NY Gen Mun L § 103 (2021)
2021 New York Laws GMU - General Municipal Article 5-A - Public Contracts 103 - Advertising for Bids and Offers; Letting of Contracts; Criminal Conspiracies.

§ 103. Advertising for bids and offers; letting of contracts; criminal conspiracies.  * 1.  Except as otherwise expressly provided by an act of the legislature or by a local law  adopted  prior  to  September  first, nineteen hundred fifty-three, all contracts for public work involving an expenditure  of  more than thirty-five thousand dollars and all purchase contracts involving an expenditure of more than twenty thousand dollars, shall be awarded by the  appropriate  officer,  board  or  agency  of  a political  subdivision  or  of  any  district  therein including but not limited to a soil conservation district to the lowest responsible bidder furnishing the required security after advertisement for sealed bids  in the  manner  provided  by this section, provided, however, that purchase contracts (including contracts  for  service  work,  but  excluding  any purchase  contracts  necessary  for  the  completion  of  a public works contract pursuant to article eight of the labor law) may be  awarded  on the  basis  of best value, as defined in section one hundred sixty-three of the state finance law, to a  responsive  and  responsible  bidder  or offerer  in  the  manner  provided  by  this  section  except  that in a political subdivision other than a city with a population of one million inhabitants or more or any district, board or agency  with  jurisdiction exclusively  therein  the  use  of  best  value  for awarding a purchase contract or purchase contracts must be authorized by local  law  or,  in the  case  of  a  district  corporation,  school  district  or  board of cooperative educational services,  by  rule,  regulation  or  resolution adopted at a public meeting. In any case where a responsible bidder's or responsible  offerer's  gross price is reducible by an allowance for the value of used machinery, equipment, apparatus or tools to be  traded  in by  a  political  subdivision,  the  gross price shall be reduced by the amount of such allowance, for the purpose of determining the best value. In cases where two or more responsible bidders furnishing  the  required security  submit  identical  bids  as  to  price, such officer, board or agency may award the contract to any  of  such  bidders.  Such  officer, board or agency may, in his or her or its discretion, reject all bids or offers  and readvertise for new bids or offers in the manner provided by this section. In determining whether a purchase is an expenditure within the discretionary threshold amounts established by this subdivision, the officer, board or agency of a political subdivision or of  any  district therein  shall  consider the reasonably expected aggregate amount of all purchases of the same commodities, services or  technology  to  be  made within  the  twelve-month  period  commencing  on  the date of purchase. Purchases  of  commodities,  services  or  technology   shall   not   be artificially  divided  for  the  purpose of satisfying the discretionary buying thresholds established by this subdivision.  A  change  to  or  a renewal of a discretionary purchase shall not be permitted if the change or  renewal  would bring the reasonably expected aggregate amount of all purchases of the same commodities, services or technology from the  same provider  within  the  twelve-month period commencing on the date of the first purchase to  an  amount  greater  than  the  discretionary  buying threshold  amount.  For  purposes  of  this  section,  "sealed bids" and "sealed offers", as that term applies to purchase contracts,  (including contracts  for  service  work,  but  excluding  any  purchase  contracts necessary for the completion of a  public  works  contract  pursuant  to article  eight of the labor law) shall include bids and offers submitted in an  electronic  format  including  submission  of  the  statement  of non-collusion  required  by section one hundred three-d of this article, provided that the  governing  board  of  the  political  subdivision  or district,  by  resolution, has authorized the receipt of bids and offers in such format. Submission in  electronic  format  may,  for  technology contracts  only,  be  required  as the sole method for the submission of  bids and offers. Bids and offers submitted in an electronic format shall be  transmitted  by  bidders  and  offerers  to  the  receiving   device designated  by the political subdivision or district. Any method used to receive  electronic  bids  and offers shall comply with article three of the state technology law, and any rules and regulations promulgated  and guidelines developed thereunder and, at a minimum, must (a) document the time  and date of receipt of each bid and offer received electronically; (b) authenticate the identity of the sender; (c) ensure the security  of the  information  transmitted; and (d) ensure the confidentiality of the bid or offer until the time and date established for the opening of bids or offers. The timely submission  of  an  electronic  bid  or  offer  in compliance  with  instructions  provided  for  such  submission  in  the advertisement for bids or offers and/or the specifications shall be  the responsibility solely of each bidder or offerer or prospective bidder or offerer.  No  political  subdivision or district therein shall incur any liability from delays  of  or  interruptions  in  the  receiving  device designated for the submission and receipt of electronic bids and offers.   * NB Effective until June 1, 2023   * 1.  Except  as  otherwise  expressly  provided  by  an  act  of  the legislature or by a local law adopted prior to September first, nineteen hundred  fifty-three,  all  contracts  for  public  work  involving   an expenditure  of  more than thirty-five thousand dollars and all purchase contracts involving an expenditure of more than twenty thousand dollars, shall be awarded by the  appropriate  officer,  board  or  agency  of  a political  subdivision  or  of  any  district  therein including but not limited to a soil conservation district to the lowest responsible bidder furnishing the required security after advertisement for sealed bids  in the  manner  provided  by this section, provided, however, that purchase contracts (including contracts  for  service  work,  but  excluding  any purchase  contracts  necessary  for  the  completion  of  a public works contract pursuant to article eight of the labor law) may be  awarded  on the  basis  of best value, as defined in section one hundred sixty-three of the state finance law, to a  responsive  and  responsible  bidder  or offerer  in  the  manner  provided  by  this  section  except  that in a political subdivision other than a city with a population of one million inhabitants or more or any district, board or agency  with  jurisdiction exclusively  therein  the  use  of  best  value  of  awarding a purchase contract or purchase contracts must be authorized by local  law  or,  in the  case  of  a  district  corporation,  school  district  or  board of cooperative educational services,  by  rule,  regulation  or  resolution adopted  at  a  public  meeting. In determining whether a purchase is an expenditure within the discretionary threshold  amounts  established  by this   subdivision,   the  officer,  board  or  agency  of  a  political subdivision or of any district therein  shall  consider  the  reasonably expected  aggregate  amount  of  all  purchases of the same commodities, services or  technology  to  be  made  within  the  twelve-month  period commencing  on  the date of purchase. Purchases of commodities, services or technology shall not be  artificially  divided  for  the  purpose  of satisfying  the  discretionary  buying  thresholds  established  by this subdivision. A change to or a renewal of a discretionary purchase  shall not  be  permitted  if  the change or renewal would bring the reasonably expected aggregate amount of all  purchases  of  the  same  commodities, services  or  technology  from the same provider within the twelve-month period commencing on the date of the first purchase to an amount greater than the discretionary buying threshold amount.  In  any  case  where  a responsible  bidder's  or responsible offerer's gross price is reducible by an allowance for the value of used machinery, equipment, apparatus or tools to be traded in by a political subdivision, the gross price  shall  be  reduced  by  the  amount  of  such  allowance,  for  the  purpose of determining the low bid or best  value.  In  cases  where  two  or  more responsible  bidders  furnishing  the required security submit identical bids  as  to price, such officer, board or agency may award the contract to any of such bidders. Such officer, board or agency may, in  his,  her or  its  discretion,  reject  all bids or offers and readvertise for new bids or offers in the manner provided by this section.   * NB Effective June 1, 2023   1-a. Whenever possible, practical, and feasible  and  consistent  with open  competitive bidding or competitive offering, the officer, board or agency of any political subdivision or of any district  therein  charged with  the awarding of contracts may use the stock item specifications of manufacturers, producers and/or assemblers located in New York state  in developing  specifications  for  items to be let for bid or offer in its purchasing contracts and may use the data and information  contained  in stock  item  specifications  forms  as  provided  in section one hundred sixty-four-a of the state finance law to assist in his determination  of what  constitutes  a  stock  item  of  a  manufacturer,  producer and/or assembler located in New York state for the purpose of helping to retain jobs, business and industry presently in  the  state  of  New  York  and attracting  expanded  and  new business and industry to the state of New York so as to best promote the public interest.   * 1-b. A political subdivision or any district therein shall have  the option  of  purchasing  information  technology  and  telecommunications hardware,  software  and  professional  services   through   cooperative purchasing    permissible   pursuant   to   federal   general   services administration information technology schedule seventy or any  successor schedule. A political subdivision or any district therein that purchases through  general  services  administration schedule seventy, information technology and consolidated schedule contracts shall comply with federal schedule  ordering  procedures  as  provided  in   federal   acquisition regulation  8.405-1  or  8.405-2  or successor regulations, whichever is applicable. Adherence to such  procedures  shall  constitute  compliance with the competitive bidding requirements under this section.   * NB Repealed July 31, 2024   * 1-c.  In  determining  the  lowest  responsible bidder, the officer, board or agency of any political subdivision or of any district  therein charged  with  awarding  of contracts, shall consider whether or not the bidder, or any "substantially owned-affiliated  entity"  as  defined  by paragraph  g  of  subdivision  five of section two hundred twenty of the labor law, has been found to be in  violation  of  the  Davis-Bacon  Act pursuant  to  40 U.S.C. 3144, the Copeland Act pursuant to 18 U.S.C. 874 and 40 U.S.C. 3145 or the Contract Work Hours and Safety  Standards  Act pursuant to 40 U.S.C. 332.   * NB Repealed March 18, 2024   * 2.  Advertisement  for  bids  and  offers  shall be published in the official newspaper or newspapers, if any, or otherwise in a newspaper or newspapers designated for such purpose  and  may  be  published  in  the procurement  opportunities  newsletter pursuant to article four-C of the economic development law. Such advertisement shall contain  a  statement of  the  time  when  and  place where all bids received pursuant to such notice will be publicly opened and read and where the  identity  of  all offerers  will  be  publicly  disclosed,  and  the  designation  of  the receiving device if the political subdivision or district has authorized the receipt of bids and offers in an electronic format.  Such  board  or agency  may  by resolution designate any officer or employee to open the bids and offers at the time and place  specified  in  the  notice.  Such designee  shall  make  a record of such bids and offers in such form and  detail as the board or agency shall prescribe and present  the  same  at the  next  regular  or special meeting of such board or agency. All bids received shall be publicly opened and read at  the  time  and  place  so specified  and  the identity of all offerers shall be publicly disclosed at the time and place so specified. At  least  five  days  shall  elapse between  the  first  publication  of  such advertisement and the date so specified for the opening and reading of bids and offers.   * NB Effective until June 1, 2023   * 2. Advertisement for bids and  offers  shall  be  published  in  the official newspaper or newspapers, if any, or otherwise in a newspaper or newspapers  designated  for  such  purpose  and  may be published in the procurement opportunities newsletter pursuant to article four-C  of  the economic  development  law. Such advertisement shall contain a statement of the time when and place where all  bids  received  pursuant  to  such notice  will  be  publicly opened and read and where the identity of all offerers will be  publicly  disclosed.  Such  board  or  agency  may  by resolution designate any officer or employee to open the bids and offers at  the time and place specified in the notice. Such designee shall make a record of such bids and offers in such form and detail as the board or agency shall prescribe and present the  same  at  the  next  regular  or special  meeting  of  such  board  or agency. All bids received shall be publicly opened and read at the time and  place  so  specified  and  the identity  of  all  offerers  shall be publicly disclosed at the time and place so specified. At least five days shall elapse  between  the  first publication  of  such  advertisement  and  the date so specified for the opening and reading of bids and offers.   * NB Effective June 1, 2023   * 3.  Notwithstanding  the  provisions  of  subdivision  one  of  this section,  any  officer, board or agency of a political subdivision or of any  district  therein  authorized  to  make  purchases  of   materials, equipment  or  supplies,  or  to  contract  for  services, may make such purchases, or may contract for services, other than services subject  to article  nine  of  the  labor law, when available, through the county in which the political subdivision or district is located  or  through  any county  within  the  state  subject to the rules established pursuant to subdivision two of section four  hundred  eight-a  of  the  county  law; provided  that  the  political  subdivision  or  district for which such officer, board or agency acts shall accept sole responsibility  for  any payment  due  the  vendor or contractor. All purchases and all contracts for such services shall be  subject  to  audit  and  inspection  by  the political  subdivision  or district for which made. Prior to making such purchases or contracts the  officer,  board  or  agency  shall  consider whether  such  contracts  will result in cost savings after all factors, including  charges  for  service,  material,  and  delivery,  have  been considered. No officer, board or agency of a political subdivision or of any  district  therein  shall make any purchase or contract for any such services through the  county  in  which  the  political  subdivision  or district is located or through any county within the state when bids and offers  have  been  received  for such purchase or such services by such officer, board or agency, unless  such  purchase  may  be  made  or  the contract  for  such  services  may  be entered into upon the same terms, conditions and specifications at a lower price through the county.   * NB Effective until July 31, 2024   * 3.  Notwithstanding  the  provisions  of  subdivision  one  of  this section,  any  officer, board or agency of a political subdivision or of any  district  therein  authorized  to  make  purchases  of   materials, equipment  or  supplies,  or  to  contract  for  services, may make such purchases, or may contract for services, other than services subject  to  article  eight  or  nine  of  the labor law, when available, through the county in which the political subdivision  or  district  is  located  or through  any  county  within  the state subject to the rules established pursuant  to  subdivision  two  of  section  four hundred eight-a of the county law; provided that the  political  subdivision  or  district  for which   such   officer,   board   or   agency  acts  shall  accept  sole responsibility for  any  payment  due  the  vendor  or  contractor.  All purchases  and all contracts for such services shall be subject to audit and inspection by the political subdivision or district for which  made. Prior to making such purchases or contracts the officer, board or agency shall  consider whether such contracts will result in cost savings after all factors, including charges for service, material, and delivery, have been considered. No officer, board or agency of a political  subdivision or  of  any district therein shall make any purchase or contract for any such services through the county in which the political  subdivision  or district is located or through any county within the state when bids and offers  have  been  received  for such purchase or such services by such officer, board or agency, unless  such  purchase  may  be  made  or  the contract  for  such  services  may  be entered into upon the same terms, conditions and specifications at a lower price through the county.   * NB Effective July 31, 2024   4. Notwithstanding the provisions of subdivision one of this  section, in  the  case  of a public emergency arising out of an accident or other unforeseen  occurrence  or  condition  whereby  circumstances  affecting public  buildings,  public  property  or  the  life,  health,  safety or property of the inhabitants  of  a  political  subdivision  or  district therein, require immediate action which cannot await competitive bidding or  competitive  offering,  contracts for public work or the purchase of supplies, material or equipment may be let by the  appropriate  officer, board or agency of a political subdivision or district therein.   5.  Upon  the  adoption  of  a  resolution  by  a  vote  of  at  least three-fifths of all the members of the governing  body  of  a  political subdivision  or district therein stating that, for reasons of efficiency or economy, there is need for standardization, purchase contracts for  a particular  type or kind of equipment, material, supplies or services in excess of the monetary threshold fixed for purchase  contracts  in  this section  may  be  awarded by the appropriate officer, board or agency of such political subdivision or any such district therein, to  the  lowest responsible  bidder  or  responsible  offerer  furnishing  the  required security after advertisement for sealed bids or sealed  offers  therefor in  the manner provided in this section. Such resolution shall contain a full explanation of the reasons for its adoption.   6. Surplus and second-hand supplies,  material  or  equipment  may  be purchased  without  competitive bidding or competitive offering from the federal government, the state of New York or from  any  other  political subdivision, district or public benefit corporation.   7.  A  person  or  corporation  who  conspires  to prevent competitive bidding or competitive  offering  on  a  contract  for  public  work  or purchase  advertised  for  bidding  or  offering  shall  be  guilty of a misdemeanor as provided in section one hundred three-e of this article.   8. Where  municipal  hospitals  or  nutrition  programs  that  receive federal,  state,  or local funding purchase goods, supplies and services under joint contracts and arrangements entered into pursuant to  section twenty-eight hundred three-a of the public health law, they shall not be required  to  comply  with  the  provisions  of  subdivision one of this section.   8-a. (a) Notwithstanding the foregoing provisions of this  section,  a political  subdivision,  when  letting contracts in accordance with this  subdivision for the purchase of food products,  may  require  provisions that  mandate  that  the  essential components of such food products are grown, produced or harvested in New York state, or that  any  processing of  such  food products take place in facilities located within New York state.  (b) The commissioner of agriculture and markets shall determine, using uniform criteria, those food products for which the requirements of this subdivision are deemed beneficial. The commissioner shall  promulgate  a list of such food products and ascertain those periods of time each year that  the  listed food products are available in sufficient quantity for competitive purchasing and shall forward such information  upon  request to  such  political  subdivisions  that  shall  make  determinations  as provided herein. The  commissioner  of  agriculture  and  markets  shall update such list as often as he deems necessary.  (c)  (i)  Such political subdivision shall specify, with the advice of the commissioner of agriculture and markets, the percentage of each food product required to be grown, produced, harvested  or  processed  within New York state.  (ii) Upon a determination by such political subdivision that such food products  are  not  available in sufficient quantity for purchasing, the specifications requiring such purchase shall be waived for that specific food product until the next contract for such food product  is  let  out for bid.  (iii)  Upon  a  determination  by such political subdivision that food processing facilities are not  available  for  the  processing  of  food products  purchased  under  specifications required by this section, the specifications requiring such processing shall be waived.  (iv) In the event  that  such  a  political  subdivision  receives  no acceptable  bids  it  may waive the provisions of this section and shall award a contract  in  accordance  with  other  applicable  statutes.  In addition,  if  the commissioners of agriculture and markets and economic development  agree  as   to   any   deleterious   economic   impact   of specifications   requiring   such   purchase,  the  provisions  of  this subdivision may be waived by a political subdivision for such purchase.  (d) The commissioner  of  the  office  of  general  services  and  the commissioner  of  agriculture  and markets may issue such regulations as they  deem  necessary  to  implement  this  subdivision  and  to  assist political subdivisions in complying with this subdivision.  (e)  Notwithstanding  any  other  provision  of law, the department of agriculture and markets shall supply information required  by  paragraph (b)  of  this  subdivision  to the office of general services within one hundred eighty days of the effective date of this subdivision.  (f) The commissioners of general services,  agriculture  and  markets, and  economic development shall provide the legislature with a report on the fifteenth day of January of the second year next succeeding the year in which this subdivision became  effective,  and  in  their  discretion periodically  report  thereafter, on the effects of this subdivision and on recommendations on ways to make it more effective.   9. Notwithstanding the foregoing provisions of  this  section  to  the contrary,  a  board of education, on behalf of its school district, or a board of cooperative educational services, may separately purchase eggs, livestock, fish, dairy products (excluding  milk),  juice,  grains,  and species  of  fresh  fruit  and  vegetables  directly from New York State producers or growers, or associations of producers and growers, provided that:  (a) (i) such association of producers or growers is comprised  of  ten or  fewer  owners  of  farms  who  also  operate such farms and who have combined to fill the order of a school district or board of  cooperative  educational  services  as  herein  authorized,  provided however, that a school district or board of cooperative educational services  may  apply to  the  commissioner  of  education  for permission to purchase from an association  of  more  than  ten  owners  of  such  farms  when no other producers or growers have offered to sell to such  school  or  board  of cooperative educational services; or  (ii)  such  association of producers or growers is comprised of owners of farms who also operate such farms and have combined to fill the order of a school district or board of cooperative educational  services,  and where  such  order is for one hundred thousand dollars or less as herein authorized, provided  however,  that  a  school  district  or  board  of cooperative  educational  services  may  apply  to  the  commissioner of education for permission to purchase orders of  more  than  one  hundred thousand  dollars  from  an  association of owners of such farms when no other producers or growers have offered to sell to such school;  (b) the amount that may be expended by a school district in any fiscal year for such purchases shall not exceed an amount equal to twenty cents multiplied by the total number of days in the school year multiplied  by the total enrollment of such school district;  (b-1)  the  amount  that  may  be  expended  by a board of cooperative educational services in any fiscal year for  such  purchases  shall  not exceed an amount equal to twenty cents multiplied by the total number of days  in  the school year multiplied by the number of students receiving services by such board of cooperative educational services at facilities operated by a board of cooperative educational services;  (c) all such purchases shall be administered pursuant  to  regulations promulgated by the commissioner of education. Such regulations shall: be developed  in  consultation  with  the  commissioner  of agriculture and markets to accommodate and promote the provisions of the  farm-to-school program established pursuant to subdivision five-b of section sixteen of the  agriculture  and  markets law and subdivision thirty-one of section three hundred five of the education law as added by chapter two  of  the laws  of  two thousand two; ensure that the prices paid by a district or board of cooperative educational services for any items so purchased  do not  exceed  the  prices  of  comparable  local  farm  products that are available to districts through their  usual  purchases  of  such  items; ensure  that  all  producers  and  growers  who desire to sell to school districts or boards of  cooperative  educational  services  can  readily access  information  in  accordance with the farm-to-school law; include provisions for situations when more than one producer or grower seeks to sell the same product to a district or board of cooperative  educational services  to ensure that all such producers or growers have an equitable opportunity to do so  in  a  manner  similar  to  the  usual  purchasing practices  of  such  districts  or  boards  of  cooperative  educational services; develop guidelines for approval of  purchases  of  items  from associations of more than ten growers and producers; and, to the maximum extent  practicable,  minimize  additional  paperwork, recordkeeping and other similar requirements on both  growers  and  producers  and  school districts.   9-a.  Notwithstanding any provision of this section to the contrary, a county may separately purchase eggs, livestock,  fish,  dairy  products, juice,  grains,  and species of fresh fruit and vegetables directly from New York state producers or growers, or associations  of  producers  and growers, provided that:  (a)  such  association  of producers or growers is comprised of ten or fewer owners of farms who also operate such farms and who have  combined to  fill  the  order of a county as herein authorized, provided however, that a county may purchase from an association of more than  ten  owners  of such farms when no other producers or growers have offered to sell to such county;  (b) the amount that may be expended by a county in any fiscal year for such purchases shall not exceed the greater of:  (i)  the  expenditure  threshold  provided  in subdivision one of this section; or  (ii) twenty cents multiplied by the total population of such county;  (c) all such purchases shall be administered pursuant to policies  and procedures  adopted  by  the  county  governing  board  and developed in consultation with the commissioner  of  agriculture  and  markets.  Such policies  and  procedures  shall ensure that the prices paid by a county for any items so purchased do not exceed the prices of comparable  local farm  products  that  are  available  to  the  political  subdivision or district therein through their usual purchases of  such  items;  include provisions for situations when more than one producer or grower seeks to sell  the  same product to a county to ensure that all such producers or growers have an equitable opportunity to do so in a  manner  similar  to the  usual  purchasing  practices of such county; include guidelines for the approval of purchases of items from associations of  more  than  ten growers  or  producers; and, to the maximum extent practicable, minimize additional paperwork, recordkeeping and other  similar  requirements  on both growers and producers and counties.   10.  Notwithstanding  the  foregoing provisions of this section to the contrary, a board of education may, on behalf of  its  school  district, separately   purchase  milk,  directly  from  licensed  milk  processors employing less than forty people pursuant  to  the  provisions  of  this subdivision. The amount that may be expended by a school district in any fiscal year pursuant to this section shall not exceed an amount equal to twenty-five  cents  multiplied by the total number of days in the school year multiplied by the total enrollment of  such  school  district.  All purchases  made  pursuant  to  this  subdivision  shall  be administered pursuant to regulations promulgated by the  commissioner  of  education. The  regulations  promulgated  by  the  commissioner  of education shall ensure that the prices paid by a school  district  for  items  purchased pursuant  to  this  subdivision  do  not exceed the market value of such items and that all licensed processors who desire to sell  to  a  school district pursuant to this subdivision have equal opportunities to do so.   11.  Bid  mistake;  public  projects. (a) In all contracts governed by this section, where a unilateral error or mistake  is  discovered  in  a bid, such bid may be withdrawn after a showing of the following: (1) the mistake  is known or made known to the awarding officer, board or agency prior to the awarding of the contract or within  three  days  after  the opening  of  the bid, whichever period is shorter; and (2) the price bid was based on an error  of  such  magnitude  that  enforcement  would  be unconscionable;  and  (3)  the  bid  was submitted in good faith and the bidder submits credible evidence that the mistake was a  clerical  error as opposed to a judgment error; and (4) the error in the bid is actually due   to  an  unintentional  and  substantial  arithmetic  error  or  an unintentional  omission  of  a  substantial  quantity  of  work,  labor, material, goods or services made directly in the compilation of the bid, which  unintentional  arithmetic  error or unintentional omission can be clearly shown  by  objective  evidence  drawn  from  inspection  of  the original  work paper, documents, or materials used in the preparation of the bid sought to be withdrawn; and (5) it  is  possible  to  place  the public agency, board, officer, or subdivision in status quo ante.  (b)  Unless  otherwise  required  by  law,  the  sole remedy for a bid mistake in accordance with this section shall be withdrawal of that  bid and the return of the bid bond or other security, if any, to the bidder.  Thereafter,   the   awarding  officer,  board  or  agency  may,  in  its discretion, award the contract to the next lowest responsible bidder  or rebid  the  contract.  Any  amendment  to  or  reformation of a bid or a contract  to  rectify  such  an  error  or  mistake  therein is strictly prohibited.   12. Notwithstanding any other provision of this section or  any  other provision  of  law,  boards  of  education  shall  have the authority to determine that a bidder on a contract for the  purchase  of  apparel  or sports equipment is not a responsible bidder for purposes of subdivision one  of  this  section,  based  upon  either  or  both  of the following considerations: (a) the labor standards applicable to the manufacture of the apparel or sports equipment, including but not limited  to  employee compensation,  working  conditions,  employee rights to form unions, and the use  of  child  labor;  or  (b)  the  bidder's  failure  to  provide information  sufficient  for  boards of education to determine the labor standards applicable  to  the  manufacture  of  the  apparel  or  sports equipment.   15.  (a)  Notwithstanding any general, special or local law or rule or regulation to the contrary, an officer, board or agency of  any  county, any  school  district  or  any political subdivision of the state with a population of fifty thousand or more charged with  awarding  a  contract for public work may establish guidelines governing the qualifications of bidders  seeking  to  bid or enter into such contracts. If such officer, board or agency maintains an appropriate list of qualified bidders,  the bidding  shall  be  restricted  to those who have qualified prior to the receipt of bids according to standards fixed by such officer,  board  or agency.  In  determining  whether  a  prospective  bidder  qualifies for inclusion on a list of pre-qualified  bidders,  the  officer,  board  or agency  shall  consider  the experience and record of performance of the prospective bidder in the particular type of work, as well as:  (i)  the prospective  bidder's  ability  to  undertake  the  particular  type and complexity of work; (ii) the financial  capability,  responsibility  and reliability  of  the  prospective bidder for such type and complexity of work; (iii) the record of  the  prospective  bidder  in  complying  with existing  labor  standards  and  maintaining harmonious labor relations; (iv)  the  prospective  bidder's  compliance   with   equal   employment opportunity  requirements and anti-discrimination laws, and demonstrated commitment to working with minority and women-owned  businesses  through joint ventures or subcontractor relationships; and (v) the record of the prospective  bidder  in  protecting  the health and safety of workers on public works projects and job sites as demonstrated by  the  prospective bidder's experience modification rate for each of the last three years.  (b)  Such  public  officer,  board  or  agency  shall,  not  less than annually,  publish  in  a  newspaper  of  general  circulation  in  such political subdivision an advertisement requesting prospective bidders to submit  qualification  statements. Lists of pre-qualified bidders may be established  on  a  project-specific  basis.  Prequalified  lists  shall include  all bidders that qualify; provided, however, that any such list shall have no less than five bidders  but  shall  remain  open  for  all additional  qualified  bidders.  The  public  officer, board or agency's procedures for prequalifying bidders shall include  an  appeals  process for  those  denied  a  place on a pre-qualified list. Any denial must be based upon substantial evidence, cannot be arbitrary or capricious,  and shall be subject to judicial review pursuant to article seventy-eight of the  civil  practice  law and rules. The public officer, board or agency may move forward on the contract award during such appeals.  (c) Any school district or political subdivision of the state  with  a population   of   less  than  fifty  thousand  may  utilize  a  list  of  pre-qualified  bidders  maintained  by  the  county  within  which   the subdivision is located, if such list is maintained.   * 16.  Notwithstanding  the  provisions  of  subdivisions one, two and three of this section, and section one hundred four of this article, any officer, board or agency of a political subdivision or of  any  district therein  authorized to make purchases of apparatus, materials, equipment or supplies, or to contract for services related  to  the  installation, maintenance  or repair of apparatus, materials, equipment, and supplies, may make such purchases, or may contract for such  services  related  to the   installation,  maintenance  or  repair  of  apparatus,  materials, equipment,  and  supplies,  as  may  be  required  by   such   political subdivision or district therein through the use of a contract let by the United  States  of America or any agency thereof, any state or any other political subdivision or district therein if such contract  was  let  to the  lowest responsible bidder or on the basis of best value in a manner consistent with this  section  and  made  available  for  use  by  other governmental  entities; provided, however, that no political subdivision or district therein, other than a city with a population of one  million or  more  inhabitants or any district, board or agency with jurisdiction exclusively therein, may  make  such  purchases  or  contract  for  such services  through  the  use  of such a contract let on the basis of best value in a manner consistent with  this  section  unless  the  political subdivision  or district shall first adopt a local law, rule, regulation or resolution, as the case may be, pursuant to subdivision one  of  this section,  authorizing  the  use  of  best  value  for  awarding purchase contracts.   The authority provided to political subdivisions and districts therein pursuant to this subdivision shall not relieve any  obligation  of  such political  subdivision or district therein to comply with any applicable minority and women-owned business enterprise program  mandates  and  the preferred  source  requirements  of section one hundred sixty-two of the state finance law.   * NB Repealed July 31, 2023