Bill S7323-2013

Authorizes commissioners and state agencies to develop alternative procurement methods not otherwise authorized by law under certain circumstances

Authorizes commissioners and state agencies to develop alternative procurement methods not otherwise authorized by law under certain circumstances.

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  • May 12, 2014: REFERRED TO INFRASTRUCTURE AND CAPITAL INVESTMENT

Memo

BILL NUMBER:S7323

TITLE OF BILL: An act to amend the state finance law, in relation to reports on centralized contracts and authorizing alternative procurement methods

PURPOSE: To improve contracting practices in the State of New York by authorizing alternative procurement methods

SUMMARY OF PROVISIONS: Section 1 of this bill amends Paragraph a of Subdivision 2 of Section 112 of the State Finance Law to require State Comptroller approval of OGS centralized contracts when such contracts are awarded using an alternative method of procurement pursuant to subdivision 15 of section 163 as added by section 2 of this bill

Section 2 of this bill adds a new Subdivision 15 to Section 163 of the State Finance Law to provide for alternative procurement methods if the Commissioner of General Services (Commissioner) or a state agency determines that it is in the best interest of the state to develop an alternative procurement method not authorized by Article 11 of the State Finance Law for goods, services or technology. The bill also authorizes the Commissioner or state agency to develop and use such method for a specific contract award. Additionally, the bill requires that such determination be made in writing and include documentation for the procurement record that such alternative procurement method would serve the interest of the state better than other methods currently available under section 163 of the State Finance Law, can be applied on a competitive, fair and equitable basis, and contains an appropriate evaluation methodology that considers both cost and qualitative evaluation factors.

The bill provides that the Commissioner or a state agency may not undertake an alternative procurement method until the State Comptroller has determined that the proposed alternative procurement method is in the best interest of the state, can be applied on a competitive, fair and equitable basis, and utilizes an appropriate evaluation methodology that considers both cost and qualitative evaluation factors.

The bill requires the Commissioner or agency to include in its solicitation document a detailed description of the proposed method of award. In advance of the initial receipt of offers, the Commissioner or state agency shall determine and document in the procurement record the evaluation criteria and process to be used in the determination of the specific contract award and the process by which the evaluation and selection shall be conducted. This bill provides that before any contract awarded under an alternative procurement which exceeds fifty thousand dollars in amount becomes effective it must be approved by the State Comptroller and filed in his or her office.

This bill requires that for each alternative procurement awarded, the Commissioner or state agency shall submit to the Governor, the State Comptroller and the heads of the fiscal committees of each house of the State Legislature no later than the mid- point of the initial term of the resultant contract a report assessing the validity of the alternative procurement method and comparing its results to standard procurement methods for goods, services or technology.

This bill requires the Commissioner to prepare a report on the savings achieved from all contracts established as a centralized contract through the Office of General Services pursuant to section 163 of the State Finance Law, the impact of such contracts on small, minority and women-owned business enterprises, and the effectiveness of such contracts in fulfilling the purchasing needs of all authorized users of such contracts. Such report shall be submitted by such Commissioner to the Governor, the State Comptroller, and the heads of the fiscal committees of each house of the state legislature no later than January 15, 2015, and thereafter annually on or before such date.

Section 2 of this bill provides for an immediate effective date.

PRIOR LEGISLATIVE HISTORY: New Bill.

JUSTIFICATION: When a State agency develops a procurement method that does not fit within the requirements of the Procurement Stewardship Act (the Act), the agency should be able to use such an alternative method for a specific contract award. The bill authorizes the State Comptroller to approve a contract awarded on the basis of an alternative procurement method as long as (i) the contracting agency makes a determination, documented in the procurement record, that such alternative procurement method better serves the interest of the State than other procurement methods available under the Act and can be applied on a fair and equitable basis; and (ii) the State Comptroller approves the alternative procurement method prior to the procurement. In order to effectively monitor the success or failure of the alternative procurement method the procuring State agency must file a report with the State Comptroller by the mid-term of the resulting contract. The State Comptroller will then review the report and make recommendations to the Governor and the Legislature concerning the possible continued use of the alternative procurement method.

The State Comptroller recommends enactment of this bill to improve contracting practices in the State.

BUDGET IMPLICATIONS: This bill has no significant fiscal impact.

EFFECTIVE DATE: This bill would take effect immediately.


Text

STATE OF NEW YORK ________________________________________________________________________ 7323 IN SENATE May 12, 2014 ___________
Introduced by Sen. MARCELLINO -- (at request of the State Comptroller) -- read twice and ordered printed, and when printed to be committed to the Committee on Infrastructure and Capital Investment AN ACT to amend the state finance law, in relation to reports on centralized contracts and authorizing alternative procurement methods THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. Paragraph (a) of subdivision 2 of section 112 of the state finance law, as amended by section 18 of part L of chapter 55 of the laws of 2012, is amended to read as follows: (a) Before any contract made for or by any state agency, department, board, officer, commission, or institution, except the office of general services, shall be executed or become effective, whenever such contract exceeds fifty thousand dollars in amount and before any contract made for or by the office of general services shall be executed or become effective, whenever such contract exceeds eighty-five thousand dollars in amount, it shall first be approved by the comptroller and filed in his or her office, with the exception of contracts established as a centralized contract through the office of general services [and purchase orders or other procurement transactions issued under such centralized contracts] THAT WERE NOT AWARDED AS THE RESULT OF AN ALTER- NATIVE PROCUREMENT. The comptroller shall make a final written determi- nation with respect to approval of such contract within ninety days of the submission of such contract to his or her office unless the comp- troller shall notify, in writing, the state agency, department, board, officer, commission, or institution, prior to the expiration of the ninety day period, and for good cause, of the need for an extension of not more than fifteen days, or a reasonable period of time agreed to by such state agency, department, board, officer, commission, or institu- tion and provided, further, that such written determination or extension shall be made part of the procurement record pursuant to paragraph f of subdivision one of section one hundred sixty-three of this chapter. S 2. Section 163 of the state finance law is amended by adding a new subdivision 15 to read as follows: 15. ALTERNATIVE PROCUREMENT METHODS. A. WHEN THE COMMISSIONER OR A STATE AGENCY DETERMINES THAT IT IS IN THE BEST INTEREST OF THE STATE TO DEVELOP AN ALTERNATIVE PROCUREMENT METHOD NOT AUTHORIZED BY THIS ARTICLE
FOR GOODS, SERVICES OR TECHNOLOGY, THE COMMISSIONER OR STATE AGENCY IS HEREBY AUTHORIZED TO DEVELOP AND USE SUCH METHOD FOR A SPECIFIC CONTRACT AWARD. SUCH DETERMINATION SHALL BE MADE IN WRITING AND SHALL INCLUDE DOCUMENTATION FOR THE PROCUREMENT RECORD THAT SUCH ALTERNATIVE PROCURE- MENT METHOD: (I) WOULD SERVE THE INTEREST OF THE STATE BETTER THAN OTHER METHODS CURRENTLY AVAILABLE UNDER THIS SECTION; (II) CAN BE APPLIED ON A COMPETITIVE, FAIR AND EQUITABLE BASIS; AND (III) CONTAINS AN APPROPRIATE EVALUATION METHODOLOGY THAT CONSIDERS BOTH COST AND QUALITATIVE EVALU- ATION FACTORS. SUCH ALTERNATIVE PROCUREMENT METHOD SHALL BE SUBJECT TO ALL OTHER APPLICABLE PROVISIONS OF THIS SECTION. THE COMMISSIONER OR A STATE AGENCY MAY NOT UNDERTAKE AN ALTERNATIVE PROCUREMENT METHOD UNTIL THE COMPTROLLER HAS DETERMINED THAT THE PROPOSED ALTERNATIVE PROCUREMENT METHOD IS IN THE BEST INTEREST OF THE STATE; CAN BE APPLIED ON A COMPET- ITIVE, FAIR AND EQUITABLE BASIS; AND UTILIZES AN APPROPRIATE EVALUATION METHODOLOGY THAT CONSIDERS BOTH COST AND QUALITATIVE EVALUATION FACTORS. B. WHEN USING AN ALTERNATIVE PROCUREMENT METHOD AUTHORIZED BY THIS SUBDIVISION, THE COMMISSIONER OR AGENCY SHALL INCLUDE IN ITS SOLICITA- TION DOCUMENT A DETAILED DESCRIPTION OF THE PROPOSED METHOD OF AWARD. IN ADVANCE OF THE INITIAL RECEIPT OF OFFERS, THE COMMISSIONER OR STATE AGENCY SHALL DETERMINE AND DOCUMENT IN THE PROCUREMENT RECORD THE EVALU- ATION CRITERIA AND PROCESS TO BE USED IN THE DETERMINATION OF THE SPECIFIC CONTRACT AWARD AND THE PROCESS BY WHICH THE EVALUATION AND SELECTION SHALL BE CONDUCTED. IN ADDITION TO THE REQUIREMENTS SET FORTH IN PARAGRAPH G OF SUBDIVISION NINE OF THIS SECTION, THE PROCUREMENT RECORD SHALL DOCUMENT THE BASIS UPON WHICH THE AGENCY HAS DETERMINED THAT POTENTIAL VENDORS WILL BE ABLE TO RESPOND WITH VIABLE BIDS TO SUCH ALTERNATIVE PROCUREMENT. C. NOTWITHSTANDING ANY PROVISION OF SUBDIVISION FIVE OF SECTION THREE HUNDRED FIFTY-FIVE TO THE CONTRARY OR SECTION SIXTY-TWO HUNDRED EIGHTEEN OF THE EDUCATION LAW, BEFORE ANY CONTRACT AWARDED UNDER AN ALTERNATIVE PROCUREMENT WHICH EXCEEDS FIFTY THOUSAND DOLLARS IN AMOUNT BECOMES EFFECTIVE IT MUST BE APPROVED BY THE COMPTROLLER AND FILED IN HIS OR HER OFFICE. D. FOR EACH ALTERNATIVE PROCUREMENT AWARDED, THE COMMISSIONER OR STATE AGENCY SHALL SUBMIT TO THE GOVERNOR, THE COMPTROLLER AND THE HEADS OF THE FISCAL COMMITTEES OF EACH HOUSE OF THE STATE LEGISLATURE NO LATER THAN THE MID-POINT OF THE INITIAL TERM OF THE RESULTANT CONTRACT A REPORT ASSESSING THE VALIDITY OF THE ALTERNATIVE PROCUREMENT METHOD AND COMPARING ITS RESULTS TO STANDARD PROCUREMENT METHODS FOR GOODS, SERVICES OR TECHNOLOGY. E. THE COMMISSIONER OF GENERAL SERVICES SHALL PREPARE A REPORT ON THE SAVINGS ACHIEVED FROM ALL CONTRACTS ESTABLISHED AS A CENTRALIZED CONTRACT THROUGH THE OFFICE OF GENERAL SERVICES PURSUANT TO THIS SECTION, THE IMPACT OF SUCH CONTRACTS ON SMALL, MINORITY AND WOMEN-OWNED BUSINESS ENTERPRISES, AND THE EFFECTIVENESS OF SUCH CONTRACTS IN FULFILLING THE PURCHASING NEEDS OF ALL AUTHORIZED USERS OF SUCH CONTRACTS. SUCH REPORT SHALL BE SUBMITTED BY SUCH COMMISSIONER TO THE GOVERNOR, THE STATE COMPTROLLER, AND THE HEADS OF THE FISCAL COMMITTEES OF EACH HOUSE OF THE STATE LEGISLATURE NO LATER THAN JANUARY FIFTEENTH, TWO THOUSAND FIFTEEN, AND THEREAFTER ANNUALLY ON OR BEFORE SUCH DATE. S 3. This act shall take effect immediately; provided, however, that the amendments to section 163 of the state finance law made by section two of this act shall not affect the repeal of such section and shall be deemed repealed therewith.

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