N.Y. State Finance Law § 139-k: Disclosure of contacts and responsibility of offerers

* § 139-k. Disclosure of contacts and responsibility of offerers. 1.

For 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) a 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) 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 a trade show, 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. Each governmental entity shall ensure that solicitation of

proposals or bid documents or specifications, or contract documents, as

applicable, for procurement contracts shall require offerers to disclose

findings of non-responsibility made within the previous four years by

any governmental entity where such prior finding of non-responsibility

was due to: (a) a violation of section one hundred thirty-nine-j of this

article, or (b) the intentional provision of false or incomplete

information to a governmental entity.

3. The failure of an offerer to timely disclose accurate or complete

information to a governmental entity pursuant to subdivision two of this

section shall be considered by such governmental entity in its

determination of the responsibility of such offerer. No procurement

contract shall be awarded to any such offerer, 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 subdivision, "offerer"), 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.

4. Upon any contact in the restricted period, the governmental entity

shall obtain the name, address, telephone number, place of principal

employment and occupation of the person or organization making the

contact and inquire and record whether the person or organization making

such contact was the offerer or was retained, employed or designated by

or on behalf of the offerer to appear before or contact the governmental

entity about the governmental procurement. All recorded contacts shall

be included in the procurement record for the procurement contract.

5. Any procurement contract award subject to the provisions of this

section and section one hundred thirty-nine-j of this article shall

contain a certification by the offerer that all information provided to

the procuring governmental entity with respect to this section is

complete, true and accurate, and each such procurement contract shall

contain a provision authorizing the governmental entity to terminate

such contract in the event such certification is found to be

intentionally false or intentionally incomplete. The governmental entity

shall include in the procurement record a statement describing the basis

for any action taken pursuant to such termination provision.

6. Any communications received by a governmental entity from members

of the state legislature, or legislative staffs, when acting in their

official capacity, shall not be considered to be a "contact" within the

meaning of this section and shall not be recorded by a governmental

entity pursuant to this section.

* NB Repealed July 31, 2028