2023 New York Laws › TRA - Transportation › Article 2-D - Utica Transit Authority › 52 - Construction Contracts, Cancellation of Contracts, Disqualification to Contract With Mass Transportation Authority, Statement of Non-Collusion in Bids

§ 52. Construction     contracts,     cancellation    of    contracts,
disqualification  to  contract  with  mass   transportation   authority,
statement  of  non-collusion  in  bids on proposals. 1. Contracts of the
Utica  transit  authority  for  construction,  alteration,   renovation,
demolition, excavation or for purchase of materials or supplies shall be
in  such  form  and contain provisions as may be deemed advisable by the
Utica transit authority. All such contracts in excess  of  ten  thousand
dollars shall be made on sealed bids, in compliance with a public notice
advertised  at least once, not less than twenty days before the date set
for the receipt of bids, in the official publication of the municipality
in which the main office of the Utica transit authority is located or if
no such official publication exists, in a newspaper circulating  in  the
municipality.  If  the Utica transit authority shall deem it to its best
interest or necessary or desirable to effectuate the  purposes  of  this
article or the economy and efficiency in construction and operation of a
project, the Utica transit authority by majority vote of its members may
either  reject  all bids or readvertise for bids or by unanimous vote of
its members may accept a bid other than the  lowest  bid.  In  any  such
contract  there  may  be inserted in the discretion of the Utica transit
authority, a provision that additional work may be done or materials and
supplies furnished or that work or materials  may  be  omitted  for  the
purpose  of  completing  such  contract  in accordance with any changes,
omissions or additions in the specifications of any such contract.  Each
contract shall provide that in the case of default by the contractor the
Utica  transit  authority  may  adopt  on  behalf  of  the authority all
subcontracts made by such contractor and all such  subcontractors  shall
be  bound by such adoption if made, and the authority may relet, with or
without  public  advertisement,  the  work  specified  in  the  original
contract,  exclusive  of  so  much  thereof  as shall be provided in any
subcontracts so adopted. The Utica transit authority may make rules  and
regulations  governing  the qualifications of bidders, the submission of
combined bids by two or more contractors, the award and execution of the
contract, security,  if  any,  for  execution  and  performance  of  the
contract,  and  any other matters relating to the contract.  The bidding
may be restricted to those who shall have qualified prior to the receipt
of bids according to standards fixed by  the  Utica  transit  authority,
provided  that  notice  or  notices for the submission of qualifications
shall be published in the official publication of  the  municipality  in
which  the  main office of the Utica transit authority is located, or if
no such official publication exists, in a newspaper circulating  in  the
municipality,  at  least  once, not less than ten days prior to the date
fixed for the filing of qualifications. Nothing in this section shall be
construed to limit the power of the Utica transit authority to carry out
a project or any part thereof directly by  the  officers,  agencies  and
employees  of  the  Utica transit authority, or by any government, or to
purchase  or  acquire  materials  or  supplies  through  the  purchasing
officer, department or agency of a government.
2.  A  clause  shall  be  inserted  in all specifications or contracts
hereafter made or awarded by the  Utica  transit  authority  or  by  any
official  of the Utica transit authority, for work or services performed
or to be performed or goods sold or to be sold, to provide that upon the
refusal by a person  who  directly  or  indirectly  derives  a  monetary
benefit  which  is  traceable  to such a specification or contract, when
called before a grand jury to  testify  concerning  any  transaction  or
contract  had  with the state or of any political subdivision thereof, a
public authority, a mass transportation authority  or  with  any  public
department,  agency  or  official  of  the  state  or  of  any political
subdivision  thereof  or  of  any  public  authority  or   of   a   mass

transportation  authority or subcontract thereunder, to sign a waiver of
immunity against  subsequent  criminal  prosecution  or  to  answer  any
relevant question concerning such transaction, contract or subcontract.
(a)  Such  person and any firm, partnership or corporation of which he
is a member, partner, director or officer, shall  be  disqualified  from
thereafter  selling to or submitting bids to or receiving awards from or
entering into any contracts with the Utica transit authority or official
thereof or any  subcontract  thereunder,  or  sub-contracting  with  any
person,  firm,  partnership or corporation who or which has entered into
any such  contract  or  contracts,  in  relation  to  such  contract  or
contracts, for goods, work or services, for a period of five years after
such  refusal.  No person, firm, partnership or corporation who or which
has entered into any contract  or  contracts  with  the  state,  or  any
political subdivision thereof, a public authority, a mass transportation
authority,  or  with  any  public  department, agency or official of the
state or any political subdivision thereof or of any  public  authority,
or  of  a  mass  transportation  authority, for goods, work or services,
shall enter  into  a  subcontract  thereon  with  any  person,  firm  or
corporation  which  is disqualified to contract as provided herein. Such
clause shall also provide that
(b) Any and all contracts made with the  Utica  transit  authority  or
official thereof or any subcontract thereunder, since the effective date
of  this law, by such person and by any firm, partnership or corporation
of which he is a member, partner, director or officer may  be  cancelled
or  terminated  by  the  Utica  transit  authority without incurring any
penalty or damages on account of such cancellation or  termination,  but
any  moneys  owing  by the Utica transit authority or by a contractor or
subcontractor thereunder for goods delivered or work done prior  to  the
cancellation or termination shall be paid.
3.  (a)  Any  person  who,  when called before a grand jury to testify
concerning any transaction or contract had with the state, any political
subdivision thereof, a public authority, a mass transportation authority
or with a public department, agency or official of the state or  of  any
political  subdivision  thereof  or  of  a public authority or of a mass
transportation authority, refuses to sign a waiver of  immunity  against
subsequent  criminal  prosecution  or  to  answer  any relevant question
concerning such transaction or contract, and any  firm,  partnership  or
corporation  of which he is a member, partner, director or officer shall
be disqualified from thereafter selling to  or  submitting  bids  to  or
receiving  awards  from  or  entering  into  any contracts with any mass
transportation authority or any  official  of  any  mass  transportation
authority  created  by  the  state  or  any  political  subdivision,  or
sub-contracting with any person, firm, partnership or corporation who or
which has entered into any such contract or contracts,  in  relation  to
such contract or contracts, for goods, work or services, for a period of
five  years  after  such  refusal  or  until a disqualification shall be
removed pursuant to the applicable provisions of law. No  person,  firm,
partnership or corporation who or which has entered into any contract or
contracts with the state, or any political subdivision thereof, a public
authority,   a   mass  transportation  authority,  or  with  any  public
department, agency or official of the state or any political subdivision
thereof or  of  any  public  authority,  or  of  a  mass  transportation
authority,  for  goods, work or services, shall enter into a subcontract
thereon with any person, firm or corporation which  is  disqualified  to
contract as provided herein.
(b)  It  shall be the duty of the officer conducting the investigation
before the grand jury before which the refusal occurs to send notice  of
such  refusal,  together  with  the  names  of  any firm, partnership or

corporation of which the person so refusing is known  to  be  a  member,
partner,  officer  or director, to the commissioner of transportation of
the state of New York and  the  appropriate  departments,  agencies  and
officials  of  the  state,  political  subdivisions  thereof  or  public
authorities with whom the person so refusing and any  firm,  partnership
or corporation of which he is a member, partner, director or officer, is
known to have a contract.
4.  (a)  Any firm, partnership or corporation which has become subject
to the cancellation or termination  of  a  contract  or  subcontract  or
disqualification to contract or subcontract on account of the refusal of
a  member,  partner,  director or officer thereof to waive immunity when
called to testify, as provided in subdivisions two  and  three  of  this
section,  may,  upon ten days' notice to the attorney general and to the
officer who conducted the investigation before the grand jury  in  which
the  refusal  occurred,  make  an  application  at a special term of the
supreme court held within the judicial district  in  which  the  refusal
occurred   for  an  order  discontinuing  the  disqualification.    Such
application shall be in the form of a petition  setting  forth  grounds,
including  that the cooperation by petitioner with the grand jury at the
time of the refusal was such, and the amount and degree of  control  and
financial  interest,  if  any,  in  the petitioning firm, partnership or
corporation by the member, partner, officer or director who  refused  to
waive  immunity  is  such  that it will not be in the public interest to
cancel  or  terminate  petitioner's  contracts  or  subcontracts  or  to
continue the disqualification, as provided in subdivisions two and three
of this section.
A  copy  of  the petition and accompanying papers shall be served with
the notices to be given pursuant to this subdivision.
(b) Upon the filing  of  such  petition  the  court  may  stay  as  to
petitioner,  pending  a  decision upon the petition, the cancellation or
termination of any contracts or subcontracts resulting from such refusal
upon such terms as to notice or otherwise as may be just.
(c) At least two days  prior  to  the  return  day,  the  officer  who
conducted  the  investigation  before  the  grand  jury and the attorney
general may  file  answers  to  the  petition  or  apply  for  an  order
dismissing  the petition as a matter of law. On or before the return day
the petitioner may file a reply to the answer.
(d) Upon the return day the court may, upon the  petition  and  answer
and  other  papers  filed, forthwith render such final order as the case
requires, or if a triable  issue  of  fact  is  duly  raised,  it  shall
forthwith  be  tried  before  a court sitting without a jury or before a
referee. The provisions of statute or rule governing  references  in  an
action shall apply to a reference under this subdivision.
(e)  The  court  shall render a final order dismissing the petition on
the merits or discontinuing the disqualification upon  the  ground  that
the  public interest would be served by its discontinuance, and granting
such other relief as to the cancellation or termination of contracts  or
subcontracts as may be appropriate, but without costs to petitioner.
5.  (a)  Every bid or proposal hereafter made to a mass transportation
authority where competitive bidding is  required  by  statute,  rule  or
regulation,  for  work or services performed or to be performed or goods
sold or to be sold shall contain the following statement  subscribed  by
the  bidder  and  affirmed by such bidder as true under the penalties of
perjury: Non-collusive bidding certification.
(1) By submission of this bid, each bidder and each person signing  on
behalf  of  any  bidder  certifies,  and in the case of a joint bid each
party thereto certifies as to its own  organization,  under  penalty  of
perjury, that to the best of his knowledge and belief:
(i)  The prices in this bid have been arrived at independently without
collusion, consultation, communication, or agreement, for the purpose of
restricting competition, as to any matter relating to such  prices  with
any other bidder or with any competitor;
(ii)  Unless  otherwise  required  by  law, the prices which have been
quoted in this bid have not been knowingly disclosed by the  bidder  and
will not knowingly be disclosed by the bidder prior to opening, directly
or indirectly, to any other bidder or to any competitor; and
(iii) No attempt has been made or will be made by the bidder to induce
any  other person, partnership or corporation to submit or not to submit
a bid for the purpose of restricting competition.
(2) A bid shall not be considered for award nor  shall  any  award  be
made  where  (1)  (i)  (ii) and (iii) above have not been complied with;
provided however, that if  in  any  case  the  bidder  cannot  make  the
foregoing  certification,  the  bidder  shall so state and shall furnish
with the bid a signed statement which sets forth in detail  the  reasons
therefor.  Where  (1)  (i)  (ii)  and (iii) above have not been complied
with, the bid shall not be considered for award nor shall any  award  be
made  unless  the  Utica  transit  authority  to  which  the bid is made
determines that  such  disclosure  was  not  made  for  the  purpose  of
restricting competition.
The  fact  that  a  bidder  (a)  has  published price lists, rates, or
tariffs covering items being  procured,  (b)  has  informed  prospective
customers  of  proposed  or  pending publication of new or revised price
lists for such items, or (c) has sold the same items to other  customers
at  the  same  prices  being  bid,  does not constitute, without more, a
disclosure within the meaning of paragraph (a) of this subdivision.
(b) Any bid hereafter  made  to  the  Utica  transit  authority  by  a
corporate  bidder  for  work or services performed or to be performed or
goods sold or to be sold,  where  competitive  bidding  is  required  by
statute, rule, regulation, or local law, and where such bid contains the
certification referred to in paragraph (a) of this subdivision, shall be
deemed  to have been authorized by the board of directors of the bidder,
and such authorization shall  be  deemed  to  include  the  signing  and
submission of the bid and the inclusion therein of the certificate as to
non-collusion as the act and deed of the corporation.