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.
§ 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.
§ 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.
§ 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.
§ 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.
§ 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.
§ 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.
§ 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.
§ 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.
§ 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.
§ 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.
§ 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.
§ 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.
§ 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.
§ 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.
§ 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.
§ 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.
§ 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.
§ 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.
§ 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.
§ 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.
§ 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.
§ 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.
§ 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.
§ 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.
§ 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.
To the extent possible under law, Friends of Devin Balkind for Public Advocate has waived all copyright and related or neighboring rights to New York City Administrative Code. This work is published from: United States.
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