Update State Purchasing Rules

Section 1. The state finance law is amended by adding a new section 163-c to read as follows:

§ 163-c. Vendor responsibility; online system participation. 1. Definitions. As used in this section the following terms shall have the following meanings:

a. "Enrollment" shall mean the establishment of an online services account with the state comptroller, including, but not limited to, the creation of a unique user identification and password. Enrollment provides a user access to the system.

b. "Online services" shall mean the services provided electronically and securely by the state comptroller for the benefit of New York's

EXPLANATION--Matter in italics (underscored) is new; matter in brackets

[ ] is old law to be omitted.

LBD06786-06-7

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customers, clients and business partners. Such online services may be expanded and enhanced as technology allows.

c. "State agency" or "state agencies" shall mean all state departments, boards, commissions, offices or institutions. Such term shall not include the legislature or the judiciary.

d. "State contract" or "contract" shall mean and include any written agreement for the acquisition of goods, services or construction of any kind between a vendor and a state agency, or a written agreement or other instrument wherein a state agency agrees to give consideration other than the payment of money as contemplated in subdivision three of section one hundred twelve of this chapter.

e. "Subcontractor" shall mean an individual, sole proprietorship, partnership, joint venture or corporation, which is engaged in a subcontract by a vendor pursuant to a state contract and such subcontract is valued at one hundred thousand dollars or more and is known at the time of the award of the state contract to the vendor.

f. "System" shall mean the on-line software, data and related resources maintained by the comptroller to compile vendor responsibility information.

g. "Terms of service" shall mean the terms and conditions developed by the state comptroller and agreed to by each authorized user prior to gaining access to online services. Terms of service shall include a description of the services, obligations of the state comptroller and the authorized user, a description of the state comptroller's privacy policy, authorized user code of conduct, and indemnity for the state comptroller and the state of New York. Terms of service are subject to change as prescribed by the state comptroller. Authorized users may view changes via the state comptroller's internet site.

h. "Vendor" shall include any person, partnership, corporation or limited liability company or any business entity bidding on a state procurement or otherwise awarded a state contract.

i. "Vendor responsibility" shall mean that a vendor has the capacity to fully perform the terms of a contract and the integrity and business ethics to justify an award of public dollars. A determination of vendor responsibility shall include consideration of factors including, but not limited to, financial and organizational capacity, legal authority, integrity and past performance on governmental contracts.

2. a. State agencies shall enroll with the state comptroller to access the system maintained by the comptroller to compile vendor responsibility information. State agencies shall agree to and abide by the terms of service for such system as the state comptroller deems necessary.

b. For each contract or subcontract between a vendor and a subcontractor where, pursuant to law or by direction of the state agency, disclosure for vendor responsibility is required, the state agency shall:

(i) provide notice to vendors bidding for procurements administered by the state agency that any vendor and subcontractor, submitting a vendor responsibility questionnaire shall do so via the system maintained to compile vendor responsibility information;

(ii) provide vendors with instructions on how to electronically access the system and provide contact information for assistance with enrollment. This information shall be made available prior to the time when vendors are required to submit disclosure for vendor responsibility; and

(iii) access the system to obtain and evaluate any data submitted by a vendor proposed for contract award. State agencies shall ensure the submission filed by the vendor meets such system's timeliness standards.

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Such provisions apply regardless of whether the contract is subject to pre-review and approval by the state comptroller.

c. For contracts where vendor disclosure is not otherwise required, the state agency at its discretion, may require vendors bidding on procurements, and/or subcontractors, to submit a vendor responsibility questionnaire via the system. Nothing contained in this paragraph shall be construed to alter the existing authority of the state comptroller to require the submission of a vendor responsibility questionnaire in conjunction with his or her duty to review and approve state contracts prior to such contracts becoming effective.

d. State agencies shall provide access to the system to users within their organization, as deemed appropriate by the head of the state agency or his or her designee. State agency users provided with such access shall be those individuals, who, as part of their official job duties, are required to assess and/or review vendor responsibility for the agency's contracts.

§ 2. Subdivisions 7 and 10 of section 160 of the state finance law, subdivision 7 as amended by section 30 of part L of chapter 55 of the laws of 2012 and subdivision 10 as added by chapter 83 of the laws of 1995, are amended to read as follows:

7. "Service" or "services" means the performance of a task or tasks and may include a material good or a quantity of material goods, and which is the subject of any purchase or other exchange. For the purposes of this article, information technology shall be deemed a service. Services, as defined in this article, shall not apply to those contracts for architectural, engineering or surveying services, or those contracts approved in accordance with article eleven-B of this chapter.

10. "[Technology] Information technology" means either a good or a service or a combination thereof, [that results in a technical method of achieving a practical purpose or in improvements in productivity] used in the application of any computer or electronic information equipment or interconnected system that is used in the acquisition, storage, manipulation, management, movement, control, display, switching, interchange, transmission, or reception of data including, but not limited to, hardware, software, firmware, programs, systems, networks, infrastructure, media, and related material used to automatically and electronically collect, receive, access, transmit, display, store, record, retrieve, analyze, evaluate, process, classify, manipulate, manage, assimilate, control, communicate, exchange, convert, converge, interface, switch, or disseminate data of any kind or form. Goods may be either new or used.

§ 3. Paragraphs g and i of subdivision 2 of section 161 of the state finance law, as added by chapter 83 of the laws of 1995, are amended to read as follows:

g. Consult with and advise the commissioner on strategic information technology investments that will facilitate electronic access to the terms and conditions of existing procurement contracts, promote electronic commerce including, but not limited to, payment to vendors, promote and enhance the efficiency of the procurement of products and services by or for state agencies and produce useful information that supports state procurement operations, management, analysis and decision making including, but not limited to, data concerning the status and use of procurement contracts and the number and type of contracts and award recipients;

i. Establish and, from time to time, amend guidelines for the procurement of services and information technology in accordance with the

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provisions of this article. Such guidelines shall ensure the wise and prudent use of public money in the best interest of the taxpayers of the state; guard against favoritism, improvidence, extravagance, fraud and corruption; and ensure that service contracts are awarded on the basis of best value, including, but not limited to, the following criteria: quality, cost, and efficiency;

§ 4. Paragraph k of subdivision 1 and subdivision 6 of section 163 of the state finance law, paragraph k of subdivision 1 as added by section 36 of part L of chapter 55 of the laws of 2012, subdivision 6 as amended by chapter 569 of the laws of 2015, are amended to read as follows:

k. "Authorized user" or "non-state agency purchaser" means (i) any officer, body or agency of the state or of a political subdivision or a district therein, or fire company or volunteer ambulance service as such are defined in section one hundred of the general municipal law, to make purchases of commodities, services and information technology through the office of general services' centralized contracts, pursuant to the provisions of section one hundred four of the general municipal law; (ii) any county extension service association as authorized under subdivision eight of section two hundred twenty-four of the county law; (iii) any association or other entity as specified in and in accordance with section one hundred nine-a of the general municipal law; (iv) any association, consortium or group of privately owned or municipal, federal or state owned or operated hospitals, medical schools, other health related facilities or voluntary ambulance services, which have entered into a contract and made mutual arrangements for the joint purchase of commodities, services and information technology pursuant to section twentyeight hundred three-a of the public health law; (v) any institution for the instruction of the deaf or of the blind listed in section forty-two hundred one of the education law; (vi) any qualified non-profit-making agency for the blind approved by the commissioner of the office of children and family services or the office of temporary and disability assistance; (vii) any qualified charitable non-profit-making agency for the severely disabled approved by the commissioner of education; (viii) any hospital or residential health care facility as defined in section twenty-eight hundred one of the public health law; (ix) any private not-for-profit mental hygiene facility as defined in section 1.03 of the mental hygiene law; (x) any public authority or public benefit corporation of the state, including the port authority of New York and New Jersey and the interstate environmental commission; (xi) any public library, association library, library system, cooperative library system, the New York Library Association, and the New York State Association of Library Boards or any other library except those which are operated by for profit entities; (xii) any other association or entity as specified in state law, to make purchases of commodities, services and information technology through the office of general services' centralized contracts. Such qualified non-profit-making agencies for the blind and severely disabled may make purchases from the correctional industries program of the department of corrections and community supervision subject to rules pursuant to the correction law.

6. Discretionary buying thresholds. Pursuant to guidelines established by the state procurement council: the commissioner may purchase services and commodities in an amount not exceeding eighty-five thousand dollars without a formal competitive process; state agencies may purchase services and commodities in an amount not exceeding fifty thousand dollars without a formal competitive process; and state agencies may purchase commodities or services from small business concerns or those

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certified pursuant to articles fifteen-A and seventeen-B of the executive law, or commodities or information technology that are recycled or remanufactured, or commodities that are food, including milk and milk products, grown, produced or harvested in New York state in an amount not exceeding two hundred thousand dollars without a formal competitive process.

§ 5. Section 163 of the state finance law is amended by adding a new subdivision 16 to read as follows: