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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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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 l.jpg

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


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How Can this Law Impact Your Business? and Offerers to undertake specific actions as part of the procurement process

  • 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


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What is the Procurement Lobbying Law? and Offerers to undertake specific actions as part of the procurement process

  • 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


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New Statute May Require Change to Business Practices and Offerers to undertake specific actions as part of the procurement process

  • 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


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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?


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#1 - submission of a written receive “Contacts” on a transactionproposal 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


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#4 - receive “Contacts” on a transactioncomplaints 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


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#7 - receive “Contacts” on a transactionprotests, 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


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Business can always “Contact” the Designated Contact receive “Contacts” on a transaction

“Contacts” to Non-Procuring Governmental Entity are limited to SFL §139-j(3)(a)(1-7) (PSMC)

Net Result


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  • If “Contact” made to someone else, it may be receive “Contacts” on a transaction

  • 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


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Contracts Subject to Requirements receive “Contacts” on a transaction

  • 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


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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


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Example of State Agency Competitive Procurement Restricted Period

Restricted Period

(limits who can

receive Contacts)

Definition of

business need

Approval of

contract

by OSC

Ad in Contract

Reporter


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New Requirements Apply to “Contacts” Restricted Period

  • 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)


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What is a Contact? Restricted Period

  • 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


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Standardized Information Collection and Contract Provisions Restricted Period

  • 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


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  • Offerer must Restricted Perioddisclose 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 l.jpg

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


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Determine if there is a Restricted Period Contacts and consider its impact on how conduct business - 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


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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


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Where to Get More Information Contacts before execute the affirmation

  • 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.


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Questions and Answers Contacts before execute the affirmation

?


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Presenter’s Contact Information Contacts before execute the affirmation

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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