There is hereby created a Board of Contract and Supply to be composed of the Mayor, Comptroller, Commissioner of Public Works, Corporation Counsel, and City Engineer.
[Adopted 10-5-1970 (Ch. 2, Div. 4, §§ 2-75 through 2-92, of the 1970 Code)]
The Mayor shall be President of the Board of Contract and Supply and shall preside at all meetings. Meetings of the Board shall be held in the municipal building upon the call of the Mayor. A majority of the members of said Board shall constitute a quorum for the transaction of business.
The Board of Contract and Supply shall have power to adopt such rules as may not be inconsistent with the statutes and ordinances in force relative to the government of the City.
A.
Position created; appointment; term. There is hereby created the position of Secretary of the Board of Contract and Supply. Such Secretary shall be appointed by the Board to hold office during its pleasure.
B.
Duties. It shall be the duty of said Secretary to keep a full journal of all the proceedings of the Board and to perform such additional duties as may be required by the Board, or by law or ordinance of the City Council.
[Amended 2-2-1976 by Ord. No. 19-1976]
A.
Except as otherwise provided by law, it shall be the duty of the Board of Contract and Supply, after public notice and in accordance with regulations prescribed by general ordinance of the City Council, to award to the lowest responsible bidder, who will give adequate security therefor, all contracts for public work involving an expenditure of more than $20,000 and all purchase contracts involving an expenditure of more than $10,000.
[Amended 12-4-2006 by L.L. No. 2-2006]
B.
Notwithstanding the provisions of Subsection A of this section, in the case of a public emergency arising out of an accident or other unforeseen circumstances affecting public buildings, public property or the life, health, safety or property of the inhabitants of the City of Binghamton therein, or any public property requiring immediate action which cannot wait competitive bidding, contracts of public work or the purchase of supplies, materials or equipment may be let by the appropriate officer or board without a letting by contract and filing with the Board of Contract and Supply a certificate setting forth the reasons of said emergency.
C.
Upon the adoption of an ordinance by a vote of at least 4/5 of all the members of City Council therein stating that, for reasons of efficiency or economy, there is need for standardization, purchase contracts for a particular type or kind of equipment, materials or supplies of more than $10,000 may be awarded by the Board of Contract and Supply to the lowest responsible bidder furnishing the required security after advertisement of sealed bids therefor in the manner provided in this section. Such ordinance shall contain a full explanation of the reasons for its adoption.
[Amended 12-4-2006 by L.L. No. 2-2006]
D.
In the event the award is not made to the lowest qualified bidder then and in that event, before a contract is awarded to other than the lowest qualified bidder, such board shall report to the Council all bids received with a certificate from such board stating in full the particulars of and the reasons why the lowest qualified bidder is not to be awarded the contract and no contract shall be awarded by such board to other than the lowest qualified bidder unless and until a resolution of the Council is duly adopted authorizing such board to award a contract to one other than the lowest qualified bidder.
In case of public emergency involving accident or other injury, by which the heating or plumbing of any of the public buildings or any of the fire or waterworks apparatus shall become disabled, the commissioner or officer having jurisdiction thereof shall promptly cause repairs thereto to be made without a letting by contract, upon filing with the Board of Contract and Supply a certificate, approved by the Mayor, showing such emergency and the necessity for such repairs.
The public notice, required by § 18-11, shall describe the work and materials for which contracts will be awarded and the day and hour and place of the meeting of the Board of Contract and Supply at which proposals therefor will be opened.
Specifications for the performance of any work and for the supply of any materials shall be prepared and set forth with sufficient detail to inform all persons proposing to bid therefor of the nature of the work to be done and of the materials to be supplied, and written or printed copies thereof shall be delivered to all applicants therefor.
Every contract for a public improvement shall be based upon an estimate of the whole cost thereof, including all expenses incidental thereto and connected therewith, to be furnished by the proper officer, board or department having charge of such improvements.
No bid or proposal shall be received or contract awarded, other than for a local improvement or work to be performed by the City, which involves the construction or maintenance of any structure, erection, obstruction or excavation within, under, over, along or upon any street or public place within the City, unless the person to whom such contract shall be awarded shall have a franchise permitting the same.
The Board of Contract and Supply may, in its discretion, require, as a condition precedent to the reception or consideration of any bid or proposal in respect to which it has power and authority to award a contract thereon, the deposit with it of a certified check upon a state or national bank, drawn to the order of the Comptroller, or of money, in an amount not exceeding 10% of the amount specified in such bid or proposal. Within three days after a decision as to the award of the contract, the deposits so made shall be returned to the bidders making the same, except the deposit made by the bidder whose bid has been accepted; and if the bidder whose bid has been accepted shall refuse or neglect to execute the same within 10 days after due notice that the contract has been awarded, or to give the security, if any, required for the performance thereof, the amount of the deposit made by him or her shall be forfeited to and retained by the City as liquidated damages for such neglect or refusal; but if said bidder shall execute the contract within the time aforesaid and give the security, if any, required for the performance thereof, the amount of his or her deposit shall be returned to him.
[Amended 9-21-1981 by Ord. No. 157-81]
In cases where security is required to be given for the performance of any contract, a performance bond, executed by the contractor and by a fidelity or surety company, authorized by law to transact business within the state, shall be given to the City. Cash or equivalent or cash bonds, escrow accounts, or irrevocable letters of credit from a bank payable to the City of Binghamton shall be acceptable in lieu of a performance bond. The form of such bond or other acceptable security for performance shall be prescribed by the Corporation Counsel.
The Board of Contract and Supply shall furnish printed blanks for bids or proposals for the performance of any work or for the supply of any materials to any person demanding the same, and all bids or proposals must be made upon such blanks.
A.
The Board of Contract and Supply shall have power to reject all bids or proposals if, in its opinion, the lowest bid or proposal is excessive.
B.
The Board of Contract and Supply shall disregard all bids or proposals not complying with the terms of the public notice or advertisement inviting the same, and no bids shall be accepted from or contract awarded to any person who is in arrears to the City upon any debt or contract, or who is in default on surety or otherwise upon any obligation to the City, or who has refused or neglected to execute any contract awarded to him or her, or to give the surety, if any, required for the performance thereof within the time fixed therefor.
Whenever any bid or proposal consists of two or more separate and distinct items, the Board of Contract and Supply may, in its discretion, award a contract upon any one or more of such items, in the same manner and with the same force and effect as though the several separate and distinct items of such bid were each in the form of a separate and distinct bid or proposal.
After a contract is awarded, the party or parties to whom such award is made shall sign the same within 10 days from the date of said award and the work under such contract shall be commenced within the time set forth in the specifications, unless the Board of Contract and Supply shall, by a two-thirds vote of all the members, extend such time; and if the party or parties to whom such award is made shall fail to so sign, or to so begin the work as herein required, or to cause the same to progress to the satisfaction of the Commissioner of Public Works, said Commissioner shall report the same to the Corporation Counsel, whose duty it shall then be to notify the contractor and his or her sureties to proceed with said work, as required, within 10 days from the receipt of said notice, and if the contractor or his or her sureties shall fail to comply with said notice the Corporation Counsel and Commissioner of Public Works shall notify, in writing, the Board, which shall thereupon vacate the contract and relet the work to the next lowest bidder, or readvertise for new bids. The party or parties failing as above shall be barred, both directly and indirectly, from rebidding for said work, and the Corporation Counsel shall thereupon proceed against the contractor and his or her sureties and shall recover upon his or her bond all damages resulting from his or her failure to perform his or her contract, together with any liquidated damages therein provided to be paid.
All proposed contracts, after preparation thereof, shall be approved by resolution of the Board of Contract and Supply before final execution by the Mayor.
The Commissioner of Public Works shall have power to stop any work being performed or materials being delivered under contract, when in his or her judgment such work or materials are inferior in character or quality, or contrary to specifications, and it shall be his or her duty thereafter to report the same immediately to the Board of Contract and Supply, and such work or delivery shall not be resumed until the Board shall so authorize.
[Added 4-4-2005 by Ord. No. 05-18; 8-8-2024 by L.L. No. 2-2024]
A.
Legislative Intent: It is the intent of this section to enhance the City's ability, in compliance with applicable law, to identify the lowest "responsible bidder" on Public Works Construction Projects by instituting more comprehensive submission requirements and an evaluation system which is in compliance with New York State General Municipal Law. The City, based on its experience, has determined that quality workmanship, efficient operation, safety and timely completion of projects are not necessarily assured by awarding a public works contract solely on the basis of low price. This section establishing uniformity of guidelines for determining the responsibility of bidders will assure efficient use of taxpayer dollars, will promote public safety and is in the public interest.
C.
Public Works: For purposes of this section, the term "public works construction projects" shall mean the following:
(1)
Any constructing, altering, reconstructing, repairing, rehabilitating, refinishing, refurbishing, remodeling, remediating, renovating, custom fabricating, maintenance, landscaping, improving, moving, wrecking, painting, decorating, demolishing, and adding to or subtracting from any public building, structure, airport facility, highway, roadway, street, alley, bridge, sewer, drain, ditch, sewage disposal plant, water work, parking facility, railroad, excavation, or other project, development, real property, or improvement, or to do any part thereof, whether or not the performance of the work herein described involves the addition to, or fabrication into, any structure, project or development, real property or improvement herein described of any material or article of merchandise, which is paid for out of a public fund or out of a special assessment.
(2)
The term also includes any public works leased by a political subdivision under a lease containing an option to purchase.
D.
Responsible Bidder Questionnaire:
(1)
New York Vendor Responsibility Questionnaire: Before a public works construction project contract may be awarded under this section, contracting officials shall determine the responsibility of potential contractors and subcontractors by reviewing uniform questionnaires submitted by each contractor and subcontractor for the project. All bidders are required to submit the New York State Vendor Responsibility Questionnaire For-Profit Construction (CCA-2) form (hereinafter "Uniform Questionnaire") to ascertain information as to integrity, responsibility and competence of prospective bidders.
(2)
Conformity by Subcontractors: Subcontractors shall complete the Uniform Questionnaire and meet the same responsibility standards as contractors to be eligible to work on public work contracts. Uniform Questionnaires shall be completed by subcontractors no later than seven days following the opening of the bid. The City reserves the right to reject the bid on the basis of unsatisfactory questionnaire responses submitted by a subcontractor identified pursuant to Subsection D(2) or designated to perform work by the bidding general contractor.
E.
Requirements: All general bidders for construction projects funded by the City as set forth above in Subsection B, shall as a condition for bidding, agree in writing that they shall comply with, and require subcontractors to comply with, with the following obligations set forth below in this section.
(1)
All bidders shall fill out the Uniform Questionnaire in order to assist the City and Board of Contract and Supply in ascertaining the financial responsibility, accountability, reliability, skill, judgment, and integrity of the apparent lowest bidder. All bidders shall require each subbidder to fill out the uniform questionnaire within seven days of bid opening.
(2)
The City and Board of Contract and Supply shall utilize the "Guidelines for Responsibility Determinations" as set forth in Executive Order No. 170 (9 NYCRR 4.170) in evaluating responsibility of contractors and determining the lowest responsible bidder. In making such determinations, the City may rely on the following non-exhaustive list of reasons a bidder may be deemed not responsible:
(a)
Criminal history of a contractor or subcontractor's principals, including indictments or convictions related to business activities or for underlying conduct related to truthfulness;
(b)
Evidence of bid-rigging on prior contracts;
(c)
Past history of dishonest work practices or inadequate performance of prior public work contracts;
(d)
Final determination of willful violation of New York Labor Law which was not subsequently overturned and/or withdrawn;
(e)
Disbarment or exclusion from state or federal public works contracts;
(f)
Non-responsiveness to or lack of cooperation in response to requests for information transmitted in furtherance of this section; or
(g)
Material variance from a project's bid specifications.
(3)
All contractors and all subcontractors shall properly classify their workers as employees rather than as independent contractors, unless those workers meet the definition of "independent contractors" as set forth in the New York Construction Fair Play Act, and shall treat such employees accordingly for purposes of workers' compensation insurance coverage, unemployment insurance, employment taxes and social security taxes.
(4)
Contractors and all subcontractors awarded public works construction project contracts shall require each employee to sign in and out at the beginning and end of each day, and list next to his or her name his or her craft and apprenticeship status, and to provide this information to the City Purchasing Department or one or more members of the Board of Contract and Supply, on a weekly basis. This information shall be kept by the City for a period of three years and copies of the same shall be made available to the public upon Freedom of Information Law (FOIL) request.
F.
Procedure.
(1)
The Commissioner shall distribute to all bidders a copy of this section and the Uniform Questionnaire and thereafter collect from bidders all information required by this section, and keep such information for a period of three years, review of which will be made available to the public upon Freedom of Information Law (FOIL) request.
(2)
If a bidder fails or refuses to provide all the information requested in this section, or provides false information, the bidder's bid may be rejected.
(3)
The Commissioner shall make available for inspection in the Purchasing Office of the City of Binghamton a listing of the three apparent lowest bidders one week before the City makes an award of a public works construction project contract subject to the requirements of this section.
(4)
If any bidding contractor or designated subcontractor is found to have willfully violated New York Labor Law § 220 ("New York Prevailing Wage Law") that bidder shall automatically be deemed "non-responsible" and be rejected unless the Board of Contract and Supply, as approved by the City, determines otherwise. Otherwise, based on all of the information collected pursuant to this section and any other factor the City deems relevant, the Board of Contract and Supply shall determine if the apparent lowest bidder is in fact "responsible."
(5)
If the apparent lowest bidder is deemed not to be responsible, then the next lowest bidder will be reviewed for responsibility and so on until the lowest bidder is deemed responsible and selected as the lowest responsible bidder.
(6)
If the amount of the lowest responsible bidder appears disproportionately low when compared with estimates undertaken by or on behalf of the City, and/or compared to other bids submitted (10% or greater disparity), the City reserves the right to inquire further of the apparent lowest bidder to determine whether the bid contains mathematical errors, omissions and/or erroneous assumptions, and whether the apparent lowest bidder has the capability to perform and complete the contract for the bid amount. Bidders retain the right to withdraw bids upon a showing of a bid mistake as set out in General Municipal Law § 103(11) and any amendments or revisions thereto.
(7)
No later than five calendar days prior to a final determination that the apparent lowest bidder is not responsible, the Board of Contract and Supply will notify the affected bidder in writing, stating the reasons for the determination and setting forth a time, date and place for the apparent lowest bidder to be heard before the Board of Contract and Supply on the issue of responsibility. On the date of the opportunity to be heard, the affected bidder may appear in person and may submit further information via an affidavit or written submission to refute the findings upon which the Board of Contract and Supply's initial determination of apparent non-responsibility is based. The Board of Contract and Supply shall thereafter make a final determination as to responsibility based on the information presented and any other factor it deems relevant. Such determination may be reviewed in accordance with New York law.
G.
Incomplete Submissions by Bidders and Subcontractors: It is the sole responsibility of the contractor to comply with all submission requirements at the time it submits its bid to the City. The submission requirements also apply to all subcontractors, except that the contractor shall submit all subcontractor questionnaires to the City no later than seven days following the bid opening. Contractor and/or subcontractor submissions deemed materially noncompliant with bid specifications will result in automatic rejection of the bid. The City reserves the right to waive non-material defects in bids or variances from bid specifications.
H.
Sanctions:
(1)
Any bidder or subcontractor bidder who fails to comply with any of the obligations described in this section, and only following an opportunity for the bidder to be heard, may be subject to one or more of the following sanctions, to the extent permissible by law:
(a)
Temporary suspension of work on the project until compliance is obtained; or
(b)
Withholding by the City of payment due under the contract until compliance is obtained; or
(c)
Permanently removal from any further work on the project; or
(d)
Liquidated damages payable to the City in an amount equal to 5% of the dollar value of the general contract.
(2)
In addition to the above sanctions, to the extent permissible by law, any contractor or subcontractor, its alter ego or control group, or principal officer who has been determined to have violated any of the provisions of this section shall be barred from performing any work on future contracts awarded by the City for six months for the first violation, three years for the second violation, and permanently for the third violation.
(3)
Any sum collected as a fine or penalty pursuant to this section shall be applied toward enforcement and administration costs.
I.
Public Records: All information submitted by a contractor or subcontractor pursuant to this section is public record and shall be available to any person upon request, in compliance with the City's FOIL policy.
J.
Materiality: The requirements of this section are a material part of the bid documents and the contract and the successful bidder shall insert this section in all subcontracts.
K.
Severability: If any portion of this section or the application thereof to any person or circumstance is held invalid, such invalidity shall not affect other portions or applications of this section which can be given effect without the invalid portions or applications and, to this end, the portions of this section are severable.
M.
Construction With State Law: This section shall be construed and applied in accordance with any applicable provisions of New York law. To the extent that any provisions of this section are preempted by or conflict with state law, including but not limited to, New York State General Municipal Law § 103, then the applicable state law shall prevail and the provisions of this section shall not apply.
N.
Standing: Any resident, taxpayer of the municipality, or other organization may file an action in court challenging the non-enforcement of this section.
[1]
Editor's Note: Former § 18-26, Preference for bidders for public works contracts utilizing local labor, added 4-4-2005 by Ord. No. 05-18, was repealed 8-8-2024 by L.L. No. 2-2024.
[Added 4-4-2005 by Ord. No. 05-18]
The several provisions of this article shall be severable in accordance with the following rules:
A.
If any court of competent jurisdiction shall adjudge any provision of this article to be invalid, such judgment shall not affect any other provision of this chapter.
B.
If any court of competent jurisdiction shall adjudge invalid the application of any provision of this article to a particular contract, such judgment shall not affect the application of said provision to any other contract.