Operating Procedure
Title: VENDOR ETHICS – COMPLIANCE WITH LOBBYING LAW Number: 36-002-04
Effective Date: January 1, 2006 Page 5 of 5
A. POLICY
1. MTA Metro-North Railroad (“MNR”) is committed to conducting its procurement processes in compliance with the provisions of the New York State Finance Law and Legislative Law as amended by Chapter 1 of the Laws of New York of 2005 (“Lobbying Law” or “Law”). The applicable provisions of the Lobbying Law take effect as of January 1, 2006.
2. The Lobbying Law is intended to reemphasize the values of the government procurement process described in the New York State Finance Law, which include the prudent use of public money, the efficient and timely acquisition of commodities and services, the highest quality purchases at the lowest practicable cost, and the emphasis on an open, transparent, and fair procurement process.
3. The Lobbying Law obligates MNR and the vendors with which it conducts business to undertake specific actions as a part of the procurement process. It sets forth specific requirements regarding communications during the procurement process and establishes specific contractual requirements. It also imposes specific consequences for those vendors who violate the Law.
4. Under the provisions of the Lobbying Law, vendors or their representatives are permitted to communicate with a public entity for purposes of attempting to influence the procurement through a designated “point of contact” only. The vendor or vendor’s representative may not communicate with any other MNR employee during the procurement process in an attempt to influence the procurement process. All such attempts at influencing the procurement process, whether “permissible” or “impermissible,” must be formally recorded by the affected employee and forwarded to MNR’s Procurement and Material Management Department (“P&MM”), for further review and determination as to whether an actual violation of the Lobbying Law has taken place.
5. The provisions of the Lobbying Law apply to all MNR procurements in excess of $15,000, regardless of the type of contract or the solicitation method. The Law is triggered at the time of public advertisement or formal outreach to the vendors and remains in effect for that particular procurement up to and including contract award. This time period between the advertisement or procurement commencement date and the date of contract award is known as the Restricted Period.
6. In addition to the provisions of the Lobbying Law, the Metropolitan Transportation Authority (“MTA”) has adopted a Vendor Code of Ethics (“Code”), which is intended to further demonstrate the MTA and its constituent agencies’ commitment to procurement processes that foster fair and open competition and that are conducted under the highest ethical standards. The complete text of the Code can be found on the MTA Intranet.
B. DEFINITIONS
As used in this procedure and as provided in the Lobbying Law:
1. Contact means an oral, written or electronic communication with MNR under circumstances in which a reasonable person would infer that the communication is intended to influence a specific MNR procurement.
2. An Offerer means an individual or entity, or any employee, agent or consultant or person acting on behalf of such individual or entity that contacts MNR about a procurement during the Restricted Period or that bids or proposes on a MNR procurement.
3. Restricted Period means the period of time commencing with the earliest written public notice, advertisement or solicitation of a Request for Proposal (“RFP”), Invitation for Bid (“IFB”), Request for Quotation (“RFQ”), solicitation of proposals or any other method for soliciting responses from Offerers intending to result in a procurement award by MNR. The restricted period ends with the final contract award and approval by MNR.
4. Point of Contact means the designated contact person(s) specified in the bid/solicitation documents. The person(s) must be representative(s) of the P&MM Department. Exceptions to this must be explained in writing by the Director of P&MM and included in the bid/solicitation documents.
C. STEPS
1. Contractual Requirements
a. P&MM determines whether a particular procurement is subject to the provisions of the Lobbying Law. If so, the Contract Manager ensures that the appropriate contractual provisions are included in the solicitation.
b. The contract provisions relating to the Lobbying Law must include the following:
(i) a designated “Point of Contact” must be formally named in the contract documents; the Point of Contact must always initially be a representative of P&MM
(ii) a brief summary of the Law’s requirements
(iii) Lobbying Law form which includes an affirmation of the Bidder’s understanding of and agreement to comply with the Law, and a certification that all information provided to MNR with respect to the Law is complete, true and accurate, and a disclosure of prior non-responsibility determinations, and
(iv) a specific right by MNR to terminate the contract in the event an Offerer filed an intentionally false or incomplete certification.
c. All Offerers must submit completed Lobbying Law forms for any procurement covered by the Lobbying Law for that bid or proposal to be considered responsive, although submission of completed forms is not a condition of responsiveness at bid opening.
d. The Contract Manager must include a review of the Lobbying Law form submission as a part of the overall vendor responsiveness and responsibility determination process prior to contract award. The New York State Office of General Services (“OGS”) has established a database that tracks violations of the Lobbying Law for all covered New York State government entities. A review of this database is required as a part of the vendor responsibility determination process.
e. All procurements covered by the Lobbying Law must contain a file folder for all Lobbying Law specific documents.
f. A statement of Lobbying Law compliance is required in the Staff Summary sheet for all procurements covered by the Lobbying Law which require MTA Board approval.
2. Vendor Contacts During the Restricted Period
a. During the Restricted Period of a procurement covered by the Lobbying Law, all “contacts” made by an Offerer must be made with the designated Point of Contact only, and the Point of Contact shall be named in the solicitation documents.
b. In the event an employee of MNR other than the Point of Contact is the recipient of a contact by an Offerer, as defined in paragraph B.1, that employee must report that contact to the Director of P&MM using the “Report of Contact” Form within five business days of the date the contact occurred. The affected employee shall obtain the name, address, telephone number, place of principal employment and occupation of the person or organization making the contact and inquire and record whether the person or organization making such contact was the Offerer, or was retained, employed or designated by or on behalf of the Offerer regarding the procurement. Care is to be given to secure the necessary information items without unduly prolonging the contact.
c. Any MNR employee who knowingly is the recipient of a contact as defined in paragraph B.1 above and fails to report that contact may be subject to disciplinary action by MNR. At a minimum, employee violations of the Lobbying Law shall be reported to the President of MNR.
d. All communications from Offerers during the Restricted Period do not necessarily rise to the level of a “Contact” as defined in paragraph B.1 above. Simple communications about a bid opening date, construction locations, etc., or other simple factual inquiries need not be recorded or reported.
e. All Report of Contact forms will be maintained by P&MM. Copies of the forms will be kept in the individual contract files, as well as in a central repository within P&MM.
f. All Report of Contact forms received by P&MM will be reviewed to determine whether an actual violation of the Lobbying Law may have occurred. The investigation and determination process is outlined below in section C.3.
g. Notwithstanding the foregoing, there are certain types of contacts that are deemed “permissible” contacts under the Lobbying Law. Permissible contacts are subject matter contacts that are a specific series of communications and contacts that can be legitimately directed to persons at MNR other than the designated Points of Contact. These permissible subject matter contacts include the following:
i. Submission of written proposals in response to an RFP, IFB, RFQ, or other solicitation method, pursuant to the submission requirements set forth in the solicitation documents.
ii. Participation in a pre-bid or pre-proposal conference provided for in an RFP, IFB, RFQ or other solicitation method.
iii. Complaints by an Offerer regarding the failure of a Point of Contact to reply in a timely fashion.
iv. Offerers who are engaged in negotiations or other communications with MNR solely for the purpose of determining the final terms of an award when such Offerer is a potential awardee.
v. Contacts between an Offerer and the designated Point of Contact to review the award.
vi. Contacts regarding protests, appeals, or other review proceedings before MNR.
vii. Complaints of alleged improper conduct.
viii. A contact by a member of the New York State Legislature or legislative staff, when acting in their official capacity, regarding a particular procurement.
ix. When such communications described in i through viii, above, are made to an authorized designee of the Point of Contact, provided that the Point of Contact participates in the communication. In addition, and in the absence of the Point of Contact, the Director of P&MM may authorize another contact within P&MM to receive communications on behalf of the Point of Contact.
h. Although the subject matter contacts described in 2.g. i through viii, above, are deemed permissible under the provisions of the Lobbying Law, they must still be reported by all MNR personnel who are not the designated Point of Contact. When such contacts involve an MNR employee’s typical activity as a part of the Procurement process, including attending pre-bid conferences and site tours, reviewing Bids or Proposals, attending oral presentations or other meetings with Offerers, and participation in negotiations with Offerers, such employees are required to submit a single Report of Contact Form which covers all such contacts for a given solicitation. All employees must note that this form is to be used only for the typical permissible subject matter contacts described in this paragraph h. Any other Contacts received by an employee during participation in the solicitation process must be reported on the standard Report of Contact Form.
i. In the event an employee outside of P&MM will have a significant involvement in a particular aspect of a procurement with the Point of Contact, i.e., in-depth negotiations with an Offerer over an extended period of time, such employee may be authorized as an additional Point of Contact for that limited aspect of the procurement. Such authorization must be in writing from the Director of P&MM to the affected Offerer(s) and must be supported by appropriate justification which must be maintained in the contract file.
3. Investigation of Contacts/Vendor Responsibility Determinations
a. All Report of Contact forms submitted to P&MM as a result of paragraph C.2.b above must be fully investigated by P&MM to determination if in fact a violation of the Lobbying Law has occurred for a particular procurement. This investigation is initiated by P&MM’s Procurement Policy, Procedures and Quality Division (“PPQ”), and is the specific responsibility of PPQ’s Assistant and Deputy Directors. Those forms, where it is apparent after review by PPQ that they are not bona fide contacts, are retained in the file with a brief written explanation as to the finding. No further investigation is required.
b. All Report of Contact forms received as a result of “permissible” subject matter contacts as detailed in paragraphs C.2.g and C.2.h above shall be placed in the contract file and central repository files. No further investigation or action is required.
c. Those Report of Contact forms which would reasonably appear to have merit will be reviewed in detail by PPQ with the Director of P&MM, and with MNR’s Ethics Officer, as may be required on a case by case basis. All employees who submit Report of Contact Forms will be expected to cooperate completely with P&MM’s investigations.
d. In the event P&MM’s investigation(s) determines the likelihood of a violation of the Lobbying Law, P&MM will conduct a formal hearing with the Offerer to make a final determination of whether an actual violation has occurred. The hearing is chaired by the Director of P&MM and shall include PPQ and other affected MNR personnel as may be required. Any final determination of a Lobbying Law violation must have the written concurrence of MNR’s Ethics Officer. All findings as a result of any formal hearing shall be in writing from the Director of P&MM to the affected Offerer.
e. A finding that an Offerer has committed a violation of the Lobbying Law as a result of its investigation and subsequent hearing, will result in a finding of non-responsibility and that vendor will be deemed ineligible for award of the procurement in question, except as noted in paragraph C.3.h below.
f. Any finding that a vendor or Offerer has violated the Lobbying Law must be reported immediately to OGS for inclusion by OGS in the statewide database identified in paragraph C.1.d, above.