OGS Procurement Services Group 2007 State Purchasing Forum
State Finance Law Aspects of the Procurement Lobbying Law
2007 Purchasing Forum – Aspects of the Procurement Lobbying Law
Presenter’s Contact Information
Lisa K. Fox
Legal Services
New York State Office of General Services
(518) 474-5988
OGS Website:
www.ogs.state.ny.us
2007 Purchasing Forum – Aspects of the Procurement Lobbying Law
Overview
• The Procurement Lobbying Law obligates Governmental Entities and Offerers to undertake specific actions as part of the procurement process
• Sets forth specific requirements regarding communications during the procurement process
• Establishes specific contractual requirements
2007 Purchasing Forum – Aspects of the Procurement Lobbying Law
Imposes new consequences if Offerers have impermissible communications
• Non-responsibility determination
• No contract award
• Debarment for four year period
Prohibited from submitting proposals
Prohibited from receiving contract awards
How Can this Law Impact Your Business?
2007 Purchasing Forum – Aspects of the Procurement Lobbying Law
• Two separate sets of provisions
Legislative Law
State Finance Law §§139-j and 139-k • Requirements are different
• Requirements apply at different times to different communications
• Need to determine if both laws apply to your business
What is the Procurement Lobbying Law?
2007 Purchasing Forum – Aspects of the Procurement Lobbying Law
• Business community is only allowed to make “permissible Contacts”
• Two kinds of “permissible Contacts”
• 1st – Designated Contact – person or persons identified by Governmental Entity to receive “Contacts” on a transaction
• 2nd – Permissible Subject Matter Categories
Series of common stages in a procurement
New Statute May Require Change to Business Practices
2007 Purchasing Forum – Aspects of the Procurement Lobbying Law
Who is a Designated Contact?
• A person or persons identified by a Governmental Entity to receive “Contacts” on a transaction
• Generally identified in a writing provided to the business community
• Can receive all communications and Contacts on a procurement
2007 Purchasing Forum – Aspects of the Procurement Lobbying Law
Permissible Subject Matter Categories
#1 - submission of a written proposal from an Offerer
#2 - submission of written questions in accordance with a process sent out in the solicitation, that must include sending all responses to all Offerers
#3 - participation in a conference provided for in a solicitation
2007 Purchasing Forum – Aspects of the Procurement Lobbying Law
#4 - complaints by an Offerer that the Designated Contact has not been responsive filed in writing to Counsel’s Office
#5 - negotiation of a Procurement Contact after tentative award
#6 - review of a procurement contract award (debriefings)
Permissible Subject Matter Categories
2007 Purchasing Forum – Aspects of the Procurement Lobbying Law
#7 - protests, appeals or other review proceedings, such as judicial
proceedings or allegations of improper conduct. Category includes the ability of an Offerer to file a written protest, appeal or complaint to the state comptroller’s office during the process of contract approval
Permissible Subject Matter Categories
2007 Purchasing Forum – Aspects of the Procurement Lobbying Law
Net Result
• Business can always “Contact” the Designated Contact
• “Contacts” to Non-Procuring Governmental Entity are limited to SFL §139-j(3)(a)(1-7) (PSMC)
2007 Purchasing Forum – Aspects of the Procurement Lobbying Law
• If “Contact” made to someone else, it may be violation of statute and could result in debarment (“impermissible Contact”)
• “Contacts” to Non-Procuring Governmental Entity are limited to SFL §139-j(3)(a)(1-7)
Protests, appeals or complaints to OSC must
be written
A “contact” to a non-procuring governmental entity could result in debarment
2007 Purchasing Forum – Aspects of the Procurement Lobbying Law
• Applies to contracts over $15,000 annualized value with more than 400 different governmental entities
Applies to construction and professional services contracts
Applies to sole and single source contracts
• Limited transactions are exempt from these new requirements, such as grants and intergovernmental agreements
Contracts Subject to Requirements
2007 Purchasing Forum – Aspects of the Procurement Lobbying Law
• “Restricted Period” - Time period from advertisement or other request for a proposal until the contract receives all the required approvals, such as OSC approval
• This is the only time period where these formal requirements apply regarding who can be “Contacted” and the creation of a record
Applies to a specific transaction
New State Finance Law Requirements Apply During the Restricted Period
2007 Purchasing Forum – Aspects of the Procurement Lobbying Law
Example of State Agency Competitive Procurement
Definition of business need
Restricted Period(limits who can
receive Contacts)
Ad in Contract Reporter
Approval of
contractby OSC
2007 Purchasing Forum – Aspects of the Procurement Lobbying Law
• Not all communications are “Contacts”!
• Communications that are intended to influence the governmental procurement (Contacts)
• However, communications with Legislature are not governed by the State Finance Law (unless a legislative procurement)
New Requirements Apply to “Contacts”
2007 Purchasing Forum – Aspects of the Procurement Lobbying Law
• A Contact is an
oral, written or electronic communication
with a Governmental Entity
under circumstances where a reasonable person would infer
the communication was intended to influence the Governmental Procurement
• Treatment of a communication may be different under Legislative Law
What is a Contact?
2007 Purchasing Forum – Aspects of the Procurement Lobbying Law
• Offerer must provide written affirmation on understanding of and agreement to entity’s policy on permissible Contacts
Affirmation is element examined to determine if an impermissible Contact was knowing and willful
• Offerer must certify that information provided under State Finance Law §139-k is complete, true and accurate
Standardized Information Collection and Contract Provisions
2007 Purchasing Forum – Aspects of the Procurement Lobbying Law
• Offerer must disclose additional information about prior findings of non- responsibility
Expansion of the areas examined for vendor responsibility
• Offerer must agree to the inclusion of specific termination clause in contract
2007 Purchasing Forum – Aspects of the Procurement Lobbying Law
For the Business Community
• Understand the Government Entity’s policy on permissible Contacts and consider its impact on how conduct business
• Very significant consequences of impermissible Contacts – non-responsibility finding or debarment
OGS is obligated to maintain a listing of these determinations on the Internet
2007 Purchasing Forum – Aspects of the Procurement Lobbying Law
• Determine if there is a Restricted Period- Ask the right questions!
• Determine who is the Designated Contact for that procurement
• Follow the processes in the solicitation
• Direct communications and Contacts correctly
• Comply with requests for information
For the Business Community
2007 Purchasing Forum – Aspects of the Procurement Lobbying Law
• Understand the Governmental Entity’s policy on permissible Contacts before execute the affirmation
–Affirmation is a legal document that will be examined if there is an allegation of a possibly impermissible Contact
• Provide training to staff – especially on the Restricted Period and directing communications to the Designated Contacts
2007 Purchasing Forum – Aspects of the Procurement Lobbying Law
• Advisory Council on Procurement Lobbying has prepared guidance, model forms and language and other materials that are available at:
http://www.ogs.state.ny.us/aboutOgs/ regulations/defaultAdvisoryCouncil.html
• This web site and its materials can be used to educate staff and the business community regarding these legal requirements.
Where to Get More Information
2007 Purchasing Forum – Aspects of the Procurement Lobbying Law
Questions and Answers
?
2007 Purchasing Forum – Aspects of the Procurement Lobbying Law
Presenter’s Contact Information
Lisa K. Fox
Legal Services
New York State Office of General Services
(518) 474-5988
OGS Website:
www.ogs.state.ny.us