AS RE-APPROVED 4-27-2011
101. These guidelines are adopted pursuant to the provisions of § 2879 of the Public Authorities Law and shall be reviewed and approved by the Corporation at least annually.
201. Definitions. The following terms shall, for purposes of these guidelines, have the following meanings unless the context shall clearly indicate some other meanings:
301. Use of Procurement Services Contractors. It is the preference of the directors that services needed by the Corporation be performed by the Corporation employees whenever feasible and economical and that, when procurement contracts are used, contractors be selected from as broad a spectrum of providers as is practical and contracts be awarded consistent with the quality of services required at fair and reasonable prices. Personal services contractors shall be used only when it has been determined by an officer that such service is necessary to the Corporation and (1) that such service is not available from a Corporation employee, or (2) that the performance of such a service requires that it be undertaken by someone independent of the Corporation, or (3) that use of the Corporation employees for such service would not be cost effective. Personal services the Corporation requires are:
The Corporation needs to use outside contractors for the above-enumerated personal services because the expertise required is specialized and the need for the service is not sufficiently constant to justify the employment of personnel with such expertise.
302. Types of Goods Purchased. The types of goods the Corporation requires includes but is not limited to goods of any kind in the actual or estimated amount of five thousand dollars or more.
303. Selection of Procurement Contractors. The Corporation shall select procurement contractors in accordance with the following selection methods:
1. General Requirements
a. Preferred Sources. The Corporation must purchase such goods or services as are available from preferred sources, to the extent required by the Procurement Stewardship Act of 1995.
b. Solicitation of Informal Bids or Proposals. Procurement contracts in the actual or estimated amount of no more than $50,000 may be awarded following an informal solicitation of bids or proposals from no fewer than three potential contractors. Contracts shall be awarded based on such reasonable criteria as the Corporation shall devise.
c. OGS Centralized Contracts. The Corporation may purchase such goods or services as are available on a centralized contract without conducting its own procurement.
d. Contracts Awarded by New York State Agencies, Public Authorities or Public Benefit Corporations. The Corporation may purchase such goods or services as are available through an existing contract awarded through a process of competitive bidding or a competitive request for proposals by a New York State agency, public authority or public benefit corporation without conducting its own procurement.
e. Invitation for Bid. Solicitation of price bids for specified goods or services, to be awarded to the lowest responsive and responsible bidder. Competitive bids are to be solicited when cost is of primary importance and the goods or services required are of a standardized nature that may reasonably be made the subject of fairly exact specifications.
f. Request for Proposals. Solicitation of specific proposals to be evaluated on the basis of best value, taking into consideration a variety of criteria including qualifications, proposed methodology, management capability and cost. RFP's should be utilized where cost is of relatively less importance in relation to other factors, services are less standardized and specifications less exact. Use of the RFP method may be followed by competitive negotiations with two or more proposers to secure further concessions with respect to both quality and cost.
g. Sole Source. When there is only one source available for the required goods or services, the contract may be awarded without competitive procedures.
h. Emergencies and Critical Situations. In the case of an emergency or a critical situation the contract may be awarded without competitive procedures. An emergency is an unanticipated occurrence beyond the control of the Corporation that threatens the life, health, safety or welfare of any persons or the continued use or function of the Corporation's property. A critical situation is defined as a situation that impacts a significant Corporation operation and requires immediate action including the necessity of meeting the need of a client that is not communicated on a timely basis or that cannot otherwise be met.
i. Single Source. Where two or more vendors are capable of providing the required goods or services, the Corporation may select a single vendor over others where the vendor or his product or services has unique or outstanding qualifications. Such qualifications may include past experience with a particular issue, familiarity with specific agency operations, experience with similar projects undertaken for the Corporation or for other agencies, demonstrated expertise, capacity and willingness to respond to the situation, or compatibility with other products utilized by the Corporation.
j. Experimental Projects. Where the Corporation wishes to test a new product or technology or to evaluate a new source for a product or technology, the Corporation may award a contract without competitive procedures provided that the contract is limited to the purchase of such quantities as are necessary to conduct the experiment or test.
2. Special Requirements and Procedures for Procurement of Certain Services.
a. Architectural, Engineering, Legal, Auditing or Accounting Services. Such contractors must be New York State licensed and in good standing.
b. Insurance. Insurance contracts shall be awarded on the basis of the best proposal taking into account the cost of the premium, the breadth and cost-effectiveness of the coverage and the ability of the broker and/or provider to meet the service needs of the Corporation. Solicitation of proposals shall be undertaken through a qualified insurance broker selected according to these Guidelines.
3. Advertisement Requirements for Competitive Source Selection Methods.
Where required by law, solicitation of bids, proposals or submissions of qualification data or offers for procurement contracts shall be made by publication in the New York State Contract Reporter in the manner required by law. The Corporation may also utilize advertisements in appropriate newspapers or trade journals, direct mailings to firms considered qualified and such other outreach mechanisms as are consistent with the policy of these guidelines, including those related to minority and women-owned business enterprises.
4. Required Approvals.
a. Regardless of the dollar amount thereof, procurement contracts involving services to be rendered over a period in excess of one year must be approved by resolution of the directors and reviewed annually by the directors.
b. The award of any procurement contract the cost of which exceeds $25,000 must be approved by the president, or, in the president’s absence, his or her designee.
c. The award of any procurement contract the cost of which exceeds $100,000 and which has been awarded through one of the procurement methods described in §303(1) (f)-(j) must be approved by resolution of the directors.
d. All procurement contracts shall be in writing and shall be executed by such officer or officers of the Corporation as are designated by the president and set forth in the Procurement Manual.
e. Any determination to pursue a non-competitive source selection method pursuant to §303(1)(g)-(j) and/or to forego publication of a notice in the New York State Contract Reporter must be supported by a written report setting forth the reasons for such determination and must be reviewed and approved by the vice president in charge of the division making the procurement, or in his or her absence the designee, and by the Corporation's chief financial officer or in his or her absence the Corporation's president or general counsel. All such determinations and reports shall be filed in the Purchasing Department and copies shall promptly be sent to the Director of Internal Controls and Compliance.
f. Every procurement contract shall be approved by the general counsel or the general counsel’s designee prior to execution for compliance with these guidelines and all applicable laws.
g. Every procurement contract shall be reviewed by the Corporation's chief financial officer or his or her designee for fiscal sufficiency prior to execution.
h. Any board resolution required by this section shall be requested by means of a Procurement Summary which:
Identifies the contract by number and a brief description of its substance;
Specifies why board action is needed;
Identifies the method of solicitation and the method used to select the contractor and briefly describes the reasons supporting the award;
Specifies the estimated or actual cost to the Corporation.
304. Promotion of Minority and Women-Owned Business Enterprises. It is the goal of the Corporation to award a fair share of Procurement contracts to Minority Business Enterprises and Women's Business Enterprises. It is also the Corporation's goal to award contracts to those Procurement contractors who have evidenced compliance with the laws of the State of New York prohibiting discrimination in employment. The following procedures shall be followed:
(1) For all Procurement Contracts, the cost of which is expected to exceed $50,000, bidders shall be encouraged to include with their bids separate proposals which would demonstrate how their selection will achieve the goals of this paragraph, such as proposals for joint ventures with, or set-asides for, Minority Business Enterprises.
(2) The purchasing department shall prepare and maintain a list of minority business enterprises by area of expertise and each individual responsible for soliciting bids and proposals shall consult the list and contact appropriate minority business enterprises to encourage them to submit bids.
(3) In selecting a bidder where a minority business enterprise has been identified, due consideration shall be given to the goals of the Corporation in selecting the bidder.
(4) The Corporation shall include in all bid documents provided to potential bidders a statement that information concerning the availability of New York state subcontractors and suppliers is available from the New York state department of economic development, and that it is the policy of New York State to encourage the use of New York state subcontractors and suppliers.
305. Promotion of New York State Business Enterprises. It is the goal of the Corporation to award a fair share of procurement contracts to New York state business enterprises and New York state residents and to encourage procurement contractors to promote such enterprises and residents through the awarding of subcontracts and the purchasing of supplies. The following procedures shall be followed:
306. Contract Provisions. Procurement contracts shall be in writing, shall state the cost of the goods or compensation for the services, and shall detail the goods to be provided or the scope of services to be performed, the time for provision or performance, and where appropriate, any permitted use of Corporation supplies, facilities or personnel. Procurement contracts other than those memorialized solely by purchase order shall also state the timing of payment, the pre-conditions for receiving payment from the Corporation, the duration of the contract, procedures for termination of the contract and any other provisions the general counsel deems necessary or appropriate for each particular contract and shall be signed by an authorized representative of the contractor with an appropriate acknowledgement of the signature affixed thereto. Procurement contracts which require contractors to perform services on the Convention Center premises shall require proof of Workers' Compensation and proof of liability insurance naming the Corporation, the New York Convention Center Development Corporation, the State of New York, the Empire State Development Corporation and the Triborough Bridge and Tunnel Authority as additional insureds and shall provide that the contractor indemnifies the Corporation and additional insureds for the negligent acts and omissions of the contractor's employees. If performance of a particular Procurement contract will require the use of subcontractors, the contract shall require the contractor to act affirmatively to secure such participation by Minority Business Enterprises and to report such efforts to the Corporation. Contracts equal to or greater than one million dollars requiring the use of subcontracts will require the Contractors to document their efforts to encourage the participation of New York state business enterprises as suppliers and subcontractors.
307. Limitations on Contracts with Former Corporation Employees. A former officer or employee shall not be permitted to perform personal services for the Corporation where prohibited by § 73 of the Public Officers Law.
308. Monitoring of Contracts. The department requiring the goods or services shall be responsible for monitoring the performance of the contract to ensure that the contract is performed in accordance with its terms.
401. Annual Report. Within ninety days after the close of each fiscal year, the Corporation shall prepare and deliver to the Directors for their approval an annual report on Procurement contracts. Such annual report will include these Guidelines and any amendments hereof, an explanation of these Guidelines and any amendments hereof, a list of the names and addresses of the year's contracting parties, a description of the goods or services provided by each contracting party and the compensation, commissions or fees paid and/or owing to each contracting party, a listing of all procurement contracts entered into, all contracts entered into with New York state business enterprises and the subject matter and value thereof, all contracts entered into with foreign business enterprises, and the subject matter and value thereof, the selection process used to select such contractors, all procurement contracts which were exempt from the publication requirements of article four-c of the economic development law, the basis for any such exemption and the status of existing procurement contracts.
The annual report on procurement contracts, after being approved by the Directors, shall be submitted to the Division of the Budget with copies to the Department of Audit and Control, the Department of Economic Development, the Senate Finance Committee and the Assembly Ways and Means Committee.
Copies of the annual report on Procurement contracts shall also be available to the public upon reasonable request at the Corporation's main office.
501. Powers of Amendment. Any modification or amendment of these guidelines may be made by a supplemental resolution adopted at any duly constituted meeting of the directors; provided, however, that no such modification or amendment shall abrogate the rights and duties of existing Corporation contracts, the terms of which were established pursuant to these guidelines or to previously existing guidelines for personal services contracts; and further provided that the chairman or the president may make non-material changes in these guidelines.
502. No Recourse Under These Guidelines. No provision of these guidelines shall be the basis for any claim based on these guidelines against any member, officer or employee of the Corporation or the Corporation itself.
503. Provisions Required By Law. These guidelines are hereby deemed to include any provision required by law to be included herein.