§ 3-01 Policy.

   (a)   Methods of source selection. Unless otherwise authorized by law, all City procurements shall be made by one of the methods authorized by these Rules.

   (b)   Preference for competitive sealed bidding. Except as otherwise provided in these Rules, contracts shall be awarded by competitive sealed bidding. In the case of construction, where appropriate in the judgment of the ACCO, and in accordance with these Rules, competitive sealed bidding from prequalified vendors or any other appropriate procurement method may be used.

   (c)   Preference for Competitive Sealed Proposals in Certain Contracts. Procurement by competitive sealed proposals, including, where applicable, through HHS Accelerator, is the preferred method for awarding contracts for non-commodity data processing equipment and for information technology, non-commodity data processing, architectural, engineering, client, legal, accounting, financial, training, educational, cultural, medical, managed care, employee health benefits, scientific management, research, performing arts, and systems consultation services, and/or other similar services. A "Special Case" determination is not required for such procurements.

   (d)   "Special Case". Agencies may elect to use one of the methods of source selection listed herein, after making the determination that it is not practicable or not advantageous to the City to use competitive sealed bidding as required by this section.

      (1)   Methods of source selection for which "Special Case" determination is required: A "Special Case" determination is required for each case in which one of the following methods of source selection is used:

         (i)   Competitive sealed bidding from prequalified vendors, except as provided in 9 RCNY § 3-10(a);

         (ii)   Competitive sealed bidding where the award will be made to the bidder whose bid represents the best value to the City;

         (iii)   Competitive sealed proposals (including multi-step process);

         (iv)   Competitive sealed proposals from prequalified vendors;

         (v)   Negotiated acquisition;

         (vi)   Sole source procurement;

         (vii)   Demonstration project for innovative products, approaches, or technologies;

         (viii)   Innovative procurement method; or

         (ix)   Government-to-government purchase.

      (2)   "Special Case" circumstances. A special case is a circumstance recognized by these Rules in which it is not practicable or not advantageous to the City to use competitive sealed bidding for one of the following reasons:

         (i)   specifications cannot be made sufficiently definite and certain to permit selection based on bid price or evaluated bid price alone;

         (ii)   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;

         (iii)   it is in the best interest of the City for goods or standard services to be awarded on the basis of best value to the City by optimizing quality, cost, and efficiency;

         (iv)   there is only one available source, as set forth in these Rules;

         (v)   testing, experimentation, or evaluation is required to determine the feasibility and application of an innovative product, approach, or technology not currently used by the City;

         (vi)   the need for advance screening of qualifications is paramount and prequalification is appropriate for one of the reasons set forth in these Rules;

         (vii)   circumstances justifying the use of negotiated acquisition as set forth in these Rules; or

         (viii)   to test and evaluate the feasibility and application of innovative procurement methods not currently used by the City or provided for in these Rules.

      (3)   Source Selection in a Special Case. Upon determining that there is a special case, the Contracting Officer shall select the most competitive alternate method of source selection among those listed in 9 RCNY § 3-01 above which is practicable and advantageous to the City.

      (4)   Special case determination. The determination that there is a special case, and the reasons that the method of source selection is the most competitive that is appropriate under the circumstances, shall be made in writing in advance of issuing solicitations, as part of any presolicitation review required by these Rules, and shall be approved by the ACCO. Procurements by negotiated acquisition shall require the written approval of the CCPO prior to initiating negotiations.

§ 3-02 Competitive Sealed Bidding.

   (a)   Application. This section shall apply to all procurements made by competitive sealed bidding.

   (b)   Invitation for bids.

      (1)   Use. The IFB is used to initiate a competitive sealed bid procurement.

      (2)   Content. The Invitation for Bids shall include the following:

         (i)   instructions and information to bidders concerning the bid submission requirements, including the time and date set for receipt of the bids; requirements for the electronic submission of bids, if any; time, date, and location of any pre-bid conferences (and a statement whether such conferences are mandatory); and the location where bids are to be submitted;

         (ii)   the purchase description, delivery and performance schedule, and any special instructions necessary;

         (iii)   the contract terms and conditions, including warranty and bonding or other security requirements, as applicable;

         (iv)   a statement regarding how the award will be made:

            (A)   for construction, a statement that award shall be made to the lowest responsive and responsible bidder;

            (B)   for purchase of goods and standard services, a statement that award shall be made to the lowest responsive and responsible bidder or to the bidder whose bid represents the best value to the City by optimizing quality, cost and efficiency. If award will be made on the basis of best value to the City, such statement shall include how best value will be determined in accordance with 9 RCNY § 3-02(o);

         (v)   if not included in the bid documents, a notice of where vendors may obtain a copy of all contractual terms and conditions or other project-related material;

         (vi)   a provision indicating bidder liability for bidder failure to execute contract and to provide any required security within ten days after notice of award pursuant to Section 313(d) of the Charter;

         (vii)   a provision that bidders should give specific attention to the identification of those portions of their bids that they deem to be confidential proprietary information or trade secrets and provide any justification why such materials, upon request, should not be disclosed by the City. Such information must be easily separable from the non-confidential sections of the bid;

         (viii)   a notice of the bidder's rights to appeal certain decisions;

         (ix)   a notice describing the City's prompt payment policy, including an explanation of the requirements for invoicing;

         (x)   a notice that prices are irrevocable until contract award, unless the bid is withdrawn, and that bids may be withdrawn only after the expiration of forty-five days from bid opening and only in writing received by the agency and in advance of award;

         (xi)   a requirement for acknowledgment of amendments;

         (xii)   a provision concerning the submission and consideration of alternate bids, if applicable;

         (xiii)   a notice that contract award is subject to provisions of the MacBride Principles Law;

         (xiv)   a notice that contract award is subject, if applicable, to § 6-129 of the New York City Administrative Code (M/WBE and EBE program), as well as to applicable provisions of federal, State, and local laws and executive orders requiring affirmative action and equal employment opportunity;

         (xv)   where applicable, a notice that contract award is subject to completion of a VENDEX questionnaire and review of that information by the Department of Investigation;

         (xvi)   where applicable all information required pursuant to Section 312(a) of the Charter;

         (xvii)   the name, address, and telephone number of a contact person to whom questions and correspondence relating to the bid solicitation can be addressed;

         (xviii)   the following statement: The New York City Comptroller is charged with the audit of contracts in New York City. Any vendor who believes that there has been unfairness, favoritism, or impropriety in the bid process should inform the Comptroller, Bureau of Contract Administration, 1 Centre Street, Room 727, New York, NY 10007, (212) 669- 2323; and  

         (xix)   a statement that the bidder will be required to comply, if applicable, with § 220/230 of the New York State Labor Law, § 6-109 of the New York Administrative Code, Mayoral Executive Order 102 of 2006, and with all other federal, State, and local labor laws and regulations, including but not limited to providing on-the-job training opportunities and payment of prevailing wages and living wages; and

         (xx)   where applicable for construction contracts, the following shall be additionally included:

            (A)   a specific description and exact location of the construction and the date and time for the bidder to visit the job site when the solicitation requires a mandatory pre-bid visit to and examination of the job site;

            (B)   a reference to all applicable documents which will subsequently become a part of the contract, such as the specifications and the terms and conditions approved by Corporation Counsel;

            (C)   a statement establishing minimum insurance requirements which the City will require of the bidder if successful and conveying to the bidder any insurance coverage which the City will carry that will afford the contractor insurance coverage;

            (D)   a statement that the bidder will be required to meet all licensing or permit requirements required to perform the construction;

            (E)   a statement of instructions relative to the return of bid documents if the bidder elects not to submit a bid thereunder and notification to the City of the bidder declining to bid;

            (F)   a statement that all bid documents must be returned to the City upon request;

            (G)   the form in which the bid is to be submitted (either specified in the invitation for bids or referenced as part of the specifications or attached forms);

            (H)   a requirement that for projects on which more than one prime contractor will be involved, all bidders examine the invitation for bid packages for all other parts of the project; and

            (I)   a notice, for those contracts not otherwise subject to § 6-129 of the New York Administrative Code (M/WBE and EBE Program), that contract award is subject to the provisions of § 6-108.1 of the New York City Administrative Code relating to the LBE program and its implementing rules; and

            (J)   a requirement that, where the preparation of separate specifications is not required for plumbing and gas fitting; steam heating, hot water heating, ventilating and air conditioning apparatus; and electric wiring and standard illumination fixtures pursuant to New York General Municipal Law § 101, the bidder shall submit with its bid a separate sealed list that names each subcontractor that the bidder will use to perform such work on the contract, and the agreed-upon amount to be paid to each.

   (c)   Bidding time. Bidding time is the period of time between the date of public advertisement of the IFB and the time and date set for receipt of bids. The bidding time shall be not less than fifteen days before the bid opening date.

   (d)   Bidder Submissions.

      (1)   Bid Form and Content. The IFB will provide a form on which the bidder must insert the bid price, or other information requested, if any, pursuant to 9 RCNY § 3-02(o)(1), and must sign and submit along with all other necessary submissions. Bids must be typewritten or written legibly in ink. Erasures or alterations shall be initialed by the signer in ink or by electronic signature. All bids must be signed in ink or by electronic signature. The bid invitation will also require that the bid be submitted in a sealed envelope, addressed as required in the bid documents. Where award will be made to the bidder whose bid represents the best value to the City, the IFB may also provide that other information requested, if any, may be submitted up to thirty (30) days from the bid opening by all bidders whose bids are to be considered pursuant to 9 RCNY § 3-02(o)(1)(iii).

      (2)   Bid Samples and Descriptive Literature. The IFB shall state that the submission of bid samples and descriptive literature, regardless of any attempt by a bidder to condition the bid, will not be deemed to vary any of the provisions of the IFB.

   (e)   Public Notice.

      (1)   Notice of Solicitation.

         (i)   Distribution. IFBs or notices of their availability must be electronically mailed to a sufficient number of vendors, including all vendors on the appropriate citywide bidders list established by the CCPO for the purpose of securing competition. IFBs or notices of their availability may be sent electronically to vendors on agency-specific bidders lists, in addition to the appropriate citywide bidders list maintained by the CCPO, only with approval of the CCPO. Such IFBs or notices must be sent electronically at least fifteen (15) days in advance of the due date for bids, or at least twenty-two (22) days in advance of the due date for bids which are subject to § 6-129 of the New York City Administrative Code (M/WBE and EBE program). An agency may, upon request of a vendor, provide IFBs or notices by mail, fax, hand delivery, or otherwise. Where the notice does not include all IFB documents, an additional five (5) days must be allowed. Notices of availability must indicate, at minimum:

            (A)   the name of the agency and, if appropriate, the specific division or bureau soliciting the bids;

            (B)   title and brief description of the goods, services, or construction required;

            (C)   specific information about how, when, and where the IFB is available;

            (D)   the required fee or deposit amount, if any, for obtaining the IFB;

            (E)   the time, date, and location of any pre-bid conference or site visit, if any, and if attendance is mandatory;

            (F)   the date, time, and location and, if applicable, a link to access the livestreaming of the opening, reading, and identification of bids on a publicly accessible website, for the receipt and opening of bids;

            (G)   the name and phone number of the agency contact person, including email address, if applicable; and

            (H)   the citywide bidders list used.

         (ii)   Publication. This subparagraph shall apply to competitive sealed bids above the small purchase limits except that it shall not apply where vendors will be solicited from a PQL.

            (A)   Frequency. Notice of solicitation shall be published at lease once in the City Record and shall be posted on the City's website in a location that is accessible by the public simultaneously with its publication not less than fifteen days before the bid opening date with the exception of accelerated procurements, which shall appear not less than three business days before the bid opening date.

            (B)   Content. Such notice shall include:

               ((a))   agency name;

               ((b))   PIN;

               ((c))   title and/or brief description of the goods, services, or construction to be procured;

               ((d))   estimated quantity, if any;

               ((e))   how the solicitation documents may be obtained;

               ((f))   date and time by which, and the location where, bids must be submitted and will be publicly opened and if applicable, a link to access the livestreaming of the opening, reading, and identification of bids on a publicly accessible website; and

               ((g))   required vendor qualifications or eligibility requirements, if any and

               ((h))   A statement, if applicable, that the solicitation is subject to § 6-129 of the Administrative Code (MWBE and EBE program).

      (2)   Notice of vendor selection.

         (i)   Frequency. Notice of vendor selection exceeding the small purchase limits shall be published once in the City Record within fifteen days after registration of the contract.

         (ii)   Content. Such notice shall include:

            (A)   agency name;

            (B)   PIN;

            (C)   title and/or brief description of the goods, services, or construction procured;

            (D)   name and address of the vendor;

            (E)   dollar value of the contract; and

            (F)   procurement method by which the contract was let.

      (3)   Public availability. A copy of the IFB shall be available for public inspection at a location in the agency offices designated by the ACCO.

   (f)   Bidders lists.

      (1)   The CCPO shall compile citywide lists of vendors interested in being solicited for bids. In addition, the CCPO may authorize one or more agencies to maintain citywide or agency bidders lists. Bidders lists shall be classified by standard categories of goods, services, and construction that are sufficiently detailed to provide meaningful distinctions among categories. Bidders lists shall include the names, addresses, EIN, e-mail addresses, and telephone numbers of the vendors. In addition, bidders lists shall indicate which of the listed businesses have been certified by DSBS as minority owned, women owned and emerging business enterprises.

      (2)   The CCPO and agencies, if authorized by the CCPO to maintain bidders lists, shall cause to be continuously published in the City Record notice of the availability of applications for vendors to be added to citywide bidders lists or agency bidders lists for goods, services, and construction regularly procured by the City. Every effort shall be made to publish notice in a manner that encourages minority, women and emerging business enterprises to certify with DSBS.

      (3)   Application by vendors for placement on the citywide bidders lists or an agency's bidders list shall be continuously available on request from the vendor.

      (4)   Vendors that fail to respond to solicitations or notices of availability of procurement opportunities on three consecutive invitations within one standard category may be removed by the CCPO from the applicable bidders list or by the ACCO from the applicable agency bidder list after notice to the vendor. A "No Bid" statement on a returned bid shall be considered a response. Vendors may also be removed from a citywide bidders list pursuant to procedures prescribed by the CCPO. Application for reinstatement shall be the responsibility of the vendor.

      (5)   Unless otherwise provided, inclusion or exclusion of the name of a vendor on a bidders list does not indicate that the vendor is responsible in respect to a particular procurement or otherwise is capable of successfully performing a City contract.

   (g)   Prequalified vendor lists. In accordance with these Rules, bids may be solicited from a list of prequalified vendors.

   (h)   Pre-bid or pre-solicitation conferences. Pre-bid or pre-solicitation conferences may be conducted by the ACCO to explain the procurement requirements. Written notice of any conference shall be provided to all prospective vendors. A pre-bid conference should be held long enough after the IFB has been issued to allow bidders to become familiar with the solicitation documents, but sufficiently before bid opening to allow consideration of the conference results in preparing their bids. Nothing stated at the pre-bid conference shall change the IFB unless a change is made by amendment as provided in this section. A summary or transcript of the conference shall be prepared and shall be made available and shall be posted on the City's website. A record of attendance shall be kept of all conferences, and shall be made available and shall be posted on the City's website.

   (i)   Amendments to IFBs.

      (1)   Authority. The ACCO shall authorize the issuance of any amendment.

      (2)   Form. Each amendment to an IFB shall be identified as such, shall be set forth in writing, and shall require that the bidder acknowledge receipt of all amendments issued as a condition for consideration of its bid. The amendment shall reference the portion of the IFB it amends.

      (3)   Distribution. Amendments shall be sent to all prospective vendors known to have received an IFB.

      (4)   Timeliness. Amendments shall be distributed within a reasonable time to allow prospective vendors to consider them in preparing their bids. If the time and date set for receipt of bids will not permit such preparation, such time shall be increased to the extent possible, and stated in the amendment or shall be communicated by electronic mail, facsimile, or telephone and confirmed in the amendment. A notice of amendment shall be posted on the City's website.

   (j)   Pre-opening modification or withdrawal of bids.

      (1)   Procedure. Bids may be modified or withdrawn by written notice received in the office designated in the IFB before the time and date set for bid opening.

      (2)   Disposition of bid security. If a bid is withdrawn in accordance with this section, the bid security, if any, shall be returned to the bidder.

   (k)   Late bids, late withdrawals, and late modifications.

      (1)   Policy. Any bid received at the location designated in the solicitation after the time and date set for receipt of bids is late and shall not be considered. Any request for withdrawal or modification received at the location designated in the solicitation after the time and date set for receipt of bids is late and shall not be considered. Late bids and modifications shall not be opened until after registration of the contract.

      (2)   Exception. A late modification of a successful bid that makes its terms more favorable to the City shall be considered at any time it is received and may be accepted upon the approval of the ACCO.

   (l)   Receipt, opening, and recording of bids.

      (1)   Receipt. Upon its receipt, each bid and modification shall be time and date-stamped, but not opened, and stored in a secure location until the time and date set for bid opening. Before bid opening the agency may not disclose the identity of any bidder.

      (2)   Opening and recording. Bids and modifications will be opened publicly, at the time, date, and location designated in the IFB. The name of each bidder, the bid price, and such other information as is deemed appropriate will be read aloud or otherwise made available. These requirements may be met through access to a computer terminal at the location where bids are to be opened, provided that paper documents are available upon request at the time of in-person bid opening. This information also will be recorded at the time of bid opening. The bids will be tabulated or a bid abstract prepared and made available for public inspection. The opened bids will be available for public inspection within five days of bid opening but in any case before vendor selection except to the extent the bidder designates trade secrets or other proprietary data to be confidential. Material so designated must accompany the bid and must be readily separable from the bid in order to facilitate public inspection of the nonconfidential portion of the bid. Prices, makes, and model or catalog numbers of the items offered, deliveries, and terms of payment will be publicly available at a reasonable time after bid opening but in any event before vendor selection regardless of any designation to the contrary at the time of bid opening. For bids on construction contracts submitted in accordance with 9 RCNY § 3-02(b)(xx)(J), the sealed list of subcontractors submitted with the low bid will be opened after such low bid has been announced and the names of the subcontractors shall be announced. The sealed lists of subcontractors submitted by all other bidders pursuant to 9 RCNY § 3-02(b)(xx)(2)(J) of these Rules will be returned to such bidders unopened after the contract award.

      (3)   Confidential data. The ACCO shall examine the bids to determine the validity of any requests for nondisclosure of trade secrets and other proprietary data identified in writing. Nondisclosure is permissible only if approved by Agency Counsel. Any decision not to honor a request for confidentiality shall be communicated in writing to the bidder making the submission.

   (m)   Mistakes in bids.

      (1)   General. Correction or withdrawal of a bid because of an inadvertent, non-judgmental mistake in the bid requires careful consideration to protect the integrity of the competitive bidding system, and to assure fairness. If the mistake is attributable to an error in judgment, the bid may not be corrected. Bid correction or withdrawal by reason of a non-judgmental mistake is permissible, but only to the extent that it is not contrary to the interest of the City or the fair treatment of other bidders.

      (2)   Mistakes discovered before opening. A bidder may correct mistakes discovered before the time and date set for bid opening by withdrawing or correcting the bid as provided in 9 RCNY § 3-02(j).

      (3)   Confirmation of bid. When the Contracting Officer knows or has reason to conclude after bids have been publicly opened that a mistake has been made, such officer shall request from the bidder written verification of the bid. If the bidder alleges mistake, the bid may be corrected or withdrawn upon approval of the ACCO if the following conditions are met:

         (i)   Minor informalities. Minor informalities are matters of form, rather than substance, evident from the bid document or insignificant mistakes that can be waived or corrected without prejudice to other bidders; that is, the effect on price, quantity, quality, delivery, or contractual conditions is negligible. The Contracting Officer may waive such informalities or allow the bidder to correct them depending on which is in the best interest of the City. Examples include the failure of a bidder to:

            (A)   return the number of signed bids required by the IFB, or

            (B)   acknowledge receipt of an amendment to the IFB, but only if it is clear from the bid that the bidder received the amendment and intended to be bound by its terms, or the amendment involved had a negligible effect on price, quantity, quality, or delivery.

         (ii)   Mistakes where intended correct bid is evident. If the mistake and the intended correct bid are clearly evident on the face of the bid document, the bid shall be corrected to the intended correct bid and may not be withdrawn. Examples of mistakes that may be clearly evident on the face of the bid document are typographical errors, errors in extending unit prices, transposition errors, and arithmetical errors.

         (iii)   Mistakes Where Intended Correct Bid is Not Evident. Mistakes may not be corrected after bid opening. A bidder may be permitted to withdraw a bid where a unilateral error or mistake has been discovered in the bid and the Contracting Officer makes the following determination, which shall be approved by the ACCO:

            (A)   the mistake was known or made known to the agency prior to vendor selection or within three days after the opening of the bid, whichever period is shorter;

            (B)   the price bid was based on an error of such magnitude that enforcement would be unconscionable;

            (C)   the bid was submitted in good faith and the bidder submits credible evidence that the mistake was a clerical error as opposed to a judgment error;

            (D)   the error in bid is actually due to an unintentional and substantial arithmetic error or unintentional omission of a substantial quantity of work, labor, material, goods, or services made directly in the compilation of the bid, which unintentional arithmetic error or unintentional omission can be clearly shown by objective evidence drawn from inspection of the original work paper, documents, or materials used in the preparation of the bid sought to be withdrawn; and

            (E)   it is possible to place the City in the same condition that had existed prior to the receipt of the bid. Upon the approval of the ACCO, the bid may be withdrawn, and the bid bond or other security returned to the bidder. If the bid was the low bid or the bid that represents best value, then the contract shall either be awarded to the next lowest bidder or bidder that represents the next best value to the City, as appropriate, or resolicited pursuant to these Rules. Under no circumstances shall a bid be amended or revised to rectify the error or mistake.

      (4)   Mistakes discovered after vendor selection. Mistakes shall not be corrected after vendor selection except where the ACCO, subject to the approval of the CCPO, makes a determination that it would be unconscionable not to allow the mistake to be corrected.

      (5)   Determinations required. When a bid is corrected or withdrawn, or correction or withdrawal is denied, the ACCO shall prepare a determination showing that the relief was granted or denied in accordance with these Rules.

   (n)   Withdrawal of bids. Except as provided for in 9 RCNY § 3-02(j) a bidder may not withdraw its bid before the expiration of forty-five days after the date of the opening of bids; thereafter, a bidder may withdraw its bid only in writing and in advance of an actual award.

   (o)   Bid Evaluation and Vendor Selection.

      (1)   Vendor Selection.

         (i)   Contracts for Construction. The responsible bidder whose bid meets the requirements and objectively measurable evaluation criteria set forth in the IFB, and whose bid price is the lowest responsive and responsible bid price or, if the IFB has so stated, the lowest responsive and responsible evaluated bid price, shall be selected for the contract. A bid shall not be evaluated for any requirement or criterion that is not disclosed in the IFB.

         (ii)   Contracts for Purchase of Goods and Standard Services. Prior to the bid, the ACCO will determine whether the goods or standard services will be awarded to the lowest responsive and responsible bidder or to the responsive and responsible bidder whose bid represents the best value to the City. The responsive and responsible bidder whose bid meets the requirements and objectively measurable evaluation criteria set forth in the IFB, and whose bid price is the lowest, or whose bid represents the best value to the City by optimizing quality, cost and efficiency, will be selected for the contract.

         (iii)   If award will be made based on best value, best value may be determined by the ACCO, or the ACCO may convene a committee to make such determination. Any such committee must consist of persons with knowledge, expertise and experience sufficient to make a fair and reasonable determination. As set forth below the ACCO, or the committee as the case may be, may determine best value by consideration of price together with other factors deemed relevant by the ACCO and set forth in the IFB. In making such determination the ACCO, or committee, must consider the low responsive bid and the next low responsive bids that are within ten percent (10%) of the low responsive bid in price, including any bids that have been adjusted pursuant to subparagraph (iv) of this paragraph, or such higher percentage as approved by the CCPO either on an individual basis or by category or class. Such factors may include:

            (1)   features of the offered product or service set forth in detailed specifications for the product offered;

            (2)   warranties and or maintenance to be provided with the product or service;

            (3)   references, past performance and reliability, including reliability or durability of the product being offered and current or past experience with the provision of similar goods or services;

            (4)   organization, staffing (both members of staff and particular abilities and experience), and ability to undertake the type and complexity of the work;

            (5)   financial capability; and

            (6)   record of compliance with all federal, State and local laws, rules, licensing requirements, where applicable, and executive orders, including but not limited to compliance with existing labor standards and prevailing wage laws.

            The ACCO, or committee, may consider any and all information related to such factors in determining best value and may require additional information to be submitted by the bidders with the bid, or alternatively, within up to thirty (30) days from the bid opening from all bidders whose bids are to be considered pursuant to in 9 RCNY § 3-02(o)(1)(iii). If a committee is used to evaluate the bids, then written evaluation forms shall be completed to record the evaluation of the bids and shall be signed and dated by all members of the committee.

         (iv)   If award will be made based on best value, a vendor that is an M/WBE or State-certified M/WBE must, except with the approval of the CCPO, be given a price preference of 10% and will be evaluated as if the bid price were 10% lower. A price preference of a different percentage may be given with approval from the CCPO. The price preference percentage, if any, shall be included in the IFB.

      (2)   Negotiation with the apparent lowest responsive and responsible bidder or responsive and responsible bidder providing best value. Upon determination of the apparent lowest responsive and responsible bidder or responsive and responsible bidder providing best value, pursuant to 9 RCNY § 3-02(0)(1), and prior to award, the Contracting Officer may elect to open negotiations with the selected vendor in an effort to improve the bid to the City with respect to the price only if award will be made to the lowest responsive and responsible bidder, or if award will be made to the responsive and responsible bidder whose bid represents the best value to the City, with respect to any of the factors considered in determining best value. In the event the apparent winning bidder declines to negotiate, the Contracting Officer may elect to either award the contract to the apparent winning bidder or may, upon written approval by the ACCO, reject all bids in accordance with this section. The result of negotiations, if any, shall be documented in the Recommendation for Award.

      (3)   Award. Upon the determination of the apparent winning bidder pursuant to 9 RCNY § 3-02(o)(1), a Recommendation for Award shall be approved by the ACCO and the contract shall be awarded to that bidder. Where the award is based on best value to the City, the ACCO shall set forth in the Recommendation for Award the reasons that the bid represents the best value to the City and the factors considered by the agency.

   (p)   Low tie bids.

      (1)   Definition. Low Tie Bids are low responsive bids from responsible bidders that are identical in price, meeting all the requirements and criteria set forth in the IFB when the selection of the winning bidder is based on price alone.

      (2)   Vendor selection. In the case of low tie bids, the ACCO shall break the tie in the following order of priority.

         (i)   Select a certified New York City minority owned, woman-owned or emerging business entity bidder;

         (ii)   Select a New York City bidder;

         (iii)   Select a certified New York State small, minority or woman-owned business bidder;

         (iv)   Select a New York State bidder;

         (v)   Conduct a drawing. Tie bidders shall be invited to witness the drawing. A witness shall be present to verify the drawing and shall certify the results on the bid tabulation sheet.

      (3)   Record. A record shall be made of tie bids received, and the method used to break the tie. The ACCO shall monitor the incidence of low tie bids in a systematic manner.

   (q)   Single bid. When a single bid has been received in response to an IFB, a vendor may be selected only after the ACCO has determined that a sufficient number of other potentially responsive vendors have had a reasonable opportunity to bid; why, as a result of inquiries made by the agency, other vendors chose not to submit bids; that the bid submitted meets minimum requirements of the IFB; that the price is fair and reasonable, and that resolicitation is not in the best interest of the City.

   (r)   Alternate bids. Unless alternate bids are requested in the solicitation, such bids may not be accepted.

   (s)   Notification of Non-Responsiveness or Non-Responsibility. If the ACCO determines that a bidder is either not responsible or not responsive, such bidder shall immediately be notified in writing of such determination and the reasons therefor, and the right to appeal the determination, if applicable. A copy of the notification shall be filed with the CCPO and Comptroller.

   (t)   Multiple Award Task Order or Purchase Order Contracts.

      (1)   Determination. Multiple award task order contracts for standard services or multiple award purchase order contracts for goods may be awarded upon a determination by the ACCO that it is in the best interest of the City to award multiple contracts for goods or standard services to multiple contractors and to allocate work among such contractors through a task order or purchase order system. The criteria to be considered by the ACCO in making such determination may include the following: the nature of the goods or standard services to be procured; the expected frequency of task order or purchase order issuance; the capacity of vendors to provide all of the required services within the required timeframes; and the potential advantage of multiple contracts (e.g., more favorable terms; more competitive pricing, etc.).

      (2)   Method.

         (i)   Multiple awards may be made for contracts for goods or standard services, pursuant to competitive sealed bids where award is made based on price only, or based on best value pursuant to the criteria set forth in 9 RCNY § 3-02(o)(1), in conjunction with the procedures prescribed in this subdivision. The IFB shall also state the procedures and criteria to be used in selecting the vendor to perform on an individual task order or goods to be purchased pursuant to an individual purchase order. The agency may:

            (a)   select the vendor that represents the best value to the City for that particular task order or purchase order, as determined pursuant to 9 RCNY § 3-02(o), based on each vendor's bid, or

            (b)   the agency may solicit offers for each task order or purchase order from all awarded vendors. If the agency solicits offers for each task order or purchase order, each vendor shall receive each solicitation and have a reasonable opportunity to compete to provide the standard services or goods. The agency may set forth an alternative method of assigning task orders or purchase orders if it is determined by the CCPO to be in the City's best interest and is set forth in the IFB. In the event that such alternative method is used for standard services, each vendor with a contract shall receive notice of assignment of each task order at the time each task order is issued, regardless of whether each vendor with a contract received the solicitation for the task order.

         (ii)   The following list constitutes acceptable alternative methods of assigning task orders:

            (A)   rotation, or other non-discretionary method of assignment, including where assignment pursuant to such method may be varied based on stated criteria (e.g., capacity or past performance);

            (B)   assignment to or competition among particular vendor(s) with technical expertise particularly suited to the task order;

            (C)   assignment to a particular vendor based on a vendor's particular geographic location, experience or knowledge;

            (D)   assignment to a particular vendor based on the agency's need to distribute task orders among vendors; and

            (E)   any other method approved by the CCPO as set forth in the IFB.

         (iii)   In the event that a vendor selected pursuant to one of the selection methods in paragraphs (i) or (ii) above is unable to perform the services on an individual task order or provide the goods to be purchased pursuant to an individual purchase order for reasons such as lack of capacity or conflict of interest, the agency may disqualify that vendor for purposes of that task order and select another vendor with approval of the CCPO.

         (iv)   Price shall be the primary factor considered in making individual vendor selection decisions, and no task order shall be issued unless the ACCO determines that the proposed price is fair and reasonable. Prices set forth in a multiple award contract shall represent maximum prices that may be set forth in individual task orders issued to that vendor.

      (3)   Duration. Unless otherwise approved by the CCPO, contracts awarded pursuant to this subdivision shall have a total term including all renewals, of not more than five years, provided that any such contract may be extended for an additional period of one year beyond the date of expiration of such contract in accordance with 9 RCNY § 4-02(b)(1)(iii). Task orders, or purchase orders, may extend beyond the expiration of the contract term, in which event the terms and conditions of the contract shall continue to apply to the task order or purchase order until its termination or expiration. Task orders, or purchase orders, shall have a maximum term of three years or, if issued for a specific project, until the specific project is completed. Notwithstanding the above, a task order may be extended beyond, or further extended beyond, the expiration of the contract term or the expiration of the task order with the CCPO’s approval, which must be obtained in a manner prescribed by the CCPO.

   (u)   Rejection of bids. The ACCO may reject all bids and may elect to resolicit by bid in accordance with this section or by other method authorized by these Rules.

   (v)   Resolicitation in cases of failed bids due to defects in the solicitation documents. Under the circumstances set forth in this subdivision, the ACCO may determine that it is appropriate to reject all bids after opening and before vendor selection and to complete the acquisition by a new solicitation for which notice is provided as set forth in this subdivision.

      (1)   This procedure may be used where at least five responses to the solicitation have been received, and despite efforts to address problems in the solicitation by means of pre-bid conferences and issuance of amended specifications in accordance with these Rules, all responses are found to be non-responsive as a result of the same defect(s) in the specification or other solicitation documents.

      (2)   When using this procedure, the ACCO shall:

         (i)   make a determination that:

            (A)   five or more bids have been received in response to the original solicitation;

            (B)   all of the bids have been found to be non-responsive as a result of the same previously unresolved defect(s) in the solicitation documents; and

            (C)   prior to opening the bids the agency had made diligent efforts to discover and correct defects in the solicitation documents by inviting questions from prospective bidders, holding pre-bid conferences, and issuing amendments to the solicitation documents as appropriate;

         (ii)   prepare a corrected solicitation containing the statement that it is a correction of a previously defective solicitation, setting forth the new bid opening date and time, and conspicuously identifying the portions of the original solicitation that have been corrected; and

         (iii)   deliver the corrected solicitation at least ten days in advance of the new bid opening date and time to all bidders who responded to the initial notice of the solicitation by obtaining copies of the original solicitation documents, whether or not they actually submitted bids.

   (w)   Disposition of bids. All bids shall be retained. When bids are rejected or a solicitation canceled after bids are received, the bids shall be retained and the bid security, if any, shall be promptly returned, and the file so documented.

(Amended City Record 1/29/2016, eff. 3/1/2016 & 7/1/2016; amended City Record 12/2/2019, eff. 1/1/2020; amended City Record 12/2/2024, eff. 1/1/2025)

§ 3-03 Competitive Sealed Proposals.

   (a)   The Request for Proposals (RFP) – Contents. RFPs must include the following data:

      (1)   statement that the contract award will be made to the responsible proposer whose proposal represents the best value to the City by optimizing quality, cost and efficiency and therefore is determined to be the most advantageous to the City, taking into consideration the price and such other factors or criteria that are set forth in the RFP, including the quantitative preference to be provided to proposals submitted by vendors that are M/WBEs or State-certified M/WBEs;

      (2)   statement of work or scope of services statement, performance requirements, and any special instructions;

      (3)   the specific criteria and the relative weight of each criterion or category of criteria that will be used to evaluate the proposals;

      (4)   statement of how price will be evaluated. In addition, the following statements regarding price must be included:

         (i)   a notice that prices shall be irrevocable until contract award, unless the proposal is withdrawn, and that offers may be withdrawn only after the expiration of ninety days (or such longer period as is specified in the solicitation) after opening of proposals, in writing received by the agency prior to award;

         (ii)   if applicable, request for cost breakdown of the proposed price;

      (5)   proposal submission requirements including requirements, if any, for the electronic submission of proposals; if applicable, that technical and price proposals shall be submitted in separate sealed envelopes (electronic or paper); and the time and date after which proposals will not be accepted as well as location of proposal submission;

      (6)   other information such as delivery dates or time frames within which the work must be completed. Where it is anticipated that a contract will extend beyond one year, the following information must be included in any solicitation, in addition to any other requirements of these Rules:

         (i)   a statement of intent to award a multi-term contract, and an estimate of the quantity of services required for the proposed contract period;

         (ii)   for client services only, a request for a proposal of a total price which shall be binding in the first year and may be negotiable from year to year thereafter;

         (iii)   that the multi-term contract is subject to modification or cancellation if adequate funds are not appropriated to the agency to support continuation of performance in any fiscal year succeeding the first;

         (iv)   that the multi-term contract is subject to modification or cancellation if the vendor's performance is not satisfactory;

         (v)   that the Contracting Officer shall notify the vendor as soon as is practicable that the funds are, or are not, available for the continuation of the multi-term contract for each succeeding fiscal year;

         (vi)   for client services only, whether proposers shall submit prices for the first year, for the entire period of performance, or for some portion of the period; and

         (vii)   a statement setting forth those costs (if any) for which the vendor will be reimbursed in the event of cancellation;

      (7)   general as well as special terms and conditions, if applicable;

      (8)   a notice of the proposer's rights to appeal certain decisions;

      (9)   a notice of the City's prompt payment policy, including an explanation of the requirements for invoicing;

      (10)   a requirement for acknowledgment of amendments;

      (11)   if applicable, a request for a description of experience in the line of work being considered (including references);

      (12)   if applicable and necessary in the judgment of the Contracting Officer, a request for description of staff capability along with the resumes of key individuals who will work on the contract;

      (13)   a notice that although discussions may be conducted with offerors submitting acceptable proposals, award may be made without any discussions;

      (14)   if applicable, provision on the submission and consideration of multiple or alternate proposals;

      (15)   a provision that proposers should give specific attention to the identification of those portions of their proposals that they deem to be confidential, proprietary information or trade secrets and provide any justification why such materials, upon request, should not be disclosed by the City. Such information must be easily separable from the non-confidential sections of the proposals;

      (16)   a notice that contract award is subject to the provisions of the MacBride Principles Law;

      (17)   a notice that contract award is subject, if applicable, to § 6-129 of the New York City Administrative Code (M/WBE and EBE Program), as well as to applicable provisions of federal, State, and other local laws and executive orders requiring affirmative action and equal employment opportunity;

      (18)   if applicable, a notice that contract award is subject to completion of a VENDEX questionnaire and review of that information by the Department of Investigation;

      (19)   a notice, for those contracts not otherwise subject to § 6-129 of the New York Administrative Code (M/WBE and EBE Program), that contract award is subject to the provisions of § 6-108.1 of the New York City Administrative Code relating to the LBE program and its implementing rules;

      (20)   where applicable, all information required pursuant to Section 312(a) of the Charter;

      (21)   the following statement: The New York City Comptroller is charged with the audit of contracts in New York City. Any vendor who believes that there has been unfairness, favoritism, or impropriety in the proposal process should inform the Comptroller, Bureau of Contract Administration, 1 Centre Street, Room 727, New York, NY 10007; telephone number [phone]; and

      (22)   name, address, and telephone number of contact person; and

      (23)   if applicable, information regarding multiple award task order contracts for services.

   (b)   Client Services RFPs.

      (1)   Requirement for a concept report. At least 45 days prior to issuing an RFP for a new client services program, the agency shall publicly release a concept report regarding such RFP.

         (i)   For the purposes of this section, the term "new client services program" shall mean any program that differs substantially in scope from an agency's current contractual client services programs, including, but not limited to, substantial differences in the number or types of clients, geographic areas, evaluation criteria, service design, or price maximums or ranges per participant, if applicable.

         (ii)   For the purposes of this section, the term "concept report" shall mean a document outlining the basic requirements of an RFP for client services contracts and shall include, but not be limited to, the following information:

            (A)   purpose of the RFP;

            (B)   planned method of evaluating proposals;

            (C)   proposed term of the contract(s);

            (D)   procurement timeline, including, but not limited to, the expected start date for the new contract(s), expected RFP issuance date, approximate proposal submission deadline and expected award announcement date;

            (E)   funding information, including but not limited to, total funding available for the RFP and sources of funding, anticipated number of contracts to be awarded, average funding level of contracts, anticipated funding minimums, maximums or ranges per participant, if applicable, and funding match requirements, if any;

            (F)   program information, including, but not limited to, as applicable, proposed model or program parameters, site, service hours, participant population(s) to be served and participant minimums and/or maximums;

            (G)   proposed vendor performance reporting requirements.

         (iii)   Notwithstanding the issuance of a concept report, the agency may change the above-required information at any time after the issuance of such concept report.

         (iv)   Prior to release of the concept report, the agency shall publish a notification of the release in five consecutive editions of the City Record and electronically on the City's website in a location that is accessible to the public.

         (v)   Upon release, the concept report shall be posted electronically on the City's website in a location that is accessible to the public.

         (vi)   Non-compliance with this section shall not be grounds to invalidate a contract.

      (2)   "Open Ended" RFPs. For a client services program in which there is available funding for more than the available responsible vendors, and for which the requirements and qualifications are unusually complex and difficult to predict (such as Uniform Land Use Review Procedures approvals of appropriate sites, licenses, etc.) and for which interested potential vendors may become qualified during the course of a year, the ACCO may designate the applicable RFP as an "open-ended RFP." If an RFP is so designated, the agency shall publish in the City Record quarterly a notice of solicitation, clearly stating that the RFP may be obtained at any time and that proposals may be submitted in response to the RFP on an on-going basis. When an agency decides to terminate the open-ended RFP, it shall publish such determination in the City Record.

   (c)   Proposal preparation time and form.

      (1)   Proposal preparation time shall be set to provide vendors a reasonable time to prepare their proposals. A minimum of twenty days shall be provided. For those proposals which are subject to § 6-129 of the New York City Administrative Code (M/WBE and EBE program), a minimum of twenty seven (27) days shall be provided. The manner in which proposals are to be submitted, including any forms for that purpose, shall be designated as a part of the RFP.

      (2)   For client services, the ACCO shall be responsible for ensuring that an extract or copy of the scope of work is available for public inspection upon request at the agency issuing the solicitation and that the notice of the solicitation includes a description of the proposed service area and the name and telephone number of an agency individual who can be contacted to provide a copy of the extract or the scope of work.

   (d)   Public notice.

      (1)   Notice of solicitation.

         (i)   Distribution. RFPs or notices of their availability and their notices of solicitation must be posted on the City's website in a location that is accessible to the public simultaneously with their publication. RFPs and their notices of solicitation must also be electronically mailed to a sufficient number of vendors, including all vendors on the appropriate citywide bidders list established by the CCPO pursuant to 9 RCNY § 3-02(f) at least twenty (20) days prior to the due date, or within the time frames authorized by 9 RCNY § 3-03(h). An agency may, upon request of a vendor, provide RFPs or notices by mail, fax, hand delivery, or otherwise. RFPs or notices of their availability may be electronically sent to vendors on agency-specific bidders lists, in addition to the appropriate citywide bidders list maintained by the CCPO, only with approval of the CCPO. For those proposals which are subject to § 6-129 of the New York City Administrative Code (M/WBE and EBE program), a minimum of twenty seven (27) days prior to the due date must be provided.

         (ii)   Publication. This subparagraph applies to RFPs above the small purchase limits except that it does not apply where vendors will be solicited from a PQL.

            (A)   Frequency. Notice of solicitation shall be published once in the City Record not less than twenty days before the proposal opening date with the exception of accelerated procurements, which shall appear not less than three business days before the proposal opening date.

            (B)   Content. Such notice must include:

               ((a))   agency name;

               ((b))   PIN;

               ((c))   title and/or brief description of the goods, services, or construction to be procured;

               ((d))   estimated quantity, if any;

               ((e))   how the solicitation documents may be obtained;

               ((f))   date and time by which, and the place where, proposals must be submitted and, for goods and standard services, where the identity of all proposers will be disclosed;

               ((g))   required vendor qualifications or eligibility requirements, if any;

               ((h))   identification of the citywide bidders list used; and

               ((i))   the name and phone number of the agency contact person, including email address, if applicable.

            (C)   [Repealed.]

      (2)   Notice of vendor selection.

         (i)   Frequency. Notice of vendor selection exceeding the small purchase limits shall be published once in the City Record within fifteen days after registration of the contract.

         (ii)   Content. Such notice shall include:

            (A)   agency name;

            (B)   PIN;

            (C)   title and/or brief description of the goods, services, or construction to be procured;

            (D)   name and address of the vendor;

            (E)   dollar value of the contract; and

            (F)   procurement method by which the contract was let.

   (e)   Competitive sealed proposals from prequalified vendors list. Proposals may be solicited from vendors who have been previously prequalified. A determination to employ selective solicitation within a particular category of procurement shall be made by the ACCO and approved by the CCPO prior to issuing solicitations, unless the CCPO, upon adequate assurances of an agency's capacity to comply with the applicable procedural requirements, has determined that such approval is not required for an agency's contracts or particular categories of contracts.

   (f)   RFP handling procedures.

      (1)   Pre-proposal or pre-solicitation conferences. Pre-proposal or pre-solicitation conferences may be conducted in the manner set forth in 9 RCNY § 3-02.

      (2)   Amendments to RFPs. Amendments to RFPs may be made in the manner set forth in 9 RCNY § 3-02.

      (3)   Modification or withdrawal of proposals. Proposals may be modified or withdrawn prior to the established due date in the manner set forth in 9 RCNY § 3-02. The established due date is either the time and date announced for receipt of proposals or receipt of modifications to proposals, if any, or if discussions have begun, it is the time and date by which best and final offers must be submitted.

      (4)   Late proposals and modifications. Any proposal or modification received after the established due date and time at the place designated for receipt is late and may be accepted only in the manner set forth in paragraphs (5) through (8) below.

      (5)   Handling and acceptance of late proposals. A late proposal may only be accepted when it is determined by the ACCO that it is in the best interest of the City to do so. In such event, the ACCO may hold open the receipt of proposals by no more than three hours during which time no other competing proposal may be opened. The ACCO may, upon written approval by the CCPO, hold open the receipt of proposals by longer than three hours, but until no later than the original submission time on the next business day; such approval may be given by the CCPO only where the need for holding the receipt of proposals open for a longer time arises from generally applicable emergency circumstances, such as weather or transit emergencies. An opened proposal shall eliminate the option of accepting any late proposal. Where an ACCO has determined that it is in the best interest of the City to accept a late proposal, any other late proposal received during the period of extension shall be similarly accepted.

      (6)   Documentation of late proposals. The ACCO shall, within one business day of such acceptance of late proposals, document the reasons that it is in the best interest of the City to approve the extension, the time extended, the name of any vendor(s) submitting a proposal received during the extension period established pursuant to paragraph (5) above, as well as an affirmative statement that no proposals were opened prior to the acceptance of the late proposal and that any other late proposal received during the period of extension was similarly accepted.

      (7)   Late modifications. A late modification of a successful proposal that makes its terms more favorable to the City shall be considered at any time it is received and, if accepted by the ACCO, shall be so documented in the Recommendation for Award.

      (8)   Record. A record shall be made of each request for acceptance of a late proposal or modification. A late proposal or modification that is not accepted by the ACCO shall not be opened until after registration of the contract.

      (9)   Receipt and Registration of Proposals. The identify of an offeror shall not be disclosed prior to the established date and time for receipt of proposals. Proposals shall not be opened publicly but shall be opened in the presence of two or more City employees. Proposals and modifications shall be time and date-stamped upon receipt and held in a secure place until the established due date and time. The agency shall disclose the identity of all proposers for goods and standard services on the due date and time of the proposals. After the date and time established for the receipt of proposals, a Register of Proposals shall be prepared and shall be open to public inspection after award of a contract. It shall include for all proposals the name of each offeror and the number of modifications received, if any.

   (g)   Evaluation Process. Award, if any, must be made to the responsible proposer whose proposal represents the best value to the City by optimizing quality, cost and efficiency and therefore is determined to be the most advantageous to the City, taking into consideration the price and such other factors or criteria that are set forth in the RFP. In evaluating the proposals, the agency may consider only price and the criteria set forth in the RFP. In considering price, the agency may use methods such as ranking technically viable proposals by price, evaluating price per technical point, or evaluating proposals in accordance with another combination of price and technical merit. Such methods may result in the agency selecting the highest technically rated proposer over another technically qualified proposer who offered a lower fee as a result of factors including, but not limited to, the selected vendor's superior technical skill and expertise, increased likelihood of timely completion, and/or ability to manage several projects simultaneously with lower overall costs to the City, including costs in City personnel time and consultants. However, for construction-related consulting services, including those procured through multiple award task orders, the agency shall rank proposers by technical merit, and then consider price by negotiating a fair and reasonable price with the highest technically ranked proposer(s). In ranking proposers for construction-related consultant services by technical merit, agencies must, except with the approval of the CCPO, provide a point preference of five percent (5%) of the total technical points earned to all proposers that are M/WBEs or State-certified M/WBEs before ranking proposers by technical merit. The point preference percentage, if any, shall be included in the RFP. Other methods for considering price, including using fee curves based on market-derived data with appropriate consideration of complexity, or evaluating proposals in accordance with another combination of price, technical merit and proposers' M/WBE or State-certified M/WBE status, may be used for construction-related consulting services only with the written approval of the CCPO.

      (1)   Evaluation committee. Proposals shall be reviewed by an evaluation committee consisting of no fewer than three persons with knowledge, expertise, and experience sufficient to make a fair and reasonable evaluation. If an RFP incorporates multiple competitions, each competition may be evaluated by a separate committee. The ACCO shall require each member of the evaluation committee(s) to submit a signed statement, in a format approved by the CCPO, agreeing to prohibitions on any conflicts of interest.

         (a)   Randomized evaluation process. If the ACCO determines that such a high volume of competing proposals is likely to be received that it will be infeasible for each member of the evaluation committee to read each proposal, the ACCO may, subject to the approval of the CCPO, establish a pool of appropriate evaluators and then randomly assign each proposal to at least three such evaluators for review.

         (b)   Outside evaluators. The evaluation committee may include persons who are not employed by the agency. In addition, the ACCO may determine, subject to the approval of the CCPO, that it is in the best interests of the City for the evaluation committee to include persons who are not employees of the City of New York, provided however that such non-City employees may not constitute a majority of the evaluation committee. Such persons must serve without financial compensation, but may be entitled to travel and other related expenses as may be reasonably incurred in the execution of their role as an evaluator.

      (2)   Rating sheets. Rating sheets or other written evaluation forms shall be used to evaluate proposals by the evaluators and each evaluator shall sign and date his or her rating sheets. Initial ratings may be amended and the amended ratings recorded on amended rating sheets. Copies of all initial and amended rating sheets or evaluation forms shall be maintained.

      (3)   Proposal discussions with individual offerors. The evaluation committee shall evaluate all proposals and may elect to enter into discussions with those whose proposals are acceptable or are reasonably likely to be made acceptable for any or all of the following purposes:

         (i)   promoting understanding of the City's requirements and the vendors' proposals and capabilities;

         (ii)   obtaining the best price for the City; or

         (iii)   arriving at a contract that will be most advantageous to the City taking into consideration price and the other evaluation factors set forth in the RFP.

      (4)   Conduct of discussions.

         (i)   Proposers shall be accorded fair treatment with respect to any opportunity for discussions and revisions of proposals.

         (ii)   The ACCO shall establish an agenda and schedule for conducting discussions.

         (iii)   If there is a need for any substantial clarification of, or change in, the RFP, the RFP must be amended to incorporate such clarification or change and shall be provided to all proposers.

         (iv)   Auction techniques (revealing one proposer's price to another) and disclosure of any information derived from competing proposals are prohibited.

         (v)   Any oral clarification of a proposal shall be confirmed in writing by the proposer.

      (5)   Best and final offers. Best and final offers are the revised and corrected final proposals submitted by proposers after discussions, if any, have been held by the procuring agency.

         (i)   The ACCO shall establish a common date and time for the submission of best and final offers.

         (ii)   Best and final offers shall be submitted only once unless the ACCO makes a determination that it is in the City's best interest to conduct additional discussions and/or require another submission of best and final offers.

         (iii)   Proposers shall be informed that if they do not submit a notice of withdrawal or another best and final offer, their immediate previous offer will be construed as their best and final offer.

         (iv)   All best and final offers shall be recorded on the Register of Proposals and handled in accordance with the control procedures contained in these Rules.

         (v)   The ACCO may request best and final offers on the whole proposal or on any one or combination of its component parts (e.g., price, technical qualifications, approach, and/or capability). The request shall be the same for all proposers.

         (vi)   Best and final offers shall be evaluated in accordance with this subdivision.

         (vii)   For construction-related consulting services, in the event that the agency has chosen to negotiate a fair and reasonable price with the top-ranked proposer, if such a fee is not successfully negotiated, the agency may conclude such negotiations, and enter into negotiations with the next ranked vendor(s), as necessary.

      (6)   Contract proposals from vendors that are M/WBEs or State-certified M/WBEs for the purchase of goods, and standard and professional services except for construction-related consulting services. Proposals submitted by such M/WBEs or State-certified M/WBEs must, except with the approval of the CCPO, be provided one of following quantitative preferences, as determined by the ACCO:

         (i)   Ten percent (10%), or such other percentage approved by the CCPO, of the total technical points earned in the evaluation of the proposal; or

         (ii)   If such proposal's score was above a minimum threshold set forth in the RFP for quality on the weighted criteria as established in the solicitation, either a price preference of ten percent (10%), or such other percentage approved by the CCPO, or a point preference of ten percent (10%) of the total technical points earned in the evaluation of its proposal, or such other percentage approved by the CCPO, as to be determined by the ACCO.

      The point or price preference percentage, if any, shall be included in the RFP.

   (h)   Construction-related services.

      (1)   There are two categories of construction-related services that an agency may procure: Non-Complex and Complex.

      (2)   Where applicable for the procurement of Non-Complex and Complex construction-related services, the following alternative source selection procedures may be utilized.

         (i)   Non-complex construction-related services. Prior to utilizing either of the two alternative source selection procedures described in this subparagraph, the ACCO must determine what constitutes for the agency Non-Complex construction-related services and submit this definition to the CCPO for approval. The ACCO must additionally provide the basis for a determination that the particular service being procured conforms to the agency's CCPO approved definition of a Non-Complex construction-related service. The approved CCPO definition and the basis for the determination that the particular service conforms to that definition shall be included in the agency contract file.

            (A)   Alternative #1. To procure a particular Non-Complex construction-related service, the agency prepares a scope of services, randomly selects a vendor from the appropriate PQL, and offers the project to the selected vendor based upon an applicable, updated OMB fee-curve scale or an appropriate fee-curve scale developed by the agency and approved by OMB. A vendor will have at least seven days to accept or reject the project.

            (B)   Alternative #2. The agency prepares an RFP and solicits technical and cost proposals from a minimum of three vendors selected randomly and/or rotationally from the appropriate PQL. The selected vendors will have at least fifteen days to respond. The agency will evaluate the submitted proposals and enter into negotiations with the vendor(s) offering the best combination of technical quality and price.

         (ii)   Complex construction-related services. The agency prepares an RFP and solicits technical and cost proposals from vendors selected randomly, rotationally, and/or based on a determination that a vendor(s) is the best qualified from the appropriate PQL. Where only random and/or rotational selection is utilized, a minimum of three vendors shall be selected; where selection based on a best qualified determination is utilized, either alone or in combination with random and/or rotational selection, a minimum of five vendors shall be selected. The selected vendors will have at least twenty days to respond. The agency will evaluate the submitted proposals and enter into negotiations with the vendor(s) offering the best combination of technical quality and price.

   (i)   Mistakes in proposals.

      (1)   Confirmation of proposal. When the ACCO knows or has reason to conclude before award that a mistake has been made, he or she should request the proposer to confirm the proposal. If the proposer alleges mistake, the proposal may be corrected or withdrawn during any discussions that are held or if the conditions set forth in this subdivision are met.

      (2)   Mistakes discovered after receipt of proposals but before vendor selection.

         (i)   During discussions prior to best and final offers. Once discussions are commenced with any proposer or after best and final offers are requested, any offeror may correct any mistake by modifying or withdrawing the proposal until the time and date set for receipt of best and final offers.

         (ii)   Minor informalities. Minor informalities, unless otherwise corrected by an offeror, shall be treated in accordance with 9 RCNY § 3-02(m)(3)(i).

         (iii)   Correction of mistakes. If discussions are not held or if the best and final offers upon which award will be made have been received, mistakes may be corrected and the intended correct offer considered only in accordance with 9 RCNY § 3-02(m)(3)(ii).

      (3)   Mistakes discovered after vendor selection. Mistakes shall not be corrected after vendor selection except in accordance with 9 RCNY § 3-02(m)(4).

      (4)   Determinations required. When a proposal is corrected or withdrawn, or correction or withdrawal is denied, a determination shall be prepared in accordance with 9 RCNY § 3-02(m)(5).

   (j)   Multiple Award Task Order Contracts.

      (1)   Determination. Multiple award task order contracts for goods or services may be awarded upon a determination by the ACCO that it is in the best interest of the City to award multiple contracts for services to multiple contractors and to allocate work among such contractors through a task order system. If an agency intends such contracts to be available for use by other City agencies, the provisions of 9 RCNY § 3-14 (Contracts for Services) shall also apply. The criteria to be considered by the ACCO in making such determination may include the following: the nature of the services to be procured; the expected frequency of task order issuance; the capacity of vendors to provide all of the required services within the required timeframes; and the potential advantage of multiple contracts (e.g., more favorable terms; more competitive pricing, etc.).

      (2)   Method.

         (i)   Multiple awards may be made for contracts for goods or services, pursuant to requests for proposals, in conjunction with the procedures prescribed in this subdivision. Such request for proposals, and the subsequent contracts, shall state the procedures and criteria to be used in selecting the vendor to perform on an individual task order for services or purchase order for goods.

            (A)   For services other than standard services, such procedures and criteria shall provide that each vendor shall receive each solicitation and have a reasonable opportunity to compete to provide the services, unless an alternative method of assigning task orders, as set forth below, is determined by the CCPO to be in the City's best interest and is set forth in the request for proposals and the contract. In the event that such alternative method is used, each selected vendor shall receive notice of assignment of each task order, regardless of whether each selected vendor received the solicitation for the task order.

            (B)   For goods and standard services, the agency may:

               ((a))   select the vendor that represents the best value to the City for that particular task order or purchase order, based on each vendor's contract, or,

               ((b))   solicit offers for each task order or purchase order from all awarded vendors. If the agency solicits offers for each task order or purchase order, each vendor shall receive each solicitation and have a reasonable opportunity to compete to provide the standard services or goods. The agency may set forth an alternative method of assigning task orders or purchase orders if it is determined by the CCPO to be in the City's best interest and is set forth in the request for proposals and the contract. In the event that such alternative method is used for standard services, each vendor with a contract shall receive notice of assignment of each task order at the time each task order is issued, regardless of whether each vendor with a contract received the solicitation for the task order.

         (ii)   The following list constitutes acceptable alternative methods of assigning task orders:

            (A)   rotation, or other non-discretionary method of assignment, including where assignment pursuant to such method may be varied based on stated criteria (e.g., capacity or past performance);

            (B)   assignment to or competition among particular vendor(s) with technical expertise particularly suited to the task order;

            (C)   assignment to a particular vendor based on a vendor's particular geographic location, experience or knowledge;

            (D)   assignment to a particular vendor based on the agency's need to distribute task orders among vendors; and

            (E)   Any other method approved by the CCPO as set forth in the RFP.

         (iii)   In the event that a vendor selected pursuant to one of the selection methods in paragraphs (i) or (ii) above is unable to perform the services on an individual task order or provide the goods to be purchased pursuant to an individual purchase order for reasons such as lack of capacity or conflict of interest, the agency may disqualify that vendor for purposes of that task order and select another vendor with approval of the CCPO.

         (iv)   Each vendor shall be required to respond to every solicitation for an individual task order or purchase order for which it is solicited. The ACCO may determine that a vendor is in default if it fails to bid without an adequate explanation for such failure.

         (v)   Price shall be among the criteria considered in making individual vendor selection decisions, and no task order shall be issued unless the ACCO determines that the proposed price is fair and reasonable. Prices set forth in a multiple award contract shall represent maximum prices that may be set forth in individual task orders issued to that vendor.

      (3)   Duration. Unless otherwise approved by the CCPO, contracts awarded pursuant to this subdivision shall have an initial term, or a total term including all renewals, of not more than five years, provided that any such contract may be extended for an additional period of one year beyond the date of expiration of such contract in accordance with 9 RCNY § 4-02(b)(1)(iii). Task orders or purchase orders may extend beyond the expiration of the contract term, in which event the terms and conditions of the contract shall continue to apply to the task order until its termination or expiration. Task orders or purchase orders shall have a maximum term of three years or, if issued for a specific project, until the specific project is completed. Notwithstanding the above, a task order or purchase order may be extended beyond, or further extended beyond, the expiration of the contract term or the expiration of the task order or purchase order with the CCPO’s approval , which must be obtained in a manner prescribed by the CCPO.

   (k)   Vendor Selection and Documentation. The ACCO shall make a determination showing the basis on which the contract award was made to the responsible proposer whose proposal was determined to represent the best value to the City and therefore to be the most advantageous to the City, taking into consideration the price and such other factors or criteria that are set forth in the RFP. This determination shall be included in a Recommendation of Award. Each Recommendation for Award shall include at a minimum the following information:

      (1)   justification of the award;

      (2)   if the award is for goods, services, or construction for which there is agency price history, a price comparison of the proposed price versus previous price, if applicable, with the rationale for any increases supported by cost/price analysis data;

      (3)   reasons for multiple award, and multiple award task order contracts;

      (4)   any special terms and conditions included in the proposed contract via the use of cost/price analysis techniques;

      (5)   affirmative finding of responsibility for the selected proposer(s); and

      (6)   efforts to negotiate better value. Upon determination of the most favorable proposal and after obtaining all required approvals, the Contracting Officer shall award the contract to that proposer.

(Amended City Record 1/29/2016, eff. 3/1/2016 & 7/1/2016; amended City Record 12/2/2019, eff. 1/1/2020; amended City Record 12/2/2024, eff. 1/1/2025)

§ 3-04 Negotiated Acquisition.

   (a)   Policy. Negotiated acquisition may be used for all categories of procurement under the circumstances and subject to the conditions set forth in this section. Authority for approvals or determinations required by this section shall not be delegated, unless otherwise stated herein.

   (b)   Procedures.

      (1)   Preliminary discussions. An agency may engage in preliminary discussions with a vendor to explore the feasibility of a proposed negotiated acquisition. Discussions are not negotiations for the selection of a vendor.

      (2)   The ACCO shall justify the use of the negotiated acquisition method by making a determination that it is not practicable and/or advantageous to award a contract by competitive sealed bidding or competitive sealed proposals due to one or more of the following circumstances and the basis thereof:

         (i)   there is a time-sensitive situation where a vendor must be retained quickly because:

            (A)   an agency needs to respond to a court order, stipulation, or consent decree;

            (B)   funds available from a source outside the City will be lost to the City;

            (C)   an existing vendor has been terminated, has defaulted, has withdrawn from, or has repudiated a contract, or has become otherwise unavailable, or an agency has decided not to renew or extend an existing contract in the best interest of the City and the agency requires a substitute or successor vendor; or

            (D)   a compelling need for goods, services, construction, and/or construction-related services exists that cannot be timely met through competitive sealed bidding or competitive sealed proposals;

         (ii)   there is a limited number of vendors available and able to perform the work;

         (iii)   there is a compelling need to extend a contract one or more times beyond the now-permissible cumulative twelve-month limit, provided that the vendor's performance is satisfactory or that any deficiencies have been or are addressed or are effectively addressed through a corrective action plan, and the extension(s) is for the minimum time necessary to meet the need;

         (iv)   there is a need to procure legal services or consulting services in support of current or anticipated litigation, investigative or confidential services:

            (A)   in the case of legal services or consulting services in support of current or anticipated litigation, unless otherwise provided by law, the Corporation Counsel or designee shall make this determination;

            (B)   in the case of investigative or confidential services, the Mayor or designee, the Corporation Counsel, or the Commissioner of DOI, whichever is applicable, shall make this determination;

         (v)   there is a need to procure construction-related services for a later phase of an ongoing complex construction project from the same vendor where it is not practicable to define the full scope of work at the beginning of the project, the original solicitation included notice that the selected vendor may be the only vendor eligible for later phases of the project, there are compelling programmatic reasons to use the same vendor for the successive phases, and the vendor's performance is satisfactory;

         (vi)   there is a need to procure changed or additional work on an ongoing construction project when an agency wishes to retain a new vendor because it is not practicable or advantageous to award such work by change order or modification to the original vendor;

         (vii)   there is a need to procure construction when, during an ongoing construction project, there is a compelling necessity to perform additional work, which constitutes a material change of scope, and the advantages of negotiating with either an existing vendor or a limited number of other vendors clearly outweigh the disadvantages of a lack of competition; or

         (viii)   there is a need to procure investment services, as described herein.

      (3)   The CCPO shall approve the use of the negotiated acquisition method for a particular procurement or for a particular type of procurement prior to the solicitation of vendor.

      (4)   The agency shall negotiate with all qualified vendors that have expressed interest unless the ACCO determines for a particular procurement or for a particular type of procurement that it is in the City's best interest to negotiate with fewer vendors, and the CCPO approves such determination.

      (5)   The ACCO or designee shall maintain a written record of the conduct of negotiations and the basis for every determination to continue or suspend negotiations with each vendor.

      (6)   The ACCO shall make a determination that award of the contract is in the best interest of the City and the basis thereof.

      (7)   Subparagraph (2)(iii) shall not apply to construction.

   (c)   Investment services. Negotiated acquisition may be used for one or more City Retirement Systems to award a contract to a vendor that has been providing investment management services to the Retirement System(s) under a program to foster the growth of small or new investment managers ("the Emerging Manager Program") as a manager or submanager, under the following conditions:

      (1)   the fund(s) have determined pursuant to a vote of its or their trustees, upon the presentation by the Comptroller or designee of his or her recommendation and after having been provided with a presolicitation report and such information from the relevant asset class investment consultant(s) of the Retirement System(s), that it is in the best interest of the fund(s) and the City for the Comptroller to award a contract through negotiated acquisition;

      (2)   the manager or submanager has provided investment management services to the pension funds under the Emerging Manager Program for a continuous period of at least twelve months, and where, if such investment management services have ended due to a contract expiration or termination, the contract ended no earlier than three (3) months prior to publication of the notice of intent to enter into negotiations;

      (3)   the services provided by the manager or submanager are still required;

      (4)   there is no competitive sealed proposals or Investment Manager Search process for the manager or submanager's eligibility level and type of investment service in which the manager or submanager could participate or could have participated so that the services that it provides would not be disrupted;

      (5)   the term of the new contract must not extend beyond the commencement date of contracts awarded pursuant to a competitive sealed proposal or Investment Manager Search process for a class of managers applicable to the manager or submanager for which the manager or submanager became eligible to compete;

      (6)   over the immediately preceding market cycle of at least three (3) years, the manager or submanager has demonstrated organizational and staffing stability; managed growth of assets; a sound investment strategy and process; strong risk management; consistency of rolling, risk-adjusted, excess, net-of-fee returns relative to its assigned benchmark index; and fair and reasonable fees for services provided;

      (7)   upon the request of a trustee(s), an investment manager proposed for award under this provision must be available to respond to questions related to the proposed award; and

      (8)   no contract procured pursuant to this provision may be executed without the approval of the fund(s), pursuant to a vote of its or their trustees, after a presentation by the Comptroller or his or her designee and submission of the Recommendation for Award which must include such information as necessary to establish that the manager or submanager meets the conditions for being awarded a contract under this section and provides fair and reasonable fees.

   (d)   Public notice. This subdivision shall not apply to negotiated acquisition below the small purchase limits or where the Corporation Counsel or designee has made a determination that such notice may disclose litigation strategy or otherwise impair the conduct of litigation by the City.

      (1)   Notice of intent to enter into negotiations. This paragraph shall not apply where negotiations will be entered into with vendors solicited solely from a PQL or where time constraints beyond the agency's control make such advance notice impractical.

         (i)   Frequency. Notice of intent to enter into negotiations shall be published at least once in the City Record at least ten calendar days before negotiations are expected to begin and shall be posted on the City’s website in a location that is accessible by the public simultaneously with its publication.

         (ii)   Content. Such notice of intent shall include:

            (A)   agency name;

            (B)   PIN;

            (C)   purchase description;

            (D)   estimated quantity, if any;

            (E)   name(s) of the proposed vendor(s), if applicable;

            (F)   summary of the basis of the determination to use negotiated acquisition;

            (G)   projected contract start and expiration dates; and

            (H)   how vendors may express interest in the instant procurement or in such procurement in the future, as applicable.

      (2)   Notice of award.

         (i)   Frequency. Notice of contract award shall be published at least once in the City Record within fifteen days after registration of the contract.

         (ii)   Content. Such notice of award shall include:

            (A)   agency name;

            (B)   PIN;

            (C)   purchase description;

            (D)   name and address of the vendor;

            (E)   dollar value of the contract;

            (F)   date of the published notice of intent to enter into negotiation, if applicable; and

            (G)   contract start and expiration dates.

(Amended City Record 1/29/2016, eff. 3/1/2016; amended City Record 12/15/2023, eff. 1/14/2024)

§ 3-05 Sole Source Procurement.

   (a)   Conditions for use. Sole source procurement shall be used only when there is only one source for the required goods, service, or construction. In such case, the accepted price and terms and conditions shall be achieved through negotiation between the agency and the vendor. This section shall apply to sole source procurements exceeding the micropurchase limit set forth in 9 RCNY § 3-08(c)(1)(ii).

   (b)   Determination. Prior to entering into sole source negotiations, the ACCO shall make a determination that there is only one source for the required good, service, or construction.

      (1)   Such determination shall include a description of the process by which the agency made such determination, a description of the efforts made to ensure that offers were solicited from other sources, and where applicable, a statement of intended actions to develop competition in the future. The agency shall also perform a presolicitation review pursuant to 9 RCNY § 2-02.

      (2)   A copy of the determination shall be forwarded within five (5) days of completion to the Comptroller.

   (c)   Public notice.

      (1)   Notice of intent to enter into sole source negotiations. If expressions of interest are received they shall be evaluated and, if it appears that the good, service, or construction is available from more than a single source, a solicitation shall be issued in accordance with 9 RCNY Chapter 3.

         (i)   Frequency. After the ACCO determines that this procurement method will be used, notice of the intent to enter into negotiations shall be published at least once in the City Record at least ten calendar days before negotiations are expected to begin and shall be posted on the City’s website in a location that is accessible by the public simultaneously with its publication. Such notice shall solicit expressions of interest from vendors qualified to compete on that procurement or in the future. This subdivision shall not apply in cases where Corporation Counsel has provided a written statement that such notice may jeopardize pending litigation or collective bargaining.

         (ii)   Content. Such notice shall include:

            (A)   agency name;

            (B)   PIN;

            (C)   title and/or brief description of the goods, services, or construction procured;

            (D)   estimated quantity, if any;

            (E)   name of the proposed vendor;

            (F)   summary of the determination;

            (G)   how qualified vendors may obtain an application, or express their interest in providing such goods, service, or construction; and

            (H)   due date.

      (2)   Notice of award.

         (i)   Frequency. Notice of a contract award exceeding the small purchase limits shall be published at least once in the City Record, within fifteen calendar days after registration of the contract.

         (ii)   Content. Such notice shall include:

            (A)   agency name;

            (B)   PIN;

            (C)   title and/or brief description of the goods, services, or construction procured;

            (D)   name and address of the vendor;

            (E)   dollar value of the contract;

            (F)   the date of the published notice of intent to enter sole source negotiations; and

            (G)   summary determination of the basis for the sole source procurement.

   (d)   Approvals. The award of any sole source contracts shall be approved by the Agency Head or the ACCO or other designated senior official. This authority shall not be further delegated.

(Amended City Record 12/15/2023, eff. 1/14/2024; amended City Record 4/17/2024, eff. 5/17/2024)