Bill Text: NY S09364 | 2023-2024 | General Assembly | Amended

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Bill Title: Aligns state and local procurement laws with federal law prohibiting the procurement of certain information and communications technology and electronic parts or products which are determined to pose a risk to state and national security.

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Introduced) 2024-05-22 - PRINT NUMBER 9364A [S09364 Detail]

Download: New_York-2023-S09364-Amended.html

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                STATE OF NEW YORK
        ________________________________________________________________________

                                         9364--A

                    IN SENATE

                                      May 14, 2024
                                       ___________

        Introduced  by  Sen.  COONEY -- read twice and ordered printed, and when
          printed to be committed to the Committee on Procurement and  Contracts
          --  committee  discharged,  bill amended, ordered reprinted as amended
          and recommitted to said committee

        AN ACT to amend the state finance law and the general municipal law,  in
          relation  to  prohibiting procurement of certain technology that poses
          security threats

          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:

     1    Section  1.  The  state finance law is amended by adding a new section
     2  163-e to read as follows:
     3    § 163-e. Restriction on purchasing certain technology  which  poses  a
     4  security  threat.  1.  (a) Notwithstanding any inconsistent provision of
     5  law, the state and any department, bureau, board, commission, authority,
     6  and any other agency or instrumentality of the  state  shall  not  enter
     7  into  or  renew  any  contract  or  agreement to procure information and
     8  communications technology, including hardware, systems,  devices,  soft-
     9  ware,  or services that include embedded or incidental information tech-
    10  nology, which are prohibited from federal procurement pursuant to 41 USC
    11  4713.
    12    (b) The term "information and communications technology" means:
    13    (i) information technology, as defined in section 11101 of title 40;
    14    (ii) information systems, as defined in 44 U.S.C. 3502; and
    15    (iii) telecommunications equipment and telecommunications services, as
    16  those terms are defined in section 3 of the Communications Act  of  1934
    17  (47 U.S.C. 153).
    18    (c)  The  term  "information  and communications technology" shall not
    19  include automated-decision making systems.
    20    2. Notwithstanding any inconsistent provision of law,  the  state  and
    21  any department, bureau, board, commission, authority, or any other agen-
    22  cy  or  instrumentality  of  the state shall not enter into or renew any
    23  contract or agreement to procure  any  electronic  parts,  products,  or
    24  services,  or enter into a contract, or extend or renew a contract, with
    25  an entity to procure or obtain electronic parts or products that use any

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD14405-05-4
        S. 9364--A                          2

     1  electronic  parts  or  products  that  include products, from any entity
     2  prohibited from federal contracting (or any subsidiary,  affiliates,  or
     3  successors  of  such  entity)  as set forth in Pub. L.  117-263, div. E,
     4  title  LIX,  §  5949;  or  any entity (or any subsidiary, affiliates, or
     5  successors  of  such  entity)  designated  as  prohibited  from  federal
     6  contracting  pursuant to Pub. L.  115-232, div. A, title VIII, § 889; or
     7  from any entity (or any subsidiary, affiliates, or  successors  of  such
     8  entity)   determined   to   be   a   threat   to  national  security  by
     9  DODIG-2019-106.
    10    3. The commissioner of homeland security and emergency  services,  the
    11  adjutant  general,  the chief information officer, the chief cyber offi-
    12  cer, the chief technology officer of the city of New York and any feder-
    13  al agency authorized under 41 USC 4713, may provide a waiver  from  this
    14  section if:
    15    (a)  any such entity determines the waiver is in the critical state or
    16  national security interests; and
    17    (b) no compliant product or service is available to  be  procured  as,
    18  and  when,  needed at United States market prices or a price that is not
    19  considered prohibitively expensive; and
    20    (c) such waiver could not reasonably be  expected  to  compromise  the
    21  critical state or national security interests.
    22    4. Nothing in this section shall be construed:
    23    (a) to require any covered products or services resident in equipment,
    24  systems,  or  services  as  of the day before the effective date of this
    25  section to be removed or replaced;
    26    (b) to prohibit or limit the utilization of such covered  products  or
    27  services throughout the lifecycle of such existing equipment; or
    28    (c) to require the recipient of a state contract, grant, loan, or loan
    29  guarantee to replace covered products or services resident in equipment,
    30  systems, or services before the effective date of this section.
    31    §  2.  The  general  municipal  law is amended by adding a new section
    32  103-h to read as follows:
    33    § 103-h.  Restriction on purchasing certain technology which  poses  a
    34  security  threat.  1.  (a) Notwithstanding any inconsistent provision of
    35  law a political subdivision shall not enter into or renew  any  contract
    36  or  agreement  to  procure  information  and  communications technology,
    37  including hardware, systems, devices, software, or services that include
    38  embedded or incidental information technology, which are prohibited from
    39  federal procurement pursuant to 41 USC 4713.
    40    (b) The term "information and communications technology" means:
    41    (i) information technology, as defined in 40 U.S.C. 11101;
    42    (ii) information systems, as defined in 44 U.S.C. 3502; and
    43    (iii) telecommunications equipment and telecommunications services, as
    44  those terms are defined in section 3 of the Communications Act  of  1934
    45  (47 U.S.C. 153).
    46    2.  Notwithstanding  any  inconsistent  provision  of law, a political
    47  subdivision or any district therein shall not enter into  or  renew  any
    48  contract  or  agreement  to  procure  any electronic parts, products, or
    49  services, or enter into a contract, or extend or renew a contract,  with
    50  an entity to procure or obtain electronic parts or products that use any
    51  electronic  parts  or  products  that  include  products or services, in
    52  violation of the provisions as set forth in Pub. L.   117-263,  div.  E,
    53  title LIX, § 5949; or from any entity (or any subsidiary, affiliates, or
    54  successors  of  such  entity)  designated  as  prohibited  from  federal
    55  contracting pursuant to Pub. L. 115-232, div. A, title  VIII,  §889;  or
        S. 9364--A                          3

     1  from  any  entity  (or any subsidiary, affiliates, or successors of such
     2  entity) determined to be a cybersecurity risk by DODIG-2019-106.
     3    3.  The  commissioner of homeland security and emergency services, the
     4  adjutant general, the chief information officer, the chief  cyber  offi-
     5  cer, the chief technology officer of the city of New York and any feder-
     6  al agency authorized under 41 U.S.C 4713, may provide a waiver from this
     7  section if:
     8    (a)  any such entity determines the waiver is in the critical state or
     9  national security interests; and
    10    (b) no compliant product or service is available to  be  procured  as,
    11  and  when,  needed at United States market prices or a price that is not
    12  considered prohibitively expensive; and
    13    (c) such waiver could not reasonably be  expected  to  compromise  the
    14  critical national security interests of the United States.
    15    4. Nothing in this section shall be construed:
    16    (a) to require any covered products or services resident in equipment,
    17  systems,  or  services  as  of the day before the effective date of this
    18  section to be removed or replaced;
    19    (b) to prohibit or limit the utilization of such covered  products  or
    20  services throughout the lifecycle of such existing equipment; or
    21    (c) to require the recipient of a state contract, grant, loan, or loan
    22  guarantee to replace covered products or services resident in equipment,
    23  systems, or services before the effective date of this section.
    24    §  3.  No  later  than  the  effective date of this act, the office of
    25  general services shall promulgate rules and regulations and issue  guid-
    26  ance  to all state agencies and local procurement authorities necessary,
    27  including providing  updates  on prohibited   or excluded  entities  for
    28  procurement  contracts  in  conformity with federal law, rules and regu-
    29  lations, no later than sixty days after  any  entity  is  prohibited  or
    30  excluded.
    31    §  4. This act shall take effect five years after it shall have become
    32  a law. Effective immediately, the office of general services is  author-
    33  ized to promulgate rules and regulations and issue guidance to all state
    34  agencies and local procurement authorities necessary for the implementa-
    35  tion  of  this act on its effective date, including providing updates on
    36  prohibited or excluded entities for procurement contracts in  conformity
    37  with federal law, rules and regulations.