New York Codes, Rules and Regulations › Title 9 - EXECUTIVE DEPARTMENT › Subtitle A - Governor's Office › Chapter I - Executive Orders › Part 4 - Executive Orders (Mario M. Cuomo) › Section 4.170 - Executive order no. 170: establishing uniform guidelines for determining the responsibility of bidders

Current through Register Vol. 46, No. 28, July 10, 2024
WHEREAS, it is the established policy of the State of New
					 York to award certain contracts to the lowest responsible and reliable bidder
					 as will best promote the public interest;
WHEREAS, the statutes requiring competitive bidding of
					 State contracts and approval of subcontractors have been interpreted by the
					 courts to authorize contracting agencies to examine the responsibility of
					 bidders for contracts and proposed subcontractors on a case-by-case
					 basis;
WHEREAS, these reviews may include an examination of the
					 skill, judgment, integrity, financial resources, performance, conduct and labor
					 practices of bidders and proposed subcontractors on prior contracts, and
					 consideration of the background of such bidders and subcontractors for this
					 purpose, including their ownership, management, affiliation, history of past
					 performance, and compliance with relevant State and federal laws and
					 regulations;
WHEREAS, the Council of Contracting Agencies, which was
					 created within the Executive Department by Executive Order Number 125 to ensure
					 the systematic collection and timely exchange of information relevant to agency
					 determinations of responsibility and reliability of bidders, contractors and
					 proposed subcontractors, has recently developed and adopted guidelines for the
					 determination of contractor responsibility consistent with the duties of
					 contracting agencies and the court interpretations of State law and regulations
					 governing competitive bidding; and
WHEREAS, the public interest would be served by the uniform
					 application of these guidelines by all contracting agencies;
NOW, THEREFORE, I, MARIO M. CUOMO, Governor of the State of
					 New York, by virtue of the authority vested in me by the Constitution and Laws
					 of the State of New York, do hereby order as follows:
A. Guidelines for Responsibility
				  Determinations
In deliberating upon the responsibility of a bidder or a
					 subcontractor, all contracting agencies shall give due consideration to any
					 credible evidence or reliable information that the past or current record of a
					 bidder or proposed subcontractor includes any of the following:
1. Lack of adequate expertise, prior
				  experience with comparable projects, or financial resources to perform the work
				  of the contract or subcontract in a timely, competent, and acceptable manner.
				  Evidence of such a lack of ability to perform may include, but shall not be
				  limited to, evidence of suspension or revocation for cause of any professional
				  license of any director or officer, or any holder of five percent or more of
				  the bidder's or proposed subcontractor's stock or equity; failure to submit
				  satisfactory evidence of insurance, surety bonds or financial responsibility;
				  or a history of termination of prior contracts for cause.
2. Criminal conduct in connection with
				  government contract or the conduct of business activities involving:
a) the infliction, attempted infliction, or
				  threat of death, intentional personal injury, or intentional property damage,
				  in connection with involvement in a pattern of racketeering, labor
				  racketeering, extortion, obstruction of justice, or other comparable
				  crimes;
b) bribery, fraud,
				  bid-rigging, embezzlement, or other comparable crimes; or
c) serious moral turpitude, fundamental lack of
				  integrity, or knowing disregard for the law. Evidence of such conduct may
				  include a judgment of conviction, pending criminal indictment or formal grant
				  of immunity in connection with a criminal prosecution of the bidder or proposed
				  subcontractor, any director or officer, or any holder of five percent or more
				  of the shares or equity of the bidder or proposed subcontractor, or any
				  affiliate of the bidder or proposed subcontractor.
3. Grave disregard for the personal safety of
				  employees, State personnel, or members of the public. Due consideration shall
				  be given to whether available evidence concerning the training of employees,
				  equipment actually in use at the work site, and company practices for
				  identifying and addressing deficiencies and securing employee compliance,
				  demonstrates a genuine commitment to safety, or lack of same.
4. Willful noncompliance with the prevailing
				  wage and supplements payment requirements of the Labor Law, including
				  consideration of any pending violations of the bidder or proposed
				  subcontractor, or any affiliate of the bidder or proposed
				  subcontractor.
5. Any other
				  significant Labor Law violations, including but not limited to, child labor
				  violations, failure to pay wages, or unemployment insurance tax
				  delinquencies.
6. Any significant
				  violation of the Workers' Compensation Law, including but not limited to, the
				  failure of a bidder or proposed subcontractor to provide proof of workers'
				  compensation or disability benefits coverage.
7. Any criminal conduct involving violations
				  of the Environmental Conservation Law or other federal or State environmental
				  statutes, or repeated or significant civil violations of federal or State
				  environmental statutes or regulations.
8. The failure of a bidder or contractor to
				  demonstrate good faith efforts to comply with applicable federal or State
				  statutes and regulations requiring efforts to solicit and utilize
				  minority-owned and women-owned business enterprises and disadvantaged business
				  enterprises as potential subcontractors, in connection with a pending bid for
				  the performance of a federal-aid or State funded or assisted project subject to
				  such statutory and regulatory requirements.
9. The failure of a bidder, contractor, or
				  proposed subcontractor to comply with federal or State statutes or regulations
				  requiring the hiring, training and employment of persons presumed to be
				  disadvantaged in accordance with federal and State definitions to meet federal
				  and State equal employment opportunity requirements.
10. The submission of a bid which is
				  mathematically or materially unbalanced.
11. The submission of a bid which is so much
				  lower than the agency's confidential engineers' estimate of the cost of, or
				  anticipated bids for, the contract, that it appears unlikely that the bidder
				  will be able to perform the contract satisfactorily at the price bid.
12. Any other cause of so serious or
				  compelling a nature that it raises questions about the present responsibility
				  of a contractor or subcontractor, including but not limited to, submission to a
				  contracting agency of a false or misleading statement on a uniform
				  questionnaire, or in some other form, in connection with a bid for or award of
				  a contract or a request for approval of a subcontractor.
In addition to the factors specified above, contracting
					 agencies may also give due consideration to any other factors considered by the
					 contracting agencies to bear upon responsibility, including but not limited to,
					 any mitigating factors brought to the agency's attention by the bidder or
					 proposed subcontractor.