S T A T E O F N E W Y O R K
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3917
2019-2020 Regular Sessions
I N A S S E M B L Y
January 31, 2019
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Introduced by M. of A. ENGLEBRIGHT, MONTESANO -- read once and referred
to the Committee on Governmental Operations
AN ACT to amend the state finance law, in relation to pay-to-play
disclosure reform
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 section
139-m to read as follows:
§ 139-M. REPORTING OF CONTRIBUTIONS BY BUSINESS ENTITIES. 1. FOR THE
PURPOSES OF THIS SECTION, A "BUSINESS ENTITY" SHALL MEAN ANY NATURAL OR
LEGAL PERSON, BUSINESS CORPORATION, PROFESSIONAL SERVICES CORPORATION,
LIMITED LIABILITY COMPANY, PARTNERSHIP, LIMITED PARTNERSHIP, BUSINESS
TRUST, ASSOCIATION, LABOR ORGANIZATION, RELIGIOUS CORPORATION, EDUCATION
CORPORATION, OR NOT-FOR-PROFIT CORPORATION ORGANIZED UNDER THE LAWS OF
THIS STATE OR ANY OTHER STATE OR FOREIGN JURISDICTION, INCLUDING:
A. ALL INDIVIDUALS WHO OWN OR CONTROL MORE THAN TEN PERCENT OF THE
PROFITS OR ASSETS OF A BUSINESS ENTITY OR TEN PERCENT OF THE STOCK IN
THE CASE OF A BUSINESS ENTITY THAT IS A CORPORATION FOR PROFIT, AS
APPROPRIATE;
B. KEY EMPLOYEES OF THE BUSINESS ENTITY, WHICH SHALL MEAN OFFICERS,
MEMBERS OF THE BOARD OF DIRECTORS AND TRUSTEES, AND THEIR SPOUSES;
C. ANY SUBSIDIARIES DIRECTLY OR INDIRECTLY CONTROLLED BY THE BUSINESS
ENTITY;
D. ANY POLITICAL ORGANIZATION ORGANIZED UNDER SECTION 527 OF THE
INTERNAL REVENUE CODE THAT IS DIRECTLY OR INDIRECTLY CONTROLLED BY THE
BUSINESS ENTITY, OTHER THAN A CANDIDATE COMMITTEE, ELECTION FUND, OR
POLITICAL PARTY COMMITTEE; AND
E. IF A BUSINESS ENTITY IS A NATURAL PERSON, THAT PERSON'S SPOUSE
AND/OR CHILD, RESIDING WITH THE BUSINESS ENTITY.
2. PRIOR TO THE SUBMISSION TO THE DEPARTMENT OF LAW AND THE DEPARTMENT
OF AUDIT AND CONTROL FOR APPROVAL OF A PROCUREMENT CONTRACT FOR THE SALE
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD07147-01-9
A. 3917 2
OF GOODS, SERVICES, OR CONSTRUCTION TO A STATE AGENCY, AS DEFINED IN
SECTION ONE HUNDRED SIXTY OF THIS CHAPTER, OR ANY PUBLIC AUTHORITY WHEN
ITS PROCUREMENT CONTRACTS ARE SUBMITTED TO THE DEPARTMENT OF AUDIT AND
CONTROL FOR APPROVAL, OR TO EITHER HOUSE OF THE STATE LEGISLATURE OR,
FOR PROCUREMENTS THAT DO NOT REQUIRE THE APPROVAL OF THE DEPARTMENT OF
LAW OR THE DEPARTMENT OF AUDIT AND CONTROL, PRIOR TO THE EXECUTION OF
THE PROCUREMENT CONTRACT, INCLUDING BUT NOT LIMITED TO CONTRACTS FOR THE
ACQUISITION, SALE, OR LEASE OF ANY REAL PROPERTY FROM OR TO ANY BUSINESS
ENTITY OR PRIOR TO THE AWARD OF A GRANT TO ANY BUSINESS ENTITY, THE
BUSINESS ENTITY SHALL REPORT ON A FORM TO BE CREATED BY THE OFFICE OF
AUDIT AND CONTROL ALL CONTRIBUTIONS THE BUSINESS ENTITY MADE DURING THE
PRECEDING EIGHTEEN MONTHS TO A CANDIDATE COMMITTEE OR ELECTION FUND OF
ANY CANDIDATE OR HOLDER OF THE OFFICE OF GOVERNOR, LIEUTENANT GOVERNOR,
STATE COMPTROLLER OR ATTORNEY GENERAL IF THE PROCUREMENT IS TO BE MADE
BY A STATE AGENCY OR CONTRIBUTIONS TO CANDIDATES FOR ELECTION TO THE
HOUSE OF THE STATE LEGISLATURE SEEKING THE PROCUREMENT IF THE PROCURE-
MENT IS TO BE MADE BY A HOUSE OF THE LEGISLATURE. THE BUSINESS ENTITY
SHALL HAVE A CONTINUING DUTY TO REPORT ANY CONTRIBUTION IT MAKES DURING
THE TERM OF THE CONTRACT UNTIL ITS COMPLETION OR FOR A PERIOD OF EIGH-
TEEN MONTHS AFTER THE AWARD, WHICHEVER IS GREATER.
3. IT SHALL BE A BREACH OF THE TERMS OF THE GOVERNMENT CONTRACT FOR A
BUSINESS ENTITY TO KNOWINGLY CONCEAL OR MISREPRESENT A CONTRIBUTION
GIVEN OR RECEIVED OR TO MAKE OR SOLICIT CONTRIBUTIONS THROUGH INTERME-
DIARIES FOR THE PURPOSE OF CONCEALING OR MISREPRESENTING THE SOURCE OF
THE CONTRIBUTION.
4. IF A BUSINESS ENTITY IS FOUND, AFTER NOTIFICATION OF AN ALLEGATION
OF A VIOLATION OF THE PROVISIONS OF THIS SECTION, AN OPPORTUNITY TO BE
HEARD, AND REVIEW AND INVESTIGATION BY THE ETHICS OFFICER OF THE GOVERN-
MENTAL ENTITY CONDUCTING THE PROCUREMENT OR OTHER DESIGNATED OFFICIAL OF
THE PROCURING GOVERNMENTAL ENTITY RESPONSIBLE FOR REVIEWING AND INVESTI-
GATING SUCH MATTERS, TO HAVE KNOWINGLY AND WILLFULLY VIOLATED THE
REQUIREMENTS OF THIS SECTION, IT SHALL RESULT IN A DETERMINATION OF
NON-RESPONSIBILITY FOR SUCH BUSINESS ENTITY, AND SUCH BUSINESS ENTITY
AND ITS SUBSIDIARIES, AND ANY RELATED OR SUCCESSOR ENTITY WITH SUBSTAN-
TIALLY SIMILAR FUNCTION, MANAGEMENT, BOARD OF DIRECTORS, OFFICERS AND
SHAREHOLDERS SHALL NOT BE AWARDED THE PROCUREMENT CONTRACT, UNLESS THE
GOVERNMENTAL ENTITY FINDS THAT THE AWARD OF THE PROCUREMENT CONTRACT TO
THE BUSINESS ENTITY IS NECESSARY TO PROTECT PUBLIC PROPERTY OR PUBLIC
HEALTH OR SAFETY, AND THAT THE BUSINESS ENTITY IS THE ONLY SOURCE CAPA-
BLE OF SUPPLYING THE REQUIRED ARTICLE OF PROCUREMENT WITHIN THE NECES-
SARY TIMEFRAME, PROVIDED THAT THE GOVERNMENTAL ENTITY SHALL INCLUDE IN
THE PROCUREMENT RECORD A STATEMENT DESCRIBING THE BASIS FOR SUCH FIND-
ING. ANY SUBSEQUENT DETERMINATION OF NON-RESPONSIBILITY DUE TO VIOLATION
OF THIS SECTION WITHIN FOUR YEARS OF A DETERMINATION OF NON-RESPONSIBIL-
ITY DUE TO A VIOLATION OF THIS SECTION SHALL RESULT IN THE BUSINESS
ENTITY BEING RENDERED INELIGIBLE TO SUBMIT A PROPOSAL ON OR BE AWARDED
ANY PROCUREMENT CONTRACT FOR A PERIOD OF FOUR YEARS FROM THE DATE OF THE
SECOND FINAL DETERMINATION. EVERY GOVERNMENTAL ENTITY SHALL ENSURE THAT
ITS SOLICITATIONS OF PROPOSALS FOR PROCUREMENT CONTRACTS REQUIRE POTEN-
TIAL VENDORS TO DISCLOSE FINDINGS OF NON-RESPONSIBILITY DUE TO
VIOLATIONS OF THE PROVISIONS OF THIS SECTION WITHIN THE PREVIOUS FOUR
YEARS MADE BY ANY GOVERNMENTAL ENTITY. THE FAILURE OF BUSINESS ENTITIES
TO TIMELY DISCLOSE ACCURATE AND COMPLETE INFORMATION OR OTHERWISE COOP-
ERATE WITH THE GOVERNMENTAL ENTITY IN ADMINISTERING THIS PROVISION SHALL
BE CONSIDERED BY THE GOVERNMENTAL ENTITY IN ITS DETERMINATION OF RESPON-
SIBILITY. UPON A DETERMINATION OF NON-RESPONSIBILITY OR DEBARMENT DUE TO
A. 3917 3
A VIOLATION OF THIS SECTION, THE GOVERNMENTAL ENTITY SHALL NOTIFY THE
OFFICE OF GENERAL SERVICES, WHICH SHALL KEEP A LIST OF ALL BUSINESS
ENTITIES THAT HAVE BEEN DETERMINED TO BE NONRESPONSIBLE BIDDERS OR
DEBARRED DUE TO VIOLATION OF THIS SECTION, AND THE OFFICE OF AUDIT AND
CONTROL. THE OFFICE OF GENERAL SERVICES SHALL MAKE SUCH LIST PUBLICLY
AVAILABLE AND SHALL PUBLISH SUCH LIST ON ITS WEBSITE.
5. EVERY CONTRACT AND BID APPLICATION AND SPECIFICATIONS PROMULGATED
IN CONNECTION THEREWITH COVERED BY THIS ARTICLE SHALL CONTAIN A
PROVISION DESCRIBING THE REQUIREMENTS OF THIS SECTION AND A STATEMENT
THAT COMPLIANCE WITH THIS SECTION SHALL BE A MATERIAL TERM AND CONDITION
OF SAID CONTRACT OR BID APPLICATION AND BINDING UPON THE PARTIES THERETO
UPON THE ENTRY OF ALL APPLICABLE CONTRACTS.
6. THE DEPARTMENT OF AUDIT AND CONTROL SHALL MAINTAIN A DETAILED LIST-
ING OF ALL CONTRIBUTIONS, ON ITS WEBSITE, MADE BY INTERESTED BUSINESS
ENTITIES IN THE PROCUREMENT RECORDS OF CONTRACTS INVOLVING SUCH BUSINESS
ENTITIES.
§ 2. This act shall take effect on the ninetieth day after it shall
have become a law.