NY Pub Auth L § 2879 (2021)
2021 New York Laws PBA - Public Authorities Article 9 - General Provisions Title 4 - Contracts of Public Authorities 2879 - Procurement Contracts.

§  2879.  Procurement  contracts. 1. Every public authority and public benefit corporation, a majority of  the  members  of  which  consist  of persons  either  appointed  by  the  governor or who serve as members by virtue of holding a civil office of the state, or a combination thereof, (such entities  to  be  hereinafter  in  this  section  referred  to  as "corporation")  shall adopt by resolution comprehensive guidelines which detail the corporation's operative policy and instructions regarding the use,  awarding,  monitoring  and  reporting  of  procurement  contracts. Guidelines  approved  by  the corporation shall be annually reviewed and approved by the corporation.   2. For purposes of this section, procurement contracts shall mean  any written  agreement for the acquisition of goods or services of any kind, in the actual or estimated amount of five thousand dollars or more.   3. The guidelines approved by the corporation shall include,  but  not be limited to the following:  (a) A description of the types of goods purchased, and for procurement contracts  for  services, a description of those areas of responsibility and oversight requiring the use of personal services and the reasons for the use of personal services in such areas.  (b) Requirements regarding the selection of contractors,  which  shall include provisions:  (i)  for the selection of such contractors on a competitive basis, and provisions relating to the circumstances under which the  board  may  by resolution  waive  competition,  including,  notwithstanding  any  other provision of  law  requiring  competition,  the  purchase  of  goods  or services  from  small  business  concerns those certified as minority or women-owned business  enterprises,  or  goods  or  technology  that  are recycled  or  remanufactured,  in  an  amount not to exceed five hundred thousand dollars without a formal competitive process;  (ii) describing when the award of procurement contracts shall  require approval  of  the  board  by  resolution,  provided  that  any  contract involving services to be rendered over a period in excess  of  one  year shall  require  the  approval  of  the board by resolution and an annual review of the contract by the board;  (iii) setting forth responsibilities of contractors;  (iv) as used in this subparagraph, the term "professional firm"  shall be  defined  as  any  individual  or  sole  proprietorship, partnership, corporation, association, or other legal  entity  permitted  by  law  to practice the professions of architecture, engineering or surveying.   The corporation shall not refuse to negotiate with a professional firm solely  because  the  ratio  of the "allowable indirect costs" to direct labor costs of the professional firm or the hourly  labor  rate  in  any labor  category  of the professional firm exceeds a limitation generally set by the corporation in the determination of the reasonableness of the estimated cost of services to be rendered by the professional firm,  but rather  the  corporation should also consider the reasonableness of cost based on the total estimated cost of the  service  of  the  professional firm  which  should  include,  among  other things, all the direct labor costs of the professional firm for such  services  plus  all  "allowable indirect  costs,"  other  direct  costs,  and  negotiated  profit of the professional firm. "Allowable indirect costs" of a professional firm are defined as those costs generally associated with overhead  which  cannot be  specifically  identified  with  a single project or contract and are considered reasonable and allowable under  specific  state  contract  or allowability limits.  (c)  An  identification of those areas or types of contracts for which minority or women-owned business enterprises  may  best  bid  so  as  to promote  and  assist  participation by such enterprises and facilitate a  fair share of the awarding of contracts to  such  enterprises.  For  the purposes  of  this  section,  a  minority  business enterprise means any business enterprise, including a  sole  proprietorship,  partnership  or corporation that is:  (i)  at  least  fifty-one  percent owned by one or more minority group members or in the case of a publicly-owned business at  least  fifty-one percent  of the common stock or other voting interests of which is owned by one or more minority group members;  (ii)  an  enterprise  in  which  the  minority  ownership   is   real, substantial and continuing;  (iii)  an enterprise in which the minority ownership has and exercises the authority to control independently the day-to-day business decisions of the enterprise; and  (iv) an enterprise authorized  to  do  business  in  New  York  state, independently owned and operated, and not dominant in its field.  (d)  For the purposes of this section, a minority group member means a United States citizen  or  permanent  resident  alien  who  is  and  can demonstrate membership in one of the following groups:  (i)  Black  persons  having origins in any of the Black African racial groups not of Hispanic origin;  (ii) Hispanic persons of  Mexican,  Puerto  Rican,  Dominican,  Cuban, Central   or  South  American  of  either  Indian  or  Hispanic  origin, regardless of race;  (iii) Asian and Pacific Islander persons having origins in any of  the Far  East,  Southeast  Asia,  the  Indian  sub-continent  or the Pacific Islands; or  (iv) Native American persons having origins in  any  of  the  original peoples of North America.  (e)   For  the  purposes  of  this  section,  a  women-owned  business enterprise means a business enterprise, including a sole proprietorship, partnership or corporation which is:  (i) at least fifty-one percent owned by  one  or  more  United  States citizens  or permanent resident aliens who are women or in the case of a publicly-owned business at least fifty-one percent of the  common  stock or other voting interests of which is owned by United States citizens or permanent resident aliens who are women;  (ii)  an  enterprise in which the ownership interest of women is real, substantial and continuing;  (iii) an enterprise in which the women ownership has and exercises the authority to control independently the day-to-day business decisions  of the enterprise; and  (iv)  an  enterprise  authorized  to  do  business  in New York state, independently owned and operated, and not dominant in its field.  (f) Requirements for the designation of one or more  senior  staff  of the  corporation  to  oversee  the corporation's programs established to promote  and  assist:  (i)  participation  by  certified   minority   or women-owned   business  enterprises  in  the  corporation's  procurement opportunities and facilitation of the award of procurement contracts  to such  enterprises;  (ii)  the  utilization  of  certified  minority  and women-owned business enterprises  as  subcontractors  and  suppliers  by entities  having  procurement  contracts with the corporation; and (iii) the  utilization  of  partnerships,  joint  ventures  or  other  similar arrangements   between   certified  minority  and  women-owned  business enterprises and other entities having  procurement  contracts  with  the corporation.  Such  staff  shall be familiar with the procurement of the types  of  construction,  financial,  legal  or  professional   services utilized  by  the  corporation,  report  directly  to  the corporation's executive director, president or  chief  executive  officer  and  either  directly  or  through  their  designees  participate  in the procurement process.  (g) Requirements for providing notice, in addition to any other notice of  procurement opportunities required by law, to professional and other organizations that serve minority and women-owned  business  enterprises providing the types of services procured by the corporation.  (h)  Procedures  for maintaining lists of qualified certified minority and women-owned business enterprises, including professional firms  that have  expressed  an  interest in doing business with the corporation and ensuring that such lists are updated regularly.  The  corporation  shall also  consult  the  lists of certified minority and women-owned business enterprises  maintained  by  the  department  of  economic   development pursuant to article fifteen-A of the executive law.  (i)  The  establishment  of  appropriate  goals  for  participation by minority or women-owned business enterprises  in  procurement  contracts awarded  by  the  corporation  and  for  the utilization of minority and women-owned enterprises as  subcontractors  and  suppliers  by  entities having  procurement  contracts with the corporation. Statewide numerical participation target goals shall be established by each authority  based on the findings of the two thousand ten disparity study.  (j)  Requirements to conduct procurements in a manner that will enable the corporation to achieve the maximum feasible  portion  of  the  goals established  pursuant  to  paragraph  (i)  of  this subdivision and that eliminates  barriers  to  participation  by  minority  and   women-owned business enterprises in the corporation's procurements. Such procurement requirements shall include the following:  (A)  Measures and procedures to ensure that certified businesses shall be given the opportunity  for  maximum  feasible  participation  in  the performance  of  state  contracts  and  to  assist  in the corporation's identification of those state contracts for which  certified  businesses may  best  bid  to  actively  and affirmatively promote and assist their participation in the performance of state contracts so as to  facilitate the  corporation's  achievement  of  the maximum feasible portion of the goals for state contracts to such businesses;  (B) Provisions designating the division of  minority  and  women-owned business  development  to certify and decertify minority and women-owned business enterprises for all corporations through a single process  that meets applicable state and federal requirements;  (C)   A   requirement   that   each   contract  solicitation  document accompanying each solicitation set forth the expected degree of minority and women-owned business enterprise participation based, in part, on:   I. the potential subcontract  opportunities  available  in  the  prime procurement contract; and   II.  the  availability  of certified minority and women-owned business enterprises  to  respond  competitively  to  the  potential  subcontract opportunities;  (D)  A  requirement  that  each  corporation provide a current list of certified minority business enterprises to each prospective contractor;  (E) Provisions relating to joint ventures, under which  a  bidder  may count  toward  meeting  its  minority  business enterprise participation goal, the minority and women-owned business enterprise  portion  of  the joint venture;  (F)  Provisions  under  which the corporation may waive obligations of the contractor relating to minority and women-owned business  enterprise participation  after  a showing of good faith efforts to comply with the requirements of this act pursuant to the waiver provisions contained  in subdivision six of section three hundred thirteen of the executive law;  (G)  A  requirement  that  the  corporation  verify  that minority and women-owned business enterprises listed in a successful bid are actually participating to the extent listed in the project for which the bid  was submitted;  (H) In the implementation of this section, the contracting corporation shall:   I.  consider,  where  practicable,  the  severability  of construction projects and other bundled contracts;   II. implement a program that will enable the corporation  to  evaluate each  contract  to determine the appropriateness of the goal pursuant to paragraph (i) of this subdivision;   III. consider compliance with the  requirements  of  any  federal  law concerning   opportunities   for   minority   and  women-owned  business enterprises which effectuates the purpose of this section; and   IV. consult the  most  recent  disparity  study  pursuant  to  article fifteen-A of the executive law.  (k)  A  listing  of  the  types  of  provisions  to  be  contained  in procurement contracts, including provisions concerning  the  nature  and monitoring  of  the  work to be performed, the use of corporate supplies and facilities, the use of corporate personnel and any other provisions.  (l) Provisions regarding procurement contracts  which  involve  former officers or employees of the corporation.  (m)  Procedures  regarding procurement contracts which are exempt from the  publication  requirements  of  article  four-C  of   the   economic development law.  (n)  Policies  to promote the participation by New York state business enterprises and New  York  state  residents  in  procurement  contracts, including, but not limited to:  (i)  providing  for  the  corporation  to  collect  and to consult the specifications of New York  state  business  enterprises  in  developing specifications  for  any  procurement contract for the purchase of goods where possible, practicable, feasible and consistent with open  bidding, except  for  procurement  contracts  for  which the corporation would be expending funds received from  another  state.  The  corporation  shall, where  feasible, make use of the stock item specification forms prepared by the commissioner of general services, and  where  necessary,  consult with  the  commissioner of the office of general services, in developing such specifications and make such determinations; and  (ii) with the cooperation of the department  of  economic  development and  through  cooperative  efforts  with  contractors, providing for the notification of New York state business enterprises of opportunities  to participate as subcontractors and suppliers on procurement contracts let by the corporation in an amount estimated to be equal to or greater than one  million  dollars  and  promulgating  procedures  which  will assure compliance by contractors  with  such  notification.  Once  awarded  the contract  such contractors shall document their efforts to encourage the participation of New York state business enterprises  as  suppliers  and subcontractors  on  procurement  contracts  equal to or greater than one million dollars. Documented efforts by  a  successful  contractor  shall consist  of  and  be  limited  to  showing  that such contractor has (a) solicited bids, in a timely and adequate manner,  from  New  York  state business   enterprises  including  certified  minority  and  women-owned business, or (b) contacted the New York  state  department  of  economic development  to  obtain listings of New York state business enterprises, or (c) placed notices for subcontractors and  suppliers  in  newspapers, journals  and other trade publications distributed in New York state, or (d) participated in  bidder  outreach  conferences.  If  the  contractor determines that New York state business enterprises are not available to  participate   on  the  contract  as  subcontractors  or  suppliers,  the contractor shall provide a statement indicating the method by which such determination was made.  If  the  contractor  does  not  intend  to  use subcontractors on the contract, the contractor shall provide a statement verifying such intent; and  (iii) except for procurement contracts for which the corporation would be  expending  funds  received from another state, the corporation shall include in all bid documents provided to potential bidders  a  statement that   information   concerning  the  availability  of  New  York  state subcontractors and suppliers  is  available  from  the  New  York  state department of economic development, which shall include the directory of certified  minority  and women-owned businesses, and it is the policy of New York state to encourage the use of New York state subcontractors and suppliers, and to promote the participation of minority and  women-owned businesses where possible, in the procurement of goods and services; and  (iv)  with  the  cooperation of the community services division of the department of labor and through cooperative  efforts  with  contractors, providing for the notification of New York state residents of employment opportunities arising in New York state out of procurement contracts let by the corporation in an amount estimated to be equal to or greater than one  million  dollars;  and  promulgating  procedures  which will assure compliance  by  contractors  with   such   notification   by   requiring contractors  to  submit  post-award compliance reports documenting their efforts to provide such notification through listing any such  positions with the community services division, or providing for such notification in  such  manner  as  is  consistent with existing collective bargaining contracts or agreements; and  (v) including in each set of documents soliciting bids on  procurement contracts  to  let  by  the  corporation a statement notifying potential bidders located in foreign countries that the corporation may assign  or otherwise  transfer  offset credits created by such procurement contract to third parties located in New York state; providing for the assignment or other form of transfer of offset credits created by such  procurement contracts,  directly or indirectly, to third parties located in New York state, in accordance with the written directions of the commissioner  of economic  development;  and  providing  for the corporation to otherwise cooperate with the department of economic development in efforts to  get foreign countries to recognize offset credits assigned or transferred to third  parties  located  in  New  York state created by such procurement contracts; and  (vi) promulgating procedures which will  assure  compliance  with  the federal  equal  employment  opportunity  act  of  1972 (P.L. 92-261), as amended, by contractors of the corporation.  (o) For the purposes of this  section,  a  "New  York  state  business enterprise"    means   a   business   enterprise,   including   a   sole proprietorship, partnership, or corporation, which offers  for  sale  or lease  or  other  form  of  exchange,  goods  which  are  sought  by the corporation  and  which  are  substantially  manufactured,  produced  or assembled  in  New  York  state,  or  services  which  are sought by the corporation and which are substantially performed within New York state.  (p) For the purposes of this section, a "New York  resident"  means  a natural  person  who  maintains  a  fixed,  permanent and principal home located within New  York  state  and  to  which  such  person,  whenever temporarily located, always intends to return.   4.  Each  corporation  shall have the power from time to time to amend such procurement contract guidelines in accordance with  the  provisions of this section.    5.  (a)  Each  corporation  shall  notify the commissioner of economic development of the award of a procurement contract for the  purchase  of goods  or services from a foreign business enterprise in an amount equal to or greater than one million dollars simultaneously with notifying the successful bidder therefor. No corporation shall thereafter enter into a procurement  contract  for said goods or services until at least fifteen days has  elapsed,  except  for  procurement  contracts  awarded  on  an emergency  or  critical  basis,  or  where  the commissioner of economic development waives the provisions of this sentence. The notification  to the commissioner of economic development shall include the name, address and telephone and facsimile number of the foreign business enterprise, a brief  description  of  the goods or services to be obtained pursuant to the  proposed  procurement  contract,  the  amount   of   the   proposed procurement contract, the term of the proposed procurement contract, and the  name of the individual at the foreign business enterprise or acting on behalf of the same who is principally responsible  for  the  proposed procurement   contract.   Such   notification   shall  be  used  by  the commissioner of economic development solely to provide  notification  to New  York  state business enterprises of opportunities to participate as subcontractors and suppliers on such procurement contracts,  to  promote and encourage the location and development of new business in the state, to  assist  New  York  state  business  enterprises  in obtaining offset credits from foreign countries, and to otherwise investigate, study  and undertake  means of promoting and encouraging the prosperous development and protection of the legitimate interest and welfare of New York  state business enterprises, industry and commerce.  (b)  As  used  in  this  section,  the  following terms shall have the following meanings, unless a different meaning appears from the context:  (i) "Foreign business enterprise" shall mean  a  business  enterprise, including  a  sole  proprietorship,  partnership  or  corporation, which offers for sale, lease or other form of exchange, goods which are sought by the corporation and which are substantially produced outside New York state, or services, other than  construction  services,  sought  by  the corporation  which  are  substantially performed outside New York state. For purposes of construction services, foreign business enterprise shall mean a business enterprise, including a sole proprietorship, partnership or corporation, which has its principal place of  business  outside  New York state.  (ii)  "New  York  state  business  enterprise"  shall  mean a business enterprise, including a sole proprietorship, partnership or corporation, which offers for sale or lease or other form of  exchange,  goods  which are  sought by the corporation and which are substantially manufactured, produced or assembled  in  New  York  state,  or  services,  other  than construction services, which are sought by the corporation and which are substantially   performed   within  New  York  state.  For  purposes  of construction services, a New York state business enterprise shall mean a business enterprise, including a sole  proprietorship,  partnership,  or corporation,  which  has  its  principal  place  of business in New York state.  (iii) "Discriminatory jurisdiction"  shall  mean  any  other  country, nation, province, state or political subdivision thereof which employs a preference  or  price  distorting  mechanism  to  the  detriment  of  or otherwise discriminates against a New York state business enterprise  in the  procurement of goods and services by the same or a non-governmental entity influenced by the same. Such discrimination may include,  but  is not  limited  to,  any  law, regulation, procedure or practice, terms or license, authorization, or funding or bidding rights which  requires  or encourages  any  agency  or  instrumentality  of  the state or political  subdivision thereof or non-governmental entity influenced by the same to discriminate against a New York state business enterprise.  (c) In including any additional business enterprises on invitations to bid  for  the  procurement  of  goods  or  services, the chief executive officer of the  corporation  shall  not  include  any  foreign  business enterprise  which  has  its  principal  place  of  business located in a discriminatory jurisdiction  contained  on  the  list  prepared  by  the commissioner  of  economic  development  pursuant  to subdivision six of section one  hundred  sixty-five  of  the  state  finance  law,  except, however,   business  enterprises  which  are  New  York  state  business enterprises as defined by this section. The corporation  may  waive  the application  of  the  provisions  of  this  section  whenever  the chief executive officer of the corporation determines in writing that it is in the best interests of the state to do so. The chief executive officer of the corporation shall deliver each such waiver to  the  commissioner  of economic development.  (d)  A  corporation  shall  not  enter  into a contract with a foreign business enterprise which has its principal place of business located in a discriminatory jurisdiction contained on  the  list  prepared  by  the commissioner  of  economic  development  pursuant  to subdivision six of section one hundred sixty-five of the state finance law. The  provisions of  this  section  may  be  waived by the chief executive officer of the corporation if the chief executive officer of the corporation determines in writing that it is in the best interests of the state to do  so.  The chief  executive  officer  of  the  corporation  shall deliver each such waiver to the commissioner of economic development.   6. Each corporation, as part of the guidelines established pursuant to subdivision three of this section, shall  establish  policies  regarding the  preparation  of publicly available reports on procurement contracts entered into by such corporation. Such policies shall  provide,  at  the minimum,  for  the  preparation  of  a  report  no  less frequently than annually, summarizing procurement activity by such corporation  for  the period  of  the report, including a listing of all procurement contracts entered into, all contracts entered into with New  York  state  business enterprises  and  the  subject  matter  and value thereof, all contracts entered into with certified minority or women-owned business enterprises and the subject matter and value thereof, all  referrals  made  and  all penalties  imposed  pursuant  to  section  three  hundred sixteen of the executive  law,  all  contracts  entered  into  with  foreign   business enterprises,  and  the  subject  matter and value thereof, the selection process used to select such contractors, all procurement contracts which were exempt from the publication requirements of article four-C  of  the economic  development  law,  the  basis  for  any such exemption and the status of existing procurement contracts.   7. Each corporation shall annually prepare and  approve  a  report  on procurement  contracts  which shall include the guidelines, as specified in subdivision three of this section, an explanation of  the  guidelines and any amendments thereto since the last annual report.  Such report on procurement  contracts may be a part of any other annual report that the corporation is required to make.   8.  (a)  Each  corporation  shall  annually  submit  its   report   on procurement  contracts  to the division of the budget and copies thereof to the department of audit  and  control,  the  department  of  economic development,  the  senate  finance  committee  and the assembly ways and means committee.  Such report shall include the total number  and  total dollar  value of contracts awarded to certified minority and women-owned business enterprises pursuant to subparagraph (i) of  paragraph  (b)  of subdivision three of this section.  (b)  Each corporation shall make available to the public copies of its report on procurement contracts upon reasonable request therefor.   9.  Nothing contained in this section shall be deemed to alter, affect the validity of, modify the terms of or impair any contract or agreement made or entered into in violation of, or without  compliance  with,  the provisions of this section.