Legislation
SECTION 103
Advertising for bids and offers; letting of contracts; criminal conspiracies
General Municipal (GMU) CHAPTER 24, ARTICLE 5-A
§ 103. 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
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
furnishing the required security after advertisement for sealed bids in
the manner provided by this section, provided, however, 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) may 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 except that in a
political subdivision other than a city with a population of one million
inhabitants or more or any district, board or agency with jurisdiction
exclusively therein the use of best value for awarding a purchase
contract or purchase contracts must be authorized by local law or, in
the case of a district corporation, school district or board of
cooperative educational services, by rule, regulation or resolution
adopted at a public meeting. 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 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 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 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. 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 pursuant 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 article,
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
designated 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
advertisement 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
designated for the submission and receipt of electronic bids and offers.
* NB Effective until March 1, 2024
* 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
furnishing the required security after advertisement for sealed bids in
the manner provided by this section, provided, however, 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) may 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 except that in a
political subdivision other than a city with a population of one million
inhabitants or more or any district, board or agency with jurisdiction
exclusively therein the use of best value for awarding a purchase
contract or purchase contracts must be authorized by local law or, in
the case of a district corporation, school district or board of
cooperative educational services, by rule, regulation or resolution
adopted at a public meeting. 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 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 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 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. 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 pursuant 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 article,
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. Provided however, the appropriate officer, board or
agency of a city with a population of one million inhabitants or more,
or any district, board or agency with jurisdiction exclusively within
such city, may authorize or require bids and offers for any contract to
be submitted in an electronic format. Bids and offers submitted in an
electronic format shall be transmitted by bidders and offerers to the
receiving device designated 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 advertisement 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 designated for the submission and
receipt of electronic bids and offers.
* NB Effective March 1, 2024 until June 1, 2028
* 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
furnishing the required security after advertisement for sealed bids in
the manner provided by this section, provided, however, 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) may 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 except that in a
political subdivision other than a city with a population of one million
inhabitants or more or any district, board or agency with jurisdiction
exclusively therein the use of best value of awarding a purchase
contract or purchase contracts must be authorized by local law or, in
the case of a district corporation, school district or board of
cooperative educational services, by rule, regulation or resolution
adopted at a public meeting. 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 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
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 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 or offers and readvertise for new
bids or offers in the manner provided by this section.
* NB Effective June 1, 2028
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
assembler 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.
* 1-b. A political subdivision or any district therein shall have the
option of purchasing information technology and telecommunications
hardware, software and professional services through cooperative
purchasing permissible pursuant to federal general services
administration information technology schedule seventy or any successor
schedule. A political subdivision or any district therein that purchases
through general services administration schedule seventy, information
technology and consolidated schedule contracts shall comply with federal
schedule ordering procedures as provided in federal acquisition
regulation 8.405-1 or 8.405-2 or successor regulations, whichever is
applicable. Adherence to such procedures shall constitute compliance
with the competitive bidding requirements under this section.
* NB Repealed July 31, 2024
* 1-c. In determining the lowest responsible bidder, the officer,
board or agency of any political subdivision or of any district therein
charged with awarding of contracts, shall consider whether or not the
bidder, or any "substantially owned-affiliated entity" as defined by
paragraph g of subdivision five of section two hundred twenty of the
labor law, has been found to be in violation of the Davis-Bacon Act
pursuant to 40 U.S.C. 3144, the Copeland Act pursuant to 18 U.S.C. 874
and 40 U.S.C. 3145 or the Contract Work Hours and Safety Standards Act
pursuant to 40 U.S.C. 332.
* NB Repealed March 18, 2024
* 2. Advertisement for bids and offers shall be published in the
official newspaper or newspapers, if any, or otherwise in a newspaper or
newspapers designated for such purpose and may be published in the
procurement opportunities newsletter pursuant to article four-C of the
economic development law. 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.
* NB Effective until March 1, 2024
* 2. Advertisement for bids and offers shall be published in the
official newspaper or newspapers, if any, or otherwise in a newspaper or
newspapers designated for such purpose and may be published in the
procurement opportunities newsletter pursuant to article four-C of the
economic development law. 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. Provided, however, the appropriate
officer, board or agency of a city with a population of one million
inhabitants or more, or any district, board or agency with jurisdiction
exclusively within such city, may conduct a public opening, reading and
identification by means of livestreaming on a publicly accessible
website listed in the advertisement at a time and date specified in such
advertisement, and post a record of such bids or offers and any other
required information on a website maintained or controlled by such
district, officer, board or agency on such date within five days. 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.
* NB Effective March 1, 2024 until June 1, 2028
* 2. Advertisement for bids and offers shall be published in the
official newspaper or newspapers, if any, or otherwise in a newspaper or
newspapers designated for such purpose and may be published in the
procurement opportunities newsletter pursuant to article four-C of the
economic development law. 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.
* NB Effective June 1, 2028
* 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 nine of the labor law, when available, through the county in
which the political subdivision or district is located or through any
county within 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 agency 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 agency 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.
* NB Effective until July 31, 2024
* 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 within 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 agency 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 agency 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.
* NB Effective July 31, 2024
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
property 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.
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
subdivision 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, 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 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 explanation of the reasons for its adoption.
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.
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
misdemeanor as provided in section one hundred three-e of this article.
8. Where municipal hospitals or nutrition programs that receive
federal, state, or local funding purchase goods, supplies and services
under joint contracts and arrangements entered into pursuant to section
twenty-eight hundred three-a of the public health law, they shall not be
required to comply with the provisions of subdivision one of this
section.
8-a. (a) Notwithstanding the foregoing provisions of this section, a
political subdivision, when letting contracts in accordance with this
subdivision for the purchase of food products, may require provisions
that mandate that the essential components of such food products are
grown, produced or harvested in New York state, or that any processing
of such food products take place in facilities located within New York
state.
(b) The commissioner of agriculture and markets shall determine, using
uniform criteria, those food products for which the requirements of this
subdivision are deemed beneficial. The commissioner shall promulgate a
list of such food products and ascertain those periods of time each year
that the listed food products are available in sufficient quantity for
competitive purchasing and shall forward such information upon request
to such political subdivisions that shall make determinations as
provided herein. The commissioner of agriculture and markets shall
update such list as often as he deems necessary.
(c) (i) Such political subdivision shall specify, with the advice of
the commissioner of agriculture and markets, the percentage of each food
product required to be grown, produced, harvested or processed within
New York state.
(ii) Upon a determination by such political subdivision that such food
products are not available in sufficient quantity for purchasing, the
specifications requiring such purchase shall be waived for that specific
food product until the next contract for such food product is let out
for bid.
(iii) Upon a determination by such political subdivision that food
processing facilities are not available for the processing of food
products purchased under specifications required by this section, the
specifications requiring such processing shall be waived.
(iv) In the event that such a political subdivision receives no
acceptable bids it may waive the provisions of this section and shall
award a contract in accordance with other applicable statutes. In
addition, if the commissioners of agriculture and markets and economic
development agree as to any deleterious economic impact of
specifications requiring such purchase, the provisions of this
subdivision may be waived by a political subdivision for such purchase.
(d) The commissioner of the office of general services and the
commissioner of agriculture and markets may issue such regulations as
they deem necessary to implement this subdivision and to assist
political subdivisions in complying with this subdivision.
(e) Notwithstanding any other provision of law, the department of
agriculture and markets shall supply information required by paragraph
(b) of this subdivision to the office of general services within one
hundred eighty days of the effective date of this subdivision.
(f) The commissioners of general services, agriculture and markets,
and economic development shall provide the legislature with a report on
the fifteenth day of January of the second year next succeeding the year
in which this subdivision became effective, and in their discretion
periodically report thereafter, on the effects of this subdivision and
on recommendations on ways to make it more effective.
9. (a) Notwithstanding the foregoing provisions of this section to the
contrary, a board of education, on behalf of its school district, or a
board of cooperative educational services, may separately purchase eggs,
livestock, fish, dairy products (excluding milk), juice, grains, and
species of fresh fruit and vegetables, grown, produced or harvested, in
New York State, provided that such order is for one hundred fifty
thousand dollars or less as herein authorized, provided however, that a
school district or board of cooperative educational services may apply
to the commissioner of education for permission to purchase orders of
more than one hundred fifty thousand dollars from an association of
owners of such farms when no other producers or growers have offered to
sell to such school.
(b) All such purchases shall be administered pursuant to regulations
promulgated by the commissioner of education. Such regulations shall: be
developed in consultation with the commissioner of agriculture and
markets to accommodate and promote the provisions of the farm-to-school
program established pursuant to subdivision five-b of section sixteen of
the agriculture and markets law and subdivision thirty-one of section
three hundred five of the education law as added by chapter two of the
laws of two thousand two; ensure that the prices paid by a district or
board of cooperative educational services for any items so purchased do
not exceed the prices of comparable local farm products that are
available to districts through their usual purchases of such items;
ensure that all producers and growers who desire to sell to school
districts or boards of cooperative educational services can readily
access information in accordance with the farm-to-school law; include
provisions for situations when more than one producer or grower seeks to
sell the same product to a district or board of cooperative educational
services to ensure that all such producers or growers have an equitable
opportunity to do so in a manner similar to the usual purchasing
practices of such districts or boards of cooperative educational
services; and, to the maximum extent practicable, minimize additional
paperwork, recordkeeping and other similar requirements on both growers
and producers and school districts.
9-a. Notwithstanding any provision of this section to the contrary, a
county may separately purchase eggs, livestock, fish, dairy products,
juice, grains, and species of fresh fruit and vegetables directly from
New York state producers or growers, or associations of producers and
growers, provided that:
(a) such association of producers or growers is comprised of ten or
fewer owners of farms who also operate such farms and who have combined
to fill the order of a county as herein authorized, provided however,
that a county may purchase from an association of more than ten owners
of such farms when no other producers or growers have offered to sell to
such county;
(b) the amount that may be expended by a county in any fiscal year for
such purchases shall not exceed the greater of:
(i) the expenditure threshold provided in subdivision one of this
section; or
(ii) twenty cents multiplied by the total population of such county;
(c) all such purchases shall be administered pursuant to policies and
procedures adopted by the county governing board and developed in
consultation with the commissioner of agriculture and markets. Such
policies and procedures shall ensure that the prices paid by a county
for any items so purchased do not exceed the prices of comparable local
farm products that are available to the political subdivision or
district therein through their usual purchases of such items; include
provisions for situations when more than one producer or grower seeks to
sell the same product to a county to ensure that all such producers or
growers have an equitable opportunity to do so in a manner similar to
the usual purchasing practices of such county; include guidelines for
the approval of purchases of items from associations of more than ten
growers or producers; and, to the maximum extent practicable, minimize
additional paperwork, recordkeeping and other similar requirements on
both growers and producers and counties.
10. Notwithstanding the foregoing provisions of this section to the
contrary, a board of education may, on behalf of its school district,
separately purchase milk produced in New York State, directly from
licensed milk processors pursuant to the provisions of this subdivision.
The amount that may be expended by a school district in any fiscal year
pursuant to this section shall not exceed an amount equal to twenty-five
cents multiplied by the total number of days in the school year
multiplied by the total enrollment of such school district. All
purchases made pursuant to this subdivision shall be administered
pursuant to regulations promulgated by the commissioner of education.
The regulations promulgated by the commissioner of education shall
ensure that the prices paid by a school district for items purchased
pursuant to this subdivision do not exceed the market value of such
items and that all licensed processors who desire to sell to a school
district pursuant to this subdivision have equal opportunities to do so.
11. Bid mistake; public projects. (a) In all contracts governed by
this section, where a unilateral error or mistake is discovered in a
bid, such bid may be withdrawn after a showing of the following: (1) the
mistake is known or made known to the awarding officer, board or agency
prior to the awarding of the contract or within three days after the
opening of the bid, whichever period is shorter; and (2) the price bid
was based on an error of such magnitude that enforcement would be
unconscionable; and (3) the bid was submitted in good faith and the
bidder submits credible evidence that the mistake was a clerical error
as opposed to a judgment error; and (4) the error in the bid is actually
due to an unintentional and substantial arithmetic error or an
unintentional omission of a substantial quantity of work, labor,
material, goods or services made directly in the compilation of the bid,
which unintentional arithmetic error or unintentional omission can be
clearly shown by objective evidence drawn from inspection of the
original work paper, documents, or materials used in the preparation of
the bid sought to be withdrawn; and (5) it is possible to place the
public agency, board, officer, or subdivision in status quo ante.
(b) Unless otherwise required by law, the sole remedy for a bid
mistake in accordance with this section shall be withdrawal of that bid
and the return of the bid bond or other security, if any, to the bidder.
Thereafter, the awarding officer, board or agency may, in its
discretion, award the contract to the next lowest responsible bidder or
rebid the contract. Any amendment to or reformation of a bid or a
contract to rectify such an error or mistake therein is strictly
prohibited.
12. Notwithstanding any other provision of this section or any other
provision of law, boards of education shall have the authority to
determine that a bidder on a contract for the purchase of apparel or
sports equipment is not a responsible bidder for purposes of subdivision
one of this section, based upon either or both of the following
considerations: (a) the labor standards applicable to the manufacture of
the apparel or sports equipment, including but not limited to employee
compensation, working conditions, employee rights to form unions, and
the use of child labor; or (b) the bidder's failure to provide
information sufficient for boards of education to determine the labor
standards applicable to the manufacture of the apparel or sports
equipment.
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 seeking to bid or enter into such contracts. If such officer,
board or agency maintains an appropriate list of qualified bidders, the
bidding shall be restricted to those who have qualified prior to the
receipt of bids according to standards fixed by such officer, board or
agency. In determining whether a prospective bidder qualifies for
inclusion on a list of pre-qualified bidders, the officer, board or
agency shall consider the experience and record of performance of the
prospective bidder in the particular type of work, as well as: (i) the
prospective bidder's ability to undertake the particular type and
complexity of work; (ii) the financial capability, responsibility and
reliability of the prospective bidder for such type and complexity of
work; (iii) the record of the prospective bidder in complying with
existing labor standards and maintaining harmonious labor relations;
(iv) the prospective bidder's compliance with equal employment
opportunity requirements and anti-discrimination laws, and demonstrated
commitment to working with minority and women-owned businesses through
joint ventures or subcontractor relationships; and (v) the record of the
prospective bidder in protecting the health and safety of workers on
public works projects and job sites as demonstrated by the prospective
bidder's experience modification rate for each of the last three years.
(b) Such public officer, board or agency shall, not less than
annually, publish in a newspaper of general circulation in such
political subdivision an advertisement requesting prospective bidders to
submit qualification statements. Lists of pre-qualified bidders may be
established on a project-specific basis. Prequalified lists shall
include all bidders that qualify; provided, however, that any such list
shall have no less than five bidders but shall remain open for all
additional qualified bidders. The public officer, board or agency's
procedures for prequalifying bidders 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-qualified bidders maintained by the county within which the
subdivision is located, if such list is maintained.
* 16. Notwithstanding the provisions of subdivisions one, two and
three of this section, and section one hundred four of this article, any
officer, board or agency of a political subdivision or of any district
therein authorized to make purchases of apparatus, materials, equipment
or supplies, or to contract for services related to the installation,
maintenance or repair of apparatus, materials, equipment, and supplies,
may make such purchases, or may contract for such services related to
the installation, maintenance or repair of apparatus, materials,
equipment, and supplies, as may be required by such political
subdivision or district therein through the use of a contract let by the
United States of America or any agency thereof, any state or any other
political subdivision or district therein if such contract was let to
the lowest responsible bidder or on the basis of best value in a manner
consistent with this section and made available for use by other
governmental entities; provided, however, that no political subdivision
or district therein, other than a city with a population of one million
or more inhabitants or any district, board or agency with jurisdiction
exclusively therein, may make such purchases or contract for such
services through the use of such a contract let on the basis of best
value in a manner consistent with this section unless the political
subdivision or district shall first adopt a local law, rule, regulation
or resolution, as the case may be, pursuant to subdivision one of this
section, authorizing the use of best value for awarding purchase
contracts.
The authority provided to political subdivisions and districts therein
pursuant to this subdivision shall not relieve any obligation of such
political subdivision or district therein to comply with any applicable
minority and women-owned business enterprise program mandates and the
preferred source requirements of section one hundred sixty-two of the
state finance law.
* NB Repealed June 30, 2026
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
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
furnishing the required security after advertisement for sealed bids in
the manner provided by this section, provided, however, 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) may 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 except that in a
political subdivision other than a city with a population of one million
inhabitants or more or any district, board or agency with jurisdiction
exclusively therein the use of best value for awarding a purchase
contract or purchase contracts must be authorized by local law or, in
the case of a district corporation, school district or board of
cooperative educational services, by rule, regulation or resolution
adopted at a public meeting. 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 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 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 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. 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 pursuant 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 article,
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
designated 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
advertisement 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
designated for the submission and receipt of electronic bids and offers.
* NB Effective until March 1, 2024
* 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
furnishing the required security after advertisement for sealed bids in
the manner provided by this section, provided, however, 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) may 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 except that in a
political subdivision other than a city with a population of one million
inhabitants or more or any district, board or agency with jurisdiction
exclusively therein the use of best value for awarding a purchase
contract or purchase contracts must be authorized by local law or, in
the case of a district corporation, school district or board of
cooperative educational services, by rule, regulation or resolution
adopted at a public meeting. 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 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 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 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. 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 pursuant 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 article,
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. Provided however, the appropriate officer, board or
agency of a city with a population of one million inhabitants or more,
or any district, board or agency with jurisdiction exclusively within
such city, may authorize or require bids and offers for any contract to
be submitted in an electronic format. Bids and offers submitted in an
electronic format shall be transmitted by bidders and offerers to the
receiving device designated 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 advertisement 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 designated for the submission and
receipt of electronic bids and offers.
* NB Effective March 1, 2024 until June 1, 2028
* 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
furnishing the required security after advertisement for sealed bids in
the manner provided by this section, provided, however, 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) may 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 except that in a
political subdivision other than a city with a population of one million
inhabitants or more or any district, board or agency with jurisdiction
exclusively therein the use of best value of awarding a purchase
contract or purchase contracts must be authorized by local law or, in
the case of a district corporation, school district or board of
cooperative educational services, by rule, regulation or resolution
adopted at a public meeting. 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 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
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 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 or offers and readvertise for new
bids or offers in the manner provided by this section.
* NB Effective June 1, 2028
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
assembler 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.
* 1-b. A political subdivision or any district therein shall have the
option of purchasing information technology and telecommunications
hardware, software and professional services through cooperative
purchasing permissible pursuant to federal general services
administration information technology schedule seventy or any successor
schedule. A political subdivision or any district therein that purchases
through general services administration schedule seventy, information
technology and consolidated schedule contracts shall comply with federal
schedule ordering procedures as provided in federal acquisition
regulation 8.405-1 or 8.405-2 or successor regulations, whichever is
applicable. Adherence to such procedures shall constitute compliance
with the competitive bidding requirements under this section.
* NB Repealed July 31, 2024
* 1-c. In determining the lowest responsible bidder, the officer,
board or agency of any political subdivision or of any district therein
charged with awarding of contracts, shall consider whether or not the
bidder, or any "substantially owned-affiliated entity" as defined by
paragraph g of subdivision five of section two hundred twenty of the
labor law, has been found to be in violation of the Davis-Bacon Act
pursuant to 40 U.S.C. 3144, the Copeland Act pursuant to 18 U.S.C. 874
and 40 U.S.C. 3145 or the Contract Work Hours and Safety Standards Act
pursuant to 40 U.S.C. 332.
* NB Repealed March 18, 2024
* 2. Advertisement for bids and offers shall be published in the
official newspaper or newspapers, if any, or otherwise in a newspaper or
newspapers designated for such purpose and may be published in the
procurement opportunities newsletter pursuant to article four-C of the
economic development law. 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.
* NB Effective until March 1, 2024
* 2. Advertisement for bids and offers shall be published in the
official newspaper or newspapers, if any, or otherwise in a newspaper or
newspapers designated for such purpose and may be published in the
procurement opportunities newsletter pursuant to article four-C of the
economic development law. 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. Provided, however, the appropriate
officer, board or agency of a city with a population of one million
inhabitants or more, or any district, board or agency with jurisdiction
exclusively within such city, may conduct a public opening, reading and
identification by means of livestreaming on a publicly accessible
website listed in the advertisement at a time and date specified in such
advertisement, and post a record of such bids or offers and any other
required information on a website maintained or controlled by such
district, officer, board or agency on such date within five days. 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.
* NB Effective March 1, 2024 until June 1, 2028
* 2. Advertisement for bids and offers shall be published in the
official newspaper or newspapers, if any, or otherwise in a newspaper or
newspapers designated for such purpose and may be published in the
procurement opportunities newsletter pursuant to article four-C of the
economic development law. 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.
* NB Effective June 1, 2028
* 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 nine of the labor law, when available, through the county in
which the political subdivision or district is located or through any
county within 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 agency 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 agency 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.
* NB Effective until July 31, 2024
* 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 within 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 agency 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 agency 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.
* NB Effective July 31, 2024
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
property 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.
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
subdivision 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, 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 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 explanation of the reasons for its adoption.
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.
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
misdemeanor as provided in section one hundred three-e of this article.
8. Where municipal hospitals or nutrition programs that receive
federal, state, or local funding purchase goods, supplies and services
under joint contracts and arrangements entered into pursuant to section
twenty-eight hundred three-a of the public health law, they shall not be
required to comply with the provisions of subdivision one of this
section.
8-a. (a) Notwithstanding the foregoing provisions of this section, a
political subdivision, when letting contracts in accordance with this
subdivision for the purchase of food products, may require provisions
that mandate that the essential components of such food products are
grown, produced or harvested in New York state, or that any processing
of such food products take place in facilities located within New York
state.
(b) The commissioner of agriculture and markets shall determine, using
uniform criteria, those food products for which the requirements of this
subdivision are deemed beneficial. The commissioner shall promulgate a
list of such food products and ascertain those periods of time each year
that the listed food products are available in sufficient quantity for
competitive purchasing and shall forward such information upon request
to such political subdivisions that shall make determinations as
provided herein. The commissioner of agriculture and markets shall
update such list as often as he deems necessary.
(c) (i) Such political subdivision shall specify, with the advice of
the commissioner of agriculture and markets, the percentage of each food
product required to be grown, produced, harvested or processed within
New York state.
(ii) Upon a determination by such political subdivision that such food
products are not available in sufficient quantity for purchasing, the
specifications requiring such purchase shall be waived for that specific
food product until the next contract for such food product is let out
for bid.
(iii) Upon a determination by such political subdivision that food
processing facilities are not available for the processing of food
products purchased under specifications required by this section, the
specifications requiring such processing shall be waived.
(iv) In the event that such a political subdivision receives no
acceptable bids it may waive the provisions of this section and shall
award a contract in accordance with other applicable statutes. In
addition, if the commissioners of agriculture and markets and economic
development agree as to any deleterious economic impact of
specifications requiring such purchase, the provisions of this
subdivision may be waived by a political subdivision for such purchase.
(d) The commissioner of the office of general services and the
commissioner of agriculture and markets may issue such regulations as
they deem necessary to implement this subdivision and to assist
political subdivisions in complying with this subdivision.
(e) Notwithstanding any other provision of law, the department of
agriculture and markets shall supply information required by paragraph
(b) of this subdivision to the office of general services within one
hundred eighty days of the effective date of this subdivision.
(f) The commissioners of general services, agriculture and markets,
and economic development shall provide the legislature with a report on
the fifteenth day of January of the second year next succeeding the year
in which this subdivision became effective, and in their discretion
periodically report thereafter, on the effects of this subdivision and
on recommendations on ways to make it more effective.
9. (a) Notwithstanding the foregoing provisions of this section to the
contrary, a board of education, on behalf of its school district, or a
board of cooperative educational services, may separately purchase eggs,
livestock, fish, dairy products (excluding milk), juice, grains, and
species of fresh fruit and vegetables, grown, produced or harvested, in
New York State, provided that such order is for one hundred fifty
thousand dollars or less as herein authorized, provided however, that a
school district or board of cooperative educational services may apply
to the commissioner of education for permission to purchase orders of
more than one hundred fifty thousand dollars from an association of
owners of such farms when no other producers or growers have offered to
sell to such school.
(b) All such purchases shall be administered pursuant to regulations
promulgated by the commissioner of education. Such regulations shall: be
developed in consultation with the commissioner of agriculture and
markets to accommodate and promote the provisions of the farm-to-school
program established pursuant to subdivision five-b of section sixteen of
the agriculture and markets law and subdivision thirty-one of section
three hundred five of the education law as added by chapter two of the
laws of two thousand two; ensure that the prices paid by a district or
board of cooperative educational services for any items so purchased do
not exceed the prices of comparable local farm products that are
available to districts through their usual purchases of such items;
ensure that all producers and growers who desire to sell to school
districts or boards of cooperative educational services can readily
access information in accordance with the farm-to-school law; include
provisions for situations when more than one producer or grower seeks to
sell the same product to a district or board of cooperative educational
services to ensure that all such producers or growers have an equitable
opportunity to do so in a manner similar to the usual purchasing
practices of such districts or boards of cooperative educational
services; and, to the maximum extent practicable, minimize additional
paperwork, recordkeeping and other similar requirements on both growers
and producers and school districts.
9-a. Notwithstanding any provision of this section to the contrary, a
county may separately purchase eggs, livestock, fish, dairy products,
juice, grains, and species of fresh fruit and vegetables directly from
New York state producers or growers, or associations of producers and
growers, provided that:
(a) such association of producers or growers is comprised of ten or
fewer owners of farms who also operate such farms and who have combined
to fill the order of a county as herein authorized, provided however,
that a county may purchase from an association of more than ten owners
of such farms when no other producers or growers have offered to sell to
such county;
(b) the amount that may be expended by a county in any fiscal year for
such purchases shall not exceed the greater of:
(i) the expenditure threshold provided in subdivision one of this
section; or
(ii) twenty cents multiplied by the total population of such county;
(c) all such purchases shall be administered pursuant to policies and
procedures adopted by the county governing board and developed in
consultation with the commissioner of agriculture and markets. Such
policies and procedures shall ensure that the prices paid by a county
for any items so purchased do not exceed the prices of comparable local
farm products that are available to the political subdivision or
district therein through their usual purchases of such items; include
provisions for situations when more than one producer or grower seeks to
sell the same product to a county to ensure that all such producers or
growers have an equitable opportunity to do so in a manner similar to
the usual purchasing practices of such county; include guidelines for
the approval of purchases of items from associations of more than ten
growers or producers; and, to the maximum extent practicable, minimize
additional paperwork, recordkeeping and other similar requirements on
both growers and producers and counties.
10. Notwithstanding the foregoing provisions of this section to the
contrary, a board of education may, on behalf of its school district,
separately purchase milk produced in New York State, directly from
licensed milk processors pursuant to the provisions of this subdivision.
The amount that may be expended by a school district in any fiscal year
pursuant to this section shall not exceed an amount equal to twenty-five
cents multiplied by the total number of days in the school year
multiplied by the total enrollment of such school district. All
purchases made pursuant to this subdivision shall be administered
pursuant to regulations promulgated by the commissioner of education.
The regulations promulgated by the commissioner of education shall
ensure that the prices paid by a school district for items purchased
pursuant to this subdivision do not exceed the market value of such
items and that all licensed processors who desire to sell to a school
district pursuant to this subdivision have equal opportunities to do so.
11. Bid mistake; public projects. (a) In all contracts governed by
this section, where a unilateral error or mistake is discovered in a
bid, such bid may be withdrawn after a showing of the following: (1) the
mistake is known or made known to the awarding officer, board or agency
prior to the awarding of the contract or within three days after the
opening of the bid, whichever period is shorter; and (2) the price bid
was based on an error of such magnitude that enforcement would be
unconscionable; and (3) the bid was submitted in good faith and the
bidder submits credible evidence that the mistake was a clerical error
as opposed to a judgment error; and (4) the error in the bid is actually
due to an unintentional and substantial arithmetic error or an
unintentional omission of a substantial quantity of work, labor,
material, goods or services made directly in the compilation of the bid,
which unintentional arithmetic error or unintentional omission can be
clearly shown by objective evidence drawn from inspection of the
original work paper, documents, or materials used in the preparation of
the bid sought to be withdrawn; and (5) it is possible to place the
public agency, board, officer, or subdivision in status quo ante.
(b) Unless otherwise required by law, the sole remedy for a bid
mistake in accordance with this section shall be withdrawal of that bid
and the return of the bid bond or other security, if any, to the bidder.
Thereafter, the awarding officer, board or agency may, in its
discretion, award the contract to the next lowest responsible bidder or
rebid the contract. Any amendment to or reformation of a bid or a
contract to rectify such an error or mistake therein is strictly
prohibited.
12. Notwithstanding any other provision of this section or any other
provision of law, boards of education shall have the authority to
determine that a bidder on a contract for the purchase of apparel or
sports equipment is not a responsible bidder for purposes of subdivision
one of this section, based upon either or both of the following
considerations: (a) the labor standards applicable to the manufacture of
the apparel or sports equipment, including but not limited to employee
compensation, working conditions, employee rights to form unions, and
the use of child labor; or (b) the bidder's failure to provide
information sufficient for boards of education to determine the labor
standards applicable to the manufacture of the apparel or sports
equipment.
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 seeking to bid or enter into such contracts. If such officer,
board or agency maintains an appropriate list of qualified bidders, the
bidding shall be restricted to those who have qualified prior to the
receipt of bids according to standards fixed by such officer, board or
agency. In determining whether a prospective bidder qualifies for
inclusion on a list of pre-qualified bidders, the officer, board or
agency shall consider the experience and record of performance of the
prospective bidder in the particular type of work, as well as: (i) the
prospective bidder's ability to undertake the particular type and
complexity of work; (ii) the financial capability, responsibility and
reliability of the prospective bidder for such type and complexity of
work; (iii) the record of the prospective bidder in complying with
existing labor standards and maintaining harmonious labor relations;
(iv) the prospective bidder's compliance with equal employment
opportunity requirements and anti-discrimination laws, and demonstrated
commitment to working with minority and women-owned businesses through
joint ventures or subcontractor relationships; and (v) the record of the
prospective bidder in protecting the health and safety of workers on
public works projects and job sites as demonstrated by the prospective
bidder's experience modification rate for each of the last three years.
(b) Such public officer, board or agency shall, not less than
annually, publish in a newspaper of general circulation in such
political subdivision an advertisement requesting prospective bidders to
submit qualification statements. Lists of pre-qualified bidders may be
established on a project-specific basis. Prequalified lists shall
include all bidders that qualify; provided, however, that any such list
shall have no less than five bidders but shall remain open for all
additional qualified bidders. The public officer, board or agency's
procedures for prequalifying bidders 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-qualified bidders maintained by the county within which the
subdivision is located, if such list is maintained.
* 16. Notwithstanding the provisions of subdivisions one, two and
three of this section, and section one hundred four of this article, any
officer, board or agency of a political subdivision or of any district
therein authorized to make purchases of apparatus, materials, equipment
or supplies, or to contract for services related to the installation,
maintenance or repair of apparatus, materials, equipment, and supplies,
may make such purchases, or may contract for such services related to
the installation, maintenance or repair of apparatus, materials,
equipment, and supplies, as may be required by such political
subdivision or district therein through the use of a contract let by the
United States of America or any agency thereof, any state or any other
political subdivision or district therein if such contract was let to
the lowest responsible bidder or on the basis of best value in a manner
consistent with this section and made available for use by other
governmental entities; provided, however, that no political subdivision
or district therein, other than a city with a population of one million
or more inhabitants or any district, board or agency with jurisdiction
exclusively therein, may make such purchases or contract for such
services through the use of such a contract let on the basis of best
value in a manner consistent with this section unless the political
subdivision or district shall first adopt a local law, rule, regulation
or resolution, as the case may be, pursuant to subdivision one of this
section, authorizing the use of best value for awarding purchase
contracts.
The authority provided to political subdivisions and districts therein
pursuant to this subdivision shall not relieve any obligation of such
political subdivision or district therein to comply with any applicable
minority and women-owned business enterprise program mandates and the
preferred source requirements of section one hundred sixty-two of the
state finance law.
* NB Repealed June 30, 2026