Procurement Lobbying Contractor Informational Session NY Temporary State Commission on Lobbying Lobby Education Unit

Outline New Terms Exemptions Restricted Period The Procurement Process Commission Salesperson NY Temporary State Commission on Lobbying Lobby Education Unit

What is Procurement Lobbying? Any attempt to influence any determination by a public official, or a person or entity working with a public official, related to a governmental procurement. NY Temporary State Commission on Lobbying Lobby Education Unit

“Governmental Procurement” shall mean: Terms “Governmental Procurement” shall mean: Preparation or terms of specifications, bid documents, request for proposals (RFPs), or evaluation criteria for a procurement contract; or Solicitation for a procurement contract; or Evaluation of a procurement contract; or Award/approval/denial/disapproval of a procurement contract; or Approval/denial of an assignment, amendment, renewal or extension of a procurement contract; or Any other material change in the procurement contract resulting in a financial benefit to the offerer NY Temporary State Commission on Lobbying Lobby Education Unit

Terms “Procurement Contract” means any contract or agreement for an Article of Procurement involving an estimated annualized expenditure in excess of $15,000, except: Smaller value contracts with an estimated annualized expenditure under $15,000; Grants; Article XI-B state finance law contracts; Intergovernmental agreements; Railroad and utility force accounts, and utility relocation project agreements; Orders and eminent domain transactions NY Temporary State Commission on Lobbying Lobby Education Unit

Terms “Article of Procurement” shall include the following, when subject to governmental procurement: Commodities; Services; Technology; Public Works; Construction; Revenue Contracts; Real Property NY Temporary State Commission on Lobbying Lobby Education Unit

Exemptions A-F are consistent with the previous act. Exemptions to the definition of “Lobbying” Exemptions A-F are consistent with the previous act. Limited professional services Media Witness, attorney or other representative NYS Administrative Procedure Act Comments in response Church NY Temporary State Commission on Lobbying Lobby Education Unit

Exemptions G-Q G. Procurement Activities by Certain Non- profits undertaken by: The non-profit making agencies appointed pursuant to § 162 (6) (e) by the Commissioner of the Office of Children and Family Services; The Commissioner for the Blind and Visually Handicapped; The Commissioner of Education; The qualified charitable non-profit making agencies for the blind; and Qualified charitable non-profit making agencies for other severely disabled persons as identified in § 162 (2) NY Temporary State Commission on Lobbying Lobby Education Unit

H. Procurement Conference Participation: Exemptions G-Q H. Procurement Conference Participation: Participants, including those appearing on behalf of a client, in a conference provided for in a request for proposal (RFP), invitation for bid (IFB), or any other method for soliciting a response from offerers intending to result in a procurement contract. NY Temporary State Commission on Lobbying Lobby Education Unit

Exemptions G-Q I. Certain Procurement-related Communications Negotiation after tentative award: Offerers, tentatively awarded a contract, and communicating solely for the purpose of negotiating the terms of the procurement contract after being notified of such award; or Negotiations when an article of procurement is being purchased pursuant to an existing article of procurement and offerers engage in communications with the procuring entity in relation to an existing contract solely for the purpose of negotiating terms applicable to that purchase; NY Temporary State Commission on Lobbying Lobby Education Unit

Exemptions G-Q J. Party to a protest, appeal or review; Bring complaints of alleged improper conduct in a governmental procurement to the attorney general, inspector general, district attorney, or court of competent jurisdiction; or Submit 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 responses thereto are made in writing and shall be entered in the procurement record pursuant to § 163 of the state finance law; or Bring complaints of alleged improper conduct in a governmental procurement conducted by a municipal agency or local legislative body to the state comptroller’s office; NY Temporary State Commission on Lobbying Lobby Education Unit

Exemptions G-Q K. Submission of the bid or proposal itself: Submitting a bid or proposal in response to a solicitation for such does not constitute lobbying. L. Offerers submitting written questions, provided the questions and responses are shared: Offerers submitting 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. NY Temporary State Commission on Lobbying Lobby Education Unit

Exemptions G-Q M. Limited technical contacts between those providing technical services (accounting, engineering, scientific, or other similar technical disciplines) and “designated” government staff, provided all 3 criteria for content of the communication are met: Bidders or potential bidders, and subcontractors of bidders or potential bidders, who are “qualified by education, training or experience” to provide “technical services to explain, clarify or demonstrate the qualities, characteristics or advantages of an article of procurement” qualify for this exemption only if they are talking to designated government staff, and the contact is: NY Temporary State Commission on Lobbying Lobby Education Unit

Exemptions G-Q Limited to providing information to assist the procuring party in “understanding and assessing the qualities, characteristics or anticipated performance” of an article of procurement; AND Does not include any recommendations or advocate any contract provisions: AND Occurs only at such times and in such manner as authorized under the procuring entity’s solicitation or guidelines and procedures. NY Temporary State Commission on Lobbying Lobby Education Unit

Exemptions G-Q Applications for licenses, certificates, and permits authorized by statutes or local laws or ordinances are not lobbying. Activities of persons who are commission salespersons with respect to government procurements; Communications made after the award, and in the ordinary course of providing an article of procurement, and the ordinary course of assigned duties, except officers, employees, agents or independent contractors whose primary purpose is lobbying. Persons communicating with public officials to obtain factual information, provided that they are not otherwise subject to the reporting requirements of the Act due to involvement in lobbying activities as defined by the Act. NY Temporary State Commission on Lobbying Lobby Education Unit

Restricted Period Starts with the earliest attempt to solicit a response with regard to a procurement contract. This may include, but is not necessarily limited to, written notices, advertisements, request for proposal, invitations for bids, solicitations of proposals, or any other method for soliciting a response with regard to a procurement contract NY Temporary State Commission on Lobbying Lobby Education Unit

Restricted Period Ends with the final contract award. “Final contract award” means that all parties that must approve the contract have granted the approval. For instance, some contracts may require only agency approval, whereas others may require the additional approval of the state comptroller or a legislative body. NY Temporary State Commission on Lobbying Lobby Education Unit

Procurement Process Determination of Need Lobbying activity relates to a governmental procurement, Lobby Act 1-c(c)(v) A governmental procurement includes the preparation of the specifications, bid documents, request for proposals or evaluation criteria for a procurement contract, Lobby Act 1-c(p)(i), all of which occur prior to the beginning of the restricted period. For the purposes of the Lobby Act, a governmental procurement begins when a governmental entity makes a determination of need relating to an article of procurement NY Temporary State Commission on Lobbying Lobby Education Unit

Procurement Process Determination of Need (Cont.) The determination of need is the first step in the procurement process and should be the initial entry in the procurement record (See Section Three: Selecting a Procurement Technique, of the State Procurement Council Guidelines) Lobbying activity can take place during the period beginning with the determination of need and ending with the final contract award NY Temporary State Commission on Lobbying Lobby Education Unit

Procurement Process When an offerer contacts a governmental entity: Ask if the governmental entity is at that time of the contact working on a governmental procurement, beginning with the determination of need, relating to the offerer’s product or service If the answer is no, there can be no lobbying activity because there is no governmental procurement If the answer is yes, the offerer may choose not to continue the contact, or, may continue knowing that he or she may be engaging in lobbying activity NY Temporary State Commission on Lobbying Lobby Education Unit

Commission Salesperson “Commission Salesperson” generally means any person who satisfies all of the following criteria: Primary purpose of employment is to cause or promote the sale of, or to influence or induce another to make a purchase of an article of procurement; and Compensated, in whole or in part, by the payment of a percentage amount of all or a substantial amount of all or a substantial part of the sales which such person has caused , promoted, influenced or induced. Is an employee of, or an independent contractor with a written contract for a term of at least six months, or from an indefinite period. NY Temporary State Commission on Lobbying Lobby Education Unit

Commission Salesperson The percentage amount payable for the sale of an article of procurement may not be substantially in excess of any commission payable with respect to any comparable sale to a purchaser that is not a state agency. May not be engaged in any lobbying activity other than procurement lobbying. NY Temporary State Commission on Lobbying Lobby Education Unit

YOU ARE REQUIRED TO REGISTER Should I Register? If you reasonably anticipate exceeding $5,000 in reportable compensation and expenses; The article of procurement is valued at $15,000 or more; And you do not fall under any of the exemptions YOU ARE REQUIRED TO REGISTER NY Temporary State Commission on Lobbying Lobby Education Unit

Lobbyist Reporting and Requirements Client Reporting and Requirements Workshops Now Offered On-Line Filing Lobbyist Reporting and Requirements Client Reporting and Requirements Reserve your place now!!!! NY Temporary State Commission on Lobbying Lobby Education Unit

Contact Info Phone: (518) 474-7126 Fax: (518) 473-6492 E-mail: LobEdu@Nytscol.org www.nylobby.state.ny.us NY Temporary State Commission on Lobbying Lobby Education Unit

State Finance Law Provisions of the Procurement Lobbying Law NY State Office of General Services

Topics to Cover What is the Procurement Lobbying Law ? What is the Advisory Council on Procurement Lobbying? Application of the State Finance Law provisions of the Procurement Lobbying Law What is the “Restricted Period”? What are “Contacts” and the consequences of violating requirements? Impact of the law on business community (“Offerers”) NY State Office of General Services

What is the Procurement Lobby Law? Legislative Law – interpreted and enforced by the NY Temporary State Commission on Lobbying (referred to as the Lobbying Act) expands definition of lobbying to include governmental procurements establishes Advisory Council on Procurement Lobbying State Finance Law §139-j and §139-k – addresses actions of governmental entities and the business community NY State Office of General Services

NY State Office of General Services

Procurement Lobbying Law Purpose of the Procurement Lobbying Law 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 and Public Officers Law Code of Conduct Formalizes practices already in place documenting the procurement process and clarifies responsibilities and expectations when expending public funds Emphasis on open, transparent, and fair procurement process NY State Office of General Services

Procurement Practices Develops Standard Procurement Practices Defines the kinds of information to be provided to the business community to be obtained from the business community to be made part of the formal record for a procurement Defines where the business community can direct advocacy efforts NY State Office of General Services

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 NY State Office of General Services

Guidance, model forms and language and other materials are available at: http://www.ogs.state.ny.us/aboutOgs/ regulations/defaultAdvisoryCouncil.html This web site and its materials can be used to educate staff and the business community regarding these legal requirements. NY State Office of General Services

NY State Office of General Services

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 NY State Office of General Services

Types of Contracts Subject to the Law Construction and related services 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 NY State Office of General Services

Types of Contracts Exempt from the Law 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 NY State Office of General Services

General Rule State Finance Law recognizes that communications are necessary to the conduct of Government Procurement There are different kinds of communications During certain time periods (Restricted Period) when certain kinds of communications with Government Entities about Procurement Contracts have specific rules (referred to as Contacts) NY State Office of General Services

Restricted Period (limits who can receive Contacts) Approval of Definition of business need Approval of contract by OSC Ad in Contract Reporter NY State Office of General Services

Restricted Period Restricted Period - Time period from advertisement or other request for a proposal until the contract receives all the required approvals, such as OSC approval This is the only time period where these formal requirements apply regarding who can be “Contacted” and the creation of a record NY State Office of General Services

Specific Communications Subject to the State Finance Law Governs those communications that are intended to influence the Governmental Procurement (referred to as “Contacts”) Requires that Contacts by an Offerer during the Restricted Period be limited to Designated Contact [SFL §139-j(3)(a)] Permissible Subject Matter [SFL §139-j(3)(a)(1-7)] NY State Office of General Services

Requires each Governmental Entity to develop a policy on permissible contacts and to inform Offerers. If an Offerer does not so limit Contacts, the Contacts are “impermissible Contacts” and State Finance Law imposes new consequences if Offerers have impermissible Contacts, including possible debarment NY State Office of General Services

Designated Contact State Finance Law 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 Contacts (attempts to influence) (limited by Public Officers Law and Penal Law) NY State Office of General Services

Generally, a vendor is not a Designated Contact. If you provide services for a Governmental Entity, be mindful of these restrictions on Contacts. Generally, a vendor is not a Designated Contact. You need to determine what role, if any, you have when aspects of such services are out for bid. Direct questions to the Designated Contact. NY State Office of General Services

Permissible Subject Matter State Finance Law §139-j(3)(a)(1-7) recognizes a specific series of communications and Contacts that can go to other than the Designated Contacts These Contacts are with the procuring Governmental Entity and other Governmental Entities Important that Offerer’s Contacts be limited to the specific subject matter NY State Office of General Services

Permissible Subject Matter #1 - submission of a written proposal from an Offerer #2 - submission of written questions in accordance with a process sent out in the solicitation, that must include sending all responses to all Offerers #3 - participation in a conference provided for in a solicitation NY State Office of General Services

#5 - negotiation of a Procurement Contact after tentative award #4 - complaints by an Offerer that the Designated Contact has not been responsive filed in writing to Counsel’s Office #5 - negotiation of a Procurement Contact after tentative award #6 - review of a procurement contract award (debriefings) NY State Office of General Services

#7 -. protests, appeals or other review. proceedings, such as #7 - protests, appeals or other review proceedings, such as judicial proceedings or allegations of improper conduct. Category includes the ability of an Offerer to file a written protest, appeal or complaint to the state comptroller’s office during the process of contract approval. NY State Office of General Services

Net Result Offerer can always Contact Designated Contact Offerer cannot Contact other employees or governmental entities unless falls within one of the permissible subject matters (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 NY State Office of General Services

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 Contacted by the Legislature, the SFL indicates that the Governmental Entity shall not record the Contact NY State Office of General Services

What communications are covered by this law? Communications that are intended to influence the governmental procurement (Contacts) A Contact is an oral, written or electronic communication with a Governmental Entity under circumstances where a reasonable person would infer the communication was intended to influence the Governmental Procurement NY State Office of General Services

Not all communications are Contacts Whether a communication is a Contact that is governed by State Finance Law and needs to be recorded depends on several factors Is there a transaction? Is it a covered transaction? What is the value of the transaction? NY State Office of General Services

Is there a Restricted Period? Who was the communication from? Under statute, communications from the members or staff NYS Legislature are not Contacts Offerer – individual or entity, or employee, agent or consultant or person acting on behalf of such individual or entity, that contacts a Governmental Entity during the Restricted Period about a Governmental Procurement NY State Office of General Services

Does the communication constitute a Contact? Number of factors to consider “Reasonable person” standard Consider totality of the circumstance 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 them to me? NY State Office of General Services

Communications that a reasonable person would probably consider as intended to influence the governmental procurement (a Contact) You should award the bid to my company because … You shouldn’t award the contract to Company X because … NY State Office of General Services

If it is a Contact State Finance Law requires a Governmental Entity to collect and record specific information about every Contact Record must be made a part of the Procurement Record Governmental Entity must determine if it is an “impermissible Contact” and refer for investigation if it is NY State Office of General Services

Determine if Contact must be Reported/Referred Whether a Contact is impermissible and must be reported/referred for investigation depends on the person’s role in the procurement Four principal roles in the procurement process NY State Office of General Services

Designated Contact(s) – those employees specifically named to receive all communications from the Offerers during the Restricted Period, including Contacts report/refer all Contacts that violate Public Officers Law or Penal Law Permissible subject matter communications those employees who may receive only specific subject matter communications during Restricted Period report/refer all Contacts that are outside of the specific subject matter NY State Office of General Services

may only receive factual inquiries (not Contacts) All other employees may only receive factual inquiries (not Contacts) report/refer all Contacts Control agencies only may receive specific subject matter Contacts from Offerer during the Restricted Period report/refer all Contacts that are outside of the specific subject matter NY State Office of General Services

Report / Referral Process? What is the Report / Referral Process? Each Governmental Entity is obligated to develop policies and procedures on the review and investigation process Report/referral generally to agency ethics officer or inspector general, who has specific obligations to review and investigate under law NY State Office of General Services

Review and Investigation Offerer is given reasonable notice that an investigation is ongoing and an opportunity to be heard Purpose is to determine if an impermissible Contact occurred; who made the impermissible Contact; and whether the Offerer’s impermissible Contact was knowing and willful NY State Office of General Services

1st Finding of Non-Responsibility If there is a finding that an Offerer knowingly and willfully violated the requirements about permissible Contacts, Offerer is determine to be “non-responsible” and no award. However, award can be made if two specific statutory requirements established First finding of non-responsibility also results in the Offerer being listed on the OGS maintained list of bidders determined to be non-responsible NY State Office of General Services

2nd Finding of Non-Responsibility Second finding of non-responsibility within four year period results in debarment of Offerer Offerer is listed on the OGS maintained list of bidders debarred due to violations of this statute Offerer ineligible to submit a proposal or be awarded any Procurement Contract for a period of four years from the second determination NY State Office of General Services

Impact of Law on Business Community Requirements about Contacts Consequences of impermissible Contacts Four contractual requirements and possible consequences NY State Office of General Services

Contractual Requirements Offerer must provide written affirmation on understanding of and agreement to an agency’s policy on permissible contacts This affirmation will be an element examined when a governmental entity is determining whether an impermissible Contact was knowing and willful Offerer must certify that the information provided under SFL section 139-k is complete, true and accurate NY State Office of General Services

Offerer must disclose additional information about prior findings of non-responsibility Expansion of the areas examined for vendor responsibility Offerer must agree to the inclusion of specific termination clause in contract NY State Office of General Services

Other Impacts Failure to timely disclose accurate information will result in non-award Failure to cooperate results in no award Such as a refusal to submit affirmation or certification NY State Office of General Services

State Finance Law Key Considerations Determine if there is a Restricted Period Understand the Governmental Entity’s policy on permissible Contacts Determine who is the Designated Contact for that procurement Carefully consider and direct communications and Contacts correctly Follow the processes in the solicitation Comply with requests for information NY State Office of General Services

QUESTIONS Contact: OGS Legal Services 41st Floor, Corning Tower Gov. N.A. Rockefeller, ESP Albany, NY 12242 (518) 474-5988 legalservicesweb@ogs.state.ny.us NY State Office of General Services

Thank you. NY State Office of General Services