NY State Senate Bill 2009-S4085

Archive: Last Bill Status - In Senate Committee Commerce, Economic Development And Small Business 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

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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jan 06, 2010	referred to commerce, economic development and small business
Apr 21, 2009	reported and committed to finance
Apr 09, 2009	referred to commerce, economic development and small business

2009-S4085 (ACTIVE) - Details

See Assembly Version of this Bill:: A8314
Current Committee:: Senate Commerce, Economic Development And Small Business
Law Section:: Economic Development Law
Laws Affected:: Amd §142, Ec Dev L; amd §139-j, add §164-a, St Fin L

2009-S4085 (ACTIVE) - Summary

Relates to the availability of federal funding; further relates to governmental procurement and the purchase of iron, steel and manufactured goods produced in the United States.

2009-S4085 (ACTIVE) - Sponsor Memo

                                 BILL NUMBER:  S4085

 TITLE OF BILL :

An act to amend the economic development law, in relation to the
availability of federal funding; and to amend the state finance law,
in relation to governmental procurement and the purchase of iron,
steel and manufactured goods produced in the United States


 PURPOSE :

This bill makes certain statutory changes to allow for efficient use
of funding provided for by the American Recovery and Reinvestment Act
of 2009 (ARRA), and to avoid any conflict between ARRA and New York
law.

 SUMMARY OF PROVISIONS :

Section 1 of the bill would amend the Economic Development Law (EDL) §
142(2) to add a new paragraph (d) to allow notifications for the
availability of federal funds to be published in the procurement
opportunities newsletter (the "State Contract Reporter"), and sets
forth the necessary elements of such publication.

Section 2 of the bill would amend EDL § 142(2), as it has been amended

by chapter 137 of the laws of 2008, to add a new paragraph (d) to
allow notifications for the availability of federal funds to be
published in the State Contract Reporter, and sets forth the necessary
elements of such publication.

Section 3 of the bill amends State Finance Law § 139-j(2)(a) to allow
a governmental entity involved in a procurement to designate a person
or persons who may be contacted relative to such procurement,
including persons at a state agency, as necessary.

Section 4 of the bill would amend State Finance Law §
139-j(3)(a)(7)(c) to remove the requirement that communications with
the Office of State Comptroller (OSC) during the process of contract
approval be in writing, but requires OSC to make a written record of
any such communications.

Section 5 of the bill would create a new State Finance Law § 164-a,
which would require purchase of iron, steel and manufactured goods
produced in the United States to the extent required by ARRA.

Section 6 of the bill provides that it would be effective immediately.

 EXISTING LAW :

Exec. Law § 146( 4-a) requires notice of the availability of any state
or federal funding to be published in the State Register, except that
it does not require such notice whenever a notice has been published
in the State Contract Reporter pursuant to article four-C of the
economic development law.

EDL § 142 provides for the publication of certain procurement
opportunities in the State Contract Reporter.

State Finance Law § 139-j imposes certain restrictions on contacts
between bidders and State agencies during the procurement process, and
permits only written protests, appeals or complaints to the Office of
the State Comptroller (OSC) during the process of contract approval,
so long as the State Comptroller's approval is required by law, and
such communications and any responses to them are made in writing.

 STATEMENT IN SUPPORT :

ARRA makes available billions of dollars in federal aid to New York
State, which will be crucial to the State in these difficult economic
times. ARRA requires that the money be spent in certain limited time
frames, and subject to certain restrictions. This bill would remove
obstacles to the timely and legally permissible spending of ARRA
funds, in several ways.

First, Exec. Law § 146 presently requires notice of the availability
of State and federal funding to be posted in the State Register for 45
days of notice and comment.  Moreover, more than a week may be spent
between the time the notice is submitted and the time of publication.
This proposed amendment would allow notices of ARRA funding to be made
in the State Contract Reporter for a IS-day period. This would avoid
unnecessary delay that could limit the State's ability to timely
disperse ARRA funds, while still allowing for transparency and wide
public dissemination of information on funding availability.

Second, the bill would revise a provision in the 2005 Procurement
Lobbying Reform Act (the Act) that banned all oral communications
between bidders and the Office of State Comptroller (OSC) during the
review of a contract award. This provision, because it prevents
necessary informational inquiries from being presented and answered
orally, has greatly slowed the protest process. In light of the time
limits imposed by ARRA, a number of agencies - including OSC and the
Office of General Services - have suggested that such requirements
will impede compliance with ARRA' s time limits.  Moreover, the goal
these provisions seek to advance - to make transparent bidder
discussions with OSC - can be advanced by requiring that any such
conversations be memorialized. This bill therefore amends the Act to
allow for oral communications between OSC and bidders during the
contract review process, provided a written record is kept of such
conversations. It also allows any agencies involved in a procurement
to designate their own contacts. Because the advantage of such
revision is not limited to ARRA, this provision would apply to all
future procurements.

Third, ARRA requires all steel, iron and manufactured goods used in
ARRA funded projects to be made in the United States, except where
there is a federal certification that this is not in the public
interest, or will raise prices more than 25%.  New York courts,
however, have in the past struck down such "buy American" provisions
as inconsistent with State Finance Law competitive bidding
requirements. See Am. Institute for Imported Steel v. Office of
General Svcs., 365 N.Y.S.2d 56 (3d Dep't 1975), aff'd 38 N.Y.2d 991
(1976). Therefore, a legislative change is necessary to implement this
provision of ARRA.

In sum, this legislation will remove statutory obstacles to the
implementation of ARRA in New York State, and thereby will facilitate
to use of ARRA funds for economic recovery.

 BUDGET IMPLICATIONS :

None.

 EFFECTIVE DATE :
This bill will be effective upon enactment.

2009-S4085 (ACTIVE) - Bill Text download pdf

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

                                  4085

                       2009-2010 Regular Sessions

                            I N  S E N A T E

                              April 9, 2009
                               ___________

Introduced  by  Sen.  STACHOWSKI -- (at request of the Governor) -- read
  twice and ordered printed, and when printed to  be  committed  to  the
  Committee on Commerce, Economic Development and Small Business

AN  ACT to amend the economic development law, in relation to the avail-
  ability of federal funding; and to amend the  state  finance  law,  in
  relation  to  governmental procurement and the purchase of iron, steel
  and manufactured goods produced in the United States

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

  Section  1.   Subdivision 2 of section 142 of the economic development
law, as added by chapter 564 of the laws of 1988, is amended by adding a
new paragraph (d) to read as follows:
  (D) FOR THE AVAILABILITY OF FEDERAL FUNDING PROVIDED PURSUANT  TO  THE
FEDERAL  AMERICAN RECOVERY AND REINVESTMENT ACT OF 2009: (I) THE NAME OF
THE AGENCY SEEKING APPLICATIONS; (II) THE IDENTIFICATION NUMBER OR TITLE
OF THE FUNDING AVAILABILITY; (III) A BRIEF DESCRIPTION OF  THE  PURPOSES
OR  ACTIVITY  FOR  WHICH  FUNDING  IS  AVAILABLE,  ANY  RESTRICTIONS  ON
LOCATIONS, AND THE DURATION OF THE FUNDING; (IV) THE  ADDRESS  TO  WHICH
PROPOSALS ARE TO BE SUBMITTED; (V) THE DATE WHEN PROPOSALS ARE DUE; (VI)
A DESCRIPTION OF ANY ELIGIBILITY OR QUALIFICATION REQUIREMENT OR PREFER-
ENCE;  (VII) A STATEMENT AS TO WHETHER THE PURPOSE OR ACTIVITY SPECIFIED
MAY BE FULFILLED BY A SUBCONTRACTING, JOINT VENTURE,  OR  OTHER  COOPER-
ATIVE  ARRANGEMENT; (VIII) ANY OTHER INFORMATION DEEMED USEFUL TO POTEN-
TIAL APPLICANTS; AND (IX) THE NAME, ADDRESS, AND TELEPHONE NUMBER OF THE
PERSON TO BE CONTACTED FOR ADDITIONAL INFORMATION.
  S 2. Subdivision 2 of section 142 of the economic development law,  as
amended  by  chapter 137 of the laws of 2008, is amended by adding a new
paragraph (d) to read as follows:
  (D) FOR THE AVAILABILITY OF FEDERAL FUNDING PROVIDED PURSUANT  TO  THE
FEDERAL  AMERICAN RECOVERY AND REINVESTMENT ACT OF 2009: (I) THE NAME OF
THE AGENCY SEEKING APPLICATIONS; (II) THE IDENTIFICATION NUMBER OR TITLE

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD12031-04-9

S. 4085                             2

OF THE FUNDING AVAILABILITY; (III) A BRIEF DESCRIPTION OF  THE  PURPOSES
OR  ACTIVITY  FOR  WHICH  FUNDING  IS  AVAILABLE,  ANY  RESTRICTIONS  ON
LOCATIONS, AND THE DURATION OF THE FUNDING; (IV) THE  ADDRESS  TO  WHICH
PROPOSALS ARE TO BE SUBMITTED; (V) THE DATE WHEN PROPOSALS ARE DUE; (VI)
A DESCRIPTION OF ANY ELIGIBILITY OR QUALIFICATION REQUIREMENT OR PREFER-
ENCE;  (VII) A STATEMENT AS TO WHETHER THE PURPOSE OR ACTIVITY SPECIFIED
MAY BE FULFILLED BY A SUBCONTRACTING, JOINT VENTURE,  OR  OTHER  COOPER-
ATIVE  ARRANGEMENT; (VIII) ANY OTHER INFORMATION DEEMED USEFUL TO POTEN-
TIAL APPLICANTS; AND (IX) THE NAME, ADDRESS, AND TELEPHONE NUMBER OF THE
PERSON TO BE CONTACTED FOR ADDITIONAL INFORMATION.
  S 3. Paragraph a of subdivision  2  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. designate, with regard to each governmental procurement,  a  person
or persons who may be contacted by offerers relative to the governmental
procurement;  ANY  OTHER GOVERNMENTAL ENTITY INVOLVED IN THE PROCUREMENT
PROCESS MAY ALSO DESIGNATE A PERSON OR  PERSONS  WHO  MAY  BE  CONTACTED
RELATIVE TO THE GOVERNMENTAL PROCUREMENT AS NECESSARY;
  S  4.  Clause (c) of subparagraph 7 of 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:
  (c)  [written]  protests,  appeals  or  complaints  to the state comp-
troller's office during the process  of  contract  approval,  where  the
state  comptroller's approval is required by law[, and where such commu-
nications and any responses thereto are made in writing and]. THE  STATE
COMPTROLLER SHALL MAKE A RECORD OF SUCH COMMUNICATIONS AND ANY RESPONSES
THERETO WHICH shall be entered [in] INTO the procurement record pursuant
to section one hundred sixty-three of [the state finance law] THIS CHAP-
TER; or
  S 5. The state finance law is amended by adding a new section 164-a to
read as follows:
  S  164-A.  PURCHASE  OF IRON, STEEL AND MANUFACTURED GOODS PRODUCED IN
THE UNITED STATES.  NOTWITHSTANDING  ANY  OTHER  PROVISION  OF  LAW,  NO
PROJECT  FOR  THE  CONSTRUCTION,  ALTERATION, MAINTENANCE OR REPAIR OF A
PUBLIC BUILDING OR PUBLIC WORK USING FUNDS PROVIDED  UNDER  THE  FEDERAL
AMERICAN  RECOVERY AND REINVESTMENT ACT OF 2009 SHALL BE APPROVED UNLESS
ALL OF THE IRON, STEEL AND MANUFACTURED GOODS USED IN  THE  PROJECT  ARE
PRODUCED  IN THE UNITED STATES, EXCEPT WHERE THERE IS A DETAILED WRITTEN
STATEMENT BY THE HEAD OF THE FEDERAL DEPARTMENT OR  AGENCY  INVOLVED  IN
THE PROVISION OF SUCH FUNDS IN THE FEDERAL REGISTER THAT:
  (1)  APPLYING THE TERMS OF THIS SECTION WOULD BE INCONSISTENT WITH THE
PUBLIC INTEREST;
  (2) IRON, STEEL AND THE RELEVANT MANUFACTURED GOODS ARE  NOT  PRODUCED
IN  THE  UNITED STATES IN SUFFICIENT AND REASONABLY AVAILABLE QUANTITIES
AND OF A SATISFACTORY QUANTITY; OR
  (3) INCLUSION OF IRON, STEEL AND MANUFACTURED GOODS  PRODUCED  IN  THE
UNITED STATES WILL INCREASE THE COST OF THE OVERALL PROJECT BY MORE THAN
TWENTY-FIVE PERCENT.
  S  6.  This act shall take effect immediately; provided, however, that
the amendment to subdivision 2 of section 142 of the  economic  develop-
ment  law  made by section two of this act shall take effect on the same
date and in the same manner as chapter 137 of the  laws  of  2008  takes
effect;  provided,  further, that the amendments to section 139-j of the
state finance law made by sections three and four of this act shall  not
affect  the  repeal  of such section and shall be deemed repealed there-
with.

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Senate Bill S4085

Sponsored By

Archive: Last Bill Status - In Senate Committee Commerce, Economic Development And Small Business Committee

2009-S4085 (ACTIVE) - Details

2009-S4085 (ACTIVE) - Summary

2009-S4085 (ACTIVE) - Sponsor Memo

2009-S4085 (ACTIVE) - Bill Text download pdf

Comments

Senate Bill S4085

Share this bill

Sponsored By

William T. Stachowski

Archive: Last Bill Status - In Senate Committee Commerce, Economic Development And Small Business Committee

2009-S4085 (ACTIVE) - Details

2009-S4085 (ACTIVE) - Summary

2009-S4085 (ACTIVE) - Sponsor Memo

2009-S4085 (ACTIVE) - Bill Text download pdf

Comments