Bill Text: NY S05817 | 2011-2012 | General Assembly | Amended
NOTE: There are more recent revisions of this legislation. Read Latest Draft
Bill Title: Relates to program procurements; clarifies the definition of services; allows the comptroller to excuse non-material deviations in procurement procedures and allows for pilot procurement methods; allows for publishment of non-competitive awards in the procurement opportunities newsletter.
Spectrum: Partisan Bill (Republican 1-0)
Status: (Introduced - Dead) 2012-06-08 - PRINT NUMBER 5817B [S05817 Detail]
Download: New_York-2011-S05817-Amended.html
Bill Title: Relates to program procurements; clarifies the definition of services; allows the comptroller to excuse non-material deviations in procurement procedures and allows for pilot procurement methods; allows for publishment of non-competitive awards in the procurement opportunities newsletter.
Spectrum: Partisan Bill (Republican 1-0)
Status: (Introduced - Dead) 2012-06-08 - PRINT NUMBER 5817B [S05817 Detail]
Download: New_York-2011-S05817-Amended.html
S T A T E O F N E W Y O R K
________________________________________________________________________
5817--A
2011-2012 Regular Sessions
I N S E N A T E
June 17, 2011
___________
Introduced by Sen. MARCELLINO -- (at request of the State Comptroller)
-- read twice and ordered printed, and when printed to be committed to
the Committee on Rules -- recommitted to the Committee on Finance in
accordance with Senate Rule 6, sec. 8 -- committee discharged, bill
amended, ordered reprinted as amended and recommitted to said commit-
tee
AN ACT to amend the state finance law, in relation to program procure-
ments, clarifying the definition of services, allowing the state comp-
troller to excuse non-material deviations in procurement procedures
and allowing for pilot procurement methods; and to amend the economic
development law, in relation to the procurement opportunities newslet-
ter
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 article
2 11-C to read as follows:
3 ARTICLE XI-C
4 PROGRAM PROCUREMENTS
5 SECTION 179-FF. DEFINITIONS.
6 179-GG. PROGRAM PROCUREMENTS.
7 179-HH. REQUEST FOR EXEMPTION.
8 179-II. PROGRAM PROCUREMENT PROCESS.
9 S 179-FF. DEFINITIONS. AS USED IN THIS ARTICLE THE FOLLOWING TERMS
10 SHALL HAVE THE FOLLOWING MEANINGS UNLESS OTHERWISE SPECIFIED:
11 1. "COSTS" SHALL BE QUANTIFIABLE AND MAY INCLUDE, WITHOUT LIMITATION,
12 THE PRICE OF PROVIDING THE GIVEN GOOD OR SERVICE AND THE ADMINISTRATIVE,
13 TRAINING, STORAGE, MAINTENANCE OR OTHER OVERHEAD EXPENSE ASSOCIATED WITH
14 A GIVEN GOOD OR SERVICE.
15 2. "EMERGENCY" MEANS AN URGENT AND UNEXPECTED REQUIREMENT WHERE PUBLIC
16 HEALTH, SAFETY, OR WELFARE OR THE CONSERVATION OF PUBLIC RESOURCES IS AT
17 RISK.
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD10876-07-2
S. 5817--A 2
1 3. "PRICE" MEANS THE AMOUNT OF MONEY SET AS CONSIDERATION FOR A GOOD
2 OR SERVICE AND MAY INCLUDE WHEN APPLICABLE AND WHEN SPECIFIED IN THE
3 PROPOSAL/APPLICATION, DELIVERY CHARGES, INSTALLATION CHARGES AND OTHER
4 COSTS.
5 4. "PROCUREMENT RECORD" MEANS DOCUMENTATION OF THE DECISIONS MADE AND
6 THE APPROACH TAKEN IN THE PROCUREMENT PROCESS.
7 5. "PROGRAM" MEANS A PROVISION OF LAW AUTHORIZING A STATE AGENCY TO
8 UNDERTAKE ACTIVITIES THAT ARE TO BE ACCOMPLISHED IN WHOLE OR IN PART
9 THROUGH CONTRACTS WITH CERTAIN ENTITIES INCLUDING, BUT NOT LIMITED TO,
10 NOT-FOR-PROFIT ORGANIZATIONS, FOR-PROFIT ORGANIZATIONS, MUNICIPALITIES
11 OR ANY COMBINATION THEREOF.
12 6. "PROGRAM PROCUREMENT" MEANS A PROCUREMENT WHICH:
13 A. IS UNDERTAKEN FOR A BROAD PUBLIC PURPOSE AUTHORIZED BY LAW AND NOT
14 UNDERTAKEN BY A STATE AGENCY PRIMARILY TO OBTAIN COMMODITIES, SERVICES
15 OR TECHNOLOGY FOR SUCH AGENCY; AND
16 B. IS INTENDED TO BENEFIT A COMMUNITY OR A PORTION OF A COMMUNITY; AND
17 C. IS ACCOMPLISHED IN WHOLE OR IN PART THROUGH A CONTRACT OR CONTRACTS
18 WITH AN ASSOCIATION, PARTNERSHIP, JOINT VENTURE, FIRM, COMPANY, CORPO-
19 RATION, PUBLIC CORPORATION, NOT-FOR-PROFIT ORGANIZATION OR A COMBINATION
20 OF SUCH ENTITIES; AND
21 D. HAS BEEN GRANTED AN EXEMPTION PURSUANT TO THE PROVISIONS OF SECTION
22 ONE HUNDRED SEVENTY-NINE-HH OF THIS ARTICLE WHERE SUCH EXEMPTION IS
23 REQUIRED BY SECTION ONE HUNDRED SEVENTY-NINE-GG OF THIS ARTICLE.
24 A PROGRAM PROCUREMENT PROVIDES THE PROPOSER OR APPLICANT WITH WIDE
25 DISCRETION AND LATITUDE IN THE MANNER IN WHICH THE PURPOSE IS TO BE
26 ACCOMPLISHED WITH FEW SPECIFIC LIMITATIONS ON THE SCOPE OF THE PROPOSAL
27 OR APPLICATION.
28 7. "PUBLIC CORPORATION" MEANS A CITY, TOWN, VILLAGE, SCHOOL DISTRICT,
29 A DISTRICT CORPORATION OR A PUBLIC BENEFIT CORPORATION AS THOSE TERMS
30 ARE DEFINED IN SECTION SIXTY-SIX OF THE GENERAL CONSTRUCTION LAW.
31 8. "RESPONSIBLE" OR "RESPONSIBILITY" MEANS THE FINANCIAL ABILITY,
32 LEGAL CAPACITY, INTEGRITY, AND PAST PERFORMANCE OF A BUSINESS ENTITY AND
33 AS SUCH TERMS HAVE BEEN INTERPRETED RELATIVE TO PUBLIC PROCUREMENTS.
34 9. "RESPONSIVE" MEANS A PROPOSER OR APPLICANT MEETING THE MINIMUM
35 SPECIFICATIONS OR REQUIREMENTS AS PRESCRIBED IN A SOLICITATION ISSUED BY
36 A STATE AGENCY.
37 10. "SINGLE SOURCE" MEANS A PROGRAM PROCUREMENT IN WHICH ALTHOUGH TWO
38 OR MORE PROPOSERS OR APPLICANTS CAN SUPPLY THE REQUIRED GOODS OR
39 SERVICES, THE STATE AGENCY, UPON WRITTEN FINDINGS SETTING FORTH THE
40 MATERIAL AND SUBSTANTIAL REASONS THEREFOR, MAY AWARD THE CONTRACT TO ONE
41 PROPOSER OR APPLICANT OVER ANOTHER. THE STATE AGENCY SHALL DOCUMENT IN
42 THE PROCUREMENT RECORD THE CIRCUMSTANCES LEADING TO THE SELECTION OF THE
43 PROPOSER OR APPLICANT, INCLUDING THE ALTERNATIVES CONSIDERED, THE
44 RATIONALE FOR SELECTING THE SPECIFIC PROPOSER OR APPLICANT AND THE BASIS
45 UPON WHICH THE STATE AGENCY DETERMINED THAT THE COST WAS REASONABLE.
46 11. "SOLICITATION DOCUMENT" MEANS THE DOCUMENT ISSUED BY A STATE AGEN-
47 CY NOTIFYING PROSPECTIVE PROPOSERS OR APPLICANTS THAT THE STATE AGENCY
48 WISHES TO RECEIVE PROPOSALS OR APPLICATIONS FOR PROVIDING GOODS OR
49 SERVICES.
50 12. "SOLE SOURCE" MEANS A PROGRAM PROCUREMENT IN WHICH ONLY ONE PROPO-
51 SER OR APPLICANT IS CAPABLE OF SUPPLYING THE REQUIRED GOODS OR SERVICES.
52 13. "SPECIFICATION" OR "REQUIREMENT" MEANS ANY DESCRIPTION OF THE
53 PHYSICAL OR FUNCTIONAL CHARACTERISTICS OR THE NATURE OF A GOOD OR
54 SERVICE, ANY DESCRIPTION OF THE SERVICES TO BE PERFORMED, THE GOODS OR
55 SERVICES TO BE PROVIDED, THE NECESSARY QUALIFICATIONS OF THE PROPOSER OR
56 APPLICANT, THE CAPACITY AND CAPABILITY OF THE PROPOSER OR APPLICANT TO
S. 5817--A 3
1 COMPLETE THE PROPOSED CONTRACT SUCCESSFULLY, OR THE PROCESS FOR ACHIEV-
2 ING SPECIFIC RESULTS OR ANTICIPATED OUTCOMES, OR BOTH, OR ANY OTHER
3 REQUIREMENT NECESSARY TO PERFORM THE WORK. IT MAY INCLUDE A DESCRIPTION
4 OF ANY OBLIGATORY TESTING, INSPECTION OR PREPARATION FOR DELIVERY AND
5 USE, AND MAY INCLUDE FEDERALLY REQUIRED PROVISIONS AND CONDITIONS WHERE
6 THE ELIGIBILITY FOR FEDERAL FUNDS IS CONDITIONED UPON THE INCLUSION OF
7 SUCH FEDERALLY REQUIRED PROVISIONS AND CONDITIONS. SPECIFICATIONS SHALL
8 BE DESIGNED TO ENHANCE COMPETITION AND, WHERE APPROPRIATE, THE RELATIVE
9 IMPORTANCE OR WEIGHT OF GEOGRAPHIC DISTRIBUTION AND ASSESSMENT OF NEED.
10 14. "STATE AGENCY" OR "STATE AGENCIES" MEANS ALL STATE DEPARTMENTS,
11 BOARDS, COMMISSIONS, OFFICES OR INSTITUTIONS BUT EXCLUDES, HOWEVER, FOR
12 THE PURPOSES OF SUBDIVISION FIVE OF SECTION THREE HUNDRED FIFTY-FIVE OF
13 THE EDUCATION LAW, THE STATE UNIVERSITY OF NEW YORK, AND EXCLUDES, FOR
14 THE PURPOSES OF SUBDIVISION A OF SECTION SIXTY-TWO HUNDRED EIGHTEEN OF
15 THE EDUCATION LAW, THE CITY UNIVERSITY OF NEW YORK. FURTHERMORE, SUCH
16 TERM SHALL NOT INCLUDE THE LEGISLATURE OR THE JUDICIARY.
17 S 179-GG. PROGRAM PROCUREMENTS. THE PROGRAM PROCUREMENT PROCESS SET
18 FORTH IN THIS ARTICLE, RATHER THAN THE REQUIREMENTS OF ARTICLE ELEVEN OF
19 THIS CHAPTER, SHALL APPLY TO:
20 1. PROGRAM PROCUREMENTS OPEN ONLY TO NOT-FOR-PROFIT ORGANIZATIONS OR
21 PUBLIC CORPORATIONS OR BOTH, AND
22 2. THOSE PROGRAM PROCUREMENTS OPEN TO PROFIT-SEEKING ENTITIES WHERE
23 THE STATE AGENCY HAS OBTAINED FROM THE STATE COMPTROLLER, IN ACCORDANCE
24 WITH SECTION ONE HUNDRED SEVENTY-NINE-HH OF THIS ARTICLE, AN EXEMPTION
25 FROM THE REQUIREMENTS OF ARTICLE ELEVEN OF THIS CHAPTER.
26 S 179-HH. REQUEST FOR EXEMPTION. BEFORE THE ISSUANCE OF A SOLICITATION
27 DOCUMENT, A STATE AGENCY CONDUCTING A PROCUREMENT OPEN TO PROFIT-SEEKING
28 ENTITIES WHICH THE STATE AGENCY BELIEVES FALLS WITHIN THE MEANING OF A
29 PROGRAM PROCUREMENT, AS DEFINED IN THIS ARTICLE, SHALL MAKE A WRITTEN
30 REQUEST TO THE STATE COMPTROLLER FOR AN EXEMPTION FROM THE REQUIREMENTS
31 OF ARTICLE ELEVEN OF THIS CHAPTER. THE STATE COMPTROLLER SHALL MAKE A
32 WRITTEN DETERMINATION AS TO WHETHER THE PROPOSED PROCUREMENT FALLS WITH-
33 IN THE DEFINITION OF A PROGRAM PROCUREMENT AS SET FORTH IN SECTION ONE
34 HUNDRED SEVENTY-NINE-FF OF THIS ARTICLE AND IS IN THE BEST INTEREST OF
35 THE STATE, AND SHALL EITHER GRANT OR DENY THE EXEMPTION ON THE BASIS OF
36 SUCH DETERMINATION. IF THE STATE COMPTROLLER GRANTS A STATE AGENCY AN
37 EXEMPTION FROM THE REQUIREMENTS OF ARTICLE ELEVEN OF THIS CHAPTER, THE
38 PROGRAM PROCUREMENT SHALL BE CONDUCTED IN ACCORDANCE WITH THE REQUIRE-
39 MENTS OF THIS ARTICLE.
40 S 179-II. PROGRAM PROCUREMENT PROCESS. 1. METHOD OF PROCUREMENT. THE
41 STATE AGENCY SHALL DOCUMENT IN THE PROCUREMENT RECORD AND IN ADVANCE OF
42 THE INITIAL RECEIPT OF PROPOSALS/APPLICATIONS THE DETERMINATION OF THE
43 EVALUATION CRITERIA, AND THE WEIGHT ASSIGNED TO EACH, AND THE PROCESS TO
44 BE USED IN THE DETERMINATION OF AWARD OR FUNDING, AND THE MANNER IN
45 WHICH THE EVALUATION AND SELECTION SHALL BE CONDUCTED.
46 2. PUBLIC NOTICE. ALL PROGRAM PROCUREMENTS BY STATE AGENCIES OR AN
47 AWARD OR FUNDING IN EXCESS OF FIFTEEN THOUSAND DOLLARS SHALL BE ADVER-
48 TISED IN THE STATE'S PROCUREMENT OPPORTUNITIES NEWSLETTER IN ACCORDANCE
49 WITH ARTICLE FOUR-C OF THE ECONOMIC DEVELOPMENT LAW.
50 3. SOLICITING AND ACCEPTING PROPOSALS OR APPLICATIONS. A SOLICITATION
51 DOCUMENT ISSUED BY A STATE AGENCY SHALL PRESCRIBE THE MINIMUM SPECIFICA-
52 TIONS OR REQUIREMENTS THAT MUST BE MET TO BE CONSIDERED RESPONSIVE AND
53 SHALL DESCRIBE AND DISCLOSE THE GENERAL MANNER IN WHICH THE EVALUATION
54 AND SELECTION SHALL BE CONDUCTED. WHERE APPROPRIATE, THE SOLICITATION
55 DOCUMENT SHALL IDENTIFY THE RELATIVE IMPORTANCE OR WEIGHT OF COST AND
56 THE OVERALL TECHNICAL CRITERIA TO BE CONSIDERED BY A STATE AGENCY IN
S. 5817--A 4
1 MAKING A PROGRAM PROCUREMENT DETERMINATION. CONSIDERATION, WHERE APPRO-
2 PRIATE, SHOULD INCLUDE GEOGRAPHIC DISTRIBUTION OF FUNDING BASED ON
3 ASSESSED NEEDS OF THE COMMUNITY.
4 4. SELECTION AND CONTRACT AWARD. A. SELECTION AND CONTRACT AWARD SHALL
5 BE CONSISTENT WITH: (I) THE TERMS OF THE SOLICITATION DOCUMENT ISSUED BY
6 THE STATE AGENCY; AND (II) THE CONTRACT AWARD METHODOLOGY SET FORTH IN
7 THE PROCUREMENT RECORD BEFORE THE INITIAL RECEIPT OF PROPOSALS OR APPLI-
8 CATIONS.
9 B. PROGRAM PROCUREMENT AWARDS SHALL BE MADE TO A PROPOSER OR APPLICANT
10 ON THE BASIS OF TECHNICAL MERIT WITH THE CONSIDERATION GIVEN TO THE
11 REASONABLENESS OF COSTS. THE CONTRACT AWARD OR AWARDS OR FUNDING SHALL
12 BE ALLOCATED TO THE HIGHEST RANKED PROPOSAL OR PROPOSALS. NOTHING IN
13 THIS SECTION, HOWEVER, SHALL BE DEEMED TO PROHIBIT A STATE AGENCY FROM
14 EVALUATING COST SEPARATELY IN ITS SELECTION AND CONTRACT AWARD.
15 C. A PROCUREMENT RECORD SHALL BE MAINTAINED FOR EACH PROGRAM PROCURE-
16 MENT IDENTIFYING, WITH SUPPORTING DOCUMENTATION, DECISIONS MADE BY THE
17 STATE AGENCY DURING THE PROCUREMENT PROCESS.
18 D. SELECTION AND CONTRACT AWARD SHALL BE A WRITTEN DETERMINATION IN
19 THE PROCUREMENT RECORD MADE BY THE STATE AGENCY.
20 E. PRIOR TO MAKING A PROGRAM PROCUREMENT AWARD, THE STATE AGENCY SHALL
21 MAKE A DETERMINATION OF THE RESPONSIBILITY OF THE PROPOSER OR APPLICANT.
22 5. REDUCTION OF AWARD. A STATE AGENCY MAY REDUCE THE MONETARY AMOUNT
23 OF THE AWARDS MADE UNDER A PROGRAM PROCUREMENT IF THE STATE AGENCY
24 RESERVES THE RIGHT TO MAKE SUCH A REDUCTION IN THE SOLICITATION DOCUMENT
25 AND SUCH REDUCTION IS CONSISTENT WITH A PREDEFINED METHODOLOGY SET FORTH
26 IN THE PROCUREMENT RECORD PRIOR TO THE RECEIPT OF INITIAL PROPOSALS OR
27 APPLICATIONS.
28 6. DISCRETIONARY PROGRAM PROCUREMENT AWARDS. A STATE AGENCY MAY MAKE A
29 PROGRAM PROCUREMENT AWARD IN AN AMOUNT NOT EXCEEDING FIFTY THOUSAND
30 DOLLARS WITHOUT A FORMAL COMPETITIVE PROCESS. THE STATE AGENCY SHALL,
31 HOWEVER, DOCUMENT THAT THE AMOUNT OF THE AWARD OR FUNDING IS REASONABLE.
32 7. CONTRACT AWARDS. A. CONTRACT AWARDS SHALL BE MADE ON THE BASIS OF
33 HIGHEST RANK IN ACCORDANCE WITH THE SELECTION AND AWARD METHODOLOGY
34 ESTABLISHED IN ACCORDANCE WITH THE PROGRAM REQUIREMENTS SET FORTH BY
35 EACH AGENCY FOR SUCH PROGRAM.
36 B. SINGLE OR SOLE SOURCE CONTRACT AWARDS, OR CONTRACT AWARDS MADE TO
37 MEET EMERGENCIES ARISING FROM UNFORESEEN CAUSES, MAY BE MADE WITHOUT A
38 FORMAL COMPETITIVE PROCESS AND SHALL ONLY BE MADE UNDER UNUSUAL CIRCUM-
39 STANCES AND SHALL BE BASED UPON A DETERMINATION BY THE STATE AGENCY THAT
40 THE SPECIFICATIONS OR REQUIREMENTS FOR SUCH AWARD HAVE BEEN DESIGNED IN
41 A FAIR AND EQUITABLE MANNER. THE STATE AGENCY SHALL DOCUMENT IN THE
42 PROCUREMENT RECORD, SUBJECT TO REVIEW BY THE STATE COMPTROLLER, THE
43 BASIS FOR A DETERMINATION TO MAKE AN AWARD TO A SINGLE SOURCE OR SOLE
44 SOURCE, OR THE NATURE OF THE EMERGENCY GIVING RISE TO THE AWARD.
45 8. CONTRACTS. ANY CONTRACT RESULTING FROM A PROGRAM PROCUREMENT
46 AWARDED PURSUANT TO THE PROVISIONS OF THIS ARTICLE THAT INCLUDES FUNDING
47 FOR COMMODITIES OR CONSTRUCTION SERVICES IN EXCESS OF FIFTY THOUSAND
48 DOLLARS SHALL INCLUDE CONTRACT LANGUAGE REQUIRING THE CONTRACTOR TO
49 ACQUIRE SUCH COMMODITIES AND/OR CONSTRUCTION SERVICES PURSUANT TO A
50 COMPETITIVE BIDDING PROCESS.
51 9. REVIEW BY THE OFFICE OF THE STATE COMPTROLLER. REVIEW BY THE OFFICE
52 OF THE STATE COMPTROLLER SHALL BE IN ACCORDANCE WITH SECTION ONE HUNDRED
53 TWELVE OF THIS CHAPTER.
54 S 2. Subdivision 7 of section 160 of the state finance law, as added
55 by chapter 83 of the laws of 1995, is amended to read as follows:
S. 5817--A 5
1 7. "Service" or "services" means, except with respect to contracts for
2 state printing, the performance of a task or tasks and may include a
3 material good or a quantity of material goods, and which is the subject
4 of any purchase or other exchange. For the purposes of this article,
5 technology shall be deemed a service. Services, as defined in this arti-
6 cle, shall not apply to those contracts for (I) architectural, engineer-
7 ing or surveying services, [or those contracts approved in accordance
8 with] (II) SERVICES PROVIDED BY A NOT-FOR-PROFIT ORGANIZATION IN ACCORD-
9 ANCE WITH THE PROVISIONS OF article eleven-B of this chapter, OR (III)
10 SERVICES OBTAINED THROUGH PROGRAM PROCUREMENTS IN ACCORDANCE WITH ARTI-
11 CLE ELEVEN-C OF THIS CHAPTER.
12 S 3. Subdivision 12 of section 163 of the state finance law, as added
13 by chapter 83 of the laws of 1995, is amended to read as follows:
14 12. Review by the office of the state comptroller. Review by the
15 office of the state comptroller shall be in accordance with section one
16 hundred twelve of this chapter. WHERE THE CONTRACTING AGENCY HAS NOT
17 COMPLIED WITH ONE OR MORE PROVISIONS OF THIS ARTICLE, THE COMPTROLLER
18 MAY APPROVE THE AWARDED CONTRACT IF:
19 A. THE CONTRACTING AGENCY DETERMINES AND CERTIFIES, BASED UPON A
20 PREPONDERANCE OF THE EVIDENCE DOCUMENTED IN THE PROCUREMENT RECORD, THAT
21 THE NONCOMPLIANCE DID NOT PREJUDICE OR FAVOR ANY VENDOR OR POTENTIAL
22 VENDOR AND THAT A NEW PROCUREMENT WOULD NOT BE IN THE BEST INTEREST OF
23 THE STATE; AND
24 B. THE STATE COMPTROLLER CONCURS IN SUCH DETERMINATION.
25 S 4. Section 163 of the state finance law is amended by adding a new
26 subdivision 13-a to read as follows:
27 13-A. PILOT PROCUREMENT PROJECTS. A. WHEN THE COMMISSIONER OR A STATE
28 AGENCY DEVELOPS A PROCUREMENT METHOD NOT AUTHORIZED BY THIS ARTICLE, THE
29 COMMISSIONER OR STATE AGENCY IS HEREBY AUTHORIZED TO USE SUCH METHOD ON
30 A LIMITED BASIS FOR A SPECIFIC CONTRACT AWARD IF: (I) THE COMMISSIONER
31 OR STATE AGENCY HAS MADE A DETERMINATION, DOCUMENTED IN THE PROCUREMENT
32 RECORD, THAT SUCH A PILOT PROCUREMENT METHOD WOULD BETTER SERVE THE
33 INTEREST OF THE STATE THAN OTHER METHODS CURRENTLY AVAILABLE UNDER THIS
34 SECTION; AND (II) THE PILOT PROCUREMENT METHOD IS APPLICABLE ON A FAIR
35 AND EQUITABLE BASIS.
36 B. WHEN USING A PROCUREMENT METHOD AUTHORIZED BY PARAGRAPH A OF THIS
37 SUBDIVISION, THE COMMISSIONER OR STATE AGENCY SHALL DOCUMENT, IN THE
38 PROCUREMENT RECORD AND IN ADVANCE OF THE INITIAL RECEIPT OF OFFERS, THE
39 DETERMINATION OF THE EVALUATION CRITERIA, WHICH WHENEVER POSSIBLE, SHALL
40 BE QUANTIFIABLE, AND THE PROCESS TO BE USED IN THE DETERMINATION OF THE
41 SPECIFIC CONTRACT AWARD AND THE MANNER IN WHICH THE EVALUATION PROCESS
42 AND SELECTION SHALL BE CONDUCTED.
43 C. PRIOR TO THE COMMENCEMENT OF THE PROCUREMENT, THE COMPTROLLER SHALL
44 AGREE THAT SUCH PROCUREMENT METHOD BETTER SERVES THE INTERESTS OF THE
45 STATE AND CAN BE APPLIED ON A FAIR AND EQUITABLE BASIS. FOR EACH SUCH
46 PILOT PROCUREMENT PROJECT AWARD, THE COMMISSIONER OR THE STATE AGENCY,
47 AS APPLICABLE, SHALL SUBMIT TO THE COMPTROLLER NOT LATER THAN THE
48 MID-POINT OF THE TERM OF THE RESULTANT CONTRACT A REPORT ASSESSING THE
49 SUCCESS OR FAILURE OF THE PILOT PROCUREMENT METHOD.
50 S 5. Paragraph (e) of subdivision 2 of section 144 of the economic
51 development law, as added by chapter 862 of the laws of 1990, is amended
52 to read as follows:
53 (e) Notwithstanding the foregoing, any agency receiving an exemption
54 for a procurement contract in accordance with this subdivision must
55 nevertheless publish notice of either the letting or award of the
56 contract, and the reasons for any such exemption, in the procurement
S. 5817--A 6
1 opportunities newsletter as soon as practicable, unless the comptroller
2 determines that publication would affect the ability of (i) law enforce-
3 ment agencies to carry out investigations, or (ii) agencies to protect
4 security operations, in which case notice of such contract shall not be
5 published. IF THE AWARD IS NON-COMPETITIVE, THE NOTICE TO BE PUBLISHED
6 SHALL INCLUDE, IN ADDITION TO THE REASONS FOR EXEMPTION: THE AWARDEE'S
7 NAME; A DESCRIPTION OF THE CONTRACT; THE ESTIMATED VALUE OF THE
8 CONTRACT; THE EXPECTED TERM OF THE CONTRACT AND THE CONTACT INFORMATION
9 FOR A CONTACT, WHO SHALL BE A DESIGNATED CONTACT UNDER THE PROCUREMENT
10 LOBBYING ACT, WHO CAN ASSIST ANY CERTIFIED MINORITY AND WOMEN-OWNED
11 BUSINESS ENTERPRISE WITH ANY POTENTIAL MINORITY AND WOMEN-OWNED BUSINESS
12 ENTERPRISE SUBCONTRACTING OPPORTUNITIES.
13 S 6. This act shall take effect immediately and shall apply to any
14 procurement initiated on or after such date; provided, however, that the
15 amendments to section 163 of the state finance law made by sections
16 three and four of this act shall not affect the repeal of such section
17 as provided in subdivision 5 of section 362 of chapter 83 of the laws of
18 1995, as amended, and shall be deemed repealed therewith.
