N.Y. Public Authorities Law § 1265-a: Contracts

§ 1265-a. Contracts. 1. The provisions of this section shall only

apply to procurements by the authority commenced during the period from

April first, nineteen hundred eighty-seven until December thirty-first,

nineteen hundred ninety-one, and during the period from December

sixteenth, nineteen hundred ninety-three until June thirtieth, two

thousand twenty-eight; provided, however, that the provisions of this

section shall not apply to (i) the award of any contract of the

authority if the bid documents for such contract so provide and such bid

documents are issued within sixty days of the effective date of this

section or within sixty days of December sixteenth, nineteen hundred

ninety-three, or (ii) for a period of one hundred eighty days after the

effective date of this section or for a period of one hundred eighty

days after December sixteenth, nineteen hundred ninety-three, the award

of any contract for which an invitation to bid, solicitation, request

for proposal, or any similar document has been issued by the authority

prior to the effective date of this section or during the period from

January first, nineteen hundred ninety-two until December sixteenth,

nineteen hundred ninety-three.

2. * (a) Except as otherwise provided in this section, all purchase

contracts for supplies, materials or equipment involving an estimated

expenditure in excess of one million dollars and all contracts for

public work involving an estimated expenditure in excess of one million

dollars shall be awarded by the authority to the lowest responsible

bidder after obtaining sealed bids in the manner hereinafter set forth.

For purposes hereof, contracts for public work shall exclude contracts

for personal, engineering and architectural, or professional services.

The authority may reject all bids and obtain new bids in the manner

provided by this section when it is deemed in the public interest to do

so or, in cases where two or more responsible bidders submit identical

bids which are the lowest bids, award the contract to any of such

bidders or obtain new bids from such bidders. Nothing in this paragraph

shall obligate the authority to seek new bids after the rejection of

bids or after cancellation of an invitation to bid. Nothing in this

section shall prohibit the evaluation of bids on the basis of costs or

savings including life cycle costs of the item to be purchased,

discounts, and inspection services so long as the invitation to bid

reasonably sets forth the criteria to be used in evaluating such costs

or savings. Life cycle costs may include but shall not be limited to

costs or savings associated with installation, energy use, maintenance,

operation and salvage or disposal.

* NB Effective until June 30, 2028

* (a) Except as otherwise provided in this section, all purchase

contracts for supplies, materials or equipment involving an estimated

expenditure in excess of fifteen thousand dollars and all contracts for

public work involving an estimated expenditure in excess of twenty-five

thousand dollars shall be awarded by the authority to the lowest

responsible bidder after obtaining sealed bids in the manner hereinafter

set forth. For purposes hereof, contracts for public work shall exclude

contracts for personal, engineering and architectural, or professional

services. The authority may reject all bids and obtain new bids in the

manner provided by this section when it is deemed in the public interest

to do so or, in cases where two or more responsible bidders submit

identical bids which are the lowest bids, award the contract to any of

such bidders or obtain new bids from such bidders. Nothing herein shall

obligate the authority to seek new bids after the rejection of bids or

after cancellation of an invitation to bid. Nothing in this section

shall prohibit the evaluation of bids on the basis of costs or savings

including life cycle costs of the item to be purchased, discounts, and

inspection services so long as the invitation to bid reasonably sets

forth the criteria to be used in evaluating such costs or savings. Life

cycle costs may include but shall not be limited to costs or savings

associated with installation, energy use, maintenance, operation and

salvage or disposal.

* NB Effective June 30, 2028

* (b) Section twenty-eight hundred seventy-nine of this chapter shall

apply to the authority's acquisition of goods or services of any kind,

in the actual or estimated amount of fifteen thousand dollars or more,

provided (i) that a contract for services in the actual or estimated

amount of one million dollars or less shall not require approval by the

board of the authority regardless of the length of the period over which

the services are rendered, and provided further that a contract for

services in the actual or estimated amount in excess of one million

dollars shall require approval by the board of the authority regardless

of the length of the period over which the services are rendered unless

such a contract is awarded to the lowest responsible bidder after

obtaining sealed bids, and (ii) the board of the authority may by

resolution adopt guidelines that authorize the award of contracts to

small business concerns, to service disabled veteran owned businesses

certified pursuant to article seventeen-B of the executive law, or

minority or women-owned business enterprises certified pursuant to

article fifteen-A of the executive law, or purchases of goods or

technology that are recycled or remanufactured, in an amount not to

exceed one million five hundred thousand dollars without a formal

competitive process and without further board approval. The board of the

authority shall adopt guidelines which shall be made publicly available

for the awarding of such contract without a formal competitive process.

* NB Effective until June 30, 2028

* (b) Section twenty-eight hundred seventy-nine of this chapter shall

apply to the authority's acquisition of goods or services of any kind,

in the actual or estimated amount of fifteen thousand dollars or more,

provided that a contract for personal services in the actual or

estimated amount of less than twenty thousand dollars shall not require

approval by the board of the authority regardless of the length of the

period over which the services are rendered, and provided further that a

contract for personal services in the actual or estimated amount of

twenty thousand dollars or more shall require approval by the board of

the authority regardless of the length of the period over which the

services are rendered.

* NB Effective June 30, 2028

(c)(1) Notwithstanding the provisions of paragraph (a) of this

subdivision, the authority shall establish guidelines governing the

qualifications of bidders entering into contracts for its project to

bring the Long Island Rail Road into Grand Central Terminal ("East Side

Access Project"). The bidding may be restricted to those who have

qualified prior to the receipt of bids according to standards fixed by

the authority; provided, however, that the award of contracts shall, to

the extent not inconsistent with this paragraph, be in accordance with

paragraph (a) of this subdivision.

(2) In determining whether a prospective bidder qualifies for the

inclusion on a list of prequalified bidders for the East Side Access

Project, the authority shall consider: (i) the experience and past

performance of the prospective bidder; (ii) the prospective bidder's

ability to undertake work, including but not limited to whether it

participates in state approved apprenticeship programs and whether it

utilizes employees who are represented by labor organizations; (iii) the

financial capability and responsibility of the prospective bidder; and

(iv) the records of the prospective bidder in complying with existing

labor standards. The authority may also consider such other factors as

it deems appropriate.

3. (a) Advertisement for bids, when required by this section, shall be

published at least once in a newspaper of general circulation in the

area served by the authority and in the procurement opportunities

newsletter published pursuant to article four-C of the economic

development law provided that, notwithstanding the provisions of article

four-C of the economic development law, an advertisement shall only be

required for a purchase contract for supplies, materials or equipment

when required by this section. Publication in a newspaper of general

circulation in the area served or in the procurement opportunities

newsletter shall not be required if bids for contracts for supplies,

materials or equipment are of a type regularly purchased by the

authority and are to be solicited from a list of potential suppliers, if

such list is or has been developed consistent with the provisions of

subdivision six of this section. Any such advertisement shall contain a

statement of: (i) the time and place where bids received pursuant to any

notice requesting sealed bids will be publicly opened and read; (ii) the

name of the contracting agency; (iii) the contract identification

number; (iv) a brief description of the public work, supplies,

materials, or equipment sought, the location where work is to be

performed, goods are to be delivered or services provided and the

contract term; (v) the address where bids or proposals are to be

submitted; (vi) the date when bids or proposals are due; (vii) a

description of any eligibility or qualification requirement or

preference; (viii) a statement as to whether the contract requirements

may be fulfilled by a subcontracting, joint venture, or co-production

arrangement; (ix) any other information deemed useful to potential

contractors; and (x) the name, address, and telephone number of the

person to be contacted for additional information. At least fifteen

business days shall elapse between the first publication of such

advertisement or the solicitation of bids, as the case may be, and the

date of opening and reading of bids.

(b) The authority may designate any officer or employee to open the

bids at the time and place bids are to be opened and may designate an

officer to award the contract to the lowest responsible bidder. Such

designee shall make a record of all bids in such form and detail as the

authority shall prescribe. All bids received shall be publicly opened

and read at the time, place and in the manner specified in the

advertisement or at the time of solicitation, or to which the opening

and reading or posting have been adjourned by the authority, provided

that any sealed bid may be received and secured through an electronic

platform as permitted by the authority, and that any sealed bid received

electronically is made public at the same time as any competing paper

bid. The authority shall, at minimum, provide the same opportunity and

time for submitting sealed bids physically as for sealed bids submitted

electronically, and shall provide the opportunity for bidders to submit

sealed bids physically any time that it provides the opportunity to

submit sealed electronic bids. In addition, the authority shall

establish a process for accommodating force majeure events that prevent

the submission of a sealed electronic bid, including but not limited to

internet and power outage events, and for automatically confirming

receipt of any sealed electronic bid received. All bidders shall be

notified of the time and place of any such adjournment.

4. Notwithstanding the foregoing, the authority may, by resolution

approved by a two-thirds vote of its members then in office, or by a

majority vote of its members with respect to contracts proposed to be

let pursuant to paragraph (a) of this subdivision declare that

competitive bidding is impractical or inappropriate because of the

existence of any of the circumstances hereinafter set forth and

thereafter the authority may proceed to award contracts without

complying with the requirements of subdivision two or three of this

section. In each case where the authority declares competitive bidding

impractical or inappropriate, it shall state the reason therefor in

writing and summarize any negotiations that have been conducted. Except

for contracts awarded pursuant to paragraphs (a), (b), (c) and (e) of

this subdivision, the authority shall not award any contract pursuant to

this subdivision earlier than thirty days from the date on which the

authority declares that competitive bidding is impractical or

inappropriate. Competitive bidding may only be declared impractical or

inappropriate where:

(a) the existence of an emergency involving danger to life, safety or

property requires immediate action and cannot await competitive bidding

or the item to be purchased is essential to efficient operation or the

adequate provision of service and as a consequence of unforeseen

circumstance such purchase cannot await competitive bidding;

(b) the item to be purchased is available only from a single

responsible source, provided that if bids have not been solicited for

such item pursuant to subdivision two of this section within the

preceding twelve months public notice shall first be given pursuant to

subdivision three of this section;

(c) the authority receives no responsive bids or only a single

responsive bid in response to an invitation for competitive bids;

(d) the authority wishes to experiment with or test a product or

technology or new source for such product or technology or evaluate the

service or reliability of such product or technology;

(e) the item is available through an existing contract between a

vendor and (i) another public authority provided that such other

authority utilized a process of competitive bidding or a process of

competitive requests for proposals to award such contracts, (ii) Nassau

county, (iii) the state of New York, (iv) the city of New York or (v)

the United States general services administration provided that such

administration utilized a process of competitive bidding or a process of

competitive requests for proposals to award such contract, provided that

in any case when under this paragraph the authority determines that

obtaining such item thereby would be in the public interest and sets

forth the reasons for such determination. Such rationale shall include,

but need not be limited to, a determination of need, a consideration of

the procurement method by which the contract was awarded, an analysis of

alternative procurement sources including an explanation why a

competitive procurement or the use of a centralized contract let by the

commissioner of the office of general services is not in the best

interest of the authority, and the reasonableness of cost. The authority

shall accept sole responsibility for any payment due the vendor as a

result of the authority's order; or

(f) the authority determines that it is in the public interest to

award contracts pursuant to a process for competitive requests for

proposals as hereinafter set forth. For purposes of this section, a

process for competitive requests for proposals shall mean a method of

soliciting proposals and awarding a contract on the basis of a formal

evaluation of the characteristics, such as quality, cost, delivery

schedule and financing of such proposals against stated selection

criteria. Public notice of the requests for proposals shall be given in

the same manner as provided in subdivision three of this section and

shall include the selection criteria. In the event the authority makes a

material change in the selection criteria from those previously stated

in the notice, it will inform all proposers of such change and permit

proposers to modify their proposals.

* (i) Except for a contract with a value of one hundred million

dollars or less that is awarded pursuant to this paragraph to the

proposer whose proposal is the lowest cost, the authority may award a

contract pursuant to this paragraph only after a resolution approved by

a two-thirds vote of its members then in office at a public meeting of

the authority with such resolution (A) disclosing the other proposers

and the substance of their proposals, (B) summarizing the negotiation

process including the opportunities, if any, available to proposers to

present and modify their proposals, and (C) setting forth the criteria

upon which the selection was made provided however that for purposes of

this subparagraph the board may, at its discretion, require such a

resolution be approved for contracts with a value of one hundred million

dollars or less.

* NB Effective until June 30, 2028

* (i) The authority may award a contract pursuant to this paragraph

only after a resolution approved by a two-thirds vote of its members

then in office at a public meeting of the authority with such resolution

(A) disclosing the other proposers and the substance of their proposals,

(B) summarizing the negotiation process including the opportunities, if

any, available to proposers to present and modify their proposals, and

(C) setting forth the criteria upon which the selection was made.

* NB Effective June 30, 2028

(ii) Nothing in this paragraph shall require or preclude (A)

negotiations with any proposers following the receipt of responses to

the request for proposals, or (B) the rejection of any or all proposals

at any time. Upon the rejection of all proposals, the authority may

solicit new proposals or bids in any manner prescribed in this section.

(g) the authority issues a competitive request for proposals pursuant

to the procedures of paragraph (f) of this subdivision for the purchase

or rehabilitation of rail cars and omnibuses. Any such request may

include among the stated selection criteria the performance of all or a

portion of the contract at sites within the state of New York or the use

of goods produced or services provided within the state of New York,

provided however that in no event shall the authority award a contract

to a manufacturer whose final offer, as expressed in unit cost is more

than ten percent higher than the unit cost of any qualified competing

final offer, if the sole basis for such award is that the higher priced

offer includes more favorable provision for the performance of the

contract within the state of New York or the use of goods produced or

services provided within the state of New York, and further provided

that the authority's discretion to award a contract to any manufacturer

shall not be so limited if a basis for such award, as determined by the

authority, is superior financing, delivery schedule, life cycle,

reliability, or any other factor the authority deems relevant to its

operations.

* (i) Except for a contract with a value of one hundred million

dollars or less that is awarded pursuant to this paragraph to the

proposer whose proposal is the lowest cost, the authority may award a

contract pursuant to this paragraph only after a resolution approved by

a vote of not less than a two-thirds vote of its members then in office

at a public meeting of the authority with such resolution (A) disclosing

the other proposers and the substance of their proposals, (B)

summarizing the negotiation process including the opportunities, if any,

available to proposers to present and modify their proposals, and (C)

setting forth the criteria upon which the selection was made provided

however that for purposes of this subparagraph the board may, at its

discretion, require such a resolution be approved for contracts with a

value of one hundred million dollars or less.

* NB Effective until June 30, 2028

* (i) The authority may award a contract pursuant to this paragraph

only after a resolution approved by a vote of not less than a two-thirds

vote of its members then in office at a public meeting of the authority

with such resolution (A) disclosing the other proposers and the

substance of their proposals, (B) summarizing the negotiation process

including the opportunities, if any, available to proposers to present

and modify their proposals, and (C) setting forth the criteria upon

which the selection was made.

* NB Effective June 30, 2028

(ii) Nothing in this paragraph shall require or preclude (A)

negotiations with any proposers following the receipt of responses to

the request for proposals, or (B) the rejection of any or all proposals

at any time. Upon the rejection of all proposals, the authority may

solicit new proposals or bids in any manner prescribed in this section.

5. Upon the adoption of a resolution by the authority stating, for

reasons of efficiency, economy, compatibility or maintenance

reliability, that there is a need for standardization, the authority may

establish procedures whereby particular supplies, materials or equipment

are identified on a qualified products list. Such procedures shall

provide for products or vendors to be added to or deleted from such list

and shall include provisions for public advertisement of the manner in

which such lists are compiled. The authority shall review such list no

less than once a year for the purpose of making such modifications.

Contracts for particular supplies, materials or equipment identified on

a qualified products list may be awarded by the authority to the lowest

responsible bidder after obtaining sealed bids in accordance with this

section or without competitive sealed bids in instances when the item is

available from only a single source, except that the authority may

dispense with advertising provided that it mails copies of the

invitation to bid to all vendors of the particular item on the qualified

products list.

6. The authority shall compile a list of potential sources of

supplies, materials or equipment regularly purchased. The authority

shall, by resolution, set forth the procedures it has established to

identify new sources and to notify such new sources of the opportunity

to bid for contracts for the purchase of supplies, materials or

equipment. Such procedures shall include, but not be limited to: (a)

advertising in trade journals; (b) cooperation with federal, state and

local agencies within its area of operations; (c) publication in the

state register quarterly; and (d) procedures established pursuant to

subdivision thirteen of section twelve hundred sixty-six-c of this

article.

7. The provisions of this section shall not supersede any other

provisions of law relative to purchases of products or devices

manufactured or provided by the blind or other severely handicapped

persons, to the invitation and acceptance of bids from small or minority

business enterprises or to the purchases of supplies, materials or

equipment through the office of general services. Except as may

otherwise be provided by law or as more restrictively defined in the

official policy or bid specifications of the authority, the term "small

business" means a small business or similar term, under federal

regulations applicable to projects of the authority which are federally

assisted.

* 8. Notwithstanding any other provisions in this section, the

authority shall be allowed to use an electronic bidding system for the

purchase of goods, materials, and commodities that may inform bidders

whether their bid is the current low bid, and allow bidders to submit

new bids before the date and time assigned for the opening of bids. Such

procedure shall not constitute disclosure of bids in violation of

section twenty-eight hundred seventy-eight of this chapter.

* NB Effective until June 30, 2028

* 8. The provisions of this section shall not apply to any procurement

made by any other public entity not otherwise required by law to award

contracts for such purchases to the lowest responsible bidder if such

purchases are made at the sole cost and expense of such entity.

* NB Effective June 30, 2028

* 9. The provisions of this section shall not apply to any procurement

made by any other public entity not otherwise required by law to award

contracts for such purchases to the lowest responsible bidder if such

purchases are made at the sole cost and expense of such entity.

* NB Repealed June 30, 2028

10. (a) Whenever the comptroller pursuant to section twenty-eight

hundred seventy-nine-a of this chapter intends to require supervision in

the form of prior review and approval of a contract or contract

amendment to be awarded by the authority pursuant to this section, then

such contract or contract amendment shall be submitted to the

comptroller by the authority for approval and shall not be a valid

enforceable contract unless it shall first have been approved by the

comptroller but only if the comptroller has notified the authority of

such determination within thirty days of having received written notice

of such contract or contract amendment either in the authority's annual

report or any revised report;

(b) If the comptroller has timely notified the authority as provided

in paragraph (a) of this subdivision that any contract or contract

amendment shall be subject to comptroller prior review and approval, and

such contract or contract amendment has been submitted to the

comptroller, it shall become valid and enforceable without such approval

if the comptroller has not approved or disapproved it within thirty days

of submission to the comptroller.