A. 1123 2
SUCH STATE AGENCY, PUBLIC AUTHORITY OR MUNICIPALITY SHALL REQUIRE THAT
ANY PROPOSAL SUBMITTED BY A PROSPECTIVE CONTRACTOR IN RESPONSE THERETO
INCLUDE AN ECONOMIC IMPACT STATEMENT DETAILING HOW AN AWARD OF THE
CONTRACT TO THE PARTICULAR CONTRACTOR WOULD BENEFIT THE ECONOMY OF NEW
YORK STATE AND SHALL PROVIDE THAT NET ECONOMIC IMPACT WILL BE CONSIDERED
IN MAKING THE AWARD. THE WEIGHT TO BE GIVEN TO SUCH NET ECONOMIC IMPACT
CRITERION RELATIVE TO OTHER CRITERIA USED TO EVALUATE THE PROPOSALS,
INCLUDING LOWEST RESPONSIBLE BIDDER AND BEST VALUE, SHALL BE DETERMINED
BY THE CONTRACTING AGENCY, AUTHORITY OR MUNICIPALITY ON A CASE BY CASE
BASIS. THE STATE AGENCY, PUBLIC AUTHORITY, OR MUNICIPALITY SHALL GIVE
PRIORITY TO THE NET ECONOMIC IMPACT CRITERION WHEREVER PRACTICABLE AND
SET FORTH THE BASIS FOR ITS AWARD IN WRITING.
2. FOR THE PURPOSES OF THIS SECTION, THE FOLLOWING TERMS SHALL HAVE
THE FOLLOWING DEFINITIONS:
(A) "NET ECONOMIC IMPACT" MEANS THE MEASURE OF ECONOMIC STIMULATION
THAT OCCURS FROM PURCHASING TRANSACTIONS THAT HAVE OCCURRED WITHIN THE
LOCAL ECONOMY OF NEW YORK STATE AND THE LOWEST RESPONSIBLE BID. NET
ECONOMIC IMPACT SHALL BE MEASURED BY DIRECT IMPACT, INDIRECT IMPACT AND
INDUCED IMPACT, AS WELL AS LOWEST RESPONSIBLE BID AND BEST VALUE, WHICH
ARE DEFINED AS:
(1) "DIRECT IMPACT" MEANS THE AMOUNT OF DIRECT ECONOMIC ACTIVITY
GENERATED BY THE PURCHASING TRANSACTION, OR BUSINESS TRANSACTIONS, IN
QUESTION. THE SETS OF NUMBERS USED TO DETERMINE DIRECT IMPACT ARE A
RESULT OF DEVELOPING PER CAPITA NUMBERS BASED ON ACTUAL ECONOMIC DATA
SUPPLIED BY TRANSACTION MANAGEMENT, ATTENDANCE FIGURES, AND OTHER FINAN-
CIAL INFORMATION FOR ALL TRANSACTION-RELATED ACTIVITIES, AS WELL AS
USING AVAILABLE TRANSACTION INDUSTRY AVERAGE PER CAPITA EXPENDITURE
LEVELS FOR VARIOUS ITEMS.
(2) "INDIRECT IMPACT" INCLUDES ECONOMIC ACTIVITY FELT BY BUSINESSES AS
AN INDIRECT RESULT OF THE PURCHASING OR BUSINESS TRANSACTION.
(3) "INDUCED IMPACT" IS THE IMPACT GENERATED WHEN THOSE SURROUNDING
BUSINESSES PURCHASE ADDITIONAL PRODUCTS AND SERVICES, AND HIRE MORE
EMPLOYEES TO MEET THE DEMAND BROUGHT ON BY DIRECT AND INDIRECT IMPACTS.
(4) "LOWEST RESPONSIBLE BIDDER" MEANS ANY PERSON, FIRM, CORPORATION,
SUCCESSOR CORPORATION, CONTRACTOR OR SUBCONTRACTOR WHO (I) SUBMITS THE
LOWEST RESPONSIBLE BID AND (II) IS NOT DISQUALIFIED ON ANY OF THE
GROUNDS PROVIDED BY LAW, RULE OR REGULATION.
(5) "BEST VALUE" MEANS THE SAME AS IN SUBDIVISION ONE OF SECTION ONE
HUNDRED SIXTY-THREE OF THIS CHAPTER.
(B) "MUNICIPALITY" SHALL MEAN ANY CITY, TOWN, VILLAGE, COUNTY, MUNICI-
PAL CORPORATION, DISTRICT CORPORATION, DISTRICT OR ANY OFFICE, DEPART-
MENT OR AGENCY, THEREOF.
(C) "STATE AGENCY" SHALL, NOTWITHSTANDING ANY OTHER PROVISION OF LAW,
MEAN ANY STATE DEPARTMENT, BOARD, BUREAU, DIVISION, OFFICE, COUNCIL,
COMMITTEE OR OFFICER OF THE STATE, OR THE STATE UNIVERSITY OF NEW YORK,
OR THE SENIOR COLLEGES OF THE CITY UNIVERSITY OF NEW YORK, OR ANY PUBLIC
BENEFIT CORPORATION OR COMMISSION AT LEAST ONE OF WHOSE MEMBERS ARE
APPOINTED BY THE GOVERNOR.
3. THE COMPTROLLER AND THE COMMISSIONER OF THE DEPARTMENT OF ECONOMIC
DEVELOPMENT SHALL ESTABLISH, THROUGH THE PROMULGATION OF RULES AND REGU-
LATIONS, AND IN CONSULTATION WITH THE HEADS OF STATE AGENCIES, A METHOD
FOR STRUCTURING REQUESTS FOR PROPOSALS TO REQUIRE INCLUSION OF AN
ECONOMIC IMPACT STATEMENT AND IN EVALUATING RESPONSES TO SUCH REQUESTS
FOR PROPOSALS. THE COMPTROLLER SHALL ALSO ESTABLISH THROUGH THE PROMUL-
GATION OF RULES AND REGULATIONS GUIDELINES FOR AGENCIES, AUTHORITIES AND
MUNICIPALITIES TO INCORPORATE CONSIDERATION OF THE LOWEST RESPONSIBLE
A. 1123 3
BIDDER CRITERIA INTO THE NET ECONOMIC IMPACT FORMULA. SUCH NET ECONOMIC
IMPACT SHALL INCLUDE, BUT NOT BE LIMITED TO, CONSIDERATION OF WHERE
SUBCONTRACTORS USED BY CONTRACTORS TO FULFILL A CONTRACT ARE LOCATED,
HOW MANY JOBS IN THE STATE, IF ANY, WILL BE CREATED BY THE AWARDING OF
SUCH A CONTRACT, AND THE ESTIMATED TAX REVENUE AND ANCILLARY ECONOMIC
ACTIVITY THAT WOULD BE GENERATED IN THE STATE THROUGH THE AWARDING OF
SUCH CONTRACTS AND SUBSEQUENT SUBCONTRACTS, LOWEST RESPONSIBLE BID, AND
BEST VALUE. SUCH RULES AND REGULATIONS SHALL INCLUDE A PROCEDURE WHEREBY
A STATE AGENCY, PUBLIC AUTHORITY OR MUNICIPALITY MAY REQUEST A WAIVER
FROM THE REQUIREMENTS OF THIS SECTION.
4. (A) THE PROVISIONS OF THIS SECTION SHALL NOT APPLY TO CONTRACTS FOR
WHICH A STATE AGENCY, PUBLIC AUTHORITY, OR MUNICIPALITY RECEIVES FUNDS
ADMINISTERED BY THE FEDERAL GOVERNMENT, EXCEPT TO THE EXTENT THAT THE
FEDERAL GOVERNMENT WOULD NOT WITHHOLD SUCH FUNDS OWING TO THE STATE
AGENCY'S, PUBLIC AUTHORITY'S, OR MUNICIPALITY'S COMPLIANCE WITH THIS
SECTION.
(B) THE PROVISIONS OF THIS SECTION SHALL NOT APPLY TO CONTRACTS
BETWEEN A STATE AGENCY, PUBLIC AUTHORITY, OR MUNICIPALITY IN NEGOTIATED
RECIPROCITY FOR GOODS OR SERVICES, EXCEPT TO THE EXTENT THAT SUCH NET
ECONOMIC IMPACT SHALL NOT UNDERMINE SUCH RECIPROCAL CONTRACT AGREEMENT.
5. ANY PERSON, FIRM, CORPORATION, SUCCESSOR CORPORATION, LABOR ORGAN-
IZATION, CONTRACTOR OR SUBCONTRACTOR MAY, WITHIN TEN DAYS AFTER A BID IS
ACCEPTED, FILE AN APPLICATION TO CHALLENGE THE DETERMINATION. UPON
RECEIPT OF SUCH APPLICATION, THE COMPTROLLER, OR HIS OR HER DESIGNEE,
SHALL CONDUCT A HEARING TO DETERMINE THE VALIDITY OF THE APPLICATION.
NOTICE SHALL BE GIVEN TO THE APPLICANT AND TO THE PROPOSED CONTRACT BID
AWARDEE OF THE DATE, TIME AND PLACE OF THE HEARING. THE APPLICANT AND
THE PROPOSED CONTRACT BID AWARDEE SHALL BE GIVEN THE OPPORTUNITY TO
PRESENT EVIDENCE AND WITNESSES ON THEIR BEHALF. THE COMPTROLLER, OR HIS
OR HER DESIGNEE, PRESIDING OVER SUCH HEARING SHALL ISSUE A WRITTEN DECI-
SION WITH FINDINGS OF FACT WHETHER THE PROPOSED CONTRACT BID AWARDEE IS
VALID. SUCH CONTRACT SHALL NOT BE AWARDED PRIOR TO SUCH DECISION. THE
AWARDING AGENCY, AUTHORITY, OR MUNICIPALITY SHALL NOTIFY ALL BIDDERS
REGARDING THE SELECTION OF ITS PROPOSED CONTRACT BID AWARDEE.
S 4. The opening paragraph and paragraph c of subdivision 2, the open-
ing paragraph and subparagraphs (ii), (v) and (vi) of paragraph a and
subparagraph (i) of paragraph b of subdivision 3 of section 163 of the
state finance law, as added by chapter 83 of the laws of 1995, are
amended to read as follows:
The objective of state procurement is to facilitate each state agen-
cy's mission while protecting the interests of the state and its taxpay-
ers and promoting fairness in contracting with the business community.
The state's procurement process shall be guided by the NET ECONOMIC
IMPACT, PURSUANT TO SECTION ONE HUNDRED THIRTY-NINE-L OF THIS CHAPTER,
OF A CONTRACT ON THE STATE AND THE following principles:
c. To encourage the investment of the private and not-for-profit
sectors in New York state by making reasonable efforts to ensure that
offerers are apprised of procurement opportunities; by specifying the
elements of a responsive bid and disclosing the process for awarding
contracts including, if applicable, the relative importance and/or
weight of [cost] NET ECONOMIC IMPACT and the overall technical criterion
for evaluating offers; and by ensuring the procurement is conducted
accordingly.
State agency procurement practices for commodities shall incorporate
NET ECONOMIC IMPACT, PURSUANT TO SECTION ONE HUNDRED THIRTY-NINE-L OF
THIS CHAPTER, AND THEN the following:
A. 1123 4
(ii) Commodities contracts shall be awarded on the basis of [lowest
price to] NET ECONOMIC IMPACT OF a responsive and responsible offerer;
or, in the case of multiple awards, in accordance with paragraph c of
subdivision ten of this section.
(v) Consistent with guidelines issued by the state procurement coun-
cil, state agencies may competitively purchase commodities procured in
accordance with this article in lieu of using centralized contracts when
the resultant [price is less] NET ECONOMIC IMPACT IS GREATER than the
centralized contract [price].
(vi) When justified by [price] NET ECONOMIC IMPACT, state agencies,
and hospitals and facilities managed and controlled by state agencies
eligible pursuant to section twenty-eight hundred three-a of the public
health law, shall be eligible to make purchases pursuant to guidelines
issued by the state procurement council from a consortium or comparable
entity in lieu of using centralized contracts for commodities.
(i) determine, in cooperation with the state procurement council and
state agencies, the identity, form, function and utility of those
commodities which shall be made available on or through centralized
contracts. CRITERIA SHALL INCLUDE THE NET ECONOMIC IMPACT, AS DEFINED IN
SECTION ONE HUNDRED THIRTY-NINE-L OF THIS CHAPTER, ON NEW YORK STATE'S
ECONOMY. Criteria may include, but need not be limited to, the avail-
ability of a volume discount, prior use of the commodity among state
agencies and the relative cost of establishing the contract, its antic-
ipated use and expected actual savings for the state. The commissioner
may also act as a broker for state agencies to procure commodities.
S 5. The opening paragraph and paragraph d of subdivision 4 of section
163 of the state finance law, as added by chapter 83 of the laws of
1995, are amended to read as follows:
State agency procurement practices for services shall incorporate THE
NET ECONOMIC IMPACT, AS DEFINED IN SECTION ONE HUNDRED THIRTY-NINE-L OF
THIS CHAPTER, AND THEN the following:
d. Service contracts shall be awarded on the basis of [best value to]
NET ECONOMIC IMPACT OF a responsive and responsible offerer; or, in the
case of multiple awards, in accordance with paragraph c of subdivision
ten of this section.
S 6. Subdivision 7, paragraphs a and b of subdivision 9, the opening
paragraph and paragraph a of subdivision 10, and the opening paragraph
of subdivision 11 of section 163 of the state finance law, as added by
chapter 83 of the laws of 1995, and subdivision 7 as amended by section
10 of part L of chapter 55 of the laws of 2012, are amended to read as
follows:
7. Method of procurement. Consistent with the requirements of subdivi-
sions three and four of this section, state agencies shall select among
permissible methods of procurement including, but not limited to, an
invitation for bid, request for proposals or other means of solicitation
pursuant to guidelines issued by the state procurement council. State
agencies may accept bids electronically including submission of the
statement of non-collusion required by section one hundred thirty-nine-d
of this chapter and, starting April first, two thousand twelve, and
ending March thirty-first, two thousand fifteen, may, for commodity,
service and technology contracts require electronic submission as the
sole method for the submission of bids for the solicitation. State agen-
cies shall undertake no more than eighty-five such electronic bid solic-
itations, none of which shall be reverse auctions, prior to April first,
two thousand fifteen. In addition, state agencies may conduct up to
twenty reverse auctions through electronic means, prior to April first,
A. 1123 5
two thousand fifteen. Prior to requiring the electronic submission of
bids, the agency shall make a determination, which shall be documented
in the procurement record, that electronic submission affords a fair and
equal opportunity for offerers to submit responsive offers. Within thir-
ty days of the completion of the eighty-fifth electronic bid solicita-
tion, or by April first, two thousand fifteen, whichever is earlier, the
commissioner shall prepare a report assessing the use of electronic
submissions and make recommendations regarding future use of this
procurement method. In addition, within thirty days of the completion of
the twentieth reverse auction through electronic means, or by April
first, two thousand fifteen, whichever is earlier, the commissioner
shall prepare a report assessing the use of reverse auctions through
electronic means and make recommendations regarding future use of this
procurement method. Such reports shall be published on the website of
the office of general services. Except where otherwise provided by law,
procurements shall be competitive, and state agencies shall conduct
formal competitive procurements to the maximum extent practicable. State
agencies shall document the determination of the method of procurement
and the basis of award in the procurement record. Where the basis for
award is the best [value] NET ECONOMIC IMPACT offer, the state agency
shall document, in the procurement record and in advance of the initial
receipt of offers, the determination of the evaluation criteria, which
whenever possible, shall be quantifiable, and the process to be used in
the determination of best [value] NET ECONOMIC IMPACT and the manner in
which the evaluation process and selection shall be conducted.
a. The commissioner or a state agency shall select a formal compet-
itive procurement process in accordance with guidelines established by
the state procurement council and document its determination in the
procurement record. The process shall include, but is not limited to, a
clear statement of need; a description of the required specifications
governing performance and related factors; a reasonable process for
ensuring a competitive field; a fair and equal opportunity for offerers
to submit responsive offers; and a balanced and fair method of award.
Where the basis for the award is best [value] NET ECONOMIC IMPACT,
documentation in the procurement record shall, where practicable,
include a quantification of the application of the criteria to the
rating of proposals and the evaluation results, or, where not practica-
ble, such other justification which demonstrates that best [value] NET
ECONOMIC IMPACT will be achieved.
b. The solicitation shall prescribe the minimum specifications or
requirements that must be met in order to be considered responsive and
shall describe and disclose the general manner in which the evaluation
and selection shall be conducted. Where appropriate, the solicitation
shall identify the relative importance and/or weight of [cost] NET
ECONOMIC IMPACT and the overall technical criterion to be considered by
a state agency in its determination of best [value] NET ECONOMIC IMPACT.
Contracts for commodities shall be awarded on the basis of [lowest
price to] NET ECONOMIC IMPACT OF a responsive and responsible offerer,
PURSUANT TO SECTION ONE HUNDRED THIRTY-NINE-L OF THIS CHAPTER.
Contracts for services shall be awarded on the basis of best [value] NET
ECONOMIC IMPACT from a responsive and responsible offerer, PURSUANT TO
SECTION ONE HUNDRED THIRTY-NINE-L OF THIS CHAPTER. Multiple awards for
services and commodities shall be conducted in accordance with paragraph
c of this subdivision.
a. Selection and award shall be a written determination in the
procurement record made by the commissioner or a state agency in a
A. 1123 6
manner consistent with the provisions of the solicitation. In the event
two offers are found to be substantially equivalent, [price] NET ECONOM-
IC IMPACT shall be the basis for determining the award recipient or,
when [price] NET ECONOMIC IMPACT and other factors are found to be
substantially equivalent, the determination of the commissioner or agen-
cy head to award a contract to one or more of such bidders shall be
final. The basis for determining the award shall be documented in the
procurement record.
It shall be the responsibility of the head of each state agency to
periodically sample the results of the procurement process to test for
reasonableness; to ensure that the results withstand public scrutiny and
that the quality and the price of the purchase makes sense; and to
ensure that purchasing is conducted in a manner consistent with the best
NET ECONOMIC IMPACT interests of the state.
S 7. Subdivision 1 of section 142 of the economic development law, as
amended by chapter 137 of the laws of 2008, is amended to read as
follows:
1. The commissioner shall publish on a daily basis a procurement
opportunities newsletter, which shall contain notices of procurement
contract opportunities and any other information the commissioner deems
necessary to effectuate the purposes of this article INCLUDING, BUT NOT
LIMITED TO, ANY CHANGES IN THE LAW, RULES AND REGULATIONS REGARDING
PROCUREMENT CONTRACTS. Notices of procurement contract opportunities
shall be available on the internet for at least fifteen days.
S 8. Section 100-a of the general municipal law, as added by chapter
363 of the laws of 1964, is amended to read as follows:
S 100-a. Declaration of policy. [It] NOTWITHSTANDING ANY PROVISION OF
THIS ARTICLE TO THE CONTRARY, IT is hereby declared to be the policy of
this state that this article shall [be construed] CONSIDER THE NET
ECONOMIC IMPACT, AS DEFINED IN SECTION ONE HUNDRED THIRTY-NINE-L OF THE
STATE FINANCE LAW, AS THE PRIORITY in the negotiation of contracts for
public works and public purchases to which political subdivisions [or
and district] AND/OR DISTRICTS therein [is] ARE a party so as to assure
the prudent and economical use of public moneys for the benefit of all
the inhabitants of the state and to facilitate the acquisition of facil-
ities and commodities of maximum quality [at the lowest possible cost].
S 9. Subdivision 1 of section 2879 of the public authorities law, as
amended by chapter 564 of the laws of 1988, is amended to read as
follows:
1. Every public authority and public benefit corporation, a majority
of the members of which consist of persons either appointed by the
governor or who serve as members by virtue of holding a civil office of
the state, or a combination thereof, (such entities to be hereinafter in
this section referred to as "corporation") shall adopt by resolution
comprehensive guidelines which detail the corporation's operative policy
and instructions regarding the use, awarding, monitoring and reporting
of procurement contracts. NOTWITHSTANDING ANY OTHER PROVISION OF LAW,
RULE OR REGULATION, SUCH GUIDELINES SHALL INCLUDE, BUT NOT BE LIMITED
TO, MAKING CONSIDERATION OF THE NET ECONOMIC IMPACT, AS DEFINED IN
SECTION ONE HUNDRED THIRTY-NINE-L OF THE STATE FINANCE LAW, THE PRIORITY
IN AWARDING PROCUREMENT CONTRACTS. Guidelines approved by the corpo-
ration shall be annually reviewed and approved by the corporation.
S 10. This act shall take effect on the one hundred eightieth day
after it shall have become a law; provided, however, the provisions of
this act shall be applied to all contracts entered into on or after
April 1, 2015; and provided, further, however, that the amendments to
A. 1123 7
the provisions of section 163 of the state finance law made by sections
four, five and six of this act shall not affect the repeal of such
section and shall be deemed repealed therewith. Effective immediately,
the addition, amendment and/or repeal of any rule or regulation neces-
sary for the implementation of this act on its effective date is author-
ized and directed to be made and completed on or before such date.