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Lisa Fox Legal Services Office of General Services lisa.fox@ogs.state.ny (518) 474-0571 PowerPoint Presentation
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Lisa Fox Legal Services Office of General Services lisa.fox@ogs.state.ny (518) 474-0571

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Lisa Fox Legal Services Office of General Services lisa.fox@ogs.state.ny (518) 474-0571

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  1. Presenter’s Contact Information Lisa Fox Legal Services Office of General Services lisa.fox@ogs.state.ny.us (518) 474-0571 OGS Website: www.ogs.state.ny.us

  2. Questions • What is Procurement Lobbying? • What are the requirements placed on Governmental Entities? • How can these new requirements be incorporated into your procurement process?

  3. What is the Procurement Lobbying Law? • Two separate amendments in Chapter 1 of the • Laws of 2005, amended by Chapter 596 of the • Laws of 2005 • Legislative Law – interpreted and enforced by the NYS Temporary Commission on Lobbying • - Also establishes Advisory Council on Procurement Lobbying • State Finance Law §139-j and §139-k – addresses actions of Governmental Entities and the business community

  4. Advisory Council on Procurement Lobbying • - Created by Legislative Law §1-t • - Eleven members, chaired by Office of General Services • - Three general obligations • > Reports • > Guidance • > Advice to Lobbying Commission on procurement lobbying

  5. The Advisory Council on Procurement Lobbying (cont.) • Guidance developed by the Advisory Council on Procurement Lobbying, model forms and language and other materials, are present on the internet at • http://www.ogs.state.ny.us/aboutOgs/ • regulations/defaultAdvisoryCouncil.html • Use this web site and its materials to educate staff and the business community regarding the new legal requirements

  6. Questions • What is Procurement Lobbying? • What are the requirements placed on Governmental Entities? • How can these new requirements be incorporated into your procurement process?

  7. The Purpose of the Procurement Lobbying Law • Builds on the pre-existing requirements governing procurement activities, such as State Finance Law Articles 9 and 11, the Freedom of Information Law, the Open Meeting Law, Public Officers Law Code of Conduct and Executive Order Number 127 • Formalizes and standardizes practices already in place documenting the procurement process and clarifies responsibilities and expectations when expending public funds • Emphasis on open, transparent, and fair procurement process

  8. The Purpose of the Procurement Lobbying Law • Develops standard governmental procurement practices about: • the kinds of information to be provided to the business community • the kinds of information to be obtained from the business community • the kinds of information to be made part of the formal record for a procurement • - provides guidance to the business community about where to direct advocacy efforts

  9. Applicability of State Finance Law Provisions • Every State Agency • Public Authorities of which at least one member is appointed by the Governor • Unified Court System • Legislature • Certain Industrial Development Agencies • Public Benefit Corporations

  10. Types of Contracts Subject to the Law • Construction • Procurement (commodities, services and technology) • Real Estate (purchase, sale, lease of real property including interest therein.) • Certain Revenue Contracts • Assignments, renewals, extensions and certain amendments • When the estimated annualized expenditure will exceed $15,000

  11. Types of Contracts Subject to the Law (continued) • Definition of Procurement Contract expressly exempts the following • - Grants • - SFL Article 11-B contracts • - Intergovernmental agreements • - Railroad and utility force accounts • - Utility relocation agreements • - Eminent domain transactions

  12. State Finance Law Provisions of the Procurement Lobbying Law • General Rule is: • - State Finance Law recognizes that communications are necessary to the conduct of Government Procurement • - There are different kinds of communications • - Certain kinds of communications with Government Entities about Procurement Contracts have specific rules (referred to as Contacts) during certain time periods (Restricted Period)

  13. Example of Restricted Period for a Competitively Bid State Agency Contract Restricted Period (limits who can receive Contacts) Approval of contract by OSC Definition of business need Ad in Contract Reporter

  14. What Communications Must Be Recorded Under this Law? • Not all communications are Contacts! • 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

  15. Obligation is to record ALL Contacts • Whether a communication is a Contact depends on several factors • - Is there a transaction? • Generally speaking, “cold” • marketing material would fall under this category and would not require the completion of a record.

  16. Is it a covered transaction? • - See prior listing for exempt transactions • What is the value of the transaction? • - The requirements are only applicable if the estimated annualized value exceeds $15,000.

  17. Is there a Restricted Period? • - Has there been a written notice or other solicitation for a proposal? • - Has the contract received its final approval? • Who was the communication from? • - If the communication is from a member or staff of the NYS Legislature (on a non- legislative procurement), the statute provides it is not a Contact and shall not be recorded under the SFL.

  18. Does the communication constitute a Contact? • - Defined term • - Number of factors to consider • - “Reasonable person” standard • - Consider totality of the circumstances

  19. Applying the “reasonable person test” factual exchanges of information are generally not Contacts • - When is the bid due? • - Where is the bid due? • Communications that a reasonable person would probably consider an attempt to influence • - You should award the bid to my company because…

  20. If the communication is a Contact, then • - Complete a Record of Contact – document that collects the statutorily required information about the person Contacting • - Place each Record of Contact in the procurement record • - Determine if there is a requirement to report/refer for review and investigation because it is an impermissible Contact

  21. Who can receive Contacts during the Restricted Period? • - Designated Contact(s) • - Permissible Subject Matter Communications • An Offerer is limited in who it can Contact • Imposes new consequences if Offerers have impermissible Contacts

  22. Designated Contact • Person or persons identified by a Governmental Entity who may be Contacted by Offerers about a procurement • Designated Contact may receive all communications from Offerers, including attempts to influence (Contacts) • Communications to Designated Contact are limited by Public Officers Law and Penal Law (ie., bribery)

  23. Permissible Subject Matter Communications • State Finance Law §139-j(3)(a) recognizes a specific series of communications and Contacts that can go to other than the Designated Contacts • Important that Offerer’s Contacts be limited to the specific subject matter • These Contacts are with the procuring Governmental Entity and other Governmental Entities

  24. Permissible Subject Matter Communications • #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

  25. Permissible Subject Matter Communications (continued) #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)

  26. Permissible Subject Matter Communications #7 (a) – (d) #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

  27. Offerer cannot Contact other Governmental Entities unless falls within one of the permissible subject matters • (SFL §139-j(4)) • - For example, okay to file written protest or complaint with OSC, but not to otherwise Contact • - Cannot Contact DOB to complain about a procurement

  28. However, statute does permit Offerer to contact Legislature about governmental procurements (unless Legislature is conducting the procurement) and the Legislature may contact the procuring agency (in its official capacity) • If are Contacted by the Legislature, the statute indicates that the Governmental Entity shall not record the Contact under the SFL

  29. Governmental Entity Obligations • Determine if the Contact must be reported/referred for investigation as a violation of the permissible Contacts requirements • - Whether a Contact must be reported/referred for investigation depends on the person’s role in the procurement

  30. Designated Contact(s) – • - those employees specifically named to receive all communications from the Offerers during the Restricted Period, including Contacts • - report/refer all Contacts that violate Public Officers Law or Penal Law • Permissible subject matter communications • - those employees who may receive only specific subject matter communications during Restricted Period • - report/refer all Contacts that are outside of the specific subject matter

  31. All other employees • - may only receive factual inquiries (not Contacts) • - report/refer all Contacts • Control agencies • - only may receive specific subject matter Contacts from Offerer during the Restricted Period • - report/refer all Contacts that are outside of the specific subject matter

  32. Report/referral generally to agency ethics officer or inspector general, who has specific obligations to review and investigate under the law • Each Governmental Entity is obligated to develop policies and procedures on the review and investigation process

  33. Immediately notify the General Counsel at the NYS Office of General Services if you have determined an Offerer as non- responsible or debarred as pursuant to this law. • Office of the General Counsel • NYS Office of General Services • 41st Floor - Corning Tower • Albany, New York 12242 • LegalServicesWeb@ogs.state.ny.us • Telephone 518-474-5988 • Facsimile 518-473-4973

  34. Key New Consequences Under this Law • If there is a finding that an Offerer knowingly and willfully violated the requirements about permissible contacts, determine to be “non-responsible” and no award • - However, award can be made if two specific statutory requirements established • - This determination of non-responsibility can only be made after Offerer is given reasonable notice that an investigation is ongoing and an opportunity to be heard • - Finding of non-responsibility also results in the Offerer being listed on the OGS maintained list of bidders determined to be non- responsible

  35. Second finding of non-responsibility within four year period results in debarment of Offerer • - listed on the OGS maintained list of bidders debarred due to violations of this statute • - Offerer ineligible to submit a proposal or be awarded any Procurement Contract for a period of four years from the second determination

  36. Additionally, there are other consequences to the Offerer under the new provisions • - Failure to timely disclose accurate and complete information equals no award. • - Failure to cooperate results in no award. • > Such as refusal to submit certification or affirmation

  37. Road Map for Governmental Entities • Review the kinds of transactions commonly engage in and determine the scope of application for new State Finance Law • Undertake business analysis of your existing policies and procedures for conducting procurement • - You may find that you already conduct the functional equivalent Single point of contact = Designated Contact • Requirement to record all significant actions

  38. Review procurement policy for clarity on when a procurement is commenced, especially non-competitive procurements (ie., single and sole source) • Identify your review proceeding and make it known to the business community. Identify your dispute resolution proceeding and make it known to the business community.

  39. Review solicitation documents to ensure clearly address the permissible subject matter categories • - Formalize processes used to exchange information with the business community • - Incorporate the summary of policy, certification, affirmation and non- responsibility requirements into all relevant procurement documents

  40. Develop the required policies and procedures, such as • - Determining Designated Contacts • - Policy on permissible Contacts • - Policy on review and investigation of possible impermissible Contacts • - Policy on notifying OGS about SFL §§139-j and 139-k non- responsibility determinations and debarment

  41. Provide training and access to resources to staff – especially on the Restricted Period and the need to direct communications to the Designated Contacts • Provide information to business community on these new requirements - use solicitation and other means

  42. Questions ?

  43. Presenter’s Contact Information Lisa Fox Legal Services Office of General Services lisa.fox@ogs.state.ny.us (518) 474-0571 OGS Website: www.ogs.state.ny.us