S. 5624 2
CUSTOMERS, CLIENTS AND BUSINESS PARTNERS. SUCH ONLINE SERVICES MAY BE
EXPANDED AND ENHANCED AS TECHNOLOGY ALLOWS.
C. "STATE AGENCY" OR "STATE AGENCIES" SHALL MEAN ALL STATE DEPART-
MENTS, BOARDS, COMMISSIONS, OFFICES OR INSTITUTIONS. SUCH TERM SHALL NOT
INCLUDE THE LEGISLATURE OR THE JUDICIARY.
D. "STATE CONTRACT" OR "CONTRACT" SHALL MEAN AND INCLUDE ANY WRITTEN
AGREEMENT FOR THE ACQUISITION OF GOODS, SERVICES OR CONSTRUCTION OF ANY
KIND BETWEEN A VENDOR AND A STATE AGENCY, OR A WRITTEN AGREEMENT OR
OTHER INSTRUMENT WHEREIN A STATE AGENCY AGREES TO GIVE CONSIDERATION
OTHER THAN THE PAYMENT OF MONEY AS CONTEMPLATED IN SUBDIVISION THREE OF
SECTION ONE HUNDRED TWELVE OF THIS CHAPTER.
E. "SUBCONTRACTOR" SHALL MEAN AN INDIVIDUAL, SOLE PROPRIETORSHIP,
PARTNERSHIP, JOINT VENTURE OR CORPORATION, WHICH IS ENGAGED IN A SUBCON-
TRACT BY A VENDOR PURSUANT TO A STATE CONTRACT AND SUCH SUBCONTRACT IS
VALUED AT ONE HUNDRED THOUSAND DOLLARS OR MORE AND IS KNOWN AT THE TIME
OF THE AWARD OF THE STATE CONTRACT TO THE VENDOR.
F. "SYSTEM" SHALL MEAN THE ON-LINE SOFTWARE, DATA AND RELATED
RESOURCES MAINTAINED BY THE COMPTROLLER TO COMPILE VENDOR RESPONSIBILITY
INFORMATION.
G. "TERMS OF SERVICE" SHALL MEAN THE TERMS AND CONDITIONS DEVELOPED BY
THE STATE COMPTROLLER AND AGREED TO BY EACH AUTHORIZED USER PRIOR TO
GAINING ACCESS TO ONLINE SERVICES. TERMS OF SERVICE SHALL INCLUDE A
DESCRIPTION OF THE SERVICES, OBLIGATIONS OF THE STATE COMPTROLLER AND
THE AUTHORIZED USER, A DESCRIPTION OF THE STATE COMPTROLLER'S PRIVACY
POLICY, AUTHORIZED USER CODE OF CONDUCT, AND INDEMNITY FOR THE STATE
COMPTROLLER AND THE STATE OF NEW YORK. TERMS OF SERVICE ARE SUBJECT TO
CHANGE AS PRESCRIBED BY THE STATE COMPTROLLER. AUTHORIZED USERS MAY
VIEW CHANGES VIA THE STATE COMPTROLLER'S INTERNET SITE.
H. "VENDOR" SHALL INCLUDE ANY PERSON, PARTNERSHIP, CORPORATION OR
LIMITED LIABILITY COMPANY OR ANY BUSINESS ENTITY BIDDING ON A STATE
PROCUREMENT OR OTHERWISE AWARDED A STATE CONTRACT.
I. "VENDOR RESPONSIBILITY" SHALL MEAN THAT A VENDOR HAS THE CAPACITY
TO FULLY PERFORM THE TERMS OF A CONTRACT AND THE INTEGRITY AND BUSINESS
ETHICS TO JUSTIFY AN AWARD OF PUBLIC DOLLARS. A DETERMINATION OF VENDOR
RESPONSIBILITY SHALL INCLUDE CONSIDERATION OF FACTORS INCLUDING, BUT NOT
LIMITED TO, FINANCIAL AND ORGANIZATIONAL CAPACITY, LEGAL AUTHORITY,
INTEGRITY AND PAST PERFORMANCE ON GOVERNMENTAL CONTRACTS.
2. A. STATE AGENCIES SHALL ENROLL WITH THE STATE COMPTROLLER TO ACCESS
THE SYSTEM MAINTAINED BY THE COMPTROLLER TO COMPILE VENDOR RESPONSIBIL-
ITY INFORMATION. STATE AGENCIES SHALL AGREE TO AND ABIDE BY THE TERMS OF
SERVICE FOR SUCH SYSTEM AS THE STATE COMPTROLLER DEEMS NECESSARY.
B. FOR EACH CONTRACT OR SUBCONTRACT BETWEEN A VENDOR AND A SUBCONTRAC-
TOR WHERE, PURSUANT TO LAW OR BY DIRECTION OF THE STATE AGENCY, DISCLO-
SURE FOR VENDOR RESPONSIBILITY IS REQUIRED, THE STATE AGENCY SHALL:
(I) PROVIDE NOTICE TO VENDORS BIDDING FOR PROCUREMENTS ADMINISTERED BY
THE STATE AGENCY THAT ANY VENDOR AND SUBCONTRACTOR, SUBMITTING A VENDOR
RESPONSIBILITY QUESTIONNAIRE SHALL DO SO VIA THE SYSTEM MAINTAINED TO
COMPILE VENDOR RESPONSIBILITY INFORMATION;
(II) PROVIDE VENDORS WITH INSTRUCTIONS ON HOW TO ELECTRONICALLY ACCESS
THE SYSTEM AND PROVIDE CONTACT INFORMATION FOR ASSISTANCE WITH ENROLL-
MENT. THIS INFORMATION SHALL BE MADE AVAILABLE PRIOR TO THE TIME WHEN
VENDORS ARE REQUIRED TO SUBMIT DISCLOSURE FOR VENDOR RESPONSIBILITY; AND
(III) ACCESS THE SYSTEM TO OBTAIN AND EVALUATE ANY DATA SUBMITTED BY A
VENDOR PROPOSED FOR CONTRACT AWARD. STATE AGENCIES SHALL ENSURE THE
SUBMISSION FILED BY THE VENDOR MEETS SUCH SYSTEM'S TIMELINESS STANDARDS.
S. 5624 3
SUCH PROVISIONS APPLY REGARDLESS OF WHETHER THE CONTRACT IS SUBJECT TO
PRE-REVIEW AND APPROVAL BY THE STATE COMPTROLLER.
C. FOR CONTRACTS WHERE VENDOR DISCLOSURE IS NOT OTHERWISE REQUIRED,
THE STATE AGENCY AT ITS DISCRETION, MAY REQUIRE VENDORS BIDDING ON
PROCUREMENTS, AND/OR SUBCONTRACTORS, TO SUBMIT A VENDOR RESPONSIBILITY
QUESTIONNAIRE VIA THE SYSTEM. NOTHING CONTAINED IN THIS PARAGRAPH SHALL
BE CONSTRUED TO ALTER THE EXISTING AUTHORITY OF THE STATE COMPTROLLER TO
REQUIRE THE SUBMISSION OF A VENDOR RESPONSIBILITY QUESTIONNAIRE IN
CONJUNCTION WITH HIS OR HER DUTY TO REVIEW AND APPROVE STATE CONTRACTS
PRIOR TO SUCH CONTRACTS BECOMING EFFECTIVE.
D. STATE AGENCIES SHALL PROVIDE ACCESS TO THE SYSTEM TO USERS WITHIN
THEIR ORGANIZATION, AS DEEMED APPROPRIATE BY THE HEAD OF THE STATE AGEN-
CY OR HIS OR HER DESIGNEE. STATE AGENCY USERS PROVIDED WITH SUCH ACCESS
SHALL BE THOSE INDIVIDUALS, WHO, AS PART OF THEIR OFFICIAL JOB DUTIES,
ARE REQUIRED TO ASSESS AND/OR REVIEW VENDOR RESPONSIBILITY FOR THE AGEN-
CY'S CONTRACTS.
§ 2. Subdivisions 7 and 10 of section 160 of the state finance law,
subdivision 7 as amended by section 30 of part L of chapter 55 of the
laws of 2012 and subdivision 10 as added by chapter 83 of the laws of
1995, are amended to read as follows:
7. "Service" or "services" means the performance of a task or tasks
and may include a material good or a quantity of material goods, and
which is the subject of any purchase or other exchange. For the purposes
of this article, INFORMATION technology shall be deemed a service.
Services, as defined in this article, shall not apply to those contracts
for architectural, engineering or surveying services, or those contracts
approved in accordance with article eleven-B of this chapter.
10. "[Technology] INFORMATION TECHNOLOGY" means either a good or a
service or a combination thereof, [that results in a technical method of
achieving a practical purpose or in improvements in productivity] USED
IN THE APPLICATION OF ANY COMPUTER OR ELECTRONIC INFORMATION EQUIPMENT
OR INTERCONNECTED SYSTEM THAT IS USED IN THE ACQUISITION, STORAGE,
MANIPULATION, MANAGEMENT, MOVEMENT, CONTROL, DISPLAY, SWITCHING, INTER-
CHANGE, TRANSMISSION, OR RECEPTION OF DATA INCLUDING, BUT NOT LIMITED
TO, HARDWARE, SOFTWARE, FIRMWARE, PROGRAMS, SYSTEMS, NETWORKS, INFRAS-
TRUCTURE, MEDIA, AND RELATED MATERIAL USED TO AUTOMATICALLY AND ELEC-
TRONICALLY COLLECT, RECEIVE, ACCESS, TRANSMIT, DISPLAY, STORE, RECORD,
RETRIEVE, ANALYZE, EVALUATE, PROCESS, CLASSIFY, MANIPULATE, MANAGE,
ASSIMILATE, CONTROL, COMMUNICATE, EXCHANGE, CONVERT, CONVERGE, INTER-
FACE, SWITCH, OR DISSEMINATE DATA OF ANY KIND OR FORM. Goods may be
either new or used.
§ 3. Paragraphs g and i of subdivision 2 of section 161 of the state
finance law, as added by chapter 83 of the laws of 1995, are amended to
read as follows:
g. Consult with and advise the commissioner on strategic INFORMATION
technology investments that will facilitate electronic access to the
terms and conditions of existing procurement contracts, promote elec-
tronic commerce including, but not limited to, payment to vendors,
promote and enhance the efficiency of the procurement of products and
services by or for state agencies and produce useful information that
supports state procurement operations, management, analysis and decision
making including, but not limited to, data concerning the status and use
of procurement contracts and the number and type of contracts and award
recipients;
i. Establish and, from time to time, amend guidelines for the procure-
ment of services and INFORMATION technology in accordance with the
S. 5624 4
provisions of this article. Such guidelines shall ensure the wise and
prudent use of public money in the best interest of the taxpayers of the
state; guard against favoritism, improvidence, extravagance, fraud and
corruption; and ensure that service contracts are awarded on the basis
of best value, including, but not limited to, the following criteria:
quality, cost, and efficiency;
§ 4. Paragraph k of subdivision 1 and subdivision 6 of section 163 of
the state finance law, paragraph k of subdivision 1 as added by section
36 of part L of chapter 55 of the laws of 2012, subdivision 6 as amended
by chapter 569 of the laws of 2015, are amended to read as follows:
k. "Authorized user" or "non-state agency purchaser" means (i) any
officer, body or agency of the state or of a political subdivision or a
district therein, or fire company or volunteer ambulance service as such
are defined in section one hundred of the general municipal law, to make
purchases of commodities, services and INFORMATION technology through
the office of general services' centralized contracts, pursuant to the
provisions of section one hundred four of the general municipal law;
(ii) any county extension service association as authorized under subdi-
vision eight of section two hundred twenty-four of the county law; (iii)
any association or other entity as specified in and in accordance with
section one hundred nine-a of the general municipal law; (iv) any asso-
ciation, consortium or group of privately owned or municipal, federal or
state owned or operated hospitals, medical schools, other health related
facilities or voluntary ambulance services, which have entered into a
contract and made mutual arrangements for the joint purchase of commod-
ities, services and INFORMATION technology pursuant to section twenty-
eight hundred three-a of the public health law; (v) any institution for
the instruction of the deaf or of the blind listed in section forty-two
hundred one of the education law; (vi) any qualified non-profit-making
agency for the blind approved by the commissioner of the office of chil-
dren and family services or the office of temporary and disability
assistance; (vii) any qualified charitable non-profit-making agency for
the severely disabled approved by the commissioner of education; (viii)
any hospital or residential health care facility as defined in section
twenty-eight hundred one of the public health law; (ix) any private
not-for-profit mental hygiene facility as defined in section 1.03 of the
mental hygiene law; (x) any public authority or public benefit corpo-
ration of the state, including the port authority of New York and New
Jersey and the interstate environmental commission; (xi) any public
library, association library, library system, cooperative library
system, the New York Library Association, and the New York State Associ-
ation of Library Boards or any other library except those which are
operated by for profit entities; (xii) any other association or entity
as specified in state law, to make purchases of commodities, services
and INFORMATION technology through the office of general services'
centralized contracts. Such qualified non-profit-making agencies for the
blind and severely disabled may make purchases from the correctional
industries program of the department of corrections and community super-
vision subject to rules pursuant to the correction law.
6. Discretionary buying thresholds. Pursuant to guidelines established
by the state procurement council: the commissioner may purchase services
and commodities in an amount not exceeding eighty-five thousand dollars
without a formal competitive process; state agencies may purchase
services and commodities in an amount not exceeding fifty thousand
dollars without a formal competitive process; and state agencies may
purchase commodities or services from small business concerns or those
S. 5624 5
certified pursuant to articles fifteen-A and seventeen-B of the execu-
tive law, or commodities or INFORMATION technology that are recycled or
remanufactured, or commodities that are food, including milk and milk
products, grown, produced or harvested in New York state in an amount
not exceeding two hundred thousand dollars without a formal competitive
process.
§ 5. Section 163 of the state finance law is amended by adding a new
subdivision 16 to read as follows:
16. ALTERNATIVE PROCUREMENT METHODS FOR THE ACQUISITION OF NON-CON-
STRUCTION RELATED COMMODITIES, SERVICES AND INFORMATION TECHNOLOGY. A.
WHEN THE COMMISSIONER OR A STATE AGENCY DETERMINES THAT IT IS IN THE
BEST INTEREST OF THE STATE TO DEVELOP A PROCUREMENT METHOD NOT AUTHOR-
IZED BY THIS SECTION FOR NON-CONSTRUCTION RELATED COMMODITIES, SERVICES
AND INFORMATION TECHNOLOGY, THE COMMISSIONER OR STATE AGENCY IS HEREBY
AUTHORIZED TO DEVELOP AND USE SUCH METHOD FOR A SPECIFIC CONTRACT AWARD.
SUCH DETERMINATION SHALL BE MADE IN WRITING AND SHALL INCLUDE DOCUMENTA-
TION FOR THE PROCUREMENT RECORD THAT SUCH ALTERNATIVE PROCUREMENT METH-
OD: (I) WOULD SERVE THE INTEREST OF THE STATE BETTER THAN OTHER METHODS
CURRENTLY AVAILABLE UNDER THIS SECTION; (II) CAN BE APPLIED ON A COMPET-
ITIVE, FAIR AND EQUITABLE BASIS; AND (III) CONTAINS AN APPROPRIATE EVAL-
UATION METHODOLOGY THAT CONSIDERS BOTH COST AND QUALITATIVE EVALUATION
FACTORS. SUCH ALTERNATIVE PROCUREMENT METHOD SHALL BE SUBJECT TO ALL
OTHER APPLICABLE PROVISIONS OF THIS SECTION. THE COMMISSIONER OR A STATE
AGENCY MAY NOT UNDERTAKE AN ALTERNATIVE PROCUREMENT METHOD UNTIL THE
COMPTROLLER HAS DETERMINED THAT THE PROPOSED ALTERNATIVE PROCUREMENT
METHOD IS IN THE BEST INTEREST OF THE STATE; CAN BE APPLIED ON A COMPET-
ITIVE, FAIR AND EQUITABLE BASIS; AND UTILIZES AN APPROPRIATE EVALUATION
METHODOLOGY THAT CONSIDERS BOTH COST AND QUALITATIVE EVALUATION FACTORS.
B. WHEN USING AN ALTERNATIVE PROCUREMENT METHOD AUTHORIZED BY THIS
SUBDIVISION, THE COMMISSIONER OR AGENCY SHALL INCLUDE IN ITS SOLICITA-
TION A DETAILED DESCRIPTION OF THE PROPOSED METHOD OF AWARD. IN ADVANCE
OF THE INITIAL RECEIPT OF OFFERS OR BIDS, THE COMMISSIONER OR STATE
AGENCY SHALL DETERMINE AND DOCUMENT IN THE PROCUREMENT RECORD THE EVALU-
ATION CRITERIA AND PROCESS TO BE USED IN THE DETERMINATION OF THE
SPECIFIC CONTRACT AWARD AND THE PROCESS BY WHICH THE EVALUATION AND
SELECTION SHALL BE CONDUCTED. IN ADDITION TO THE REQUIREMENTS SET FORTH
IN PARAGRAPH G OF SUBDIVISION NINE OF THIS SECTION, THE PROCUREMENT
RECORD SHALL DOCUMENT THE BASIS UPON WHICH THE AGENCY HAS DETERMINED
THAT POTENTIAL VENDORS WILL BE ABLE TO RESPOND WITH VIABLE BIDS TO SUCH
ALTERNATIVE PROCUREMENT.
C. NOTWITHSTANDING THE PROVISIONS OF SUBDIVISION FIVE OF SECTION THREE
HUNDRED FIFTY-FIVE OF THE EDUCATION LAW TO THE CONTRARY OR SECTION
SIXTY-TWO HUNDRED EIGHTEEN OF THE EDUCATION LAW, BEFORE ANY CONTRACT
AWARDED UNDER THIS SECTION WHICH EXCEEDS FIFTY THOUSAND DOLLARS IN
AMOUNT BECOMES EFFECTIVE IT MUST BE APPROVED BY THE COMPTROLLER AND
FILED IN HIS OR HER OFFICE.
D. FOR EACH PROCUREMENT AWARDED PURSUANT TO THIS SECTION, THE COMMIS-
SIONER OR STATE AGENCY SHALL SUBMIT TO THE GOVERNOR, THE COMPTROLLER AND
THE HEADS OF THE FISCAL COMMITTEES OF EACH HOUSE OF THE STATE LEGISLA-
TURE NO LATER THAN THE MID-POINT OF THE INITIAL TERM OF THE RESULTANT
CONTRACT A REPORT ASSESSING THE VALIDITY OF THE PROCUREMENT METHOD AND
COMPARING ITS RESULTS TO PROCUREMENT METHODS FOR COMMODITIES AND
SERVICES OR INFORMATION TECHNOLOGY.
§ 6. Section 163 of the state finance law is amended by adding a new
subdivision 17 to read as follows:
S. 5624 6
17. COMPETITIVE NEGOTIATION. A. WHERE THE BASIS OF AWARD IS BEST VALUE
AND AFTER COMPLETING AN INITIAL EVALUATION AND SCORING, A STATE AGENCY
MAY CHOOSE TO EITHER MAKE AN AWARD TO THE BEST VALUE OFFERER PURSUANT TO
SUBDIVISION FOUR OF THIS SECTION OR UNDERTAKE COMPETITIVE NEGOTIATIONS
WITH ALL OFFERERS OF PROPOSALS SUSCEPTIBLE OF BEING SELECTED FOR
CONTRACT AWARD, SO LONG AS THE AGENCY RESERVES THE RIGHT TO CONDUCT SUCH
COMPETITIVE NEGOTIATIONS IN THE SOLICITATION. THE NEGOTIATIONS SHALL BE
CONDUCTED AS PROVIDED IN PARAGRAPH D OF THIS SUBDIVISION.
B. COMPETITIVE NEGOTIATION MAY ONLY BE USED WHERE:
(I) AT LEAST TWO OFFERERS ARE DEEMED SUSCEPTIBLE OF BEING SELECTED FOR
CONTRACT AWARD;
(II) IN THE EVENT THAT THE SOLICITATION INCLUDES OPTIONAL COMPONENTS,
THE SOLICITATION SHALL REQUIRE ALL OFFERERS TO PROVIDE A PROPOSAL FOR
ALL OPTIONS OR OTHERWISE BE DEEMED NONRESPONSIVE; AND
(III) THE AGENCY HAS DETERMINED THAT USE OF COMPETITIVE NEGOTIATION
WILL MAXIMIZE THE AGENCY'S ABILITY TO OBTAIN BEST VALUE, BASED ON THE
AGENCY'S NEED AND THE SPECIFICATIONS SET FORTH IN THE SOLICITATION.
C. THE AGENCY MUST DOCUMENT IN THE PROCUREMENT RECORD AND IN ADVANCE
OF THE INITIAL RECEIPT OF OFFERS:
(I) THE METHODOLOGY, WHICH SHALL BE QUANTIFIABLE AND BASED ON A
COMPARISON OF THE PROPOSALS' PRICE AND TECHNICAL MERIT, THAT WILL BE
EMPLOYED TO ARRIVE AT A COMPETITIVE RANGE THAT WILL DETERMINE WHICH
PROPOSALS ARE TO BE CONSIDERED SUSCEPTIBLE TO AWARD; AND
(II) A FAIR AND IMPARTIAL NEGOTIATION PROCEDURE, FORMULATED WITH THE
GOAL OF ENSURING SUSTAINED COMPETITION UNTIL AN AWARD IS RENDERED AND
OBTAINING THE BEST VALUE FOR THE STATE.
D. THE AGENCY SHALL CONDUCT WRITTEN OR ORAL NEGOTIATIONS WITH ALL
RESPONSIBLE OFFERERS WHO SUBMIT PROPOSALS IN THE COMPETITIVE RANGE. IN
THE COURSE OF SUCH NEGOTIATIONS, THE AGENCY SHALL:
(I) ADVISE THE OFFERER OF WAYS IN WHICH ITS PROPOSAL MAY BE IMPROVED
SO THAT THE OFFERER IS GIVEN AN OPPORTUNITY TO BETTER MEET THE AGENCY'S
NEEDS;
(II) CLARIFY ANY UNCERTAINTIES, AMBIGUITIES OR NON-MATERIAL DEVIATIONS
IN THE PROPOSAL;
(III) ADVISE THE OFFERER OF ANY TECHNICAL COMPONENTS IN ITS PROPOSAL
THAT MAY NOT BE NECESSARY TO SATISFY THE AGENCY'S REQUIREMENTS AND
REQUEST MODIFICATIONS AS APPROPRIATE;
(IV) PROVIDE THE OFFERER A REASONABLE OPPORTUNITY TO SUBMIT ANY COST,
TECHNICAL OR OTHER REVISIONS TO ITS PROPOSAL IN RESPONSE TO ISSUES IDEN-
TIFIED DURING NEGOTIATIONS; AND
(V) DOCUMENT ANY ORAL NEGOTIATIONS FOR THE PROCUREMENT RECORD.
E. NEGOTIATIONS MAY BE TAILORED TO EACH OFFERER'S PROPOSAL PROVIDED,
HOWEVER, SUCH NEGOTIATIONS SHALL BE CONDUCTED WITH EACH OFFERER WITHIN
THE COMPETITIVE RANGE WITHOUT DISCLOSING INFORMATION CONCERNING ANY
OTHER OFFERERS' PROPOSALS OR THE EVALUATION PROCESS. NEGOTIATIONS SHALL
CULMINATE IN A TECHNICAL SOLUTION FROM EACH OFFERER REMAINING WITHIN THE
COMPETITIVE RANGE THAT IS DEEMED ACCEPTABLE TO MEET THE AGENCY'S NEED AS
SET FORTH IN THE SOLICITATION. AFTER DISCUSSION OF THESE TECHNICAL
SOLUTIONS IS COMPLETED, THE AGENCY SHALL SOLICIT A BEST AND FINAL PRICE
PROPOSAL FROM ALL OFFERERS WITHIN THE COMPETITIVE RANGE. THE BEST AND
FINAL PRICE SOLICITATION SHALL ENSURE THAT ALL OFFERERS ARE AFFORDED AN
EQUAL OPPORTUNITY TO RESPOND WITHIN A SPECIFIED PERIOD OF TIME.
F. WHERE AN AGENCY CHOOSES TO UNDERTAKE COMPETITIVE NEGOTIATIONS
INSTEAD OF MAKING A BEST VALUE AWARD AFTER AN INITIAL EVALUATION AND
SCORING, THE FINAL AWARD SHALL BE MADE TO THE LOWEST RESPONSIBLE OFFERER
AFTER RECEIVING A BEST AND FINAL PRICE ON A REVISED ACCEPTABLE PROPOSAL.
S. 5624 7
§ 7. Subdivision 9 of section 163 of the state finance law is amended
by adding a new paragraph c-1 to read as follows:
C-1. WHERE A STATE AGENCY DETERMINES THAT NON-MATERIAL CHANGES TO THE
SPECIFICATIONS AS SET FORTH IN THE SOLICITATION WOULD BE IN THE BEST
INTEREST OF THE STATE AND, WHEN PROVIDED FOR IN THE SOLICITATION, STATE
AGENCIES MAY REQUEST BEST AND FINAL OFFERS, WHICH SHALL BE IN WRITING
AND SOLICITED IN THE SAME MANNER FROM ALL OFFERERS DETERMINED TO BE
SUSCEPTIBLE OF BEING SELECTED FOR CONTRACT AWARD, WITH THE INTENT OF
ALLOWING AN OFFERER TO REVISE ITS COST; PROVIDED, HOWEVER, THAT A STATE
AGENCY MAY NOT MAKE A MODIFICATION TO THE SOLICITATION IF SUCH MODIFICA-
TION WOULD PREJUDICE ANY BIDDER OR POTENTIAL BIDDER AND, PROVIDED
FURTHER, THAT NO BEST AND FINAL OFFER MAY BE ACCEPTED OR CONSIDERED BY A
STATE AGENCY UNLESS SUCH BEST AND FINAL OFFER IS SUBMITTED IN RESPONSE
TO A REQUEST BY THE STATE AGENCY.
§ 8. Paragraph e of subdivision 10 of section 163 of the state finance
law, as amended by chapter 137 of the laws of 2008, is amended to read
as follows:
e. The commissioner may authorize purchases required by state agencies
or other authorized purchasers by letting a contract pursuant to a writ-
ten agreement, or by approving the use of a contract let by any depart-
ment, agency or instrumentality of the United States government and/or
any department, agency, office, political subdivision or instrumentality
of any state or states. A state agency purchaser shall document in the
procurement record its rationale for the use of a contract let by any
department, agency or instrumentality of the United States government or
any department, agency, office, political subdivision or instrumentality
of any other state or states. Such rationale shall include, but need not
be limited to, a determination of need, a consideration of the procure-
ment method by which the contract was awarded, an analysis of alterna-
tive procurement sources including an explanation why a competitive
procurement or the use of a centralized contract let by the commissioner
is not in the best interest of the state, and the reasonableness of
cost. THE AUTHORITY TO USE A CONTRACT LET BY ANOTHER GOVERNMENTAL ENTITY
PURSUANT TO THIS PARAGRAPH IS INTENDED TO BENEFIT THE STATE BY USING
CONTRACTS IN PLACE THAT PROVIDE FOR THE SAME SERVICE OR COMMODITY SOUGHT
BY A STATE AGENCY AT A PRICE DETERMINED TO BE REASONABLE BY THE STATE
AGENCY. SUCH CONTRACTS ARE NOT INTENDED TO BE USED PRIMARILY TO AVOID
COMPETITIVE BIDDING. USE OF MULTIPLE AWARD CONTRACTS PURSUANT TO THIS
PARAGRAPH SHALL FOLLOW THE SAME BASIS OF SELECTION AMONG THE MULTIPLE
AWARDEES AS WAS PRESCRIBED BY THE ORIGINAL CONTRACTING GOVERNMENTAL
ENTITY.
§ 9. Subdivision 3 of section 112 of the state finance law, as amended
by section 2-c of part F of chapter 57 of the laws of 2016, is amended
to read as follows:
3. A contract or other instrument wherein the state or any of its
officers, agencies, boards or commissions agrees to give a consideration
other than the payment of money, when the value or reasonably estimated
value of such consideration exceeds twenty-five thousand dollars, shall
not become a valid enforceable contract unless such contract or other
instrument shall first be approved by the comptroller and filed in his
office. FOR PURPOSES OF THIS SUBDIVISION, WHERE CONSIDERATION CANNOT BE
DETERMINED IN TERMS OF MONETARY VALUE, IT SHALL BE VALUED IN TERMS OF
INTRINSIC VALUE.
§ 10. Subdivision (m) of section 1-c of the legislative law, as added
by chapter 1 of the laws of 2005, is amended to read as follows:
S. 5624 8
(m) The term "restricted period" shall mean the period of time
commencing with the earliest POSTING, ON A GOVERNMENTAL ENTITY'S
WEBSITE, IN A NEWSPAPER OF GENERAL CIRCULATION, OR IN THE PROCUREMENT
OPPORTUNITIES NEWSLETTER IN ACCORDANCE WITH ARTICLE FOUR-C OF THE
ECONOMIC DEVELOPMENT LAW OF written notice, advertisement or solicita-
tion of a request for proposal, invitation for bids, or solicitation of
proposals, or any other method PROVIDED FOR BY LAW OR REGULATION for
soliciting a response from offerers intending to result in a procurement
contract with a [state agency, either house of the state legislature,
the unified court system, or a municipal agency, as that term is defined
by paragraph (ii) of subdivision (s) of this section, and ending with
the final contract award and approval by the state agency, either house
of the state legislature, the unified court system, or a municipal agen-
cy, as that term is defined by paragraph (ii) of subdivision (s) of this
section,] GOVERNMENTAL ENTITY AND ENDING WITH THE FINAL CONTRACT AWARD
AND APPROVAL BY THE GOVERNMENTAL ENTITY and, where applicable, the state
comptroller. FOR THE PURPOSES OF THIS SUBDIVISION, "GOVERNMENTAL ENTITY"
SHALL HAVE THE SAME MEANING AS PARAGRAPH A OF SUBDIVISION ONE OF SECTION
ONE HUNDRED THIRTY-NINE-J OF THE STATE FINANCE LAW.
§ 11. This act shall take effect immediately; provided, however,
section one of this act shall take effect on the one hundred eightieth
day after it shall have become a law; provided, further, however, that
the provisions of sections four, five, six, seven, eight and nine of
this act shall apply to any procurement initiated on or after such date;
provided, further however, that the amendments to section 163 of the
state finance law made by sections four, five, six, seven and eight of
this act shall not affect the repeal of such section as provided in
subdivision 5 of section 362 of chapter 83 of the laws of 1995, as
amended, and shall be deemed repealed therewith.
