Bill Text: NY A07793 | 2019-2020 | General Assembly | Introduced
Bill Title: Enacts various provisions relating to procurement procedures.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced - Dead) 2020-01-06 - enacting clause stricken [A07793 Detail]
Download: New_York-2019-A07793-Introduced.html
STATE OF NEW YORK ________________________________________________________________________ 7793 2019-2020 Regular Sessions IN ASSEMBLY May 22, 2019 ___________ Introduced by M. of A. TITUS -- (at request of the State Comptroller) -- read once and referred to the Committee on Governmental Operations 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: 1 Section 1. The state finance law is amended by adding a new section 2 163-c to read as follows: 3 § 163-c. Vendor responsibility; online system participation. 1. Defi- 4 nitions. As used in this section the following terms shall have the 5 following meanings: 6 a. "Enrollment" shall mean the establishment of an online services 7 account with the state comptroller, including, but not limited to, the 8 creation of a unique user identification and password. Enrollment 9 provides a user access to the system. 10 b. "Online services" shall mean the services provided electronically 11 and securely by the state comptroller for the benefit of New York's 12 customers, clients and business partners. Such online services may be 13 expanded and enhanced as technology allows. EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD08975-01-9A. 7793 2 1 c. "State agency" or "state agencies" shall mean all state depart- 2 ments, boards, commissions, offices or institutions. Such term shall not 3 include the legislature or the judiciary. 4 d. "State contract" or "contract" shall mean and include any written 5 agreement for the acquisition of goods, services or construction of any 6 kind between a vendor and a state agency, or a written agreement or 7 other instrument wherein a state agency agrees to give consideration 8 other than the payment of money as contemplated in subdivision three of 9 section one hundred twelve of this chapter. 10 e. "Subcontractor" shall mean an individual, sole proprietorship, 11 partnership, joint venture or corporation, which is engaged in a subcon- 12 tract by a vendor pursuant to a state contract and such subcontract is 13 valued at one hundred thousand dollars or more and is known at the time 14 of the award of the state contract to the vendor. 15 f. "System" shall mean the on-line software, data and related 16 resources maintained by the comptroller to compile vendor responsibility 17 information. 18 g. "Terms of service" shall mean the terms and conditions developed by 19 the state comptroller and agreed to by each authorized user prior to 20 gaining access to online services. Terms of service shall include a 21 description of the services, obligations of the state comptroller and 22 the authorized user, a description of the state comptroller's privacy 23 policy, authorized user code of conduct, and indemnity for the state 24 comptroller and the state of New York. Terms of service are subject to 25 change as prescribed by the state comptroller. Authorized users may 26 view changes via the state comptroller's internet site. 27 h. "Vendor" shall include any person, partnership, corporation or 28 limited liability company or any business entity bidding on a state 29 procurement or otherwise awarded a state contract. 30 i. "Vendor responsibility" shall mean that a vendor has the capacity 31 to fully perform the terms of a contract and the integrity and business 32 ethics to justify an award of public dollars. A determination of vendor 33 responsibility shall include consideration of factors including, but not 34 limited to, financial and organizational capacity, legal authority, 35 integrity and past performance on governmental contracts. 36 2. a. State agencies shall enroll with the state comptroller to access 37 the system maintained by the comptroller to compile vendor responsibil- 38 ity information. State agencies shall agree to and abide by the terms of 39 service for such system as the state comptroller deems necessary. 40 b. For each contract or subcontract between a vendor and a subcontrac- 41 tor where, pursuant to law or by direction of the state agency, disclo- 42 sure for vendor responsibility is required, the state agency shall: 43 (i) provide notice to vendors bidding for procurements administered by 44 the state agency that any vendor and subcontractor, submitting a vendor 45 responsibility questionnaire shall do so via the system maintained to 46 compile vendor responsibility information; 47 (ii) provide vendors with instructions on how to electronically access 48 the system and provide contact information for assistance with enroll- 49 ment. This information shall be made available prior to the time when 50 vendors are required to submit disclosure for vendor responsibility; and 51 (iii) access the system to obtain and evaluate any data submitted by a 52 vendor proposed for contract award. State agencies shall ensure the 53 submission filed by the vendor meets such system's timeliness standards. 54 Such provisions apply regardless of whether the contract is subject to 55 pre-review and approval by the state comptroller.A. 7793 3 1 c. For contracts where vendor disclosure is not otherwise required, 2 the state agency at its discretion, may require vendors bidding on 3 procurements, and/or subcontractors, to submit a vendor responsibility 4 questionnaire via the system. Nothing contained in this paragraph shall 5 be construed to alter the existing authority of the state comptroller to 6 require the submission of a vendor responsibility questionnaire in 7 conjunction with his or her duty to review and approve state contracts 8 prior to such contracts becoming effective. 9 d. State agencies shall provide access to the system to users within 10 their organization, as deemed appropriate by the head of the state agen- 11 cy or his or her designee. State agency users provided with such access 12 shall be those individuals, who, as part of their official job duties, 13 are required to assess and/or review vendor responsibility for the agen- 14 cy's contracts. 15 § 2. Subdivisions 7 and 10 of section 160 of the state finance law, 16 subdivision 7 as amended by section 30 of part L of chapter 55 of the 17 laws of 2012 and subdivision 10 as added by chapter 83 of the laws of 18 1995, are amended to read as follows: 19 7. "Service" or "services" means the performance of a task or tasks 20 and may include a material good or a quantity of material goods, and 21 which is the subject of any purchase or other exchange. For the purposes 22 of this article, information technology shall be deemed a service. 23 Services, as defined in this article, shall not apply to those contracts 24 for architectural, engineering or surveying services, or those contracts 25 approved in accordance with article eleven-B of this chapter. 26 10. "[Technology] Information technology" means either a good or a 27 service or a combination thereof, [that results in a technical method of28achieving a practical purpose or in improvements in productivity] used 29 in the application of any computer or electronic information equipment 30 or interconnected system that is used in the acquisition, storage, 31 manipulation, management, movement, control, display, switching, inter- 32 change, transmission, or reception of data including, but not limited 33 to, hardware, software, firmware, programs, systems, networks, infras- 34 tructure, media, and related material used to automatically and elec- 35 tronically collect, receive, access, transmit, display, store, record, 36 retrieve, analyze, evaluate, process, classify, manipulate, manage, 37 assimilate, control, communicate, exchange, convert, converge, inter- 38 face, switch, or disseminate data of any kind or form. Goods may be 39 either new or used. 40 § 3. Paragraphs g and i of subdivision 2 of section 161 of the state 41 finance law, as added by chapter 83 of the laws of 1995, are amended to 42 read as follows: 43 g. Consult with and advise the commissioner on strategic information 44 technology investments that will facilitate electronic access to the 45 terms and conditions of existing procurement contracts, promote elec- 46 tronic commerce including, but not limited to, payment to vendors, 47 promote and enhance the efficiency of the procurement of products and 48 services by or for state agencies and produce useful information that 49 supports state procurement operations, management, analysis and decision 50 making including, but not limited to, data concerning the status and use 51 of procurement contracts and the number and type of contracts and award 52 recipients; 53 i. Establish and, from time to time, amend guidelines for the procure- 54 ment of services and information technology in accordance with the 55 provisions of this article. Such guidelines shall ensure the wise and 56 prudent use of public money in the best interest of the taxpayers of theA. 7793 4 1 state; guard against favoritism, improvidence, extravagance, fraud and 2 corruption; and ensure that service contracts are awarded on the basis 3 of best value, including, but not limited to, the following criteria: 4 quality, cost, and efficiency; 5 § 4. Paragraph k of subdivision 1 and subdivision 6 of section 163 of 6 the state finance law, paragraph k of subdivision 1 as added by section 7 36 of part L of chapter 55 of the laws of 2012, subdivision 6 as amended 8 by chapter 569 of the laws of 2015, are amended to read as follows: 9 k. "Authorized user" or "non-state agency purchaser" means (i) any 10 officer, body or agency of the state or of a political subdivision or a 11 district therein, or fire company or volunteer ambulance service as such 12 are defined in section one hundred of the general municipal law, to make 13 purchases of commodities, services and information technology through 14 the office of general services' centralized contracts, pursuant to the 15 provisions of section one hundred four of the general municipal law; 16 (ii) any county extension service association as authorized under subdi- 17 vision eight of section two hundred twenty-four of the county law; (iii) 18 any association or other entity as specified in and in accordance with 19 section one hundred nine-a of the general municipal law; (iv) any asso- 20 ciation, consortium or group of privately owned or municipal, federal or 21 state owned or operated hospitals, medical schools, other health related 22 facilities or voluntary ambulance services, which have entered into a 23 contract and made mutual arrangements for the joint purchase of commod- 24 ities, services and information technology pursuant to section twenty- 25 eight hundred three-a of the public health law; (v) any institution for 26 the instruction of the deaf or of the blind listed in section forty-two 27 hundred one of the education law; (vi) any qualified non-profit-making 28 agency for the blind approved by the commissioner of the office of chil- 29 dren and family services or the office of temporary and disability 30 assistance; (vii) any qualified charitable non-profit-making agency for 31 the severely disabled approved by the commissioner of education; (viii) 32 any hospital or residential health care facility as defined in section 33 twenty-eight hundred one of the public health law; (ix) any private 34 not-for-profit mental hygiene facility as defined in section 1.03 of the 35 mental hygiene law; (x) any public authority or public benefit corpo- 36 ration of the state, including the port authority of New York and New 37 Jersey and the interstate environmental commission; (xi) any public 38 library, association library, library system, cooperative library 39 system, the New York Library Association, and the New York State Associ- 40 ation of Library Boards or any other library except those which are 41 operated by for profit entities; (xii) any other association or entity 42 as specified in state law, to make purchases of commodities, services 43 and information technology through the office of general services' 44 centralized contracts. Such qualified non-profit-making agencies for the 45 blind and severely disabled may make purchases from the correctional 46 industries program of the department of corrections and community super- 47 vision subject to rules pursuant to the correction law. 48 6. Discretionary buying thresholds. Pursuant to guidelines established 49 by the state procurement council: the commissioner may purchase services 50 and commodities in an amount not exceeding eighty-five thousand dollars 51 without a formal competitive process; state agencies may purchase 52 services and commodities in an amount not exceeding fifty thousand 53 dollars without a formal competitive process; and state agencies may 54 purchase commodities or services from small business concerns or those 55 certified pursuant to articles fifteen-A and seventeen-B of the execu- 56 tive law, or commodities or information technology that are recycled orA. 7793 5 1 remanufactured, or commodities that are food, including milk and milk 2 products, grown, produced or harvested in New York state in an amount 3 not exceeding two hundred thousand dollars without a formal competitive 4 process. 5 § 5. Section 163 of the state finance law is amended by adding a new 6 subdivision 16 to read as follows: 7 16. Alternative procurement methods for the acquisition of non-con- 8 struction related commodities, services and information technology. a. 9 When the commissioner or a state agency determines that it is in the 10 best interest of the state to develop a procurement method not author- 11 ized by this section for non-construction related commodities, services 12 and information technology, the commissioner or state agency is hereby 13 authorized to develop and use such method for a specific contract award. 14 Such determination shall be made in writing and shall include documenta- 15 tion for the procurement record that such alternative procurement meth- 16 od: (i) would serve the interest of the state better than other methods 17 currently available under this section; (ii) can be applied on a compet- 18 itive, fair and equitable basis; and (iii) contains an appropriate eval- 19 uation methodology that considers both cost and qualitative evaluation 20 factors. Such alternative procurement method shall be subject to all 21 other applicable provisions of this section. The commissioner or a state 22 agency may not undertake an alternative procurement method until the 23 comptroller has determined that the proposed alternative procurement 24 method is in the best interest of the state; can be applied on a compet- 25 itive, fair and equitable basis; and utilizes an appropriate evaluation 26 methodology that considers both cost and qualitative evaluation factors. 27 b. When using an alternative procurement method authorized by this 28 subdivision, the commissioner or agency shall include in its solicita- 29 tion a detailed description of the proposed method of award. In advance 30 of the initial receipt of offers or bids, the commissioner or state 31 agency shall determine and document in the procurement record the evalu- 32 ation criteria and process to be used in the determination of the 33 specific contract award and the process by which the evaluation and 34 selection shall be conducted. In addition to the requirements set forth 35 in paragraph g of subdivision nine of this section, the procurement 36 record shall document the basis upon which the agency has determined 37 that potential vendors will be able to respond with viable bids to such 38 alternative procurement. 39 c. Notwithstanding the provisions of subdivision five of section three 40 hundred fifty-five of the education law to the contrary or section 41 sixty-two hundred eighteen of the education law, before any contract 42 awarded under this section which exceeds fifty thousand dollars in 43 amount becomes effective it must be approved by the comptroller and 44 filed in his or her office. 45 d. For each procurement awarded pursuant to this section, the commis- 46 sioner or state agency shall submit to the governor, the comptroller and 47 the heads of the fiscal committees of each house of the state legisla- 48 ture no later than the mid-point of the initial term of the resultant 49 contract a report assessing the validity of the procurement method and 50 comparing its results to procurement methods for commodities and 51 services or information technology. 52 § 6. Section 163 of the state finance law is amended by adding a new 53 subdivision 17 to read as follows: 54 17. Competitive negotiation. a. Where the basis of award is best value 55 and after completing an initial evaluation and scoring, a state agency 56 may choose to either make an award to the best value offerer pursuant toA. 7793 6 1 subdivision four of this section or undertake competitive negotiations 2 with all offerers of proposals susceptible of being selected for 3 contract award, so long as the agency reserves the right to conduct such 4 competitive negotiations in the solicitation. The negotiations shall be 5 conducted as provided in paragraph d of this subdivision. 6 b. Competitive negotiation may only be used where: 7 (i) at least two offerers are deemed susceptible of being selected for 8 contract award; 9 (ii) in the event that the solicitation includes optional components, 10 the solicitation shall require all offerers to provide a proposal for 11 all options or otherwise be deemed nonresponsive; and 12 (iii) the agency has determined that use of competitive negotiation 13 will maximize the agency's ability to obtain best value, based on the 14 agency's need and the specifications set forth in the solicitation. 15 c. The agency must document in the procurement record and in advance 16 of the initial receipt of offers: 17 (i) the methodology, which shall be quantifiable and based on a 18 comparison of the proposals' price and technical merit, that will be 19 employed to arrive at a competitive range that will determine which 20 proposals are to be considered susceptible to award; and 21 (ii) a fair and impartial negotiation procedure, formulated with the 22 goal of ensuring sustained competition until an award is rendered and 23 obtaining the best value for the state. 24 d. The agency shall conduct written or oral negotiations with all 25 responsible offerers who submit proposals in the competitive range. In 26 the course of such negotiations, the agency shall: 27 (i) advise the offerer of ways in which its proposal may be improved 28 so that the offerer is given an opportunity to better meet the agency's 29 needs; 30 (ii) clarify any uncertainties, ambiguities or non-material deviations 31 in the proposal; 32 (iii) advise the offerer of any technical components in its proposal 33 that may not be necessary to satisfy the agency's requirements and 34 request modifications as appropriate; 35 (iv) provide the offerer a reasonable opportunity to submit any cost, 36 technical or other revisions to its proposal in response to issues iden- 37 tified during negotiations; and 38 (v) document any oral negotiations for the procurement record. 39 e. Negotiations may be tailored to each offerer's proposal provided, 40 however, such negotiations shall be conducted with each offerer within 41 the competitive range without disclosing information concerning any 42 other offerers' proposals or the evaluation process. Negotiations shall 43 culminate in a technical solution from each offerer remaining within the 44 competitive range that is deemed acceptable to meet the agency's need as 45 set forth in the solicitation. After discussion of these technical 46 solutions is completed, the agency shall solicit a best and final price 47 proposal from all offerers within the competitive range. The best and 48 final price solicitation shall ensure that all offerers are afforded an 49 equal opportunity to respond within a specified period of time. 50 f. Where an agency chooses to undertake competitive negotiations 51 instead of making a best value award after an initial evaluation and 52 scoring, the final award shall be made to the lowest responsible offerer 53 after receiving a best and final price on a revised acceptable proposal. 54 § 7. Subdivision 9 of section 163 of the state finance law is amended 55 by adding a new paragraph c-1 to read as follows:A. 7793 7 1 c-1. Where a state agency determines that non-material changes to the 2 specifications as set forth in the solicitation would be in the best 3 interest of the state and, when provided for in the solicitation, state 4 agencies may request best and final offers, which shall be in writing 5 and solicited in the same manner from all offerers determined to be 6 susceptible of being selected for contract award, with the intent of 7 allowing an offerer to revise its cost; provided, however, that a state 8 agency may not make a modification to the solicitation if such modifica- 9 tion would prejudice any bidder or potential bidder and, provided 10 further, that no best and final offer may be accepted or considered by a 11 state agency unless such best and final offer is submitted in response 12 to a request by the state agency. 13 § 8. Paragraph e of subdivision 10 of section 163 of the state finance 14 law, as amended by chapter 137 of the laws of 2008, is amended to read 15 as follows: 16 e. The commissioner may authorize purchases required by state agencies 17 or other authorized purchasers by letting a contract pursuant to a writ- 18 ten agreement, or by approving the use of a contract let by any depart- 19 ment, agency or instrumentality of the United States government and/or 20 any department, agency, office, political subdivision or instrumentality 21 of any state or states. A state agency purchaser shall document in the 22 procurement record its rationale for the use of a contract let by any 23 department, agency or instrumentality of the United States government or 24 any department, agency, office, political subdivision or instrumentality 25 of any other state or states. Such rationale shall include, but need not 26 be limited to, a determination of need, a consideration of the procure- 27 ment method by which the contract was awarded, an analysis of alterna- 28 tive procurement sources including an explanation why a competitive 29 procurement or the use of a centralized contract let by the commissioner 30 is not in the best interest of the state, and the reasonableness of 31 cost. The authority to use a contract let by another governmental entity 32 pursuant to this paragraph is intended to benefit the state by using 33 contracts in place that provide for the same service or commodity sought 34 by a state agency at a price determined to be reasonable by the state 35 agency. Such contracts are not intended to be used primarily to avoid 36 competitive bidding. Use of multiple award contracts pursuant to this 37 paragraph shall follow the same basis of selection among the multiple 38 awardees as was prescribed by the original contracting governmental 39 entity. 40 § 9. Subdivision 3 of section 112 of the state finance law, as amended 41 by section 2-c of part F of chapter 57 of the laws of 2016, is amended 42 to read as follows: 43 3. A contract or other instrument wherein the state or any of its 44 officers, agencies, boards or commissions agrees to give a consideration 45 other than the payment of money, when the value or reasonably estimated 46 value of such consideration exceeds twenty-five thousand dollars, shall 47 not become a valid enforceable contract unless such contract or other 48 instrument shall first be approved by the comptroller and filed in his 49 office. For purposes of this subdivision, where consideration cannot be 50 determined in terms of monetary value, it shall be valued in terms of 51 intrinsic value. 52 § 10. Subdivision (m) of section 1-c of the legislative law, as added 53 by chapter 1 of the laws of 2005, is amended to read as follows: 54 (m) The term "restricted period" shall mean the period of time 55 commencing with the earliest posting, on a governmental entity's 56 website, in a newspaper of general circulation, or in the procurementA. 7793 8 1 opportunities newsletter in accordance with article four-C of the 2 economic development law of written notice, advertisement or solicita- 3 tion of a request for proposal, invitation for bids, or solicitation of 4 proposals, or any other method provided for by law or regulation for 5 soliciting a response from offerers intending to result in a procurement 6 contract with a [state agency, either house of the state legislature,7the unified court system, or a municipal agency, as that term is defined8by paragraph (ii) of subdivision (s) of this section, and ending with9the final contract award and approval by the state agency, either house10of the state legislature, the unified court system, or a municipal agen-11cy, as that term is defined by paragraph (ii) of subdivision (s) of this12section,] governmental entity and ending with the final contract award 13 and approval by the governmental entity and, where applicable, the state 14 comptroller. For the purposes of this subdivision, "governmental entity" 15 shall have the same meaning as paragraph a of subdivision one of section 16 one hundred thirty-nine-j of the state finance law. 17 § 11. This act shall take effect immediately; provided, however, 18 section one of this act shall take effect on the one hundred eightieth 19 day after it shall have become a law; provided, further, however, that 20 the provisions of sections four, five, six, seven, eight and nine of 21 this act shall apply to any procurement initiated on or after such date; 22 provided, further however, that the amendments to section 163 of the 23 state finance law made by sections four, five, six, seven and eight of 24 this act shall not affect the repeal of such section as provided in 25 subdivision 5 of section 362 of chapter 83 of the laws of 1995, as 26 amended, and shall be deemed repealed therewith.