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SECTION 1265-A
Contracts
Public Authorities (PBA) CHAPTER 43-A, ARTICLE 5, TITLE 11
§ 1265-a. Contracts. 1. The provisions of this section shall only
apply to procurements by the authority commenced during the period from
April first, nineteen hundred eighty-seven until December thirty-first,
nineteen hundred ninety-one, and during the period from December
sixteenth, nineteen hundred ninety-three until June thirtieth, two
thousand twenty-three; provided, however, that the provisions of this
section shall not apply to (i) the award of any contract of the
authority if the bid documents for such contract so provide and such bid
documents are issued within sixty days of the effective date of this
section or within sixty days of December sixteenth, nineteen hundred
ninety-three, or (ii) for a period of one hundred eighty days after the
effective date of this section or for a period of one hundred eighty
days after December sixteenth, nineteen hundred ninety-three, the award
of any contract for which an invitation to bid, solicitation, request
for proposal, or any similar document has been issued by the authority
prior to the effective date of this section or during the period from
January first, nineteen hundred ninety-two until December sixteenth,
nineteen hundred ninety-three.

2. * (a) Except as otherwise provided in this section, all purchase
contracts for supplies, materials or equipment involving an estimated
expenditure in excess of one million dollars and all contracts for
public work involving an estimated expenditure in excess of one million
dollars shall be awarded by the authority to the lowest responsible
bidder after obtaining sealed bids in the manner hereinafter set forth.
For purposes hereof, contracts for public work shall exclude contracts
for personal, engineering and architectural, or professional services.
The authority may reject all bids and obtain new bids in the manner
provided by this section when it is deemed in the public interest to do
so or, in cases where two or more responsible bidders submit identical
bids which are the lowest bids, award the contract to any of such
bidders or obtain new bids from such bidders. Nothing in this paragraph
shall obligate the authority to seek new bids after the rejection of
bids or after cancellation of an invitation to bid. Nothing in this
section shall prohibit the evaluation of bids on the basis of costs or
savings including life cycle costs of the item to be purchased,
discounts, and inspection services so long as the invitation to bid
reasonably sets forth the criteria to be used in evaluating such costs
or savings. Life cycle costs may include but shall not be limited to
costs or savings associated with installation, energy use, maintenance,
operation and salvage or disposal.

* NB Effective until April 1, 2024

* (a) Except as otherwise provided in this section, all purchase
contracts for supplies, materials or equipment involving an estimated
expenditure in excess of fifteen thousand dollars and all contracts for
public work involving an estimated expenditure in excess of twenty-five
thousand dollars shall be awarded by the authority to the lowest
responsible bidder after obtaining sealed bids in the manner hereinafter
set forth. For purposes hereof, contracts for public work shall exclude
contracts for personal, engineering and architectural, or professional
services. The authority may reject all bids and obtain new bids in the
manner provided by this section when it is deemed in the public interest
to do so or, in cases where two or more responsible bidders submit
identical bids which are the lowest bids, award the contract to any of
such bidders or obtain new bids from such bidders. Nothing herein shall
obligate the authority to seek new bids after the rejection of bids or
after cancellation of an invitation to bid. Nothing in this section
shall prohibit the evaluation of bids on the basis of costs or savings
including life cycle costs of the item to be purchased, discounts, and
inspection services so long as the invitation to bid reasonably sets
forth the criteria to be used in evaluating such costs or savings. Life
cycle costs may include but shall not be limited to costs or savings
associated with installation, energy use, maintenance, operation and
salvage or disposal.

* NB Effective April 1, 2024

* (b) Section twenty-eight hundred seventy-nine of this chapter shall
apply to the authority's acquisition of goods or services of any kind,
in the actual or estimated amount of fifteen thousand dollars or more,
provided (i) that a contract for services in the actual or estimated
amount of one million dollars or less shall not require approval by the
board of the authority regardless of the length of the period over which
the services are rendered, and provided further that a contract for
services in the actual or estimated amount in excess of one million
dollars shall require approval by the board of the authority regardless
of the length of the period over which the services are rendered unless
such a contract is awarded to the lowest responsible bidder after
obtaining sealed bids, and (ii) the board of the authority may by
resolution adopt guidelines that authorize the award of contracts to
small business concerns, to service disabled veteran owned businesses
certified pursuant to article seventeen-B of the executive law, or
minority or women-owned business enterprises certified pursuant to
article fifteen-A of the executive law, or purchases of goods or
technology that are recycled or remanufactured, in an amount not to
exceed one million dollars without a formal competitive process and
without further board approval. The board of the authority shall adopt
guidelines which shall be made publicly available for the awarding of
such contract without a formal competitive process.

* NB Effective until April 1, 2024

* (b) Section twenty-eight hundred seventy-nine of this chapter shall
apply to the authority's acquisition of goods or services of any kind,
in the actual or estimated amount of fifteen thousand dollars or more,
provided that a contract for personal services in the actual or
estimated amount of less than twenty thousand dollars shall not require
approval by the board of the authority regardless of the length of the
period over which the services are rendered, and provided further that a
contract for personal services in the actual or estimated amount of
twenty thousand dollars or more shall require approval by the board of
the authority regardless of the length of the period over which the
services are rendered.

* NB Effective April 1, 2024

(c)(1) Notwithstanding the provisions of paragraph (a) of this
subdivision, the authority shall establish guidelines governing the
qualifications of bidders entering into contracts for its project to
bring the Long Island Rail Road into Grand Central Terminal ("East Side
Access Project"). The bidding may be restricted to those who have
qualified prior to the receipt of bids according to standards fixed by
the authority; provided, however, that the award of contracts shall, to
the extent not inconsistent with this paragraph, be in accordance with
paragraph (a) of this subdivision.

(2) In determining whether a prospective bidder qualifies for the
inclusion on a list of prequalified bidders for the East Side Access
Project, the authority shall consider: (i) the experience and past
performance of the prospective bidder; (ii) the prospective bidder's
ability to undertake work, including but not limited to whether it
participates in state approved apprenticeship programs and whether it
utilizes employees who are represented by labor organizations; (iii) the
financial capability and responsibility of the prospective bidder; and
(iv) the records of the prospective bidder in complying with existing
labor standards. The authority may also consider such other factors as
it deems appropriate.

3. (a) Advertisement for bids, when required by this section, shall be
published at least once in a newspaper of general circulation in the
area served by the authority and in the procurement opportunities
newsletter published pursuant to article four-C of the economic
development law provided that, notwithstanding the provisions of article
four-C of the economic development law, an advertisement shall only be
required for a purchase contract for supplies, materials or equipment
when required by this section. Publication in a newspaper of general
circulation in the area served or in the procurement opportunities
newsletter shall not be required if bids for contracts for supplies,
materials or equipment are of a type regularly purchased by the
authority and are to be solicited from a list of potential suppliers, if
such list is or has been developed consistent with the provisions of
subdivision six of this section. Any such advertisement shall contain a
statement of: (i) the time and place where bids received pursuant to any
notice requesting sealed bids will be publicly opened and read; (ii) the
name of the contracting agency; (iii) the contract identification
number; (iv) a brief description of the public work, supplies,
materials, or equipment sought, the location where work is to be
performed, goods are to be delivered or services provided and the
contract term; (v) the address where bids or proposals are to be
submitted; (vi) the date when bids or proposals are due; (vii) a
description of any eligibility or qualification requirement or
preference; (viii) a statement as to whether the contract requirements
may be fulfilled by a subcontracting, joint venture, or co-production
arrangement; (ix) any other information deemed useful to potential
contractors; and (x) the name, address, and telephone number of the
person to be contacted for additional information. At least fifteen
business days shall elapse between the first publication of such
advertisement or the solicitation of bids, as the case may be, and the
date of opening and reading of bids.

(b) The authority may designate any officer or employee to open the
bids at the time and place bids are to be opened and may designate an
officer to award the contract to the lowest responsible bidder. Such
designee shall make a record of all bids in such form and detail as the
authority shall prescribe. All bids received shall be publicly opened
and read at the time, place and in the manner specified in the
advertisement or at the time of solicitation, or to which the opening
and reading or posting have been adjourned by the authority, provided
that any sealed bid may be received and secured through an electronic
platform as permitted by the authority, and that any sealed bid received
electronically is made public at the same time as any competing paper
bid. The authority shall, at minimum, provide the same opportunity and
time for submitting sealed bids physically as for sealed bids submitted
electronically, and shall provide the opportunity for bidders to submit
sealed bids physically any time that it provides the opportunity to
submit sealed electronic bids. In addition, the authority shall
establish a process for accommodating force majeure events that prevent
the submission of a sealed electronic bid, including but not limited to
internet and power outage events, and for automatically confirming
receipt of any sealed electronic bid received. All bidders shall be
notified of the time and place of any such adjournment.

4. Notwithstanding the foregoing, the authority may, by resolution
approved by a two-thirds vote of its members then in office, or by a
majority vote of its members with respect to contracts proposed to be
let pursuant to paragraph (a) of this subdivision declare that
competitive bidding is impractical or inappropriate because of the
existence of any of the circumstances hereinafter set forth and
thereafter the authority may proceed to award contracts without
complying with the requirements of subdivision two or three of this
section. In each case where the authority declares competitive bidding
impractical or inappropriate, it shall state the reason therefor in
writing and summarize any negotiations that have been conducted. Except
for contracts awarded pursuant to paragraphs (a), (b), (c) and (e) of
this subdivision, the authority shall not award any contract pursuant to
this subdivision earlier than thirty days from the date on which the
authority declares that competitive bidding is impractical or
inappropriate. Competitive bidding may only be declared impractical or
inappropriate where:

(a) the existence of an emergency involving danger to life, safety or
property requires immediate action and cannot await competitive bidding
or the item to be purchased is essential to efficient operation or the
adequate provision of service and as a consequence of unforeseen
circumstance such purchase cannot await competitive bidding;

(b) the item to be purchased is available only from a single
responsible source, provided that if bids have not been solicited for
such item pursuant to subdivision two of this section within the
preceding twelve months public notice shall first be given pursuant to
subdivision three of this section;

(c) the authority receives no responsive bids or only a single
responsive bid in response to an invitation for competitive bids;

(d) the authority wishes to experiment with or test a product or
technology or new source for such product or technology or evaluate the
service or reliability of such product or technology;

(e) the item is available through an existing contract between a
vendor and (i) another public authority provided that such other
authority utilized a process of competitive bidding or a process of
competitive requests for proposals to award such contracts or (ii)
Nassau county, or (iii) the state of New York or (iv) the city of New
York, provided that in any case when under this paragraph the authority
determines that obtaining such item thereby would be in the public
interest and sets forth the reasons for such determination. The
authority shall accept sole responsibility for any payment due the
vendor as a result of the authority's order; or

(f) the authority determines that it is in the public interest to
award contracts pursuant to a process for competitive requests for
proposals as hereinafter set forth. For purposes of this section, a
process for competitive requests for proposals shall mean a method of
soliciting proposals and awarding a contract on the basis of a formal
evaluation of the characteristics, such as quality, cost, delivery
schedule and financing of such proposals against stated selection
criteria. Public notice of the requests for proposals shall be given in
the same manner as provided in subdivision three of this section and
shall include the selection criteria. In the event the authority makes a
material change in the selection criteria from those previously stated
in the notice, it will inform all proposers of such change and permit
proposers to modify their proposals.

* (i) Except for a contract with a value of one hundred million
dollars or less that is awarded pursuant to this paragraph to the
proposer whose proposal is the lowest cost, the authority may award a
contract pursuant to this paragraph only after a resolution approved by
a two-thirds vote of its members then in office at a public meeting of
the authority with such resolution (A) disclosing the other proposers
and the substance of their proposals, (B) summarizing the negotiation
process including the opportunities, if any, available to proposers to
present and modify their proposals, and (C) setting forth the criteria
upon which the selection was made provided however that for purposes of
this subparagraph the board may, at its discretion, require such a
resolution be approved for contracts with a value of one hundred million
dollars or less.

* NB Effective until April 1, 2024

* (i) The authority may award a contract pursuant to this paragraph
only after a resolution approved by a two-thirds vote of its members
then in office at a public meeting of the authority with such resolution
(A) disclosing the other proposers and the substance of their proposals,
(B) summarizing the negotiation process including the opportunities, if
any, available to proposers to present and modify their proposals, and
(C) setting forth the criteria upon which the selection was made.

* NB Effective April 1, 2024

(ii) Nothing in this paragraph shall require or preclude (A)
negotiations with any proposers following the receipt of responses to
the request for proposals, or (B) the rejection of any or all proposals
at any time. Upon the rejection of all proposals, the authority may
solicit new proposals or bids in any manner prescribed in this section.

(g) the authority issues a competitive request for proposals pursuant
to the procedures of paragraph (f) of this subdivision for the purchase
or rehabilitation of rail cars and omnibuses. Any such request may
include among the stated selection criteria the performance of all or a
portion of the contract at sites within the state of New York or the use
of goods produced or services provided within the state of New York,
provided however that in no event shall the authority award a contract
to a manufacturer whose final offer, as expressed in unit cost is more
than ten percent higher than the unit cost of any qualified competing
final offer, if the sole basis for such award is that the higher priced
offer includes more favorable provision for the performance of the
contract within the state of New York or the use of goods produced or
services provided within the state of New York, and further provided
that the authority's discretion to award a contract to any manufacturer
shall not be so limited if a basis for such award, as determined by the
authority, is superior financing, delivery schedule, life cycle,
reliability, or any other factor the authority deems relevant to its
operations.

* (i) Except for a contract with a value of one hundred million
dollars or less that is awarded pursuant to this paragraph to the
proposer whose proposal is the lowest cost, the authority may award a
contract pursuant to this paragraph only after a resolution approved by
a vote of not less than a two-thirds vote of its members then in office
at a public meeting of the authority with such resolution (A) disclosing
the other proposers and the substance of their proposals, (B)
summarizing the negotiation process including the opportunities, if any,
available to proposers to present and modify their proposals, and (C)
setting forth the criteria upon which the selection was made provided
however that for purposes of this subparagraph the board may, at its
discretion, require such a resolution be approved for contracts with a
value of one hundred million dollars or less.

* NB Effective until April 1, 2024

* (i) The authority may award a contract pursuant to this paragraph
only after a resolution approved by a vote of not less than a two-thirds
vote of its members then in office at a public meeting of the authority
with such resolution (A) disclosing the other proposers and the
substance of their proposals, (B) summarizing the negotiation process
including the opportunities, if any, available to proposers to present
and modify their proposals, and (C) setting forth the criteria upon
which the selection was made.

* NB Effective April 1, 2024

(ii) Nothing in this paragraph shall require or preclude (A)
negotiations with any proposers following the receipt of responses to
the request for proposals, or (B) the rejection of any or all proposals
at any time. Upon the rejection of all proposals, the authority may
solicit new proposals or bids in any manner prescribed in this section.

5. Upon the adoption of a resolution by the authority stating, for
reasons of efficiency, economy, compatibility or maintenance
reliability, that there is a need for standardization, the authority may
establish procedures whereby particular supplies, materials or equipment
are identified on a qualified products list. Such procedures shall
provide for products or vendors to be added to or deleted from such list
and shall include provisions for public advertisement of the manner in
which such lists are compiled. The authority shall review such list no
less than twice a year for the purpose of making such modifications.
Contracts for particular supplies, materials or equipment identified on
a qualified products list may be awarded by the authority to the lowest
responsible bidder after obtaining sealed bids in accordance with this
section or without competitive sealed bids in instances when the item is
available from only a single source, except that the authority may
dispense with advertising provided that it mails copies of the
invitation to bid to all vendors of the particular item on the qualified
products list.

6. The authority shall compile a list of potential sources of
supplies, materials or equipment regularly purchased. The authority
shall, by resolution, set forth the procedures it has established to
identify new sources and to notify such new sources of the opportunity
to bid for contracts for the purchase of supplies, materials or
equipment. Such procedures shall include, but not be limited to: (a)
advertising in trade journals; (b) cooperation with federal, state and
local agencies within its area of operations; (c) publication in the
state register quarterly; and (d) procedures established pursuant to
subdivision thirteen of section twelve hundred sixty-six-c of this
article.

7. The provisions of this section shall not supersede any other
provisions of law relative to purchases of products or devices
manufactured or provided by the blind or other severely handicapped
persons, to the invitation and acceptance of bids from small or minority
business enterprises or to the purchases of supplies, materials or
equipment through the office of general services. Except as may
otherwise be provided by law or as more restrictively defined in the
official policy or bid specifications of the authority, the term "small
business" means a small business or similar term, under federal
regulations applicable to projects of the authority which are federally
assisted.

* 8. Notwithstanding any other provisions in this section, the
authority shall be allowed to use an electronic bidding system for the
purchase of goods, materials, and commodities that may inform bidders
whether their bid is the current low bid, and allow bidders to submit
new bids before the date and time assigned for the opening of bids. Such
procedure shall not constitute disclosure of bids in violation of
section twenty-eight hundred seventy-eight of this chapter.

* NB Effective until April 1, 2024

* 8. The provisions of this section shall not apply to any procurement
made by any other public entity not otherwise required by law to award
contracts for such purchases to the lowest responsible bidder if such
purchases are made at the sole cost and expense of such entity.

* NB Effective April 1, 2024

* 9. The provisions of this section shall not apply to any procurement
made by any other public entity not otherwise required by law to award
contracts for such purchases to the lowest responsible bidder if such
purchases are made at the sole cost and expense of such entity.

* NB Repealed April 1, 2024

10. (a) Whenever the comptroller pursuant to section twenty-eight
hundred seventy-nine-a of this chapter intends to require supervision in
the form of prior review and approval of a contract or contract
amendment to be awarded by the authority pursuant to this section, then
such contract or contract amendment shall be submitted to the
comptroller by the authority for approval and shall not be a valid
enforceable contract unless it shall first have been approved by the
comptroller but only if the comptroller has notified the authority of
such determination within thirty days of having received written notice
of such contract or contract amendment either in the authority's annual
report or any revised report;

(b) If the comptroller has timely notified the authority as provided
in paragraph (a) of this subdivision that any contract or contract
amendment shall be subject to comptroller prior review and approval, and
such contract or contract amendment has been submitted to the
comptroller, it shall become valid and enforceable without such approval
if the comptroller has not approved or disapproved it within thirty days
of submission to the comptroller.