US Laws, Codes, Statutes & Cases

 
    §  312. Procurement; general rule and exceptions. a. Prior to entering
  into or renewing a contract valued at more  than  one  hundred  thousand
  dollars  to  provide  technical,  consultant,  or  personal services, an
  agency shall follow the procedure established herein.
    1. Prior to issuing an invitation for bids, request for proposals,  or
  other  solicitation,  the  agency  shall determine whether such contract
  will directly result in the displacement of any city  employee.  If  the
  agency  determines  that such result would not occur, it shall include a
  certification to  that  effect,  signed  by  the  agency  head,  in  any
  invitation  for  bids,  request for proposals, or other solicitation. If
  the agency determines that such result would  occur,  the  agency  shall
  determine  the costs incurred and the benefits derived in performing the
  service,  consistent  with  the  scope  and  specifications  within  the
  solicitation,  with city employees, and shall submit such analysis, with
  all supporting documentation, prior to issuance of any solicitation,  to
  the comptroller.
    2.  Immediately  upon  receipt of bids and proposals, the agency shall
  submit such determination, analysis, and supporting documentation to the
  council and to the  appropriate  collective  bargaining  representatives
  representing  employees who would be affected pursuant to paragraph 1 of
  subdivision a of this section.
    3.  Prior  to  award  of  a  contract,  the  agency  shall  perform  a
  comparative  analysis  of  the  costs  expected  to  be incurred and the
  benefits expected to be derived from entering into a contract  with  the
  proposed  vendor,  based on such vendor's best and final offer, and such
  agency's analysis of the costs incurred and the  benefits  derived  from
  providing the service with city employees. If the agency head intends to
  award  the  contract,  he  or  she  shall  submit  the reasons therefor,
  together with such analysis, and all supporting  documentation,  to  the
  comptroller,  the  council,  and  the  appropriate collective bargaining
  representatives representing employees who would be affected pursuant to
  paragraph 1 of paragraph a of this section.
    4. The council may, within thirty days after receipt of such  reasons,
  analysis, and supporting documentation hold a hearing on this matter. No
  contract  award shall be made prior to the expiration of this thirty-day
  period or a council hearing, whichever is sooner.
    5. a. All cost and comparative analyses required  under  this  section
  shall be conducted in accordance with standard methodology of the office
  of  management  and  budget,  and  consistent  with  the  rules  of  the
  procurement policy board,  as  both  are  modified  herein,  subject  to
  further  modification  by  local  law.  Such  analyses shall include all
  reasonable costs associated  with  performing  the  service  using  city
  employees  and  all  reasonable  costs  associated  with  performing the
  service under the proposed contract.
    b.  Such  analyses  shall   further   include,   the   total   number,
  qualifications,  job  descriptions,  and  titles  of all personnel to be
  employed by the vendor under the  proposed  contract,  as  well  as  the
  nature  and  cost  of  salaries  and  benefits  to  be  provided to such
  personnel.
    c. Such analyses shall further include, but not  be  limited  to,  the
  cost  of  employee  supervision directly related to the provision of the
  service,   vendor   solicitation,   contract    preparation,    contract
  administration, monitoring and evaluating the contractor, capitalization
  of  equipment  over the period such equipment shall be in use, supplies;
  the cost of providing the equivalent quantity and quality of service  by
  city  employees  compared  to  the  cost  of  providing  such service by
  contract, based upon the best and final offer of  the  proposed  vendor,

  and  such  other factors as will assist in arriving at full and accurate
  cost determinations and comparisons.
    6.  The reasons given to award the contracts shall include all factors
  that have been considered in determining whether  contracting  for  this
  service is in the best interest of the city, whether or not such reasons
  are  contained  within  the  cost or comparative analyses.  Such factors
  shall include, but not be  limited  to,  the  potential  for  contractor
  default,  the  time  required to perform the service, and the quality of
  the service to be delivered.
    7. The mayor or his or her designee may prepare and implement  a  plan
  of  assistance for displaced city employees, which may include, but need
  not be limited to,  training  to  place  such  employees  in  comparable
  positions within the contracting agency or any other agency. The cost of
  such  assistance plan may be included within the cost of contracting-out
  in the cost and comparative analyses.
    8. For the purpose of this  section,  "displacement"  shall  mean  any
  employment  action  that  results in a reduction in the number of funded
  positions, including but  not  limited  to,  those  resulting  from  the
  layoff;  demotion;  bumping; involuntary transfer to a new class, title,
  or location; time-based reductions, or reductions in customary hours  of
  work, wages, or benefits of any city employee.
    b.  1.    Except  as  provided for in sections three hundred fourteen,
  three hundred fifteen and three  hundred  sixteen,  contracts  shall  be
  awarded  by competitive sealed bidding under such rules as shall be made
  by the procurement policy board, except  that,  in  a  special  case  as
  defined  in  subdivision  b  of  this  section,  the  head  of an agency
  proposing to award such contract may order otherwise in accordance  with
  policies and procedures established by the procurement policy board.
    2.  A  determination  by  the  head  of  an  agency  to use other than
  competitive sealed bidding except as  provided  for  by  sections  three
  hundred  fourteen  and  three  hundred sixteen shall be made in writing,
  stating the reasons why competitive sealed bidding is not practicable or
  not advantageous and why the method of procurement selected pursuant  to
  section three hundred seventeen is the most competitive alternative that
  is  appropriate  under  the  circumstances. The head of the agency shall
  include the determination or a  summary  of  the  determination  in  the
  notice of solicitation, or for an emergency procurement in the notice of
  award,  required  to  be  published  pursuant  to  section three hundred
  twenty-five of this chapter.
    c. 1. For the purposes of this chapter, the term "special case"  shall
  be  defined  as a situation in which it is either not practicable or not
  advantageous to the city to use competitive sealed bidding  for  one  of
  the following reasons:
    i.  specifications cannot be made sufficiently definite and certain to
  permit selection based on price alone;
    ii. judgment is required in evaluating competing proposals, and it  is
  in  the  best  interest  of  the  city  to require a balancing of price,
  quality, and other factors;
    iii. the good, service or construction to  be  procured  is  available
  only from a single source;
    iv.   testing  or  experimentation  is  required  with  a  product  or
  technology, or a new source for a product or technology, or to  evaluate
  the service or reliability of such product or technology; or
    v.  such  other  reasons  as defined by rule of the procurement policy
  board.
    2. The procurement policy board may provide by rule that it is  either
  not  practicable or not advantageous to the city, for one of the reasons

  set forth in paragraph one of this subdivision, to procure  a  specified
  type of good, service or construction by competitive sealed bidding.