§ 52 — Construction contracts, cancellation of contracts, disqualification to contract with mass transportation authority, statement of non-coll...

§ 52. Construction contracts, cancellation of contracts,\ndisqualification to contract with mass transportation authority,\nstatement of non-collusion in bids on proposals. 1. Contracts of the\nUtica transit authority for construction, alteration, renovation,\ndemolition, excavation or for purchase of materials or supplies shall be\nin such form and contain provisions as may be deemed advisable by the\nUtica transit authority. All such contracts in excess of ten thousand\ndollars shall be made on sealed bids, in compliance with a public notice\nadvertised at least once, not less than twenty days before the date set\nfor the receipt of bids, in the official publication of the municipality\nin which the main office of the Utica transit authority is located or if\nno such official publication exists, in a newspaper circulating in the\nmunicipality. If the Utica transit authority shall deem it to its best\ninterest or necessary or desirable to effectuate the purposes of this\narticle or the economy and efficiency in construction and operation of a\nproject, the Utica transit authority by majority vote of its members may\neither reject all bids or readvertise for bids or by unanimous vote of\nits members may accept a bid other than the lowest bid. In any such\ncontract there may be inserted in the discretion of the Utica transit\nauthority, a provision that additional work may be done or materials and\nsupplies furnished or that work or materials may be omitted for the\npurpose of completing such contract in accordance with any changes,\nomissions or additions in the specifications of any such contract. Each\ncontract shall provide that in the case of default by the contractor the\nUtica transit authority may adopt on behalf of the authority all\nsubcontracts made by such contractor and all such subcontractors shall\nbe bound by such adoption if made, and the authority may relet, with or\nwithout public advertisement, the work specified in the original\ncontract, exclusive of so much thereof as shall be provided in any\nsubcontracts so adopted. The Utica transit authority may make rules and\nregulations governing the qualifications of bidders, the submission of\ncombined bids by two or more contractors, the award and execution of the\ncontract, security, if any, for execution and performance of the\ncontract, and any other matters relating to the contract. The bidding\nmay be restricted to those who shall have qualified prior to the receipt\nof bids according to standards fixed by the Utica transit authority,\nprovided that notice or notices for the submission of qualifications\nshall be published in the official publication of the municipality in\nwhich the main office of the Utica transit authority is located, or if\nno such official publication exists, in a newspaper circulating in the\nmunicipality, at least once, not less than ten days prior to the date\nfixed for the filing of qualifications. Nothing in this section shall be\nconstrued to limit the power of the Utica transit authority to carry out\na project or any part thereof directly by the officers, agencies and\nemployees of the Utica transit authority, or by any government, or to\npurchase or acquire materials or supplies through the purchasing\nofficer, department or agency of a government.\n 2. A clause shall be inserted in all specifications or contracts\nhereafter made or awarded by the Utica transit authority or by any\nofficial of the Utica transit authority, for work or services performed\nor to be performed or goods sold or to be sold, to provide that upon the\nrefusal by a person who directly or indirectly derives a monetary\nbenefit which is traceable to such a specification or contract, when\ncalled before a grand jury to testify concerning any transaction or\ncontract had with the state or of any political subdivision thereof, a\npublic authority, a mass transportation authority or with any public\ndepartment, agency or official of the state or of any political\nsubdivision thereof or of any public authority or of a mass\ntransportation authority or subcontract thereunder, to sign a waiver of\nimmunity against subsequent criminal prosecution or to answer any\nrelevant question concerning such transaction, contract or subcontract.\n (a) Such person and any firm, partnership or corporation of which he\nis a member, partner, director or officer, shall be disqualified from\nthereafter selling to or submitting bids to or receiving awards from or\nentering into any contracts with the Utica transit authority or official\nthereof or any subcontract thereunder, or sub-contracting with any\nperson, firm, partnership or corporation who or which has entered into\nany such contract or contracts, in relation to such contract or\ncontracts, for goods, work or services, for a period of five years after\nsuch refusal. No person, firm, partnership or corporation who or which\nhas entered into any contract or contracts with the state, or any\npolitical subdivision thereof, a public authority, a mass transportation\nauthority, or with any public department, agency or official of the\nstate or any political subdivision thereof or of any public authority,\nor of a mass transportation authority, for goods, work or services,\nshall enter into a subcontract thereon with any person, firm or\ncorporation which is disqualified to contract as provided herein. Such\nclause shall also provide that\n (b) Any and all contracts made with the Utica transit authority or\nofficial thereof or any subcontract thereunder, since the effective date\nof this law, by such person and by any firm, partnership or corporation\nof which he is a member, partner, director or officer may be cancelled\nor terminated by the Utica transit authority without incurring any\npenalty or damages on account of such cancellation or termination, but\nany moneys owing by the Utica transit authority or by a contractor or\nsubcontractor thereunder for goods delivered or work done prior to the\ncancellation or termination shall be paid.\n 3. (a) Any person who, when called before a grand jury to testify\nconcerning any transaction or contract had with the state, any political\nsubdivision thereof, a public authority, a mass transportation authority\nor with a public department, agency or official of the state or of any\npolitical subdivision thereof or of a public authority or of a mass\ntransportation authority, refuses to sign a waiver of immunity against\nsubsequent criminal prosecution or to answer any relevant question\nconcerning such transaction or contract, and any firm, partnership or\ncorporation of which he is a member, partner, director or officer shall\nbe disqualified from thereafter selling to or submitting bids to or\nreceiving awards from or entering into any contracts with any mass\ntransportation authority or any official of any mass transportation\nauthority created by the state or any political subdivision, or\nsub-contracting with any person, firm, partnership or corporation who or\nwhich has entered into any such contract or contracts, in relation to\nsuch contract or contracts, for goods, work or services, for a period of\nfive years after such refusal or until a disqualification shall be\nremoved pursuant to the applicable provisions of law. No person, firm,\npartnership or corporation who or which has entered into any contract or\ncontracts with the state, or any political subdivision thereof, a public\nauthority, a mass transportation authority, or with any public\ndepartment, agency or official of the state or any political subdivision\nthereof or of any public authority, or of a mass transportation\nauthority, for goods, work or services, shall enter into a subcontract\nthereon with any person, firm or corporation which is disqualified to\ncontract as provided herein.\n (b) It shall be the duty of the officer conducting the investigation\nbefore the grand jury before which the refusal occurs to send notice of\nsuch refusal, together with the names of any firm, partnership or\ncorporation of which the person so refusing is known to be a member,\npartner, officer or director, to the commissioner of transportation of\nthe state of New York and the appropriate departments, agencies and\nofficials of the state, political subdivisions thereof or public\nauthorities with whom the person so refusing and any firm, partnership\nor corporation of which he is a member, partner, director or officer, is\nknown to have a contract.\n 4. (a) Any firm, partnership or corporation which has become subject\nto the cancellation or termination of a contract or subcontract or\ndisqualification to contract or subcontract on account of the refusal of\na member, partner, director or officer thereof to waive immunity when\ncalled to testify, as provided in subdivisions two and three of this\nsection, may, upon ten days' notice to the attorney general and to the\nofficer who conducted the investigation before the grand jury in which\nthe refusal occurred, make an application at a special term of the\nsupreme court held within the judicial district in which the refusal\noccurred for an order discontinuing the disqualification. Such\napplication shall be in the form of a petition setting forth grounds,\nincluding that the cooperation by petitioner with the grand jury at the\ntime of the refusal was such, and the amount and degree of control and\nfinancial interest, if any, in the petitioning firm, partnership or\ncorporation by the member, partner, officer or director who refused to\nwaive immunity is such that it will not be in the public interest to\ncancel or terminate petitioner's contracts or subcontracts or to\ncontinue the disqualification, as provided in subdivisions two and three\nof this section.\n A copy of the petition and accompanying papers shall be served with\nthe notices to be given pursuant to this subdivision.\n (b) Upon the filing of such petition the court may stay as to\npetitioner, pending a decision upon the petition, the cancellation or\ntermination of any contracts or subcontracts resulting from such refusal\nupon such terms as to notice or otherwise as may be just.\n (c) At least two days prior to the return day, the officer who\nconducted the investigation before the grand jury and the attorney\ngeneral may file answers to the petition or apply for an order\ndismissing the petition as a matter of law. On or before the return day\nthe petitioner may file a reply to the answer.\n (d) Upon the return day the court may, upon the petition and answer\nand other papers filed, forthwith render such final order as the case\nrequires, or if a triable issue of fact is duly raised, it shall\nforthwith be tried before a court sitting without a jury or before a\nreferee. The provisions of statute or rule governing references in an\naction shall apply to a reference under this subdivision.\n (e) The court shall render a final order dismissing the petition on\nthe merits or discontinuing the disqualification upon the ground that\nthe public interest would be served by its discontinuance, and granting\nsuch other relief as to the cancellation or termination of contracts or\nsubcontracts as may be appropriate, but without costs to petitioner.\n 5. (a) Every bid or proposal hereafter made to a mass transportation\nauthority where competitive bidding is required by statute, rule or\nregulation, for work or services performed or to be performed or goods\nsold or to be sold shall contain the following statement subscribed by\nthe bidder and affirmed by such bidder as true under the penalties of\nperjury: Non-collusive bidding certification.\n (1) By submission of this bid, each bidder and each person signing on\nbehalf of any bidder certifies, and in the case of a joint bid each\nparty thereto certifies as to its own organization, under penalty of\nperjury, that to the best of his knowledge and belief:\n (i) The prices in this bid have been arrived at independently without\ncollusion, consultation, communication, or agreement, for the purpose of\nrestricting competition, as to any matter relating to such prices with\nany other bidder or with any competitor;\n (ii) Unless otherwise required by law, the prices which have been\nquoted in this bid have not been knowingly disclosed by the bidder and\nwill not knowingly be disclosed by the bidder prior to opening, directly\nor indirectly, to any other bidder or to any competitor; and\n (iii) No attempt has been made or will be made by the bidder to induce\nany other person, partnership or corporation to submit or not to submit\na bid for the purpose of restricting competition.\n (2) A bid shall not be considered for award nor shall any award be\nmade where (1) (i) (ii) and (iii) above have not been complied with;\nprovided however, that if in any case the bidder cannot make the\nforegoing certification, the bidder shall so state and shall furnish\nwith the bid a signed statement which sets forth in detail the reasons\ntherefor. Where (1) (i) (ii) and (iii) above have not been complied\nwith, the bid shall not be considered for award nor shall any award be\nmade unless the Utica transit authority to which the bid is made\ndetermines that such disclosure was not made for the purpose of\nrestricting competition.\n The fact that a bidder (a) has published price lists, rates, or\ntariffs covering items being procured, (b) has informed prospective\ncustomers of proposed or pending publication of new or revised price\nlists for such items, or (c) has sold the same items to other customers\nat the same prices being bid, does not constitute, without more, a\ndisclosure within the meaning of paragraph (a) of this subdivision.\n (b) Any bid hereafter made to the Utica transit authority by a\ncorporate bidder for work or services performed or to be performed or\ngoods sold or to be sold, where competitive bidding is required by\nstatute, rule, regulation, or local law, and where such bid contains the\ncertification referred to in paragraph (a) of this subdivision, shall be\ndeemed to have been authorized by the board of directors of the bidder,\nand such authorization shall be deemed to include the signing and\nsubmission of the bid and the inclusion therein of the certificate as to\nnon-collusion as the act and deed of the corporation.\n