§ 11-72 Enforcement.
RCNY § 11-72
(1)Any person who believes that a violation of the requirements of § 6-129 of the Administrative Code of the City of New York or these rules, or any provision of a contract that implements § 6-129 of the Administrative Code of the City of New York or these rules, including, but not limited to, any contractor utilization plan, has occurred may submit a complaint in writing to the division, the city chief procurement officer and the comptroller. The division will promptly investigate such complaint and determine whether there has been a violation.
(2)Any complaint alleging fraud, corruption or other criminal behavior on the part of a bidder, proposer, contractor, subcontractor or supplier will be referred to the commissioner of the department of investigation.
(3)Contract award.
(a)When an agency receives a protest from a bidder or proposer regarding a contracting action that is related to § 6-129 of the Administrative Code of the City of New York or these rules, the agency must send copies of the protest and any appeal thereof, and any decisions made on the protest or such appeal, to the division and the comptroller.
(b)Whenever a contracting agency has determined that a bidder or proposer has violated § 6-129 of the Administrative Code of the City of New York, or these rules, the agency may disqualify such bidder or proposer from competing for such contract and the agency may revoke such bidder's or proposer's prequalification status.
(4)Contract administration.
(c)In the event that a contractor has been found to have violated § 6-129 of the Administrative Code of the City of New York, these rules, or any provision of a contract that implements § 6-129 of the Administrative Code of the City of New York or these rules, including, but not limited to any contractor utilization plan, the contracting agency must, after consulting with the city chief procurement officer and the division, determine whether any of the following actions should be taken: (i) enter an agreement with the contractor allowing the contractor to cure the violation; (ii) revoke the contractor's pre-qualification to bid or make proposals for future contracts; (iii) make a finding that the contractor is in default of the contract; (iv) terminate the contract; (v) declare the contractor to be in breach of contract; (vi) withhold payment or reimbursement; (vii) determine not to renew the contract; (viii) assess actual and consequential damages; (ix) assess liquidated damages or reduction of fees, provided that liquidated damages may be based on amounts representing costs of delays in carrying out the purposes of the program established by this section, or in meeting the purposes of the contract, the costs of meeting utilization goals through additional procurements, the administrative costs of investigation and enforcement, or other factors set forth in the contract; (x) exercise rights under the contract to procure goods, services or construction from another contractor and charge the cost of such contract to the contractor that has been found to be in noncompliance; or (xi) take any other appropriate remedy.
(5)To the extent available pursuant to rules of the procurement policy board, a contractor may seek resolution of a dispute regarding a contract related to § 6-129 of the Administrative Code of the City of New York or these rules. The contracting agency must submit a copy of such submission to the division.
(6)Whenever an agency has reason to believe that an MBE, WBE or EBE is not qualified for certification, or is participating in a contract in a manner that does not serve a commercially useful function, or has violated any provision of § 6-129 of the Administrative Code of the City of New York or these rules, the agency must notify the commissioner who will determine whether the certification of such business enterprise should be revoked.
(7)Statements made in any instrument submitted to an agency pursuant to these rules will be submitted under penalty of perjury and any false or misleading statement or omission will be grounds for the application of any applicable criminal and/or civil penalties for perjury. The making of a false or fraudulent statement by an MBE, WBE or EBE in any instrument submitted pursuant to these rules will, in addition, be grounds for revocation of its certification.
(8)A contractor's record in implementing its contractor utilization plan will be a factor in the evaluation of its performance. Whenever a contracting agency determines that a contractor's compliance with a contractor utilization plan has been unsatisfactory, the agency must, after consultation with the city chief procurement officer, file an advice of caution form for inclusion in the computerized data system maintained pursuant to subdivision b of § 6-116.2, or any successor to such system, as caution data.
(9)Any complaint alleging fraud, corruption or other criminal behavior on the part of a bidder, proposer, contractor, subcontractor or supplier must in addition be referred to the department of investigation. (Amended City Record 5/25/2021, eff. 6/24/2021)
