Wilkeson Pointe Improvements ITB Final.pdf

“WILKESON POINTE IMPROVEMENTS”

INVITATION TO BIDDERS

Issued: May 8, 2023

IMPORTANT NOTICE: A restricted period under the Procurement Lobbying Law is currently in effect for this Procurement and it will remain in effect until approval of the Contract. Bidders are prohibited from contact related to this procurement with any New York State employee other than the designated contacts listed below (refer to: Section IX – (ii)).

Designated Contacts for this Procurement:

Primary Contact: Ralph Volcy Secondary Contact: John Discolo

Respondents must request a dedicated Dropbox for submitting their proposals via the designated email. Any contacts/inquiries shall also be made via the designated email.

WilkesonPointeITb@esd.ny.gov

This Invitation to Bidders (“ITB”) is posted on the Empire State Development website:

https://esd.ny.gov/doing-business-ny/requests-proposals

Submission Deadline: June 7, 2023, by 3:00 PM EST mailto:WilkesonPointeITb@esd.ny.gov https://esd.ny.gov/doing-business-ny/requests-proposals

Contents

I. INTRODUCTION

II. OVERVIEW

III. SCOPE OF WORK

IV. SCHEDULE OF DATES

V. SELECTION CRITERIA

Administrative Proposal

VI. QUESTIONS

VII. GENERAL PROVISIONS

VIII. CONTRACTUAL REQUIREMENTS

i. Conflicts of Interest

ii. State Finance Law Sections 139-j and 139-k forms

iii. Vendor Responsibility Questionnaire

iv. Iran Divestment Act

v. Executive Order 16

vi. Executive Order 177

vii. Non-Discrimination and Contractor & Supplier Diversity Requirements

viii. Encouraging the Use of NYS Businesses in Contract Performance Form

ix. Certification under State Tax Law Section 5-a

x. Schedule A

xi. Project Sunlight

iii. Insurance Requirements

iv. W-9 Form

APPENDICES

Appendix A – Bid Forms

Appendix B – Project Manual

Appendix C – Construction Documents

Appendix D – Geotechnical Engineering Report – August 2020

Appendix E – Human Health Risk Characterization – September 2020

Appendix F – Schedule A

Appendix G – Lien Waiver - Contractor Final

Appendix H – Lien Waiver - Contractor

Appendix I – Lien Waiver – Subcontractor Final

Appendix J – Lien Waiver - Subcontractor

Appendix K – Administrative Proposal Checklist

Appendix L - Diversity Practices Questionnaire

Appendix M – ESD IT Standard Security Brief

I. INTRODUCTION

The mission of Empire State Development (“ESD”) is to promote a vigorous and growing state economy, encourage business investment and job creation, and support diverse, prosperous local economies across New York State through the efficient use of loans, grants, tax credits, real estate development, marketing and other forms of assistance.

II. OVERVIEW

In September 2013, Governor Andrew Cuomo presented his vision for a dramatic transformation of the City of Buffalo’s largely vacant Outer Harbor waterfront. This has included the transfer of approximately 350 acres of waterfront land from the Niagara Frontier Transportation Authority (“NFTA”) to the Erie Canal Harbor Development Corporation (“ECHDC”), whose mission and resources will better enable it to support and expedite the land’s redevelopment.

On November 9, 2020, the Directors adopted a General Project Plan (“GPP”) for the Buffalo Outer Harbor Civic and Land Use Improvement Project and is being requested to affirm this plan as part of the same meeting agenda as this item. This GPP identified improvement projects at Terminal B, the Lakeside Complex, Bell Slip, and Wilkeson Pointe and authorization them to proceed as Phase 1 capital improvement projects. Phase 1a, Terminal B Renovation, is currently under construction and is scheduled to be complete by Quarter 3 of 2023. Phase 1b Bell Slip Improvement project is currently under construction and scheduled to be complete by Quarter 2 2024.

The third project (Phase 1c) focuses around the Wilkeson Pointe improvements. The intent of the Phase 1c project is to improve visitor access and their experience to the Wilkeson Pointe area. The existing parking lot will be relocated away from the water’s edge, eliminating the overlap with the pedestrian path. The current bike trail will be renovated and shifted to better connect with the bike path along Fuhrmann Boulevard. A food service and restroom building will be constructed within the open lawn area with adjacent outdoor seating. The site will be improved with habitat restoration and better flood management. The lawn area Site lighting will also be improved around this area.

The Architect/Engineer Team (“A/E”) completing the architectural/engineering design for the Project is led by:

TWMLA – A Fisher Associates Studio Fisher Associates, P.E., L.S., L.A., D.P.C.

1001 West Seneca Street, Suite 201 Ithaca, NY 14850

Construction Manager:

Turner Construction Company 50 Lakefront Boulevard Suite 200 Buffalo, NY 14202

MWBE & SDVOB Subcontractor Interest New York State certified Minority- and Women-Owned Businesses (MWBEs) and Service-Disabled Veteran Owned Businesses (SDVOBs) may request that their firm’s contact information be included on a list of MWBE and SDVOB firms interested in serving as a subcontractor for this procurement. The listing will be publicly posted on ESD’s website for reference by the bidding community. A firm requesting inclusion on this list should send contact information and a copy of its NYS MWBE or SDVOB certification to WilkesonPointeITB@esd.ny.gov. Nothing prohibits an M/WBE Vendor from proposing as a prime contractor.

III. SCOPE OF WORK

Scope of work is as follows and as indicated in the Construction Documents:

• Environmental remediation.

• Construction of a food service and restroom building with adjacent site seating

• Parking Lot realignment and renovation.

• Habitat restoration and landscape improvements.

• New site utilities to food service and restroom building.

• Electrical, mechanical, plumbing and fire protection for the building.

• New site lighting.

• Improved site drainage.

IV. SCHEDULE OF DATES

It is anticipated that a contract will be awarded in response to this ITB based on the following schedule:

Release of ITB May 8, 2023

Pre-bid meeting May 15, 2023 at Site at 1PM EST

Deadline for Submission of Questions May 22, 2023 by 4:00 PM EST

Deadline for ESD to Respond to Questions May 26, 2023

Submission of Proposals (date and time) June 7, 2023 by 3:00 PM EST*

Interviews (if necessary) TBD – Week of June 12, 2023

Announcement of Successful Bidder July 10, 2023

Anticipated Contract Start Date September 5, 2023

Please note, the Corporation reserves the right to change any of the dates stated in this ITB.

*Conference call information will be provided through addendum.

mailto:WilkesonPointeITB@esd.ny.gov

V. SELECTION CRITERIA

Cost will be the determining factor in selecting the lowest responsible bidder for this project.

Diversity Practices ESD’s Office of Contractor and Supplier Diversity will review each application for Diversity practices using the attached Diversity Practices Questionnaire Appendix L.

VI. SUBMISSION OF PROPOSALS

SUBMISSION OF PROPOSALS

Every respondent to this ITB (“Bidder”) should submit a proposal which clearly and concisely provides all of the information requested. Emphasis should be concentrated on conformance to the ITB instructions and requirements, as well as completeness and clarity in its proposal response. The Bidder is advised to thoroughly read and follow all instructions contained in this ITB. Proposals that do not comply with these instructions or do not meet the full intent of all the requirements of this ITB may be subject to scoring reductions during the evaluation process or may be deemed non-responsive.

Administrative Proposal

Schedule A of this ITB states standard requirements that must be included in every contract entered into with the Corporation. The successful Bidder must agree to abide by these requirements and provide any information requested by the Corporation in connection with these requirements.

Accordingly, Bidders should complete and submit the items listed below, in the order in which they are listed. Failure to submit any of the requirements below may result in the rejection of a Bidder’s proposal.

i. https://esd.ny.gov/sites/default/files/Conflict-of-Interest-Attestation-June-2019.pdf, submit with proposal

ii. State Finance Law §§139-j and 139-k forms, submit with proposal

iii. Vendor Responsibility Questionnaire, submit with proposal or submit online (and include copy of submitted form with proposal)

iv. https://esd.ny.gov/sites/default/files/IranDivestmentActLanguage-corp-info.pdf, submit with proposal

v. https://esd.ny.gov/sites/default/files/EO16-certification.pdf

vi. https://esd.ny.gov/sites/default/files/EO-177-Certification.pdf

vii. Non-Discrimination and Contractor & Supplier Diversity Requirements, submit with proposal o OCSD-1 - MWBE and SDVOB Participation / EEO Policy Statement o OCSD-2 - Staffing Plan o OCSD-4 - MWBE and SDVOB Utilization Plan

viii. Encouraging the Use of NYS Businesses in Contract Performance Form, submit with proposal

ix. Certification under State Tax Law Section 5-a 220-CA or Affidavit, submit with proposal

x. W-9 Form, submit with proposal https://esd.ny.gov/sites/default/files/Conflict-of-Interest-Attestation-June-2019.pdf https://esd.ny.gov/CorporateInformation/Data/RFPs/RequiredForms/SF_Law139_JK.pdf http://www.osc.state.ny.us/vendrep/ https://esd.ny.gov/sites/default/files/IranDivestmentActLanguage-corp-info.pdf https://esd.ny.gov/sites/default/files/EO16-certification.pdf https://esd.ny.gov/sites/default/files/EO-177-Certification.pdf https://esd.ny.gov/sites/default/files/OCSD-1-Policy-Statement.pdf https://esd.ny.gov/sites/default/files/OCSD-2-Staffing-Plan.pdf https://esd.ny.gov/sites/default/files/OCSD-4-Utilization-Plan.pdf http://www.esd.ny.gov/CorporateInformation/Data/ENCOURAGINGUSEOFNEWYORKSTATEBUSINESSESINCONTRACTPERFORMANCE.pdf http://www.tax.ny.gov/pdf/current_forms/st/st220ca_fill_in.pdf http://esd.ny.gov/CorporateInformation/Data/RFPs/RequiredForms/STL_5A_Affidavit.pdf https://www.irs.gov/pub/irs-pdf/fw9.pdf

Additional information about these items, and ESD’s procurement requirements, can be found in Section IX of this ITB (“Procurement Forms and Requirements”).

Submission of a Complete Proposal

Firms submitting a proposal are indicating their acceptance of the conditions in this ITB. Submission of proposals in a manner other than as described in these instructions (e.g., facsimile, hardcopies) will not be accepted. When submitting each proposal, Bidders must comply with the following:

1. The proposals must be uploaded to a dedicated Dropbox web link (that will be unique to each Respondent) prior to the deadline as illustrated in the Schedule of Dates Table. Respondents must request the dedicated Dropbox web link by sending an email to: WilkesonPointeITB@esd.ny.gov.

If a bidder did not receive a link to their designated Dropbox within 48 hours of the submission deadline, they should contact ESD immediately in order for the matter to be resolved.

2. Clearly label the submitted proposal as “ITB – Wilkeson Pointe Improvements” by [ Bidder’s Name]

3. Each bidder must submit:

o Appendix A – Bid Forms o Appendix K - Administrative Proposal Checklist o Appendix L - Diversity Practices Questionnaire o Appendix M - ESD IT Standard Security Brief

Late proposals will not be considered for award.

VII. QUESTIONS

Questions or requests for clarification regarding the ITB should be submitted via email, citing the ITB page and section in accordance with the schedule in Section IV (Schedule of Dates) to WilkesonPointeITB@esd.ny.gov. Questions will not be accepted orally and any question received after the deadline may not be answered. The comprehensive list of questions/requests for clarifications and the official responses will be posted with this ITB.

VIII. GENERAL PROVISIONS

The issuance of this ITB and the submission of a response by a Bidder or the acceptance of such a response by ESD does not obligate ESD in any manner. ESD reserves the right to:

i. amend, modify or withdraw this ITB;

ii. revise any requirement of this ITB;

iii. require supplemental statements or information from any responsible party;

iv. accept or reject any or all responses hereto;

v. extend the deadline for submission of responses hereto;

vi. negotiate potential contract terms with any Bidder;

vii. communicate with any Bidder to correct and/or clarify responses which do not conform to the instructions contained herein;

viii. cancel, or reissue in whole or in part, this ITB, if ESD determines in its sole discretion that it is its best interest to do so; and

ix. extend the term of any agreement on terms consistent with this ITB.

ESD may exercise the foregoing rights at any time without notice and without liability to any responding firm or any other party for its expenses incurred in preparation of responses hereto or otherwise. All costs associated with responding to this ITB will be at the sole cost and expense of the Bidder.

All information submitted in response to this ITB is subject to the Freedom of Information Law (“FOIL”), which generally mandates the disclosure of documents in the possession of ESD upon the request of any person unless the content of the document falls under a specific exemption to disclosure. In addition, Proposals may be discussed at meetings of the ESD Directors, which meetings are subject to the Open Meetings Law.

ESD reserves the right, in its sole discretion, to retain and use all the materials and information, and the ideas and suggestions therein, submitted in response to this solicitation (collectively, the “Response Information”) for any purpose. By submitting a Proposal, each Respondent waives any and all claims against ESD relating to ESD’s retention or use of the Response Information.

Required Approvals

The awarded contract, if any, may be subject to review and approval by the Office of the State Comptroller (“OSC”) pursuant to Public Authorities Law §2879-a and the regulations issued thereunder. Such OSC review and approval may be required of contracts with a value in excess of one million dollars, or modifications to contracts that result in an aggregate value in excess of one million dollars, where such contracts are paid in whole or in part with monies appropriated by the State, or were awarded on a basis other than a competitive procurement (as that term is defined in the law and regulations). If the awarded contract is subject to OSC review and approval, the contract shall not be valid and enforceable, nor shall the Corporation have any liability of any kind arising from or in connection with the contract, unless and until OSC approval has been received.

Performance

The Contractor's performance will be assessed by the Corporation according to the achievement of The Contractor’s contractual obligations in a timely and professional manner, as set forth in the resulting Contract. The Corporation will utilize progress reports and periodic meetings to ensure that the project is carried out on a timely basis and results in effective recommendations and work products.

Contractor warrants that its services shall be performed in accordance with applicable professional standards and that the Contractor shall correct, at no charge to the Corporation, services which fail to meet applicable professional standards and which result in obvious or patent errors in the progression of its work.

Additional Services Requested

The Corporation may, at any time, by written notice, make changes or additions to work or services within the general scope of the contract resulting from this ITB (not to include professional services requiring licenses or specialized expertise such as engineering, architectural, and environmental consulting, abatement, treatment, and testing work) for unanticipated needs. If any such change or addition causes an increase or decrease in the cost of, or in the time required for, performance of the contract, an equitable adjustment may be made in the price using the billing rates set forth in the contract, and the Contractor shall be notified in writing accordingly. Any claim by the Contractor for adjustment under this clause must be asserted within 30 days from the date of receipt by the Contractor of the notification of change; provided however, that the Corporation, if it decides that the facts justify such action, may receive and act upon such claim as asserted at any time. Nothing in this clause shall excuse the Contractor from proceeding with this contract as modified.

Contractor Staff

Contractor staff assigned to work on this project shall be subject to approval by the Corporation. It is highly desirable that staff assigned to work on this project continue to work on this project until completion. The Contractor should notify the Corporation of any proposed changes in staff immediately. The Corporation has an absolute right and discretion to approve or disapprove any proposed changes in staff. The Corporation, in each instance, will be provided with a summary of experience of the proposed substitute and an opportunity to interview that person, prior to giving its approval or disapproval; approval shall not be unreasonably withheld.

The Contractor specifically represents and agrees that its members, officers, employees, agents, servants, consultants, shareholders, and subcontractors have and shall possess the experience, knowledge, and character necessary to qualify them individually for the particular duties performed hereunder.

The Agreement resulting from this ITB is intended to secure the professional services of the Contractor because of its ability and shall not be assigned, conveyed, transferred, or disposed of by the Contractor.

The Contractor agrees not to subcontract any of its services, unless as indicated in its proposal, without the prior written approval of the State Project Manager. Approval shall not be unreasonably withheld upon receipt of written request to subcontract. All employees of the Contractor, or of its Subcontractors, who shall perform Services under this contract, shall possess the necessary qualifications, training, licenses, and permits as may be required within the jurisdiction where the Services specified are to be provided or performed, and shall be legally entitled to work in such jurisdiction. All persons, corporations, or other legal entities that perform Services on behalf of Contractor under the Agreement resulting from this ITB shall, in performing such Services, comply with all applicable Federal and State laws concerning employment in the United States.

IX. CONTRACTUAL REQUIREMENTS

This section contains additional information about the forms that are required to be included in each Bidder’s submission pursuant to Section VI of this ITB, as well as information about ESD’s procurement requirements.

i. Conflicts of Interest Respondent must attest it has read, understood and will comply with the following provisions https://esd.ny.gov/sites/default/files/Conflict-of-Interest-Attestation-June-2019.pdf. ESD shall have the right to disqualify any respondent to this ITB or terminate any contract entered into as a result of this ITB should ESD determine that the Respondent has violated any of these requirements.

A. Gifts and Offers of Employment: Respondent has not and shall not during this procurement and during the negotiation of any contract resulting from this procurement, offer to any employee, member or director of ESD, any gift, whether in the form of money, services, loan, travel, entertainment, hospitality, thing or promise, or in any other form, under circumstances in which it could reasonably be inferred that the offer was intended to influence said employee, member or director, or could reasonably be expected to influence said employee, member or director, in the performance of the official duty of said employee, member or director or was intended as a reward for any official action on the part of said employee, member or director.

Respondent may not make any offers of employment or discuss the possibility of such offers with any employee, member or director of ESD who is involved in this procurement and/or resulting contract negotiation within at least 30 days from the time that the employee’s involvement in this matter closed.

B. Disclosure of Potential Conflicts: Respondent shall disclose any existing or contemplated relationship with any other person or entity, including relationships with any member, shareholders of 5% or more, parent, subsidiary, or affiliated firm, which would constitute an actual or potential conflict of interest or appearance of impropriety, relating to other clients/customers/employers of the Respondent or former officers and employees of ESD, in connection with your rendering services enumerated in this ITB. If a conflict does or might exist, Respondent must describe how it would eliminate or prevent it.

https://esd.ny.gov/sites/default/files/Conflict-of-Interest-Attestation-June-2019.pdf

C. Disclosure of Ethics Investigations: Respondent must disclose whether it, or any of its members, shareholders of 5% or more, parents, affiliates, or subsidiaries, have been the subject of any ongoing investigation or disciplinary action by the New York State Commission on Public Integrity or its predecessor State entities (collectively, “Commission”), and if so, a description must be included indicating how any matter before the Commission was resolved or whether it remains unresolved.

ii. State Finance Law Sections 139-j and 139-k forms State Finance Law Sections 139-j and 139-k (collectively, the “Procurement Requirements”) apply to this ITB. These Procurement Requirements: (1) govern permissible communications between potential Bidders and ESD or other involved governmental entities with respect to this ITB; (2) provide for increased disclosure in the public procurement process through identification of persons or organizations whose function is to influence procurement contracts, public works agreements and real property transactions; and (3) establish sanctions for knowing and willful violations of the provisions of the Procurement Requirements, including disqualification from eligibility for an award of any contract pursuant to this ITB. Compliance with the Procurement Requirements requires that all communications regarding this ITB, from the time of its issuance through final award and execution of any resulting contract (the “Restricted Period”), be conducted only with the designated contact persons listed above; the completion by Bidders of the Offeror Disclosure of Prior Non-Responsibility Determinations, and the Offeror’s Affirmation of Understanding and Agreement pursuant to State Finance Law (each form is accessible at the Required Forms for Vendors link at the ESDC web site under “RFPs/RFQs”); and periodic updating of such forms during the term of any contract resulting from this ITB.

Bidders must submit the Offeror Disclosure of Prior Non-Responsibility Determinations, and the Offeror’s Affirmation of Understanding and Agreement pursuant to State Finance Law as part of their submittal. Copies of these forms are available at:

https://esd.ny.gov/CorporateInformation/Data/RFPs/RequiredForms/SF_Law139_JK.pdf.

The Procurement Requirements also require ESD staff to obtain and report certain information when contacted by Bidders during the Restricted Period, make a determination of the responsibility of Bidders and make all such information publicly available in accordance with applicable law. If a Bidder is found to have knowingly and willfully violated the State Finance Law provisions, that Bidder and its subsidiaries, related or successor entities will be determined to be a non-responsible Bidder and will not be awarded any contract issued pursuant to this solicitation.

In addition, two such findings of non-responsibility within a four-year period can result in debarment from obtaining any New York State governmental procurement contract. The designated contact account for this solicitation is referenced on the cover of this ITB.

This is not a complete presentation of the provisions of the Procurement Requirements. A copy of State Finance Law Sections 139-j and 139-k can be found at:

http://esd.ny.gov/CorporateInformation/Data/RFPs/RequiredForms/PermissibleContactsPolicy_Ja n2007.pdf. All potential Bidders are solely responsible for full compliance with the Procurement Requirements. Both the prime consultant and any sub-consultants complete the forms required above.

https://esd.ny.gov/CorporateInformation/Data/RFPs/RequiredForms/SF_Law139_JK.pdf http://esd.ny.gov/CorporateInformation/Data/RFPs/RequiredForms/PermissibleContactsPolicy_Jan2007.pdf http://esd.ny.gov/CorporateInformation/Data/RFPs/RequiredForms/PermissibleContactsPolicy_Jan2007.pdf

iii. Vendor Responsibility Questionnaire

All Bidders to this ITB must be “responsible,” which in this context means that they must have the requisite financial ability, organizational capacity and legal authority to carry out its obligations under this ITB, and in addition must demonstrate that both the Respondent and its principals have and will maintain the level of integrity needed to contract with New York State entities such as ESD. Further, the Respondent must show satisfactory performance of all prior government contracts. Accordingly, the contract to be entered into between ESD and the Respondent, if any, shall include clauses providing that the Respondent remain “responsible” throughout the term of the contract, that ESD may suspend the contract if information is discovered that calls into question the responsibility of the contracting party, and that ESD may terminate the contract based on a determination that the contracting party is non-responsible. On request, model language to this effect will be provided to any Respondent to this ITB.

To assist in the determination of responsibility, ESD requires that all Bidders register in the State's Vendor Responsibility System (“Vend-Rep System”). The Vend-Rep System allows business entities to enter and maintain their Vendor Responsibility Questionnaire information in a secure, centralized database. New York State Procurement Law requires that state agencies award contracts only to responsible vendors. Bidders are to file the required Vendor Responsibility Questionnaire online via the Vend-Rep System or may choose to complete and submit a paper questionnaire. Please include a copy of your Vend-Rep submission receipt or paper questionnaire with your proposal.

To enroll in and use the Vend-Rep System, see the System Instructions available at www.osc.state.ny.us/vendrep or go directly to the Vend-Rep system online at https://portal.osc.state.ny.us. For direct Vend-Rep System user assistance, the Office of the State Comptroller’s Help Desk may be reached at 866-370-4672 or 518-408-4672 or by email at helpdesk@osc.state.ny.us.

Bidders opting to file a paper questionnaire can obtain the appropriate questionnaire from the Vend-Rep website (http://www.osc.state.ny.us/vendrep/forms_vendor.htm) and execute accordingly pertaining to the company’s trade industry. Per the website, Bidders are to “Select the questionnaire which best matches the business type (either For-Profit or Not-For-Profit) and business activity (Construction or Other).”

In addition, please see link to EO-192: https://www.governor.ny.gov/news/no-192-executive-order-imposing-continuing-vendor-integrity-requirements-state-contracts http://www.osc.state.ny.us/vendrep https://portal.osc.state.ny.us/ mailto:helpdesk@osc.state.ny.us http://www.osc.state.ny.us/vendrep/forms_vendor.htm https://www.governor.ny.gov/news/no-192-executive-order-imposing-continuing-vendor-integrity-requirements-state-contracts https://www.governor.ny.gov/news/no-192-executive-order-imposing-continuing-vendor-integrity-requirements-state-contracts

iv. Iran Divestment Act Every Proposal made to ESD pursuant to a competitive solicitation must contain the following statement, signed by the Respondent on company letterhead and affirmed as true under penalty of perjury:

"By submission of this bid, each bidder and each person signing on behalf of any bidder certifies, and in the case of a joint bid each party thereto certifies as to its own organization, under penalty of perjury, that to the best of its knowledge and belief that each bidder is not on the list created pursuant to paragraph (b) of subdivision 3 of section 165-a of the State Finance Law."

The list in question is maintained by the Office of General Services. For further information and to view this list please go to: https://ogs.ny.gov/system/files/documents/2019/03/listofentities.pdf

v. Executive Order 16 In accordance with New York State Executive Order 16 (“EO-16), all bidders must certify that they are in compliance with EO-16 prohibiting State Agencies and Authorities from Contracting with Businesses in Russia. EO-16 will remain in effect while sanctions imposed by the federal government are in effect.

"By submission of a bid, each bidder and each person signing on behalf of any bidder certifies, and in the case of a joint bid each party thereto certifies as to its own organization, under penalty of perjury, that to the best of its knowledge and belief that each bidder is in compliance with EO-16.”

The required certification for can be found at:

https://esd.ny.gov/sites/default/files/EO16-certification.pdf and must be signed and included in all

Proposals.

vi. Executive Order 177 In accordance with New York State Executive Order 177, all bidders must certify that they are in compliance with the New York State Human Rights Law which prohibits discrimination and harassment based on a protected class, and which requires reasonable accommodation for persons with disability or pregnancy related conditions.

The required certification for can be found at:

https://esd.ny.gov/sites/default/files/EO-177-Certification.pdf and must be signed and included in all Proposals.

vii. Non-Discrimination and Contractor & Supplier Diversity Requirements

CONTRACTOR REQUIREMENTS AND PROCEDURES FOR PARTICIPATION BY NEW YORK STATE-

CERTIFIED MINORITY AND WOMEN-OWNED BUSINESS ENTERPRISES AND EQUAL EMPLOYMENT

OPPORTUNITIES FOR MINORITY GROUP MEMBERS AND WOMEN

https://ogs.ny.gov/system/files/documents/2019/03/listofentities.pdf https://esd.ny.gov/sites/default/files/EO16-certification.pdf https://esd.ny.gov/sites/default/files/EO-177-Certification.pdf

Pursuant to New York State Executive Law Article 15-A and Parts 140-145 of Title 5 of the New York Codes, Rules and Regulations ESD is required to promote opportunities for the maximum feasible participation of New York State-certified Minority and Women-owned Business Enterprises (“MWBEs”) and the employment of minority group members and women in the performance of ESD contracts.

Business Participation Opportunities for MWBEs For purposes of this solicitation, ESD hereby establishes an overall goal of 30 percent for MWBE participation, 15 percent for New York State-certified Minority-owned Business Enterprise (“MBE”) participation and 15 percent for New York State-certified Women-owned Business Enterprise (“WBE”) participation (based on the current availability of MBEs and WBEs). A contractor (“Contractor”) on any contract resulting from this procurement (“Contract”) must document its good faith efforts to provide meaningful participation by MWBEs as subcontractors and suppliers in the performance of the Contract. To that end, by submitting a response to this ITB, the respondent agrees that ESD may withhold payment pursuant to any Contract awarded as a result of this ITB pending receipt of the required MWBE documentation. The directory of MWBEs can be viewed at:

https://ny.newnycontracts.com. For guidance on how ESD will evaluate a Contractor’s “good faith efforts,” refer to 5 NYCRR § 142.8.

The respondent understands that only sums paid to MWBEs for the performance of a commercially useful function, as that term is defined in 5 NYCRR § 140.1, may be applied towards the achievement of the applicable MWBE participation goal. The portion of a contract with an MWBE serving as a supplier that shall be deemed to represent the commercially useful function performed by the MWBE shall be 60 percent of the total value of the contract. The portion of a contract with an MWBE serving as a broker that shall be deemed to represent the commercially useful function performed by the MWBE shall be the monetary value for fees, or the markup percentage, charged by the MWBE.

In accordance with 5 NYCRR § 142.13, the respondent further acknowledges that if it is found to have willfully and intentionally failed to comply with the MWBE participation goals set forth in a Contract resulting from this ITB, such finding constitutes a breach of contract and ESD may withhold payment as liquidated damages.

Such liquidated damages shall be calculated as an amount equaling the difference between: (1) all sums identified for payment to MWBEs had the Contractor achieved the contractual MWBE goals;

and (2) all sums actually paid to MWBEs for work performed or materials supplied under the Contract.

By submitting a bid or proposal, a respondent agrees to demonstrate its good faith efforts to achieve the applicable MWBE participation goals by submitting evidence thereof through the New York State Contract System (“NYSCS”), which can be viewed at https://ny.newnycontracts.com, provided, however, that a respondent may arrange to provide such evidence via a non-electronic method by contacting the Office of Contractor and Supplier Diversity (“OCSD”) at OCSD@esd.ny.gov.

https://ny.newnycontracts.com/ mailto:OCSD@esd.ny.gov

Additionally, a respondent will be required to submit the following documents and information as evidence of compliance with the foregoing:

A. An MWBE Utilization Plan with their bid or proposal. Any modifications or changes to an accepted MWBE Utilization Plan after the Contract award and during the term of the Contract must be reported on a revised MWBE Utilization Plan and submitted to ESD for review and approval.

ESD will review the submitted MWBE Utilization Plan and advise the respondent of ESD acceptance or issue a notice of deficiency within 30 days of receipt.

B. If a notice of deficiency is issued, the respondent will be required to respond to the notice of deficiency within seven (7) business days of receipt by submitting to OCSD at OCSD@esd.ny.gov, a written remedy in response to the notice of deficiency. If the written remedy that is submitted is not timely or is found by ESD to be inadequate, ESD shall notify the respondent and direct the respondent to submit, within five (5) business days, a request for a partial or total waiver of MWBE participation goals. Failure to file the waiver form in a timely manner may be grounds for disqualification of the bid or proposal.

ESD may disqualify a respondent as being non-responsive under the following circumstances:

a) If a respondent fails to submit an MWBE Utilization Plan;

b) If a respondent fails to submit a written remedy to a notice of deficiency;

c) If a respondent fails to submit a request for waiver; or

d) If ESD determines that the respondent has failed to document good faith efforts.

The successful respondent will be required to attempt to utilize, in good faith, any MBE or WBE identified within its MWBE Utilization Plan, during the performance of the Contract. Requests for a partial or total waiver of established goal requirements made subsequent to Contract Award may be made at any time during the term of the Contract to ESD, but must be made no later than prior to the submission of a request for final payment on the Contract.

The successful respondent will be required to submit a quarterly MWBE Contractor Compliance & Payment Report to ESD, by the 10th day following each end of quarter over the term of the Contract documenting the progress made toward achievement of the MWBE goals of the Contract.

Equal Employment Opportunity Requirements By submission of a bid or proposal in response to this solicitation, the respondent agrees with all of the terms and conditions SCHEDULE B - PARTICIPATION BY MINORITY AND WOMEN-OWNED BUSINESS ENTERPRISES: REQUIREMENTS AND PROCEDURES. The respondent is required to ensure that it and any subcontractors awarded a subcontract for the construction, demolition, replacement, major repair, renovation, planning or design of real property and improvements thereon (the “Work”), except where the Work is for the beneficial use of the respondent, undertake or continue programs to ensure that minority group members and women are afforded equal employment opportunities without discrimination because of race, creed, color, national origin, sex, age, disability or marital status. For these purposes, equal opportunity shall apply in mailto:OCSD@esd.ny.gov https://esd.ny.gov/sites/default/files/SCHEDULE%20B.pdf https://esd.ny.gov/sites/default/files/SCHEDULE%20B.pdf the areas of recruitment, employment, job assignment, promotion, upgrading, demotion, transfer, layoff, termination, and rates of pay or other forms of compensation. This requirement does not apply to: (i) work, goods, or services unrelated to the Contract; or (ii) employment outside New York State.

The respondent will be required to submit a Minority and Women-owned Business Enterprise and Equal Employment Opportunity Policy Statement, OCSD-1, to ESD with its bid or proposal.

If awarded a Contract, respondent shall submit a Workforce Utilization Report and shall require each of its Subcontractors to submit a Workforce Utilization Report, in such format as shall be required by ESD on a MONTHLY basis during the term of the Contract.

Pursuant to Executive Order #162, contractors and subcontractors will also be required to report the gross wages paid to each of their employees for the work performed by such employees on the contract utilizing the Workforce Utilization Report on a quarterly basis.

Further, pursuant to Article 15 of the Executive Law (the “Human Rights Law”), all other State and Federal statutory and constitutional non-discrimination provisions, the Contractor and sub-contractors will not discriminate against any employee or applicant for employment because of race, creed (religion), color, sex, national origin, sexual orientation, military status, age, disability, predisposing genetic characteristic, marital status or domestic violence victim status, and shall also follow the requirements of the Human Rights Law with regard to non-discrimination on the basis of prior criminal conviction and prior arrest.

Please Note: Failure to comply with the foregoing requirements may result in a finding of non-responsiveness, non-responsibility and/or a breach of the Contract, leading to the withholding of funds, suspension or termination of the Contract or such other actions or enforcement proceedings as allowed by the Contract.

The required forms can be found at the following web addresses:

Form OCSD-1: https://esd.ny.gov/sites/default/files/OCSD-1-Policy-Statement.pdf Form OCSD-2: https://esd.ny.gov/sites/default/files/OCSD-2-Staffing-Plan.pdf Form OCSD-3:

https://esd.ny.gov/sites/default/files/OCSD-3-Workforce-Utilization-Report.xlsx Form OCSD-4: https://esd.ny.gov/sites/default/files/OCSD-4-Utilization-Plan.pdf Form OCSD-5: https://esd.ny.gov/sites/default/files/OCSD-5-Waiver-Request-Form.pdf Form OCSD-6: https://esd.ny.gov/sites/default/files/OCSD-6-Compliance-Report.pdf

In the event that the above links are unavailable or inactive, the forms may also be requested from OCSD at OCSD@esd.ny.gov.

Diversity Practices ESD has determined, pursuant to New York State Executive Law Article 15-A, that the assessment of the diversity practices of Bidders is practical, feasible, and appropriate. Accordingly, Bidders https://esd.ny.gov/sites/default/files/OCSD-1-Policy-Statement.pdf https://esd.ny.gov/sites/default/files/OCSD-2-Staffing-Plan.pdf https://esd.ny.gov/sites/default/files/OCSD-3-Workforce-Utilization-Report.xlsx https://esd.ny.gov/sites/default/files/OCSD-4-Utilization-Plan.pdf https://esd.ny.gov/sites/default/files/OCSD-5-Waiver-Request-Form.pdf https://esd.ny.gov/sites/default/files/OCSD-6-Compliance-Report.pdf shall be required to include as part of their response to this procurement the Diversity Practices Questionnaire (See Appendix L).

PARTICIPATION OPPORTUNITIES FOR NEW YORK STATE CERTIFIED SERVICE-DISABLED VETERAN

OWNED BUSINESSES

Article 17-B of the New York State Executive Law provides for more meaningful participation in public procurement by certified Service-Disabled Veteran-Owned Businesses (“SDVOB”), thereby further integrating such businesses into New York State’s economy. ESD recognizes the need to promote the employment of service-disabled veterans and to ensure that certified service-disabled veteran-owned businesses have opportunities for maximum feasible participation in the performance of ESD contracts.

In recognition of the service and sacrifices made by service-disabled veterans and in recognition of their economic activity in doing business in New York State, Bidders are expected to consider SDVOBs in the fulfillment of the requirements of the Contract. Such participation may be as subcontractors or suppliers, as protégés, or in other partnering or supporting roles.

Contract Goals

A. ESD hereby establishes an overall goal of 6% for SDVOB participation, based on the current availability of qualified SDVOBs. For purposes of providing meaningful participation by SDVOBs, the Bidder/Contractor should reference the directory of New York State Certified SDVOBs found at: https://online.ogs.ny.gov/SDVOB/search. Questions regarding compliance with SDVOB participation goals should be directed to the Designated Contacts.

Additionally, following Contract execution, Contractor is encouraged to contact the Office of General Services’ Division of Service-Disabled Veterans’ Business Development at 518- 474-2015 or VeteransDevelopment@ogs.ny.gov to discuss additional methods of maximizing participation by SDVOBs on the Contract.

B. Contractor must document “good faith efforts” to provide meaningful participation by

SDVOBs as subcontractors or suppliers in the performance of the Contract.

SDVOB Utilization Plan

A. In accordance with 9 NYCRR § 252.2(i), Bidders are required to submit a completed SDVOB Utilization Plan on Form OCSD-4.

B. The Utilization Plan shall list the SDVOBs that the Bidder intends to use to perform the

Contract, a description of the work that the Bidder intends the SDVOB to perform to meet the goals on the Contract, the estimated dollar amounts to be paid to an SDVOB, or, if not known, an estimate of the percentage of Contract work the SDVOB will perform. By signing the Utilization Plan, the Bidder acknowledges that making false representations or providing information that shows a lack of good faith as part of, or in conjunction with, the submission of a Utilization Plan is prohibited by law and may result in penalties including, https://online.ogs.ny.gov/SDVOB/search mailto:VeteransDevelopment@ogs.ny.gov but not limited to, termination of a contract for cause, loss of eligibility to submit future bids, and/or withholding of payments. Any modifications or changes to the agreed participation by SDVOBs after the Contract award and during the term of the Contract must be reported on a revised SDVOB Utilization Plan and submitted to ESD.

C. ESD will review the submitted SDVOB Utilization Plan and advise the Bidder/Contractor of

ESD acceptance or issue a notice of deficiency within 20 days of receipt.

D. If a notice of deficiency is issued, Bidder/Contractor agrees that it shall respond to the notice of deficiency, within seven business days of receipt, by submitting to ESD a written remedy in response to the notice of deficiency. If the written remedy that is submitted is not timely or is found by ESD to be inadequate, ESD shall notify the Bidder/Contractor and direct the Bidder/Contractor to submit, within five business days of notification by ESD, a request for a partial or total waiver of SDVOB participation goals on OCSD-5. Failure to file the waiver form in a timely manner may be grounds for disqualification of the bid or proposal.

E. ESD may disqualify a Bidder’s bid or proposal as being non-responsive under the following circumstances:

(a) If a Bidder fails to submit an SDVOB Utilization Plan;

(b) If a Bidder fails to submit a written remedy to a notice of deficiency;

(c) If a Bidder fails to submit a request for waiver; or

(d) If ESD determines that the Bidder has failed to document good faith efforts.

F. If awarded a Contract, Contractor certifies that it will follow the submitted SDVOB

Utilization Plan for the performance of SDVOBs on the Contract pursuant to the prescribed SDVOB contract goals set forth above.

G. Contractor further agrees that a failure to use SDVOBs as agreed in the Utilization Plan shall constitute a material breach of the terms of the Contract. Upon the occurrence of such a material breach, ESD shall be entitled to any remedy provided herein, including but not limited to, a finding of Contractor non-responsibility.

Request for Waiver A. Prior to submission of a request for a partial or total waiver, Bidder/Contractor shall speak to the

Designated Contacts at ESD for guidance.

B. In accordance with 9 NYCRR § 252.2(m), a Bidder/Contractor that is able to document good faith efforts to meet the goal requirements, as set forth in clause IV below, may submit a request for a partial or total waiver on Form OCSD-5, accompanied by supporting documentation. A Bidder may submit the request for waiver at the same time it submits its SDVOB Utilization Plan. If a request for waiver is submitted with the SDVOB Utilization Plan and is not accepted by ESD at that time, the provisions of clauses II (C), (D) & (E) will apply. If the documentation included with the Bidder’s/Contractor’s waiver request is complete, ESD shall evaluate the request and issue a written notice of acceptance or denial within 20 days of receipt.

C. Contractor shall attempt to utilize, in good faith, the SDVOBs identified within its SDVOB Utilization

Plan, during the performance of the Contract. Requests for a partial or total waiver of established goal requirements made subsequent to Contract award may be made at any time during the term of the Contract to ESD, but must be made no later than prior to the submission of a request for final payment on the Contract.

D. If ESD, upon review of the SDVOB Utilization Plan and Monthly SDVOB Compliance Report (OCSD-6) determines that Contractor is failing or refusing to comply with the contract goals and no waiver has been issued in regards to such non-compliance, ESD may issue a notice of deficiency to the Contractor.

The Contractor must respond to the notice of deficiency within seven business days of receipt. Such response may include a request for partial or total waiver of SDVOB contract goals.

Waiver requests should be sent to OCSD.

Required Good Faith Efforts In accordance with 9 NYCRR § 252.2(n), Contractors must document their good faith efforts toward utilizing SDVOBs on the Contract. Evidence of required good faith efforts shall include, but not be limited to, the following:

(1) Copies of solicitations to SDVOBs and any responses thereto.

(2) Explanation of the specific reasons each SDVOB that responded to Bidders/Contractors’ solicitation was not selected.

(3) Dates of any pre-bid, pre-award or other meetings attended by Contractor, if any, scheduled by ESD with certified SDVOBs whom ESD determined were capable of fulfilling the SDVOB goals set in the Contract.

(4) Information describing the specific steps undertaken to reasonably structure the Contract scope of work for the purpose of subcontracting with, or obtaining supplies from, certified SDVOBs.

(5) Other information deemed relevant to the waiver request.

Monthly SDVOB Contractor Compliance Report In accordance with 9 NYCRR § 252.2(q), Contractor is required to report Monthly SDVOB Contractor Compliance to ESD during the term of the Contract for the preceding month’s activity, documenting progress made towards achieving the Contract SDVOB goals. This information must be submitted using form OCSD-6 available on the ESD website and should be completed by the Contractor and submitted to ESD, by the 10th day of each month during the term of the Contract, for the preceding month’s activity to: OCSD@esd.ny.gov.

Breach of Contract and Damages

In accordance with 9 NYCRR § 252.2(s), any Contractor found to have willfully and intentionally failed to comply with the SDVOB participation goals set forth in the Contract, shall be found to have breached the contract and Contractor shall pay damages as set forth therein.

viii. Encouraging the Use of NYS Businesses in Contract Performance Form New York State businesses have a substantial presence in State contracts and strongly contribute to the economies of the state and the nation. In recognition of their economic activity and leadership in doing business in New York State, Bidders for this ESD contract for commodities, services or technology are strongly encouraged and expected to consider New York State businesses in the fulfillment of the requirements of the contract. In order for ESD to assess the use of New York State businesses in each Proposal, ESD requests that each Respondent complete the Encouraging Use of New York State Businesses in Contract Performance form, accessible here:

http://esd.ny.gov/CorporateInformation/Data/ENCOURAGINGUSEOFNEWYORKSTATEBUSINESSESI NCONTRACTPERFORMANCE.pdf.

ix. Certification under State Tax Law Section 5-a Any contract resulting from this solicitation is also subject to the requirements of State Tax Law Section 5-a (“STL 5-a”). STL 5-a prohibits ESD from approving any such contract with any entity if that entity or any of its affiliates, subcontractors or affiliates of any subcontractor makes sales within New York State of tangible personal property or taxable services having a value over $300,000 and is not registered for sales and compensating use tax purposes.