A New York City Agency has Determined, or has Demanded, that my Company Show Cause why the City Agency Should not Determine, that my Company is a Non-Responsible Vendor. What are my Company’s Rights?
Vendor Responsibility
New York City may award contracts only to responsible bidders.
There are two components to responsibility. A responsible bidder must have both “the capability in all respects to perform fully the contract requirements and the business integrity to justify the award of public tax dollars.”
Factors affecting a contractor’s responsibility may include the following:
- Financial resources
- Technical qualifications
- Experience
- Organization, material, equipment facilities, and personnel resources and expertise
- A satisfactory record of performance
- A satisfactory record of business integrity
- The existence of accounting and auditing procedures adequate to control property, funds, or other assets; and
- Compliance with requirements for the utilization of small, minority-owned, and women-owned businesses as subcontractors
A prospective contractor that has performed unsatisfactorily on a previous contract with New York City is presumed to be non-responsible, unless the Contracting Officer determines that the circumstances were beyond the contractor’s control or that the contractor has taken appropriate corrective action. Past failure to apply sufficient tenacity and perseverance to perform acceptably is powerful evidence of non-responsibility.
When a New York City agency makes a responsibility determination, the issue is whether a contractor is or is not responsible. The agency may not perform a relative comparison with other vendors, determining whether the contractor is more or less responsible than another vendor.
In determining whether a bidder has sufficient business integrity to justify the award of a public contract, New York City may consider “a bidder’s honesty, integrity, good faith, and fair dealing.” A criminal conviction or indictment may provide a rational basis for determining a bidder to be not responsible.
Further, “Failure of a vendor to provide relevant information specifically requested by the City may be grounds for a determination of non-responsibility.”
Likewise, New York’s Appellate Division, First Department, has held that a petitioner vendor’s “failure to make accurate disclose on its VENDEX [now known as PASSPort] forms and failure to comply with the [New York City] Comptroller’s investigative subpoenas with respect to illegal waste disposal” justified the borough of New York City Mayor’s determination that the petitioner vendor (i) had engaged in “corrupt activity” under New York City Charter § 328(c) and (ii) therefore “was not a responsible bidder entitled to an award of the subject municipal contract.”
New York City may not, however, find a contractor not responsible based on innuendo or “an impression of guilt by association rather than demonstrating any relationship, other than the merely incidental, between [the] petitioner and members of organized crime.”
Appeal of a Determination of Non-Responsibility
Let’s discuss the process for appealing a determination by a New York City agency that a vendor is non-responsible and thus not eligible for a contract with the City.
The Agency Chief Contracting Officer (the “ACCO”) must notify a vendor of a non-responsibility determination within two days of the determination.
The vendor has ten days from receipt to appeal to the Agency Head, with a copy to the New York City Comptroller. The appeal by the vendor must be in writing and must briefly state all the facts or other basis upon which the bidder contests the agency finding of non-responsibility. Supporting documentation must be included.
The Agency Head must make a prompt written decision, as to the merits of the bidder’s appeal, no later than 60 days after receipt.
Award of the contract is stayed pending the rendering of a decision by the Agency Head, unless the ACCO determines that that execution of the contract without delay is “necessary to protect substantial City interests.”
The vendor has ten calendar days from receipt of the Agency Head’s decision to appeal that decision to the City Chief Procurement Officer (the “CCPO”).
The CCPO must promptly issue a written decision with regard to the merits of the vendor’s appeal.
Award of the contract is stayed pending the rendering of a decision by the CCPO, unless (i) the ACCO determines that the execution of the contract without delay is necessary or (ii) the CCPO, in his or her discretion, determines that it is “in the best interests of the City” to go forward with the award of the contract.
Documents reflecting the agency determination of non-responsibility and any appeal and decision with respect to appeal are included in the PASSPort database.
An Article 78 petition may be filed in Court within four months to challenge an adverse CCPO decision of non-responsibility.
Rehabilitation
If a vendor is determined to be non-responsible by one or more agencies of New York City, the vendor can apply for a declaration of rehabilitation.
Contracting Officers may rely upon the declaration of rehabilitation in lieu of requiring a vendor to explain negative responsibility information.
To apply for a declaration of rehabilitation, a vendor must submit a written application to the CCPO. The application must state how the applicant has demonstrated its responsibility for future procurement awards. Further, the application must:
- Show that the issues leading to the relevant non-responsibility determination have been remedied by the applicant; and
- Set forth any additional remedies or corrective action the applicant is willing to undertake as a condition of a final declaration of rehabilitation by the CCPO.
Among the circumstances that can weigh in favor of granting rehabilitation to a vendor that has been previously found non-responsible by New York City are the following:
- A written code of conduct
- A hotline for reporting misconduct
- Training
- Personnel changes, such as dismissing employees whose actions were the subject matter of the non-responsibility determination(s)
- Internal controls
- An investigation and compliance system
- Retaining a monitor
- Self-reporting
- Acceptance of responsibility
If you are a bidder that has applied for a contract with a New York City agency and your bid has been denied on the grounds that you are non-responsible, or the City agency has demanded you show cause why the agency should not deny your bid on the grounds that you are non-responsible, call New York Government Procurement and Contracts Attorney David S. Rich at (347) 835-5688 or (201) 884-2114.
Our firm’s labor and employment practice includes the following:
- Labor and Employment Litigation
- Employment Compliance and Consulting
- Business Contracts and Agreements
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If you are an employee in New York City with a disability, you may or may not be entitled to a disability exemption from your employer’s requirement to be fully vaccinated against COVID-19.
The ability or duty of employers in New York City to require all employees physically entering the workplace to be fully vaccinated against COVID-19, as well as your entitlement, if any, to a disability exemption from your employer’s requirement, are governed by three different bodies of law: federal laws (applying throughout the United States), New York State laws, and New York City laws. This article examines, in turn, each of these sources of authority.
Federal Law
Under the Americans with Disabilities Act (“the A.D.A.”), an employer may require all employees physically entering the workplace to be vaccinated against COVID-19, even though the employer knows that some employees may not get the vaccine because of a disability, provided that certain requirements are met.
Under the A.D.A., an employer may require an individual with a disability to meet a qualification standard applied to all employees, such as a safety-related standard requiring a COVID-19 vaccination, if the measure is job-related and is consistent with business necessity.
If a particular employee cannot meet such a safety-related qualification standard because of a disability, the employer may not require compliance for that employee unless it can show that the individual would pose a “direct threat” to the health or safety of the employee or others in the workplace. A “direct threat” is a “significant risk of substantial harm” that cannot be eliminated or reduced by reasonable accommodation.
This determination can be broken down into two steps: (i) determining if there is a direct threat and (ii) if there is, assessing whether a reasonable accommodation would reduce or eliminate the threat.
To determine if an employee who is not vaccinated because of a disability poses a “direct threat” in the workplace, an employer must first make an individualized assessment of the employee’s present ability to safely perform the essential functions of the job. The factors that make up this assessment are: (i) the duration of the risk; (ii) the nature and severity of the potential harm; (iii) the likelihood that the potential harm will duration of the risk; (ii) the nature and severity of the potential harm; (iii) the likelihood that the potential harm will occur; and (iv) the imminence of the potential harm.
If the assessment shows that an employee with a disability who is not vaccinated would pose a direct threat to self or others, the employer must consider whether providing a reasonable accommodation, absent undue hardship, would reduce or eliminate that threat. Potential reasonable accommodations could include requiring the employee to wear a mask, work a staggered shift, making changes in the work environment (such as improving ventilation systems or limiting contact with other employees and non-employees), permitting remote work if feasible, or reassigning the employee to a vacant position in a different workspace.
If you are an employee with a disability who does not get vaccinated for COVID-19 because of a disability, you must let the employer know that you need an exemption from the requirement or a change at work, known as a reasonable accommodation. To request accommodation, you need not mention the A.D.A. or use the phrase “reasonable accommodation.”
You and your employer will then engage in a flexible, interactive process to identify workplace accommodation options that do not impose an undue hardship (that is, significant difficulty or expense) on your employer.
Even if there is no reasonable accommodation that will allow you, the unvaccinated employee, to be physically present to perform your current job without posing a direct threat, your employer must consider whether remote work is an option for your particular job as an accommodation, and as a last resort, whether reassignment to another position is possible.
The A.D.A. requires that employers offer an available accommodation if one exists that does not pose an undue hardship, meaning significant difficulty or expense.
The proportion of employees in your workplace who already are partially or fully vaccinated against COVID-19 and the extent of employee contact with non-employees who may be ineligible for vaccination or whose vaccination status may be unknown can impact the A.D.A. undue hardship consideration.
The A.D.A. does not prevent your employer from inquiring about or requesting documentation or other confirmation that you, the employee, obtained a COVID-19 vaccination.
Laws In New York
In New York City (including Manhattan), starting August 17, 2021, people 12 years of age and older – including both employees working at these locations and customers — are required to show proof that they have received at least one dose of a COVID-19 vaccine authorized for emergency use by the U.S. Department of Health and Human Services Food and Drug Administration (the “F.D.A.”) or the United Nations’ World Health Organization (the “WHO”) for indoor dining, indoor fitness, and indoor entertainment.
These requirements are imposed by Emergency Executive Order 225, also known as the “Key to N.Y.C.,” which New York City Mayor Bill de Blasio issued on September 16, 2021, and which the City began enforcing on September 13, 2021.
The New York Commission on Human Rights (the “City Commission on Human Rights” or the “NYC CHR”) has issued separate guidance on the duties of businesses under the New York City Human Rights Law (the “City Human Rights Law” or the “NYCHRL”) and how those duties interact with the Key to N.Y.C. With exceptions not here relevant, the NYCHRL governs all employers that have four or more employees in the New York.
The NYCCHR’s guidance states that when implementing the Key to N.Y.C., businesses must provide reasonable accommodation to employees who require them because of a disability, pregnancy, religious belief, or their status as victims of domestic violence, stalking, or sex offenses.
If, as an employee, you request an exception to New York City’s (including the borough of Manhattan’s) vaccine requirement or additional time to provide your proof of vaccination for one of the reasons listed above, your employer must engage with you in a cooperative dialogue or a good-faith discussion to see if a reasonable accommodation of you is possible.
Reasonable accommodations can take many forms. For example, you, the employee, could work remotely, perform your job duties outside or isolated from other employees or customers, or take a leave of absence.
Your employer does not have to provide you with a reasonable accommodation if it would cause a direct threat to other customers or employees of the business or impose an undue hardship on the business.
If you seek reasonable accommodation from your employer because of a disability or pregnancy, your employer can request a note from your medical provider. The note from your medical provider does not have to specify your particular medical condition or pregnancy status, but it should confirm that you are presently unable to show proof of vaccination.
Under the NYCHRL, employees are only entitled to reasonable accommodations for needs related to their own disabilities, pregnancies, religious beliefs, or status as a victim of domestic violence, stalking, or sex offenses. Your employer does not have to provide reasonable accommodation to you if you fall outside of these categories and can fire you if you are unable to show proof of vaccinations.
If you are an executive or a professional in New York City or the surrounding metro area and you believe that you have been wrongfully terminated, that you’ve been denied a salary, bonuses, commissions, or other wages that are owed to you, or that your employer has failed or refused to reasonably accommodate your disability, call Employment Attorney David S. Rich at (347) 941-0760 today.
Our firm’s labor and employment practice includes the following:
- Labor and Employment Litigation
- Employment Compliance and Consulting
- Business Contracts and Agreements
Return to the Practice Areas page.
