N.Y. Comp. Codes R. & Regs. tit. 9 § 3.63

Current through Register Vol. 46, No. 43, October 23, 2024

Section 3.63 - Executive Order No. 63: [Establishing procedures for the letting of State contracts.]

(1) Chapter 883 of the Laws of 1976 created the Job Retention Board, the purpose of which is to provide the Governor with a mechanism for granting a preference in the letting of State contracts to New York State resident bidders, who have substantial economic ties with New York State, and who contribute to the State's economy, where sufficient off-setting benefits will be realized by the State in terms of State employment and generation of State and local tax revenues.

(2) In furtherance of this purpose, and in order to assure the effective, fair, and uniform implementation of the mechanism established by chapter 883, the Governor shall, pursuant to subdivision (2) of section 174 of the State Finance Law, recommend the substitution of the bid of a New York State resident bidder only upon the unamimous recommendation of the Job Retention Advisory Committee, hereinafter established, and in accordance with the procedures established by this Order.

(3) The procedures established by this Order shall apply only to contracts, as determined by the appropriate State contracting office, for which:

(3)

(a) the lowest responsible bid has not been submitted by a New York State resident bidder, as hereinafter defined;

(3)

(b) the lowest responsible bid is not for an item substantially manufactured, produced or assembled within New York State;

(3)

(c) a request for preference has been made by submission of a completed preferential bidding form; the amount of the bid accompanied by any such request is within 10 percent of the lowest responsible bid; and such amount is within available appropriations;

(3)

(d) payments of the State contract price will not be derived primarily from Federal funds under regulations precluding preferential award to a State resident bidder; and

(3)

(e) the contract does not cover the procurement of materials, supplies or items, construction activities or any services which have been exempted from this procedure by the appropriate State contracting office because of either the critical and exceptional nature of the subject matter, or the existence of an emergency barring any delay in issuance of the award.

(4) The Commissioner of General Services shall provide sufficient quantities of the preferential bidding form prepared pursuant to section 163-a of the State Finance Law to each State contracting office. The Commissioner of General Services will also issue and disseminate to State contracting offices guidelines in order to assure uniform, orderly and expeditious compliance with the provisions of this Order.

(5) Each State contracting office shall include a copy of the preferential bidding form with documents provided to potential bidders on State contracts until April 1978, and thereafter each State contracting office shall make such preferential bidding forms readily available to all potential bidders.

(6) The appropriate State contracting office shall review any completed preferential bidding form submitted in connection with a bid, otherwise acceptable pursuant to pertinent provisions of law and regulations, to determine whether the bidder is a New York State resident bidder. A New York State resident bidder is one who demonstrates:

(6)

(a) performance of manufacture, production or services within New York State, other than mere marketing, sales or contracting relative to the goods or services to be sold to the State, which generates actual employment within the geographic boundaries of the State representing a contribution to the State's economy, as evidenced by the number of persons so employed and their wages, the amount of unemployment insurance tax paid for such employees per year, and withholding tax participation on behalf of such employees per year; and

(6)

(b) payment of local property tax in New York State in an amount greater than $1,500 per year, or payment of more than $3,000 per year in rental for space within New York State used in the bidder's business; and

(6)

(c) additional participation in the State's economy, evidenced by payment of other State and local taxes, purchase on a regular basis of materials, supplies or services from businesses within the State, or similar activity in the State economy.

(7) Upon a determination by a State contracting office that a bid has been submitted by a New York State resident bidder, the contracting office shall determine whether the award of the contract (by itself, or in the aggregate where items are customarily reordered over a period of time), will result in man-hour employment which represents a significant percentage of the bidder's total employment. Upon a finding that the award of the contract will result in such employment, the contracting office shall immediately advise the Commissioner of General Services who shall refer the matter to the members of the Job Retention Advisory Committee. The contracting office shall provide the Job Retention Advisory Committee with all relevant material necessary for the review of bids submitted.

(8) The members of the Job Retention Advisory Committee shall consider only bids which have been reviewed by the appropriate State contracting office in accordance with the procedures established by this Order.

(9) The Job Retention Advisory Committee shall consist of the Commissioners of Commerce, General Services, and Taxation and Finance, the Industrial Commissioner, the Executive Director of the Economic Development Board, and the Director of the Budget. The Commissioner of General Services shall serve as chairman.

(10) The members of the committee shall review bids referred by the Commissioner of General Services to assure that the provisions of paragraphs (6) and (7) of this Order have been complied with, and to determine whether those extraordinary circumstances required by subdivision (2) of section 174 of the State Finance Law have been demonstrated by the bidder so as to warrant the initiative by the Governor to recommend that the bid of the lowest responsible bidder shall be rejected and the bid of the New York State resident bidder shall be substituted. In reaching its determination, the committee shall consider whether such action would best promote the public interest of the State of New York, having taken into consideration the extent to which competing bidders have economic ties with New York State and contribute to the State's economy, as well as the impact of such action upon the level of employment opportunities for New York State residents and the level of New York State and local business and personal tax revenues to be generated by such action.

(11) Upon a unanimous finding by the Job Retention Advisory Committee that extraordinary circumstances exist warranting the initiative by the Governor to recommend that the bid of the lowest responsible bidder should be rejected and the bid of the New York State resident bidder should be substituted and that such action would best promote the public interest of the State of New York having taken into consideration the extent to which competing bidders have economic ties with New York State and contribute to the State's economy, as well as the impact of such action upon the level of employment opportunities for New York State residents and the level of New York State and local business and personal tax revenues to be generated by such action, the Commissioner of General Services shall immediately notify the Job Retention Board of such determination.

(12) Such notification shall constitute an initiative and recommendation by the Governor, pursuant to subdivision (2) of section 174 of the State Finance Law, and shall constitute a request by the Governor for a meeting of the Job Retention Board, which shall take place within 10 days thereof, as set by the Commissioner of General Services.

(13) The procedure established by this Order is intended solely to implement the power of the Governor pursuant to subdivisions (2) and (3) of section 174 of the State Finance Law and subdivision (4) of section 857 of the Labor Law and shall not be construed to alter, supplement or otherwise modify any practice or procedure required by law, regulation, or otherwise in connection with the awarding of State contracts.

Signed: Hugh L. Carey

Dated: December 19, 1977

N.Y. Comp. Codes R. & Regs. Tit. 9 § 3.63