What is the Procurement Lobbying Law? Two separate amendments in Chapter 1 of the Laws of 2005, amended by Chapter 596 of the Laws of 2005 Legislative Law – interpreted and enforced by the NYS Temporary Commission on Lobbying also establishes Advisory Council on Procurement Lobbying State Finance Law §139-j and §139-k – addresses actions of governmental entities and the business community
The Advisory Council on Procurement Lobbying Created by Legislative Law §1-t Eleven members, chaired by Office of General Services Three general obligations of Council Reports Guidance Advice to Lobbying Commission on procurement lobbying
The Advisory Council on Procurement Lobbying (cont. ) Reports Preliminary report due December 31, 2005 on potential implementation issues regarding those provisions that take effect January 1, 2006. Annual report to Legislature on problems in implementing the provisions relating to procurement lobbying and including recommendations to increase effectiveness. Second report due October 30, 2007 on potential changes to Procurement Lobbying provisions.
The Advisory Council on Procurement Lobbying (cont.) Guidance on the State Finance Law provisions Authorized to establish model guidelines for permissible contacts during the “restricted period” Developed model forms and language for implementation of and compliance with the State Finance Law
The Advisory Council on Procurement Lobbying (cont.) Guidance developed by the Advisory Council on Procurement Lobbying, and other materials, are present on the internet at http://www.ogs.state.ny.us/aboutOgs/ regulations/defaultAdvisoryCouncil.html
The Advisory Council on Procurement Lobbying (cont.) Provide advice to Lobbying Commission on Procurement Lobbying
Builds on the pre-existing requirements governing procurement activities, such as State Finance Law Articles 9 and 11, the Freedom of Information Law, the Open Meeting Law, Public Officers Law Code of Conduct and Executive Order Number 127 Formalizes practices already in place documenting the procurement process and clarifies responsibilities and expectations when expending public funds The Purpose of the Procurement Lobbying Law
Reemphasizes the values of the government procurement process described in State Finance Law. Prudent use of public money Efficient and timely acquisitions of commodities and services Highest quality purchases at the lowest practicable cost Emphasis on open, transparent, and fair procurement process The Purpose of the Procurement Lobbying Law (cont.)
The new statutory requirements supplement the obligations under Executive Order Number 127 Covered entities, such as State agencies, will need to comply with both sets of requirements Be mindful of the differences between the two requirements The Purpose of the Procurement Lobbying Law (cont.)
While both use a threshold of $15,000 annualized value, EO 127 only applies to contracts awarded on basis other than lowest responsible price EO 127 requirements are triggered earlier in the process SFL regulates who can receive certain communications Differences in the records to be maintained The Purpose of the Procurement Lobbying Law (cont.)
What are the SFL Changes? Obligates Governmental Entities and Offerers to undertake specific actions as part of the procurement process Sets forth specific requirements regarding communications during the procurement process Establishes specific contractual requirements Imposes new consequences if Offerers have impermissible communications
What are the SFL Changes? (cont.) Record of Contact - Requires disclosure by officials and employees of communications that attempt to influence a procurement Impermissible contacts or providing inaccurate or untruthful certification may result in a finding of non-responsibility and debarment of the Offerer from state contracts for four years
Applicability of State Finance Law Provisions Every State Agency Public Authorities of which at least one member is appointed by the Governor Unified Court System Legislature Certain Industrial Development Agencies Public Benefit Corporations
Types of Contracts Subject to the Law Construction Procurement (commodities, services and technology) Real Estate (Purchase, Sale, Lease of Real Property including interest therein.) Certain Revenue Contracts Assignments, renewals, extensions and certain amendments When the estimated annualized expenditure will exceed $15,000
Types of Contracts Subject to the Law (cont.) Definition of Procurement Contract expressly exempts the following Grants SFL Article 11-B contracts Intergovernmental agreements Railroad and utility force accounts Utility relocation agreements Eminent domain transactions
State Finance Law Provisions General Rule is: State Finance Law restricts and directs communications by Offerers with Government Entities about procurement contracts However, it also recognizes that some communications are necessary to the conduct of Government Procurement
Most Important Definitions in State Finance Law Restricted Period: Represents the time period from the earliest solicitation of a proposal to the final approval of the contract Start point differs based on the nature of the contract. For example, with a single source contract it appears to start when the Governmental Entity asks for a proposal
Most Important Definitions in State Finance Law (cont.) During the Restricted Period, the Offerer is limited in whom it can communicate with in an attempt to influence the procurement The Restricted Period must be in effect for any Contact to occur, including an impermissible Contact. Restricted Period ends when the contract receives all the necessary approvals
Most Important Definitions in State Finance Law (cont.) Contact defined as 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 procurement
Most Important Definitions in State Finance Law (cont.) Number of factors to consider “Reasonable person” standard Consider totality of the circumstance
Most Important Definitions in State Finance Law (cont.) Factual exchanges of information are generally not Contacts When is the bid due? Where is the bid due? I am missing pages 38 – 47 from the RFP. Can you please send to me?
Most Important Definitions in State Finance Law (cont.) Communications that a reasonable person would probably consider an attempt to influence You should award the bid to my company because … You shouldn’t award the contract to Company X because …
Most Important Definitions in State Finance Law (cont.) Record of Contact – Requires collection of certain information, recordation of and placement in procurement record of communications that attempt to influence a procurement ALL CONTACTS MUST BE RECORDED
Most Important Definitions in State Finance Law (cont.) Designated Contact SFL requires the Governmental Entity to identify a person or persons who may be contacted by Offerers about a procurement The Designated Contact may receive all communications from Offerers, including attempts to influence (Contacts) Communications to Designated Contact are limited by Public Officers Law and Penal Law (ie., bribery)
Most Important Definitions in State Finance Law (cont.) There can be more than one designated contact for a procurement Best practice would be to have at least two designated contacts to facilitate responsiveness to the Offerers
Most Important Definitions in State Finance Law (cont.) Permissible Subject Matter Contacts - State Finance Law §139-j(3)(a) recognizes a specific series of communications and contacts that can go to other than the Designated Contacts Important that Offerer’s Contacts be limited to the specific subject matter
Permissible Subject Matter Contacts - #1 The submission of written proposals in response to a request for proposals, invitation for bids or any other method for soliciting a response from offerers intending to result in a procurement contract.
Permissible Subject Matter Contacts - #2 The submission of written questions to a designated contact set forth in a request for proposals, or invitation for bids, or any other method for soliciting a response from offerers intending to result in a procurement contract, when all written questions and responses are to be disseminated to all offerers who have expressed an interest in the request for proposals, or invitation for bids, or any other method for soliciting a response from offerers intending to result in a procurement contract.
Permissible Subject Matter Contacts - #3 Participation in a conference provided for in a request for proposals, invitation for bids, or any other method for soliciting a response from offerers intending to result in the procurement contract. Appears that term “conference” can be broadly interpreted to include all types of pre-proposal activities that are provided for under a written solicitation
Permissible Subject Matter Contacts - #4 Complaints by an Offerer regarding the failure of the person or persons designated by the procuring governmental entity pursuant to this section to respond in a timely manner to authorized Offerer contacts made in writing to the office of general counsel of the procuring governmental entity, provided that any such written complaints shall become a part of the procurement record.
Permissible Subject Matter Contacts - #5 Offerers who have been tentatively awarded a contract and are engaged in communication with a governmental entity solely for the purpose of negotiating the terms of the procurement contract after being notified of tentative award. Additional personnel can be involved in the negotiation process
Permissible Subject Matter Contacts - #6 Contacts between designated governmental entity staff of the procuring governmental entity and an Offerer to request the review of a procurement contract award. Debriefing are covered by this category
Permissible Subject Matter Contacts #7 (a) – (d) Contacts by offerers in protests, appeals or other review proceedings (including the apparent successful bidder or proposer and his or her representatives) before the governmental entity conducting the procurement seeking a final administrative determination, or in a subsequent judicial proceeding. Complaints of alleged improper conduct in a governmental procurement to the attorney general, inspector general, district attorney, or court of competent jurisdiction.
Permissible Subject Matter Contacts - #7 (a) – (d) (cont.) Written protests, appeals or complaints to the state comptroller’s office during the process of contract approval, where the state comptroller’s approval is required by law, and where such communications and any response thereto are made in writing and shall be entered in the procurement record pursuant to section one hundred sixty-three of the state finance law. Complaints of alleged improper conduct in a governmental procurement conducted by a municipal agency or local legislative body to the state comptroller’s office
Impact on Offerers Offerer is limited on who can be Contacted about specific topics Designated Contacts – communications and Contacts okay Permissible Subject Matter Contacts – only the specific subject matter
Impact on Offerers (cont.) Cannot Contact other entities unless falls within one of the permissible subject matter (SFL §139-j(4)) For example, okay to file written protest or complaint with OSC, but not to otherwise Contact Cannot Contact DOB to complain about a procurement
Impact on Offerers (cont.) However, statute does permit Offerer to contact Legislature about governmental procurements (unless Legislature is conducting the procurement) and the Legislature may contact the procuring agency (in its official capacity) If you are Contacted by the Legislature, the statute indicates you shall not record the Contact under the SFL provisions
Impact on Offerers (cont.) Offerer shall not attempt to influence the governmental procurement in a manner that would result in a violation or an attempted violation of Public Officers Law sections 73 or 74 (or equivalent law)
Impact on Offerers (cont.) Offerer must provide written affirmation on understanding of and agreement to an agency’s policy on permissible contacts Offerer must disclose additional information about prior findings of non-responsibility
Impact on Offerers (cont.) Offerer must certify that the information provided under SFL section 139-k is complete, true and accurate Offerer must agree to the inclusion of specific termination clause in contract
Consequences to Offerer Failure to timely disclose accurate and complete information equals no award. Failure to cooperate equals no award. Finding of non-responsibility equals no award and the Offerer is listed on the OGS maintained list of bidders determined to be non-responsible under this statute.
Consequences to Offerer (cont.) If there is a finding that an Offerer knowingly and willfully violated the requirements about permissible contacts, no award This determination can only be made after Offerer is given reasonable notice that an investigation is ongoing and an opportunity to be heard
Consequences to Offerer (cont.) Second finding of non-responsibility equals debarment absent compelling governmental interest (public property, public health or safety) and sole source status Offerer is listed on the OGS maintained list of bidders debarred sue to violations of this statute
Agency Obligations Designate Contact Person or Persons Incorporate the required information into your procurement process (both competitive and noncompetitive) Establish the necessary policies and procedures regarding permissible contacts, and the reporting of possible violations of the permissible contacts requirements. Record Contact and file in Procurement Record.
Agency Obligations (cont.) Establish a process for reviewing and investigating allegations of violations of the permissible contacts requirements and imposition of sanctions Notify OGS about all determinations of non- responsibility or debarment under this statute
Record all Contacts (including the permissible subject matter contacts) Place in Procurement Record Determine if the Contact must be reported for investigation as a violation of the permissible contacts requirements Agency Obligations (cont.)
Many questions have been received on two key agency obligations When to make a Record of Contact When to report/refer a Contact for review or investigation Agency Obligations (cont.)
When to Record Whether a communication needs to be recorded depends on several factors Is there a transaction? Is it a covered transaction? What is the value of the transaction?
When to Record (cont.) Is there a Restricted Period? Was the communication from an Offerer? Does the communication constitute a Contact?
When to Record (cont.) Determining whether a communication is a Contact is fact specific It is a “reasonable person” standard Must look at the circumstances Must look at the intent of the speaker
When to Record (cont.) If it is determined that a Contact occurred, a Record of Contact must be completed. The completed Record of Contact must be filed in the procurement record. Statute sets out the information that must be obtained.
When to Report or Refer a Contact for Investigation Whether a Contact must be reported/referred for investigation depends on the person’s role in the procurement To state another way, it depends on who the Offerer Contacts
Roles During a Restricted Period Designated Contact(s) – those employees specifically named to receive all communications from the Offerers during the Restricted Period Permissible subject matter contacts – those employees who may receive only specific subject matter communications during Restricted Period All other employees – may only receive factual inquiries (not Contacts) Non-procuring entity – only may receive specific subject matter Contacts from Offerer during the Restricted Period
When to Report or Refer a Contact for Investigation Designated Contact – would only need to report a Contact that was in violation of Public Officers Law or Penal Law (ie., bribery) Report/refer generally to the ethics officer or inspector general of the procuring governmental entity, who has specific obligations to investigate
Reporting/Referring of Contacts (cont.) Permissible Subject Matter Contacts – must report any Contact that is outside of the specific subject matter Report/refer generally to the ethics officer or inspector general of the procuring governmental entity, who has specific obligations to investigate
Reporting/Referring of Contacts (cont.) All Other Employees of the Procuring Governmental Entity – report all Contacts Report/refer generally to the ethics officer or inspector general of the procuring governmental entity, who has specific obligations to investigate
Reporting/Referrals of Contacts (cont.) Non-procuring agency communications SFL section 139-j(3) and (4) specifies limited instances when an agency other than the procuring governmental agency can be Contacted by an Offerer during the Restricted Period If the Contact is not within the permissible subject matter area, the Contact must be immediately reported to the official at that agency responsible for investigations
Reporting/Referring of Contacts (cont.) Such official shall in turn notify the ethics officer, IG or other official at the procuring agency that is responsible for reviewing or investigating, who shall conduct an investigation
Example of Restricted Period for a Competitively Bid State Agency Contract Definition of business need Restricted Period (limits who can receive communications) Ad in Contract Reporter Approval of contract by OSC
Example of Restricted Period for a Competitively Bid State Agency Contract (cont.) Contract administration (no restricted period) New restricted period Approval by OSC For example, certain amendments will trigger a new restricted period (no restricted period)
Model Language and Forms The Advisory Council on Procurement Lobbying has approved the posting of model language and forms to comply with the new State Finance Law requirements. Available at http://www.ogs.state.ny.us/aboutogs/regulations/ AdvisoryCouncil/ModelLang.html. http://www.ogs.state.ny.us/aboutogs/regulations/
Summary of Policy Included in Solicitation State Finance Law §139-j(6) requires that a Governmental Entity incorporate a summary of its policy and prohibitions regarding permissible contacts during a covered procurement. Model language provides an outline of narrative that can be customized for inclusion in a solicitation.
Model Affirmation Offerer affirms that it understands and agrees to comply with the procedures of the Government Entity relative to permissible contacts as required by State Finance Law §139-j (3) and §139-j (6) (b).
Model Certification It is recommended that the certification be obtained as early as possible in the process, such as when an Offerer submits its proposal, bid or other form of offer. Example language: I certify that all information provided to the Governmental Entity with respect to State Finance Law §139-k is complete, true and accurate.
Additional Non-responsibility Question State Finance Law §139-k(3) mandates consideration of whether an Offerer fails to timely disclose accurate or complete information as part of the responsibility determination. The law further provides that no Procurement Contract shall be awarded to any Offerer that fails to timely disclose accurate or complete information under this section, unless a finding is made that the award of the Procurement Contract to the Offerer is necessary to protect public property or public health safety, and that the Offerer is the only source capable of supplying the required Article of Procurement within the necessary timeframe.
Model Termination Clause The Governmental Entity reserves the right to terminate this contract in the event it is found that the certification filed by the Offerer in accordance with New York State Finance Law §139-k was intentionally false or intentionally incomplete. Upon such finding, the Governmental Entity may exercise its termination right by providing written notification to the Offerer in accordance with the written notification terms of this contract.
Model Record of Contact New York State Finance Law §139-k(4) obligates every Governmental Entity during the Restricted Period of a Procurement Contract to make a written record of any Contacts made. The term “Contact” is defined by statute and refers to those oral, written or electronic communications that a reasonable person would infer are attempts to influence the Governmental Procurement. In addition to obtaining the required identifying information, the Governmental Entity must inquire and record whether the person or organization that made the contact was the Offerer or was retained, employed or designated on behalf of the Offerer to appear before or contact the Governmental Entity.
OGS’s Implementation of New State Finance Law Provisions Staff training Undertaken as a multi-step process Conducted by Business Unit to permit attention to unique issues raised by the different types of procurement contracts undertaken by OGS
OGS’s Implementation First round of training provided an initial familiarization and introduction to the new State Finance Law requirements Second round of training has focused on drilling down and conforming business practices to the new requirements Additional training and legal assistance is provided as requested
OGS’s Implementation Offerer Training and Outreach In addition to the training provided as support staff for the Advisory Council on Procurement Lobbying, OGS continues to explore ways to provide more information to the business community.
OGS Implementation (cont.) In-depth Analysis of Business Practices Real Estate Implementation Issues Procurement Contracts dealing with real estate matters present different issues from the traditional commodity purchase Often involve multiple, simultaneous negotiations resulting in one contract Involve agents/brokers and client agencies
OGS Implementation (cont.) Conducted assessment of real estate lease procurement process Resulted in development of chart to monitor the commencement of Restricted Period Standardized points in time to provide notice to Offerers regarding Restricted Period and Designated Contacts
OGS’s Implementation (cont.) Developed language for inclusion in solicitations and contracts Customized to meet the business practices of OGS A number of areas are still under review and development For example, procurement contracts undertaken for hosted agencies is still under review Similarly, the business practices regarding client agencies is still under review
Non-responsible and Debarred Offerer Listings State Finance Law requires that all Governmental Entities notify OGS if it finds an Offerer to be non- responsible or debarred due to violations of section 139-j OGS is required to post this information on the internet Information available at http://www.ogs.state.ny.us/aboutogs/regulations/ advisoryCouncil/NonResponsible.htm
Non-responsible and Debarred Offerer Listings (cont.) Information is available at: http://www.ogs.state.ny.us/aboutogs/regulations/ advisoryCouncil/NonResponsible.htm (Non-responsible Offerer List) http://www.ogs.state.ny.us/aboutogs/regulations/ advisoryCouncil/NonResponsible.htm and at: http://www.ogs.state.ny.us/aboutogs/regulations/ advisoryCouncil/Debarred.htm (Debarred Offered List) http://www.ogs.state.ny.us/aboutogs/regulations/ advisoryCouncil/Debarred.htm
Non-responsible and Debarred Offerer Listings (cont.) Please immediately notify the General Counsel at the NYS Office of General Services if you have determined a bidder as non-responsible or debarred a pursuant to this law. Office of the General Counsel NYS Office of General Services 41st Floor - Corning Tower Albany, New York 12242 LegalServicesWeb@ogs.state.ny.us Telephone 518-474-5988 Facsimile 518-473-4973