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Presenter’s Contact Information. Lisa K. Fox Legal Services New York State Office of General Services [email protected] (518) 474-5988. OGS Website: www.ogs.state.ny.us.

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slide2

Presenter’s Contact Information

Lisa K. Fox

Legal Services

New York State Office of General Services

[email protected]

(518) 474-5988

OGS Website:

www.ogs.state.ny.us

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

Overview
slide4

How Can this Law Impact Your Business?

  • 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

slide5

What is 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
slide6

New Statute May Require Change to Business Practices

  • 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

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

Who is a Designated Contact?
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

Permissible Subject Matter Categories
permissible subject matter categories9
#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
permissible subject matter categories10
#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
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)

Net Result
slide12

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
slide13

Contracts Subject to Requirements

  • 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
slide14

New State Finance Law Requirements Apply During the Restricted Period

  • “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
slide15

Example of State Agency Competitive Procurement

Restricted Period

(limits who can

receive Contacts)

Definition of

business need

Approval of

contract

by OSC

Ad in Contract

Reporter

slide16

New Requirements Apply to “Contacts”

  • 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)
slide17

What is a Contact?

  • 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
slide18

Standardized Information Collection and Contract Provisions

  • 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
slide19

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
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

For the Business Community
for the business community21
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
slide22
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

slide23

Where to Get More Information

  • 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.
slide25

Presenter’s Contact Information

Lisa K. Fox

Legal Services

New York State Office of General Services

[email protected]

(518) 474-5988

OGS Website:

www.ogs.state.ny.us

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