather the corporation should also consider the reasonableness of cost\nbased on the total estimated cost of the service of the professional\nfirm which should include, among other things, all the direct labor\ncosts of the professional firm for such services plus all "allowable\nindirect costs," other direct costs, and negotiated profit of the\nprofessional firm. "Allowable indirect costs" of a professional firm are\ndefined as those costs generally associated with overhead which cannot\nbe specifically identified with a single project or contract and are\nconsidered reasonable and allowable under specific state contract or\nallowability limits.\n (c) An identification of those areas or types of contracts for which\nminority or women-owned business enterprises may best bid so as to\npromote and assist participation by such enterprises and facilitate a\nfair share of the awarding of contracts to such enterprises. For the\npurposes of this section, a minority business enterprise means any\nbusiness enterprise, including a sole proprietorship, partnership or\ncorporation that is:\n (i) at least fifty-one percent owned by one or more minority group\nmembers or in the case of a publicly-owned business at least fifty-one\npercent of the common stock or other voting interests of which is owned\nby one or more minority group members;\n (ii) an enterprise in which the minority ownership is real,\nsubstantial and continuing;\n (iii) an enterprise in which the minority ownership has and exercises\nthe authority to control independently the day-to-day business decisions\nof the enterprise; and\n (iv) an enterprise authorized to do business in New York state,\nindependently owned and operated, and not dominant in its field.\n (d) For the purposes of this section, a minority group member means a\nUnited States citizen or permanent resident noncitizen who is and can\ndemonstrate membership in one of the following groups:\n (i) Black persons having origins in any of the Black African racial\ngroups not of Hispanic origin;\n (ii) Hispanic persons of Mexican, Puerto Rican, Dominican, Cuban,\nCentral or South American of either Indian or Hispanic origin,\nregardless of race;\n (iii) Asian and Pacific Islander persons having origins in any of the\nFar East, Southeast Asia, the Indian sub-continent or the Pacific\nIslands; or\n (iv) Native American persons having origins in any of the original\npeoples of North America.\n (e) For the purposes of this section, a women-owned business\nenterprise means a business enterprise, including a sole proprietorship,\npartnership or corporation which is:\n (i) at least fifty-one percent owned by one or more United States\ncitizens or permanent resident noncitizens who are women or in the case\nof a publicly-owned business at least fifty-one percent of the common\nstock or other voting interests of which is owned by United States\ncitizens or permanent resident noncitizens who are women;\n (ii) an enterprise in which the ownership interest of women is real,\nsubstantial and continuing;\n (iii) an enterprise in which the women ownership has and exercises the\nauthority to control independently the day-to-day business decisions of\nthe enterprise; and\n (iv) an enterprise authorized to do business in New York state,\nindependently owned and operated, and not dominant in its field.\n (f) Requirements for the designation of one or more senior staff of\nthe corporation to oversee the corporation's programs established to\npromote and assist: (i) participation by certified minority or\nwomen-owned business enterprises in the corporation's procurement\nopportunities and facilitation of the award of procurement contracts to\nsuch enterprises; (ii) the utilization of certified minority and\nwomen-owned business enterprises as subcontractors and suppliers by\nentities having procurement contracts with the corporation; and (iii)\nthe utilization of partnerships, joint ventures or other similar\narrangements between certified minority and women-owned business\nenterprises and other entities having procurement contracts with the\ncorporation. Such staff shall be familiar with the procurement of the\ntypes of construction, financial, legal or professional services\nutilized by the corporation, report directly to the corporation's\nexecutive director, president or chief executive officer and either\ndirectly or through their designees participate in the procurement\nprocess.\n (g) Requirements for providing notice, in addition to any other notice\nof procurement opportunities required by law, to professional and other\norganizations that serve minority and women-owned business enterprises\nproviding the types of services procured by the corporation.\n (h) Procedures for maintaining lists of qualified certified minority\nand women-owned business enterprises, including professional firms that\nhave expressed an interest in doing business with the corporation and\nensuring that such lists are updated regularly. The corporation shall\nalso consult the lists of certified minority and women-owned business\nenterprises maintained by the department of economic development\npursuant to article fifteen-A of the executive law.\n (i) The establishment of appropriate goals for participation by\nminority or women-owned business enterprises in procurement contracts\nawarded by the corporation and for the utilization of minority and\nwomen-owned enterprises as subcontractors and suppliers by entities\nhaving procurement contracts with the corporation. Statewide numerical\nparticipation target goals shall be established by each authority based\non the findings of the two thousand ten disparity study.\n (j) Requirements to conduct procurements in a manner that will enable\nthe corporation to achieve the maximum feasible portion of the goals\nestablished pursuant to paragraph (i) of this subdivision and that\neliminates barriers to participation by minority and women-owned\nbusiness enterprises in the corporation's procurements. Such procurement\nrequirements shall include the following:\n (A) Measures and procedures to ensure that certified businesses shall\nbe given the opportunity for maximum feasible participation in the\nperformance of state contracts and to assist in the corporation's\nidentification of those state contracts for which certified businesses\nmay best bid to actively and affirmatively promote and assist their\nparticipation in the performance of state contracts so as to facilitate\nthe corporation's achievement of the maximum feasible portion of the\ngoals for state contracts to such businesses;\n (B) Provisions designating the division of minority and women-owned\nbusiness development to certify and decertify minority and women-owned\nbusiness enterprises for all corporations through a single process that\nmeets applicable state and federal requirements;\n (C) A requirement that each contract solicitation document\naccompanying each solicitation set forth the expected degree of minority\nand women-owned business enterprise participation based, in part, on:\n I. the potential subcontract opportunities available in the prime\nprocurement contract; and\n II. the availability of certified minority and women-owned business\nenterprises to respond competitively to the potential subcontract\nopportunities;\n (D) A requirement that each corporation provide a current list of\ncertified minority business enterprises to each prospective contractor;\n (E) Provisions relating to joint ventures, under which a bidder may\ncount toward meeting its minority business enterprise participation\ngoal, the minority and women-owned business enterprise portion of the\njoint venture;\n (F) Provisions under which the corporation may waive obligations of\nthe contractor relating to minority and women-owned business enterprise\nparticipation after a showing of good faith efforts to comply with the\nrequirements of this act pursuant to the waiver provisions contained in\nsubdivision six of section three hundred thirteen of the executive law;\n (G) A requirement that the corporation verify that minority and\nwomen-owned business enterprises listed in a successful bid are actually\nparticipating to the extent listed in the project for which the bid was\nsubmitted;\n (H) In the implementation of this section, the contracting corporation\nshall:\n I. consider, where practicable, the severability of construction\nprojects and other bundled contracts;\n II. implement a program that will enable the corporation to evaluate\neach contract to determine the appropriateness of the goal pursuant to\nparagraph (i) of this subdivision;\n III. consider compliance with the requirements of any federal law\nconcerning opportunities for minority and women-owned business\nenterprises which effectuates the purpose of this section; and\n IV. consult the most recent disparity study pursuant to article\nfifteen-A of the executive law.\n (k) A listing of the types of provisions to be contained in\nprocurement contracts, including provisions concerning the nature and\nmonitoring of the work to be performed, the use of corporate supplies\nand facilities, the use of corporate personnel and any other provisions.\n (l) Provisions regarding procurement contracts which involve former\nofficers or employees of the corporation.\n (m) Procedures regarding procurement contracts which are exempt from\nthe publication requirements of article four-C of the economic\ndevelopment law.\n (n) Policies to promote the participation by New York state business\nenterprises and New York state residents in procurement contracts,\nincluding, but not limited to:\n (i) providing for the corporation to collect and to consult the\nspecifications of New York state business enterprises in developing\nspecifications for any procurement contract for the purchase of goods\nwhere possible, practicable, feasible and consistent with open bidding,\nexcept for procurement contracts for which the corporation would be\nexpending funds received from another state. The corporation shall,\nwhere feasible, make use of the stock item specification forms prepared\nby the commissioner of general services, and where necessary, consult\nwith the commissioner of the office of general services, in developing\nsuch specifications and make such determinations; and\n (ii) with the cooperation of the department of economic development\nand through cooperative efforts with contractors, providing for the\nnotification of New York state business enterprises of opportunities to\nparticipate as subcontractors and suppliers on procurement contracts let\nby the corporation in an amount estimated to be equal to or greater than\none million dollars and promulgating procedures which will assure\ncompliance by contractors with such notification. Once awarded the\ncontract such contractors shall document their efforts to encourage the\nparticipation of New York state business enterprises as suppliers and\nsubcontractors on procurement contracts equal to or greater than one\nmillion dollars. Documented efforts by a successful contractor shall\nconsist of and be limited to showing that such contractor has (a)\nsolicited bids, in a timely and adequate manner, from New York state\nbusiness enterprises including certified minority and women-owned\nbusiness, or (b) contacted the New York state department of economic\ndevelopment to obtain listings of New York state business enterprises,\nor (c) placed notices for subcontractors and suppliers in newspapers,\njournals and other trade publications distributed in New York state, or\n(d) participated in bidder outreach conferences. If the contractor\ndetermines that New York state business enterprises are not available to\nparticipate on the contract as subcontractors or suppliers, the\ncontractor shall provide a statement indicating the method by which such\ndetermination was made. If the contractor does not intend to use\nsubcontractors on the contract, the contractor shall provide a statement\nverifying such intent; and\n (iii) except for procurement contracts for which the corporation would\nbe expending funds received from another state, the corporation shall\ninclude in all bid documents provided to potential bidders a statement\nthat information concerning the availability of New York state\nsubcontractors and suppliers is available from the New York state\ndepartment of economic development, which shall include the directory of\ncertified minority and women-owned businesses, and it is the policy of\nNew York state to encourage the use of New York state subcontractors and\nsuppliers, and to promote the participation of minority and women-owned\nbusinesses where possible, in the procurement of goods and services; and\n (iv) with the cooperation of the community services division of the\ndepartment of labor and through cooperative efforts with contractors,\nproviding for the notification of New York state residents of employment\nopportunities arising in New York state out of procurement contracts let\nby the corporation in an amount estimated to be equal to or greater than\none million dollars; and promulgating procedures which will assure\ncompliance by contractors with such notification by requiring\ncontractors to submit post-award compliance reports documenting their\nefforts to provide such notification through listing any such positions\nwith the community services division, or providing for such notification\nin such manner as is consistent with existing collective bargaining\ncontracts or agreements; and\n (v) including in each set of documents soliciting bids on procurement\ncontracts to let by the corporation a statement notifying potential\nbidders located in foreign countries that the corporation may assign or\notherwise transfer offset credits created by such procurement contract\nto third parties located in New York state; providing for the assignment\nor other form of transfer of offset credits created by such procurement\ncontracts, directly or indirectly, to third parties located in New York\nstate, in accordance with the written directions of the commissioner of\neconomic development; and providing for the corporation to otherwise\ncooperate with the department of economic development in efforts to get\nforeign countries to recognize offset credits assigned or transferred to\nthird parties located in New York state created by such procurement\ncontracts; and\n (vi) promulgating procedures which will assure compliance with the\nfederal equal employment opportunity act of 1972 (P.L. 92-261), as\namended, by contractors of the corporation.\n (o) For the purposes of this section, a "New York state business\nenterprise" means a business enterprise, including a sole\nproprietorship, partnership, or corporation, which offers for sale or\nlease or other form of exchange, goods which are sought by the\ncorporation and which are substantially manufactured, produced or\nassembled in New York state, or services which are sought by the\ncorporation and which are substantially performed within New York state.\n (p) For the purposes of this section, a "New York resident" means a\nnatural person who maintains a fixed, permanent and principal home\nlocated within New York state and to which such person, whenever\ntemporarily located, always intends to return.\n 4. Each corporation shall have the power from time to time to amend\nsuch procurement contract guidelines in accordance with the provisions\nof this section.\n 5. (a) Each corporation shall notify the commissioner of economic\ndevelopment of the award of a procurement contract for the purchase of\ngoods or services from a foreign business enterprise in an amount equal\nto or greater than one million dollars simultaneously with notifying the\nsuccessful bidder therefor. No corporation shall thereafter enter into a\nprocurement contract for said goods or services until at least fifteen\ndays has elapsed, except for procurement contracts awarded on an\nemergency or critical basis, or where the commissioner of economic\ndevelopment waives the provisions of this sentence. The notification to\nthe commissioner of economic development shall include the name, address\nand telephone and facsimile number of the foreign business enterprise, a\nbrief description of the goods or services to be obtained pursuant to\nthe proposed procurement contract, the amount of the proposed\nprocurement contract, the term of the proposed procurement contract, and\nthe name of the individual at the foreign business enterprise or acting\non behalf of the same who is principally responsible for the proposed\nprocurement contract. Such notification shall be used by the\ncommissioner of economic development solely to provide notification to\nNew York state business enterprises of opportunities to participate as\nsubcontractors and suppliers on such procurement contracts, to promote\nand encourage the location and development of new business in the state,\nto assist New York state business enterprises in obtaining offset\ncredits from foreign countries, and to otherwise investigate, study and\nundertake means of promoting and encouraging the prosperous development\nand protection of the legitimate interest and welfare of New York state\nbusiness enterprises, industry and commerce.\n (b) As used in this section, the following terms shall have the\nfollowing meanings, unless a different meaning appears from the context:\n (i) "Foreign business enterprise" shall mean a business enterprise,\nincluding a sole proprietorship, partnership or corporation, which\noffers for sale, lease or other form of exchange, goods which are sought\nby the corporation and which are substantially produced outside New York\nstate, or services, other than construction services, sought by the\ncorporation which are substantially performed outside New York state.\nFor purposes of construction services, foreign business enterprise shall\nmean a business enterprise, including a sole proprietorship, partnership\nor corporation, which has its principal place of business outside New\nYork state.\n (ii) "New York state business enterprise" shall mean a business\nenterprise, including a sole proprietorship, partnership or corporation,\nwhich offers for sale or lease or other form of exchange, goods which\nare sought by the corporation and which are substantially manufactured,\nproduced or assembled in New York state, or services, other than\nconstruction services, which are sought by the corporation and which are\nsubstantially performed within New York state. For purposes of\nconstruction services, a New York state business enterprise shall mean a\nbusiness enterprise, including a sole proprietorship, partnership, or\ncorporation, which has its principal place of business in New York\nstate.\n (iii) "Discriminatory jurisdiction" shall mean any other country,\nnation, province, state or political subdivision thereof which employs a\npreference or price distorting mechanism to the detriment of or\notherwise discriminates against a New York state business enterprise in\nthe procurement of goods and services by the same or a non-governmental\nentity influenced by the same. Such discrimination may include, but is\nnot limited to, any law, regulation, procedure or practice, terms or\nlicense, authorization, or funding or bidding rights which requires or\nencourages any agency or instrumentality of the state or political\nsubdivision thereof or non-governmental entity influenced by the same to\ndiscriminate against a New York state business enterprise.\n (c) In including any additional business enterprises on invitations to\nbid for the procurement of goods or services, the chief executive\nofficer of the corporation shall not include any foreign business\nenterprise which has its principal place of business located in a\ndiscriminatory jurisdiction contained on the list prepared by the\ncommissioner of economic development pursuant to subdivision six of\nsection one hundred sixty-five of the state finance law, except,\nhowever, business enterprises which are New York state business\nenterprises as defined by this section. The corporation may waive the\napplication of the provisions of this section whenever the chief\nexecutive officer of the corporation determines in writing that it is in\nthe best interests of the state to do so. The chief executive officer of\nthe corporation shall deliver each such waiver to the commissioner of\neconomic development.\n (d) A corporation shall not enter into a contract with a foreign\nbusiness enterprise which has its principal place of business located in\na discriminatory jurisdiction contained on the list prepared by the\ncommissioner of economic development pursuant to subdivision six of\nsection one hundred sixty-five of the state finance law. The provisions\nof this section may be waived by the chief executive officer of the\ncorporation if the chief executive officer of the corporation determines\nin writing that it is in the best interests of the state to do so. The\nchief executive officer of the corporation shall deliver each such\nwaiver to the commissioner of economic development.\n 6. Each corporation, as part of the guidelines established pursuant to\nsubdivision three of this section, shall establish policies regarding\nthe preparation of publicly available reports on procurement contracts\nentered into by such corporation. Such policies shall provide, at the\nminimum, for the preparation of a report no less frequently than\nannually, summarizing procurement activity by such corporation for the\nperiod of the report, including a listing of all procurement contracts\nentered into, all contracts entered into with New York state business\nenterprises and the subject matter and value thereof, all contracts\nentered into with certified minority or women-owned business enterprises\nand the subject matter and value thereof, all referrals made and all\npenalties imposed pursuant to section three hundred sixteen of the\nexecutive law, all contracts entered into with foreign business\nenterprises, and the subject matter and value thereof, the selection\nprocess used to select such contractors, all procurement contracts which\nwere exempt from the publication requirements of article four-C of the\neconomic development law, the basis for any such exemption and the\nstatus of existing procurement contracts.\n 7. Each corporation shall annually prepare and approve a report on\nprocurement contracts which shall include the guidelines, as specified\nin subdivision three of this section, an explanation of the guidelines\nand any amendments thereto since the last annual report. Such report on\nprocurement contracts may be a part of any other annual report that the\ncorporation is required to make.\n 8. (a) Each corporation shall annually submit its report on\nprocurement contracts to the division of the budget and copies thereof\nto the department of audit and control, the department of economic\ndevelopment, the senate finance committee and the assembly ways and\nmeans committee. Such report shall include the total number and total\ndollar value of contracts awarded to certified minority and women-owned\nbusiness enterprises pursuant to subparagraph (i) of paragraph (b) of\nsubdivision three of this section, shall distinguish by contract type\nawards made pursuant to the authority provided under subparagraph (i) of\nparagraph (b) of subdivision three of this section, and shall\nadditionally specify by contract type awarded pursuant to clause (B) of\nsubparagraph (i) of paragraph (b) of subdivision three of this section\nand specify the total number, total dollar value and the percentage of\nthe total dollar value of contracts awarded to minority and women-owned\nbusiness entities and service disabled and veteran-owned business\nentities for the reporting period, as compared to the prior reporting\nyear. Further, such report shall specify the total number, total dollar\nvalue and percentage of contracts that exceed five hundred thousand\ndollars awarded to minority and women owned business enterprises and\nservice-disabled veteran-owned businesses for the reporting period as\ncompared to the prior reporting period.\n (b) Each corporation shall make available to the public copies of its\nreport on procurement contracts upon reasonable request therefor.\n 9. Nothing contained in this section shall be deemed to alter, affect\nthe validity of, modify the terms of or impair any contract or agreement\nmade or entered into in violation of, or without compliance with, the\nprovisions of this section.\n