Assembly Actions -
Lowercase Senate Actions - UPPERCASE |
|
---|---|
Dec 28, 2018 |
tabled vetoed memo.336 |
Dec 17, 2018 |
delivered to governor |
Jun 14, 2018 |
returned to assembly passed senate 3rd reading cal.1371 substituted for s6452 |
Jun 14, 2018 |
substituted by a8156 |
Jun 04, 2018 |
advanced to third reading |
May 31, 2018 |
2nd report cal. |
May 30, 2018 |
1st report cal.1371 |
Jan 03, 2018 |
referred to finance |
May 22, 2017 |
referred to finance |
Senate Bill S6452
Vetoed By Governor2017-2018 Legislative Session
Enacts various provisions relating to procurement procedures
download bill text pdfSponsored By
(R, C, IP) Senate District
Archive: Last Bill Status Via A8156 - Vetoed by Governor
- Introduced
-
- In Committee Assembly
- In Committee Senate
-
- On Floor Calendar Assembly
- On Floor Calendar Senate
-
- Passed Assembly
- Passed Senate
- Vetoed By Governor
- Signed By Governor
Actions
Votes
-
-
-
-
Floor Vote: Jun 14, 2018
aye (59)- Addabbo Jr.
- Akshar
- Alcantara
- Amedore
- Avella
- Bailey
- Benjamin
- Bonacic
- Boyle
- Breslin
- Brooks
- Carlucci
- Comrie
- DeFrancisco
- Dilan
- Felder
- Flanagan
- Funke
- Gallivan
- Gianaris
- Golden
- Griffo
- Hamilton
- Hannon
- Helming
- Hoylman-Sigal
- Jacobs
- Kaminsky
- Kavanagh
- Kennedy
- Klein
- Krueger
- Lanza
- Larkin
- Little
- Marcellino
- Marchione
- Mayer
- Montgomery
- Murphy
- O'Mara
- Ortt
- Parker
- Peralta
- Persaud
- Phillips
- Ranzenhofer
- Ritchie
- Rivera
- Robach
- Sanders Jr.
- Savino
- Serino
- Seward
- Stavisky
- Stewart-Cousins
- Tedisco
- Valesky
- Young
-
May 30, 2018 - Finance Committee Vote
S645236Aye0Nay1Aye with Reservations0Absent0Excused0Abstained-
-
Finance Committee Vote: May 30, 2018
aye (36)aye wr (1)
-
-
-
co-Sponsors
(D, WF) 28th Senate District
(D) 32nd Senate District
2017-S6452 (ACTIVE) - Details
2017-S6452 (ACTIVE) - Sponsor Memo
BILL NUMBER: S6452 Revised 5/22/17 TITLE OF BILL : An act to amend the state finance law and the legislative law, in relation to participation by state agencies in a system used by the comptroller to compile vendor responsibility information; in relation to defining information technology for procurement purposes; in relation to authorizing the commissioner of the office of general services and state agencies to develop alternative procurement methods not otherwise authorized by law under certain circumstances; in relation to authorizing competitive negotiation concluding with a best and final offer; in relation to clarifying the use of best and final offers for invitations for bids and requests for proposals for goods, services and technology; in relation to clarifying the use of contracts let by another governmental agency; in relation to clarifying the valuation of non-cash contracts by the state comptroller; and in relation to conforming the definition of restricted period PURPOSE : The purpose of this proposed legislation is to increase the transparency and flexibility of the procurement process. SUMMARY OF PROVISIONS : Section 1 of this proposal amends the State Finance Law by adding a
new Section 163-c requiring use by state agencies of a system maintained by the State Comptroller to compile vendor responsibility information. Section 2 of this proposal amends Subdivisions 7 and 10 of Section 160 of the State Finance Law in relation to defining information technology for procurement purposes. Section 3 of this proposal makes conforming changes to Paragraphs g and i of Subdivision 2 of Section 161 of the State Finance Law with respect to the definition of information technology. Section 4 of this proposal makes conforming changes to Paragraph k of Subdivision 1 and subdivision6 of Section 163 of the State Finance Law with respect to the definition of information technology. Section 5 of this proposal adds a new Subdivisions 16 to Section 163 of the State Finance Law. The new Subdivision 16 authorizes alternative procurement methods for the acquisition of non-construction related commodities and services, or information technology. Section 6 of this proposal adds a new Subdivisions 16 to Section 163 of the State Finance Law. The new Subdivision 17 authorizes competitive negotiation concluding with best and final offer. Section 7 of this proposal amends Subdivision 9 of Section 163 of the State Finance Law by adding a new Paragraph c-1 relating to best and final offer. Section 8 amends Paragraph e of Subdivision 10 of Section 163 of the State Finance Law relating to the use of piggybacking of contracts. Section 9 of this proposal amends Subdivision 3 of Section 112 of the State Finance Law provide that for contracts where consideration cannot be determined in terms of monetary value, it shall be valued in terms of intrinsic value. Section 10 amends Subdivision m of Section 1-c of the Legislative Law to conform to the definition of restricted period set forth in the State Finance Law. Section 11 provides for an immediate effective date and provides further that section 1 of the proposal shall take effect on the 180th day after it shall have become a law and finally, provides that the amendments to section 163 of the State Finance Law shall not affect the repeal of Section 163 and shall be deemed repealed therewith. PRIOR LEGISLATIVE HISTORY : 2016: S. 7893(DeFrancisco)/A.10688 (Peoples-Stokes) - Veto Memo 295 2015: S. 5713-B (DeFrancisco)/A.7513-C (Peoples-Stokes) - Veto Memo 303 JUSTIFICATION : Vendor Responsibility: To fully standardize the vendor responsibility review and streamline the contract process, and enable a 24-7, online access for vendors to update information easily as information changes. Pursuant to the State Comptroller's responsibility under Section 112 of the State Finance Law to review and approve State contracts, which may include a vendor responsibility review performed by the state agency and the State Comptroller, the State Comptroller finds that mandatory use of the on-line system for filing necessary vendor responsibility information will facilitate an efficient review of a vendor's responsibility thereby streamlining the procurement process for vendors and contracting agencies. Agencies not on the system require vendors to update in paper with every procurement. 59 agencies use the system now, with more than 11,600 vendors already in the system. Change references to "technology" in article 11 to "information technology": To clarify the definition of technology, to ensure the definition meets current practice, and ensure future developments in information technology are anticipated. This amendment would also clarify that incidental technology content is not intended to drive a major procurement that is not directly information technology related. Alternative Procurements: 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 if certain conditions are met. 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 Governor, State Comptroller and heads of the Legislative Fiscal Committees by the mid-term of the resulting contract concerning the benefits of the alternative method and comparing results to other procurement methods Competitive Negotiation with Best and Final Offer: This amendment expands available procurement options to include competitive negotiation with multiple vendors to obtain the best result for taxpayers. The State Comptroller anticipates this change would be useful in highly complex procurements where approaches to meeting the requirements are not pre-defined, to encourage innovative solutions amidst changing industry capabilities, or where there may be opportunities for the State to mitigate risk or expense through non-material tradeoffs. Where the basis of award is best value and after completing an initial evaluation and scoring, a state agency may choose to make an award at that time based on best value. Or, if the agency believes a better price or outcome can be achieved, competitive negotiations can be conducted with vendors that fall in a competitive range and could potentially be selected based on the final outcome. Clarifying use of Best and Final Offer: There is a lack of clarity among agencies as to when Best and Final Offers can be utilized to achieve best value for the State; this is intended to help clarify the requirements for use of best and final offers. Clarifying Use of "Piggyback" Contracts: This amendment is intended to ensure that agencies using the contracts of other entities (local, state, or federal) comply with the intent of the original contract as well as the mechanism for vendor selection in the case of contracts with multiple award options. Clarify Valuation of Non-Cash Contracts: This amendment clarifies that for contracts with little or no cash actual cash consideration, the intrinsic value of the contract will be used to determine the threshold. Conform the Definition of Restricted Period: This technical amendment conforms the definition of restricted period in the Legislative Law to the definition of restricted period set forth in Section 139-j of the State Finance Law as recently amended by Part F of Chapter 57 of the laws of 2016. The State Comptroller urges the passage of this proposed legislation. FISCAL IMPLICATIONS FOR STATE : None. However, these proposals will help streamline procurements resulting in more effective and efficient procurements at reduced costs and will facilitate the use of new methods that will result in more effective and efficient procurements at reduced costs and provides additional transparency to the procurement process. EFFECTIVE DATE : Provides for an immediate effective date, provides that certain provisions take effect on the 180th day and states that certain provisions shall only apply to any procurement initiated on or after such date; and further provides that the amendments to Section 163 of the state finance law shall not affect the repeal of such Section and shall be deemed repealed therewith. The State Comptroller urges the passage of this proposed legislation.
2017-S6452 (ACTIVE) - Bill Text download pdf
S T A T E O F N E W Y O R K ________________________________________________________________________ 6452 2017-2018 Regular Sessions I N S E N A T E May 22, 2017 ___________ Introduced by Sen. DeFRANCISCO -- (at request of the State Comptroller) -- 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 legislative law, in relation to participation by state agencies in a system used by the comptroller to compile vendor responsibility information; in relation to defining information technology for procurement purposes; in relation to authorizing the commissioner of the office of general services and state agencies to develop alternative procurement methods not otherwise authorized by law under certain circumstances; in relation to authorizing competitive negotiation concluding with a best and final offer; in relation to clarifying the use of best and final offers for invitations for bids and requests for proposals for goods, services and technology; in relation to clarifying the use of contracts let by another governmental agency; in relation to clarify- ing the valuation of non-cash contracts by the state comptroller; and in relation to conforming the definition of restricted period THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: 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. DEFI- NITIONS. 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
S. 6452 2 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 DEPART- MENTS, 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 SUBCON- TRACT 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 RESPONSIBIL- ITY 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 SUBCONTRAC- TOR WHERE, PURSUANT TO LAW OR BY DIRECTION OF THE STATE AGENCY, DISCLO- SURE 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 ENROLL- MENT. 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. S. 6452 3 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 AGEN- CY 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 AGEN- CY'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, INTER- CHANGE, TRANSMISSION, OR RECEPTION OF DATA INCLUDING, BUT NOT LIMITED TO, HARDWARE, SOFTWARE, FIRMWARE, PROGRAMS, SYSTEMS, NETWORKS, INFRAS- TRUCTURE, MEDIA, AND RELATED MATERIAL USED TO AUTOMATICALLY AND ELEC- TRONICALLY COLLECT, RECEIVE, ACCESS, TRANSMIT, DISPLAY, STORE, RECORD, RETRIEVE, ANALYZE, EVALUATE, PROCESS, CLASSIFY, MANIPULATE, MANAGE, ASSIMILATE, CONTROL, COMMUNICATE, EXCHANGE, CONVERT, CONVERGE, INTER- FACE, 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 elec- tronic 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 procure- ment of services and INFORMATION technology in accordance with the S. 6452 4 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 subdi- vision 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 asso- ciation, 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 commod- ities, services and INFORMATION technology pursuant to section twenty- eight 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 chil- dren 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 corpo- ration 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 Associ- ation 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 super- vision 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 S. 6452 5 certified pursuant to articles fifteen-A and seventeen-B of the execu- tive 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: 16. ALTERNATIVE PROCUREMENT METHODS FOR THE ACQUISITION OF NON-CON- STRUCTION RELATED COMMODITIES, SERVICES AND INFORMATION TECHNOLOGY. A. WHEN THE COMMISSIONER OR A STATE AGENCY DETERMINES THAT IT IS IN THE BEST INTEREST OF THE STATE TO DEVELOP A PROCUREMENT METHOD NOT AUTHOR- IZED BY THIS SECTION FOR NON-CONSTRUCTION RELATED COMMODITIES, SERVICES AND INFORMATION 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 DOCUMENTA- TION FOR THE PROCUREMENT RECORD THAT SUCH ALTERNATIVE PROCUREMENT METH- OD: (I) WOULD SERVE THE INTEREST OF THE STATE BETTER THAN OTHER METHODS CURRENTLY AVAILABLE UNDER THIS SECTION; (II) CAN BE APPLIED ON A COMPET- ITIVE, FAIR AND EQUITABLE BASIS; AND (III) CONTAINS AN APPROPRIATE EVAL- UATION METHODOLOGY THAT CONSIDERS BOTH COST AND QUALITATIVE EVALUATION 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 A DETAILED DESCRIPTION OF THE PROPOSED METHOD OF AWARD. IN ADVANCE OF THE INITIAL RECEIPT OF OFFERS OR BIDS, 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 THE PROVISIONS OF SUBDIVISION FIVE OF SECTION THREE HUNDRED FIFTY-FIVE OF THE EDUCATION LAW TO THE CONTRARY OR SECTION SIXTY-TWO HUNDRED EIGHTEEN OF THE EDUCATION LAW, BEFORE ANY CONTRACT AWARDED UNDER THIS SECTION 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 PROCUREMENT AWARDED PURSUANT TO THIS SECTION, THE COMMIS- SIONER OR STATE AGENCY SHALL SUBMIT TO THE GOVERNOR, THE COMPTROLLER AND THE HEADS OF THE FISCAL COMMITTEES OF EACH HOUSE OF THE STATE LEGISLA- TURE NO LATER THAN THE MID-POINT OF THE INITIAL TERM OF THE RESULTANT CONTRACT A REPORT ASSESSING THE VALIDITY OF THE PROCUREMENT METHOD AND COMPARING ITS RESULTS TO PROCUREMENT METHODS FOR COMMODITIES AND SERVICES OR INFORMATION TECHNOLOGY. § 6. Section 163 of the state finance law is amended by adding a new subdivision 17 to read as follows: S. 6452 6 17. COMPETITIVE NEGOTIATION. A. WHERE THE BASIS OF AWARD IS BEST VALUE AND AFTER COMPLETING AN INITIAL EVALUATION AND SCORING, A STATE AGENCY MAY CHOOSE TO EITHER MAKE AN AWARD TO THE BEST VALUE OFFERER PURSUANT TO SUBDIVISION FOUR OF THIS SECTION OR UNDERTAKE COMPETITIVE NEGOTIATIONS WITH ALL OFFERERS OF PROPOSALS SUSCEPTIBLE OF BEING SELECTED FOR CONTRACT AWARD, SO LONG AS THE AGENCY RESERVES THE RIGHT TO CONDUCT SUCH COMPETITIVE NEGOTIATIONS IN THE SOLICITATION. THE NEGOTIATIONS SHALL BE CONDUCTED AS PROVIDED IN PARAGRAPH D OF THIS SUBDIVISION. B. COMPETITIVE NEGOTIATION MAY ONLY BE USED WHERE: (I) AT LEAST TWO OFFERERS ARE DEEMED SUSCEPTIBLE OF BEING SELECTED FOR CONTRACT AWARD; (II) IN THE EVENT THAT THE SOLICITATION INCLUDES OPTIONAL COMPONENTS, THE SOLICITATION SHALL REQUIRE ALL OFFERERS TO PROVIDE A PROPOSAL FOR ALL OPTIONS OR OTHERWISE BE DEEMED NONRESPONSIVE; AND (III) THE AGENCY HAS DETERMINED THAT USE OF COMPETITIVE NEGOTIATION WILL MAXIMIZE THE AGENCY'S ABILITY TO OBTAIN BEST VALUE, BASED ON THE AGENCY'S NEED AND THE SPECIFICATIONS SET FORTH IN THE SOLICITATION. C. THE AGENCY MUST DOCUMENT IN THE PROCUREMENT RECORD AND IN ADVANCE OF THE INITIAL RECEIPT OF OFFERS: (I) THE METHODOLOGY, WHICH SHALL BE QUANTIFIABLE AND BASED ON A COMPARISON OF THE PROPOSALS' PRICE AND TECHNICAL MERIT, THAT WILL BE EMPLOYED TO ARRIVE AT A COMPETITIVE RANGE THAT WILL DETERMINE WHICH PROPOSALS ARE TO BE CONSIDERED SUSCEPTIBLE TO AWARD; AND (II) A FAIR AND IMPARTIAL NEGOTIATION PROCEDURE, FORMULATED WITH THE GOAL OF ENSURING SUSTAINED COMPETITION UNTIL AN AWARD IS RENDERED AND OBTAINING THE BEST VALUE FOR THE STATE. D. THE AGENCY SHALL CONDUCT WRITTEN OR ORAL NEGOTIATIONS WITH ALL RESPONSIBLE OFFERERS WHO SUBMIT PROPOSALS IN THE COMPETITIVE RANGE. IN THE COURSE OF SUCH NEGOTIATIONS, THE AGENCY SHALL: (I) ADVISE THE OFFERER OF WAYS IN WHICH ITS PROPOSAL MAY BE IMPROVED SO THAT THE OFFERER IS GIVEN AN OPPORTUNITY TO BETTER MEET THE AGENCY'S NEEDS; (II) CLARIFY ANY UNCERTAINTIES, AMBIGUITIES OR NON-MATERIAL DEVIATIONS IN THE PROPOSAL; (III) ADVISE THE OFFERER OF ANY TECHNICAL COMPONENTS IN ITS PROPOSAL THAT MAY NOT BE NECESSARY TO SATISFY THE AGENCY'S REQUIREMENTS AND REQUEST MODIFICATIONS AS APPROPRIATE; (IV) PROVIDE THE OFFERER A REASONABLE OPPORTUNITY TO SUBMIT ANY COST, TECHNICAL OR OTHER REVISIONS TO ITS PROPOSAL IN RESPONSE TO ISSUES IDEN- TIFIED DURING NEGOTIATIONS; AND (V) DOCUMENT ANY ORAL NEGOTIATIONS FOR THE PROCUREMENT RECORD. E. NEGOTIATIONS MAY BE TAILORED TO EACH OFFERER'S PROPOSAL PROVIDED, HOWEVER, SUCH NEGOTIATIONS SHALL BE CONDUCTED WITH EACH OFFERER WITHIN THE COMPETITIVE RANGE WITHOUT DISCLOSING INFORMATION CONCERNING ANY OTHER OFFERERS' PROPOSALS OR THE EVALUATION PROCESS. NEGOTIATIONS SHALL CULMINATE IN A TECHNICAL SOLUTION FROM EACH OFFERER REMAINING WITHIN THE COMPETITIVE RANGE THAT IS DEEMED ACCEPTABLE TO MEET THE AGENCY'S NEED AS SET FORTH IN THE SOLICITATION. AFTER DISCUSSION OF THESE TECHNICAL SOLUTIONS IS COMPLETED, THE AGENCY SHALL SOLICIT A BEST AND FINAL PRICE PROPOSAL FROM ALL OFFERERS WITHIN THE COMPETITIVE RANGE. THE BEST AND FINAL PRICE SOLICITATION SHALL ENSURE THAT ALL OFFERERS ARE AFFORDED AN EQUAL OPPORTUNITY TO RESPOND WITHIN A SPECIFIED PERIOD OF TIME. F. WHERE AN AGENCY CHOOSES TO UNDERTAKE COMPETITIVE NEGOTIATIONS INSTEAD OF MAKING A BEST VALUE AWARD AFTER AN INITIAL EVALUATION AND SCORING, THE FINAL AWARD SHALL BE MADE TO THE LOWEST RESPONSIBLE OFFERER AFTER RECEIVING A BEST AND FINAL PRICE ON A REVISED ACCEPTABLE PROPOSAL. S. 6452 7 § 7. Subdivision 9 of section 163 of the state finance law is amended by adding a new paragraph c-1 to read as follows: C-1. WHERE A STATE AGENCY DETERMINES THAT NON-MATERIAL CHANGES TO THE SPECIFICATIONS AS SET FORTH IN THE SOLICITATION WOULD BE IN THE BEST INTEREST OF THE STATE AND, WHEN PROVIDED FOR IN THE SOLICITATION, STATE AGENCIES MAY REQUEST BEST AND FINAL OFFERS, WHICH SHALL BE IN WRITING AND SOLICITED IN THE SAME MANNER FROM ALL OFFERERS DETERMINED TO BE SUSCEPTIBLE OF BEING SELECTED FOR CONTRACT AWARD, WITH THE INTENT OF ALLOWING AN OFFERER TO REVISE ITS COST; PROVIDED, HOWEVER, THAT A STATE AGENCY MAY NOT MAKE A MODIFICATION TO THE SOLICITATION IF SUCH MODIFICA- TION WOULD PREJUDICE ANY BIDDER OR POTENTIAL BIDDER AND, PROVIDED FURTHER, THAT NO BEST AND FINAL OFFER MAY BE ACCEPTED OR CONSIDERED BY A STATE AGENCY UNLESS SUCH BEST AND FINAL OFFER IS SUBMITTED IN RESPONSE TO A REQUEST BY THE STATE AGENCY. § 8. Paragraph e of subdivision 10 of section 163 of the state finance law, as amended by chapter 137 of the laws of 2008, is amended to read as follows: e. The commissioner may authorize purchases required by state agencies or other authorized purchasers by letting a contract pursuant to a writ- ten agreement, or by approving the use of a contract let by any depart- ment, agency or instrumentality of the United States government and/or any department, agency, office, political subdivision or instrumentality of any state or states. A state agency purchaser shall document in the procurement record its rationale for the use of a contract let by any department, agency or instrumentality of the United States government or any department, agency, office, political subdivision or instrumentality of any other state or states. Such rationale shall include, but need not be limited to, a determination of need, a consideration of the procure- ment method by which the contract was awarded, an analysis of alterna- tive procurement sources including an explanation why a competitive procurement or the use of a centralized contract let by the commissioner is not in the best interest of the state, and the reasonableness of cost. THE AUTHORITY TO USE A CONTRACT LET BY ANOTHER GOVERNMENTAL ENTITY PURSUANT TO THIS PARAGRAPH IS INTENDED TO BENEFIT THE STATE BY USING CONTRACTS IN PLACE THAT PROVIDE FOR THE SAME SERVICE OR COMMODITY SOUGHT BY A STATE AGENCY AT A PRICE DETERMINED TO BE REASONABLE BY THE STATE AGENCY. SUCH CONTRACTS ARE NOT INTENDED TO BE USED PRIMARILY TO AVOID COMPETITIVE BIDDING. USE OF MULTIPLE AWARD CONTRACTS PURSUANT TO THIS PARAGRAPH SHALL FOLLOW THE SAME BASIS OF SELECTION AMONG THE MULTIPLE AWARDEES AS WAS PRESCRIBED BY THE ORIGINAL CONTRACTING GOVERNMENTAL ENTITY. § 9. Subdivision 3 of section 112 of the state finance law, as amended by section 2-c of part F of chapter 57 of the laws of 2016, is amended to read as follows: 3. A contract or other instrument wherein the state or any of its officers, agencies, boards or commissions agrees to give a consideration other than the payment of money, when the value or reasonably estimated value of such consideration exceeds twenty-five thousand dollars, shall not become a valid enforceable contract unless such contract or other instrument shall first be approved by the comptroller and filed in his office. FOR PURPOSES OF THIS SUBDIVISION, WHERE CONSIDERATION CANNOT BE DETERMINED IN TERMS OF MONETARY VALUE, IT SHALL BE VALUED IN TERMS OF INTRINSIC VALUE. § 10. Subdivision (m) of section 1-c of the legislative law, as added by chapter 1 of the laws of 2005, is amended to read as follows: S. 6452 8 (m) The term "restricted period" shall mean the period of time commencing with the earliest POSTING, ON A GOVERNMENTAL ENTITY'S WEBSITE, IN A NEWSPAPER OF GENERAL CIRCULATION, OR IN THE PROCUREMENT OPPORTUNITIES NEWSLETTER IN ACCORDANCE WITH ARTICLE FOUR-C OF THE ECONOMIC DEVELOPMENT LAW OF written notice, advertisement or solicita- tion of a request for proposal, invitation for bids, or solicitation of proposals, or any other method PROVIDED FOR BY LAW OR REGULATION for soliciting a response from offerers intending to result in a procurement contract with a [state agency, either house of the state legislature, the unified court system, or a municipal agency, as that term is defined by paragraph (ii) of subdivision (s) of this section, and ending with the final contract award and approval by the state agency, either house of the state legislature, the unified court system, or a municipal agen- cy, as that term is defined by paragraph (ii) of subdivision (s) of this section,] GOVERNMENTAL ENTITY AND ENDING WITH THE FINAL CONTRACT AWARD AND APPROVAL BY THE GOVERNMENTAL ENTITY and, where applicable, the state comptroller. FOR THE PURPOSES OF THIS SUBDIVISION, "GOVERNMENTAL ENTITY" SHALL HAVE THE SAME MEANING AS PARAGRAPH A OF SUBDIVISION ONE OF SECTION ONE HUNDRED THIRTY-NINE-J OF THE STATE FINANCE LAW. § 11. This act shall take effect immediately; provided, however, section one of this act shall take effect on the one hundred eightieth day after it shall have become a law; provided, further, however, that the provisions of sections four, five, six, seven, eight and nine of this act shall apply to any procurement initiated on or after such date; provided, further however, that the amendments to section 163 of the state finance law made by sections four, five, six, seven and eight of this act shall not affect the repeal of such section as provided in subdivision 5 of section 362 of chapter 83 of the laws of 1995, as amended, and shall be deemed repealed therewith.
Comments
Open Legislation is a forum for New York State legislation. All comments are subject to review and community moderation is encouraged.
Comments deemed off-topic, commercial, campaign-related, self-promotional; or that contain profanity, hate or toxic speech; or that link to sites outside of the nysenate.gov domain are not permitted, and will not be published. Attempts to intimidate and silence contributors or deliberately deceive the public, including excessive or extraneous posting/posts, or coordinated activity, are prohibited and may result in the temporary or permanent banning of the user. Comment moderation is generally performed Monday through Friday. By contributing or voting you agree to the Terms of Participation and verify you are over 13.
Create an account. An account allows you to sign petitions with a single click, officially support or oppose key legislation, and follow issues, committees, and bills that matter to you. When you create an account, you agree to this platform's terms of participation.