Sec. 1159.3. Definitions

(a) Advertisement.

(1) The publication of a notice of procurement opportunity in any of the following forums, as is appropriate: newspapers of general circulation in Erie and Niagara County; regional, State, national and international trade journals and magazines; newsletters, MBE/WBE/DBE/SDVOB publications that may exist from time to time and the authority website.

(2) The dissemination of a notice of procurement opportunity to three or more potential bidders, proposers, or suppliers by telephone, in writing or by e-mail.

(3) Any or all methods of advertisement as are herein defined may be utilized as is necessary and appropriate to promote competition under the guidelines.

(b) Allowable indirect costs.

Those costs generally associated with overhead that cannot be specifically identified with a single project or contract and are considered reasonable and allowable under specific State contract or allow ability limits.

(c) Board.

The authority board of commissioners.

(d) Competitive range.

All proposals that are determined to have a reasonable chance of being selected for award based upon price and other factors as stated in the notice of procurement opportunity or request for proposals (RFP).

(e) Contract for goods or services.

Any authorized written agreement; including contracts, purchase orders, letter agreements or memoranda of understanding, which creates a mutually binding legal relationship, which obligates the seller to furnish or dispose of products, services or public work, and the buyer to pay for same.

(f) Contractor.

Any individual (or group of individuals), business, firm, union, club, organization, or other entity obligated to sell, furnish, provide or render goods or services to the authority pursuant to a contract including sellers, consultants, vendors, suppliers and construction contractors.

(g) Cost-reimbursement (CR) type contract.

A general compensation arrangement which requires the authority to pay the consultant a fixed fee plus all allowable actual costs (as established by predetermined cost principles and rates) provided such costs and fee do not exceed the final negotiated contract price, as incurred by the consultant in performing the “agreed to” scope of work.

(h) Disadvantaged business enterprise (DBE).

Small business concern as defined pursuant to section 3 of the Small Business Act:

(1) which is at least 51 percent owned by one or more socially and economically disadvantaged individuals or, in the case of a publicly-owned business, at least 51 percent of the capital stock of which is owned by one or more socially and economically disadvantaged individual;

(2) whose management and daily business operations are controlled by one or more of the socially and economically disadvantaged individuals who own it.

(i) Discriminatory jurisdiction.

Any other country, nation, province, state or political subdivision thereof which employs a preference or price distorting mechanism to the detriment of or otherwise discriminates against a New York State business enterprise in the procurement of goods and services by the same or a non-governmental entity influenced by the same, as defined in section 2879 of the Public Authorities Law.

(j) Discussion.

Discussion is defined as any oral or written communication between the authority and an offer or, other than communication conducted for the purpose of minor clarification whether or not initiated by the authority, that:

(1) involves information essential for determining the acceptability of a proposal, or

(2) provides the offer or an opportunity to revise or modify its proposal.

(k) Emergency.

Danger or threat of harm to life, health, safety, environment or property which requires immediate action; provided, that an emergency procurement shall be made with such competition as is practicable under the circumstances and a written determination of the basis for the emergency and for the selection of the particular contractor shall be included in the procurement file. Emergency is a subcategory of “sole source”.

(l) Exigency.

Prospect of interruption to, or obstruction of, the authority’s efficient operation or adequate provision of service, arising from an unforeseen circumstance. Exigency is a subcategory of “sole source”.

(m) Expediency.

Prospect of an outcomes not in the best interest of the authority arising from adherence to the means and method of the procurement prescribed herein or, alternatively, adherence to these guidelines is impractical or inappropriate given all the existing circumstances, none of which were foreseeable or controllable by the authority. Expediency is a subcategory of “sole source.”

(n) Firm-fixed-price (FFP) type contract.

A general compensation arrangement which places the risk of performance for a lump sum on the contractor, regardless of the actual costs incurred by the contractor. The only allowable adjustments to the lump sum contract price are those arising from authorized changes in scope of services or changes in specifications.

(o) Foreign business enterprise.

A business enterprise, including a sole proprietorship, partnership or corporation, which offers for sale, lease or other form of exchange, goods sought by the authority and which are substantially produced outside New York State, or services, other than construction services, sought by the authority which are substantially performed outside New York State. For purposes of construction services, foreign business enterprise shall mean a business enterprise which has its principal place of business outside New York State.

(p) Labor surplus area firm.

A business entity which performs substantially in a labor surplus area (a geographical area as is defined by the U.S. Department of Labor as an area of concentrated unemployment, underemployment or labor surplus).

(q) Minority business enterprise (MBE).

Any business enterprise which is at least 51 percent owned by, or in the case of a publicly owned business, at least 51 percent of the common stock or other voting interests of which is owned by minority group members, and such ownership interest is real, substantial and continuing. The minority ownership must have and exercise the authority to independently control the business decisions of the entity. The enterprise must also be authorized to do business in New York State, be independently owned and operated, and not be dominant in its field. For the purposes of these guidelines minority group member shall have the meaning set forth in section 2879(3) of the Public Authorities Law.

(r) Negotiation.

Procurement by evaluation of proposals in the competitive range on the basis of pre-established and published selection criteria which criteria may be evaluated with price as a factor.

(s) New York State Contract Reporter.

A publication of procurement opportunities printed for the New York State Economic Development Bureau pursuant to the New York State Economic Development Law.

(t) Notice of procurement opportunity.

A written or verbal communication which shall identify the proposed procurement action and the terms of pursuing the opportunity.

(u) Procurement.

The buying, purchasing, renting, leasing, or other acquisition by the authority, of products, services, or public works, excepting:

(1) the purchase of periodicals, reference materials, treatises, or professional research tools;

(2) the payment of fees or tuition associated with continuing education courses, training courses, conferences, seminars and symposiums;

(3) expenditures governed by the authority’s “Travel Policy and Guidelines”;

(4) the purchase of advertising space or advertising time in any medium; and

(5) the purchase of catering services.

(v) Product.

Equipment, materials and supplies including, but not limited to, printing, insurance (except for health/welfare-related insurance required under a collective bargaining agreement pursuant to which the authority is bound) and leases of property excluding land or interests in land.

(w) Public work.

The construction, demolition, repair, rehabilitation, restoration or maintenance of any building, roadway, structure, fixture, facility or improvement owned by, or leased to, the authority and the authority or metro must be a party to the related contract. For the avoidance of doubt, a public work does not include the routine operation, repair, or maintenance of any existing public structure, building, or real property.

(x) Purchase.

The receipt of products, services or public works by the authority, in exchange for money, property, or other valuable consideration including like-kind trades.

(y) Qualifications based procurement.

A competitive procurement method under which competitors' qualifications are evaluated on the basis of pre-established and published selection criteria and negotiations are conducted with only the most qualified offer or. Price shall not be considered as a factor in determining the most qualified offer or.

(z) Responsible.

A potential contractor is responsible if it can demonstrate that it has the capability to perform fully and successfully under the terms of the proposed contract, taking into account the offeror's technical and financial capability, and the integrity and reliability necessary to ensure good faith performance.

(aa) Responsive.

A bid is responsive if it complies with the terms of the solicitation in all material respects, and it is completed, executed and submitted in accordance with the instructions in the solicitation.

(ab) Sealed bidding.

A competitive procurement method under which a contract is awarded to the lowest priced responsive, responsible bidder.

(ac) Service-disabled veteran-owned small business.

A business that is at least 51 percent owned and controlled by a service-disabled veteran, and the daily management operations of such business are controlled by a service-disabled veteran or caregiver of a service-disabled veteran, and such business must be a “small business,” as defined by the Small Business Administration.

(ad) Services.

A personal, professional, consulting, technical, or other service including, but not limited to, legal, testing, accounting, bookkeeping, secretarial, management consulting, audit, investment banking, planning, training, statistical research, insurance, advertising, public relations, architectural, engineering, appraisal, janitorial, surveying, housekeeping, and waste disposal, performed for a fee, commission or other compensation.

(ae) Single bid.

Two or more competitive bids are solicited and only one bid is received. A single bid is a subcategory of “sole source”.

(af) Single source.

The goods or services to be procured are available from only one responsible source; or no other goods or services will satisfy the authority's requirements; or prior State, Federal or board approval has been granted. Single source is a subcategory of “sole source”.

(ag) Small purchase.

The acquisition of goods or services having an actual price less than $100,000.

(ah) Small purchase formal bidding.

A small purchases method of procuring goods or services under $100,000, based upon competitive selection following the publication of a notice of procurement opportunity in the New York State Contract Reporter and the acceptance of sealed bids or proposals.

(ai) Small purchase informal bidding.

A small purchases method of procuring goods or services under $50,000, based upon competitive selection which may be made on the basis of written or telephonic quotes and in accordance with the guidelines set forth in section 1159.4(o)(3) of this Part; provided, however, that procurement requirements shall not be artificially divided in order to constitute a small purchase.

(aj) Sole source.

A general category of awards where competition is waivable, or is not feasible under the circumstances, as determined by the procurement department and authorized by the executive director. The included subcategories are: single bid; exigency; expedience, and single source.

(ak) Solicitation.

The process by which the authority contacts prospective vendors, suppliers or consultants to provide notice of a procurement opportunity and invite the submission of quotes, bids, proposals or statements of qualifications.

(al) Term contract.

A competitively procured contract based on qualifications, that allows the authority, at its discretion, to retain the services of the term consultant or term contractor, on a project-by-project basis, subject to pre-negotiated terms and conditions.

(am) Tied-bid.

The receipt of two or more equally low, responsive bids from responsible bidders. See section 1159.4(f)(4) of this Part.

(an) Time and material (T&M) contract.

A general compensation arrangement which provides for a fixed rate including overhead and profit, and material paid for at cost plus handling charges.

(ao) Women-owned business enterprise (WBE).

Any business enterprise which is at least 51 percent owned by, or in the case of a publicly owned business, at least 51 percent of the common stock or other voting interests of which is owned by citizens or permanent resident aliens who are women, and such ownership interest is real, substantial and continuing. Women business owners must have and exercise the authority to independently control the business decisions of the entity. The enterprise must also be authorized to do business in New York State, be independently owned and operated, and not be dominant in its field.

(ap) Procurement protocol.

The primary objective of procurement is to ensure and foster economy, efficiency and effectiveness in the acquisition of goods and services. To achieve these goals it is essential that all of the participants in the procurement process have a clear understanding of their roles and responsibilities. Set forth in this subdivision is a general outline of the various departmental functions to be fulfilled in the procurement process. The procurement department maintains a comprehensive written procurement systems manual based on these concepts.

(1) Procurement department.

(i) The procurement department shall be responsible for conducting the following minimum pre-procurement planning activities on at least an annual basis:

(a) forecasting the price and availability of items and materials for user departments;

(b) developing a purchasing schedule for IFBs and RFPs;

(c) establishing purchasing goals and objectives.

(ii) The functions of the procurement department shall be to:

(a) analyze the marketplace to determine the status of competition, technological developments, the impact of the economy on potential vendors, labor conditions, and changes in pricing or delivery methods;

(b) communicate and coordinate with similarly situated procurement departments to explore joint purchasing arrangements and to share marketplace information;

(c) analyze user department procurement requisitions to ensure the proper authorizations are present, and that the procurement is tailored to meet the authority’s needs and is not unnecessary or duplicative. Consideration should be given to consolidating or breaking out procurements to obtain a more economical purchase. Where appropriate, an analysis will be made of lease versus purchase alternatives and any other appropriate analysis to determine the most economical approach;

(d) prepare invitation for bids, requests for proposals, informal solicitations, and notices of procurement opportunity, as needed;

(e) administer the acquisition process, including: ensuring adequate advertisement of the notice of procurement opportunity; surveying sources; serving as contact for potential contractors; and accepting, opening, evaluating, and tabulating bids;

(f) remain current and in compliance with applicable Federal and State laws;

(g) maintain vendors files;

(h) maintain all support documentation including small purchases procurement authorization, small purchase tabulation and solicitation summary, single bid/proposal validation reports and single source validation report.

(2) User department (the department in need of and requesting the procurement of goods or services).

(i) It shall be the responsibility of each user department to evaluate its projected procurement needs on an annual basis, and to undertake and coordinate procurement planning activities with the procurement department, annually.

(ii) For the procurement of any product or service of $50,000, or more, the user department shall prepare a written requisition and submit same to the procurement department a minimum of three months prior to the desired delivery, bid opening, performance, or proposal due date. For purchases under $50,000, the requisitions shall be submitted to the procurement department 10 days in advance. The requisition shall serve as the mechanism by which the user department communicates its specific procurement need to the procurement department and it represents the beginning of the procurement process.

(iii) The requisition shall include the following elements:

(a) properly completed form per the authority’s requisition procedures; and

(b) budget; including proposed funding source by designation of the account funding code, estimated cost and basis for estimated cost; and

(c) specifications; completed in accordance with subdivision (o) of this section.

(iv) The user department is responsible for:

(a) managing all phases of the contract administration procedure;

(b) monitoring the performance of the contract to ensure compliance with its terms; and

(c) the final contract and/or purchase order in accordance with authority procedure 2-01-01, as amended from time to time.

(3) Engineering department.

(i) The engineering department shall serve as the user department for major public work projects.

(ii) The preparation and submittal of a requisition shall be required for public work projects which have been developed or identified under board authorization or which have received State or Federal funding approval.

(4) Internal audit. The internal audit department shall have responsibility for evaluating the adequacy and effectiveness of internal controls governing the procurement process and for providing cost analysis services upon the request of the procurement department and for conducting any necessary audits, such as those required by the Federal Buy America Act.

(5) Office of General Counsel. The Office of General Counsel shall provide interpretations of the procurement guidelines, advice to the user and procurement departments on statutory and regulatory compliance and assist in the board agenda process for awards requiring board approval. All issues regarding disqualification and/or release of a low bidder must be reviewed by the Office of General Counsel prior to a decision being made.

(6) EEO/diversity development department. The Office of EEO/Diversity Development shall develop DBE and MWBE goals. EEO/diversity development will monitor DBE and MWBE participation for Federal and State funded project. The EEO/diversity development department will also report DBE and MWBE utilization to appropriate Federal and State agencies.

(aq) Evaluating responsiveness and responsibility.

(1) Factors which should be considered by the authority in evaluating responsiveness should include the following considerations:

(i) Has all required information been provided?

(ii) Does the bid contain mistakes?

(iii) Has bidder failed to commit to a firm price?

(iv) Are there unacceptable qualifications or conditions tied to the bid?

(v) Has the bid been prepared in accordance with the bidding instructions?

(vi) Are unacceptable provisions included in the bid?

(vii) Has the bidder altered or limited any of the contract or solicitation provisions?

(viii) Has the bidder offered nonconforming products or services?

(ix) Has the bidder failed to acknowledge amendments to the IFB issued by the authority?

Note that the foregoing list is not exhaustive. Minor deviations which are immaterial and do not effect quantity, quality or delivery, may be waived by the authority if such waiver does not prejudice or affect the relative standing of the bidders.

(2) In evaluating the responsibility of an apparent low bidder or proposed subcontractor, the authority may consider, among other factors, whether the subjects’ record with the authority or other public owners includes or demonstrates:

(i) being listed on a Federal or State debarred contractors list;

(ii) poor prior performance on an authority contract;

(iii) lack of adequate expertise; prior experience with comparable projects; or financial resources necessary to perform the work outlined in the contract in timely, competent and acceptable manner. Evidence of such factors may include failure to submit satisfactory evidence of insurance, surety bonds, or financial responsibility; or a history of terminations for cause;

(iv) engagement in criminal conduct in connection with any other government contracts or the conduct of business activity that involves such crimes as extortion, racketeering, bribery, fraud, bid-rigging and embezzlement;

(v) grave disregard for the safety of employees, State personnel, or members of the public. Consideration will be given to whether employees who will be assigned to work on the project are properly trained and whether the equipment to be used is safe and functioning properly;

(vi) willful noncompliance with the State’s Labor Laws regarding prevailing wage and supplement payment requirements, including consideration of any pending violations;

(vii) disregard for other State Labor Laws, including child labor, proper and timely wage payments and unemployment insurance laws;

(viii) violations of the State Workers’ Compensation Law including failure to provide proof of proper workers’ compensation or disability coverage;

(ix) violations of the State’s Environmental Conservation Law or violations of any other Federal or State environmental statutes;

(x) the failure to abide by State and Federal statutes and regulations regarding efforts to solicit and utilize disadvantaged, minority and women-owned business enterprises as potential sub-contractors;

(xi) the submission of a bid which is mathematically or materially unbalanced;

(xii) the submission of a bid which is so much lower than the authority’s confidential engineer’s estimate that it appears unlikely that the contractor will be able to complete the project satisfactorily at the price bid;

(xiii) the presentation of false or misleading statements or any other issue that raises serious questions about the responsibility of the bidder or proposed subcontractor.