2006 New York Code - Advertising For Bids; Letting Of Contracts; Criminal Conspiracies.

 
    §   103.   Advertising   for  bids;  letting  of  contracts;  criminal
  conspiracies. * 1. Except as otherwise expressly provided by an  act  of
  the  legislature  or  by  a  local law adopted prior to September first,
  nineteen hundred fifty-three, all contracts for public work involving an
  expenditure of more  than  twenty  thousand  dollars  and  all  purchase
  contracts  involving  an  expenditure of more than ten thousand dollars,
  shall be awarded by the  appropriate  officer,  board  or  agency  of  a
  political  subdivision  or  of  any  district  therein including but not
  limited to a soil  conservation  district,  to  the  lowest  responsible
  bidder  furnishing  the required security after advertisement for sealed
  bids in the manner provided  by  this  section.  In  any  case  where  a
  responsible  bidder's  gross  price is reducible by an allowance for the
  value of used machinery, equipment, apparatus or tools to be  traded  in
  by  a  political  subdivision,  the  gross price shall be reduced by the
  amount of such allowance, for the purpose of determining the low bid. In
  cases where two or more  responsible  bidders  furnishing  the  required
  security  submit  identical  bids  as  to  price, such officer, board or
  agency may award the contract to any  of  such  bidders.  Such  officer,
  board  or  agency  may,  in  his  or its discretion, reject all bids and
  readvertise for new bids in the manner provided  by  this  section.  For
  purposes  of  this  section,  "sealed  bids",  as  that  term applies to
  purchase contracts,  shall  include  bids  submitted  in  an  electronic
  format,  provided  that the governing board of the political subdivision
  or district, by resolution, has authorized the receipt of bids  in  such
  format. Submission in electronic format may not, however, be required as
  the  sole  method  for  the  submission  of  bids.  Bids submitted in an
  electronic format shall be  transmitted  by  bidders  to  the  receiving
  device  designated  by the political subdivision or district. Any method
  used to receive electronic bids shall comply with article three  of  the
  state  technology  law,  and  any  rules and regulations promulgated and
  guidelines developed thereunder and, at a minimum, must (a) document the
  time and date of  receipt  of  each  bid  received  electronically;  (b)
  authenticate  the identity of the sender; (c) ensure the security of the
  information transmitted; and (d) ensure the confidentiality of  the  bid
  until  the time and date established for the opening of bids. The timely
  submission of an electronic bid in compliance with instructions provided
  for  such  submission  in  the  advertisement  for   bids   and/or   the
  specifications  shall  be  the  responsibility  solely of each bidder or
  prospective bidder. No political subdivision or district  therein  shall
  incur  any  liability  from  delays of or interruptions in the receiving
  device designated for the submission and receipt of electronic bids.
    * NB Effective until June 1, 2008
    * 1.  Except  as  otherwise  expressly  provided  by  an  act  of  the
  legislature or by a local law adopted prior to September first, nineteen
  hundred   fifty-three,  all  contracts  for  public  work  involving  an
  expenditure of more  than  twenty  thousand  dollars  and  all  purchase
  contracts  involving  an  expenditure of more than ten thousand dollars,
  shall be awarded by the  appropriate  officer,  board  or  agency  of  a
  political  subdivision  or  of  any  district  therein including but not
  limited to a soil  conservation  district,  to  the  lowest  responsible
  bidder  furnishing  the required security after advertisement for sealed
  bids in the manner provided  by  this  section.  In  any  case  where  a
  responsible  bidder's  gross  price is reducible by an allowance for the
  value of used machinery, equipment, apparatus or tools to be  traded  in
  by  a  political  subdivision,  the  gross price shall be reduced by the
  amount of such allowance, for the purpose of determining the low bid. In
  cases where two or more  responsible  bidders  furnishing  the  required
  security  submit  identical  bids  as  to  price, such officer, board or
  agency may award the contract to any  of  such  bidders.  Such  officer,
  board  or  agency  may,  in  his  or its discretion, reject all bids and
  readvertise for new bids in the manner provided by this section.
    * NB Effective June 1, 2008
    1-a.  Whenever  possible,  practical, and feasible and consistent with
  open competitive bidding, the officer, board or agency of any  political
  subdivision  or  of  any  district  therein charged with the awarding of
  contracts may  use  the  stock  item  specifications  of  manufacturers,
  producers  and/or  assemblers  located  in  New York state in developing
  specifications for items to be let for bid in its  purchasing  contracts
  and   may   use  the  data  and  information  contained  in  stock  item
  specifications forms as provided in section one hundred sixty-four-a  of
  the state finance law to assist in his determination of what constitutes
  a stock item of a manufacturer, producer and/or assembler located in New
  York  state  for  the  purpose  of  helping to retain jobs, business and
  industry presently in the state of New York and attracting expanded  and
  new business and industry to the state of New York so as to best promote
  the public interest.
    * 2.  Advertisement  for  bids  shall  be  published  in  the official
  newspaper or  newspapers,  if  any,  or  otherwise  in  a  newspaper  or
  newspapers designated for such purpose. Such advertisement shall contain
  a  statement of the time when and place where all bids received pursuant
  to such notice will be publicly opened and read, and the designation  of
  the  receiving  device  if  the  political  subdivision  or district has
  authorized the receipt of bids in an electronic format.  Such  board  or
  agency  may  by resolution designate any officer or employee to open the
  bids at the time and place specified in the notice. Such designee  shall
  make  a  record  of  such  bids  in such form and detail as the board or
  agency shall prescribe and present the  same  at  the  next  regular  or
  special  meeting  of  such  board  or agency. All bids received shall be
  publicly opened and read at the time and place so  specified.  At  least
  five   days   shall   elapse  between  the  first  publication  of  such
  advertisement and the date so specified for the opening and  reading  of
  bids.
    * NB Effective until June 1, 2008
    * 2.  Advertisement  for  bids  shall  be  published  in  the official
  newspaper or  newspapers,  if  any,  or  otherwise  in  a  newspaper  or
  newspapers designated for such purpose. Such advertisement shall contain
  a  statement of the time when and place where all bids received pursuant
  to such notice will be publicly opened and read. Such  board  or  agency
  may  by resolution designate any officer or employee to open the bids at
  the time and place specified in the notice. Such designee shall  make  a
  record of such bids in such form and detail as the board or agency shall
  prescribe and present the same at the next regular or special meeting of
  such  board  or  agency.  All bids received shall be publicly opened and
  read at the time and place so specified. At least five days shall elapse
  between the first publication of such  advertisement  and  the  date  so
  specified for the opening and reading of bids.
    * NB Effective June 1, 2008
    3.  Notwithstanding the provisions of subdivision one of this section,
  any officer, board or agency  of  a  political  subdivision  or  of  any
  district therein, located in whole or in part in a county, authorized to
  make  purchases  of materials, equipment or supplies, or to contract for
  services, may make such purchases, or may contract for  services,  other
  than  services  subject  to article eight or nine of the labor law, when
  available, through the county in  which  the  political  subdivision  or
  district  is  located  or through any county within the state subject to
  the rules established  pursuant  to  subdivision  two  of  section  four
  hundred   eight-a  of  the  county  law;  provided  that  the  political
  subdivision or district for which such officer,  board  or  agency  acts
  shall  accept  sole  responsibility  for  any  payment due the vendor or
  contractor.  All  purchases and all contracts for such services shall be
  subject to audit and inspection by the political subdivision or district
  for which made. Prior to making such purchases or contracts the officer,
  board or agency shall consider whether such  contracts  will  result  in
  cost savings after all factors, including charges for service, material,
  and  delivery,  have  been  considered. No officer, board or agency of a
  political subdivision or of any district therein shall make any purchase
  or contract for any such  services  through  the  county  in  which  the
  political  subdivision  or  district  is  located  or through any county
  within the state when bids have been received for such purchase or  such
  services  by  such officer, board or agency, unless such purchase may be
  made or the contract for such services may be entered into upon the same
  terms, conditions and  specifications  at  a  lower  price  through  the
  county.
    4.  Notwithstanding the provisions of subdivision one of this section,
  in the case of a public emergency arising out of an  accident  or  other
  unforeseen  occurrence  or  condition  whereby  circumstances  affecting
  public buildings,  public  property  or  the  life,  health,  safety  or
  property  of  the  inhabitants  of  a  political subdivision or district
  therein,  require  immediate  action  which  cannot  await   competitive
  bidding, contracts for public work or the purchase of supplies, material
  or equipment may be let by the appropriate officer, board or agency of a
  political subdivision or district therein.
    5.  Upon  the  adoption  of  a  resolution  by  a  vote  of  at  least
  three-fifths of all the members of the governing  body  of  a  political
  subdivision  or district therein stating that, for reasons of efficiency
  or economy, there is need for standardization, purchase contracts for  a
  particular  type or kind of equipment, material or supplies of more than
  ten thousand dollars may be awarded by the appropriate officer, board or
  agency of such political subdivision or any such  district  therein,  to
  the  lowest  responsible  bidder  furnishing the required security after
  advertisement for sealed bids therefor in the manner  provided  in  this
  section. Such resolution shall contain a full explanation of the reasons
  for its adoption.
    6.  Surplus  and  second-hand  supplies,  material or equipment may be
  purchased without competitive bidding from the federal  government,  the
  state  of  New York or from any other political subdivision, district or
  public benefit corporation.
    7. A person  or  corporation  who  conspires  to  prevent  competitive
  bidding on a contract for public work or purchase advertised for bidding
  shall  be  guilty  of  a  misdemeanor as provided in section one hundred
  three-e of this chapter.
    8. Where  municipal  hospitals  or  nutrition  programs  that  receive
  federal,  state,  or local funding purchase goods, supplies and services
  under joint contracts and arrangements entered into pursuant to  section
  twenty-eight hundred three-a of the public health law, they shall not be
  required  to  comply  with  the  provisions  of  subdivision one of this
  section.
    8-a. (a) Notwithstanding the foregoing provisions of this  section,  a
  political  subdivision,  when  letting contracts in accordance with this
  subdivision for the purchase of food products,  may  require  provisions
  that  mandate  that  the  essential components of such food products are
  grown, produced or harvested in New York state, or that  any  processing
  of  such  food products take place in facilities located within New York
  state.
    (b) The commissioner of agriculture and markets shall determine, using
  uniform criteria, those food products for which the requirements of this
  subdivision are deemed beneficial. The commissioner shall  promulgate  a
  list of such food products and ascertain those periods of time each year
  that  the  listed food products are available in sufficient quantity for
  competitive purchasing and shall forward such information  upon  request
  to  such  political  subdivisions  that  shall  make  determinations  as
  provided herein. The  commissioner  of  agriculture  and  markets  shall
  update such list as often as he deems necessary.
    (c)  (i)  Such political subdivision shall specify, with the advice of
  the commissioner of agriculture and markets, the percentage of each food
  product required to be grown, produced, harvested  or  processed  within
  New York state.
    (ii) Upon a determination by such political subdivision that such food
  products  are  not  available in sufficient quantity for purchasing, the
  specifications requiring such purchase shall be waived for that specific
  food product until the next contract for such food product  is  let  out
  for bid.
    (iii)  Upon  a  determination  by such political subdivision that food
  processing facilities are not  available  for  the  processing  of  food
  products  purchased  under  specifications required by this section, the
  specifications requiring such processing shall be waived.
    (iv) In the event  that  such  a  political  subdivision  receives  no
  acceptable  bids  it  may waive the provisions of this section and shall
  award a contract  in  accordance  with  other  applicable  statutes.  In
  addition,  if  the commissioners of agriculture and markets and economic
  development  agree  as   to   any   deleterious   economic   impact   of
  specifications   requiring   such   purchase,  the  provisions  of  this
  subdivision may be waived by a political subdivision for such purchase.
    (d) The commissioner  of  the  office  of  general  services  and  the
  commissioner  of  agriculture  and markets may issue such regulations as
  they  deem  necessary  to  implement  this  subdivision  and  to  assist
  political subdivisions in complying with this subdivision.
    (e)  Notwithstanding  any  other  provision  of law, the department of
  agriculture and markets shall supply information required  by  paragraph
  (b)  of  this  subdivision  to the office of general services within one
  hundred eighty days of the effective date of this subdivision.
    (f) The commissioners of general services,  agriculture  and  markets,
  and  economic development shall provide the legislature with a report on
  the fifteenth day of January of the second year next succeeding the year
  in which this subdivision became  effective,  and  in  their  discretion
  periodically  report  thereafter, on the effects of this subdivision and
  on recommendations on ways to make it more effective.
    9. Notwithstanding the foregoing provisions of  this  section  to  the
  contrary,  a  board  of education may, on behalf of its school district,
  separately purchase eggs, livestock,  fish,  dairy  products  (excluding
  milk), juice, grains, and species of fresh fruit and vegetables directly
  from  New  York State producers or growers, or associations of producers
  and growers, provided that:
    (a) such association of producers or growers is comprised  of  ten  or
  fewer  owners of farms who also operate such farms and who have combined
  to fill the order of a school district as  herein  authorized,  provided
  however,  that  a  school  district  may  apply  to  the commissioner of
  education for permission to purchase from an association  of  more  than
  ten owners of such farms when no other producers or growers have offered
  to sell to such school;
    (b) the amount that may be expended by a school district in any fiscal
  year for such purchases shall not exceed an amount equal to twenty cents
  multiplied  by the total number of days in the school year multiplied by
  the total enrollment of such school district;
    (c)  all  such purchases shall be administered pursuant to regulations
  promulgated by the commissioner of education. Such regulations shall: be
  developed in consultation  with  the  commissioner  of  agriculture  and
  markets  to accommodate and promote the provisions of the farm-to-school
  program established  pursuant  to  subdivision  five-b  of  the  section
  sixteen of the agriculture and markets law and subdivision thirty-one of
  section  three hundred five of the education law as added by chapter two
  of the laws of two thousand two;  ensure  that  the  prices  paid  by  a
  district  for  any  items  so  purchased  do  not  exceed  the prices of
  comparable local farm products that are available to  districts  through
  their  usual  purchases  of  such  items;  ensure that all producers and
  growers who desire to  sell  to  school  districts  can  readily  access
  information   in   accordance   with  the  farm-to-school  law;  include
  provisions for situations when more than one producer or grower seeks to
  sell the same product to a district to ensure that all such producers or
  growers have an equitable opportunity to do so in a  manner  similar  to
  the usual purchasing practices of such districts; develop guidelines for
  approval  of  purchases  of  items  from  associations  of more than ten
  growers and producers; and, to the maximum extent practicable,  minimize
  additional  paperwork,  recordkeeping  and other similar requirements on
  both growers and producers and school districts.
    10. Notwithstanding the foregoing provisions of this  section  to  the
  contrary,  a  board  of education may, on behalf of its school district,
  separately  purchase  milk,  directly  from  licensed  milk   processors
  employing  less  than  forty  people  pursuant to the provisions of this
  subdivision. The amount that may be expended by a school district in any
  fiscal year pursuant to this section shall not exceed an amount equal to
  twenty-five cents multiplied by the total number of days in  the  school
  year  multiplied  by  the  total enrollment of such school district. All
  purchases made  pursuant  to  this  subdivision  shall  be  administered
  pursuant  to  regulations  promulgated by the commissioner of education.
  The regulations promulgated  by  the  commissioner  of  education  shall
  ensure  that  the  prices  paid by a school district for items purchased
  pursuant to this subdivision do not exceed  the  market  value  of  such
  items  and  that  all licensed processors who desire to sell to a school
  district pursuant to this subdivision have equal opportunities to do so.
    11. Bid mistake; public projects. (a) In  all  contracts  governed  by
  this  section,  where  a  unilateral error or mistake is discovered in a
  bid, such bid may be withdrawn after a showing of the following: (1) the
  mistake is known or made known to the awarding officer, board or  agency
  prior  to  the  awarding  of the contract or within three days after the
  opening of the bid, whichever period is shorter; and (2) the  price  bid
  was  based  on  an  error  of  such  magnitude that enforcement would be
  unconscionable; and (3) the bid was submitted  in  good  faith  and  the
  bidder  submits  credible evidence that the mistake was a clerical error
  as opposed to a judgment error; and (4) the error in the bid is actually
  due  to  an  unintentional  and  substantial  arithmetic  error  or   an
  unintentional  omission  of  a  substantial  quantity  of  work,  labor,
  material, goods or services made directly in the compilation of the bid,
  which unintentional arithmetic error or unintentional  omission  can  be
  clearly  shown  by  objective  evidence  drawn  from  inspection  of the
  original work paper, documents, or materials used in the preparation  of
  the  bid  sought  to  be  withdrawn; and (5) it is possible to place the
  public agency, board, officer, or subdivision in status quo ante.
    (b) Unless otherwise required by  law,  the  sole  remedy  for  a  bid
  mistake  in accordance with this section shall be withdrawal of that bid
  and the return of the bid bond or other security, if any, to the bidder.
  Thereafter,  the  awarding  officer,  board  or  agency  may,   in   its
  discretion,  award the contract to the next lowest responsible bidder or
  rebid  the  contract.  Any  amendment  to  or  reformation of a bid or a
  contract to rectify  such  an  error  or  mistake  therein  is  strictly
  prohibited.
    12.  Notwithstanding  any other provision of this section or any other
  provision of law, boards  of  education  shall  have  the  authority  to
  determine  that  a  bidder  on a contract for the purchase of apparel or
  sports equipment is not a responsible bidder for purposes of subdivision
  one of this  section,  based  upon  either  or  both  of  the  following
  considerations: (a) the labor standards applicable to the manufacture of
  the  apparel  or sports equipment, including but not limited to employee
  compensation, working conditions, employee rights to  form  unions,  and
  the  use  of  child  labor;  or  (b)  the  bidder's  failure  to provide
  information sufficient for boards of education to  determine  the  labor
  standards  applicable  to  the  manufacture  of  the  apparel  or sports
  equipment.