§ 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)

§ 3-06 Emergency Purchases.

   (a)   Definition of emergency conditions. An emergency condition is an unforeseen danger to life, safety, property, or a necessary service. The existence of such a condition creates an immediate and serious need for goods, services, or construction that cannot be met through normal procurement methods.

   (b)   Scope. An emergency procurement shall be limited to the procurement of those items necessary to avoid or mitigate serious danger to life, safety, property, or a necessary service.

   (c)   Authority to make emergency purchases.

      (1)   Any agency may make an emergency procurement when an emergency arises and the agency's resulting need cannot be met through normal procurement methods.

      (2)   The Agency shall obtain the prior approval of the Comptroller and the Corporation Counsel.

      (3)   The Agency shall submit at the earliest practicable time a determination of the basis of the emergency and the selection of the contractor, as set forth in 9 RCNY § 3-06(e)(3) to the Comptroller and the Corporation Counsel for approval as soon as possible.

   (d)   Source selection. The procedure used shall assure that the required items are procured in time to meet the emergency. Given this constraint, such competition as is possible and practicable shall be obtained.

   (e)   Public notice and filing requirements. Solicitations in emergency procurements are subject to the following public notice and reporting requirements:

      (1)   Solicitations pursuant to a finding of emergency are not required to be published in the City Record.

      (2)   The agency shall publish notice of the award of the emergency contract in accordance with 9 RCNY § 3-06(f).

      (3)   A determination of the basis for the emergency and the selection of the vendor must be filed with the Corporation Counsel and the Comptroller, and must further be submitted to the City Council no later than fifteen days following the contract award. The determination must include:

         (i)   the date emergency first became known;

         (ii)   a list of goods, services, and construction procured;

         (iii)   the names of all vendors solicited;

         (iv)   the basis of vendor selection;

         (v)   contract prices;

         (vi)   the past performance history of the selected vendor;

         (vii)   a listing of prior/related emergency contract; and

         (viii)   PIN.

   (f)   Notice of award.

      (1)   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 contract registration.

      (2)   Content. Such notice shall include:

         (i)   summary determination of the basis for the emergency stated to be either a case of an unforeseen danger to life, safety, property, or a necessary service;

         (ii)   agency name;

         (iii)   PIN;

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

         (v)   name and address of the vendor;

         (vi)   dollar value of the contract;

         (vii)   procurement method by which the contract was let; and

         (viii)   citation of the reason under Section 315 of the Charter providing justification for the chosen method of procurement.

(Amended City Record 1/29/2016, eff. 3/1/2016)

§ 3-07 Accelerated Procurement.

   (a)   Definition. An accelerated procurement is a procurement of commodities that is required to be made quickly due to markets experiencing significant shortages and/or short-term price fluctuations. Such markets must be identified by specific rule of the PPB. Accelerated procurement shall only be authorized when the CCPO determines those specific commodities subject to accelerated procurement.

   (b)   Eligible markets. The PPB has identified the following specific markets as experiencing significant shortages and/or short-term price fluctuations:

      (1)   chemicals,

      (2)   energy,

      (3)   food,

      (4)   metals (ferrous and non-ferrous),

      (5)   paper, and

      (6)   plastics.

   (c)   Designation of specific commodities within eligible markets. The CCPO, based upon written application by an ACCO, shall select those specific commodities within eligible markets subject to accelerated procurement. The CCPO may also, at his/her discretion, select specific commodities for accelerated procurements. In either case, the selected commodities shall have been and continue to be in short supply and/or have experienced and continue to experience short-term price fluctuations. The CCPO shall document the reasons why such specific commodities are selected and the duration and conditions under which these commodities shall remain subject to accelerated procurement. The CCPO shall further issue the approvals necessary to implement any changes to the specific commodities list and shall publish quarterly in the City Record a list of all commodities designated for accelerated procurement. The scheduling and content of such notice shall be determined by the CCPO.

   (d)   Methods of procurement. Accelerated procurements shall be made in accordance with 9 RCNY § 3-01.

   (e)   Exemptions from certain requirements. Accelerated procurements are exempt from the following requirements:

      (1)   an accelerated procurement in excess of the small purchase limit may be made by purchase order instead of contract,

      (2)   an accelerated procurement is exempt from the hearing requirements of these Rules, and

      (3)   registration of the contract pursuant to these Rules prior to the effective date is not required. The agency shall, as soon as is practicable, and not more than thirty days from date of award, submit such procurement to the Comptroller with a completed Advice of Award and all other documentation required by these Rules for an audit of the procedures and basis for the determination of the accelerated procurement.

   (f)   Authority to make accelerated procurements. Accelerated procurements may be made provided it is an eligible market and the CCPO has approved the specific commodity for accelerated procurement.

   (g)   Filing requirements. The determination of the basis for the procurement, all required approvals, and the selection of the vendor shall be documented in the Recommendation for Award. This documentation shall include:

         (i)   a list of the commodities procured, together with the PIN;

         (ii)   the names of all vendors solicited and the name and basis of the source selection;

         (iii)   the prices paid and the percentage difference between the prices paid under the accelerated procurement as compared with the previous purchase for the same or similar commodity; and

         (iv)   an evaluation of the past performance (if any) of the selected source.

   (h)   Public notice.

      (1)   Notice of solicitation.

         (i)   Frequency. Notice shall be published at least once in the City Record not less than three business days before the bid opening date, the proposal due date, or initiation of negotiations with a vendor pursuant to the sole source or negotiated acquisition methods, or the initiation of another procurement method provided by these Rules 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 shall include:

            (A)   agency name;

            (B)   PIN;

            (C)   title and/or brief description of the commodities to be procured;

            (D)   estimated quantity, if any;

            (E)   how the contract documents may be obtained, if applicable;

            (F)   when and where the bids are due and shall be publicly opened, or when and where proposals are due, if applicable; and

            (G)   special legally-required vendor qualifications or eligibility requirements, if any.

      (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 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 commodities procured;

            (D)   name and address of the vendor;

            (E)   dollar value of the contract;

            (F)   procurement method by which the contract was let, including summary of any "special case" determination made in connection with the award by a "special case" method of procurement, if applicable; and

            (G)   summary determination of the basis for the accelerated procurement.

§ 3-08 Small Purchases.

   (a)   Definition. Small purchases are those procurements in value of not more than $100,000 or those procurements made, pursuant to subparagraph (c)(1)(iv) below, in value of not more than the maximum amount authorized pursuant to paragraph (1) of subdivision (i) of section 311 of the Charter. This collectively shall be known as the small purchase limit. Procurements over $100,000 in value that are not made pursuant to subparagraph (c)(1)(iv) below, shall not be within the small purchase limit.

   (b)   Application. A procurement shall not be artificially divided in order to meet the requirements of this section. Changes to and/or renewals of small purchases shall not bring the total value of the procurement to an amount greater than the small purchase limit.

   (c)   Scope. 

      (1)   Competition Objective. 

         (i)   Public notice of solicitation and award, written decision to procure technical, consultant, or personal services, presolicitation review report, Recommendation for Award, vendor protests, written notice to the low bidder or offeror of non-responsiveness, VENDEX questionnaires (unless the total aggregate value of purchases, franchises, and concessions awarded to that vendor including this one during the immediately preceding twelve-month period equals or exceeds $250,000) and public hearing (unless the award is valued over $100,000) shall not be required for small purchases awarded, pursuant to this section. Notwithstanding any provision of this subparagraph, notice of award shall be made in accordance with paragraph (d)(2) for procurements made pursuant to subparagraph (c)(1)(iv) below.

         (ii)   Micropurchases. For procurements of goods and all services except construction the value of which is $20,000 or less, and for procurements of construction the value of which is $35,000 or less, no competition is required except that in making purchases below this limit, Contracting Officers must ensure that the noncompetitive price is reasonable and that purchases are distributed appropriately among responsible vendors, including M/WBE vendors. Documentation of such purchases must identify the vendor the item was purchased from, the item purchased, and the amount paid.

         (iii)   Small Purchases. Except for purchases made, pursuant to subparagraph (c)(1)(iv) below, for procurements of goods and all services except construction valued over $20,000 through the small purchase limit or procurements of construction valued over $35,000 through the small purchase limit, at least five vendors must be solicited at random from the appropriate citywide small purchases bidders list established by the CCPO for the particular goods, services, construction, or construction-related services being purchased, except where the bidders list consists of fewer than five vendors, in which case all vendors on the list must be solicited. Agencies may additionally employ any small purchase technique sanctioned by DSBS that is not otherwise in violation of these Rules. The agency may solicit additional vendors but only with the approval of the CCPO. Responsive bids or offers must be obtained from at least two vendors. For purposes of this section, a response of "no bid" is not a responsive bid. If only one responsive bid or offer is received in response to a solicitation, an award may be made to that vendor if the Contracting Officer determines that the price submitted is fair and reasonable and that other vendors had reasonable opportunity to respond.

         (iv)   M/WBE Small Purchases. No competition is required for the procurement of goods, services, and construction from M/WBE vendors, provided that in making purchases pursuant to this subparagraph, the Contracting Officer must attempt to obtain at least three price quotes from M/WBE vendors or document their inability to do so. The Contracting Officer must ensure that the price is reasonable and that purchases are distributed appropriately among responsible M/WBE vendors. Agencies shall not use this subparagraph to make any purchase for goods, services or construction, the value of which is less than or equal to the applicable micropurchase limits set in subparagraph (c)(1)(ii) above, or to make any purchase the value of which exceeds the maximum amount authorized pursuant to paragraph (1) of subdivision (i) of section 311 of the Charter. Additionally, agencies shall not make purchases pursuant to this subparagraph for human services.

      (2)   Solicitation Methods and Use. For purchases made, pursuant to subparagraph (c)(1)(iii) above, agencies must use a written solicitation describing the requirements, which must contain, at a minimum:

         (i)   a description of the item or service requested;

         (ii)   time, date, place, and form of requested response;

         (iii)   basis for award; and

         (iv)   name and telephone number of the Contracting Officer to whom inquiries may be directed.

   (d)   Award. 

      (1)   Determination. Purchases made, pursuant to subparagraph (c)(1)(iii) above, shall be awarded to the lowest responsive and responsible bidder or to the responsive and responsible offeror that has made the most advantageous offer. After such determination has been made and all necessary approvals have been obtained, the Contracting Officer must issue a purchase order or contract, as appropriate, to the successful bidder or offeror.

      (2)   Notice of Award. 

         (i)   Frequency. Notice of award for procurements made pursuant to subparagraph (c)(1)(iv) 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 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.

   (e)   Record. The procurement file for a small purchase shall include, at a minimum, any of the following that are applicable:

      (1)   name of the responsible Contracting Officer;

      (2)   date of contract award;

      (3)   purchase order or contract number;

      (4)   name and address of successful vendor, including the vendor's employer identification number;

      (5)   invoice and receiving documentation;

      (6)   description of goods, services, construction, and construction-related services;

      (7)   name of the bidder list or applicable commodity code;

      (8)   names of solicited vendors and bid amounts, if any;

      (9)   copy of advertisement or written solicitation;

      (10)   quotations and notations pertaining to oral bid solicitations;

      (11)   written bids and offers;

      (12)   all correspondence;

      (13)   bid tabulations; and

      (14)   written basis of award, including a determination that the award is fair and reasonable for small purchases made, pursuant to subparagraph (c)(1)(iv) above.

(Amended City Record 1/29/2016, eff. 3/1/2016; amended City Record 10/1/2018, eff. 11/5/2018; amended City Record 12/2/2019, eff. 1/1/2020; amended City Record 5/4/2023, eff. 6/3/2023; amended City Record 8/23/2024, eff. 9/22/2024)

§ 3-09 Intergovernmental and Cooperative Purchases.

   (a)   Intergovernmental purchasing. An agency may procure goods, services, construction, or construction-related services through the United States General Services Administration or any other federal agency or the New York State Office of General Services or any other State agency provided that: for goods the price is lower than the prevailing market price; for services or construction, the price is fair and reasonable; and for procurements above the small purchase limits, approval has been obtained from the ACCO.

   (b)   Cooperative purchasing.

      (1)   Cooperative purchasing means procurement conducted by, or on behalf of, more than one public agency or governmental entity.

      (2)   Any City agency may participate in, sponsor, conduct, or administer a cooperative purchasing agreement for the procurement of goods, services, or construction with one or more public agencies or governmental entities.

      (3)   A cooperative purchase may be made when the ACCO determines, with CCPO approval, that such purchase is consistent with general New York City procurement policy, and is in the City's best interest and the basis thereof. If a cooperative purchase is conducted through other than a competitive sealed bid or proposal process, such determination shall provide the basis for the determination that the purchase is consistent with general New York City procurement policy.

   (c)   Responsibility determination. Prior to making an intergovernmental or cooperative purchase, an agency shall make an affirmative finding of responsibility and may require from the vendor the submission of a VENDEX Questionnaire.

   (d)   Public notice of award.

      (1)   Frequency. Notice of Award of a contract or issuance of a purchase order exceeding the small purchase limits shall be published at least once in the City Record within fifteen days after registration of the contract or placement of the purchase order.

      (2)   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)   how the vendor may express interest in such type of procurement in the future.

   (e)   Record. Records shall include at a minimum:

      (1)   the determination that for goods the price is lower than the prevailing market price; for services or construction that the price is fair and reasonable; and including an explanation of how such determination was made;

      (2)   the ACCO's approval, if applicable;

      (3)   the list of goods, services, or construction procured;

      (4)   the name and address of the vendor;

      (5)   the date and the amount of the purchase order or contract;

      (6)   a copy of the purchase order or contract;

      (7)   invoice and receiving documentation if the procuring agency also receives the goods and the invoice; and

      (8)   a copy of City Record notice, if applicable.

§ 3-10 Prequalification.

   (a)   Policy. Prequalification allows an agency to evaluate the qualifications of vendors for provision of particular categories of goods, services, construction, or construction-related services (including subcategories based on expertise, size, dollar size of project, or other factors as determined by the ACCO) before issuing a solicitation for a specific contract. Except for procurements for construction or procurements designated for a mentoring program, a procurement using a PQL shall be considered a "special case" under these Rules. This Section does not apply to the prequalification of vendors pursuant to 9 RCNY § 3-16.

   (b)   "Special Case" Determination. Prior to using a PQL for a procurement of goods, services or construction-related services, the ACCO shall make a determination that such procurement is a "special case" that requires the use of a PQL, that the list is composed of vendors that have been prequalified to provide the specified item(s) to be procured, and that the particular PQL is accurate, complete, and current. The ACCO may permit joint ventures of two or more prequalified vendors from one or more PQLs, or may combine PQLs for a solicitation. Use of a PQL for a procurement of construction or a procurement designated for a mentoring program, or as otherwise approved by the CCPO, upon the CCPO’s determination that use of the PQL is in the best interest of the City, does not require a special case determination.

   (c)   Circumstances of Use. Prequalification shall be used only where the need for advance screening of vendors' qualifications outweighs the benefits of broader competition, as determined by the ACCO. Such circumstances include, but are not limited to, categories of procurement where:

      (1)   it is essential that only highly competent and experienced vendors be invited to bid;

      (2)   high volume and/or repetitive procurements necessitate reduction of paperwork and delays in the award of contracts;

      (3)   the time between the occurrence of the need and the award of the contract must often be reduced to avert or respond to an emergency;

      (4)   with respect to procurement of construction, any basis that is in the best interests of the City; or

      (5)   the procurement is designated for a mentoring program as authorized by law.

   (d)   Criteria. In developing a PQL for a procurement of goods, services, construction-related services, or a procurement designated for a mentoring program, the criteria that may be used to prequalify vendors include, but are not limited to:

      (1)   current and past experience with similar projects;

      (2)   references, past performance, and reliability;

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

      (4)   financial capability, responsibility and reliability for such type and complexity of work, and availability of appropriate resources;

      (5)   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;

      (6)   record of maintaining harmonious labor relations;

      (7)   use of subcontractors;

      (8)   compliance with equal employment opportunity requirements and anti-discrimination laws, and demonstrated commitment to working with minority and women-owned businesses through joint ventures or subcontractor relationships;

      (9)   record of protecting the health and safety of workers on public works projects and job sites as demonstrated by the vendor's experience modification rate for each of the last three years;

      (10)   record of business integrity of vendor; and

      (11)   status as an M/WBE.

   In developing a PQL for a procurement of construction, except for a procurement designated for a mentoring program, the agency shall use, at minimum, the criteria listed in paragraphs (1) through (10) of this subdivision but may use other criteria as applicable.

   (e)   Public Notice.

      (1)   Frequency.

         (i)   For each category of procurement for which an agency maintains a PQL or intends to establish a new PQL, the ACCO shall publish in the City Record at least once annually and shall post on the City’s website in a location that is accessible by the public simultaneously with its publication a notice or notices specifically identifying each such category and inviting vendors to apply for inclusion on such PQL. Application for inclusion on such PQL shall be continuously available.

         (ii)   For each procurement not falling within a category for which a PQL has been established, but for which the agency intends to prequalify vendors prior to issuing a solicitation for such procurement, the ACCO shall publish at least once in the City Record and shall post on the City’s website in a location that is accessible by the public simultaneously with its publication a notice of its intention to establish such a PQL and invite vendors to apply for inclusion. There shall be a cutoff date for receipt of prequalification questionnaires for such PQL.

         (iii)   The CCPO shall cause to be published in the City Record and shall post on the City's website in a location that is accessible by the public simultaneously with its publication a prominently placed continuous notice stating that New York City procurement policy encourages agencies to develop a PQL for various categories of goods, services, construction and construction-related services, including M/WBE-only PQLs. Information and applications to be included on such PQLs may be obtained from the ACCO at each agency, may be submitted to ACCOs at any time, and shall be approved or denied within ninety days from the date of submission.

         (iv)   For any PQL for construction, in addition to the notices required by this subdivision, the ACCO shall publish, at least once annually, an advertisement in a New York City newspaper of general circulation inviting vendors to apply for inclusion on such PQL.

      (2)   Content. The notice shall include the agency name, category of procurement, and information on how the vendor may obtain an application.

   (f)   Questionnaire. To apply for inclusion on a PQL, a vendor must complete and submit an agency-developed prequalification questionnaire. Except for a PQL for a procurement designated for a mentoring program, at least once every two years, and at the time of submitting any bid or proposal in response to a solicitation from a PQL, vendors shall affirm that there has been no change in the information included in the prequalification questionnaire, or shall supply such changed information. With respect to any PQL used in connection with contract awards pursuant to 9 RCNY § 1-02(e), such affirmation by vendors that there has been no change in the information included in the prequalification questionnaire (or the supplying of such changed information) shall occur at the time of contract award.

   (g)   Making the Prequalification Decision. Prequalification questionnaires shall be reviewed by the ACCO and other agency personnel with knowledge, expertise, and experience sufficient to make a fair and reasonable determination, as appropriate. Except for a PQL for a procurement designated for a mentoring program or a PQL for which the CCPO has approved an alternate review schedule, the ACCO shall review:

      (1)   a properly completed prequalification questionnaire within ninety days from the date of submission to approve or deny prequalification; and thereafter,

      (2)   each affirmation submitted by vendors pursuant to subdivision (f) of this section to ensure that firms that no longer meet the criteria established shall be suspended from prequalification for a period no longer than three months or their certification shall be revoked, as set forth in subdivision (l) below.

   (h)   Solicitation from a PQL.

      (1)   Where a PQL has been established for a category of procurement or a particular procurement, the solicitation of bids or proposals for such procurement or category is not required to be publicly advertised, but may be limited to vendors on the PQL. PQLs for construction, except for a procurement designated for a mentoring programs, must have no fewer than five vendors and shall remain open for all additional qualified vendors. Where a PQL has been established for a category of construction procurement, a particular construction procurement, or a procurement designated for a mentoring program, the solicitation of bids for such procurement or within such category must be limited to vendors on the PQL.

      (2)   Any agency may solicit bids or proposals for a category of procurement or a particular procurement from a Citywide PQL.

   (i)   Selective solicitation from a PQL.

      (1)   Definition and policy. Selective solicitation is the solicitation of bids or proposals from fewer than all the vendors on a PQL. This method may be used where time is of the essence, where the benefits of additional competition are outweighed by the administrative cost of soliciting more than a minimum number of bids, or where a procurement is designated for a mentoring program. A determination to utilize selective solicitation for a particular procurement or for a particular category of shall be made by the ACCO and approved by the CCPO, unless otherwise provided by law or 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.

      (2)   Minimum requirement. When selective solicitation is used, it is essential that a minimum level of competition be sought.

      (3)   Methods of selective solicitation. 

         (i)   Random selective solicitation. Except as otherwise permitted by 9 RCNY §§ 3-03(h) and 3-04(b), bids or proposals shall be solicited from a minimum of eight vendors, selected at random from the PQL.

         (ii)   Rotational selective solicitation. Rotational selective solicitation is permitted for construction and construction-related services pursuant to 9 RCNY § 3-03(h).

         (iii)   Selective solicitation based on a determination that a vendor(s) is the best qualified. In the case of construction or construction-related services where selective solicitation based on a determination that a vendor(s) is the best qualified pursuant to 9 RCNY §§ 3-03(h) and 3-04(b) will be utilized, the evaluation committee established pursuant to 9 RCNY § 3-03(g) or a separate committee, composed of no fewer than three persons with knowledge, expertise, and experience to make a fair and reasonable evaluation of the vendors, shall select a minimum of five vendors evaluated as being the best qualified for the construction or construction-related service. The committee shall make a determination of the basis for selecting each vendor.

         (iv)   Selective solicitation and multiple awards. Where the solicitation will result in the award of multiple contracts, the minimum number of vendors solicited shall be proportional to the number of anticipated awards (e.g., where two contracts are to be awarded, the agency must select a minimum of sixteen vendors, except that in the case of construction-related services to be procured pursuant to 9 RCNY § 3-03(h)(2)(i)(B), the agency must only select a minimum of six vendors; in the case of construction-related services to be procured pursuant to 9 RCNY § 3-03(h)(2)(ii) where selection based on a "best qualified" determination is utilized, either alone or in combination with random and/or rotational selective solicitation, the agency must only select a minimum of ten vendors).

         (v)   Selective solicitation for procurements designated for a mentoring program. Where the solicitation will result in the award of a contract designated for a mentoring program, the agency may select any method of solicitation under this paragraph, either alone or in combination with another method, or may restrict the solicitation to vendors who have been qualified in accordance with the criteria determined prior to the receipt of bids or proposals.

   (j)   Prequalification not a finding of responsibility. The fact that a vendor has been prequalified does not in and of itself represent a finding of responsibility for a particular procurement. Between the time of bid opening or receipt of proposals and contract award, the ACCO may determine that a prequalified vendor is not responsible and, as such, shall be removed from the PQL.

   (k)   PQL of auditors. A PQL of auditors shall be maintained by the Comptroller in accordance with this section. An agency seeking to award an audit contract shall solicit only those vendors that have been prequalified by the Comptroller.

   (l)   Denial, suspension, or revocation of prequalification. 

      (1)   Any vendor whose qualifications fail to meet the criteria established by the ACCO shall be denied prequalification. The prequalified status of a vendor may be suspended for no more than three months or revoked on the basis of changed circumstance, conditions, or status of the vendor or its staff, or additional information acquired by the agency, or further analysis of the information upon which the original prequalification determination was made where the new information or further analysis indicates that the vendor does not meet the established criteria for prequalification.

      (2)   The ACCO shall notify the vendor in writing of a denial, suspension, or revocation of prequalification, stating the reasons upon which the determination is based and informing the vendor of the right to appeal. The notification shall also include the following statement:

         The vendor shall send a copy of its appeal to the New York City Comptroller, for informational purposes, at the Office of the New York City Comptroller, Bureau of Contract Administration, 1 Centre Street, Room 727, New York, NY 10007, [phone].

         A copy of the ACCO’s determination shall also be sent to both the CCPO for consideration of inclusion in PASSPort and to the Comptroller’s Office.

   (m)   Appeal of denial, suspension, or revocation of prequalification. 

      (1)   Time limit. A vendor shall have fifteen days from receipt of the determination to file a written appeal of that determination with the Agency Head. Receipt of notice by the vendor shall be deemed to be no later than five days from the date of mailing or upon delivery, if delivered. Filing of the appeal shall be accomplished by actual delivery of the appeal document to the office of the Agency Head, except that, if the determination indicates that delivery of an appeal by electronic means will be accepted, filing of the appeal may be accomplished by electronic delivery to the email address(es) specified in the determination.

      (2)   Form and content. The appeal shall be in writing and shall briefly state all the facts or other basis upon which the vendor contests the agency determination. Supporting documentation, if any, shall be included.

      (3)   Determination. The Agency Head shall consider the appeal and shall make a prompt written decision with respect to its merits and, for an appeal of a suspension, such prompt written decision shall be made prior to the expiration of the suspension period, except when such appeal relates to a DLS determination of non-compliance with equal employment opportunity requirements. Under such exception, the head of DLS shall consider the appeal and shall promptly inform the Agency Head in writing of his/her determination on the merits. The Agency Head or head of DLS (as applicable) may in his/her sole discretion convene an informal conference with the vendor and the ACCO to resolve the issue by mutual consent prior to making a determination. The Agency Head shall determine whether the ACCO's decision is arbitrary and capricious and whether it is based on substantial evidence.

      (4)   Notification. A copy of the decision of the Agency Head or the head of DLS shall be sent to the vendor, stating the reasons upon which the decision is based and informing the vendor of the right to appeal. A copy of such determination shall be sent to both the CCPO for consideration of modification to PASSPort and to the Comptroller’s Office.

      (5)   Appeal of denial or revocation of prequalification to OATH. The decision of the Agency Head or the head of DLS shall be final unless the denial or revocation is appealed to OATH. If a vendor wishes to contest the Agency Head / head of DLS decision, it may appeal to OATH, which shall hear and take final action in the matter in accordance with its rules. The petition to OATH shall be filed by the vendor within fifteen days of the date of the decision. Supporting documentation, if any, shall be included. The vendor shall, at the same time, send a copy of its appeal to the Agency Head, CCPO, and Comptroller's Office. The agency shall forward a copy of all appeal-related documents within fourteen days of its receipt of the copy of the vendor's appeal to OATH. OATH shall review the decision and determine whether that decision is arbitrary or capricious and whether it is based on substantial evidence. Copies of OATH's determination shall be sent to the vendor, Agency Head, Comptroller's Office, and, where the decision results in the revocation of prequalification, to the CCPO consideration of modifications to PASSPort.

(Amended City Record 1/29/2016, eff. 3/1/2016; amended City Record 12/15/2023, eff. 1/14/2024; amended City Record 6/12/2024, eff. 7/12/2024)

§ 3-11 Demonstration Projects for Innovative Products, Approaches, or Technologies.

   (a)   Policy and Purpose of Demonstration Projects. It is in the City's best interest to consider proposals for demonstration projects. A demonstration project is a short-term, carefully planned, pilot exercise designed to test and evaluate the feasibility and application of an innovative product, approach or technology not currently used by the City. Demonstration projects may be proposed for goods, services or construction. They allow the City to observe and analyze effectiveness and efficiency without a large commitment of resources. Demonstration projects may be initiated by an unsolicited proposal, or by an agency on its own initiative. Agencies may opt to initiate a demonstration project in order to invite proposals for innovative approaches to the provision of existing or new services.

   (b)   Preliminary discussions. An agency may engage in preliminary discussions with a vendor to explore the feasibility of a proposed demonstration project. Discussions are not negotiations for the award of a contract. A summary of these discussions shall be disclosed in the presolicitation review report.

   (c)   Determination. Prior to entering into negotiations for the award of a contract for a demonstration project, the ACCO shall make a determination stating that:

      (1)   testing or experimentation is advisable to evaluate the service or reliability of the product, approach, or technology;

      (2)   the product, approach, or technology cannot be reasonably acquired for evaluation through a competitive solicitation or there are other potential advantages to the City for using this method of source selection;

      (3)   the product, approach, or technology is not currently in use in City government;

      (4)   the results of the demonstration project shall be documented and made publicly available upon its conclusion;

      (5)   there is an intent to acquire the product, approach, or technology if, after testing and evaluation, a decision is reached to continue its use within the City; and

      (6)   any outside funding relied upon to justify the award of the contract pursuant to this section has been documented.

   (d)   Contract Term. The initial term of a contract for a demonstration project should be for a term that is reasonable both to conduct the demonstration and to determine its effectiveness, and shall not exceed three years. The ACCO shall make a determination setting forth with specificity how the proposed term of the contract was determined. In making such determination, the ACCO may consider whether it would be in the City's best interest to ensure that no break in the provision of services occurs at the end of the demonstration project, if successful. If the ACCO makes such a determination, the ACCO should establish an initial term that, although no longer than three years, is long enough to allow for the subsequent solicitation of those services at the conclusion of the project's evaluation using one of the methods of source selection authorized by these Rules. In the event that a longer period is needed to allow for continuity of services and/or to evaluate the demonstration, the agency may extend the contract for an additional period of up to three years with CCPO approval, provided such extension is only so long as necessary to allow for continuity of services or to evaluate the demonstration.

   (e)   Notice. Prior to entering into negotiations for the award of a contract for a demonstration project exceeding the small purchase limits, the ACCO shall give notice of that determination by placing a notice in the City Record.

      (1)   Frequency. Notice of intent to enter negotiations for a demonstration project exceeding the small purchase limits 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.

      (2)   Content. Such notice shall include:

         (i)   agency name;

         (ii)   PIN;

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

         (iv)   estimated quantity, if any;

         (v)   name of the proposed vendor, if the agency has identified a vendor;

         (vi)   summary of the determination;

         (vii)   how vendors may express their interest in providing such good, services or construction; and

         (viii)   due date.

   (f)   Evaluation. Upon the evaluation of expressions of interest received, if any, the ACCO shall make a determination of how to proceed, which includes the basis for such determination. Where it appears that the product, approach, or technology is already competitively available in the marketplace, the ACCO may determine that a competitive solicitation may be issued; or, if it appears that the product, approach, or technology can be reasonably evaluated using short-term contracts with more than one vendor, the ACCO may determine that negotiations to establish such demonstration projects may be conducted with more than one vendor, or negotiations may proceed with the single vendor originally identified. Whether or not an initial vendor has been identified, an agency may utilize the demonstration project method to solicit proposals for innovative approaches to the provision of existing or new services, in which case the ACCO may determine that negotiations to establish such demonstration projects may be conducted with more than one vendor, or negotiations may proceed with the single vendor originally identified, if any. To the extent required by Section 322 of the Charter, an agency determination to utilize an alternative procurement procedure for a particular procurement or for a particular type of procurement shall require the approval of the Mayor prior to seeking bids or proposals. The CCPO shall have final authority with respect to evaluation, acceptance, and rejection of all demonstration projects.

   (g)   Negotiations. After completing negotiations, the ACCO shall award the contract or contracts if it is determined that the award or awards will be in the City’s best interest and that the price is fair and reasonable.

   (h)   Notice of award.

      (1)   Frequency. Award of contracts exceeding the small purchase limits shall be published once in the City Record, within fifteen calendar days after registration of the contract.

      (2)   Content. Such notice shall include:

         (i)   agency name;

         (ii)   PIN;

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

         (iv)   name and address of the vendor;

         (v)   dollar value of the contract;

         (vi)   the date of the published notice of intent to enter into negotiations for the award of a contract for a demonstration project; and

         (vii)   summary determination of the basis for the demonstration project and availability of the full evaluation.

   (i)   Conclusion of demonstration project. At the conclusion of the contract term, based upon the documented results of the project, the agency shall make a determination, including the reasons therefor, whether to acquire the product, approach, or technology using one of the methods of source selection authorized by these Rules or to discontinue the use of the product, approach, or technology.

   (j)   Challenge-based procurement. An agency may issue a solicitation for a demonstration project that defines a challenge or problem and invites proposals for an innovative product, approach or technology to respond to, resolve or otherwise meet that challenge.

(Amended City Record 12/15/2023, eff. 1/14/2024; amended City Record 9/27/2024, eff. 10/27/2024)