LBD15317-02-6
S. 7893 2
A VENDOR PURSUANT TO A STATE CONTRACT AND SUCH SUBCONTRACT IS VALUED AT
ONE HUNDRED THOUSAND DOLLARS OR MORE AND IS KNOWN AT THE TIME OF THE
AWARD OF THE STATE CONTRACT TO THE VENDOR.
E. "SYSTEM" MEANS THE ONLINE SOFTWARE, DATA AND RELATED RESOURCES
MAINTAINED BY THE COMPTROLLER TO COMPILE VENDOR RESPONSIBILITY INFORMA-
TION.
F. "TERM OF SERVICE" MEANS THE TERMS AND CONDITIONS DEVELOPED BY THE
STATE COMPTROLLER AND AGREED TO BY EACH AUTHORIZED USER PRIOR TO GAINING
ACCESS TO ONLINE SERVICES. TERMS OF SERVICE SHALL INCLUDE A DESCRIPTION
OF THE SERVICES, OBLIGATIONS OF THE STATE COMPTROLLER AND THE AUTHORIZED
USER, A DESCRIPTION OF THE STATE COMPTROLLER'S PRIVACY POLICY, AUTHOR-
IZED USER CODE OF CONDUCT, AND INDEMNITY FOR THE STATE COMPTROLLER AND
THE STATE OF NEW YORK. TERMS OF SERVICE ARE SUBJECT TO CHANGE AS
PRESCRIBED BY THE STATE COMPTROLLER. AUTHORIZED USERS MAY VIEW CHANGES
VIA THE STATE COMPTROLLER'S INTERNET SITE.
G. "VENDOR" MEANS ANY PERSON, PARTNERSHIP, CORPORATION OR LIMITED
LIABILITY COMPANY OR ANY BUSINESS ENTITY BIDDING ON A STATE PROCUREMENT
OR OTHERWISE AWARDED A STATE CONTRACT.
H. "VENDOR RESPONSIBILITY" MEANS THAT A VENDOR HAS THE CAPACITY TO
FULLY PERFORM THE TERMS OF A CONTRACT AND THE INTEGRITY AND BUSINESS
ETHICS TO JUSTIFY AN AWARD OF PUBLIC DOLLARS. A DETERMINATION OF VENDOR
RESPONSIBILITY SHALL INCLUDE CONSIDERATION OF FACTORS INCLUDING, BUT NOT
LIMITED TO, FINANCIAL AND ORGANIZATIONAL CAPACITY, LEGAL AUTHORITY,
INTEGRITY AND PAST PERFORMANCE ON GOVERNMENTAL CONTRACTS.
2. A. STATE AGENCIES SHALL ENROLL WITH THE STATE COMPTROLLER TO ACCESS
THE SYSTEM MAINTAINED BY THE COMPTROLLER TO COMPILE VENDOR RESPONSIBIL-
ITY INFORMATION. STATE AGENCIES SHALL AGREE TO AND ABIDE BY THE TERMS OF
SERVICE FOR SUCH SYSTEM AS THE STATE COMPTROLLER DEEMS NECESSARY.
B. FOR EACH CONTRACT OR SUBCONTRACT BETWEEN A VENDOR AND A SUBCONTRAC-
TOR WHERE, PURSUANT TO LAW OR BY DIRECTION OF THE STATE AGENCY, DISCLO-
SURE FOR VENDOR RESPONSIBILITY IS REQUIRED, THE STATE AGENCY SHALL:
(I) PROVIDE NOTICE TO VENDORS BIDDING FOR PROCUREMENTS ADMINISTERED BY
THE STATE AGENCY THAT ANY VENDOR AND SUBCONTRACTOR, SUBMITTING A VENDOR
RESPONSIBILITY QUESTIONNAIRE SHALL DO SO VIA THE SYSTEM MAINTAINED TO
COMPILE VENDOR RESPONSIBILITY INFORMATION;
(II) PROVIDE VENDORS WITH INSTRUCTIONS ON HOW TO ELECTRONICALLY ACCESS
THE SYSTEM AND PROVIDE CONTACT INFORMATION FOR ASSISTANCE WITH ENROLL-
MENT. THIS INFORMATION SHALL BE MADE AVAILABLE PRIOR TO THE TIME WHEN
VENDORS ARE REQUIRED TO SUBMIT DISCLOSURE FOR VENDOR RESPONSIBILITY; AND
(III) ACCESS THE SYSTEM TO OBTAIN AND EVALUATE ANY DATA SUBMITTED BY A
VENDOR PROPOSED FOR CONTRACT AWARD. STATE AGENCIES SHALL ENSURE THE
SUBMISSION FILED BY THE VENDOR MEETS SUCH SYSTEM'S TIMELINESS STANDARDS.
SUCH PROVISIONS APPLY REGARDLESS OF WHETHER THE CONTRACT IS SUBJECT TO
PRE-REVIEW AND APPROVAL BY THE STATE COMPTROLLER.
C. FOR CONTRACTS WHERE VENDOR DISCLOSURE IS NOT OTHERWISE REQUIRED,
THE STATE AGENCY AT ITS DISCRETION, MAY REQUIRE VENDORS BIDDING ON
PROCUREMENTS, AND/OR SUBCONTRACTORS, TO SUBMIT A VENDOR RESPONSIBILITY
QUESTIONNAIRE VIA THE SYSTEM. NOTHING CONTAINED IN THIS PARAGRAPH SHALL
BE CONSTRUED TO ALTER THE EXISTING AUTHORITY OF THE STATE COMPTROLLER TO
REQUIRE THE SUBMISSION OF A VENDOR RESPONSIBILITY QUESTIONNAIRE IN
CONJUNCTION WITH HIS OR HER DUTY TO REVIEW AND APPROVE STATE CONTRACTS
PRIOR TO SUCH CONTRACTS BECOMING EFFECTIVE.
D. STATE AGENCIES SHALL PROVIDE ACCESS TO THE SYSTEM TO USERS WITHIN
THEIR ORGANIZATION, AS DEEMED APPROPRIATE BY THE HEAD OF THE STATE AGEN-
CY OR HIS OR HER DESIGNEE. STATE AGENCY USERS PROVIDED WITH SUCH ACCESS
SHALL BE THOSE INDIVIDUALS, WHO, AS PART OF THEIR OFFICIAL JOB DUTIES,
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ARE REQUIRED TO ASSESS AND/OR REVIEW VENDOR RESPONSIBILITY FOR THE AGEN-
CY'S CONTRACTS.
S 2. Subdivisions 7 and 10 of section 160 of the state finance law,
subdivision 7 as amended by section 30 of part L of chapter 55 of the
laws of 2012 and subdivision 10 as added by chapter 83 of the laws of
1995, are amended to read as follows:
7. "Service" or "services" means the performance of a task or tasks
and may include a material good or a quantity of material goods, and
which is the subject of any purchase or other exchange. For the purposes
of this article, INFORMATION technology shall be deemed a service.
Services, as defined in this article, shall not apply to those contracts
for architectural, engineering or surveying services, or those contracts
approved in accordance with article eleven-B of this chapter.
10. ["Technology"] "INFORMATION TECHNOLOGY" means either a good or a
service or a combination thereof, [that results in a technical method of
achieving a practical purpose or in improvements in productivity] USED
IN THE APPLICATION OF ANY COMPUTER OR ELECTRONIC INFORMATION EQUIPMENT
OR INTERCONNECTED SYSTEM THAT IS USED IN THE ACQUISITION, STORAGE,
MANIPULATION, MANAGEMENT, MOVEMENT, CONTROL, DISPLAY, SWITCHING, INTER-
CHANGE, TRANSMISSION, OR RECEPTION OF DATA INCLUDING, BUT NOT LIMITED
TO, HARDWARE, SOFTWARE, FIRMWARE, PROGRAMS, SYSTEMS, NETWORKS, INFRAS-
TRUCTURE, MEDIA, AND RELATED MATERIAL USED TO AUTOMATICALLY AND ELEC-
TRONICALLY COLLECT, RECEIVE, ACCESS, TRANSMIT, DISPLAY, STORE, RECORD,
RETRIEVE, ANALYZE, EVALUATE, PROCESS, CLASSIFY, MANIPULATE, MANAGE,
ASSIMILATE, CONTROL, COMMUNICATE, EXCHANGE, CONVERT, CONVERGE, INTER-
FACE, SWITCH, OR DISSEMINATE DATA OF ANY KIND OR FORM. Goods may be
either new or used.
S 3. Paragraphs g and i of subdivision 2 of section 161 of the state
finance law, as added by chapter 83 of the laws of 1995, are amended to
read as follows:
g. Consult with and advise the commissioner on strategic INFORMATION
technology investments that will facilitate electronic access to the
terms and conditions of existing procurement contracts, promote elec-
tronic commerce including, but not limited to, payment to vendors,
promote and enhance the efficiency of the procurement of products and
services by or for state agencies and produce useful information that
supports state procurement operations, management, analysis and decision
making including, but not limited to, data concerning the status and use
of procurement contracts and the number and type of contracts and award
recipients;
i. Establish and, from time to time, amend guidelines for the procure-
ment of services and INFORMATION technology in accordance with the
provisions of this article. Such guidelines shall ensure the wise and
prudent use of public money in the best interest of the taxpayers of the
state; guard against favoritism, improvidence, extravagance, fraud and
corruption; and ensure that service contracts are awarded on the basis
of best value, including, but not limited to, the following criteria:
quality, cost, and efficiency;
S 4. Paragraph k of subdivision 1 and subdivisions 6 and 7 of section
163 of the state finance law, paragraph k of subdivision 1 as added by
section 36 of part L of chapter 55 of the laws of 2012, subdivision 6 as
amended by chapter 569 of the laws of 2015 and subdivision 7 as amended
by section 10 of part L of chapter 55 of the laws of 2012, are amended
to read as follows:
k. "Authorized user" or "non-state agency purchaser" means (i) any
officer, body or agency of the state or of a political subdivision or a
S. 7893 4
district therein, or fire company or volunteer ambulance service as such
are defined in section one hundred of the general municipal law, to make
purchases of commodities, services and INFORMATION technology through
the office of general services' centralized contracts, pursuant to the
provisions of section one hundred four of the general municipal law;
(ii) any county extension service association as authorized under subdi-
vision eight of section two hundred twenty-four of the county law; (iii)
any association or other entity as specified in and in accordance with
section one hundred nine-a of the general municipal law; (iv) any asso-
ciation, consortium or group of privately owned or municipal, federal or
state owned or operated hospitals, medical schools, other health related
facilities or voluntary ambulance services, which have entered into a
contract and made mutual arrangements for the joint purchase of commod-
ities, services and INFORMATION technology pursuant to section twenty-
eight hundred three-a of the public health law; (v) any institution for
the instruction of the deaf or of the blind listed in section forty-two
hundred one of the education law; (vi) any qualified non-profit-making
agency for the blind approved by the commissioner of the office of chil-
dren and family services or the office of temporary and disability
assistance; (vii) any qualified charitable non-profit-making agency for
the severely disabled approved by the commissioner of education; (viii)
any hospital or residential health care facility as defined in section
twenty-eight hundred one of the public health law; (ix) any private
not-for-profit mental hygiene facility as defined in section 1.03 of the
mental hygiene law; (x) any public authority or public benefit corpo-
ration of the state, including the port authority of New York and New
Jersey and the interstate environmental commission; (xi) any public
library, association library, library system, cooperative library
system, the New York Library Association, and the New York State Associ-
ation of Library Boards or any other library except those which are
operated by for profit entities; (xii) any other association or entity
as specified in state law, to make purchases of commodities, services
and INFORMATION technology through the office of general services'
centralized contracts. Such qualified non-profit-making agencies for the
blind and severely disabled may make purchases from the correctional
industries program of the department of corrections and community super-
vision subject to rules pursuant to the correction law.
6. Discretionary buying thresholds. Pursuant to guidelines established
by the state procurement council: the commissioner may purchase services
and commodities in an amount not exceeding eighty-five thousand dollars
without a formal competitive process; state agencies may purchase
services and commodities in an amount not exceeding fifty thousand
dollars without a formal competitive process; and state agencies may
purchase commodities or services from small business concerns or those
certified pursuant to articles fifteen-A and seventeen-B of the execu-
tive law, or commodities or INFORMATION technology that are recycled or
remanufactured, or commodities that are food, including milk and milk
products, grown, produced or harvested in New York state in an amount
not exceeding two hundred thousand dollars without a formal competitive
process.
7. Method of procurement. Consistent with the requirements of subdivi-
sions three and four of this section, state agencies shall select among
permissible methods of procurement including, but not limited to, an
invitation for bid, request for proposals or other means of solicitation
pursuant to guidelines issued by the state procurement council. State
agencies may accept bids electronically including submission of the
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statement of non-collusion required by section one hundred thirty-nine-d
of this chapter and, starting April first, two thousand twelve, and
ending March thirty-first, two thousand fifteen, may, for commodity,
service and INFORMATION technology contracts require electronic
submission as the sole method for the submission of bids for the solic-
itation. State agencies shall undertake no more than eighty-five such
electronic bid solicitations, none of which shall be reverse auctions,
prior to April first, two thousand fifteen. In addition, state agencies
may conduct up to twenty reverse auctions through electronic means,
prior to April first, two thousand fifteen. Prior to requiring the elec-
tronic submission of bids, the agency shall make a determination, which
shall be documented in the procurement record, that electronic
submission affords a fair and equal opportunity for offerers to submit
responsive offers. Within thirty days of the completion of the eighty-
fifth electronic bid solicitation, or by April first, two thousand
fifteen, whichever is earlier, the commissioner shall prepare a report
assessing the use of electronic submissions and make recommendations
regarding future use of this procurement method. In addition, within
thirty days of the completion of the twentieth reverse auction through
electronic means, or by April first, two thousand fifteen, whichever is
earlier, the commissioner shall prepare a report assessing the use of
reverse auctions through electronic means and make recommendations
regarding future use of this procurement method. Such reports shall be
published on the website of the office of general services. Except where
otherwise provided by law, procurements shall be competitive, and state
agencies shall conduct formal competitive procurements to the maximum
extent practicable. State agencies shall document the determination of
the method of procurement and the basis of award in the procurement
record. Where the basis for award is the best value offer, the state
agency shall document, in the procurement record and in advance of the
initial receipt of offers, the determination of the evaluation criteria,
which whenever possible, shall be quantifiable, and the process to be
used in the determination of best value and the manner in which the
evaluation process and selection shall be conducted.
S 5. Subdivision 9 of section 163 of the state finance law is amended
by adding a new paragraph c-1 to read as follows:
C-1. WHERE A STATE AGENCY DETERMINES THAT NON-MATERIAL CHANGES TO THE
SPECIFICATIONS AS SET FORTH IN THE SOLICITATION WOULD BE IN THE BEST
INTEREST OF THE STATE AND, WHEN PROVIDED FOR IN THE SOLICITATION, STATE
AGENCIES MAY REQUEST BEST AND FINAL OFFERS, WHICH SHALL BE IN WRITING
AND SOLICITED IN THE SAME MANNER FROM ALL OFFERERS DETERMINED TO BE
SUSCEPTIBLE OF BEING SELECTED FOR CONTRACT AWARD, WITH THE INTENT OF
ALLOWING AN OFFERER TO REVISE ITS COST; PROVIDED, HOWEVER, THAT A STATE
AGENCY MAY NOT MAKE A MODIFICATION TO THE SOLICITATION IF SUCH MODIFICA-
TION WOULD PREJUDICE ANY BIDDER OR POTENTIAL BIDDER AND, PROVIDED
FURTHER, THAT NO BEST AND FINAL OFFER MAY BE ACCEPTED OR CONSIDERED BY A
STATE AGENCY UNLESS SUCH BEST AND FINAL OFFER IS SUBMITTED IN RESPONSE
TO A REQUEST BY THE STATE AGENCY.
S 6. Paragraph e of subdivision 10 of section 163 of the state finance
law, as amended by chapter 137 of the laws of 2008, is amended to read
as follows:
e. The commissioner may authorize purchases required by state agencies
or other authorized purchasers by letting a contract pursuant to a writ-
ten agreement, or by approving the use of a contract let by any depart-
ment, agency or instrumentality of the United States government and/or
any department, agency, office, political subdivision or instrumentality
S. 7893 6
of any state or states. A state agency purchaser shall document in the
procurement record its rationale for the use of a contract let by any
department, agency or instrumentality of the United States government or
any department, agency, office, political subdivision or instrumentality
of any other state or states. Such rationale shall include, but need not
be limited to, a determination of need, a consideration of the procure-
ment method by which the contract was awarded, an analysis of alterna-
tive procurement sources including an explanation why a competitive
procurement or the use of a centralized contract let by the commissioner
is not in the best interest of the state, and the reasonableness of
cost. THE AUTHORITY TO USE A CONTRACT LET BY ANOTHER GOVERNMENTAL ENTI-
TY PURSUANT TO THIS PARAGRAPH IS INTENDED TO BENEFIT THE STATE BY USING
CONTRACTS IN PLACE THAT PROVIDE FOR THE SAME SERVICE OR COMMODITY SOUGHT
BY A STATE AGENCY AT A PRICE DETERMINED TO BE REASONABLE BY THE STATE
AGENCY. SUCH CONTRACTS ARE NOT INTENDED TO BE USED PRIMARILY TO AVOID
COMPETITIVE BIDDING. USE OF MULTIPLE AWARD CONTRACTS PURSUANT TO THIS
PARAGRAPH SHALL FOLLOW THE SAME BASIS OF SELECTION AMONG THE MULTIPLE
AWARDEES AS WAS PRESCRIBED BY THE ORIGINAL CONTRACTING GOVERNMENTAL
ENTITY.
S 7. Subdivision 3 of section 112 of the state finance law, as
amended by section 2-c of part F of chapter 57 of the laws of 2016, is
amended to read as follows:
3. A contract or other instrument wherein the state or any of its
officers, agencies, boards or commissions agrees to give a consideration
other than the payment of money, when the value or reasonably estimated
value of such consideration exceeds twenty-five thousand dollars, shall
not become a valid enforceable contract unless such contract or other
instrument shall first be approved by the comptroller and filed in his
office. FOR PURPOSES OF THIS SUBDIVISION, WHERE CONSIDERATION CANNOT BE
DETERMINED IN TERMS OF MONETARY VALUE, IT SHALL BE VALUED IN TERMS OF
INTRINSIC VALUE.
S 8. This act shall take effect immediately; provided, however,
section one of this act shall take effect on the one hundred eightieth
day after it shall have become a law; provided, further however, that
the provisions of sections four, five and six of this act shall apply to
any procurement initiated on or after such sections shall have become a
law; provided, further, however, that the amendments to section 163 of
the state finance law made by sections four, five, and six 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.