Presenter’s Contact Information

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

3. 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

4. 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

5. 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

6. 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

7. 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?

8. #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

9. #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

10. #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

11. 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

12. 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

13. 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

14. 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

15. 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

16. 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)

17. 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

18. 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

19. 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

20. 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

21. 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

22. 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

23. 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.

24. Questions and Answers ?

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