NY State Senate Bill 2009-S3362

Archive: Last Bill Status - In Senate Committee Finance Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

Please enter your contact information

First Name

Last Name

Email Address

A valid email address is required.

Home address is used to determine the senate district in which you reside. Your support or opposition to this bill is then shared immediately with the senator who represents you.

Optional services from the NY State Senate:

Create an account. An account allows you to officially support or oppose key legislation, sign petitions with a single click, and follow issues, committees, and bills that matter to you. When you create an account, you agree to this platform's terms of participation.

Include a custom message for your Senator? (Optional)

Enter a message to your senator. Many New Yorkers use this to share the reasoning behind their support or opposition to the bill. Others might share a personal anecdote about how the bill would affect them or people they care about.

Actions

View Actions

Date of Action	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jan 06, 2010	referred to finance
Mar 17, 2009	referred to finance

2009-S3362 (ACTIVE) - Details

Current Committee:: Senate Finance
Law Section:: State Finance Law
Laws Affected:: Amd §§139-j & 139-k, St Fin L

2009-S3362 (ACTIVE) - Summary

Restricts contracts in the procurement process.

2009-S3362 (ACTIVE) - Sponsor Memo

                                 BILL NUMBER:  S3362


 PURPOSE :

This bill clarifies provisions relating to restrictions on
communications in the procurement process and the recording of such
communications under the Procurement Lobbying Law.

 SUMMARY OF PROVISIONS :

Sections 1 through 4 of the bill amend subdivision 1 of State Finance
Law (SFL) §§ 139-j to clarify certain definitions related to contact
restrictions during the procurement process.

Section 5 of the bill amends SFL § 139-j(3) dealing with the nature of
or circumstances under which certain communications with a
governmental entity relative to a governmental procurement are
permissible.

Sections 6 through 9 of the bill amend subdivision 1 of SFL . 139-k to
clarify certain definitions related to disclosure of contacts and the
responsibility of offerers during the procurement process.

Section 10 of the bill amends SFL § 139-k(4) relating to the
imposition of recording requirements on governmental officials who are

improperly contacted with respect to a governmental procurement.

Section 11 contains the effective date.

 EXISTING LAW :

SFL §§ 139-j and 139-k set forth restrictions on contacts during the
procurement process and provide for recording of such contacts.

 LEGISLATIVE HISTORY :

This is a new proposal.

 STATEMENT IN SUPPORT :

Concerns about ensuring that the public procurement process was
competitive, open and transparent with a level playing field for
obtaining contract awards by participating vendors resulted in the
enactment in 2005 of the State Procurement Lobbying Law, which
restricts contacts during the procurement process and provides for the
recording of such contacts. Such provisions are important to maintain
the integrity of the public procurement infrastructure and to continue
with best practices in the establishment and administration of State
contracts.

Implementation of these restrictions on communications during a
procurement and recording of certain communications, has been subject
to deliberation and examination by the Advisory Council on Procurement
Lobbying (ACPL). The ACPL is the public body that was directed by law
(See Legislative Law § 1-t) to provide guidance to public entities
regarding their compliance with these statutes. Based on the ACPL's
experience with implementation of the procurement lobbying statutes,
the ACPL is recommending certain clarifying amendments to facilitate
compliance and increase the effectiveness of these provisions. This
bill will implement those amendments.

The key changes proposed to the Procurement Lobbying Law are to: (1)
clarify the definition of "offerer" to exempt concerned citizens and
others who are not reasonably likely to receive a direct or indirect
financial or personal benefit from the governmental procurement; (2)
clarify when the "restricted period" commences for purposes of
applying the procurement lobbying law; (3) align the types of
procurement contracts covered by the law with the requirement for a
formal competitive solicitation and pre-audit by OSC; (4) expand the
listing of exempt contracts to include emergency, sole source,
preferred source and trade show contracts and organ transplant
reimbursement because of the nature of such contracts; (5) expand the
list of permissible subject matter communications to include contacts
between governmental entities and offerers for the purpose of
evaluating bids as well as participating in demonstrations, interviews
or other means of exchanging information provided for in a
solicitation; and, (6) clarify the recording requirements that the law
imposes on governmental employees to provide for a reasonableness
standard in terms of the information that must be recorded.

 BUDGET IMPLICATIONS :

None.

 EFFECTIVE DATE :
This bill takes effect 90 days after it becomes law.

2009-S3362 (ACTIVE) - Bill Text download pdf

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

                                  3362

                       2009-2010 Regular Sessions

                            I N  S E N A T E

                             March 17, 2009
                               ___________

Introduced  by  Sen.  KRUGER  --  (at  request  of the Office of General
  Services) -- 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 restricting
  contacts in the procurement process  and  the  recording  of  contacts
  relating thereto

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

  Section 1. Paragraph c of subdivision 1 of section 139-j of the  state
finance  law,  as  added by chapter 1 of the laws of 2005, is amended to
read as follows:
  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 GOVERN-
MENTAL ENTITY REGARDING the governmental procurement.
  S 2. Subparagraph (i) of paragraph e of subdivision 1 of section 139-j
of the state finance law, as added by chapter 1 of the laws of 2005,  is
amended to read as follows:
  (i)  [the  preparation or terms of] the specifications, bid documents,
request  for  proposals,  or  evaluation  criteria  for  a   procurement
contract,
  S  3.  Paragraph  g  of  subdivision  1  of section 139-j of the state
finance law, as amended by chapter 395 of the laws of 2006,  is  amended
to read as follows:
  g.  "Procurement  contract" shall mean any contract or other agreement
for an article of procurement MADE BY ANY GOVERNMENTAL ENTITY  involving
an  estimated  annualized  expenditure  in  excess  of [fifteen thousand
dollars. Grants,] THE GREATEST AMOUNT, AS APPLICABLE  FOR  SUCH  GOVERN-
MENTAL  ENTITY,  SET  FORTH  IN  SUBDIVISION  TWO OF SECTION ONE HUNDRED
TWELVE OF THIS CHAPTER, PARAGRAPH B OF SUBDIVISION  SIXTEEN  OF  SECTION
THREE  HUNDRED FIFTY-FIVE AND SUBDIVISION A OF SECTION SIXTY-TWO HUNDRED

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD07915-03-9

S. 3362                             2

EIGHTEEN OF THE EDUCATION LAW AND/OR SUBDIVISIONS  SEVEN  AND  EIGHT  OF
SECTION  TWELVE  HUNDRED  NINE,  SUBDIVISIONS  TWO  AND THREE OF SECTION
TWELVE   HUNDRED   SIXTY-FIVE-A   AND   SECTION   TWENTY-EIGHT   HUNDRED
SEVENTY-NINE  OF  THE PUBLIC AUTHORITIES LAW. THE FOLLOWING TRANSACTIONS
SHALL NOT BE DEEMED  PROCUREMENT  CONTRACTS:  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 [and]; eminent domain transactions [shall not be deemed  procure-
ment  contracts]; EMERGENCY CONTRACTS; SOLE SOURCE CONTRACTS; THE ACQUI-
SITION OF COMMODITIES AND SERVICES UNDER THE PREFERRED  SOURCE  PROGRAM;
CONTRACTS  GOVERNING ORGAN TRANSPLANTS; AND CONTRACTS ALLOWING FOR STATE
PARTICIPATION IN A TRADE SHOW.
  S 4. Paragraph h of subdivision  1  of  section  139-j  of  the  state
finance  law,  as  added by chapter 1 of the laws of 2005, is amended to
read as follows:
  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 procure-
ment, PROVIDED THAT NO PERSON OR ENTITY SHALL BE CONSIDERED AN "OFFERER"
IF HE, SHE OR IT, AND/OR ANY PERSON OR ENTITY  FOR  WHOSE  BENEFIT  SUCH
CONTACT IS MADE, IS NOT REASONABLY LIKELY TO RECEIVE, EITHER DIRECTLY OR
INDIRECTLY,  IN KIND, OR OTHERWISE, A FINANCIAL OR PERSONAL BENEFIT FROM
SUCH GOVERNMENTAL PROCUREMENT.
  S 5. Paragraph a of subdivision  3  of  section  139-j  of  the  state
finance  law,  as  added by chapter 1 of the laws of 2005, is amended to
read as follows:
  a. shall contact only the [persons]  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:
  (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 to a  designated  contact  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) ANY ORAL, WRITTEN OR ELECTRONIC COMMUNICATIONS BETWEEN THE PROCUR-
ING  GOVERNMENTAL  ENTITY  AND  AN  OFFERER  WHO  HAS SUBMITTED A BID OR
RESPONDED TO A SOLICITATION, THAT IS IN RESPONSE TO  THE  REQUEST  OF  A
GOVERNMENTAL  ENTITY  AND  THAT PERTAINS SOLELY TO AN EVALUATION OF THAT
OFFERER'S BID OR RESPONSE MADE  PRIOR  TO  AN  AWARD  OF  A  PROCUREMENT
CONTRACT.
  (4)  participation  in a DEMONSTRATION, INTERVIEW, conference OR OTHER
MEANS FOR  EXCHANGE  OF  INFORMATION  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;

S. 3362                             3

  [(4)] (5) 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 procur-
ing governmental entity, provided that any such written complaints shall
become a part of the procurement record;
  [(5)]  (6)  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)] (7) contacts between designated governmental entity staff of the
procuring  governmental entity and an offerer to request the review of a
procurement contract award;
  [(7)] (8) (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 conduct-
ing the procurement seeking a final administrative determination, or  in
a subsequent judicial proceeding; or
  (b)  complaints of alleged improper conduct in a governmental procure-
ment 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 comp-
troller'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 [the
state finance law] THIS CHAPTER; or
  (d) complaints of alleged improper conduct in a governmental  procure-
ment  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 the state finance law or any other  provision  of  law
dealing with the governmental procurement process.
  S  6.    Paragraph  c  of  subdivision 1 of section 139-k of the state
finance law, as added by chapter 1 of the laws of 2005,  is  amended  to
read as follows:
  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 GOVERN-
MENTAL ENTITY REGARDING the governmental procurement.
  S 7. Subparagraph (i) of paragraph e of subdivision 1 of section 139-k
of  the state finance law, as added by chapter 1 of the laws of 2005, is
amended to read as follows:
  (i) [the preparation or terms of] the specifications,  bid  documents,
request   for  proposals,  or  evaluation  criteria  for  a  procurement
contract,
  S 8. Paragraph g of subdivision  1  of  section  139-k  of  the  state
finance  law,  as amended by chapter 395 of the laws of 2006, is amended
to read as follows:
  g. "Procurement contract" shall mean any contract or  other  agreement
for  an article of procurement MADE BY ANY GOVERNMENTAL ENTITY involving
an estimated annualized  expenditure  in  excess  of  [fifteen  thousand
dollars] THE AMOUNTS SET FORTH IN SUBDIVISION TWO OF SECTION ONE HUNDRED

S. 3362                             4

TWELVE  OF  THE STATE FINANCE LAW, PARAGRAPH B OF SUBDIVISION SIXTEEN OF
SECTION THREE HUNDRED FIFTY-FIVE AND SUBDIVISION A OF SECTION  SIXTY-TWO
HUNDRED  EIGHTEEN  OF  THE  EDUCATION  LAW AND/OR SUBDIVISIONS SEVEN AND
EIGHT  OF  SECTION  TWELVE  HUNDRED  NINE, SUBDIVISIONS TWO AND THREE OF
SECTION TWELVE HUNDRED SIXTY-FIVE-A  AND  SECTION  TWENTY-EIGHT  HUNDRED
SEVENTY-NINE  OF THE PUBLIC AUTHORITIES LAW.  THE FOLLOWING TRANSACTIONS
SHALL NOT BE DEEMED PROCUREMENT  CONTRACTS:  [Grants,]  GRANTS;  article
eleven-B  state finance law contracts[,]; program contracts between not-
for-profit organizations, as defined in article eleven-B of  this  chap-
ter,  and  the unified court system[,]; intergovernmental agreements[,];
railroad and  utility  force  accounts[,];  utility  relocation  project
agreements  or  orders  [and]; eminent domain transactions [shall not be
deemed  procurement  contracts]  ;  EMERGENCY  CONTRACTS;  SOLE   SOURCE
CONTRACTS;  THE  ACQUISITION  OF  COMMODITIES  AND  SERVICES  UNDER  THE
PREFERRED SOURCE PROGRAM; CONTRACTS  GOVERNING  ORGAN  TRANSPLANTS;  AND
CONTRACTS ALLOWING FOR PARTICIPATION IN A TRADE SHOW.
  S  9.  Paragraph  h  of  subdivision  1  of section 139-k of the state
finance law, as added by chapter 1 of the laws of 2005,  is  amended  to
read as follows:
  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  procure-
ment, PROVIDED THAT NO PERSON OR ENTITY SHALL BE CONSIDERED AN "OFFERER"
IF  HE,  SHE  OR  IT, AND/OR ANY PERSON OR ENTITY FOR WHOSE BENEFIT SUCH
CONTACT IS MADE, IS NOT REASONABLY LIKELY TO RECEIVE, EITHER DIRECTLY OR
INDIRECTLY, IN KIND, OR OTHERWISE, A FINANCIAL OR PERSONAL BENEFIT  FROM
SUCH GOVERNMENTAL PROCUREMENT.
  S  10.  Subdivision  4  of  section 139-k of the state finance law, as
added by chapter 1 of the laws of 2005, is amended to read as follows:
  4. Upon any contact BY  AN  OFFERER  in  the  restricted  period,  the
governmental  entity shall MAKE A REASONABLE ATTEMPT TO obtain the name,
address, telephone number, place of principal employment and  occupation
of  the person or organization making the contact and inquire and record
whether the person or organization making such contact was [the  offerer
or  was] retained, employed or designated by or on behalf of [the offer-
er] AN INDIVIDUAL OR ENTITY to appear before or contact the governmental
entity about the governmental procurement. All recorded  contacts  shall
be included in the procurement record for the procurement contract.
  S  11.  This act shall take effect on the ninetieth day after it shall
have become a law; provided, that:
  a.  procurement contracts for which bid solicitations have been issued
prior to the effective  date  of  this  act  shall  be  subject  to  the
provisions of law in effect at the time of issuance;
  b.  the  amendments  to section 139-j of the state finance law made by
sections one through five of this act shall not  affect  the  repeal  of
such section and shall be deemed repealed therewith; and
  c.  the  amendments  to section 139-k of the state finance law made by
sections six through ten of this act shall not affect the repeal of such
section and shall be deemed repealed therewith.

Comments

Open Legislation is a forum for New York State legislation. All comments are subject to review and community moderation is encouraged.

Comments deemed off-topic, commercial, campaign-related, self-promotional; or that contain profanity, hate or toxic speech; or that link to sites outside of the nysenate.gov domain are not permitted, and will not be published. Attempts to intimidate and silence contributors or deliberately deceive the public, including excessive or extraneous posting/posts, or coordinated activity, are prohibited and may result in the temporary or permanent banning of the user. Comment moderation is generally performed Monday through Friday. By contributing or voting you agree to the Terms of Participation and verify you are over 13.

Create an account. An account allows you to sign petitions with a single click, officially support or oppose key legislation, and follow issues, committees, and bills that matter to you. When you create an account, you agree to this platform's terms of participation.

Find your Senator and share your views on important issues.

Do you support this bill?

Senate Bill S3362

Sponsored By

Archive: Last Bill Status - In Senate Committee Finance Committee

Actions

2009-S3362 (ACTIVE) - Details

2009-S3362 (ACTIVE) - Summary

2009-S3362 (ACTIVE) - Sponsor Memo

2009-S3362 (ACTIVE) - Bill Text download pdf

Comments

Do you support this bill?

Get Status Alerts for 2009-S3362

Senate Bill S3362

Share this bill

Sponsored By

Carl Kruger

Archive: Last Bill Status - In Senate Committee Finance Committee

Actions

2009-S3362 (ACTIVE) - Details

2009-S3362 (ACTIVE) - Summary

2009-S3362 (ACTIVE) - Sponsor Memo

2009-S3362 (ACTIVE) - Bill Text download pdf

Comments