(New Procedure: see Bulletin No. G-173)

The purpose of this bulletin is to set forth the Office of the State Comptroller's role in the review and approval of contracts, as a result of recently enacted legislation regarding the MacBride Fair Employment Principles.

A. Chapter 807, Laws of 1992, amends the State Finance Law by adding a new Section 174-b to encourage contractors doing business with the State of New York, and who also do business in Northern Ireland, to adopt the "MacBride Fair Employment Principles," relating to non-discrimination in employment and freedom of workplace opportunity as defined in Section 174-b(1).

Contracts for the supply of goods, services, or construction shall not be entered into where there is another contractor who will supply goods, services, or construction of comparable quality at a comparable price, unless the contractor and any individual or legal entity in which the contractor holds a 10 percent or greater ownership interest and any individual or legal entity that holds a 10 percent or greater interest in the contractor either:

1. Have no business operations in Northern Ireland, or

2. Will take lawful steps in good faith to conduct any business operations they have in Northern Ireland in accordance with the MacBride Fair Employment Principles relating to non-discrimination in employment and freedom of workplace opportunity, and shall permit independent monitoring of its compliance with such principles.

In accordance with the legislation, refusal by the lowest responsible bidder to stipulate to one of the above will result in further review of the contractor's bid, as follows:

1. In the case of contracts let by competitive sealed bidding, when there is another bidder who has agreed to stipulate to such conditions and has submitted a bid for goods, services, or construction of comparable quality within five percent of the lowest responsible bid, the contracting entity shall refer such bids to the Commissioner of the Office of General Services (OGS). The purpose of such a referral is for OGS to make a determination as to whether it is in the best interest of the state to reject the low bid and to award to another qualifying bidder.

2. In the case of contracts let by other than competitive sealed bidding for goods or services in excess of $10,000 or for construction in excess of $15,000, the contracting entity may not award to such contractor, unless the entity determines that the goods, services, or construction are necessary for the entity to perform its functions, and there is no other responsible contractor who will supply goods, services, or construction of comparable quality at a comparable price. The determination must be in writing and is deemed to be a public document.

 

It will be the responsibility of each contracting entity to include language in their contract documents to provide for and ensure compliance with the requirements of Section 174-b of the State Finance Law and to ensure that the requisite stipulation is made.

The Office of the State Comptroller (OSC) will be reviewing all bid documents and contract packages to ensure compliance with the statute.

At a minimum, we will determine that:

1. The contracting entity has included language in its contract documents to provide for the required stipulation and ensure compliance with the statute.

2. Pursuant to subdivisions 2(b) and 2(c) of the statute, that adequate documentation supports the determination to award a contract to the lowest bidder in those instances where the stipulation was not executed or, in appropriate circumstances, to another qualifying bidder who has included the stipulation.

OSC will reject any transaction that does not comply with this statute. Any inquiries regarding potential vendors or questions concerning contractor compliance with, or violation of, the MacBride Fair Employment Principles may be directed to OSC at the telephone number listed at the end of this bulletin.

The statute expressly states that the term "contracts" as used in Section 174-b does not include contracts with governmental and nonprofit organizations, contracts awarded pursuant to emergency procurement procedures or contracts, resolutions, indentures, declarations of trust, or other instruments authorizing or relating to the authorization, issuance, award, sale, or purchase of bonds, certificates of indebtedness, notes, or other fiscal obligations, provided that the policies of section 174-b shall be considered when selecting a contractor to provide financial or legal advice, and when selecting managing underwriters in connection with such activities.

In addition, the provisions of the statute do not apply to contracts for which the state or other contracting entity receives funds administered by the United States Department of Transportation, except to the extent Congress has directed that the Department of Transportation not withhold funds from states and localities that choose to implement selective purchasing policies based on agreement to comply with the MacBride Fair Employment Principles, or to the extent that such funds are not otherwise withheld by the Department of Transportation.

If the contracting entity receives information that a contractor who has stipulated to the MacBride Principles is in violation thereof, the contracting entity shall review the information and offer the contractor an opportunity to respond. If the contractor is found to be in violation, the contracting entity may take such action as deemed appropriate and provided for by law, rule, or contract. This includes (but is not limited to) imposing sanctions, seeking compliance, recovering damages, declaring the contractor in default and/or seeking debarment or suspension of the contractor.

Any questions concerning this bulletin should be directed to: