Procurement Lobbying Legislation New York State Bar Association

1. Procurement Lobbying LegislationNew York State Bar Association December 9, 2005 (revised January 4, 2006)

2. The Purpose of the Procurement Lobbying Law • Adds to the definition of lobbying any attempt to influence a government procurement. • Reemphasizes the values of the process in government procurement described in State Finance Law. • Prudent use of public money. • Efficient and timely acquisitions of commodities and services. • Highest quality purchases at the lowest practicable cost. • Emphasis on open, transparent, and fair procurement process.

3. The Purpose of the Procurement Lobbying Law • Requires disclosure by officials and employees of contacts that attempt to influence a procurement. • Inappropriate contacts or providing inaccurate or untruthful certification may result in findings of non-responsibility and debarment for four years. • Requires registration by individuals or firms engaged in procurement lobbying.

4. Two separate amendments • Legislative Law – interpreted and enforced by the NYS Temporary Commission on Lobbying • also establishes Advisory Council on Procurement Lobbying. • State Finance Law §139-j and §139-k – addresses actions of governmental entities Presentation addresses State Finance Law provisions

5. Applicability of State Finance Law Provisions • Every State Agency. • Public Authorities of which at least one member is appointed by the Governor. • Unified Court System. • Legislature • Certain Industrial Development Agencies • Public Benefit Corporations

6. Types of Contracts Included in the Law: • Construction • Procurement • Real Estate (Purchase, Sale, Lease of Real Property including interest therein.) • Certain Revenue Contracts • Assignments, renewals, extensions and certain amendments When the estimated annualized expenditure will exceed $15,000

7. Procurement Lobbying • General Rule is: • State Finance Law restricts communications with government entities about procurement contracts. • However, it also recognizes that some communications are necessary to the conduct of government procurement.

8. Most Important Definitions in State Finance Law: • Restricted Period: • Why? • It is only within the restricted period that a prohibited communication can take place. • Contact • oral, written or electronic communication with governmental entity under circumstances where a reasonable person would infer that the communication was intended to influence the governmental procurement. • Designated Contact • person or persons designated by governmental entity to receive communications about procurement. • Permissible Contacts

9. Permissible Contacts • State Finance Law §139-j recognizes a series of permissible contacts that can go to other than the Designated Contacts • The submission of written proposals in response to a request for proposals, invitation for bids or any other method for soliciting a response from offerers intending to result in a procurement contract.

10. Permissible Contacts • The submission of written questions to a designated contact set forth in a request for proposals, or invitation for bids, or any other method for soliciting a response from offerers intending to result in a procurement contract, when all written questions and responses are to be disseminated to all offerers who have expressed an interest in the request for proposals, or invitation for bids, or any other method for soliciting a response from offerers intending to result in a procurement contract.

11. Permissible Contacts • Participation in a conference provided for in a request for proposals, invitation for bids, or any other method for soliciting a response from offerers intending to result in the procurement contract. • Complaints by an offerer regarding the failure of the person or persons designated by the procuring governmental entity pursuant to this section to respond in a timely manner to authorized offerer contacts made in writing to the office of general counsel of the procuring governmental entity, provided that any such written complaints shall become a part of the procurement record.

12. Permissible Contacts • Offerers who have been tentatively awarded a contract and are engaged in communication with a governmental entity solely for the purpose of negotiating the terms of the procurement contract after being notified of tentative award. • Contacts between designated governmental entity staff of the procuring governmental entity and an offerer to request the review of a procurement contract award.

13. Permissible Contacts • Contacts by offerers in protests, appeals or other review proceedings (including the apparent successful bidder or proposer and his or her representatives) before the governmental entity conducting the procurement seeking a final administrative determination, or in a subsequent judicial proceeding. • Complaints of alleged improper conduct in a governmental procurement to the attorney general, inspector general, district attorney, or court of competent jurisdiction.

14. Permissible Contacts • Written protests, appeals or complaints to the state comptroller’s office during the process of contract approval, where the state comptroller’s approval is required by law, and where such communications and any response thereto are made in writing and shall be entered in the procurement record pursuant to section one hundred sixty-three of the state finance law. • Complaints of alleged improper conduct in a governmental procurement conducted by a municipal agency or local legislative body to the state comptroller’s office

15. Permissible Contacts • Only with the procuring agency unless specifically excepted. • Violations include: • Any contacts during the restricted period of a governmental procurement between the offerer and any member, officer or employee of any governmental entity; provided, however, that nothing in this section shall be deemed to prohibit an offerer from communicating with a member of the state legislature or legislative staff about a governmental procurement.

16. Incorporation of Public Officers Law • Shall not attempt to influence the governmental procurement in a manner that would result in a violation or an attempted violation of subdivision five section seventy-three or section seventy-four of the public officers law.

17. Consequences to Vendor • Finding of non-responsibility equals no award. • Failure to timely disclose accurate and complete information equals no award. • Failure to cooperate equals no award. • Incorporate lobbying into existing vendor responsibility determination. • Second finding of non-responsibility equals debarment absent compelling governmental interest (public property, public health or safety) and sole source status.

18. Agency Obligations • Require disclosure of findings of non-responsibility and debarment made within previous four years. • Collect and record Information. • Designate Contact Person or Persons. • OGS – Web Posting of Non-responsibility and debarment lists. • Record Contact and file in Procurement Record.

19. The Advisory Council on Procurement • Eleven members, chaired by Commissioner of General Services. • Provide advice to Lobbying Commission on Procurement Lobbying. • Annual report to Legislature on problems in implementing the provisions relating to procurement lobbying and including recommendation to increase effectiveness.

20. The Advisory Council on Procurement • Authorized to establish model guidelines for permissible contacts during the “restricted period.” • Preliminary report due December 31, 2005 on potential implementation issues regarding those provisions that take effect January 1, 2006. • Second report due October 30, 2007 on potential changes to Procurement Lobbying provisions.

21. Questions