S T A T E O F N E W Y O R K
________________________________________________________________________
6033
2011-2012 Regular Sessions
I N A S S E M B L Y
March 4, 2011
___________
Introduced by M. of A. BRENNAN, COLTON, PERRY, SCARBOROUGH, GLICK,
JACOBS, MARKEY, ORTIZ, ROBINSON, ABBATE -- Multi-Sponsored by -- M. of
A. PHEFFER -- read once and referred to the Committee on Education
AN ACT to amend the education law, in relation to the purchase and
delivery of material goods, supplies and services by or to the chan-
cellor of the city school district of the city of New York
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Subdivision 36 of section 2590-h of the education law, as
amended by chapter 345 of the laws of 2009, is amended to read as
follows:
36. [Develop a procurement policy for the city school district of the
city of New York and the community districts and public schools therein
to ensure the wise and prudent use of public money in the best interest
of the taxpayers of the state; guard against favoritism, improvidence,
extravagance, fraud, and corruption; and ensure that contracts are
awarded consistent with law and on the basis of best value, including,
but not limited to, the following criteria: quality, cost and efficien-
cy.
(a) Such policy shall specifically include:
(i) a competitive sealed bidding process for the awarding of contracts
in which sealed bids are publicly solicited and opened and that a
contract is awarded to the lowest responsive, responsible bidder;
(ii) processes for awarding contracts using alternatives to compet-
itive sealed bidding where competitive sealed bidding is not practicable
or not advantageous, in which case the most competitive alternative
method of procurement, which is appropriate under the circumstances,
shall be used consistent with the requirements of subparagraph (vii) of
this paragraph;
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD09823-01-1
A. 6033 2
(iii) measures to enhance the ability of minority and women owned
business enterprises to compete for contracts and to ensure their mean-
ingful participation in the procurement process;
(iv) the manner for administering contracts and overseeing the
performance of contracts and contractors;
(v) standards and procedures to be used in determining whether bidders
are responsible;
(vi) circumstances under which procurement may be used for the
provision of technical, consultant or personal services;
(vii) requiring written justification for the basis, including the
efficiency, benefit, and necessity, for awarding a contract using
procurement methods other than competitive sealed bidding including
competitive sealed proposals and sole source contracts, and for awarding
technical, consultant, or personal services contracts, franchises, revo-
cable consents, or concessions. Such written justification shall be
filed with the comptroller of the city of New York along with the corre-
sponding contract, franchise, revocable consent, or concession;
(viii) maintaining a file for every contract franchise, revocable
consent, and concession containing information pertaining to the solic-
itation, award and management of every such contract or agreement. Such
file shall contain copies of each determination, writing or filing
required by this subdivision and shall be open to public inspection with
adequate protection for information which is confidential;
(ix) a process for the filing of all contracts, franchises, revocable
consents, and concessions with the comptroller of the city of New York;
(x) a process for emergency procurement in the case of an unforeseen
danger to life, safety, property or a necessary service provided that
such procurement shall be made with such competition as is practicable
under the circumstances and that a written determination of the basis
for the emergency procurement shall be required and filed with the comp-
troller of the city of New York when such emergency contract is filed
with such comptroller; and
(xi) procedures for the fair and equitable resolution of contract
disputes.
(b) Consistent with the provisions of paragraph (a) of this subdivi-
sion such policy shall also include: (i) standards for quality, func-
tion, and utility of all material goods, supplies, and services
purchased by the chancellor, superintendents, or schools; (ii) regu-
lations which enable superintendents and schools to purchase material
goods, supplies, and services directly from vendors or suppliers when
such products are available at prices or other terms more economically
beneficial for the purposes of the acquiring superintendent or school;
and (iii) regulations shall include repair services and building
supplies, as defined in such regulations, for expenditures from each
district's minor repair and purchasing funds pursuant to section twen-
ty-five hundred ninety-r of this article.
(c) The chancellor shall be responsible for certifying that the proce-
dural requisites pursuant to this subdivision and section twenty-five
hundred ninety-g of this article have been met, prior to the filing any
contract awarded by a procurement method other than competitive sealed
bidding, or prior to filing any technical, consultant, or personal
services contract, franchise, revocable consent, or concession with the
comptroller of the city of New York. The corporation counsel for the
city of New York shall certify prior to the filing of such contract or
agreement with the comptroller of the city of New York, that the city
district has legal authority to award each such contract or agreement.
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(d) (i) No contract, franchise, revocable consent or concession shall
be implemented until a copy has been filed with the comptroller of the
city of New York and either such comptroller has registered it or thirty
days have elapsed from the date of filing, whichever is sooner, unless
an objection has been filed pursuant to subparagraph (iii) of this para-
graph, or the comptroller of the city of New York has grounds for not
registering such contract or agreement under subparagraph (ii) of this
paragraph.
(ii) Subject to the provisions of subparagraph (iii) of this para-
graph, the comptroller of the city of New York shall register such
contract or agreement within thirty days unless such comptroller has
information indicating that:
(1) there remains no unexpended and unapplied balance of the appropri-
ation or fund applicable thereto, sufficient to pay the estimated
expense of executing such contract or agreement;
(2) a certification required pursuant to this paragraph has not been
made; or
(3) the proposed vendor has been debarred by the city of New York.
(iii) The comptroller of the city of New York may, within thirty days
of the date of filing of the contract, franchise, revocable consent or
concession with his or her office, object in writing to the registration
of such contract or agreement, if in such comptroller's judgment there
is sufficient reason to believe that there is possible corruption in the
letting of such contract or agreement or that the proposed contractor is
involved in corrupt activity. Such objection shall be delivered within
such thirty day period to the mayor of the city of New York setting
forth in detail the grounds for the New York city comptroller's determi-
nation. The mayor of the city of New York may require registration of
the contract or agreement despite the New York city comptroller's
objections if the mayor of the city of New York has responded to such
comptroller's objections in writing, indicating:
(1) the corrective actions if any, that have been taken or will be
taken in response to such comptroller's objections, or
(2) the reasons why the mayor of the city of New York disagrees with
such comptroller's objections.
Such response by the mayor of the city of New York shall not serve as
the basis for further objection by the New York city comptroller, and
such comptroller shall register the contract, franchise, revocable
consent or concession within ten days of receipt of the mayor of the
city of New York's response.
(e) The requirements of paragraphs (c) and (d) of this subdivision
shall not apply to an emergency contract awarded pursuant to subpara-
graph (x) of paragraph (a) of this subdivision, provided that the chan-
cellor shall comply with the requirements of paragraphs (c) and (d) of
this subdivision as soon as practicable.] (A) ENSURE THAT ALL CONTRACTS
OR AGREEMENTS INVOLVING THE PURCHASE OR DELIVERY OF MATERIAL GOODS,
SUPPLIES AND SERVICES BY OR TO THE CHANCELLOR, THE SUPERINTENDENTS OR
THE SCHOOLS, INCLUDING ANY FRANCHISE OR CONCESSION AGREEMENTS, REGARD-
LESS OF THE SOURCE OF FUNDS, ARE ENTERED INTO IN ACCORDANCE WITH THE
PROVISIONS OF CHAPTERS THIRTEEN AND FOURTEEN OF THE NEW YORK CITY CHAR-
TER AND THE RULES OF THE NEW YORK CITY PROCUREMENT POLICY BOARD AND OF
THE NEW YORK CITY FRANCHISE CONCESSION AND REVIEW COMMITTEE, PROVIDED
THAT WHERE SUCH LAW OR RULES REQUIRE ACTION BY OR APPEAL TO THE MAYOR OR
AN APPOINTEE OF THE MAYOR, OTHER THAN THE CHANCELLOR, SUCH ACTION SHALL
INSTEAD BE TAKEN BY THE CHANCELLOR OR SUCH APPOINTEE OF THE CHANCELLOR
AS THE CHANCELLOR MAY DELEGATE IN WRITING, AND PROVIDED FURTHER, ANY
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CONTRACT AWARDED WITHOUT COMPETITION OR IN EXCESS OF ONE MILLION DOLLARS
SHALL BE SUBJECT TO THE VOTE OF THE FULL BOARD OF EDUCATION UNLESS SUCH
CONTRACT SHALL BE DEEMED AN EMERGENCY AS DEFINED IN SECTION THREE
HUNDRED FIFTEEN OF THE NEW YORK CITY CHARTER OR SHALL BE MADE IN ACCORD-
ANCE WITH RULES OF THE PROCUREMENT POLICY BOARD ESTABLISHED PURSUANT TO
SECTION THREE HUNDRED FOURTEEN OF THE NEW YORK CITY CHARTER. NO SUCH
CONTRACT OR AGREEMENT SHALL BE IMPLEMENTED UNTIL IT HAS BEEN FILED AND
REGISTERED BY THE COMPTROLLER PURSUANT TO CHAPTERS FIVE AND THIRTEEN OF
THE NEW YORK CITY CHARTER. FOR THE PURPOSES OF THIS SUBDIVISION, THE
TERMS "CONTRACT" OR "AGREEMENT" SHALL INCLUDE ANY CONTRACT THAT DIRECTLY
OR INDIRECTLY BENEFITS THE CITY DISTRICT, INCLUDING ANY CONTRACT OR
OTHER INSTRUMENT IN WHICH THE CITY, CITY BOARD OR ANY OF ITS OFFICERS
AGREES TO GIVE OR RECEIVE A CONSIDERATION OTHER THAN THE PAYMENT OF
MONEY;
(B) ESTABLISH STANDARDS FOR QUALITY, FUNCTION, AND UTILITY OF ALL
MATERIAL GOODS, SUPPLIES, AND SERVICES PURCHASED BY THE CHANCELLOR,
SUPERINTENDENTS, OR SCHOOLS; AND
(C) PROMULGATE REGULATIONS WHICH ENABLE SUPERINTENDENTS AND SCHOOLS TO
PURCHASE MATERIAL GOODS, SUPPLIES, AND SERVICES DIRECTLY FROM VENDORS OR
SUPPLIERS WHEN SUCH PRODUCTS ARE AVAILABLE AT PRICES OR OTHER TERMS MORE
ECONOMICALLY BENEFICIAL FOR THE PURPOSES OF THE ACQUIRING SUPERINTENDENT
OR SCHOOL. SUCH REGULATIONS SHALL ALSO INCLUDE REPAIR SERVICES AND
BUILDING SUPPLIES, AS DEFINED IN SUCH REGULATIONS, FOR EXPENDITURES FROM
EACH DISTRICT'S MINOR REPAIR AND PURCHASING FUNDS PURSUANT TO SECTION
TWENTY-FIVE HUNDRED NINETY-R OF THIS ARTICLE.
S 2. This act shall take effect immediately, provided that the amend-
ments to subdivision 36 of section 2590-h of the education law made by
section one of this act shall not affect the expiration of such subdivi-
sion and shall be deemed to expire therewith.