Chapter 13 - PROCUREMENT

Section 310.

Section 310.

  §  310.  Scope.  Except  as  otherwise  provided in this charter or by
statute,
  1. all goods, services or construction to be paid for out of the  city
treasury  or out of moneys under the control of or assessed or collected
by the city shall be procured as prescribed in this  chapter;  provided,
however,  that  for  (i)  the  office  of  an independently elected city
official, or (ii) the council, where  the  provisions  of  this  chapter
require  action by the mayor or an appointee of the mayor in regard to a
particular procurement except for mayoral action pursuant to subdivision
c of section three hundred thirty-four, such action shall not  be  taken
by  the  mayor  or  such  appointee  of  the  mayor,  but shall be taken
respectively, by (i) such elected official or (ii) the  speaker  of  the
council, or another member of the council designated by the speaker with
the approval of a majority of the members of the council, and
  2.  all  goods,  services or construction to be procured by an entity,
the majority of the members of whose board are  city  officials  or  are
individuals  appointed directly or indirectly by city officials shall be
procured as prescribed in this chapter; provided,  however,  that  where
the  provisions  of  this  chapter  require  action  by  the mayor or an
appointee of the mayor in regard to a particular procurement except  for
mayoral  action  pursuant  to  subdivision  c  of  section three hundred
thirty-four, such action shall  not  be  taken  by  the  mayor  or  such
appointee  of  the  mayor,  but shall be taken by the governing board of
such entity or by the chair of the board or chief executive  officer  of
such  entity  pursuant  to a resolution adopted by such board delegating
such authority to such officer.

Section 311.

Section 311.

  §  311.  Procurement  Policy  Board.  a.  There shall be a procurement
policy board  consisting  of  five  members,  three  of  whom  shall  be
appointed  by  the  mayor  and  two  of  whom  shall be appointed by the
comptroller. Each member shall serve at the pleasure of  the  appointing
official.   Members  shall  have  demonstrated  sufficient  business  or
professional experience to discharge the  functions  of  the  board.  At
least  one member appointed by the mayor and one member appointed by the
comptroller shall not hold any other public office or public employment.
The remaining members shall not be prohibited  from  holding  any  other
public office or employment provided that no member may have substantial
authority  for  the  procurement  of  goods,  services  or  construction
pursuant to this chapter. The mayor shall designate the chair.
  b. The board shall promulgate  rules  as  required  by  this  chapter,
including rules establishing:
  1.   the  methods  for  soliciting  bids  or  proposals  and  awarding
contracts, consistent with the provisions of this chapter;
  2. the manner in which agencies shall administer contracts and oversee
the performance of contracts and contractors;
  3. standards and procedures to be used in determining whether  bidders
are responsible;
  4.  the  circumstances  under  which  procurement  may be used for the
provision of technical, consultant or  personal  services,  which  shall
include,  but  not  be  limited  to,  circumstances  where  the  use  of
procurement is (a) desirable to  develop,  maintain  or  strengthen  the
relationships  between  non-profit  and charitable organizations and the
communities where services are to be provided,  (b)  cost-effective,  or
(c)  necessary to (i) obtain special expertise, (ii) obtain personnel or
expertise not available in the agency, (iii) to provide  a  service  not
needed  on  a  long-term  basis,  (iv)  accomplish work within a limited
amount of time, or (v) avoid a conflict of interest;
  5. the form and content of the files which agencies  are  required  to
maintain  pursuant  to  section three hundred thirty-four and such other
contract records as the board deems necessary and appropriate;
  6. the time schedules within which city officials shall be required to
take the actions required by this  chapter,  sections  thirteen  hundred
four  and thirteen hundred five, or by any rule issued pursuant thereto,
in order for contracts to  be  entered  into,  registered  or  otherwise
approved,  and  time  schedules  within which city officials should take
action pursuant  to  any  other  provision  of  law  or  rule  regarding
individual   contracts,   which  rules  shall  specify  the  appropriate
remedies, including monetary remedies, for failure to meet the terms  of
any applicable schedule for taking such actions. The board may set forth
exceptions  to  these  rules.  The  promulgation  of rules defining time
schedules  for  actions  by  the  division  of  economic  and  financial
opportunity  of  the  department  of  small  business  services  and the
division of labor services of such department shall require the approval
of each division, as such rules pertain  to  actions  required  of  such
divisions, prior to the adoption of such rules by the procurement policy
board;
  7.  procedures  for  the  fair  and  equitable  resolution of contract
disputes; and
  8. rules relating to the making of small purchases in  a  manner  that
will  advance  the purposes of the program for minority- and women-owned
business  enterprises  and  emerging  business  enterprises  established
pursuant to subdivision b of section thirteen hundred four.
  9. such other rules as are required by this chapter.
  c.  The  board  may  promulgate  such  additional  rules, policies and
procedures consistent with and as may  be  necessary  to  implement  the

provisions  of  this chapter. The board shall annually review all of its
rules, policies and procedures and make  such  revisions  as  the  board
deems  necessary  and  desirable. Nothing herein shall prevent the board
from  reviewing  its  rules,  policies  and  procedures, and making such
revisions as the board deems necessary and desirable, more than once per
year.
  d. The board shall promulgate  rules  to  facilitate  the  timely  and
efficient  procurement  of  client  services,  and  to  ensure that such
contracts are administered in the best interests of the city. Such rules
shall include but not be limited to: (i) rules authorizing city agencies
to meet annual financial audit requirements through  the  acceptance  of
consolidated  audits  across  multiple  contracts and multiple agencies;
(ii) rules providing for expedited  renewal  or  extension  of  existing
client  services  contracts;  (iii)  rules mandating the promulgation of
draft  and  final  contract  plans  by  all  agencies  procuring  client
services.
  e.  The board shall submit an annual report to the mayor, comptroller,
and  council  setting  forth  the  professional  standards  for   agency
contracting  officers  adopted  by  the  mayor, including any applicable
certification process.
  f. In the promulgation of any rules pertaining to the  procurement  of
construction  or  construction related services, the board shall consult
with any office designated by the mayor to provide overall  coordination
to the city's capital construction activities.
  g. The board shall make such recommendations as it deems necessary and
proper  to  the  mayor  and  the  council  regarding  the  organization,
personnel structure and management of the  agency  procurement  function
including,  where  appropriate,  recommendations  for  revision  of this
charter or local laws affecting procurement by the  city.  Such  reports
may  include  recommendations regarding agency use of advisory groups to
assist in preparation of bids or proposals and selection of contractors.
The board shall also review  the  form  and  content  of  city  contract
documents  and  shall  submit  to the law department recommendations for
standardization and simplification of contract language.
  h. The board shall not exercise authority with respect to the award or
administration of any  particular  contract,  or  with  respect  to  any
dispute, claim or litigation pertaining thereto.

Section 312.

Section 312.

  §  312. Procurement; general rule and exceptions. a. Prior to entering
into, renewing, or extending a contract valued at more than two  hundred
thousand dollars to provide standard or professional services, including
agency  task  orders  pursuant to multi-agency task order contracts, but
excluding emergency  procurements,  government-to-government  purchases,
and  the procurement of legal services or consulting services in support
of current or  anticipated  litigation,  investigative  or  confidential
services,  an  agency  shall follow the procedure established herein and
the mayor shall comply with the  reporting  requirements  set  forth  in
paragraph 8.
  1.  Prior to issuing an invitation for bids, request for proposals, or
other solicitation, or renewing or extending an existing  contract,  the
agency  shall  determine whether such contract is the result of or would
result in the displacement of any city employee within the  agency.  For
the  purpose  of  this section, "displacement" shall mean a reduction in
the number of funded positions,  including  but  not  limited  to,  that
resulting  from  the  attrition;  layoff; demotion; bumping; involuntary
transfer to a new class, title, or location; time-based  reductions,  or
reductions  in  customary  hours of work, wages, or benefits of any city
employee.
  a. There shall be a presumptive determination that a proposed contract
is the result of or would result in displacement if any of the following
events occurred in the three year period preceding the date  the  agency
intends  to issue an invitation for bids, request for proposal, or other
solicitation, or renew or extend an existing contract:
  (1) the displacement of a city employee within the agency who performs
or has performed the services sought by  the  proposed  contract  and/or
services of a substantially similar nature or purpose; or
  (2)  the  announcement  of  spending  reductions  in connection with a
budgetary program, including but not limited to a Program  to  Eliminate
the Gap, that could result or has resulted in the displacement of a city
employee  within  the  agency who performs or has performed the services
sought by the proposed  contract  and/or  services  of  a  substantially
similar nature or purpose; or
  (3)  any  other  statement  by  an  agency  or the mayor of a specific
anticipated employment action that could result or has resulted  in  the
displacement  of  a  city employee within the agency who performs or has
performed the services sought by the proposed contract  and/or  services
of a substantially similar nature or purpose.
  b.  If  the  agency  determines  that displacement would not occur, it
shall include a certification to that effect, signed by the agency head,
in  any  invitation  for  bids,  request   for   proposals,   or   other
solicitation,   or   with   any  contract  renewal  or  extension.  Such
certification shall detail the basis upon which  the  agency  determined
that  displacement would not occur, construing broadly the nature of the
services sought and providing information including but not limited  to:
(i)  whether  any civil service title and/or job title within the agency
currently  performs  the  services  solicited  and/or  services   of   a
substantially  similar  nature or purpose, the names of such titles, and
the extent to  which  agency  employees  within  such  titles  currently
perform  such  services;  (ii)  whether  the  solicited services expand,
supplement, or replace existing services,  and  a  detailed  description
comparing  the  solicited  services  with  such existing services; (iii)
whether there is capacity within the  agency  to  perform  the  services
solicited  and,  if  there  is  no such capacity, a detailed description
specifying the ways in which the agency lacks such  capacity;  (iv)  for
the  term of the proposed contract, the projected headcount of employees
within such  titles  or  employees  who  perform  such  services  and/or

services   of  a  substantially  similar  nature  or  purpose;  and  (v)
confirmation that none of the events set forth in subparagraph a of this
paragraph occurred within the agency in the three year period  preceding
the  date  such  agency intends to issue an invitation for bids, request
for proposal, or other solicitation, or  renew  or  extend  an  existing
contract.
  c.  If the agency determines that displacement would occur, the agency
shall  determine  the  costs  incurred  and  the  benefits  derived   in
performing  the  service,  consistent  with the scope and specifications
within the solicitation, renewal, or extension, with city employees, and
shall submit such analysis, with all supporting documentation, prior  to
issuance  of  any  solicitation  or  entry  into any contract renewal or
extension, to the comptroller.
  2. Immediately upon receipt of bids, proposals, and other solicitation
responses, or prior to the renewal or extension of an existing contract,
the agency shall submit such  determination,  analysis,  and  supporting
documentation   to   the  council  and  to  the  appropriate  collective
bargaining representatives representing employees who would be  affected
pursuant to paragraph 1 of subdivision a of this section.
  3.  Prior  to  award  of  a  contract, a renewal, or an extension, the
agency shall perform a comparative analysis of the costs expected to  be
incurred  and  the  benefits  expected to be derived from entering into,
renewing, or extending a contract with the  proposed  vendor,  based  on
such  vendor's  best  and final offer, and such agency's analysis of the
costs incurred and the benefits derived from providing the service  with
city  employees.  If  the agency head intends to award, renew, or extend
the contract, he or she shall submit the reasons therefor, together with
such analysis, and all supporting documentation, to the comptroller, the
council,  and  the  appropriate  collective  bargaining  representatives
representing  employees who would be affected pursuant to paragraph 1 of
subdivision a of this section.
  4. The council may, within thirty days after receipt of such  reasons,
analysis, and supporting documentation hold a hearing on this matter. No
contract  award,  renewal,  or  extension  shall  be  made  prior to the
expiration of this thirty-day period or a council hearing, whichever  is
sooner.
  5.  a.  All  cost and comparative analyses required under this section
shall be conducted in accordance with standard methodology of the office
of  management  and  budget,  and  consistent  with  the  rules  of  the
procurement  policy  board,  as  both  are  modified  herein, subject to
further modification by local  law.  Such  analyses  shall  include  all
reasonable  costs  associated  with  performing  the  service using city
employees and  all  reasonable  costs  associated  with  performing  the
service under the proposed contract or contract renewal or extension.
  b.   Such   analyses   shall   further   include   the  total  number,
qualifications, job descriptions, and titles  of  all  personnel  to  be
employed  by  the vendor under the proposed contract or contract renewal
or extension, as well as the nature and cost of salaries and benefits to
be provided to such personnel.
  c. Such analyses shall further include, but not  be  limited  to,  the
cost  of  employee  supervision directly related to the provision of the
service,   vendor   solicitation,   contract    preparation,    contract
administration, monitoring and evaluating the contractor, capitalization
of  equipment  over the period such equipment shall be in use, supplies,
the cost of providing the equivalent quantity and quality of service  by
city  employees  compared  to  the  cost  of  providing  such service by
contract, based upon the best and final offer of  the  proposed  vendor,

and  such  other factors as will assist in arriving at full and accurate
cost determinations and comparisons.
  6.  The  reasons  given to award, renew, or extend the contracts shall
include all factors that have been  considered  in  determining  whether
contracting  for  this  service  is  in  the  best interest of the city,
whether or not such reasons are contained within the cost or comparative
analyses. Such factors  shall  include,  but  not  be  limited  to,  the
potential  for  contractor  default,  the  time  required to perform the
service, and the quality of the service to be delivered.
  7. The mayor or his or her designee may prepare and implement  a  plan
of  assistance for displaced city employees, which may include, but need
not be limited to,  training  to  place  such  employees  in  comparable
positions within the contracting agency or any other agency. The cost of
such  assistance plan may be included within the cost of contracting-out
in the cost and comparative analyses.
  8. a. For the purposes of  this  paragraph,  "agency"  means  a  city,
county,  borough  or other office, position, administration, department,
division, bureau, board, commission,  authority,  corporation,  advisory
committee  or other agency of government, the expenses of which are paid
in whole or in part from the city treasury, and shall include but not be
limited to, the  department  of  education,  the  health  and  hospitals
corporation,  and  the  New  York  city housing authority, but shall not
include any court, or any local development corporation or other not for
profit corporation or  institution,  including  such  a  corporation  or
institution maintaining or operating a public library, museum, botanical
garden,  arboretum, tomb, memorial building, aquarium, zoological garden
or similar facility.
  b. The mayor shall, no later than July 31st of each year, produce  and
publish  on  the  mayor's office of contract services website a plan and
schedule for each agency detailing the anticipated  contracting  actions
of  each such agency for the upcoming fiscal year. The plan and schedule
shall include: (i) information specific to each  prospective  invitation
for  bids,  request  for proposal, or other solicitation, including, but
not limited to, the nature of services sought, the term of the  proposed
contract,  the method of the solicitation the agency intends to utilize,
the anticipated fiscal year quarter of  the  planned  solicitation,  the
civil  service  and/or  job  titles  within  the  agency who perform the
services sought and/or services of a  substantially  similar  nature  or
purpose,  if  any, and the headcount of employees within such titles who
perform such services; and (ii) information specific  to  each  proposed
contract  renewal  or  extension,  including,  but  not  limited to, any
modifications sought to the nature of the services performed  under  the
contract,  the  term  of  the proposed renewed or extended contract, the
reason(s) the agency intends to renew or extend such contract, the month
and year of the expiration of the existing contract, the  civil  service
and/or  job  titles  within  the  agency who perform the services sought
and/or services of a substantially similar nature or  purpose,  if  any,
and  the  headcount  of  employees  within  such titles who perform such
services.
  c. If an agency intends to issue an invitation for bids,  request  for
proposal,  or  other  solicitation,  or  renew  or  extend  an  existing
contract, but the mayor fails to include  such  prospective  invitation,
request,  solicitation,  renewal  or extension in the plan and schedule,
the mayor shall provide public notice  sixty  days  before  such  agency
issues  such  invitation,  request, or solicitation, or enters into such
renewal or extension. Such notice, which shall be posted on the  mayor's
office  of  contract  services  website  and  in  the city record, shall
include: (i) information specific  to  the  prospective  invitation  for

bids,  request  for  proposal, or other solicitation, including, but not
limited to, the nature of services sought,  the  term  of  the  proposed
contract,  the method of the solicitation the agency intends to utilize,
the  civil  service  and/or job titles within the agency who perform the
services sought and/or services of a  substantially  similar  nature  or
purpose,  if  any, and the headcount of employees within such titles who
perform such services; or (ii)  information  specific  to  the  proposed
contract  renewal  or  extension,  including,  but  not  limited to, any
modifications sought to the nature of the services performed  under  the
contract,  the  term  of  the proposed renewed or extended contract, the
reason(s) the agency intends to renew or extend such contract, the civil
service and/or job titles within the agency  who  perform  the  services
sought  and/or services of a substantially similar nature or purpose, if
any, and the headcount of employees within such titles who perform  such
services.
  b. 1. Except as provided for in sections three hundred fourteen, three
hundred fifteen and three hundred sixteen, contracts shall be awarded by
competitive  sealed  bidding  under  such  rules as shall be made by the
procurement policy board, except that, in a special case as  defined  in
subdivision  b of this section, the head of an agency proposing to award
such contract may  order  otherwise  in  accordance  with  policies  and
procedures established by the procurement policy board.
  2.  A  determination  by  the  head  of  an  agency  to use other than
competitive sealed bidding except as  provided  for  by  sections  three
hundred  fourteen  and  three  hundred sixteen shall be made in writing,
stating the reasons why competitive sealed bidding is not practicable or
not advantageous and why the method of procurement selected pursuant  to
section three hundred seventeen is the most competitive alternative that
is  appropriate  under  the  circumstances. The head of the agency shall
include the determination or a  summary  of  the  determination  in  the
notice of solicitation, or for an emergency procurement in the notice of
award,  required  to  be  published  pursuant  to  section three hundred
twenty-five of this chapter.
  c. 1. For the purposes of this chapter, the term "special case"  shall
be  defined  as a situation in which it is either not practicable or not
advantageous to the city to use competitive sealed bidding  for  one  of
the following reasons:
  i.  specifications cannot be made sufficiently definite and certain to
permit selection based on price alone;
  ii. judgment is required in evaluating competing proposals, and it  is
in  the  best  interest  of  the  city  to require a balancing of price,
quality, and other factors;
  iii. the good, service or construction to  be  procured  is  available
only from a single source;
  iv.   testing  or  experimentation  is  required  with  a  product  or
technology, or a new source for a product or technology, or to  evaluate
the service or reliability of such product or technology; or
  v.  such  other  reasons  as defined by rule of the procurement policy
board.
  2. The procurement policy board may provide by rule that it is  either
not  practicable or not advantageous to the city, for one of the reasons
set forth in paragraph one of this subdivision, to procure  a  specified
type of good, service or construction by competitive sealed bidding.

Section 313.

Section 313.

  §  313.    Competitive sealed bidding. a.  The term competitive sealed
bidding shall mean a method of procurement where the award of a contract
is  made  to  the  lowest  responsible  bidder  whose  bid   meets   the
requirements and criteria set forth in the invitation for bids.
  b. Procedures for competitive sealed bidding.
  1. Bids shall be solicited through an invitation for bids, which shall
include  a purchase description and a notice of where vendors may obtain
a copy of  all  contractual  terms  and  conditions  applicable  to  the
procurement.    A  notice  of  the  intention  to  solicit bids shall be
publicly advertised in accordance with the provisions of  section  three
hundred  twenty-five of this chapter.  The terms of such contracts shall
be  settled  by  the  corporation  counsel  as  an  act  of  preliminary
specification to an invitation for bids.
  2.  The  agency  letting  the contract may reject all bids if it shall
deem it for the interest of the city so to do; if not, it shall, without
other consent or approval, award the contract to the lowest  responsible
bidder,  unless  the  mayor  shall  determine in writing, justifying the
reasons therefor, that it is in the best interest of the city that a bid
other than that of the lowest  responsible  bidder  shall  be  accepted.
Such  determination shall be published in the City Record.  Tie bids are
to be decided by the agency letting the contract  and  the  award  made.
Whenever  a  contract is awarded to other than the lowest bidder because
the lowest bidder is determined by the agency not to  be  a  responsible
bidder or because the lowest bid is determined by the agency to not meet
the  requirements and criteria set forth in the invitation for bids, the
agency making  such  determination  and  awarding  such  contract  shall
immediately  notify  the  lowest  bidder of such determination and shall
file in the agency contract file a statement in detail  of  the  reasons
therefor.
  3.  Any  bidder  who  is declared not responsible by an agency and any
bidder whose bid is determined by an agency to not meet the requirements
and criteria set forth in the invitation for bids may, within five  days
of receipt of notice of the agency decision, appeal such decision to the
agency  head.    A  determination  of  an  agency head of an appeal of a
decision of non-responsibility may be appealed to the  mayor  who  shall
take  final  action regarding such matter.  A determination of an agency
head of  an  appeal  of  a  decision  that  a  bid  does  not  meet  the
requirements  and criteria set forth in the invitation for bids shall be
final.
  c.  No bid shall be valid unless  accompanied  by  a  deposit  in  the
amount  and  manner  set  forth and specified in the proposal; provided,
however,  that  the  procurement  policy  board  shall  establish   such
requirements  for  bid  deposits  as are necessary and practicable, and,
pursuant to rules and standards, may waive the bid  deposit  requirement
for  specific  classes  of  purchase or types of transactions.  Upon the
award of the contract the deposits  of  unsuccessful  bidders  shall  be
returned  to  them,  and the deposit of   the successful bidder shall be
returned upon execution of the contract and furnishing of  the  required
security.
  d.    Every  invitation for bids shall contain a provision that in the
event of the failure of the bidder to execute the contract  and  furnish
the  required  security within ten days after notice of the award of the
contract, the deposit or so much thereof as shall be applicable  to  the
amount  of  the award made shall be retained by the city, and the bidder
shall be liable for and shall agree to  pay  on  demand  the  difference
between  the  price  bid  and the price for which such contract shall be
subsequently relet, including the cost of such reletting  and  less  the
amount  of  such deposit.  No plea of mistake in such accepted bid shall

be available to the bidder for the recovery  of  the  deposit  or  as  a
defense to any action based upon such accepted bid.

Section 314.

Section 314.

  § 314. Small purchases. a. Notwithstanding any other provision of this
charter, the procurement policy board and the council may, by concurrent
action,  establish  dollar  limits  for  procurement of goods, services,
construction, or construction-related services that may be made  without
competition  or  without  public  advertisement. Awards pursuant to this
section shall be made in accordance with rules of the procurement policy
board.
  b. On or before September thirtieth, two thousand and three, and on or
before the last day of every quarter thereafter, the mayor or his or her
designee shall submit to  the  council  and  the  comptroller  a  report
detailing each small purchase award made pursuant to this section during
the  quarter  that  ended three months before such report is due and for
which information is required to be contained in the  computerized  data
base  maintained  pursuant  to  subdivision  a of section 6-116.2 of the
administrative code. Such report shall provide the name  of  the  vendor
selected  to fulfill the requirements of each such small purchase award,
the date and dollar amount of each such small  purchase  award  and  the
type of goods or services provided.

Section 315.

Section 315.

  § 315. Emergency procurement.
  Notwithstanding the provisions of section three hundred twelve of this
chapter,  in  the case of an unforeseen danger to life, safety, property
or a necessary service, an emergency procurement may be  made  with  the
prior approval of the comptroller and corporation counsel, provided that
such  procurement  shall be made with such competition as is practicable
under the circumstances, consistent with the provisions of section three
hundred seventeen of this chapter. A written determination of the  basis
for the emergency and the selection of the contractor shall be placed in
the  agency  contract  file  and  the  determination  or summary of such
determination shall be included in the notice of the award  of  contract
published pursuant to section three hundred twenty-five of this chapter.

Section 316.

Section 316.

  §   316.  Intergovernmental  procurement.  Notwithstanding  any  other
requirement of this chapter,
  a. any goods may be procured, ordered or awarded  through  the  United
States  General  Services Administration, or any other federal agency if
the price is lower than the prevailing market  price;  any  services  or
construction  may  be  procured,  ordered  or awarded through the United
States General Services Administration, or any other federal  agency  if
the price is fair and reasonable, and
  b.  any goods may be procured, ordered or awarded through the New York
State office of general services, or any  other  state  agency,  if  the
price  is  lower  than  the  prevailing  market  price;  any services or
construction may be procured, ordered or awarded through  the  New  York
State  office  of  general  services,  or any other state agency, if the
price is fair and reasonable.

Section 317.

Section 317.

  §   317.  Alternatives  to  competitive  sealed  bidding.  a.  If,  in
accordance with section three hundred twelve, an agency determines  that
the  use  of  competitive  sealed  bidding  is  not  practicable  or not
advantageous to the city, the agency shall select the  most  competitive
alternative method of procurement provided for by sections three hundred
eighteen through three hundred twenty-two which is appropriate under the
circumstance.   Each agency contract file shall contain documentation of
such determination and of the basis upon which each contract is awarded,
as is required by the procurement policy board.
  b. Each contract for goods, services or construction in value of  more
than  five  million dollars proposed by an agency to be awarded which is
let by other than  (i)  competitive  sealed  bidding,  (ii)  competitive
sealed  bids  from  prequalified  vendors,  or  (iii) competitive sealed
proposals, where the weight assigned to each of the factors or  criteria
to be considered in selecting the proposal most advantageous to the city
was  set  forth  in a writing filed in the agency contract file prior to
the opening of proposals, shall require the approval of the mayor  prior
to its execution. Notwithstanding the preceding sentence, the mayor may,
where  the  mayor  has  determined  that  it  is appropriate, exclude an
agency's contracts or  a  particular  category  of  contracts  from  the
approval requirement of this subdivision.

Section 318.

Section 318.

  §   318.   Competitive  sealed  bids  from  prequalified  vendors.  In
accordance with section three hundred seventeen, bids may  be  solicited
from  vendors  who  have  been prequalified for the provision of a good,
service or construction pursuant to section three hundred twenty-four by
mailing notice to each prequalified vendor or, if special  circumstances
require,  to  a  selected  list  of  prequalified  vendors. Award of the
contract shall be made in accordance  with  the  provisions  of  section
three  hundred  thirteen  of  this  chapter.  A  determination to employ
selective solicitation for a particular procurement or for a  particular
category  of  procurement  shall  be  made  in writing by the agency and
approved by the mayor; unless the mayor, upon adequate assurances of  an
agency's  capacity to comply with procedural requirements in relation to
this section, has determined that such approval is not required  for  an
agency's contracts or particular categories of contracts.

Section 319.

Section 319.

  §  319. Competitive sealed proposals. In accordance with section three
hundred seventeen, proposals may be  solicited  through  a  request  for
proposals  with  award  to  the  responsible  offeror  whose proposal is
determined to  be  the  most  advantageous  to  the  city,  taking  into
consideration  the  price  and such other factors or criteria as are set
forth in the request for proposals. No other factors or  criteria  shall
be  used  in  the  evaluation  and  award  of  the contract except those
specified in the request for proposals.  Discussions  may  be  conducted
with  responsible  offerors who submit proposals, provided that offerors
shall be accorded fair treatment with respect  to  any  opportunity  for
discussion and revision of the proposals.

Section 320.

Section 320.

  §  320.  Competitive  sealed  proposals  from prequalified vendors. In
accordance with  section  three  hundred  seventeen,  proposals  may  be
solicited from vendors who have been prequalified for the provision of a
good,   service  or  construction  pursuant  to  section  three  hundred
twenty-four by mailing notice to each prequalified vendor or, if special
circumstances require, to a selected list of prequalified vendors. Award
of the contract shall be made  in  accordance  with  the  provisions  of
section  three  hundred  nineteen.  A  determination to employ selective
solicitation for a particular procurement or for a  particular  category
of  procurement  shall  be  made  in writing by the agency by the mayor;
unless the mayor, upon adequate assurance of  an  agency's  capacity  to
comply with the procedural requirements in relation to this section, has
determined  that such approval is not required for an agency's contracts
or particular categories of contracts.

Section 321.

Section 321.

  §  321.  Sole  source.  a.  In  accordance  with section three hundred
seventeen, a contract may be awarded for a good, service or construction
without  competition  when  an  agency  determines,  pursuant  to  rules
promulgated  by  the  procurement  policy  board, that there is only one
source for the  required  good,  service  or  construction.  The  agency
contract  file  shall  contain  the  agency's  determination that only a
single  source  is  available  for  the  required   good,   service   or
construction,  including  the  process  by  which  the  agency made such
determination.  Copies  of  such  notice  shall  be   filed   with   the
comptroller.
  b.  Whenever  an  agency determines that there is only a single source
for a good, service or construction,  an  agency  shall  give  immediate
notice in the City Record of such determination and shall in such notice
solicit  the  application  of  vendors  qualified  to provide such good,
service or construction, or interested in providing such good service or
construction in the future. The procurement policy board shall  by  rule
define  the  timing  and  duration  of  such notification to ensure that
vendors qualified to provide such good,  service  or  construction  have
sufficient  opportunity to express their interest to the agency prior to
the initiation of any sole source negotiation; provided,  however,  that
if  the  agency  has  determined that it should not reveal to the vendor
with whom it is negotiating that it is doing so on a sole  source  basis
under circumstances defined by rule of the procurement policy board, the
notice required by this subdivision shall be made upon the completion of
such  negotiations  or  the award of the contract. Vendors interested in
providing such good, service or construction  in  the  future  shall  be
prequalified  in  accordance  with section three hundred twenty-four, or
shall be included for receipt of notice in accordance with subdivision a
of section three hundred twenty-five.

Section 322.

Section 322.

  § 322. Alternative procurement procedures.  In accordance with section
three  hundred seventeen, a contract may be awarded according to another
procurement procedure established by  rule  of  the  procurement  policy
board,  under  circumstances,  defined by rule of the procurement policy
board, in which the use  of such procedures is in the best  interest  of
the  city.  An  agency  determination  to  utilize  such  an alternative
procurement procedure for a particular procurement or for  a  particular
type  of  procurement  shall  require  the written approval of the mayor
prior to seeking bids or proposals.   The  agency  contract  file  shall
contain  the  determination  to use an alternative procurement procedure
which shall state (1) which circumstances defined by the board to be  in
the  best  interest  of the city apply to the procurement, including the
basis upon which the agency  made  such  determination,  and  (2)  which
procedure, as defined by the board pursuant to this section, was used in
awarding the contract.

Section 323.

Section 323.

  §  323.  Multi-step  sealed  proposals.    A  preliminary  request for
proposals may be issued requesting the submission  of  unpriced  offers.
Submissions  in response to such a preliminary request for proposals may
be relied upon by an agency (a) to solicit competitive  sealed  bids  in
accordance  with  section three hundred thirteen of this chapter; (b) to
solicit competitive sealed bids from prequalified vendors in  accordance
with  section  three hundred eighteen; (c) to solicit competitive sealed
proposals in accordance with  section three hundred nineteen; or (d)  to
solicit  proposals from prequalified  vendors in accordance with section
three hundred twenty.

Section 324.

Section 324.

  §   324.   Prequalification.   a.   Agencies  may  maintain  lists  of
prequalified vendors and  entry  into  a  prequalified  group  shall  be
continuously  available.  Prospective  vendors  may  be  prequalified as
contractors for the provision of particular types of goods, services and
construction, in accordance with general criteria established by rule of
the procurement policy board which may include, but shall not be limited
to,  the  experience,  past  performance,  ability  to  undertake  work,
financial  capability,  responsibility,  and  reliability of prospective
bidders, and which may be supplemented by criteria established  by  rule
of  the  agency for the prequalification of vendors for particular types
of goods, services or construction or by criteria published in the  City
Record  by  the  agency  prior  to the prequalification of vendors for a
particular procurement.  Such  prequalification  may  be  by  categories
designated by size and other factors.
  b. Any vendor who is denied prequalification or whose prequalification
is  revoked  by an agency may appeal such decision to the agency head. A
determination of an agency  head  may  be  appealed  to  the  office  of
administrative  trials  and hearings for a hearing and such office shall
take final action regarding such matter. A  decision  by  an  agency  to
suspend  a vendor's prequalification may be appealed to the agency head,
provided that if such suspension extends for more than three  months  it
shall be deemed a revocation of the prequalification for the purposes of
this section.

Section 325.

Section 325.

  §  325.  Planning  and  Notification.  a.  Agencies  that award client
services contracts shall produce a draft and  final  plan  and  schedule
detailing  anticipated contracting actions for the upcoming fiscal year,
and shall hold  at  least  one  public  hearing  each  year  immediately
following  the  release  of  the  draft  plan  and  schedule  to receive
testimony regarding the plan and schedule. The draft and final plan  and
schedule  shall  include, but not be limited to: the type of services to
be provided, the authorized maximum amount of  funding  associated  with
the  program,  the  authorized  number  of  contracts  to  be  let for a
particular program, the month and year of the next  planned  competitive
solicitation.  Failure  to  include  a contract in the plan and schedule
issued pursuant to this section shall not be  grounds  for  invalidating
the  contract.  The  procurement  policy  board  shall  promulgate rules
governing the issuance of the draft and final plans and schedules, which
shall ensure that  the  draft  plan  and  schedule  is  issued  promptly
following the submission of the executive budget and that the final plan
and schedule is issued no later than September thirtieth each year.
  b.  Pursuant  to  rules  of  the procurement policy board, each agency
shall
  1. for each category of  goods,  services  or  construction  which  is
regularly  procured  by  the  agency,  periodically  publish in the City
Record a notice soliciting the names  of  vendors  interested  in  being
notified of future procurement opportunities in each such category,
  2.  for each category of goods, services or construction for which the
agency prequalifies vendors for future procurement, periodically publish
in the City Record a notice soliciting the names and  qualifications  of
vendors  interested  in  being  considered for prequalification for such
category, and
  3. publish in the City Record, and where appropriate, in newspapers of
city, state or national distribution and trade publications, notice of
  (a) the solicitation of bids or proposals pursuant  to  section  three
hundred  thirteen  and  three  hundred  seventeen  through three hundred
twenty-two, where the value of a contract is estimated to be  above  the
small  purchase  limits, except where the agency has determined pursuant
to  section  three  hundred  eighteen  or  three  hundred  twenty   that
solicitation should be limited to prequalified vendors,
  (b)  the  award  of  a contract exceeding the small purchase limits in
value. Each such  notice  of  award  shall  indicate  the  name  of  the
contractor,  the dollar value of the contract, the procurement method by
which the contract  was  let,  and  for  contracts  let  by  other  than
competitive sealed bidding, a citation of the clause of subdivision b of
section  three  hundred  twelve  pursuant  to which a procurement method
other than competitive sealed bidding was utilized.
  c. The procurement policy board, in consultation with the commissioner
of  general  services,  shall  promulgate  rules   providing   for   the
publication  and content of notices of contract actions required by this
chapter. Such rules shall include provisions regarding,
  i. the timing and frequency of notices,
  ii. required duration of solicitation periods,
  iii. the form and content of notices, including the  organization  and
presentation  of  such  notices  within  standard  categories  of goods,
services and construction which are  sufficiently  detailed  to  provide
meaningful distinctions among categories.
  d.  The  notice  required  by  subparagraph  a  of  paragraph three of
subdivision a of this section shall not apply to contracts awarded on an
emergency basis pursuant to section three hundred fifteen, provided that
the agency shall, as soon as is practicable, publish notice that such  a
contract  has  been  entered  into, pursuant to rules of the procurement

policy board, nor shall such notice requirements apply where the  notice
would  disclose  litigation  strategy or otherwise impair the conduct of
litigation by the city.

Section 326.

Section 326.

  §  326.  Public hearings on contract awards. a. Prior to entering into
any contract for goods, services or construction to be awarded by  other
than   competitive  sealed  bidding  or  competitive  sealed  bids  from
prequalified vendors, the value of which exceeds  one  hundred  thousand
dollars, the agency shall upon reasonable public notice conduct a public
hearing   to   receive   testimony   regarding  the  proposed  contract.
Notwithstanding the preceding sentence, if within a period of time after
such notice, which period of time shall be determined by the procurement
policy board, no individual requests an opportunity to speak at  such  a
public  hearing  with respect to any such proposed contract the value of
which does not exceed one million dollars, then such public hearing need
not be conducted. The procurement policy board may by rule  exempt  from
this  public hearing requirement contracts to be let which do not differ
materially in terms and  conditions,  as  defined  by  the  board,  from
contracts currently held by the city where the parties to such contracts
are  the  same;  provided, that under no circumstance may such exemption
apply to any contract in value exceeding ten million dollars.
  b. The requirements of this section shall not apply to any procurement
(i) let pursuant to a  finding  of  an  emergency  under  section  three
hundred fifteen, (ii) required to be made on an accelerated basis due to
markets  which experience significant, short-term price fluctuations, as
identified by rule of the board, or (iii) where a public  hearing  would
disclose   litigation  strategy  or  otherwise  impair  the  conduct  of
litigation by the city.

Section 327.

Section 327.

  §  327. Certification of legal authority and procedural requisites. a.
In the case of any contract which  is  let  by  other  than  competitive
sealed  bidding,  the  mayor  shall  certify, prior to the filing of the
contract with  the  comptroller  for  registration  in  accordance  with
section  three hundred twenty-eight of this chapter, that the procedural
requisites for the solicitation and award of the contract have been met.
The mayor may delegate such function to the agency proposing to award  a
contract  only upon adequate assurance of an agency's capacity to comply
with procedural requirements.
  b. The corporation counsel shall certify prior  to  the  filing  of  a
contract  with  the  comptroller  for  registration  in  accordance with
section three hundred twenty-eight of this  chapter,  that  each  agency
proposing  to  award  a  contract has legal authority to award each such
contract.

Section 328.

Section 328.

  §  328. Registration of contracts by the comptroller.  a.  No contract
or agreement executed pursuant to this charter or  other  law  shall  be
implemented until (1) a copy has been filed with the comptroller and (2)
either  the  comptroller  has  registered it or thirty days have elapsed
from the date of filing, whichever is sooner, unless  an  objection  has
been filed pursuant to subdivision c of this section, or the comptroller
has grounds for not registering the contract under subdivision b of this
section.
  b.    Subject  to the provisions of subdivision c of this section, the
comptroller shall register a contract  within  thirty  days  unless  the
comptroller has information indicating that:
  i.   there   remains  no  unexpended  and  unapplied  balance  of  the
appropriation  or  fund  applicable  thereto,  sufficient  to  pay   the
estimated  expense  of  executing  such  contract,  as  certified by the
officer making the same;
  ii.    that  a  certification  required  by  section   three   hundred
twenty-seven of this chapter has not been made; or
  iii.   the proposed vendor has been debarred by the city in accordance
with the provisions of section three hundred thirty-five.
  c.  The comptroller may, within thirty days of the date of  filing  of
the  contract  with  the  comptroller's office, object in writing to the
registration of the contract, if in the comptroller's judgment there  is
sufficient  reason  to  believe that there is possible corruption in the
letting of the contract or that the proposed contractor is  involved  in
corrupt  activity.  Such objection shall be delivered within such thirty
day period to the mayor setting forth in  detail  the  grounds  for  the
comptroller's  determination.    After  the   mayor has responded to the
comptroller's objections  in  writing,  indicating  (i)  the  corrective
actions if any, that have been taken or will be taken in response to the
comptroller's  objections,  or  (ii) the reasons why the mayor disagrees
with the comptroller's objections, the mayor may require registration of
the contract despite the comptroller's objections.  Such response by the
mayor shall not  serve  as  the  basis  for  further  objection  by  the
comptroller,  and the comptroller shall register the contract within ten
days of receipt of the mayor's response.
  d.  The requirements of this section shall not apply to
  (1) an emergency contract awarded pursuant to  section  three  hundred
fifteen  or to an accelerated procurement as defined under section three
hundred twenty-six, provided that  the  agency  shall,  as  soon  as  is
practicable, submit any such contract to the comptroller for an audit of
the  procedures  and  basis  for  the  determination  of the need for an
emergency or accelerated procurement, or
  (2) a contract awarded pursuant to this chapter for the  provision  of
goods,  services  or  construction that is not to be paid for out of the
city treasury or out of moneys under the control of the  city,  provided
that  the  board of the entity awarding such a contract shall within ten
days of awarding contract, file a copy of such contract and any  related
materials specified by the mayor, with the mayor or the mayor's designee
for purposes of section three hundred thirty-four of this charter.

Section 329.

Section 329.

  §  329. By whom procured. a. All services to be performed by contract,
including the furnishing of goods incident thereto, shall be obtained by
the agency for whose use the  appropriation  therefor  shall  have  been
made,  except as otherwise provided by law or by rule of the procurement
policy board.
  b. All other goods shall be purchased or procured by the department of
citywide administrative services, except as otherwise provided  pursuant
to this chapter or other law.
  c.  Pursuant  to  rules of the procurement policy board and subject to
other sections of this chapter, each agency may purchase directly  goods
in an amount not to exceed one thousand dollars for each transaction or,
with  the  prior approval of the commissioner of citywide administrative
services, in an amount not to exceed  five  thousand  dollars  for  each
transaction.  The  limitation  of  this  subdivision  shall not apply to
purchases by an agency under a  vendor  contract  entered  into  by  the
commissioner of citywide administrative services.
  d.  The  dollar  limits  for direct agency purchases without the prior
approval  of  the  commissioner  of  citywide  administrative   services
pursuant to subdivision c of this section may be raised to five thousand
dollars for each transaction for any or all agencies by the commissioner
of  citywide administrative services with the approval of the mayor. Any
proposed increases in the limits for such purchases above five  thousand
dollars shall be subject to the further approval of the comptroller. Any
increase  in  dollar  limits  pursuant  to  this  subdivision  shall  be
published in the City Record and may be rescinded by the commissioner of
citywide administrative services, the mayor, or the comptroller.
  e. Subject to the approval of the comptroller, a specific  procurement
of  a  specific  good  may  be delegated by the commissioner of citywide
administrative services, in the best interest of the city, to any agency
for direct purchase by such agency, and shall  not  be  subject  to  the
provisions of subdivisions b, c or d of this section; provided, however,
that  such  delegation  shall  not  be  made  for  goods  that are to be
generally used by city agencies.

Section 330.

Section 330.

  §  330.  Inspection.  Inspection  and  acceptance  or rejection of all
deliveries of goods shall be made by the agency that  makes  the  direct
purchase  other  than  under  a  vendor  contract.  The  commissioner of
citywide administrative  services  may  authorize  an  agency  to  which
delivery  is  made  to  perform  such functions on purchases made by the
department of citywide administrative services subject to standards  and
policies  of  the  commissioner. The comptroller may continue to perform
such  inspectional  duties  as  are  necessary  for  auditing  purposes,
including  ascertainment  of whether items purchased and paid for by the
department of citywide administrative services or  other  agencies  have
been received and put to use by agencies.

Section 331.

Section 331.

  §   331.   Specifications.   All   purchases   shall   be  based  upon
specifications  which  are  definite  and  certain,  which   permit   of
competition   and   which   shall  not  be  at  variance  with  standard
specifications  for  the  various  classes  of  goods  approved  by  the
commissioner   of  citywide  administrative  services.  Before  adopting
standard specifications the commissioner shall obtain and  consider  the
recommendations of agencies using the items to be standardized.

Section 332.

Section 332.

  §   332.  Payments  procedure.  The  procurement  policy  board  shall
promulgate rules for the expeditious processing of payment  vouchers  by
city  agencies  and departments including (i) the maximum amount of time
allowed for the processing and payment of such vouchers from  the  later
of  (a)  the  date  such vouchers are received by the agency, or (b) the
date on which the goods, services or construction to which  the  voucher
relates  have  been  received and accepted by the agency, (ii) a program
for the payment of interest, at a uniform rate, to vendors  on  vouchers
not  paid within the maximum amount of time pursuant to clause i of this
subdivision, (iii) a process for the allocation and charging of any such
interest payments to the budget of the agency responsible for the  delay
leading  to  the  interest  payments  and  (iv)  agency reporting on the
promptness of such payments in such form and containing such information
as the board shall prescribe. The board  shall  coordinate  and  publish
such prompt payment reports.

Section 333.

Section 333.

  §  333. Evaluation and monitoring of contractor performance.  a.  Each
agency  letting  contracts  shall  monitor  the  performance  of   every
contractor.  Information with respect to contractor performance shall be
maintained  in  a  central  place  in  accordance  with subdivision c of
section three hundred thirty-four.
  b. 1. If a borough president determines there is reason to  believe  a
term  or condition of a contract providing for the delivery of  services
in the borough is not being complied with and that the  contract  should
be  terminated for noncompliance, modified, not renewed, modified at the
time of renewal, or that the existing terms of the  contract  should  be
enforced,  the  borough  president shall document in writing the reasons
for  that  determination  and  present  such   determination,   with   a
recommendation  for   appropriate action, to the agency head for review.
In the case of a recommendation that a contract should not be renewed or
should be modified at the time of renewal, such recommendation shall  be
made  to  the  agency head at least one hundred and twenty days prior to
the expiration of the contract.
  2. The agency head shall respond to the borough  president's  findings
within  ten business days from receipt of such findings, indicating what
action, if any, shall be taken. If such action is  not  satisfactory  to
the  borough  president, the borough president shall, within thirty days
of receipt of such responses, be authorized to require that a hearing be
held in the borough by a contract performance panel  consisting  of  the
public  advocate,  the comptroller and the mayor, or their designees, to
receive the testimony of the  borough  president  and  other  interested
persons  on  the borough president's recommendations.  The hearing shall
be held within twenty days from the borough president's request for  the
hearing. The head of the agency which procured the services in question,
or  a designee of such agency head, and the contractor whose performance
is being evaluated, shall have the right, and it  shall  be  their  duty
when requested by the panel, to appear and be heard.
  3.   The panel shall recommend, within thirty days of the date of such
hearing, such action as it deems appropriate and shall promptly  deliver
its recommendations in writing to the agency head, borough president and
contractor. Within thirty days of receipt of the panel's recommendation,
the  agency  head  shall respond in writing to the panel and the borough
president, indicating which of  the  panel's  recommendations  shall  be
acted upon and what, if any, alternative action will be taken.
  4.   In the case of any contract regarding which more than one borough
president has submitted a determination in accordance with paragraph one
of this subdivision, the  agency  receiving  such  determinations  shall
notify  each  such borough president of the agency response submitted in
accordance with paragraph two of this subdivision.  A hearing,  if  any,
held shall include the comments of all such borough presidents.

Section 334.

Section 334.

  §  334.  Information  on city contracts.   a.   Agency contract files.
Each agency shall maintain files containing  information  pertaining  to
the solicitation, award and management of each contract of the agency in
accordance  with  standard  record  maintenance requirements established
pursuant to section three thousand four of this  charter.    The  agency
contract  files  shall  contain copies of each determination, writing or
filing required by this  chapter  pertaining  to  a  contract  and  such
information as is prescribed by rule of the procurement policy board, in
such  form  as  is  prescribed  by the procurement policy board.  Agency
contract  files  shall  be  open  to  public  inspection  with  adequate
protection for information which is confidential.
  b. Requests by elected officials for contract documentation.  Whenever
an  elected  official of the city requests documentation relating to the
solicitation or award of any city contract, the mayor and city  agencies
shall  promptly  provide  such  documentation  as  is requested or shall
promptly respond  to  the  requesting  official  with  reason  why  such
documentation  cannot  be provided.  If the mayor or agency is unable to
provide the requested documentation within ten business days of the  day
the  request  is  received,  the  mayor or agency shall within such time
deliver to the requesting  official  a  statement  of  the  reasons  the
documentation  can  not  be  promptly provided and shall include in such
statement a timetable within which the documentation will  be  provided,
not to exceed thirty days from the date of the original request.
  c.  Centralized  contract and contractor information.  The mayor shall
ensure that copies of city  contracts  and  other  standard  information
regarding  city  contracts  and contractors are reasonably available for
public inspection in accordance with provisions of section one  thousand
sixty-four of this charter.

Section 335.

Section 335.

  §  335.  Centralized  evaluation of contractor integrity, performance,
and capability. The mayor may evaluate the integrity,  performance,  and
capability  of  entities  that  contract  with  the city, are seeking to
contract with the city, or may seek to contract with the city. The mayor
may designate one or more agencies to participate in such  efforts.  The
evaluations  of  the  mayor  and  any agency designated by the mayor may
include conclusions regarding whether the entity should be considered  a
responsible contractor. The mayor and any agency designated by the mayor
may  make such evaluations and conclusions available to agencies and the
public through a centralized data base.