N.Y. Comp. Codes R. & Regs. tit. 21 § 1159.5
Current through Register Vol. 46, No. 53, December 31, 2024
(a) Code of ethics.In addition to the requirements imposed by (i) Sections 73 and 74 of the New York Public Officers Law, which govern outside business/professional activities and conflicts of interest, respectively, and apply to all employees of the Authority, (ii) Authority Policy 01-01-04 (Code of Ethics) and (iii) the Board of Commissioners Code of Ethics, the authority will assure that ethical conduct is maintained by adhering to the following requirements:
(1) No employee, officer, commissioner, or agent of the authorityshall participate in the selection, or in the award or administration of a contract, if a conflict of interest real or apparent would be involved. Such a conflict would arise when: (i) the commissioner, officer, employee, or agent;(ii) any member of his* immediate family;(iv) an organization that employs, or is about to employ, any of the above, has a financial or other interest in the firm selected for award.(2) The authority's, commissioners, officers, employees, or agents will neither solicit nor accept gratuities, favors, or anything of monetary value from contractors, potential contractors, or parties to sub agreements.(3) Rule with respect to conflicts of interest. No commissioner, officer or employee of the authority should have any interest, financial or otherwise, director indirect, or engage in any business or transaction or professional activity or incur any obligation of any nature, which is in substantial conflict with the proper discharge of his duties in the public interest.(4) Standards. (i) No commissioner, officer or employee of the authority should: (a) accept other employment which will impair his independence of judgment in the exercise of his official duties;(b) accept employment or engage in any business or professional activity which will require him to disclose confidential information which he has gained by reason of his official position or authority;(c) disclose confidential information acquired by him in the course of his official duties nor use such information to further his personal interests;(d) use or attempt to use his official position to secure unwarranted privileges or exemptions for himself or others;(e) engage in any transaction as representative or agent of the authority with any business entity in which he has a direct or indirect financial interest that might reasonably tend to conflict with the proper discharge of his official duties;(f) by his conduct give reasonable basis for the impression that any person can improperly influence him or unduly enjoy his favor in the performance of his official duties, or that he is affected by the kinship, rank, position or influence of any party or person.(ii) A commissioner, officer or employee of the authority should: (a) abstain from making personal investments in enterprises which he has reason to believe may be directly involved in decisions to be made by him or which will otherwise create substantial conflict between his duty in the public interest and his private interest;(b) endeavor to pursue a course of conduct which will not raise suspicion among the public that he is likely to be engaged in acts that are in violation of his trust.(iii) Anyone involved in the negotiation of contracts shall ensure that all statements, communications and representations to contractor representatives are accurate and truthful.(iv) Great care must be exercised to ensure the proper recording and charging of all costs to the appropriate account, regardless of the status of the budget for that account. The falsification of time reports or other cost records will not be tolerated. Every supervisor is responsible for assuring that the work time of employees is recorded promptly and charged accurately.(v) No employee may submit or concur in the submission of any claims, bids, proposals or any other document that is false, fictitious or fraudulent.(vi) Great care must be exercised by supervisors to avoid placing, or seemingly to place, pressure on subordinates which might cause them to deviate from acceptable norms of conduct.(vii) The purchase of supplies, materials, and services from suppliers, vendors, contractors and subcontractors must be done in a manner that preserves the integrity of our procurement process based on the bid process.(viii) Laws and regulations regarding entertainment, gifts and payments may be somewhat complicated. For this reason, questions regarding specific policies should be referred to authority's ethics officer.(ix) Employees should report any instance in which they are offered money, gifts, or anything else of value by a supplier or prospective supplier or contractor of the authority to the authority's ethics officer.(x) Every employee is charged with the duty to preserve the authority's assets, property, plant and equipment.(5) Violations. In addition to any penalty contained in any other provision of law any such commissioner, officer or employee who shall knowingly and intentionally violate any of the provisions of this section may be subject to disciplinary action, suspended, or removed from office or employment in the manner provided by contract, law, or established employment policies.
(b)Protest procedures.The protest procedures set-forth herein apply to both sealed bids and negotiated procurements.
(1) Pre-bid opening protests. If a bidder/proponent can demonstrate that the contract documents issued by the authority are unduly exclusionary and restrictive or that Federal, State or local laws or regulations have been violated during the course of the procurement, then the bidder/proponent may seek a review by the executive director or his appointed representative, at 181 Ellicott Street, Buffalo, NY 14203. Protests shall be clearly identified as Protests and submitted in writing as early as possible but no later than five business days before bid opening. Within four business days after receipt of a pre-bid protest, the executive director shall make one of the determinations listed in paragraph (3) of this subdivision.
(2) Post-bid opening protests. A protest to the acceptance or rejection of any or of all offers or bids to a contract, or to the award thereof, or to any such action proposed or intended by the authority must be received in writing by the executive director no later than five business days after the protesting party first learned of the required board action, or reasonably ought to have learned of the required board action or, if the board action is not required, any proposed or intended action to which he/she protests.
(3) In the event the protestor alleges that the executive director or the representative appointed by the executive director to serve as decision-maker for the particular protest, engaged in improper conduct during the subject procurement, the general counsel shall serve as the decision-maker. In the event it has been alleged that the general counsel has engaged in improper conduct during the subject procurement, either the executive director or the Director of Engineering shall serve as the decision-maker.(4) Rulings on protests. Within four business days, the executive director shall render one of the following determinations:
(i) Protest is overruled.(ii) Protest is substantiated. Executive director shall issue instructions to remedy issues relating to the protest.(iii) Procurement activity is suspended until written notification by the executive director. Such determination shall be in writing and shall provide at a minimum a general response to each material issue raised in the protest. All documents submitted by the protestor and/or authority staff and reviewed by the decision-maker in the reaching of a determination shall form and be retained by the authority as the formal record of the dispute resolution process. The issuance of the foregoing determination is the authority's final decision of the dispute. All interested parties shall be notified of any protests that are filed. The authority shall refrain from awarding a contract within five business days of the date of a decision rendered by the executive director regarding a protest, unless the authority determines that: (a) the items to be procured are urgently required;(b) delivery or performance will be unduly delayed by failure to make a prompt award;(c) failure to make a prompt award will otherwise cause undue harm to the authority or the Federal government.(5) Protestor's appeal to Federal or State agencies. In the event Federal or State funds are participating in the procurement, then the protestor may seek a review by the appropriate funding agency. The Federal Transit Administration will only consider a protest if the authority:
(i) does not have protest procedures;(ii) has not complied with its protest procedures; or(iii) has not reviewed the protest when given the opportunity to do so. The Federal Transit Administration will exercise discretionary jurisdiction over those appeals involving issues important to the Federal Transit Administration's overall public transportation program. Protestors shall file such a protest not later than five business days after a final decision is rendered under the authority's protest procedure. In instances where the protestor alleges that the authority failed to make a final determination on the protest, protestors shall file a protest with the appropriate agency not later than five business days after the protestor knew or should have known of authority's failure to render a final determination on the protest.
(g)Criteria and standards governing commercial advertising.(1) All advertising placed in the NFTA and/or Metro system should reflect a high level of good taste, decency and community standards in copy and art. All advertising should harmonize with the environment of its placement.(2) All advertising should be truthful and comply with the spirit and letter of all applicable laws and regulations of the various jurisdictions into which it is introduced. All copy and art should avoid conveying derisive, exaggerated, distorted, deceptive or offensive impressions.(3) Advertising promoting contests should insure the contest is being conducted with fairness to all entrants and complies with all applicable laws and regulations.(4) Testimonials should be authentic and should honestly reflect the response of the person making them. The advertising sales contract provides for the indemnification of NFTA and/or Metro against any action by any person quoted or referred to in any advertisement placed in the NFTA and/or Metro system.(5) Medical products or treatments should be presented in a restrained and inoffensive manner to the general public.(6) Advertisers should take special care to avoid illustrations or references that disregard normal safety precautions.(7) Advertising offering premiums or gifts should avoid representations that would enlarge the value of the item in the minds of the viewers.(8) Use of NFTA and/or Metro graphics or representations in advertising is subject to approval by the proper officials of NFTA and/or Metro.(9) No implied or declared endorsement of any product or service by NFTA and/or Metro is permitted.(10) NFTA and/or Metro reserves the right to reject or remove any advertising that it deems to be not in good taste and decency and not in the public interest.(11) Items or references which might be objectionable to a substantial segment of the community should be avoided. For example, advertising depicting or referring to an undesirable social behavior or which might be offensive because of racial or religious references should be avoided. Copy which might be contrary to the best interest of the transit system and harmful to the users of the system will not be acceptable.(h)Criteria and standards governing public service advertising.Public service advertising proposed to be posted in any of the equipment or facilities of NFTA and/or Metro will be such:
(1) The advertisement will be non-commercial, non-partisan politically and not designed to influence legislation. Advertising will be accepted only from not-for-profit organizations, corporations or government agencies, philanthropic or cultural organizations whose activities would be of interest or benefit to a majority of the area population.(2) That the advertisement must meet the same guidelines governing commercial advertising.(3) The purpose of the project be such that the advertising methodology can help achieve its objectives and goals.(4) That the action message shall have region-wide appeal, significance and applicability.(5) That the project be of sufficient seriousness and public importance to warrant the use of public service advertising space.(6) That the sponsoring organization be classified as a tax exempt organization by the Internal Revenue Services or that specific activity, or event, being promoted by the "for-profit" organization be in and of itself "non-profit" in nature.(7) That the name of the sponsoring organization, either as it appears on the document granting tax-exempt status, or by the name generally recognized by the public as determined by the Contracting Officer, may be required to be identified on the advertisement. If the name of the sponsoring organization is not a part of the message itself, a "sponsored by" line may be required that, in the judgment of the Contracting Officer, is of a type size and type style to be easily identifiable and readable by the public.(8) That public service space will not be granted to any organization that, in the last twelvemonths, has purchased, or is purchasing, commercial advertising space or time in any media for the general subject campaign or promotion.(9) That the advertisement involves monies (fund-raising, admission fees, donations and other methods of compensation) must clearly identify the nature of the appeal (e.g., if donations are to be sought, whether the collection will be voluntary or if the donation is a required admission fee must be explained).(10) That in advertisements where a phone number or an address is given a written explanation must be furnished to the Contracting Officer as a condition of the approval, which document will state exactly what is intended to happen to an individual when he or she either calls the number listed, writes to, or stops by the address given.(11) That the sponsoring organization shall pay the applicable labor cost for installation and removal of the subject message as charged by the Authority's advertising contractor and approved by the Contracting Officer. That, prior to installation, the camera-ready artwork, graphics, photographs be submitted to the Contracting Officer for approval.(12) The advertising is subject to approval by the NFTA and/or Metro director of public relations and advertising and the advertising contractor. Public service advertising will be accepted on a space-available basis only. The advertisement will be posted only for such period of time as the advertisement space remains available and is not required for commercial advertisement. The public service advertiser will indemnify and hold harmless NFTA and/or Metro and the advertising contractor from any and all claims brought as a result of the display of the advertisement. Footnotes
* For editorial convenience this use of the masculine personal pronoun is deemed gender neutral throughout this document.
N.Y. Comp. Codes R. & Regs. Tit. 21 § 1159.5
Amended, New York State Register February 12, 2014/Volume XXXVI, Issue 6, eff. 2/12/2014Amended New York State Register March 27, 2019/Volume XLI, Issue 13, eff. 3/27/2019Amended New York State Register December 1, 2021/Volume XLIII, Issue 48, eff. 12/1/2021The amended version of this section by New York State Register September 11, 2024/Volume XLVI, Issue 37, eff. 9/11/2024 is not yet available.