(a) General applicability. Except as otherwise provided by law, these Rules shall apply to the procurement of all goods, services, and construction to be paid for out of the City treasury or out of monies under the control of or assessed or collected by the City.
(b) Procurement by independently elected officials. These Rules shall apply to the procurement of all goods, services, and construction by independently elected City officials and by the City Council. However, for such procurements, with the exception of Mayoral action required by Section 334(c) of the Charter (relating to the public availability of copies of contract and contractor information), where these Rules require action by or appeal to the Mayor or an appointee of the Mayor with regard to a particular procurement, such action or appeal shall instead be taken or received by the independently elected official or the official's designee, or, in the case of the City Council, by the Speaker or another member of the Council designated by the Speaker with the approval of the majority of the members of the Council.
(c) Procurement by other public entities. These Rules shall apply to the procurement of all goods, services, and construction by entities the majority of whose members are City officials or are individuals appointed directly or indirectly by City officials, unless otherwise provided by law. However, for such procurements, with the exception of Mayoral action required by Section 334(c) of the Charter (relating to the public availability of copies of contract and contractor information), where these Rules require action by or appeal to the Mayor or an appointee of the Mayor, such action or appeal shall instead be taken or received by the governing board of such entity or by the chair of the board or chief executive officer of such entity pursuant to a resolution adopted by such board delegating such authority to such officer.
(d) Procurement requirements prescribed by entities external to the city or other applicable law.
(1) These Rules shall not apply to procurements to the extent that a source of funds outside the City of New York, a federal or State statute or rule, the terms of a court order or consent decree, or other applicable law expressly authorizes or requires otherwise. All other provisions of these Rules shall apply to such procurements.
(2) The source selection requirements of these Rules shall not apply to procurements where a source of funds outside the City of New York, a federal or State statute or rule, the terms of a court order or consent decree, or other applicable law expressly authorizes or requires that a procurement be made from a specified source. All other provisions of these Rules shall apply to such procurement.
(e) Procurements funded by line item appropriations or discretionary funds. The source selection requirements of these Rules shall not apply to contract awards made from line item appropriations and/or discretionary funds to community-based not-for-profit organizations or other public service organizations identified by elected City officials other than the Mayor and the Comptroller. All other provisions of these Rules shall apply to such procurements. In addition, for all such procurements, the appropriate elected official, his or her designee, or, in the case of a contract to be administered by a Mayoral agency, the ACCO of the agency administering the contract, shall certify that all procedural requisites established by the elected official or by the agency administering the contract have been met.
(f) Transactions not subject to these rules. These Rules shall not apply to the following transactions, provided the ACCO determines that the process to be followed is in the best interest of the City and states the basis therefor:
(1) grants or contracts between City agencies and other governments or any public authority or public benefit corporation except as provided by the Government-To-Government Purchases rule;
(2) the provision of work or services by public utilities regulated by the New York State Public Service Commission (such as local telephone service, electric light and power, gas, water, and steam) for which the rates charged to customers have been tariffed in accordance with the provisions of the Public Service Law, or for which there are no practical competitive alternatives;
(3) the provision of cable television services or other public service regulated by the New York State Public Service Commission, or any interstate public utility regulated by either the Federal Energy Regulatory Commission or the Federal Communications Commission;
(4) memberships in professional associations, and
(5) subscriptions to research databases; paper or electronic subscriptions for magazines, newspapers, other periodicals, or books; off-the-shelf training materials including, but not limited to, webcasts, courses, programs, videos, and assessments; and attendance at standard commercially-available training seminars or subscriptions to organizations providing such seminars.
(g) Severability. If any provision of these Rules or any application thereof to any person or circumstances is held invalid, such invalidity shall not affect other provisions or application of these Rules that can be given effect without the invalid provision or application, and to this end the provisions of these Rules are declared to be severable.
(h) Ratification of minor rules violations.
(1) Prior to registration. If, prior to registration, it is determined by the ACCO that a procurement is in violation of these Rules, and the violation has been deemed to have had no significant, adverse impact on the competitive process, then as soon as practicable after discovery, the ACCO shall either:
(i) revise the procurement to comply with these Rules, or
(ii) if the minor Rules violation(s) cannot be corrected to comply with these Rules, then upon written application by the ACCO, the CCPO may ratify the procurement provided it is in the best interest of the City to do so, and provided such ratification will not violate any law applicable to the procurement process. Such ratification shall include the justification(s) therefor.
(2) After registration. If, after registration, it is determined that a procurement is in violation of these Rules:
(i) if the selected vendor has not acted fraudulently or in bad faith:
(A) the minor Rules violation may be ratified and the procurement affirmed, provided it is determined by the ACCO and approved by the CCPO that doing so is in the best interests of the City; such determination and approval shall include the justification(s) therefore, or
(B) the procurement may be terminated by the ACCO and the selected vendor shall be compensated in accordance with applicable law or contract terms.
(ii) if the selected vendor has acted fraudulently or in bad faith:
(A) the procurement may be declared null and void by the ACCO who shall retain the option to exercise the City's rights to suspend or debar the vendor and to recover all payments made for such a procurement even when the City retains the goods, services, or construction provided by the vendor; in such event the vendor's name shall be entered as a caution in the VENDEX database, or
(B) the minor Rules violation may be ratified and the procurement affirmed, provided it is determined by the ACCO and approved by the CCPO that doing so is in the best interests of the City, including the reasons therefore. Such ratification shall not prejudice the City's rights to damages as may be appropriate.
(3) Public notice. Notice of the ratification of a minor Rules violation shall be published at least once in the City Record within ten days after the CCPO's determination. Such notice shall include the name of the vendor (when applicable); the procurement identification number; a brief description of the goods, services, construction, or construction-related services procured; the dollar amount; and the duration of the contract.
(i) General delegability of authority. Unless otherwise provided by law, these Rules, Mayoral Executive Order, Comptroller Directive, or City policy or procedure, the Mayor, Comptroller, CCPO, Agency Head, or ACCO may delegate any authority vested in that official by these Rules in writing to other City officials or employees having the knowledge and experience necessary to exercise such authority in the City's interest. Copies of such delegations shall be filed with the CCPO.
(Amended City Record 6/23/2023, eff. 7/23/2023)