SUNY/CUNY Specific IFB Training Tyler Ahlborn, Brian Fuller & Jenny Reyes

1. SUNY/CUNY Specific IFB Training Tyler Ahlborn, Brian Fuller & Jenny Reyes

2. AGENDA • Education Law/SUNY Thresholds • Preferred Sources • Office of General Services (OGS) Contracts • Invitation for Bid’s • Single/Sole Source Procurements • Emergency Declarations Office of Operations 2009 Fall Conference

3. I. Education Law /SUNY Thresholds

4. EDUCATION LAW 355(5)(A) • …the trustees, after consultation with the commissioner of general services, are authorized to annually negotiate with the State Comptroller increases in the flexibility thresholds and the exemption of any articles, categories of articles or commodities from these thresholds. • The current prior approval threshold for SUNY campuses for commodities and services (excluding any construction) is $250,000* (EXCEPTIONS APPLY) *Section III.B.1 Office of Operations 2009 Fall Conference

5. EDUCATION LAW 355(5)(A)EXCEPTIONS Contracts and POs up to $250k do not require approval by any state agency* except if: A bid protest is received prior to the full execution of contract/PO. The low bidder is not selected. Award not made per IFB/RFP provisions. Single/Sole Source Procurement. These exceptions do not apply to NCAA Division I Agreements** *Section III.B.1 **Section III.C Office of Operations 2009 Fall Conference

6. EDUCATION LAW 355(5)(A)EXCEPTIONS (continued) In the case of exceptions, contracts exceeding $125k are subject to OAG and OSC approval.* See Table in Attachment #1 of this presentation for more detailed information on publishing, bidding and approval requirements. *Section II.B.2 Office of Operations 2009 Fall Conference

7. II. Preferred Sources

8. PREFERRED SOURCES • It is the declared policy of the University that utilization of preferred sources (Corcraft, Industries for the Blind of New York State, Inc., New York State Industries for the Disabled, Inc., New York State Office of Mental Health) occur whenever possible. In accordance with the provisions of the NYS Finance Law §162 and NYS State Corrections Law §184, preferred sources must be considered whenever purchases of commodities or services are required. Form, function and utility requirements may be considered. Where a preferred source is to be used for the provision of commodities or services, no competitive selection process or publication in the Contract Reporter is required. In the event a preferred source is to be rejected, that source must be given prior written notice with an explanation and an opportunity to respond. Section I.D Office of Operations 2009 Fall Conference

9. PREFERRED SOURCES • Services • Industries for the Blind • NYSID • Buy “OMH” • Qualified Veterans • Workshops Commodities 1st Corcraft 2nd Industries for the Blind 3rd Industries for the Disabled (NYSID), Buy “OMH”, and Qualified Veterans’ Workshops are all accorded equal priority http://www.ogs.state.ny.us/procurecounc/pdfdoc/psguide.pdf Office of Operations 2009 Fall Conference

10. III. OGS Contracts

11. OGS CONTRACTS • The SUNY Purchasing and Contracting procedures state that “A campus mayelect to purchase any commodities or services, regardless of amount, from an existing Office of General Services centralized State contract following the procedures and requirements established by OGS, as appropriate for SUNY”.* *Section II.C.2 Office of Operations 2009 Fall Conference

12. OGS CONTRACTS • Advantages of using OGS contracts • Convenient • No need to develop bid specifications • No need for OSC or AG approval (mini-bids may need OSC approval) • No need to advertise Office of Operations 2009 Fall Conference

13. OGS CONTRACTS • Examples of current OGS offerings • Group 20915- Furniture (All types) • Group 20020- Serials • Group 20060- Books, Non Print Library Materials, and related ancillary products • Group 10100- Medical and Surgical Supplies Office of Operations 2009 Fall Conference

14. IV. Invitation for Bids (IFB)

15. INVITATION FOR BIDS (IFB) • Typically used when requirements can be translated into exact specifications • Award will be made based on price • Must be used for commodity purchases • May be used for the purchase of services and technologies

16. INVITATION FOR BIDS (IFB) • Step #1 – Define Agency Needs • Step #2 – Develop your IFB • Step #3 – Contract Reporter Advertisement • Step #4 – Agency Responsibility • Step #5 – Contract Agreement/Applicable Appendices • Step #6 – Submit your proposed contract to OSC (and to the Attorney General’s Office (AG), if applicable)

17. STEP #1 -- DEFINE AGENCY NEEDS • Describe the commodity/service required • Describe the bidder qualifications/requirements • General Requirements • Determining your method of award

18. STEP #1 -- DEFINE AGENCY NEEDS • DESCRIBE THE COMMODITY/SERVICE • Clearly describe the commodity/service needed • Should meet program needs • Be clear, unambiguous and all inclusive • Specify if the commodity must meet certain standards

19. STEP #1 -- DEFINE AGENCY NEEDS • DESCRIBE THE COMMODITY/SERVICE • If referencing a brand name, include an “or equal” specification – for commodities only • Make sure the pricing page includes a place for an alternate make, model # and request the bidder to list any deviations from the referenced item • Specify how the vendor is to bid • Use industry standards, where applicable • Hourly rate, square foot, specified size, etc.

20. STEP #1 -- DEFINE AGENCY NEEDS • DESCRIBE THE BIDDER QUALIFICATIONS/REQUIREMENTS • Specify criteria to provide reasonable assurance the vendor will be able to provide the commodity or service required • Do not use criteria you cannot verify, measure, explain or do not need • Specify if the service requires licensing or certification • Mandatory requirements should be pass/fail

21. STEP #1 -- DEFINE AGENCY NEEDS • GENERAL REQUIREMENTS • List specific delivery requirements – should be FOB Destination • Make sure delivery requirements reflect actual need • Review records of previous contracts, if possible, to review historical usage (estimates), contract deliverables and problems encountered • Ensure requirements are not so restrictive that only one vendor meets the criteria

22. STEP #1 -- DEFINE AGENCY NEEDS • GENERAL REQUIREMENTS • Be careful when using words such as “must, shall, may not, minimum, maximum,” etc. to describe requirements • Do not invite vendors to include prices for additional services or to expand upon the requirements without calculating these additions into the method of award and evaluation Items cannot be awarded if they are not evaluated

23. STEP #1 -- DEFINE AGENCY NEEDS • GENERAL REQUIREMENTS • The SUNY Purchasing and Contracting Procedures state that “When cost factors (e.g., extended warranty coverage, maintenance, etc.) in addition to the base bid are to be considered in an IFB, each factor must be identified in the IFB. When evaluating bids, the cost of each such factor must be calculated and added to the base price in order to determine the lowest price.”* *Section 2.E.2

24. STEP #1 -- DEFINE AGENCY NEEDS • DETERMINE YOUR METHOD OF AWARD • Should be clearly stated • Examples of appropriate Methods of Award are: • Award by item • Award by lot • Award by grand total • Indicate the potential for multiple awards • Indicate how tie bids will be decided

25. STEP #1 -- DEFINE AGENCY NEEDS • DETERMINE YOUR METHOD OF AWARD • When determining the Method of Award, assign a weight to the cost based on estimated usage • If certain services or commodities will be used more frequently, the associated costs must be weighted accordingly in the evaluation • Should be a reasonable estimate – based on historical usage when possible • Reasonable estimates may be percentages or actual units

26. STEP #2 -- DEVELOP YOUR IFB • Administrative Process • Contract Terms and Conditions including, but not limited to: price adjustment clauses, renewals, termination, appendices, site visits

27. STEP #2 -- DEVELOP YOUR IFB • ADMINISTRATIVE PROCESS • Date, time and place of bid opening • Requirements for submitting faxed or sealed bids • Timeline for process • Name, phone, fax and e-mail address of the contact person for questions and for Lobby Law • Timeframe for submitting and responding to written questions relating to the IFB • Description of how bidders will be informed of potential addendums to the IFB

28. ADMINISTRATIVE PROCESS cont. Include your debriefing procedures in the solicitation Campuses are encouraged to notify all offerers as to whether they are successful or unsuccessful. Upon request, it is recommended that an unsuccessful offerer should be provided a debriefing as to why it was unsuccessful.* STEP #2 -- DEVELOP YOUR IFB *Section II.F 28

29. STEP #2 -- DEVELOP YOUR IFB • CONTRACT TERMS AND CONDITIONSPrice Adjustment Clauses • Used to reimburse contractors for increased costs but also allows for the State to be compensated if costs decrease • Price adjustments will affect bids, therefore they must be noted in the solicitation document in order to be included in the contract

30. STEP #2 -- DEVELOP YOUR IFB • CONTRACT TERMS AND CONDITIONS • Price Adjustment Clauses • Must be clearly defined • Consumer Price Index (CPI) must include the index, region, base period and item • Producer Price Index (PPI) must include the proper series ID • CPI/PPI indices must be relevant to the item/service being procured • May use other items such as prevailing wages, fuel indices, etc. • Contracts utilizing de-escalation/escalation for both services and materials should include a proportional breakdown of the cost in the bid document

31. SAMPLE PRICE ADJUSTMENT LANGUAGE STEP #2 -- DEVELOP YOUR IFB Vendor, or the state, may request a price increase or decrease based on changes in the CPI. CPI to be used is CPI - All Urban Consumers – Northeast All Items for the 12 months ended 90 days prior to the anniversary date of the contract. Requests for changes must be initiated 60 days prior to the anniversary date of the contract. Only one price adjustment per year will be granted on the anniversary date of the contract.

32. STEP #2 -- DEVELOP YOUR IFB • CONTRACT TERMS AND CONDITIONS Renewals and Termination Provisions • Contract term and subsequent renewals • Should not exceed five years total (2 years for printing) • Termination Provisions • Lobby Law violations • Should not allow vendor’s unilateral right to terminate (Bulletin G-214)

33. STEP #2 -- DEVELOP YOUR IFB • CONTRACT TERMS AND CONDITIONS Site Visits • If the site visit is mandatory, it cannot be waived for any vendor, including the incumbent • Provide OSC with a sign-in sheet for verification • Bids received from vendors who did not attend the mandatory site visit must be rejected • Site visits should be conducted on one day at one time so all vendors have the same information

34. STEP #2 -- DEVELOP YOUR IFB • CONTRACT TERMS AND CONDITIONS • Prevailing wage schedules, if applicable • Mandatory requirements • Order of Precedence clause • Vendor Responsibility Documentation • Tax Department Certification • Procurement Lobbying Documentation • Exhibit A

35. STEP #3 – CONTRACT REPORTER ADVERTISEMENT Contract Reporter Requirements Changes to the Contract Reporter Sample Advertising Language Discretionary Purchases Single/Sole Source Purchases Bid Opportunity

36. STEP #3 – CONTRACT REPORTER ADVERTISEMENT • CONTRACT REPORTER REQUIREMENTS • Bulletin G-107B • Must appear in the Contract Reporter at least 15 business days prior to the proposal due date • SUNY is required to advertise: • Bid solicitations over $20,000 • Printing contracts over $5,000 • Annual anticipated procurements up to $250,000 based on date of first purchase • Contract Reporter exemptions must be approved by OSC prior to publishing exemption • Make sure to include an “or equal” in your advertisement to avoid restricting competition • Agencies must use due diligence to identify potential bidders Bid Opportunity

37. STEP #3 – CONTRACT REPORTER ADVERTISEMENT • CHANGES TO THE CONTRACT REPORTER • Section 142 amended* to require the Department of Economic Development to : • Publish Contract Reporter daily, rather than weekly • Make it available online, free of charge • Ads must remain online for 15 days (*Changes to take effect on December 31, 2009)

38. STEP #3 – CONTRACT REPORTER ADVERTISEMENT • SAMPLE ADVERTISING LANGUAGE (DISCRETIONARY) • Best practices Language #1 • [Agency X] intends to purchase [1,000 widgets] pursuant to its discretionary authority under Education Law 355 (5)(A). Interested parties should contact [agency contact person] to discuss this opportunity. • Best Practices Language #2 • [Agency X] intends to purchase [1,000 widgets] pursuant to its discretionary authority under Education Law 355 (5)(A), which authorizes purchases without a formal competitive process in certain circumstances, including purchases from New York State small businesses, from businesses certified pursuant to Article 15-A of the New York State Executive Law and, if applicable, from businesses selling commodities or technology that are recycled or remanufactured. Interested parties should contact [agency contact person] to discuss this opportunity.

39. STEP #3 – CONTRACT REPORTER ADVERTISEMENT • Best Practice Language #3 • [Agency X] intends to purchase [1,000 widgets] pursuant to its discretionary purchasing authority under State Finance Law Section 163. This procurement opportunity is limited to NYS Small Businesses, businesses certified pursuant to Article 15-A of the NYS Executive Law and, if applicable, businesses selling commodities or technology that are recycled or remanufactured. This language can only be used when no formal solicitation has been made using an IFB or RFP. 39

40. STEP #3 – CONTRACT REPORTER ADVERTISEMENT SAMPLE ADVERTISING LANGUAGE (SINGLE/SOLE SOURCE) Best Practice Language #4 “Agency X intends to purchase (insert project definition, i.e., 100 widgets) pursuant to state laws which authorize sole source purchases without a formal competitive process in certain circumstances. A vendor who believes that they can provide this product/service or an equivalent should contact (insert designated agency contact) for a copy of the bid specifications/solicitation or to discuss this opportunity prior to the due date stated in this advertisement”

41. STEP #4 – AGENCY RESPONSIBILITY • Bid Tabulations • Identifying the lowest vendor • Vendor Responsiveness/Responsibility • Exceptions/Deviations • Vendor’s Terms and Conditions • Bid Protests • Rejected Bids • General steps throughout the procurement process

42. STEP #4 – AGENCY RESPONSIBILITY • BID TABULATIONS • At the time of the bid opening • Reflect all bids received based on the method of award • Signed and certified by the agency on the day of the bid opening • Before sending to OSC • Indicate any rejections • Indicate the low bidder(s)

43. STEP #4 – AGENCY RESPONSIBILITY • IDENTIFYING THE LOWEST VENDOR • Identify the lowest responsive and responsible bidder and make sure they bid in accordance with the method of award • Ensure the product/service being offered meets the minimum specifications of the bid • Compare the minimum specifications of the product offered with those of the brand name referenced, if applicable • Verify vendor’s calculations

44. STEP #4 – AGENCY RESPONSIBILITY • VENDOR RESPONSIVENESS/RESPONSIBILITY • Investigate large variations in bid prices to ensure the low bidder understands the scope of work • Review vendor responsibility questionnaire and applicable resources including past performance • Verify the vendor is not present on the Workers’ Compensation or Labor Law debarred lists www.labor.state.ny.us/workerprotection/publicwork/PWContents.shtm

45. STEP #4 – AGENCY RESPONSIBILITY • EXCEPTIONS/DEVIATIONS • Exceptions/deviations to the bid specifications should be acknowledged and included in the procurement record • Include a memo for OSC/the Procurement Record, detailing how the agency determined the exception/deviation are immaterial • If an exception/deviation is deemed immaterial, explain how other bidders and potential bidders were not harmed by accepting the exception/deviation

46. EXAMPLE Regarding the qualifications of the vendor, the agency indicates the following: “Vendor must have a minimum of 5 years experience.” “Vendor will provide evidence of licensing.” “Vendor shall possess the necessary equipment to perform the required service.” The agency received three bids – two with less than 5 years experience and one with 6 years experience. The vendor with the most experience was the highest bidder. • Key points to consider: • Are the qualifications mandatory? • Can the agency deem the lack of experience a minor deviation? • What problems might this present?

47. Solution • Per SUNY Guidelines* • “The University reserves the right to eliminate mandatory requirements unmet by all offerers.” • Recommended - in the absence of this provision no mandatory requirement may be waived. Please note that a mandatory requirement unmet by all offerers can only be waived if: (1) doing so is of benefit to the State (2) doing so does not either advantage or disadvantage any bidders (3) potential bidders were not discouraged from submitting proposalsbecause of that mandatory requirement. *Section II.D.5.c

48. STEP #4 – AGENCY RESPONSIBILITY • VENDOR’S TERMS AND CONDITIONS • If the vendor submits terms and conditions with their bid these have to be reviewed to ensure the State is held harmless and that the submitted terms and conditions comply with all NYS Laws and regulations. • This also applies to single and sole source procurements

49. STEP #4 – AGENCY RESPONSIBILITY • BID PROTESTS • Bulletin G232 • Include your agency’s bid protest procedures in the solicitation document • Respond appropriately to any protests received • Include bid protest documentation with procurement package submitted to OSC

50. STEP #4 – AGENCY RESPONSIBILITY Rejected bids should: • Be supported by a memo • Include the reason for rejection • Allow due process for non-responsible bidders • Be included with the contract package