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OGS Procurement Services Group 2007 State Purchasing Forum

State Finance Law Aspects of the Procurement Lobbying Law

2007 Purchasing Forum – Aspects of the Procurement Lobbying Law

Lisa K. Fox

Legal Services

New York State Office of General Services

legalservicesweb@ogs.state.ny.us

(518) 474-5988

OGS Website:

www.ogs.state.ny.us

Overview

• The Procurement Lobbying Law obligates Governmental Entities and Offerers to undertake specific actions as part of the procurement process

• Sets forth specific requirements regarding communications during the procurement process

• Establishes specific contractual requirements

Imposes new consequences if Offerers have impermissible communications

• Non-responsibility determination

• No contract award

• Debarment for four year period

Prohibited from submitting proposals

Prohibited from receiving contract awards

How Can this Law Impact Your Business?

• Two separate sets of provisions

Legislative Law

State Finance Law §§139-j and 139-k • Requirements are different

• Requirements apply at different times to different communications

• Need to determine if both laws apply to your business

What is the Procurement Lobbying Law?

• Business community is only allowed to make “permissible Contacts”

• Two kinds of “permissible Contacts”

• 1st – Designated Contact – person or persons identified by Governmental Entity to receive “Contacts” on a transaction

• 2nd – Permissible Subject Matter Categories

Series of common stages in a procurement

New Statute May Require Change to Business Practices

Who is a Designated Contact?

• A person or persons identified by a Governmental Entity to receive “Contacts” on a transaction

• Generally identified in a writing provided to the business community

• Can receive all communications and Contacts on a procurement

Permissible Subject Matter Categories

#1 - submission of a written proposal from an Offerer

#2 - submission of written questions in accordance with a process sent out in the solicitation, that must include sending all responses to all Offerers

#3 - participation in a conference provided for in a solicitation

#4 - complaints by an Offerer that the Designated Contact has not been responsive filed in writing to Counsel’s Office

#5 - negotiation of a Procurement Contact after tentative award

#6 - review of a procurement contract award (debriefings)

#7 - protests, appeals or other review proceedings, such as judicial

proceedings or allegations of improper conduct. Category includes the ability of an Offerer to file a written protest, appeal or complaint to the state comptroller’s office during the process of contract approval

Net Result

• Business can always “Contact” the Designated Contact

• “Contacts” to Non-Procuring Governmental Entity are limited to SFL §139-j(3)(a)(1-7) (PSMC)

• If “Contact” made to someone else, it may be violation of statute and could result in debarment (“impermissible Contact”)

• “Contacts” to Non-Procuring Governmental Entity are limited to SFL §139-j(3)(a)(1-7)

Protests, appeals or complaints to OSC must

be written

A “contact” to a non-procuring governmental entity could result in debarment

• Applies to contracts over $15,000 annualized value with more than 400 different governmental entities

Applies to construction and professional services contracts

Applies to sole and single source contracts

• Limited transactions are exempt from these new requirements, such as grants and intergovernmental agreements

Contracts Subject to Requirements

• “Restricted Period” - Time period from advertisement or other request for a proposal until the contract receives all the required approvals, such as OSC approval

• This is the only time period where these formal requirements apply regarding who can be “Contacted” and the creation of a record

Applies to a specific transaction

New State Finance Law Requirements Apply During the Restricted Period

Example of State Agency Competitive Procurement

Definition of business need

Restricted Period(limits who can

receive Contacts)

Ad in Contract Reporter

Approval of

contractby OSC

• Not all communications are “Contacts”!

• Communications that are intended to influence the governmental procurement (Contacts)

• However, communications with Legislature are not governed by the State Finance Law (unless a legislative procurement)

New Requirements Apply to “Contacts”

• A Contact is an

oral, written or electronic communication

with a Governmental Entity

under circumstances where a reasonable person would infer

the communication was intended to influence the Governmental Procurement

• Treatment of a communication may be different under Legislative Law

What is a Contact?

• Offerer must provide written affirmation on understanding of and agreement to entity’s policy on permissible Contacts

Affirmation is element examined to determine if an impermissible Contact was knowing and willful

• Offerer must certify that information provided under State Finance Law §139-k is complete, true and accurate

Standardized Information Collection and Contract Provisions

• Offerer must disclose additional information about prior findings of non- responsibility

Expansion of the areas examined for vendor responsibility

• Offerer must agree to the inclusion of specific termination clause in contract

For the Business Community

• Understand the Government Entity’s policy on permissible Contacts and consider its impact on how conduct business

• Very significant consequences of impermissible Contacts – non-responsibility finding or debarment

OGS is obligated to maintain a listing of these determinations on the Internet

• Determine if there is a Restricted Period- Ask the right questions!

• Determine who is the Designated Contact for that procurement

• Follow the processes in the solicitation

• Direct communications and Contacts correctly

• Comply with requests for information

For the Business Community

• Understand the Governmental Entity’s policy on permissible Contacts before execute the affirmation

–Affirmation is a legal document that will be examined if there is an allegation of a possibly impermissible Contact

• Provide training to staff – especially on the Restricted Period and directing communications to the Designated Contacts

• Advisory Council on Procurement Lobbying has prepared guidance, model forms and language and other materials that are available at:

http://www.ogs.state.ny.us/aboutOgs/ regulations/defaultAdvisoryCouncil.html

• This web site and its materials can be used to educate staff and the business community regarding these legal requirements.

Where to Get More Information

Questions and Answers

Presenter’s Contact Information

Lisa K. Fox

Legal Services

New York State Office of General Services

legalservicesweb@ogs.state.ny.us

(518) 474-5988

OGS Website:

www.ogs.state.ny.us

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