2012 New York Consolidated Laws
PBG - Public Housing
Article 8 - (150 - 159) PROVISIONS RELATING TO APPROVAL, CONSTRUCTION, MANAGEMENT AND OPERATION OF PROJECTS
151 - Authority construction contracts, cancellation of contracts, disqualification to contract with authority, statement of non-collusion in bids or propos

 
    §  151.  Authority  construction contracts, cancellation of contracts,
  disqualification to contract with authority, statement of  non-collusion
  in  bids  or  proposals.    1. Contracts of an authority for demolition,
  excavation, construction, alteration,  renovation  or  for  purchase  of
  materials or supplies shall be in such form and contain such combination
  of  work  or  trades  and  such  terms  and  provisions as may be deemed
  advisable by the authority. All such contracts, except contracts for the
  purchase of materials or supplies, in excess of fifty  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, or if none exists,  in  a  newspaper  circulating  in  the
  municipality. With respect to contracts for the purchase of materials or
  supplies  in  excess  of  twenty-five  thousand  dollars,  the period of
  advertisement shall be not less than ten days before the  date  set  for
  the receipt of bids. If the authority shall deem it to its best interest
  or  necessary or desirable to effectuate the purposes of this chapter or
  the economy and efficiency in construction and operation of  a  project,
  the 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 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 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. An 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  authority,  provided  that  notice or notices for the submission of
  qualifications shall be published in the  official  publication  of  the
  municipality,  or  if  none  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 authority to carry out a  project
  or  any part thereof directly by the officers, agencies and employees of
  the 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 any municipal housing authority or  by  any
  official  of  any  municipal  housing  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  municipal  housing  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 municipal housing
  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  any  municipal  housing  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  municipal  housing
  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 municipal housing authority, for goods, work or services, shall
  enter into a sub-contract 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 any municipal housing 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 municipal housing authority without  incurring  any
  penalty  or  damages on account of such cancellation or termination, but
  any monies owing by the municipal housing 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 municipal housing 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 municipal
  housing  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  municipal
  housing  authority  or  any  official of any municipal housing 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 municipal housing 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 municipal housing authority, for goods,
  work or services, shall enter  into  a  sub-contract  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 superintendent of public  works  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  municipal  housing
  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  municipal  housing 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 any municipal  housing  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.
    6.  Notwithstanding  the  provisions of any other law to the contrary,
  all contracts for public work awarded pursuant  to  this  section  by  a
  municipal housing authority created under article thirteen of the public
  housing  law  shall  be in accordance with sections one hundred six, one
  hundred six-a and one hundred six-b of the general municipal law.