2023 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-eight; 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 June 30, 2028
* (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 June 30, 2028
* (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  five  hundred  thousand  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 June 30, 2028
* (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 June 30, 2028
(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, (ii)  Nassau
county,  (iii)  the  state of New York, (iv) the city of New York or (v)
the United States general services  administration  provided  that  such
administration utilized a process of competitive bidding or a process of
competitive requests for proposals to award such contract, 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. Such rationale shall include,
but need not be limited to, a determination of need, a consideration  of
the procurement method by which the contract was awarded, an analysis of
alternative   procurement   sources   including  an  explanation  why  a
competitive procurement or the use of a centralized contract let by  the
commissioner  of  the  office  of  general  services  is not in the best
interest of the authority, and the reasonableness of cost. 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 June 30, 2028
* (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 June 30, 2028
(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 June 30, 2028
* (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 June 30, 2028
(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 once 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 June 30, 2028
* 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 June 30, 2028
* 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 June 30, 2028
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.