§ 1-07 — Concessionaire Responsibility

§ 1-07 Concessionaire Responsibility.

(a) Policy. Concessions shall be awarded to responsible prospective concessionaires only. (b) General standards. (1) A responsible concessionaire is one which has the capability in all respects to perform fully the concession requirements. Factors affecting a prospective concessionaire 's responsibility may include: (i) Financial resources; (ii) Technical qualifications; (iii) Experience; (iv) Organization, material, equipment, facilities and personnel resources and expertise (or the ability to obtain them) necessary to carry out the work and to comply with required delivery or performance schedules, taking into consideration other business commitments; (v) A satisfactory record of performance; (vi) A satisfactory record of business integrity; (vii) Where the concession includes provisions for compensation to the City based on revenues, the existence of accounting and auditing procedures adequate to control property, funds or other assets, accurately delineate costs, and attribute them to their causes; (viii) Proof of timely tax filing, certificate of insurance, and other financial documents as required by OMB or the Comptroller; (ix) Compliance with requirements for the utilization of small minority-owned and women-owned businesses as subconcessionaires, if any. (2) Failure of an entity to provide relevant information specifically requested by the concession manager may be grounds for a determination of non-responsibility. (c) Special standards. (1) When it is necessary for a particular concession or class of concessions, the concession manager shall develop, with the assistance of appropriate specialists, special standards of responsibility. Special standards may be particularly desirable when experience has demonstrated that certain minimum experience or specialized facilities are needed for adequate concession performance. (2) The special standards shall be set forth in the solicitation (and so identified) and shall apply to all prospective concessionaires. (3) Special standards must be based on demonstrated need and must not be used to artificially limit competition. (d) Ability to meet standards. (1) The prospective concessionaire may demonstrate the availability of necessary financing, equipment, facilities, expertise, and personnel by submitting upon request: (i) Evidence that such prospective concessionaire possesses such necessary items, or can obtain them; (ii) A documented commitment from, or explicit arrangement with, a satisfactory source to provide the necessary items. (iii) If applicable, a copy of the latest financial audit report, including the date, period covered, findings, name of the CPA firm that conducted it, and, if applicable whether the CPA firm was unable to express an opinion as to the adequacy of the prospective concessionaire’s books and records. (2) A prospective concessionaire that has performed unsatisfactorily shall be presumed to be non-responsible, unless the concession manager determines that the circumstances were beyond the prospective concessionaire's control or that the prospective concessionaire has taken appropriate corrective action. Past failure to apply sufficient tenacity and perseverance to perform acceptably is strong evidence of non-responsibility. (e) Making the responsibility determination. (1) PASSPort questionnaires. (i) In the case of concession awards where the concession has a value that, when aggregated with the value of all other City concessions, franchises and contracts held by the same concessionaire, is valued at $100,000 or more, questionnaires, known as "PASSPort questionnaires" seeking background information about the prospective concessionaire and its principals, owners, officers, affiliates and subconcessionaires shall be completed. The apparent high bidder or proposed concessionaire and, at the discretion of the concession manager, any other responsive prospective concessionaire, shall be required to complete the PASSPort questionnaires so as to assist the concession manager in making the determination of responsibility and to permit compliance with local law concerning creation and maintenance of a computerized database concerning concessionaire background. (ii) The questionnaire responses shall be entered into the citywide computerized PASSPort database which is jointly maintained by the Mayor and the Comptroller. Questionnaires need be completed only once every 3 years. Each prospective concessionaire shall certify at the time of award of each concession that all the information submitted within such 3-year period is current, accurate and complete. In the event that changes have occurred within the 3-year period, the prospective concessionaire shall update, prior to concession award, any previously-submitted PASSPort questionnaire to supply any changed information, and shall certify that both the updated and unchanged information is current, accurate and complete. (iii) Names on the questionnaires shall be reviewed by the Department of Investigation to ascertain whether the business or its affiliated individuals are or have been the subject of an investigation by the Department. The Department of Investigation shall undertake the review expeditiously and provide an explanation to an agency if its review is not completed within 30 calendar days of the request. If the Department of Investigation ascertains that there has been such an investigation, it shall provide a copy of any final report or statement of findings to the concession manager for use in making the determination of responsibility. (iv) Subcontractors / subconcessionaires. Where appropriate, City concession agreements shall contain a clause requiring concessionaires to notify subcontractors / subconcessionaires of their obligation to complete and file PASSPort questionnaires within 30 days after the concession manager has granted preliminary approval of the identified subcontractor/subconcessionaire, if the aggregate value of City contracts, franchises, and concessions awarded to a subcontractor / subconcessionaire during the immediately preceding twelve-month period equals or exceeds $100,000. (2) The concession manager should use the following sources of information to support determinations of responsibility or non-responsibility: (i) PASSPort listings of debarred, suspended and ineligible contractors and concessionaires; (ii) PASSPort and other records or evaluation of performance, if available, as well as verifiable knowledge of agency personnel; (iii) Determinations of violations of employment-related federal, state, or local law or executive order, including but not limited to those relating to equal employment opportunity, prevailing wage, workplace health and safety, employee benefits, and employee wages and hours, if any; (iv) Information supplied by the prospective concessionaire, including bid / proposal information, PASSPort questionnaires replies, financial data, information on production equipment and personnel information; and other sources such as publications, suppliers, subconcessionaires and customers of the prospective concessionaire, financial institutions, other government agencies, and business and trade associations. (v) Information published on news or social media websites, including press articles or customer reviews. (3) Nothing in this section shall preclude a concession manager, prior to award, from notifying the bidder/proposer of unfavorable responsibility information and providing the bidder/proposer an opportunity to submit additional information or explain its actions before adverse action is taken. (f) Written determination of non-responsibility required. (1) If a prospective concessionaire who otherwise would have been awarded a concession is found non-responsible, a written or electronic determination of non-responsibility setting forth in detail and with specificity the reasons for the finding of non-responsibility shall be prepared by the concession manager. (2) A copy of the determination of non-responsibility shall be immediately sent to the non-responsible prospective concessionaire. Notice to the non-responsible prospective concessionaire must be mailed no later than 2 business days after the determination of non-responsibility is made and must inform the prospective concessionaire of the right to appeal the determination to the Agency Head or designee and subsequently to the CCPO, and of the procedure for taking such appeals. The notification shall also contain the following statement: The prospective concessionaire shall also send a copy of its appeal to the New York City Comptroller, for informational purposes, at Office of the New York City Comptroller, Office of Contract Administration, 1 Centre Street, New York, New York 10007, (212) 669-2323. (3) The determination of non-responsibility shall be made part of the concession file, delivered to the Mayor's Office of Contract Services and Law Department, and included in the PASSPort database. (g) Appeal of determination of non-responsibility. Appeals of the determination of non-responsibility shall be made pursuant to the following procedure: (1) Time for appeal. Any prospective concessionaire who is determined to be non-responsible in connection with the award of a particular concession shall be allowed 5 days from receipt of the agency's notification to file a written or electronic appeal of that determination with the Agency Head. Receipt of notice by the prospective concessionaire shall be deemed to be no later than 5 days from the date of mailing or upon delivery, if delivered. Filing of the appeal shall be accomplished by actual delivery of the appeal document to the office of the Agency Head. (2) Form and content of appeal. The appeal by the prospective concessionaire shall be in writing and shall briefly state all the facts or other basis upon which the prospective concessionaire contests the agency finding of non-responsibility. Supporting documentation shall be included. (3) Agency Head determination. The Agency Head shall consider the appeal, and shall make a prompt written decision with respect to the merits of the appeal. The Agency Head may, in his or her sole discretion, meet with the prospective concessionaire to discuss the appeal. (4) Notification to prospective concessionaire of Agency Head decision. A copy of the decision of the Agency Head shall be sent to the prospective concessionaire. If the Agency Head upholds the concession manager's finding of non-responsibility, the Agency Head shall inform the prospective concessionaire of the right to appeal the decision to the CCPO, and of the procedure for taking such an appeal. (5) Finality. The Agency Head's decision of an appeal from a determination of non-responsibility shall be final unless further appealed to the CCPO. (6) Delegation. The Agency Head may designate a senior agency official, other than the concession manager or his or her subordinates, to consider this appeal. (h) Stay of award of concession pending Agency Head or CCPO decision. Award of the concession shall be stayed pending the rendering of a decision by the Agency Head or CCPO unless the concession manager makes a written determination that execution of the concession without delay is necessary, or the CCPO, in the CCPO's discretion, determines that it is in the best interests of the City to go forward with the award of the contract. (i) Appeal to the CCPO. Appeals to the CCPO of the Agency Head decision upholding a determination of non-responsibility shall be made pursuant to the following procedure: (1) Time for Appeal. Any prospective concessionaire who wishes to appeal the decision of the Agency Head shall be allowed 10 calendar days from receipt of the Agency Head's notification to file a written or electronic appeal of that determination with the CCPO. Receipt of notification by the prospective concessionaire shall be deemed to be no later than 5 days from the date of mailing or upon delivery, if delivered. Filing of the appeal shall be accomplished by actual delivery of the appeal document to the CCPO. (2) Form and Content of Appeal by Prospective Concessionaire. The appeal by the prospective concessionaire shall be in writing and shall briefly state all the facts or other basis upon which the prospective concessionaire contests the agency finding of non responsibility. Supporting documentation shall be included. (3) CCPO Determination. The CCPO shall consider the prospective concessionaire's appeal, and shall make a prompt written decision with respect to the merits of the prospective concessionaire's appeal. The CCPO, in the CCPO's sole discretion, may meet with the prospective concessionaire to discuss the appeal. (4) Notification to Prospective Concessionaire of CCPO Decision. A copy of the decision of the CCPO shall be sent to the prospective concessionaire. (5) Finality. The decision by the CCPO of a prospective concessionaire's appeal from an Agency Head decision concerning non-responsibility shall be final. (j) Documentation. Documents reflecting the concession manager's determination of non-responsibility and any appeal and decision with respect to appeal, and evidence of having supplied written notifications as required by this section, shall be maintained in the concession file. Copies of these documents shall be sent to the Mayor's Office of Contract Services for inclusion in the PASSPort data base. A copy of the determinations of the concession manager, Agency Head, and CCPO shall be forwarded to the Committee. (Amended City Record 10/29/2025, eff. 11/28/2025)