NY State Senate Bill 2011-S4753

Archive: Last Bill Status - Signed by Governor

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

Please enter your contact information

First Name

Last Name

Email Address

A valid email address is required.

Home address is used to determine the senate district in which you reside. Your support or opposition to this bill is then shared immediately with the senator who represents you.

Optional services from the NY State Senate:

Create an account. An account allows you to officially support or oppose key legislation, sign petitions with a single click, and follow issues, committees, and bills that matter to you. When you create an account, you agree to this platform's terms of participation.

Include a custom message for your Senator? (Optional)

Enter a message to your senator. Many New Yorkers use this to share the reasoning behind their support or opposition to the bill. Others might share a personal anecdote about how the bill would affect them or people they care about.

Actions

View Actions

Date of Action	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jan 27, 2012	signed chap.608
Dec 28, 2011	delivered to governor
Jun 24, 2011	returned to senate passed assembly ordered to third reading rules cal.632 substituted for a7357a
Jun 21, 2011	referred to ways and means delivered to assembly passed senate
Jun 15, 2011	amended on third reading (t) 4753a
Jun 06, 2011	advanced to third reading
Jun 02, 2011	2nd report cal.
Jun 01, 2011	1st report cal.890
Apr 18, 2011	referred to local government

Votes

- Jun 21, 2011 - Floor Vote
  S4753
  
  Aye
  
  62
  
  Nay
  
  0
  
  Absent
  
  0
  
  Excused
  
  0
  
  Abstained
  
  0
  - - Floor Vote: Jun 21, 2011
      
      aye (62)
      
      Adams
      
      Addabbo Jr.
      
      Alesi
      
      Avella
      
      Ball
      
      Bonacic
      
      Breslin
      
      Carlucci
      
      DeFrancisco
      
      Diaz
      
      Dilan
      
      Duane
      
      Espaillat
      
      Farley
      
      Flanagan
      
      Fuschillo
      
      Gallivan
      
      Gianaris
      
      Golden
      
      Griffo
      
      Grisanti
      
      Hannon
      
      Hassell-Thompson
      
      Huntley
      
      Johnson
      
      Kennedy
      
      Klein
      
      Krueger
      
      Kruger
      
      LaValle
      
      Lanza
      
      Larkin
      
      Libous
      
      Little
      
      Marcellino
      
      Martins
      
      Maziarz
      
      McDonald
      
      Montgomery
      
      Nozzolio
      
      O'Mara
      
      Oppenheimer
      
      Parker
      
      Peralta
      
      Perkins
      
      Ranzenhofer
      
      Ritchie
      
      Rivera
      
      Robach
      
      Saland
      
      Sampson
      
      Savino
      
      Serrano
      
      Seward
      
      Skelos
      
      Smith
      
      Squadron
      
      Stavisky
      
      Stewart-Cousins
      
      Valesky
      
      Young
      
      Zeldin
  Jun 1, 2011 - Local Government Committee Vote
  S4753
  
  Aye
  
  6
  
  Nay
  
  0
  
  Aye with Reservations
  
  2
  
  Absent
  
  0
  
  Excused
  
  0
  
  Abstained
  
  0
  - - Local Government Committee Vote: Jun 1, 2011
      
      aye (6)
      
      Klein
      
      Little
      
      Martins
      
      McDonald
      
      Oppenheimer
      
      Stewart-Cousins
      
      aye wr (2)
      
      Ball
      
      Ritchie

Bill Amendments

Original

A (Active)

2011-S4753 - Details

Law Section:: General Municipal Law
Laws Affected:: Amd §§103 & 103-e, Gen Muni L

2011-S4753 - Summary

Relates to obtaining the best value for contracts for public work and purchase contracts.

2011-S4753 - Sponsor 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.

2011-S4753 - Bill Text download pdf

                            
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  4753

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                             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.

2011-S4753A (ACTIVE) - Details

Law Section:: General Municipal Law
Laws Affected:: Amd §§103 & 103-e, Gen Muni L

2011-S4753A (ACTIVE) - Summary

Relates to obtaining the best value for contracts for public work and purchase contracts.

2011-S4753A (ACTIVE) - Sponsor Memo

                                BILL NUMBER:S4753A

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

SUMMARY OF PROVISIONS:
Sections one and two of this bill amend
subdivision 1 of General Municipal Law § 103 to provide that
purchase contracts (including contracts for service work, but
excluding any purchase contracts necessary for the completion of a
public works contract pursuant to Article eight of the Labor Law)
shall be awarded on the basis of best value rather than to the lowest
responsible bidder Sections three through eleven amend other
subdivisions of § 103 and § 103-e of the General Municipal Law to
conform these subdivisions to allow for the awarding of purchase
contracts (including contracts for service work) 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,
including janitorial and security contracts, 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 procurement options, in
recognition of these advantages.

With the increased complexity of the goods and services that
municipalities 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 ultimately engenders cost escalations due to factors
such as inferior quality, poor reliability and difficulty of
maintenance. Best value procurement 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-preferable 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.

Accordingly, the Mayor urges the earliest possible favorable
consideration of this proposal by the Legislature.

2011-S4753A (ACTIVE) - Bill Text download pdf

                            
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                 4753--A
    Cal. No. 890

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                             April 18, 2011
                               ___________

Introduced  by  Sen.  RANZENHOFER -- read twice and ordered printed, and
  when printed to be committed to the Committee on Local  Government  --
  reported  favorably  from  said committee, ordered to first and second
  report, ordered to a third reading,  amended  and  ordered  reprinted,
  retaining its place in the order of third reading

AN ACT to amend the general municipal law, in relation to obtaining best
  value for 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[,]  IN  THE  FOLLOWING  MANNER:  (A)
CONTRACTS FOR PUBLIC WORK SHALL BE AWARDED  to  the  lowest  responsible
bidder  furnishing  the required security after advertisement for sealed
bids in the manner provided by this section AND, (B) PURCHASE  CONTRACTS
(INCLUDING  CONTRACTS  FOR  SERVICE  WORK,  BUT  EXCLUDING  ANY PURCHASE
CONTRACTS NECESSARY FOR THE COMPLETION OF A PUBLIC WORKS CONTRACT PURSU-
ANT TO ARTICLE EIGHT OF THE LABOR LAW) SHALL BE AWARDED 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  IN  THE
MANNER  PROVIDED  BY  THIS  SECTION.    In  any case where a responsible

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.

                                                           LBD10947-02-1

S. 4753--A                          2

bidder's OR RESPONSIBLE OFFERER'S gross price is reducible by an  allow-
ance  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 her or its discretion,
reject all bids OR OFFERS and readvertise for new bids OR OFFERS in  the
manner provided by this section. In determining whether a purchase is an
expenditure  within  the  discretionary threshold amounts established by
this subdivision, the officer, board or agency of a  political  subdivi-
sion  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  established  by  this  subdivision.  A
change  to or a renewal of a discretionary purchase shall not be permit-
ted if the change or renewal would bring the reasonably expected  aggre-
gate  amount of all purchases of the same commodities, services or tech-
nology from the same provider within the twelve-month period  commencing
on  the date of the first purchase to an amount greater than the discre-
tionary buying threshold amount. For purposes of this  section,  "sealed
bids"  AND  "SEALED OFFERS", as that term applies to purchase contracts,
(INCLUDING CONTRACTS  FOR  SERVICE  WORK,  BUT  EXCLUDING  ANY  PURCHASE
CONTRACTS NECESSARY FOR THE COMPLETION OF A PUBLIC WORKS CONTRACT PURSU-
ANT  TO  ARTICLE  EIGHT  OF THE LABOR LAW) 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 OR OFFER until the time and date established for the opening of bids
OR  OFFERS.  The  timely  submission  of  an  electronic bid OR OFFER in
compliance with instructions provided for such submission in the  adver-
tisement  for  bids  OR  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

S. 4753--A                          3

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[,] IN THE FOLLOWING MANNER: (A) CONTRACTS FOR
PUBLIC WORK SHALL BE AWARDED to the lowest responsible bidder furnishing
the  required security after advertisement for sealed bids in the manner
provided  by  this  section  AND,  (B)  PURCHASE  CONTRACTS   (INCLUDING
CONTRACTS  FOR SERVICE WORK, BUT EXCLUDING ANY PURCHASE CONTRACTS NECES-
SARY FOR THE COMPLETION OF A PUBLIC WORKS CONTRACT PURSUANT  TO  ARTICLE
EIGHT  OF THE LABOR LAW) SHALL BE AWARDED 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 IN THE MANNER PROVIDED BY
THIS SECTION. In determining whether a purchase is an expenditure within
the discretionary threshold 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 arti-
ficially 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 determining the low bid OR BEST VALUE.  In
cases  where  two  or  more  responsible bidders furnishing the required
security submit identical bids as to price, such officer, board or agen-
cy may award the contract to any of such bidders. Such officer, board or
agency may, in his, her or its discretion, reject all bids OR OFFERS and
readvertise for new bids OR  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 OR 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. 4753--A                          4

  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 received pursuant
to such notice will be publicly opened and read AND WHERE  THE  IDENTITY
OF  ALL  OFFERERS WILL BE PUBLICLY DISCLOSED, 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
received shall be publicly opened and read at  the  time  and  place  so
specified  AND  THE IDENTITY OF ALL OFFERERS SHALL BE PUBLICLY DISCLOSED
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 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 received  pursuant
to  such  notice will be publicly opened and read AND WHERE THE IDENTITY
OF ALL OFFERERS WILL BE PUBLICLY DISCLOSED. 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 received shall be
publicly opened and read at the time and  place  so  specified  AND  THE
IDENTITY  OF  ALL  OFFERERS  SHALL BE PUBLICLY DISCLOSED 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

S. 4753--A                          5

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,
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  OR
SERVICES  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 ther-
ein,  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 explanation 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 OR 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.  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:

S. 4753--A                          6

  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 12. 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 subdivisions 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.

Comments

Open Legislation is a forum for New York State legislation. All comments are subject to review and community moderation is encouraged.

Comments deemed off-topic, commercial, campaign-related, self-promotional; or that contain profanity, hate or toxic speech; or that link to sites outside of the nysenate.gov domain are not permitted, and will not be published. Attempts to intimidate and silence contributors or deliberately deceive the public, including excessive or extraneous posting/posts, or coordinated activity, are prohibited and may result in the temporary or permanent banning of the user. Comment moderation is generally performed Monday through Friday. By contributing or voting you agree to the Terms of Participation and verify you are over 13.

Create an account. An account allows you to sign petitions with a single click, officially support or oppose key legislation, and follow issues, committees, and bills that matter to you. When you create an account, you agree to this platform's terms of participation.

Find your Senator and share your views on important issues.

Do you support this bill?

Senate Bill S4753

Signed By Governor

Sponsored By

Archive: Last Bill Status - Signed by Governor

Actions

Votes

Jun 21, 2011 - Floor Vote

Floor Vote: Jun 21, 2011

Jun 1, 2011 - Local Government Committee Vote

Local Government Committee Vote: Jun 1, 2011

Bill Amendments

2011-S4753 - Details

2011-S4753 - Summary

2011-S4753 - Sponsor Memo

2011-S4753 - Bill Text download pdf

2011-S4753A (ACTIVE) - Details

2011-S4753A (ACTIVE) - Summary

2011-S4753A (ACTIVE) - Sponsor Memo

2011-S4753A (ACTIVE) - Bill Text download pdf

Comments

Do you support this bill?

Get Status Alerts for 2011-S4753

Senate Bill S4753

Signed By Governor

Share this bill

Sponsored By

Michael H. Ranzenhofer

Archive: Last Bill Status - Signed by Governor

Actions

Votes

Bill Amendments

2011-S4753 - Details

2011-S4753 - Summary

2011-S4753 - Sponsor Memo

2011-S4753 - Bill Text download pdf

2011-S4753A (ACTIVE) - Details

2011-S4753A (ACTIVE) - Summary

2011-S4753A (ACTIVE) - Sponsor Memo

2011-S4753A (ACTIVE) - Bill Text download pdf

Comments