Bill Text: NY A10687 | 2015-2016 | General Assembly | Introduced
Bill Title: Authorizes the commissioner of the office of general services and state agencies to develop alternative procurement methods not otherwise authorized by law under certain circumstances; authorizes competitive negotiation concluding with a best and final offer.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced - Dead) 2016-06-16 - reported referred to rules [A10687 Detail]
Download: New_York-2015-A10687-Introduced.html
STATE OF NEW YORK ________________________________________________________________________ 10687 IN ASSEMBLY June 13, 2016 ___________ Introduced by COMMITTEE ON RULES -- (at request of M. of A. Peoples- Stokes) -- (at request of the State Comptroller) -- read once and referred to the Committee on Governmental Operations AN ACT to amend the state finance law, 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; and in relation to authorizing competitive negotiation concluding with a best and final offer The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. Section 163 of the state finance law is amended by adding 2 two new subdivisions 16 and 17 to read as follows: 3 16. Alternative procurement methods for the acquisition of non-con- 4 struction related commodities, services and information technology. a. 5 When the commissioner or a state agency determines that it is in the 6 best interest of the state to develop a procurement method not author- 7 ized by this section for non-construction related commodities, services 8 and information technology, the commissioner or state agency is hereby 9 authorized to develop and use such method for a specific contract award. 10 Such determination shall be made in writing and shall include documenta- 11 tion for the procurement record that such alternative procurement meth- 12 od: (i) would serve the interest of the state better than other methods 13 currently available under this section; (ii) can be applied on a compet- 14 itive, fair and equitable basis; and (iii) contains an appropriate eval- 15 uation methodology that considers both cost and qualitative evaluation 16 factors. Such alternative procurement method shall be subject to all 17 other applicable provisions of this section. The commissioner or a state 18 agency may not undertake an alternative procurement method until the 19 comptroller has determined that the proposed alternative procurement 20 method is in the best interest of the state; can be applied on a compet- 21 itive, fair and equitable basis; and utilizes an appropriate evaluation 22 methodology that considers both cost and qualitative evaluation factors. 23 b. When using an alternative procurement method authorized by this 24 subdivision, the commissioner or agency shall include in its solicita- EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD15307-02-6A. 10687 2 1 tion a detailed description of the proposed method of award. In advance 2 of the initial receipt of offers or bids, the commissioner or state 3 agency shall determine and document in the procurement record the evalu- 4 ation criteria and process to be used in the determination of the 5 specific contract award and the process by which the evaluation and 6 selection shall be conducted. In addition to the requirements set forth 7 in paragraph g of subdivision nine of this section, the procurement 8 record shall document the basis upon which the agency has determined 9 that potential vendors will be able to respond with viable bids to such 10 alternative procurement. 11 c. Notwithstanding the provisions of subdivision five of section three 12 hundred fifty-five of the education law to the contrary or section 13 sixty-two hundred eighteen of the education law, before any contract 14 awarded under this section which exceeds fifty thousand dollars in 15 amount becomes effective it must be approved by the comptroller and 16 filed in his or her office. 17 d. For each procurement awarded pursuant to this section, the commis- 18 sioner or state agency shall submit to the governor, the comptroller and 19 the heads of the fiscal committees of each house of the state legisla- 20 ture no later than the mid-point of the initial term of the resultant 21 contract a report assessing the validity of the procurement method and 22 comparing its results to procurement methods for commodities and 23 services or information technology. 24 17. Competitive negotiation. a. Where the basis of award is best value 25 and after completing an initial evaluation and scoring, a state agency 26 may choose to either make an award to the best value offerer pursuant to 27 subdivision four of this section or undertake competitive negotiations 28 with all offerers of proposals susceptible of being selected for 29 contract award, so long as the agency reserves the right to conduct such 30 competitive negotiations in the solicitation. The negotiations shall be 31 conducted as provided in paragraph d of this subdivision. 32 b. Competitive negotiation may only be used where: 33 (i) at least two offerers are deemed susceptible of being selected for 34 contract award; 35 (ii) in the event that the solicitation includes optional components, 36 the solicitation shall require all offerers to provide a proposal for 37 all options or otherwise be deemed nonresponsive; and 38 (iii) the agency has determined that use of competitive negotiation 39 will maximize the agency's ability to obtain best value, based on the 40 agency's need and the specifications set forth in the solicitation. 41 c. The agency must document in the procurement record and in advance 42 of the initial receipt of offers: 43 (i) the methodology, which shall be quantifiable and based on a 44 comparison of the proposals' price and technical merit, that will be 45 employed to arrive at a competitive range that will determine which 46 proposals are to be considered susceptible to award; and 47 (ii) a fair and impartial negotiation procedure, formulated with the 48 goal of ensuring sustained competition until an award is rendered and 49 obtaining the best value for the state. 50 d. The agency shall conduct written or oral negotiations with all 51 responsible offerers who submit proposals in the competitive range. In 52 the course of such negotiations, the agency shall: 53 (i) advise the offerer of ways in which its proposal may be improved 54 so that the offerer is given an opportunity to better meet the agency's 55 needs;A. 10687 3 1 (ii) clarify any uncertainties, ambiguities or non-material deviations 2 in the proposal; 3 (iii) advise the offerer of any technical components in its proposal 4 that may not be necessary to satisfy the agency's requirements and 5 request modifications as appropriate; 6 (iv) provide the offerer a reasonable opportunity to submit any cost, 7 technical or other revisions to its proposal in response to issues iden- 8 tified during negotiations; and 9 (v) document any oral negotiations for the procurement record. 10 e. Negotiations may be tailored to each offerer's proposal provided, 11 however, such negotiations shall be conducted with each offerer within 12 the competitive range without disclosing information concerning any 13 other offerers' proposals or the evaluation process. Negotiations shall 14 culminate in a technical solution from each offerer remaining within the 15 competitive range that is deemed acceptable to meet the agency's need as 16 set forth in the solicitation. After discussion of these technical 17 solutions is completed, the agency shall solicit a best and final price 18 proposal from all offerers within the competitive range. The best and 19 final price solicitation shall ensure that all offerers are afforded an 20 equal opportunity to respond within a specified period of time. 21 f. Where an agency chooses to undertake competitive negotiations 22 instead of making a best value award after an initial evaluation and 23 scoring, the final award shall be made to the lowest responsible offerer 24 after receiving a best and final price on a revised acceptable proposal. 25 § 2. This act shall take effect immediately; provided, however, that 26 the provisions of section one of this act shall apply to any procurement 27 initiated on or after such date; provided, further however, that the 28 amendments to section 163 of the state finance law made by section one 29 of this act shall not affect the repeal of such section as provided in 30 subdivision 5 of section 362 of chapter 83 of the laws of 1995, as 31 amended, and shall be deemed repealed therewith.