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

                                  5713

                       2015-2016 Regular Sessions

                            I N  S E N A T E

                              May 29, 2015
                               ___________

Introduced  by Sen. DeFRANCISCO -- (at request of the State Comptroller)
  -- read twice and ordered printed, and when printed to be committed to
  the Committee on Finance

AN ACT to amend the state finance law, in relation to allowing the state
  comptroller to excuse non-material deviations  in  a  procurement;  in
  relation  to  participation  by state agencies in a system used by the
  comptroller to compile vendor responsibility information; in  relation
  to  defining  information  technology  for  procurement  purposes;  in
  relation to authorizing the commissioner  of  the  office  of  general
  services and state agencies to develop alternative procurement methods
  not  otherwise  authorized  by  law  under  certain  circumstances; in
  relation to authorizing competitive negotiation concluding with a best
  and final offer; in relation to clarifying the use of best  and  final
  offers  for invitations for bids and requests for proposals for goods,
  services and technology; in relation to providing  unsuccessful  offe-
  rors a reasonable opportunity for debriefing; in relation to requiring
  competition  and  increased  oversight  for  private  vendor preferred
  source opportunities; in relation  to  increasing  the  threshold  for
  construction bonds and requiring performance bonds for certain instal-
  lation projects; in relation to clarifying the use of contracts let by
  another  governmental  agency;  in  relation to reports on centralized
  contracts; in relation to increasing the threshold for the state comp-
  troller's approval of certain contracts and clarifying  the  valuation
  of  non-cash  contracts  by  the  state  comptroller; and to amend the
  education law, in relation to defining construction related services

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

  Section  1. Subdivision 12 of section 163 of the state finance law, as
added by chapter 83 of the laws of 1995, is amended to read as follows:
  12. Review by the office of  the  state  comptroller.  Review  by  the
office  of the state comptroller shall be in accordance with section one

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD09149-05-5
              

S. 5713                             2

hundred twelve of this chapter. WHERE THE  CONTRACTING  AGENCY  HAS  NOT
COMPLIED  WITH  ONE  OR MORE PROVISIONS OF THIS ARTICLE, THE STATE COMP-
TROLLER MAY APPROVE THE AWARDED CONTRACT IF:
  A.  THE  CONTRACTING  AGENCY  DETERMINES  AND  CERTIFIES, BASED UPON A
PREPONDERANCE OF THE EVIDENCE DOCUMENTED IN THE PROCUREMENT RECORD, THAT
THE  NONCOMPLIANCE  WAS  A  NON-MATERIAL  DEVIATION  FROM  ONE  OR  MORE
PROVISIONS  OF  THIS  ARTICLE.  FOR  THE  PURPOSES  OF  THIS SUBDIVISION
"NON-MATERIAL DEVIATION" SHALL MEAN  THAT  SUCH  NONCOMPLIANCE  DID  NOT
PREJUDICE  OR  FAVOR  ANY VENDOR OR POTENTIAL VENDOR, SUCH NONCOMPLIANCE
DID NOT SUBSTANTIALLY AFFECT THE FAIRNESS OF  THE  COMPETITIVE  PROCESS,
AND  THAT  A  NEW  PROCUREMENT  WOULD NOT BE IN THE BEST INTEREST OF THE
STATE.  SUCH DETERMINATION BY THE CONTRACTING AGENCY AND THE STATE COMP-
TROLLER SHALL BE DOCUMENTED IN THE PROCUREMENT RECORD; AND
  B. THE STATE COMPTROLLER CONCURS IN SUCH DETERMINATION.
  S 2. The state finance law is amended by adding a new section 163-c to
read as follows:
  S 163-C. VENDOR RESPONSIBILITY; ONLINE SYSTEM PARTICIPATION. 1.  DEFI-
NITIONS. AS USED IN THIS SECTION THE  FOLLOWING  TERMS  SHALL  HAVE  THE
FOLLOWING MEANINGS:
  A.  "ENROLLMENT"  SHALL  MEAN  THE ESTABLISHMENT OF AN ONLINE SERVICES
ACCOUNT WITH THE STATE COMPTROLLER, INCLUDING, BUT NOT LIMITED  TO,  THE
CREATION  OF  A  UNIQUE  USER  IDENTIFICATION  AND  PASSWORD. ENROLLMENT
PROVIDES A USER ACCESS TO THE SYSTEM.
  B. "ONLINE SERVICES" SHALL MEAN THE SERVICES  PROVIDED  ELECTRONICALLY
AND  SECURELY  BY  THE  STATE  COMPTROLLER FOR THE BENEFIT OF NEW YORK'S
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.

S. 5713                             3

  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.
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.
  S  3.  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,

S. 5713                             4

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.
  S 4. 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
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;
  S 5. Paragraph k of subdivision 1 and subdivisions 6 and 7 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 section 1 of part P of chapter 55 of the  laws  of  2013  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:
  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-

S. 5713                             5

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
certified pursuant to article fifteen-A of the executive law, or commod-
ities  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.
  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  INFORMATION  technology   contracts   require   electronic
submission  as the sole method for the submission of bids for the solic-
itation. State agencies shall undertake no more  than  eighty-five  such
electronic  bid  solicitations, 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, two thousand fifteen. Prior to requiring the elec-
tronic 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 thirty days of the completion of the eighty-
fifth electronic bid solicitation,  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

S. 5713                             6

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  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 and the manner in which the
evaluation process and selection shall be conducted.
  S 6. Paragraph (a) of subdivision  2  of  section  112  of  the  state
finance  law,  as  amended  by section 18 of part L of chapter 55 of the
laws of 2012, is amended to read as follows:
  (a) Before any contract made for or by any state  agency,  department,
board, officer, commission, or institution, except the office of general
services,  shall be executed or become effective, whenever such contract
exceeds fifty thousand dollars in amount and before  any  contract  made
for  or  by  the  office of general services shall be executed or become
effective, whenever such contract exceeds eighty-five  thousand  dollars
in  amount,  it  shall first be approved by the comptroller and filed in
his or her office, with the exception  of  contracts  established  as  a
centralized  contract  through  the  office  of  general  services  [and
purchase orders or other  procurement  transactions  issued  under  such
centralized  contracts]  THAT  WERE  NOT AWARDED PURSUANT TO SUBDIVISION
SIXTEEN OF SECTION ONE HUNDRED SIXTY-THREE OF THIS CHAPTER.   The  comp-
troller  shall  make  a  final  written  determination  with  respect to
approval of such contract within ninety days of the submission  of  such
contract  to  his  or her office unless the comptroller shall notify, in
writing, the state agency, department, board,  officer,  commission,  or
institution,  prior  to the expiration of the ninety day period, and for
good cause, of the need for an extension of not more than fifteen  days,
or  a  reasonable period of time agreed to by such state agency, depart-
ment, board, officer, commission, or institution and provided,  further,
that  such  written determination or extension shall be made part of the
procurement record pursuant to paragraph f of subdivision one of section
one hundred sixty-three of this chapter.
  S 7. 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 AND SERVICES, OR  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 AND
SERVICES, OR 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
DOCUMENTATION  FOR THE PROCUREMENT RECORD THAT SUCH ALTERNATIVE PROCURE-
MENT METHOD: (I) WOULD SERVE THE INTEREST OF THE STATE BETTER THAN OTHER
METHODS CURRENTLY AVAILABLE UNDER THIS SECTION; (II) CAN BE APPLIED ON A
COMPETITIVE, FAIR AND EQUITABLE BASIS; AND (III) CONTAINS AN APPROPRIATE
EVALUATION METHODOLOGY THAT CONSIDERS BOTH COST AND  QUALITATIVE  EVALU-

S. 5713                             7

ATION  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.
  S  8.  Section 163 of the state finance law is amended by adding a new
subdivision 17 to read as follows:
  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

S. 5713                             8

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 9. 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.
  S 9-a. Paragraph c of subdivision  9  of  section  163  of  the  state
finance  law,  as amended by chapter 137 of the laws of 2008, is amended
to read as follows:
  c. Where provided in the  solicitation,  state  agencies  may  require
clarification  from offerers for purposes of assuring a full understand-
ing of responsiveness to the solicitation requirements.  Where  provided
for  in  the  solicitation, revisions may be permitted from all offerers

S. 5713                             9

determined to be susceptible of being selected for contract award, prior
to award. Offerers shall be  accorded  fair  and  equal  treatment  with
respect  to  their opportunity for discussion and revision of offers. [A
state agency shall, upon request, provide a debriefing to any unsuccess-
ful  offerer  that  responded to a request for proposal or an invitation
for bids, regarding the reasons that the proposal or  bid  submitted  by
the  unsuccessful offerer was not selected for an award. The opportunity
for an unsuccessful offerer to seek a debriefing shall be stated in  the
solicitation,  which  shall  provide  a reasonable time for requesting a
debriefing.]
  S 9-b. Subdivision 9 of section  163  of  the  state  finance  law  is
amended by adding a new paragraph h to read as follows:
  H. (I) WITHIN FIFTEEN DAYS OF THE SELECTION OF A SUCCESSFUL OFFEROR BY
A STATE AGENCY AND PRIOR TO THE SUBMISSION FOR APPROVAL OF A CONTRACT TO
THE  OFFICE  OF THE STATE COMPTROLLER IF THAT CONTRACT IS SUBJECT TO THE
APPROVAL OF THE COMPTROLLER, ALL UNSUCCESSFUL OFFERORS SHALL BE  ADVISED
IN  WRITING  OF  THE  COMPLETION OF THE SELECTION PROCESS AND THAT THEIR
OFFER WAS NOT SELECTED FOR THIS AWARD. THIS NOTICE  SHALL  DISCLOSE  THE
IDENTITY OF THE SUCCESSFUL OFFEROR.
  (II)  FOR  ANY  CONTRACT  ESTABLISHED AS A CENTRALIZED CONTRACT BY THE
OFFICE OF GENERAL SERVICES, WITHIN FIFTEEN  DAYS  OF  SELECTION  OF  THE
SUCCESSFUL  OFFEROR  BY THE OFFICE OF GENERAL SERVICES, ALL UNSUCCESSFUL
OFFERORS SHALL BE ADVISED OF THE COMPLETION OF THE SELECTION PROCESS AND
THAT THEIR OFFER WAS NOT SELECTED FOR AWARD. THIS NOTICE SHALL  DISCLOSE
THE IDENTITY OF THE SUCCESSFUL OFFEROR.
  (III)  THE OPPORTUNITY FOR AN UNSUCCESSFUL OFFEROR THAT RESPONDED TO A
REQUEST FOR PROPOSALS OR AN INVITATION FOR BIDS  TO  SEEK  A  DEBRIEFING
SHALL  BE  STATED  IN  THE REQUEST FOR PROPOSALS OR INVITATION FOR BIDS,
WHICH SHALL PROVIDE A REASONABLE TIME FOR REQUESTING A DEBRIEFING.
  (IV) THE STATE AGENCY, UPON THE  TIMELY  REQUEST  OF  AN  UNSUCCESSFUL
OFFEROR,  SHALL  PROVIDE  A REASONABLE OPPORTUNITY FOR A DISCUSSION WITH
AGENCY PERSONNEL WHO WERE INVOLVED IN AND ARE  KNOWLEDGEABLE  ABOUT  THE
PROCUREMENT EVALUATION PROCESS. SUCH DEBRIEFING, SHALL INCLUDE, BUT NEED
NOT BE LIMITED TO: (A) THE REASONS THAT THE PROPOSAL OR BID SUBMITTED BY
THE UNSUCCESSFUL OFFEROR WAS NOT SELECTED FOR AWARD; (B) THE QUALITATIVE
AND  QUANTITATIVE ANALYSIS EMPLOYED BY THE AGENCY IN ASSESSING THE RELA-
TIVE MERITS OF THE OFFERS; (C) THE APPLICATION OF EACH OF THE  SELECTION
CRITERIA  TO  THE  UNSUCCESSFUL  OFFEROR'S  PROPOSAL OR BID; AND (D) THE
REASONS FOR THE SELECTION OF THE WINNING PROPOSAL OR BID. SUCH PERSONNEL
SHALL ALSO PROVIDE, TO THE EXTENT PRACTICABLE, ADVICE  AND  GUIDANCE  TO
THE  UNSUCCESSFUL  OFFEROR  CONCERNING METHODS OF IMPROVING PROPOSALS OR
BIDS BY SUCH OFFEROR.
  S 10. Subdivision 7 of section  162  of  the  state  finance  law,  as
amended  by  chapter  426  of  the  laws  of 2002, is amended to read as
follows:
  7. Partnering with preferred sources. The commissioner of  the  appro-
priate appointing agency as identified in paragraph e of subdivision six
of  this  section,  shall  conduct  one  or more pilot studies whereby a
private vendor may be accorded preferred source status for  purposes  of
this  section. The pilot studies shall seek to ascertain the benefits of
partnerships  between  private  industry  and  those  entities  accorded
preferred  source  status as specified in this section. Preferred source
status under a partnering  arrangement  may  only  be  accorded  when  a
proposal  to  a soliciting agency for commodities or services includes a
binding agreement with one or more of the  entities  accorded  preferred
source status under this section AND WHERE AT LEAST FIFTY PERCENT OF ALL

S. 5713                            10

LABOR INVOLVED IN DELIVERING SERVICES OR COMMODITIES TO THE STATE BY THE
PRIVATE  VENDOR  IS  BEING  PROVIDED  DIRECTLY BY THE INDIVIDUALS OF THE
CLASS OF PREFERRED SOURCE INCLUDING, BUT NOT LIMITED  TO,  INMATES,  THE
DISABLED,  VETERANS  AND  THE  BLIND.  PRIVATE  VENDOR OPPORTUNITIES FOR
PREFERRED SOURCES SHALL BE COMPETITIVELY  AWARDED  AND  THE  PROCUREMENT
SUMMARY,  VENDOR  RESPONSIBILITY SUMMARY AND CONTRACT AGREEMENT SHALL BE
BROUGHT BEFORE THE PROCUREMENT COUNCIL FOR REVIEW. THE STATE  SHALL  NOT
ACCESS  THE  SERVICES  OF  SUCH  PRIVATE VENDOR UNLESS A MAJORITY OF THE
COUNCIL APPROVES. The binding agreement shall provide that:
  (i) The preferred source shall perform the majority of the work neces-
sary to such offering, and
  (ii) The partnering proposal includes bona fide long  term  employment
opportunities for persons who could otherwise be new clients of an enti-
ty previously accorded preferred source status herein, and
  (iii) The partnering proposal offers the solicited services or commod-
ities  at a price less than the price that otherwise would be charged by
a preferred source.
  S 11. Paragraph b of subdivision 3 of section 162 of the state finance
law, as amended by section 164 of subpart B of part C of chapter  62  of
the laws of 2011, is amended to read as follows:
  b. After January first, nineteen hundred ninety-six, upon the applica-
tion  of  the commissioner of corrections and community supervision, the
commissioner of the office of children and family services,  the  office
of  temporary  and  disability  assistance,  the  commissioner of mental
health or the commissioner of education, or a non-profit-making  facili-
tating  agency  designated  by one of the said commissioners pursuant to
paragraph e of subdivision six of this section,  the  state  procurement
council  may  recommend  that  the  commissioner: (i) add commodities or
services to, or (ii) in order to insure that such list reflects  current
production  and/or  availability  of commodities and services, delete at
the request of a preferred source, commodities  or  services  from,  the
list  established  by  paragraph  a of this subdivision. The council may
make a non-binding recommendation to the relevant  preferred  source  to
delete a commodity or service from such list. Additions may be made only
for new services or commodities, or for services or commodities that are
substantially  different  from  those  reflected  on  said list for that
provider. The decision to recommend the addition of services or  commod-
ities  shall be based upon a review of relevant factors as determined by
the council including costs and benefits to be derived from  such  addi-
tion  and  shall  include  an analysis by the office of general services
conducted pursuant to subdivision six of this section; PROVIDED,  HOWEV-
ER, THAT THE PROCUREMENT COUNCIL SHALL NOT RECOMMEND TO THE COMMISSIONER
ANY  APPLICATION  THAT  DOES  NOT  INCLUDE AT LEAST FIFTY PERCENT OF ALL
LABOR INVOLVED IN DELIVERING SERVICES OR COMMODITIES TO THE STATE  BEING
PROVIDED  DIRECTLY  BY  THE INDIVIDUALS OF THE CLASS OF PREFERRED SOURCE
INCLUDING, BUT NOT LIMITED TO, INMATES, THE DISABLED, VETERANS  AND  THE
BLIND.  Unless the state procurement council shall make a recommendation
to the commissioner on any such application within  one  hundred  twenty
days  of  receipt thereof, such application shall be deemed recommended.
In the event that the state procurement  council  shall  deny  any  such
application,  the commissioner or non-profit-making agency which submit-
ted such application may, within thirty days of such denial, appeal such
denial to the commissioner of general  services  who  shall  review  all
materials  submitted  to  the  state procurement council with respect to
such application and who may request such further information or materi-
al as is deemed necessary. Within sixty days of receipt of all  informa-

S. 5713                            11

tion  or  materials  deemed  necessary,  the commissioner shall render a
written final decision on the application which shall  be  binding  upon
the applicant and upon the state procurement council.
  S  12.  Subdivisions  1 and 2 of section 137 of the state finance law,
subdivision 1 as separately amended by section 17 of part MM of  chapter
57  and  chapter 619 of the laws of 2008 and subdivision 2 as amended by
chapter 137 of the laws of 1985, are amended to read as follows:
  1. (A) In addition to other bond or bonds, if any, required by law for
the completion of a work specified in a contract for the prosecution  of
a  public improvement for the state of New York a municipal corporation,
a public benefit corporation or a commission appointed pursuant to  law,
or  in  the  absence of any such requirement, the comptroller may or the
other appropriate official,  respectively,  shall  nevertheless  require
prior  to  the  approval of any such contract a bond guaranteeing prompt
payment of moneys due to all persons furnishing labor  or  materials  to
the  contractor  or  any  subcontractors  in the prosecution of the work
provided for in such contract. Whenever a municipal corporation issues a
permit subject to compliance with section  two  hundred  twenty  of  the
labor law, such permittee or its contractor or subcontractors furnishing
workers  shall  post  a payment bond subject to this section. [Provided,
however, that]
  (B) NOTWITHSTANDING THE PROVISIONS OF PARAGRAPH A OF THIS SUBDIVISION,
all performance bonds and payment bonds may, at the  discretion  of  the
head  of  the state agency, public benefit corporation or commission, or
his or her designee, be dispensed with for  the  completion  of  a  work
specified  in a contract for the prosecution of a public improvement for
the state of New York for which bids are solicited where  the  aggregate
amount  of  the  contract  is  under [one] FIVE hundred thousand dollars
[and]; provided [further], that in a case  where  the  contract  is  not
subject  to  the  multiple  contract  award  requirements of section one
hundred thirty-five of this article, such requirements may be  dispensed
with  where  the head of the state agency, public benefit corporation or
commission finds it to be in the public interest and where the aggregate
amount of the contract awarded or to be awarded is less than two hundred
thousand dollars. Provided further, that in a case where  a  performance
or  payment  bond  is  dispensed with, twenty per centum may be retained
from each progress payment or estimate until the  entire  contract  work
has  been  completed  and  accepted, at which time the head of the state
agency, public benefit corporation  or  commission  shall,  pending  the
payment of the final estimate, pay not to exceed seventy-five per centum
of  the amount of the retained percentage.  THE PROVISIONS OF THIS PARA-
GRAPH SHALL NOT APPLY TO ANY PERFORMANCE BONDS  REQUIRED  IN  CONNECTION
WITH  A MAJOR INSTALLATION PURSUANT TO PARAGRAPH D OF SUBDIVISION TEN OF
SECTION ONE HUNDRED SIXTY-THREE OF THIS CHAPTER.   FOR THE  PURPOSES  OF
THIS  PARAGRAPH  "MAJOR  INSTALLATION"  SHALL  HAVE  THE SAME MEANING AS
PROVIDED IN SECTION ONE HUNDRED SIXTY-THREE OF THIS CHAPTER.
  2. A copy of such payment bond shall be kept in the office of the head
of the department or bureau having charge of the public  improvement  in
connection  with  which the bond was given and a copy shall also be kept
in the office of the comptroller [or other appropriate  official];  such
copies shall be open to public inspection.
  S 13. Subdivision 1 of section 163 of the state finance law is amended
by adding a new paragraph l to read as follows:
  L.   "MAJOR   INSTALLATION"   MEANS  ANY  PROJECT  REQUIRING  BUILDING
CONSTRUCTION OR SITE WORK OR AN INSTALLATION WHERE THE  TOTAL  CHARACTER
OF  THE  WORK  IS NOT CONSTRUCTION BUT INSTEAD THE PURCHASE, PURSUANT TO

S. 5713                            12

THIS SECTION, AND INSTALLATION OF A LARGE PIECE OF EQUIPMENT  WHERE  THE
VALUE OF SUCH PURCHASE IS ONE MILLION DOLLARS OR MORE.
  S  14.  Paragraph  d  of  subdivision  10  of section 163 of the state
finance law, as added by chapter 83 of the laws of 1995, is  amended  to
read as follows:
  d.  It  shall be in the discretion of the commissioner or state agency
to require a bond or other guarantee of performance, and to approve  the
amount,  form  and  sufficiency  thereof; PROVIDED, HOWEVER, THAT IN THE
CASE OF A MAJOR INSTALLATION, SUCH  BOND  OR  GUARANTEE  OF  PERFORMANCE
SHALL  BE  REQUIRED,  AND  THE  COMMISSIONER OR STATE AGENCY MAY, IN ITS
DISCRETION, REQUIRE A BOND GUARANTEEING THE PROMPT PAYMENT OF MONEYS  AS
SET FORTH IN PARAGRAPH A OF SUBDIVISION ONE OF SECTION ONE HUNDRED THIR-
TY-SEVEN OF THIS CHAPTER.
  S  15.  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.
  S  16.  Subdivision  15  of  section  163  of the state finance law is
amended by adding a new paragraph d to read as follows:
  D. IN ADDITION TO OTHER REPORTS  REQUIRED  BY  THIS  SUBDIVISION,  THE
COMMISSIONER  OF  GENERAL SERVICES SHALL PREPARE A REPORT ON THE SAVINGS
ACHIEVED FROM  ALL  CONTRACTS  ESTABLISHED  AS  A  CENTRALIZED  CONTRACT
THROUGH  THE  OFFICE  OF  GENERAL SERVICES PURSUANT TO THIS SECTION, THE
IMPACT  OF  SUCH  CONTRACTS  ON  SMALL,  MINORITY  AND  WOMEN-OWNED  AND
SERVICE-DISABLED  VETERAN-OWNED BUSINESS ENTERPRISES, AND THE EFFECTIVE-
NESS OF SUCH CONTRACTS IN FULFILLING THE PURCHASING NEEDS OF ALL AUTHOR-
IZED USERS OF SUCH CONTRACTS.  SUCH REPORT SHALL BE  SUBMITTED  BY  SUCH
COMMISSIONER  TO  THE  GOVERNOR, THE STATE COMPTROLLER, AND THE HEADS OF
THE FISCAL COMMITTEES OF EACH HOUSE OF THE STATE  LEGISLATURE  NO  LATER
THAN JANUARY FIFTEENTH, TWO THOUSAND SIXTEEN, AND THEREAFTER ANNUALLY ON
OR BEFORE SUCH DATE.

S. 5713                            13

  S  17.  Subdivision  3  of  section  112  of the state finance law, as
amended by chapter 319 of the laws  of  1992,  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 [ten] 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.
  S  18.  Section  350  of  the education law is amended by adding a new
subdivision 14 to read as follows:
  14.  "CONSTRUCTION   RELATED   SERVICES"   MEANS   STUDIES,   SURVEYS,
CONSTRUCTION MANAGEMENT, CONSTRUCTION INSPECTION, EXCAVATION AND SIMILAR
EFFORTS ASSOCIATED WITH CONSTRUCTION OR THE ACQUISITION OF PUBLIC WORKS.
  S  19.  This  act  shall  take  effect immediately; provided, however,
section two 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  one,  five,  seven,  eight,  nine,  nine-a,
nine-b,  thirteen, fourteen, fifteen and sixteen 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 one, five, seven, eight, nine,  nine-a,  nine-b,  thir-
teen,  fourteen,  fifteen  and  sixteen 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.

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

                                 5713--B

                       2015-2016 Regular Sessions

                            I N  S E N A T E

                              May 29, 2015
                               ___________

Introduced by Sens. DeFRANCISCO, FUNKE -- (at request of the State Comp-
  troller)  --  read  twice  and ordered printed, and when printed to be
  committed to the Committee on Finance --  committee  discharged,  bill
  amended,  ordered reprinted as amended and recommitted to said commit-
  tee -- reported favorably from said committee  and  committed  to  the
  Committee  on  Rules  --  committee  discharged, bill amended, ordered
  reprinted as amended and recommitted to said committee

AN ACT to amend the state finance law, in relation to allowing the state
  comptroller to excuse non-material deviations  in  a  procurement;  in
  relation  to  participation  by state agencies in a system used by the
  comptroller to compile vendor responsibility information; in  relation
  to  defining  information  technology  for  procurement  purposes;  in
  relation to authorizing the commissioner  of  the  office  of  general
  services and state agencies to develop alternative procurement methods
  not  otherwise  authorized  by  law  under  certain  circumstances; in
  relation to authorizing competitive negotiation concluding with a best
  and final offer; in relation to clarifying the use of best  and  final
  offers  for invitations for bids and requests for proposals for goods,
  services and technology; in relation to providing  unsuccessful  offe-
  rors  a reasonable opportunity for debriefing; in relation to increas-
  ing the threshold for construction bonds; in  relation  to  clarifying
  the  use  of contracts let by another governmental agency; in relation
  to reports on centralized contracts; and in relation to increasing the
  threshold for the state comptroller's approval  of  certain  contracts
  and  clarifying the valuation of non-cash contracts by the state comp-
  troller

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

  Section  1. Subdivision 12 of section 163 of the state finance law, as
added by chapter 83 of the laws of 1995, is amended to read as follows:

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD09149-10-5

              

S. 5713--B                          2

  12. Review by the office of  the  state  comptroller.  Review  by  the
office  of the state comptroller shall be in accordance with section one
hundred twelve of this  chapter.  IF  THE  CONTRACTING  AGENCY  HAS  NOT
COMPLIED  WITH  ONE  OR MORE PROVISIONS OF THIS ARTICLE, THE STATE COMP-
TROLLER MAY APPROVE THE AWARDED CONTRACT IF:
  A. THE CONTRACTING AGENCY DETERMINES AND CERTIFIES, BASED ON CLEAR AND
CONVINCING EVIDENCE, THAT THE NONCOMPLIANCE WAS A NON-MATERIAL DEVIATION
FROM  ONE  OR  MORE PROVISIONS OF THIS ARTICLE. FOR THE PURPOSES OF THIS
SUBDIVISION "NON-MATERIAL DEVIATION" SHALL MEAN THAT SUCH  NONCOMPLIANCE
DID  NOT PREJUDICE OR FAVOR ANY VENDOR OR POTENTIAL VENDOR, SUCH NONCOM-
PLIANCE DID NOT SUBSTANTIALLY AFFECT THE  FAIRNESS  OF  THE  COMPETITIVE
PROCESS, AND THAT A NEW PROCUREMENT WOULD NOT BE IN THE BEST INTEREST OF
THE  STATE.   SUCH DETERMINATION BY THE CONTRACTING AGENCY AND THE STATE
COMPTROLLER SHALL BE DOCUMENTED IN THE PROCUREMENT RECORD; AND
  B. THE STATE COMPTROLLER CONCURS IN SUCH DETERMINATION.
  S 2. The state finance law is amended by adding a new section 163-c to
read as follows:
  S 163-C. VENDOR RESPONSIBILITY; ONLINE SYSTEM PARTICIPATION. 1.  DEFI-
NITIONS. AS USED IN THIS SECTION THE  FOLLOWING  TERMS  SHALL  HAVE  THE
FOLLOWING MEANINGS:
  A.  "ENROLLMENT"  SHALL  MEAN  THE ESTABLISHMENT OF AN ONLINE SERVICES
ACCOUNT WITH THE STATE COMPTROLLER, INCLUDING, BUT NOT LIMITED  TO,  THE
CREATION  OF  A  UNIQUE  USER  IDENTIFICATION  AND  PASSWORD. ENROLLMENT
PROVIDES A USER ACCESS TO THE SYSTEM.
  B. "ONLINE SERVICES" SHALL MEAN THE SERVICES  PROVIDED  ELECTRONICALLY
AND  SECURELY  BY  THE  STATE  COMPTROLLER FOR THE BENEFIT OF NEW YORK'S
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.

S. 5713--B                          3

  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.
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.
  S 3. 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

S. 5713--B                          4

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.
  S  4.  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
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;
  S  5. Paragraph k of subdivision 1 and subdivisions 6 and 7 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  section  1  of part P of chapter 55 of the laws of 2013 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:
  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

S. 5713--B                          5

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
certified pursuant to article fifteen-A of the executive law, or commod-
ities 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.
  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   INFORMATION   technology  contracts  require  electronic
submission as the sole method for the submission of bids for the  solic-
itation.  State  agencies  shall undertake no more than eighty-five such
electronic bid solicitations, 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, two thousand fifteen. Prior to requiring the elec-
tronic  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 thirty days of the completion of  the  eighty-
fifth  electronic  bid  solicitation,  or  by  April first, two thousand
fifteen, whichever is earlier, the commissioner shall prepare  a  report

S. 5713--B                          6

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 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 and  the  manner  in  which  the
evaluation process and selection shall be conducted.
  S  6.  Paragraph  (a)  of  subdivision  2  of section 112 of the state
finance law, as amended by section 18 of part L of  chapter  55  of  the
laws of 2012, is amended to read as follows:
  (a)  Before  any contract made for or by any state agency, department,
board, officer, commission, or institution, except the office of general
services, shall be executed or become effective, whenever such  contract
exceeds  fifty  thousand  dollars in amount and before any contract made
for or by the office of general services shall  be  executed  or  become
effective,  whenever  such contract exceeds eighty-five thousand dollars
in amount, it shall first be approved by the comptroller  and  filed  in
his  or  her  office,  with  the exception of contracts established as a
centralized  contract  through  the  office  of  general  services  [and
purchase  orders  or  other  procurement  transactions issued under such
centralized contracts] THAT WERE NOT  AWARDED  PURSUANT  TO  SUBDIVISION
SIXTEEN  OF  SECTION ONE HUNDRED SIXTY-THREE OF THIS CHAPTER.  The comp-
troller shall  make  a  final  written  determination  with  respect  to
approval  of  such contract within ninety days of the submission of such
contract to his or her office unless the comptroller  shall  notify,  in
writing,  the  state  agency, department, board, officer, commission, or
institution, prior to the expiration of the ninety day period,  and  for
good  cause, of the need for an extension of not more than fifteen days,
or a reasonable period of time agreed to by such state  agency,  depart-
ment,  board, officer, commission, or institution and provided, further,
that such written determination or extension shall be made part  of  the
procurement record pursuant to paragraph f of subdivision one of section
one hundred sixty-three of this chapter.
  S  7.  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

S. 5713--B                          7

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.
  S 8. Section 163 of the state finance law is amended by adding  a  new
subdivision 17 to read as follows:
  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:

S. 5713--B                          8

  (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 9. 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.
  S 9-a. Paragraph c of subdivision  9  of  section  163  of  the  state
finance  law,  as amended by chapter 137 of the laws of 2008, is amended
to read as follows:
  c. Where provided in the  solicitation,  state  agencies  may  require
clarification  from offerers for purposes of assuring a full understand-

S. 5713--B                          9

ing of responsiveness to the solicitation requirements.  Where  provided
for  in  the  solicitation, revisions may be permitted from all offerers
determined to be susceptible of being selected for contract award, prior
to  award.  Offerers  shall  be  accorded  fair and equal treatment with
respect to their opportunity for discussion and revision of  offers.  [A
state agency shall, upon request, provide a debriefing to any unsuccess-
ful  offerer  that  responded to a request for proposal or an invitation
for bids, regarding the reasons that the proposal or  bid  submitted  by
the  unsuccessful offerer was not selected for an award. The opportunity
for an unsuccessful offerer to seek a debriefing shall be stated in  the
solicitation,  which  shall  provide  a reasonable time for requesting a
debriefing.]
  S 9-b. Subdivision 9 of section  163  of  the  state  finance  law  is
amended by adding a new paragraph h to read as follows:
  H. (I) WITHIN FIFTEEN DAYS OF THE SELECTION OF A SUCCESSFUL OFFEROR BY
A STATE AGENCY AND PRIOR TO THE SUBMISSION FOR APPROVAL OF A CONTRACT TO
THE  OFFICE  OF THE STATE COMPTROLLER IF THAT CONTRACT IS SUBJECT TO THE
APPROVAL OF THE COMPTROLLER, ALL UNSUCCESSFUL OFFERORS SHALL BE  ADVISED
IN  WRITING  OF  THE  COMPLETION OF THE SELECTION PROCESS AND THAT THEIR
OFFER WAS NOT SELECTED FOR THIS AWARD. THIS NOTICE  SHALL  DISCLOSE  THE
IDENTITY OF THE SUCCESSFUL OFFEROR.
  (II)  FOR  ANY  CONTRACT  ESTABLISHED AS A CENTRALIZED CONTRACT BY THE
OFFICE OF GENERAL SERVICES, WITHIN FIFTEEN  DAYS  OF  SELECTION  OF  THE
SUCCESSFUL  OFFEROR  BY THE OFFICE OF GENERAL SERVICES, ALL UNSUCCESSFUL
OFFERORS SHALL BE ADVISED OF THE COMPLETION OF THE SELECTION PROCESS AND
THAT THEIR OFFER WAS NOT SELECTED FOR AWARD. THIS NOTICE SHALL  DISCLOSE
THE IDENTITY OF THE SUCCESSFUL OFFEROR.
  (III)  THE OPPORTUNITY FOR AN UNSUCCESSFUL OFFEROR THAT RESPONDED TO A
REQUEST FOR PROPOSALS OR AN INVITATION FOR BIDS  TO  SEEK  A  DEBRIEFING
SHALL  BE  STATED  IN  THE REQUEST FOR PROPOSALS OR INVITATION FOR BIDS,
WHICH SHALL PROVIDE A REASONABLE TIME FOR REQUESTING A DEBRIEFING.
  (IV) THE STATE AGENCY, UPON THE  TIMELY  REQUEST  OF  AN  UNSUCCESSFUL
OFFEROR,  SHALL  PROVIDE  A REASONABLE OPPORTUNITY FOR A DISCUSSION WITH
AGENCY PERSONNEL WHO WERE INVOLVED IN AND ARE  KNOWLEDGEABLE  ABOUT  THE
PROCUREMENT EVALUATION PROCESS. SUCH DEBRIEFING, SHALL INCLUDE, BUT NEED
NOT BE LIMITED TO: (A) THE REASONS THAT THE PROPOSAL OR BID SUBMITTED BY
THE UNSUCCESSFUL OFFEROR WAS NOT SELECTED FOR AWARD; (B) THE QUALITATIVE
AND  QUANTITATIVE ANALYSIS EMPLOYED BY THE AGENCY IN ASSESSING THE RELA-
TIVE MERITS OF THE OFFERS; (C) THE APPLICATION OF EACH OF THE  SELECTION
CRITERIA  TO  THE  UNSUCCESSFUL  OFFEROR'S  PROPOSAL OR BID; AND (D) THE
REASONS FOR THE SELECTION OF THE WINNING PROPOSAL OR BID. SUCH PERSONNEL
SHALL ALSO PROVIDE, TO THE EXTENT PRACTICABLE, ADVICE  AND  GUIDANCE  TO
THE  UNSUCCESSFUL  OFFEROR  CONCERNING METHODS OF IMPROVING PROPOSALS OR
BIDS BY SUCH OFFEROR.
  S 10. Intentionally omitted.
  S 11. Intentionally omitted.
  S 12. Subdivisions 1 and 2 of section 137 of the  state  finance  law,
subdivision  1 as separately amended by section 17 of part MM of chapter
57 and chapter 619 of the laws of 2008 and subdivision 2 as  amended  by
chapter 137 of the laws of 1985, are amended to read as follows:
  1. (A) In addition to other bond or bonds, if any, required by law for
the  completion of a work specified in a contract for the prosecution of
a public improvement for the state of New York a municipal  corporation,
a  public benefit corporation or a commission appointed pursuant to law,
or in the absence of any such requirement, the comptroller  may  or  the
other  appropriate  official,  respectively,  shall nevertheless require

S. 5713--B                         10

prior to the approval of any such contract a  bond  guaranteeing  prompt
payment  of  moneys  due to all persons furnishing labor or materials to
the contractor or any subcontractors in  the  prosecution  of  the  work
provided for in such contract. Whenever a municipal corporation issues a
permit  subject  to  compliance  with  section two hundred twenty of the
labor law, such permittee or its contractor or subcontractors furnishing
workers shall post a payment bond subject to  this  section.  [Provided,
however, that]
  (B) NOTWITHSTANDING THE PROVISIONS OF PARAGRAPH A OF THIS SUBDIVISION,
all  performance  bonds  and payment bonds may, at the discretion of the
head of the state agency, public benefit corporation or  commission,  or
his  or  her  designee,  be  dispensed with for the completion of a work
specified in a contract for the prosecution of a public improvement  for
the  state  of New York for which bids are solicited where the aggregate
amount of the contract is  under  [one]  TWO  hundred  thousand  dollars
[and];  provided  [further],  that  in  a case where the contract is not
subject to the multiple  contract  award  requirements  of  section  one
hundred  thirty-five of this article, such requirements may be dispensed
with where the head of the state agency, public benefit  corporation  or
commission finds it to be in the public interest and where the aggregate
amount of the contract awarded or to be awarded is less than two hundred
thousand  dollars.  Provided further, that in a case where a performance
or payment bond is dispensed with, twenty per  centum  may  be  retained
from  each  progress  payment or estimate until the entire contract work
has been completed and accepted, at which time the  head  of  the  state
agency,  public  benefit  corporation  or  commission shall, pending the
payment of the final estimate, pay not to exceed seventy-five per centum
of the amount of the retained percentage.
  2. A copy of such payment bond shall be kept in the office of the head
of the department or bureau having charge of the public  improvement  in
connection  with  which the bond was given and a copy shall also be kept
in the office of the comptroller [or other appropriate  official];  such
copies shall be open to public inspection.
  S  13.  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

S. 5713--B                         11

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.
  S  14.  Subdivision  15  of  section  163  of the state finance law is
amended by adding a new paragraph d to read as follows:
  D. IN ADDITION TO OTHER REPORTS  REQUIRED  BY  THIS  SUBDIVISION,  THE
COMMISSIONER  OF  GENERAL SERVICES SHALL PREPARE A REPORT ON THE SAVINGS
ACHIEVED FROM  ALL  CONTRACTS  ESTABLISHED  AS  A  CENTRALIZED  CONTRACT
THROUGH  THE  OFFICE  OF  GENERAL SERVICES PURSUANT TO THIS SECTION, THE
IMPACT  OF  SUCH  CONTRACTS  ON  SMALL,  MINORITY  AND  WOMEN-OWNED  AND
SERVICE-DISABLED  VETERAN-OWNED BUSINESS ENTERPRISES, AND THE EFFECTIVE-
NESS OF SUCH CONTRACTS IN FULFILLING THE PURCHASING NEEDS OF ALL AUTHOR-
IZED USERS OF SUCH CONTRACTS.  SUCH REPORT SHALL BE  SUBMITTED  BY  SUCH
COMMISSIONER  TO  THE  GOVERNOR, THE STATE COMPTROLLER, AND THE HEADS OF
THE FISCAL COMMITTEES OF EACH HOUSE OF THE STATE  LEGISLATURE  NO  LATER
THAN JANUARY FIFTEENTH, TWO THOUSAND SIXTEEN, AND THEREAFTER ANNUALLY ON
OR BEFORE SUCH DATE.
  S  15.  Subdivision  3  of  section  112  of the state finance law, as
amended by chapter 319 of the laws  of  1992,  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 [ten] 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.
  S  16.  This  act  shall  take  effect immediately; provided, however,
section two 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  one,  five,  seven,  eight,  nine,  nine-a,
nine-b, thirteen and fourteen 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 one,
five, seven, eight, nine, nine-a, nine-b, thirteen and fourteen of  this
act  shall not affect the repeal of such section as provided in subdivi-
sion 5 of section 362 of chapter 83 of the laws of 1995, as amended, and
shall be deemed repealed therewith.