21 CRR-NY 1159.4NY-CRR
21 CRR-NY 1159.4
21 CRR-NY 1159.4
1159.4 Guidelines.
(a) Procurement protocol.
The primary objective of procurement is to ensure and foster economy, efficiency and effectiveness in the acquisition of goods and services. To achieve these goals it is essential that all of the participants in the procurement process have a clear understanding of their roles and responsibilities. Set forth in this subdivision is a general outline of the various departmental functions to be fulfilled in the procurement process. The procurement department maintains a comprehensive written procurement systems manual based on these concepts.
(1) Procurement department.
(i) The procurement department shall be responsible for conducting the following minimum pre-procurement planning activities on at least an annual basis:
(a) forecasting the price and availability of items and materials for user departments;
(b) developing a purchasing schedule for IFBs and RFPs;
(c) establishing purchasing goals and objectives.
(ii) The functions of the procurement department shall be to:
(a) analyze the marketplace to determine the status of competition, technological developments, the impact of the economy on potential vendors, labor conditions, and changes in pricing or delivery methods;
(b) communicate and coordinate with similarly situated procurement departments to explore joint purchasing arrangements and to share marketplace information;
(c) analyze user department procurement requisitions to ensure the proper authorizations are present, and that the procurement is tailored to meet the authority’s needs and is not unnecessary or duplicative. Consideration should be given to consolidating or breaking out procurements to obtain a more economical purchase. Where appropriate, an analysis will be made of lease versus purchase alternatives and any other appropriate analysis to determine the most economical approach;
(d) prepare invitation for bids, requests for proposals, informal solicitations, and notices of procurement opportunity, as needed;
(e) administer the acquisition process, including: ensuring adequate advertisement of the notice of procurement opportunity; surveying sources; serving as contact for potential contractors; and accepting, opening, evaluating, and tabulating bids;
(f) remain current and in compliance with applicable Federal and State laws;
(g) maintain vendors files;
(h) maintain all support documentation including small purchases procurement authorization, small purchase tabulation and solicitation summary, single bid/proposal validation reports and single source validation report;
(h) develop MWBE and SDVOB participation goals, monitor MWBE and SDBOV participation, and report MWBE and SDVOB utilization to appropriate state agencies.
(2) User department (the department in need of and requesting the procurement of goods or services).
(i) It shall be the responsibility of each user department to evaluate its projected procurement needs on an annual basis, and to undertake and coordinate procurement planning activities with the procurement department, annually.
(ii) For the procurement of any product or service of $25,000, or more, the user department shall prepare a written requisition and submit same to the procurement department a minimum of three months prior to the desired delivery, bid opening, performance, or proposal due date. For purchases under $25,000, the requisitions shall be submitted to the procurement department 10 days in advance. The requisition shall serve as the mechanism by which the user department communicates its specific procurement need to the procurement department and it represents the beginning of the procurement process.
(iii) The requisition shall include the following elements:
(a) properly completed form per the authority’s requisition procedures; and
(b) budget; including proposed funding source by designation of the account funding code, estimated cost and basis for estimated cost; and
(c) specifications; completed in accordance with subdivision (o) of this section.
(iv) The user department is responsible for:
(a) managing all phases of the contract administration procedure;
(b) monitoring the performance of the contract to ensure compliance with its terms; and
(c) the final contract and/or purchase order in accordance with authority procedure 2-01-01, as amended from time to time.
(3) Engineering department.
(i) The engineering department shall serve as the user department for major public work projects.
(ii) The preparation and submittal of a requisition shall be required for public work projects which have been developed or identified under board authorization or which have received State or Federal funding approval.
(4) Internal audit. The internal audit department shall have responsibility for evaluating the adequacy and effectiveness of internal controls governing the procurement process and for providing cost analysis services upon the request of the procurement department and for conducting any necessary audits, such as those required by the Federal Buy America Act.
(5) Office of General Counsel. The Office of General Counsel shall provide interpretations of the procurement guidelines, advice to the user and procurement departments on statutory and regulatory compliance and assist in the board agenda process for awards requiring board approval. All issues regarding disqualification and/or release of a low bidder must be reviewed by the Office of General Counsel prior to a decision being made.
(6) EEO/diversity development department. The Office of EEO/Diversity Development shall develop DBE and MWBE goals. EEO/diversity development will monitor DBE and MWBE participation for Federal and State funded project. The EEO/diversity development department will also report DBE and MWBE utilization to appropriate Federal and State agencies.
(b) Evaluating responsiveness and responsibility.
(1) Factors which should be considered by the authority in evaluating responsiveness should include the following considerations:
(i) Has all required information been provided?
(ii) Does the bid contain mistakes?
(iii) Has bidder failed to commit to a firm price?
(iv) Are there unacceptable qualifications or conditions tied to the bid?
(v) Has the bid been prepared in accordance with the bidding instructions?
(vi) Are unacceptable provisions included in the bid?
(vii) Has the bidder altered or limited any of the contract or solicitation provisions?
(viii) Has the bidder offered nonconforming products or services?
(ix) Has the bidder failed to acknowledge amendments to the IFB issued by the authority?
Note that the foregoing list is not exhaustive. Minor deviations which are immaterial and do not effect quantity, quality or delivery, may be waived by the authority if such waiver does not prejudice or affect the relative standing of the bidders.
(2) In evaluating the responsibility of an apparent low bidder or proposed subcontractor, the authority may consider, among other factors, whether the subjects’ record with the authority or other public owners includes or demonstrates:
(i) being listed on a Federal or State debarred contractors list;
(ii) poor prior performance on an authority contract;
(iii) lack of adequate expertise; prior experience with comparable projects; or financial resources necessary to perform the work outlined in the contract in timely, competent and acceptable manner. Evidence of such factors may include failure to submit satisfactory evidence of insurance, surety bonds, or financial responsibility; or a history of terminations for cause;
(iv) engagement in criminal conduct in connection with any other government contracts or the conduct of business activity that involves such crimes as extortion, racketeering, bribery, fraud, bid-rigging and embezzlement;
(v) grave disregard for the safety of employees, State personnel, or members of the public. Consideration will be given to whether employees who will be assigned to work on the project are properly trained and whether the equipment to be used is safe and functioning properly;
(vi) willful noncompliance with the State’s Labor Laws regarding prevailing wage and supplement payment requirements, including consideration of any pending violations;
(vii) disregard for other State Labor Laws, including child labor, proper and timely wage payments and unemployment insurance laws;
(viii) violations of the State Workers’ Compensation Law including failure to provide proof of proper workers’ compensation or disability coverage;
(ix) violations of the State’s Environmental Conservation Law or violations of any other Federal or State environmental statutes;
(x) the failure to abide by State and Federal statutes and regulations regarding efforts to solicit and utilize disadvantaged, minority and women-owned business enterprises as potential sub-contractors;
(xi) the submission of a bid which is mathematically or materially unbalanced;
(xii) the submission of a bid which is so much lower than the authority’s confidential engineer’s estimate that it appears unlikely that the contractor will be able to complete the project satisfactorily at the price bid;
(xiii) the presentation of false or misleading statements or any other issue that raises serious questions about the responsibility of the bidder or proposed subcontractor.
(c) Board approval.
Board approval is required for each of the following:
(1) all contracts for goods or services in the actual or estimated value of $100,000 or more; and
(2) contracts where performance is to continue for a period in excess of one year.
(d) Buy America.
(1) Federal requirements. Procurements which include Federal funds are subject to Federal Buy America requirements. Generally, this means that steel, iron, and/or manufactured products which are incorporated in public works or product purchases are to have been produced in the United States, unless a waiver has been granted by a Federal agency or the project is subject to a general waiver (see, 49 CFR 661.7 appendix A). General waivers have been established for microcomputer equipment, including software, and purchases for less than $150,000 or less. Rolling stock must have a 65 percent domestic content in years 2018 and 2019 and a 70% domestic content in 2020 and beyond, and final assembly must take place in the United States.
(2) State requirements.
(i) Product purchase contracts involving an estimated expenditure in excess of $50,000 shall require that to the extent such products are made of, fabricated from, or contain steel components that such steel components are produced or made in whole or substantial part in the U.S., its territories or possessions, except in the procurement of motor vehicles and automobile equipment assembled in Canada in conformity with the Automotive Products Trade Act of 1965 or any amendments thereto.
(ii) Public work projects in excess of $100,000 shall require that all structural steel, reinforcing steel or other major steel items to be incorporated in the project shall be produced or made in whole or substantial part in the U.S., its territories or possessions.
(iii) By resolution of the board of commissioners these State provisions may be waived if it is determined that such provisions would result in unreasonable costs or that such steel products or steel components cannot be produced or made in the U.S. in sufficient and reasonably available quantities or of satisfactory quality or design.
(e) Foreign business enterprises.
In the event of the award of a contract for goods or services from a foreign business enterprise in an amount equal to or greater than one million dollars, simultaneously with notifying the successful bidder or proposer, the authority shall notify the NYS Commissioner of Economic Development of the pending award. The pending contract for goods or services shall not be entered in to until at least 15 days have elapsed. However, this provision does not apply to contracts for goods or services awarded on an emergency or exigency basis or where a waiver of this requirement has been obtained from the NYS Commissioner of Economic Development. The notification to the NYS Commissioner of Economic Development shall include the name, address and telephone and facsimile number of the foreign business enterprise, a brief description of the goods or services to be obtained, the amount and term of the proposed contract for goods or services, and the name of the individual at the foreign business enterprise or acting on behalf of the same who is principally responsible for the proposed contract for goods or services. Pursuant to section 2879 of the Public Authorities Law, the authority shall not enter into a contract for goods or services with a foreign business enterprise which has its principal place of business located in a discriminatory jurisdiction contained on the list prepared by the NYS Commissioner of Economic Development pursuant to subdivision 6 of section 165 of the State Finance Law. The provisions of this subparagraph may be waived by the executive director if the executive director determines in writing that it is in the best interest of the authority to do so. The executive director shall deliver each such waiver to the NYS Commissioner of Economic Development.
(f) Performance security and bonding requirements.
(1) Bid security. All public work contracts equal to or in excess of $50,000 shall require bid security equal to 10 percent of the bid price. Bid security may be in the form of a bid bond, certified check or other guaranteed negotiable instrument, or letter of credit. The bid security of the bidders submitting the three lowest bids will be retained until execution of the contract or a maximum of 180 calendar days after bid opening, whichever is sooner. Bid security of the remaining bidders will be returned within 10 calendar days after the bid opening date. In the event of neglect or refusal on the part of the successful bidder to execute the contract and furnish evidence of insurances within 10 days after written notification of notice of intent to award the contract, and furnish the performance security and labor and material payment bond within three days after receipt of the executed contract, the entire bid security shall be forfeited to and retained by the authority as liquidated damages for such neglect or refusal. Bid security is not mandated for product contracts.
(2) Performance security. All public work contracts of $10,000 or more, shall require a performance bond or certified check or other guaranteed negotiable instrument or letter of credit guaranteeing the contractor's faithful performance. Performance security is not mandated for product contracts. In instances where a performance bond is offered, the bond shall be in the amount of the contract and be issued by a duly incorporated entity authorized to guarantee the faithful performance of contracts and to do business in the State of New York as a surety.
(3) Letter of credit. A letter of credit used as bid or performance security should be an irrevocable letter of credit issued by a bank or financial institution of B-rating or better, as determined by Moody's and Standard & Poors, signed by an authorized representative of the issuing institution and naming the authority as beneficiary. The letter of credit must state that an amount representing at least 10 percent of the bid price is available to be drawn on unconditionally by the authority under the expressed terms and conditions. These terms and conditions including the location at which the authority can draw the funds, an effective date, and expiration date should be clearly stated in the letter of credit.
(4) Labor and material payment bonds. All public work contracts, regardless of amount, shall require labor and material payment bonds in an amount equal to the contract amount.
(5) Maintenance bonds. All public work contracts, regardless of amount, shall require as a minimum, a one-year maintenance bond, which period shall commence as of the date of final acceptance. The maintenance bond shall be in the full contract amount.
(6) Waiver.
(i) Bid and maintenance bond requirements may be waived prior to bid date by the executive director or his designee for cause. In instances where such bonds are not required payment shall be withheld until full and complete performance has been accomplished under the terms of the contract.
(ii) Performance security and labor and material payment bonds may be waived by the executive director or his designee, prior to the bid date, in accordance with State Finance Law, section 137(1), provided that the aggregate amount of the contract is under $100,000 and that the authority retains 20 percent from each progress payment or estimate until the entire contract work has been completed and accepted, at which time the executive director or his designee may authorize, pending the payment of the final estimate, the release of up to 75 percent of the retained percentage.
(g) Prevailing wage rates.
Certain public work contracts maybe subject to the payment of prevailing wage rates, regardless of the dollar amount of the contract. It shall be the responsibility of the procurement and/or the engineering department to obtain the applicable prevailing wage rates for the particular procurement and ensure that the rates are included in the bid solicitation. Generally, projects for construction, reconstruction or maintenance done on behalf of a public entity involving the employment of laborers, workers or mechanics are public works. In instances where there is a question regarding whether this condition exists, the Bureau of Public Work will make a determination based on the particular project details. Generally, agreements between a contractor and a public entity in which the principal purpose is to furnish services through the use of building service employees are subject to prevailing wage rates. A building service employee includes, but is not limited to, building cleaner, janitor, gardener, groundskeeper, window cleaner, and occupations relating to the collection of garbage or refuse, and to the transportation of office furniture and equipment and the transportation and delivery of fossil fuel. The procurement and engineering departments are encouraged to contact the legal department for assistance in the event they are uncertain as to the applicability of prevailing rates to a particular procurement.
(h) Sealed bidding.
(1) Sealed bidding is the preferred procurement method for acquisitions of $50,000 or more where the following factors are present:
(i) the contract will be based upon a complete, adequate and realistic specification or purchase description and/or an itemized bid proposal;
(ii) two or more responsible bidders are willing and able to compete effectively for the award;
(iii) a fair and reasonable award can be made principally on the basis of price; and
(iv) the procurement lends itself to a FFP-type contract.
(2) Sealed bidding is not required when:
(i) the purchase is under $50,000 and an informal, small purchase procurement procedure is being followed;
(ii) an emergency or exigency exists which renders delay impermissible;
(iii) a single source has been validated;
(iv) a single bid has been validated;
(v) Federal or State authorization for noncompetitive negotiations has been obtained;
(vi) a modification or amendment to a contract is justified;
(vii) the procurement lends itself to a CR-type contract; or
(viii) a resolution adopted by a vote of at least two-thirds of the members in attendance at a meeting of the board states that the board has determined that it is not in the best interest of the authority to advertise for bids.
(3) Minimum requirements for sealed bidding include:
(i) the preparation of an independent estimate prior to bid opening;
(ii) the advertisement of an invitation for bids (IFB) or a synopsis of a procurement action;
(iii) the acceptance of sealed bids;
(iv) the public opening of sealed bids;
(v) the preparation of a written bid analysis; and
(vi) the award of a FFP type contract to the lowest priced responsive, responsible bidder.
(4) In the event of a tied-bid, the contract shall be awarded based upon the following descending order of priorities:
(i) small businesses which are labor surplus area firms;
(ii) other small businesses;
(iii) other businesses that are also labor surplus area firms;
(iv) other businesses (i.e., DBEs, WBEs and MBEs); and
(v) if two or more bidders still remain equally eligible after application of the above order of priority, award shall be made by a drawing by lot limited to those bidders. If time permits, the bidders involved shall be given an opportunity to attend the drawing. The drawing shall be witnessed by at least three persons, and the contract file shall contain the names and addresses of the witnesses and the person supervising the drawing.
(i) Sealed bidding (two-step variation).
(1) The two-step sealed bidding method may be appropriate in instances where the specification is functional or performance based and there may exist a variety of acceptable technical approaches.
(i) Step one consists of the request for, submittal, evaluation, and discussion (optional) of a technical proposal. For purposes of two-step sealed bidding, this includes engineering approach, special manufacturing processes and special testing techniques. No pricing is considered in step one. Discussions may be conducted for clarification of questions relating to technical requirements.
(ii) Step two consists of the submission of sealed price bids by those who submitted acceptable technical proposals in step one. Each bidder's price shall be based on its own technical proposal. If an award is made, a FFP-type contract is awarded to the lowest priced responsive, responsible bidder.
(j) Negotiation.
(1) Procurement by negotiation is the preferred procurement method for acquisitions of $50,000 or more where one or more of the following factors are present:
(i) the desired goods or services cannot be precisely defined, described or standardized;
(ii) the desired end product is conceptual in nature;
(iii) a CR type contract is contemplated;
(iv) discussions concerning the technical aspects and price negotiation are intended;
(v) offerors are to be given the opportunity to revise the price or technical aspects of their proposal;
(vi) price alone cannot be the determinative factor in award. Quality, qualifications, performance data, or other contractual factors are to be considered in selecting the most advantageous offering; or
(vii) artistic or aesthetic values supersede price as primary selection criteria.
(2) Procurement by negotiation is not required when:
(i) the purchase is under $50,000 and an informal, small purchase procurement procedure is being followed;
(ii) an emergency or exigency exists which renders delay impermissible;
(iii) a single source award or single bid award is validated;
(iv) Federal or State authorization for noncompetitive procurement has been obtained;
(v) a resolution adopted by a vote of at least two-thirds of the members in attendance at a meeting of the board states that the board has determined that it is impractical to advertise for competitive proposals or it is not in the best interest of the authority to do so; or
(vi) a modification or amendment to a contract is justified.
(3) Minimum requirements for negotiation include:
(i) the solicitation of statements of qualifications (SOQ) and/or the advertisement of a request for proposals (RFP) a minimum of 21 days shall be allowed for the preparation of proposals and the setting of the proposal due date;
(ii) in the event that an SOQ is advertised, preparation of a preselection list of the best qualified consultants, based on the experience and qualification data supplied by the consultants. Generally, the preselection list may consist of between three to five consultants. If technical proposals were solicited in conjunction with the advertisement, all consultants who submitted responsive proposals must be included for evaluation;
(iii) the acceptance of sealed proposals;
(iv) the evaluation of the proposals on the basis of published selection criteria;
(v) the published selection criteria for procurements less than $250,000 shall be as follows: professional services, 40 percent qualifications and experience, 30 percent technical criteria and 30 percent cost; revenue generating and other services, 20 percent qualifications and experience, 30 percent technical criteria and 50 percent cost; technical/operation sensitive services, 20 percent qualifications and experience, 40 percent technical criteria and 40 percent cost; specialty vehicles, equipment and technical products, 20 percent qualifications and experience, 50 percent technical criteria and 30 percent cost; diversity practices will be assessed for procurements anticipated to be $250,000 or greater when it is practical, feasible and appropriate. Published section criteria shall be as follows: professional services, 35 percent qualifications and experience, 30 percent technical criteria, 30 percent cost and 5% diversity practices; revenue generating and other services, 20 percent qualifications and experience, 30 percent technical criteria and 50 percent cost; technical/operation sensitive services, 20 percent qualifications and experience, 40 percent technical criteria, 35 percent cost and 5% diversity practices; specialty vehicles, equipment and technical products, 20 percent qualifications and experience, 45 percent technical criteria, 30 percent cost and 5% diversity practices.
(vi) the preparation of an independent estimate before opening the sealed proposal;
(vii) proposals within the competitive range are identified and discussions are held with each proposer;
(viii) best and final offers (BAFOs) may be requested of all proposers determined to be within the competitive range or on the short-list; and
(ix) the authority evaluates BAFOs and awards either a FFP-type or a CR-type contract to the proposer whose BAFO is most advantageous to the authority.
(4) If so stated in the RFP, selection may be based on the basis of the original proposals, without discussions with any offeror. However, in the event discussions are conducted with any one offeror, discussions must then be conducted with all offerors in the competitive range.
(k) Qualifications-based procurement.
(1) This method is required in procuring architectural, engineering, and certain related services whenever State or Federal funds will or may be used. There are differences between the Federal Aviation Administration and Federal Transit Administration as to what services are required to be procured in this manner, so reference should be made to the most current version of FAA Advisory Circular 150/5100-14D, FTA Advisory Circular 4220.1 For New York State law for guidance.
(2) Minimum requirements for a qualifications based procurement include:
(i) empaneling of the selection board, consisting of usually at least three qualified members. If the intended procurement is for a GBNRTC/NITTEC study either a GBNRTC/ NITTEC study manager or the GBNRTC/NITTEC executive director shall be included on the selection board, as is appropriate for the scope of the study. The selection board shall be prepared to evaluate qualifications, proposals, potential consultants (i.e., conduct interviews and inquiries as required), and make recommendations. Where a GBNRTC/NITTEC study may not be in the direct interest of the authority, the selection board may include representatives from outside agencies which have an interest in the study;
(ii) development by the selection board, of the selection criteria and the evaluation system to be used in preparing a preselection list of consultants, and in determining the final selection;
(iii) the solicitation of qualifications by either advertisement of a request for qualifications (RFQ) or by requiring qualifications as part of a request for proposals (RFP) advertisement a minimum of 21 calendar days shall be allowed for the preparation of proposals and the setting of the proposal due date;
(iv) in the event that an RFQ is advertised, preparation of a preselection list of the best qualified consultants, by the selection board, based on the experience and qualification data supplied by the consultants. If technical proposals were solicited in conjunction with the advertisement, all consultants who submitted proposals must be included for evaluation. Generally, the pre-selection list may consist of between three to five consultants;
(v) notification to the unsuccessful consultants who expressed an interest;
(vi) solicitation of sealed technical proposals from each of the consultants;
(vii) the selection board, at its option may conduct interviews, presentations, and/or discussions. If this option is elected, interviews, presentations, and/or discussions must be held with each consultant who has submitted a technical proposal if the initial solicitation was by way of RFQ. If not, interviews, presentations, and/or discussions must be held with each consultant in the competitive range in accordance with the evaluation of the technical proposals;
(viii) evaluation of technical proposals and experience and qualification data based upon published selection criteria of which price shall not be a factor, rank and identify most qualified consultant;
(ix) initiate discussions with the most qualified, acceptable proposer to develop and agree upon the scope of work. Thereafter, the authority prepares its engineer's estimate and requests the cost proposal of the most qualified, acceptable proposer;
(x) upon completion of the engineer's estimate the selection board shall open and review the cost proposal. Thereafter, negotiations are undertaken;
(xi) if a fair and reasonable price cannot be reached with the most qualified, acceptable proposer, negotiations are commenced with the next most qualified and acceptable proposer. The cost proposal of the next most qualified proposer may be requested only after negotiations with the most qualified proposer have been formally terminated. This process shall be repeated until the successful negotiation of a fair and reasonable contract price for an acceptable proposal from a qualified proposer is reached, or until the procurement is discontinued;
(xii) in accordance with the requirements of New York Public Authorities Law section 2879(3)(b)(iv) the authority will not refuse to negotiate with a professional firm solely because the ratio of the allowable indirect costs to direct labor costs of the professional firm or the hourly rate in any labor category of the professional firm exceeds a limitation, generally set by the authority in the determination of the reasonableness of the estimated cost of services to be rendered by the professional firm but rather the authority should also consider the reasonableness of cost based on the total estimated cost of the service of the professional firm which should include, among other things, all the direct labor costs of the professional firm for such services, plus all allowable indirect costs, other direct costs and negotiated profit of the professional firm. A professional firm is defined for the purpose of this subparagraph as any legal entity permitted by law to practice the professions of architecture, engineering or surveying; and
(xiii) submittal of written and documented recommendation for award by the selection board to the board of commissioners when required. In addition, the GBNRTC/NITTEC studies documentation of the selection board's recommendation for award will be maintained at the GBNRTC/NITTEC offices and will be available to interested parties.
(l) Options.
An option is a unilateral right in a contract by which, for a specified time, the authority may acquire additional equipment, supplies, or services than originally procured. An option may also extend the term of the contract. An option must be evaluated as part of the original contract award. In addition, for procurements funded by the Federal Transit Administration, a cost and price analysis must be conducted at the time of exercise of the option in order to ensure that the option price is still fair and reasonable.
(m) New York State Contract Reporter.
All procurements of goods or services having an actual or estimated value of $50,000 or more shall be published in the New York State Contract Reporter (NYSCR). The notice of procurement opportunity shall appear in the NYSCR at least 15 business days prior to the bid or proposal due date. However, advance publication shall not be required under emergency or exigency conditions, or when an expediency action has been adopted by the board, or if the procurement is being solicited within 45 business days after the date bids or proposals were originally due. At the time a determination of intent to award a procurement contract is made, the following information shall be submitted for publication in NYSCR: for procurement contracts obtained through the sealed bidding process, the result of the bid opening including the names of bidding firms and the amounts bid by each; for procurement contracts obtained through the negotiation and/or qualification-based processes, the names of firms submitting proposals and the proposal selected as the best value offer; and for all other procurement contracts, the name of the proposed awardee.
(n) Sole-source awards.
(1) A sole source award shall not be justified on the basis of:
(i) a lack of advance planning by the initiating department; or
(ii) concerns related to the amount of funds available (i.e., funds will expire) to the authority for the acquisition of supplies or services.
(2) A sole-source award is justified under circumstances limited to the following:
(i) a validated “single bid”;
(ii) emergency (subdivision [lx] of this section);
(iii) exigency (subdivision [lx] of this section);
(iv) expediency (waiver of competition, for cause, by a two-thirds vote of the board of commissioners) (subdivision [y] of this section); or
(v) a validated “single source” (paragraph [4] of this subdivision).
A cost or price analysis must be prepared for all sole source awards in accordance with FTA guidelines.
(3) A single bid is not validated for purposes of sole source award until authority staff:
(i) canvasses all, or in the alternative, three or more prospective bidders from whom bids were solicited to learn the causes for the lack of bidding activity;
(ii) evaluates and documents the responses;
(iii) reconsiders its requirements and specifications;
(iv) makes findings supporting the need for the original requirements and the sufficiency of the specifications, and that the single bidder is responsive and responsible or that the proposer is qualified and the proposal is acceptable; and
(v) conducts a price or cost analysis to establish that the bid price is fair and reasonable. The cost analysis shall verify the proposed cost data, the projections of the data and the evaluation of specific elements of cost and profit.
(4) A single source is not validated for purposes of a sole source award until authority staff investigates and documents one or more of the following circumstances:
(i) the proposed source is the original manufacturer and the terms and conditions of a viable warranty would be violated by the installation of unauthorized parts or components in existing equipment, machinery, vehicles, or systems, or servicing by uncertified or unauthorized personnel, and there are no other sources from which authorized parts or components or servicing from certified or authorized personnel may be obtained;
(ii) the proposed source possesses exclusive, limited rights in data, patent rights, copyrights, secret processes, or the control of basic raw material;
(iii) the proposed source is the provider under an existing “term contract” (see, definitions) and the procurement constitutes a sub award thereunder;
(iv) prior approval by a State or Federal funding agency;
(v) the executive director has determined, in accordance with a standardization program adopted by the authority, that only specified makes and models of technical equipment and parts will satisfy the authority's needs for additional units or replacement items and only one source is available; or
(vi) the goods or services are available through an existing contract which had been awarded through a competitive procurement method and a price or cost analysis establishes that the price is fair and reasonable.
Note:
With the exception of awards made under subparagraphs (i), (ii) and (iii) of this paragraph, the aggregate value of single source, unadvertised awards to any one firm or person shall not exceed $100,000 per year, absent board approval.
(5) All eligible contracts for the purpose of goods or services which are to be awarded on a single source basis, sole source basis or pursuant to any other method of procurement that is not a competitive procurement and where the aggregate consideration under the contract may reasonably be valued in excess of $1,000,000 and eligible amendments to contracts previously approved by the Comptroller where the value of the amendment is 10 percent or more of the contract amount previously approved by the Comptroller are subject to the prior review and approval of the New York State Comptroller. Please refer to section 2979-a of the Public Authorities Law and Part 206 of Title 2 NYCRR for relevant definitions and the process to be followed.
(o) Contract types.
(1) A firm fixed price (FFP) type contract should be used where there are no substantial uncertainties relating to cost, performance or schedule (lump sum and unit price contracts are examples of FFP-type contracts).
(2) Cost-reimbursement (CR) type contracts are generally appropriate for qualifications-based procurements and negotiated procurements based on a scope of services rather than detailed specifications.
(3) Cost plus percentage of cost type contracts, and cost plus percentage of construction cost type contracts are prohibited.
(4) Time and material (T&M) contracts are permitted only:
(i) after a determination that no other compensation arrangement is suitable; and
(ii) the contract or purchase order contains a price ceiling that the contractor exceeds at its own risk; and
(iii) all labor and equipment rates (including overhead and profit), are predetermined and set forth in the contract and materials are to be paid for at cost.
(p) Specifications.
(1) To permit the preparation and evaluation of bids on a common basis, specifications shall present a clear and accurate description of the desired technical requirements for materials, products or services. Further, the specifications shall state the criteria by which the authority shall determine whether the requirements have been satisfied.
(2) The specifications shall reflect the authority's actual needs and shall not contain features which unduly restrict competition.
(3) A brand name or equal description may be used when:
(i) it is impractical or uneconomical to make an accurate description of technical requirements; or
(ii) an adequate or more detailed description could not be provided, other than by inspection and analysis, in time for the procurement; and
(iii) the specification clearly sets forth the salient physical and functional characteristics of the brand name product which are essential to the authority's minimum requirements and will be used to evaluate proposed or equal substitutions; and
(iv) the specification includes the complete common generic identification of the brand name product, together with applicable model, make or catalog number, and address of the company.
(4) Or equal substitutions should be considered for acceptance where the authority determines that the proposed substitution is equal in all material respects to the brand-name product. Or equal substitutions should not be rejected on the basis of minor differences in design, construction or features which do not affect the suitability of the products for their intended use.
(5) Prior to developing acquisition specifications authority staff shall conduct a study of the market place to determine market availability to satisfy the intended acquisition. If a specification is in any way restrictive, a needs analysis must be prepared establishing justification for the specifications. Also, a market analysis must be prepared to document the efforts made in identifying the available market place.
(q) Small purchases.
(1) Small purchase acquisitions do not require board approval unless the term of such acquisition will continue in excess of one year.
(2) Formal bidding. Contracts for goods or services equal to or in excess of $50,000, but less than $100,000 may be awarded by the executive director or his designee, upon satisfaction of the following minimum requirements:
(i) Publication of a notice of procurement opportunity in the New York State Contract Reporter (NYSCR), and either advertisement of a notice of procurement opportunity in any other appropriate forum, or dissemination of a notice of procurement to at least three potential offerors by telephone or in writing.
(ii) Dissemination of detailed information regarding the proposed procurement, including but not limited to, terms and conditions of the contractual relationship and the scope of services to all interested potential offerors.
(iii) Receipt of competitive bids or proposals pursuant to sealed bidding procedures or negotiation procedures, as is applicable.
(iv) Examination of OGS NYS Commodity Index to determine whether the procurement may be obtained from that source on terms advantageous to the authority.
(v) Documentation of the procedures followed and report of same including identification of the budget line item, to the executive director or his designee.
(3) Informal bidding. Contracts for goods or services for:
(i) less than $100,000 may be awarded by the executive director or his/her designee; provided, however, that if such contract is a GBNRTC or NITTEC contract, it shall first be approved by its board of directors; or
(ii) less than $10,000 may be awarded by the general counsel, the chief financial officer, any general manager or director, the executive director of the GBNRTC or the executive director of NITTEC, or their respective designee (note, that any such delegation must be in writing), upon satisfaction of the following minimum requirements:
(a) if appropriate, examination of OGS NYS Commodity Index to determine whether the procurement may be obtained from that source on terms advantageous to the authority;
(b) at least three written or telephonic quotes must be solicited for purchases equal to or over $3,000 and under $50,000. Purchases under $3,000 may be made without quotes, if the procurement manager or her designee considers the prices to be fair and reasonable;
(c) for each procurement records shall be maintained which set forth: the names and addresses of the contractors or vendors solicited; the terms and prices quoted; whether the goods or service may be procured under the OGS NYS Commodity Index, and if so, the price;
(d) in the case of procurements of $3,000 or more, if three or more quotations cannot be obtained because there is not a sufficient number of suppliers able to meet the purchase requirements (including timely delivery), such facts shall be set forth in writing.
(e) approval of a small purchase contract award shall not be granted unless and until the foregoing written information has been reviewed and found to be acceptable. Approval may be indicated by dated signature authorization by the executive director or the authorized individual;
(f) price lists or catalogs may be used in obtaining three or more quotes.
(4) A written confirmation of the successful contractor's quotation, including price and relevant contract terms shall be obtained in the case of verbal quotes or offers, prior to award.
(5) In the event a single source or single bid selection is the subject of a small purchase under $50,000, authorization for the purchase must come from the executive director.
(r) Federal, State and county contract lists.
The State Office of General Services contract prices and county contract prices are deemed competitive prices. Contracts may be awarded based on the State or county contract price without additional competitive procedures. The United States General Services Administration (GSA) has identified specific contracts that the authority is authorized to use. Contracts maybe awarded based on the Federal contract price when allowed by the GSA. If the contract price available through the Federal, State or county price lists is lower than the lowest bid price after sealed bidding, formal bidding, or informal bidding, the bids shall be rejected and a contract awarded based upon the Federal, State or county contract price.
(s) Funding.
(1) In all cases where contracts are being funded by State or Federal funds, applicable regulations of the State or Federal authorities governing the award of such contracts shall be observed.
(2) The Federal Aviation Administration and the Federal Transit Administration each have specific criteria for the procurement of design-bid-build and design-build contracts. Please refer to the relevant advisory circular for specific requirements.
(3) The Federal Aviation Administration and the Federal Transit Administration each prohibit the use of in-State or local geographical preferences, with the exception of architectural and engineering services.
(4) The Federal Aviation Administration and the Federal Transit Administration require a cost analysis or a price analysis in connection with every procurement action.
(5) The Federal Transit Administration requires the use of part 31 of the Federal Acquisition Regulations with respect to pricing issues.
(6) The Federal Transit Administration has specific rules governing advance payments and progress payments. Advance payments are prohibited. Progress payments are permitted provided that title has been obtained. Please refer to FTA circular 4220.1F.
(7) No contract shall be awarded or obligation incurred for any purpose which involves the expenditure of money, in excess of the monies appropriated and available in the authority's budgets for said purpose, except as otherwise authorized by the board.
(t) Professional service contracts.
(1) The following guidelines apply to the procurement of consulting or professional services such as legal, audit, planning, testing, accounting, architectural, engineering or surveying services, except to the extent that the procurement of such services are governed by State or Federal regulations.
(2) Professional service contracts which do not exceed $100,000 and will not involve services to be rendered in excess of one year may be awarded following either the formal bidding or informal bidding small purchase guidelines set forth in subdivision (o) of this section, as is appropriate.
(3) The selection of professional service contractors shall be on a competitive basis, except that the board may waive competition by a two-thirds vote of the members in attendance at a meeting of the board, if it is in the best interests of the authority to do so. The standard of best interest of the authority may, but need not be based upon one or more of the following criteria for the selection of professional service contractors:
(i) confidentiality;
(ii) specialized expertise or unusual qualifications or services are obtainable from one source only;
(iii) historical relationship with the authority, the continuation of which will result in some economy advantage to the authority and will avoid duplication of costs;
(iv) specialized knowledge;
(v) lack of responsible competition, as validated pursuant to subdivision (k) of this section, supra;
(vi) nature, magnitude or complexity of services required;
(vii) lack of resources, support staff, specialized facilities or equipment;
(viii) short term or infrequent need for services; and
(ix) selection which is necessary as a result of emergency or exigency conditions.
(u) Disadvantaged business enterprises/minority women business enterprises/service disabled verteran-owned business.
(1) It is the desire of the board to promote and assist participation by DBEs, MBEs and WBEs and to facilitate a fair share of the awarding of contracts thereto.
(2) An updated list of all DBE certified firms in New York State may be obtained from the New York State Unified Certification Program website at www.biznet.nysucp.net. A directory of MWBE certified firms may be obtained from the New York State MWBE website at www.nylovesmwbe.ny.gov. A list of all SDVOB certified firms in New York State may be obtained from the New York State Office of Genreal Services website at http://www.ogs.ny.gov/Core/SDVOBA.asp. The procurement department shall be responsible for referencing such lists prior to the publication of a notice of procurement opportunity or informal solicitation to determine the availability of certified DBE, MBE and WBE entities.
(3) The Procurement Manager, EEO/diversitydevelopment shall ensure that the authority establishes appropriate goals for participation by MWBEs and SDVOBs in procurement contracts awarded by the authority and for the utilization of MWBEs and SDVOBs as subcontractors and suppliers by entities having procurement contracts with the authority. Statewide numerical participation target goals shall be established by the authority based on the findings of the most current disparity study.
(4) Every effort will be made to achieve the MWBE and SDVOB goals assigned to projects. The authority's procurement solicitation documents shall include MWBE and SDVOB goals as appropriate. These documents are advertised and posted on the authority's website. MWBE and SDVOB utilization will be monitored and reported by the procurement department with assistance from the engineering department.
(v) Confidentiality and conflicts of interest.
(1) Authority staff engaged in the procurement process shall ensure that proprietary information submitted by bidders and proposers, and source selection information, including the number or identity of offerors is not disclosed to any unauthorized person. In the event a request for such confidential information is made, the Office of General Counsel shall determine the appropriateness of disclosure.
(2) No procurement contracts shall be entered into with former commissioners, officers or employees of the authority except to the extent permitted by section 73 of the Public Officers Law and the authority Board of Commissioners' Code of Ethics.
(3) No procurement contracts shall be awarded to a firm to:
(i) prepare the work statement/specifications for purchase of supplies or a proposed public work when the firm is affiliated with another company whose business is related to the pending procurement. (In order to ensure objective contractor performance and eliminate any unfair competitive advantage, a contractor that develops or drafts specifications for a particular procurement shall be excluded from competing for and performing work under the directly ensuing procurement, unless the initial design contract was awarded under a competitive selection process); or
(ii) perform a study or work effort concerning a certain organization, technical field or geographic area when the firm has a business relationship or common interest with the organization, field or area to be studied.
(4) The files for procurement contracts covered by section 139-k of the State Finance Law must include the required information regarding persons or organizations retained to attempt to influence the procurement process. Any contracts that reasonably appear to be an attempt to influence the procurement process by persons or organizations other than those identified in the bid or proposal documents shall be recorded as required by section 139-k of the State Finance Law.
(w) Minimum contract requirements.
(1) The following types of provisions shall be contained in all goods and services contracts, except that any of the provisions listed which are inapplicable or unnecessary because of the nature or duration of the services to be performed, or goods to be supplied, the location or locations where they are to be performed or supplied, or the type of the compensation being paid therefor, need not be included:
(i) description of services or goods or the scope and extent of contract work;
(ii) compensation, delineating the contract price and method of payment or the rates and fees upon which compensation shall be based;
(iii) time for performance or date of completion, including when appropriate, dates for completion of significant tasks. The authority shall not enter into any contract for rolling stock or replacement parts with a period of performance exceeding five years inclusive of options;
(iv) liability of contractor; indemnification of authority;
(v) reports of contractor;
(vi) ownership of plans, drawings or other products of the performance of the service;
(vii) no assignments or subcontracts without the express prior written consent of the authority;
(viii) maintenance of records, accounts;
(ix) rights of inspection and audit of books and records;
(x) insurance requirements;
(xi) termination;
(xii) monitoring of the performance of services;
(xiii) the extent of subcontracting and subconsulting agreements;
(xiv) contract modification or change order requirements;
(xv) notice of claim/disputes;
(xvi) use of authority's supplies, facilities or property;
(xvii) use of authority's personnel, and certification of key personnel and facilities necessary to accomplish the work within the time required; and
(xviii) all provisions required to be included in the contracts of the authority by Federal, State or local laws, ordinances, codes, rules or regulations, including when appropriate, notice to the contractor that the proposed procurement action will be subject to State and/or Federal funding regulations and approval.
(x) Contract modifications, change orders and supplemental agreements.
(1) Change orders, supplemental agreements or other contract modifications which alter a procurement contract shall be approved by either the board, the executive director, the general counsel, the chief financial officer, the executive directors of GBNRTC and NITTEC, a general manager, or director as is appropriate and as is limited by the levels of authorization outlined in subdivision (n) of this section, small purchases.
(2) The authority shall perform a cost analysis unless price reasonableness can be established on the basis of a catalog or market price of a commercial product sold in substantial quantities to the general public or on the basis of prices set by law or regulation.
(3) Profit shall be negotiated as a separate element, taking into consideration:
(i) complexity of the work;
(ii) the risk borne by the contractor;
(iii) the contractor's investment;
(iv) the degree of subcontracting;
(v) the contractor's past performance; and
(vi) industry profit rates for similar work.
(4) Any change order, supplemental agreement or other contract modification shall contain a justification assuring that the proposed action is an appropriate alternative, under the circumstances, to a competitive procurement.
(5) The Federal Transit Administration prohibits cardinal changes, defined as significant changes in contract work that cause major deviations from the original purpose of the work or the intended method of achievement, or cause revisions of contract work so extensive, significant, or cumulative that, in effect, the contractor is required to perform very different work from that described in the original contract. Please refer to FTA circular 4220.1F for further information.
(y) Emergency or exigency.
(1) The general counsel, chief financial officer, executive directors of GBNRTC and NITTEC and general managers and directors, or their designees, are authorized to declare an emergency or exigency and to make awards not to exceed $4,999, per occurrence, and shall report same to the executive director at the earliest opportunity, as described in paragraph (5) of this subdivision. The delegation of this authority must be in writing and the designee must report directly to the authorized individual.
(2) In the event the authorization limit set forth in paragraph (1) of this subdivision will be exceeded, the general counsel, chief financial officer, executive directors of the GBNRTC and NITTEC, directors or general managers shall contact the executive director or in his absence the chairman of the board. The executive director is authorized to declare an emergency or exigency and to make awards not to exceed $100,000, per occurrence and shall report same to the chairman at the earliest opportunity, as described in paragraph (5) of this subdivision.
(3) In the event the authorization limit set forth in paragraph (2) of this subdivision will be exceeded, the executive director shall contact the chairman of the board, or in his absence, the vice chairman of the board. The chairman (or if applicable, the vice chairman), is authorized to declare an emergency or exigency and to make awards which may exceed $100,000.
(4) In the event the final contract amount owed is equal to or greater than $100,000, the individual responsible for declaring the emergency or exigency shall prepare and submit a “ Declaration of Emergency/Exigency Report” to the executive director for submittal to the board at the earliest possible board meeting. The “Single Source Validation Report” form, in section 1159.5(f) of this Part, may be used. At a minimum, the “Declaration Report” shall set forth the following information:
(i) a description of the emergency or exigent circumstances, or the unforeseen circumstance;
(ii) a description of the perceived damages or threat of harm or loss, or the perceived interruption to or obstruction of operation or provision of service;
(iii) a description of the preventative action taken;
(iv) a listing of all authority personnel involved in the response or the occurrence;
(v) an explanation of the steps taken to procure goods or services and the rationale for the award and procurement decisions made by the individual;
(vi) identification of the source of funds used to pay for the response;
(vii) a request for board ratification of the response to the emergency or exigency.
(5) In the event the final contract amount is less than $100,000, the individual responsible for declaring the emergency or exigency shall prepare and submit a “Declaration of Emergency/Exigency Report” to the executive director at the earliest possible time, documenting the information outlined in subparagraphs (4)(i) through (vi) of this subdivision.
(z) Expediency.
(1) The provisions of this article shall be implemented under special and limited circumstances as determined by a two-third's vote of the members in attendance at a meeting of the board, based on the best interests of the authority upon request by staff seeking board waiver of one or more procurement guidelines. The criteria for establishing best interests of the authority for the purposes of this subdivision may be found in paragraph (q)(3) of this section.
(2) The request shall include but not be limited to the following:
(i) statement of objective and rationale for expediency;
(ii) course of action outlining:
(a) step-by-step procedure to accomplish the objective;
(b) specific guideline waiver request(s);
(c) justification and anticipated benefit to the authority;
(iii) request for authorization to proceed.
(aa) Waiver of competition pursuant to section 2879 of the Public Authorities Law.
Pursuant to section 2879 of the Public Authorities Law the board may waive competition for the purchase of goods or services from small business concerns or lose certified as minority- or women-owned business enterprises, or goods or technology that recycled or manufactured, in an amount not-to-exceed $200,000. Such a waiver may only be granted for non-federally funded purchases and shall require a two-thirds vote of the members in attendance at a meeting of the board.
(ab) Records retention.
Procurement records shall be retained in accordance with the New York State Records Retention Manual. Every procurement file shall contain, at a minimum, records detailing:
(1) the rationale for the method of procurement;
(2) the rational for the selection of contract type;
(3) reasons for contractor selection or rejection; and
(4) the basis for the contract price.
(ac) Procurement reporting.
(1) The procurement department shall ensure that on an annual basis, the authority shall prepare, approve and make publicly available, a report summarizing the authority's procurement activity for the period of the report. The report shall include a listing of all contracts of $5,000, or more, the selection process used to select such contractors and the status of existing procurement contracts.
(2) On an annual basis the office of general counsel shall prepare and submit for board approval a report on procurement guidelines. This report shall include a copy of the existing guidelines, an explanation of the guidelines and any amendments thereto since the last annual report. This report may be made a part of any other reports that the authority is required to make.
(3) This information shall be submitted annually through the New York State Public Authorities Data Report to the New York State Division of the Budget, and copies thereof to the New York State Department of Audit and Control, the Senate Finance Committee, the Assembly Ways and Means Committee and the Executive Officers and Legislatures of Erie and Niagara County.
(ad) Split procurements.
The splitting of procurements for the purpose of circumventing the requirements of more complex procurement procedures or a higher level of authority or decisionmaking is prohibited.
(ae) Updating, monitoring and control of procurement guidelines and procedures.
(1) The procurement department and the office of general counsel shall ensure that the procurement guidelines and procedures are submitted to the board for review, updating (if deemed necessary), and reauthorization, on an annual basis.
(2) The department of internal audit shall develop and implement a program to monitor the authority's compliance with the procurement guidelines and procedures.
(3) The procurement department shall develop and implement a control system to ensure that the guidelines and procedures are being followed.
(af) Utilities, surplus and second-hand supplies.
(1) Utilities and utility services such as telephone, water, electric power and natural gas (except for those utilities and utility services which are competitively procured), may be purchased upon the authorization of the CFO without board approval, provided that the cumulative dollar amount for such purchases for the year is within the amounts budgeted for such utilities or services, as approved by the board.
(2) The authority may purchase surplus and second hand supplies, materials or equipment from the Federal Government, the State of New York or any political subdivision municipality, or district without advertising or the solicitation of bids, proposals or quotations, however, purchases involving an expenditure of $100,000 or more shall require board approval.
21 CRR-NY 1159.4
Current through July 15, 2021
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