This section reminds New York State contracting entities of their legal obligations with respect to determining the responsibility of a business entity (vendor, contractor or offerer) to which a contract may be awarded.
This section also serves to outline the State Comptroller's procurement record requirements regarding vendor responsibility. These procurement record requirements help ensure that:
STANDARDS, PROCEDURES, AND DOCUMENTATION REQUIREMENTS
State procurement laws require that state contracting entities award contracts only to responsible vendors. Additionally, the State Comptroller must be satisfied that the submitting business entity is responsible before approving a contract award under Section 112 of the State Finance Law.
Section 163 of the State Finance Law (SFL) requires that contracts for services and commodities be awarded on the basis of lowest price or best value "to a responsive and responsible offerer." Section 163 (9)(f) of the SFL requires that prior to making an award of a contract, each contracting entity shall make a determination of responsibility of the proposed contractor.
Section 8 of the Public Buildings Law provides that all contracts for amounts in excess of five thousand dollars for the work of construction, reconstruction, alteration, repair or improvement of any state building, whether constructed or to be constructed must be offered for public bidding and may be awarded to "the lowest responsible and reliable bidder," as will best promote the public interest, by the said department or other agency with the approval of the State Comptroller for the whole or any part of the work to be performed, and, in the discretion of the said department or other agency, such contracts may be sublet; provided, however, that no such contract shall be awarded to a bidder other than the lowest responsible and reliable bidder without the written approval of the State Comptroller.
As a result, once a state contracting entity, in accordance with the applicable procurement statute, has determined which business entity(ies) should be awarded a contract, the contracting entity must affirmatively determine that such business entity(ies) is responsible before it can award the contract to such business entity(ies) and execute any contract(s). Furthermore, the State Comptroller will not approve a contract unless he or she concurs that the business entity is responsible.
Factors Affecting a Vendor’s Responsibility
Section 163(c) of the State Finance Law provides:
“Responsible” or “responsibility” shall have the same meaning as such terms have been interpreted prior to the effective date of this article.
The courts, in examining vendor "responsibility," have indicated that "responsibility" is "an elastic word," encompassing factors including financial ability to complete the contract, accountability, reliability, skill, sufficiency of capital resources, judgment, integrity and "moral worth."
Whether a business entity is "responsible" is a question of fact to be determined on a case-by-case basis. Based upon existing legal precedents, responsibility determinations can and should involve a review of the following four major categories:
The courts have also recognized a protected constitutional due process liberty interest in connection with a determination of non-responsibility. Therefore, prior to finding a contractor non-responsible, the state contracting entity must offer the "safeguards of reasonable notice and timely opportunity to be heard." This does not require a full evidentiary hearing. Rather, written notice, together with an opportunity to rebut the concerns over the vendor’s responsibility, either in writing or at a meeting with the contracting entity, would appear to be sufficient (see suggested process to be followed below).
Process and Document Preparation:
CONTRACTING ENTITY OBLIGATIONS/OSC REQUIREMENTS
Review of Vendor Responsibility
State contracting entities are required to undertake an affirmative review of the responsibility of any business entity to which they propose to make a contract award. Such review shall be designed to provide reasonable assurances that the proposed contractor is responsible. In undertaking such review, agencies must comply with the following standards:
Submitting Business Entity Associates, Owners and Officers
Tests applied in determining the responsibility of a submitting business entity may also be applied to that business’ associated entities, as well as to any entity to which the proposed contractor is a subsidiary.
Tests applied in determining the integrity of a business entity should also be applied to the owners and/or officers of the entity.
Submission of a Vendor Responsibility Questionnaire and a State contracting entity vendor responsibility review are required for a subcontractor where:
Note: A subcontractor includes any entity that receives funds from the vendor to perform work on a contract awarded by the State. For example, a vendor is awarded a contract worth $250,000 for an IT project. The vendor pays another firm $125,000 to write the software that will be used for the IT project. The firm is considered a subcontractor and must complete a questionnaire since their compensation is over $100,000.
Such requirements apply to all subcontractors meeting the criteria above, including contracts where the contractor is normally exempt from VR, such as preferred source member agencies and corporate partners. Subcontractors are required to obtain a New York State Vendor Identification Number (Vendor ID) to complete a questionnaire whether using the New York State VendRep System or a paper form. The State contracting entity shall initiate the request for a Vendor ID on behalf of the subcontractor.
State Contracting Entity’s Vendor Responsibility Determination and Documentation
For contract transactions requiring vendor responsibility documentation, the state contracting entity must:
Procurement record documentation is most efficiently achieved through the Vendor Responsibility Profile, which with applicable attachments is designed to provide OSC with the required State Contracting Entity Responsibility Determination statement and documentation detailed above.
Additionally, if the original low bidder or best value offerer was determined by the state contracting entity to be non-responsible, resulting in the contracting entity submitting a contract with a contractor that was not the original low bidder/best value offerer, the contracting entity must document the basis for the determination of non-responsibility and the process that was followed in making such determination.
As part of its review of the contract pursuant to Section 112 of the State Finance Law, the Comptroller's Office will review the procurement record prepared by the state contracting entity to verify that the contracting entity has affirmatively reviewed the vendor’s responsibility. In addition, if OSC is not satisfied that there is adequate documentation of the proposed contractor's responsibility, OSC may either (i) return the contract non-approved to the state contracting entity for further consideration of the proposed contractor's responsibility; or (ii) undertake its own review of the proposed contractor's responsibility.
For additional assistance:
Your state contracting entity Counsel
OSC Help Desk – (518) 408-4OSC (4672) or 1-866-370-4OSC (4672)
By Email: firstname.lastname@example.org
OSC Legal – Kevin King or Heidi Nicholson (518) 473-6794