How to Make a Vendor Responsibility Determination
In making a vendor responsibility determination, you must assess whether the vendor has:
- appropriate financial, organization and operational capacity and controls;
- appropriate legal authority to do business in New York;
- a satisfactory record of integrity; and
- an acceptable performance record on past contracts.
You should consider any information that comes to your attention and work with the vendor to address any negative information.
Things to keep in mind:
- Determinations must be made on a case-by-case basis.
- No specific response or piece of information from the vendor should automatically trigger a determination.
- A previous non-responsibility finding does not necessarily ban the vendor from future State contracts.
Reviewing vendor information
When reviewing a vendor, you should rely on the scope of the contract to help guide you in determining what information is most relevant. However, your review must address the four categories below before you can make a determination.
|Category||Factors to be considered include, but not limited to:|
|Financial and Organizational Capacity||Assets, liabilities, recent bankruptcies, equipment, facilities, personnel resources and expertise, and proper auditing and accounting controls.|
|Legal Authority||Authority to do business in New York State, licenses, and registrations.|
|Integrity||Criminal indictments or convictions, civil fines and injunctions imposed by other agencies, anti-trust investigations, ethical violations, tax delinquencies, or debarment by federal, state or local governments.|
|Previous Contract Performance||Reports of less than satisfactory performances, early contract termination for cause, contract abandonment, court determinations of breach of contract.|
Note that the Vendor Responsibility Questionnaire asks vendors to disclose information relating to these categories. Even if the vendor is not required to file a questionnaire, you may still request the vendor to disclose such information if it’s important to your review.
Use our online research tools and resources to help you gather information about the vendor from other government agencies and third parties.
Evaluating a vendor’s past performance
It’s good practice to require the vendor to provide references and identify other government contracts it has received, particularly those similar in scope to the contract at hand. You should contact these references and use the information obtained as part of the review process.
We encourage you to use quality control and consumer satisfaction measures, especially for human services contracts.
Obtaining a list of non-responsible vendors
Our office doesn’t make available a list of non-responsible vendors for State contracting entities. However, we will provide you, upon request, any information we have that’s relevant to the vendor’s responsibility.
Also, when our office conducts our own review, we will notify you if the vendor was previously found non-responsible and it was not disclosed by the vendor.
The Office of General Services (OGS) does publish their own list of vendors they’ve found to be non-responsible, but it is not exhaustive. To view the list as a quick reference, visit OGS’s website.
Again, we caution you that a finding of non-responsibility is not equivalent to a debarment, and that a responsibility determination must be made individually for each contract.
Addressing potentially negative information
Before you make a determination, you should contact the vendor to address any information that appears unfavorable. This provides an opportunity for the vendor to explain or even resolve the issue to your satisfaction.
However, there are valid causes that may warrant a finding of non-responsibility. These include, but not limited to, the vendor having:
- committed fraud, such as anti-trust violations, embezzlement, theft, forgery, bribery or tax evasion;
- made false statements or similar offenses;
- breached contracts resulting in their termination; or
- failed to show its financial capacity to perform the work.
If you become aware of information that calls into question a vendor’s responsibility after you’ve awarded the contract, you may do one of two things:
- review the issue and determine no action is warranted, or
- require the vendor to correct the problem or implement a corrective action plan.
We strongly recommend that all your contracts include a clause that gives you the ability to terminate for cause, such as failure to disclose information. The certification in the Vendor Responsibility Questionnaire also provides for potential contract termination if a vendor provides false or misleading information.