S T A T E O F N E W Y O R K ________________________________________________________________________ 2468 2011-2012 Regular Sessions I N S E N A T E January 21, 2011 ___________ Introduced by Sen. LIBOUS -- read twice and ordered printed, and when printed to be committed to the Committee on Finance AN ACT to amend the state finance law and the agriculture and markets law, in relation to enacting the "buy from the backyard act" THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: 1 Section 1. Short title. This act shall be known and may be cited as 2 the "buy from the backyard act". 3 S 2. Subdivision 4 of section 165 of the state finance law, as amended 4 by chapter 137 of the laws of 2008, is amended to read as follows: 5 4. Special provisions for purchase of available New York food 6 products. 7 a. Except as otherwise provided in this subdivision, when letting 8 contracts for the purchase of food products on behalf of facilities and 9 institutions of the state, solicitation specifications of the office of 10 general services and any other agency, department, office, board or 11 commission [may] SHALL require provisions that mandate that [all or 12 some], DURING EACH STATE FISCAL YEAR, NOT LESS THAN TWENTY PERCENT of 13 the required food products are grown, produced or harvested in New York 14 state, or that any processing of such food products take place in facil- 15 ities located within New York state. 16 b. The commissioner of agriculture and markets shall determine AND 17 CERTIFY, using uniform criteria, those food products for which the 18 requirements of this subdivision are deemed MOST beneficial and shall 19 promulgate and forward to the appropriate agencies a list of such food 20 products, and shall in addition ascertain those periods of time each 21 year that those food products are available in sufficient quantities for 22 competitive purchasing and shall forward such information to purchasing 23 agencies. The commissioner of agriculture and markets shall update such 24 list as often as is deemed by him or her to be necessary. FOR THE 25 PURPOSES OF THIS SUBDIVISION, "COMPETITIVE PURCHASING" OF NEW YORK FOOD EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD07264-01-1 S. 2468 2 1 PRODUCTS SHALL BE DEEMED TO BE ESTABLISHED WHEN THE COST OF SUCH 2 PRODUCTS ARE NOT MORE THAN TEN PERCENT HIGHER THAN OTHER FOOD PRODUCTS. 3 c. (i) Prior to issuing a solicitation for such food products, 4 purchasing agencies shall advise the commissioner of agriculture and 5 markets of the quantities of each food product on the list promulgated 6 by the commissioner of agriculture and markets to fulfill that agency's 7 purchasing needs. 8 (ii) The commissioner of agriculture and markets will then make a 9 determination of whether those products required by the purchasing agen- 10 cy are available in sufficient quantities to satisfy the purchasing 11 agency's requirements. 12 (iii) Upon a determination by the commissioner of agriculture and 13 markets that the food products required by the purchasing agency are 14 available in sufficient quantities to fulfill the agency's purchasing 15 needs, the purchasing agency [may] SHALL include in its solicitation a 16 requirement that all or some of those food products are grown, produced 17 or harvested in New York state, or that any processing of such food 18 products take place in facilities located within New York state. 19 (iv) Upon a determination by the commissioner of agriculture and 20 markets that such food products are not available in sufficient quanti- 21 ties to fulfill the agency's purchasing needs, the purchasing agency 22 shall issue a solicitation that does not require that all or some of 23 those food products are grown, produced or harvested in New York state, 24 or that any processing of such food products take place in facilities 25 located within New York state. In such cases, the purchasing agency 26 [may] SHALL include such requirements in the next contract for such food 27 products that is let if at such time those food products are available 28 in sufficient quantities. If at that time, those food products are not 29 available in sufficient quantities, the requirement shall again be 30 waived until such time as the products are available. 31 (v) In the event that the purchasing agency receives no offers that 32 meet the agency's requirement that all or some of the food products are 33 grown, produced or harvested in New York state, or that any processing 34 of such food products take place in facilities located within New York 35 state, it may waive the provisions of this subdivision and award a 36 contract in accordance with other applicable statutes. [In addition, if 37 the commissioners of agriculture and markets, economic development and 38 any such individual agency shall agree as to the deleterious economic 39 impact of specifications requiring such purchases, such agencies may 40 waive the provisions of this subdivision for such purchases.] 41 d. The commissioner, and the commissioner of agriculture and markets, 42 may issue such regulations as they deem necessary and proper for the 43 implementation of this subdivision. 44 e. Notwithstanding any other section of law, rule, regulation or stat- 45 ute, the department of agriculture and markets shall supply information 46 required by paragraph b of this subdivision to the office of general 47 services and to all other appropriate agencies. 48 f. (i) With each offer, the offerer shall certify that the food 49 products provided pursuant to that solicitation will be in conformity 50 with the provisions of the [percentage required to meet or exceed the] 51 requirements in the solicitation specifying that all [or some] of the 52 food products be grown, produced, or harvested within New York state or 53 that any processing of such food products take place in facilities 54 located within New York state. 55 (ii) Any successful offerer who fails to comply with the provisions of 56 this subdivision, at the discretion of such agency, board, office or S. 2468 3 1 commission, shall forfeit the right to bid on contracts let under the 2 provisions of this subdivision for a period of time to be determined by 3 the commissioner and the commissioner of agriculture and markets. 4 g. The commissioner and the commissioner of agriculture and markets, 5 shall advise and assist the chancellor of the state university of New 6 York in [extending the benefits] THE IMPLEMENTATION of the provisions of 7 this subdivision [to] BY the STATE university [and shall modify any 8 regulations or procedures heretofore established pursuant to this subdi- 9 vision, in order to facilitate such participation] OF NEW YORK. 10 S 3. The agriculture and markets law is amended by adding a new 11 section 5-a to read as follows: 12 S 5-A. REPORT ON PURCHASE OF NEW YORK FOOD PRODUCTS. ON OR BEFORE 13 MARCH FIRST EACH YEAR, THE COMMISSIONER SHALL REPORT TO THE GOVERNOR AND 14 THE LEGISLATURE ON THE IMPLEMENTATION OF THE PROVISIONS OF SUBDIVISION 15 FOUR OF SECTION ONE HUNDRED SIXTY-FIVE OF THE STATE FINANCE LAW. SUCH 16 REPORT SHALL INCLUDE THE LEVEL OF COMPLIANCE BY STATE AGENCIES WITH THE 17 PROVISIONS OF SUCH SUBDIVISION, THE AVAILABLE NEW YORK FOOD PRODUCTS AND 18 THE PRODUCERS AND/OR PROCESSORS THEREOF WHICH WERE PURCHASED AND RECOM- 19 MENDATIONS FOR THE IMPROVED IMPLEMENTATION OF SUCH SUBDIVISION. 20 S 4. This act shall take effect on the first of April next succeeding 21 the date on which it shall have become a law.