N.Y. State Finance Law § 139-j: Restrictions on contacts during the procurement process

* § 139-j. Restrictions on contacts during the procurement process. 1.

For the purposes of this section, the following terms will have the

following meanings unless specified otherwise.

a. "Governmental entity" shall mean: (1) any department, board,

bureau, commission, division, office, council, committee or officer of

the state, whether permanent or temporary; (2) each house of the state

legislature; (3) the unified court system; (4) any public authority,

public benefit corporation or commission created by or existing pursuant

to the public authorities law; (5) any public authority or public

benefit corporation, at least one of whose members is appointed by the

governor or who serves as a member by virtue of holding a civil office

of the state; (6) a municipal agency, as that term is defined in

paragraph (ii) of subdivision (s) of section one-c of the legislative

law; or (7) a subsidiary or affiliate of such a public authority.

b. "Article of procurement" shall mean a commodity, service,

technology, public work, construction, revenue contract, the purchase,

sale or lease of real property or an acquisition or granting of other

interest in real property, that is the subject of a governmental

procurement.

c. "Contacts" shall mean any oral, written or electronic communication

with a governmental entity under circumstances where a reasonable person

would infer that the communication was intended to influence the

governmental entity's conduct or decision regarding the governmental

procurement.

d. "Proposal" shall mean any bid, quotation, offer or response to a

governmental entity's solicitation of submissions relating to a

procurement.

e. "Governmental procurement" shall mean: (i) the public announcement,

public notice, or public communication to any potential vendor of a

determination of a need for a procurement, which shall include, but not

be limited to, the public notification of the specifications, bid

documents, request for proposals, or evaluation criteria for a

procurement contract, (ii) solicitation for a procurement contract,

(iii) evaluation of a procurement contract, (iv) award, approval, denial

or disapproval of a procurement contract, or (v) approval or denial of

an assignment, amendment (other than amendments that are authorized and

payable under the terms of the procurement contract as it was finally

awarded or approved by the comptroller, as applicable), renewal or

extension of a procurement contract, or any other material change in the

procurement contract resulting in a financial benefit to the offerer.

f. "Restricted period" shall mean the period of time commencing with

the earliest posting, on a governmental entity's website, in a newspaper

of general circulation, or in the procurement opportunities newsletter

in accordance with article four-C of the economic development law of

written notice, advertisement or solicitation of a request for proposal,

invitation for bids, or solicitation of proposals, or any other method

provided for by law or regulation for soliciting a response from

offerers intending to result in a procurement contract with a

governmental entity and ending with the final contract award and

approval by the governmental entity and, where applicable, the state

comptroller.

g. "Procurement contract" shall mean any contract or other agreement,

including an amendment, extension, renewal or change order to an

existing contract (other than amendments, extensions, renewals, or

change orders that are authorized and payable under the terms of the

contract as it was finally awarded or approved by the comptroller, as

applicable), for an article of procurement involving an estimated

annualized expenditure in excess of fifteen thousand dollars. Grants,

article eleven-B state finance law contracts, program contracts between

not-for-profit organizations, as defined in article eleven-B of this

chapter, and the unified court system, intergovernmental agreements,

railroad and utility force accounts, utility relocation project

agreements or orders, contracts governing organ transplants, contracts

allowing for state participation in trade shows, and eminent domain

transactions shall not be deemed procurement contracts.

h. "Offerer" shall mean the individual or entity, or any employee,

agent or consultant or person acting on behalf of such individual or

entity, that contacts a governmental entity about a governmental

procurement during the restricted period of such governmental

procurement whether or not the caller has a financial interest in the

outcome of the procurement; provided, however, that a governmental

agency or its employees that communicates with the procuring agency

regarding a governmental procurement in the exercise of its oversight

duties shall not be considered an offerer.

i. "Revenue contract" shall mean any written agreement between a

governmental entity, as that term is defined in subparagraphs one, four,

five, six or seven of paragraph a of this subdivision, and an offerer

whereby the governmental entity gives or grants a concession or a

franchise.

j. "Unified court system" shall, for the purposes of this section

only, mean the unified court system of the state of New York, or the

office of court administration, where appropriate, other than town and

village justice courts in jurisdictions with a population under fifty

thousand, when it acts solely in an administrative capacity to engage in

governmental procurements and shall not include the unified court system

or any court of the state judiciary when it acts to hear and decide

cases of original or appellate jurisdiction or otherwise acts in its

judicial, as opposed to administrative, capacity.

2. Every governmental entity that undertakes a governmental

procurement shall:

a. at the same time that a restricted period is imposed, designate,

with regard to each governmental procurement, a person or persons who

are knowledgeable about the procurement and who may be contacted by

offerers relative to the governmental procurement;

b. make any determinations on any governmental procurement: (1) in a

manner consistent with the principles provided for under subdivision two

of section one hundred sixty-three of this chapter, or, if the

governmental entity is a public benefit corporation, as that term is

defined in section sixty-six of the general construction law, and the

majority of the members consist of persons either appointed by the

governor or who serve as members by virtue of holding a civil office of

the state, the procurement guidelines adopted pursuant to section

twenty-eight hundred seventy-nine of the public authorities law, and (2)

free from any conduct that would be prohibited by subdivision five of

section seventy-three or section seventy-four of the public officers

law, or of other applicable ethics code provisions that are equivalent

to subdivision five of section seventy-three or section seventy-four of

the public officers law where the public officials that are involved in

the governmental procurement are not subject to subdivision five of

section seventy-three or section seventy-four of the public officers

law;

3. Each offerer that contacts a governmental entity about a

governmental procurement shall only make permissible contacts with

respect to the governmental procurement, which shall mean that the

offerer:

a. shall contact only the person or persons who may be contacted by

offerers as designated by the governmental entity pursuant to paragraph

a of subdivision two of this section relative to the governmental

procurement, except that the following contacts are exempted from the

provisions of this paragraph and do not need to be directed to a

designated contact pursuant to section one hundred thirty-nine-k of this

article:

(1) 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;

(2) the submission of written questions by a method 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;

(3) participation in a demonstration, conference or other means for

exchange of information in a setting open to all potential bidders

provided for in a request for proposals, invitation for bids, or any

other method for soliciting a response from offerers intending to result

in a procurement contract;

(4) 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;

(5) offerers who have been tentatively awarded a contract and are

engaged in communications with a governmental entity solely for the

purpose of negotiating the terms of the procurement contract after being

notified of tentative award;

(6) contacts between designated governmental entity staff of the

procuring governmental entity and an offerer to request the review of a

procurement contract award;

(7) (a) 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; or

(b) complaints of alleged improper conduct in a governmental

procurement to the attorney general, inspector general, district

attorney, or court of competent jurisdiction; or

(c) protests, appeals or complaints to the state comptroller's office

during the process of contract approval, where the state comptroller's

approval is required, provided that the state comptroller shall make a

record of such communications and any response thereto which shall be

entered into the procurement record pursuant to section one hundred

sixty-three of this chapter; or

(d) complaints of alleged improper conduct in a governmental

procurement conducted by a municipal agency or local legislative body to

the state comptroller's office;

(8) communications between offerers and governmental entities that

solely address the determination of responsibility by a governmental

entity of an offerer;

(9) Any communications relating to a governmental procurement made

under section one hundred sixty-two of the state finance law undertaken

by (i) the non-profit-making agencies appointed pursuant to paragraph e

of subdivision six of section one hundred sixty-two of the state finance

law by the commissioner of the office of children and family services,

the commission for the blind, or the commissioner of education, and (ii)

the qualified charitable non-profit-making agencies for the blind, and

qualified charitable non-profit-making agencies for other severely

disabled persons as identified in subdivision two of section one hundred

sixty-two of this chapter; provided, however, that any communications

which attempt to influence the issuance or terms of the specifications

that serve as the basis for bid documents, requests for proposals,

invitations for bids, or solicitations of proposals, or any other method

for soliciting a response from offerers intending to result in a

procurement contract with a state agency, the state legislature, the

unified court system, a municipal agency or local legislative body shall

not be exempt from the provisions of this paragraph;

(10) Complaints by minority-owned business enterprises or women-owned

business enterprises, certified as such by the division of minority and

women's business development, to the minority and women-owned business

enterprise statewide advocate concerning the procuring governmental

entity's failure to comply with the requirements of section three

hundred fifteen of the executive law;

(11) Communications between the minority and women-owned business

enterprise statewide advocate and the procuring governmental entity in

furtherance of an investigation of the minority and women-owned business

enterprise statewide advocate pursuant to section three hundred twelve-a

of the executive law.

provided, however, that nothing in this subdivision shall be construed

as recognizing or creating any new rights, duties or responsibilities or

abrogating any existing rights, duties or responsibilities of any

governmental entity as it pertains to implementation and enforcement of

article eleven of this chapter or any other provision of law dealing

with the governmental procurement process, and that nothing in this

subdivision shall be interpreted to limit the authority of a

governmental entity involved in a government procurement by exercise of

an oversight function from providing information to offerers regarding

the status of the review, oversight, or approval of a governmental

procurement that has been submitted to or is under review by that

governmental entity.

b. shall not attempt to influence the governmental procurement in a

manner that would result in a violation or an attempted violation of

subdivision five of section seventy-three or section seventy-four of the

public officers law, or of other applicable ethics code provisions that

are equivalent to subdivision five of section seventy-three or section

seventy-four of the public officers law where the public officials that

are involved in the governmental procurement are not subject to

subdivision five of section seventy-three or section seventy-four of the

public officers law;

4. Violations of paragraph a of subdivision three of this section

shall include any contacts during the restricted period of a

governmental procurement between the offerer and any member, officer or

employee of any governmental entity other than the entity conducting the

governmental procurement; 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 being conducted by a governmental entity other

than the state legislature, or a member of the state legislature or

legislative staff contacting a governmental entity about a governmental

procurement being conducted by a governmental entity other than the

state legislature, provided that the member of the state legislature or

legislative staff is acting in his or her official capacity.

5. Governmental entity staff may consult the model guidelines that may

be established by the advisory council on procurement lobbying pursuant

to section one-t of the legislative law in implementing this section.

6. a. Every governmental entity shall incorporate a summary of the

policy and prohibitions regarding permissible contacts during a

governmental procurement pursuant to subdivision three of this section,

and copies of rules and regulations and applicable governmental entity

guidelines and procedures regarding permissible contacts during a

governmental procurement pursuant to subdivision three of this section

into their solicitation of proposals or bid documents or specifications

for all procurement contracts.

b. Every governmental entity shall seek written affirmations from all

offerers as to the offerer's understanding of and agreement to comply

with the governmental entity's procedures relating to permissible

contacts during a governmental procurement pursuant to subdivision three

of this section. Such a written affirmation by an offerer shall be

deemed to apply to any amendments to a procurement submitted by the

governmental entity after an initial affirmation is received with an

initial bid.

7. Notwithstanding any law to the contrary, prior to conducting an

award of a procurement contract, a governmental entity conducting a

governmental procurement shall make a final determination of

responsibility of the proposed awardee in accordance with paragraph f of

subdivision nine of section one hundred sixty-three of this chapter, or,

if the governmental entity is a public benefit corporation, as that term

is defined in section sixty-six of the general construction law, and the

majority of the members consist of persons either appointed by the

governor or who serve as members by virtue of holding a civil office of

the state, according to the procurement guidelines adopted pursuant to

subparagraph (iii) of paragraph (b) of subdivision three of section

twenty-eight hundred seventy-nine of the public authorities law;

provided, however, that nothing in this subdivision shall be construed

as abrogating or diminishing any existing rights, duties or

responsibilities of any governmental entity as it pertains to

determinations of responsibility.

8. Any member, officer or employee of a governmental entity who

becomes aware that an offerer has violated the provisions of subdivision

three of this section with regard to permissible contacts during any

governmental procurement shall immediately notify the ethics officer,

inspector general, if any, or other official of the procuring

governmental entity responsible for reviewing or investigating such

matters. If an offerer violates the provisions of subdivision three of

this section with regard to permissible contacts at a governmental

entity other than the governmental entity conducting the governmental

procurement, the member, officer or employee who becomes aware of the

violation shall notify the ethics officer, inspector general, if any, or

other official of the governmental entity responsible for reviewing or

investigating such matters where that member, officer or employee works,

who shall in turn notify the ethics officer, inspector general, if any,

or other official of the procuring governmental entity responsible for

reviewing or investigating such matters at the procuring governmental

entity.

9. Every governmental entity shall establish a process for review by

its ethics officer, inspector general, if any, or other official

responsible for reviewing or investigating any allegations of violations

of the provisions of subdivision three of this section with regard to

permissible contacts on governmental procurements, and for the

imposition of sanctions if such violations have been found to exist.

10. a. Upon notification of any allegation of a violation of the

provisions of subdivision three of this section with regard to

permissible contacts on governmental procurements, the governmental

entity's ethics officer, inspector general, if any, or other official of

the procuring governmental entity responsible for reviewing or

investigating such matters shall immediately investigate such allegation

and, if sufficient cause exists to believe that such allegation is true,

shall give the offerer reasonable notice that an investigation is

ongoing and an opportunity to be heard in response to the allegation.

b. A finding that an offerer has knowingly and willfully violated the

provisions of subdivision three of this section shall result in a

determination of non-responsibility for such offerer, and such offerer

and its subsidiaries, and any related or successor entity with

substantially similar function, management, board of directors, officers

and shareholders (hereinafter, for the purposes of this paragraph

"offerer"), shall not be awarded the procurement contract, unless the

governmental entity finds that the award of the procurement contract to

the offerer is necessary to protect public property or public health or

safety, and that the offerer is the only source capable of supplying the

required article of procurement within the necessary timeframe,

provided, that the governmental entity shall include in the procurement

record a statement describing the basis for such a finding. Any

subsequent determination of non-responsibility due to violation of this

section within four years of a determination of non-responsibility due

to a violation of this section shall result in the offerer being

rendered ineligible to submit a proposal on or be awarded any

procurement contract for a period of four years from the date of the

second final determination. Every governmental entity shall ensure that

its solicitations of proposals for procurement contracts require

offerers to disclose findings of non-responsibility due to violations of

the provisions of subdivision three of this section within the previous

four years by any governmental entity. The failure of offerers to timely

disclose accurate and complete information or otherwise cooperate with

the governmental entity in administering this provision shall be

considered by the governmental entity in its determination of

responsibility; provided, further, that the governmental entity shall

not award a contract to an offerer who fails to timely disclose accurate

and complete information or otherwise cooperate with the governmental

entity in administering this provision unless the governmental entity

finds that the award of the procurement contract to the offerer is

necessary to protect public property or public health or safety, and

that the offerer is the only source capable of supplying the required

article of procurement within the necessary timeframe, provided, that

the governmental entity shall include in the procurement record a

statement describing the basis for such a finding. Upon a determination

of non-responsibility or debarment due to a violation of this section,

the governmental entity shall notify the office of general services,

which shall keep a list of all offerers who have been determined to be

nonresponsible bidders or debarred due to violations of this section;

the office of general services shall make publicly available such list

and shall publish such list on its web site.

c. If a violation of the provisions of subdivision three of this

section is found to have knowingly and willfully occurred, then the

ethics officer or inspector general, if any, or other official of the

procuring governmental entity responsible for reviewing or investigating

such matters shall report instances of employee violation of the

guidelines and procedures regarding implementation of subdivision two of

this section to the governmental entity's head.

11. Nothing in this section shall be deemed to prevent: (a) 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; or

(b) complaints of alleged improper conduct in a governmental

procurement to the attorney general, inspector general, district

attorney, or court of competent jurisdiction; or

(c) 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 responses thereto are made in writing and shall be entered in

the procurement record pursuant to section one hundred sixty-three of

this chapter; or

(d) complaints of alleged improper conduct in a governmental

procurement conducted by a municipal agency or local legislative body to

the state comptroller's office;

provided, however, that nothing in this subdivision shall be construed

as recognizing or creating any new rights, duties or responsibilities or

abrogating any existing rights, duties or responsibilities of any

governmental entity as it pertains to implementation and enforcement of

article eleven of this chapter or any other provision of law dealing

with the governmental procurement process.

* NB Repealed July 31, 2028