PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following proposed rule:
Proposed Action:
This is a consensus rule making to amend sections 1159.4 and 1159.5 of Title 21 NYCRR.
Statutory authority:
Public Authorities Law, sections 1299-e(5) and 1299-t
Subject:
NFTA's Procurement Guidelines.
Purpose:
To amend the NFTA's Procurement Guidelines to make technical changes and conform to Federal and State law.
Text of proposed rule:
Subsection (3) to subdivision (h) of section 1159.4 is amended to add a new subsection (v) follows:
(v) The published selection criteria shall be as follows: Professional Services, 40% qualifications and experience, 30% technical criteria and 30% cost; Revenue Generating and Other Services, 20% qualifications and experience, 30% technical criteria and 50% cost; Technical/Operation Sensitive Services, 20% qualifications and experience, 40% technical criteria and 40% cost; Transit Buses, 20% qualifications and experience, 50% technical criteria and 30% cost.
Subsections (v), (vi), (vii) and (viii) to subdivision (h) of section 1159.4 are renumbered (vi), (vii), (viii) and (ix).
Subsection (vii) to subsection (2) of subdivision (i) of section 1159.4 is amended as follows:
(vii) The selection board, at its option may conduct interviews, presentations, and/or discussions. If this option is elected, interviews, presentation, and/or discussions must be held with each consultant who has submitted a technical proposal if the initial solicitation was by way of RFQ. If not, interviews, presentations, and/or discussions must be held with each consultant in the competitive range in accordance with the evaluation of the technical proposals.
A new subdivision (j) of section 1159.4 is added as follows:
(j) Options. An option is a unilateral right in a contract by which, for a specified time, the Authority may acquire additional equipment, supplies, or services than originally procured. An option may also extend the term of the contract. An option must be evaluated as part of the original contract award. In addition, for procurements funded by the Federal Transit Administration, a cost and price analysis must be conducted at the time of exercise of the option in order to ensure that the option price is still fair and reasonable.
Subdivisions (j), (k), (l), (m), (n), (o), (p), (q), (r), (s), (t), (u), (v) and (w) of section 1159.4 are renumbered (k), (l), (m), (n), (o), (p), (q), (r), (s), (t), (u), (v), (w) and (x).
A new subsection (5) is added to subdivision (l) of section 1159.4 as follows:
(5) All eligible contracts for the purchase of goods or services which are to be awarded on a single source basis, sole source basis or pursuant to any other method of procurement that is not a competitive procurement and where the aggregate consideration under the contract may reasonably be valued in excess of $1,000,000 and eligible amendments to contracts previously approved by the Comptroller where the value of the amendment is 10% or more of the contract amount previously approved by the Comptroller are subject to the prior review and approval of the New York State Comptroller. Please refer to section 2979-a of the Public Authorities Law and Part 206 to 2 N.Y.C.R.R. for relevant definitions and the process to be followed.
A new subsection (2) is added to subdivision (q) of section 1159.4 as follows:
(2) The Federal Aviation Administration and the Federal Transit Administration each have specific criteria for the procurement of Design-Bid-build and Design-build contracts. Please refer to the relevant Advisory Circular for specific requirements.
A new subsection (3) is added to subdivision (q) of section 1159.4 as follows:
(3) The Federal Aviation Administration and the Federal Transit Administration each prohibit the use of in-State or local geographical preferences, with the exception of architectural and engineering services.
A new subsection (4) is added to subdivision (q) of section 1159.4 as follows:
(4) The Federal Aviation Administration and the Federal Transit Administration require a cost analysis or a price analysis in connection with every procurement action.
A new subsection (5) is added to subdivision (q) of section 1159.4 as follows:
(5) The Federal Transit Administration requires the use of Part 31 of the Federal Acquisition Regulations with respect to pricing issues.
A new subsection (6) is added to subdivision (q) of section 1159.4 as follows:
(6) The Federal Transit Administration has specific rules governing advance payments and progress payments. Advance payments are prohibited. Progress payments are permitted provided that title has been obtained. Please refer to FTA Circular 4220.1F.
Subsection (2) to subdivision (q) of section 1159.4 is renumbered to (7).
Subsection (2) to subdivision (s) of section 1159.4 is amended as follows:
(2) [The director, EEO/diversity development, shall maintain a list of all MBE, WBE and DBE entities certified to perform public work, supply items for purchase contracts, or perform personal or professional services of a kind and nature which may be needed by the authority.] An updated list of all DBE certified firms in New York State may be obtained from the New York State Unified Certification Program website at www.biznet.nysucp.net. A directory of MWBE certified firms may be obtained from the New York State MWBE webiste at www.nylovesmwbe.ny.gov. The Procurement Department shall be responsible for referencing such lists prior to the publication of a notice of procurement opportunity or informal solicitation to determine the availability of certified DBE, MBE and WBE entities.
A new subsection (3) to subdivision (s) of section 1159.4 is added as follows:
(3) The Director, EEO/Diversity Development shall ensure that the Authority establishes appropriate goals for participation by minority or women-owned business enterprises in procurement contracts awarded by the Authority and for the utilization of minority and women-owned business enterprises as subcontractors and suppliers by entities having procurement contracts with the Authority. Statewide numerical participation target goals shall be established by the Authority based on the findings of the 2010 disparity study.
A new subsection (4) to subdivision (s) of section 1159.4 is added as follows:
(4) Every effort will be made to achieve the MWBE goals assigned to projects. The Authority's procurement solicitation documents shall include MWBE goals as appropriate. These documents are advertised and posted on the Authority's website. MWBE utilization will be monitored and reported by the EEO/Diversity Development Department with assistance from the Engineering and Procurement Departments.
A new subsection (5) to subdivision (v) of section 1159.4 is added as follows:
(5) The Federal Transit Administration prohibits cardinal changes, defined as significant changes in contract work that cause major deviations from the original purpose of the work or the intended method of achievement, or cause revisions of contract work so extensive, significant, or cumulative that, in effect, the contractor is required to perform very different work from that described in the original contract. Please refer to FTA Circular 4220.1F for further information.
A new subdivision (y) of section 1159.4 is added as follows:
(y) Waiver of competition pursuant to section 2879 of the public authorities law. Pursuant to section 2879 of the Public Authorities Law the Board may waive competition for the purchase of goods or services from small business concerns or those certified as minority- or women-owned business enterprises, or goods or technology that are recycled or remanufactured, in an amount not-to-exceed $200,000.00. Such a waiver may only be granted for non-federally funded purchases and shall require a two-thirds vote of the Members in attendance at a Meeting of the Board.
Subdivisions (x), (y), (z), (aa), (ab), (ac) and (ad) of section 1159.4 are renumbered to (z), (aa), (ab), (ac), (ad), (ae) and (af).
A new subsection (6) to subdivision (ab) of section 1159.4 is added as follows:
(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.
Subsection (5) to subdivision (b) of section 1159.5 is amended as follows:
(5) Protestor's Appeal to Federal or State Agencies. In the event [that the Authority fails to abide by the protest procedures set forth above, and] federal or state funds are participating in the procurement, then the protestor may seek a review by the appropriate funding agency. The Federal Transit Administration will only consider a protest if the Authority (a) does not have protest procedures, (b) has not complied with its protest procedures, or (c) has not reviewed the protest when given the opportunity to do so. The Federal Transit Administration will exercise discretionary jurisdiction over those appeals involving issues important to the Federal Transit Administration's overall public transportation program.
Protestors shall file such a protest not later than five (5) business days after a final decision is rendered under the Authority's protest procedure. In instances where the protestor alleges that the Authority failed to make a final determination on the protest, protestors shall file a protest with the appropriate agency not later than five (5) business days after the protestor knew or should have known of Authority's failure to render a final determination on the protest.
Text of proposed rule and any required statements and analyses may be obtained from:
Ruth A. Keating, Niagara Frontier Transportation Authority, 181 Ellicott Street, Buffalo, New York 14203, (716) 855-7398, email: Ruth_Keating@nfta.com
Data, views or arguments may be submitted to:
Same as above.
Public comment will be received until:
45 days after publication of this notice.
Consensus Rule Making Determination
The Niagara Frontier Transportation Authority has determined that no person is likely to object to the rule being amended for the following reasons:
1. The major changes are to conform to state law requirements.
2. The changes are not controversial.
Job Impact Statement
The Niagara Frontier Transportation Authority has determined adoption of the proposed rule will have no impact on jobs or employment opportunities for the following reasons:
1. The subject of the proposed rule is to conform to changes in state law. Changes to the rules will not impact the level of procurements made by the NFTA, and therefore will not impact jobs or employment opportunities.
