[Adopted 8-4-1993 by Ord. No. 93-16]
A.
In deliberating upon the responsibility of a bidder
or a subcontractor, all contracting agencies shall give due consideration
to any credible evidence or reliable information that the past or
current record of a bidder or proposed subcontractor includes any
of the following:
(1)
Lack of adequate expertise, prior experience with
comparable projects or financial resources to perform the work of
the contract or subcontract in a timely, competent and acceptable
manner. Evidence of such a lack of ability to perform may include,
but shall not be limited to, evidence of suspension or revocation
for cause of any professional license of any director or officer,
or any holder of 5% or more of the bidder's or proposed subcontractor's
stock or equity; failure to submit satisfactory evidence of insurance,
surety bonds or financial responsibility; or a history of termination
of prior contracts for cause.
(2)
Criminal conduct in connection with government contract
or the conduct of business activities involving the infliction, injury
or intentional property damage, in connection with involvement in
a pattern of racketeering, labor racketeering, extortion, obstruction
of justice or other comparable crimes; bribery, fraud, bid-rigging,
embezzlement or other comparable crimes; or serious moral turpitude,
fundamental lack of integrity or knowing disregard for the law. Evidence
of such conduct may include a judgment of conviction, pending criminal
indictment of formal grant of immunity in connection with a criminal
prosecution of the bidder or proposed subcontractor, and director
or officer, or any holder of 5% or more of the shares or equity of
the bidder or proposed subcontractor, or any affiliate of the bidder
or proposed subcontractor.
(3)
Grave disregard for the personal safety of employees,
City personnel or members of the public. Due consideration shall be
given to whether available evidence concerning the training of employees,
equipment actually in use at the work site and company practices for
identifying and addressing deficiencies and securing employee compliance
demonstrates a genuine commitment to safety or lack of the same.
(4)
Willful noncompliance with the prevailing wage and
supplements payment requirements of the Labor Law, including consideration
of any pending violations of the bidder or proposed subcontractor,
or any affiliate of the bidder or proposed subcontractor.
(5)
Any other significant Labor Law violations, including
but not limited to child labor violations, failure to pay wages or
unemployment insurance tax delinquencies.
(6)
Any significant violation of the Workers' Compensation
Law, including but not limited to the failure of a bidder or proposed
subcontractor to provide proof of workers' compensation or disability
benefits coverage.
(7)
Any criminal conduct involving violations of the Environmental
Conservation Law or other federal, state or City environmental statutes
or repeated or significant civil violations for federal, state or
City environmental statutes or regulations.
(8)
The failure of a bidder or contractor to demonstrate
good-faith efforts to comply with applicable federal, state or City
statutes and regulations requiring efforts to solicit and utilize
minority-owned and women-owned business enterprises and disadvantaged
business enterprises as potential subcontractors, in connection with
a pending bid for the performance of a federal-aid or state- or City-funded
or -assisted project subject to such statutory and regulatory requirements.
(9)
The failure of a bidder, contractor or proposed subcontractor
to comply with federal, state or City statutes or regulations requiring
the hiring, training and employment of persons presumed to be disadvantaged
in accordance with federal, state or City definitions to meet federal,
state and City equal employment opportunity requirements.
(10)
The submission of a bid which is mathematically or
materially unbalanced.
(11)
The submission of a bid which is so much lower than
the agency's confidential engineers' estimate for the cost of, or
anticipated bids for, the contract that it appears unlikely that the
bidder will be able to perform the contract satisfactorily at the
price bid.
(12)
Noncompliance by any bidder proposing to supply apparel or textiles
(or by any subcontractor or supplier of that bidder) with any of the
wage and hour, labor, safety, health, environmental, building, fire,
or anti-discrimination laws, rules, codes, regulations or standards
of the country of manufacture or assembly, or that are contained in
the International Labour Organization (ILO) Core Labour Standards
(whichever is stricter). Evidence of such noncompliance may include,
but shall not be limited to:
[Added 9-7-2011 by Ord. No. 2011-12[1]]
(a)
Citations or other evidence of employment-related violations
of said laws, rules, codes, regulations or standards;
(b)
Credible information or reports from the Sweatshop-Free Purchasing
Consortium or its agency members submitted to the City Controller;
(c)
Credible information from interested third parties submitted
to the City Controller; or
(d)
Failure by the bidder or contractor to self-certify its compliance
with applicable laws, rules, codes, regulations or standards.
[1]
Editor's Note: This ordinance also provided for the renumbering
of former Subsection A(12) as Subsection A(13).
(13)
Failure
to offer for purchase, provide, or otherwise use products and services
that have a lesser or reduced effect on human health and the environment
when compared with competing products or services that serve the same
purpose, or that are not in compliance with the City of Ithaca environmentally
preferable purchasing policy guidelines.
[Added 2-1-2012 by Ord. No. 2012-01[2]]
[2]
Editor’s Note: This ordinance also provided for the
renumbering of former Subsection A(13) as Subsection A(14).
(14)
Any other cause of so serious or compelling a nature
that it raises questions about the present responsibility of a contractor
or subcontractor, including but not limited to, submission to a contracting
agency of a false or misleading statement on a uniform questionnaire,
or in some other form, in connection with a bid for or award of a
contract or a request for approval of a subcontractor.
B.
In addition to the factors specified above, contracting
agencies may also give due consideration to any other factors considered
by the contracting agencies to bear upon responsibility, including
but not limited to any mitigating factors brought to the agency's
attention by the bidder or proposed subcontractor.
As used in this article, the following terms
shall have the meanings indicated:
All articles of clothing, cloth or goods, produced by weaving,
knitting, or felting, or any similar goods.
[Added 9-7-2011 by Ord. No. 2011-12]
Any person or business entity submitting a competitive
bid for, receiving the award of, or submitted for approval as a subcontractor
on a contract by any one of the contracting agencies. A subcontractor
on a contract for the purchase of apparel or textiles shall also include
any beneficiary of bankruptcy, assignment, transfer, sale of operations,
or other successorship intended to evade liability or responsibility
for assertions or certifications made in a bid submitted to or contract
with the City of Ithaca or a contracting agency.
[Amended 9-7-2011 by Ord. No. 2011-12]
A corporation, partnership or proprietorship
shall be considered to be an affiliate of the bidder or proposed subcontractor
if one owns, controls or has the ability to control the other, or
if a third person, corporation, partnership or proprietorship owns,
controls or has the ability to control both.
Any purchasing, construction, or service contract, including
those that are required to be let by competitive bid to the lowest
responsible bidder, but not including the individual purchase of employment-related
apparel or textiles, e.g., uniforms, by and for individual employees
of the City of Ithaca, pursuant to the provisions of a collective
bargaining agreement.
[Amended 9-7-2011 by Ord. No. 2011-12]
Any agency or department of the City which is letting a contract
through competitive bidding.
Refers to a supplier of apparel or textiles that are manufactured
and/or assembled without violating the wage and hour, labor, safety,
health, environmental, building, fire, or anti-discrimination laws,
rules, codes, regulations or standards that are applicable in the
country of manufacture or assembly, or that are contained in the International
Labour Organization (ILO) Core International Labour Standards (whichever
is stricter).
[Added 9-7-2011 by Ord. No. 2011-12]
[Added 9-7-2011 by Ord. No. 2011-12[1]]
A.
Pursuant to the Policy Statement on Sweatshop-Free Procurement of Apparel and Textiles, adopted by resolution of the Common Council on September 7, 2011, the City of Ithaca and its contracting agencies shall enter into contracts to purchase or obtain for any purpose any apparel or textiles only with those bidders confirmed to be sweatshop-free, as that term is defined in this chapter, except as set forth in Subsection 39-4B, below, and subject to the provisions of Subsection J, below.
B.
In the event that the City Controller has certified that no confirmed
sweatshop-free bidders of apparel or textiles are available and that
the acquisition of the apparel or textiles sought is essential or
time-sensitive, the contracting agency may select a bidder that is
not confirmed to be sweatshop-free.
C.
For the purpose of implementing the City's policy, a bidder
may be confirmed to be sweatshop-free by either of the following means:
(1)
Certification as such by the Sweatshop-Free Purchasing Consortium
or other comparable independent monitoring organization as selected
by the Common Council; or
(2)
Self-certification by affidavit of the bidder, provided that such
certification is not contradicted by credible information received
by the City Controller.
D.
The City Controller shall collect and maintain information concerning
the City's apparel and textile contracts that are awarded after
the effective date of the enactment of this section, and shall ensure
that the following information is available to the public, upon proper
request:
(1)
For each such contract, a statement from the contractor that such
apparel or textiles are manufactured in accordance with the sweatshop-free
criteria set forth in this chapter;
(2)
A list of the names and addresses of each subcontractor to be utilized
in the performance of each such contract;
(3)
For each such contract, a list of each manufacturing operation of
the contractor and all subcontractors involved in performance of the
contract, and the location, address, and telephone number of each
such facility; and
(4)
For each such contract, a statement signed by the contractor showing that it agrees that it will, at the request of the contracting agency, allow independent monitoring of the contractor's or any subcontractor's facilities, to verify compliance with the requirements of this section, and that the contractor shall be responsible for ensuring that its subcontractors comply with the independent monitoring requirements of this Subsection D.
E.
Upon information and belief that a contractor or subcontractor may
be in violation of this section, the City Attorney may take such action
as may be appropriate and provided for by law, rule or contract. In
circumstances where a contractor or subcontractor fails to perform
in accordance with any or all of the requirements of this section,
and there is a continued need for the service, a contracting agency
may obtain the required service as specified in the original contract,
or any part thereof, by issuing a new solicitation of bids. Administrative
charges may be assessed against the breaching contractor by the City.
The City may, as appropriate, invoke other sanctions as are available
under the contract and applicable law.
F.
A contractor shall be liable for a civil penalty of not less than
$5,000 upon a determination, made through litigation or arbitration,
that a contractor or subcontractor has made a false claim under the
provisions of this section, to the contracting agency.
G.
Every bid solicitation for supplying apparel and textiles to the
City shall contain a statement notifying bidders of the provisions
and requirements of this section. Every contract for the supply of
textiles and apparels shall contain a provision or provisions detailing
the requirements of this section.
H.
Any investigation conducted under the provisions of this section
by the City Attorney shall not extend to work performed more than
two years prior to the filing of a complaint pertinent to any provision
of this section or the commencement of the investigation, whichever
is earlier.
I.
This section shall not apply to any contract entered into prior to
the effective date of this section, except that renewal, amendment
or modification of such contract occurring on or after said effective
date shall be subject to the conditions specified in this section.
J.
This section shall apply except when federal or state law precludes
the City of Ithaca from attaching the procurement conditions herein.
[1]
Editor's Note: This ordinance provided an effective date
of 1-1-2012.
