Restricts contacts in the procurement process

Purpose

This bill clarifies provisions relating to restrictions on communications in the procurement process and the recording of such communications under the Procurement Lobbying Law.

Summary of provisions

Sections 1 through 4 of the bill amend subdivision 1 of State Finance Law (SFL) §§ 139-j to clarify certain definitions related to contact restrictions during the procurement process.

Section 5 of the bill amends SFL § 139-j(3) dealing with the nature of or circumstances under which certain communications with a governmental entity relative to a governmental procurement are permissible.

Sections 6 through 9 of the bill amend subdivision 1 of SFL . 139-k to clarify certain definitions related to disclosure of contacts and the responsibility of offerers during the procurement process.

Section 10 of the bill amends SFL § 139-k(4) relating to the imposition of recording requirements on governmental officials who are improperly contacted with respect to a governmental procurement.

Section 11 contains the effective date.

Existing law

SFL §§ 139-j and 139-k set forth restrictions on contacts during the procurement process and provide for recording of such contacts.

Legislative history

This is a new proposal.

Statement in support

Concerns about ensuring that the public procurement process was competitive, open and transparent with a level playing field for obtaining contract awards by participating vendors resulted in the enactment in 2005 of the State Procurement Lobbying Law, which restricts contacts during the procurement process and provides for the recording of such contacts. Such provisions are important to maintain the integrity of the public procurement infrastructure and to continue with best practices in the establishment and administration of State contracts.

Implementation of these restrictions on communications during a procurement and recording of certain communications, has been subject to deliberation and examination by the Advisory Council on Procurement Lobbying (ACPL). The ACPL is the public body that was directed by law (See Legislative Law § 1-t) to provide guidance to public entities regarding their compliance with these statutes. Based on the ACPL's experience with implementation of the procurement lobbying statutes, the ACPL is recommending certain clarifying amendments to facilitate compliance and increase the effectiveness of these provisions. This bill will implement those amendments.

The key changes proposed to the Procurement Lobbying Law are to: (1) clarify the definition of "offerer" to exempt concerned citizens and others who are not reasonably likely to receive a direct or indirect financial or personal benefit from the governmental procurement; (2) clarify when the "restricted period" commences for purposes of applying the procurement lobbying law; (3) align the types of procurement contracts covered by the law with the requirement for a formal competitive solicitation and pre-audit by OSC; (4) expand the listing of exempt contracts to include emergency, sole source, preferred source and trade show contracts and organ transplant reimbursement because of the nature of such contracts; (5) expand the list of permissible subject matter communications to include contacts between governmental entities and offerers for the purpose of evaluating bids as well as participating in demonstrations, interviews or other means of exchanging information provided for in a solicitation; and, (6) clarify the recording requirements that the law imposes on governmental employees to provide for a reasonableness standard in terms of the information that must be recorded.

Budget implications

None.

Effective date

This bill takes effect 90 days after it becomes law.