S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   7362
 
                        2023-2024 Regular Sessions
 
                             I N  S E N A T E
 
                               May 19, 2023
                                ___________
 
 Introduced  by  Sen.  COONEY -- (at request of the NYC Mayor's Office of
   Contract Services) -- read twice and ordered printed, and when printed
   to be committed to the Committee on Procurement and Contracts
 
 AN ACT to amend the general municipal law and part X of  chapter  62  of
   the  laws  of  2003  amending  the general business law and other laws
   generally relating to implementing  the  state  fiscal  plan  for  the
   2003-2004 state fiscal year, in relation to electronic bidding
 
   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. Subdivision 1 of section 103 of the general municipal  law,
 as  amended by section 1 of chapter 2 of the laws of 2012, is amended to
 read as follows:
   1. Except as otherwise expressly provided by an act of the legislature
 or by a local law adopted prior to  September  first,  nineteen  hundred
 fifty-three,  all  contracts for public work involving an expenditure of
 more than  thirty-five  thousand  dollars  and  all  purchase  contracts
 involving  an expenditure of more than twenty thousand dollars, shall be
 awarded by the appropriate officer,  board  or  agency  of  a  political
 subdivision  or  of  any district therein including but not limited to a
 soil conservation district to the lowest responsible  bidder  furnishing
 the  required security after advertisement for sealed bids in the manner
 provided by this section, provided,  however,  that  purchase  contracts
 (including  contracts  for  service  work,  but  excluding  any purchase
 contracts necessary for the completion of a public works contract pursu-
 ant to article eight of the labor law) may be awarded on  the  basis  of
 best  value,  as defined in section one hundred sixty-three of the state
 finance law, to a responsive and responsible bidder or  offerer  in  the
 manner  provided  by this section except that in a political subdivision
 other than a city with a population of one million inhabitants  or  more
 or  any  district, board or agency with jurisdiction exclusively therein
 the use of best value for  awarding  a  purchase  contract  or  purchase
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD11218-01-3
              

 S. 7362                             2
 
 contracts  must be authorized by local law or, in the case of a district
 corporation,  school  district  or  board  of  cooperative   educational
 services, by rule, regulation or resolution adopted at a public meeting.
 In  any case where a responsible bidder's or responsible offerer's gross
 price is reducible by an allowance for  the  value  of  used  machinery,
 equipment,  apparatus  or  tools to be traded in by a political subdivi-
 sion, the gross price shall be reduced by the amount of such  allowance,
 for  the  purpose  of determining the best value.  In cases where two or
 more responsible bidders furnishing the required security submit identi-
 cal bids as to price, such  officer,  board  or  agency  may  award  the
 contract  to  any of such bidders. Such officer, board or agency may, in
 his or her or its discretion, reject all bids or offers and  readvertise
 for new bids or offers in the manner provided by this section. In deter-
 mining  whether  a  purchase  is an expenditure within the discretionary
 threshold amounts established by this subdivision, the officer, board or
 agency of a political subdivision  or  of  any  district  therein  shall
 consider  the  reasonably  expected aggregate amount of all purchases of
 the same commodities, services or  technology  to  be  made  within  the
 twelve-month  period  commencing  on the date of purchase.  Purchases of
 commodities, services or technology shall not  be  artificially  divided
 for the purpose of satisfying the discretionary buying thresholds estab-
 lished  by this subdivision. A change to or a renewal of a discretionary
 purchase shall not be permitted if the change or renewal would bring the
 reasonably expected aggregate  amount  of  all  purchases  of  the  same
 commodities,  services  or  technology from the same provider within the
 twelve-month period commencing on the date of the first purchase  to  an
 amount  greater  than  the  discretionary  buying  threshold amount. For
 purposes of this section, "sealed bids" and  "sealed  offers",  as  that
 term  applies  to  purchase  contracts, (including contracts for service
 work, but excluding any purchase contracts necessary for the  completion
 of  a  public works contract pursuant to article eight of the labor law)
 shall include bids and offers submitted in an electronic format  includ-
 ing submission of the statement of non-collusion required by section one
 hundred  three-d  of  this article, provided that the governing board of
 the political subdivision or district, by resolution, has authorized the
 receipt of bids and offers in  such  format.  Submission  in  electronic
 format may, for technology contracts only, be required as the sole meth-
 od  for  the  submission  of  bids and offers. NOTWITHSTANDING ANY OTHER
 PROVISION OF THIS SECTION, THE APPROPRIATE OFFICER, BOARD OR AGENCY OF A
 CITY WITH A POPULATION OF  ONE  MILLION  INHABITANTS  OR  MORE,  OR  ANY
 DISTRICT,  BOARD  OR  AGENCY  WITH  JURISDICTION EXCLUSIVELY WITHIN SUCH
 CITY, MAY AUTHORIZE OR REQUIRE BIDS AND OFFERS FOR ANY  CONTRACT  TO  BE
 SUBMITTED  IN  AN ELECTRONIC FORMAT, AND WITH RESPECT TO SUCH CONTRACTS,
 THE TERMS "SEALED BIDS" AND  "SEALED  OFFERS"  SHALL  INCLUDE  BIDS  AND
 OFFERS  SUBMITTED  IN  AN ELECTRONIC FORMAT, INCLUDING SUBMISSION OF THE
 STATEMENT OF NON-COLLUSION REQUIRED BY SECTION ONE  HUNDRED  THREE-D  OF
 THIS ARTICLE. Bids and offers submitted in an electronic format shall be
 transmitted  by  bidders and offerers to the receiving device designated
 by the political subdivision or district. Any  method  used  to  receive
 electronic  bids and offers shall comply with article three of the state
 technology law, and any rules and regulations promulgated and guidelines
 developed thereunder and, at a minimum, must (a) document the  time  and
 date  of  receipt  of  each  bid  and offer received electronically; (b)
 authenticate the identity of the sender; (c) ensure the security of  the
 information  transmitted;  and (d) ensure the confidentiality of the bid
 or offer until the time and date established for the opening of bids  or
 S. 7362                             3
 
 offers.  The  timely submission of an electronic bid or offer in compli-
 ance with instructions provided for such submission in the advertisement
 for bids or offers and/or the specifications shall be the responsibility
 solely  of  each  bidder or offerer or prospective bidder or offerer. No
 political subdivision or district therein shall incur any liability from
 delays of or interruptions in the receiving device  designated  for  the
 submission and receipt of electronic bids and offers.
   §  2.  Subdivision  2  of section 103 of the general municipal law, as
 amended by section 1 of chapter 367 of the laws of 2014, is  amended  to
 read as follows:
   2.  Advertisement  for bids and offers shall be published in the offi-
 cial newspaper or newspapers, if any, or otherwise  in  a  newspaper  or
 newspapers  designated  for  such  purpose  and  may be published in the
 procurement opportunities newsletter pursuant to article four-C  of  the
 economic  development  law. Such advertisement shall contain a statement
 of the time when and place where all  bids  received  pursuant  to  such
 notice  will  be  publicly opened and read and where the identity of all
 offerers will be publicly disclosed, and the designation of the  receiv-
 ing device if the political subdivision or district, OR IN A CITY WITH A
 POPULATION  OF ONE MILLION INHABITANTS OR MORE OR ANY DISTRICT, BOARD OR
 AGENCY WITH JURISDICTION EXCLUSIVELY THEREIN, THE  APPROPRIATE  OFFICER,
 DISTRICT,  BOARD  OR  AGENCY,  has authorized OR REQUIRED the receipt of
 bids and offers in an electronic format. Such board  or  agency  may  by
 resolution designate any officer or employee to open the bids and offers
 at  the time and place specified in the notice. Such designee shall make
 a record of such bids and offers in such form and detail as the board or
 agency shall prescribe and present the  same  at  the  next  regular  or
 special  meeting  of  such  board  or agency. All bids received shall be
 publicly opened and read at the time and  place  so  specified  and  the
 identity  of  all  offerers  shall be publicly disclosed at the time and
 place so specified. NOTWITHSTANDING ANY OTHER PROVISION OF THIS SECTION,
 THE APPROPRIATE OFFICER, BOARD OR AGENCY OF A CITY WITH A POPULATION  OF
 ONE  MILLION  INHABITANTS OR MORE, OR ANY DISTRICT, BOARD OR AGENCY WITH
 JURISDICTION EXCLUSIVELY WITHIN SUCH CITY, SHALL CONDUCT A PUBLIC  OPEN-
 ING  AND  READING  OF  BIDS OR IDENTIFICATION OF OFFERERS, PROVIDED THAT
 SUCH DISTRICT, OFFICER, BOARD OR AGENCY MAY  CONDUCT  SUCH  OPENING  AND
 READING OR IDENTIFICATION BY MEANS OF LIVESTREAMING ON A PUBLICLY ACCES-
 SIBLE  WEBSITE  LISTED IN THE ADVERTISEMENT AT A TIME AND DATE SPECIFIED
 IN SUCH ADVERTISEMENT, AND POST A RECORD OF SUCH BIDS OR OFFERS AND  ANY
 OTHER REQUIRED INFORMATION ON A WEBSITE MAINTAINED OR CONTROLLED BY SUCH
 DISTRICT,  OFFICER, BOARD OR AGENCY ON SUCH DATE OR AS SOON AS PRACTICA-
 BLE THEREAFTER. At least five days shall elapse between the first publi-
 cation of such advertisement and the date so specified for  the  opening
 and reading of bids and offers.
   §  3.  Section 41 of part X of chapter 62 of the laws of 2003 amending
 the general business law and other laws generally relating to implement-
 ing the state fiscal plan  for  the  2003-2004  state  fiscal  year,  as
 amended  by  chapter  70  of  the  laws  of  2018, is amended to read as
 follows:
   § 41. This act shall take effect immediately; provided, however,
   (a) that sections four, five, six, seven, eight and nine of  this  act
 shall  expire  June 1, [2023] 2028 when upon such date the provisions of
 such sections shall be deemed repealed;
   (b) section thirty-nine of this act shall be deemed to  have  been  in
 full  force  and  effect  on  and after April 1, 2003; provided that the
 provisions of subdivision 9 of section 54 of the state finance  law,  as
 S. 7362                             4
 
 added  by  section  thirty-nine  of this act, shall expire and be deemed
 repealed at the close of the state fiscal year ending on March 31, 2004;
 and
   (c)  section  forty  of  this act shall be deemed to have been in full
 force and effect on and after April 1, 2003.
   § 4. This act shall take effect immediately; provided, however, that:
   (a) the amendments to subdivisions 1 and  2  of  section  103  of  the
 general municipal law made by sections one and two of this act shall not
 apply to any solicitation released prior to the date upon which this act
 takes effect;
   (b)  the  amendments  to  subdivisions  1  and 2 of section 103 of the
 general municipal law made by sections one and two of this act shall not
 affect the expiration and reversion of such subdivisions as provided  in
 subdivision  (a)  of  section  41 of part X of chapter 62 of the laws of
 2003, as amended, and shall expire and be deemed repealed therewith; and
   (c) if this act shall become a law after June 1, 2023, the  amendments
 to  subdivision (a) of section 41 of part X of chapter 62 of the laws of
 2003, made by section three of this act shall be deemed to have been  in
 effect on and after such date.