2006 New York Code - Procurement Contracts.

 
    §  2879.  Procurement  contracts. 1. Every public authority and public
  benefit corporation, a majority of  the  members  of  which  consist  of
  persons  either  appointed  by  the  governor or who serve as members by
  virtue of holding a civil office of the state, or a combination thereof,
  (such entities  to  be  hereinafter  in  this  section  referred  to  as
  "corporation")  shall adopt by resolution comprehensive guidelines which
  detail the corporation's operative policy and instructions regarding the
  use,  awarding,  monitoring  and  reporting  of  procurement  contracts.
  Guidelines  approved  by  the corporation shall be annually reviewed and
  approved by the corporation.
    2. For purposes of this section, procurement contracts shall mean  any
  written  agreement for the acquisition of goods or services of any kind,
  in the actual or estimated amount of five thousand dollars or more.
    3. The guidelines approved by the corporation shall include,  but  not
  be limited to the following:
    (a) A description of the types of goods purchased, and for procurement
  contracts  for  services, a description of those areas of responsibility
  and oversight requiring the use of personal services and the reasons for
  the use of personal services in such areas.
    (b) Requirements regarding the selection of contractors,  which  shall
  include provisions:
    (i)  for the selection of such contractors on a competitive basis, and
  provisions relating to the circumstances under which the  board  may  by
  resolution waive competition;
    (ii)  describing when the award of procurement contracts shall require
  approval  of  the  board  by  resolution,  provided  that  any  contract
  involving  services  to  be rendered over a period in excess of one year
  shall require the approval of the board  by  resolution  and  an  annual
  review of the contract by the board;
    (iii) setting forth responsibilities of contractors;
    (iv)  as used in this subparagraph, the term "professional firm" shall
  be defined  as  any  individual  or  sole  proprietorship,  partnership,
  corporation,  association,  or  other  legal  entity permitted by law to
  practice the professions of architecture, engineering or surveying.
    The corporation shall not refuse to negotiate with a professional firm
  solely because the ratio of the "allowable  indirect  costs"  to  direct
  labor  costs  of  the  professional firm or the hourly labor rate in any
  labor category of the professional firm exceeds a  limitation  generally
  set by the corporation in the determination of the reasonableness of the
  estimated  cost of services to be rendered by the professional firm, but
  rather the corporation should also consider the reasonableness  of  cost
  based  on  the  total  estimated cost of the service of the professional
  firm which should include, among other  things,  all  the  direct  labor
  costs  of  the  professional  firm for such services plus all "allowable
  indirect costs," other  direct  costs,  and  negotiated  profit  of  the
  professional firm. "Allowable indirect costs" of a professional firm are
  defined  as  those costs generally associated with overhead which cannot
  be specifically identified with a single project  or  contract  and  are
  considered  reasonable  and  allowable  under specific state contract or
  allowability limits.
    (c) An identification of those areas or types of contracts  for  which
  minority  or  women-owned  business  enterprises  may  best bid so as to
  promote and assist participation by such enterprises  and  facilitate  a
  fair  share  of  the  awarding of contracts to such enterprises. For the
  purposes of this section,  a  minority  business  enterprise  means  any
  business  enterprise,  including  a  sole proprietorship, partnership or
  corporation that is:
    (i) at least fifty-one percent owned by one  or  more  minority  group
  members  or  in the case of a publicly-owned business at least fifty-one
  percent of the common stock or other voting interests of which is  owned
  by one or more minority group members;
    (ii)   an   enterprise  in  which  the  minority  ownership  is  real,
  substantial and continuing;
    (iii) an enterprise in which the minority ownership has and  exercises
  the authority to control independently the day-to-day business decisions
  of the enterprise; and
    (iv)  an  enterprise  authorized  to  do  business  in New York state,
  independently owned and operated, and not dominant in its field.
    (d) For the purposes of this section, a minority group member means  a
  United  States  citizen  or  permanent  resident  alien  who  is and can
  demonstrate membership in one of the following groups:
    (i) Black persons having origins in any of the  Black  African  racial
  groups not of Hispanic origin;
    (ii)  Hispanic  persons  of  Mexican,  Puerto Rican, Dominican, Cuban,
  Central  or  South  American  of  either  Indian  or  Hispanic   origin,
  regardless of race;
    (iii)  Asian and Pacific Islander persons having origins in any of the
  Far East, Southeast  Asia,  the  Indian  sub-continent  or  the  Pacific
  Islands; or
    (iv)  Native  American  persons  having origins in any of the original
  peoples of North America.
    (e)  For  the  purposes  of  this  section,  a  women-owned   business
  enterprise means a business enterprise, including a sole proprietorship,
  partnership or corporation which is:
    (i)  at  least  fifty-one  percent  owned by one or more United States
  citizens or permanent resident aliens who are women or in the case of  a
  publicly-owned  business  at least fifty-one percent of the common stock
  or other voting interests of which is owned by United States citizens or
  permanent resident aliens who are women;
    (ii) an enterprise in which the ownership interest of women  is  real,
  substantial and continuing;
    (iii) an enterprise in which the women ownership has and exercises the
  authority  to control independently the day-to-day business decisions of
  the enterprise; and
    (iv) an enterprise authorized  to  do  business  in  New  York  state,
  independently owned and operated, and not dominant in its field.
    (f)  A  listing  of  the  types  of  provisions  to  be  contained  in
  procurement contracts, including provisions concerning  the  nature  and
  monitoring  of  the  work to be performed, the use of corporate supplies
  and facilities, the use of corporate personnel and any other provisions.
    (g) Provisions regarding procurement contracts  which  involve  former
  officers or employees of the corporation.
    (h)  Procedures  regarding procurement contracts which are exempt from
  the  publication  requirements  of  article  four-C  of   the   economic
  development law.
    (i)  Policies  to promote the participation by New York state business
  enterprises and New  York  state  residents  in  procurement  contracts,
  including, but not limited to:
    (i)  providing  for  the  corporation  to  collect  and to consult the
  specifications of New York  state  business  enterprises  in  developing
  specifications  for  any  procurement contract for the purchase of goods
  where possible, practicable, feasible and consistent with open  bidding,
  except  for  procurement  contracts  for  which the corporation would be
  expending funds received from  another  state.  The  corporation  shall,
  where  feasible, make use of the stock item specification forms prepared
  by the commissioner of general services, and  where  necessary,  consult
  with  the  commissioner of the office of general services, in developing
  such specifications and make such determinations; and
    (ii)  with  the  cooperation of the department of economic development
  and through cooperative efforts  with  contractors,  providing  for  the
  notification  of New York state business enterprises of opportunities to
  participate as subcontractors and suppliers on procurement contracts let
  by the corporation in an amount estimated to be equal to or greater than
  one million  dollars  and  promulgating  procedures  which  will  assure
  compliance  by  contractors  with  such  notification.  Once awarded the
  contract such contractors shall document their efforts to encourage  the
  participation  of  New  York state business enterprises as suppliers and
  subcontractors on procurement contracts equal to  or  greater  than  one
  million  dollars.  Documented  efforts  by a successful contractor shall
  consist of and be limited  to  showing  that  such  contractor  has  (a)
  solicited  bids,  in  a  timely and adequate manner, from New York state
  business  enterprises  including  certified  minority  and   women-owned
  business,  or  (b)  contacted  the New York state department of economic
  development to obtain listings of New York state  business  enterprises,
  or  (c)  placed  notices for subcontractors and suppliers in newspapers,
  journals and other trade publications distributed in New York state,  or
  (d)  participated  in  bidder  outreach  conferences.  If the contractor
  determines that New York state business enterprises are not available to
  participate  on  the  contract  as  subcontractors  or  suppliers,   the
  contractor shall provide a statement indicating the method by which such
  determination  was  made.  If  the  contractor  does  not  intend to use
  subcontractors on the contract, the contractor shall provide a statement
  verifying such intent; and
    (iii) except for procurement contracts for which the corporation would
  be expending funds received from another state,  the  corporation  shall
  include  in  all bid documents provided to potential bidders a statement
  that  information  concerning  the  availability  of  New   York   state
  subcontractors  and  suppliers  is  available  from  the  New York state
  department of economic development, which shall include the directory of
  certified minority and women-owned businesses, and it is the  policy  of
  New York state to encourage the use of New York state subcontractors and
  suppliers,  and to promote the participation of minority and women-owned
  businesses where possible, in the procurement of goods and services; and
    (iv) with the cooperation of the community services  division  of  the
  department  of  labor  and through cooperative efforts with contractors,
  providing for the notification of New York state residents of employment
  opportunities arising in New York state out of procurement contracts let
  by the corporation in an amount estimated to be equal to or greater than
  one million dollars;  and  promulgating  procedures  which  will  assure
  compliance   by   contractors   with   such  notification  by  requiring
  contractors to submit post-award compliance  reports  documenting  their
  efforts  to provide such notification through listing any such positions
  with the community services division, or providing for such notification
  in such manner as is  consistent  with  existing  collective  bargaining
  contracts or agreements; and
    (v)  including in each set of documents soliciting bids on procurement
  contracts to let by the  corporation  a  statement  notifying  potential
  bidders  located in foreign countries that the corporation may assign or
  otherwise transfer offset credits created by such  procurement  contract
  to third parties located in New York state; providing for the assignment
  or  other form of transfer of offset credits created by such procurement
  contracts, directly or indirectly, to third parties located in New  York
  state,  in accordance with the written directions of the commissioner of
  economic development; and providing for  the  corporation  to  otherwise
  cooperate  with the department of economic development in efforts to get
  foreign countries to recognize offset credits assigned or transferred to
  third  parties  located  in  New  York state created by such procurement
  contracts; and
    (vi) promulgating procedures which will  assure  compliance  with  the
  federal  equal  employment  opportunity  act  of  1972 (P.L. 92-261), as
  amended, by contractors of the corporation.
    (j) For the purposes of this  section,  a  "New  York  state  business
  enterprise"    means   a   business   enterprise,   including   a   sole
  proprietorship, partnership, or corporation, which offers  for  sale  or
  lease  or  other  form  of  exchange,  goods  which  are  sought  by the
  corporation  and  which  are  substantially  manufactured,  produced  or
  assembled  in  New  York  state,  or  services  which  are sought by the
  corporation and which are substantially performed within New York state.
    (k) For the purposes of this section, a "New York  resident"  means  a
  natural  person  who  maintains  a  fixed,  permanent and principal home
  located within New  York  state  and  to  which  such  person,  whenever
  temporarily located, always intends to return.
    4.  Each  corporation  shall have the power from time to time to amend
  such procurement contract guidelines in accordance with  the  provisions
  of this section.
    5.  (a)  Each  corporation  shall  notify the commissioner of economic
  development of the award of a procurement contract for the  purchase  of
  goods  or services from a foreign business enterprise in an amount equal
  to or greater than one million dollars simultaneously with notifying the
  successful bidder therefor. No corporation shall thereafter enter into a
  procurement contract for said goods or services until at  least  fifteen
  days  has  elapsed,  except  for  procurement  contracts  awarded  on an
  emergency or critical basis,  or  where  the  commissioner  of  economic
  development  waives the provisions of this sentence. The notification to
  the commissioner of economic development shall include the name, address
  and telephone and facsimile number of the foreign business enterprise, a
  brief description of the goods or services to be  obtained  pursuant  to
  the   proposed   procurement   contract,  the  amount  of  the  proposed
  procurement contract, the term of the proposed procurement contract, and
  the name of the individual at the foreign business enterprise or  acting
  on  behalf  of  the same who is principally responsible for the proposed
  procurement  contract.  Such  notification  shall   be   used   by   the
  commissioner  of  economic development solely to provide notification to
  New York state business enterprises of opportunities to  participate  as
  subcontractors  and  suppliers on such procurement contracts, to promote
  and encourage the location and development of new business in the state,
  to assist New  York  state  business  enterprises  in  obtaining  offset
  credits  from foreign countries, and to otherwise investigate, study and
  undertake means of promoting and encouraging the prosperous  development
  and  protection of the legitimate interest and welfare of New York state
  business enterprises, industry and commerce.
    (b) As used in this  section,  the  following  terms  shall  have  the
  following meanings, unless a different meaning appears from the context:
    (i)  "Foreign  business  enterprise" shall mean a business enterprise,
  including a  sole  proprietorship,  partnership  or  corporation,  which
  offers for sale, lease or other form of exchange, goods which are sought
  by the corporation and which are substantially produced outside New York
  state,  or  services,  other  than  construction services, sought by the
  corporation which are substantially performed outside  New  York  state.
  For purposes of construction services, foreign business enterprise shall
  mean a business enterprise, including a sole proprietorship, partnership
  or  corporation,  which  has its principal place of business outside New
  York state.
    (ii)  "New  York  state  business  enterprise"  shall  mean a business
  enterprise, including a sole proprietorship, partnership or corporation,
  which offers for sale or lease or other form of  exchange,  goods  which
  are  sought by the corporation and which are substantially manufactured,
  produced or assembled  in  New  York  state,  or  services,  other  than
  construction services, which are sought by the corporation and which are
  substantially   performed   within  New  York  state.  For  purposes  of
  construction services, a New York state business enterprise shall mean a
  business enterprise, including a sole  proprietorship,  partnership,  or
  corporation,  which  has  its  principal  place  of business in New York
  state.
    (iii) "Discriminatory jurisdiction"  shall  mean  any  other  country,
  nation, province, state or political subdivision thereof which employs a
  preference  or  price  distorting  mechanism  to  the  detriment  of  or
  otherwise discriminates against a New York state business enterprise  in
  the  procurement of goods and services by the same or a non-governmental
  entity influenced by the same. Such discrimination may include,  but  is
  not  limited  to,  any  law, regulation, procedure or practice, terms or
  license, authorization, or funding or bidding rights which  requires  or
  encourages  any  agency  or  instrumentality  of  the state or political
  subdivision thereof or non-governmental entity influenced by the same to
  discriminate against a New York state business enterprise.
    (c) In including any additional business enterprises on invitations to
  bid for the procurement  of  goods  or  services,  the  chief  executive
  officer  of  the  corporation  shall  not  include  any foreign business
  enterprise which has its  principal  place  of  business  located  in  a
  discriminatory  jurisdiction  contained  on  the  list  prepared  by the
  commissioner of economic development  pursuant  to  subdivision  six  of
  section  one  hundred  sixty-five  of  the  state  finance  law, except,
  however,  business  enterprises  which  are  New  York  state   business
  enterprises  as  defined  by this section. The corporation may waive the
  application of  the  provisions  of  this  section  whenever  the  chief
  executive officer of the corporation determines in writing that it is in
  the best interests of the state to do so. The chief executive officer of
  the  corporation  shall  deliver each such waiver to the commissioner of
  economic development.
    (d) A corporation shall not enter  into  a  contract  with  a  foreign
  business enterprise which has its principal place of business located in
  a  discriminatory  jurisdiction  contained  on  the list prepared by the
  commissioner of economic development  pursuant  to  subdivision  six  of
  section  one hundred sixty-five of the state finance law. The provisions
  of this section may be waived by the  chief  executive  officer  of  the
  corporation if the chief executive officer of the corporation determines
  in  writing  that it is in the best interests of the state to do so. The
  chief executive officer of  the  corporation  shall  deliver  each  such
  waiver to the commissioner of economic development.
    6. Each corporation, as part of the guidelines established pursuant to
  subdivision  three  of  this section, shall establish policies regarding
  the preparation of publicly available reports on  procurement  contracts
  entered  into  by  such corporation. Such policies shall provide, at the
  minimum, for the  preparation  of  a  report  no  less  frequently  than
  annually,  summarizing  procurement activity by such corporation for the
  period of the report, including a listing of all  procurement  contracts
  entered  into,  all  contracts entered into with New York state business
  enterprises and the subject matter  and  value  thereof,  all  contracts
  entered  into  with foreign business enterprises, and the subject matter
  and  value  thereof,  the  selection  process  used   to   select   such
  contractors,  all  procurement  contracts  which  were  exempt  from the
  publication requirements of article four-C of the  economic  development
  law,  the  basis  for  any  such  exemption  and  the status of existing
  procurement contracts.
    7. Each corporation shall annually prepare and  approve  a  report  on
  procurement  contracts  which shall include the guidelines, as specified
  in subdivision three of this section, an explanation of  the  guidelines
  and any amendments thereto since the last annual report.  Such report on
  procurement  contracts may be a part of any other annual report that the
  corporation is required to make.
    8.  (a)  Each  corporation  shall  annually  submit  its   report   on
  procurement  contracts  to the division of the budget and copies thereof
  to the department of audit  and  control,  the  department  of  economic
  development,  the  senate  finance  committee  and the assembly ways and
  means committee.
    (b) Each corporation shall make available to the public copies of  its
  report on procurement contracts upon reasonable request therefor.
    9.  Nothing contained in this section shall be deemed to alter, affect
  the validity of, modify the terms of or impair any contract or agreement
  made or entered into in violation of, or without  compliance  with,  the
  provisions of this section.