§ 2-08 Vendor Responsibility and Appeal of Determination of Non-Responsibility.
RCNY § 2-08
(a)Policy.
(1)Purchases shall be made from, and contracts shall be awarded to, responsible prospective contractors only.
(2)The award of a contract to a contractor based on lowest evaluated price alone can be false economy if there is subsequent default, improper or exaggerated claims, late deliveries, or other unsatisfactory performance resulting in additional contractual and administrative costs. While it is important that City purchases be made at the lowest price, this does not require an award to a contractor solely because that contractor submits the lowest offer. A prospective contractor must affirmatively demonstrate its responsibility, including, when necessary, the responsibility of its proposed subcontractors.
(b)General standards.
(3)Failure of a firm to provide relevant information specifically requested by the Contracting Officer may be grounds for a determination of non-responsibility.
(c)Special standards.
(d)Ability To meet standards.
(e)PASSPort questionnaire.
(4)Late filing of information: required findings. In the circumstances set forth in paragraph (3) of this subdivision, the PASSPort questionnaire may instead be submitted after registration of the contract, provided that: (i) the ACCO has notified the contractor in writing of its obligation to submit the PASSPort questionnaire as set forth in subdivision (e)(2) above; (ii) the ACCO has determined that sufficient information concerning the prospective contractor is otherwise available to permit the determination of responsibility prior to receipt of the questionnaire; and (iii) in addition, where the basis for the delayed submittal is an expedited procurement action due to urgent circumstances, the ACCO must provide a separate additional determination setting forth the specific documented reasons it is not feasible for the contractor to complete all or some specific portion of the PASSPort questionnaire as set forth in subdivision (e)(2) above. The ACCO's determination shall include the name and telephone number of the authorized representative of the contractor who provided information on which the ACCO relied in making the non-feasibility determination.
(5)Waiver: limited exception in the best interest of the City. On a contract-by-contract basis, where a contractor demonstrates compelling reasons that it is not feasible to supply a specifically identified portion of information which is required by the questionnaire but not by local law, the CCPO may waive the requirement to supply that portion of the required information when such waiver is in the best interest of the City. Such a waiver may be granted by the CCPO upon the written application of the ACCO setting forth with particularity: (i) the efforts to obtain the required information; (ii) the name and telephone number of the authorized representative of the contractor who made the request for waiver on behalf of the contractor; (iii) the information to be covered by the waiver; (iv) the compelling reasons why a waiver should be granted in this case, including why the circumstances are such that it is in the best interests of the City that the contract be awarded to this contractor; and (v) the basis for finding the sufficient information concerning the prospective contractor is otherwise available to permit the determination of responsibility absent the exempted information. The CCPO has the sole discretion to grant a waiver and to determine which portion of the required information will be waived. In making such determination, the CCPO will consider whether the contractor has made sufficient efforts to supply the information required to be disclosed in the questionnaire. Where a waiver is granted, the CCPO will issue a written determination, setting forth the details of the waiver and a statement of the specific reasons why granting such a waiver serves the best interests of the City, and include that determination in the PASSPort database. The CCPO will provide a copy of this determination to the Comptroller within five calendar days of issuing such determination. Any waiver granted pursuant to this paragraph is limited to the specific contract identified in the waiver application. Where an ACCO seeks a waiver with respect to a new contract, a separate application for a waiver must be submitted.
(6)Waiver: sole source. In the case of a specific contract awarded in accordance with the sole source provision of 9 RCNY § 3-05 where a contractor refuses to supply some portion of the required information, but the need for the goods, services, or construction is such that it is in the best interests of the City that the contract be awarded, the CCPO may waive a specifically identified portion of information required by local law concerning the creation and maintenance of a computerized database upon the written application of the ACCO setting forth with particularity: (i) the efforts to obtain the required information; (ii) the name and telephone number of the authorized representative of the contractor who refused, on behalf of the contractor, to supply the required information; (iii) the information to be covered by the waiver; (iv) the reasons why a waiver should be granted in this case; and (v) the basis for finding that sufficient information concerning the prospective contractor is otherwise available to permit the determination of responsibility absent the waived information.
(7)Exemption: entities not required to complete disclosures. Governmental and quasi-governmental entities may be exempted from the requirement to file PASSPort questionnaires on a contract-by-contract basis. Such an exemption may be granted by the CCPO upon the written application of the ACCO setting forth with particularity: (i) The name and telephone number of the authorized representative of the contractor who made the request for exemption on behalf of the entity; (ii) the number of members of the entity’s Board of Directors or Board of Trustees, including any members appointed by an elected official; (iii) any other information regarding the public’s review, direction, or control over the entity’s operations; (iv) the compelling reasons why it is in the best interests of the City to grant the exemption and award the contract to this contractor; (v) the basis for the ACCO’s determination that there is sufficient information concerning the prospective contractor available to allow a determination of responsibility to be made absent the exempted filing, including whether the entity’s employees are subject to any other public filing requirements; and (vi) any other information demonstrating that the prospective contractor is otherwise accountable to the public. Where an exemption is granted, the CCPO will issue a written determination. The CCPO will provide a copy of this determination to the Comptroller within five days of issuing such determination. Any exemption granted pursuant to this paragraph is limited to the specific contract identified in the application. Where an ACCO seeks an exemption with respect to a new contract, a separate application for a waiver must be submitted.
(8)Reporting requirement for late filings, waivers, and exemptions. A copy of the written request of the ACCO and the determination of the CCPO permitting late filing of required information pursuant to paragraphs (3) and (4) of this subdivision, granting a waiver pursuant to paragraphs (5) and (6) of this subdivision, or granting an exemption pursuant to paragraph (7) of this subdivision must be filed by the CCPO with the Comptroller within five days after it is made or approved by the CCPO.
(9)Contract terms and conditions.
(i)Late filing. Whenever the CCPO has permitted the filing of some or all of the required information within thirty days after the registration of the contract, the contract shall contain a clause requiring the submission of the required information within the required time period as a material term and condition of the contract and permitting termination without penalty to the City for violation of the condition, or if: (A) the Mayor or his/her designee determines on the basis of the belatedly filed information that it is in the best interest of the City to terminate the contract, and/or (B) the Comptroller or his/her designee determines that the belatedly filed information reveals matters which if provided earlier would have provided a basis for an objection to registration of the contract by the Comptroller and the Mayor or his/her designee determines that he/she would have agreed with such determination and therefore it is in the best interest of the City to terminate the contract.
(ii)Subcontractors. Where appropriate, City contracts shall contain a clause requiring prime contractors to notify subcontractors of their obligation to complete and file PASSPort Questionnaires within thirty days after the ACCO has granted preliminary approval of the identified subcontractor, if the aggregate value of City contracts, franchises, and concessions awarded to a subcontractor during the immediately preceding twelve-month period equals or exceeds $250,000.
(10)Failure to submit information as required: consequences. Whenever a late filing of required information has been permitted in accordance with subdivision (e)(3) and (e)(4) of this section and the contractor has failed to submit the required information within the required time period, that fact shall be communicated to the CCPO and the Comptroller immediately and shall be included within the PASSPort database. Until such time as the required information has been filed with the CCPO, (i) no further contract shall be awarded to that contractor, (ii) the contractor shall be ineligible to bid or propose or otherwise be awarded a further contract, and (iii) no payments shall be made to the contractor for performance pursuant to that contract unless authorized in writing by the CCPO.
(11)The Procurement Policy Board shall provide the City Council with periodic reports concerning permission for late filings and exemptions at intervals and with contents agreed upon by the Procurement Policy Board and the City Council.
(12)The questionnaire responses shall be entered into the citywide computerized PASSPort database no later than the completion of the Recommendation for Award.
(f)Department of investigation and administrative fee.
(g)Making the responsibility determination.
(h)Determination of non-responsibility required.
(j)Notice. After making a determination of non-responsibility, the ACCO shall notify the lowest bidder in writing of that determination. The notification shall state the reasons upon which the determination is based and shall inform the bidder of the right to appeal the determination of non-responsibility to the Agency Head and subsequently to the Mayor, and of the procedure for taking such appeals. The notification shall also contain the following statement: The vendor shall also send a copy of its appeal to the New York City Comptroller, for informational purposes, at Office of the New York City Comptroller, Bureau of Contract Administration, 1 Centre Street, Room 727, New York, NY 10007, (212) 669-2323.
(k)Appeal to agency head. Appeals to the Agency Head of the determination of non-responsibility shall be made pursuant to the following procedure: (1) Time for appeal. Any vendor who is determined to be non-responsible in connection with the award of a particular contract shall be allowed ten days from receipt of the agency's notification to file a written appeal of that determination with the Agency Head. Receipt of notice by the vendor shall be deemed to be no later than five days from the date of mailing or upon delivery, if delivered. Filing of the appeal shall be accomplished by actual delivery of the appeal document to the office of the Agency Head.
(l)Stay of award of contract pending agency head decision. Award of the contract shall be stayed pending the rendering of a decision by the Agency Head unless the ACCO makes a determination that execution of the contract without delay is necessary to protect substantial City interests. Where the award is not stayed, the vendor shall be advised of this action in the determination of non-responsibility or if the stay is removed at a later date, notification shall be provided to the vendor no later than two business days after such determination is made.
(m)Appeal to Mayor. Appeals to the Mayor of the Agency Head decision upholding a determination of non-responsibility shall be made pursuant to the following procedure: (1) Delegation. The Mayor may delegate responsibility for deciding this appeal to the CCPO.
(n)Stay of award of contract pending decision by Mayor or his designee. Award of the contract shall be stayed pending the rendering of a decision by the Mayor or CCPO, unless the ACCO has made a determination pursuant to these Rules that the execution of the contract without delay is necessary, or the Mayor or CCPO, in their discretion, determine that it is in the best interests of the City to go forward with the award of the contract.
(o)Documentation. Documents reflecting the agency determination of non-responsibility and any appeal and decision with respect to appeal, and evidence of having supplied written notifications as required by these Rules, shall be sent to the CCPO for inclusion in the PASSPort database.
(p)Rehabilitation of vendors. An application for a declaration of rehabilitation may be made by any vendor who has been found non-responsible by one or more City agencies, if such vendor has either declined to appeal or exhausted the process for appealing such non-responsibility determination(s) as set forth in this section, or by any vendor that is the subject of any unfavorable responsibility information recorded in the PASSPort database as a caution(s). A declaration of rehabilitation will not result in deletion of the underlying non-responsibility determination or caution from the PASSPort database, but a summary of such declaration or of any decision denying such an application shall be entered into the PASSPort database for consideration by agency Contracting Officers in making future responsibility determinations. In making responsibility determinations, Contracting Officers may rely upon the declaration of rehabilitation in lieu of requiring a vendor to explain negative responsibility information in accordance with subdivision (g)(2) of this section.
