N.Y. GMU Law § 103 — New York Code / Act GMU / Article 5-A / Section 103
Advertising for bids and offers; letting of contracts; criminal conspiracies
Status: in_force

§ 103. Advertising for bids and offers; letting of contracts; criminal\nconspiracies.  * 1. Except as otherwise expressly provided by an act of\nthe legislature or by a local law adopted prior to September first,\nnineteen hundred fifty-three, all contracts for public work involving an\nexpenditure of more than thirty-five thousand dollars and all purchase\ncontracts involving an expenditure of more than twenty thousand dollars,\nshall be awarded by the appropriate officer, board or agency of a\npolitical subdivision or of any district therein including but not\nlimited to a soil conservation district to the lowest responsible bidder\nfurnishing the required security after advertisement for sealed bids in\nthe manner provided by this section, provided, however, that purchase\ncontracts (including contracts for service work, but excluding any\npurchase contracts necessary for the completion of a public works\ncontract pursuant to article eight of the labor law) may be awarded on\nthe basis of best value, as defined in section one hundred sixty-three\nof the state finance law, to a responsive and responsible bidder or\nofferer in the manner provided by this section except that in a\npolitical subdivision other than a city with a population of one million\ninhabitants or more or any district, board or agency with jurisdiction\nexclusively therein the use of best value for awarding a purchase\ncontract or purchase contracts must be authorized by local law or, in\nthe case of a district corporation, school district or board of\ncooperative educational services, by rule, regulation or resolution\nadopted at a public meeting. In any case where a responsible bidder's or\nresponsible offerer's gross price is reducible by an allowance for the\nvalue of used machinery, equipment, apparatus or tools to be traded in\nby a political subdivision, the gross price shall be reduced by the\namount of such allowance, for the purpose of determining the best value.\nIn cases where two or more responsible bidders furnishing the required\nsecurity submit identical bids as to price, such officer, board or\nagency may award the contract to any of such bidders. Such officer,\nboard or agency may, in his or her or its discretion, reject all bids or\noffers and readvertise for new bids or offers in the manner provided by\nthis section. In determining whether a purchase is an expenditure within\nthe discretionary threshold amounts established by this subdivision, the\nofficer, board or agency of a political subdivision or of any district\ntherein shall consider the reasonably expected aggregate amount of all\npurchases of the same commodities, services or technology to be made\nwithin the twelve-month period commencing on the date of purchase.\nPurchases of commodities, services or technology shall not be\nartificially divided for the purpose of satisfying the discretionary\nbuying thresholds established by this subdivision. A change to or a\nrenewal of a discretionary purchase shall not be permitted if the change\nor renewal would bring the reasonably expected aggregate amount of all\npurchases of the same commodities, services or technology from the same\nprovider within the twelve-month period commencing on the date of the\nfirst purchase to an amount greater than the discretionary buying\nthreshold amount. For purposes of this section, "sealed bids" and\n"sealed offers", as that term applies to purchase contracts, (including\ncontracts for service work, but excluding any purchase contracts\nnecessary for the completion of a public works contract pursuant to\narticle eight of the labor law) shall include bids and offers submitted\nin an electronic format including submission of the statement of\nnon-collusion required by section one hundred three-d of this article,\nprovided that the governing board of the political subdivision or\ndistrict, by resolution, has authorized the receipt of bids and offers\nin such format. Submission in electronic format may, for technology\ncontracts only, be required as the sole method for the submission of\nbids and offers. Provided however, the appropriate officer, board or\nagency of a city with a population of one million inhabitants or more,\nor any district, board or agency with jurisdiction exclusively within\nsuch city, may authorize or require bids and offers for any contract to\nbe submitted in an electronic format. Bids and offers submitted in an\nelectronic format shall be transmitted by bidders and offerers to the\nreceiving device designated by the political subdivision or district.\nAny method used to receive electronic bids and offers shall comply with\narticle three of the state technology law, and any rules and regulations\npromulgated and guidelines developed thereunder and, at a minimum, must\n(a) document the time and date of receipt of each bid and offer received\nelectronically; (b) authenticate the identity of the sender; (c) ensure\nthe security of the information transmitted; and (d) ensure the\nconfidentiality of the bid or offer until the time and date established\nfor the opening of bids or offers. The timely submission of an\nelectronic bid or offer in compliance with instructions provided for\nsuch submission in the advertisement for bids or offers and/or the\nspecifications shall be the responsibility solely of each bidder or\nofferer or prospective bidder or offerer. No political subdivision or\ndistrict therein shall incur any liability from delays of or\ninterruptions in the receiving device designated for the submission and\nreceipt of electronic bids and offers.\n  * NB Effective until June 1, 2028\n  * 1. Except as otherwise expressly provided by an act of the\nlegislature or by a local law adopted prior to September first, nineteen\nhundred fifty-three, all contracts for public work involving an\nexpenditure of more than thirty-five thousand dollars and all purchase\ncontracts involving an expenditure of more than twenty thousand dollars,\nshall be awarded by the appropriate officer, board or agency of a\npolitical subdivision or of any district therein including but not\nlimited to a soil conservation district to the lowest responsible bidder\nfurnishing the required security after advertisement for sealed bids in\nthe manner provided by this section, provided, however, that purchase\ncontracts (including contracts for service work, but excluding any\npurchase contracts necessary for the completion of a public works\ncontract pursuant to article eight of the labor law) may be awarded on\nthe basis of best value, as defined in section one hundred sixty-three\nof the state finance law, to a responsive and responsible bidder or\nofferer in the manner provided by this section except that in a\npolitical subdivision other than a city with a population of one million\ninhabitants or more or any district, board or agency with jurisdiction\nexclusively therein the use of best value of awarding a purchase\ncontract or purchase contracts must be authorized by local law or, in\nthe case of a district corporation, school district or board of\ncooperative educational services, by rule, regulation or resolution\nadopted at a public meeting. In determining whether a purchase is an\nexpenditure within the discretionary threshold amounts established by\nthis subdivision, the officer, board or agency of a political\nsubdivision or of any district therein shall consider the reasonably\nexpected aggregate amount of all purchases of the same commodities,\nservices or technology to be made within the twelve-month period\ncommencing on the date of purchase. Purchases of commodities, services\nor technology shall not be artificially divided for the purpose of\nsatisfying the discretionary buying thresholds established by this\nsubdivision. A change to or a renewal of a discretionary purchase shall\nnot be permitted if the change or renewal would bring the reasonably\nexpected aggregate amount of all purchases of the same commodities,\nservices or technology from the same provider within the twelve-month\nperiod commencing on the date of the first purchase to an amount greater\nthan the discretionary buying threshold amount. In any case where a\nresponsible bidder's or responsible offerer's gross price is reducible\nby an allowance for the value of used machinery, equipment, apparatus or\ntools to be traded in by a political subdivision, the gross price shall\nbe reduced by the amount of such allowance, for the purpose of\ndetermining the low bid or best value. In cases where two or more\nresponsible bidders furnishing the required security submit identical\nbids as to price, such officer, board or agency may award the contract\nto any of such bidders. Such officer, board or agency may, in his, her\nor its discretion, reject all bids or offers and readvertise for new\nbids or offers in the manner provided by this section.\n  * NB Effective June 1, 2028\n  1-a. Whenever possible, practical, and feasible and consistent with\nopen competitive bidding or competitive offering, the officer, board or\nagency of any political subdivision or of any district therein charged\nwith the awarding of contracts may use the stock item specifications of\nmanufacturers, producers and/or assemblers located in New York state in\ndeveloping specifications for items to be let for bid or offer in its\npurchasing contracts and may use the data and information contained in\nstock item specifications forms as provided in section one hundred\nsixty-four-a of the state finance law to assist in his determination of\nwhat constitutes a stock item of a manufacturer, producer and/or\nassembler located in New York state for the purpose of helping to retain\njobs, business and industry presently in the state of New York and\nattracting expanded and new business and industry to the state of New\nYork so as to best promote the public interest.\n  * 1-b. A political subdivision or any district therein shall have the\noption of purchasing information technology and telecommunications\nhardware, software and professional services through cooperative\npurchasing permissible pursuant to federal general services\nadministration information technology schedule seventy or any successor\nschedule. A political subdivision or any district therein that purchases\nthrough general services administration schedule seventy, information\ntechnology and consolidated schedule contracts shall comply with federal\nschedule ordering procedures as provided in federal acquisition\nregulation 8.405-1 or 8.405-2 or successor regulations, whichever is\napplicable. Adherence to such procedures shall constitute compliance\nwith the competitive bidding requirements under this section.\n  * NB Repealed July 31, 2029\n  * 1-c. In determining the lowest responsible bidder, the officer,\nboard or agency of any political subdivision or of any district therein\ncharged with awarding of contracts, shall consider whether or not the\nbidder, or any "substantially owned-affiliated entity" as defined by\nparagraph g of subdivision five of section two hundred twenty of the\nlabor law, has been found to be in violation of the Davis-Bacon Act\npursuant to 40 U.S.C. 3144, the Copeland Act pursuant to 18 U.S.C. 874\nand 40 U.S.C. 3145 or the Contract Work Hours and Safety Standards Act\npursuant to 40 U.S.C. 332.\n  * NB Repealed March 18, 2027\n  * 2. Advertisement for bids and offers shall be published in the\nofficial newspaper or newspapers, if any, or otherwise in a newspaper or\nnewspapers designated for such purpose and may be published in the\nprocurement opportunities newsletter pursuant to article four-C of the\neconomic development law. Such advertisement shall contain a statement\nof the time when and place where all bids received pursuant to such\nnotice will be publicly opened and read and where the identity of all\nofferers will be publicly disclosed, and the designation of the\nreceiving device if the political subdivision or district has authorized\nthe receipt of bids and offers in an electronic format. Such board or\nagency may by resolution designate any officer or employee to open the\nbids and offers at the time and place specified in the notice. Such\ndesignee shall make a record of such bids and offers in such form and\ndetail as the board or agency shall prescribe and present the same at\nthe next regular or special meeting of such board or agency. All bids\nreceived shall be publicly opened and read at the time and place so\nspecified and the identity of all offerers shall be publicly disclosed\nat the time and place so specified. Provided, however, the appropriate\nofficer, board or agency of a city with a population of one million\ninhabitants or more, or any district, board or agency with jurisdiction\nexclusively within such city, may conduct a public opening, reading and\nidentification by means of livestreaming on a publicly accessible\nwebsite listed in the advertisement at a time and date specified in such\nadvertisement, and post a record of such bids or offers and any other\nrequired information on a website maintained or controlled by such\ndistrict, officer, board or agency on such date within five days. At\nleast five days shall elapse between the first publication of such\nadvertisement and the date so specified for the opening and reading of\nbids and offers.\n  * NB Effective until June 1, 2028\n  * 2. Advertisement for bids and offers shall be published in the\nofficial newspaper or newspapers, if any, or otherwise in a newspaper or\nnewspapers designated for such purpose and may be published in the\nprocurement opportunities newsletter pursuant to article four-C of the\neconomic development law. Such advertisement shall contain a statement\nof the time when and place where all bids received pursuant to such\nnotice will be publicly opened and read and where the identity of all\nofferers will be publicly disclosed. Such board or agency may by\nresolution designate any officer or employee to open the bids and offers\nat the time and place specified in the notice. Such designee shall make\na record of such bids and offers in such form and detail as the board or\nagency shall prescribe and present the same at the next regular or\nspecial meeting of such board or agency. All bids received shall be\npublicly opened and read at the time and place so specified and the\nidentity of all offerers shall be publicly disclosed at the time and\nplace so specified. At least five days shall elapse between the first\npublication of such advertisement and the date so specified for the\nopening and reading of bids and offers.\n  * NB Effective June 1, 2028\n  * 3. Notwithstanding the provisions of subdivision one of this\nsection, any officer, board or agency of a political subdivision or of\nany district therein authorized to make purchases of materials,\nequipment or supplies, or to contract for services, may make such\npurchases, or may contract for services, other than services subject to\narticle nine of the labor law, when available, through the county in\nwhich the political subdivision or district is located or through any\ncounty within the state subject to the rules established pursuant to\nsubdivision two of section four hundred eight-a of the county law;\nprovided that the political subdivision or district for which such\nofficer, board or agency acts shall accept sole responsibility for any\npayment due the vendor or contractor. All purchases and all contracts\nfor such services shall be subject to audit and inspection by the\npolitical subdivision or district for which made. Prior to making such\npurchases or contracts the officer, board or agency shall consider\nwhether such contracts will result in cost savings after all factors,\nincluding charges for service, material, and delivery, have been\nconsidered. No officer, board or agency of a political subdivision or of\nany district therein shall make any purchase or contract for any such\nservices through the county in which the political subdivision or\ndistrict is located or through any county within the state when bids and\noffers have been received for such purchase or such services by such\nofficer, board or agency, unless such purchase may be made or the\ncontract for such services may be entered into upon the same terms,\nconditions and specifications at a lower price through the county.\n  * NB Effective until July 31, 2029\n  * 3. Notwithstanding the provisions of subdivision one of this\nsection, any officer, board or agency of a political subdivision or of\nany district therein authorized to make purchases of materials,\nequipment or supplies, or to contract for services, may make such\npurchases, or may contract for services, other than services subject to\narticle eight or nine of the labor law, when available, through the\ncounty in which the political subdivision or district is located or\nthrough any county within the state subject to the rules established\npursuant to subdivision two of section four hundred eight-a of the\ncounty law; provided that the political subdivision or district for\nwhich such officer, board or agency acts shall accept sole\nresponsibility for any payment due the vendor or contractor. All\npurchases and all contracts for such services shall be subject to audit\nand inspection by the political subdivision or district for which made.\nPrior to making such purchases or contracts the officer, board or agency\nshall consider whether such contracts will result in cost savings after\nall factors, including charges for service, material, and delivery, have\nbeen considered. No officer, board or agency of a political subdivision\nor of any district therein shall make any purchase or contract for any\nsuch services through the county in which the political subdivision or\ndistrict is located or through any county within the state when bids and\noffers have been received for such purchase or such services by such\nofficer, board or agency, unless such purchase may be made or the\ncontract for such services may be entered into upon the same terms,\nconditions and specifications at a lower price through the county.\n  * NB Effective July 31, 2029\n  4. Notwithstanding the provisions of subdivision one of this section,\nin the case of a public emergency arising out of an accident or other\nunforeseen occurrence or condition whereby circumstances affecting\npublic buildings, public property or the life, health, safety or\nproperty of the inhabitants of a political subdivision or district\ntherein, require immediate action which cannot await competitive bidding\nor competitive offering, contracts for public work or the purchase of\nsupplies, material or equipment may be let by the appropriate officer,\nboard or agency of a political subdivision or district therein.\n  5. Upon the adoption of a resolution by a vote of at least\nthree-fifths of all the members of the governing body of a political\nsubdivision or district therein stating that, for reasons of efficiency\nor economy, there is need for standardization, purchase contracts for a\nparticular type or kind of equipment, material, supplies or services in\nexcess of the monetary threshold fixed for purchase contracts in this\nsection may be awarded by the appropriate officer, board or agency of\nsuch political subdivision or any such district therein, to the lowest\nresponsible bidder or responsible offerer furnishing the required\nsecurity after advertisement for sealed bids or sealed offers therefor\nin the manner provided in this section. Such resolution shall contain a\nfull explanation of the reasons for its adoption.\n  6. Surplus and second-hand supplies, material or equipment may be\npurchased without competitive bidding or competitive offering from the\nfederal government, the state of New York or from any other political\nsubdivision, district or public benefit corporation.\n  7. A person or corporation who conspires to prevent competitive\nbidding or competitive offering on a contract for public work or\npurchase advertised for bidding or offering shall be guilty of a\nmisdemeanor as provided in section one hundred three-e of this article.\n  8. Where municipal hospitals or nutrition programs that receive\nfederal, state, or local funding purchase goods, supplies and services\nunder joint contracts and arrangements entered into pursuant to section\ntwenty-eight hundred three-a of the public health law, they shall not be\nrequired to comply with the provisions of subdivision one of this\nsection.\n  8-a. (a) Notwithstanding the foregoing provisions of this section, a\npolitical subdivision, when letting contracts in accordance with this\nsubdivision for the purchase of food products, may require provisions\nthat mandate that the essential components of such food products are\ngrown, produced or harvested in New York state, or that any processing\nof such food products take place in facilities located within New York\nstate.\n  (b) The commissioner of agriculture and markets shall determine, using\nuniform criteria, those food products for which the requirements of this\nsubdivision are deemed beneficial. The commissioner shall promulgate a\nlist of such food products and ascertain those periods of time each year\nthat the listed food products are available in sufficient quantity for\ncompetitive purchasing and shall forward such information upon request\nto such political subdivisions that shall make determinations as\nprovided herein. The commissioner of agriculture and markets shall\nupdate such list as often as he deems necessary.\n  (c) (i) Such political subdivision shall specify, with the advice of\nthe commissioner of agriculture and markets, the percentage of each food\nproduct required to be grown, produced, harvested or processed within\nNew York state.\n  (ii) Upon a determination by such political subdivision that such food\nproducts are not available in sufficient quantity for purchasing, the\nspecifications requiring such purchase shall be waived for that specific\nfood product until the next contract for such food product is let out\nfor bid.\n  (iii) Upon a determination by such political subdivision that food\nprocessing facilities are not available for the processing of food\nproducts purchased under specifications required by this section, the\nspecifications requiring such processing shall be waived.\n  (iv) In the event that such a political subdivision receives no\nacceptable bids it may waive the provisions of this section and shall\naward a contract in accordance with other applicable statutes. In\naddition, if the commissioners of agriculture and markets and economic\ndevelopment agree as to any deleterious economic impact of\nspecifications requiring such purchase, the provisions of this\nsubdivision may be waived by a political subdivision for such purchase.\n  (d) The commissioner of the office of general services and the\ncommissioner of agriculture and markets may issue such regulations as\nthey deem necessary to implement this subdivision and to assist\npolitical subdivisions in complying with this subdivision.\n  (e) Notwithstanding any other provision of law, the department of\nagriculture and markets shall supply information required by paragraph\n(b) of this subdivision to the office of general services within one\nhundred eighty days of the effective date of this subdivision.\n  (f) The commissioners of general services, agriculture and markets,\nand economic development shall provide the legislature with a report on\nthe fifteenth day of January of the second year next succeeding the year\nin which this subdivision became effective, and in their discretion\nperiodically report thereafter, on the effects of this subdivision and\non recommendations on ways to make it more effective.\n  9. (a) Notwithstanding the foregoing provisions of this section to the\ncontrary, a board of education, on behalf of its school district, or a\nboard of cooperative educational services, may separately purchase eggs,\nlivestock, fish, dairy products (excluding milk), juice, grains, and\nspecies of fresh fruit and vegetables, grown, produced or harvested, in\nNew York State, provided that such order is for one hundred fifty\nthousand dollars or less as herein authorized, provided however, that a\nschool district or board of cooperative educational services may apply\nto the commissioner of education for permission to purchase orders of\nmore than one hundred fifty thousand dollars from an association of\nowners of such farms when no other producers or growers have offered to\nsell to such school.\n  (b) All such purchases shall be administered pursuant to regulations\npromulgated by the commissioner of education. Such regulations shall: be\ndeveloped in consultation with the commissioner of agriculture and\nmarkets to accommodate and promote the provisions of the farm-to-school\nprogram established pursuant to subdivision five-b of section sixteen of\nthe agriculture and markets law and subdivision thirty-one of section\nthree hundred five of the education law as added by chapter two of the\nlaws of two thousand two; ensure that the prices paid by a district or\nboard of cooperative educational services for any items so purchased do\nnot exceed the prices of comparable local farm products that are\navailable to districts through their usual purchases of such items;\nensure that all producers and growers who desire to sell to school\ndistricts or boards of cooperative educational services can readily\naccess information in accordance with the farm-to-school law; include\nprovisions for situations when more than one producer or grower seeks to\nsell the same product to a district or board of cooperative educational\nservices to ensure that all such producers or growers have an equitable\nopportunity to do so in a manner similar to the usual purchasing\npractices of such districts or boards of cooperative educational\nservices; and, to the maximum extent practicable, minimize additional\npaperwork, recordkeeping and other similar requirements on both growers\nand producers and school districts.\n  9-a. Notwithstanding any provision of this section to the contrary, a\ncounty may separately purchase eggs, livestock, fish, dairy products,\njuice, grains, and species of fresh fruit and vegetables directly from\nNew York state producers or growers, or associations of producers and\ngrowers, provided that:\n  (a) such association of producers or growers is comprised of ten or\nfewer owners of farms who also operate such farms and who have combined\nto fill the order of a county as herein authorized, provided however,\nthat a county may purchase from an association of more than ten owners\nof such farms when no other producers or growers have offered to sell to\nsuch county;\n  (b) the amount that may be expended by a county in any fiscal year for\nsuch purchases shall not exceed the greater of:\n  (i) the expenditure threshold provided in subdivision one of this\nsection; or\n  (ii) twenty cents multiplied by the total population of such county;\n  (c) all such purchases shall be administered pursuant to policies and\nprocedures adopted by the county governing board and developed in\nconsultation with the commissioner of agriculture and markets. Such\npolicies and procedures shall ensure that the prices paid by a county\nfor any items so purchased do not exceed the prices of comparable local\nfarm products that are available to the political subdivision or\ndistrict therein through their usual purchases of such items; include\nprovisions for situations when more than one producer or grower seeks to\nsell the same product to a county to ensure that all such producers or\ngrowers have an equitable opportunity to do so in a manner similar to\nthe usual purchasing practices of such county; include guidelines for\nthe approval of purchases of items from associations of more than ten\ngrowers or producers; and, to the maximum extent practicable, minimize\nadditional paperwork, recordkeeping and other similar requirements on\nboth growers and producers and counties.\n  10. Notwithstanding the foregoing provisions of this section to the\ncontrary, a board of education may, on behalf of its school district,\nseparately purchase milk produced in New York State, directly from\nlicensed milk processors pursuant to the provisions of this subdivision.\nThe amount that may be expended by a school district in any fiscal year\npursuant to this section shall not exceed an amount equal to twenty-five\ncents multiplied by the total number of days in the school year\nmultiplied by the total enrollment of such school district. All\npurchases made pursuant to this subdivision shall be administered\npursuant to regulations promulgated by the commissioner of education.\nThe regulations promulgated by the commissioner of education shall\nensure that the prices paid by a school district for items purchased\npursuant to this subdivision do not exceed the market value of such\nitems and that all licensed processors who desire to sell to a school\ndistrict pursuant to this subdivision have equal opportunities to do so.\n  11. Bid mistake; public projects. (a) In all contracts governed by\nthis section, where a unilateral error or mistake is discovered in a\nbid, such bid may be withdrawn after a showing of the following: (1) the\nmistake is known or made known to the awarding officer, board or agency\nprior to the awarding of the contract or within three days after the\nopening of the bid, whichever period is shorter; and (2) the price bid\nwas based on an error of such magnitude that enforcement would be\nunconscionable; and (3) the bid was submitted in good faith and the\nbidder submits credible evidence that the mistake was a clerical error\nas opposed to a judgment error; and (4) the error in the bid is actually\ndue to an unintentional and substantial arithmetic error or an\nunintentional omission of a substantial quantity of work, labor,\nmaterial, goods or services made directly in the compilation of the bid,\nwhich unintentional arithmetic error or unintentional omission can be\nclearly shown by objective evidence drawn from inspection of the\noriginal work paper, documents, or materials used in the preparation of\nthe bid sought to be withdrawn; and (5) it is possible to place the\npublic agency, board, officer, or subdivision in status quo ante.\n  (b) Unless otherwise required by law, the sole remedy for a bid\nmistake in accordance with this section shall be withdrawal of that bid\nand the return of the bid bond or other security, if any, to the bidder.\nThereafter, the awarding officer, board or agency may, in its\ndiscretion, award the contract to the next lowest responsible bidder or\nrebid the contract. Any amendment to or reformation of a bid or a\ncontract to rectify such an error or mistake therein is strictly\nprohibited.\n  12. Notwithstanding any other provision of this section or any other\nprovision of law, boards of education shall have the authority to\ndetermine that a bidder on a contract for the purchase of apparel or\nsports equipment is not a responsible bidder for purposes of subdivision\none of this section, based upon either or both of the following\nconsiderations: (a) the labor standards applicable to the manufacture of\nthe apparel or sports equipment, including but not limited to employee\ncompensation, working conditions, employee rights to form unions, and\nthe use of child labor; or (b) the bidder's failure to provide\ninformation sufficient for boards of education to determine the labor\nstandards applicable to the manufacture of the apparel or sports\nequipment.\n  15. (a) Notwithstanding any general, special or local law or rule or\nregulation to the contrary, an officer, board or agency of any county,\nany school district or any political subdivision of the state with a\npopulation of fifty thousand or more charged with awarding a contract\nfor public work may establish guidelines governing the qualifications of\nbidders seeking to bid or enter into such contracts. If such officer,\nboard or agency maintains an appropriate list of qualified bidders, the\nbidding shall be restricted to those who have qualified prior to the\nreceipt of bids according to standards fixed by such officer, board or\nagency. In determining whether a prospective bidder qualifies for\ninclusion on a list of pre-qualified bidders, the officer, board or\nagency shall consider the experience and record of performance of the\nprospective bidder in the particular type of work, as well as: (i) the\nprospective bidder's ability to undertake the particular type and\ncomplexity of work; (ii) the financial capability, responsibility and\nreliability of the prospective bidder for such type and complexity of\nwork; (iii) the record of the prospective bidder in complying with\nexisting labor standards and maintaining harmonious labor relations;\n(iv) the prospective bidder's compliance with equal employment\nopportunity requirements and anti-discrimination laws, and demonstrated\ncommitment to working with minority and women-owned businesses through\njoint ventures or subcontractor relationships; and (v) the record of the\nprospective bidder in protecting the health and safety of workers on\npublic works projects and job sites as demonstrated by the prospective\nbidder's experience modification rate for each of the last three years.\n  (b) Such public officer, board or agency shall, not less than\nannually, publish in a newspaper of general circulation in such\npolitical subdivision an advertisement requesting prospective bidders to\nsubmit qualification statements. Lists of pre-qualified bidders may be\nestablished on a project-specific basis. Prequalified lists shall\ninclude all bidders that qualify; provided, however, that any such list\nshall have no less than five bidders but shall remain open for all\nadditional qualified bidders. The public officer, board or agency's\nprocedures for prequalifying bidders shall include an appeals process\nfor those denied a place on a pre-qualified list. Any denial must be\nbased upon substantial evidence, cannot be arbitrary or capricious, and\nshall be subject to judicial review pursuant to article seventy-eight of\nthe civil practice law and rules. The public officer, board or agency\nmay move forward on the contract award during such appeals.\n  (c) Any school district or political subdivision of the state with a\npopulation of less than fifty thousand may utilize a list of\npre-qualified bidders maintained by the county within which the\nsubdivision is located, if such list is maintained.\n  * 16. Notwithstanding the provisions of subdivisions one, two and\nthree of this section, and section one hundred four of this article, any\nofficer, board or agency of a political subdivision or of any district\ntherein authorized to make purchases of apparatus, materials, equipment\nor supplies, or to contract for services related to the installation,\nmaintenance or repair of apparatus, materials, equipment, and supplies,\nmay make such purchases, or may contract for such services related to\nthe installation, maintenance or repair of apparatus, materials,\nequipment, and supplies, as may be required by such political\nsubdivision or district therein through the use of a contract let by the\nUnited States of America or any agency thereof, any state or any other\npolitical subdivision or district therein if such contract was let to\nthe lowest responsible bidder or on the basis of best value in a manner\nconsistent with this section and made available for use by other\ngovernmental entities; provided, however, that no political subdivision\nor district therein, other than a city with a population of one million\nor more inhabitants or any district, board or agency with jurisdiction\nexclusively therein, may make such purchases or contract for such\nservices through the use of such a contract let on the basis of best\nvalue in a manner consistent with this section unless the political\nsubdivision or district shall first adopt a local law, rule, regulation\nor resolution, as the case may be, pursuant to subdivision one of this\nsection, authorizing the use of best value for awarding purchase\ncontracts.\n  The authority provided to political subdivisions and districts therein\npursuant to this subdivision shall not relieve any obligation of such\npolitical subdivision or district therein to comply with any applicable\nminority and women-owned business enterprise program mandates and the\npreferred source requirements of section one hundred sixty-two of the\nstate finance law.\n  * NB Repealed June 30, 2027\n