PROCUREMENT GUIDELINES OF THE NIAGARA FRONTIER TRANSPORTATION AUTHORITY, AND NIAGARA FRONTIER TRANSIT METRO SYSTEM, INC. All references to “the NFTA” contained in Part 1159 are hereby deleted and replaced with “the Authority”.

All references to “public work” contained in Part 1159 are hereby deleted and replaced with “Public Work”.

All references to “public works” contained in Part 1159 are hereby deleted and replaced with “Public Works”.

Section 1159.1 is hereby amended as follows:

Scope. Set forth herein are comprehensive guidelines established for the purpose of governing the procurement of goods and services by the Niagara Frontier Transportation Authority, and Niagara Frontier Transit Metro System, Inc. (together, the Authority). The Greater Buffalo-Niagara Regional Transportation Council ("GBNRTC") and the Niagara International Transportation Technology Coalition ("NITTEC"), for which the Authority serves in a limited capacity as “host agency,” has agreed to procure goods and services consistent with these guidelines.

Clause (1) of subsection (a) of Section 1159.3 is hereby amended as follows:

(1) The publication of a Notice of Procurement Opportunity in any of the following forums, as is appropriate: newspapers of general circulation in Erie and Niagara Counties; regional, state, national and international trade journals and magazines; newsletters, MBE/WBE/DBE/SDVOB publications that may exist from time to time and the authority website.

Subsection (e) of Section 1159.3 is hereby amended as follows:

(e) Contract for goods or services. Any authorized written agreement; including contracts, purchase orders, letter agreements or memoranda of understanding, which creates a mutually binding legal relationship, which obligates the seller to furnish (or dispose of) products services or Public Works, and the buyer to pay for same.

Subsection (f) of Section 1159.3 is hereby amended as follows:

(f) Contractor. Any individual (or group of individuals), business, firm, union, club, organization, or other entity obligated to sell, furnish, provide or render goods or services to the Authority pursuant to a contract including sellers, consultants, vendors, suppliers and construction contractors.

Subdivision (k) of Section 1159.3 is hereby amended as follows:

(k) Emergency. Danger or threat of harm to life, health, safety, environment or property which requires immediate preventative action; provided, that an emergency procurement shall be made with such competition as is practicable under the circumstances and a written determination of the basis for the emergency and for the selection of the particular contractor shall be included in the procurement file. Emergency is a subcategory of “Sole Source.”

Subsections (m) through (aa) of Section 1159.3 are hereby renumbered to be subsections (n) through (ab).

A new subsection (m) is hereby added to Section 1159.3 as follows:

(m) Expediency. Prospect of an outcomes not in the “best interest” of the Authority arising from adherence to the means and method of the procurement prescribed herein or, alternatively, adherence to these Guidelines is impractical or inappropriate given all the existing circumstances, none of which were foreseeable or controllable by the Authority. Expediency is a subcategory of “Sole Source.”

The preamble of subsection (u) of Section 1159.3 is hereby amended as follows:

(u) Procurement. The buying, purchasing, renting, leasing, or other acquisition by the Authority, of products, services, or Public Works, excepting:

Subsection (v) of Section 1159.3 is hereby amended as follows:

(v) Product. Equipment, materials and supplies including, but not limited to, printing, insurance (except for health / welfare-related insurance required under a collective bargaining agreement pursuant to which the Authority is bound) and leases of property excluding land or interests in land.

Subsection (w) of Section 1159.3 is hereby amended as follows:

(w) Public work. The construction, demolition, repair, rehabilitation, restoration or maintenance of any building, roadway, structure, fixture, facility or improvement owned by, or leased to, the Authority and the Authority or Metro must be a party to the related contract. For the avoidance of doubt, a Public Work does not include the routine operation, repair, or maintenance of any existing public structure, building, or real property.

Subsection (z) of Section 1159.3 is hereby amended as follows:

(z) Responsible. A potential contractor is responsible if it can demonstrate that it has the capability to perform fully and successfully under the terms of the proposed contract, taking into account the offeror's technical and financial capability, and the integrity and reliability necessary to ensure good faith performance.

Subsections (ac) through (an) of Section 1159.3 are hereby renumbered to be subsections (ad) through (ao).

A new subsection (ac) is hereby added to Section 1159.3 amended as follows:

(ac) Service-disabled veteran-owned small business. A business that is at least fifty-one percent (51%) owned and controlled by a service-disabled veteran, and the daily management operations of such business are controlled by a service-disabled veteran or caregiver of a service-disabled veteran, such business must be a “small business,” as defined by the Small Business Administration.

Subsection (ah) of Section 1159.3 is hereby amended as follows:

(ah) Small purchase informal bidding. A small purchases method of procuring goods or services under $ 50,000.00, based upon competitive selection which may be made on the basis of written or telephonic quotes and in accordance with the guidelines set forth in Article 15(C); provided, however, that procurement requirements shall not be artificially divided in order to constitute a small purchase.

Subsection (ai) of Section 1159.3 is hereby amended as follows:

(ai) Sole source. A general category of awards where competition is waivable, or is not feasible under the circumstances, as determined by the Procurement Department and authorized by the Executive Director. The included subcategories are: single bid; exigency; expedience, and single source.

The beginning of subsection (a) of Section 1159.4 is hereby amended as follows:

Board approval is required for each of the following:

Clause (1) of subsection (a) of Section 1159.4 is hereby amended as follows:

(1) All Contracts for Goods or Services in the actual or estimated value of One Hundred Thousand Dollars ($100,000.00) or more; and

Subsection (e) of Section 1159.4 is hereby amended to add the following language immediately after the first paragraph thereof:

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, a building cleaner, janitor, gardener, groundskeeper, window cleaner, and occupations relating to the collection of garbage or refuse, and to the transportation office furniture and equipment, and the transportation and delivery of fossil fuel.

The first paragraph of clause (3) of subsection (o) of Section 1159.4 is hereby amended as follows:

(3) Informal bidding. Contracts for goods or services for (i) less than One Hundred Thousand Dollars ($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 Ten Thousand Dollars ($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:

The title of subsection (s) of Section 1159.4 is hereby amended as follows:

Disadvantaged business enterprises / minority and women business enterprises / service-disabled disabled veteran-owned business.

Clause (2) of subsection (s) of Section 1159.4 is hereby amended as follows:

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 General Services website at 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 information solicitation to determine the availability of certified DBE, MBE, WBE and SDVOB entities.

Subsection (ab) of Section 1159.4 is hereby renumbered to be new subsection (ao) of Section 1159.3.

Subsection (ac) of Section 1159.4 is hereby renumbered to be new subsection (ap) of Section 1159.3.

Subsections (ad) through (af) of Section 1159.4 are hereby renumbered to be subsections (ab) through (ad) of Section 1159.4.

Clause (2) of subsection (af) of Section 1159.4 is hereby amended as follows:

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 One Hundred Thousand Dollars ($100,000) or more shall require Board approval.

The first paragraph of subsection (a) of Section 1159.5 is hereby amended as follows:

In addition to the requirements imposed by (i) Sections 73 and 74 of the New York Public Officers Law, which govern outside business/professional activities and conflicts of interest, respectively, and apply to all employees of the Authority, (ii) Authority Policy 01-01-04 (Code of Ethics) and (iii) the Board of Commissioners Code of Ethics, the Authority will assure that ethical conduct is maintained by adhering to the following requirements:

Clause 2 of subsection (b) of Section 1159.5 is hereby amended as follows:

2. Post-Bid/Proposal Opening Protests. A protest to the acceptance or rejection of any or all offers or bids to a contract, or to the award thereof, or to any such action proposed or intended by the Authority must be received in writing by the Executive Director no later than five (5) business days after the protesting party first learned, or reasonably ought to have learned, of the required Board action or, if the Board action is not required, any proposed or intended action to which he/she protests.

All references to “Metro” contained in subsection (g) of Section 1159.5 are hereby deleted and replaced with “NFTA and/or Metro”.

No person is likely to object to the adoption of the rule, as written, because the changes made are technical in nature and limited to (i) memorializing recent changes in the law with respect to contracting and procurement opportunities for Service-Disabled Veteran-Owned Businesses, with which the NFTA is legally required to comply, (ii) reflecting an immaterial increase in the purchasing authority of certain members of management, (iii) making conforming changes for purposes of consistency throughout the rule and (iv) making clarifying changes that are expected to be beneficial to individuals who participate in the NFTA contracting and procurement processes. In addition, the changes made to the referenced rule are not expected to adversely impact jobs or employment opportunities, nor are they expected to adversely impact any business or industry that participates, or is eligible to participate, in the NFTA contracting and/or procurement processes.

1. Nature of impact:

The Niagara Frontier Transportation Authority and Niagara Frontier Transit Metro System, Inc. (together, the NFTA) are amending 21 NYCRR Part 1159, Sections 1159.1, 1159.3, 1159.4 and 1159.5 in order to (i) memorialize recent changes in related law with respect to contracting opportunities for Service-Disabled Veteran-Owned Businesses, with which the NFTA is legally required to comply, (ii) reflect an increase in the purchasing authority of ce11ain members of management, (iii) make conforming changes for purposes of consistency and (iv) make clarifying changes that are expected to be beneficial to individuals who participate in the NFTA contract and procurement processes.

The changes to the referenced regulation are not expected to adversely impact jobs or employment opp011unities as the overall level of NFTA contracting and procurement opportunities will not be adversely impacted by the changes made.

2. Categories and numbers affected:

The changes made to the referenced regulation are not expected to adversely impact any business or industry that participates, or is eligible to participate in, the NFTA contracting and procurement processes. The changes are not expected to result in any competitive disadvantage to any business or industry that participates in the NFTA contracting and procurement processes. In fact, certain changes made may result in an increase in NFTA contracting and procurement opportunities for Service-Disabled Veteran-Owned Businesses.

3. Regions of adverse impact:

No region of New York State is expected to be adversely impacted by the changes made to the referenced regulation.

4. Minimizing adverse impact:

The changes made to the referenced regulation are not expected to adversely impact any business or industry that participates, or is eligible to participate, in the NFTA contracting and/or procurement processes as the changes made apply to all businesses and industries equally and compliance is not expected to impose additional costs on any business or industry that participates, or is eligible to participate in the NFTA contracting/or procurement processes.

5. Self-employment opportunities:

The NFTA is currently unaware of any adverse impact on self-employment as a result of the ci1anges made to the referenced regulation.