Lisa Fox

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(No Transcript)
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Presenters Contact Information
Lisa Fox Legal Services Office of General
Services lisa.fox_at_ogs.state.ny.us (518)
474-0571 OGS Website www.ogs.state.ny.us
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Questions

• What is Procurement Lobbying?
• What is the purpose of this law?
• How does Procurement Lobbying
• impact the governmental procurement
• process?

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What is the Procurement Lobbying Law?
Two provisions of law separately addressing
different aspects of the procurement
process Legislative Law Interpreted and
enforced by the NYS Temporary Commission on
Lobbying focus on the actions of registered
lobbyists and clients State Finance Law
139-j and 139-k Addresses actions of
Governmental Entities and the business community
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Advisory Council on Procurement Lobbying

• Guidance, model forms, language and
• other materials on the State Finance Law
• provisions are present on the internet at
• http//www.ogs.state.ny.us/aboutOgs/
• regulations/defaultAdvisoryCouncil.html
• Use website and materials to educate staff
• and the business community regarding these
• legal requirements

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The Purpose of the Procurement Lobbying Law

• It 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

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The Purpose of the Procurement Lobbying Law

• It imposes standard requirements on the business
  community about
• - Where the business community can
• direct its advocacy efforts about a
• procurement contract
• gt Designated Contact(s)
• gt Permissible Subject Matter
  Communications
• - An Offerer is limited in who it can
• Contact

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The Purpose of the Procurement Lobbying Law

• It imposes new consequences if an Offerer has
  impermissible Contacts
• possible no award of contract
• possible finding of non-responsibility
• possible debarment
• No proposals submitted or
• contracts awarded for a 4 year
• period

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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 and, Public Officers Law
  
• Code of Conduct
• 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

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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

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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

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Types of Contracts Subject to the Law (continued)

• Definition of Procurement Contract expressly
• exempts
• - Grants
• - SFL Article 11-B contracts
• - Intergovernmental agreements
• - Railroad and utility force accounts
• - Utility relocation agreements
• - Eminent domain transactions

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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 (referred to
  
• as Contacts) with Government Entities
  
• about Procurement Contracts have
  specific
• rules during certain time periods
  (Restricted
• Period)

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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
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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

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What Communications Must Be Recorded Under this
Law?

• Obligation is to record ALL Contacts
• Whether a communication is a Contact depends
• on several factors
• - Is there a procurement contract/
• transaction?
• gt Generally speaking, receipt of cold
  marketing material is not a
  procurement contract and does not trigger
  these requirements.

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What Communications Must Be Recorded Under this
Law?
- Is it a covered transaction? gt See prior
listing for exempt transactions - What is
the value of the transaction? gt The
requirements are only applicable if the
estimated annualized value exceeds
15,000 - Is there a Restricted Period? gt
Has there been a written notice or other
solicitation for a proposal? gt Has the
contract received its final approval?
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What Communications Must Be Recorded Under this
Law?
- Who was the communication from? gt
Communications from the members or
staff NYS Legislature (on non-legislative
procurements) in their official capacity are
not Contacts and shall not be recorded
under the SFL gt Offerer individual or
entity, or employee, agent or
consultant or person acting on behalf of
such individual or entity, that contacts a
Governmental Entity during the Restricted
Period about a Governmental Procurement
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What Communications Must Be Recorded Under this
Law?

• Does the communication constitute a Contact?
• - Statute defines the term
• - Number of factors to consider
• - Reasonable person standard
• - Consider totality of the circumstances

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What Communications Must Be Recorded Under this
Law?

• 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

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What Communications Must Be Recorded Under this
Law?

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

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What Communications Must Be Recorded Under this
Law?

• Who can receive Contacts during the
• Restricted Period?
• - Designated Contact(s)
• - Permissible Subject Matter Communications
• An Offerer is limited in who it can Contact

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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
• (i.e., bribery)

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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 Offerers Contacts be limited
  to the
• specific subject matter
• These Contacts are with the procuring
• Governmental Entity and other Governmental
• Entities

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Permissible Subject Matter Communications

• 1 - submission of a written proposal from an
  Offerer
• 2 - submission of written questions in
  accordance with the solicitation, that must
  include sending all responses to all Offerers
• 3 - participation in a conference provided for
  in a solicitation

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Permissible Subject Matter Communications
(continued)
4 - complaints by an Offerer that the
Designated Contact has not been responsive filed
in writing to Counsels Office 5 -
negotiation of a Procurement Contact after
tentative award 6 - review of a procurement
contract award (debriefings)
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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 OSC
during the process of contract approval
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Review and Investigation Process

• Whether a Contact is impermissible and must be
  reported/referred for investigation depends on
  the persons role in the procurement
• Remember that the Law limits the Offerers
  permissible Contacts
• Four principal roles in the procurement process

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Four Principal Roles in the Procurement Process

• 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

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Four Principal Roles in the Procurement Process

• 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

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Four Principal Roles in the Procurement Process

• All other employees of procuring entity
• may only receive factual inquiries
• (not Contacts)
• report/refer all Contacts
• Control agencies and other governmental
• entities
• 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

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Net Result

• Offerer can always Contact Designated Contact
• Offerer cannot Contact other employees or
  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

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What is the Report/Referral Process?

• Each Governmental Entity is obligated to develop
  policies and procedures on the review and
  investigation process
• Process will identify who is obligated to review
  and investigate in accordance with the law

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Review and Investigation

• Offerer is given reasonable notice that an
  investigation is ongoing and an opportunity to be
  heard
• Purpose is to determine
• - if an impermissible Contact occurred
• - who made the impermissible Contact and
• - whether the Offerers impermissible Contact
  was knowing and willful

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1st Finding

• If there is a finding that an Offerer knowingly
  and willfully violated the requirements about
  permissible Contacts, Offerer is determined to be
  non-responsible and no award. However, award
  can be made if two specific statutory
  requirements are established
• First finding of non-responsibility results in
  the Offerer being listed on the OGS maintained
  list of bidders determined to be non-responsible

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2nd Finding

• Second finding of non-responsibility within four
  year period results in debarment of Offerer
• Offerer is 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

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Notification Requirement

• Immediately notify OGS if an Offerer is
• determined to be non-responsible or debarred
  
• under this law
• Office of the General Counsel
• NYS Office of General Services
• 41st Floor - Corning Tower
• Albany, New York 12242
• LegalServicesWeb_at_ogs.state.ny.us
• Telephone [phone]
• Facsimile [phone]

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Recipe for Success for Governmental Entities

• Review the kinds of transactions commonly
  engage
• in and determine the scope of application
• for 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

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Recipe for Success

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

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Recipe for Success

• 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

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Recipe for Success

• Be familiar with your agencys 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

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Recipe for Success

• 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

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Questions
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Presenters Contact Information
Lisa Fox Legal Services Office of General
Services lisa.fox_at_ogs.state.ny.us (518)
474-0571 OGS Website www.ogs.state.ny.us