Bill Text: NY S06955 | 2023-2024 | General Assembly | Amended
Bill Title: Provides that certain purchase contracts to purchase food can be awarded to a qualified bidder who fulfills certain values based procurement standards when such bid is not more than 10% higher than the lowest responsible bidder and when the bidder makes publicly available data on where such bidder sources their food items; sets forth the criteria for values based procurement standards to include local economies, environmental sustainability, racial equity, valued workforce, animal welfare, and nutrition.
Spectrum: Moderate Partisan Bill (Democrat 11-3)
Status: (Engrossed) 2024-06-06 - returned to senate [S06955 Detail]
Download: New_York-2023-S06955-Amended.html
STATE OF NEW YORK ________________________________________________________________________ 6955--A 2023-2024 Regular Sessions IN SENATE May 16, 2023 ___________ Introduced by Sens. HINCHEY, BAILEY, COONEY, HARCKHAM, HOYLMAN-SIGAL, KRUEGER, MARTINS, MAY, PALUMBO, PARKER, ROLISON, RYAN, WEBB -- read twice and ordered printed, and when printed to be committed to the Committee on Procurement and Contracts -- recommitted to the Committee on Procurement and Contracts in accordance with Senate Rule 6, sec. 8 -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said committee AN ACT to amend the general municipal law, in relation to the awarding of certain purchase contracts to purchase food The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. Subdivision 1 of section 103 of the general municipal law, 2 as amended by chapter 668 of the laws of 2023, is amended to read as 3 follows: 4 1. (a) Except as otherwise expressly provided by an act of the legis- 5 lature or by a local law adopted prior to September first, nineteen 6 hundred fifty-three, all contracts for public work involving an expendi- 7 ture of more than thirty-five thousand dollars and all purchase 8 contracts involving an expenditure of more than twenty thousand dollars, 9 shall be awarded by the appropriate officer, board or agency of a poli- 10 tical subdivision or of any district therein including but not limited 11 to a soil conservation district to the lowest responsible bidder 12 furnishing the required security after advertisement for sealed bids in 13 the manner provided by this section[,]; provided, however, that purchase 14 contracts (including contracts for service work, but excluding any 15 purchase contracts necessary for the completion of a public works 16 contract pursuant to article eight of the labor law) may be awarded on 17 the basis of best value, as defined in section one hundred sixty-three 18 of the state finance law, to a responsive and responsible bidder or 19 offerer in the manner provided by this section except that in a poli- 20 tical subdivision other than a city with a population of one million EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD05665-11-4S. 6955--A 2 1 inhabitants or more or any district, board or agency with jurisdiction 2 exclusively therein the use of best value for awarding a purchase 3 contract or purchase contracts must be authorized by local law or, in 4 the case of a district corporation, school district or board of cooper- 5 ative educational services, by rule, regulation or resolution adopted at 6 a public meeting; and provided, further, that food purchase contracts 7 (including contracts for food service work, but excluding any purchase 8 contract necessary for the completion of a public works contract pursu- 9 ant to article eight of the labor law) may be awarded to an otherwise 10 qualified bidder who fulfills one or more of the values based procure- 11 ment standards pursuant to paragraph (c) of this subdivision and may be 12 given preference over other bidders, provided, however, that the cost 13 included in the bid is not more than ten percent greater than the cost 14 included in a bid by the lowest responsible bidder. Provided further 15 that pursuant to paragraph (b) of this subdivision, all bidders on food 16 purchase contracts shall provide relevant supply chain data in its bid 17 to the appropriate officer, board or agency. The appropriate officer, 18 board or agency shall make such data publicly available on the entities' 19 respective websites, excepting data not subject to disclosure pursuant 20 to article six of the public officers law. In any case where a respon- 21 sible bidder's or responsible offerer's gross price is reducible by an 22 allowance for the value of used machinery, equipment, apparatus or tools 23 to be traded in by a political subdivision, the gross price shall be 24 reduced by the amount of such allowance, for the purpose of determining 25 the best value. In cases where two or more responsible bidders furnish- 26 ing the required security submit identical bids as to price, such offi- 27 cer, board or agency may award the contract to any of such bidders. Such 28 officer, board or agency may, in [his or her or its] their discretion, 29 reject all bids or offers and readvertise for new bids or offers in the 30 manner provided by this section. In determining whether a purchase is an 31 expenditure within the discretionary threshold amounts established by 32 this subdivision, the officer, board or agency of a political subdivi- 33 sion or of any district therein shall consider the reasonably expected 34 aggregate amount of all purchases of the same commodities, services or 35 technology to be made within the twelve-month period commencing on the 36 date of purchase. Purchases of commodities, services or technology 37 shall not be artificially divided for the purpose of satisfying the 38 discretionary buying thresholds established by this subdivision. A 39 change to or a renewal of a discretionary purchase shall not be permit- 40 ted if the change or renewal would bring the reasonably expected aggre- 41 gate amount of all purchases of the same commodities, services or tech- 42 nology from the same provider within the twelve-month period commencing 43 on the date of the first purchase to an amount greater than the discre- 44 tionary buying threshold amount. For purposes of this section, "sealed 45 bids" and "sealed offers", as that term applies to purchase contracts, 46 (including contracts for service work, but excluding any purchase 47 contracts necessary for the completion of a public works contract pursu- 48 ant to article eight of the labor law) shall include bids and offers 49 submitted in an electronic format including submission of the statement 50 of non-collusion required by section one hundred three-d of this arti- 51 cle, provided that the governing board of the political subdivision or 52 district, by resolution, has authorized the receipt of bids and offers 53 in such format. Submission in electronic format may, for technology 54 contracts only, be required as the sole method for the submission of 55 bids and offers. Provided however, the appropriate officer, board or 56 agency of a city with a population of one million inhabitants or more,S. 6955--A 3 1 or any district, board or agency with jurisdiction exclusively within 2 such city, may authorize or require bids and offers for any contract to 3 be submitted in an electronic format. Bids and offers submitted in an 4 electronic format shall be transmitted by bidders and offerers to the 5 receiving device designated by the political subdivision or district. 6 Any method used to receive electronic bids and offers shall comply with 7 article three of the state technology law, and any rules and regulations 8 promulgated and guidelines developed thereunder and, at a minimum, must 9 [(a)] (i) document the time and date of receipt of each bid and offer 10 received electronically; [(b)] (ii) authenticate the identity of the 11 sender; [(c)] (iii) ensure the security of the information transmitted; 12 and [(d)] (iv) ensure the confidentiality of the bid or offer until the 13 time and date established for the opening of bids or offers. The timely 14 submission of an electronic bid or offer in compliance with instructions 15 provided for such submission in the advertisement for bids or offers 16 and/or the specifications shall be the responsibility solely of each 17 bidder or offerer or prospective bidder or offerer. No political subdi- 18 vision or district therein shall incur any liability from delays of or 19 interruptions in the receiving device designated for the submission and 20 receipt of electronic bids and offers. 21 (b) (i) All supplier data, including supplier data from subcontrac- 22 tors, shall be submitted to the entity issuing the request for proposals 23 at the time of bid, to the best of the bidder's ability, and updated at 24 point of contract execution. Such data shall also be updated annually 25 and upon any changes to supplier information. Such data required pursu- 26 ant to this paragraph shall include the name and address of each suppli- 27 er, distributor, processor, and producer involved in the provision of 28 the products that the bidder will supply. 29 (ii) The provisions of this paragraph shall apply to all bidders' food 30 purchase contracts and bid proposals. 31 (c) For the purposes of this subdivision, "values based procurement 32 standards" shall mean procurement criteria that is based on: 33 (i) local economies. Preference shall be given to New York state or 34 regional suppliers that are sourcing food products in which fifty-one 35 percent or more of the raw agricultural materials have been grown, 36 harvested, processed and manufactured with within the state or region 37 (within one hundred miles for produce and two hundred miles for animal 38 products); and 39 (ii) environmental sustainability. Preference shall be given to 40 producers that adopt practices that contribute to improved soil health 41 and increased carbon sequestration and storage, and that achieve net 42 short-term and long-term greenhouse gas benefits. Such practices shall: 43 (A) achieve the reduction or elimination of synthetic pesticides and 44 fertilizers through the use of precision agriculture, integrated pest 45 management, and/or advanced nutrient management; 46 (B) avoid the use of hormones or antibiotics except for treatment of a 47 sick animal or for disease control, where disease control is defined as 48 use where it can be shown that a particular disease or infection is 49 present on the premises where the animal is kept; 50 (C) preserve and rebuild soil quality through use of soil health prac- 51 tices, including but not limited to planting cover crops, adopting 52 no-till and reduced tillage, increasing crop rotations and intercrop- 53 ping, and planting perennial crops, to improve the function and resili- 54 ence of soils; 55 (D) protect and enhance wildlife habitats and biodiversity;S. 6955--A 4 1 (E) avoid contributing to water quality impairment and deterioration 2 of local air quality; 3 (F) reduce greenhouse gas emissions attributable to livestock through 4 use of feed management, prescribed grazing, amendments for treatment of 5 agricultural waste, and manure management; and 6 (G) reduce on-farm energy and water consumption, food waste and green- 7 house gas emissions; or 8 (iii) racial equity. Preference shall be given to minority and women- 9 owned business enterprises, as defined by article fifteen-A of the exec- 10 utive law, or socially disadvantaged farms. For the purposes of this 11 subparagraph, "socially disadvantaged" shall mean individuals who have 12 been subject to discrimination by virtue of their membership of a 13 particular group which may include, but is not limited to, Black or 14 African American, American Indian or Alaska Native, Hispanic or Latino, 15 and Asian or Pacific Islander; or 16 (iv) valued workforce. Preference shall be given to suppliers who 17 respect and protect workers' rights, regardless of immigration status, 18 to organize a union, to affiliate with worker centers and alternative 19 forms of worker representation and to bargain collectively free from 20 retaliation and interference; as evidenced by agreeing to enter into a 21 labor peace agreement with a bona fide labor union; having worker-led 22 workplace health and safety committees; or being a worker-owned cooper- 23 ative; or 24 (v) valued agricultural sector. Preference shall be given to suppliers 25 who pay farmers a fair price, using United States department of agricul- 26 ture pricing standards, for the products they supply that covers their 27 actual cost of production; and to suppliers who pay fair remuneration to 28 farmers for their management and labor; or 29 (vi) animal welfare. Preference shall be given to producers who 30 provide more humane care for farmed animals by providing enough space 31 and environmental enrichments to allow animals to carry out their 32 natural behaviors, using pain control as needed when carrying out phys- 33 ical alterations, utilizing responsible, therapeutic antibiotic use, and 34 requiring humane handling and slaughter, as demonstrated by enrollment 35 in an independent United States department of agriculture recognized 36 animal welfare certification program with regular, third-party on-farm 37 audits assessing a producer's compliance with one hundred percent of the 38 program's welfare standards; or 39 (vii) nutrition. Preference shall be given to foods that promote 40 health and well being, comprised of namely whole grains, fresh and mini- 41 mally-processed fruits and vegetables, essential fats (including nuts, 42 seeds and fish), and whole plant-based and lean proteins so as to 43 decrease sodium, added sugars, artificial additives, and saturated, 44 hydrogenated, and trans fats. 45 § 2. Subdivision 1 of section 103 of the general municipal law, as 46 amended by section 2 of chapter 2 of the laws of 2012, is amended to 47 read as follows: 48 1. (a) Except as otherwise expressly provided by an act of the legis- 49 lature or by a local law adopted prior to September first, nineteen 50 hundred fifty-three, all contracts for public work involving an expendi- 51 ture of more than thirty-five thousand dollars and all purchase 52 contracts involving an expenditure of more than twenty thousand dollars, 53 shall be awarded by the appropriate officer, board or agency of a poli- 54 tical subdivision or of any district therein including but not limited 55 to a soil conservation district to the lowest responsible bidder 56 furnishing the required security after advertisement for sealed bids inS. 6955--A 5 1 the manner provided by this section[,]; provided, however, that purchase 2 contracts (including contracts for service work, but excluding any 3 purchase contracts necessary for the completion of a public works 4 contract pursuant to article eight of the labor law) may be awarded on 5 the basis of best value, as defined in section one hundred sixty-three 6 of the state finance law, to a responsive and responsible bidder or 7 offerer in the manner provided by this section except that in a poli- 8 tical subdivision other than a city with a population of one million 9 inhabitants or more or any district, board or agency with jurisdiction 10 exclusively therein the use of best value of awarding a purchase 11 contract or purchase contracts must be authorized by local law or, in 12 the case of a district corporation, school district or board of cooper- 13 ative educational services, by rule, regulation or resolution adopted at 14 a public meeting; and provided, further, that food purchase contracts 15 (including contracts for service work, but excluding any purchase 16 contract necessary for the completion of a public works contract pursu- 17 ant to article eight of the labor law) may be awarded to an otherwise 18 qualified bidder who fulfills one or more of the values based procure- 19 ment standards pursuant to paragraph (c) of this subdivision and may be 20 given preference over other bidders, provided, however, that the cost 21 included in the bid is not more than ten percent greater than the cost 22 included in a bid by the lowest responsible bidder. Provided further 23 that pursuant to paragraph (b) of this subdivision, all bidders shall 24 provide relevant supply chain data in its bid to the appropriate offi- 25 cer, board or agency. The appropriate officer, board or agency shall 26 make such data publicly available on the entities' respective websites, 27 excepting data not subject to disclosure pursuant to article six of the 28 public officers law. In determining whether a purchase is an expendi- 29 ture within the discretionary threshold amounts established by this 30 subdivision, the officer, board or agency of a political subdivision or 31 of any district therein shall consider the reasonably expected aggregate 32 amount of all purchases of the same commodities, services or technology 33 to be made within the twelve-month period commencing on the date of 34 purchase. Purchases of commodities, services or technology shall not be 35 artificially divided for the purpose of satisfying the discretionary 36 buying thresholds established by this subdivision. A change to or a 37 renewal of a discretionary purchase shall not be permitted if the change 38 or renewal would bring the reasonably expected aggregate amount of all 39 purchases of the same commodities, services or technology from the same 40 provider within the twelve-month period commencing on the date of the 41 first purchase to an amount greater than the discretionary buying thres- 42 hold amount. In any case where a responsible bidder's or responsible 43 offerer's gross price is reducible by an allowance for the value of used 44 machinery, equipment, apparatus or tools to be traded in by a political 45 subdivision, the gross price shall be reduced by the amount of such 46 allowance, for the purpose of determining the low bid or best value. In 47 cases where two or more responsible bidders furnishing the required 48 security submit identical bids as to price, such officer, board or agen- 49 cy may award the contract to any of such bidders. Such officer, board or 50 agency may, in [his, her or its] their discretion, reject all bids or 51 offers and readvertise for new bids or offers in the manner provided by 52 this section. 53 (b) (i) All supplier data, including supplier data from subcontrac- 54 tors, shall be submitted to the entity issuing the request for proposals 55 at the time of bid, to the best of the bidder's ability, and updated at 56 point of contract execution. Such data shall also be updated annuallyS. 6955--A 6 1 and upon any changes to supplier information. Such data required pursu- 2 ant to this paragraph shall include the name and address of each suppli- 3 er, distributor, processor, and producer involved in the provision of 4 the products that the bidder will supply. 5 (ii) The provisions of this paragraph shall apply to all bidders' food 6 purchase contracts and bid proposals. 7 (c) For the purposes of this subdivision, "values based procurement 8 standards" shall mean procurement criteria that is based on: 9 (i) local economies. Preference shall be given to New York state or 10 regional suppliers that are sourcing food products in which fifty-one 11 percent or more of the raw agricultural materials have been grown, 12 harvested, processed and manufactured with within the state or region 13 (within one hundred miles for produce and two hundred miles for animal 14 products); and 15 (ii) environmental sustainability. Preference shall be given to 16 producers that adopt practices that contribute to improved soil health 17 and increased carbon sequestration and storage, and that achieve net 18 short-term and long-term greenhouse gas benefits. Such practices shall: 19 (A) achieve the reduction or elimination of synthetic pesticides and 20 fertilizers through the use of precision agriculture, integrated pest 21 management, and/or advanced nutrient management; 22 (B) avoid the use of hormones or antibiotics except for treatment of a 23 sick animal or for disease control, where disease control is defined as 24 use where it can be shown that a particular disease or infection is 25 present on the premises where the animal is kept; 26 (C) preserve and rebuild soil quality through use of soil health prac- 27 tices, including but not limited to planting cover crops, adopting 28 no-till and reduced tillage, increasing crop rotations and intercrop- 29 ping, and planting perennial crops, to improve the function and resili- 30 ence of soils; 31 (D) protect and enhance wildlife habitats and biodiversity; 32 (E) avoid contributing to water quality impairment and deterioration 33 of local air quality; 34 (F) reduce greenhouse gas emissions attributable to livestock through 35 use of feed management, prescribed grazing, amendments for treatment of 36 agricultural waste, and manure management; and 37 (G) reduce on-farm energy and water consumption, food waste and green- 38 house gas emissions; or 39 (iii) racial equity. Preference shall be given to minority and women- 40 owned business enterprises, as defined by article fifteen-A of the exec- 41 utive law, or socially disadvantaged farms. For the purposes of this 42 subparagraph, "socially disadvantaged" shall mean individuals who have 43 been subject to discrimination by virtue of their membership of a 44 particular group which may include, but is not limited to, Black or 45 African American, American Indian or Alaska Native, Hispanic or Latino, 46 and Asian or Pacific Islander; or 47 (iv) valued workforce. Preference shall be given to suppliers who 48 respect and protect workers' rights, regardless of immigration status, 49 to organize a union, to affiliate with worker centers and alternative 50 forms of worker representation and to bargain collectively free from 51 retaliation and interference; as evidenced by agreeing to enter into a 52 labor peace agreement with a bona fide labor union; having worker-led 53 workplace health and safety committees; or being a worker-owned cooper- 54 ative; or 55 (v) valued agricultural sector. Preference shall be given to suppliers 56 who pay farmers a fair price, using United States department of agricul-S. 6955--A 7 1 ture pricing standards, for the products they supply that covers their 2 actual cost of production; and to suppliers who pay fair remuneration to 3 farmers for their management and labor; or 4 (vi) animal welfare. Preference shall be given to producers who 5 provide more humane care for farmed animals by providing enough space 6 and environmental enrichments to allow animals to carry out their 7 natural behaviors, using pain control as needed when carrying out phys- 8 ical alterations, utilizing responsible, therapeutic antibiotic use, and 9 requiring humane handling and slaughter, as demonstrated by enrollment 10 in an independent United States department of agriculture recognized 11 animal welfare certification program with regular, third-party on-farm 12 audits assessing a producer's compliance with one hundred percent of the 13 program's welfare standards; or 14 (vii) nutrition. Preference shall be given to foods that promote 15 health and well being, comprised of namely whole grains, fresh and mini- 16 mally-processed fruits and vegetables, essential fats (including nuts, 17 seeds and fish), and whole plant-based and lean proteins so as to 18 decrease sodium, added sugars, artificial additives, and saturated, 19 hydrogenated, and trans fats. 20 § 3. This act shall take effect immediately; provided, however that 21 the amendments to subdivision 1 of section 103 of the general municipal 22 law made by section one of this act shall be subject to the expiration 23 and reversion of such subdivision pursuant to subdivision (a) of section 24 41 of part X of chapter 62 of the laws of 2003, when upon such date the 25 provisions of section two of this act shall take effect.
