NY Pub Auth L § 1265-A (2021)
2021 New York Laws PBA - Public Authorities Article 5 - Public Utility Authorities Title 11 - Metropolitan Commuter Transportation Authority 1265-A - Contracts.

§  1265-a.  Contracts.    1. The provisions of this section shall only apply to procurements by the authority commenced during the period  from April  first, nineteen hundred eighty-seven until December thirty-first, nineteen  hundred  ninety-one,  and  during  the  period  from  December sixteenth,  nineteen  hundred  ninety-three  until  June  thirtieth, two thousand twenty-three; provided, however, that the  provisions  of  this section  shall  not  apply  to  (i)  the  award  of  any contract of the authority if the bid documents for such contract so provide and such bid documents are issued within sixty days of the  effective  date  of  this section  or  within  sixty  days of December sixteenth, nineteen hundred ninety-three, or (ii) for a period of one hundred eighty days after  the effective  date  of  this  section or for a period of one hundred eighty days after December sixteenth, nineteen hundred ninety-three, the  award of  any  contract  for which an invitation to bid, solicitation, request for proposal, or any similar document has been issued by  the  authority prior  to  the  effective date of this section or during the period from January first, nineteen hundred  ninety-two  until  December  sixteenth, nineteen hundred ninety-three.   2.  * (a)  Except  as otherwise provided in this section, all purchase contracts for supplies, materials or equipment  involving  an  estimated expenditure  in  excess  of  one  million  dollars and all contracts for public work involving an estimated expenditure in excess of one  million dollars  shall  be  awarded  by  the authority to the lowest responsible bidder after obtaining sealed bids in the manner hereinafter set  forth. For  purposes  hereof, contracts for public work shall exclude contracts for personal, engineering and architectural, or  professional  services. The  authority  may  reject  all  bids and obtain new bids in the manner provided by this section when it is deemed in the public interest to  do so  or,  in cases where two or more responsible bidders submit identical bids which are the lowest bids,  award  the  contract  to  any  of  such bidders  or obtain new bids from such bidders. Nothing in this paragraph shall obligate the authority to seek new bids  after  the  rejection  of bids  or  after  cancellation  of  an invitation to bid. Nothing in this section shall prohibit the evaluation of bids on the basis of  costs  or savings  including  life  cycle  costs  of  the  item  to  be purchased, discounts, and inspection services so long  as  the  invitation  to  bid reasonably  sets  forth the criteria to be used in evaluating such costs or savings. Life cycle costs may include but shall  not  be  limited  to costs  or savings associated with installation, energy use, maintenance, operation and salvage or disposal.   * NB Effective until April 1, 2024   * (a) Except as otherwise  provided  in  this  section,  all  purchase contracts  for  supplies,  materials or equipment involving an estimated expenditure in excess of fifteen thousand dollars and all contracts  for public  work involving an estimated expenditure in excess of twenty-five thousand dollars shall  be  awarded  by  the  authority  to  the  lowest responsible bidder after obtaining sealed bids in the manner hereinafter set  forth. For purposes hereof, contracts for public work shall exclude contracts for personal, engineering and architectural,  or  professional services.  The  authority may reject all bids and obtain new bids in the manner provided by this section when it is deemed in the public interest to do so or, in cases where  two  or  more  responsible  bidders  submit identical  bids  which are the lowest bids, award the contract to any of such bidders or obtain new bids from such bidders. Nothing herein  shall obligate  the  authority to seek new bids after the rejection of bids or after cancellation of an invitation to  bid.  Nothing  in  this  section shall  prohibit  the evaluation of bids on the basis of costs or savings including life cycle costs of the item to be purchased,  discounts,  and  inspection  services  so  long  as the invitation to bid reasonably sets forth the criteria to be used in evaluating such costs or savings.  Life cycle  costs  may  include  but shall not be limited to costs or savings associated  with  installation,  energy  use, maintenance, operation and salvage or disposal.   * NB Effective April 1, 2024   * (b) Section twenty-eight hundred seventy-nine of this chapter  shall apply  to  the authority's acquisition of goods or services of any kind, in the actual or estimated amount of fifteen thousand dollars  or  more, provided  (i)  that  a  contract for services in the actual or estimated amount of one million dollars or less shall not require approval by  the board of the authority regardless of the length of the period over which the  services  are  rendered,  and  provided further that a contract for services in the actual or estimated amount  in  excess  of  one  million dollars  shall require approval by the board of the authority regardless of the length of the period over which the services are rendered  unless such  a  contract  is  awarded  to  the  lowest responsible bidder after obtaining sealed bids, and (ii)  the  board  of  the  authority  may  by resolution  adopt  guidelines  that  authorize the award of contracts to small business concerns, to service disabled  veteran  owned  businesses certified  pursuant  to  article  seventeen-B  of  the executive law, or minority or  women-owned  business  enterprises  certified  pursuant  to article  fifteen-A  of  the  executive  law,  or  purchases  of goods or technology that are recycled or remanufactured,  in  an  amount  not  to exceed  one  million  dollars  without  a formal competitive process and without further board approval. The board of the authority  shall  adopt guidelines  which  shall  be made publicly available for the awarding of such contract without a formal competitive process.   * NB Effective until April 1, 2024   * (b) Section twenty-eight hundred seventy-nine of this chapter  shall apply  to  the authority's acquisition of goods or services of any kind, in the actual or estimated amount of fifteen thousand dollars  or  more, provided  that  a  contract  for  personal  services  in  the  actual or estimated amount of less than twenty thousand dollars shall not  require approval  by  the board of the authority regardless of the length of the period over which the services are rendered, and provided further that a contract for personal services in the  actual  or  estimated  amount  of twenty  thousand  dollars or more shall require approval by the board of the authority regardless of the length of  the  period  over  which  the services are rendered.   * NB Effective April 1, 2024  (c)(1)  Notwithstanding  the  provisions  of  paragraph  (a)  of  this subdivision, the authority  shall  establish  guidelines  governing  the qualifications  of  bidders  entering  into contracts for its project to bring the Long Island Rail Road into Grand Central Terminal ("East  Side Access  Project").  The  bidding  may  be  restricted  to those who have qualified prior to the receipt of bids according to standards  fixed  by the  authority; provided, however, that the award of contracts shall, to the extent not inconsistent with this paragraph, be in  accordance  with paragraph (a) of this subdivision.  (2)  In  determining  whether  a  prospective bidder qualifies for the inclusion on a list of prequalified bidders for  the  East  Side  Access Project,  the  authority  shall  consider:  (i)  the experience and past performance of the prospective bidder;  (ii)  the  prospective  bidder's ability  to  undertake  work,  including  but  not limited to whether it participates in state approved apprenticeship programs  and  whether  it utilizes employees who are represented by labor organizations; (iii) the financial  capability  and responsibility of the prospective bidder; and  (iv) the records of the prospective bidder in  complying  with  existing labor  standards.  The authority may also consider such other factors as it deems appropriate.   3. (a) Advertisement for bids, when required by this section, shall be published  at  least  once  in a newspaper of general circulation in the area served by  the  authority  and  in  the  procurement  opportunities newsletter   published  pursuant  to  article  four-C  of  the  economic development law provided that, notwithstanding the provisions of article four-C of the economic development law, an advertisement shall  only  be required  for  a  purchase contract for supplies, materials or equipment when required by this section. Publication in  a  newspaper  of  general circulation  in  the  area  served  or  in the procurement opportunities newsletter shall not be required if bids  for  contracts  for  supplies, materials  or  equipment  are  of  a  type  regularly  purchased  by the authority and are to be solicited from a list of potential suppliers, if such list is or has been developed consistent  with  the  provisions  of subdivision  six of this section. Any such advertisement shall contain a statement of: (i) the time and place where bids received pursuant to any notice requesting sealed bids will be publicly opened and read; (ii) the name of  the  contracting  agency;  (iii)  the  contract  identification number;   (iv)  a  brief  description  of  the  public  work,  supplies, materials, or equipment  sought,  the  location  where  work  is  to  be performed,  goods  are  to  be  delivered  or  services provided and the contract term; (v) the  address  where  bids  or  proposals  are  to  be submitted;  (vi)  the  date  when  bids  or  proposals  are due; (vii) a description  of  any  eligibility  or   qualification   requirement   or preference;  (viii)  a statement as to whether the contract requirements may be fulfilled by a subcontracting, joint  venture,  or  co-production arrangement;  (ix)  any  other  information  deemed  useful to potential contractors; and (x) the name, address,  and  telephone  number  of  the person  to  be  contacted  for  additional information. At least fifteen business days  shall  elapse  between  the  first  publication  of  such advertisement  or  the solicitation of bids, as the case may be, and the date of opening and reading of bids.  (b) The authority may designate any officer or employee  to  open  the bids  at  the  time and place bids are to be opened and may designate an officer to award the contract to the  lowest  responsible  bidder.  Such designee  shall make a record of all bids in such form and detail as the authority shall prescribe. All bids received shall  be  publicly  opened and  read  at  the  time,  place  and  in  the  manner  specified in the advertisement or at the time of solicitation, or to  which  the  opening and  reading  or  posting have been adjourned by the authority, provided that any sealed bid may be received and secured  through  an  electronic platform as permitted by the authority, and that any sealed bid received electronically  is  made  public at the same time as any competing paper bid. The authority shall, at minimum, provide the same  opportunity  and time  for submitting sealed bids physically as for sealed bids submitted electronically, and shall provide the opportunity for bidders to  submit sealed  bids  physically  any  time  that it provides the opportunity to submit sealed  electronic  bids.    In  addition,  the  authority  shall establish  a process for accommodating force majeure events that prevent the submission of a sealed electronic bid, including but not limited  to internet  and  power  outage  events,  and  for automatically confirming receipt of any sealed electronic bid  received.  All  bidders  shall  be notified of the time and place of any such adjournment.   4.  Notwithstanding  the  foregoing,  the authority may, by resolution approved by a two-thirds vote of its members then in  office,  or  by  a majority  vote  of  its members with respect to contracts proposed to be  let  pursuant  to  paragraph  (a)  of  this  subdivision  declare   that competitive  bidding  is  impractical  or  inappropriate  because of the existence  of  any  of  the  circumstances  hereinafter  set  forth  and thereafter   the  authority  may  proceed  to  award  contracts  without complying with the requirements of subdivision  two  or  three  of  this section.  In  each case where the authority declares competitive bidding impractical or inappropriate, it shall  state  the  reason  therefor  in writing  and summarize any negotiations that have been conducted. Except for contracts awarded pursuant to paragraphs (a), (b), (c)  and  (e)  of this subdivision, the authority shall not award any contract pursuant to this  subdivision  earlier  than  thirty days from the date on which the authority  declares  that  competitive   bidding   is   impractical   or inappropriate.  Competitive  bidding may only be declared impractical or inappropriate where:  (a) the existence of an emergency involving danger to life, safety  or property  requires immediate action and cannot await competitive bidding or the item to be purchased is essential to efficient operation  or  the adequate  provision  of  service  and  as  a  consequence  of unforeseen circumstance such purchase cannot await competitive bidding;  (b) the  item  to  be  purchased  is  available  only  from  a  single responsible  source,  provided  that if bids have not been solicited for such item pursuant  to  subdivision  two  of  this  section  within  the preceding  twelve  months public notice shall first be given pursuant to subdivision three of this section;  (c) the authority  receives  no  responsive  bids  or  only  a  single responsive bid in response to an invitation for competitive bids;  (d)  the  authority  wishes  to  experiment  with or test a product or technology or new source for such product or technology or evaluate  the service or reliability of such product or technology;  (e)  the  item  is  available  through  an existing contract between a vendor and  (i)  another  public  authority  provided  that  such  other authority  utilized  a  process  of  competitive bidding or a process of competitive requests for proposals  to  award  such  contracts  or  (ii) Nassau  county,  or  (iii) the state of New York or (iv) the city of New York, provided that in any case when under this paragraph the  authority determines  that  obtaining  such  item  thereby  would be in the public interest  and  sets  forth  the  reasons  for  such  determination.  The authority  shall  accept  sole  responsibility  for  any payment due the vendor as a result of the authority's order; or  (f) the authority determines that it is  in  the  public  interest  to award  contracts  pursuant  to  a  process  for competitive requests for proposals as hereinafter set forth. For  purposes  of  this  section,  a process  for  competitive  requests for proposals shall mean a method of soliciting proposals and awarding a contract on the basis  of  a  formal evaluation  of  the  characteristics,  such  as  quality, cost, delivery schedule and  financing  of  such  proposals  against  stated  selection criteria.  Public notice of the requests for proposals shall be given in the same manner as provided in subdivision three  of  this  section  and shall include the selection criteria. In the event the authority makes a material  change  in the selection criteria from those previously stated in the notice, it will inform all proposers of such  change  and  permit proposers to modify their proposals.   * (i)  Except  for  a  contract  with  a  value of one hundred million dollars or less that is  awarded  pursuant  to  this  paragraph  to  the proposer  whose  proposal  is the lowest cost, the authority may award a contract pursuant to this paragraph only after a resolution approved  by a  two-thirds  vote of its members then in office at a public meeting of the authority with such resolution (A) disclosing  the  other  proposers  and  the  substance  of their proposals, (B) summarizing the negotiation process including the opportunities, if any, available to  proposers  to present  and  modify their proposals, and (C) setting forth the criteria upon  which the selection was made provided however that for purposes of this subparagraph the board may,  at  its  discretion,  require  such  a resolution be approved for contracts with a value of one hundred million dollars or less.   * NB Effective until April 1, 2024   * (i)  The  authority  may award a contract pursuant to this paragraph only after a resolution approved by a two-thirds  vote  of  its  members then in office at a public meeting of the authority with such resolution (A) disclosing the other proposers and the substance of their proposals, (B)  summarizing the negotiation process including the opportunities, if any, available to proposers to present and modify their  proposals,  and (C) setting forth the criteria upon which the selection was made.   * NB Effective April 1, 2024  (ii)   Nothing  in  this  paragraph  shall  require  or  preclude  (A) negotiations with any proposers following the receipt  of  responses  to the  request for proposals, or (B) the rejection of any or all proposals at any time. Upon the rejection of  all  proposals,  the  authority  may solicit new proposals or bids in any manner prescribed in this section.  (g)  the authority issues a competitive request for proposals pursuant to the procedures of paragraph (f) of this subdivision for the  purchase or  rehabilitation  of  rail  cars  and  omnibuses. Any such request may include among the stated selection criteria the performance of all or  a portion of the contract at sites within the state of New York or the use of  goods  produced  or  services provided within the state of New York, provided however that in no event shall the authority award  a  contract to  a  manufacturer whose final offer, as expressed in unit cost is more than ten percent higher than the unit cost of  any  qualified  competing final  offer, if the sole basis for such award is that the higher priced offer includes more favorable  provision  for  the  performance  of  the contract  within  the  state of New York or the use of goods produced or services provided within the state of New  York,  and  further  provided that  the authority's discretion to award a contract to any manufacturer shall not be so limited if a basis for such award, as determined by  the authority,   is  superior  financing,  delivery  schedule,  life  cycle, reliability, or any other factor the authority  deems  relevant  to  its operations.   * (i)  Except  for  a  contract  with  a  value of one hundred million dollars or less that is  awarded  pursuant  to  this  paragraph  to  the proposer  whose  proposal  is the lowest cost, the authority may award a contract pursuant to this paragraph only after a resolution approved  by a  vote of not less than a two-thirds vote of its members then in office at a public meeting of the authority with such resolution (A) disclosing the  other  proposers  and  the  substance  of  their   proposals,   (B) summarizing the negotiation process including the opportunities, if any, available  to  proposers  to present and modify their proposals, and (C) setting forth the criteria upon which the selection  was  made  provided however  that  for  purposes  of this subparagraph the board may, at its discretion, require such a resolution be approved for contracts  with  a value of one hundred million dollars or less.   * NB Effective until April 1, 2024   * (i)  The  authority  may award a contract pursuant to this paragraph only after a resolution approved by a vote of not less than a two-thirds vote of its members then in office at a public meeting of the  authority with  such  resolution  (A)  disclosing  the  other  proposers  and  the substance of their proposals, (B) summarizing  the  negotiation  process  including  the  opportunities, if any, available to proposers to present and modify their proposals, and (C)  setting  forth  the  criteria  upon which the selection was made.   * NB Effective April 1, 2024  (ii)   Nothing  in  this  paragraph  shall  require  or  preclude  (A) negotiations with any proposers following the receipt  of  responses  to the  request for proposals, or (B) the rejection of any or all proposals at any time. Upon the rejection of  all  proposals,  the  authority  may solicit new proposals or bids in any manner prescribed in this section.   5.  Upon  the  adoption  of a resolution by the authority stating, for reasons   of   efficiency,   economy,   compatibility   or   maintenance reliability, that there is a need for standardization, the authority may establish procedures whereby particular supplies, materials or equipment are  identified  on  a  qualified  products  list. Such procedures shall provide for products or vendors to be added to or deleted from such list and shall include provisions for public advertisement of the  manner  in which  such  lists are compiled. The authority shall review such list no less than twice a year for the purpose  of  making  such  modifications. Contracts  for particular supplies, materials or equipment identified on a qualified products list may be awarded by the authority to the  lowest responsible  bidder  after obtaining sealed bids in accordance with this section or without competitive sealed bids in instances when the item is available from only a single  source,  except  that  the  authority  may dispense   with  advertising  provided  that  it  mails  copies  of  the invitation to bid to all vendors of the particular item on the qualified products list.   6. The  authority  shall  compile  a  list  of  potential  sources  of supplies,  materials  or  equipment  regularly  purchased. The authority shall, by resolution, set forth the procedures  it  has  established  to identify  new  sources and to notify such new sources of the opportunity to bid  for  contracts  for  the  purchase  of  supplies,  materials  or equipment.  Such  procedures  shall  include, but not be limited to: (a) advertising in trade journals; (b) cooperation with federal,  state  and local  agencies  within  its  area of operations; (c) publication in the state register quarterly; and (d)  procedures  established  pursuant  to subdivision  thirteen  of  section  twelve  hundred  sixty-six-c of this article.   7. The provisions of  this  section  shall  not  supersede  any  other provisions   of  law  relative  to  purchases  of  products  or  devices manufactured or provided by the  blind  or  other  severely  handicapped persons, to the invitation and acceptance of bids from small or minority business  enterprises  or  to  the  purchases  of supplies, materials or equipment  through  the  office  of  general  services.  Except  as  may otherwise  be  provided  by  law or as more restrictively defined in the official policy or bid specifications of the authority, the term  "small business"  means  a  small  business  or  similar  term,  under  federal regulations applicable to projects of the authority which are  federally assisted.   * 8.  Notwithstanding  any  other  provisions  in  this  section,  the authority shall be allowed to use an electronic bidding system  for  the purchase  of  goods,  materials, and commodities that may inform bidders whether their bid is the current low bid, and allow  bidders  to  submit new bids before the date and time assigned for the opening of bids. Such procedure  shall  not  constitute  disclosure  of  bids  in violation of section twenty-eight hundred seventy-eight of this chapter.   * NB Effective until April 1, 2024   * 8. The provisions of this section shall not apply to any procurement made by any other public entity not otherwise required by law  to  award  contracts  for  such  purchases to the lowest responsible bidder if such purchases are made at the sole cost and expense of such entity.   * NB Effective April 1, 2024   * 9. The provisions of this section shall not apply to any procurement made  by  any other public entity not otherwise required by law to award contracts for such purchases to the lowest responsible  bidder  if  such purchases are made at the sole cost and expense of such entity.   * NB Repealed April 1, 2024   10.  (a)  Whenever  the  comptroller  pursuant to section twenty-eight hundred seventy-nine-a of this chapter intends to require supervision in the form of  prior  review  and  approval  of  a  contract  or  contract amendment  to be awarded by the authority pursuant to this section, then such  contract  or  contract  amendment  shall  be  submitted   to   the comptroller  by  the  authority  for  approval  and shall not be a valid enforceable contract unless it shall first have  been  approved  by  the comptroller  but  only  if the comptroller has notified the authority of such determination within thirty days of having received written  notice of  such contract or contract amendment either in the authority's annual report or any revised report;  (b) If the comptroller has timely notified the authority  as  provided in  paragraph  (a)  of  this  subdivision  that any contract or contract amendment shall be subject to comptroller prior review and approval, and such  contract  or  contract  amendment  has  been  submitted   to   the comptroller, it shall become valid and enforceable without such approval if the comptroller has not approved or disapproved it within thirty days of submission to the comptroller.