Loading...
a. There shall be a procurement policy board consisting of five members, three of whom shall be appointed by the mayor and two of whom shall be appointed by the comptroller. Each member shall serve at the pleasure of the appointing official. Members shall have demonstrated sufficient business or professional experience to discharge the functions of the board. At least one member appointed by the mayor and one member appointed by the comptroller shall not hold any other public office or public employment. The remaining members shall not be prohibited from holding any other public office or employment provided that no member may have substantial authority for the procurement of goods, services or construction pursuant to this chapter. The mayor shall designate the chair.
b. The board shall promulgate rules as required by this chapter, including rules establishing:
1. the methods for soliciting bids or proposals and awarding contracts, consistent with the provisions of this chapter;
2. the manner in which agencies shall administer contracts and oversee the performance of contracts and contractors;
3. standards and procedures to be used in determining whether bidders are responsible;
4. the circumstances under which procurement may be used for the provision of technical, consultant or personal services, which shall include but not be limited to, circumstances where the use of procurement is (a) desirable to develop, maintain or strengthen the relationships between non-profit and charitable organizations and the communities where services are to be provided, (b) cost-effective, or (c) necessary to (i) obtain special expertise, (ii) obtain personnel or expertise not available in the agency, (iii) to provide a service not needed on a long-term basis, (iv) accomplish work within a limited amount of time, or (v) avoid a conflict of interest;
5. the form and content of the files which agencies are required to maintain pursuant to section three hundred thirty-four and such other contract records as the board deems necessary and appropriate;
6. the time schedules within which city officials shall be required to take the actions required by this chapter, sections thirteen hundred four and thirteen hundred five, or by any rule issued pursuant thereto, in order for contracts to be entered into, registered or otherwise approved, and time schedules within which city officials should take action pursuant to any other provision of law or rule regarding individual contracts, which rules shall specify the appropriate remedies, including monetary remedies, for failure to meet the terms of any applicable schedule for taking such actions. The board may set forth exceptions to these rules. The promulgation of rules defining time schedules for actions by the division of economic and financial opportunity of the department of small business services and the division of labor services of such department shall require the approval of each division, as such rules pertain to actions required of such divisions, prior to the adoption of such rules by the procurement policy board;
7. procedures for the fair and equitable resolution of contract disputes;
8. rules relating to the making of small purchases in a manner that will advance the purposes of the program for minority- and women-owned business enterprises and emerging business enterprises established pursuant to subdivision b of section thirteen hundred four;
9. rules authorizing the submission of a protest by a vendor or a vendor’s designated representative of a determination of any procurement action by an agency, except for determinations related to accelerated procurements, emergency procurements, and small purchases; and
10. such other rules as are required by this chapter.
c. The board may promulgate such additional rules, policies and procedures consistent with and as may be necessary to implement the provisions of this chapter. The board shall annually review all of its rules, policies and procedures and make such revisions as the board deems necessary and desirable. Nothing herein shall prevent the board from reviewing its rules, policies, and procedures, and making such revisions as the board deems necessary and desirable, more than once per year.
d. The board shall promulgate rules to facilitate the timely and efficient procurement of client services, and to ensure that such contracts are administered in the best interests of the city. Such rules shall include but not be limited to: (i) rules authorizing city agencies to meet annual financial audit requirements through the acceptance of consolidated audits across multiple contracts and multiple agencies; (ii) rules providing for expedited renewal or extension of existing client services contracts; (iii) rules mandating the promulgation of draft and final contract plans by all agencies procuring client services.
e. The board shall submit an annual report to the mayor, comptroller, and council setting forth the professional standards for agency contracting officers adopted by the mayor, including any applicable certification process.
f. In the promulgation of any rules pertaining to the procurement of construction or construction related services, the board shall consult with any office designated by the mayor to provide overall coordination to the city's capital construction activities.
g. The board shall make such recommendations as it deems necessary and proper to the mayor and the council regarding the organization, personnel structure and management of the agency procurement function including, where appropriate, recommendations for revision of this charter or local laws affecting procurement by the city. Such reports may include recommendations regarding agency use of advisory groups to assist in preparation of bids or proposals and selection of contractors. The board shall also review the form and content of city contract documents and shall submit to the law department recommendations for standardization and simplification of contract language.
h. The board shall not exercise authority with respect to the award or administration of any particular contract, or with respect to any dispute, claim or litigation pertaining thereto.
i. In addition to other rules authorized by this section, the board may provide by rule that:
1. agencies may make procurements of goods, services and construction for amounts not exceeding one million five hundred thousand dollars from businesses certified as minority or women-owned business enterprises pursuant to section thirteen hundred four of the charter without a formal competitive process.
2. agencies may award contracts for goods and services on the basis of best value to the bidder or offerer which optimizes quality, cost and efficiency, among responsive and responsible bidders or offerers. Such basis shall reflect, wherever possible, objective and quantifiable analysis and may include the prospective bidder's record of complying with existing labor standards, maintaining harmonious labor relations, and protecting the health and safety of workers. Such basis may also identify a quantitative factor for awarding of contracts for bidders or offerers that are businesses certified as minority or women-owned business enterprises pursuant to article fifteen-a of the executive law and section thirteen hundred four of the charter. Where an agency identifies a quantitative factor pursuant to this paragraph, the agency must specify that businesses certified as minority or women-owned business enterprises pursuant to article fifteen-a of the executive law as well as those certified as minority or women-owned business enterprises pursuant to section thirteen hundred four of the charter are eligible to qualify for such factor. Nothing in this paragraph shall be construed as a requirement that such businesses be concurrently certified as minority or women-owned business enterprises under both article fifteen-a of the executive law and section thirteen hundred four of the charter to qualify for such quantitative factor.
3. the rule or rules promulgated to implement paragraph one of this subdivision shall provide that the city shall, commencing on the first of October of the first full calendar year following the adoption of such rule or rules, submit an annual report to the governor and the state legislature of the total number and total dollar value of procurements of goods and services for amounts not exceeding the dollar amount threshold for making procurements without a formal competitive process as established by rule pursuant to paragraph one of this subdivision from:
(i) businesses certified as minority or women-owned business enterprises pursuant to section thirteen hundred four of the charter;
(ii) all other businesses; and
(iii) information about the number of businesses certified as minority or women-owned business enterprises pursuant to section thirteen hundred four of this charter able to perform the specific type and scale of work involved in each procurement.
(Am. 2017 N.Y. Laws Ch. 504, 12/29/2017, eff. 12/29/2017; Am. 2018 N.Y. Laws Ch. 19, 4/18/2018, retro. eff. 12/29/2017; Am. 2019 N.Y. Laws Ch. 98, 7/15/2019, eff. 7/15/2019; Am. 2022 N.Y. Laws Ch. 569, 10/6/2022, eff. 10/6/2022; Am. 2023 N.Y. Laws Ch. 719, 12/8/2023, eff. 12/8/2023; Am. L.L. 2023/169, 12/16/2023, eff. 1/30/2024; Am. 2024 N.Y. Laws Ch. 110, 3/22/2024, retro. eff. 12/8/2023; Am. L.L. 2024/107, 11/9/2024, eff. 3/9/2025)
Editor's note: For related unconsolidated provisions, see Administrative Code Appendix A at L.L. 1991/061, L.L. 2005/129 and L.L. 2006/012.
a. Prior to entering into, renewing, or amending a contract valued at more than one million dollars to provide standard or professional services, or prior to renewing or amending a contract to provide standard or professional services that, following such renewal or amendment, would have a value of more than one million dollars, including agency task orders pursuant to multi-agency task order contracts, but excluding emergency procurements, government-to-government purchases, required source procurements as described in paragraph (2) of subdivision (d) of section 1-02 of title 9 of the rules of the city of New York, contracts that have a total value of more than one million dollars but for which the value of standard or professional services included in such contract is one million dollars or less, small purchases from businesses certified as minority or women-owned business enterprises pursuant to section thirteen hundred four of the charter, and the procurement of legal services or consulting services in support of current or anticipated litigation, investigative or confidential services, an agency shall follow the procedure established herein and the mayor shall comply with the reporting requirements set forth in paragraph 8. A contract or agency task order shall not be artificially divided in order to reduce the value of such contract or agency task order to avoid the requirements of this section.
1. Prior to issuing an invitation for bids, request for proposals, or other solicitation, or renewing or amending an existing contract, the agency shall determine whether such contract is the result of or would result in the displacement of any city employee within the agency. For the purpose of this section, the term “displacement” shall mean a reduction in the number of funded positions, including but not limited to, that resulting from the attrition; layoff; demotion; bumping; involuntary transfer to a new class, title, or location; time-based reductions, or reductions in customary hours of work, wages, or benefits of any city employee.
(a) There shall be a presumptive determination that a proposed contract is the result of or would result in displacement if any of the following events occurred in the three year period preceding the date the agency intends to issue an invitation for bids, request for proposal, or other solicitation, or to renew or amend an existing contract:
(1) the displacement of a city employee within the agency who performs or has performed the services sought by the proposed contract or services of a substantially similar nature or purpose; or
(2) the announcement of spending reductions in connection with a budgetary program, including but not limited to a Program to Eliminate the Gap, that could result or has resulted in the displacement of a city employee within the agency who performs or has performed the services sought by the proposed contract or services of a substantially similar nature or purpose; or
(3) any other statement by an agency or the mayor of a specific anticipated employment action that could result or has resulted in the displacement of a city employee within the agency who performs or has performed the services sought by the proposed contract or services of a substantially similar nature or purpose.
(b) If the agency determines that displacement would not occur, it shall include a certification to that effect, signed by the agency head, in any invitation for bids, request for proposals, or other solicitation, or with any contract renewal or amendment. Such certification shall detail the basis upon which the agency determined that displacement would not occur, construing broadly the nature of the services sought and providing information including but not limited to: (i) whether any civil service title or job title within the agency currently performs the services solicited or services of a substantially similar nature or purpose, the names of such titles, and the extent to which agency employees within such titles currently perform such services; (ii) whether the solicited services expand, supplement, or replace existing services, and a detailed description comparing the solicited services with such existing services; (iii) whether there is capacity within the agency to perform the services solicited and, if there is no such capacity, a detailed description specifying the ways in which the agency lacks such capacity; (iv) for the term of the proposed contract, the projected headcount of employees within such titles or employees who perform such services or services of a substantially similar nature or purpose; and (v) confirmation that none of the events set forth in subparagraph a of this paragraph occurred within the agency in the three year period preceding the date such agency intends to issue an invitation for bids, request for proposal, or other solicitation, or to renew or amend an existing contract.
(c) If the agency determines that displacement would occur, the agency shall determine the costs incurred and the benefits derived in performing the service, consistent with the scope and specifications within the solicitation, renewal, or amendment, with city employees, and shall submit such analysis, with all supporting documentation, prior to issuance of any solicitation or entry into any contract renewal or amendment, to the comptroller.
2. Immediately upon receipt of bids, proposals, and other solicitation responses, or prior to the renewal or amendment of an existing contract, the agency shall submit such determination, analysis, and supporting documentation to the council and to the appropriate collective bargaining representatives representing employees who would be affected pursuant to paragraph 1 of subdivision a of this section.
3. Prior to award of a contract, a renewal, or an amendment, the agency shall perform a comparative analysis of the costs expected to be incurred and the benefits expected to be derived from entering into, renewing, or amending a contract with the proposed vendor, based on such vendor's best and final offer, and such agency's analysis of the costs incurred and the benefits derived from providing the service with city employees. If the agency head intends to award, renew, or amend the contract, he or she shall submit the reasons therefor, together with such analysis, and all supporting documentation, to the comptroller, the council, and the appropriate collective bargaining representatives representing employees who would be affected pursuant to paragraph 1 of subdivision a of this section.
4. The council may, within thirty days after receipt of such reasons, analysis, and supporting documentation hold a hearing on this matter. No contract award, renewal, or amendment shall be made prior to the expiration of this thirty-day period or a council hearing, whichever is sooner.
5. (a) All cost and comparative analyses required under this section shall be conducted in accordance with standard methodology of the office of management and budget, and consistent with the rules of the procurement policy board, as both are modified herein, subject to further modification by local law. Such analyses shall include all reasonable costs associated with performing the service using city employees and all reasonable costs associated with performing the service under the proposed contract or contract renewal or amendment.
(b) Such analyses shall further include the total number, qualifications, job descriptions, and titles of all personnel to be employed by the vendor under the proposed contract or contract renewal or amendment, as well as the nature and cost of salaries and benefits to be provided to such personnel.
(c) Such analyses shall further include, but not be limited to, the cost of employee supervision directly related to the provision of the service, vendor solicitation, contract preparation, contract administration, monitoring and evaluating the contractor, capitalization of equipment over the period such equipment shall be in use, supplies, the cost of providing the equivalent quantity and quality of service by city employees compared to the cost of providing such service by contract, based upon the best and final offer of the proposed vendor, and such other factors as will assist in arriving at full and accurate cost determinations and comparisons.
6. The reasons given to award, renew, or amend the contracts shall include all factors that have been considered in determining whether contracting for this service is in the best interest of the city, whether or not such reasons are contained within the cost or comparative analyses. Such factors shall include, but not be limited to, the potential for contractor default, the time required to perform the service, and the quality of the service to be delivered.
7. The mayor or his or her designee may prepare and implement a plan of assistance for displaced city employees, which may include, but need not be limited to, training to place such employees in comparable positions within the contracting agency or any other agency. The cost of such assistance plan may be included within the cost of contracting-out in the cost and comparative analyses.
8. (a) For the purposes of this paragraph, the term “agency” means a city, county, borough or other office, position, administration, department, division, bureau, board, commission, authority, corporation, advisory committee or other agency of government, the expenses of which are paid in whole or in part from the city treasury, and shall include but not be limited to, the department of education, the health and hospitals corporation, and the New York city housing authority, but shall not include any court, or any local development corporation or other not for profit corporation or institution, including such a corporation or institution maintaining or operating a public library, museum, botanical garden, arboretum, tomb, memorial building, aquarium, zoological garden or similar facility.
(b) The mayor shall, no later than July 31st of each year, produce and publish on the mayor's office of contract services website a plan and schedule for each agency detailing the anticipated contracting actions of each such agency for the upcoming fiscal year. The plan and schedule shall include: (i) information specific to each prospective invitation for bids, request for proposal, or other solicitation, including, but not limited to, the nature of services sought, the term of the proposed contract, the method of the solicitation the agency intends to utilize, the anticipated fiscal year quarter of the planned solicitation, the civil service or job titles within the agency who perform the services sought or services of a substantially similar nature or purpose, if any, and the headcount of employees within such titles who perform such services; and (ii) information specific to each proposed contract renewal or amendment, including, but not limited to, any modifications sought to the nature of the services performed under the contract, the term of the proposed renewed or amended contract, the reason(s) the agency intends to renew or amend such contract, the month and year of the expiration of the existing contract, the civil service or job titles within the agency who perform the services sought or services of a substantially similar nature or purpose, if any, and the headcount of employees within such titles who perform such services.
(c) If an agency intends to issue an invitation for bids, request for proposal, or other solicitation, or to renew or amend an existing contract, but the mayor fails to include such prospective invitation, request, solicitation, renewal or amendment in the plan and schedule or such invitation, request, solicitation, renewal or amendment provides a longer contract term than the term provided in the plan and schedule or otherwise differs from the information included in the plan and schedule with respect to the nature of the services sought, the civil service or job titles within the agency that perform the services sought or services of a substantially similar nature or purpose, or the headcount of employees within such titles, the mayor shall provide public notice ten days before such agency issues such invitation, request, or solicitation, or enters into such renewal or amendment. Such notice, which shall be posted on the website of the mayor's office of contract services and in the city record, shall include: (i) information specific to the prospective invitation for bids, request for proposal, or other solicitation, including, but not limited to, the nature of services sought, the term of the proposed contract, the method of the solicitation the agency intends to utilize, the civil service or job titles within the agency who perform the services sought or services of a substantially similar nature or purpose, if any, and the headcount of employees within such titles who perform such services; or (ii) information specific to the proposed contract renewal or amendment, including, but not limited to, any modifications sought to the nature of the services performed under the contract, the term of the proposed renewed or amended contract, the reason(s) the agency intends to renew or amend such contract, the civil service or job titles within the agency who perform the services sought or services of a substantially similar nature or purpose, if any, and the headcount of employees within such titles who perform such services.
b. 1. Except as provided for in sections three hundred fourteen, three hundred fifteen and three hundred sixteen, contracts shall be awarded by competitive sealed bidding under such rules as shall be made by the procurement policy board, except that, in a special case as defined in subdivision b of this section, the head of an agency proposing to award such contract may order otherwise in accordance with policies and procedures established by the procurement policy board.
2. A determination by the head of an agency to use other than competitive sealed bidding except as provided for by sections three hundred fourteen and three hundred sixteen shall be made in writing, stating the reasons why competitive sealed bidding is not practicable or not advantageous and why the method of procurement selected pursuant to section three hundred seventeen is the most competitive alternative that is appropriate under the circumstances. The head of the agency shall include the determination or a summary of the determination in the notice of solicitation, or for an emergency procurement in the notice of award, required to be published pursuant to section three hundred twenty-five of this chapter.
c. 1. For the purposes of this chapter, the term "special case" shall be defined as a situation in which it is either not practicable or not advantageous to the city to use competitive sealed bidding for one of the following reasons:
(a) specifications cannot be made sufficiently definite and certain to permit selection based on price alone;
(b) judgment is required in evaluating competing proposals, and it is in the best interest of the city to require a balancing of price, quality, and other factors;
(c) the good, service or construction to be procured is available only from a single source;
(d) testing or experimentation is required with a product or technology, or a new source for a product or technology, or to evaluate the service or reliability of such product or technology; or
(e) such other reasons as defined by rule of the procurement policy board.
2. The procurement policy board may provide by rule that it is either not practicable or not advantageous to the city, for one of the reasons set forth in paragraph one of this subdivision, to procure a specified type of good, service or construction by competitive sealed bidding.
(Am. L.L. 2024/085, 8/17/2024, eff. 10/1/2024)
Editor's note: For related unconsolidated provisions, see Administrative Code Appendix A at L.L. 1994/035.
a. The term competitive sealed bidding shall mean a method of procurement where the award of a contract is made to the lowest responsible bidder whose bid meets the requirements and criteria set forth in the invitation for bids.
b. Procedures for competitive sealed bidding.
1. Bids shall be solicited through an invitation for bids, which shall include a purchase description and a notice of where vendors may obtain a copy of all contractual terms and conditions applicable to the procurement. A notice of the intention to solicit bids shall be publicly advertised in accordance with the provisions of section three hundred twenty-five of this chapter. The terms of such contracts shall be settled by the corporation counsel as an act of preliminary specification to an invitation for bids.
2. The agency letting the contract may reject all bids if it shall deem it for the interest of the city so to do; if not, it shall, without other consent or approval, award the contract to the lowest responsible bidder, unless the mayor shall determine in writing, justifying the reasons therefor, that it is the best interest of the city that a bid other than that of the lowest responsible bidder shall be accepted. Such determination shall be published in the City Record. Tie bids are to be decided by the agency letting the contract and the award made. Whenever a contract is awarded to other than the lowest bidder because the lowest bidder is determined by the agency not to be a responsible bidder or because the lowest bid is determined by the agency to not meet the requirements and criteria set forth in the invitation for bids, the agency making such determination and awarding such contract shall immediately notify the lowest bidder of such determination and shall file in the agency contract file a statement in detail of the reasons therefor.
3. Any bidder who is declared not responsible by an agency and any bidder whose bid is determined by an agency to not meet the requirements and criteria set forth in the invitation for bids may, within five days of receipt of notice of the agency decision, appeal such decision to the agency head. A determination of an agency head of an appeal of a decision of non-responsibility may be appealed to the mayor who shall take final action regarding such matter. A determination of an agency head of an appeal of a decision that a bid does not meet the requirements and criteria set forth in the invitation for bids shall be final.
c. No bid shall be valid unless accompanied by a deposit in the amount and manner set forth and specified in the proposal; provided, however, that the procurement policy board shall establish such requirements for bid deposits as are necessary and practicable, and, pursuant to rules and standards, may waive the bid deposit requirement for specific classes of purchase or types of transactions. Upon the award of the contract the deposits of unsuccessful bidders shall be returned to them, and the deposit of the successful bidder shall be returned upon execution of the contract and furnishing of the required security.
d. Every invitation for bids shall contain a provision that in the event of the failure of the bidder to execute the contract and furnish the required security within ten days after notice of the award of the contract, the deposit or so much thereof as shall be applicable to the amount of the award made shall be retained by the city, and the bidder shall be liable for and shall agree to pay on demand the difference between the price bid and the price for which such contract shall be subsequently relet, including the cost of such reletting and less the amount of such deposit. No plea of mistake in such accepted bid shall be available to the bidder for the recovery of the deposit or as a defense to any action based upon such accepted bid.
a. Notwithstanding any other provision of this charter, the procurement policy board and the council may, by concurrent action, establish dollar limits for procurement of goods, services, construction, or construction-related services that may be made without competition or without public advertisement. Awards pursuant to this section shall be made in accordance with rules of the procurement policy board.
(Am. L.L. 2023/069, 5/29/2023, eff. 6/28/2023)
Notwithstanding the provisions of section three hundred twelve of this chapter, in the case of unforeseen danger to life, safety, property or a necessary service, an emergency procurement may be made with the prior approval of the comptroller and corporation counsel, provided that such procurement shall be made with such competition as is practicable under the circumstances, consistent with the provisions of section three hundred seventeen of this chapter. A written determination of the basis for the emergency and the selection of the contractor shall be placed in the agency contract file, and shall further be submitted to the council no later than fifteen days following contract award, and the determination or summary of such determination shall be included in the notice of the award of contract published pursuant to section three hundred twenty-five of this chapter.
Loading...