2012 New York Consolidated Laws
PBA - Public Authorities
Article 5 - PUBLIC UTILITY AUTHORITIES
Title 11 - (1260 - 1279-C) METROPOLITAN COMMUTER TRANSPORTATION AUTHORITY
1265-A - Contracts.

 
    §  1265-a.  Contracts.  1.  The  provisions of this section shall only
  apply to procurements by the authority commenced during the period  from
  April  first, nineteen hundred eighty-seven until December thirty-first,
  nineteen  hundred  ninety-one,  and  during  the  period  from  December
  sixteenth,  nineteen  hundred  ninety-three  until  June  thirtieth, two
  thousand fifteen; provided, however, that the provisions of this section
  shall not apply to (i) the award of any contract of the authority if the
  bid documents for such contract so provide and such  bid  documents  are
  issued within sixty days of the effective date of this section or within
  sixty days of December sixteenth, nineteen hundred ninety-three, or (ii)
  for a period of one hundred eighty days after the effective date of this
  section  or  for  a  period  of  one  hundred eighty days after December
  sixteenth, nineteen hundred ninety-three, the award of any contract  for
  which  an  invitation to bid, solicitation, request for proposal, or any
  similar document has been issued by the authority prior to the effective
  date of this section or during the period from January  first,  nineteen
  hundred   ninety-two   until   December   sixteenth,   nineteen  hundred
  ninety-three.
    2. (a) Except as otherwise provided  in  this  section,  all  purchase
  contracts  for  supplies,  materials or equipment involving an estimated
  expenditure in excess of fifteen thousand dollars and all contracts  for
  public  work involving an estimated expenditure in excess of twenty-five
  thousand dollars shall  be  awarded  by  the  authority  to  the  lowest
  responsible bidder after obtaining sealed bids in the manner hereinafter
  set  forth. For purposes hereof, contracts for public work shall exclude
  contracts for personal, engineering and architectural,  or  professional
  services.  The  authority may reject all bids and obtain new bids in the
  manner provided by this section when it is deemed in the public interest
  to do so or, in cases where  two  or  more  responsible  bidders  submit
  identical  bids  which are the lowest bids, award the contract to any of
  such bidders or obtain new bids from such bidders. Nothing herein  shall
  obligate  the  authority to seek new bids after the rejection of bids or
  after cancellation of an invitation to  bid.  Nothing  in  this  section
  shall  prohibit  the evaluation of bids on the basis of costs or savings
  including life cycle costs of the item to be purchased,  discounts,  and
  inspection  services  so  long  as the invitation to bid reasonably sets
  forth the criteria to be used in evaluating such costs or savings.  Life
  cycle  costs  may  include  but shall not be limited to costs or savings
  associated with installation, energy  use,  maintenance,  operation  and
  salvage or disposal.
    (b)  Section  twenty-eight  hundred seventy-nine of this chapter shall
  apply to the authority's acquisition of goods or services of  any  kind,
  in  the  actual or estimated amount of fifteen thousand dollars or more,
  provided that  a  contract  for  personal  services  in  the  actual  or
  estimated  amount of less than twenty thousand dollars shall not require
  approval by the board of the authority regardless of the length  of  the
  period over which the services are rendered, and provided further that a
  contract  for  personal  services  in  the actual or estimated amount of
  twenty thousand dollars or more shall require approval by the  board  of
  the  authority  regardless  of  the  length of the period over which the
  services are rendered.
    (c)(1)  Notwithstanding  the  provisions  of  paragraph  (a)  of  this
  subdivision,  the  authority  shall  establish  guidelines governing the
  qualifications of bidders entering into contracts  for  its  project  to
  bring  the Long Island Rail Road into Grand Central Terminal ("East Side
  Access Project"). The bidding  may  be  restricted  to  those  who  have
  qualified  prior  to the receipt of bids according to standards fixed by
  the authority; provided, however, that the award of contracts shall,  to

  the  extent  not inconsistent with this paragraph, be in accordance with
  paragraph (a) of this subdivision.
    (2)  In  determining  whether  a  prospective bidder qualifies for the
  inclusion on a list of prequalified bidders for  the  East  Side  Access
  Project,  the  authority  shall  consider:  (i)  the experience and past
  performance of the prospective bidder;  (ii)  the  prospective  bidder's
  ability  to  undertake  work,  including  but  not limited to whether it
  participates in state approved apprenticeship programs  and  whether  it
  utilizes employees who are represented by labor organizations; (iii) the
  financial  capability  and responsibility of the prospective bidder; and
  (iv) the records of the prospective bidder in  complying  with  existing
  labor  standards.  The authority may also consider such other factors as
  it deems appropriate.
    3. (a) Advertisement for bids, when required by this section, shall be
  published at least once in a newspaper of  general  circulation  in  the
  area  served  by  the  authority  and  in  the procurement opportunities
  newsletter  published  pursuant  to  article  four-C  of  the   economic
  development law provided that, notwithstanding the provisions of article
  four-C  of  the economic development law, an advertisement shall only be
  required for a purchase contract for supplies,  materials  or  equipment
  when  required  by  this  section. Publication in a newspaper of general
  circulation in the area  served  or  in  the  procurement  opportunities
  newsletter  shall  not  be  required if bids for contracts for supplies,
  materials or  equipment  are  of  a  type  regularly  purchased  by  the
  authority and are to be solicited from a list of potential suppliers, if
  such  list  is  or  has been developed consistent with the provisions of
  subdivision six of this section. Any such advertisement shall contain  a
  statement of: (i) the time and place where bids received pursuant to any
  notice requesting sealed bids will be publicly opened and read; (ii) the
  name  of  the  contracting  agency;  (iii)  the  contract identification
  number;  (iv)  a  brief  description  of  the  public  work,   supplies,
  materials,  or  equipment  sought,  the  location  where  work  is to be
  performed, goods are to  be  delivered  or  services  provided  and  the
  contract  term;  (v)  the  address  where  bids  or  proposals are to be
  submitted; (vi) the date  when  bids  or  proposals  are  due;  (vii)  a
  description   of   any   eligibility  or  qualification  requirement  or
  preference; (viii) a statement as to whether the  contract  requirements
  may  be  fulfilled  by a subcontracting, joint venture, or co-production
  arrangement; (ix) any  other  information  deemed  useful  to  potential
  contractors;  and  (x)  the  name,  address, and telephone number of the
  person to be contacted for  additional  information.  At  least  fifteen
  business  days  shall  elapse  between  the  first  publication  of such
  advertisement or the solicitation of bids, as the case may be,  and  the
  date of opening and reading of bids.
    (b)  The  authority  may designate any officer or employee to open the
  bids at the time and place bids are to be opened and  may  designate  an
  officer  to  award  the  contract to the lowest responsible bidder. Such
  designee shall make a record of all bids in such form and detail as  the
  authority  shall  prescribe.  All bids received shall be publicly opened
  and read at the time and place specified in the advertisement or at  the
  time  of  solicitation,  or  to  which the opening and reading have been
  adjourned by the authority. All bidders shall be notified  of  the  time
  and place of any such adjournment.
    4.  Notwithstanding  the  foregoing,  the authority may, by resolution
  approved by a two-thirds vote of its members then in  office,  or  by  a
  majority  vote  of  its members with respect to contracts proposed to be
  let  pursuant  to  paragraph  (a)  of  this  subdivision  declare   that
  competitive  bidding  is  impractical  or  inappropriate  because of the

  existence  of  any  of  the  circumstances  hereinafter  set  forth  and
  thereafter   the  authority  may  proceed  to  award  contracts  without
  complying with the requirements of subdivision  two  or  three  of  this
  section.  In  each case where the authority declares competitive bidding
  impractical or inappropriate, it shall  state  the  reason  therefor  in
  writing  and summarize any negotiations that have been conducted. Except
  for contracts awarded pursuant to paragraphs (a), (b), (c)  and  (e)  of
  this subdivision, the authority shall not award any contract pursuant to
  this  subdivision  earlier  than  thirty days from the date on which the
  authority  declares  that  competitive   bidding   is   impractical   or
  inappropriate.  Competitive  bidding may only be declared impractical or
  inappropriate where:
    (a) the existence of an emergency involving danger to life, safety  or
  property  requires immediate action and cannot await competitive bidding
  or the item to be purchased is essential to efficient operation  or  the
  adequate  provision  of  service  and  as  a  consequence  of unforeseen
  circumstance such purchase cannot await competitive bidding;
    (b) the  item  to  be  purchased  is  available  only  from  a  single
  responsible  source,  provided  that if bids have not been solicited for
  such item pursuant  to  subdivision  two  of  this  section  within  the
  preceding  twelve  months public notice shall first be given pursuant to
  subdivision three of this section;
    (c) the authority  receives  no  responsive  bids  or  only  a  single
  responsive bid in response to an invitation for competitive bids;
    (d)  the  authority  wishes  to  experiment  with or test a product or
  technology or new source for such product or technology or evaluate  the
  service or reliability of such product or technology;
    (e)  the  item  is  available  through  an existing contract between a
  vendor and  (i)  another  public  authority  provided  that  such  other
  authority  utilized  a  process  of  competitive bidding or a process of
  competitive requests for proposals  to  award  such  contracts  or  (ii)
  Nassau  county,  or  (iii) the state of New York or (iv) the city of New
  York, provided that in any case when under this paragraph the  authority
  determines  that  obtaining  such  item  thereby  would be in the public
  interest  and  sets  forth  the  reasons  for  such  determination.  The
  authority  shall  accept  sole  responsibility  for  any payment due the
  vendor as a result of the authority's order; or
    (f) the authority determines that it is  in  the  public  interest  to
  award  contracts  pursuant  to  a  process  for competitive requests for
  proposals as hereinafter set forth. For  purposes  of  this  section,  a
  process  for  competitive  requests for proposals shall mean a method of
  soliciting proposals and awarding a contract on the basis  of  a  formal
  evaluation  of  the  characteristics,  such  as  quality, cost, delivery
  schedule and  financing  of  such  proposals  against  stated  selection
  criteria.  Public notice of the requests for proposals shall be given in
  the same manner as provided in subdivision three  of  this  section  and
  shall include the selection criteria. In the event the authority makes a
  material  change  in the selection criteria from those previously stated
  in the notice, it will inform all proposers of such  change  and  permit
  proposers to modify their proposals.
    (i) The authority may award a contract pursuant to this paragraph only
  after  a resolution approved by a two-thirds vote of its members then in
  office at a public meeting of the authority  with  such  resolution  (A)
  disclosing the other proposers and the substance of their proposals, (B)
  summarizing the negotiation process including the opportunities, if any,
  available  to  proposers  to present and modify their proposals, and (C)
  setting forth the criteria upon which the selection was made.

    (ii)  Nothing  in  this  paragraph  shall  require  or  preclude   (A)
  negotiations  with  any  proposers following the receipt of responses to
  the request for proposals, or (B) the rejection of any or all  proposals
  at  any  time.  Upon  the  rejection of all proposals, the authority may
  solicit new proposals or bids in any manner prescribed in this section.
    (g)  the authority issues a competitive request for proposals pursuant
  to the procedures of paragraph (f) of this subdivision for the  purchase
  or  rehabilitation  of  rail  cars  and  omnibuses. Any such request may
  include among the stated selection criteria the performance of all or  a
  portion of the contract at sites within the state of New York or the use
  of  goods  produced  or  services provided within the state of New York,
  provided however that in no event shall the authority award  a  contract
  to  a  manufacturer whose final offer, as expressed in unit cost is more
  than ten percent higher than the unit cost of  any  qualified  competing
  final  offer, if the sole basis for such award is that the higher priced
  offer includes more favorable  provision  for  the  performance  of  the
  contract  within  the  state of New York or the use of goods produced or
  services provided within the state of New  York,  and  further  provided
  that  the authority's discretion to award a contract to any manufacturer
  shall not be so limited if a basis for such award, as determined by  the
  authority,   is  superior  financing,  delivery  schedule,  life  cycle,
  reliability, or any other factor the authority  deems  relevant  to  its
  operations.
    (i) The authority may award a contract pursuant to this paragraph only
  after a resolution approved by a vote of not less than a two-thirds vote
  of  its members then in office at a public meeting of the authority with
  such resolution (A) disclosing the other proposers and the substance  of
  their  proposals,  (B) summarizing the negotiation process including the
  opportunities, if any, available to  proposers  to  present  and  modify
  their  proposals,  and  (C)  setting  forth  the criteria upon which the
  selection was made.
    (ii)  Nothing  in  this  paragraph  shall  require  or  preclude   (A)
  negotiations  with  any  proposers following the receipt of responses to
  the request for proposals, or (B) the rejection of any or all  proposals
  at  any  time.  Upon  the  rejection of all proposals, the authority may
  solicit new proposals or bids in any manner prescribed in this section.
    5. Upon the adoption of a resolution by  the  authority  stating,  for
  reasons   of   efficiency,   economy,   compatibility   or   maintenance
  reliability, that there is a need for standardization, the authority may
  establish procedures whereby particular supplies, materials or equipment
  are identified on a  qualified  products  list.  Such  procedures  shall
  provide for products or vendors to be added to or deleted from such list
  and  shall  include provisions for public advertisement of the manner in
  which such lists are compiled. The authority shall review such  list  no
  less  than  twice  a  year for the purpose of making such modifications.
  Contracts for particular supplies, materials or equipment identified  on
  a  qualified products list may be awarded by the authority to the lowest
  responsible bidder after obtaining sealed bids in accordance  with  this
  section or without competitive sealed bids in instances when the item is
  available  from  only  a  single  source,  except that the authority may
  dispense  with  advertising  provided  that  it  mails  copies  of   the
  invitation to bid to all vendors of the particular item on the qualified
  products list.
    6.  The  authority  shall  compile  a  list  of  potential  sources of
  supplies, materials or  equipment  regularly  purchased.  The  authority
  shall,  by  resolution,  set  forth the procedures it has established to
  identify new sources and to notify such new sources of  the  opportunity
  to  bid  for  contracts  for  the  purchase  of  supplies,  materials or

  equipment. Such procedures shall include, but not  be  limited  to:  (a)
  advertising  in  trade journals; (b) cooperation with federal, state and
  local agencies within its area of operations;  (c)  publication  in  the
  state  register  quarterly;  and  (d) procedures established pursuant to
  subdivision thirteen of  section  twelve  hundred  sixty-six-c  of  this
  article.
    7.  The  provisions  of  this  section  shall  not supersede any other
  provisions  of  law  relative  to  purchases  of  products  or   devices
  manufactured  or  provided  by  the  blind or other severely handicapped
  persons, to the invitation and acceptance of bids from small or minority
  business enterprises or to  the  purchases  of  supplies,  materials  or
  equipment  through  the  office  of  general  services.  Except  as  may
  otherwise be provided by law or as more  restrictively  defined  in  the
  official  policy or bid specifications of the authority, the term "small
  business"  means  a  small  business  or  similar  term,  under  federal
  regulations  applicable to projects of the authority which are federally
  assisted.
    8. The provisions of this section shall not apply to  any  procurement
  made  by  any other public entity not otherwise required by law to award
  contracts for such purchases to the lowest responsible  bidder  if  such
  purchases are made at the sole cost and expense of such entity.