Competitive Sealed Bids.
12 RCNY § 1-12
in effect§ 1-12 Competitive Sealed Bids.
(a) General.
(1) Concessions shall be awarded in accordance with competitive sealed bidding procedures whenever practicable and advantageous to the City. Concessions may be awarded through a competitive sealed proposal process if the agency makes a written determination that the use of competitive sealed bidding is not practicable or not advantageous to the City for one of the reasons set forth in 12 RCNY § 1-13(a). Such determination must be approved in writing by the agency head and must be included in the concession file. A copy thereof shall be forwarded to the Committee.
(2) At least 40 days prior to soliciting bids, or less at the discretion of CCPO, the agency shall make a written determination as to whether a concession is a major concession. Such determination shall be approved in writing by the agency head and shall be included in the concession file. If a concession is determined to be a major concession, it shall be subject to review and approval pursuant to Sections 197-c and 197-d of the Charter following the agency selection of the successful bidder. Once a determination of whether a concession is a major concession has been made, an agency may proceed with the sealed bid process but shall provide written notification of its determination to each affected community board and Borough President and shall simultaneously post such notification on the City's website in a location that is accessible by the public with its distribution. A copy of such notification shall be provided to the members of the Committee within 5 days of provision to the community board(s) and Borough President and publication on the City's website, provided however, that inclusion of the concession in the agency's Plan pursuant to 12 RCNY § 1-10 shall constitute notice to the affected community board and Borough President and posting on the City's website for purposes of this requirement, and no copy need be provided to the members of the Committee in such circumstance. The written notification shall include a summary of the terms and conditions of the proposed solicitation and whether the concession is significant.
(i) If an agency provides the aforementioned notice to the affected community board and Borough President and there are no material changes to the terms described in the notice, the agency shall not be required to issue a second notice when issuing or reissuing the Invitation for Bids within a 12-month period.
(3) At least 40 days prior to soliciting bids for a significant concession, or less, at the discretion of CCPO, the agency shall consult with each affected community board and Borough President on developing the scope of the Invitation for Bid, provided however, that inclusion of the concession in the agency's Plan pursuant to 12 RCNY § 1-10 shall constitute consultations with the affected community board and Borough President for purposes of this requirement.
(i) If an agency provides the aforementioned notice to the affected community board(s) and Borough President(s) and there are no material changes to the terms described in the notice, the agency shall not be required to issue a second notice when issuing or reissuing the Invitation for Bids within a 12-month period.
(b) Preparation of invitation to bid.
(1) At least 6 months prior to the expiration date of a concession and/or prior to the anticipated start date of a new concession, the agency shall initiate action for the selection of a concessionaire. The agency action(s) taken shall include the preparation of an Invitation for Bid containing a detailed description of the concession under consideration for resolicitation or initial award. The Invitation should describe the requirements of the agency clearly, accurately and completely. It should include all documents (whether attached or incorporated by reference) furnished prospective bidders for the purpose of bidding. The following information, together with any other appropriate information, should be included in the Invitation for Bid, as applicable:
(i) Instructions and information to bidders concerning the bid submission requirements, including the time and date set for receipt of the bids; requirements for the electronic submission of bids, if any; time, date, and location of any pre-bid conferences (and a statement whether such conferences are mandatory), and an invitation to inspect the premises, as applicable; and the address where bids are to be delivered;
(ii) Location and a brief description of the proposed concession, its size, its prior use and/or other possible usage of the premises, any fixtures, or equipment, on the premises and its surrounding area, including any special instructions or information necessary, and appropriate materials such as maps, plans or photographs;
(iii) The term of the concession and any terms and conditions upon its award, including warranty and bonding or other security requirements, and a description of any legal restrictions on the use of the location;
(iv) A statement that award shall be made to the highest responsive and responsible bidder;
(v) If not included in the bid documents, a notice of where bidders may obtain a copy of all terms and conditions or other material relating to the proposed concession;
(vi) A provision that bidders should give specific attention to the identification of those portions of their bids that they deem to be confidential proprietary information or trade secrets and provide any justification why such materials, upon request, should not be disclosed by the City. Such information must be easily separable from the non-confidential sections of the bid;
(vii) A notice of the bidder's rights to appeal certain decisions as specified in these rules;
(viii) A statement that bidders should contact the agency prior to submission of bids to verify that all amendments issued have been received, and a requirement for acknowledgment of amendments;
(ix) A notice that the concession award is subject to applicable provisions of federal, state, and local laws and executive orders requiring affirmative action and equal employment opportunity;
(x) Where applicable, a notice that concession award is subject to completion of a PASSPort questionnaires and review of that information by the Department of Investigation;
(xi) The name, address, telephone number, and email address of a contact person to whom questions and correspondence relating to the bid solicitation can be addressed;
(xii) Instructions for submission of bids, including a requirement that the bidder include the solicitation number, the name and address of the bidder and the time specified for receipt of bids on the outside wrapper; and
(xiii) The following statement:
The New York City Comptroller is charged with the audit of concession agreements in New York City. Any person or entity who believes that there has been unfairness, favoritism or impropriety in the bid process should inform the Comptroller, Office of Contract Administration, 1 Centre Street, New York, New York 10007; telephone number (212) 669-2323.
(xiv) Where applicable, for concessions that entail construction, the following information shall be additionally included:
(A) A statement establishing minimum insurance requirements which the City will require of the bidder if successful; and
(B) A statement that the bidder will be required to meet all licensing or permit requirements required to perform the construction.
(2) Publicizing the invitation for bids.
(i) Bids for concessions shall be solicited by public advertisement in one issue of the City Record, and a notice of the availability of such solicitation of bids shall be posted on the City's website in a location that is accessible by the public simultaneously with its publication. A copy of such notice shall be provided to the members of the Committee and each affected Community Board within 5 days of its first publication. Consideration shall also be given to soliciting bids by public advertisement in appropriate newspapers and trade publications, posting notices in public places, contacting other City agencies that have concessions, free radio or television coverage, website postings, and such other means as may be appropriate. The steps taken to solicit bids shall be documented by the concession manager and included in the concession file. Current lists of bidders shall be maintained in accordance with 12 RCNY § 1-12(c).
(ii) The advertisement shall include:
(A) The place the Invitation for Bids may be obtained, and the required fee or deposit amount, if any, for obtaining the Invitation for Bids;
(B) The time, date, and location of any pre-bid conference or site visit, if any, and if attendance is mandatory;
(C) The place where and the day and hour when the bids will be publicly opened;
(D) A brief description of the concession under consideration for resolicitation or initial award; and
(E) The name, telephone number, and email address of the agency contact person.
(iii) A bidding time of at least 30 days between the advertisement's first appearance in the City Record and the opening of bids shall be provided, unless the concession manager makes a written determination that a shorter period is reasonable. A copy of such determination must be included in the concession file.
(iv) Agencies shall provide for special outreach to minority and women owned business enterprises certified by the City of New York as such entities are defined in Section 1304 of the Charter. Special outreach can include but is not limited to; providing notice in newspapers, trade publications, websites or social media that are dedicated to minority and/or women owner business enterprises or trade groups. Agencies may additionally employ any outreach technique sanctioned by DSBS that is not otherwise in violation of these Rules.
(c) Soliciting mailing lists.
(1) Establishment of lists.
(i) Solicitation mailing lists may be established by concession managers, and shall be established for any type of concession for which the agency reasonably anticipates soliciting multiple concessions of a similar nature during a given year. Their use can assure the agency that a greater number of potential bidders will be aware of the solicitation. A solicitation mailing list may include any entity in a designated field.
(ii) Lists may be established through any appropriate method, including the following:
(A) Inclusion of names of entities that have submitted unsolicited letters and/or made unsolicited telephone calls;
(B) Inclusion of names of entities that responded to similar solicitations in the past; and
(C) Inclusion of names of other entities that an agency considers capable of filling the requirements of a solicitation. Agencies may refer to appropriate printed directories when compiling the names of entities.
(iii) Prospective bidders shall be notified that they have been included on solicitation mailing lists.
(2) Maintenance of lists.
(i) For each type of concession for which an agency has established a solicitation mailing list, the agency will maintain the mailing lists annually. The agency shall publish in the City Record at least once annually for 5 consecutive editions and shall post on the City's website in a location that is accessible by the public simultaneously with its publication, a notice soliciting the names of entities interested in being included on the solicitation mailing list. A copy of such notice shall be furnished to each affected Borough President, each affected Community Board, and the members of the Committee within 5 days of its publication. Applications for inclusion on such solicitation mailing list shall be continuously available.
(ii) Agencies may add names to a solicitation mailing list at any time.
(iii) Agencies may remove a name from a list if an entity fails to respond to 3 solicitation notices. If an agency removes a name from the list for any other reason the agency must notify the entity in writing of the reason(s) for its removal.
(iv) An agency must remove an entity from the list upon the entity's written request.
(3) Reinstatement on solicitation mailing list. An entity that has been removed from a solicitation mailing list may be reinstated upon written request or by response to a solicitation.
(4) Utilization. When a concession is to be granted in a category for which a solicitation mailing list has been developed, all entities on the list shall be sent a solicitation letter. This letter must include the same information contained in the advertisement announcing the solicitation and should be distributed 5 days prior to the advertisement's first appearance in the City Record. Once a solicitation letter has been sent, it is presumed to have been received by all entities. Agencies have no obligation beyond assuring that the solicitation letter has been sent.
(d) Pre-Bid Conferences. Pre-bid conferences may be conducted by the concession manager to explain the agency's requirements. Written notice of any conference shall be provided to all prospective bidders. A pre-bid conference should be held long enough after the Invitation for Bids has been issued to allow bidders to become familiar with it, but sufficiently before bid opening to allow consideration of the conference results in preparing their bids. Nothing stated at the pre-bid conference shall change the Invitation for Bids unless a change is made by amendment as provided in this section. A summary of the conference shall be prepared and if a transcript is made, it shall be a public record. A record of attendance shall be kept of all conferences.
(e) Amendments and addenda to the invitation for bid.
(1) Authority. The concession manager shall authorize the issuance of any amendment, including addenda.
(2) Form. Each amendment or addendum to an Invitation for Bids shall be identified as such, shall be set forth in writing, and shall require that the bidder acknowledge receipt of all amendments and addenda issued as a condition for consideration of its bid. An amendment shall reference the portion of the Invitation for Bids it amends.
(3) Distribution. Amendments and addenda shall be sent to all prospective concessionaires known to have received an Invitation for Bids. Agencies must maintain a list of all entities that were issued a solicitation. Amendments and addenda must be distributed to all potential bidders who were issued the initial Invitation for Bid and to potential bidders who attended a mandatory pre-bid conference or site visit, if applicable.
(4) Timeliness. Amendments shall be distributed within a reasonable time to allow prospective bidders to consider them in preparing their bids. If the time and date set for receipt of bids will not permit such preparation, such time shall be increased to the extent necessary, and stated in the amendment or, if necessary, by electronic mail, if consented to by the bidder, facsimile, or telephone and confirmed in the written amendment. Once an addendum has been sent, it is presumed to have been received by potential bidders. Agencies have no obligation beyond assuring that the correspondence has been sent. Agencies may wish to distribute addenda to potential bidders using either "return receipt requested" or express mail courier services.
(5) If a change to an Invitation for Bid is so extensive that it warrants complete revision of a solicitation, the concession manager shall cancel the Invitation for Bid and issue a new one. In making the determination whether to cancel an Invitation for Bid based on a change, the concession manager shall consider whether the change is such that new bidders, as a result of those revisions, might now be interested in satisfying the requirements of the changed Invitation for Bid.
(6) Agencies must require that bidders acknowledge the receipt of all the amendments as part of their bids. Failure to acknowledge the receipt of all amendments in a bid for a significant concession may be waived if the concession manager, upon written approval of the Agency Head, determines that it is in the best interests of the City to do so. Failure to acknowledge the receipt of all amendments in a bid for a concession, other than a significant concession, may be waived if the concession manager makes a written determination that it is in the best interests of the City to do so. Such determination must be included in the concession file.
(f) Bid deposits. The concession manager may establish a reasonable bid deposit requirement. Where a deposit amount is specified in the Invitation for Bid, no bid shall be valid unless accompanied by such deposit. Every Invitation for Bid shall contain a provision that in the event of the failure of a successful bidder to execute a concession agreement in accordance with the terms of its bid, any such deposit shall be retained by the City unless the bid has been permitted to be withdrawn.
(g) Submission of bids. The Invitation for Bids shall provide a form on which the bidder shall insert the bid price (i.e., proposed revenue) and shall sign and submit along with all other necessary submissions. Bids shall be submitted in the form required by the Request for Bids and signed by the bidder. Erasures or alterations shall be initialed by the signer If so provided in the solicitation, sealed bids may be submitted electronically. Bidders must submit sealed bids to be opened at the time and place stated in the Invitation for the public opening of bids. Each bid shall show the time specified for receipt, the solicitation number and the name and address of the bidder on the outside wrapper.
(h) Receipt and safeguarding of bids. All bids received before the time set for the opening of bids shall be placed unopened in a safe or a secured cabinet in the custody of the concession manager. Bids shall be time and date stamped upon receipt. Before bid opening the agency may not disclose the identity of any bidder.
(i) Bid opening. The official responsible for conducting the bid opening shall decide when the time set for opening bids has arrived and shall inform those present of that decision. The official shall then:
(1) Personally and publicly open all bids received before that time;
(2) If practical, read the bids aloud to the persons present;
(3) Have the bids recorded and
(4) Have all persons present sign an attendance form with the name of the entity they represent and official title. The record of bids, the attendance form and opened bids shall be included in the concession file, and shall be available for public inspection at a reasonable time after business opening, but in any case before concessionaire selection, except to the extent the bidder designates trade secrets or other proprietary data to be confidential. Material so designated shall accompany the bid and shall be readily separable from the bid in order to facilitate public inspection of the nonconfidential portion of the bid. The concession manager shall examine the bids to determine the validity of any requests for nondisclosure of trade secrets and other proprietary data identified in writing. Nondisclosure is permissible only if approved by Agency Counsel, and does not restrict disclosure of such materials to the members of the Committee who, nonetheless, shall remain under a duty of confidentiality except if required by law to disclose such materials. Any decision not to honor a request for confidentiality shall be communicated in writing to the bidder making the submission.
(j) Late bids and modifications.
(1) It is the responsibility of a bidder to submit its bid prior to the time set for bid opening to the designated agency location. Bids and modifications received after that exact time are defined as "late". Late bids and modifications must be acknowledged, and time stamped upon receipt and, except under the specific circumstances described below, may not be considered.
(2) A late bid or modification, received before the grant of a concession,
(i) may be considered when the late bid or modification is received within 48 hours after the opening of bids and is the only bid received. (See 12 RCNY § 1-12(m))
(ii) must be considered when a modification of a successful bid makes its terms more favorable to the City. If, based on the above, a late bid or modification is considered, the concession manager must document the circumstances in writing and maintain such documentation as part of the concession file. If a late bid or modification is not considered, such bid or modification shall be promptly returned to the bidder unopened and the bidder shall be notified of the reason for such action.
(k) Withdrawal of bids.
(1) Bids may be withdrawn by written notice received at the designated agency location before the time set for bid opening.
(i) If a bid is withdrawn in accordance with 12 RCNY § 1-12(k)(1), the bid security, if any, shall be returned to the bidder.
(2) After bid opening, a bidder may not withdraw its bid before the expiration of 45 calendar days after the date of the opening of bids or such longer period as determined by the concession manager and set forth in the solicitation and only in writing and in advance of an actual grant of a concession. If a bid is withdrawn in accordance with this section, the bid security, if any, shall be returned to the bidder.
(3) The concession manager shall document each request for withdrawal and prepare a written determination, with supporting facts, as to whether or not the bid was permitted to be withdrawn. Such determinations shall be included in the concession file with a copy thereof forwarded to the bidder.
(l) Mistake in bid. Allegations of mistakes in bids shall be processed by the concession manager according to 9 RCNY § 3-02(m) of the Rules of the Procurement Policy Board ("PPB Rules"). A written determination shall be made and shall be included in the concession file.
(m) Single bids. When a single bid has been received in response to an Invitation for Bid, an award may be recommended only after it has been documented by the concession manager that a sufficient number of other entities had a reasonable opportunity to bid; why, as a result of inquiries made by the agency, representative firms chose not to submit bids; that the bid submitted meets minimum requirements for award; and that a resolicitation would not be in the City's best interest. If the above specified circumstances cannot be documented, the single bid must be rejected and the concession may either be pursued, subject to the approval of the concession manager, by the solicitation of new bids or the concession cancelled. Notwithstanding the foregoing, when a single bid has been received in response to an Invitation for Bid for a concession, other than a significant concession, the agency shall not be required to make inquiries as to why representative firms chose not to submit bids.
(n) Award and processing.
(1) The apparent high bidder must submit PASSPort Questionnaires prior to award when and as directed by the Agency.
(2) The agency granting the concession may reject all bids if it shall deem it for the interest of the City so to do; if not, it shall, without other consent or approval, grant the concession to the highest responsible bidder whose bid meets the requirements and criteria set forth in the Invitation for Bids. A determination to reject all bids for a concession, other than a significant concession, shall be made by the concession manager in writing, and shall be included in the concession file. A determination to reject all bids for a significant concession shall be made by the concession manager in writing, approved by the Agency Head, and shall be included in the concession file. All bidders shall be notified of the reason for such action.
(3) Tie bids.
(i) Tie bids are to be decided by the agency granting the concession and the award made. When two or more bids are equal in all respects, concessions shall be awarded in the following order of priority:
(A) Award to minority- and women-owned business enterprises as such entities are defined in Section 1304 of the Charter.
(B) Award to a New York City bidder.
(ii) If two or more bidders still remain equally eligible after application of subparagraph (3)(i) above, award shall be made by a drawing by lot limited to those bidders. If time permits, the bidders involved shall be given an opportunity to attend the drawing. The drawing shall be witnessed by at least 3 appropriate agency staff personnel, and the concession file shall contain the names and addresses of the witnesses and the person supervising the drawing.
(iii) When an award is to be made by using the priorities under this subparagraph, the concession agreement shall include a provision whereby the concessionaire agrees to perform, or cause to be performed, the concession in accordance with the circumstances justifying the priority used to break the tie or select bids for a drawing by lot.
(iv) The concession manager shall include a statement in the concession file describing how the tie was broken.
(4) If the highest bidder is determined by the agency not to be a responsible bidder pursuant to 12 RCNY § 1-07 or the highest bid is determined by the agency to not meet the requirements and criteria set forth in the Invitation for Bids pursuant to 12 RCNY § 1-06, the agency making such determination may award the concession to the next highest responsive and responsible bidder.
(5) If less than 3 bids have been received the concession manager shall examine the situation to ascertain the reason for the small number of responses and shall initiate corrective action, if appropriate, to increase competition in future solicitations. A written statement of any corrective action taken shall be included in the concession file. Concessions may be granted notwithstanding the limited number of bids.
(6) It is not permissible to engage in any type of negotiation with any bidder. Notwithstanding the foregoing, prior to award it is permissible for the concession manager to request the successful bidder to increase its bid. The concession manager must document any discussions of this nature and maintain such documentation as part of the concession file. If a bid increase is obtained, written verification thereof shall be furnished by the successful bidder to the concession manager and shall be included in the concession file.
(o) Bid retention. The agency must retain all submitted bids and modifications in the permanent concession file. Although the Agency may consider only the latest version of a bid, the retention of these documents will serve as a reference for responses to future inquiries. When bids are rejected or a solicitation canceled after bids are received, the bids shall be retained and the bid security, if any, shall be promptly returned, and the file so documented.
(p) Accessibility.
(1) Agencies must provide prospective concessionaires with an opportunity to request and receive reasonable accommodations on the basis of disability to participate in the concession solicitation process described by these rules.
(Amended City Record 10/29/2025, eff. 11/28/2025)
Source: City of New York, Charter, Administrative Code and Rules (American Legal Publishing XML export, codelibrary.amlegal.com)URL: https://codelibrary.amlegal.com/codes/newyorkcity/latest/NYCrules/0-0-0-154054Fetched: 10/24/2026