* § 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
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) a 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,
technology, 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
governmental entity's conduct or decision regarding the governmental
procurement.

d. "Proposal" shall mean any bid, quotation, offer or response to a
governmental entity's solicitation of submissions relating to a
procurement.

e. "Governmental procurement" shall mean: (i) the 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 financial benefit to the offerer.

f. "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 solicitation 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
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
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
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 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
procurement 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
franchise.

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
procurement 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
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, 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 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 subdivision five of
section seventy-three or section seventy-four of the public officers
law;

3. Each offerer that contacts a governmental entity about a
governmental procurement shall only make permissible contacts with
respect to the governmental procurement, which shall mean that the
offerer:

a. shall contact only the 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 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 thirty-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 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
procurement to the attorney general, inspector general, district
attorney, or court of competent jurisdiction; or

(c) protests, appeals or complaints to the state comptroller's office
during the process of contract approval, where the state comptroller's
approval is required, provided that the state comptroller shall make a
record of such communications and any response thereto which shall be
entered into the procurement record pursuant to section one hundred
sixty-three of this chapter; or

(d) complaints of alleged improper conduct in a governmental
procurement 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;

(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, or the commissioner of education, and (ii)
the qualified charitable non-profit-making agencies for the blind, and
qualified charitable non-profit-making agencies 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 paragraph;

(10) Complaints by minority-owned business enterprises or women-owned
business enterprises, certified as such by the division of minority and
women's business development, to the minority and women-owned business
enterprise statewide advocate concerning the procuring governmental
entity's failure to comply with the requirements of section three
hundred fifteen of the executive law;

(11) Communications between the minority and women-owned business
enterprise statewide advocate and the procuring governmental entity in
furtherance of an investigation of the minority and women-owned business
enterprise statewide advocate pursuant to section three hundred twelve-a
of the executive law.

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 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
subdivision 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
governmental 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
governmental procurement being conducted by a governmental entity other
than the state legislature, or a member of the state legislature or
legislative 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 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.

6. a. Every governmental entity shall incorporate a summary of the
policy and prohibitions regarding permissible contacts during a
governmental 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
responsibility of the proposed awardee in accordance with paragraph f of
subdivision 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
responsibilities 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
governmental 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
procurement, 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
investigating 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
responsible 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
imposition of sanctions if such violations have been found to exist.

10. a. Upon notification of any allegation of a violation of the
provisions of subdivision three of this section with regard to
permissible 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
determination 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 shareholders (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 statement describing the basis for such a finding. Any
subsequent determination 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-responsibility 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 information or otherwise cooperate with
the governmental entity in administering this provision shall be
considered by the governmental entity in its determination of
responsibility; provided, further, that the governmental 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 determined 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
guidelines 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
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
procurement 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
comptroller'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
this chapter; or

(d) complaints of alleged improper conduct in a governmental
procurement 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 this chapter or any other provision of law dealing
with the governmental procurement process.

* NB Repealed July 31, 2026