§ 3-10 Prequalification.
RCNY § 3-10
(a)Policy. Prequalification allows an agency to evaluate the qualifications of vendors for provision of particular categories of goods, services, construction, or construction-related services (including subcategories based on expertise, size, dollar size of project, or other factors as determined by the ACCO) before issuing a solicitation for a specific contract. Except for procurements for construction or procurements designated for a mentoring program, a procurement using a PQL shall be considered a "special case" under these Rules. This Section does not apply to the prequalification of vendors pursuant to 9 RCNY § 3-16.
(b)"Special Case" Determination. Prior to using a PQL for a procurement of goods, services or construction-related services, the ACCO shall make a determination that such procurement is a "special case" that requires the use of a PQL, that the list is composed of vendors that have been prequalified to provide the specified item(s) to be procured, and that the particular PQL is accurate, complete, and current. The ACCO may permit joint ventures of two or more prequalified vendors from one or more PQLs, or may combine PQLs for a solicitation. Use of a PQL for a procurement of construction or a procurement designated for a mentoring program, or as otherwise approved by the CCPO, upon the CCPO’s determination that use of the PQL is in the best interest of the City, does not require a special case determination.
(c)Circumstances of Use. Prequalification shall be used only where the need for advance screening of vendors' qualifications outweighs the benefits of broader competition, as determined by the ACCO. Such circumstances include, but are not limited to, categories of procurement where: (1) it is essential that only highly competent and experienced vendors be invited to bid; (2) high volume and/or repetitive procurements necessitate reduction of paperwork and delays in the award of contracts; (3) the time between the occurrence of the need and the award of the contract must often be reduced to avert or respond to an emergency; (4) with respect to procurement of construction, any basis that is in the best interests of the City; or (5) the procurement is designated for a mentoring program as authorized by law.
(d)Criteria. In developing a PQL for a procurement of goods, services, construction-related services, or a procurement designated for a mentoring program, the criteria that may be used to prequalify vendors include, but are not limited to: (1) current and past experience with similar projects; (2) references, past performance, and reliability; (3) organization, staffing (both members of staff and particular abilities and experience), and ability to undertake the type and complexity of work; (4) financial capability, responsibility and reliability for such type and complexity of work, and availability of appropriate resources; (5) record of compliance with all federal, State, and local laws, rules, licensing requirements, where applicable, and executive orders, including but not limited to compliance with existing labor standards; (6) record of maintaining harmonious labor relations; (7) use of subcontractors; (8) compliance with equal employment opportunity requirements and anti-discrimination laws, and demonstrated commitment to working with minority and women-owned businesses through joint ventures or subcontractor relationships; (9) record of protecting the health and safety of workers on public works projects and job sites as demonstrated by the vendor's experience modification rate for each of the last three years; (10) record of business integrity of vendor; and (11) status as an M/WBE. In developing a PQL for a procurement of construction, except for a procurement designated for a mentoring program, the agency shall use, at minimum, the criteria listed in paragraphs (1) through (10) of this subdivision but may use other criteria as applicable.
(e)Public Notice.
(1)Frequency.
(i)For each category of procurement for which an agency maintains a PQL or intends to establish a new PQL, the ACCO shall publish in the City Record at least once annually and shall post on the City’s website in a location that is accessible by the public simultaneously with its publication a notice or notices specifically identifying each such category and inviting vendors to apply for inclusion on such PQL. Application for inclusion on such PQL shall be continuously available.
(ii)For each procurement not falling within a category for which a PQL has been established, but for which the agency intends to prequalify vendors prior to issuing a solicitation for such procurement, the ACCO shall publish at least once in the City Record and shall post on the City’s website in a location that is accessible by the public simultaneously with its publication a notice of its intention to establish such a PQL and invite vendors to apply for inclusion. There shall be a cutoff date for receipt of prequalification questionnaires for such PQL.
(iii)The CCPO shall cause to be published in the City Record and shall post on the City's website in a location that is accessible by the public simultaneously with its publication a prominently placed continuous notice stating that New York City procurement policy encourages agencies to develop a PQL for various categories of goods, services, construction and construction-related services, including M/WBE-only PQLs. Information and applications to be included on such PQLs may be obtained from the ACCO at each agency, may be submitted to ACCOs at any time, and shall be approved or denied within ninety days from the date of submission.
(iv)For any PQL for construction, in addition to the notices required by this subdivision, the ACCO shall publish, at least once annually, an advertisement in a New York City newspaper of general circulation inviting vendors to apply for inclusion on such PQL.
(2)Content. The notice shall include the agency name, category of procurement, and information on how the vendor may obtain an application.
(f)Questionnaire. To apply for inclusion on a PQL, a vendor must complete and submit an agency-developed prequalification questionnaire. Except for a PQL for a procurement designated for a mentoring program, at least once every two years, and at the time of submitting any bid or proposal in response to a solicitation from a PQL, vendors shall affirm that there has been no change in the information included in the prequalification questionnaire, or shall supply such changed information. With respect to any PQL used in connection with contract awards pursuant to 9 RCNY § 1-02(e), such affirmation by vendors that there has been no change in the information included in the prequalification questionnaire (or the supplying of such changed information) shall occur at the time of contract award.
(g)Making the Prequalification Decision. Prequalification questionnaires shall be reviewed by the ACCO and other agency personnel with knowledge, expertise, and experience sufficient to make a fair and reasonable determination, as appropriate. Except for a PQL for a procurement designated for a mentoring program or a PQL for which the CCPO has approved an alternate review schedule, the ACCO shall review: (1) a properly completed prequalification questionnaire within ninety days from the date of submission to approve or deny prequalification; and thereafter, (2) each affirmation submitted by vendors pursuant to subdivision (f) of this section to ensure that firms that no longer meet the criteria established shall be suspended from prequalification for a period no longer than three months or their certification shall be revoked, as set forth in subdivision (l) below.
(h)Solicitation from a PQL.
(3)Methods of selective solicitation.
(v)Selective solicitation for procurements designated for a mentoring program. Where the solicitation will result in the award of a contract designated for a mentoring program, the agency may select any method of solicitation under this paragraph, either alone or in combination with another method, or may restrict the solicitation to vendors who have been qualified in accordance with the criteria determined prior to the receipt of bids or proposals.
(j)Prequalification not a finding of responsibility. The fact that a vendor has been prequalified does not in and of itself represent a finding of responsibility for a particular procurement. Between the time of bid opening or receipt of proposals and contract award, the ACCO may determine that a prequalified vendor is not responsible and, as such, shall be removed from the PQL.
(k)PQL of auditors. A PQL of auditors shall be maintained by the Comptroller in accordance with this section. An agency seeking to award an audit contract shall solicit only those vendors that have been prequalified by the Comptroller.
(l)Denial, suspension, or revocation of prequalification.
(m)Appeal of denial, suspension, or revocation of prequalification.
(4)Notification. A copy of the decision of the Agency Head or the head of DLS shall be sent to the vendor, stating the reasons upon which the decision is based and informing the vendor of the right to appeal. A copy of such determination shall be sent to both the CCPO for consideration of modification to PASSPort and to the Comptroller’s Office.
(5)Appeal of denial or revocation of prequalification to OATH. The decision of the Agency Head or the head of DLS shall be final unless the denial or revocation is appealed to OATH. If a vendor wishes to contest the Agency Head / head of DLS decision, it may appeal to OATH, which shall hear and take final action in the matter in accordance with its rules. The petition to OATH shall be filed by the vendor within fifteen days of the date of the decision. Supporting documentation, if any, shall be included. The vendor shall, at the same time, send a copy of its appeal to the Agency Head, CCPO, and Comptroller's Office. The agency shall forward a copy of all appeal-related documents within fourteen days of its receipt of the copy of the vendor's appeal to OATH. OATH shall review the decision and determine whether that decision is arbitrary or capricious and whether it is based on substantial evidence. Copies of OATH's determination shall be sent to the vendor, Agency Head, Comptroller's Office, and, where the decision results in the revocation of prequalification, to the CCPO consideration of modifications to PASSPort. (Amended City Record 1/29/2016, eff. 3/1/2016; amended City Record 12/15/2023, eff. 1/14/2024; amended City Record 6/12/2024, eff. 7/12/2024)
