S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                 9949--A

                          I N  A S S E M B L Y

                            February 17, 2010
                               ___________

Introduced  by M. of A. DESTITO, HOOPER -- read once and referred to the
  Committee on Governmental Operations -- reported and referred  to  the
  Committee  on  Codes  --  committee  discharged, bill amended, ordered
  reprinted as amended and recommitted to said committee

AN ACT to amend the legislative  law  and  the  state  finance  law,  in
  relation  to  procurement lobbying; and to amend 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, in relation to extending the  effectiveness
  of certain provisions thereof

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. Legislative findings and statement of intent. The  legisla-
ture hereby finds and declares that it is important to the well-being of
the  state  and  its citizens to preserve and enhance both the integrity
and efficiency by which New York  state  entities,  including  executive
agencies, public authorities, localities, the legislature, and the judi-
ciary  procure  goods  and services. In order to use the revenues of the
state effectively and to maximize value from such  procurements  to  the
residents of the state, the procurement laws of the state seek to struc-
ture  the  procurement  process so that there is broad-based competition
for state procurements, which promotes both lower  costs  for  necessary
purchases  and greater value. The laws governing procurement also should
authorize and encourage the entities conducting procurements to use  new
technology  and  practices  that  would  allow the state to procure more
efficiently. At the same time,  both  vendors  who  participate  in  the
procurement process and the residents of the state should feel confident
that  the process is fair and that decisions are made on the merits, not
on the basis of favoritism or past relationships.
  The legislature further finds that in 2005, the legislature  responded
to  widespread  concerns  that  the  procurement process was on occasion
subject to pressures that distorted the  evaluation  of  the  merits  of
procurement  bids  and proposals. It enacted laws to allow anyone inter-
ested in a particular procurement to examine the communications  between

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
              

                                                           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.