Relates to the registration fees for certain lobbying entities; amends the definition of "lobbying" to include attempts to influence actions of public officials related to the procurement of goods or services, the terms of a request for bids or proposals or other procurement solicitation, the terms of the contract, the selection of a contractor, and the administration, implementation and enforcement of a contract.
Sponsor: KRUEGER
Law Section: Legislative Law
Law: Rpld S1-c subs (c), (m) & (n), SS1-k, 1-n & 1-t, amd Leg L, generally
Co-sponsor(s):
SERRANO
Committee: FINANCE
Law Section: Legislative Law
Law: Rpld S1-c subs (c), (m) & (n), SS1-k, 1-n & 1-t, amd Leg L, generally
S870-2011 Actions
- Jan 13, 2012: PRINT NUMBER 870A
- Jan 13, 2012: AMEND AND RECOMMIT TO FINANCE
- Jan 4, 2012: REFERRED TO FINANCE
- Jan 5, 2011: REFERRED TO FINANCE
S870-2011 Memo
BILL NUMBER: S870 TITLE OF BILL : An act to amend the legislative law, in relation to registration filing fees for certain lobbying entities; and to repeal certain provisions of such law relating thereto PURPOSE : The purpose of this bill is to increase public confidence in state and local government by taking steps to regulate the interactions between lobbyists and government officials. SUMMARY OF PROVISIONS : This bill would: * Amend the definition of lobbying to include: 1. efforts to influence the adoption or terms of an executive order; 2. efforts to influence the action or determination of a public official including any person or entity working in cooperation with the official related to the award or denial of any contract or other agreement, including but not limited to those for the procurement of goods, commodities, services, construction, public works, or the purchase, sale, or lease of real property or any interest in real property, any revenue contract or any other similar transaction; 3. efforts related to the approval or the implementation and administration of tribal-state compacts, memoranda of understanding, or any other tribal-state agreement and any state actions relating to class III gaming except to the extent barred by federal law; 4. efforts to influence the action or determination of any municipal officer including any person or entity working in cooperation with the officer related to the award or denial of any contract or other agreement, including but not limited to those for the procurement of goods, commodities, services, construction, public works, or the purchase, sale, or lease of real property or any interest in real property, any revenue contract or any other similar transaction; and 5. efforts to influence the implementation of rules and regulations; * Provide the following exemptions from the definition of lobbying: 1. any activity relating to procurements made in accordance with section 162 of the State Finance Law (preferred source contracts); 2. participation by a potential bidder or their representative in a publicly noticed bid conference; 3. action taken by persons who have been tentatively awarded a contract, or their representatives, who are communicating with an agency or municipality to negotiate the contract; 4. participation in a bid protest or a request for a bid review; 5. submission of bid proposals; 6. communication with a designated agency or municipal contact person regarding a request for bid or proposal; and 7. applications for licenses, certificates, and permits authorized by other statutes; * Raise the threshold of allowable expenditures and compensation at which lobbyist registration is required from $2,000 to $5,000 annually, beginning in 2006; * Provide that the lobbying compensation threshold may be computed separately for state and municipal lobbying efforts; * Require that lobbyists must disclose in all activity reports the title of any contracts, and the identifying numbers of any contracts, bids, request for proposals, or invitation for bids that they have lobbied or expect to lobby on; * Make advisory opinions of the commission binding with respect to the person(s) to whom they are rendered; * Prohibit payments that are contingent upon the adoption or terms of an executive order, the acceptance of a bid or contract by any agency or municipal official, or any other procurement related decision, action or determination "regarding the procurement of goods, commodities or services by an agency or municipal official; * Define "restricted period" during which contacts regarding the procurement are restricted; * Define "revenue contract"; * Outline a procedure for "complaints regarding the procurement process; * Establish penalties for knowing and willful violation of the restricted period parameters; * Subject any proceeding or hearing conducted pursuant to the Lobbying Act to the State Administrative Procedure Act and Article 73 of the Civil Rights Law. * Create an advisory council on procurement lobbying which shall provide advice to the commission with respect to the implementation of procurement lobbying provisions. The council shall also report annually to the legislature as to the effectiveness of the provisions and make recommendations on increasing effectiveness. JUSTIFICATION : The majority of procurement contracts entered into by the state are subject to the rules of the competitive bidding process. However, that does not prevent individuals from attempting to influence agency or municipal officials when seeking a favorable decision on a submitted bid, or in the way that the request for bids is issued. By including government procurement and executive orders in the lobbying law, and prohibiting contingency payment for this type of lobbying, the State is instituting a strong protection of integrity of the procurement process. In addition, the way in which regulations are implemented can benefit groups, which in turn can prompt intense lobbying efforts. The public should know when groups and individuals attempt to go around the public process and influence decisions through informal mechanisms. The public concern really focuses on intensive and expensive efforts to redirect the making of public policy. The threshold for lobbying needs to be raised so that ordinary citizens' communications with government in the ordinary course of business are not captured in the definition of "lobbying." Additionally, those subject to the provisions of the Lobbying Act will be assured of fair procedures in any proceeding pursuant thereto. LEGISLATIVE HISTORY : 2008: A.8241 (Kavanagh) - Governmental Operations 2007: A.8241 (Kavanagh) - Governmental Operations of 2007. 2009-2010: S.4527/A.649 (Kavanagh) FISCAL IMPACT ON THE STATE : None. EFFECTIVE DATE : This act shall take effect immediately; provided, however, that section one of this act shall take effect on the first of January next succeeding the date on which this act shall have become a law.
S870-2011 Text
S T A T E O F N E W Y O R K
________________________________________________________________________
870
2011-2012 Regular Sessions
I N SENATE
(PREFILED)
January 5, 2011
___________
Introduced by Sens. KRUEGER, SERRANO -- read twice and ordered printed,
and when printed to be committed to the Committee on Finance
AN ACT to amend the legislative law, in relation to registration filing
fees for certain lobbying entities; and to repeal certain provisions
of such law relating thereto
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Subdivision (c) of section 1-c of the legislative law is
REPEALED and a new subdivision (c) is added to read as follows:
(C) THE TERM "LOBBYING" OR "LOBBYING ACTIVITIES" SHALL MEAN ANY
ATTEMPT TO INFLUENCE:
(I) THE PASSAGE OR DEFEAT OF ANY LEGISLATION BY EITHER HOUSE OF THE
STATE LEGISLATURE OR APPROVAL OR DISAPPROVAL OF ANY LEGISLATION BY THE
GOVERNOR;
(II) THE ADOPTION OR TERMS OF AN EXECUTIVE ORDER;
(III) THE ADOPTION, REJECTION, OR IMPLEMENTATION OF ANY RULE OR REGU-
LATION HAVING THE FORCE AND EFFECT OF LAW BY A STATE AGENCY;
(IV) THE OUTCOME OF ANY RATE MAKING PROCEEDING BY A STATE AGENCY;
(V) ANY ACTION OR DETERMINATION BY A PUBLIC OFFICIAL OR BY A PERSON OR
ENTITY WORKING IN COOPERATION WITH A PUBLIC OFFICIAL OR BY EITHER HOUSE
OF THE STATE LEGISLATURE OR BY THE UNIFIED COURT SYSTEM RELATED TO THE
AWARD OR DENIAL OF ANY CONTRACT OR OTHER AGREEMENT FOR THE PROCUREMENT
OF GOODS, COMMODITIES, SERVICES, CONSTRUCTION, PUBLIC WORKS OR THE
PURCHASE, SALE, OR LEASE OF REAL PROPERTY, OR ANY INTEREST IN REAL PROP-
ERTY, ANY REVENUE CONTRACT OR ANY OTHER SIMILAR TRANSACTION, WHICH
ACTIONS OR DETERMINATIONS SHALL INCLUDE BUT SHALL NOT BE LIMITED TO
ACTIONS OR DETERMINATIONS SETTING THE PROCUREMENT METHODOLOGY, THE TERMS
OF A REQUEST FOR PROPOSALS OR INVITATION FOR BIDS OR OTHER PROCUREMENT
SOLICITATIONS AND THEIR EVALUATION, THE TERMS OF THE CONTRACT, THE
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD00876-02-1
S. 870 2
SELECTION OF A CONTRACTOR, AND THE ADMINISTRATION, IMPLEMENTATION, AND
ENFORCEMENT OF A CONTRACT;
(VI) ANY ACTION OR DECISION BY A PUBLIC OFFICIAL OR BY A PERSON OR
ENTITY WORKING IN COOPERATION WITH A PUBLIC OFFICIAL OR BY A MUNICIPAL
OFFICER OR A PERSON OR ENTITY WORKING IN COOPERATION WITH THE MUNICIPAL
OFFICER IN RELATION TO THE APPROVAL OR DISAPPROVAL OR THE IMPLEMENTATION
AND ADMINISTRATION OF TRIBAL-STATE COMPACTS, MEMORANDA OF UNDERSTANDING,
OR ANY OTHER TRIBAL-STATE AGREEMENTS AND ANY STATE ACTIONS RELATED TO
CLASS III GAMING AS PROVIDED IN 25 USC 2701, EXCEPT TO THE EXTENT DESIG-
NATION OF SUCH ACTIVITIES AS "LOBBYING" IS BARRED BY THE FEDERAL INDIAN
GAMING REGULATORY ACT;
(VII) THE PASSAGE OR DEFEAT OF ANY LOCAL LAW, ORDINANCE, RESOLUTION,
OR REGULATION BY ANY MUNICIPALITY OR SUBDIVISION THEREOF OR THE
ADOPTION, REJECTION, OR IMPLEMENTATION OF ANY RULE, REGULATION, OR
RESOLUTION HAVING THE FORCE AND EFFECT OF A LOCAL LAW, ORDINANCE, RESOL-
UTION, OR REGULATION;
(VIII) ANY RATE MAKING PROCEEDING BY ANY MUNICIPALITY OR SUBDIVISION
THEREOF; OR
(IX) ANY ACTION OR DETERMINATION BY A MUNICIPAL OFFICER OR A PERSON OR
ENTITY WORKING IN COOPERATION WITH THE OFFICER RELATED TO THE AWARD OR
DENIAL OF ANY CONTRACT OR OTHER AGREEMENT FOR THE PROCUREMENT OF GOODS,
COMMODITIES, SERVICES, CONSTRUCTION, PUBLIC WORKS OR THE PURCHASE, SALE,
OR LEASE OF REAL PROPERTY, OR ANY INTEREST IN REAL PROPERTY, ANY REVENUE
CONTRACT OR ANY OTHER SIMILAR TRANSACTION, WHICH ACTIONS OR DETERMI-
NATIONS SHALL INCLUDE BUT SHALL NOT BE LIMITED TO ACTIONS OR DETERMI-
NATIONS SETTING THE PROCUREMENT METHODOLOGY, THE TERMS OF A REQUEST FOR
PROPOSALS OR INVITATION FOR BIDS OR OTHER PROCUREMENT SOLICITATIONS AND
THEIR EVALUATION, THE TERMS OF THE CONTRACT, THE SELECTION OF A CONTRAC-
TOR, AND THE ADMINISTRATION, IMPLEMENTATION, AND ENFORCEMENT OF A
CONTRACT.
THE TERM "LOBBYING" SHALL NOT INCLUDE:
(1) PERSONS ENGAGED IN DRAFTING LEGISLATION, RULES, REGULATIONS OR
RATES, ADVISING CLIENTS AND RENDERING OPINIONS ON PROPOSED LEGISLATION,
RULES, REGULATIONS OR RATES, WHERE SUCH PROFESSIONAL SERVICES ARE NOT
OTHERWISE CONNECTED WITH LEGISLATIVE OR EXECUTIVE ACTION ON SUCH LEGIS-
LATION, OR ADMINISTRATIVE ACTION ON SUCH RULES, REGULATIONS OR RATES;
(2) NEWSPAPERS AND OTHER PERIODICALS AND RADIO AND TELEVISION
STATIONS, AND OWNERS AND EMPLOYEES THEREOF, PROVIDED THAT THEIR ACTIV-
ITIES IN CONNECTION WITH PROPOSED LEGISLATION, RULES, REGULATIONS, RATES
OR CONTRACTS OR OTHER AGREEMENTS FOR THE PROCUREMENT OF GOODS, COMMOD-
ITIES, SERVICES, CONSTRUCTION, OR PUBLIC WORKS BY A STATE AGENCY, MUNIC-
IPAL AGENCY, LOCAL LEGISLATIVE BODY, THE STATE LEGISLATURE, OR THE
UNIFIED COURT SYSTEM OR CONTRACTS OR OTHER AGREEMENTS FOR THE PURCHASE,
SALE, OR LEASE OF REAL PROPERTY OR THE ACQUISITION OR GRANT OF OTHER
PROPERTY INTERESTS IN REAL PROPERTY BY A STATE AGENCY, MUNICIPAL AGENCY,
LOCAL LEGISLATIVE BODY, THE STATE LEGISLATURE, OR THE UNIFIED COURT
SYSTEM, ARE LIMITED TO THE PUBLICATION OR BROADCAST OF NEWS ITEMS,
EDITORIALS OR OTHER COMMENTS, OR PAID ADVERTISEMENTS;
(3) PERSONS WHO PARTICIPATE AS WITNESSES, ATTORNEYS OR OTHER REPRESEN-
TATIVES IN PUBLIC RULE MAKING OR RATE MAKING PROCEEDINGS OF A STATE OR
MUNICIPAL AGENCY, WITH RESPECT TO ALL PARTICIPATION BY SUCH PERSONS
WHICH IS PART OF THE PUBLIC RECORD THEREOF AND ALL PREPARATION BY SUCH
PERSONS FOR SUCH PARTICIPATION;
(4) PERSONS WHO ATTEMPT TO INFLUENCE A STATE OR MUNICIPAL AGENCY IN AN
ADJUDICATORY PROCEEDING, AS "ADJUDICATORY PROCEEDING" IS DEFINED BY
SECTION ONE HUNDRED TWO OF THE STATE ADMINISTRATIVE PROCEDURE ACT;
S. 870 3
(5) PERSONS WHO PREPARE OR SUBMIT A RESPONSE TO A REQUEST FOR INFORMA-
TION OR COMMENTS BY THE STATE LEGISLATURE, THE GOVERNOR, OR A STATE
AGENCY OR A COMMITTEE OR OFFICER OF THE LEGISLATURE OR A STATE AGENCY OR
BY A LEGISLATIVE OR EXECUTIVE BODY OR OFFICER OF A MUNICIPALITY OR A
COMMISSION, COMMITTEE OR OFFICER OF A MUNICIPAL LEGISLATIVE OR EXECUTIVE
BODY;
(6) ANY ATTEMPT BY A CHURCH, ITS INTEGRATED AUXILIARY, OR A CONVENTION
OR ASSOCIATION OF CHURCHES THAT IS EXEMPT FROM FILING A FEDERAL INCOME
TAX RETURN UNDER PARAGRAPH 2(A)(I) OF SECTION 6033(A) OF TITLE 26 OF THE
UNITED STATES CODE OR A RELIGIOUS ORDER THAT IS EXEMPT FROM FILING A
FEDERAL INCOME TAX RETURN UNDER PARAGRAPH (2)(A)(III) OF SUCH SECTION
6033(A) TO INFLUENCE PASSAGE OR DEFEAT OF A LOCAL LAW, ORDINANCE OR
REGULATION OR ANY RULE OR REGULATION HAVING THE FORCE AND EFFECT OF A
LOCAL LAW, ORDINANCE OR REGULATION;
(7) ANY ACTIVITY RELATING TO PROCUREMENTS MADE UNDER SECTION ONE
HUNDRED SIXTY-TWO OF THE STATE FINANCE LAW UNDERTAKEN BY (I) THE
NON-PROFIT-MAKING AGENCIES APPOINTED PURSUANT TO PARAGRAPH E OF SUBDIVI-
SION SIX OF SECTION ONE HUNDRED SIXTY-TWO OF THE STATE FINANCE LAW BY
THE COMMISSIONER OF THE OFFICE OF CHILDREN AND FAMILY SERVICES, THE
COMMISSION FOR THE BLIND AND VISUALLY HANDICAPPED, OR THE COMMISSIONER
OF EDUCATION, AND (II) THE QUALIFIED CHARITABLE NON-PROFIT-MAKING AGEN-
CIES FOR THE BLIND, AND QUALIFIED CHARITABLE NON-PROFIT-MAKING AGENCIES
FOR OTHER SEVERELY DISABLED PERSONS AS IDENTIFIED IN SUBDIVISION TWO OF
SECTION ONE HUNDRED SIXTY-TWO OF THE STATE FINANCE LAW;
(8) PARTICIPANTS, INCLUDING THOSE APPEARING ON BEHALF OF A CLIENT, IN
A PUBLICLY NOTICED CONFERENCE PURSUANT TO A REQUEST FOR PROPOSALS, INVI-
TATION FOR BIDS, OR OTHER SOLICITATIONS;
(9) PERSONS WHO HAVE BEEN TENTATIVELY AWARDED A CONTRACT OR REPRESENT
PERSONS WHO HAVE BEEN TENTATIVELY AWARDED A CONTRACT AND ARE ENGAGED IN
COMMUNICATIONS WITH A STATE AGENCY OR MUNICIPALITY SOLELY FOR THE
PURPOSE OF NEGOTIATING THE TERMS OF THE CONTRACT AFTER BEING NOTIFIED OF
SUCH AWARD OR PERSONS OR THEIR REPRESENTATIVES WHO ARE PURCHASING PURSU-
ANT TO AN EXISTING CONTRACT; OR PERSONS WHO CURRENTLY HOLD A FRANCHISE
AND WHO ARE ENGAGED IN NEGOTIATING THE TERMS OF A TENTATIVE FRANCHISE
RENEWAL CONTRACT WITH A MUNICIPALITY, BUT SUCH NEGOTIATIONS, WHICH DO
NOT CONSTITUTE LOBBYING, DO NOT INCLUDE COMMUNICATIONS TO THE LOCAL
LEGISLATIVE BODY THAT MUST APPROVE THE CONTRACT;
(10) PERSONS OR THE REPRESENTATIVES OF PERSONS WHO ARE A PARTY TO A
PROTEST, APPEAL OR OTHER REVIEW PROCEEDING (INCLUDING THE APPARENT
SUCCESSFUL BIDDER OR PROPOSER AND HIS OR HER REPRESENTATIVE) OR PERSONS
WHO BRING COMPLAINTS OF ILLEGAL CONDUCT IN A PROCUREMENT PROCESS TO THE
COMPTROLLER'S OFFICE, THE ATTORNEY GENERAL, INSPECTOR GENERAL, OR A
DISTRICT ATTORNEY;
(11) THE SUBMISSION OF A BID OR PROPOSAL (WHETHER SUBMITTED ORALLY OR
IN WRITING) IN RESPONSE TO A REQUEST FOR PROPOSALS OR INVITATION FOR
BIDS;
(12) PROSPECTIVE BIDDERS OR PROPOSERS OR THEIR REPRESENTATIVES SUBMIT-
TING WRITTEN QUESTIONS TO A DESIGNATED AGENCY OR MUNICIPAL CONTACT SET
FORTH IN A REQUEST FOR PROPOSALS, OR INVITATION FOR BIDS; AND
(13) APPLICATIONS FOR LICENSES, CERTIFICATES, AND PERMITS AUTHORIZED
BY OTHER STATUTES.
S 2. Subdivisions (m) and (n) of section 1-c of the legislative law
are REPEALED and two new subdivisions (m) and (n) are added to read as
follows:
(M) THE TERM "RESTRICTED PERIOD" SHALL MEAN THE PERIOD OF TIME BEGIN-
NING WITH THE ISSUANCE OF A REQUEST FOR PROPOSAL, INVITATION FOR BIDS,
S. 870 4
OR SOLICITATION OF PROPOSALS, OR ANY OTHER METHOD FOR SOLICITING A
RESPONSE FROM POTENTIAL CONTRACTORS INTENDING TO RESULT IN A CONTRACT
WITH A STATE AGENCY, MUNICIPALITY, THE STATE LEGISLATURE, OR STATE JUDI-
CIARY AND ENDING WITH THE TENTATIVE AWARD OF THE CONTRACT.
(N) FOR PURPOSES OF THIS ARTICLE, A REVENUE CONTRACT SHALL MEAN ANY
WRITTEN AGREEMENT BETWEEN AN AGENCY OR MUNICIPALITY AND A PRIVATE INDI-
VIDUAL OR BUSINESS ENTITY WHEREBY THE AGENCY OR MUNICIPALITY GIVES OR
GRANTS A CONCESSION, A FRANCHISE OR ANY CONSIDERATION OTHER THAN THE
PAYMENT OF MONEY.
S 3. Paragraphs 5 and 6 of subdivision (c) of section 1-e of the
legislative law, as amended by chapter 1 of the laws of 2005, are
amended to read as follows:
(5) the following information on which the lobbyist expects to lobby:
(i) a description of the general subject or subjects, (ii) the legisla-
tive bill numbers of any bills OR RESOLUTIONS, (iii) the numbers or
subject matter (if there are no numbers) of gubernatorial executive
orders or executive orders issued by the chief executive officer of a
municipality, (iv) the subject matter of and tribes involved in tribal-
state compacts, memoranda of understanding, or any other state-tribal
agreements and any state actions related to class III gaming as provided
in 25 U.S.C. S 2701, (v) the rule, regulation, and ratemaking numbers of
any rules, regulations, rates, or municipal ordinances and resolutions,
or proposed rules, regulations, or rates, or municipal ordinances and
resolutions, and (vi) the titles and any identifying numbers of any
procurement contracts, BIDS, REQUESTS FOR PROPOSALS, INVITATION FOR BIDS
and other documents disseminated by a state agency, either house of the
state legislature, the unified court system, municipal agency or local
legislative body in connection with a governmental procurement;
(6) the name of the [person, organization, or legislative body]
PERSONS, ORGANIZATIONS AND LEGISLATIVE BODIES before which the lobbyist
is lobbying or expects to lobby;
S 4. Paragraph 3 of subdivision (b) of section 1-h of the legislative
law, as amended by chapter 14 of the laws of 2007, is amended to read as
follows:
(3) the following information on which the lobbyist has lobbied: (i) a
description of the general subject or subjects, (ii) the legislative
bill numbers of any bills OR RESOLUTIONS, (iii) the numbers or subject
matter (if there are no numbers) of gubernatorial executive orders or
executive orders issued by the chief executive officer of a munici-
pality, (iv) the subject matter of and tribes involved in tribal-state
compacts, memoranda of understanding, or any other state-tribal agree-
ments and any state actions related to class III gaming as provided in
25 U.S.C. S 2701, (v) the rule, regulation, and ratemaking or municipal
ordinance or resolution numbers of any rules, regulations, or rates or
ordinance or proposed rules, regulations, or rates or municipal ordi-
nances or resolutions, and (vi) the titles and any identifying numbers
of any procurement contracts, BIDS, REQUESTS FOR PROPOSALS OR INVITATION
FOR BIDS and other documents disseminated by a state agency, either
house of the state legislature, the unified court system, municipal
agency or local legislative body in connection with a governmental
procurement;
S 5. Paragraph 3 of subdivision (b) of section 1-j of the legislative
law, as amended by chapter 1 of the laws of 2005, is amended to read as
follows:
(3) the following information on which each lobbyist retained,
employed or designated by such client has lobbied, and on which such
S. 870 5
client has lobbied: (i) a description of the general subject or
subjects, (ii) the legislative bill numbers of any bills OR RESOLUTIONS,
(iii) the numbers or subject matter (if there are no numbers) of guber-
natorial executive orders or executive orders issued by the chief execu-
tive officer of a municipality, (iv) the subject matter of and tribes
involved in tribal-state compacts, memoranda of understanding, or any
other state-tribal agreements and any state actions related to class III
gaming as provided in 25 U.S.C. 2701, (v) the rule, regulation, and
ratemaking or municipal resolution or ordinance numbers of any rules,
regulations, or rates, or municipal resolutions or ordinances or
proposed rules, regulations, or rates, or municipal ordinances or resol-
utions and (vi) the titles and any identifying numbers of any procure-
ment contracts, BIDS, REQUESTS FOR PROPOSALS OR INVITATION FOR BIDS and
other documents disseminated by a state agency, either house of the
state legislature, the unified court system, municipal agency or local
legislative body in connection with a governmental procurement;
S 6. Section 1-k of the legislative law is REPEALED and a new section
1-k is added to read as follows:
S 1-K. CONTINGENT RETAINER. (A) NO CLIENT SHALL RETAIN OR EMPLOY ANY
LOBBYIST FOR COMPENSATION, THE RATE OR AMOUNT OF WHICH COMPENSATION IN
WHOLE OR PART IS CONTINGENT OR DEPENDENT UPON: (I) THE PASSAGE OR DEFEAT
OF ANY LEGISLATIVE BILL OR THE APPROVAL OR VETO OF ANY LEGISLATION BY
THE GOVERNOR, THE ADOPTION OR TERMS OF AN EXECUTIVE ORDER, OR THE
ADOPTION, REJECTION, OR IMPLEMENTATION OF ANY CODE, RULE OR REGULATION
HAVING THE FORCE AND EFFECT OF LAW, OR THE OUTCOME OF ANY RATE MAKING
PROCEEDING BY A STATE AGENCY OR THE ACCEPTANCE OF OR DECISION REGARDING
ANY BID OR CONTRACT BY A STATE AGENCY OR AGREEMENT FOR THE PURCHASE,
SALE, OR LEASE OF REAL PROPERTY OR ANY INTEREST IN REAL PROPERTY, ANY
REVENUE CONTRACT OR ANY OTHER SIMILAR TRANSACTION, WHICH ACTIONS OR
DETERMINATIONS SHALL INCLUDE BUT SHALL NOT BE LIMITED TO ACTIONS OR
DETERMINATIONS SETTING THE PROCUREMENT METHODOLOGY, THE TERMS OF A
REQUEST FOR PROPOSALS OR INVITATION FOR BIDS OR OTHER PROCUREMENT SOLIC-
ITATIONS AND THEIR EVALUATION, THE TERMS OF THE CONTRACT, THE SELECTION
OF A CONTRACTOR, AND THE ADMINISTRATION, IMPLEMENTATION, AND ENFORCEMENT
OF A CONTRACT, THE APPROVAL OR DISAPPROVAL OF A TRIBAL-STATE AGREEMENT
OR (II) THE PASSAGE OR DEFEAT OF ANY LOCAL LAW, ORDINANCE, RESOLUTION,
OR REGULATION BY ANY MUNICIPALITY OR SUBDIVISION THEREOF, OR THE
ADOPTION, REJECTION, OR IMPLEMENTATION OF ANY RULE, RESOLUTION, OR REGU-
LATION HAVING THE FORCE OR EFFECT OF A LOCAL LAW, ORDINANCE, RESOLUTION,
OR REGULATION, OR THE OUTCOME OF ANY RATEMAKING PROCEEDING BY ANY MUNI-
CIPALITY OR SUBDIVISION THEREOF OR THE ACCEPTANCE OF OR DECISION REGARD-
ING ANY BID OR CONTRACT OR AGREEMENT FOR THE PURCHASE, SALE, OR LEASE OF
REAL PROPERTY OR GRANT OF OTHER INTEREST IN REAL PROPERTY BY A MUNICI-
PALITY, THE DECISION OF ANY MUNICIPAL OFFICIAL REGARDING PROCUREMENT
METHODOLOGY, TERMS OF BIDS OR SOLICITATIONS, OR THE ADMINISTRATION,
IMPLEMENTATION, AND ENFORCEMENT OF A CONTRACT. THIS SECTION SHALL NOT
APPLY TO COMMISSION SALESPERSONS. THE TERM "COMMISSION SALESPERSON"
SHALL MEAN ANY PERSON THE PRIMARY PURPOSE OF WHOSE EMPLOYMENT IS TO
CAUSE OR PROMOTE THE SALE OF, OR TO INFLUENCE OR INDUCE ANOTHER TO MAKE
A PURCHASE OF GOODS, COMMODITIES, OR SERVICES, WHETHER SUCH PERSON IS AN
EMPLOYEE (AS THAT TERM IS DEFINED FOR TAX PURPOSES) OF OR AN INDEPENDENT
CONTRACTOR FOR A VENDOR, PROVIDED THAT AN INDEPENDENT CONTRACTOR SHALL
HAVE A WRITTEN CONTRACT FOR A TERM OF NOT LESS THAN SIX MONTHS OR FOR AN
INDEFINITE TERM, AND WHICH PERSON SHALL BE COMPENSATED, IN WHOLE OR IN
PART, BY THE PAYMENT OF A PERCENTAGE AMOUNT OF ALL OR A SUBSTANTIAL PART
OF THE SALES WHICH SUCH PERSON HAS CAUSED, PROMOTED, INFLUENCED OR
S. 870 6
INDUCED, PROVIDED, HOWEVER, THAT NO PERSON SHALL BE CONSIDERED A COMMIS-
SION SALESPERSON WITH RESPECT TO ANY SALE TO OR PURCHASE BY AN AGENCY OF
THE STATE OR MUNICIPALITY IF THE PERCENTAGE AMOUNT OF ANY COMMISSION
PAYABLE WITH RESPECT TO SUCH SALE OR PURCHASE IS SUBSTANTIALLY IN EXCESS
OF ANY COMMISSION PAYABLE WITH RESPECT TO ANY COMPARABLE SALE TO A
PURCHASER THAT IS NOT AN AGENCY OF THE STATE OR MUNICIPALITY.
(B) NO PERSON SHALL ACCEPT SUCH A RETAINER OR EMPLOYMENT. A VIOLATION
OF THIS SECTION SHALL BE A CLASS A MISDEMEANOR.
S 7. Section 1-n of the legislative law is REPEALED and a new section
1-n is added to read as follows:
S 1-N. RESTRICTED CONTACTS. 1. DURING THE RESTRICTED PERIOD, A POTEN-
TIAL CONTRACTOR OR ITS REPRESENTATIVE SHALL NOT ENGAGE IN LOBBYING
ACTIVITIES CONCERNING A PENDING CONTRACT DECISION BY MAKING CONTACT WITH
AN OFFICER, EMPLOYEE, AGENT, CONSULTANT OR OTHER REPRESENTATIVE OF THE
CONTRACTING AGENCY OR MUNICIPALITY, INCLUDING THE EXECUTIVE CHAMBER IF A
STATE AGENCY IS THE CONTRACTING ENTITY OR, IF THE LEGISLATURE IS THE
CONTRACTING ENTITY, ANY ELECTED LEGISLATOR OR LEGISLATIVE STAFF, OR IF
THE JUDICIARY IS THE CONTRACTING ENTITY, ANY JUDICIAL OFFICER OR STAFF,
WHO IS NOT DESIGNATED BY THE CONTRACTING ENTITY AS A CONTACT PERSON TO
WHOM SUCH COMMUNICATION MUST BE DIRECTED. THE PROHIBITION SET FORTH IN
THE PRECEDING SENTENCE SHALL NOT APPLY TO ANY CONTACTS DESCRIBED IN
SUBDIVISION TWO OF THIS SECTION.
2. A COMPLAINT BY A POTENTIAL CONTRACTOR OR REPRESENTATIVE OF A POTEN-
TIAL CONTRACTOR REGARDING THE CONTRACTING PROCESS MAY BE MADE IN WRITING
TO THE GENERAL COUNSEL'S OFFICE OF THE STATE AGENCY, MUNICIPALITY,
LEGISLATIVE BODY OR JUDICIAL ENTITY CONDUCTING THE PROCUREMENT. SUCH
OFFICE SHALL UPON RECEIPT HAVE FIVE BUSINESS DAYS TO ISSUE A WRITTEN
RESPONSE TO THE COMPLAINANT. NOTHING IN THIS SECTION SHALL BE DEEMED TO
PREVENT OR DELAY ANY PERSON FROM, AT ANY TIME, SUBMITTING A COMPLAINT OR
AN APPEAL REGARDING THE PROCUREMENT OR CONTRACTING PROCESS TO (I) THE
STATE COMPTROLLER; (II) THE INSPECTOR GENERAL; (III) THE ATTORNEY GENER-
AL; (IV) A DISTRICT ATTORNEY; OR (V) ANY OTHER LAW ENFORCEMENT AGENCY.
S 8. Section 1-t of the legislative law is REPEALED and a new section
1-t is added to read as follows:
S 1-T. ADVISORY COUNCIL ON PROCUREMENT LOBBYING. (A) THERE SHALL BE
WITHIN THE COMMISSION, AN ADVISORY COUNCIL ON PROCUREMENT LOBBYING. THE
COUNCIL SHALL BE COMPOSED OF NINE MEMBERS AS FOLLOWS:
(I) THE COMMISSIONER OF THE OFFICE OF GENERAL SERVICES, OR HIS OR HER
DESIGNEE;
(II) THE STATE COMPTROLLER, OR HIS OR HER DESIGNEE;
(III) THE ATTORNEY GENERAL, OR HIS OR HER DESIGNEE;
(IV) ONE MEMBER APPOINTED BY THE TEMPORARY PRESIDENT OF THE SENATE;
(V) ONE MEMBER APPOINTED BY THE SPEAKER OF THE ASSEMBLY;
(VI) ONE MEMBER APPOINTED BY THE SENATE MINORITY LEADER;
(VII) ONE MEMBER APPOINTED BY THE ASSEMBLY MINORITY LEADER;
(VIII) ONE MEMBER APPOINTED BY THE GOVERNOR WHO SHALL BE REPRESEN-
TATIVE OF PUBLIC AUTHORITIES OR PUBLIC BENEFIT CORPORATIONS; AND
(IX) ONE MEMBER APPOINTED BY THE CHIEF JUDGE OF THE COURT OF APPEALS.
(B) THE MEMBERS OF THE COUNCIL SHALL RECEIVE NO COMPENSATION FOR THEIR
SERVICES, BUT SHALL BE ALLOWED THEIR ACTUAL AND NECESSARY EXPENSES
INCURRED IN THE PERFORMANCE OF THEIR DUTIES.
(C) THE COUNCIL SHALL PROVIDE ADVICE TO THE COMMISSION WITH RESPECT TO
THE IMPLEMENTATION OF THE PROVISIONS OF THIS ARTICLE AS SUCH PROVISIONS
PERTAIN TO PROCUREMENT LOBBYING.
(D) THE COUNCIL SHALL ANNUALLY REPORT TO THE LEGISLATURE ANY PROBLEMS
IN THE IMPLEMENTATION OF THE PROVISIONS OF THIS ARTICLE AS SUCH
S. 870 7
PROVISIONS PERTAIN TO PROCUREMENT LOBBYING. THE COUNCIL SHALL INCLUDE IN
THE REPORT ANY RECOMMENDED CHANGES TO INCREASE THE EFFECTIVENESS OF THAT
IMPLEMENTATION.
(E) THE COUNCIL SHALL, BY OCTOBER THIRTIETH, TWO THOUSAND ELEVEN,
SUBMIT A REPORT TO THE LEGISLATURE ON THE EFFECTS OF THE PROCUREMENT
PROVISIONS AS SET FORTH IN THIS ARTICLE INCLUDING BUT NOT LIMITED TO ANY
CHANGES IN THE NUMBER AND NATURE OF VENDORS AND PROSPECTIVE VENDORS
AFTER JANUARY FIRST, TWO THOUSAND EIGHT.
S 9. This act shall take effect immediately; provided, however, that
section one of this act shall take effect on the first of January next
succeeding the date on which this act shall have become a law.
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