Senate Bill S4076A

2013-2014 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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Date of Action	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jan 08, 2014	referred to finance
Jun 10, 2013	print number 4076a
Jun 10, 2013	amend and recommit to finance
Mar 07, 2013	referred to finance

Bill Amendments

2013-S4076 - Details

See Assembly Version of this Bill:: A3884
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 2011-2012 Legislative Session:: S5817, A9343

2013-S4076 - 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 the publishing of non-competitive awards in the procurement opportunities newsletter.

2013-S4076 - Sponsor Memo

                                BILL NUMBER:S4076

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

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 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 services shall not
include the construction or reconstruction of buildings, bridges,
roads, and appurtenances for use by the State. In addition, a program
procurement is a procurement that 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 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 conformity 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. Section 3 also 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:  S. 5817-B and A. 9343-A of 2011-1012

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
would 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.

2013-S4076 - Bill Text download pdf

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

                                  4076

                       2013-2014 Regular Sessions

                            I N  S E N A T E

                              March 7, 2013
                               ___________

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 Finance

AN ACT to amend the state finance law, in relation to  program  procure-
  ments,  clarifying  the  definition of services and allowing the state
  comptroller to excuse non-material deviations  in  procurement  proce-
  dures

  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.
                                                           LBD04653-01-3

S. 4076                             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.    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
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. 4076                             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 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
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.

S. 4076                             4

  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 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

S. 4076                             5

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.

2013-S4076A (ACTIVE) - Details

See Assembly Version of this Bill:: A3884
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 2011-2012 Legislative Session:: S5817, A9343

2013-S4076A (ACTIVE) - Summary

2013-S4076A (ACTIVE) - Sponsor Memo

                                BILL NUMBER:S4076A

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

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 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 competitive 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
services shall not include the construction or reconstruction of
buildings, bridges, roads, and appurtenances for use by the State. In
addition, a program, procurement is a procurement that 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. The bill
specifically provides that a program procurement s hall not include
any non-competitive, single source or sole source contract. 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 conformity 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 550,000 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, o r 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. Section 3 also 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:  S. 5817-B and A. 9343-A of 2011-1012

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
would 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 e 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.

2013-S4076A (ACTIVE) - Bill Text download pdf

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

                                 4076--A

                       2013-2014 Regular Sessions

                            I N  S E N A T E

                              March 7, 2013
                               ___________

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  Finance  --  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 and  allowing  the  state
  comptroller  to  excuse  non-material deviations in procurement proce-
  dures

  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.
                                                           LBD04653-03-3

S. 4076--A                          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.    SEEKS  A COMPETITIVE 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  BUILD-
INGS, 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. A PROGRAM PROCUREMENT SHALL NOT INCLUDE ANY NON-COMPETI-
TIVE, SINGLE SOURCE OR SOLE SOURCE CONTRACT.
  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

S. 4076--A                          3

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
THE  OVERALL  TECHNICAL  CRITERIA  TO BE CONSIDERED BY A STATE AGENCY IN
MAKING A PROGRAM PROCUREMENT DETERMINATION.  CONSIDERATION, WHERE APPRO-

S. 4076--A                          4

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 amended
by section 30 of part L of chapter 55 of the laws of 2012, is amended to
read as follows:

S. 4076--A                          5

  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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Senate Bill S4076A

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Archive: Last Bill Status - In Senate Committee Finance Committee

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Sponsored By

Carl L. Marcellino

Archive: Last Bill Status - In Senate Committee Finance Committee

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Bill Amendments

2013-S4076 - Details

2013-S4076 - Summary

2013-S4076 - Sponsor Memo

2013-S4076 - Bill Text download pdf

2013-S4076A (ACTIVE) - Details

2013-S4076A (ACTIVE) - Summary

2013-S4076A (ACTIVE) - Sponsor Memo

2013-S4076A (ACTIVE) - Bill Text download pdf

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