N.Y. State Finance Law § 163: Purchasing services and commodities

* § 163. Purchasing services and commodities. 1. Definitions. For the

purposes of this section, the following terms shall have the following

meanings unless otherwise specified:

a. "Consortium" means like entities which agree to collectively

purchase commodities at a lower price than would be otherwise achievable

through purchase by such entities pursuant to other provisions of this

article.

b. "Emergency" means an urgent and unexpected requirement where health

and public safety or the conservation of public resources is at risk.

c. "Responsible" or "responsibility" means the financial ability,

legal capacity, integrity, and past performance of a business entity and

as such terms have been interpreted relative to public procurements.

d. "Responsive" means a bidder or other offerer meeting the minimum

specifications or requirements as prescribed in a solicitation for

commodities or services by a state agency.

e. "Specification" or "requirement" means any description of the

physical or functional characteristics or the nature of a commodity or

construction item, any description of the work to be performed, the

service or products to be provided, the necessary qualifications of the

offerer,the capacity and capability of the offerer to successfully carry

out the proposed contract, or the process for achieving specific results

and/or anticipated outcomes or any other requirement necessary to

perform the work. It may include a description of any obligatory

testing, inspection or preparation for delivery and use, and may include

federally required provisions and conditions where the eligibility for

federal funds is conditioned upon the inclusion of such federally

required provisions and conditions. Specifications shall be designed to

enhance competition, ensuring the commodities or services of any offerer

are not given preference except where required by this article.

f. "Procurement record" means documentation of the decisions made and

the approach taken in the procurement process.

g. "Sole source" means a procurement in which only one offerer is

capable of supplying the required commodities or services.

h. "Single source" means a procurement in which although two or more

offerers can supply the required commodities or services, the

commissioner or state agency, upon written findings setting forth the

material and substantial reasons therefor, may award a contract or

non-technical amendment to a contract to one offerer over the other. The

commissioner or state agency shall document in the procurement record

the circumstances leading to the selection of the vendor, including the

alternatives considered, the rationale for selecting the specific vendor

and the basis upon which it determined the cost was reasonable.

i. "Lowest price" means the basis for awarding contracts for

commodities among responsive and responsible offerers.

j. "Best value" means the basis for awarding contracts for services to

the offerer which optimizes quality, cost and efficiency, among

responsive and responsible offerers. Such basis shall reflect, wherever

possible, objective and quantifiable analysis. Such basis may also

identify a quantitative factor for offerers that are small businesses,

certified minority- or women-owned business enterprises as defined in

subdivisions one, seven, fifteen and twenty of section three hundred ten

of the executive law or service-disabled veteran-owned business

enterprises as defined in subdivision one of section forty of the

veterans' services law to be used in evaluation of offers for awarding

of contracts for services.

k. "Authorized user" or "non-state agency purchaser" means (i) any

officer, body or agency of the state or of a political subdivision or a

district therein, or fire company or volunteer ambulance service as such

are defined in section one hundred of the general municipal law, to make

purchases of commodities, services and technology through the office of

general services' centralized contracts, pursuant to the provisions of

section one hundred four of the general municipal law; (ii) any county

extension service association as authorized under subdivision eight of

section two hundred twenty-four of the county law; (iii) any association

or other entity as specified in and in accordance with section one

hundred nine-a of the general municipal law; (iv) any association,

consortium or group of privately owned or municipal, federal or state

owned or operated hospitals, medical schools, other health related

facilities or voluntary ambulance services, which have entered into a

contract and made mutual arrangements for the joint purchase of

commodities, services and technology pursuant to section twenty-eight

hundred three-a of the public health law; (v) any institution for the

instruction of the deaf or of the blind listed in section forty-two

hundred one of the education law; (vi) any qualified non-profit-making

agency for the blind approved by the commissioner of the office of

children and family services or the office of temporary and disability

assistance; (vii) any qualified charitable non-profit-making agency for

the severely disabled approved by the commissioner of education; (viii)

any hospital or residential health care facility as defined in section

twenty-eight hundred one of the public health law; (ix) any private

not-for-profit mental hygiene facility as defined in section 1.03 of the

mental hygiene law; (x) any public authority or public benefit

corporation of the state, including the port authority of New York and

New Jersey and the interstate environmental commission; (xi) any public

library, association library, library system, cooperative library

system, the New York Library Association, and the New York State

Association of Library Boards or any other library except those which

are operated by for profit entities; (xii) any other association or

entity as specified in state law, to make purchases of commodities,

services and technology through the office of general services'

centralized contracts. Such qualified non-profit-making agencies for the

blind and severely disabled may make purchases from the correctional

industries program of the department of corrections and community

supervision subject to rules pursuant to the correction law.

2. Operating principles. The objective of state procurement is to

facilitate each state agency's mission while protecting the interests of

the state and its taxpayers and promoting fairness in contracting with

the business community. The state's procurement process shall be guided

by the following principles:

a. To promote purchasing from responsive and responsible offerers,

including small businesses.

b. To be based on clearly articulated procedures which require a clear

statement of product specifications, requirements or work to be

performed; a documentable process for soliciting bids, proposals or

other offers; a balanced and fair method, established in advance of the

receipt of offers, for evaluating offers and awarding contracts;

contract terms and conditions that protect the state's interests and

promote fairness in contracting with the business community; and a

regular monitoring of vendor performance.

c. To encourage the investment of the private and not-for-profit

sectors in New York state by making reasonable efforts to ensure that

offerers are apprised of procurement opportunities; by specifying the

elements of a responsive bid and disclosing the process for awarding

contracts including, if applicable, the relative importance and/or

weight of cost and the overall technical criterion for evaluating

offers; and by ensuring the procurement is conducted accordingly.

d. To ensure that contracts are awarded consistent with the best

interests of the state. e. To ensure that officers and employees of

state entities do not benefit financially or otherwise from the award of

state contracts.

f. To ensure regular and critical review of the efficiency, integrity

and effectiveness of the overall process.

3. General provisions for purchasing commodities.

a. State agency procurement practices for commodities shall

incorporate the following:

(i) The purchase of commodities by state agencies including the office

of general services shall be conducted in a manner which accords first

priority to preferred sources in accordance with the provisions of this

article, second priority to centralized contracts, third priority to

agency or multi-agency established contracts and fourth priority to

other means of contracting.

(ii) Commodities contracts shall be awarded on the basis of lowest

price to a responsive and responsible offerer; or, in the case of

multiple awards, in accordance with paragraph c of subdivision ten of

this section.

(iii) The commissioner shall be responsible for the standardization

and centralized purchase of commodities required by state agencies in a

manner which maximizes the purchasing value of public funds.

(iv) The commissioner is authorized to permit purchases of commodities

and services for authorized users through the office of general

services' centralized contracts. Such authorized users so empowered

shall accept sole responsibility for any payment due with respect to

such purchases.

(v) Consistent with guidelines issued by the state procurement

council, state agencies may competitively purchase commodities procured

in accordance with this article in lieu of using centralized contracts

when the resultant price is less than the centralized contract price.

(vi) When justified by price, state agencies, and hospitals and

facilities managed and controlled by state agencies eligible pursuant to

section twenty-eight hundred three-a of the public health law, shall be

eligible to make purchases pursuant to guidelines issued by the state

procurement council from a consortium or comparable entity in lieu of

using centralized contracts for commodities.

(vii) The commissioner is authorized to enter into contracts pursuant

to the provisions of section twenty-eight hundred three-a of the public

health law.

b. The commissioner shall:

(i) determine, in cooperation with the state procurement council and

state agencies, the identity, form, function and utility of those

commodities which shall be made available on or through centralized

contracts. Criteria may include, but need not be limited to, the

availability of a volume discount, prior use of the commodity among

state agencies and the relative cost of establishing the contract, its

anticipated use and expected actual savings for the state. The

commissioner may also act as a broker for state agencies to procure

commodities.

(ii) determine the number and scope of centralized contracts for

commodities to be let during any period, including the letting of

multiple contracts to ensure the sufficient variety and uninterrupted

availability of commodities for state agency use.

(iii) maintain lists of firms which produce or manufacture or offer

for sale commodities in the form, function and utility required by state

agencies. The commissioner shall ensure such lists are updated

regularly. With the assistance of the department of economic development

and other state agencies, beginning on July first, two thousand one,

ensure the availability to all authorized purchasers of a centralized

list which identifies commodities offered by New York state's small

businesses and a centralized list which identifies commodities and

services offered by businesses certified pursuant to article fifteen-A

of the executive law. Such lists shall be updated semiannually and

designed to enable effective identification of New York state's small

businesses and businesses certified pursuant to article fifteen-A of the

executive law.

(iv) ensure the specification of commodities for centralized contracts

reflect the form, function and utility required by state agencies and

conform, wherever possible, to industry standards. Where necessary, the

commissioner may develop specifications for commodities. When not

otherwise forthcoming from a particular firm or industry, the

commissioner may request information from businesses for the purpose of

establishing or improving a specification. The office of general

services may assist agencies in developing specifications for

agency-procured commodity contracts when industry standards are not

available or appropriate. In all cases, specifications shall be

consistent with the requirements of state agencies.

(v) With the assistance of the department of economic development and

other state agencies, provide a training program once per year, in each

economic development region, as established in article eleven of the

economic development law, beginning January first, two thousand one, for

those businesses certified pursuant to article fifteen-A of the

executive law and those interested in becoming certified. Such training

program shall provide assistance with respect to participation as a

vendor in the procurement process, as established in this article, and

including without limitation educating minority and women contractors

about surety bonding requirements on state contracts, and identifying

resources available to such contractors in obtaining their first bond

and in increasing their bonding capacity, including but not limited to

the federal small business administration bond guarantee program.

(vi) With the assistance of the department of economic development and

other state agencies, provide training once per year for staff of each

state agency's minority and women business development office, or if an

agency does not have such an office, then an agency's representative.

Such training program shall consist of a meeting with such agencies'

representatives to inform each agency of how to encourage procurement of

commodities and services from businesses certified pursuant to article

fifteen-A of the executive law.

(vii) assist the department of agriculture and markets and the

department of economic development in providing a training program once

per year, in each economic development region, established in article

eleven of the economic development law, to encourage and increase

participation in the procurement process, pursuant to this article, by

small businesses, as defined in section one hundred thirty-one of the

economic development law, including farms, selling food or food

products, animal or plant fiber products grown, produced, harvested, or

processed in New York state or textile products manufactured from animal

or plant fiber grown or produced predominantly in New York state and

assist such businesses in identifying such food, food products, or

animal or plant fiber products and textile products which may help to

meet state agencies' needs.

(viii) maintain a list of contractors which produce or manufacture or

offer for sale environmentally-sensitive cleaning and maintenance

products in the form, function and utility generally used by elementary

and secondary schools in accordance with specifications or guidelines

promulgated pursuant to section four hundred nine-i of the education

law.

(ix) review and consider prior to issuance of bid solicitations the

term of the proposed contract based on factors, including, but not

limited to; (A) the nature of the commodity, (B) the complexity of the

procurement, (C) the identity and type of purchasers, (D) the

suitability of the contract for adding additional contractors during the

term, and (E) the estimated contract value. This determination shall be

documented in the procurement record.

(x) reasonably consider aggregate amount of public sales by potential

vendors.

(xi) review and consider the feasibility of creating regional

contracts for commodities being procured by the state.

(xii) maintain a procurement record for each centralized contract

procurement identifying, with supporting documentation, decisions made

by the commissioner during the procurement process. The procurement

record shall include, but not be limited to, each contract amendment,

and the justification for each.

(xiii) maintain a list of New York-based firms which produce or

manufacture or offer for sale animal or plant fiber textile products

containing animal or plant fiber grown or produced predominantly in New

York state in the form, function and utility generally purchased for use

by state agencies.

c. When commodities are not available in the form, function and

utility required by state agencies through preferred sources or

centralized contracts, a state agency may, independently or in

conjunction with other state agencies, procure commodities in accordance

with the provisions of this section. State agencies may maintain

listings of firms, including those certified pursuant to article

fifteen-A of the executive law, or may use the office of general

services' listing of firms and may request assistance from the office of

general services. It shall be the responsibility of state agencies to

periodically advise the office of general services of those

agency-procured commodities which, due to the frequency of purchase or

related factors, should be made available through centralized contracts.

d. The commissioner may make, or cause to be made by a duly authorized

representative, any investigation which he or she may deem proper for

acquiring the necessary information from a state agency, except state

agencies where the head of the agency is not appointed by the governor,

including but not limited to the state education department, the

department of law, and the department of audit and control, for the

exercise of his or her powers and duties under this section. For such

purposes the commissioner may subpoena and compel the attendance of

witnesses before him or her, or an authorized representative, and may

compel the production of books, papers, records or documents. The

commissioner or a duly authorized representative may take and hear

proofs and testimony and, for that purpose, the commissioner or the duly

authorized representative may administer oaths. In addition, the

commissioner or the duly authorized representative:

(i) Shall have access at all reasonable times to offices of state

agencies;

(ii) May examine all books, papers, records and documents in any such

state agency as pertain directly to the purchase, control or

distribution of commodities; and

(iii) May require any state agency to furnish such data, information

or statement as may be necessary.

4. General provisions for purchasing services. State agency

procurement practices for services shall incorporate the following:

a. The purchase of services by state agencies including the office of

general services shall be conducted in a manner which accords first

priority to preferred sources in accordance with the provisions of this

article when the services required are available in the form, function

and utility required by state agencies through a preferred source.

b. (i) Centralized contracts for services may be procured by the

office of general services at the request of state agencies or as

determined by the commissioner. The purchase of services by state

agencies, except state agencies where the head of the agency is not

appointed by the governor, including but not limited to the state

education department, the department of law, and the department of audit

and control, shall be conducted in a manner that accords second priority

to centralized contracts meeting form, function and utility required by

said agency, third priority to agency or multi-agency established

contracts and fourth priority to other means of contracting.

(ii) The commissioner shall:

(A) review and consider prior to issuance of bid solicitations the

term of the proposed contract based on factors, including, but not

limited to, (a) the nature of the service, (b) the complexity of the

procurement, (c) the identity and type of purchasers, (d) the

suitability of the contract for adding additional contractors during the

term, and (e) the estimated contract value. This determination shall be

documented in the procurement record.

(B) reasonably consider the aggregate amount of public sales by

potential vendors.

(C) review and consider the feasibility of creating regional contracts

for services being procured by the state.

(D) maintain a procurement record for each centralized contract

procurement identifying with supporting documentation, decisions made by

the commissioner during the procurement process. The procurement records

shall include, but not be limited to, each contract amendment, and the

justification for each.

c. When services are not available from preferred sources consistent

with the provisions of this article in the form, function or utility

required by state agencies, state agencies may procure services

independently or in conjunction with other state agencies in accordance

with the provisions of this section.

d. Service contracts shall be awarded on the basis of best value to a

responsive and responsible offerer; or, in the case of multiple awards,

in accordance with paragraph c of subdivision ten of this section.

e. The commissioner is authorized to permit purchases of services for

authorized users through the office of general services' centralized

contracts. Such authorized users so empowered shall accept sole

responsibility for any payment due with respect to such purchases.

g. All state agencies shall require all contractors, including

sub-contractors, that provide services for state purposes pursuant to a

contract, to submit an annual employment report for each contract for

services that includes for each employment category within the contract

the number of employees employed to provide services under the contract,

the number of hours they work and their total compensation under the

contract. Employment reports shall be submitted to the agency that

awarded the contract, the department of civil service and the department

of audit and control and shall be available for public inspection and

copying pursuant to section eighty-seven of the public officers law

provided that in disclosing such reports pursuant to the public officers

law, the agency making the disclosure shall redact the name or social

security number of any individual employee that is included in such

document.

5. Process for conducting state procurements. The process for

conducting state procurements for services and commodities shall be as

follows:

Determination of need. State agencies shall be responsible for

determining the need for a given service or commodity:

(i) For commodities, upon such determination of need, state agencies

shall ascertain whether the commodity is available in the form, function

and utility consistent with their needs from preferred sources and if

so, shall purchase said commodity from a preferred source in accordance

with the provisions of this article. If not so available, state agencies

shall determine whether the commodity is available in the form, function

and utility consistent with their needs on a centralized contract and if

so, except as provided in subparagraph (v) of paragraph a of subdivision

three of this section, shall purchase said commodity using the

centralized contract. If a commodity is not available in the form,

function and utility consistent with the needs of the state agency from

a preferred source or a centralized contract or as provided for in

subparagraph (v) of paragraph a of subdivision three of this section,

the state agency may procure the commodity independently or in

conjunction with another state agency in accordance with paragraph c of

subdivision three of this section.

(ii) For services, upon such determination of need, state agencies

shall ascertain whether the service is available in the form, function

and utility consistent with their needs from preferred sources and, if

so, shall purchase said service through the preferred source in

accordance with the provisions of this article. If not so available,

state agencies the heads of which are appointed by the governor:

(A) Shall purchase the service if it is available in the form,

function and utility consistent with their needs using an established

centralized contract procured by either the office of general services

or another state agency;

(B) May request that the office of general services procure such a

service, particularly with respect to those services having utility

and/or benefit to more than one state agency; or

(C) May procure the service independently or in conjunction with

another state agency.

6. Discretionary buying thresholds. Pursuant to guidelines established

by the state procurement council:

(a) the commissioner may purchase services and commodities for the

office of general services or its customer agencies serviced by the

office of general services business services center in an amount not

exceeding one hundred fifty thousand dollars without a formal

competitive process;

(b) state agencies may purchase services and commodities in an amount

not exceeding one hundred fifty thousand dollars without a formal

competitive process;

(c) state agencies may purchase commodities or services from small

business concerns, or commodities or technology that are recycled or

remanufactured in an amount not exceeding five hundred thousand dollars

without a formal competitive process;

(d) state agencies may purchase commodities or services from those

certified pursuant to article fifteen-A of the executive law and article

three of the veterans' services law in an amount not exceeding one

million five hundred thousand dollars without a formal competitive

process; and

(e) state agencies may purchase commodities that are food, including

milk and milk products, or animal or plant fiber products, grown,

produced, harvested, or processed in New York state or textile products

manufactured from animal or plant fiber grown or produced predominantly

in New York state in an amount not to exceed two hundred thousand

dollars without a formal competitive process.

6-a. Discretionary purchases. Notwithstanding the provisions of

subdivision two of section one hundred twelve of this chapter relating

to the dollar threshold requiring the state comptroller's approval of

contracts, the commissioner of general services may make purchases or

enter into contracts for the acquisition of commodities and services for

the office of general services or its customer agencies serviced by the

office of general services business services center having a value not

exceeding one hundred fifty thousand dollars without prior approval by

any other state officer or agency in accordance with procedures and

requirements set forth in this article.

6-b. Determination of threshold amount. For determination of threshold

amount purposes of determining whether a purchase is within the

discretionary thresholds established by subdivision six of this section,

the commissioner and state agencies shall consider the reasonably

expected aggregate amount of all purchases of the same commodities or

services to be made within the twelve-month period commencing on the

date of purchase. Purchases of services or commodities shall not be

artificially divided for the purpose of satisfying the discretionary

buying thresholds established by subdivision six of this section. A

change to or a renewal of a discretionary purchase shall not be

permitted if the change or renewal would bring the reasonably expected

aggregate amount of all purchases of the same commodities or services

from the same provider within the twelve-month period commencing on the

date of the first purchase to an amount greater than the discretionary

buying threshold amount.

6-c. Pursuant to the authority provided in subdivision six of this

section, for the purchase of commodities that are food, including milk

and milk products, or animal or plant fiber products, grown, produced,

harvested, or processed in New York state or textile products

manufactured from animal or plant fiber grown or produced predominantly

in New York state, where such commodities exceed one hundred fifty

thousand dollars in value, state agencies must advertise the

discretionary purchase on the state agency website for a reasonable

period of time and make the discretionary purchase based on the lowest

price that meets the state agency's form, function and utility.

6-d. Pursuant to the authority provided in subdivision six of this

section, state agencies shall report annually on a fiscal year basis by

July first of the ensuing year to the director of the division of

minority and women-owned business development the total number and total

value of contracts awarded to businesses certified pursuant to article

fifteen-A of the executive law, and with respect to contracts awarded to

businesses certified pursuant to article three of the veterans' services

law such information shall be reported to the division of

service-disabled veteran-owned business enterprises for inclusion in

their respective annual reports. Additionally, such report from state

agencies shall clearly distinguish contracts entered into using the

authority provided under paragraph (d) of subdivision six of this

section, including the number of contracts, the percentage of the total

dollar value of contracts awarded to minority and women-owned business

entities and service disabled and veteran-owned business entities

relative to the previous fiscal year's total awards for all commodities

and services and services purchases, a comparison of the percentage of

procurements awarded pursuant to such paragraph during the fiscal year

relative to the percentage of such purchases awarded in the previous

fiscal year, a comparison of the participation rate and total dollar

value of awards to minority and women-owned business enterprises and

service-disabled veteran-owned businesses using the expanded authority

under such paragraph relative to such participation rate and total

dollar value of awards pursuant to the previous authorization levels.

7. Method of procurement. Consistent with the requirements of

subdivisions three and four of this section, state agencies shall select

among permissible methods of procurement including, but not limited to,

an invitation for bid, request for proposals or other means of

solicitation pursuant to guidelines issued by the state procurement

council. State agencies may accept bids electronically including

submission of the statement of non-collusion required by section one

hundred thirty-nine-d of this chapter, and the statement of

certification required by section one hundred thirty-nine-l and section

one hundred thirty-nine-m of this chapter. Except where otherwise

provided by law, procurements shall be competitive, and state agencies

shall conduct formal competitive procurements to the maximum extent

practicable. State agencies shall document the determination of the

method of procurement and the basis of award in the procurement record.

Where the basis for award is the best value offer, the state agency

shall document, in the procurement record and in advance of the initial

receipt of offers, the determination of the evaluation criteria, which

whenever possible, shall be quantifiable, and the process to be used in

the determination of best value and the manner in which the evaluation

process and selection shall be conducted.

7-a. Notwithstanding the electronic bid provisions set forth in

subdivision seven of this section, starting April first, two thousand

twenty-three, and ending March thirty-first, two thousand twenty-seven,

state agencies may require electronic submission as the sole method for

the submission of bids for commodity, service and technology contracts,

including submission of the statement of non-collusion required by

section one hundred thirty-nine-d of this chapter, and the statement of

certification required by section one hundred thirty-nine-l and section

one hundred thirty-nine-m of this chapter, and may require electronic

signatures on all documents required for submission of a bid, any

resulting contracts, and required submissions during the term of any

contract. Prior to requiring the electronic submission of bids, the

agency shall make a determination, which shall be documented in the

procurement record, that electronic submission affords a fair and equal

opportunity for offerers to submit responsive offers, and that the

electronic signature complies with the provisions of article three of

the state technology law.

7-b. On or before December first, two thousand twenty-six, the

commissioner of the office of general services shall submit to the

speaker of the assembly and the temporary president of the senate and

post on the website of the office of general services a report

including, but not limited to, the following information:

(a) which state agencies required electronic submission as the sole

method by which bids could be submitted for the period from April first,

two thousand twenty-three through March thirty-first, two thousand

twenty-six;

(b) the number and types of contracts for which such state agencies

required electronic submission as the sole method by which bids could be

submitted for the period from April first, two thousand twenty-three

through March thirty-first, two thousand twenty-six;

(c) the estimated savings to the state as a result of such state

agencies requiring electronic submission as the sole method by which

bids could be submitted in response to a solicitation and the basis on

which the estimate is made;

(d) to the extent practicable, the size, industry, minority- and

women-owned business enterprise composition, service-disabled

veteran-owned business enterprise composition, and geographic

distribution of those vendors that submitted bids in response to

solicitations from state agencies where electronic submission was the

sole method by which bids could be submitted for the period from April

first, two thousand twenty-three through March thirty-first, two

thousand twenty-six;

(e) to the extent practicable, the size, industry, minority- and

women-owned business enterprise composition, service-disabled

veteran-owned business enterprise composition, and geographic

distribution of those vendors that submitted non-electronic bids in

response to solicitations from state agencies where electronic

submission was accepted but not required for the period from April

first, two thousand twenty-three through March thirty-first, two

thousand twenty-six; and

(f) recommendations for the future use of electronic bidding as a

permissible method of procurement.

8. Public notice. All procurements by state agencies, including,

without limitation, the state university of New York and the city

university of New York, in excess of one hundred fifty thousand dollars

shall be advertised in the state's procurement opportunities newsletter

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

9. Soliciting and accepting offers. For purchases from sources other

than preferred sources and for purchases in excess of the discretionary

buying threshold established in subdivision six of this section:

a. The commissioner or a state agency shall select a formal

competitive procurement process in accordance with guidelines

established by the state procurement council and document its

determination in the procurement record. The process shall include, but

is not limited to, a clear statement of need; a description of the

required specifications governing performance and related factors; a

reasonable process for ensuring a competitive field; a fair and equal

opportunity for offerers to submit responsive offers; and a balanced and

fair method of award. Where the basis for the award is best value,

documentation in the procurement record shall, where practicable,

include a quantification of the application of the criteria to the

rating of proposals and the evaluation results, or, where not

practicable, such other justification which demonstrates that best value

will be achieved.

b. The solicitation shall prescribe the minimum specifications or

requirements that must be met in order to be considered responsive and

shall describe and disclose the general manner in which the evaluation

and selection shall be conducted. Where appropriate, the solicitation

shall identify the relative importance and/or weight of cost and the

overall technical criterion to be considered by a state agency in its

determination of best value.

c. Where provided in the solicitation, state agencies may require

clarification from offerers for purposes of assuring a full

understanding of responsiveness to the solicitation requirements. Where

provided for in the solicitation, revisions may be permitted from all

offerers determined to be susceptible of being selected for contract

award, prior to award. Offerers shall be accorded fair and equal

treatment with respect to their opportunity for discussion and revision

of offers. A state agency shall, upon request, provide a debriefing to

any unsuccessful offerer that responded to a request for proposal or an

invitation for bids, regarding the reasons that the proposal or bid

submitted by the unsuccessful offerer was not selected for an award. The

opportunity for an unsuccessful offerer to seek a debriefing shall be

stated in the solicitation.

(i) A debriefing shall be requested by the unsuccessful offerer within

fifteen calendar days of release by the state agency of a notice in

writing or electronically that the offerer's offer is unsuccessful.

(ii) Such notice shall be provided to all unsuccessful offerers by the

state agency for the specific procurement.

(iii) The state agency, upon a request made within fifteen days of

release of the written or electronic notice from the unsuccessful

offerer for a debriefing, shall schedule the debriefing to occur within

a reasonable time of such request. Debriefings shall be conducted by the

state agency with the unsuccessful offerer in-person, provided, however,

the parties may mutually agree to utilize other means such as, but not

limited to, by telephone, video-conferencing or other types of

electronic communications. State agency personnel participating in the

debriefing discussion shall have been involved with and knowledgeable

about the procurement and the evaluation and selection of the successful

offerer or offerers.

(iv) Such debriefing shall include, but need not be limited to: (A)

the reasons that the proposal, bid or offer submitted by the

unsuccessful offerer was not selected for award; (B) the qualitative and

quantitative analysis employed by the agency in assessing the relative

merits of the proposals, bids or offers; (C) the application of the

selection criteria to the unsuccessful offerer's proposal; and (D) when

the debriefing is held after the final award, the reasons for the

selection of the winning proposal, bid or offer. The debriefing shall

also provide, to the extent practicable, general advice and guidance to

the unsuccessful offerer concerning potential ways that their future

proposals, bids or offers could be more responsive.

d. All offers may be rejected. Where provided in the solicitation,

separable portions of offers may be rejected.

e. Every offer shall be firm and not revocable for a period of sixty

days from the bid opening, or such other period of time specified in the

solicitation to the extent not inconsistent with section 2-205 of the

uniform commercial code. Subsequent to such sixty day or other specified

period, any offer is subject to withdrawal communicated in a writing

signed by the offeror.

f. Prior to making an award of contract, each state agency shall make

a determination of responsibility of the proposed contractor which shall

supplement, as appropriate, but not supersede the determination of

responsibility that may be required pursuant to section one hundred

thirty-nine-k of this chapter.

g. A procurement record shall be maintained for each procurement

identifying, with supporting documentation, decisions made by the

commissioner or state agency during the procurement process. The

procurement record shall include, but not be limited to each contract

amendment and the justification for each.

10. Letting of contracts. Contracts for commodities shall be awarded

on the basis of lowest price to a responsive and responsible offerer.

Contracts for services shall be awarded on the basis of best value from

a responsive and responsible offerer. Multiple awards for services and

commodities shall be conducted in accordance with paragraph c of this

subdivision.

a. Selection and award shall be a written determination in the

procurement record made by the commissioner or a state agency in a

manner consistent with the provisions of the solicitation. In the event

two offers are found to be substantially equivalent, price shall be the

basis for determining the award recipient or, when price and other

factors are found to be substantially equivalent, the determination of

the commissioner or agency head to award a contract to one or more of

such bidders shall be final. The basis for determining the award shall

be documented in the procurement record.

b. (i) Single or sole source procurements for services or commodities,

or procurements made to meet emergencies arising from unforeseen causes,

may be made without a formal competitive process and shall only be made

under unusual circumstances and shall include a determination by the

commissioner or the state agency that the specifications or requirements

for said purchase have been designed in a fair and equitable manner. The

purchasing agency shall document in the procurement record, subject to

review by the state comptroller, the bases for a determination to

purchase from a single source or sole source, or the nature of the

emergency giving rise to the procurement.

(ii) State agencies shall minimize the use of single source

procurements and shall use single source procurements only when a formal

competitive process is not feasible. State agencies shall document in

the procurement record the circumstances and the material and

substantial reasons why a formal competitive process is not feasible.

The term of a single source procurement contract shall be limited to the

minimum period of time necessary to ameliorate the circumstances which

created the material and substantial reasons for the single source

award. Not later than thirty days after the contract award, state

agencies shall, for all single source procurement contracts, make

available for public inspection on the agency website, a summary of the

circumstances and material and substantial reasons why a competitive

procurement is not feasible. Any information which the contracting

agency is otherwise prohibited by law from disclosing pursuant to

sections eighty-seven and eighty-nine of the public officers law, shall

be redacted from the documentation published on the agency website.

c. The commissioner or state agency may elect to award a contract to

one or more responsive and responsible offerers provided, however, that

the basis for the selection among multiple contracts at the time of

purchase shall be the most practical and economical alternative and

shall be in the best interests of the state, and further provided that

the requirements set forth herein shall not preclude the commissioner

from establishing multiple award contracts for reasons including

increased opportunities for small businesses to participate in state

contracts.

d. It shall be in the discretion of the commissioner or state agency

to require a bond or other guarantee of performance, and to approve the

amount, form and sufficiency thereof.

e. The commissioner may authorize purchases required by state agencies

or other authorized purchasers by letting a contract pursuant to a

written agreement, or by approving the use of a contract let by any

department, agency or instrumentality of the United States government

and/or any department, agency, office, political subdivision or

instrumentality of any state or states. A state agency purchaser shall

document in the procurement record its rationale for the use of a

contract let by any department, agency or instrumentality of the United

States government or any department, agency, office, political

subdivision or instrumentality of any other state or states. Such

rationale shall include, but need not be limited to, a determination of

need, a consideration of the procurement method by which the contract

was awarded, an analysis of alternative procurement sources including an

explanation why a competitive procurement or the use of a centralized

contract let by the commissioner is not in the best interest of the

state, and the reasonableness of cost.

f. The commissioner is authorized to let centralized contracts, in

accordance with the procedures of this section, for joint purchasing by

New York state and any department, agency or instrumentality of the

United States government and/or any state including the political

subdivisions thereof; provided however that any entity incurring a

liability under such contract shall be responsible for discharging said

liability.

11. Reasonableness of results. It shall be the responsibility of the

head of each state agency to periodically sample the results of the

procurement process to test for reasonableness; to ensure that the

results withstand public scrutiny and that the quality and the price of

the purchase makes sense; and to ensure that purchasing is conducted in

a manner consistent with the best interests of the state.

12. Review by the office of the state comptroller. Review by the

office of the state comptroller shall be in accordance with section one

hundred twelve of this chapter. If the contracting agency has not

complied with one or more provisions of this article, the state

comptroller may approve the awarded contract if:

a. the contracting agency determines that the noncompliance was a

non-material deviation from one or more provisions of this article. For

the purposes of this subdivision "non-material deviation" shall mean

that such noncompliance did not prejudice or favor any vendor or

potential vendor, such noncompliance did not substantially affect the

fairness of the competitive process, and that a new procurement would

not be in the best interest of the state. Such determination by the

contracting agency and the state comptroller shall be documented in the

procurement record; and

b. the state comptroller concurs in such determination.

13. Technological procurement improvements. The state procurement

council may request that the office of general services provide, or

recommend to the state comptroller to provide for the utilization of

technological advances and efficiencies in the procurement process

including, but not limited to, electronic ordering and payment,

procurement cards and similar improvements.

14. Reporting by the state comptroller. To support transparency in the

state's procurement process and prudent procurement management,

oversight and policy-making, the state comptroller shall submit a report

to the state procurement council, the governor, the commissioner of the

office of general services, the director of the budget, and the

legislative fiscal committees containing data related to state agency

contracts. Such report shall be made annually, on a fiscal year basis by

the first of July of the next succeeding year.

a. For state agency contracts, such report shall include:

(i) a list of all active contracts as of the end of the fiscal year;

(ii) a list of all contracts reviewed by the office of the state

comptroller during the fiscal year;

(iii) a list of contract award protests reviewed by the office of the

state comptroller and the resolution thereof; and

(iv) for consulting contracts subject to approval of the state

comptroller, a report of planned and actual employment under each

contract.

b. The lists required pursuant to subparagraphs (i) and (ii) of

paragraph a of this subdivision shall include, to the extent reasonably

available, the following information related to each contract:

(i) the state agency letting the contract;

(ii) the state agency for which the contract is let, if different;

(iii) whether an agency contract or centralized contract;

(iv) vendor name and address;

(v) a description of the contract. For contracts let under section

nine of the public buildings law, the description shall denote the scope

of work of the contract and the nature of the emergency for which it was

let;

(vi) contract start and end dates;

(vii) the dollar value of the contract;

(viii) for contracts subject to approval by the state comptroller,

whether approved or non-approved, the date of such

approval/non-approval, and if non-approved, the reason or reasons

therefor;

(ix) life to date and fiscal year expenditures against the contract

and by which agencies;

(x) major contract category, including, but not limited to,

consultant, construction, equipment, grants, leases, land claim,

miscellaneous services, printing, repayment agreements, revenue

agreements, intergovernmental agreements, and commodities;

(xi) source selection method, including "lowest price", "best value",

sole source, single source, negotiated and/or emergency procurement;

(xii) number of bids/proposals received by the contracting agency; and

(xiii) subtotals as deemed applicable.

c. The report required pursuant to subparagraph (iv) of paragraph a of

this subdivision shall include:

(i) information required to be reported by the contractor annually by

the employment category within the contract, including the planned

number of employees to provide services under the contract, the planned

number of hours to be worked under the contract, and the total

compensation planned under the contract; and

(ii) information required to be reported by the contractor annually

pursuant to paragraph g of subdivision four of this section,

specifically, the actual number of employees, by employment category

within the contract, employed to provide services under the contract,

the number of hours worked and total compensation under the contract.

d. For the purposes of the report required pursuant to subparagraph

(iv) of paragraph a of this subdivision, a "contract for consulting

services" shall mean any contract entered into by a state agency for

analysis, evaluation, research, training, data processing, computer

programming, engineering, environmental health and mental health

services, accounting, auditing, paralegal, legal, or similar services.

Such report shall be available for public inspection and copying

pursuant to section eighty-seven of the public officers law provided

that in disclosing such reports pursuant to the public officers law, the

agency making the disclosure shall redact the name, social security

number and other personal information of any individual employee or

consultant that is included in such document.

e. The information required by this subdivision shall be provided in

electronic format in such form as prescribed by the state comptroller

such that the data can be searched and sorted.

f. All reports required under this subdivision shall be available for

public inspection and copying pursuant to section eighty-seven of the

public officers law provided that in disclosing such reports pursuant to

the public officers law, the agency making the disclosure shall redact

the name or social security number of any individual employee that is

included in such document.

15. Reporting by agencies. a. State agencies shall report annually, on

a fiscal year basis, by July first of the ensuing year to the state

procurement council, the governor, the legislative fiscal committees and

the state comptroller the total number and total dollar value of single

source contracts awarded by the agency during the fiscal year, and the

percentage such contracts represent of the agency's total number and

total dollar value of contract awards during the reporting period.

b. Each state agency shall include with its report an assessment by

the agency head of the agency's efforts to minimize the award of single

source contracts.

c. All reports required under this subdivision shall be available for

public inspection and copying pursuant to section eighty-seven of the

public officers law provided that in disclosing such reports pursuant to

the public officers law, the agency making the disclosure shall redact

the name or social security number of any individual employee that is

included in such document.

* NB Repealed June 30, 2031