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BIDDING ON PUBLIC CONTRACTS? TAKE NOTE OF EXECUTIVE ORDER 192

By Hank Kita, STA Executive Director

Subcontractors and suppliers should take note of the recent order signed by Governor Andrew Cuomo.  This Executive Order (EO) 192 was just published in the New York State Register.  This EO effectively grants agencies and the Governor permanent debarment power.  The notice in a recent Register, was the first and only inkling that the Governor had enacted this EO on January 15, 2019.

In basic terms, the EO states that any responsibility finding by an agency or public authority would be binding on all agencies forever unless there is court intervention, or a pardon is issued through the Governor’s Counsel.  One finding by any public agency in New York and a contractor or supplier could find themselves effectively debarred across all agencies.

In more specific terms, EO 192 requires state agencies, public benefit corporations, and public authorities to fully evaluate whether bidders are responsible utilizing the existing vendor responsibility determination based in part upon the following factors:

  1. Financial and organization capacity;
  2. Legal authority;
  3. Integrity; and
  4. Past performance.

As a result of this evaluation, state entities are required to maintain information on contractors, vendors, or grantees who have been found to be non-responsible or ineligible to bid on future contracts or grants and are to submit a list of such contractors, vendor or grantees to the Office of General Services (OGS) for posting on the OGS website within 5 days.  EO 192 requires that the OGS list include the name of the contractors, date, and basis for the determination. The names of the debarred contractors are to remain posted on the OGS website for the period designated in the relevant statutory provision allowing for such debarment.

This EO becomes particularly onerous in that all state entities must rely on the determination made by other state entities in ascertaining the responsibility, ineligibility, or debarment of a contractor, vendor, or grantee in current and future procurements.  This is seriously problematic in that the findings of non- responsibility of some of these state entities can be highly subjective.  A subcontractor’s problem with one state entity, can become that subcontractor’s problem with all state entities.  That subcontractor can then be barred from bidding with any other state entity.

The STA is evaluating the impact of EO 192 along with other state and local contractor associations.  I will keep you informed on the STA and industry’s response to this Executive Order.