S4753-2011 Actions

• Jan 27, 2012: SIGNED CHAP.608
• Dec 28, 2011: DELIVERED TO GOVERNOR
• Jun 24, 2011: returned to senate
• Jun 24, 2011: passed assembly
• Jun 24, 2011: ordered to third reading rules cal.632
• Jun 24, 2011: substituted for a7357a
• Jun 21, 2011: referred to ways and means
• Jun 21, 2011: DELIVERED TO ASSEMBLY
• Jun 21, 2011: PASSED SENATE
• Jun 15, 2011: AMENDED ON THIRD READING (T) 4753A
• Jun 6, 2011: ADVANCED TO THIRD READING
• Jun 2, 2011: 2ND REPORT CAL.
• Jun 1, 2011: 1ST REPORT CAL.890
• Apr 18, 2011: REFERRED TO LOCAL GOVERNMENT

S4753-2011 Meetings

S4753-2011 Calendars

S4753-2011 Votes

S4753-2011 Memo

BILL NUMBER:S4753

TITLE OF BILL:
An act to amend the general municipal law, in relation to obtaining best
value for contracts for public work and purchase contracts

SUMMARY OF PROVISIONS:
Sections one and two of this bill amend subdivision 1 of General Munici-
pal Law § 103 to provide that contracts for public work and purchase
contracts shall be awarded on the basis of best value rather than to the
lowest responsible bidder, and that bids and offers may be submitted in
an electronic format for all procurements under General Municipal Law
§103. Sections three through twelve amend other subdivisions of §103 and
§l03-e of the General Municipal Law to conform these subdivisions to
allow for the awarding of contracts on the basis of best value.

REASONS FOR SUPPORT:
Enactment of this legislation would provide additional procurement
options to localities in ways that may expedite the procurement process
and result in cost savings. The "best value" standard for selecting
goods and services vendors is critical to the City's efforts to use
strategic sourcing principles to modernize its supply chain and ensure
that taxpayers obtain the highest quality goods and services at the
lowest potential cost, while also ensuring fairness to all competitors.
Today, the federal government, approximately half of the states and many
localities have added best value selection processes to their procure-
ment options, in recognition of these advantages.

With the increased complexity of the goods and services that munici-
palities must obtain in order to serve taxpayers, it is critical to
consider selection and evaluation criteria that measure factors other
than cost in the strictest sense. Taxpayers are not well served when a
public procurement results in low unit costs at the outset, but ulti-
mately engenders cost escalations due to factors such as inferior quali-
ty, poor reliability and difficulty of maintenance. Best value procure-
ment links the procurement process directly to the municipality's
performance requirements, incorporating selection factors such as useful
lifespan, quality and options and incentives for more timely performance
and/or additional services. Even if the initial expenditure is higher,
considering the total value over the life of the procurement may result
in a better value and long-term investment of public funds. Best value
procurement also encourages competition and, in turn, often results in
better pricing, quality and customer service.

Fostering healthy competition ensures that bidders will continue to
strive for excellence in identifying and meeting municipalities' needs,
including such important goals as the participation of small, minority
and women-owned businesses, and the development of environmentally-pre-
ferable goods and service delivery methods.

Best value procurement will provide the City much-needed flexibility in
obtaining important goods and services at favorable prices, and will
reduce the time to procure such goods and services.

The ability to accept electronic bids and proposals for all procurements
will reduce administrative burdens on bidders, proposers, and localities
alike.

Accordingly, the Mayor urges the earliest possible favorable consider-
ation of this proposal by the Legislature.

S4753-2011 Text

 S T A T E   O F   N E W   Y O R K
 
 
                                         4753
 2011-2012 Regular Sessions
 I N  SENATE
 April 18, 2011
 
 Introduced  by  Sen.  RANZENHOFER -- read twice and ordered printed, and
 when printed to be committed to the Committee on Local Government
 

AN ACT to amend the general municipal law, in relation to obtaining best
 value for contracts for public work and purchase contracts
 THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM
 BLY, DO ENACT AS FOLLOWS:

 

Section  1.    The section heading and subdivision 1 of section 103 of
 the general municipal law, the section heading as amended by chapter 997
 of the laws of 1960 and subdivision 1 as amended by section 1 of part FF
 of chapter 56 of the laws of 2010, are amended to read as follows:

 Advertising for  bids  AND  OFFERS;  letting  of  contracts;  criminal
 conspiracies. 1. Except as otherwise expressly provided by an act of the
 legislature or by a local law adopted prior to September first, nineteen
 hundred fifty-three, all contracts for public work involving an expendi
 ture  of  more  than  thirty-five  thousand  dollars  and  all  purchase
 contracts involving an expenditure of more than twenty thousand dollars,
 shall be awarded by the appropriate officer, board or agency of a  poli
 tical  subdivision  or of any district therein including but not limited
 to a soil conservation district, [to the lowest responsible  bidder]  ON
 THE  BASIS  OF BEST VALUE, AS DEFINED IN SECTION ONE HUNDRED SIXTY-THREE
 OF THE STATE FINANCE LAW, TO A  RESPONSIVE  AND  RESPONSIBLE  BIDDER  OR
 OFFERER  furnishing the required security after advertisement for sealed
 bids OR SEALED OFFERS in the manner provided by  this  section.  In  any
 case  where  a responsible bidder's OR RESPONSIBLE OFFERER'S gross price
 is reducible by an allowance for the value of used machinery, equipment,
 apparatus or tools to be traded in by a political subdivision, the gross
 price shall be reduced by the amount of such allowance, for the  purpose
 of  determining  the  [low  bid] BEST VALUE. [In cases where two or more
 responsible bidders furnishing the required  security  submit  identical
 bids  as  to price, such officer, board or agency may award the contract
 to any of such bidders.] Such officer, board or agency may,  in  his  or
 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
 [ ] is old law to be omitted.
 LBD10947-01-1
 
       S. 4753                             2
 her  or  its  discretion, reject all bids AND OFFERS and readvertise for
 new bids AND OFFERS in the manner provided by this section. In determin
 ing whether a purchase is an expenditure within the discretionary thres
 hold  amounts  established  by  this  subdivision, the officer, board or
 agency of a political subdivision  or  of  any  district  therein  shall
 consider  the  reasonably  expected aggregate amount of all purchases of
 the same commodities, services or  technology  to  be  made  within  the
 twelve-month  period  commencing  on the date of purchase.  Purchases of
 commodities, services or technology shall not  be  artificially  divided
 for the purpose of satisfying the discretionary buying thresholds estab
 lished  by this subdivision. A change to or a renewal of a discretionary
 purchase shall not be permitted if the change or renewal would bring the
 reasonably expected aggregate  amount  of  all  purchases  of  the  same
 commodities,  services  or  technology from the same provider within the
 twelve-month period commencing on the date of the first purchase  to  an
 amount  greater  than  the  discretionary  buying  threshold amount. For
 purposes of this section, "sealed bids" AND "SEALED  OFFERS"[,  as  that
 term  applies  to  purchase  contracts,]  shall  include bids AND OFFERS
 submitted in an electronic format including submission of the  statement
 of  non-collusion  required by section one hundred three-d of this arti
 cle, provided that the governing board of the political  subdivision  or
 district,  by  resolution, has authorized the receipt of bids AND OFFERS
 in such format.   Submission in electronic format  may,  for  technology
 contracts  only,  be  required  as the sole method for the submission of
 bids AND OFFERS. Bids AND OFFERS submitted in an electronic format shall
 be transmitted by bidders AND OFFERERS to the  receiving  device  desig
 nated  by  the  political  subdivision  or  district. Any method used to
 receive electronic bids AND OFFERS shall comply with  article  three  of
 the  state technology law, and any rules and regulations promulgated and
 guidelines developed thereunder and, at a minimum, must (a) document the
 time and date of receipt of each bid AND OFFER received  electronically;
 (b)  authenticate the identity of the sender; (c) ensure the security of
 the information transmitted; and (d) ensure the confidentiality  of  the
 bid  AND  OFFER  until  the time and date established for the opening of
 bids AND OFFERS. The timely submission of an electronic bid AND OFFER in
 compliance with instructions provided for such submission in the  adver
 tisement  for  bids  AND  OFFERS  and/or the specifications shall be the
 responsibility solely of each bidder OR OFFERER or prospective bidder OR
 OFFERER.  No political subdivision or district therein shall  incur  any
 liability from delays of or interruptions in the receiving device desig
 nated for the submission and receipt of electronic bids AND OFFERS.
 

S  2.  Subdivision  1  of section 103 of the general municipal law, as
 amended by section 2 of part FF of chapter 56 of the laws  of  2010,  is
 amended to read as follows:

 1. Except as otherwise expressly provided by an act of the legislature
 or  by  a  local  law adopted prior to September first, nineteen hundred
 fifty-three, all contracts for public work involving an  expenditure  of
 more  than  thirty-five  thousand  dollars  and  all  purchase contracts
 involving an expenditure of more than twenty thousand dollars, shall  be
 awarded  by  the  appropriate  officer,  board  or agency of a political
 subdivision or of any district therein including but not  limited  to  a
 soil  conservation  district,  [to the lowest responsible bidder] ON THE
 BASIS OF BEST VALUE, AS DEFINED IN SECTION ONE  HUNDRED  SIXTY-THREE  OF
 THE  STATE FINANCE LAW, TO A RESPONSIVE AND RESPONSIBLE OFFERER furnish
 ing the required security after advertisement for sealed bids OR  SEALED
 OFFERS  in the manner provided by this section. In determining whether a
 
       S. 4753                             3
 purchase is an expenditure within the  discretionary  threshold  amounts
 established by this subdivision, the officer, board or agency of a poli
 tical  subdivision or of any district therein shall consider the reason
 ably expected aggregate amount of all purchases of the same commodities,
 services  or  technology  to  be  made  within  the  twelve-month period
 commencing on the date of purchase. Purchases of  commodities,  services
 or  technology  shall  not  be  artificially  divided for the purpose of
 satisfying the  discretionary  buying  thresholds  established  by  this
 subdivision.  A change to or a renewal of a discretionary purchase shall
 not be permitted if the change or renewal  would  bring  the  reasonably
 expected  aggregate  amount  of  all  purchases of the same commodities,
 services or technology from the same provider  within  the  twelve-month
 period commencing on the date of the first purchase to an amount greater
 than  the  discretionary  buying  threshold  amount. In any case where a
 responsible bidder's OR RESPONSIBLE OFFERER'S gross price  is  reducible
 by an allowance for the value of used machinery, equipment, apparatus or
 tools  to be traded in by a political subdivision, the gross price shall
 be reduced by the amount of such allowance, for the purpose of determin
 ing the [low bid] BEST VALUE. [In cases where two  or  more  responsible
 bidders  furnishing  the  required  security submit identical bids as to
 price, such officer, board or agency may award the contract  to  any  of
 such  bidders.]  Such  officer,  board or agency may, in his, her or its
 discretion, reject all bids AND OFFERS and readvertise for new bids  AND
 OFFERS in the manner provided by this section.
 

S  3.  Subdivision 1-a of section 103 of the general municipal law, as
 added by chapter 595 of the laws of 1979, is amended to read as follows:

 1-a. Whenever possible, practical, and feasible  and  consistent  with
 open competitive bidding AND COMPETITIVE OFFERING, the officer, board or
 agency  of  any political subdivision or of any district therein charged
 with the awarding of contracts may use the stock item specifications  of
 manufacturers,  producers and/or assemblers located in New York state in
 developing specifications for items to be let for bid OR  OFFER  in  its
 purchasing  contracts  and may use the data and information contained in
 stock item specifications forms [as  provided  in  section  one  hundred
 sixty-four-a of the state finance law] to assist in his determination of
 what  constitutes a stock item of a manufacturer, producer and/or assem
 bler located in New York state for the  purpose  of  helping  to  retain
 jobs,  business  and  industry  presently  in  the state of New York and
 attracting expanded and new business and industry to the  state  of  New
 York so as to best promote the public interest.
 

S  4.  Subdivision  2  of section 103 of the general municipal law, as
 amended by section 5 of part X of chapter 62 of the  laws  of  2003,  is
 amended to read as follows:

 2.  Advertisement  for bids AND OFFERS shall be published in the offi
 cial newspaper or newspapers, if any, or otherwise  in  a  newspaper  or
 newspapers designated for such purpose. Such advertisement shall contain
 a  statement  of  the  time  when  and  place  where all bids AND OFFERS
 received pursuant to such notice will be publicly opened and  read,  and
 the  designation of the receiving device if the political subdivision or
 district has authorized the receipt of bids AND OFFERS in an  electronic
 format.  Such board or agency may by resolution designate any officer or
 employee to open the bids AND OFFERS at the time and place specified  in
 the notice. Such designee shall make a record of such bids AND OFFERS in
 such  form and detail as the board or agency shall prescribe and present
 the same at the next regular or special meeting of such board or agency.
 All bids AND OFFERS received shall be publicly opened and  read  at  the
 
       S. 4753                             4
 time and place so specified. At least five days shall elapse between the
 first  publication  of  such advertisement and the date so specified for
 the opening and reading of bids AND OFFERS.
 

S  5.  Subdivision  2  of section 103 of the general municipal law, as
 amended by chapter 296 of the laws  of  1958,  is  amended  to  read  as
 follows:

 2.  Advertisement  for bids AND OFFERS shall be published in the offi
 cial newspaper or newspapers, if any, or otherwise  in  a  newspaper  or
 newspapers designated for such purpose. Such advertisement shall contain
 a  statement  of  the  time  when  and  place  where all bids AND OFFERS
 received pursuant to such notice will be publicly opened and read.  Such
 board  or  agency may by resolution designate any officer or employee to
 open the bids AND OFFERS at the time and place specified in the  notice.
 Such  designee  shall make a record of such bids AND OFFERS in such form
 and detail as the board or agency shall prescribe and present  the  same
 at the next regular or special meeting of such board or agency. All bids
 AND  OFFERS  received  shall be publicly opened and read at the time and
 place so specified. At least five days shall elapse  between  the  first
 publication  of  such  advertisement  and  the date so specified for the
 opening and reading of bids AND OFFERS.
 

S 6. Subdivision 3 of section 103 of the  general  municipal  law,  as
 amended  by  chapter  343  of  the  laws  of 2007, is amended to read as
 follows:

 3. Notwithstanding the provisions of subdivision one of this  section,
 any  officer,  board  or  agency  of  a  political subdivision or of any
 district therein authorized to make purchases of materials, equipment or
 supplies, or to contract for services, may make such purchases,  or  may
 contract  for  services, other than services subject to article eight or
 nine of the labor law, when available, through the county in  which  the
 political subdivision or district is located or through any county with
 in  the  state  subject to the rules established pursuant to subdivision
 two of section four hundred eight-a of the county law; provided that the
 political subdivision or district for which such officer, board or agen
 cy acts shall accept sole responsibility for any payment due the  vendor
 or  contractor.  All purchases and all contracts for such services shall
 be subject to audit and  inspection  by  the  political  subdivision  or
 district for which made. Prior to making such purchases or contracts the
 officer,  board  or  agency  shall  consider whether such contracts will
 result in cost savings after all factors, including charges for service,
 material, and delivery, have been considered. No officer, board or agen
 cy of a political subdivision or of any district therein shall make  any
 purchase  or  contract for any such services through the county in which
 the political subdivision or district is located or through  any  county
 within  the  state  when  bids  AND  OFFERS  have been received for such
 purchase or such services by such officer, board or agency, unless  such
 purchase  may  be  made or the contract for such services may be entered
 into upon the same terms, conditions and specifications at a lower price
 through the county.
 

S 7. Subdivision 4 of section 103 of the  general  municipal  law,  as
 amended  by  chapter  597  of  the  laws  of 1963, is amended to read as
 follows:

 4. Notwithstanding the provisions of subdivision one of this  section,
 in  the  case  of a public emergency arising out of an accident or other
 unforeseen  occurrence  or  condition  whereby  circumstances  affecting
 public buildings, public property or the life, health, safety or proper
 ty  of  the  inhabitants of a political subdivision or district therein,
 
       S. 4753                             5
 require immediate action  which  cannot  await  competitive  bidding  OR
 COMPETITIVE  OFFERING,  contracts  for  public  work  or the purchase of
 supplies, material or equipment may be let by the  appropriate  officer,
 board or agency of a political subdivision or district therein.
 

S  8.  Subdivision  5  of section 103 of the general municipal law, as
 amended by section 3 of part FF of chapter 56 of the laws  of  2010,  is
 amended to read as follows:

 5.  Upon  the  adoption  of  a resolution by a vote of at least three
 fifths of all the members of the governing body of a political  subdivi
 sion  or  district  therein  stating  that, for reasons of efficiency or
 economy, there is need for standardization,  purchase  contracts  for  a
 particular  type or kind of equipment, material or supplies in excess of
 the monetary threshold fixed for purchase contracts in this section  may
 be awarded by the appropriate officer, board or agency of such political
 subdivision  or  any  such  district  therein, to the lowest responsible
 bidder OR RESPONSIBLE OFFERER furnishing  the  required  security  after
 advertisement  for  sealed  bids OR SEALED OFFERS therefor in the manner
 provided in this section. Such resolution shall contain a full  explana
 tion of the reasons for its adoption.
 

S  9.  Subdivision  6  of section 103 of the general municipal law, as
 amended by chapter 315 of the laws  of  1974,  is  amended  to  read  as
 follows:

 6.  Surplus  and  second-hand  supplies,  material or equipment may be
 purchased without competitive bidding AND COMPETITIVE OFFERING from  the
 federal  government,  the  state of New York or from any other political
 subdivision, district or public benefit corporation.
 

S 10. Subdivision 7 of section 103 of the general  municipal  law,  as
 amended by chapter 8 of the laws of 2008, is amended to read as follows:

 7.  A  person  or  corporation  who  conspires  to prevent competitive
 bidding OR COMPETITIVE  OFFERING  on  a  contract  for  public  work  or
 purchase  advertised for bidding OR OFFERING shall be guilty of a misde
 meanor as provided in section one hundred three-e of this article.
 

S 11. Subdivision 15 of section 103 of the general municipal  law,  as
 added  by  section  1-a of part MM of chapter 57 of the laws of 2008, is
 amended to read as follows:

 15. (a) Notwithstanding any general, special or local law or  rule  or
 regulation  to  the contrary, an officer, board or agency of any county,
 any school district or any political subdivision of  the  state  with  a
 population  of  fifty  thousand or more charged with awarding a contract
 for public work may establish guidelines governing the qualifications of
 bidders AND OFFERERS seeking to bid, OFFER or enter into such contracts.
 If such officer, board or agency maintains an appropriate list of quali
 fied bidders AND OFFERERS, the bidding AND OFFERING shall be  restricted
 to  those  who  have  qualified  prior to the receipt of bids AND OFFERS
 according to standards fixed by such officer, board or agency. In deter
 mining whether a prospective bidder OR OFFERER qualifies  for  inclusion
 on  a  list  of pre-qualified bidders OR OFFERERS, the officer, board or
 agency shall consider the experience and record of  performance  of  the
 prospective  bidder  OR  OFFERER in the particular type of work, as well
 as: (i) the prospective bidder's OR OFFERER'S ability to  undertake  the
 particular  type  and complexity of work; (ii) the financial capability,
 responsibility and reliability of the prospective bidder OR OFFERER  for
 such  type  and  complexity of work; (iii) the record of the prospective
 bidder OR OFFERER in complying with existing labor standards  and  main
 taining  harmonious  labor  relations;  (iv) the prospective bidder's OR
 OFFERER'S compliance with equal employment opportunity requirements  and
 
       S. 4753                             6
 anti-discrimination  laws,  and  demonstrated commitment to working with
 minority and women-owned businesses through joint  ventures  or  subcon
 tractor  relationships;  and (v) the record of the prospective bidder OR
 OFFERER  in  protecting the health and safety of workers on public works
 projects and job sites as demonstrated by the  prospective  bidder's  OR
 OFFERER'S experience modification rate for each of the last three years.
 (b)  Such public officer, board or agency shall, not less than annual
 ly, publish in a newspaper of  general  circulation  in  such  political
 subdivision an advertisement requesting prospective bidders AND OFFERERS
 to  submit  qualification statements. Lists of pre-qualified bidders AND
 OFFERERS may be established on a  project-specific  basis.  Prequalified
 lists  shall  include  all  bidders AND OFFERERS that qualify; provided,
 however, that any such list shall have no  less  than  five  bidders  OR
 OFFERERS  but  shall remain open for all additional qualified bidders OR
 OFFERERS AS APPLICABLE. The public officer, board or agency's procedures
 for prequalifying bidders OR OFFERERS shall include an  appeals  process
 for  those  denied  a  place on a pre-qualified list. Any denial must be
 based upon substantial evidence, cannot be arbitrary or capricious,  and
 shall be subject to judicial review pursuant to article seventy-eight of
 the  civil  practice  law and rules. The public officer, board or agency
 may move forward on the contract award during such appeals.
 (c) Any school district or political subdivision of the state  with  a
 population  of less than fifty thousand may utilize a list of pre-quali
 fied bidders OR OFFERERS maintained  by  the  county  within  which  the
 subdivision is located, if such list is maintained.
 

S  12.  The  section heading and subdivision 1 of section 103-e of the
 general municipal law, as added by chapter 1031 of the laws of 1965, are
 amended to read as follows:

 Conspiracies to prevent competitive bidding OR COMPETITIVE OFFERING on
 public contracts.  1. A person or corporation who shall wilfully,  know
 ingly and with intent to defraud, make or enter into, or attempt to make
 or  enter into, with any other person or corporation, a contract, agree
 ment, arrangement or combination to submit a fraudulent or collusive bid
 OR OFFER, or to refrain from submitting a bona fide competitive  bid  OR
 COMPETITIVE OFFER, to any board, officer, agency, department, commission
 or  other  agency  of the state or of a public corporation on a contract
 for public work or purchase which has been  advertised  for  bidding  OR
 OFFERING,  shall  be  guilty of a misdemeanor, and on conviction thereof
 shall, if a natural person, be punished by a  fine  not  exceeding  five
 thousand  dollars or by imprisonment for not longer than one year, or by
 both such fine and imprisonment, and if a  corporation  by  a  fine  not
 exceeding  twenty  thousand  dollars. An indictment or information based
 upon a violation of any provision of this section must be  found  within
 three years after its commission.
 

S  13.  This  act shall take effect immediately and shall apply to any
 contract let or awarded on or after such date; provided,  however,  that
 the  amendments  to  subdivision  1  and 2 of section 103 of the general
 municipal law made by sections one and  three  of  this  act  shall  not
 affect  the expiration and reversion of such subdivisions as provided in
 subdivision (a) of section 41 of part X of chapter 62  of  the  laws  of
 2003, as amended, when upon such date the provisions of sections two and
 four of this act shall take effect.

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