2015 New York Laws
PBA - Public Authorities
Article 5 - PUBLIC UTILITY AUTHORITIES
Title 9 - (1200 - 1221) NEW YORK CITY TRANSIT AUTHORITY
1209 - Contracts.

NY Pub Auth L § 1209 (2015) What's This?

1209. Contracts. 1. Any contract for public work, except where there is an emergency involving danger to life or property, the estimated cost of which exceeds twenty thousand dollars shall be made by the authority only upon public letting founded on sealed bids. Notice of the invitation for such bidding shall state the time and place of the receipt and opening of bids and shall be published once a week for two successive weeks in two of the daily newspapers published in the city, and in the city records. The authority may reject all such bids and readvertise for new bids if it shall deem it for the public interest so to do. If not, it shall award the contract to the lowest responsible bidder.

2. Any purchase contract, including but not limited to contracts for the purchase of equipment, materials or supplies, the estimated cost of which exceeds the sum of ten thousand dollars, shall be made by the authority only upon public letting founded on sealed bids, except in a case where the authority, by resolution, declares the existence of an emergency or the existence of other circumstances making competitive bidding impracticable or inappropriate, except in no instance other than in circumstances such as described in paragraph (g) hereof, shall the authority declare that competitive bidding is inappropriate with respect to purchase contracts for omnibuses. In each instance when the authority declares competitive bidding inappropriate it shall state the reasons therefor. Competitive bidding may be declared inappropriate by the authority in instances (a) where the item to be purchased is available only from a single source; or (b) where professional engineering or architectural services are solicited; or (c) where only a single bid is received in response to an invitation for competitive bids; or (d) where the authority has chosen to standardize a component on the basis of compatibility or maintenance reliability; or (e) where the apparent low bidder is declared by the authority to be not qualified to perform the terms of the contract; or (f) where the authority wishes to experiment with or test a new product or technology or evaluate the service or reliability of a new source for a particular product or component; or (g) where the authority by a vote of two-thirds of its members then in office determines that its prior experience with a potential source or contractor has been such as to require, in the public interest, that such source or contractor not be considered eligible to bid and that after the elimination of said source or contractor from the bidding process there would effectively remain only a single source for the item to be purchased and the authority purchases the item from such source; or (h) where the authority by a two-thirds vote of its members determines, on the basis of its analysis of the competitive situation among potential sources for the item to be purchased, is such that it is in the public interest to encourage new sources of manufacture or supply by awarding a contract by negotiation and without competitive bidding. Notice of the invitation for such bidding shall state the time and place of the receipt and opening of bids and shall be published in the city record in five successive issues at least ten days preceding such opening. The authority may reject all such bids and readvertise for new bids if it shall deem it for the public interest so to do. If not, it shall award the contract to the lowest responsible bidder unless the authority, by unanimous vote, shall determine that it is for the public interest that a bid other than that of the lowest responsible bidder shall be accepted.

* 3. A contract for the purchase of rapid transit cars or components of rapid transit cars in furtherance or implementation of a capital program plan approved pursuant to section twelve hundred sixty-nine-b of this article may also be awarded by the authority by negotiation without competitive bidding provided the following standards and procedures are complied with:

(a) The authority, by a vote of not less than eleven of its members, shall issue a notice of intention to negotiate for the purchase of rapid transit cars or components thereof. Such notice shall be published in at least one newspaper of general circulation, and a copy thereof shall be mailed to all known vendors of such cars or components. Such notice shall describe or identify the cars or particular components so to be purchased, the factors subject to negotiation, insofar as practicable prior to such negotiation, the form and content of the response, and any other matter which the authority deems relevant. The factors subject to negotiation shall include, but need not be limited to, financing, cost, delivery schedules, and performance of all or a portion of the contract at sites within the state of New York or using goods produced and services provided within the state of New York. Such notice shall require a respondent to submit as part of the response and in such detail as the authority may require, information relating to the experience of the respondent on the basis of which said respondent purports to be qualified to fulfill a contract relating to the subject matter and including the factors identified in the notice.

(b) The authority shall evaluate the responses to such notice, and shall negotiate with those respondents whose responses comply with all the requirements set forth in the notice, including the qualification requirements.

(c) A public hearing shall be held by the authority upon not less than fifteen days notice. Such notice shall state the purpose of the hearing, and shall be published in at least one newspaper of general circulation and shall be mailed to all vendors from whom offers to negotiate were received. At such hearing, summaries of all offers received and of all negotiations shall be presented. Public comment shall be heard with respect to such offers and negotiations after which the authority by a vote of not less than eleven of its members, shall resolve, on the basis of particularized findings relevant to the factors negotiated, that the award of the contract on the basis of negotiation for the purchase of rapid transit cars or any components thereof will result in savings or other benefits to the authority, and that such award is in the public interest.

As soon as practicable after the adoption of such resolution, the authority shall file such resolution and the contract which is the subject thereof with the New York State Public Authorities Control Board, created by section fifty of this chapter, and with the individual members thereof, and no such contract shall be awarded by the authority if within fifteen days following such filing the Public Authorities Control Board has disapproved the award of such contract. Provided if the contract is not approved by the board within the fifteen day period and no individual member of the board has certified to the authority in writing of his disapproval within such period, the contract shall be deemed to have been approved.

(d) Except with respect to a contract to be awarded pursuant to paragraph (i) of subdivision two of this section, the notice provided in paragraph (c) of this subdivision shall not be issued until forty-five days after issuance of the notice of intention to negotiate referred to in paragraph (a) of this subdivision.

* NB Expired December 31, 1982

4. Notwithstanding the provisions of subdivision two of this section, a contract for the purchase of omnibuses or components of omnibuses in furtherance or implementation of a capital program plan approved pursuant to section twelve hundred sixty-nine-b of this article may also be awarded by the authority by negotiation without competitive bidding provided the following standards and procedures are complied with:

(a) The authority, by a vote of not less than two-thirds of its members then in office, shall issue a notice of intention to solicit competitive offerings to furnish omnibuses or components thereof, and to negotiate the conditions of a final purchase award. Such notice shall be published in at least one newspaper of general circulation, and a copy thereof shall be mailed to all known vendors of such omnibuses or components. Such notice shall describe or identify the omnibuses or particular components so to be purchased, the factors subject to negotiation, insofar as practicable prior to such negotiation, the form and content of the response, and any other matter which the authority deems relevant. The factors subject to negotiation shall include, but need not be limited to, financing, cost, delivery schedules, and performance of all or a portion of the contract at sites within the state of New York or using goods produced and services provided with the state of New York. Such notice shall require a respondent to submit as part of the response and in such detail as the authority may require, information relating to the experience of the respondent on the basis of which said respondent purports to be qualified to fulfill a contract relating to the subject matter and including the factors identified in the notice.

(b) The authority shall evaluate the responses to such notice, and shall negotiate with those respondents whose responses comply with all the requirements set forth in the notice, including the qualification requirements.

(c) A public hearing shall be held by the authority upon not less than fifteen days notice. Such notice shall state the purpose of the hearing, and shall be published in at least one newspaper of general circulation and shall be mailed to all vendors from whom offers to negotiate were received. At such hearing, summaries of all final offers received and of all negotiations shall be presented. Public comment shall be heard with respect to such offers and negotiations after which the authority by a vote of not less than eleven of its members, shall resolve, on the basis of particularized findings relevant to the factors negotiated, that the award of the contract on the basis of negotiation for the purchase of omnibuses or any components thereof will result in savings or other benefits to the authority, and that such award is in the public interest.

In no event, however, shall the authority award a contract for omnibuses to a manufacturer whose final offer, as expressed in unit cost per omnibus, is more than ten per cent 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. Provided, however, the authority's directors 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 cost, reliability, or any other factor the authority deems relevant to its operation.

As soon as practicable after the adoption of such resolution, the authority shall file such resolution and the contract which is the subject thereof with the New York state public authorities control board, created by section fifty of this chapter, and with the individual members thereof. The authority shall provide the public authorities control board with any information concerning the decision to award the contract as such board may request, including, but not limited to financing, delivery schedule, life cycle cost, and reliability of the omnibus offers made by all manufacturers competing for the award. No such contract shall be awarded by the authority if within fifteen days following such filing the public authorities control board has disapproved the award of such contract; provided, however, if the contract is not approved by the board within the fifteen day period and no individual member of the board has certified to the authority in writing of his disapproval within such period, the contract shall be deemed to have been approved.

(d) The notice provided in paragraph (c) of this subdivision shall not be issued until forty-five days after issuance of the notice of intention to negotiate referred to in paragraph (a) of this subdivision.

5. (a) Notwithstanding that funds of the authority may be used therefor, a contract for all or a portion of work involving the alteration, expansion or rehabilitation of a passenger station may be awarded by the authority, by negotiation without competitive bidding, to a private entity or the designee of a private entity where the authority by vote of not less than eleven of its members approves written findings that such award is expected to permit the alteration, expansion or rehabilitation to be carried out in the most efficient and cost effective manner, that such private entity has agreed to pay at least one million dollars toward the cost of the work, that such payment represents not less than fifty percent of the total cost of the work, and that the authority has complied with the procedures provided in paragraph (b) of this subdivision. Notwithstanding the foregoing, a contract for all or a portion of work involving the alteration, expansion or rehabilitation of the passenger station located at the western terminus of the forty-second street shuttle may be awarded by the authority, by negotiation without competitive bidding, to a private entity or the designee of a private entity where the authority by vote of not less than eleven of its members approves written findings that such award is expected to permit the alteration, expansion or rehabilitation to be carried out in the most efficient and cost effective manner, and that the authority has complied with the procedures provided in paragraph (b) of this subdivision.

(b) Not less than fifteen days prior to the consideration by the board of the authority of a contract to be let pursuant to this subdivision, a notice shall be published in at least one newspaper of general circulation. Such notice shall identify the parties to the proposed contract and summarize its terms and conditions. Such notice shall also invite written public comment concerning the proposed contract, including, to the extent appropriate, the submission of alternatives for the authority's consideration. Such information shall be considered by the board of authority prior to the approval of any contract proposed to be awarded pursuant to this subdivision.

(c) Any contract entered into pursuant to this subdivision shall comply with the requirements of subdivision thirteen of section twelve hundred sixty-six-c of this article.

6. The provisions of subdivisions one, two, three and four of this section shall not be applicable to any procurement by the authority commenced during the period from the effective date of this subdivision until December thirty-first, nineteen hundred ninety-one or during the period from December sixteenth, nineteen hundred ninety-three until June thirtieth, two thousand nineteen; and the provisions of subdivisions seven, eight, nine, ten, eleven, twelve and thirteen of this section shall only apply to procurements by the authority commenced during such periods. The provisions of such subdivisions one, two, three and four shall apply to procurements by the authority commenced during the period from December thirty-first, nineteen hundred ninety-one until December sixteenth, nineteen hundred ninety-three, and to procurements by the authority commenced on and after July first, two thousand nineteen. Notwithstanding the foregoing, the provisions of such subdivisions one, two, three and four shall 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 subdivision 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 subdivision, 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 subdivision or during the period from January first, nineteen hundred ninety-two until December fifteenth, nineteen hundred ninety-three.

7. (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. The aforesaid shall not apply to contracts for personal, architectural, engineering or other 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.

8. (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 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 eleven 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 specified 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.

9. 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 seven or eight 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 an 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 seven of this section within the preceding twelve months, public notice shall first be given pursuant to subdivision eight 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 contract or (ii) the state of New York or the city of New York, provided that in any case when the authority under this paragraph 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 request for proposals as hereinafter set forth. For purposes of this section, a process for competitive request 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 eight 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 rapid transit 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 two-thirds 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.

10. 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 modifications thereto. 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.

11. 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.

12. 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.

13. 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.


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