N.Y. Transportation Law § 52: Construction contracts, cancellation of contracts, disqualification to contract with mass transportation authority, statement of non-coll...

§ 52. Construction contracts, cancellation of contracts,

disqualification to contract with mass transportation authority,

statement of non-collusion in bids on proposals. 1. Contracts of the

Utica transit authority for construction, alteration, renovation,

demolition, excavation or for purchase of materials or supplies shall be

in such form and contain provisions as may be deemed advisable by the

Utica transit authority. All such contracts in excess of ten thousand

dollars shall be made on sealed bids, in compliance with a public notice

advertised at least once, not less than twenty days before the date set

for the receipt of bids, in the official publication of the municipality

in which the main office of the Utica transit authority is located or if

no such official publication exists, in a newspaper circulating in the

municipality. If the Utica transit authority shall deem it to its best

interest or necessary or desirable to effectuate the purposes of this

article or the economy and efficiency in construction and operation of a

project, the Utica transit authority by majority vote of its members may

either reject all bids or readvertise for bids or by unanimous vote of

its members may accept a bid other than the lowest bid. In any such

contract there may be inserted in the discretion of the Utica transit

authority, a provision that additional work may be done or materials and

supplies furnished or that work or materials may be omitted for the

purpose of completing such contract in accordance with any changes,

omissions or additions in the specifications of any such contract. Each

contract shall provide that in the case of default by the contractor the

Utica transit authority may adopt on behalf of the authority all

subcontracts made by such contractor and all such subcontractors shall

be bound by such adoption if made, and the authority may relet, with or

without public advertisement, the work specified in the original

contract, exclusive of so much thereof as shall be provided in any

subcontracts so adopted. The Utica transit authority may make rules and

regulations governing the qualifications of bidders, the submission of

combined bids by two or more contractors, the award and execution of the

contract, security, if any, for execution and performance of the

contract, and any other matters relating to the contract. The bidding

may be restricted to those who shall have qualified prior to the receipt

of bids according to standards fixed by the Utica transit authority,

provided that notice or notices for the submission of qualifications

shall be published in the official publication of the municipality in

which the main office of the Utica transit authority is located, or if

no such official publication exists, in a newspaper circulating in the

municipality, at least once, not less than ten days prior to the date

fixed for the filing of qualifications. Nothing in this section shall be

construed to limit the power of the Utica transit authority to carry out

a project or any part thereof directly by the officers, agencies and

employees of the Utica transit authority, or by any government, or to

purchase or acquire materials or supplies through the purchasing

officer, department or agency of a government.

2. A clause shall be inserted in all specifications or contracts

hereafter made or awarded by the Utica transit authority or by any

official of the Utica transit authority, for work or services performed

or to be performed or goods sold or to be sold, to provide that upon the

refusal by a person who directly or indirectly derives a monetary

benefit which is traceable to such a specification or contract, when

called before a grand jury to testify concerning any transaction or

contract had with the state or of any political subdivision thereof, a

public authority, a mass transportation authority or with any public

department, agency or official of the state or of any political

subdivision thereof or of any public authority or of a mass

transportation authority or subcontract thereunder, to sign a waiver of

immunity against subsequent criminal prosecution or to answer any

relevant question concerning such transaction, contract or subcontract.

(a) Such person and any firm, partnership or corporation of which he

is a member, partner, director or officer, shall be disqualified from

thereafter selling to or submitting bids to or receiving awards from or

entering into any contracts with the Utica transit authority or official

thereof or any subcontract thereunder, or sub-contracting with any

person, firm, partnership or corporation who or which has entered into

any such contract or contracts, in relation to such contract or

contracts, for goods, work or services, for a period of five years after

such refusal. No person, firm, partnership or corporation who or which

has entered into any contract or contracts with the state, or any

political subdivision thereof, a public authority, a mass transportation

authority, or with any public department, agency or official of the

state or any political subdivision thereof or of any public authority,

or of a mass transportation authority, for goods, work or services,

shall enter into a subcontract thereon with any person, firm or

corporation which is disqualified to contract as provided herein. Such

clause shall also provide that

(b) Any and all contracts made with the Utica transit authority or

official thereof or any subcontract thereunder, since the effective date

of this law, by such person and by any firm, partnership or corporation

of which he is a member, partner, director or officer may be cancelled

or terminated by the Utica transit authority without incurring any

penalty or damages on account of such cancellation or termination, but

any moneys owing by the Utica transit authority or by a contractor or

subcontractor thereunder for goods delivered or work done prior to the

cancellation or termination shall be paid.

3. (a) Any person who, when called before a grand jury to testify

concerning any transaction or contract had with the state, any political

subdivision thereof, a public authority, a mass transportation authority

or with a public department, agency or official of the state or of any

political subdivision thereof or of a public authority or of a mass

transportation authority, refuses to sign a waiver of immunity against

subsequent criminal prosecution or to answer any relevant question

concerning such transaction or contract, and any firm, partnership or

corporation of which he is a member, partner, director or officer shall

be disqualified from thereafter selling to or submitting bids to or

receiving awards from or entering into any contracts with any mass

transportation authority or any official of any mass transportation

authority created by the state or any political subdivision, or

sub-contracting with any person, firm, partnership or corporation who or

which has entered into any such contract or contracts, in relation to

such contract or contracts, for goods, work or services, for a period of

five years after such refusal or until a disqualification shall be

removed pursuant to the applicable provisions of law. No person, firm,

partnership or corporation who or which has entered into any contract or

contracts with the state, or any political subdivision thereof, a public

authority, a mass transportation authority, or with any public

department, agency or official of the state or any political subdivision

thereof or of any public authority, or of a mass transportation

authority, for goods, work or services, shall enter into a subcontract

thereon with any person, firm or corporation which is disqualified to

contract as provided herein.

(b) It shall be the duty of the officer conducting the investigation

before the grand jury before which the refusal occurs to send notice of

such refusal, together with the names of any firm, partnership or

corporation of which the person so refusing is known to be a member,

partner, officer or director, to the commissioner of transportation of

the state of New York and the appropriate departments, agencies and

officials of the state, political subdivisions thereof or public

authorities with whom the person so refusing and any firm, partnership

or corporation of which he is a member, partner, director or officer, is

known to have a contract.

4. (a) Any firm, partnership or corporation which has become subject

to the cancellation or termination of a contract or subcontract or

disqualification to contract or subcontract on account of the refusal of

a member, partner, director or officer thereof to waive immunity when

called to testify, as provided in subdivisions two and three of this

section, may, upon ten days' notice to the attorney general and to the

officer who conducted the investigation before the grand jury in which

the refusal occurred, make an application at a special term of the

supreme court held within the judicial district in which the refusal

occurred for an order discontinuing the disqualification. Such

application shall be in the form of a petition setting forth grounds,

including that the cooperation by petitioner with the grand jury at the

time of the refusal was such, and the amount and degree of control and

financial interest, if any, in the petitioning firm, partnership or

corporation by the member, partner, officer or director who refused to

waive immunity is such that it will not be in the public interest to

cancel or terminate petitioner's contracts or subcontracts or to

continue the disqualification, as provided in subdivisions two and three

of this section.

A copy of the petition and accompanying papers shall be served with

the notices to be given pursuant to this subdivision.

(b) Upon the filing of such petition the court may stay as to

petitioner, pending a decision upon the petition, the cancellation or

termination of any contracts or subcontracts resulting from such refusal

upon such terms as to notice or otherwise as may be just.

(c) At least two days prior to the return day, the officer who

conducted the investigation before the grand jury and the attorney

general may file answers to the petition or apply for an order

dismissing the petition as a matter of law. On or before the return day

the petitioner may file a reply to the answer.

(d) Upon the return day the court may, upon the petition and answer

and other papers filed, forthwith render such final order as the case

requires, or if a triable issue of fact is duly raised, it shall

forthwith be tried before a court sitting without a jury or before a

referee. The provisions of statute or rule governing references in an

action shall apply to a reference under this subdivision.

(e) The court shall render a final order dismissing the petition on

the merits or discontinuing the disqualification upon the ground that

the public interest would be served by its discontinuance, and granting

such other relief as to the cancellation or termination of contracts or

subcontracts as may be appropriate, but without costs to petitioner.

5. (a) Every bid or proposal hereafter made to a mass transportation

authority where competitive bidding is required by statute, rule or

regulation, for work or services performed or to be performed or goods

sold or to be sold shall contain the following statement subscribed by

the bidder and affirmed by such bidder as true under the penalties of

perjury: Non-collusive bidding certification.

(1) By submission of this bid, each bidder and each person signing on

behalf of any bidder certifies, and in the case of a joint bid each

party thereto certifies as to its own organization, under penalty of

perjury, that to the best of his knowledge and belief:

(i) The prices in this bid have been arrived at independently without

collusion, consultation, communication, or agreement, for the purpose of

restricting competition, as to any matter relating to such prices with

any other bidder or with any competitor;

(ii) Unless otherwise required by law, the prices which have been

quoted in this bid have not been knowingly disclosed by the bidder and

will not knowingly be disclosed by the bidder prior to opening, directly

or indirectly, to any other bidder or to any competitor; and

(iii) No attempt has been made or will be made by the bidder to induce

any other person, partnership or corporation to submit or not to submit

a bid for the purpose of restricting competition.

(2) A bid shall not be considered for award nor shall any award be

made where (1) (i) (ii) and (iii) above have not been complied with;

provided however, that if in any case the bidder cannot make the

foregoing certification, the bidder shall so state and shall furnish

with the bid a signed statement which sets forth in detail the reasons

therefor. Where (1) (i) (ii) and (iii) above have not been complied

with, the bid shall not be considered for award nor shall any award be

made unless the Utica transit authority to which the bid is made

determines that such disclosure was not made for the purpose of

restricting competition.

The fact that a bidder (a) has published price lists, rates, or

tariffs covering items being procured, (b) has informed prospective

customers of proposed or pending publication of new or revised price

lists for such items, or (c) has sold the same items to other customers

at the same prices being bid, does not constitute, without more, a

disclosure within the meaning of paragraph (a) of this subdivision.

(b) Any bid hereafter made to the Utica transit authority by a

corporate bidder for work or services performed or to be performed or

goods sold or to be sold, where competitive bidding is required by

statute, rule, regulation, or local law, and where such bid contains the

certification referred to in paragraph (a) of this subdivision, shall be

deemed to have been authorized by the board of directors of the bidder,

and such authorization shall be deemed to include the signing and

submission of the bid and the inclusion therein of the certificate as to

non-collusion as the act and deed of the corporation.