LBD15188-04-0
A. 9949--A 2
vendors and their representatives, on one hand, and government officials
conducting the procurement on the other. The law required that once
written notice in any form has been issued that a procurement is planned
or pending, all contacts regarding that procurement that would reason-
ably be interpreted as an effort to influence the result of the procure-
ment can only be made to designated contact persons within the govern-
ment entity that is conducting the procurement. These designated
contacts are required to keep a record of these conversations and other
communications and these records become part of the larger procurement
record. Individuals and entities subject to the lobbying laws of the
state and who lobby regarding procurements are also required to file a
statement regarding the matters on which they have lobbied or intend to
lobby. Therefore, a public record is created of all communications
related to the procurement. Any communications from any party, whether
or not a participating vendor or registered lobbyist, should be
recorded, so that someone reviewing the record knows what comments and
information were exchanged. In addition, in 2008, statutory language was
added to allow a vendor that unsuccessfully bid to request and receive,
after the procurement is completed, a debriefing by the agency that
conducted the procurement. The purpose of these measures is to create a
process more readily understood and observed, so that vendors and the
public may have greater confidence in the fairness of the result.
The legislature further finds that the free flow of information about
the procurement process and about the goods and services available that
may meet the needs of government is crucial to the effective operation
of government. The laws that govern procurement are not intended to
encourage government personnel to terminate all communication between
the public and the governmental entity. Rather the communications should
be made to and from the appropriate designated personnel and a record
should be made of the subject of the call, so that anyone who has
concerns about a procurement can review the record and see that the
communications were appropriate. The intent of the statute, together
with these amendments, is that any entity that intends to conduct a
procurement and any entity with oversight over that procurement will,
simultaneously with the declaration of a restricted contact period, post
in a readily accessible form on its website, if available, and with any
other notice of the procurement, the names of the designated contacts at
the entity and the means of contacting them. The designated contacts
should be knowledgeable about the procurement and able to answer appro-
priate questions or direct inquiries to the correct source of informa-
tion.
The legislature further finds that, because the intent of the statute
is to make the procurement process as transparent as possible to the
extent consistent with best procurement practices, the statute encour-
ages the exchange of information at public forums, rather than through
individual communications. Therefore, public bidders' conferences at
which everyone in attendance can hear both the questions and comments
and responses are not subject to the limitations of the restricted
comment period. Practices such as exchanges of questions and answers
through electronic mail that all interested vendors can see and a formal
request for information before the requests for bids or proposals are
issued are encouraged. Procurements that are awarded pursuant to a stat-
utory process for which oversight mechanisms are already in place also
are not generally subject in the limitations of the restricted contact
period.
A. 9949--A 3
The legislature finds that the existing statutes have been effective
in reducing the number of complaints about individual procurements and
reducing concern that the process is subject to favoritism and inequi-
ties. However, it further finds that there are aspects of the process
that need clarification, that it is desirable to reduce some of the
burden of duplicative requirements when it can be done without limiting
the effectiveness of the statutes, and that the ability of vendors to
obtain information necessary for them to participate in the procurement
process has been unnecessarily impaired. Therefore, the legislature
seeks by this statute to address those concerns.
S 2. Paragraphs (p), (q), and (r) of section 1-c of the legislative
law, paragraphs (p) and (q) as added by chapter 1 of the laws of 2005,
paragraph (r) as amended by chapter 395 of the laws of 2006, are amended
to read as follows:
(p) The term "governmental procurement" shall mean: (i) the [prepara-
tion or terms] PUBLIC ANNOUNCEMENT, PUBLIC NOTICE, OR PUBLIC COMMUNI-
CATION TO ANY POTENTIAL VENDOR OF A DETERMINATION OF NEED FOR A PROCURE-
MENT, WHICH SHALL INCLUDE, BUT NOT BE LIMITED TO, THE PUBLIC
NOTIFICATION of the specifications, bid documents, request for
proposals, or evaluation criteria for a procurement contract, (ii)
solicitation for a procurement contract, (iii) evaluation of a procure-
ment contract, (iv) award, approval, denial or disapproval of a procure-
ment contract, or (v) approval or denial of an assignment, amendment
(other than amendments that are authorized and payable under the terms
of the procurement contract as it was finally awarded or approved by the
comptroller, as applicable), renewal or extension of a procurement
contract, or any other material change in the procurement contract
resulting in a financial benefit to the offerer.
(q) The term "offerer" shall mean the individual or entity, or any
employee, agent or consultant of such individual or entity, that
contacts a state agency, either house of the state legislature, the
unified court system, a municipal agency or local legislative body about
a governmental procurement PROVIDED, HOWEVER, THAT A GOVERNMENTAL AGENCY
OR ITS EMPLOYEES THAT COMMUNICATE WITH THE PROCURING AGENCY REGARDING A
GOVERNMENTAL PROCUREMENT IN THE EXERCISE OF ITS OVERSIGHT DUTIES SHALL
NOT BE CONSIDERED AN OFFERER.
(r) The term "procurement contract" shall mean any contract or other
agreement, INCLUDING AN AMENDMENT, EXTENSION, RENEWAL, OR CHANGE ORDER
TO AN EXISTING CONTRACT (OTHER THAN AMENDMENTS, EXTENSIONS, RENEWALS, OR
CHANGE ORDERS THAT ARE AUTHORIZED AND PAYABLE UNDER THE TERMS OF THE
CONTRACT AS IT WAS FINALLY AWARDED OR APPROVED BY THE COMPTROLLER, AS
APPLICABLE), for an article of procurement involving an estimated annu-
alized expenditure in excess of fifteen thousand dollars. Grants, arti-
cle XI-B state finance law contracts, program contracts between not-for-
profit organizations, as defined in article XI-B of the state finance
law, and the unified court system, intergovernmental agreements, rail-
road and utility force accounts, utility relocation project agreements
or orders, CONTRACTS GOVERNING ORGAN TRANSPLANTS, CONTRACTS ALLOWING FOR
STATE PARTICIPATION IN TRADE SHOWS, and eminent domain transactions
shall not be deemed procurement contracts.
S 3. Section 139-j of the state finance law, as added by chapter 1 of
the laws of 2005, paragraph f of subdivision 1 as amended by section 3
of part K of chapter 56 of the laws of 2006, paragraph g of subdivision
1 as amended by chapter 395 of the laws of 2006, and subdivision 7 as
amended by chapter 596 of the laws of 2005, is amended to read as
follows:
A. 9949--A 4
S 139-j. Restrictions on contacts during the procurement process. 1.
For the purposes of this section, the following terms will have the
following meanings unless specified otherwise.
a. "Governmental entity" shall mean: (1) any department, board,
bureau, commission, division, office, council, committee or officer of
the state, whether permanent or temporary; (2) each house of the state
legislature; (3) the unified court system; (4) any public authority,
public benefit corporation or commission created by or existing pursuant
to the public authorities law; (5) any public authority or public bene-
fit corporation, at least one of whose members is appointed by the
governor or who serves as a member by virtue of holding a civil office
of the state; (6) a municipal agency, as that term is defined in para-
graph (ii) of subdivision (s) of section one-c of the legislative law;
or (7) a subsidiary or affiliate of such a public authority.
b. "Article of procurement" shall mean a commodity, service, technolo-
gy, public work, construction, revenue contract, the purchase, sale or
lease of real property or an acquisition or granting of other interest
in real property, that is the subject of a governmental procurement.
c. "Contacts" shall mean any oral, written or electronic communication
with a governmental entity under circumstances where a reasonable person
would infer that the communication was intended to influence the GOVERN-
MENTAL ENTITY'S CONDUCT OR DECISION REGARDING THE governmental procure-
ment.
d. "Proposal" shall mean any bid, quotation, offer or response to a
governmental entity's solicitation of submissions relating to a procure-
ment.
e. "Governmental procurement" shall mean: (i) the [preparation or
terms] PUBLIC ANNOUNCEMENT, PUBLIC NOTICE, OR PUBLIC COMMUNICATION TO
ANY POTENTIAL VENDOR OF A DETERMINATION OF A NEED FOR A PROCUREMENT,
WHICH SHALL INCLUDE, BUT NOT BE LIMITED TO, THE PUBLIC NOTIFICATION of
the specifications, bid documents, request for proposals, or evaluation
criteria for a procurement contract, (ii) solicitation for a procurement
contract, (iii) evaluation of a procurement contract, (iv) award,
approval, denial or disapproval of a procurement contract, or (v)
approval or denial of an assignment, amendment (other than amendments
that are authorized and payable under the terms of the procurement
contract as it was finally awarded or approved by the comptroller, as
applicable), renewal or extension of a procurement contract, or any
other material change in the procurement contract resulting in a finan-
cial benefit to the offerer.
f. "Restricted period" shall mean the period of time commencing with
the earliest written notice, advertisement or solicitation of a request
for proposal, invitation for bids, or solicitation of proposals, or any
other method for soliciting a response from offerers intending to result
in a procurement contract with a governmental entity and ending with the
final contract award and approval by the governmental entity and, where
applicable, the state comptroller.
g. "Procurement contract" shall mean any contract or other agreement,
INCLUDING AN AMENDMENT, EXTENSION, RENEWAL OR CHANGE ORDER TO AN EXIST-
ING CONTRACT (OTHER THAN AMENDMENTS, EXTENSIONS, RENEWALS, OR CHANGE
ORDERS THAT ARE AUTHORIZED AND PAYABLE UNDER THE TERMS OF THE CONTRACT
AS IT WAS FINALLY AWARDED OR APPROVED BY THE COMPTROLLER, AS APPLICA-
BLE), for an article of procurement involving an estimated annualized
expenditure in excess of fifteen thousand dollars. Grants, article
eleven-B state finance law contracts, program contracts between not-for-
profit organizations, as defined in article eleven-B of this chapter,
A. 9949--A 5
and the unified court system, intergovernmental agreements, railroad and
utility force accounts, utility relocation project agreements or orders,
CONTRACTS GOVERNING ORGAN TRANSPLANTS, CONTRACTS ALLOWING FOR STATE
PARTICIPATION IN TRADE SHOWS, and eminent domain transactions shall not
be deemed procurement contracts.
h. "Offerer" shall mean the individual or entity, or any employee,
agent or consultant or person acting on behalf of such individual or
entity, that contacts a governmental entity about a governmental
procurement during the restricted period of such governmental procure-
ment WHETHER OR NOT THE CALLER HAS A FINANCIAL INTEREST IN THE OUTCOME
OF THE PROCUREMENT; PROVIDED, HOWEVER, THAT A GOVERNMENTAL AGENCY OR ITS
EMPLOYEES THAT COMMUNICATES WITH THE PROCURING AGENCY REGARDING A
GOVERNMENTAL PROCUREMENT IN THE EXERCISE OF ITS OVERSIGHT DUTIES SHALL
NOT BE CONSIDERED AN OFFERER.
i. "Revenue contract" shall mean any written agreement between a
governmental entity, as that term is defined in subparagraphs one, four,
five, six or seven of paragraph a of this subdivision, and an offerer
whereby the governmental entity gives or grants a concession or a fran-
chise.
j. "Unified court system" shall, for the purposes of this section
only, mean the unified court system of the state of New York, or the
office of court administration, where appropriate, other than town and
village justice courts in jurisdictions with a population under fifty
thousand, when it acts solely in an administrative capacity to engage in
governmental procurements and shall not include the unified court system
or any court of the state judiciary when it acts to hear and decide
cases of original or appellate jurisdiction or otherwise acts in its
judicial, as opposed to administrative, capacity.
2. Every governmental entity that undertakes a governmental procure-
ment shall:
a. AT THE SAME TIME THAT A RESTRICTED PERIOD IS IMPOSED, designate,
with regard to each governmental procurement, a person or persons who
ARE KNOWLEDGEABLE ABOUT THE PROCUREMENT AND WHO may be contacted by
offerers relative to the governmental procurement;
b. make any determinations on any governmental procurement: (1) in a
manner consistent with the principles provided for under subdivision two
of section one hundred sixty-three of this chapter, or, if the govern-
mental entity is a public benefit corporation, as that term is defined
in section sixty-six of the general construction law, and the majority
of the members consist of persons either appointed by the governor or
who serve as members by virtue of holding a civil office of the state,
the procurement guidelines adopted pursuant to section twenty-eight
hundred seventy-nine of the public authorities law, and (2) free from
any conduct that would be prohibited by subdivision five of section
seventy-three or section seventy-four of the public officers law, or of
other applicable ethics code provisions that are equivalent to subdivi-
sion five of section seventy-three or section seventy-four of the public
officers law where the public officials that are involved in the govern-
mental procurement are not subject to subdivision five of section seven-
ty-three or section seventy-four of the public officers law;
3. Each offerer that contacts a governmental entity about a govern-
mental procurement shall only make permissible contacts with respect to
the governmental procurement, which shall mean that the offerer:
a. shall contact only the [persons] PERSON or persons who may be
contacted by offerers as designated by the governmental entity pursuant
to paragraph a of subdivision two of this section relative to the
A. 9949--A 6
governmental procurement, except that the following contacts are
exempted from the provisions of this paragraph AND DO NOT NEED TO BE
DIRECTED TO A DESIGNATED CONTACT PURSUANT TO SECTION ONE HUNDRED THIR-
TY-NINE-K OF THIS ARTICLE:
(1) the submission of written proposals in response to a request for
proposals, invitation for bids or any other method for soliciting a
response from offerers intending to result in a procurement contract;
(2) the submission of written questions [to a designated contact] BY A
METHOD set forth in a request for proposals, or invitation for bids, or
any other method for soliciting a response from offerers intending to
result in a procurement contract, when all written questions and
responses are to be disseminated to all offerers who have expressed an
interest in the request for proposals, or invitation for bids, or any
other method for soliciting a response from offerers intending to result
in a procurement contract;
(3) participation in a DEMONSTRATION, conference OR OTHER MEANS FOR
EXCHANGE OF INFORMATION IN A SETTING OPEN TO ALL POTENTIAL BIDDERS
provided for in a request for proposals, invitation for bids, or any
other method for soliciting a response from offerers intending to result
in a procurement contract;
(4) complaints by an offerer regarding the failure of the person or
persons designated by the procuring governmental entity pursuant to this
section to respond in a timely manner to authorized offerer contacts
made in writing to the office of general counsel of the procuring
governmental entity, provided that any such written complaints shall
become a part of the procurement record;
(5) offerers who have been tentatively awarded a contract and are
engaged in communications with a governmental entity solely for the
purpose of negotiating the terms of the procurement contract after being
notified of tentative award;
(6) contacts between designated governmental entity staff of the
procuring governmental entity and an offerer to request the review of a
procurement contract award;
(7) (a) contacts by offerers in protests, appeals or other review
proceedings (including the apparent successful bidder or proposer and
his or her representatives) before the governmental entity conducting
the procurement seeking a final administrative determination, or in a
subsequent judicial proceeding; or
(b) complaints of alleged improper conduct in a governmental procure-
ment to the attorney general, inspector general, district attorney, or
court of competent jurisdiction; or
(c) [written] protests, appeals or complaints to the state comp-
troller's office during the process of contract approval, where the
state comptroller's approval is required [by law, and where such commu-
nications and any responses thereto are made in writing and], PROVIDED
THAT THE STATE COMPTROLLER SHALL MAKE A RECORD OF SUCH COMMUNICATIONS
AND ANY RESPONSE THERETO WHICH shall be entered [in] INTO the procure-
ment record pursuant to section one hundred sixty-three of [the state
finance law] THIS CHAPTER; or
(d) complaints of alleged improper conduct in a governmental procure-
ment conducted by a municipal agency or local legislative body to the
state comptroller's office;
(8) COMMUNICATIONS BETWEEN OFFERERS AND GOVERNMENTAL ENTITIES THAT
SOLELY ADDRESS THE DETERMINATION OF RESPONSIBILITY BY A GOVERNMENTAL
ENTITY OF AN OFFERER;
A. 9949--A 7
(9) ANY COMMUNICATIONS RELATING TO A GOVERNMENTAL PROCUREMENT MADE
UNDER SECTION ONE HUNDRED SIXTY-TWO OF THE STATE FINANCE LAW UNDERTAKEN
BY (I) THE NON-PROFIT-MAKING AGENCIES APPOINTED PURSUANT TO PARAGRAPH E
OF SUBDIVISION SIX OF SECTION ONE HUNDRED SIXTY-TWO OF THE STATE FINANCE
LAW BY THE COMMISSIONER OF THE OFFICE OF CHILDREN AND FAMILY SERVICES,
THE COMMISSION FOR THE BLIND AND VISUALLY HANDICAPPED, OR THE COMMIS-
SIONER OF EDUCATION, AND (II) THE QUALIFIED CHARITABLE NON-PROFIT-MAKING
AGENCIES FOR THE BLIND, AND QUALIFIED CHARITABLE NON-PROFIT-MAKING AGEN-
CIES FOR OTHER SEVERELY DISABLED PERSONS AS IDENTIFIED IN SUBDIVISION
TWO OF SECTION ONE HUNDRED SIXTY-TWO OF THIS CHAPTER; PROVIDED, HOWEVER,
THAT ANY COMMUNICATIONS WHICH ATTEMPT TO INFLUENCE THE ISSUANCE OR TERMS
OF THE SPECIFICATIONS THAT SERVE AS THE BASIS FOR BID DOCUMENTS,
REQUESTS FOR PROPOSALS, INVITATIONS FOR BIDS, OR SOLICITATIONS OF
PROPOSALS, OR ANY OTHER METHOD FOR SOLICITING A RESPONSE FROM OFFERERS
INTENDING TO RESULT IN A PROCUREMENT CONTRACT WITH A STATE AGENCY, THE
STATE LEGISLATURE, THE UNIFIED COURT SYSTEM, A MUNICIPAL AGENCY OR LOCAL
LEGISLATIVE BODY SHALL NOT BE EXEMPT FROM THE PROVISIONS OF THIS PARA-
GRAPH;
provided, however, that nothing in this subdivision shall be construed
as recognizing or creating any new rights, duties or responsibilities or
abrogating any existing rights, duties or responsibilities of any
governmental entity as it pertains to implementation and enforcement of
article eleven of [the state finance law] THIS CHAPTER or any other
provision of law dealing with the governmental procurement process, AND
THAT NOTHING IN THIS SUBDIVISION SHALL BE INTERPRETED TO LIMIT THE
AUTHORITY OF A GOVERNMENTAL ENTITY INVOLVED IN A GOVERNMENT PROCUREMENT
BY EXERCISE OF AN OVERSIGHT FUNCTION FROM PROVIDING INFORMATION TO
OFFERERS REGARDING THE STATUS OF THE REVIEW, OVERSIGHT, OR APPROVAL OF A
GOVERNMENTAL PROCUREMENT THAT HAS BEEN SUBMITTED TO OR IS UNDER REVIEW
BY THAT GOVERNMENTAL ENTITY.
b. shall not attempt to influence the governmental procurement in a
manner that would result in a violation or an attempted violation of
subdivision five of section seventy-three or section seventy-four of the
public officers law, or of other applicable ethics code provisions that
are equivalent to subdivision five of section seventy-three or section
seventy-four of the public officers law where the public officials that
are involved in the governmental procurement are not subject to subdivi-
sion five of section seventy-three or section seventy-four of the public
officers law;
4. Violations of paragraph a of subdivision three of this section
shall include any contacts during the restricted period of a govern-
mental procurement between the offerer and any member, officer or
employee of any governmental entity other than the entity conducting the
governmental procurement; provided, however, that nothing in this
section shall be deemed to prohibit an offerer from communicating with a
member of the state legislature or legislative staff about a govern-
mental procurement being conducted by a governmental entity other than
the state legislature, or a member of the state legislature or legisla-
tive staff contacting a governmental entity about a governmental
procurement being conducted by a governmental entity other than the
state legislature, provided that the member of the state legislature or
legislative staff is acting in [their] HIS OR HER official capacity.
5. Governmental entity staff may consult the model guidelines that may
be established by the advisory council on procurement lobbying pursuant
to section one-t of the legislative law in implementing this section.
A. 9949--A 8
6. a. Every governmental entity shall incorporate a summary of the
policy and prohibitions regarding permissible contacts during a govern-
mental procurement pursuant to subdivision three of this section, and
copies of rules and regulations and applicable governmental entity
guidelines and procedures regarding permissible contacts during a
governmental procurement pursuant to subdivision three of this section
into their solicitation of proposals or bid documents or specifications
for all procurement contracts.
b. Every governmental entity shall seek written affirmations from all
offerers as to the offerer's understanding of and agreement to comply
with the governmental entity's procedures relating to permissible
contacts during a governmental procurement pursuant to subdivision three
of this section. SUCH A WRITTEN AFFIRMATION BY AN OFFERER SHALL BE
DEEMED TO APPLY TO ANY AMENDMENTS TO A PROCUREMENT SUBMITTED BY THE
GOVERNMENTAL ENTITY AFTER AN INITIAL AFFIRMATION IS RECEIVED WITH AN
INITIAL BID.
7. Notwithstanding any law to the contrary, prior to conducting an
award of a procurement contract, a governmental entity conducting a
governmental procurement shall make a final determination of responsi-
bility of the proposed awardee in accordance with paragraph f of subdi-
vision nine of section one hundred sixty-three of this chapter, or, if
the governmental entity is a public benefit corporation, as that term is
defined in section sixty-six of the general construction law, and the
majority of the members consist of persons either appointed by the
governor or who serve as members by virtue of holding a civil office of
the state, according to the procurement guidelines adopted pursuant to
subparagraph (iii) of paragraph (b) of subdivision three of section
twenty-eight hundred seventy-nine of the public authorities law;
provided, however, that nothing in this subdivision shall be construed
as abrogating or diminishing any existing rights, duties or responsibil-
ities of any governmental entity as it pertains to determinations of
responsibility.
8. Any member, officer or employee of a governmental entity who
becomes aware that an offerer has violated the provisions of subdivision
three of this section with regard to permissible contacts during any
governmental procurement shall immediately notify the ethics officer,
inspector general, if any, or other official of the procuring govern-
mental entity responsible for reviewing or investigating such matters.
If an offerer violates the provisions of subdivision three of this
section with regard to permissible contacts at a governmental entity
other than the governmental entity conducting the governmental procure-
ment, the member, officer or employee who becomes aware of the violation
shall notify the ethics officer, inspector general, if any, or other
official of the governmental entity responsible for reviewing or inves-
tigating such matters where that member, officer or employee works, who
shall in turn notify the ethics officer, inspector general, if any, or
other official of the procuring governmental entity responsible for
reviewing or investigating such matters at the procuring governmental
entity.
9. Every governmental entity shall establish a process for review by
its ethics officer, inspector general, if any, or other official respon-
sible for reviewing or investigating any allegations of violations of
the provisions of subdivision three of this section with regard to
permissible contacts on governmental procurements, and for the imposi-
tion of sanctions if such violations have been found to exist.
A. 9949--A 9
10. a. Upon notification of any allegation of a violation of the
provisions of subdivision three of this section with regard to permissi-
ble contacts on governmental procurements, the governmental entity's
ethics officer, inspector general, if any, or other official of the
procuring governmental entity responsible for reviewing or investigating
such matters shall immediately investigate such allegation and, if
sufficient cause exists to believe that such allegation is true, shall
give the offerer reasonable notice that an investigation is ongoing and
an opportunity to be heard in response to the allegation.
b. A finding that an offerer has knowingly and willfully violated the
provisions of subdivision three of this section shall result in a deter-
mination of non-responsibility for such offerer, and such offerer and
its subsidiaries, and any related or successor entity with substantially
similar function, management, board of directors, officers and share-
holders (hereinafter, for the purposes of this paragraph "offerer"),
shall not be awarded the procurement contract, unless the governmental
entity finds that the award of the procurement contract to the offerer
is necessary to protect public property or public health or safety, and
that the offerer is the only source capable of supplying the required
article of procurement within the necessary timeframe, provided, that
the governmental entity shall include in the procurement record a state-
ment describing the basis for such a finding. Any subsequent determi-
nation of non-responsibility due to violation of this section within
four years of a determination of non-responsibility due to a violation
of this section shall result in the offerer being rendered ineligible to
submit a proposal on or be awarded any procurement contract for a period
of four years from the date of the second final determination. Every
governmental entity shall ensure that its solicitations of proposals for
procurement contracts require offerers to disclose findings of non-res-
ponsibility due to violations of the provisions of subdivision three of
this section within the previous four years by any governmental entity.
The failure of offerers to timely disclose accurate and complete infor-
mation or otherwise cooperate with the governmental entity in adminis-
tering this provision shall be considered by the governmental entity in
its determination of responsibility; provided, further, that the govern-
mental entity shall not award a contract to an offerer who fails to
timely disclose accurate and complete information or otherwise cooperate
with the governmental entity in administering this provision unless the
governmental entity finds that the award of the procurement contract to
the offerer is necessary to protect public property or public health or
safety, and that the offerer is the only source capable of supplying the
required article of procurement within the necessary timeframe,
provided, that the governmental entity shall include in the procurement
record a statement describing the basis for such a finding. Upon a
determination of non-responsibility or debarment due to a violation of
this section, the governmental entity shall notify the office of general
services, which shall keep a list of all offerers who have been deter-
mined to be nonresponsible bidders or debarred due to violations of this
section; the office of general services shall make publicly available
such list and shall publish such list on its web site.
c. If a violation of the provisions of subdivision three of this
section is found to have knowingly and willfully occurred, then the
ethics officer or inspector general, if any, or other official of the
procuring governmental entity responsible for reviewing or investigating
such matters shall report instances of employee violation of the guide-
A. 9949--A 10
lines and procedures regarding implementation of subdivision two of this
section to the governmental entity's head.
11. Nothing in this section shall be deemed to prevent: (a) contacts
by offerers in protests, appeals or other review proceedings (including
the apparent successful bidder or proposer and his or her represen-
tatives) before the governmental entity conducting the procurement seek-
ing a final administrative determination, or in a subsequent judicial
proceeding; or
(b) complaints of alleged improper conduct in a governmental procure-
ment to the attorney general, inspector general, district attorney, or
court of competent jurisdiction; or
(c) written protests, appeals or complaints to the state comptroller's
office during the process of contract approval, where the state comp-
troller's approval is required by law, and where such communications and
any responses thereto are made in writing and shall be entered in the
procurement record pursuant to section one hundred sixty-three of [the
state finance law] THIS CHAPTER; or
(d) complaints of alleged improper conduct in a governmental procure-
ment conducted by a municipal agency or local legislative body to the
state comptroller's office;
provided, however, that nothing in this subdivision shall be construed
as recognizing or creating any new rights, duties or responsibilities or
abrogating any existing rights, duties or responsibilities of any
governmental entity as it pertains to implementation and enforcement of
article eleven of [the state finance law] THIS CHAPTER or any other
provision of law dealing with the governmental procurement process.
S 4. Section 139-k of the state finance law, as added by chapter 1 of
the laws of 2005, paragraph g of subdivision 1 as amended by chapter 395
of the laws of 2006, is amended to read as follows:
S 139-k. Disclosure of contacts and responsibility of offerers. 1. For
purposes of this section, the following terms will have the following
meanings unless specified otherwise.
a. "Governmental entity" shall mean: (1) any department, board,
bureau, commission, division, office, council, committee or officer of
the state, whether permanent or temporary; (2) each house of the state
legislature; (3) the unified court system; (4) any public authority,
public benefit corporation or commission created by or existing pursuant
to the public authorities law; (5) a public authority or public benefit
corporation, at least one of whose members is appointed by the governor
or who serves as a member by virtue of holding a civil office of the
state; (6) municipal agency, as that term is defined in paragraph (ii)
of subdivision (s) of section one-c of the legislative law; or (7) a
subsidiary or affiliate of such a public authority.
b. "Article of procurement" shall mean a commodity, service, technolo-
gy, public work, construction, revenue contract, the purchase, sale or
lease of real property or an acquisition or granting of other interest
in real property, that is the subject of a governmental procurement.
c. "Contacts" shall mean any oral, written or electronic communication
with a governmental entity under circumstances where a reasonable person
would infer that the communication was intended to influence the GOVERN-
MENTAL ENTITY'S CONDUCT OR DECISION REGARDING THE governmental procure-
ment.
d. "Proposal" shall mean any bid, quotation, offer or response to a
governmental entity's solicitation of submissions relating to a procure-
ment.
A. 9949--A 11
e. "Governmental procurement" shall mean: (i) the [preparation or
terms] PUBLIC ANNOUNCEMENT, PUBLIC NOTICE, OR PUBLIC COMMUNICATION TO
ANY POTENTIAL VENDOR OF A DETERMINATION OF A NEED FOR A PROCUREMENT,
WHICH SHALL INCLUDE, BUT NOT BE LIMITED TO, THE PUBLIC NOTIFICATION of
the specifications, bid documents, request for proposals, or evaluation
criteria for a procurement contract, (ii) solicitation for a procurement
contract, (iii) evaluation of a procurement contract, (iv) award,
approval, denial or disapproval of a procurement contract, or (v)
approval or denial of an assignment, amendment (other than amendments
that are authorized and payable under the terms of the procurement
contract as it was finally awarded or approved by the comptroller, as
applicable), renewal or extension of a procurement contract, or any
other material change in the procurement contract resulting in a finan-
cial benefit to the offerer.
f. "Restricted period" shall mean the period of time commencing with
the earliest written notice, advertisement or solicitation of a request
for proposal, invitation for bids, or solicitation of proposals, or any
other method for soliciting a response from offerers intending to result
in a procurement contract with a governmental entity AND ENDING with the
final contract award and approval by the governmental entity and, where
applicable, the state comptroller.
g. "Procurement contract" shall mean any contract or other agreement,
INCLUDING AN AMENDMENT, EXTENSION, RENEWAL, OR CHANGE ORDER TO AN EXIST-
ING CONTRACT (OTHER THAN AMENDMENTS, EXTENSIONS, RENEWALS, OR CHANGE
ORDERS THAT ARE AUTHORIZED AND PAYABLE UNDER THE TERMS OF THE CONTRACT
AS IT WAS FINALLY AWARDED OR APPROVED BY THE COMPTROLLER, AS APPLICA-
BLE), for an article of procurement involving an estimated annualized
expenditure in excess of fifteen thousand dollars. Grants, article
eleven-B state finance law contracts, program contracts between not-for-
profit organizations, as defined in article eleven-B of this chapter,
and the unified court system, intergovernmental agreements, railroad and
utility force accounts, utility relocation project agreements or orders,
CONTRACTS GOVERNING ORGAN TRANSPLANTS, CONTRACTS ALLOWING FOR STATE
PARTICIPATION IN A TRADE SHOW, and eminent domain transactions shall not
be deemed procurement contracts.
h. "Offerer" shall mean the individual or entity, or any employee,
agent or consultant or person acting on behalf of such individual or
entity, that contacts a governmental entity about a governmental
procurement during the restricted period of such governmental procure-
ment WHETHER OR NOT THE CALLER HAS A FINANCIAL INTEREST IN THE OUTCOME
OF THE PROCUREMENT; PROVIDED, HOWEVER, THAT A GOVERNMENTAL AGENCY OR ITS
EMPLOYEES THAT COMMUNICATES WITH THE PROCURING AGENCY REGARDING A
GOVERNMENTAL PROCUREMENT IN THE EXERCISE OF ITS OVERSIGHT DUTIES SHALL
NOT BE CONSIDERED AN OFFERER.
i. "Revenue contract" shall mean any written agreement between a
governmental entity, as that term is defined in subparagraphs one, four,
five, six or seven of paragraph a of this subdivision, and an offerer
whereby the governmental entity gives or grants a concession or a fran-
chise.
j. "Unified court system" shall, for the purposes of this section
only, mean the unified court system of the state of New York, or the
office of court administration, where appropriate, other than town and
village justice courts in jurisdictions with a population under fifty
thousand, when it acts solely in an administrative capacity to engage in
governmental procurements and shall not include the unified court system
or any court of the state judiciary when it acts to hear and decide
A. 9949--A 12
cases of original or appellate jurisdiction or otherwise acts in its
judicial, as opposed to administrative, capacity.
2. Each governmental entity shall ensure that solicitation of
proposals or bid documents or specifications, or contract documents, as
applicable, for procurement contracts shall require offerers to disclose
findings of non-responsibility made within the previous four years by
any governmental entity where such prior finding of non-responsibility
was due to: (a) a violation of section one hundred thirty-nine-j of this
article, or (b) the intentional provision of false or incomplete infor-
mation to a governmental entity.
3. The failure of an offerer to timely disclose accurate or complete
information to a governmental entity pursuant to subdivision two of this
section shall be considered by such governmental entity in its determi-
nation of the responsibility of such offerer. No procurement contract
shall be awarded to any such offerer, its subsidiaries, and any related
or successor entity with substantially similar function, management,
board of directors, officers and shareholders (hereinafter, for the
purposes of this subdivision, "offerer"), unless the governmental entity
finds that the award of the procurement contract to the offerer is
necessary to protect public property or public health or safety, and
that the offerer is the only source capable of supplying the required
article of procurement within the necessary timeframe, provided, that
the governmental entity shall include in the procurement record a state-
ment describing the basis for such a finding.
4. Upon any contact in the restricted period, the governmental entity
shall obtain the name, address, telephone number, place of principal
employment and occupation of the person or organization making the
contact and inquire and record whether the person or organization making
such contact was the offerer or was retained, employed or designated by
or on behalf of the offerer to appear before or contact the governmental
entity about the governmental procurement. All recorded contacts shall
be included in the procurement record for the procurement contract.
5. Any procurement contract award subject to the provisions of this
section and section one hundred thirty-nine-j of this article shall
contain a certification by the offerer that all information provided to
the procuring governmental entity with respect to this section is
complete, true and accurate, and each such procurement contract shall
contain a provision authorizing the governmental entity to terminate
such contract in the event such certification is found TO be inten-
tionally false or intentionally incomplete. The governmental entity
shall include in the procurement record a statement describing the basis
for any action taken pursuant to such termination provision.
6. Any communications received by a governmental entity from members
of the state legislature, or legislative staffs, when acting in their
official capacity, shall not be considered to be a "contact" within the
meaning of this section and shall not be recorded by a governmental
entity pursuant to this section.
S 5. Section 16 of chapter 1 of the laws of 2005 amending the state
finance law and other laws relating to restricting contacts in the
procurement process and the recording of contacts relating thereto, as
amended by chapter 169 of the laws of 2009, is amended to read as
follows:
S 16. This act shall take effect immediately; provided, however, that
sections one, six, eight, nine, ten, eleven and fifteen of this act
shall take effect January 1, 2006; and provided, however, the amendments
to paragraph f of subdivision [nine] 9 of section 163 of the state
A. 9949--A 13
finance law made by section fifteen of this act shall not affect the
repeal of such section and shall be deemed repealed therewith; provided,
further, that the amendments to article 1-A of the legislative law, made
by this act, shall not affect the repeal of such article pursuant to
chapter 2 of the laws of 1999, as amended, and shall be deemed repealed
therewith; provided, further, that sections thirteen and fourteen of
this act shall take effect January 1, 2006 and shall be deemed repealed
[on March 10, 2010] JULY 31, 2014; provided, further, that effective
immediately, the advisory council on procurement lobbying created pursu-
ant to section twelve of this act shall be constituted no later than
sixty days following the effective date of this act, provided that
effective sixty days following the effective date of this act, the advi-
sory council on procurement lobbying shall be authorized to establish
model guidelines and to add, amend and/or repeal any rules or regu-
lations necessary for the implementation of its duties under sections
twelve and thirteen of this act, and the advisory council authorized to
make and complete such model guidelines on or before the effective date
of section thirteen of this act; provided, further, that procurement
contracts for which bid solicitations have been issued prior to the
effective date of this act shall be awarded pursuant to the provisions
of law in effect at the time of issuance.
S 6. This act shall take effect immediately; provided, however that
the amendments to sections 139-j and 139-k of the state finance law made
by sections three and four of this act shall not affect the repeal of
such sections and shall be deemed repealed therewith; provided further
that procurement contracts for which bid solicitations have been issued
prior to the effective date of this act shall be subject to the
provisions of law in effect at the time of issuance. Effective imme-
diately, the addition, amendment and/or repeal of any rule or regulation
necessary for the implementation of this act on its effective date are
authorized to be made on or before such effective date.