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CONTRACTS

NON-RESPONSIBILITY
CCPO, IN REVERSAL, REINSTATES VENDOR

Transportation of pre-kindergarten schoolchildren, Citywide. DOT ACCO Paul Stanton found Penny Bus Transportation Inc. a non-responsible bidder on two contracts to transport schoolchildren based on the company’s high out-of-service rates. The ACCO found that Penny’s 27.3% and 27.5% rates in 2003 and 2004 respectively, affected Penny’s ability to provide vehicles that were maintained in good operating and physical conditions and to comply with the contract provisions.

Penny appealed, claiming that failure to offer a hearing prior to the ACCO’s finding deprived it of an opportunity to show that its most recent out-of-service rate had dropped to 10.8%. Penny also claimed that it had received satisfactory or better performance evaluations and that the out-of-service rate should not be the only basis for making a non-responsibility determination. Finally, Penny objected to having its appeal heard by the DOT Commissioner because the Commissioner had, in violation of the procurement rules, directed the ACCO to find vendors non-responsible if their out-of-service rates were above 25%. The Deputy Commissioner upheld both non-responsibility determinations.

On appeal to the Mayor’s Office of Contract Services, Penny also claimed that contractors should have been notified of DOT’s newly established policy of finding vendors non-responsible based on high outof- service rates in the bid specifications instead of issuing non-responsibility determinations. Penny added that the new policy favored contractors that were new to the business and had no rates on record.

CCPO Marla Simpson reversed the determination, finding that the ACCO had failed to research and gather relevant information from the vendor and failed to consider information available before the non-responsibility finding was issued. At the time of the finding, Penny’s out-of-service rate had improved substantially, entitling Penny to restored privileges.

Penny Bus Transportation Inc./DOT, MOCS, CCPO Marla Simpson, Mar. 24, 2006. CITYADMIN