Pursuant to the provisions of Section 806 of the General Municipal Law, the Board of Trustees of the Agriculture and New York State Horse Breeding Development Fund ("the Fund") promulgates these rules of ethical conduct for the officers and employees of the Fund. These rules shall be in addition to any prohibition of Article 18 of the General Municipal Law, Sections 73 and 74 of the Public Officers Law or any other general or special law relating to ethical conduct and interest in contracts of municipal officers and employees.

Definitions

  1. "Officer" or "employee" means an officer or employee of the Fund, whether paid or unpaid, including members of the Board of Trustees and their appointees.
  2. "Interest" means a pecuniary or material benefit accruing to a officer or employee of the Fund unless the context otherwise requires.

 

BY-LAWS

OF THE

AGRICULTURE AND NEW YORK STATE

HORSE BREEDING DEVELOPMENT FUND

ARTICLE   I

The Fund

Section 1.         Description.  The Agriculture & New York State Horse Breeding Development Fund (the “Fund”) is a public benefit corporation, created by and having the powers and function set forth in Section 330 et seq. of the New York Racing, Pari-Mutuel Wagering and Breeding law of 1965, as amended (hereinafter “the act”).

ARTICLE II

Offices

Section 1.         Principal Office. The principal office of the Fund shall be located in the state of New York.

Section 2.         Branch Offices.  The Fund may establish and maintain branch offices for the conduct of its activities, within the State of New York, at such locations as the Board of Trustees shall determine.

ARTICLE III

Board of Trustees

Section 1.         General Powers.  The governing body of the Fund shall be a Board of Trustees in whom shall be vested and who shall exercise the powers of the Fund.

Section 2.         Number of Trustees.  The Board of Trustees shall consist of five trustees, who shall be selected and shall hold office as provided in the Act.

Section 3.         Chairman of the Board of Trustees.  The Chairman of the Board of Trustees shall be designated by the members of the Fund.

Section 4.         Meetings.

 

(A)              Annual Meeting. The Board of Trustees shall hold an annual meeting at such date, hour and place as shall be designated in the notice to the Trustees.  Such notice shall be given not less than ten days before the meeting, in such manner as the Board of Trustees, by resolution, may determine.

(B)              Regular Meetings.  Regular meetings of the Board of Trustees shall be held at such time as the Trustees shall, from time to time, determine.  There shall be at least two meetings each year.

(C)              Special Meeting.  Special meetings of the Board of Trustees shall be held whenever called by the Chairman of the Trustees. Any business that may be transacted at a regular meeting of the Board of Trustees may be transacted at a special meeting.

(D)              Time and Place of Meeting.  The Board of Trustees may hold its meetings at such time or times and place or places within the State of New York as the Trustees may, from time to time, by resolution, determine or such other locations as shall be designated in any notices or waivers of notice thereof.

(E)               Notice of Meeting.  Notice of the time and place of each meeting of the Board of Trustees shall be mailed by the staff to each trustee addressed to him at his residence or usual place of business, at least three days before the day on which such meeting is to be held, or shall be sent to him by facsimile, mail, telegraph, cable, or other form of recorded communication, or be delivered personally or by telephone not later than the day before the day on which such meeting is to be held.  Such notice shall include the time and place of such meeting.  Notice of any such meeting need not be given to any Trustee if waived by him in writing or by facsimile mail, telegraph, cable or other form of recorded communication before or after such meeting shall be held, or if he shall be present at such meeting and shall not protest the lack of notice to him prior thereto, or at its commencement.

(F)               Quorum and Manner of Acting.  A majority of the whole number of Trustees shall be present in person at any meeting of the Board of Trustees in order to constitute a quorum for the transaction of business at such meeting, and the affirmative vote of a majority of those Trustees present at any such meeting at which a quorum is present shall be necessary for the passage of any resolution or act of the Trustees, except as otherwise expressly required by law or by these By-Laws.  In the absence of a quorum for any such meeting, a majority of the Trustees present thereat may adjourn such meeting, from time to time until a quorum shall be present.  Notwithstanding any provision herein to the contrary, the Board of Trustees may, in appropriate cases, act through mail ballot or by other reasonable method necessary to take action in lieu of a meeting, provided that such action is ratified by the Board of Trustees at the next regularly scheduled meeting.

(G)              Organization.  At each meeting of the Board of Trustees, one of the following shall act as Chairman of the meeting and preside thereat, in the following order of precedence: (i) The Chairman of the Board; (ii) any director chosen by a majority of the directors present. The Executive Director, or in his absence, any person whom the Chairman shall appoint, shall keep the minutes of the meeting.

(H)              Delegation of Powers.  The Board of Trustees may delegate to one or more of the Trustees, officers, agents, or employees of the Fund such powers and duties as it may deem proper.

(I)                 Compensation of Trustees.  The Trustees shall not be entitled to any compensation for their services but shall be entitled to reimbursement of their actual and necessary expenses incurred in the performances of their official duties.

ARTICLE IV

Officers

Section 1.         Appointment Term.  The officers of the Fund shall be the Chairman of the Board of Trustees, the remaining 4 Trustees and the Executive Director.

Section 2.         Duties and Functions. 

(A)              Chairman of the Board.  The Chairman of the Board of Trustees shall, if present thereat, preside at meetings of the Board.  He shall perform such duties as, from time to time, may be assigned to him by the Board.  The Chairman shall be vested with the power to appoint committees of the Board upon the advice of members of the Board.

(B)              Executive Director.  The Board of Trustees shall appoint an Executive Director to serve at the will of the Board of Trustees and under its direct supervision and control.  He shall be the General Manager and Chief Operations Officer of the Fund and shall be in charge of the administration of its affairs.  He shall perform any other duties assigned to him.

(C)              Secretary.  The Executive Director shall keep the records of all meetings of the Board, unless this function has been assigned to Fund Counsel.  He shall affix the seal of the Fund to all instruments requiring the corporate seal when the same have been signed on behalf of the Fund by a duly authorized representative.  The Executive Director shall be the custodian of all corporate records.

(D)              Executive Staff.  The Executive Director will be assisted by a salaried Executive Staff, including Fund counsel, appointed by the Board of Trustees to serve at the will of the Board of Trustees.  The compensation of the Executive Staff shall be determined by the Board of Trustees.

(E)               Salaries.  The salaries of the Executive Director and the Executive Staff shall be fixed by the Board of Trustees, using, if applicable the general guidelines of current collective bargaining agreements between the State of New York and its public employee unions.

ARTICLE V

Contracts, Checks Drafts, Bank Accounts, Etc.

 

Section 1.         Execution of Documents.  The Board shall designate the officers, employees and agents of the Fund who shall have the power to execute and deliver contracts, checks, drafts and other orders for the payment of money, and other documents for and in the name of the Fund, and may authorize such officers, employees and agents to delegate such power by written instrument to other officers, employees or agents of the Fund.

Section 2.         Deposits.  All funds of the Fund not otherwise employed shall be deposited from time to time to the credit of the Fund or otherwise in such banks or trust companies organized in New York or national banks doing business in New York State or the Office of State Comptroller, as the Board shall determine.

ARTICLE VI

Committees

 

Section 1.         The Board may, at its discretion, appoint special committees consisting of no less than two and no more than four Trustees of the Board. Said Committees shall exist at the pleasure of the Board and may oversee specific aspects of the Fund. A Governance Committee could consist of a “committee of the whole,” i.e. the whole board of trustees could comprise the Governance Committee if the board so chooses. 

ARTICLE VII

Defense and Indemnification

 

Section 1.         The Fund shall, to the fullest extent permitted by applicable law, defend, indemnify and hold harmless its Trustees, officers and employees from any and all liability incurred by any one of them acting within the scope of their employment in accordance with, and subject to the provisions of, Section 18 of the New York Public Officers Laws.

Section 2.         The Fund shall be authorized and empowered to purchase insurance from any insurance company created by or under the laws of New York, or authorized to transact business in New York, against any liability imposed as a result in such defense and indemnification.

ARTICLE VIII

Books and Records

 

Section 1.         The books and records of the Fund shall be kept at such places within the State of New York as the Board may from time to time determine.

ARTICLE IX

Seal

Section 1.         Seal.  The official seal of the fund shall be in the form as imprinted hereon:

ARTICLE X

Fiscal Year

 

Section 1.         The fiscal year of the Fund shall end on the last day of December in each year.

ARTICLE XI


 

By-Laws, Amendments, Rules and Regulations

 

Section 1.         By-Laws.  These By-Laws may be changed, amended or repealed by the affirmative vote of a majority of three or more of the Trustees at a regular meeting or at any special meeting of the Board of Trustees.

Section 2.         Rules and Regulations.  The Board of Trustees may promulgate rules and regulations and may change, amend, or repeal them from time to time, by the affirmative vote of a majority of the whole number of trustees given at a  regular meeting or at any special meeting of the Trustees.Standards of Conduct 
Every officer and employee of the Fund shall be subject to and abide by the following standards of conduct:

  1. Gifts
    1. An officer or employee shall not directly or indirectly solicit any gift or accept or receive any gift having more than a nominal value whether in the form of money, service, loan, travel, entertainment, hospitality, thing or promise, or any other form, under circumstances in which it could reasonably be inferred that the gift was intended to influence him/her in the performance of his/her official duties or was intended as a reward for any official action on his/her part.
    2. However, nothing herein should be construed as prohibiting the traditional exchange of holiday gifts provided discretion is used to ensure that gifts of value are not accepted by staff employees or officers. Gifts from children that are principally sentimental in nature and of insignificant financial value may be accepted in the spirit in which they are given.
  2. Confidential Information 
    An officer or employee shall not disclose confidential information acquired by him/her in the course of his/her official duties or use such information to further his/her personal interest. Moreover, much of the material with which the Fund works is confidential in nature. Employees and Trustees are responsible for protecting the public trust of the Fund. Disclosure of confidential information or material through carelessness or deliberate action can result in disciplinary proceedings against an employee or Trustee.
  3. Representation before the Fund 
    An officer or employee shall not receive or enter into any agreement, express or implied, for compensation for services to be rendered, or the buying and selling of products, in relation to any matter before the Fund, which creates a conflict of interest.
  4. Representation before the Fund for a Contingent Fee 
    An officer or employee shall not receive or enter into any agreement, express or implied, for compensation for services to be rendered in relation to any matter before the Fund, whereby the compensation is to be dependent or contingent upon any action by the Fund with respect to such matter.
  5. Disclosure of Interest in Matters before the Fund 
    To the extent that he/she knows thereof, a member of the Board of Trustees and any officer or employee of the Fund whether paid or unpaid, who participates in a discussion or gives official opinion to the Fund on any matter before the Fund, shall publicly disclose the nature and extent of any direct or indirect financial or other private interest he/she has in such matters.
  6. Investments in Conflict with Official Duties 
    An officer or employee shall not invest or hold any investment directly in any financial, business, commercial or other private transaction that creates a conflict with his/her official duties.
  7. Private Employment 
    An officer or employee shall not engage in, solicit, negotiate for or promise to accept private interests when that employment or service creates a conflict with or impairs the proper discharge of his/her official duties.
  8. Future Employment 
    An officer or employee shall not, after their termination of service or employment with the Fund, appear before the Fund or any panel or committee of the Fund, in relation to any case, proceeding, or application in which he/she personally participated during the period of his/her service or employment or that was under his/her active consideration. This shall not bar or prevent the timely filing by a present or former officer or employee of any claim, account, demand or suit against the Fund on his/her own behalf or on behalf of any member of his/her family arising out of any personal injury or property damage or for any lawful benefit authorized or permitted by law.
  9. Family Members As Employees 
    A member of the Board of Trustees who is an immediate family relative to an employee of the Fund must abstain from sitting in on any action directly relating to said employee, such as contract negotiation, or any act specifically involving said employee.
  10. Nepotism 
    Relatives of the Board of Trustees are prohibited from being employed by the Fund. The Fund has determined that it will be in its best interest to:
    1. Avoid conflicts of interest between work-related and family-related obligations;
    2. Reduce favoritism or even the appearance of favoritism; and
    3. Prevent family conflicts from affecting the workplace.
    4. The Fund will accept employment applications from all interested candidates. However, relatives of a staff member may not be hired if any of the following job relationships would result:
      1. A supervisor is related to a direct subordinate;
      2. The work of one relative is audited by another; and
      3. Conflicts of interest exist between either the related persons or the related persons and the Fund or any of its vendors.
    5. A relative is defined as a father, mother, brother, sister, son, daughter, grandfather, grandmother, grandchild, first cousin, nephew, niece, step or in-law equivalents, spouse or domestic partner.
  11. Public Officers Law 74 
    Section 74 of the Public Officers Law, which is entitled "Code of Ethics", establishes general standards of conduct for State officers and employees, which are designed to prevent a conflict between an employee's personal interests and his or her ability to properly discharge his or her official duties. Any person who violates a provision of this law will be subject to disciplinary action as well as such other penalties as may be prescribed by law.
  12. Public Officers Law 73 
    Section 73 of the Public Officers Law specifically limits State officers and employees in the conduct of business and professional activities with or before State agencies during and after termination of State service. The activities prohibited by law include:
    1. The appearance or rendition of services in relation to any matter before a State agency, whereby the compensation therefore shall be contingent or dependent upon any action by the agency;
    2. The appearance or rendition of services, for compensation in any form, against the interests of the State, in any matter before the Court of Claims;
    3. The sale of goods or services having a value of more than $25 to the State, except pursuant to an award based upon competitive bidding;
    4. The acceptance of a gift in any form having a value of more than $75, under circumstances in which it could be reasonably inferred that such gift was intended or could tend to influence an employee in the performance of his official duties. (See Section 1(a), above);
    5. The receipt of compensation in any form for an appearance or rendition of services in relation to any matter before a State agency where such appearance or rendition of services is in connection with the following:
      1. The purchase, sale, rental, lease of real property, goods or services from, to, or with any State agency;
      2. Any proceeding relating to rate-making,
      3. The adoption or repeal of any rule or regulation having the effect of law,
      4. The obtaining of grants of money or loans,
      5. Licensing, or
      6. Any proceeding relating to a franchise provided for in Public Service Law.
  13. Subsequent Employment 
    An individual who has left State service is prohibited from carrying on any business with or appearing before the agency by which he or she was employed for two years after resignation or termination. The individual is permanently prohibited from carrying on any business with or appearing before any State agency in regard to matters with which he or she was involved while in State service. (See Section 8, above).
  14. Penalties 
    Penalties for violating the law are severe. A person found to be in violation may be subject to a civil penalty of up to $10,000 or be found guilty of a class A misdemeanor. 
    In addition to the statutory provisions referred to herein, rules and regulations may be adopted from time to time by the State Ethics Commission which will affect one's right to engage in outside employment. Should a fund officer or employee wish to engage in any form of outside employment, business or professional activity, it is essential that the matter be discussed with the entire Board of Trustees in order to ascertain whether or not the activity in which one wishes to participate is in violation of any law, rule or policy established by this Fund. In any event, any outside employment or activity cannot be conducted during one's work hours nor can it be performed, at any time, on State property.
  15. Hatch Act 
    Those State employees whose principal employment is in connection with an activity which is financed in whole or part by loans or grants made by the United States or a federal agency are also bound by the provisions of 5 USCA Sections 1501-1508, also known as the "Hatch Act". This act prohibits such employees from serving as a candidate or campaigning in partisan elections.
  16. Distribution of Code of Ethics 
    The executive Director shall cause a copy of the Funds Code of Ethics to be distributed to every officer and employee of the Fund. Each officer and employee elected or appointed thereafter shall be furnished a copy before entering upon the duties of his/her office or employment. In addition, the Executive Director shall ensure that a copy of Article 18 of the General Municipal Law shall be kept posted in any public building under the Fund's jurisdiction in a place conspicuous to the Fund's officers and employees.
  17. Penalties 
    In addition to any penalty contained in any other provision of law, any person who shall knowingly and intentionally violate any of the provisions of the Board's Code of Ethics may be fined, suspended or removed from office of employment, as the cause may be, in the manner provided by law.

Procurement Guidelines

1.         TITLE

The following comprehensive guidelines, which detail the operative policy and instructions of the Agriculture and NYS Horse Breeding Development Fund (the “Fund”) regarding the use, awarding, monitoring and reporting of procurement contracts,shall be known as “Guidelines for Procurement Contracts.”  They shall be referred to herein as the“Guidelines.”

2.         DISCRETIONARY PURCHASES 

Purchases from Preferred Sources, OGS Centralized Contracts and agency contracts, by law,take precedence over discretionary procurement options. Pursuant to Section 163of the New York State Finance Law, State agencies shall have discretion when purchasing goods or services up to an aggregate amount of $50,000 in a twelve (12) month period.  When purchasing from a Preferred Source as defined below, the discretionary limitation shall be$100,000.  All purchases that exceed the aforementioned monetary limits shall require the approval of the Office of the State Comptroller (“OSC”). 

3.         DEFINITIONS

A.      Procurement Contract

Any written agreement for the acquisition of goods or services of any kind.

B.     Contract for Goods and Services

Any written agreement to provide goods or a service (other than those hereinafter defined as personal services) pertaining to building operation and maintenance, office equipment and supplies, printing, promotional materials, or any other similar item or items.

C.        Contract for Personal Services

Any written agreement to provide a service, including but not limited to legal, accounting,management consulting, investing, banking, planning, training, statistical, research, public relations, architectural, engineering, surveying, performance (of an artistic or entertainment nature), or personal service of a consulting,professional, or technical nature, for a fee, commission, or other compensation, by a person or persons not providing such services as an officer or employee of a state agency or public benefit corporation.

D.        Preferred Source

A preferred source is a minority owned business, a woman owned business,a New York State small business or a business that deals in recycled or remanufactured goods.

a)         Minority Business Enterprise

Any business enterprise, including a sole proprietorship, partnership or corporation that is:

i.          An enterprise in which at least 51% of the ownership is controlled by one or more minority group member or, in the case of a publicly-owned business, at least 51% of the common stock or other voting interests of which is owned by one or more minority  group members;

ii.          An enterprise in which the minority ownership is real, substantial, and continuing;

iii.         An enterprise in which the minority ownership has and exercises the authority independently to control the day-to-day business decisions of the enterprise; and

iv.         An enterprise authorized to do business in New York State, independently owned and operated,and not dominant in its fields.

v.         For the purpose of these Guidelines, a minority groupmember means a United Statescitizen or permanent resident alien who can demonstrate membership in one following groups:

  • Black persons having origins in any of the Black African racial groups not of Hispanic origin;
  • Hispanic persons of Mexican, Puerto Rican,Dominican, Cuban, Central or South American or either Indian or Hispanic Origin, regardless of race;
  • Asian and Pacific Islander persons having origins in any of the Far East, Southeast Asia, the Indian sub-continent or the Pacific Island; or
  • Native American persons having origins in any of the original peoples of North America.

b)         Women-owned Business Enterprise

For the purposes of these Guidelines, a women-owned business enterprise means a business enterprise, including a sole proprietorship, partnership or corporation which is:

  • At least 51% owned by one or more United Statescitizens or permanent resident aliens who are women or, in the case of apublicly-owned business, at least 51% of the common stock or other votinginterests of which is owned by a United States citizen or permanent residentalien or aliens who are women;
  • An enterprise in which the ownership interest of womenis real, substantial, and continuing;
  • An enterprise in which the women ownership has and exercises the authority to control independently the day-to-day business decisions of the enterprise; and
  • An enterprise authorized to do business in New York State, independently owned and operated,and not dominant in its field.

c)        New York State Small Business

For the purposes of these Guidelines, “small business concern" or "small business" means a business which is resident in this State, independently owned and operated, not dominant in its field and employs one hundred or less persons.

d)         Enterprise That Deals In Recycled or Remanufactured Goods or Technology

e)         Aggregate Purchases

The Fund shall consider the reasonably expected aggregate amount of all purchases of the same commodities or services to be made within a twelve (12) month period commencing on the date of purchase when determining which procurement methodology to use.  Aggregate purchases of the same commodities or services within a twelve (12) month period are deemed a single transaction.

When the Fund can reasonably anticipate that repeat purchases are necessary, the Fund should select the appropriate procurement process to cover such aggregate needs, which may include a competitive bid. Purchases of Services or Commodities shall not be artificially divided for the purpose of satisfying the discretionary buying thresholds. A change to or renewal of a discretionary purchase shall not be permitted if the change or renewal would bring the reasonably expected aggregate amount for all purchases of the same commodity or services from the same provider within the twelve month period commencing on the date of the first purchase to an amount greater than the discretionary buying threshold amount.

4.         DISCRETIONARY GUIDELINES

            For purchases up to the Discretionary Buying Threshold, the Fund must:

                        i.        ensure that the commodities and services acquired meet its form, function and utility needs;

                        ii.        document and justify the selection of the vendor;

                        iii.        document and justify the reasonableness of the price; and

                        iv.       ensure that the State buys from responsible vendors.

NOTE: Discretionary purchases of $15,000 or over must be advertised in the Contract Reporter (Economic Development Law § 141(3)). Quarterly Contract Reporter ads are required for purchases between $5,000 and $15,000 as further explained below.

5.         INTENT

It is the intent of the Fund, to the fullest extent that it is practical, and except as otherwise provided for herein, that the award of procurement contracts be made on a competitive basis, to the lowest responsible bidder meeting specifications.

6.         APPLICATION OF DISCRETIONARY GUIDELINES

A.        In anticipation of entering into a Contract for goods or services, the Fund shall;

i.      review the “List of Preferred Source Offerings” and determine if the desired commodity or service is available from a Preferred Source in the form, function and utility that meets its needs; review OGS Centralized Commodities Contracts.

ii.     review its own Fund specific contracts to determine if the desired commodity or service is available to meet the Fund’s need.

B.         If the above reviews do not meet the Fund’s needs, the following steps in accordance with purchase price may apply:

NOTE:   If an OGS Centralized Services Contract is available and will meet the Fund’s needs, the Fund may consider use of such contract, although it is not required.

i.          Purchases Under $15,000:  The Fund shall maintain justification to support both the vendor selection and the reasonableness of the price. Methods for determining reasonableness of price include, but are not limited to:

            a.         Informal quotes (e.g., telephone or written),

            b.         Cost to other governmental entities,

            c.         Historical cost or price comparisons,or

            d.         OGS or Less, where applicable.

The Fund shall document in the Procurement Record the basis for the conclusion that the price is reasonable, with “Reasonable”meaning a “fair market price” based on normal competitive conditions and not necessarily the lowest possible price.

The Fund shall advertise in the Contract Reporter on a quarterly basis for anticipated purchases between $5,000and $15,000 and shall consider vendors responding to advertisements in the Quarterly Listings.

ii.          Purchases from $15,000to $50,000: In addition to the above, Contract Reporter advertisement documentation is required.

iii.         Purchases from$50,000.01 to $100,000:  This range applies to procurements from New York State Small Businesses, New York State certified Minority and/or Women Owned Enterprises or for commodities and technology that are recycled or remanufactured. To identify certified M/WBEs, the Fund consults the Department of Economic Development’s directory of certified minority and women-owned business enterprises.

iv.         As applicable, the Fund shall obtain vendor certification that the commodity or technology is recycled or remanufactured or that a small business meets the appropriate criteria.

7.         RESPONSIBILITY FOR PROCUREMENT CONTRACTS

The Executive Director of the Fund, or his duly-appointed designee, has the overall day-to-day responsibility and oversight regarding the awarding and monitoring of procurement contracts.  Personal service contractors shall be utilized in those areas where the Fund determines that such services may not be reasonably obtained by staff members of the Fund.  In making such determination,factors such as timing, costs, qualifications, or the nature of the services to be rendered shall be taken into consideration.

8.         FUND REQUIREMENTS REGARDING SELECTION  OF PROCUREMENT CONTRACTORS 

            A.        Personal Service

i.          The selection of personal service contractors shall be on a competitive basis, except that the Executive Director may waive competition if none is available or the interests of the Fund so require. Factors to be considered in the  decision not to seek competition include, but are not limited to:

            a.         specialized expertise or unusual qualifications, or services obtainable from one source only;

            b.         historical relationship with the Fund, the continuation of which is in the best interests of the Fund;

            c.         specialized knowledge;

            d.         geographical proximity to the Fund;

            e.         lack of responsible competition, in the sole opinion of the Fund, to perform the desired services;

            f.          nature,magnitude or complexity of services required; and

            g.         short-term or infrequent need for services.

ii           Any contract involving services to be rendered over a period in excess of one year shall require the approval of the Board by resolution, and an annual review of the contract by the Board.

A personal services contract shall also require the approval of the Board by resolution when the amount thereof exceeds $25,000.

Legal services need not be awarded on a competitive basis.

B.       Goods and Other Services

i.          Selection of contractors for goods and services other than personal services shall be made only on a competitive basis,selecting the lowest responsible bid meeting specifications, except as may otherwise be set forth herein.  The level of competition and authorization shall depend upon the    estimated or actual value of the goods or services, subject to Article 2, above, as follows:

 

Estimated or Actual Value

Required Level of Competition

Required Level of Authorization

Up to $15,000 

Not Required*

Executive Director

$15,000 - $50,000

3 Written Quotes**

Executive Director

$50,000 and up

Sealed Bids

Board Resolution

* Formal documentation is not required. However, it is expected that all staff members will attempt to utilize apreferred source wherever possible, and also be cost-conscious.

** Written quotes must be documented as to the vendor/supplier,service/item required, and date.

Notes: As stated above, should the contract price – with the contract price being the reasonably expected aggregate amount of all purchases of the same commodities or services to be made within a twelve (12) month period commencing on the date of purchase when determining which procurement methodology to use – exceed $50,000 or $100,000 if dealing with a preferred source, the procurement contract must have prior approval from the Office of the State Comptroller (OSC).  For the purpose of this guideline, aggregate purchases of the same commodities or services within a twelve (12) month period are deemed a single transaction.

Purchases up to the Discretionary Buying Threshold are not subject to theformal competitive bidding requirements set forth in State Finance Law §163,but are subject to the advertising requirements set forth in EconomicDevelopment Law Article 4-C. The Fund must, however, comply with its internalpolicies and procedures governing discretionary purchases, which should includean assessment as to whether a formal competitive procurement process, or onethat is less formal but still competitive, may best meet the Fund’s needs.

ii.       Competition may be waived:

a.         On an emergency basis when the safety of life or property is a   involved.  A written explanation of the nature of the emergency must accompany the purchase order/contract;

b.        When only one source is available.  A written statement must accompany the purchase order/contract, explaining the need for sole-source acquisition;

c.        When state OGS contracts are used; and

d.      Under a warranty, when the Fund may be required to obtain services from a manufacturer-designated entity.

iii.         The level of approval required for such waivers of competition as set forth in subsections ii(a) and (b) herein shall be the Executive Director within levels I-II, and Board for Level III.

iv.         Any contract for goods or services other than personal services awarded for a period in excess of one year shall require the approval of the Board by resolution, and an annual review of the contract by the Board.           

9.         PROCEDURES FORCOMPETITIVE SELECTION - PERSONAL SERVICES

The procedures for competitive selection of personal service contractors, when such method of selection is considered to be in the best interest of the Fund, areas follows:

A.        The Fund shall prepare a writtenstatement containing a description of the services,the reasons why they are required, and the required estimated schedule   or duration of the services.

B.         A request for proposals (“RFP”) shall,whenever practicable and desirable, be sent to at least five firms to assure competition, including any WBE/MBE firms,   unless there are less than five qualified firms or unless competition is waived as provided in the Guidelines.

C.        The RFPshall describe the services to be performed, any completion dates or timerequirements, MBE requirements, if applicable, and the criteria to be utilizedby the Fund in evaluating proposals, and shall contain a requirement for a costproposal, and the date, time and place when proposals must be received.  In cases of sealed bids, the bids should beopened at a designated time and place, and witnessed by at least threepersons.  Preferably, the witnessesshould include two staff members and a Board member or representative.

D.        The Fundmay select one or more proposers with which to negotiate after evaluation ofthe proposals received.  The award shallbe made to the proposer or proposers whose proposal (s) will be the most advantageous to the Fund - price,qualifications, and other factors considered - using such evaluation criteriaas the basis for the decision.

E.         For Architectural, Engineering, and Technical Contracts.

i.          In the Procurement of such architectural, engineering, and technical services,the Fund shall evaluate current statements of qualifications and performance data.  If desired, the Fund may conduct discussions with  three or more professional firms regarding anticipated design concepts and proposed methods or approach to the assignment.

ii.          The Fund shall then comply with the provisions of sub-paragraphs “A”, “B” and “C” of this Article 9 of these Guidelines.

The Fund shall negotiate a contract with the highest qualified professional firm for architectural, engineering, and/or technical services at compensation which the Fund determines in writing to be fair and reasonable.  In making this decision, the Fund shall take into account the estimated value of the services to be rendered, the scope, complexity, and professional nature thereof.  Should the Fund be unable to negotiate a satisfactory contract with the professional firm considered to be the most qualified, at a fee it determines to be fair and reasonable, negotiations with the professional firm shall formally be terminated.  The Fund shall then undertake negotiations with the second most qualified professional firm.  Failing accord with the second most qualified professional firm - should the Fund be unable to negotiate a satisfactory contract with any of the selected professional firms in order or their competence and qualification, it shall continue negotiations in accordance with this sub paragraph until an agreement is reached.

The provisions of this subparagraph “3” shall apply only to engineering and/or technical services and/or architectural service contracts in excess of $25,000.

Contracts for engineering, technical or architectural services involving lesser amounts may be entered into pursuant to the provisions of this section, or any applicable provisions of the Guidelines.

10.       ADVERTISING REQUIREMENTS

            Inanticipation of entering into a Procurement Contract, the Fund must advertisein the Contract Reporter and should utilize language which substantiallyconforms to the proposed narratives contained in Schedule A, annexed hereto.The Fund must advertise: 

            A.        For the anticipated purchase of goods inthe aggregate amount of $15,000;

            B.         For the anticipated purchase ofservices in the aggregate amount of $15,000; and

            C.        Quarterly for the anticipated purchaseof goods or services in an aggregate amount between $5,000 and $15,000. 

11.       PROVISIONSTO BE CONTAINED IN ALL PROCUREMENT CONTRACTS

            A.        Procurement contracts shall set forththe nature, quantity, if applicable, and monitoring of work performed, the useof Fund supplies and facilities, the use of Fund personnel, and provisionsconsidered to be in the best interest of the Fund.  Procurement contracts shall be awarded onlyto persons or firms deemed responsive to the Fund’s procurement documents aswell as capable and responsible. The following types of provisions shall becontained in all procurement contracts, except that any provision listed whichis inapplicable or unnecessary because of the nature of duration of theservices or goods to be delivered, the location or locations where they are tobe performed, or the type of compensation being paid therefore, need not beincluded.

Any of thefollowing terms, deemed applicable, may be added.

  • Description of services;
  • Compensation;
  • Time for performance or date of completion;
  • Liability of contractor or consultation;
  • Indemnification of the Fund;
  • Reports of contractor or consultant;
  • Ownership of plans, drawings, or other products of the performance of the services (professional  services);
  • No assignments or subcontracts without the express written consent of the Fund;
  • Maintenance of records, accounts;
  • Right of Fund to inspect and/or audit books and records of contractor or consultant(professional services);
  • Insurance requirements;
  • Termination;
  • Monitoring of the performance of service;
  • Use of Fund supplies, facilities or property;
  • Use of Fund personnel;
  • All provisions required to be included in Fund contracts by federal, state or local laws, ordinances, codes, rules regulations; and
  • Involvement of former officers or employees.

B.         Contractors shall have the followingresponsibilities:

  • To perform the contract in accordance with its terms;
  • To perform services required under a contract competently, efficiently, in a timely and first-class manner, at a reasonable cost and in a manner acceptable to the Fund, or to deliver goods or supplies in a first-class condition, to the proper location, on a timely basis, and in a manner which is acceptable to the Fund; and
  • To cooperate with Fund personnel who are directing,monitoring, or supervising the delivery of services or goods, or who are assisting in the delivery thereof.

12.       INVOLVEMENT OF FORMER OFFICERS OR EMPLOYEES

Noprocurement contracts shall be entered into with current and/or former officers or employees of the Fund except by a resolution adopted by the Board, upon showing that such contract is in the best interest of the Fund, and then only to the extent permitted by Section 73 of the Public Officers Law and other applicable provisions of law.

13.       ANNUAL REPORT ON PROCUREMENT CONTRACTS 

A.        The Fund shall annually prepare and approve a report on procurement contracts, which shall include the Guidelines,an explanation of the Guidelines, and any amendments thereto since the last annual report.  Such report on procurement contracts shall also include a list of all new contracts, contract selection process, and status of all existing procurement contracts.  For the purposes of this report, only procurement contracts in the actual or estimated amount of $15,000 need be included.

B.         Such a report shall be available to be the submitted annually as per current requirements.

C.        Copies of the Annual Report are to be made available to the public upon reasonable request therefore.

14.       THIRD-PARTY RIGHTS; VALIDITY OFCONTRACTS

A.        These Guidelines are intended for the guidance of the officers and employees of the Fund only, and nothing contained herein is intended or shall be construed to confer upon any person, firm, or corporation any right, remedy, claim or benefit under or by reason of any requirement of provision hereof.

B.         Nothing contained in these Guidelines shall be deemed to alter, affect the validity of,modify the terms of, or impair any contract or agreement made or entered in to in violation of, or without compliance with, the provisions of the Guidelines.

15.                   MISCELLANEOUS

A.        Where applicable federal, state or local laws, ordinances, codes, rules or regulations containing requirements which are in conflict with or impose greater obligations upon the Fund than these Guidelines, then such requirements shall take precedence over those contained herein.

B.          Any specific provision of the Guidelines may be waived by the Chairman or Executive Director of the Fund, but only under extraordinary circumstances.  Any waivers of the Guidelines herein due to the extraordinary circumstances shall be reported to the Fund no later than the first monthly meeting following the waiver to allow the Board to certify that extraordinary circumstances are present and necessary.

C.        The Fund shall not be precluded from adopting additional requirements relating to the matters covered by these Guidelines.

16.       PRODUCTS AND SERVICES OF THE THE BLIND AND DISABLED

            The Fund shall procure availablegoods and services from the blind and the disabled, in accordance with theprovisions of Section 175-a and 175-b of the State Finance law.

Pursuant to the provisions of Section 806 of the General Municipal Law, the Board of Trustees of the Agriculture and New York State Horse Breeding Development Fund ("the Fund") promulgates these rules of ethical conduct for the officers and employees of the Fund. These rules shall be in addition to any prohibition of Article 18 of the General Municipal Law, Sections 73 and 74 of the Public Officers Law or any other general or special law relating to ethical conduct and interest in contracts of municipal officers and employees.

Definitions

  1. "Officer" or "employee" means an officer or employee of the Fund, whether paid or unpaid, including members of the Board of Trustees and their appointees.
  2. "Interest" means a pecuniary or material benefit accruing to a officer or employee of the Fund unless the context otherwise requires.

 

BY-LAWS

OF THE

AGRICULTURE AND NEW YORK STATE

HORSE BREEDING DEVELOPMENT FUND

ARTICLE   I

The Fund

Section 1.         Description.  The Agriculture & New York State Horse Breeding Development Fund (the “Fund”) is a public benefit corporation, created by and having the powers and function set forth in Section 330 et seq. of the New York Racing, Pari-Mutuel Wagering and Breeding law of 1965, as amended (hereinafter “the act”).

ARTICLE II

Offices

Section 1.         Principal Office. The principal office of the Fund shall be located in the state of New York.

Section 2.         Branch Offices.  The Fund may establish and maintain branch offices for the conduct of its activities, within the State of New York, at such locations as the Board of Trustees shall determine.

ARTICLE III

Board of Trustees

Section 1.         General Powers.  The governing body of the Fund shall be a Board of Trustees in whom shall be vested and who shall exercise the powers of the Fund.

Section 2.         Number of Trustees.  The Board of Trustees shall consist of five trustees, who shall be selected and shall hold office as provided in the Act.

Section 3.         Chairman of the Board of Trustees.  The Chairman of the Board of Trustees shall be designated by the members of the Fund.

Section 4.         Meetings.

 

(A)              Annual Meeting. The Board of Trustees shall hold an annual meeting at such date, hour and place as shall be designated in the notice to the Trustees.  Such notice shall be given not less than ten days before the meeting, in such manner as the Board of Trustees, by resolution, may determine.

(B)              Regular Meetings.  Regular meetings of the Board of Trustees shall be held at such time as the Trustees shall, from time to time, determine.  There shall be at least two meetings each year.

(C)              Special Meeting.  Special meetings of the Board of Trustees shall be held whenever called by the Chairman of the Trustees. Any business that may be transacted at a regular meeting of the Board of Trustees may be transacted at a special meeting.

(D)              Time and Place of Meeting.  The Board of Trustees may hold its meetings at such time or times and place or places within the State of New York as the Trustees may, from time to time, by resolution, determine or such other locations as shall be designated in any notices or waivers of notice thereof.

(E)               Notice of Meeting.  Notice of the time and place of each meeting of the Board of Trustees shall be mailed by the staff to each trustee addressed to him at his residence or usual place of business, at least three days before the day on which such meeting is to be held, or shall be sent to him by facsimile, mail, telegraph, cable, or other form of recorded communication, or be delivered personally or by telephone not later than the day before the day on which such meeting is to be held.  Such notice shall include the time and place of such meeting.  Notice of any such meeting need not be given to any Trustee if waived by him in writing or by facsimile mail, telegraph, cable or other form of recorded communication before or after such meeting shall be held, or if he shall be present at such meeting and shall not protest the lack of notice to him prior thereto, or at its commencement.

(F)               Quorum and Manner of Acting.  A majority of the whole number of Trustees shall be present in person at any meeting of the Board of Trustees in order to constitute a quorum for the transaction of business at such meeting, and the affirmative vote of a majority of those Trustees present at any such meeting at which a quorum is present shall be necessary for the passage of any resolution or act of the Trustees, except as otherwise expressly required by law or by these By-Laws.  In the absence of a quorum for any such meeting, a majority of the Trustees present thereat may adjourn such meeting, from time to time until a quorum shall be present.  Notwithstanding any provision herein to the contrary, the Board of Trustees may, in appropriate cases, act through mail ballot or by other reasonable method necessary to take action in lieu of a meeting, provided that such action is ratified by the Board of Trustees at the next regularly scheduled meeting.

(G)              Organization.  At each meeting of the Board of Trustees, one of the following shall act as Chairman of the meeting and preside thereat, in the following order of precedence: (i) The Chairman of the Board; (ii) any director chosen by a majority of the directors present. The Executive Director, or in his absence, any person whom the Chairman shall appoint, shall keep the minutes of the meeting.

(H)              Delegation of Powers.  The Board of Trustees may delegate to one or more of the Trustees, officers, agents, or employees of the Fund such powers and duties as it may deem proper.

(I)                 Compensation of Trustees.  The Trustees shall not be entitled to any compensation for their services but shall be entitled to reimbursement of their actual and necessary expenses incurred in the performances of their official duties.

ARTICLE IV

Officers

Section 1.         Appointment Term.  The officers of the Fund shall be the Chairman of the Board of Trustees, the remaining 4 Trustees and the Executive Director.

Section 2.         Duties and Functions. 

(A)              Chairman of the Board.  The Chairman of the Board of Trustees shall, if present thereat, preside at meetings of the Board.  He shall perform such duties as, from time to time, may be assigned to him by the Board.  The Chairman shall be vested with the power to appoint committees of the Board upon the advice of members of the Board.

(B)              Executive Director.  The Board of Trustees shall appoint an Executive Director to serve at the will of the Board of Trustees and under its direct supervision and control.  He shall be the General Manager and Chief Operations Officer of the Fund and shall be in charge of the administration of its affairs.  He shall perform any other duties assigned to him.

(C)              Secretary.  The Executive Director shall keep the records of all meetings of the Board, unless this function has been assigned to Fund Counsel.  He shall affix the seal of the Fund to all instruments requiring the corporate seal when the same have been signed on behalf of the Fund by a duly authorized representative.  The Executive Director shall be the custodian of all corporate records.

(D)              Executive Staff.  The Executive Director will be assisted by a salaried Executive Staff, including Fund counsel, appointed by the Board of Trustees to serve at the will of the Board of Trustees.  The compensation of the Executive Staff shall be determined by the Board of Trustees.

(E)               Salaries.  The salaries of the Executive Director and the Executive Staff shall be fixed by the Board of Trustees, using, if applicable the general guidelines of current collective bargaining agreements between the State of New York and its public employee unions.

ARTICLE V

Contracts, Checks Drafts, Bank Accounts, Etc.

 

Section 1.         Execution of Documents.  The Board shall designate the officers, employees and agents of the Fund who shall have the power to execute and deliver contracts, checks, drafts and other orders for the payment of money, and other documents for and in the name of the Fund, and may authorize such officers, employees and agents to delegate such power by written instrument to other officers, employees or agents of the Fund.

Section 2.         Deposits.  All funds of the Fund not otherwise employed shall be deposited from time to time to the credit of the Fund or otherwise in such banks or trust companies organized in New York or national banks doing business in New York State or the Office of State Comptroller, as the Board shall determine.

ARTICLE VI

Committees

 

Section 1.         The Board may, at its discretion, appoint special committees consisting of no less than two and no more than four Trustees of the Board. Said Committees shall exist at the pleasure of the Board and may oversee specific aspects of the Fund. A Governance Committee could consist of a “committee of the whole,” i.e. the whole board of trustees could comprise the Governance Committee if the board so chooses. 

ARTICLE VII

Defense and Indemnification

 

Section 1.         The Fund shall, to the fullest extent permitted by applicable law, defend, indemnify and hold harmless its Trustees, officers and employees from any and all liability incurred by any one of them acting within the scope of their employment in accordance with, and subject to the provisions of, Section 18 of the New York Public Officers Laws.

Section 2.         The Fund shall be authorized and empowered to purchase insurance from any insurance company created by or under the laws of New York, or authorized to transact business in New York, against any liability imposed as a result in such defense and indemnification.

ARTICLE VIII

Books and Records

 

Section 1.         The books and records of the Fund shall be kept at such places within the State of New York as the Board may from time to time determine.

ARTICLE IX

Seal

Section 1.         Seal.  The official seal of the fund shall be in the form as imprinted hereon:

ARTICLE X

Fiscal Year

 

Section 1.         The fiscal year of the Fund shall end on the last day of December in each year.

ARTICLE XI


 

By-Laws, Amendments, Rules and Regulations

 

Section 1.         By-Laws.  These By-Laws may be changed, amended or repealed by the affirmative vote of a majority of three or more of the Trustees at a regular meeting or at any special meeting of the Board of Trustees.

Section 2.         Rules and Regulations.  The Board of Trustees may promulgate rules and regulations and may change, amend, or repeal them from time to time, by the affirmative vote of a majority of the whole number of trustees given at a  regular meeting or at any special meeting of the Trustees.Standards of Conduct 
Every officer and employee of the Fund shall be subject to and abide by the following standards of conduct:

  1. Gifts
    1. An officer or employee shall not directly or indirectly solicit any gift or accept or receive any gift having more than a nominal value whether in the form of money, service, loan, travel, entertainment, hospitality, thing or promise, or any other form, under circumstances in which it could reasonably be inferred that the gift was intended to influence him/her in the performance of his/her official duties or was intended as a reward for any official action on his/her part.
    2. However, nothing herein should be construed as prohibiting the traditional exchange of holiday gifts provided discretion is used to ensure that gifts of value are not accepted by staff employees or officers. Gifts from children that are principally sentimental in nature and of insignificant financial value may be accepted in the spirit in which they are given.
  2. Confidential Information 
    An officer or employee shall not disclose confidential information acquired by him/her in the course of his/her official duties or use such information to further his/her personal interest. Moreover, much of the material with which the Fund works is confidential in nature. Employees and Trustees are responsible for protecting the public trust of the Fund. Disclosure of confidential information or material through carelessness or deliberate action can result in disciplinary proceedings against an employee or Trustee.
  3. Representation before the Fund 
    An officer or employee shall not receive or enter into any agreement, express or implied, for compensation for services to be rendered, or the buying and selling of products, in relation to any matter before the Fund, which creates a conflict of interest.
  4. Representation before the Fund for a Contingent Fee 
    An officer or employee shall not receive or enter into any agreement, express or implied, for compensation for services to be rendered in relation to any matter before the Fund, whereby the compensation is to be dependent or contingent upon any action by the Fund with respect to such matter.
  5. Disclosure of Interest in Matters before the Fund 
    To the extent that he/she knows thereof, a member of the Board of Trustees and any officer or employee of the Fund whether paid or unpaid, who participates in a discussion or gives official opinion to the Fund on any matter before the Fund, shall publicly disclose the nature and extent of any direct or indirect financial or other private interest he/she has in such matters.
  6. Investments in Conflict with Official Duties 
    An officer or employee shall not invest or hold any investment directly in any financial, business, commercial or other private transaction that creates a conflict with his/her official duties.
  7. Private Employment 
    An officer or employee shall not engage in, solicit, negotiate for or promise to accept private interests when that employment or service creates a conflict with or impairs the proper discharge of his/her official duties.
  8. Future Employment 
    An officer or employee shall not, after their termination of service or employment with the Fund, appear before the Fund or any panel or committee of the Fund, in relation to any case, proceeding, or application in which he/she personally participated during the period of his/her service or employment or that was under his/her active consideration. This shall not bar or prevent the timely filing by a present or former officer or employee of any claim, account, demand or suit against the Fund on his/her own behalf or on behalf of any member of his/her family arising out of any personal injury or property damage or for any lawful benefit authorized or permitted by law.
  9. Family Members As Employees 
    A member of the Board of Trustees who is an immediate family relative to an employee of the Fund must abstain from sitting in on any action directly relating to said employee, such as contract negotiation, or any act specifically involving said employee.
  10. Nepotism 
    Relatives of the Board of Trustees are prohibited from being employed by the Fund. The Fund has determined that it will be in its best interest to:
    1. Avoid conflicts of interest between work-related and family-related obligations;
    2. Reduce favoritism or even the appearance of favoritism; and
    3. Prevent family conflicts from affecting the workplace.
    4. The Fund will accept employment applications from all interested candidates. However, relatives of a staff member may not be hired if any of the following job relationships would result:
      1. A supervisor is related to a direct subordinate;
      2. The work of one relative is audited by another; and
      3. Conflicts of interest exist between either the related persons or the related persons and the Fund or any of its vendors.
    5. A relative is defined as a father, mother, brother, sister, son, daughter, grandfather, grandmother, grandchild, first cousin, nephew, niece, step or in-law equivalents, spouse or domestic partner.
  11. Public Officers Law 74 
    Section 74 of the Public Officers Law, which is entitled "Code of Ethics", establishes general standards of conduct for State officers and employees, which are designed to prevent a conflict between an employee's personal interests and his or her ability to properly discharge his or her official duties. Any person who violates a provision of this law will be subject to disciplinary action as well as such other penalties as may be prescribed by law.
  12. Public Officers Law 73 
    Section 73 of the Public Officers Law specifically limits State officers and employees in the conduct of business and professional activities with or before State agencies during and after termination of State service. The activities prohibited by law include:
    1. The appearance or rendition of services in relation to any matter before a State agency, whereby the compensation therefore shall be contingent or dependent upon any action by the agency;
    2. The appearance or rendition of services, for compensation in any form, against the interests of the State, in any matter before the Court of Claims;
    3. The sale of goods or services having a value of more than $25 to the State, except pursuant to an award based upon competitive bidding;
    4. The acceptance of a gift in any form having a value of more than $75, under circumstances in which it could be reasonably inferred that such gift was intended or could tend to influence an employee in the performance of his official duties. (See Section 1(a), above);
    5. The receipt of compensation in any form for an appearance or rendition of services in relation to any matter before a State agency where such appearance or rendition of services is in connection with the following:
      1. The purchase, sale, rental, lease of real property, goods or services from, to, or with any State agency;
      2. Any proceeding relating to rate-making,
      3. The adoption or repeal of any rule or regulation having the effect of law,
      4. The obtaining of grants of money or loans,
      5. Licensing, or
      6. Any proceeding relating to a franchise provided for in Public Service Law.
  13. Subsequent Employment 
    An individual who has left State service is prohibited from carrying on any business with or appearing before the agency by which he or she was employed for two years after resignation or termination. The individual is permanently prohibited from carrying on any business with or appearing before any State agency in regard to matters with which he or she was involved while in State service. (See Section 8, above).
  14. Penalties 
    Penalties for violating the law are severe. A person found to be in violation may be subject to a civil penalty of up to $10,000 or be found guilty of a class A misdemeanor. 
    In addition to the statutory provisions referred to herein, rules and regulations may be adopted from time to time by the State Ethics Commission which will affect one's right to engage in outside employment. Should a fund officer or employee wish to engage in any form of outside employment, business or professional activity, it is essential that the matter be discussed with the entire Board of Trustees in order to ascertain whether or not the activity in which one wishes to participate is in violation of any law, rule or policy established by this Fund. In any event, any outside employment or activity cannot be conducted during one's work hours nor can it be performed, at any time, on State property.
  15. Hatch Act 
    Those State employees whose principal employment is in connection with an activity which is financed in whole or part by loans or grants made by the United States or a federal agency are also bound by the provisions of 5 USCA Sections 1501-1508, also known as the "Hatch Act". This act prohibits such employees from serving as a candidate or campaigning in partisan elections.
  16. Distribution of Code of Ethics 
    The executive Director shall cause a copy of the Funds Code of Ethics to be distributed to every officer and employee of the Fund. Each officer and employee elected or appointed thereafter shall be furnished a copy before entering upon the duties of his/her office or employment. In addition, the Executive Director shall ensure that a copy of Article 18 of the General Municipal Law shall be kept posted in any public building under the Fund's jurisdiction in a place conspicuous to the Fund's officers and employees.
  17. Penalties 
    In addition to any penalty contained in any other provision of law, any person who shall knowingly and intentionally violate any of the provisions of the Board's Code of Ethics may be fined, suspended or removed from office of employment, as the cause may be, in the manner provided by law.

Procurement Guidelines

1.         TITLE

The following comprehensive guidelines, which detail the operative policy and instructions of the Agriculture and NYS Horse Breeding Development Fund (the “Fund”) regarding the use, awarding, monitoring and reporting of procurement contracts,shall be known as “Guidelines for Procurement Contracts.”  They shall be referred to herein as the“Guidelines.”

2.         DISCRETIONARY PURCHASES 

Purchases from Preferred Sources, OGS Centralized Contracts and agency contracts, by law,take precedence over discretionary procurement options. Pursuant to Section 163of the New York State Finance Law, State agencies shall have discretion when purchasing goods or services up to an aggregate amount of $50,000 in a twelve (12) month period.  When purchasing from a Preferred Source as defined below, the discretionary limitation shall be$100,000.  All purchases that exceed the aforementioned monetary limits shall require the approval of the Office of the State Comptroller (“OSC”). 

3.         DEFINITIONS

A.      Procurement Contract

Any written agreement for the acquisition of goods or services of any kind.

B.     Contract for Goods and Services

Any written agreement to provide goods or a service (other than those hereinafter defined as personal services) pertaining to building operation and maintenance, office equipment and supplies, printing, promotional materials, or any other similar item or items.

C.        Contract for Personal Services

Any written agreement to provide a service, including but not limited to legal, accounting,management consulting, investing, banking, planning, training, statistical, research, public relations, architectural, engineering, surveying, performance (of an artistic or entertainment nature), or personal service of a consulting,professional, or technical nature, for a fee, commission, or other compensation, by a person or persons not providing such services as an officer or employee of a state agency or public benefit corporation.

D.        Preferred Source

A preferred source is a minority owned business, a woman owned business,a New York State small business or a business that deals in recycled or remanufactured goods.

a)         Minority Business Enterprise

Any business enterprise, including a sole proprietorship, partnership or corporation that is:

i.          An enterprise in which at least 51% of the ownership is controlled by one or more minority group member or, in the case of a publicly-owned business, at least 51% of the common stock or other voting interests of which is owned by one or more minority  group members;

ii.          An enterprise in which the minority ownership is real, substantial, and continuing;

iii.         An enterprise in which the minority ownership has and exercises the authority independently to control the day-to-day business decisions of the enterprise; and

iv.         An enterprise authorized to do business in New York State, independently owned and operated,and not dominant in its fields.

v.         For the purpose of these Guidelines, a minority groupmember means a United Statescitizen or permanent resident alien who can demonstrate membership in one following groups:

  • Black persons having origins in any of the Black African racial groups not of Hispanic origin;
  • Hispanic persons of Mexican, Puerto Rican,Dominican, Cuban, Central or South American or either Indian or Hispanic Origin, regardless of race;
  • Asian and Pacific Islander persons having origins in any of the Far East, Southeast Asia, the Indian sub-continent or the Pacific Island; or
  • Native American persons having origins in any of the original peoples of North America.

b)         Women-owned Business Enterprise

For the purposes of these Guidelines, a women-owned business enterprise means a business enterprise, including a sole proprietorship, partnership or corporation which is:

  • At least 51% owned by one or more United Statescitizens or permanent resident aliens who are women or, in the case of apublicly-owned business, at least 51% of the common stock or other votinginterests of which is owned by a United States citizen or permanent residentalien or aliens who are women;
  • An enterprise in which the ownership interest of womenis real, substantial, and continuing;
  • An enterprise in which the women ownership has and exercises the authority to control independently the day-to-day business decisions of the enterprise; and
  • An enterprise authorized to do business in New York State, independently owned and operated,and not dominant in its field.

c)        New York State Small Business

For the purposes of these Guidelines, “small business concern" or "small business" means a business which is resident in this State, independently owned and operated, not dominant in its field and employs one hundred or less persons.

d)         Enterprise That Deals In Recycled or Remanufactured Goods or Technology

e)         Aggregate Purchases

The Fund shall consider the reasonably expected aggregate amount of all purchases of the same commodities or services to be made within a twelve (12) month period commencing on the date of purchase when determining which procurement methodology to use.  Aggregate purchases of the same commodities or services within a twelve (12) month period are deemed a single transaction.

When the Fund can reasonably anticipate that repeat purchases are necessary, the Fund should select the appropriate procurement process to cover such aggregate needs, which may include a competitive bid. Purchases of Services or Commodities shall not be artificially divided for the purpose of satisfying the discretionary buying thresholds. A change to or renewal of a discretionary purchase shall not be permitted if the change or renewal would bring the reasonably expected aggregate amount for all purchases of the same commodity or services from the same provider within the twelve month period commencing on the date of the first purchase to an amount greater than the discretionary buying threshold amount.

4.         DISCRETIONARY GUIDELINES

            For purchases up to the Discretionary Buying Threshold, the Fund must:

                        i.        ensure that the commodities and services acquired meet its form, function and utility needs;

                        ii.        document and justify the selection of the vendor;

                        iii.        document and justify the reasonableness of the price; and

                        iv.       ensure that the State buys from responsible vendors.

NOTE: Discretionary purchases of $15,000 or over must be advertised in the Contract Reporter (Economic Development Law § 141(3)). Quarterly Contract Reporter ads are required for purchases between $5,000 and $15,000 as further explained below.

5.         INTENT

It is the intent of the Fund, to the fullest extent that it is practical, and except as otherwise provided for herein, that the award of procurement contracts be made on a competitive basis, to the lowest responsible bidder meeting specifications.

6.         APPLICATION OF DISCRETIONARY GUIDELINES

A.        In anticipation of entering into a Contract for goods or services, the Fund shall;

i.      review the “List of Preferred Source Offerings” and determine if the desired commodity or service is available from a Preferred Source in the form, function and utility that meets its needs; review OGS Centralized Commodities Contracts.

ii.     review its own Fund specific contracts to determine if the desired commodity or service is available to meet the Fund’s need.

B.         If the above reviews do not meet the Fund’s needs, the following steps in accordance with purchase price may apply:

NOTE:   If an OGS Centralized Services Contract is available and will meet the Fund’s needs, the Fund may consider use of such contract, although it is not required.

i.          Purchases Under $15,000:  The Fund shall maintain justification to support both the vendor selection and the reasonableness of the price. Methods for determining reasonableness of price include, but are not limited to:

            a.         Informal quotes (e.g., telephone or written),

            b.         Cost to other governmental entities,

            c.         Historical cost or price comparisons,or

            d.         OGS or Less, where applicable.

The Fund shall document in the Procurement Record the basis for the conclusion that the price is reasonable, with “Reasonable”meaning a “fair market price” based on normal competitive conditions and not necessarily the lowest possible price.

The Fund shall advertise in the Contract Reporter on a quarterly basis for anticipated purchases between $5,000and $15,000 and shall consider vendors responding to advertisements in the Quarterly Listings.

ii.          Purchases from $15,000to $50,000: In addition to the above, Contract Reporter advertisement documentation is required.

iii.         Purchases from$50,000.01 to $100,000:  This range applies to procurements from New York State Small Businesses, New York State certified Minority and/or Women Owned Enterprises or for commodities and technology that are recycled or remanufactured. To identify certified M/WBEs, the Fund consults the Department of Economic Development’s directory of certified minority and women-owned business enterprises.

iv.         As applicable, the Fund shall obtain vendor certification that the commodity or technology is recycled or remanufactured or that a small business meets the appropriate criteria.

7.         RESPONSIBILITY FOR PROCUREMENT CONTRACTS

The Executive Director of the Fund, or his duly-appointed designee, has the overall day-to-day responsibility and oversight regarding the awarding and monitoring of procurement contracts.  Personal service contractors shall be utilized in those areas where the Fund determines that such services may not be reasonably obtained by staff members of the Fund.  In making such determination,factors such as timing, costs, qualifications, or the nature of the services to be rendered shall be taken into consideration.

8.         FUND REQUIREMENTS REGARDING SELECTION  OF PROCUREMENT CONTRACTORS 

            A.        Personal Service

i.          The selection of personal service contractors shall be on a competitive basis, except that the Executive Director may waive competition if none is available or the interests of the Fund so require. Factors to be considered in the  decision not to seek competition include, but are not limited to:

            a.         specialized expertise or unusual qualifications, or services obtainable from one source only;

            b.         historical relationship with the Fund, the continuation of which is in the best interests of the Fund;

            c.         specialized knowledge;

            d.         geographical proximity to the Fund;

            e.         lack of responsible competition, in the sole opinion of the Fund, to perform the desired services;

            f.          nature,magnitude or complexity of services required; and

            g.         short-term or infrequent need for services.

ii           Any contract involving services to be rendered over a period in excess of one year shall require the approval of the Board by resolution, and an annual review of the contract by the Board.

A personal services contract shall also require the approval of the Board by resolution when the amount thereof exceeds $25,000.

Legal services need not be awarded on a competitive basis.

B.       Goods and Other Services

i.          Selection of contractors for goods and services other than personal services shall be made only on a competitive basis,selecting the lowest responsible bid meeting specifications, except as may otherwise be set forth herein.  The level of competition and authorization shall depend upon the    estimated or actual value of the goods or services, subject to Article 2, above, as follows:

 

Estimated or Actual Value

Required Level of Competition

Required Level of Authorization

Up to $15,000 

Not Required*

Executive Director

$15,000 - $50,000

3 Written Quotes**

Executive Director

$50,000 and up

Sealed Bids

Board Resolution

* Formal documentation is not required. However, it is expected that all staff members will attempt to utilize apreferred source wherever possible, and also be cost-conscious.

** Written quotes must be documented as to the vendor/supplier,service/item required, and date.

Notes: As stated above, should the contract price – with the contract price being the reasonably expected aggregate amount of all purchases of the same commodities or services to be made within a twelve (12) month period commencing on the date of purchase when determining which procurement methodology to use – exceed $50,000 or $100,000 if dealing with a preferred source, the procurement contract must have prior approval from the Office of the State Comptroller (OSC).  For the purpose of this guideline, aggregate purchases of the same commodities or services within a twelve (12) month period are deemed a single transaction.

Purchases up to the Discretionary Buying Threshold are not subject to theformal competitive bidding requirements set forth in State Finance Law §163,but are subject to the advertising requirements set forth in EconomicDevelopment Law Article 4-C. The Fund must, however, comply with its internalpolicies and procedures governing discretionary purchases, which should includean assessment as to whether a formal competitive procurement process, or onethat is less formal but still competitive, may best meet the Fund’s needs.

ii.       Competition may be waived:

a.         On an emergency basis when the safety of life or property is a   involved.  A written explanation of the nature of the emergency must accompany the purchase order/contract;

b.        When only one source is available.  A written statement must accompany the purchase order/contract, explaining the need for sole-source acquisition;

c.        When state OGS contracts are used; and

d.      Under a warranty, when the Fund may be required to obtain services from a manufacturer-designated entity.

iii.         The level of approval required for such waivers of competition as set forth in subsections ii(a) and (b) herein shall be the Executive Director within levels I-II, and Board for Level III.

iv.         Any contract for goods or services other than personal services awarded for a period in excess of one year shall require the approval of the Board by resolution, and an annual review of the contract by the Board.           

9.         PROCEDURES FORCOMPETITIVE SELECTION - PERSONAL SERVICES

The procedures for competitive selection of personal service contractors, when such method of selection is considered to be in the best interest of the Fund, areas follows:

A.        The Fund shall prepare a writtenstatement containing a description of the services,the reasons why they are required, and the required estimated schedule   or duration of the services.

B.         A request for proposals (“RFP”) shall,whenever practicable and desirable, be sent to at least five firms to assure competition, including any WBE/MBE firms,   unless there are less than five qualified firms or unless competition is waived as provided in the Guidelines.

C.        The RFPshall describe the services to be performed, any completion dates or timerequirements, MBE requirements, if applicable, and the criteria to be utilizedby the Fund in evaluating proposals, and shall contain a requirement for a costproposal, and the date, time and place when proposals must be received.  In cases of sealed bids, the bids should beopened at a designated time and place, and witnessed by at least threepersons.  Preferably, the witnessesshould include two staff members and a Board member or representative.

D.        The Fundmay select one or more proposers with which to negotiate after evaluation ofthe proposals received.  The award shallbe made to the proposer or proposers whose proposal (s) will be the most advantageous to the Fund - price,qualifications, and other factors considered - using such evaluation criteriaas the basis for the decision.

E.         For Architectural, Engineering, and Technical Contracts.

i.          In the Procurement of such architectural, engineering, and technical services,the Fund shall evaluate current statements of qualifications and performance data.  If desired, the Fund may conduct discussions with  three or more professional firms regarding anticipated design concepts and proposed methods or approach to the assignment.

ii.          The Fund shall then comply with the provisions of sub-paragraphs “A”, “B” and “C” of this Article 9 of these Guidelines.

The Fund shall negotiate a contract with the highest qualified professional firm for architectural, engineering, and/or technical services at compensation which the Fund determines in writing to be fair and reasonable.  In making this decision, the Fund shall take into account the estimated value of the services to be rendered, the scope, complexity, and professional nature thereof.  Should the Fund be unable to negotiate a satisfactory contract with the professional firm considered to be the most qualified, at a fee it determines to be fair and reasonable, negotiations with the professional firm shall formally be terminated.  The Fund shall then undertake negotiations with the second most qualified professional firm.  Failing accord with the second most qualified professional firm - should the Fund be unable to negotiate a satisfactory contract with any of the selected professional firms in order or their competence and qualification, it shall continue negotiations in accordance with this sub paragraph until an agreement is reached.

The provisions of this subparagraph “3” shall apply only to engineering and/or technical services and/or architectural service contracts in excess of $25,000.

Contracts for engineering, technical or architectural services involving lesser amounts may be entered into pursuant to the provisions of this section, or any applicable provisions of the Guidelines.

10.       ADVERTISING REQUIREMENTS

            Inanticipation of entering into a Procurement Contract, the Fund must advertisein the Contract Reporter and should utilize language which substantiallyconforms to the proposed narratives contained in Schedule A, annexed hereto.The Fund must advertise: 

            A.        For the anticipated purchase of goods inthe aggregate amount of $15,000;

            B.         For the anticipated purchase ofservices in the aggregate amount of $15,000; and

            C.        Quarterly for the anticipated purchaseof goods or services in an aggregate amount between $5,000 and $15,000. 

11.       PROVISIONSTO BE CONTAINED IN ALL PROCUREMENT CONTRACTS

            A.        Procurement contracts shall set forththe nature, quantity, if applicable, and monitoring of work performed, the useof Fund supplies and facilities, the use of Fund personnel, and provisionsconsidered to be in the best interest of the Fund.  Procurement contracts shall be awarded onlyto persons or firms deemed responsive to the Fund’s procurement documents aswell as capable and responsible. The following types of provisions shall becontained in all procurement contracts, except that any provision listed whichis inapplicable or unnecessary because of the nature of duration of theservices or goods to be delivered, the location or locations where they are tobe performed, or the type of compensation being paid therefore, need not beincluded.

Any of thefollowing terms, deemed applicable, may be added.

  • Description of services;
  • Compensation;
  • Time for performance or date of completion;
  • Liability of contractor or consultation;
  • Indemnification of the Fund;
  • Reports of contractor or consultant;
  • Ownership of plans, drawings, or other products of the performance of the services (professional  services);
  • No assignments or subcontracts without the express written consent of the Fund;
  • Maintenance of records, accounts;
  • Right of Fund to inspect and/or audit books and records of contractor or consultant(professional services);
  • Insurance requirements;
  • Termination;
  • Monitoring of the performance of service;
  • Use of Fund supplies, facilities or property;
  • Use of Fund personnel;
  • All provisions required to be included in Fund contracts by federal, state or local laws, ordinances, codes, rules regulations; and
  • Involvement of former officers or employees.

B.         Contractors shall have the followingresponsibilities:

  • To perform the contract in accordance with its terms;
  • To perform services required under a contract competently, efficiently, in a timely and first-class manner, at a reasonable cost and in a manner acceptable to the Fund, or to deliver goods or supplies in a first-class condition, to the proper location, on a timely basis, and in a manner which is acceptable to the Fund; and
  • To cooperate with Fund personnel who are directing,monitoring, or supervising the delivery of services or goods, or who are assisting in the delivery thereof.

12.       INVOLVEMENT OF FORMER OFFICERS OR EMPLOYEES

Noprocurement contracts shall be entered into with current and/or former officers or employees of the Fund except by a resolution adopted by the Board, upon showing that such contract is in the best interest of the Fund, and then only to the extent permitted by Section 73 of the Public Officers Law and other applicable provisions of law.

13.       ANNUAL REPORT ON PROCUREMENT CONTRACTS 

A.        The Fund shall annually prepare and approve a report on procurement contracts, which shall include the Guidelines,an explanation of the Guidelines, and any amendments thereto since the last annual report.  Such report on procurement contracts shall also include a list of all new contracts, contract selection process, and status of all existing procurement contracts.  For the purposes of this report, only procurement contracts in the actual or estimated amount of $15,000 need be included.

B.         Such a report shall be available to be the submitted annually as per current requirements.

C.        Copies of the Annual Report are to be made available to the public upon reasonable request therefore.

14.       THIRD-PARTY RIGHTS; VALIDITY OFCONTRACTS

A.        These Guidelines are intended for the guidance of the officers and employees of the Fund only, and nothing contained herein is intended or shall be construed to confer upon any person, firm, or corporation any right, remedy, claim or benefit under or by reason of any requirement of provision hereof.

B.         Nothing contained in these Guidelines shall be deemed to alter, affect the validity of,modify the terms of, or impair any contract or agreement made or entered in to in violation of, or without compliance with, the provisions of the Guidelines.

15.                   MISCELLANEOUS

A.        Where applicable federal, state or local laws, ordinances, codes, rules or regulations containing requirements which are in conflict with or impose greater obligations upon the Fund than these Guidelines, then such requirements shall take precedence over those contained herein.

B.          Any specific provision of the Guidelines may be waived by the Chairman or Executive Director of the Fund, but only under extraordinary circumstances.  Any waivers of the Guidelines herein due to the extraordinary circumstances shall be reported to the Fund no later than the first monthly meeting following the waiver to allow the Board to certify that extraordinary circumstances are present and necessary.

C.        The Fund shall not be precluded from adopting additional requirements relating to the matters covered by these Guidelines.

16.       PRODUCTS AND SERVICES OF THE THE BLIND AND DISABLED

            The Fund shall procure availablegoods and services from the blind and the disabled, in accordance with theprovisions of Section 175-a and 175-b of the State Finance law.



 
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