§ 1-13 Competitive Sealed Proposals.
RCNY § 1-13
(a)General.
(1)Proposals may be solicited through Requests for Proposals ("RFP's") only if the agency makes a written determination that competitive sealed bidding is not practicable or not advantageous to the City for one of the following reasons: (i) Specifications cannot be made sufficiently definite and certain to permit selection based on revenue to the City alone; or (ii) Judgment is required in evaluating competing proposals, and it is in the best interest of the City to require a balancing of revenue to the City, quality and other factors. Such determination must be approved in writing by the agency head and must be included in the concession file. A copy thereof shall be forwarded to the Committee.
(2)At least 40 days prior to soliciting proposals, or less, at the discretion of CCPO, the agency shall make a written determination as to whether a concession is a major concession. Such determination shall be approved in writing by the agency head and shall be included in the concession file. If a concession is determined to be a major concession, it shall be subject to review and approval pursuant to Sections 197-c and 197-d of the Charter following the agency selection of the successful proposer. Once a determination of whether a concession is a major concession has been made, an agency may proceed with the request for proposal process but shall provide written notification of its determination to each affected community board and Borough President and shall simultaneously post such notification on the City's website in a location that is accessible by the public with its distribution. A copy of such notification shall be provided to the members of the Committee within 5 days of notification of the community board(s) and Borough President and publication on the City's website, provided however, that inclusion of the concession in the agency's Plan pursuant to 12 RCNY § 1-10 shall constitute notice to the affected community board and Borough President and posting on the City's website for purposes of this requirement, and no copy need be provided to the members of the Committee in such circumstance. The written notification shall include a summary of the terms and conditions of the proposed solicitation, and whether or not the concession is significant.
(i)If an agency provides the aforementioned notice to the affected community board and Borough President and there are no material changes to the terms described in the notice, the agency shall not be required to issue a second notice when issuing or reissuing the Request for Proposals within a 12-month period.
(3)At least 40 days prior to soliciting proposals for a significant concession, or less, at the discretion of CCPO, the agency shall consult with each affected Community Board and Borough President on developing the scope of the RFP, provided however, that inclusion of the concession in the agency's Plan and consultations pursuant to 12 RCNY § 1-10 shall constitute consultations with the affected community board and Borough President for purposes of this requirement.
(b)Preparation of the request for proposals. At least 6 months prior to the expiration date of any concession and/or prior to the anticipated start date of a new concession, the agency shall initiate action for the selection of a concessionaire. The agency action(s) taken shall include the preparation of a Request for Proposals containing a detailed description of the concession under consideration for resolicitation or initial award. The RFP should describe as explicitly as possible the requirements of the agency. The RFP should include all documents (whether attached or incorporated by reference) furnished prospective proposers for the purpose of submitting a proposal. The following information, together with any other appropriate information, should be included in the Request for Proposals, as applicable: (1) Instructions and information to proposers concerning the proposal submission requirements, including the time and date set for receipt of the proposals; requirements for the electronic submission of proposals, if any; time, date, and location of any pre-proposal conferences (and a statement whether such conferences are mandatory), and an invitation to inspect the premises, as applicable; and the address where proposals are to be delivered; (2) Location, and a brief description of the proposed concession, its size, its prior use and/or other possible usage of the premises, any fixtures, or equipment, on the premises and its surrounding area, including any special instructions or information necessary, and appropriate materials such as maps, plans or photographs; (3) The term of the concession and any terms and conditions upon its award, including warranty and bonding or other security requirements, amount of proposed capital investment and a description of any legal restrictions on the use of the location; (4) The evaluation criteria that will be applied to the evaluation of all proposals, their relative importance and/or assigned weight (as applicable) and descriptions of minimum qualification requirements and of the Selection Committee (See 12 RCNY § 1-13(o)(6)); (5) A provision that proposers should give specific attention to the identification of those portions of their proposals that they deem to be confidential proprietary information or trade secrets and provide any justification why such materials, upon request, should not be disclosed by the City. Such information must be easily separable from the non-confidential sections of the proposal; (6) A notice that although discussions may be conducted with offerors submitting acceptable proposals, award may be made without any discussions; (7) A notice of the proposer's rights to appeal certain decisions as specified in these rules; (8) A statement that proposers should contact the agency prior to submission of proposals to verify that all amendments issued have been received, and a requirement for acknowledgment of amendments; (9) A notice that the concession award is subject to applicable provisions of federal, state, and local laws and executive orders requiring affirmative action and equal employment opportunity; (10) Where applicable, a notice that concession award is subject to completion of PASSPort questionnaires and review of that information by the Department of Investigation; (11) The name, address, telephone number, and email address of a contact person to whom questions and correspondence relating to the RFP can be addressed; (12) Instructions for submission of proposals, including a requirement that the proposer include the solicitation number, the name and address of the proposer and the time for receipt of proposals on the outside wrapper; and (13) The following statement: The New York City Comptroller is charged with the audit of concession agreements in New York City. Any person or entity who believes that there has been unfairness, favoritism or impropriety in the proposal process should inform the Comptroller, Office of Contract Administration, 1 Centre Street, New York, New York 10007, telephone number (212) 669-2323.
(14)Where applicable, for concessions that entail construction, the following information shall be additionally included: (A) A statement establishing minimum insurance requirements which the City will require of the proposer if successful; and (B) A statement that the proposer will be required to meet all licensing or permit requirements required to perform the construction.
(c)Publicizing the request for proposals.
(4)Agencies shall provide for special outreach to minority and women owned business enterprises certified by the City of New York as such entities are defined in Section 1304 of the Charter. Special outreach can include but is not limited to; providing notice in newspapers, trade publications, websites or social media that are dedicated to minority and/or women owner business enterprises or trade groups. Agencies may additionally employ any outreach technique sanctioned by DSBS that is not otherwise in violation of these Rules.
(d)Solicitation mailing lists. Concession managers shall establish, maintain, and use lists of potential sources in accordance with 12 RCNY § 1-12(c).
(e)Pre-proposal conferences may be held in accordance with the procedures set forth in 12 RCNY § 1-12(d).
(f)Amendments and addenda to the RFP may be made in accordance with the procedures set forth in 12 RCNY § 1-12(e).
(g)Proposal deposits. Proposal deposits may be required in accordance with the procedures set forth in 12 RCNY § 1-12(f).
(h)Receipt of proposals.
(j)Late proposals and modifications.
(ii)If, based on the above, a late proposal or modification is accepted and evaluated, the concession manager must document the circumstances in writing and maintain such documentation as part of the concession file. If a late proposal or modification is not evaluated, such proposal or modification shall be promptly returned to the proposer unopened and the proposer shall be notified of the reason for such action.
(k)Withdrawal of proposals.
(l)Mistake in proposal. Allegations of mistakes in proposals shall be processed by the concession manager according to 9 RCNY § 3-03(i) of the PPB Rules. A written determination shall be made and shall be included in the concession file.
(m)Single responses to the RFP. When a single proposal has been received in response to an RFP, an award may be recommended only after it has been documented by the concession manager, that a sufficient number of other entities had a reasonable opportunity to respond; why, as a result of inquiries made by the agency, representative firms chose not to submit proposals; that the proposal submitted meets minimum requirements for award; and that a resolicitation would not be in the City's best interest. If the above specified circumstances cannot be documented, the single proposal must be rejected and the concession may either be pursued, subject to the approval of the concession manager, by the solicitation of new proposals or the concession canceled. Notwithstanding the foregoing, when a single proposal has been received in response to an RFP for a concession, other than a significant concession, the agency shall not be required to make inquiries as to why representative firms chose not to submit proposals.
(n)Proposal retention. The agency must retain all submitted proposals and modifications in the permanent concession file. Although the Selection Committee may consider only the latest version of a proposal, the retention of these documents will serve as a reference for responses to future inquiries. When a proposal is rejected or a solicitation canceled after proposals are received, the proposals shall be retained and the proposal deposit, if any, shall be promptly returned, and the file so documented.
(o)Evaluation process.
(5)Rating sheet. Rating sheets or other written evaluation forms shall be used to evaluate proposals and shall be signed and dated by all members of the evaluation committee. Initial ratings may be amended and the amended ratings recorded on either the original or amended ratings sheets. Copies of all initial and amended rating sheets or evaluation forms shall be maintained.
(6)Selection Committee.
(iii)Members of the Selection Committee shall independently read and evaluate each proposal and record their evaluations in the form of ratings on the individual rating sheet prepared with the RFP. The only criteria that may be used by the Selection Committee members in their evaluation are those specified in the RFP. All Selection Committee members must sign and date their initial individual rating sheets. The concession manager shall compile the individual ratings of the members of the Selection Committee, in accordance with the criteria specified in the RFP. Upon completion of the initial independent evaluations the Selection Committee may meet to review and discuss the ratings. After such discussions, Selection Committee members may wish to change a rating to reflect new or previously misunderstood information or a change of opinion. Rating sheets may be amended as a result of such Selection Committee discussions. All Selection Committee members must sign and date their individual rating sheets each time they are amended. When such changes are made, however, all original rating sheets or electronic copies must be retained intact and attached to the revised version or an electronic copy thereof, along with an explanation, in writing, for each change that was made.
(iv)(A) Following the Selection Committee's initial discussions, if any, of the individual ratings and any amended ratings that may result therefrom, the Selection Committee may: determine that award should be made on the basis of initial proposals; determine that it is not in the best interests of the City to award solely on the basis of initial proposals, and that best and final offers should be solicited and/or discussions or negotiations should be initiated with all responsive proposers or with a selected group of proposers; or may determine that it is in the best interest of the City to not make an award and to either cancel or resolicit the RFP. In the latter case, such determination must be in writing, approved by the Agency Head and included in the concession file. All proposers should be notified of such action. (B) If the Selection Committee decides that best and final offers should be solicited and/or discussions or negotiations should be initiated, it may limit such process to those proposers whose proposals are acceptable or are reasonably likely to be made acceptable for the purpose of promoting understanding of the City's requirements and the proposals and/or the proposers' capabilities; obtaining the best compensation proposal for the City; and arriving at a concession that will be most advantageous to the City taking into consideration the evaluation factors set forth in the RFP. ((a)) Proposers shall be accorded fair treatment with respect to any opportunity for discussions and revisions of proposals. Proposers not selected for best and final offers, discussions or negotiations should be notified. ((b)) The Selection Committee shall establish an agenda and schedule for conducting discussions, if any. Any oral clarification of a proposal shall be confirmed in writing by the proposer. ((c)) The Selection Committee may also request best and final offers from proposers prior to, following or in lieu of discussions with individual proposers. The concession manager shall establish a common date and time or timeframe for the submission of best and final offers. The Selection Committee may request best and final offers on the whole proposal or on any one or combination of its component parts (e.g., revenue, technical qualifications, approach, and/or capability). The request shall be the same for all proposers included in the best and final offer process. Best and final offers shall be submitted only once unless the concession manager makes a determination that it is in the City's best interest to conduct additional discussions and/or require another submission of best and final offers, which may be limited to those proposers deemed by the Selection Committee to have a reasonable chance of obtaining the concession award. Proposers shall be informed that if they do not submit a notice of withdrawal or another best and final offer, their immediate previous offer will be construed as their best and final offer. ((d)) Once discussions are commenced with any proposer or after best and final offers are requested, such proposer may correct any mistake in its proposal by modifying or withdrawing the proposal until the time and date set for receipt of best and final offers. ((e)) Following discussions and/or best and final offers, if any, the Selection Committee may elect to enter into negotiations for a concession award with one or more of the highest rated proposers. Auction techniques (revealing one proposer's revenue proposal to another) and disclosure of any information derived from competing proposals are prohibited. The concession manager shall document the process of best and final offers, discussions and negotiations in the concession file. ((f)) With respect to competitive sealed proposal awards where the concession has a value that when aggregated with the value of all other City concessions, franchises and contracts held by the same concessionaire is valued at $100,000 or more, at any point during the process of best and final offers, discussions or negotiations, the concession manager may require those proposers deemed by the Selection Committee to have a reasonable chance of obtaining the concession award to complete PASSPort questionnaires. ((g)) Decisions to solicit, limit, or not solicit best and final offers or negotiate further with any proposers or any selected group of proposers should be documented, signed and dated by the members of the Selection Committee, and maintained in the concession file. (C) When an agency determines that there is a need for minor modifications in its requirements during the process of conducting best and final offers, discussions or negotiations, those modifications must be communicated in writing to all of the proposers included in such process. If changes in the requirements are so extensive that they warrant complete revision of a solicitation, the concession manager shall cancel the RFP and issue a new one. In making the determination whether to cancel an RFP based on changes in requirements, the concession manager shall consider whether the changes are such that new proposers, as a result of those revisions, might now be interested in satisfying the requirements of the changed RFP.
(p)The final recommendation.
(q)Public hearings on significant concession awards.
(r)Award and processing.
(s)Accessibility.
