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This entry was published on 2021-04-23
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Disclosure of contacts and responsibility of offerers
State Finance (STF) CHAPTER 56, ARTICLE 9
* § 139-k. Disclosure of contacts and responsibility of offerers. 1.
For purposes of this section, the following terms will have the
following meanings unless specified otherwise.

a. "Governmental entity" shall mean: (1) any department, board,
bureau, commission, division, office, council, committee or officer of
the state, whether permanent or temporary; (2) each house of the state
legislature; (3) the unified court system; (4) any public authority,
public benefit corporation or commission created by or existing pursuant
to the public authorities law; (5) a public authority or public benefit
corporation, at least one of whose members is appointed by the governor
or who serves as a member by virtue of holding a civil office of the
state; (6) municipal agency, as that term is defined in paragraph (ii)
of subdivision (s) of section one-c of the legislative law; or (7) a
subsidiary or affiliate of such a public authority.

b. "Article of procurement" shall mean a commodity, service,
technology, public work, construction, revenue contract, the purchase,
sale or lease of real property or an acquisition or granting of other
interest in real property, that is the subject of a governmental

c. "Contacts" shall mean any oral, written or electronic communication
with a governmental entity under circumstances where a reasonable person
would infer that the communication was intended to influence the
governmental entity's conduct or decision regarding the governmental

d. "Proposal" shall mean any bid, quotation, offer or response to a
governmental entity's solicitation of submissions relating to a

e. "Governmental procurement" shall mean: (i) the public announcement,
public notice, or public communication to any potential vendor of a
determination of a need for a procurement, which shall include, but not
be limited to, the public notification of the specifications, bid
documents, request for proposals, or evaluation criteria for a
procurement contract, (ii) solicitation for a procurement contract,
(iii) evaluation of a procurement contract, (iv) award, approval, denial
or disapproval of a procurement contract, or (v) approval or denial of
an assignment, amendment (other than amendments that are authorized and
payable under the terms of the procurement contract as it was finally
awarded or approved by the comptroller, as applicable), renewal or
extension of a procurement contract, or any other material change in the
procurement contract resulting in a financial benefit to the offerer.

f. "Restricted period" shall mean the period of time commencing with
the earliest posting, on a governmental entity's website, in a newspaper
of general circulation, or in the procurement opportunities newsletter
in accordance with article four-C of the economic development law of
written notice, advertisement or solicitation of a request for proposal,
invitation for bids, or solicitation of proposals, or any other method
provided for by law or regulation for soliciting a response from
offerers intending to result in a procurement contract with a
governmental entity and ending with the final contract award and
approval by the governmental entity and, where applicable, the state

g. "Procurement contract" shall mean any contract or other agreement,
including an amendment, extension, renewal, or change order to an
existing contract (other than amendments, extensions, renewals, or
change orders that are authorized and payable under the terms of the
contract as it was finally awarded or approved by the comptroller, as
applicable), for an article of procurement involving an estimated
annualized expenditure in excess of fifteen thousand dollars. Grants,
article eleven-B state finance law contracts, program contracts between
not-for-profit organizations, as defined in article eleven-B of this
chapter, and the unified court system, intergovernmental agreements,
railroad and utility force accounts, utility relocation project
agreements or orders, contracts governing organ transplants, contracts
allowing for state participation in a trade show, and eminent domain
transactions shall not be deemed procurement contracts.

h. "Offerer" shall mean the individual or entity, or any employee,
agent or consultant or person acting on behalf of such individual or
entity, that contacts a governmental entity about a governmental
procurement during the restricted period of such governmental
procurement whether or not the caller has a financial interest in the
outcome of the procurement; provided, however, that a governmental
agency or its employees that communicates with the procuring agency
regarding a governmental procurement in the exercise of its oversight
duties shall not be considered an offerer.

i. "Revenue contract" shall mean any written agreement between a
governmental entity, as that term is defined in subparagraphs one, four,
five, six or seven of paragraph a of this subdivision, and an offerer
whereby the governmental entity gives or grants a concession or a

j. "Unified court system" shall, for the purposes of this section
only, mean the unified court system of the state of New York, or the
office of court administration, where appropriate, other than town and
village justice courts in jurisdictions with a population under fifty
thousand, when it acts solely in an administrative capacity to engage in
governmental procurements and shall not include the unified court system
or any court of the state judiciary when it acts to hear and decide
cases of original or appellate jurisdiction or otherwise acts in its
judicial, as opposed to administrative, capacity.

2. Each governmental entity shall ensure that solicitation of
proposals or bid documents or specifications, or contract documents, as
applicable, for procurement contracts shall require offerers to disclose
findings of non-responsibility made within the previous four years by
any governmental entity where such prior finding of non-responsibility
was due to: (a) a violation of section one hundred thirty-nine-j of this
article, or (b) the intentional provision of false or incomplete
information to a governmental entity.

3. The failure of an offerer to timely disclose accurate or complete
information to a governmental entity pursuant to subdivision two of this
section shall be considered by such governmental entity in its
determination of the responsibility of such offerer. No procurement
contract shall be awarded to any such offerer, its subsidiaries, and any
related or successor entity with substantially similar function,
management, board of directors, officers and shareholders (hereinafter,
for the purposes of this subdivision, "offerer"), unless the
governmental entity finds that the award of the procurement contract to
the offerer is necessary to protect public property or public health or
safety, and that the offerer is the only source capable of supplying the
required article of procurement within the necessary timeframe,
provided, that the governmental entity shall include in the procurement
record a statement describing the basis for such a finding.

4. Upon any contact in the restricted period, the governmental entity
shall obtain the name, address, telephone number, place of principal
employment and occupation of the person or organization making the
contact and inquire and record whether the person or organization making
such contact was the offerer or was retained, employed or designated by
or on behalf of the offerer to appear before or contact the governmental
entity about the governmental procurement. All recorded contacts shall
be included in the procurement record for the procurement contract.

5. Any procurement contract award subject to the provisions of this
section and section one hundred thirty-nine-j of this article shall
contain a certification by the offerer that all information provided to
the procuring governmental entity with respect to this section is
complete, true and accurate, and each such procurement contract shall
contain a provision authorizing the governmental entity to terminate
such contract in the event such certification is found to be
intentionally false or intentionally incomplete. The governmental entity
shall include in the procurement record a statement describing the basis
for any action taken pursuant to such termination provision.

6. Any communications received by a governmental entity from members
of the state legislature, or legislative staffs, when acting in their
official capacity, shall not be considered to be a "contact" within the
meaning of this section and shall not be recorded by a governmental
entity pursuant to this section.

* NB Repealed July 31, 2026