2023 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 March 1, 2024
* 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.  Provided  however, the appropriate officer, board or
agency of a city with a population of one million inhabitants  or  more,
or  any  district,  board or agency with jurisdiction exclusively within
such city, may authorize or require bids and offers for any contract  to
be  submitted  in  an electronic format. 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 March 1, 2024 until June 1, 2028
* 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, 2028
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 March 1, 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. Provided, however, the appropriate
officer, board or agency of a city with  a  population  of  one  million
inhabitants  or more, or any district, board or agency with jurisdiction
exclusively within such city, may conduct a public opening, reading  and
identification  by  means  of  livestreaming  on  a  publicly accessible
website listed in the advertisement at a time and date specified in such
advertisement, and post a record of such bids or offers  and  any  other
required  information  on  a  website  maintained  or controlled by such
district, officer, board or agency on such date  within  five  days.  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 March 1, 2024 until June 1, 2028
* 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, 2028
* 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. (a) 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, grown, produced or harvested,  in
New  York  State,  provided  that  such  order  is for one hundred fifty
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  fifty  thousand dollars from an association of
owners of such farms when no other producers or growers have offered  to
sell to such school.
(b)  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;  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  produced  in  New  York State, directly from
licensed milk processors 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 June 30, 2026