Senate Bill S5817B

2011-2012 Legislative Session

Relates to program procurements, clarifying the definition of services, allowing the comptroller to excuse non-material deviations in procurement procedures

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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

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Actions

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Date of Action	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jun 08, 2012	print number 5817b
Jun 08, 2012	amend (t) and recommit to finance
Feb 23, 2012	print number 5817a
Feb 23, 2012	amend (t) and recommit to finance
Jan 04, 2012	referred to finance
Jun 17, 2011	referred to rules

Bill Amendments

2011-S5817 - Details

See Assembly Version of this Bill:: A9343
Current Committee:: Senate Finance
Law Section:: State Finance Law
Laws Affected:: Add Art XI-C §§179-ff - 179-ii, amd §§160 & 163, St Fin L
Versions Introduced in 2013-2014 Legislative Session:: S4076, A3884

2011-S5817 - Summary

Relates to program procurements; clarifies the definition of services; allows the comptroller to excuse non-material deviations in procurement procedures and allows for pilot procurement methods; allows for publishment of non-competitive awards in the procurement opportunities newsletter.

2011-S5817 - Sponsor Memo

                                BILL NUMBER:S5817

TITLE OF BILL:
An act
to amend the state finance
law, in relation to program procurements, clarifying the definition of
services, allowing the state comptroller to excuse non-material
deviations in
procurement procedures and allowing for pilot procurement methods

PURPOSE:
To update certain provisions or the State Finance law to
provide a structure and methodology for certain procurements made by
not-for-profit corporations and to respond to operational
requirements for procurements not currently addressed in law.

SUMMARY OF PROVISIONS:
Section 1 of this bill adds a new Article
11-C to the State Finance Law to establish a statutory framework for
the award of State contracts traditionally called "grants" that are
awarded without the formal competitive process required by Article 11
of the State Finance Law. Such contracts are referred to as "program
procurements."

Section 179-ff of Article 11-C adopts the current Article 11
definitions of "costs," "emergency," "price," "procurement record,"

"program," "responsible or responsibility," "responsive," "single
source," "sole source," "specification or requirement," and "state
agency or state agencies," adopts the current General Construction
Law definition of "public corporation," and adds a new "program
procurement" definition. A program procurement is a procurement
undertaken by a state agency for a broad public purpose authorized by
law that is intended to benefit a community or a portion of a
community and is to be accomplished in whole or in part through a
contract or contracts with an association, partnership, joint
venture, firm, company, corporation, public corporation,
not-for-profit organization or a combination of such entities. A
program procurement provides the proposer or applicant with wide
discretion and latitude in the manner in which the purpose is to be
accomplished with few specific limitations on the scope of the
proposal or application. A program procurement is not undertaken by a
state agency primarily to obtain commodities, services or technology.
Examples of program procurements include foreclosure prevention and
mitigation, cancer screening, school based health, transportation
services, after school programs, cultural services, nutrition
outreach, displaced homemakers, rape crisis and respite services.

Section 179-gg provides that program procurements are exempt from the
formal competitive requirements of Article 11 of the State Finance
Law if (i) they are open only to not-for-profit corporations,
municipal corporations, district corporations, or public benefit
corporations, or (ii) they are open to profit-seeking corporations
and granted an exemption by the Comptroller from the requirements of
such Article.


Section 179-hh prescribes a procedure for a State agency to submit a
written request for an exemption from the requirements of Article
11 of the State Finance Law and for the Comptroller to make a written
determination granting or denying an exemption on the basis of the
proposed procurement's conformance with the definition of the program
procurement.

Section 179-ii specifies the procedures to be used and the
conditions that may attach to a program procurement including (i)
documentation of the method of award prior to the receipt of
proposals or applications, (ii) advance public notice, in the State
Contract Reporter, (iii) a request for proposals or other solicitation
document specifying the
requirements for a responsive proposal or application and the manner
in which
evaluations and selections will be made, (iv) selection and contract
awards must be on the basis of technical merit with due consideration
given to the reasonableness of costs, consistent with the solicitation
document and the award methodology documented in the
procurement record and following a determination by the procuring
agency that the selected proposer or applicant is a responsible
party, (v) the amount of an award may be reduced in accordance with a
methodology defined in the procurement record prior to the receipt of
proposals. (vi) discretionary awards in amounts less than $50,000
may be made without a formal competitive process. (vii) contract
awards shall be on the basis of the highest ranking in accordance
with the predetermined evaluation methodology, or on an emergency,
sole source, or single source basis documented in the procurement
record, and (viii) review and approval of program procurement
contracts will be conducted by the Comptroller in accordance with
Section 112 of the State Finance Law.

Section 2 of this bill amends Subdivision 7 of Section 160 of the
State Finance Law to amend the definition of services to exclude
those services provided by a not-for-profit organizations in
accordance with the provisions of Article 11-B of the State Finance
Law, or services obtained through a program procurement process in
accordance with Article 11-C of the State Finance Law.

Section 3 of this bill amends Subdivision 12 of Section 163 of the
State Finance Law to allow the Comptroller to excuse non-material
deviations in procurement procedures if (i) the contracting agency
determines and certifies, based upon a preponderance of the evidence
documented in the procurement record, that the noncompliance did not
prejudice or favor any vendor or potential vendor and that a new
procurement would not be in the best interest of the state, and
(ii) the Comptroller concurs in such determination.

Section 4 of this bill adds a new Subdivision 13-a to Section 163 of
the State Finance Law to provide for pilot procurement projects if
(i) the procuring agency demonstrates that a pilot procurement method
would better serve the interest of the State than other methods
currently available under Article 11 of the State Finance Law and
that the pilot procurement method is applicable on a fair and
equitable basis. and (ii) the Comptroller concurs. For each pilot
procurement project contract. the procuring agency shall submit to the
Comptroller, not later than the mid-point of the tem1 of the resultant


contract. a report assessing the efficacy of the pilot procurement
method.

Section 5 of this bill provides for an immediate effective date.

PRIOR LEGISLATIVE HISTORY:
New Bill.

JUSTIFICATION:
The Procurement Stewardship Act was enacted sixteen
years ago (Chapter 83, Laws of 1995). The Act codified many
procurement standards the Office of the State Comptroller was already
using to review and approve State contracts for goods and services.
Since enactment of such Act, a number of procedural issues have
become apparent. These issues, which require legislative resolution,
include the lack of statutory
authority for the award of program procurements, the inability of
the Office of the State Comptroller to waive non-material
deviations in a proposed state contract, and the inability of a state
agency to use, on a pilot basis for a specific contract award, a
procurement method developed by such agency that does not fit within
the requirements of the Procurement Stewardship Act.

PROGRAM PROCUREMENTS:
When Article 11 was added to the State Finance Law in 1995 it
codified procedures for the procurement or goods and services.
Currently, there is no  statutory authority governing the award
of program procurements, commonly known as grants.  The
Procurement Stewardship Act should be amended to establish a
statutory framework for such awards to recognize that for-profit
entities, as well as not-for-profit
organizations often compete for grant-type awards
for services that have traditionally been confined to the
not-for-profit arena. Currently. the award of grants to fund
specific programs run by not-for-profits is not subject to the same
competitive standards as the law prescribes for other types of
procurements. Once the competition involves for-profit entities.
however, the rules of the Procurement Stewardship Act apply even
though they may not make sense for this type of procurement. This
bill denies such procurements as "program procurements" and provides
for consistent treatment whether or not profit-seeking firms are being
enlisted to participate in public programs. Since, under this bill,
a State agency will be able to conduct a program procurement open
to profit-seeking entities only if the Comptroller
grants an exemption from the requirements of Article 11, any
concern about the possibility that State agencies might abuse the
program procurement process should be alleviated.

COMPTROLLER'S AUTHORITY TO WAIVE NON-MATERIAL
DEVIATIONS:
The Office
of the State Comptroller regularly encounters circumstances where the
contracting agency has unwittingly deviated from formal competitive
bidding requirements. Where the agency has otherwise conducted a fair
competition, and the deviation does not favor the winning proposer or
prejudice the losing proposers or potential proposers (or in other
words is not material to the outcome of the procurement). the


Comptroller's staff often attempts to salvage the procurement by
approving the resulting contract on a single source basis. The
rationale for this approach is that approving such contracts is in
the best interests of the State, since in these instances it is
highly likely that the same proposer would prevail in a new
procurement competition. Thus, scarce State resources would be wasted
by conducting a new procurement. The bill authorizes the Comptroller
to approve such contracts if (i) the procuring agency certifies, on
the basis of a preponderance of the evidence documented in the
procurement record, that the noncompliance did not prejudice or favor
any vendor or potential vendor and that a new solicitation would not
be in the best interests of the State, and (ii)
the Comptroller concurs in such determination.

PILOT PROCUREMENT METHODS:
When a State agency develops a
procurement method that does not fit within the requirements of the
Procurement Stewardship Act, the
agency should be able to use such a method on a pilot basis for a
specific contract award to secure the best outcome for the State. The
bill authorizes the Comptroller to approve a contract awarded on the
basis of a pilot procurement method as long as (i) the contracting
agency makes a determination, documented in the procurement record,
that such a pilot procurement method better serves the interest of
the State than other procurement methods available under the Act and
can be applied on a fair and equitable basis, and (ii) the
Comptroller approves the pilot procurement method prior to the
procurement. To effectively monitor the success or failure of the
pilot procurement method the procuring State agency must file a
report with the Comptroller by the mid-tem1 of the resulting contract.

The Comptroller recommends enactment of this bill to improve
contracting practices in the State.

BUDGET IMPLICATIONS:
This bill has no significant fiscal impact.

EFFECTIVE DATE:
This bill would take effect immediately.

2011-S5817 - Bill Text download pdf

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

                                  5817

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                              June 17, 2011
                               ___________

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

AN ACT to amend the state finance law, in relation to  program  procure-
  ments, clarifying the definition of services, allowing the state comp-
  troller  to  excuse  non-material deviations in procurement procedures
  and allowing for pilot procurement methods

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

  Section  1.   The state finance law is amended by adding a new article
11-C to read as follows:
                              ARTICLE XI-C
                          PROGRAM PROCUREMENTS
SECTION 179-FF. DEFINITIONS.
        179-GG. PROGRAM PROCUREMENTS.
        179-HH. REQUEST FOR EXEMPTION.
        179-II. PROGRAM PROCUREMENT PROCESS.
  S 179-FF. DEFINITIONS. AS USED IN THIS  ARTICLE  THE  FOLLOWING  TERMS
SHALL HAVE THE FOLLOWING MEANINGS UNLESS OTHERWISE SPECIFIED:
  1.  "COSTS" SHALL BE QUANTIFIABLE AND MAY INCLUDE, WITHOUT LIMITATION,
THE PRICE OF PROVIDING THE GIVEN GOOD OR SERVICE AND THE ADMINISTRATIVE,
TRAINING, STORAGE, MAINTENANCE OR OTHER OVERHEAD EXPENSE ASSOCIATED WITH
A GIVEN GOOD OR SERVICE.
  2. "EMERGENCY" MEANS AN URGENT AND UNEXPECTED REQUIREMENT WHERE PUBLIC
HEALTH, SAFETY, OR WELFARE OR THE CONSERVATION OF PUBLIC RESOURCES IS AT
RISK.
  3. "PRICE" MEANS THE AMOUNT OF MONEY SET AS CONSIDERATION FOR  A  GOOD
OR  SERVICE  AND  MAY  INCLUDE WHEN APPLICABLE AND WHEN SPECIFIED IN THE
PROPOSAL/APPLICATION, DELIVERY CHARGES, INSTALLATION CHARGES  AND  OTHER
COSTS.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD10876-03-1

S. 5817                             2

  4.  "PROCUREMENT RECORD" MEANS DOCUMENTATION OF THE DECISIONS MADE AND
THE APPROACH TAKEN IN THE PROCUREMENT PROCESS.
  5.  "PROGRAM"  MEANS  A PROVISION OF LAW AUTHORIZING A STATE AGENCY TO
UNDERTAKE ACTIVITIES THAT ARE TO BE ACCOMPLISHED IN  WHOLE  OR  IN  PART
THROUGH  CONTRACTS  WITH CERTAIN ENTITIES INCLUDING, BUT NOT LIMITED TO,
NOT-FOR-PROFIT ORGANIZATIONS, FOR-PROFIT  ORGANIZATIONS,  MUNICIPALITIES
OR ANY COMBINATION THEREOF.
  6. "PROGRAM PROCUREMENT" MEANS A PROCUREMENT WHICH:
  A.  IS UNDERTAKEN FOR A BROAD PUBLIC PURPOSE AUTHORIZED BY LAW AND NOT
UNDERTAKEN BY A STATE AGENCY PRIMARILY TO OBTAIN  COMMODITIES,  SERVICES
OR TECHNOLOGY FOR SUCH AGENCY; AND
  B. IS INTENDED TO BENEFIT A COMMUNITY OR A PORTION OF A COMMUNITY; AND
  C. IS ACCOMPLISHED IN WHOLE OR IN PART THROUGH A CONTRACT OR CONTRACTS
WITH  AN  ASSOCIATION, PARTNERSHIP, JOINT VENTURE, FIRM, COMPANY, CORPO-
RATION, PUBLIC CORPORATION, NOT-FOR-PROFIT ORGANIZATION OR A COMBINATION
OF SUCH ENTITIES; AND
  D. HAS BEEN GRANTED AN EXEMPTION PURSUANT TO THE PROVISIONS OF SECTION
ONE HUNDRED SEVENTY-NINE-HH OF THIS  ARTICLE  WHERE  SUCH  EXEMPTION  IS
REQUIRED BY SECTION ONE HUNDRED SEVENTY-NINE-GG OF THIS ARTICLE.
  A  PROGRAM  PROCUREMENT  PROVIDES  THE PROPOSER OR APPLICANT WITH WIDE
DISCRETION AND LATITUDE IN THE MANNER IN WHICH  THE  PURPOSE  IS  TO  BE
ACCOMPLISHED  WITH FEW SPECIFIC LIMITATIONS ON THE SCOPE OF THE PROPOSAL
OR APPLICATION.
  7. "PUBLIC CORPORATION" MEANS A CITY, TOWN, VILLAGE, SCHOOL  DISTRICT,
A  DISTRICT  CORPORATION  OR A PUBLIC BENEFIT CORPORATION AS THOSE TERMS
ARE DEFINED IN SECTION SIXTY-SIX OF THE GENERAL CONSTRUCTION LAW.
  8. "RESPONSIBLE" OR  "RESPONSIBILITY"  MEANS  THE  FINANCIAL  ABILITY,
LEGAL CAPACITY, INTEGRITY, AND PAST PERFORMANCE OF A BUSINESS ENTITY AND
AS SUCH TERMS HAVE BEEN INTERPRETED RELATIVE TO PUBLIC PROCUREMENTS.
  9.  "RESPONSIVE"  MEANS  A  PROPOSER  OR APPLICANT MEETING THE MINIMUM
SPECIFICATIONS OR REQUIREMENTS AS PRESCRIBED IN A SOLICITATION ISSUED BY
A STATE AGENCY.
  10. "SINGLE SOURCE" MEANS A PROGRAM PROCUREMENT IN WHICH ALTHOUGH  TWO
OR  MORE  PROPOSERS  OR  APPLICANTS  CAN  SUPPLY  THE  REQUIRED GOODS OR
SERVICES, THE STATE AGENCY, UPON  WRITTEN  FINDINGS  SETTING  FORTH  THE
MATERIAL AND SUBSTANTIAL REASONS THEREFOR, MAY AWARD THE CONTRACT TO ONE
PROPOSER  OR  APPLICANT OVER ANOTHER. THE STATE AGENCY SHALL DOCUMENT IN
THE PROCUREMENT RECORD THE CIRCUMSTANCES LEADING TO THE SELECTION OF THE
PROPOSER  OR  APPLICANT,  INCLUDING  THE  ALTERNATIVES  CONSIDERED,  THE
RATIONALE FOR SELECTING THE SPECIFIC PROPOSER OR APPLICANT AND THE BASIS
UPON WHICH THE STATE AGENCY DETERMINED THAT THE COST WAS REASONABLE.
  11. "SOLICITATION DOCUMENT" MEANS THE DOCUMENT ISSUED BY A STATE AGEN-
CY  NOTIFYING  PROSPECTIVE PROPOSERS OR APPLICANTS THAT THE STATE AGENCY
WISHES TO RECEIVE PROPOSALS  OR  APPLICATIONS  FOR  PROVIDING  GOODS  OR
SERVICES.
  12. "SOLE SOURCE" MEANS A PROGRAM PROCUREMENT IN WHICH ONLY ONE PROPO-
SER OR APPLICANT IS CAPABLE OF SUPPLYING THE REQUIRED GOODS OR SERVICES.
  13.  "SPECIFICATION"  OR  "REQUIREMENT"  MEANS  ANY DESCRIPTION OF THE
PHYSICAL OR FUNCTIONAL CHARACTERISTICS  OR  THE  NATURE  OF  A  GOOD  OR
SERVICE,  ANY  DESCRIPTION OF THE SERVICES TO BE PERFORMED, THE GOODS OR
SERVICES TO BE PROVIDED, THE NECESSARY QUALIFICATIONS OF THE PROPOSER OR
APPLICANT, THE CAPACITY AND CAPABILITY OF THE PROPOSER OR  APPLICANT  TO
COMPLETE  THE PROPOSED CONTRACT SUCCESSFULLY, OR THE PROCESS FOR ACHIEV-
ING SPECIFIC RESULTS OR ANTICIPATED OUTCOMES,  OR  BOTH,  OR  ANY  OTHER
REQUIREMENT  NECESSARY TO PERFORM THE WORK. IT MAY INCLUDE A DESCRIPTION
OF ANY OBLIGATORY TESTING, INSPECTION OR PREPARATION  FOR  DELIVERY  AND

S. 5817                             3

USE,  AND MAY INCLUDE FEDERALLY REQUIRED PROVISIONS AND CONDITIONS WHERE
THE ELIGIBILITY FOR FEDERAL FUNDS IS CONDITIONED UPON THE  INCLUSION  OF
SUCH FEDERALLY REQUIRED PROVISIONS AND CONDITIONS.  SPECIFICATIONS SHALL
BE DESIGNED TO ENHANCE COMPETITION.
  14.  "STATE  AGENCY"  OR "STATE AGENCIES" MEANS ALL STATE DEPARTMENTS,
BOARDS, COMMISSIONS, OFFICES OR INSTITUTIONS BUT EXCLUDES, HOWEVER,  FOR
THE  PURPOSES OF SUBDIVISION FIVE OF SECTION THREE HUNDRED FIFTY-FIVE OF
THE EDUCATION LAW, THE STATE UNIVERSITY OF NEW YORK, AND  EXCLUDES,  FOR
THE  PURPOSES  OF SUBDIVISION A OF SECTION SIXTY-TWO HUNDRED EIGHTEEN OF
THE EDUCATION LAW, THE CITY UNIVERSITY OF NEW YORK.   FURTHERMORE,  SUCH
TERM SHALL NOT INCLUDE THE LEGISLATURE OR THE JUDICIARY.
  S  179-GG.  PROGRAM  PROCUREMENTS. THE PROGRAM PROCUREMENT PROCESS SET
FORTH IN THIS ARTICLE, RATHER THAN THE REQUIREMENTS OF ARTICLE ELEVEN OF
THIS CHAPTER, SHALL APPLY TO:
  1. PROGRAM PROCUREMENTS OPEN ONLY TO NOT-FOR-PROFIT  ORGANIZATIONS  OR
PUBLIC CORPORATIONS OR BOTH, AND
  2.  THOSE  PROGRAM  PROCUREMENTS OPEN TO PROFIT-SEEKING ENTITIES WHERE
THE STATE AGENCY HAS OBTAINED FROM THE STATE COMPTROLLER, IN  ACCORDANCE
WITH  SECTION  ONE HUNDRED SEVENTY-NINE-HH OF THIS ARTICLE, AN EXEMPTION
FROM THE REQUIREMENTS OF ARTICLE ELEVEN OF THIS CHAPTER.
  S 179-HH. REQUEST FOR EXEMPTION. BEFORE THE ISSUANCE OF A SOLICITATION
DOCUMENT, A STATE AGENCY CONDUCTING A PROCUREMENT OPEN TO PROFIT-SEEKING
ENTITIES WHICH THE STATE AGENCY BELIEVES FALLS WITHIN THE MEANING  OF  A
PROGRAM  PROCUREMENT,  AS  DEFINED IN THIS ARTICLE, SHALL MAKE A WRITTEN
REQUEST TO THE STATE COMPTROLLER FOR AN EXEMPTION FROM THE  REQUIREMENTS
OF  ARTICLE  ELEVEN  OF THIS CHAPTER. THE STATE COMPTROLLER SHALL MAKE A
WRITTEN DETERMINATION AS TO WHETHER THE PROPOSED PROCUREMENT FALLS WITH-
IN THE DEFINITION OF A PROGRAM PROCUREMENT AS SET FORTH IN  SECTION  ONE
HUNDRED  SEVENTY-NINE-FF  OF THIS ARTICLE AND IS IN THE BEST INTEREST OF
THE STATE, AND SHALL EITHER GRANT OR DENY THE EXEMPTION ON THE BASIS  OF
SUCH  DETERMINATION.  IF  THE STATE COMPTROLLER GRANTS A STATE AGENCY AN
EXEMPTION FROM THE REQUIREMENTS OF ARTICLE ELEVEN OF THIS  CHAPTER,  THE
PROGRAM  PROCUREMENT  SHALL BE CONDUCTED IN ACCORDANCE WITH THE REQUIRE-
MENTS OF THIS ARTICLE.
  S 179-II. PROGRAM PROCUREMENT PROCESS. 1. METHOD OF  PROCUREMENT.  THE
STATE  AGENCY SHALL DOCUMENT IN THE PROCUREMENT RECORD AND IN ADVANCE OF
THE INITIAL RECEIPT OF PROPOSALS/APPLICATIONS THE DETERMINATION  OF  THE
EVALUATION  CRITERIA  AND THE PROCESS TO BE USED IN THE DETERMINATION OF
AWARD OR FUNDING, AND THE MANNER IN WHICH THE EVALUATION  AND  SELECTION
SHALL BE CONDUCTED.
  2.  PUBLIC  NOTICE.  ALL  PROGRAM PROCUREMENTS BY STATE AGENCIES OR AN
AWARD OR FUNDING IN EXCESS OF FIFTEEN THOUSAND DOLLARS SHALL  BE  ADVER-
TISED  IN THE STATE'S PROCUREMENT OPPORTUNITIES NEWSLETTER IN ACCORDANCE
WITH ARTICLE FOUR-C OF THE ECONOMIC DEVELOPMENT LAW.
  3. SOLICITING AND ACCEPTING PROPOSALS OR APPLICATIONS. A  SOLICITATION
DOCUMENT ISSUED BY A STATE AGENCY SHALL PRESCRIBE THE MINIMUM SPECIFICA-
TIONS  OR  REQUIREMENTS THAT MUST BE MET TO BE CONSIDERED RESPONSIVE AND
SHALL DESCRIBE AND DISCLOSE THE GENERAL MANNER IN WHICH  THE  EVALUATION
AND  SELECTION  SHALL  BE CONDUCTED. WHERE APPROPRIATE, THE SOLICITATION
DOCUMENT SHALL IDENTIFY THE RELATIVE IMPORTANCE OR WEIGHT  OF  COST  AND
THE  OVERALL  TECHNICAL  CRITERIA  TO BE CONSIDERED BY A STATE AGENCY IN
MAKING A PROGRAM PROCUREMENT DETERMINATION.
  4. SELECTION AND CONTRACT AWARD. A. SELECTION AND CONTRACT AWARD SHALL
BE CONSISTENT WITH: (I) THE TERMS OF THE SOLICITATION DOCUMENT ISSUED BY
THE STATE AGENCY; AND (II) THE CONTRACT AWARD METHODOLOGY SET  FORTH  IN

S. 5817                             4

THE PROCUREMENT RECORD BEFORE THE INITIAL RECEIPT OF PROPOSALS OR APPLI-
CATIONS.
  B. PROGRAM PROCUREMENT AWARDS SHALL BE MADE TO A PROPOSER OR APPLICANT
ON  THE  BASIS  OF  TECHNICAL  MERIT WITH THE CONSIDERATION GIVEN TO THE
REASONABLENESS OF COSTS. THE CONTRACT AWARD OR AWARDS OR  FUNDING  SHALL
BE  ALLOCATED  TO  THE  HIGHEST RANKED PROPOSAL OR PROPOSALS. NOTHING IN
THIS SECTION, HOWEVER, SHALL BE DEEMED TO PROHIBIT A STATE  AGENCY  FROM
EVALUATING COST SEPARATELY IN ITS SELECTION AND CONTRACT AWARD.
  C.  A PROCUREMENT RECORD SHALL BE MAINTAINED FOR EACH PROGRAM PROCURE-
MENT IDENTIFYING, WITH SUPPORTING DOCUMENTATION, DECISIONS MADE  BY  THE
STATE AGENCY DURING THE PROCUREMENT PROCESS.
  D.  SELECTION  AND  CONTRACT AWARD SHALL BE A WRITTEN DETERMINATION IN
THE PROCUREMENT RECORD MADE BY THE STATE AGENCY.
  E. PRIOR TO MAKING A PROGRAM PROCUREMENT AWARD, THE STATE AGENCY SHALL
MAKE A DETERMINATION OF THE RESPONSIBILITY OF THE PROPOSER OR APPLICANT.
  5. REDUCTION OF AWARD. A STATE AGENCY MAY REDUCE THE  MONETARY  AMOUNT
OF  THE  AWARDS  MADE  UNDER  A  PROGRAM PROCUREMENT IF THE STATE AGENCY
RESERVES THE RIGHT TO MAKE SUCH A REDUCTION IN THE SOLICITATION DOCUMENT
AND SUCH REDUCTION IS CONSISTENT WITH A PREDEFINED METHODOLOGY SET FORTH
IN THE PROCUREMENT RECORD PRIOR TO THE RECEIPT OF INITIAL  PROPOSALS  OR
APPLICATIONS.
  6. DISCRETIONARY PROGRAM PROCUREMENT AWARDS. A STATE AGENCY MAY MAKE A
PROGRAM  PROCUREMENT  AWARD  IN  AN  AMOUNT NOT EXCEEDING FIFTY THOUSAND
DOLLARS WITHOUT A FORMAL COMPETITIVE PROCESS. THE  STATE  AGENCY  SHALL,
HOWEVER, DOCUMENT THAT THE AMOUNT OF THE AWARD OR FUNDING IS REASONABLE.
  7.  CONTRACT AWARDS.  A. CONTRACT AWARDS SHALL BE MADE ON THE BASIS OF
HIGHEST RANK IN ACCORDANCE WITH  THE  SELECTION  AND  AWARD  METHODOLOGY
ESTABLISHED  IN  ACCORDANCE  WITH  THE PROGRAM REQUIREMENTS SET FORTH BY
EACH AGENCY FOR SUCH PROGRAM.
  B. SINGLE OR SOLE SOURCE CONTRACT AWARDS, OR CONTRACT AWARDS  MADE  TO
MEET  EMERGENCIES  ARISING FROM UNFORESEEN CAUSES, MAY BE MADE WITHOUT A
FORMAL COMPETITIVE PROCESS AND SHALL ONLY BE MADE UNDER UNUSUAL  CIRCUM-
STANCES AND SHALL BE BASED UPON A DETERMINATION BY THE STATE AGENCY THAT
THE  SPECIFICATIONS OR REQUIREMENTS FOR SUCH AWARD HAVE BEEN DESIGNED IN
A FAIR AND EQUITABLE MANNER.   THE STATE AGENCY SHALL  DOCUMENT  IN  THE
PROCUREMENT  RECORD,  SUBJECT  TO  REVIEW  BY THE STATE COMPTROLLER, THE
BASIS FOR A DETERMINATION TO MAKE AN AWARD TO A SINGLE  SOURCE  OR  SOLE
SOURCE, OR THE NATURE OF THE EMERGENCY GIVING RISE TO THE AWARD.
  8.  CONTRACTS.  ANY  CONTRACT  RESULTING  FROM  A  PROGRAM PROCUREMENT
AWARDED PURSUANT TO THE PROVISIONS OF THIS ARTICLE THAT INCLUDES FUNDING
FOR COMMODITIES OR CONSTRUCTION SERVICES IN  EXCESS  OF  FIFTY  THOUSAND
DOLLARS  SHALL  INCLUDE  CONTRACT  LANGUAGE  REQUIRING THE CONTRACTOR TO
ACQUIRE SUCH COMMODITIES AND/OR  CONSTRUCTION  SERVICES  PURSUANT  TO  A
COMPETITIVE BIDDING PROCESS.
  9. 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.
  S  2.  Subdivision 7 of section 160 of the state finance law, as added
by chapter 83 of the laws of 1995, is amended to read as follows:
  7. "Service" or "services" means, except with respect to contracts for
state printing, 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,
technology shall be deemed a service. Services, as defined in this arti-
cle, shall not apply to those contracts for (I) architectural, engineer-
ing  or  surveying  services, [or those contracts approved in accordance

S. 5817                             5

with] (II) SERVICES PROVIDED BY A NOT-FOR-PROFIT ORGANIZATION IN ACCORD-
ANCE WITH THE PROVISIONS OF article eleven-B of this chapter,  OR  (III)
SERVICES  OBTAINED THROUGH PROGRAM PROCUREMENTS IN ACCORDANCE WITH ARTI-
CLE ELEVEN-C OF THIS CHAPTER.
  S  3. 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
hundred twelve of this chapter. WHERE THE  CONTRACTING  AGENCY  HAS  NOT
COMPLIED  WITH  ONE  OR MORE PROVISIONS OF THIS ARTICLE, THE COMPTROLLER
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  DID  NOT  PREJUDICE OR FAVOR ANY VENDOR OR POTENTIAL
VENDOR AND THAT A NEW PROCUREMENT WOULD NOT BE IN THE BEST  INTEREST  OF
THE STATE; AND
  B. THE STATE COMPTROLLER CONCURS IN SUCH DETERMINATION.
  S  4.  Section 163 of the state finance law is amended by adding a new
subdivision 13-a to read as follows:
  13-A. PILOT PROCUREMENT PROJECTS. A.  WHEN THE COMMISSIONER OR A STATE
AGENCY DEVELOPS A PROCUREMENT METHOD NOT AUTHORIZED BY THIS ARTICLE, THE
COMMISSIONER OR STATE AGENCY IS HEREBY AUTHORIZED TO USE SUCH METHOD  ON
A  LIMITED  BASIS FOR A SPECIFIC CONTRACT AWARD IF: (I) THE COMMISSIONER
OR STATE AGENCY HAS MADE A DETERMINATION, DOCUMENTED IN THE  PROCUREMENT
RECORD,  THAT  SUCH  A  PILOT  PROCUREMENT METHOD WOULD BETTER SERVE THE
INTEREST OF THE STATE THAN OTHER METHODS CURRENTLY AVAILABLE UNDER  THIS
SECTION;  AND  (II) THE PILOT PROCUREMENT METHOD IS APPLICABLE ON A FAIR
AND EQUITABLE BASIS.
  B. WHEN USING A PROCUREMENT METHOD AUTHORIZED BY PARAGRAPH A  OF  THIS
SUBDIVISION,  THE  COMMISSIONER  OR  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 THE
SPECIFIC CONTRACT AWARD AND THE MANNER IN WHICH THE  EVALUATION  PROCESS
AND SELECTION SHALL BE CONDUCTED.
  C. PRIOR TO THE COMMENCEMENT OF THE PROCUREMENT, THE COMPTROLLER SHALL
AGREE  THAT  SUCH  PROCUREMENT METHOD BETTER SERVES THE INTERESTS OF THE
STATE AND CAN BE APPLIED ON A FAIR AND EQUITABLE BASIS.  FOR  EACH  SUCH
PILOT  PROCUREMENT  PROJECT AWARD, THE COMMISSIONER OR THE STATE AGENCY,
AS APPLICABLE, SHALL SUBMIT  TO  THE  COMPTROLLER  NOT  LATER  THAN  THE
MID-POINT  OF  THE TERM OF THE RESULTANT CONTRACT A REPORT ASSESSING THE
SUCCESS OR FAILURE OF THE PILOT PROCUREMENT METHOD.
  S 5. This act shall take effect immediately and  shall  apply  to  any
procurement initiated on or after such date; provided, however, that the
amendments  to  section  163  of  the state finance law made by sections
three and four 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.

2011-S5817A - Details

See Assembly Version of this Bill:: A9343
Current Committee:: Senate Finance
Law Section:: State Finance Law
Laws Affected:: Add Art XI-C §§179-ff - 179-ii, amd §§160 & 163, St Fin L
Versions Introduced in 2013-2014 Legislative Session:: S4076, A3884

2011-S5817A - Summary

2011-S5817A - Sponsor Memo

                                BILL NUMBER:S5817A

TITLE OF BILL:
An act
to amend the state finance
law, in relation to program procurements, clarifying the definition of
services, allowing the state comptroller to excuse non-material
deviations in
procurement procedures and allowing for pilot procurement methods;
and to amend the economic development law, in relation to the
procurement opportunities newsletter

PURPOSE:
To update certain provisions of the State Finance Law to
provide a structure and methodology for certain procurements awarded
by not-for-profit corporations and to respond to operational
requirements for procurements not currently addressed in law.

SUMMARY OF PROVISIONS:
Section 1 of this bill adds a new Article 11-C
to the State Finance Law to establish a statutory framework for the
award of State contracts traditionally called "grants" that are
awarded without the formal competitive process required by Article
11 of the State Finance Law. Such contracts are referred to as
"program procurements."

Section 179-ff of Article 11-C adopts the current Article 11
definitions of "costs," "emergency," "price," "procurement record,"
"program," "responsible or responsibility" "responsive," "single
source," "sole source," "specification or requirement," and "state
agency or state agencies," adopts the current General Construction
Law definition of "public corporation," and adds a new definition of
"program procurement". A program procurement is a procurement
undertaken by a state agency for a broad public purpose authorized by
law that is intended to benefit a community or a portion of a
community and is to be accomplished in whole or in part through a
contract or contracts with an association, partnership, joint
venture, firm, company, corporation, public corporation,
not-for-profit organization or a combination of such entities. A
program procurement provides the proposer or applicant with wide
discretion and latitude in the manner in which the purpose is to be
accomplished, with few specific limitations on the scope of the
proposal or application. A program procurement is not undertaken by a
state agency primarily to obtain commodities, services or technology.
Examples of program procurements include foreclosure prevention and
mitigation, cancer screening, school-based health initiatives,
transportation services, after-school programs, cultural services,
nutritional outreach programs, displaced homemaker training, rape
crisis and respite services.

Section 179-gg provides that program procurements are exempt from the
formal competitive requirements of Article 11 of the State Finance
Law if: (i) they are open only· to not-for-profit corporations,
municipal corporations, district corporations, or public benefit
corporations; or (ii) they are open to profit-seeking corporations
and granted an exemption by the Comptroller from the requirements of
such Article.

Section 179-hh prescribes a procedure for a State agency to submit a
written request for an exemption from the requirements of Article 11
of the State Finance Law and for the Comptroller to make a written
determination granting or denying an exemption on the basis of the
proposed procurement's conformance with the definition of a program
procurement.

Section 179-ii specifies the procedures to be used and the conditions
that may attach to a program procurement, including: (i)
documentation of the method of award prior to the receipt of
proposals or applications; (ii) advance public notice in the State
Contract Reporter; (iii) a request for proposals or other
solicitation document specifying the requirements for a responsive
proposal or application and the manner in which evaluations and
selections will be made; (iv) selection and contract awards must be
made on the basis of technical merit with due consideration given to
the reasonableness of costs, consistent with the solicitation
document and the award methodology documented in the procurement
record, and following a determination by the procuring agency that
the selected proposer or applicant is a responsible party, (v) the
amount of an award may b~ reduced in accordance with a methodology
defined in the procurement record prior to the receipt of proposals;
(vi) discretionary awards in amounts less than $50,000 may be made
without a formal competitive process; (vii) contract awards shall be
made on the basis of the highest ranking in accordance with the
predetermined evaluation methodology, or on an emergency, sole
source, or
single source basis documented in the procurement record; and (viii)
review and approval of program procurement contracts will be
conducted by the Comptroller in accordance with Section 112 of the
State Finance Law.

Section 2 of this bill amends Subdivision 7 of Section 160 of the State
Finance Law to amend the definition of services to exclude those
services provided by not-for-profit organizations in accordance with
the provisions of Article 11-B of the State Finance Law, or services
obtained through a program procurement process in accordance with
Article 11-C of the State Finance Law.

Section 3 of this bill amends Subdivision 12 of Section 163 of the
State Finance Law to allow the Comptroller to excuse non-material
deviations in procurement procedures if: (i) the contracting agency
determines and certifies, based upon a preponderance of the evidence
documented in the procurement record, that the noncompliance did not

prejudice or favor any vendor or potential vendor and that a new
procurement would not be in the best interest of the state; and (ii)
the Comptroller concurs in such determination.

Section 4 of this bill adds a new Subdivision 13-a to Section 163 of
the State Finance Law to provide for pilot procurement projects if:
(i) the procuring agency demonstrates that a pilot procurement
method would serve the interest of the State better than other
methods currently available under Article 11 of the State Finance
Law, and that the pilot procurement method is applicable on a fair
and equitable basis; and (ii) the Comptroller concurs. For each pilot
procurement project contract, the procuring agency shall submit to
the Comptroller, not later than the mid-point of the term of the
resultant contract, a report assessing the efficacy of the pilot
procurement method. This Subdivision is not intended to apply to
contracts for services that include architectural, engineering or
surveying services or to contracts for the construction, sale or
acquisition of real property.

Section 5 of this bill amends Paragraph (e) of Subdivision 2 of
Section 144 of the Economic Development Law to increase transparency
in situations where a
non-competitive award is made, to assist MWBEs in identifying
subcontracting opportunities, and to assist agencies in ensuring MWBE
subcontracting goals are met.

Section 6 of this bill provides for an immediate effective date.

PRIOR LEGISLATIVE HISTORY:
New Bill.

JUSTIFICATION:
The procurement Stewardship Act was enacted sixteen
years ago (Chapter 83, Laws of 1995). The Act codified many
procurement standards the Office of the State Comptroller was already
using to review and approve State contracts for goods and services.
Since passage of the Act, a number of procedural issues have become
apparent. These issues, which require legislative resolution, include
the lack of statutory authority for the award of program
procurements, the inability of the Office of the State Comptroller to
waive non-material deviations in a proposed state contract, and the
inability of a state agency to use, on a pilot basis for a specific
contract award, a procurement method developed by such agency that
does not fit within the requirements of the Procurement Stewardship
Act.

Program Procurements - When Article 11 was added to
the State Finance
Law in 1995, it codified procedures for the procurement of goods and
services. Currently there is no statutory authority governing the
award of program procurements, commonly known as grants. The
Procurement Stewardship Act should be amended to establish a

statutory framework for such awards that recognizes that for-profit
entities, as well as not-for-profit organizations, often compete for
grant-type awards for services that have traditionally been confined
to the not-for-profit arena. Currently, the award of grants to fund
specific programs run by not-for-profits is not subject to the same
competitive standards as the law prescribes for other types of
procurements. Once the competition involves for-profit entities,
however, the rules of the Procurement Stewardship Act apply even
though they may not make sense for this type of procurement. This
bill defines such procurements as "program procurements" and provides
for consistent treatment whether or not profit-seeking firms are
being enlisted to participate in public programs. Since, under this
bill, a State agency will be able to conduct a program procurement
open to profit-seeking entities only if the Comptroller
grants an exemption from the requirements of Article 11, any
concern about the possibility that State agencies might abuse the
program procurement process should be alleviated.

Comptroller authority to waive non-material deviations
- The Office of
the State Comptroller regularly encounters circumstances where the
contracting agency has unwittingly deviated from formal competitive
bidding requirements. Where the agency has otherwise conducted a fair
competition and the deviation does not favor the winning proposer or
prejudice the losing proposers or potential proposers (or in other
words, the deviation is not material to the outcome of the
procurement), the Comptroller's staff often attempts to salvage the
procurement by approving the resulting contract on a single source
basis. The rationale for this approach is that approving such
contracts is in the best interests of the State, since in these
instances it is highly likely that the same proposer would prevail in
a new procurement competition and scarce State resources would be
wasted by conducting a new procurement. The bill authorizes the
Comptroller to approve such contracts if: (i) the procuring agency
certifies, on the basis of a preponderance of the evidence documented
in the procurement record, that the noncompliance did not prejudice
or favor any vendor or potential vendor and that a new solicitation
would not be in the best interests of the State;
and (ii) the Comptroller concurs in such determination.

Pilot procurement methods -
When a State agency develops a
procurement method that does not fit within the requirements of the
Procurement Stewardship Act, the agency should be able to use such a
method on a pilot basis for a specific contract award to secure the
best outcome for the State. This bill authorizes the Comptroller to
approve a contract awarded on the basis of a pilot procurement method
as long as: (i) the contracting agency makes a determination,
documented in the procurement record, that such a pilot procurement
method better serves the interest of the State than other procurement
methods available under the Act and can be applied on a fair and
equitable basis; and (ii) the Comptroller approves the pilot

procurement method prior to the procurement. To ensure effective
monitoring of the success or failure of the pilot procurement method
the procuring State agency must file a report with the Comptroller by
the midpoint of the term of the resulting contract.

Enhancing transparency and assisting MWBEs -
When a procurement
contract award is non-competitive, the notice to be published in the
procurement opportunities newsletter shall include, in addition to
the reasons for exemption: the awardees' name; a description of the
contract; the estimated value of the contract; the expected term of
the contract and the contact information for a contact, who shall be
a designated contact under the procurement lobbying act, who can
assist any certified minority and women-owned business enterprise
(MWBE) with any potential MWBE subcontracting opportunities.
This will increase transparency in situations where a noncompetitive
award is made, assist MWBEs to identify subcontracting opportunities,
and assist agencies in ensuring MWBE subcontracting goals are met.

The Comptroller recommends enactment of this bill to improve
contracting practices in the State.

BUDGET IMPLICATIONS:
This bill has no significant fiscal impact.

EFFECTIVE DATE:
This bill would take effect immediately.

2011-S5817A - Bill Text download pdf

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

                                 5817--A

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                              June 17, 2011
                               ___________

Introduced  by  Sen. MARCELLINO -- (at request of the State Comptroller)
  -- read twice and ordered printed, and when printed to be committed to
  the Committee on Rules -- recommitted to the Committee on  Finance  in
  accordance  with  Senate  Rule 6, sec. 8 -- committee discharged, bill
  amended, ordered reprinted as amended and recommitted to said  commit-
  tee

AN  ACT  to amend the state finance law, in relation to program procure-
  ments, clarifying the definition of services, allowing the state comp-
  troller to excuse non-material deviations  in  procurement  procedures
  and  allowing for pilot procurement methods; and to amend the economic
  development law, in relation to the procurement opportunities newslet-
  ter

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

  Section  1.   The state finance law is amended by adding a new article
11-C to read as follows:
                              ARTICLE XI-C
                          PROGRAM PROCUREMENTS
SECTION 179-FF. DEFINITIONS.
        179-GG. PROGRAM PROCUREMENTS.
        179-HH. REQUEST FOR EXEMPTION.
        179-II. PROGRAM PROCUREMENT PROCESS.
  S 179-FF. DEFINITIONS. AS USED IN THIS  ARTICLE  THE  FOLLOWING  TERMS
SHALL HAVE THE FOLLOWING MEANINGS UNLESS OTHERWISE SPECIFIED:
  1.  "COSTS" SHALL BE QUANTIFIABLE AND MAY INCLUDE, WITHOUT LIMITATION,
THE PRICE OF PROVIDING THE GIVEN GOOD OR SERVICE AND THE ADMINISTRATIVE,
TRAINING, STORAGE, MAINTENANCE OR OTHER OVERHEAD EXPENSE ASSOCIATED WITH
A GIVEN GOOD OR SERVICE.
  2. "EMERGENCY" MEANS AN URGENT AND UNEXPECTED REQUIREMENT WHERE PUBLIC
HEALTH, SAFETY, OR WELFARE OR THE CONSERVATION OF PUBLIC RESOURCES IS AT
RISK.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD10876-07-2

S. 5817--A                          2

  3. "PRICE" MEANS THE AMOUNT OF MONEY SET AS CONSIDERATION FOR  A  GOOD
OR  SERVICE  AND  MAY  INCLUDE WHEN APPLICABLE AND WHEN SPECIFIED IN THE
PROPOSAL/APPLICATION, DELIVERY CHARGES, INSTALLATION CHARGES  AND  OTHER
COSTS.
  4.  "PROCUREMENT RECORD" MEANS DOCUMENTATION OF THE DECISIONS MADE AND
THE APPROACH TAKEN IN THE PROCUREMENT PROCESS.
  5. "PROGRAM" MEANS A PROVISION OF LAW AUTHORIZING A  STATE  AGENCY  TO
UNDERTAKE  ACTIVITIES  THAT  ARE  TO BE ACCOMPLISHED IN WHOLE OR IN PART
THROUGH CONTRACTS WITH CERTAIN ENTITIES INCLUDING, BUT NOT  LIMITED  TO,
NOT-FOR-PROFIT  ORGANIZATIONS,  FOR-PROFIT ORGANIZATIONS, MUNICIPALITIES
OR ANY COMBINATION THEREOF.
  6. "PROGRAM PROCUREMENT" MEANS A PROCUREMENT WHICH:
  A. IS UNDERTAKEN FOR A BROAD PUBLIC PURPOSE AUTHORIZED BY LAW AND  NOT
UNDERTAKEN  BY  A STATE AGENCY PRIMARILY TO OBTAIN COMMODITIES, SERVICES
OR TECHNOLOGY FOR SUCH AGENCY; AND
  B. IS INTENDED TO BENEFIT A COMMUNITY OR A PORTION OF A COMMUNITY; AND
  C. IS ACCOMPLISHED IN WHOLE OR IN PART THROUGH A CONTRACT OR CONTRACTS
WITH AN ASSOCIATION, PARTNERSHIP, JOINT VENTURE, FIRM,  COMPANY,  CORPO-
RATION, PUBLIC CORPORATION, NOT-FOR-PROFIT ORGANIZATION OR A COMBINATION
OF SUCH ENTITIES; AND
  D. HAS BEEN GRANTED AN EXEMPTION PURSUANT TO THE PROVISIONS OF SECTION
ONE  HUNDRED  SEVENTY-NINE-HH  OF  THIS  ARTICLE WHERE SUCH EXEMPTION IS
REQUIRED BY SECTION ONE HUNDRED SEVENTY-NINE-GG OF THIS ARTICLE.
  A PROGRAM PROCUREMENT PROVIDES THE PROPOSER  OR  APPLICANT  WITH  WIDE
DISCRETION  AND  LATITUDE  IN  THE  MANNER IN WHICH THE PURPOSE IS TO BE
ACCOMPLISHED WITH FEW SPECIFIC LIMITATIONS ON THE SCOPE OF THE  PROPOSAL
OR APPLICATION.
  7.  "PUBLIC CORPORATION" MEANS A CITY, TOWN, VILLAGE, SCHOOL DISTRICT,
A DISTRICT CORPORATION OR A PUBLIC BENEFIT CORPORATION  AS  THOSE  TERMS
ARE DEFINED IN SECTION SIXTY-SIX OF THE GENERAL CONSTRUCTION LAW.
  8.  "RESPONSIBLE"  OR  "RESPONSIBILITY"  MEANS  THE FINANCIAL ABILITY,
LEGAL CAPACITY, INTEGRITY, AND PAST PERFORMANCE OF A BUSINESS ENTITY AND
AS SUCH TERMS HAVE BEEN INTERPRETED RELATIVE TO PUBLIC PROCUREMENTS.
  9. "RESPONSIVE" MEANS A PROPOSER  OR  APPLICANT  MEETING  THE  MINIMUM
SPECIFICATIONS OR REQUIREMENTS AS PRESCRIBED IN A SOLICITATION ISSUED BY
A STATE AGENCY.
  10.  "SINGLE SOURCE" MEANS A PROGRAM PROCUREMENT IN WHICH ALTHOUGH TWO
OR MORE PROPOSERS  OR  APPLICANTS  CAN  SUPPLY  THE  REQUIRED  GOODS  OR
SERVICES,  THE  STATE  AGENCY,  UPON  WRITTEN FINDINGS SETTING FORTH THE
MATERIAL AND SUBSTANTIAL REASONS THEREFOR, MAY AWARD THE CONTRACT TO ONE
PROPOSER OR APPLICANT OVER ANOTHER. THE STATE AGENCY SHALL  DOCUMENT  IN
THE PROCUREMENT RECORD THE CIRCUMSTANCES LEADING TO THE SELECTION OF THE
PROPOSER  OR  APPLICANT,  INCLUDING  THE  ALTERNATIVES  CONSIDERED,  THE
RATIONALE FOR SELECTING THE SPECIFIC PROPOSER OR APPLICANT AND THE BASIS
UPON WHICH THE STATE AGENCY DETERMINED THAT THE COST WAS REASONABLE.
  11. "SOLICITATION DOCUMENT" MEANS THE DOCUMENT ISSUED BY A STATE AGEN-
CY NOTIFYING PROSPECTIVE PROPOSERS OR APPLICANTS THAT THE  STATE  AGENCY
WISHES  TO  RECEIVE  PROPOSALS  OR  APPLICATIONS  FOR PROVIDING GOODS OR
SERVICES.
  12. "SOLE SOURCE" MEANS A PROGRAM PROCUREMENT IN WHICH ONLY ONE PROPO-
SER OR APPLICANT IS CAPABLE OF SUPPLYING THE REQUIRED GOODS OR SERVICES.
  13. "SPECIFICATION" OR "REQUIREMENT"  MEANS  ANY  DESCRIPTION  OF  THE
PHYSICAL  OR  FUNCTIONAL  CHARACTERISTICS  OR  THE  NATURE  OF A GOOD OR
SERVICE, ANY DESCRIPTION OF THE SERVICES TO BE PERFORMED, THE  GOODS  OR
SERVICES TO BE PROVIDED, THE NECESSARY QUALIFICATIONS OF THE PROPOSER OR
APPLICANT,  THE  CAPACITY AND CAPABILITY OF THE PROPOSER OR APPLICANT TO

S. 5817--A                          3

COMPLETE THE PROPOSED CONTRACT SUCCESSFULLY, OR THE PROCESS FOR  ACHIEV-
ING  SPECIFIC  RESULTS  OR  ANTICIPATED  OUTCOMES, OR BOTH, OR ANY OTHER
REQUIREMENT NECESSARY TO PERFORM THE WORK. IT MAY INCLUDE A  DESCRIPTION
OF  ANY  OBLIGATORY  TESTING, INSPECTION OR PREPARATION FOR DELIVERY AND
USE, AND MAY INCLUDE FEDERALLY REQUIRED PROVISIONS AND CONDITIONS  WHERE
THE  ELIGIBILITY  FOR FEDERAL FUNDS IS CONDITIONED UPON THE INCLUSION OF
SUCH FEDERALLY REQUIRED PROVISIONS AND CONDITIONS.  SPECIFICATIONS SHALL
BE DESIGNED TO ENHANCE COMPETITION AND, WHERE APPROPRIATE, THE  RELATIVE
IMPORTANCE OR WEIGHT OF GEOGRAPHIC DISTRIBUTION AND ASSESSMENT OF NEED.
  14.  "STATE  AGENCY"  OR "STATE AGENCIES" MEANS ALL STATE DEPARTMENTS,
BOARDS, COMMISSIONS, OFFICES OR INSTITUTIONS BUT EXCLUDES, HOWEVER,  FOR
THE  PURPOSES OF SUBDIVISION FIVE OF SECTION THREE HUNDRED FIFTY-FIVE OF
THE EDUCATION LAW, THE STATE UNIVERSITY OF NEW YORK, AND  EXCLUDES,  FOR
THE  PURPOSES  OF SUBDIVISION A OF SECTION SIXTY-TWO HUNDRED EIGHTEEN OF
THE EDUCATION LAW, THE CITY UNIVERSITY OF NEW YORK.   FURTHERMORE,  SUCH
TERM SHALL NOT INCLUDE THE LEGISLATURE OR THE JUDICIARY.
  S  179-GG.  PROGRAM  PROCUREMENTS. THE PROGRAM PROCUREMENT PROCESS SET
FORTH IN THIS ARTICLE, RATHER THAN THE REQUIREMENTS OF ARTICLE ELEVEN OF
THIS CHAPTER, SHALL APPLY TO:
  1. PROGRAM PROCUREMENTS OPEN ONLY TO NOT-FOR-PROFIT  ORGANIZATIONS  OR
PUBLIC CORPORATIONS OR BOTH, AND
  2.  THOSE  PROGRAM  PROCUREMENTS OPEN TO PROFIT-SEEKING ENTITIES WHERE
THE STATE AGENCY HAS OBTAINED FROM THE STATE COMPTROLLER, IN  ACCORDANCE
WITH  SECTION  ONE HUNDRED SEVENTY-NINE-HH OF THIS ARTICLE, AN EXEMPTION
FROM THE REQUIREMENTS OF ARTICLE ELEVEN OF THIS CHAPTER.
  S 179-HH. REQUEST FOR EXEMPTION. BEFORE THE ISSUANCE OF A SOLICITATION
DOCUMENT, A STATE AGENCY CONDUCTING A PROCUREMENT OPEN TO PROFIT-SEEKING
ENTITIES WHICH THE STATE AGENCY BELIEVES FALLS WITHIN THE MEANING  OF  A
PROGRAM  PROCUREMENT,  AS  DEFINED IN THIS ARTICLE, SHALL MAKE A WRITTEN
REQUEST TO THE STATE COMPTROLLER FOR AN EXEMPTION FROM THE  REQUIREMENTS
OF  ARTICLE  ELEVEN  OF THIS CHAPTER. THE STATE COMPTROLLER SHALL MAKE A
WRITTEN DETERMINATION AS TO WHETHER THE PROPOSED PROCUREMENT FALLS WITH-
IN THE DEFINITION OF A PROGRAM PROCUREMENT AS SET FORTH IN  SECTION  ONE
HUNDRED  SEVENTY-NINE-FF  OF THIS ARTICLE AND IS IN THE BEST INTEREST OF
THE STATE, AND SHALL EITHER GRANT OR DENY THE EXEMPTION ON THE BASIS  OF
SUCH  DETERMINATION.  IF  THE STATE COMPTROLLER GRANTS A STATE AGENCY AN
EXEMPTION FROM THE REQUIREMENTS OF ARTICLE ELEVEN OF THIS  CHAPTER,  THE
PROGRAM  PROCUREMENT  SHALL BE CONDUCTED IN ACCORDANCE WITH THE REQUIRE-
MENTS OF THIS ARTICLE.
  S 179-II. PROGRAM PROCUREMENT PROCESS. 1. METHOD OF  PROCUREMENT.  THE
STATE  AGENCY SHALL DOCUMENT IN THE PROCUREMENT RECORD AND IN ADVANCE OF
THE INITIAL RECEIPT OF PROPOSALS/APPLICATIONS THE DETERMINATION  OF  THE
EVALUATION CRITERIA, AND THE WEIGHT ASSIGNED TO EACH, AND THE PROCESS TO
BE  USED  IN  THE  DETERMINATION  OF AWARD OR FUNDING, AND THE MANNER IN
WHICH THE EVALUATION AND SELECTION SHALL BE CONDUCTED.
  2. PUBLIC NOTICE. ALL PROGRAM PROCUREMENTS BY  STATE  AGENCIES  OR  AN
AWARD  OR  FUNDING IN EXCESS OF FIFTEEN THOUSAND DOLLARS SHALL BE ADVER-
TISED IN THE STATE'S PROCUREMENT OPPORTUNITIES NEWSLETTER IN  ACCORDANCE
WITH ARTICLE FOUR-C OF THE ECONOMIC DEVELOPMENT LAW.
  3.  SOLICITING AND ACCEPTING PROPOSALS OR APPLICATIONS. A SOLICITATION
DOCUMENT ISSUED BY A STATE AGENCY SHALL PRESCRIBE THE MINIMUM SPECIFICA-
TIONS OR REQUIREMENTS THAT MUST BE MET TO BE CONSIDERED  RESPONSIVE  AND
SHALL  DESCRIBE  AND DISCLOSE THE GENERAL MANNER IN WHICH THE EVALUATION
AND SELECTION SHALL BE CONDUCTED. WHERE  APPROPRIATE,  THE  SOLICITATION
DOCUMENT  SHALL  IDENTIFY  THE RELATIVE IMPORTANCE OR WEIGHT OF COST AND
THE OVERALL TECHNICAL CRITERIA TO BE CONSIDERED BY  A  STATE  AGENCY  IN

S. 5817--A                          4

MAKING A PROGRAM PROCUREMENT DETERMINATION.  CONSIDERATION, WHERE APPRO-
PRIATE,  SHOULD  INCLUDE  GEOGRAPHIC  DISTRIBUTION  OF  FUNDING BASED ON
ASSESSED NEEDS OF THE COMMUNITY.
  4. SELECTION AND CONTRACT AWARD. A. SELECTION AND CONTRACT AWARD SHALL
BE CONSISTENT WITH: (I) THE TERMS OF THE SOLICITATION DOCUMENT ISSUED BY
THE  STATE  AGENCY; AND (II) THE CONTRACT AWARD METHODOLOGY SET FORTH IN
THE PROCUREMENT RECORD BEFORE THE INITIAL RECEIPT OF PROPOSALS OR APPLI-
CATIONS.
  B. PROGRAM PROCUREMENT AWARDS SHALL BE MADE TO A PROPOSER OR APPLICANT
ON THE BASIS OF TECHNICAL MERIT WITH  THE  CONSIDERATION  GIVEN  TO  THE
REASONABLENESS  OF  COSTS. THE CONTRACT AWARD OR AWARDS OR FUNDING SHALL
BE ALLOCATED TO THE HIGHEST RANKED PROPOSAL  OR  PROPOSALS.  NOTHING  IN
THIS  SECTION,  HOWEVER, SHALL BE DEEMED TO PROHIBIT A STATE AGENCY FROM
EVALUATING COST SEPARATELY IN ITS SELECTION AND CONTRACT AWARD.
  C. A PROCUREMENT RECORD SHALL BE MAINTAINED FOR EACH PROGRAM  PROCURE-
MENT  IDENTIFYING,  WITH SUPPORTING DOCUMENTATION, DECISIONS MADE BY THE
STATE AGENCY DURING THE PROCUREMENT PROCESS.
  D. SELECTION AND CONTRACT AWARD SHALL BE A  WRITTEN  DETERMINATION  IN
THE PROCUREMENT RECORD MADE BY THE STATE AGENCY.
  E. PRIOR TO MAKING A PROGRAM PROCUREMENT AWARD, THE STATE AGENCY SHALL
MAKE A DETERMINATION OF THE RESPONSIBILITY OF THE PROPOSER OR APPLICANT.
  5.  REDUCTION  OF AWARD. A STATE AGENCY MAY REDUCE THE MONETARY AMOUNT
OF THE AWARDS MADE UNDER A  PROGRAM  PROCUREMENT  IF  THE  STATE  AGENCY
RESERVES THE RIGHT TO MAKE SUCH A REDUCTION IN THE SOLICITATION DOCUMENT
AND SUCH REDUCTION IS CONSISTENT WITH A PREDEFINED METHODOLOGY SET FORTH
IN  THE  PROCUREMENT RECORD PRIOR TO THE RECEIPT OF INITIAL PROPOSALS OR
APPLICATIONS.
  6. DISCRETIONARY PROGRAM PROCUREMENT AWARDS. A STATE AGENCY MAY MAKE A
PROGRAM PROCUREMENT AWARD IN AN  AMOUNT  NOT  EXCEEDING  FIFTY  THOUSAND
DOLLARS  WITHOUT  A  FORMAL COMPETITIVE PROCESS. THE STATE AGENCY SHALL,
HOWEVER, DOCUMENT THAT THE AMOUNT OF THE AWARD OR FUNDING IS REASONABLE.
  7. CONTRACT AWARDS.  A. CONTRACT AWARDS SHALL BE MADE ON THE BASIS  OF
HIGHEST  RANK  IN  ACCORDANCE  WITH  THE SELECTION AND AWARD METHODOLOGY
ESTABLISHED IN ACCORDANCE WITH THE PROGRAM  REQUIREMENTS  SET  FORTH  BY
EACH AGENCY FOR SUCH PROGRAM.
  B.  SINGLE  OR SOLE SOURCE CONTRACT AWARDS, OR CONTRACT AWARDS MADE TO
MEET EMERGENCIES ARISING FROM UNFORESEEN CAUSES, MAY BE MADE  WITHOUT  A
FORMAL  COMPETITIVE PROCESS AND SHALL ONLY BE MADE UNDER UNUSUAL CIRCUM-
STANCES AND SHALL BE BASED UPON A DETERMINATION BY THE STATE AGENCY THAT
THE SPECIFICATIONS OR REQUIREMENTS FOR SUCH AWARD HAVE BEEN DESIGNED  IN
A  FAIR  AND  EQUITABLE MANNER.   THE STATE AGENCY SHALL DOCUMENT IN THE
PROCUREMENT RECORD, SUBJECT TO REVIEW  BY  THE  STATE  COMPTROLLER,  THE
BASIS  FOR  A  DETERMINATION TO MAKE AN AWARD TO A SINGLE SOURCE OR SOLE
SOURCE, OR THE NATURE OF THE EMERGENCY GIVING RISE TO THE AWARD.
  8. CONTRACTS.  ANY  CONTRACT  RESULTING  FROM  A  PROGRAM  PROCUREMENT
AWARDED PURSUANT TO THE PROVISIONS OF THIS ARTICLE THAT INCLUDES FUNDING
FOR  COMMODITIES  OR  CONSTRUCTION  SERVICES IN EXCESS OF FIFTY THOUSAND
DOLLARS SHALL INCLUDE CONTRACT  LANGUAGE  REQUIRING  THE  CONTRACTOR  TO
ACQUIRE  SUCH  COMMODITIES  AND/OR  CONSTRUCTION  SERVICES PURSUANT TO A
COMPETITIVE BIDDING PROCESS.
  9. 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.
  S 2. Subdivision 7 of section 160 of the state finance law,  as  added
by chapter 83 of the laws of 1995, is amended to read as follows:

S. 5817--A                          5

  7. "Service" or "services" means, except with respect to contracts for
state  printing,  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,
technology shall be deemed a service. Services, as defined in this arti-
cle, shall not apply to those contracts for (I) architectural, engineer-
ing  or  surveying  services, [or those contracts approved in accordance
with] (II) SERVICES PROVIDED BY A NOT-FOR-PROFIT ORGANIZATION IN ACCORD-
ANCE WITH THE PROVISIONS OF article eleven-B of this chapter,  OR  (III)
SERVICES  OBTAINED THROUGH PROGRAM PROCUREMENTS IN ACCORDANCE WITH ARTI-
CLE ELEVEN-C OF THIS CHAPTER.
  S 3. 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
hundred  twelve  of  this  chapter. WHERE THE CONTRACTING AGENCY HAS NOT
COMPLIED WITH ONE OR MORE PROVISIONS OF THIS  ARTICLE,  THE  COMPTROLLER
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 DID NOT PREJUDICE OR FAVOR  ANY  VENDOR  OR  POTENTIAL
VENDOR  AND  THAT A NEW PROCUREMENT WOULD NOT BE IN THE BEST INTEREST OF
THE STATE; AND
  B. THE STATE COMPTROLLER CONCURS IN SUCH DETERMINATION.
  S 4. Section 163 of the state finance law is amended by adding  a  new
subdivision 13-a to read as follows:
  13-A. PILOT PROCUREMENT PROJECTS. A.  WHEN THE COMMISSIONER OR A STATE
AGENCY DEVELOPS A PROCUREMENT METHOD NOT AUTHORIZED BY THIS ARTICLE, THE
COMMISSIONER  OR STATE AGENCY IS HEREBY AUTHORIZED TO USE SUCH METHOD ON
A LIMITED BASIS FOR A SPECIFIC CONTRACT AWARD IF: (I)  THE  COMMISSIONER
OR  STATE AGENCY HAS MADE A DETERMINATION, DOCUMENTED IN THE PROCUREMENT
RECORD, THAT SUCH A PILOT PROCUREMENT  METHOD  WOULD  BETTER  SERVE  THE
INTEREST  OF THE STATE THAN OTHER METHODS CURRENTLY AVAILABLE UNDER THIS
SECTION; AND (II) THE PILOT PROCUREMENT METHOD IS APPLICABLE ON  A  FAIR
AND EQUITABLE BASIS.
  B.  WHEN  USING A PROCUREMENT METHOD AUTHORIZED BY PARAGRAPH A OF THIS
SUBDIVISION, THE COMMISSIONER OR 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  THE
SPECIFIC  CONTRACT  AWARD AND THE MANNER IN WHICH THE EVALUATION PROCESS
AND SELECTION SHALL BE CONDUCTED.
  C. PRIOR TO THE COMMENCEMENT OF THE PROCUREMENT, THE COMPTROLLER SHALL
AGREE THAT SUCH PROCUREMENT METHOD BETTER SERVES THE  INTERESTS  OF  THE
STATE  AND  CAN  BE APPLIED ON A FAIR AND EQUITABLE BASIS. FOR EACH SUCH
PILOT PROCUREMENT PROJECT AWARD, THE COMMISSIONER OR THE  STATE  AGENCY,
AS  APPLICABLE,  SHALL  SUBMIT  TO  THE  COMPTROLLER  NOT LATER THAN THE
MID-POINT OF THE TERM OF THE RESULTANT CONTRACT A REPORT  ASSESSING  THE
SUCCESS OR FAILURE OF THE PILOT PROCUREMENT METHOD.
  S  5.  Paragraph  (e)  of subdivision 2 of section 144 of the economic
development law, as added by chapter 862 of the laws of 1990, is amended
to read as follows:
  (e) Notwithstanding the foregoing, any agency receiving  an  exemption
for  a  procurement  contract  in  accordance with this subdivision must
nevertheless publish notice of  either  the  letting  or  award  of  the
contract,  and  the  reasons  for any such exemption, in the procurement

S. 5817--A                          6

opportunities newsletter as soon as practicable, unless the  comptroller
determines that publication would affect the ability of (i) law enforce-
ment  agencies  to carry out investigations, or (ii) agencies to protect
security  operations, in which case notice of such contract shall not be
published.  IF THE AWARD IS NON-COMPETITIVE, THE NOTICE TO BE  PUBLISHED
SHALL  INCLUDE,  IN ADDITION TO THE REASONS FOR EXEMPTION: THE AWARDEE'S
NAME; A  DESCRIPTION  OF  THE  CONTRACT;  THE  ESTIMATED  VALUE  OF  THE
CONTRACT;  THE EXPECTED TERM OF THE CONTRACT AND THE CONTACT INFORMATION
FOR A CONTACT, WHO SHALL BE A DESIGNATED CONTACT UNDER  THE  PROCUREMENT
LOBBYING  ACT,  WHO  CAN  ASSIST  ANY CERTIFIED MINORITY AND WOMEN-OWNED
BUSINESS ENTERPRISE WITH ANY POTENTIAL MINORITY AND WOMEN-OWNED BUSINESS
ENTERPRISE SUBCONTRACTING OPPORTUNITIES.
  S 6. This act shall take effect immediately and  shall  apply  to  any
procurement initiated on or after such date; provided, however, that the
amendments  to  section  163  of  the state finance law made by sections
three and four 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.

2011-S5817B (ACTIVE) - Details

See Assembly Version of this Bill:: A9343
Current Committee:: Senate Finance
Law Section:: State Finance Law
Laws Affected:: Add Art XI-C §§179-ff - 179-ii, amd §§160 & 163, St Fin L
Versions Introduced in 2013-2014 Legislative Session:: S4076, A3884

2011-S5817B (ACTIVE) - Summary

2011-S5817B (ACTIVE) - Sponsor Memo

                                BILL NUMBER:S5817B

TITLE OF BILL:
An act
to amend the state finance
law, in relation to program procurements, clarifying the definition of
services, allowing the state comptroller to excuse non-material
deviations in
procurement procedures and allowing for pilot procurement methods

PURPOSE:
To update certain provisions of the State Finance Law to
provide a structure and methodology for certain procurements awarded
by not-for-profit corporations and allow the state comptroller to
excuse non-material deviations in procurement procedures.

SUMMARY OF PROVISIONS:
Section 1 of this bill adds a new Article 11-C
to the State Finance Law to establish a statutory framework for the
award of State contracts traditionally called "grants" that are
awarded without the formal competitive process required by Article 11
of the State Finance Law. Such contracts are referred to as "program
procurements."

Section 179-ff of Article 11-C adopts the current Article 11
definitions of "costs," "emergency," "price," "procurement record,"

"program," "responsible or responsibility," "responsive," "single
source," "sole source," "specification or requirement," and "state
agency or state agencies," adopts the current General Construction
Law definition of "public corporation," and adds a new definition of
"program procurement". A program procurement is a procurement which
seeks a contract pursuant to which the vendor would provide services
or commodities directly to the public or a segment of the public and
not directly to a state agency, provided that such service shall not
include the construction or reconstruction of buildings, bridges,
roads, and appurtenances for use by the state, provides the applicant
with discretion in the manner in which the purpose is to be
accomplished with few specific limitations on the manner of delivery
and has been granted an exemption pursuant to the provisions of
section 179-hh of the State Finance Law where such exemption is
required by section 1179-gg of the State Finance Law.
A program procurement provides the proposer or applicant with wide
discretion and latitude in the manner in which the purpose is to be
accomplished, with few specific limitations on the scope of the
proposal or application. A program procurement is not undertaken by a
state agency primarily to obtain commodities, services or technology.
Examples of program procurements include foreclosure prevention and
mitigation, cancer screening, school-based health initiatives,
transportation services, after-school programs, cultural services,
nutritional outreach programs, displaced homemaker training, rape
crisis and respite services.

Section 179-gg provides that program procurements are exempt from the
formal competitive requirements of Article 11 of the State Finance
Law if: (i) they are open only to not-for-profit corporations,
municipal corporations, district corporations, or public benefit
corporations; or (ii) they are open to profit-seeking corporations
and granted an exemption by the Comptroller from the requirements of
such Article.

Section 179-hh prescribes a procedure for a State agency to submit a
written request for an exemption from the requirements of Article 11
of the State Finance Law and for the Comptroller to make a written
determination granting or denying an exemption on the basis of the
proposed procurement's conformance with the definition of a program
procurement.

Section 179-ii specifies the procedures to be used and the conditions
that may attach to a program procurement, including: (i)
documentation of the method of award prior to the receipt of
proposals or applications; (ii) advance public notice in the State
Contract Reporter; (iii) a request for proposals or other
solicitation document specifying the requirements for a responsive
proposal or application and the manner in which evaluations and
selections will be made; (iv) selection and contract awards must be
made on the basis of technical merit with due consideration given to
the reasonableness of costs, consistent with the solicitation
document and the award methodology documented in the procurement
record, and following a determination by the procuring agency that
the selected proposer or applicant is a responsible party; (v) the
amount of an award may be reduced in accordance with a methodology
defined in the procurement record prior to the receipt of proposals;
(vi) discretionary awards in amounts less than $50,000 may be made
without a formal competitive process; (vii) contract awards shall be
made on the basis of the highest ranking in accordance with the
predetermined evaluation methodology, or on an emergency, sole
source, or
single source basis documented in the procurement record; and
(viii) review and approval of program procurement contracts will be
conducted by the Comptroller in accordance with Section 112 of the
State Finance Law.

Section 2 of this bill amends Subdivision 7 of Section 160 of the
State Finance Law to amend the definition of services to exclude
those services provided by not-for-profit organizations in accordance
with the provisions of Article 11-B of the State Finance Law, or
services obtained through a program procurement process in accordance
with Article 11-C of the State Finance Law.

Section 3 of this bill amends Subdivision 12 of Section 163 of the
State Finance Law to
allow the Comptroller to excuse non-material deviations in procurement
procedures if 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 Article 11 of the State Finance Law. Provides
that "non-material deviation" shall mean that such noncompliance (i)
did not prejudice or favor any vendor or potential vendor, (ii) such
noncompliance did not substantially affect the fairness of the
competitive process, (iii) that a new procurement would not be in the
best interest of the state, and (iv) the Comptroller concurs in such
determination. Such determination by the contracting agency and the
comptroller shall be documented in the procurement record.

Section 4 of this bill provides for an immediate effective date.

PRIOR LEGISLATIVE HISTORY:
New Bill.

JUSTIFICATION:
The Procurement Stewardship Act was enacted sixteen
years ago (Chapter 83, Laws of 1995). The Act codified many
procurement standards the Office of the State Comptroller was.
already using to review and approve State contracts for goods
and services. Since passage of the Act, a number of procedural issues
have become apparent. These issues, which require legislative
resolution, include the lack of statutory authority for the award of
program procurements and the inability of the Office of the State
Comptroller to waive non-material deviations in a proposed state
contract.

Program Procurements:
When Article 11 was added to the State Finance
Law in 1995, it codified procedures for the procurement of goods and
services. Currently there is no statutory authority governing the
award of program procurements, commonly known as grants. The
Procurement Stewardship Act should be amended to establish a
statutory framework for such awards that recognizes that for-profit
entities, as well as not-for-profit organizations, often compete for
grant-type awards for services that have traditionally been confined
to the not-for-profit arena. Currently, the award of grants to fund
specific programs run by not-for-profits is not subject to the same
competitive standards as the law prescribes for other types of
procurements. Once the competition involves for-profit entities,
however, the rules of the Procurement Stewardship Act apply even
though they may not make sense for this type of procurement. This
bill defines such procurements as "program procurements" and provides
for consistent treatment whether or not profit-seeking firms are
being enlisted to participate in public programs. Since, under this
bill, a State agency will be able to conduct a program procurement
open to profit-seeking entities only if the Comptroller
grants an exemption from the requirements of Article 11, any
concern about the possibility that State agencies might abuse the
program procurement process should be alleviated.

Comptroller Authority to Waive Non-Material Deviations:

The Office of
the State Comptroller regularly encounters circumstances where the
contracting agency has unwittingly deviated from formal competitive
bidding requirements. Where the agency has otherwise conducted a fair
competition and the deviation does not favor the winning proposer or
prejudice the losing proposers or potential proposers (or in other
words, the deviation is not material to the outcome of the
procurement), the Comptroller's staff often attempts to salvage the
procurement by approving the resulting contract on a single source
basis. The rationale for this approach is that approving such
contracts is in the best interests of the State, since in these
instances it is highly likely that the same proposer would prevail in
a new procurement competition and scarce State resources would be
wasted by conducting a new procurement. The bill authorizes the
Comptroller to approve such contracts if the procuring agency
certifies, on the basis of a preponderance of the evidence documented
in the procurement record, that the noncompliance did not prejudice
or favor any vendor or potential vendor, such noncompliance did not
substantially affect the fairness of the competitive
process, that a new procurement would not be in the best interest of
the state, and (iv) the Comptroller concurs in such determination.
Such determination by the contracting agency and the comptroller
shall be documented in the procurement record.

The Comptroller recommends enactment of this bill to improve
contracting practices in the State.

BUDGET IMPLICATIONS:
This bill has no significant fiscal impact.

EFFECTIVE DATE:
This bill would take effect immediately.

2011-S5817B (ACTIVE) - Bill Text download pdf

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

                                 5817--B

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                              June 17, 2011
                               ___________

Introduced  by  Sen. MARCELLINO -- (at request of the State Comptroller)
  -- read twice and ordered printed, and when printed to be committed to
  the Committee on Rules -- recommitted to the Committee on  Finance  in
  accordance  with  Senate  Rule 6, sec. 8 -- committee discharged, bill
  amended, ordered reprinted as amended and recommitted to said  commit-
  tee  --  committee  discharged,  bill  amended,  ordered  reprinted as
  amended and recommitted to said committee

AN ACT to amend the state finance law, in relation to  program  procure-
  ments, clarifying the definition of services, allowing the state comp-
  troller  to  excuse  non-material deviations in procurement procedures
  and allowing for pilot procurement methods

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

  Section  1.   The state finance law is amended by adding a new article
11-C to read as follows:
                              ARTICLE XI-C
                          PROGRAM PROCUREMENTS
SECTION 179-FF. DEFINITIONS.
        179-GG. PROGRAM PROCUREMENTS.
        179-HH. REQUEST FOR EXEMPTION.
        179-II. PROGRAM PROCUREMENT PROCESS.
  S 179-FF. DEFINITIONS. AS USED IN THIS  ARTICLE  THE  FOLLOWING  TERMS
SHALL HAVE THE FOLLOWING MEANINGS UNLESS OTHERWISE SPECIFIED:
  1.  "COSTS" SHALL BE QUANTIFIABLE AND MAY INCLUDE, WITHOUT LIMITATION,
THE PRICE OF PROVIDING THE GIVEN GOOD OR SERVICE AND THE ADMINISTRATIVE,
TRAINING, STORAGE, MAINTENANCE OR OTHER OVERHEAD EXPENSE ASSOCIATED WITH
A GIVEN GOOD OR SERVICE.
  2. "EMERGENCY" MEANS AN URGENT AND UNEXPECTED REQUIREMENT WHERE PUBLIC
HEALTH, SAFETY, OR WELFARE OR THE CONSERVATION OF PUBLIC RESOURCES IS AT
RISK.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD10876-12-2

S. 5817--B                          2

  3. "PRICE" MEANS THE AMOUNT OF MONEY SET AS CONSIDERATION FOR  A  GOOD
OR  SERVICE  AND  MAY  INCLUDE WHEN APPLICABLE AND WHEN SPECIFIED IN THE
PROPOSAL/APPLICATION, DELIVERY CHARGES, INSTALLATION CHARGES  AND  OTHER
COSTS.
  4.  "PROCUREMENT RECORD" MEANS DOCUMENTATION OF THE DECISIONS MADE AND
THE APPROACH TAKEN IN THE PROCUREMENT PROCESS.
  5. "PROGRAM" MEANS A PROVISION OF LAW AUTHORIZING A  STATE  AGENCY  TO
UNDERTAKE  ACTIVITIES  THAT  ARE  TO BE ACCOMPLISHED IN WHOLE OR IN PART
THROUGH CONTRACTS WITH CERTAIN ENTITIES INCLUDING, BUT NOT  LIMITED  TO,
NOT-FOR-PROFIT  ORGANIZATIONS,  FOR-PROFIT ORGANIZATIONS, MUNICIPALITIES
OR ANY COMBINATION THEREOF.
  6. "PROGRAM PROCUREMENT" MEANS A PROCUREMENT WHICH:
  A.   SEEKS A CONTRACT PURSUANT  TO  WHICH  THE  VENDOR  WOULD  PROVIDE
SERVICES  OR  COMMODITIES  DIRECTLY  TO  THE  PUBLIC OR A SEGMENT OF THE
PUBLIC AND NOT DIRECTLY TO A STATE AGENCY, PROVIDED  THAT  SUCH  SERVICE
SHALL  NOT  INCLUDE  THE  CONSTRUCTION  OR  RECONSTRUCTION OF BUILDINGS,
BRIDGES, ROADS, AND APPURTENANCES FOR USE BY THE STATE;
  B. PROVIDES THE APPLICANT WITH DISCRETION IN THE MANNER IN  WHICH  THE
PURPOSE  IS  TO  BE  ACCOMPLISHED  WITH  FEW SPECIFIC LIMITATIONS ON THE
MANNER OF DELIVERY; AND
  C. HAS BEEN GRANTED AN EXEMPTION PURSUANT TO THE PROVISIONS OF SECTION
ONE HUNDRED SEVENTY-NINE-HH OF THIS  ARTICLE  WHERE  SUCH  EXEMPTION  IS
REQUIRED BY SECTION ONE HUNDRED SEVENTY-NINE-GG OF THIS ARTICLE.
  A  PROGRAM  PROCUREMENT  PROVIDES  THE PROPOSER OR APPLICANT WITH WIDE
DISCRETION AND LATITUDE IN THE MANNER IN WHICH  THE  PURPOSE  IS  TO  BE
ACCOMPLISHED  WITH FEW SPECIFIC LIMITATIONS ON THE SCOPE OF THE PROPOSAL
OR APPLICATION.
  7. "PUBLIC CORPORATION" MEANS A CITY, TOWN, VILLAGE, SCHOOL  DISTRICT,
A  DISTRICT  CORPORATION  OR A PUBLIC BENEFIT CORPORATION AS THOSE TERMS
ARE DEFINED IN SECTION SIXTY-SIX OF THE GENERAL CONSTRUCTION LAW.
  8. "RESPONSIBLE" OR  "RESPONSIBILITY"  MEANS  THE  FINANCIAL  ABILITY,
LEGAL CAPACITY, INTEGRITY, AND PAST PERFORMANCE OF A BUSINESS ENTITY AND
AS SUCH TERMS HAVE BEEN INTERPRETED RELATIVE TO PUBLIC PROCUREMENTS.
  9.  "RESPONSIVE"  MEANS  A  PROPOSER  OR APPLICANT MEETING THE MINIMUM
SPECIFICATIONS OR REQUIREMENTS AS PRESCRIBED IN A SOLICITATION ISSUED BY
A STATE AGENCY.
  10. "SINGLE SOURCE" MEANS A PROGRAM PROCUREMENT IN WHICH ALTHOUGH  TWO
OR  MORE  PROPOSERS  OR  APPLICANTS  CAN  SUPPLY  THE  REQUIRED GOODS OR
SERVICES, THE STATE AGENCY, UPON  WRITTEN  FINDINGS  SETTING  FORTH  THE
MATERIAL AND SUBSTANTIAL REASONS THEREFOR, MAY AWARD THE CONTRACT TO ONE
PROPOSER  OR  APPLICANT OVER ANOTHER. THE STATE AGENCY SHALL DOCUMENT IN
THE PROCUREMENT RECORD THE CIRCUMSTANCES LEADING TO THE SELECTION OF THE
PROPOSER  OR  APPLICANT,  INCLUDING  THE  ALTERNATIVES  CONSIDERED,  THE
RATIONALE FOR SELECTING THE SPECIFIC PROPOSER OR APPLICANT AND THE BASIS
UPON WHICH THE STATE AGENCY DETERMINED THAT THE COST WAS REASONABLE.
  11. "SOLICITATION DOCUMENT" MEANS THE DOCUMENT ISSUED BY A STATE AGEN-
CY  NOTIFYING  PROSPECTIVE PROPOSERS OR APPLICANTS THAT THE STATE AGENCY
WISHES TO RECEIVE PROPOSALS  OR  APPLICATIONS  FOR  PROVIDING  GOODS  OR
SERVICES.
  12. "SOLE SOURCE" MEANS A PROGRAM PROCUREMENT IN WHICH ONLY ONE PROPO-
SER OR APPLICANT IS CAPABLE OF SUPPLYING THE REQUIRED GOODS OR SERVICES.
  13.  "SPECIFICATION"  OR  "REQUIREMENT"  MEANS  ANY DESCRIPTION OF THE
PHYSICAL OR FUNCTIONAL CHARACTERISTICS  OR  THE  NATURE  OF  A  GOOD  OR
SERVICE,  ANY  DESCRIPTION OF THE SERVICES TO BE PERFORMED, THE GOODS OR
SERVICES TO BE PROVIDED, THE NECESSARY QUALIFICATIONS OF THE PROPOSER OR
APPLICANT, THE CAPACITY AND CAPABILITY OF THE PROPOSER OR  APPLICANT  TO

S. 5817--B                          3

COMPLETE  THE PROPOSED CONTRACT SUCCESSFULLY, OR THE PROCESS FOR ACHIEV-
ING SPECIFIC RESULTS OR ANTICIPATED OUTCOMES,  OR  BOTH,  OR  ANY  OTHER
REQUIREMENT  NECESSARY TO PERFORM THE WORK. IT MAY INCLUDE A DESCRIPTION
OF  ANY  OBLIGATORY  TESTING, INSPECTION OR PREPARATION FOR DELIVERY AND
USE, AND MAY INCLUDE FEDERALLY REQUIRED PROVISIONS AND CONDITIONS  WHERE
THE  ELIGIBILITY  FOR FEDERAL FUNDS IS CONDITIONED UPON THE INCLUSION OF
SUCH FEDERALLY REQUIRED PROVISIONS AND CONDITIONS.  SPECIFICATIONS SHALL
BE DESIGNED TO ENHANCE COMPETITION AND, WHERE APPROPRIATE, SET FORTH THE
RELATIVE IMPORTANCE OR WEIGHT OF GEOGRAPHIC DISTRIBUTION AND  ASSESSMENT
OF NEED.
  14.  "STATE  AGENCY"  OR "STATE AGENCIES" MEANS ALL STATE DEPARTMENTS,
BOARDS, COMMISSIONS, OFFICES OR INSTITUTIONS BUT EXCLUDES, HOWEVER,  FOR
THE  PURPOSES OF SUBDIVISION FIVE OF SECTION THREE HUNDRED FIFTY-FIVE OF
THE EDUCATION LAW, THE STATE UNIVERSITY OF NEW YORK, AND  EXCLUDES,  FOR
THE  PURPOSES  OF SUBDIVISION A OF SECTION SIXTY-TWO HUNDRED EIGHTEEN OF
THE EDUCATION LAW, THE CITY UNIVERSITY OF NEW YORK.   FURTHERMORE,  SUCH
TERM SHALL NOT INCLUDE THE LEGISLATURE OR THE JUDICIARY.
  S  179-GG.  PROGRAM  PROCUREMENTS. THE PROGRAM PROCUREMENT PROCESS SET
FORTH IN THIS ARTICLE, RATHER THAN THE REQUIREMENTS OF ARTICLE ELEVEN OF
THIS CHAPTER, SHALL APPLY TO:
  1. PROGRAM PROCUREMENTS OPEN ONLY TO NOT-FOR-PROFIT  ORGANIZATIONS  OR
PUBLIC CORPORATIONS OR BOTH, AND
  2.  THOSE  PROGRAM  PROCUREMENTS OPEN TO PROFIT-SEEKING ENTITIES WHERE
THE STATE AGENCY HAS OBTAINED FROM THE STATE COMPTROLLER, IN  ACCORDANCE
WITH  SECTION  ONE HUNDRED SEVENTY-NINE-HH OF THIS ARTICLE, AN EXEMPTION
FROM THE REQUIREMENTS OF ARTICLE ELEVEN OF THIS CHAPTER.
  S 179-HH. REQUEST FOR EXEMPTION. BEFORE THE ISSUANCE OF A SOLICITATION
DOCUMENT, A STATE AGENCY CONDUCTING A PROCUREMENT OPEN TO PROFIT-SEEKING
ENTITIES WHICH THE STATE AGENCY BELIEVES FALLS WITHIN THE MEANING  OF  A
PROGRAM  PROCUREMENT,  AS  DEFINED IN THIS ARTICLE, SHALL MAKE A WRITTEN
REQUEST TO THE STATE COMPTROLLER FOR AN EXEMPTION FROM THE  REQUIREMENTS
OF  ARTICLE  ELEVEN  OF THIS CHAPTER. THE STATE COMPTROLLER SHALL MAKE A
WRITTEN DETERMINATION AS TO WHETHER THE PROPOSED PROCUREMENT FALLS WITH-
IN THE DEFINITION OF A PROGRAM PROCUREMENT AS SET FORTH IN  SECTION  ONE
HUNDRED  SEVENTY-NINE-FF  OF THIS ARTICLE AND IS IN THE BEST INTEREST OF
THE STATE, AND SHALL EITHER GRANT OR DENY THE EXEMPTION ON THE BASIS  OF
SUCH  DETERMINATION.  IF  THE STATE COMPTROLLER GRANTS A STATE AGENCY AN
EXEMPTION FROM THE REQUIREMENTS OF ARTICLE ELEVEN OF THIS  CHAPTER,  THE
PROGRAM  PROCUREMENT  SHALL BE CONDUCTED IN ACCORDANCE WITH THE REQUIRE-
MENTS OF THIS ARTICLE.
  S 179-II. PROGRAM PROCUREMENT PROCESS. 1. METHOD OF  PROCUREMENT.  THE
STATE  AGENCY SHALL DOCUMENT IN THE PROCUREMENT RECORD AND IN ADVANCE OF
THE INITIAL RECEIPT OF PROPOSALS/APPLICATIONS THE DETERMINATION  OF  THE
EVALUATION CRITERIA, AND THE WEIGHT ASSIGNED TO EACH, AND THE PROCESS TO
BE  USED  IN  THE  DETERMINATION  OF AWARD OR FUNDING, AND THE MANNER IN
WHICH THE EVALUATION AND SELECTION SHALL BE CONDUCTED.
  2. PUBLIC NOTICE. ALL PROGRAM PROCUREMENTS BY  STATE  AGENCIES  OR  AN
AWARD  OR  FUNDING IN EXCESS OF FIFTEEN THOUSAND DOLLARS SHALL BE ADVER-
TISED IN THE STATE'S PROCUREMENT OPPORTUNITIES NEWSLETTER IN  ACCORDANCE
WITH ARTICLE FOUR-C OF THE ECONOMIC DEVELOPMENT LAW.
  3.  SOLICITING AND ACCEPTING PROPOSALS OR APPLICATIONS. A SOLICITATION
DOCUMENT ISSUED BY A STATE AGENCY SHALL PRESCRIBE THE MINIMUM SPECIFICA-
TIONS OR REQUIREMENTS THAT MUST BE MET TO BE CONSIDERED  RESPONSIVE  AND
SHALL  DESCRIBE  AND DISCLOSE THE GENERAL MANNER IN WHICH THE EVALUATION
AND SELECTION SHALL BE CONDUCTED. WHERE  APPROPRIATE,  THE  SOLICITATION
DOCUMENT  SHALL  IDENTIFY  THE RELATIVE IMPORTANCE OR WEIGHT OF COST AND

S. 5817--B                          4

THE OVERALL TECHNICAL CRITERIA TO BE CONSIDERED BY  A  STATE  AGENCY  IN
MAKING A PROGRAM PROCUREMENT DETERMINATION.  CONSIDERATION, WHERE APPRO-
PRIATE,  SHOULD  INCLUDE  GEOGRAPHIC  DISTRIBUTION  OF  FUNDING BASED ON
ASSESSED NEEDS OF THE COMMUNITY.
  4. SELECTION AND CONTRACT AWARD. A. SELECTION AND CONTRACT AWARD SHALL
BE CONSISTENT WITH: (I) THE TERMS OF THE SOLICITATION DOCUMENT ISSUED BY
THE  STATE  AGENCY; AND (II) THE CONTRACT AWARD METHODOLOGY SET FORTH IN
THE PROCUREMENT RECORD BEFORE THE INITIAL RECEIPT OF PROPOSALS OR APPLI-
CATIONS.
  B. PROGRAM PROCUREMENT AWARDS SHALL BE MADE TO A PROPOSER OR APPLICANT
ON THE BASIS OF TECHNICAL MERIT WITH  THE  CONSIDERATION  GIVEN  TO  THE
REASONABLENESS  OF  COSTS. THE CONTRACT AWARD OR AWARDS OR FUNDING SHALL
BE ALLOCATED TO THE HIGHEST RANKED PROPOSAL  OR  PROPOSALS.  NOTHING  IN
THIS  SECTION,  HOWEVER, SHALL BE DEEMED TO PROHIBIT A STATE AGENCY FROM
EVALUATING COST SEPARATELY IN ITS SELECTION AND CONTRACT AWARD.
  C. A PROCUREMENT RECORD SHALL BE MAINTAINED FOR EACH PROGRAM  PROCURE-
MENT  IDENTIFYING,  WITH SUPPORTING DOCUMENTATION, DECISIONS MADE BY THE
STATE AGENCY DURING THE PROCUREMENT PROCESS.
  D. SELECTION AND CONTRACT AWARD SHALL BE A  WRITTEN  DETERMINATION  IN
THE PROCUREMENT RECORD MADE BY THE STATE AGENCY.
  E. PRIOR TO MAKING A PROGRAM PROCUREMENT AWARD, THE STATE AGENCY SHALL
MAKE A DETERMINATION OF THE RESPONSIBILITY OF THE PROPOSER OR APPLICANT.
  5.  REDUCTION  OF AWARD. A STATE AGENCY MAY REDUCE THE MONETARY AMOUNT
OF THE AWARDS MADE UNDER A  PROGRAM  PROCUREMENT  IF  THE  STATE  AGENCY
RESERVES THE RIGHT TO MAKE SUCH A REDUCTION IN THE SOLICITATION DOCUMENT
AND SUCH REDUCTION IS CONSISTENT WITH A PREDEFINED METHODOLOGY SET FORTH
IN  THE  PROCUREMENT RECORD PRIOR TO THE RECEIPT OF INITIAL PROPOSALS OR
APPLICATIONS.
  6. DISCRETIONARY PROGRAM PROCUREMENT AWARDS. A STATE AGENCY MAY MAKE A
PROGRAM PROCUREMENT AWARD IN AN  AMOUNT  NOT  EXCEEDING  FIFTY  THOUSAND
DOLLARS  WITHOUT  A  FORMAL COMPETITIVE PROCESS. THE STATE AGENCY SHALL,
HOWEVER, DOCUMENT THAT THE AMOUNT OF THE AWARD OR FUNDING IS REASONABLE.
  7. CONTRACT AWARDS.  A. CONTRACT AWARDS SHALL BE MADE ON THE BASIS  OF
HIGHEST  RANK  IN  ACCORDANCE  WITH  THE SELECTION AND AWARD METHODOLOGY
ESTABLISHED IN ACCORDANCE WITH THE PROGRAM  REQUIREMENTS  SET  FORTH  BY
EACH AGENCY FOR SUCH PROGRAM.
  B.  SINGLE  OR SOLE SOURCE CONTRACT AWARDS, OR CONTRACT AWARDS MADE TO
MEET EMERGENCIES ARISING FROM UNFORESEEN CAUSES, MAY BE MADE  WITHOUT  A
FORMAL  COMPETITIVE PROCESS AND SHALL ONLY BE MADE UNDER UNUSUAL CIRCUM-
STANCES AND SHALL BE BASED UPON A DETERMINATION BY THE STATE AGENCY THAT
THE SPECIFICATIONS OR REQUIREMENTS FOR SUCH AWARD HAVE BEEN DESIGNED  IN
A  FAIR  AND  EQUITABLE MANNER.   THE STATE AGENCY SHALL DOCUMENT IN THE
PROCUREMENT RECORD, SUBJECT TO REVIEW  BY  THE  STATE  COMPTROLLER,  THE
BASIS  FOR  A  DETERMINATION TO MAKE AN AWARD TO A SINGLE SOURCE OR SOLE
SOURCE, OR THE NATURE OF THE EMERGENCY GIVING RISE TO THE AWARD.
  8. CONTRACTS.  ANY  CONTRACT  RESULTING  FROM  A  PROGRAM  PROCUREMENT
AWARDED PURSUANT TO THE PROVISIONS OF THIS ARTICLE THAT INCLUDES FUNDING
FOR  COMMODITIES  OR  CONSTRUCTION  SERVICES IN EXCESS OF FIFTY THOUSAND
DOLLARS SHALL INCLUDE CONTRACT  LANGUAGE  REQUIRING  THE  CONTRACTOR  TO
ACQUIRE  SUCH  COMMODITIES  AND/OR  CONSTRUCTION  SERVICES PURSUANT TO A
COMPETITIVE BIDDING PROCESS.
  9. 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.

S. 5817--B                          5

  S 2. Subdivision 7 of section 160 of the state finance law, as amended
by section 30 of part L of chapter 55 of the laws of 2012, is 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,  technology  shall  be deemed a service. Services, as
defined in this article, shall not apply  to  those  contracts  for  (I)
architectural,  engineering  or  surveying services, [or those contracts
approved] (II) SERVICES PROVIDED BY  A  NOT-FOR-PROFIT  ORGANIZATION  in
accordance  with  article  eleven-B  of  this chapter, OR (III) SERVICES
OBTAINED  THROUGH  PROGRAM  PROCUREMENTS  IN  ACCORDANCE  WITH   ARTICLE
ELEVEN-C OF THIS CHAPTER.
  S  3. 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
hundred twelve of this chapter. WHERE THE  CONTRACTING  AGENCY  HAS  NOT
COMPLIED  WITH  ONE  OR MORE PROVISIONS OF THIS ARTICLE, THE COMPTROLLER
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 COMPTROLLER
SHALL BE DOCUMENTED IN THE PROCUREMENT RECORD; AND
  B. THE STATE COMPTROLLER CONCURS IN SUCH DETERMINATION.
  S 4. This act shall take effect immediately and  shall  apply  to  any
procurement initiated on or after such date; provided, however, that the
amendments to section 163 of the state finance law made by section three
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.

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Sponsored By

Carl L. Marcellino

Archive: Last Bill Status - In Senate Committee Finance Committee

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