2879 - Procurement contracts.

§  2879.  Procurement  contracts. 1. Every public authority and public  benefit corporation, a majority of  the  members  of  which  consist  of  persons  either  appointed  by  the  governor or who serve as members by  virtue of holding a civil office of the state, or a combination thereof,  (such entities  to  be  hereinafter  in  this  section  referred  to  as  "corporation")  shall adopt by resolution comprehensive guidelines which  detail the corporation's operative policy and instructions regarding the  use,  awarding,  monitoring  and  reporting  of  procurement  contracts.  Guidelines  approved  by  the corporation shall be annually reviewed and  approved by the corporation.    2. For purposes of this section, procurement contracts shall mean  any  written  agreement for the acquisition of goods or services of any kind,  in the actual or estimated amount of five thousand dollars or more.    3. The guidelines approved by the corporation shall include,  but  not  be limited to the following:    (a) A description of the types of goods purchased, and for procurement  contracts  for  services, a description of those areas of responsibility  and oversight requiring the use of personal services and the reasons for  the use of personal services in such areas.    (b) Requirements regarding the selection of contractors,  which  shall  include provisions:    (i)  for the selection of such contractors on a competitive basis, and  provisions relating to the circumstances under which the  board  may  by  resolution  waive  competition,  including,  notwithstanding  any  other  provision of  law  requiring  competition,  the  purchase  of  goods  or  services  from small business concerns or those certified as minority or  women-owned business  enterprises,  or  goods  or  technology  that  are  recycled  or  remanufactured,  in  an  amount  not to exceed two hundred  thousand dollars without a formal competitive process;    (ii) describing when the award of procurement contracts shall  require  approval  of  the  board  by  resolution,  provided  that  any  contract  involving services to be rendered over a period in excess  of  one  year  shall  require  the  approval  of  the board by resolution and an annual  review of the contract by the board;    (iii) setting forth responsibilities of contractors;    (iv) as used in this subparagraph, the term "professional firm"  shall  be  defined  as  any  individual  or  sole  proprietorship, partnership,  corporation, association, or other legal  entity  permitted  by  law  to  practice the professions of architecture, engineering or surveying.    The corporation shall not refuse to negotiate with a professional firm  solely  because  the  ratio  of the "allowable indirect costs" to direct  labor costs of the professional firm or the hourly  labor  rate  in  any  labor  category  of the professional firm exceeds a limitation generally  set by the corporation in the determination of the reasonableness of the  estimated cost of services to be rendered by the professional firm,  but  rather  the  corporation should also consider the reasonableness of cost  based on the total estimated cost of the  service  of  the  professional  firm  which  should  include,  among  other things, all the direct labor  costs of the professional firm for such  services  plus  all  "allowable  indirect  costs,"  other  direct  costs,  and  negotiated  profit of the  professional firm. "Allowable indirect costs" of a professional firm are  defined as those costs generally associated with overhead  which  cannot  be  specifically  identified  with  a single project or contract and are  considered reasonable and allowable under  specific  state  contract  or  allowability limits.    (c)  An  identification of those areas or types of contracts for which  minority or women-owned business enterprises  may  best  bid  so  as  to  promote  and  assist  participation by such enterprises and facilitate afair share of the awarding of contracts to  such  enterprises.  For  the  purposes  of  this  section,  a  minority  business enterprise means any  business enterprise, including a  sole  proprietorship,  partnership  or  corporation that is:    (i)  at  least  fifty-one  percent owned by one or more minority group  members or in the case of a publicly-owned business at  least  fifty-one  percent  of the common stock or other voting interests of which is owned  by one or more minority group members;    (ii)  an  enterprise  in  which  the  minority  ownership   is   real,  substantial and continuing;    (iii)  an enterprise in which the minority ownership has and exercises  the authority to control independently the day-to-day business decisions  of the enterprise; and    (iv) an enterprise authorized  to  do  business  in  New  York  state,  independently owned and operated, and not dominant in its field.    (d)  For the purposes of this section, a minority group member means a  United States citizen  or  permanent  resident  alien  who  is  and  can  demonstrate membership in one of the following groups:    (i)  Black  persons  having origins in any of the Black African racial  groups not of Hispanic origin;    (ii) Hispanic persons of  Mexican,  Puerto  Rican,  Dominican,  Cuban,  Central   or  South  American  of  either  Indian  or  Hispanic  origin,  regardless of race;    (iii) Asian and Pacific Islander persons having origins in any of  the  Far  East,  Southeast  Asia,  the  Indian  sub-continent  or the Pacific  Islands; or    (iv) Native American persons having origins in  any  of  the  original  peoples of North America.    (e)   For  the  purposes  of  this  section,  a  women-owned  business  enterprise means a business enterprise, including a sole proprietorship,  partnership or corporation which is:    (i) at least fifty-one percent owned by  one  or  more  United  States  citizens  or permanent resident aliens who are women or in the case of a  publicly-owned business at least fifty-one percent of the  common  stock  or other voting interests of which is owned by United States citizens or  permanent resident aliens who are women;    (ii)  an  enterprise in which the ownership interest of women is real,  substantial and continuing;    (iii) an enterprise in which the women ownership has and exercises the  authority to control independently the day-to-day business decisions  of  the enterprise; and    (iv)  an  enterprise  authorized  to  do  business  in New York state,  independently owned and operated, and not dominant in its field.    (f) Requirements for the designation of one or more  senior  staff  of  the  corporation  to  oversee  the corporation's programs established to  promote  and  assist:  (i)  participation  by  certified   minority   or  women-owned   business  enterprises  in  the  corporation's  procurement  opportunities and facilitation of the award of procurement contracts  to  such  enterprises;  (ii)  the  utilization  of  certified  minority  and  women-owned business enterprises  as  subcontractors  and  suppliers  by  entities  having  procurement  contracts with the corporation; and (iii)  the  utilization  of  partnerships,  joint  ventures  or  other  similar  arrangements   between   certified  minority  and  women-owned  business  enterprises and other entities having  procurement  contracts  with  the  corporation.  Such  staff  shall be familiar with the procurement of the  types  of  construction,  financial,  legal  or  professional   services  utilized  by  the  corporation,  report  directly  to  the corporation's  executive director, president or  chief  executive  officer  and  eitherdirectly  or  through  their  designees  participate  in the procurement  process.    (g) Requirements for providing notice, in addition to any other notice  of  procurement opportunities required by law, to professional and other  organizations that serve minority and women-owned  business  enterprises  providing the types of services procured by the corporation.    (h)  Procedures  for maintaining lists of qualified certified minority  and women-owned business enterprises, including professional firms  that  have  expressed  an  interest in doing business with the corporation and  ensuring that such lists are updated regularly.  The  corporation  shall  also  consult  the  lists of certified minority and women-owned business  enterprises  maintained  by  the  department  of  economic   development  pursuant to article fifteen-A of the executive law.    (i)  The  establishment  of  appropriate  goals  for  participation by  minority or women-owned business enterprises  in  procurement  contracts  awarded  by  the  corporation  and  for  the utilization of minority and  women-owned enterprises as  subcontractors  and  suppliers  by  entities  having  procurement  contracts with the corporation. Statewide numerical  participation target goals shall be established by each authority  based  on the findings of the two thousand ten disparity study.    (j)  Requirements to conduct procurements in a manner that will enable  the corporation to achieve the maximum feasible  portion  of  the  goals  established  pursuant  to  paragraph  (i)  of  this subdivision and that  eliminates  barriers  to  participation  by  minority  and   women-owned  business enterprises in the corporation's procurements. Such procurement  requirements shall include the following:    (A)  Measures and procedures to ensure that certified businesses shall  be given the opportunity  for  maximum  feasible  participation  in  the  performance  of  state  contracts  and  to  assist  in the corporation's  identification of those state contracts for which  certified  businesses  may  best  bid  to  actively  and affirmatively promote and assist their  participation in the performance of state contracts so as to  facilitate  the  corporation's  achievement  of  the maximum feasible portion of the  goals for state contracts to such businesses;    (B) Provisions designating the division of  minority  and  women-owned  business  development  to certify and decertify minority and women-owned  business enterprises for all corporations through a single process  that  meets applicable state and federal requirements;    (C)   A   requirement   that   each   contract  solicitation  document  accompanying each solicitation set forth the expected degree of minority  and women-owned business enterprise participation based, in part, on:    I. the potential subcontract  opportunities  available  in  the  prime  procurement contract; and    II.  the  availability  of certified minority and women-owned business  enterprises  to  respond  competitively  to  the  potential  subcontract  opportunities;    (D)  A  requirement  that  each  corporation provide a current list of  certified minority business enterprises to each prospective contractor;    (E) Provisions relating to joint ventures, under which  a  bidder  may  count  toward  meeting  its  minority  business enterprise participation  goal, the minority and women-owned business enterprise  portion  of  the  joint venture;    (F)  Provisions  under  which the corporation may waive obligations of  the contractor relating to minority and women-owned business  enterprise  participation  after  a showing of good faith efforts to comply with the  requirements of this act pursuant to the waiver provisions contained  in  subdivision six of section three hundred thirteen of the executive law;(G)  A  requirement  that  the  corporation  verify  that minority and  women-owned business enterprises listed in a successful bid are actually  participating to the extent listed in the project for which the bid  was  submitted;    (H) In the implementation of this section, the contracting corporation  shall:    I.  consider,  where  practicable,  the  severability  of construction  projects and other bundled contracts;    II. implement a program that will enable the corporation  to  evaluate  each  contract  to determine the appropriateness of the goal pursuant to  paragraph (i) of this subdivision;    III. consider compliance with the  requirements  of  any  federal  law  concerning   opportunities   for   minority   and  women-owned  business  enterprises which effectuates the purpose of this section; and    IV. consult the  most  recent  disparity  study  pursuant  to  article  fifteen-A of the executive law.    (k)  A  listing  of  the  types  of  provisions  to  be  contained  in  procurement contracts, including provisions concerning  the  nature  and  monitoring  of  the  work to be performed, the use of corporate supplies  and facilities, the use of corporate personnel and any other provisions.    (l) Provisions regarding procurement contracts  which  involve  former  officers or employees of the corporation.    (m)  Procedures  regarding procurement contracts which are exempt from  the  publication  requirements  of  article  four-C  of   the   economic  development law.    (n)  Policies  to promote the participation by New York state business  enterprises and New  York  state  residents  in  procurement  contracts,  including, but not limited to:    (i)  providing  for  the  corporation  to  collect  and to consult the  specifications of New York  state  business  enterprises  in  developing  specifications  for  any  procurement contract for the purchase of goods  where possible, practicable, feasible and consistent with open  bidding,  except  for  procurement  contracts  for  which the corporation would be  expending funds received from  another  state.  The  corporation  shall,  where  feasible, make use of the stock item specification forms prepared  by the commissioner of general services, and  where  necessary,  consult  with  the  commissioner of the office of general services, in developing  such specifications and make such determinations; and    (ii) with the cooperation of the department  of  economic  development  and  through  cooperative  efforts  with  contractors, providing for the  notification of New York state business enterprises of opportunities  to  participate as subcontractors and suppliers on procurement contracts let  by the corporation in an amount estimated to be equal to or greater than  one  million  dollars  and  promulgating  procedures  which  will assure  compliance by contractors  with  such  notification.  Once  awarded  the  contract  such contractors shall document their efforts to encourage the  participation of New York state business enterprises  as  suppliers  and  subcontractors  on  procurement  contracts  equal to or greater than one  million dollars. Documented efforts by  a  successful  contractor  shall  consist  of  and  be  limited  to  showing  that such contractor has (a)  solicited bids, in a timely and adequate manner,  from  New  York  state  business   enterprises  including  certified  minority  and  women-owned  business, or (b) contacted the New York  state  department  of  economic  development  to  obtain listings of New York state business enterprises,  or (c) placed notices for subcontractors and  suppliers  in  newspapers,  journals  and other trade publications distributed in New York state, or  (d) participated in  bidder  outreach  conferences.  If  the  contractor  determines that New York state business enterprises are not available toparticipate   on  the  contract  as  subcontractors  or  suppliers,  the  contractor shall provide a statement indicating the method by which such  determination was made.  If  the  contractor  does  not  intend  to  use  subcontractors on the contract, the contractor shall provide a statement  verifying such intent; and    (iii) except for procurement contracts for which the corporation would  be  expending  funds  received from another state, the corporation shall  include in all bid documents provided to potential bidders  a  statement  that   information   concerning  the  availability  of  New  York  state  subcontractors and suppliers  is  available  from  the  New  York  state  department of economic development, which shall include the directory of  certified  minority  and women-owned businesses, and it is the policy of  New York state to encourage the use of New York state subcontractors and  suppliers, and to promote the participation of minority and  women-owned  businesses where possible, in the procurement of goods and services; and    (iv)  with  the  cooperation of the community services division of the  department of labor and through cooperative  efforts  with  contractors,  providing for the notification of New York state residents of employment  opportunities arising in New York state out of procurement contracts let  by the corporation in an amount estimated to be equal to or greater than  one  million  dollars;  and  promulgating  procedures  which will assure  compliance  by  contractors  with   such   notification   by   requiring  contractors  to  submit  post-award compliance reports documenting their  efforts to provide such notification through listing any such  positions  with the community services division, or providing for such notification  in  such  manner  as  is  consistent with existing collective bargaining  contracts or agreements; and    (v) including in each set of documents soliciting bids on  procurement  contracts  to  let  by  the  corporation a statement notifying potential  bidders located in foreign countries that the corporation may assign  or  otherwise  transfer  offset credits created by such procurement contract  to third parties located in New York state; providing for the assignment  or other form of transfer of offset credits created by such  procurement  contracts,  directly or indirectly, to third parties located in New York  state, in accordance with the written directions of the commissioner  of  economic  development;  and  providing  for the corporation to otherwise  cooperate with the department of economic development in efforts to  get  foreign countries to recognize offset credits assigned or transferred to  third  parties  located  in  New  York state created by such procurement  contracts; and    (vi) promulgating procedures which will  assure  compliance  with  the  federal  equal  employment  opportunity  act  of  1972 (P.L. 92-261), as  amended, by contractors of the corporation.    (o) For the purposes of this  section,  a  "New  York  state  business  enterprise"    means   a   business   enterprise,   including   a   sole  proprietorship, partnership, or corporation, which offers  for  sale  or  lease  or  other  form  of  exchange,  goods  which  are  sought  by the  corporation  and  which  are  substantially  manufactured,  produced  or  assembled  in  New  York  state,  or  services  which  are sought by the  corporation and which are substantially performed within New York state.    (p) For the purposes of this section, a "New York  resident"  means  a  natural  person  who  maintains  a  fixed,  permanent and principal home  located within New  York  state  and  to  which  such  person,  whenever  temporarily located, always intends to return.    4.  Each  corporation  shall have the power from time to time to amend  such procurement contract guidelines in accordance with  the  provisions  of this section.5.  (a)  Each  corporation  shall  notify the commissioner of economic  development of the award of a procurement contract for the  purchase  of  goods  or services from a foreign business enterprise in an amount equal  to or greater than one million dollars simultaneously with notifying the  successful bidder therefor. No corporation shall thereafter enter into a  procurement  contract  for said goods or services until at least fifteen  days has  elapsed,  except  for  procurement  contracts  awarded  on  an  emergency  or  critical  basis,  or  where  the commissioner of economic  development waives the provisions of this sentence. The notification  to  the commissioner of economic development shall include the name, address  and telephone and facsimile number of the foreign business enterprise, a  brief  description  of  the goods or services to be obtained pursuant to  the  proposed  procurement  contract,  the  amount   of   the   proposed  procurement contract, the term of the proposed procurement contract, and  the  name of the individual at the foreign business enterprise or acting  on behalf of the same who is principally responsible  for  the  proposed  procurement   contract.   Such   notification   shall  be  used  by  the  commissioner of economic development solely to provide  notification  to  New  York  state business enterprises of opportunities to participate as  subcontractors and suppliers on such procurement contracts,  to  promote  and encourage the location and development of new business in the state,  to  assist  New  York  state  business  enterprises  in obtaining offset  credits from foreign countries, and to otherwise investigate, study  and  undertake  means of promoting and encouraging the prosperous development  and protection of the legitimate interest and welfare of New York  state  business enterprises, industry and commerce.    (b)  As  used  in  this  section,  the  following terms shall have the  following meanings, unless a different meaning appears from the context:    (i) "Foreign business enterprise" shall mean  a  business  enterprise,  including  a  sole  proprietorship,  partnership  or  corporation, which  offers for sale, lease or other form of exchange, goods which are sought  by the corporation and which are substantially produced outside New York  state, or services, other than  construction  services,  sought  by  the  corporation  which  are  substantially performed outside New York state.  For purposes of construction services, foreign business enterprise shall  mean a business enterprise, including a sole proprietorship, partnership  or corporation, which has its principal place of  business  outside  New  York state.    (ii)  "New  York  state  business  enterprise"  shall  mean a business  enterprise, including a sole proprietorship, partnership or corporation,  which offers for sale or lease or other form of  exchange,  goods  which  are  sought by the corporation and which are substantially manufactured,  produced or assembled  in  New  York  state,  or  services,  other  than  construction services, which are sought by the corporation and which are  substantially   performed   within  New  York  state.  For  purposes  of  construction services, a New York state business enterprise shall mean a  business enterprise, including a sole  proprietorship,  partnership,  or  corporation,  which  has  its  principal  place  of business in New York  state.    (iii) "Discriminatory jurisdiction"  shall  mean  any  other  country,  nation, province, state or political subdivision thereof which employs a  preference  or  price  distorting  mechanism  to  the  detriment  of  or  otherwise discriminates against a New York state business enterprise  in  the  procurement of goods and services by the same or a non-governmental  entity influenced by the same. Such discrimination may include,  but  is  not  limited  to,  any  law, regulation, procedure or practice, terms or  license, authorization, or funding or bidding rights which  requires  or  encourages  any  agency  or  instrumentality  of  the state or politicalsubdivision thereof or non-governmental entity influenced by the same to  discriminate against a New York state business enterprise.    (c) In including any additional business enterprises on invitations to  bid  for  the  procurement  of  goods  or  services, the chief executive  officer of the  corporation  shall  not  include  any  foreign  business  enterprise  which  has  its  principal  place  of  business located in a  discriminatory jurisdiction  contained  on  the  list  prepared  by  the  commissioner  of  economic  development  pursuant  to subdivision six of  section one  hundred  sixty-five  of  the  state  finance  law,  except,  however,   business  enterprises  which  are  New  York  state  business  enterprises as defined by this section. The corporation  may  waive  the  application  of  the  provisions  of  this  section  whenever  the chief  executive officer of the corporation determines in writing that it is in  the best interests of the state to do so. The chief executive officer of  the corporation shall deliver each such waiver to  the  commissioner  of  economic development.    (d)  A  corporation  shall  not  enter  into a contract with a foreign  business enterprise which has its principal place of business located in  a discriminatory jurisdiction contained on  the  list  prepared  by  the  commissioner  of  economic  development  pursuant  to subdivision six of  section one hundred sixty-five of the state finance law. The  provisions  of  this  section  may  be  waived by the chief executive officer of the  corporation if the chief executive officer of the corporation determines  in writing that it is in the best interests of the state to do  so.  The  chief  executive  officer  of  the  corporation  shall deliver each such  waiver to the commissioner of economic development.    6. Each corporation, as part of the guidelines established pursuant to  subdivision three of this section, shall  establish  policies  regarding  the  preparation  of publicly available reports on procurement contracts  entered into by such corporation. Such policies shall  provide,  at  the  minimum,  for  the  preparation  of  a  report  no  less frequently than  annually, summarizing procurement activity by such corporation  for  the  period  of  the report, including a listing of all procurement contracts  entered into, all contracts entered into with New  York  state  business  enterprises  and  the  subject  matter  and value thereof, all contracts  entered into with certified minority or women-owned business enterprises  and the subject matter and value thereof, all  referrals  made  and  all  penalties  imposed  pursuant  to  section  three  hundred sixteen of the  executive  law,  all  contracts  entered  into  with  foreign   business  enterprises,  and  the  subject  matter and value thereof, the selection  process used to select such contractors, all procurement contracts which  were exempt from the publication requirements of article four-C  of  the  economic  development  law,  the  basis  for  any such exemption and the  status of existing procurement contracts.    7. Each corporation shall annually prepare and  approve  a  report  on  procurement  contracts  which shall include the guidelines, as specified  in subdivision three of this section, an explanation of  the  guidelines  and any amendments thereto since the last annual report.  Such report on  procurement  contracts may be a part of any other annual report that the  corporation is required to make.    8.  (a)  Each  corporation  shall  annually  submit  its   report   on  procurement  contracts  to the division of the budget and copies thereof  to the department of audit  and  control,  the  department  of  economic  development,  the  senate  finance  committee  and the assembly ways and  means committee.    (b) Each corporation shall make available to the public copies of  its  report on procurement contracts upon reasonable request therefor.9.  Nothing contained in this section shall be deemed to alter, affect  the validity of, modify the terms of or impair any contract or agreement  made or entered into in violation of, or without  compliance  with,  the  provisions of this section.