N.Y. Public Authorities Law § 1734: Contracts of the authority

§ 1734. Contracts of the authority. 1. a. All contracts for the

construction, reconstruction, improvement, rehabilitation, maintenance,

repair, furnishing, equipping of or otherwise providing for educational

facilities for the city board may be awarded in accordance with the

provisions of this section, notwithstanding the provisions of section

eight of the public buildings law, section one hundred three of the

general municipal law, section one hundred thirty-five of the state

finance law, section seven of the New York state financial emergency act

for the city of New York or of any other provision of general, special

or local law, charter or administrative code.

b. The authority shall be subject to the provisions of section one

hundred one of the general municipal law.

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

contracts for supplies, materials or equipment involving an estimated

expenditure in excess of ten thousand dollars and all contracts for

public work involving an estimated expenditure in excess of fifty

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.

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

provided by this section when it deems it 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.

3. a. Notwithstanding the provisions of paragraph a of subdivision two

of this section, the authority shall establish guidelines governing the

qualifications of bidders entering into contracts for the construction,

reconstruction, improvement, rehabilitation, maintenance, repair,

furnishing, equipping of or otherwise providing for educational

facilities for the city board. 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 b of subdivision two of this section.

b. In determining whether a prospective bidder qualifies for inclusion

on a list of pre-qualified bidders, the authority shall consider (1) the

experience and past performance of the prospective bidder; (2) the

prospective bidder's ability to undertake work; and (3) the financial

capability, responsibility and reliability of prospective bidders. The

authority may also consider such other factors as it deems appropriate.

c. The authority shall, not less than twice each year, publish, in a

newspaper of general circulation in the city of New York, an

advertisement requesting prospective bidders to submit qualification

statements. Lists of pre-qualified bidders shall be reviewed and updated

not less than annually by the authority. The authority shall delete from

the list of pre-qualified bidders any bidder who has failed to perform

adequately or satisfactorily for the authority, the city board or any

other city or state agency or authority.

d. Lists of pre-qualified bidders may be established on a

project-specific basis; provided, however, that any such list shall have

no less than five bidders.

4. a. Advertisement for bids, when required by this section, shall be

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

city of New York. Publication in such a newspaper shall not be required

(i) 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 or

(ii) if bids are to be solicited from a list of pre-qualified bidders

pursuant to the provisions of paragraph d of subdivision three of this

section. Any such advertisement shall contain a statement of the time

and place where all bids received pursuant to such notice will be

publicly opened and read. At least fourteen 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 and place specified in the advertisement or at the

time of solicitation, or to which the opening and reading have been

adjourned by the authority. All bidders shall be notified of the time

and place of any such adjournment.

5. Notwithstanding the foregoing, the authority may by resolution

approved by a vote of its members declare (i) that competitive bidding

for non-construction contracts is impractical or inappropriate because

of the existence of any of the circumstances hereinafter set forth or

(ii) that competitive bidding for construction contracts is impractical

or inappropriate because of the existence of the circumstances set forth

in paragraph a of this subdivision. 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 and shall be made available upon

request. Except for contracts awarded pursuant to paragraphs a, b and c

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 by the city board or the authority and as

a consequence of unforeseen circumstance such purchase cannot await

competitive bidding;

b. the authority receives no responsive bids or only a single

responsive bid in response to an invitation for competitive bids;

c. 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, or (ii) the city board,

or (iii) the state of New York, or (iv) the city of New York, 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 reason for such determination. The authority shall accept sole

responsibility for any payment due the vendor as a result of the

authority's order; or

d. 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) The authority may award a contract pursuant to this paragraph only

after a resolution approved by a vote of its members 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.

(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.

6. 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 twice 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.

7. 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

advertising in trade journals.

8. The authority shall be subject to the provisions of section

twenty-eight hundred seventy-nine of this chapter in awarding contracts

for personal services.

9. The board shall, by resolution, establish procedures for the fair

and equitable resolution of contract disputes. Prior to the

establishment of such policy, the board shall publish in appropriate

publications a notice of such policy and invite comment from interested

parties, including, but not limited to representatives of construction

organizations. Such notice shall also state that the authority will hold

a public hearing to consider the policy at a specified time and place on

a date not less than ten days after such publication, and the authority

shall conduct the public hearing pursuant to such notice.

10. The provisions of article eight of the labor law shall be

applicable to all contracts entered into directly or indirectly by the

authority.

11. The provisions of subdivision one of section one hundred six-b of

the general municipal law shall apply to the authority, provided,

however, that the authority may retain up to four times the value of any

remaining items to be completed.