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

                                  8692

                       2011-2012 Regular Sessions

                          I N  A S S E M B L Y

                            December 28, 2011
                               ___________

Introduced  by M. of A. HEASTIE -- read once and referred to the Commit-
  tee on Local Governments

AN ACT to amend the general municipal law, in relation to obtaining best
  value for purchase contracts

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

  Section  1. Subdivision 1 of section 103 of the general municipal law,
as amended by section 1 of a chapter of the laws of 2011,  amending  the
general  municipal  law  relating  to  obtaining best value for purchase
contracts, as proposed in legislative bills numbers  S.  4753-A  and  A.
7357-A, is amended to read as follows:
  1. Except as otherwise expressly provided by an act of the legislature
or  by  a  local  law adopted prior to September first, nineteen hundred
fifty-three, all contracts for public work involving an  expenditure  of
more  than  thirty-five  thousand  dollars  and  all  purchase contracts
involving an expenditure of more than twenty thousand dollars, shall  be
awarded  by  the  appropriate  officer,  board  or agency of a political
subdivision or of any district therein including but not  limited  to  a
soil  conservation  district [in the following manner: (a) contracts for
public work shall be awarded] to the lowest responsible bidder  furnish-
ing  the  required  security  after advertisement for sealed bids in the
manner provided by this section  [and,  (b)],  PROVIDED,  HOWEVER,  THAT
purchase  contracts (including contracts for service work, but excluding
any purchase contracts necessary for the completion of  a  public  works
contract  pursuant  to  article  eight  of the labor law) [shall] MAY be
awarded on the basis of best value, as defined in  section  one  hundred
sixty-three  of  the  state finance law, to a responsive and responsible
bidder or offerer in the manner provided by this section EXCEPT THAT  IN
A  POLITICAL  SUBDIVISION  OTHER  THAN  A  CITY WITH A POPULATION OF ONE
MILLION INHABITANTS OR MORE OR ANY DISTRICT, BOARD OR AGENCY WITH JURIS-
DICTION EXCLUSIVELY THEREIN  THE  USE  OF  BEST  VALUE  FOR  AWARDING  A

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
A                                                          LBD10947-07-2
              

A. 8692                             2

PURCHASE  CONTRACT OR PURCHASE CONTRACTS MUST BE AUTHORIZED BY LOCAL LAW
OR, IN THE CASE OF A DISTRICT CORPORATION, SCHOOL DISTRICT OR  BOARD  OF
COOPERATIVE  EDUCATIONAL  SERVICES,  BY  RULE,  REGULATION OR RESOLUTION
ADOPTED  AT  A PUBLIC MEETING.  In any case where a responsible bidder's
or responsible offerer's gross price is reducible by  an  allowance  for
the  value of used machinery, equipment, apparatus or tools to be traded
in by a political subdivision, the gross price shall be reduced  by  the
amount of such allowance, for the purpose of determining the best value.
In  cases  where two or more responsible bidders furnishing the required
security submit identical bids as to price, such officer, board or agen-
cy may award the contract to any of such bidders. Such officer, board or
agency may, in his or her or its discretion, reject all bids  or  offers
and  readvertise  for  new bids or offers in the manner provided by this
section. In determining whether a purchase is an expenditure within  the
discretionary  threshold  amounts  established  by this subdivision, the
officer, board or agency of a political subdivision or of  any  district
therein  shall  consider the reasonably expected aggregate amount of all
purchases of the same commodities, services or  technology  to  be  made
within  the  twelve-month  period  commencing  on  the date of purchase.
Purchases of commodities, services or  technology  shall  not  be  arti-
ficially  divided for the purpose of satisfying the discretionary buying
thresholds established by this subdivision. A change to or a renewal  of
a discretionary purchase shall not be permitted if the change or renewal
would bring the reasonably expected aggregate amount of all purchases of
the  same  commodities,  services  or  technology 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. For purposes of this section, "sealed bids" and "sealed offers",
as that term applies to purchase  contracts,  (including  contracts  for
service  work,  but  excluding  any purchase contracts necessary for the
completion of a public works contract pursuant to article eight  of  the
labor  law)  shall  include  bids  and offers submitted in an electronic
format including submission of the statement of  non-collusion  required
by  section  one  hundred  three-d  of  this  article, provided that the
governing board of the political subdivision or district, by resolution,
has  authorized  the  receipt  of  bids  and  offers  in  such   format.
Submission  in  electronic format may, for technology contracts only, be
required as the sole method for the submission of bids and offers.  Bids
and  offers  submitted  in  an electronic format shall be transmitted by
bidders and offerers to the receiving device designated by the political
subdivision or district. Any method used to receive electronic bids  and
offers  shall comply with article three of the state technology law, and
any rules and regulations promulgated and  guidelines  developed  there-
under  and, at a minimum, must (a) document the time and date of receipt
of each bid and offer  received  electronically;  (b)  authenticate  the
identity of the sender; (c) ensure the security of the information tran-
smitted;  and  (d)  ensure the confidentiality of the bid or offer until
the time and date established for the opening of  bids  or  offers.  The
timely  submission  of  an  electronic  bid  or offer in compliance with
instructions provided for such submission in the advertisement for  bids
or  offers  and/or the specifications shall be the responsibility solely
of each bidder or offerer or prospective bidder or offerer.    No  poli-
tical  subdivision  or  district  therein shall incur any liability from
delays of or interruptions in the receiving device  designated  for  the
submission and receipt of electronic bids and offers.

A. 8692                             3

  S  2.  Subdivision  1  of section 103 of the general municipal law, as
amended by section 2 of a chapter of the  laws  of  2011,  amending  the
general  municipal  law  relating  to  obtaining best value for purchase
contracts, as proposed in legislative bills numbers  S.  4753-A  and  A.
7357-A, is amended to read as follows:
  1. Except as otherwise expressly provided by an act of the legislature
or  by  a  local  law adopted prior to September first, nineteen hundred
fifty-three, all contracts for public work involving an  expenditure  of
more  than  thirty-five  thousand  dollars  and  all  purchase contracts
involving an expenditure of more than twenty thousand dollars, shall  be
awarded  by  the  appropriate  officer,  board  or agency of a political
subdivision or of any district therein including but not  limited  to  a
soil  conservation  district [in the following manner: (a) contracts for
public work shall be awarded] to the lowest responsible bidder  furnish-
ing  the  required  security  after advertisement for sealed bids in the
manner provided by this section  [and,  (b)],  PROVIDED,  HOWEVER,  THAT
purchase  contracts (including contracts for service work, but excluding
any purchase contracts necessary for the completion of  a  public  works
contract  pursuant  to  article  eight  of the labor law) [shall] MAY be
awarded on the basis of best value, as defined in  section  one  hundred
sixty-three  of  the  state finance law, to a responsive and responsible
bidder or offerer in the manner provided by this section EXCEPT THAT  IN
A  POLITICAL  SUBDIVISION  OTHER  THAN  A  CITY WITH A POPULATION OF ONE
MILLION INHABITANTS OR MORE OR ANY DISTRICT, BOARD OR AGENCY WITH JURIS-
DICTION EXCLUSIVELY THEREIN THE USE OF BEST VALUE OF AWARDING A PURCHASE
CONTRACT OR PURCHASE CONTRACTS MUST BE AUTHORIZED BY LOCAL  LAW  OR,  IN
THE  CASE OF A DISTRICT CORPORATION, SCHOOL DISTRICT OR BOARD OF COOPER-
ATIVE EDUCATIONAL SERVICES, BY RULE, REGULATION OR RESOLUTION ADOPTED AT
A PUBLIC MEETING.  In determining whether a purchase is  an  expenditure
within  the discretionary threshold amounts established by this subdivi-
sion, the officer, board or agency of a political subdivision or of  any
district therein shall consider the reasonably expected aggregate amount
of  all  purchases of the same commodities, services or technology to be
made within the twelve-month period commencing on the date of  purchase.
Purchases  of  commodities,  services  or  technology shall not be arti-
ficially divided for the purpose of satisfying the discretionary  buying
thresholds  established by this subdivision. A change to or a renewal of
a discretionary purchase shall not be permitted if the change or renewal
would bring the reasonably expected aggregate amount of all purchases of
the same commodities, services or  technology  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.  In  any  case  where  a  responsible  bidder's  or  responsible
offerer's gross price is reducible by an allowance for the value of used
machinery, equipment, apparatus or tools to be traded in by a  political
subdivision,  the  gross  price  shall  be reduced by the amount of such
allowance, for the purpose of determining the low bid or best value.  In
cases  where  two  or  more  responsible bidders furnishing the required
security submit identical bids as to price, such officer, board or agen-
cy may award the contract to any of such bidders. Such officer, board or
agency may, in his, her or its discretion, reject all bids or offers and
readvertise for new bids or  offers  in  the  manner  provided  by  this
section.
  S  3.  This  act  shall  take  effect on the same date and in the same
manner as a chapter of the laws of 2011, amending the general  municipal

A. 8692                             4

law relating to obtaining best value for purchase contracts, as proposed
in legislative bills numbers S. 4753-A and A. 7357-A, takes effect.