OGS Procurement Services Group 2006 State Purchasing Forum Vendor Responsibility OGS Approach and...

OGS Procurement Services Group 2006 State Purchasing Forum

Vendor ResponsibilityOGS Approach and Learning Lessons

2006 Purchasing Forum – Vendor Responsibility

Presenter’s Contact Information

Noreen VanDoren

Legal Services Office

Office of General Services

[email protected]

(518) 474-5607

Monica Wilkes

Procurement Services Group


[email protected]

(518) 473-4393

OGS Website:

www.ogs.state.ny.us


Standardized forms for the Procurement Council, OGS (and OGS hosted agencies), and Council of Contracting Agencies:

• SVRQ (Standard Vendor Responsibility Questionnaire) or Certificate of No Change and previous questionnaire

- OR -

• UCQ (Uniform Contracting Questionnaire)

• Checklist

• Profile

Approach


Created the Visiflow Vendor Responsibility System, a centralized document management system

Stores all VR questionnaires, profiles, checklists and determinations for agency in electronic database

Shared with OSC

Visiflow


How to assess Vendor Responsibility (VR)?

• Do they meet the four VR criteria? (Acronymn - FLIP)

- Financial Ability (F)- Legal Authority (L)- Integrity (I)- Past Performance (P)

Vendor Responsibility


Checklist completion:

• Discriminatory Jurisdiction checkAK, HI, LA, SC, WV, WY

• Completed (SVRQ) or (UCQ)

• Review responses which require further inquiry

Responsibility Review Process


NYS Web Sites

• NYS Department of Labor (DOL) debarred list for prevailing wage violations

http://www.labor.state.ny.us/workerprotection/publicwork/PDFs/debarred.pdf

• NYS Department of State (DOS), Division of Corporations - confirm NYS corporation registration with DOS

http://appsext5.dos.state.ny.us/corp_public/corpsearch.entity_search_entry

• DOS – confirm vendor has no NYS tax lienshttp://appsext4.dos.state.ny.us/stwarrants_public/st_search

• DOS – UCC listings to confirm that Vendor has no federal tax liens

http://appsext4.dos.state.ny.us/pls/ucc_public/web_search.main_frame


Federal Web Sites

• General Services Administration (federal excluded parties list system) http://epls.gov

• US Department of Labor for OSHA violations (Occupational Safety and Health Administration)

http://www.osha.gov/pls/imis/establishment.html

• Securities Exchange Commission (SEC)for publicly held companies

http://www.sec.gov/edgar/searchedgar/webusers.htm

• Department of Justicehttp://www.usdoj.gov


Internet Searches

• Google - Advanced Search using key words:– Fines, penalties, fraud, investigation,

indictments, accounting practices, etc.

• Lexis/Nexis ($)– Company Analyzer

• Accurint ($)

• Vendex


• Advise vendor where there are concerns

- Regular or e-mail request for additional documents and further written explanation and

details within reasonable time

• If sufficient additional information provided, proceed with responsibility determination

• If still have concerns, send formal invitation to responsibility meeting

• Prepare minutes of meeting and include in procurement record

Due Process


Review Process

Use Critical Judgment

• Consider information disclosed

• Question responses from global company with no issues on SVRQ

• Question responses from construction or waste company that don’t have DEC or OSHA violations

• Question if responses don’t appear to make sense

• Ask vendor to explain why not disclosed


• VR must be considered on the basis of the contract under consideration

• Consider whether all contractors in this industry, if questioned, would have the same issues

• Must allow due process – opportunity to be heard

• Do not make final determination until after meeting

• Decision must be made in the best interests of the State

Each Contract is Unique


• Every contract is unique

• Extent of review depends on contract value and whether contract is highprofile, critical, etc.

• Different levels of review may be necessary

• Use best judgment; don’t work in a vacuum

Review Process


Responsive VS. Responsible

• Vendors found non-responsible must acknowledge such determination on every responsibility questionnaire they complete.

• Vendors found non-responsive do not meet the technical terms and conditions.

• Non-responsibility determinations have far greater adverse consequences for

vendors.


Options:

• Request a report from Dun & Bradstreet ($)

• Require D&B or financial records directly from company

• Use internal resources (legal, financial, administrative)

• Review records by agency finance unit for financial determination

Financial Responsibility


• Company Y bid on numerous asphalt contracts

• Award recommendations sent to OSC

• DOL withholding statements reported to agency

• DOL said cannot be basis for non-responsibility

• OGS obtained written confirmation of financial capacity to perform

Financial Example


Financial Example

• Furniture contract extension

• D&B reported numerous unsatisfied tax liens from other states

• Questioned financial ability and integrity

• Contractor provided proof of satisfaction

• New office manager

• Agency considered past performance

• Contract extended 12 months


Legal Authority

Options:

• Check with DOS for NYS registration

• Obtain current certificate of good standing from jurisdiction where formed

• Obtain copy of Certificate of Incorporation

• Obtain copy of Certificate of signing authority signed by the corporation secretary and approved by board of directors.


Legal Authority Example• Paging Company: press release of merger

• OGS sought assignment of contract

• Doing business as new company name

• DOS licensing requirements

• NYS corporations and LLCs must be registered in NYS with DOS.

• Out of state corporations - current certificate of good standing within their state.

• Assumed name certificate filed with DOS


IntegrityOptions:

• Review Dun & Bradstreet report

• Conduct Internet Search (news articles)

• LexisNexis Company Analyzer search

• Reports from other agencies, states or municipalities

• Contact State Inspector General (SIG) for state employee concerns


Integrity Example

• IT Consulting contractor

• Received “too good to be true offer”

• Bid Rigging

• Once is enough


• Temporary Services contract – unlicensed nurses

• Moving Services contract – submission of altered certified payroll records

• Body Armor contract – degradation of material over time

• Floor covering contractor – manager in prior company failed to fund pension plan and worked deal with the

US Attorney’s office

Integrity Examples


Past Performance

Options:

• NYC Vendex System

• Prior contract history with your agency

• Prior contract history with other governmental agencies

• News articles

• Internet searches

• Public records


IT Services Consulting Contractor• Commenced lawsuits in 4 other states for non-payment on government contracts

• Counter claims by states

• Confidential settlements paid by Company

• No past performance history within NYS

Rubbish Removal Contractors• Numerous OSHA violations, parking and traffic tickets

• Minimal DEC violations for landfill issues

• History of past performance considered

Past Performance Examples


What effect would contract award have on NYS?

• If award were made to low bidder?

• If award were not made to low bidder?

• If award were made to low bidder with requirement for vendor to meet performance measures to ensure continued ability to perform under contract?

• If award were made to low bidder with ability to terminate?

• If award were made to low bidder providing a surety bond?

Making a Determination


Choices

• Reject the bid

• Award the bid

• Consider the risk for NYS with respect to the contract in question

• Award with contingencies

• Suspend current contract until issue resolved

• Ensure Due Process has been provided


Questions and Answers

?


Presenter’s Contact Information

Noreen VanDoren

Legal Services Office


[email protected]

(518) 474-5607

Monica Wilkes

Procurement Services Group


[email protected]

(518) 473-4393

OGS Website:

www.ogs.state.ny.us

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