A. 7357 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
A. 7357 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
A. 7357 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,
A. 7357 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
A. 7357 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.