| NYS
Finance Law, Article XI, State Purchasing |
State Finance
ARTICLE XI
STATE PURCHASING
Section 160. Definitions.
161. State procurement council.
162. Preferred sources.
163. Purchasing services and commodities.
163-a. Vendor preparation of specifications for technology
procurements; prohibitions.
163-b. Environmentally-sensitive cleaning and maintenance
products.
163-c. Centralized procurement contract fee.
164. Exemptions.
165. Purchasing restrictions.
166. Requirements for financed equipment acquisition or
financed creation or improvement of information
technology systems and related research and
development.
167. Transfer and disposal of personal property.
168. The management of surplus computer equipment.
§ 160. Definitions. As used in this article, the following terms shall
have the following meanings unless specified otherwise:
1. "Centralized contract" means any contract for the purchase of
commodities or services, established or approved by the commissioner of
general services as meeting the state's requirements including, but not
limited to, any contract let by the federal government, other state or
local governments or purchasing consortia.
2. "Commissioner" means the commissioner of general services.
3. "Commodity" or "commodities" means, except with respect to
contracts for state printing, material goods, supplies, products,
construction items or other standard articles of commerce other than
technology which are the subject of any purchase or other exchange.
4. "Construction item" means any item or material used in construction
and which is procured directly by a state agency or by a person other
than a municipality under contract with a state agency.
5. "Costs" as used in this article shall be quantifiable and may
include, without limitation, the price of the given good or service
being purchased; the administrative, training, storage, maintenance or
other overhead associated with a given good or service; the value of
warranties, delivery schedules, financing costs and foregone opportunity
costs associated with a given good or service; and the life span and
associated life cycle costs of the given good or service being
purchased. Life cycle costs may include, but shall not be limited to,
costs or savings associated with construction, energy use, maintenance,
operation, and salvage or disposal.
6. "Price" unless otherwise specified means the amount of money set as
consideration for the sale of a commodity or service and may include,
but is not limited to, when applicable and when specified in the
solicitation, delivery charges, installation charges and other costs.
7. "Service" or "services" means, except with respect to contracts for
state printing, the performance of a task or tasks and may include a
material good or a quantity of material goods, and which is the subject
of any purchase or other exchange. For the purposes of this article,
technology shall be deemed a service. Services, as defined in this
article, shall not apply to those contracts for architectural,
engineering or surveying services, or those contracts approved in
accordance with article eleven-B of this chapter.
8. "Small business concern" or "small business" means a business which
is resident in this state, independently owned and operated, not
dominant in its field and employs one hundred or less persons.
9. "State agency" or "state agencies" means all state departments,
boards, commissions, offices or institutions but excludes, however, for
the purposes of subdivision five of section three hundred fifty-five of
the education law, the state university of New York and excludes, for
the purposes of subdivision a of section sixty-two hundred eighteen of
the education law, the city university of New York. Furthermore, such
term shall not include the legislature or the judiciary.
10. "Technology" means either a good or a service or a combination
thereof, that results in a technical method of achieving a practical
purpose or in improvements in productivity. Goods may be either new or
used.
§ 161. State procurement council. 1. a. The state procurement council
shall continuously strive to improve the state's procurement process.
Such council shall consist of nineteen members, including the
commissioner, the state comptroller, the director of the budget and the
commissioner of economic development, or their respective designees;
seven members who shall be the heads of other large and small state
agencies chosen by the governor, or their respective designees; and
eight at large members appointed as follows: three appointed by the
temporary president of the senate, one of whom shall be a representative
of local government and one of whom shall be a representative of private
business; three appointed by the speaker of the assembly, one of whom
shall be a representative of local government and one of whom shall be a
representative of private business; one appointed by the minority leader
of the senate; and, one appointed by the minority leader of the
assembly; and two non-voting observers appointed as follows: one
appointed by the temporary president of the senate and one appointed by
the speaker of the assembly. The non-voting observers shall be provided,
contemporaneously, all documentation and materials distributed to
members. The council shall be chaired by the commissioner and shall meet
at least quarterly.
b. The at large members shall each serve a term of three years;
provided, however, that for their initial appointments, the temporary
president of the senate and the speaker of the assembly shall each
designate one member to serve a term of one year, one member to serve a
term of two years and one member to serve a term of three years. Any
vacancy among the at large members shall be filled by appointment
pursuant to paragraph a of this subdivision for the unexpired balance of
the term. The non-voting observers shall each serve a term of three
years. All the initial appointments made pursuant to this section shall
be deemed to have been made and to have been effective for all purposes
on the fourth day of June, nineteen hundred ninety-six.
c. The members of the council shall serve without compensation, except
that each of them shall be allowed the necessary and actual expenses
incurred in the performance of any of their duties hereunder.
d. The council may conduct any business authorized herein when a
quorum of the members are represented in session.
2. The council shall:
a. Evaluate and make recommendations to the commissioner for the
development of specifications for commodities and services to be
acquired by or for state agencies through centralized contracts,
including, but not limited to, evaluations and recommendations on
minimum purchase quantities and standards for quality, function and
utility;
b. Establish and maintain guidelines which, in the manner provided by
this article, enable state agencies to acquire products directly from
vendors or suppliers other than those participating in a centralized
contract when such products are not required by this article to be
acquired from a preferred source and when such products are available in
substantially similar function, form or utility and at prices or other
terms more economically beneficial for the purposes of the acquiring
state agency;
c. Identify to the commissioner any deficiencies in products or
services made available to state agencies through centralized contracts,
including, at the discretion of the council, matters relating to
specifications developed and employed for procurement of products or
services through centralized contracts;
d. Establish and, from time to time, amend guidelines concerning state
procurement and provide for the appropriate distribution and
dissemination of such guidelines and other information concerning all
matters relating to procurement of products, construction items or
services for state agencies;
e. Recommend to the commissioner necessary legislative changes or
modifications to existing or proposed rules, regulations and procedures
which would simplify, accelerate or otherwise improve the state's
procurement process and make specific recommendations to the
commissioner by September thirtieth, nineteen hundred ninety-five for
the improvement of the New York state printing and public documents law;
f. Act as a clearinghouse for the purpose of identification of
potential cost reductions and other efficiencies through the combination
of similar procurement requirements of state agencies;
g. Consult with and advise the commissioner on strategic technology
investments that will facilitate electronic access to the terms and
conditions of existing procurement contracts, promote electronic
commerce including, but not limited to, payment to vendors, promote and
enhance the efficiency of the procurement of products and services by or
for state agencies and produce useful information that supports state
procurement operations, management, analysis and decision making
including, but not limited to, data concerning the status and use of
procurement contracts and the number and type of contracts and award
recipients;
h. Establish and, from time to time, amend guidelines for purchases of
commodities, by the commissioner or state agencies. Such guidelines
shall ensure the wise and prudent use of public money in the best
interest of the taxpayers of the state; and guard against favoritism,
improvidence, extravagance, fraud and corruption;
i. Establish and, from time to time, amend guidelines for the
procurement of services and technology in accordance with the provisions
of this article. Such guidelines shall ensure the wise and prudent use
of public money in the best interest of the taxpayers of the state;
guard against favoritism, improvidence, extravagance, fraud and
corruption; and ensure that service contracts are awarded on the basis
of best value, including, but not limited to, the following criteria:
quality, cost, and efficiency;
j. Consult with and advise the commissioner on new opportunities to
acquire commodities and services including, but not limited to, regional
or statewide equipment or facility maintenance services, professional
services, coordination and cooperation with other centralized purchasing
entities, and coordination of reuse of surplus property;
k. Report by December thirty-first, nineteen hundred ninety-five and
thereafter biennially to the governor, the legislature and the director
of the budget, the significant findings of the council including, but
not limited to, substantial savings generated by council initiatives and
the recommendations of the council concerning the state's procurement
practices; and
l. Undertake other related activities as are necessary to effectuate
this article including the development of a strategic plan for the
improvement of state procurement.
m. Establish and, from time to time, amend guidelines with respect to
publishing by state agencies of quarterly listings of projected
procurements having a value greater than five thousand dollars but less
than fifteen thousand dollars in the procurement opportunities
newsletter established by article four-C of the economic development
law.
3. The commissioner may, when he or she deems it necessary to
implement the provisions and intent of this article, adopt
recommendations made by the council and may, at the request of the state
procurement council, promulgate rules and regulations pursuant to the
state administrative procedure act to give effect to such
recommendations. When the commissioner adopts recommendations made by
the council but does not promulgate rules and regulations implementing
such recommendations, the commissioner shall publish said
recommendations or a summary thereof in the state register. If the
commissioner modifies or rejects any recommended rule or regulation, he
or she shall notify the council providing a written explanation thereof.
4. The commissioner shall report to the governor, the legislature and
the director of the budget by December thirty-first, nineteen hundred
ninety-five and thereafter annually on any modifications to or
rejections of the rules and regulations proposed by the council.
5. Nothing in this section shall be deemed to alter, supersede, modify
or amend any provision of this article which establishes preferential
status for any producer or supplier of commodities or services.
§ 162. Preferred sources. * 1. Purpose. To advance special social and
economic goals, selected providers shall have preferred source status
for the purposes of procurement in accordance with the provisions of
this section. Procurement from these providers, except those defined in
paragraph f of subdivision two of this section, shall be exempted from
the competitive procurement provisions of section one hundred
sixty-three of this article and other competitive procurement statutes.
Such exemption shall apply to commodities produced, manufactured or
assembled, including those repackaged to meet the form, function and
utility required by state agencies, in New York state and, where so
designated, services provided by those sources in accordance with this
section.
* NB Effective until September 1, 2008
* 1. Purpose. To advance special social and economic goals, selected
providers shall have preferred source status for the purposes of
procurement in accordance with the provisions of this section.
Procurement from these providers shall be exempted from the competitive
procurement provisions of section one hundred sixty-three of this
article and other competitive procurement statutes. Such exemption shall
apply to commodities produced, manufactured or assembled, including
those repackaged to meet the form, function and utility required by
state agencies, in New York state and, where so designated, services
provided by those sources in accordance with this section.
* NB Effective September 1, 2008
2. Preferred status. Preferred status as prescribed in this section
shall be accorded to:
a. Commodities produced by the department of correctional services'
correctional industries program and provided to the state pursuant to
subdivision two of section one hundred eighty-four of the correction
law;
b. Commodities and services produced by any qualified charitable
non-profit-making agency for the blind approved for such purposes by the
commissioner of the office of children and family services;
c. Commodities and services produced by any special employment program
serving mentally ill persons, which shall not be required to be
incorporated and which is operated by facilities within the office of
mental health and is approved for such purposes by the commissioner of
mental health;
d. Commodities and services produced by any qualified charitable
non-profit-making agency for other severely disabled persons approved
for such purposes by the commissioner of education, or incorporated
under the laws of this state and approved for such purposes by the
commissioner of education;
e. Commodities and services produced by a qualified veterans' workshop
providing job and employment-skills training to veterans where such a
workshop is operated by the United States department of veterans affairs
and is manufacturing products or performing services within this state
and where such workshop is approved for such purposes by the
commissioner of education; or
* f. Commodities provided by any qualified apparel manufacturer and
contractor on the special September eleventh bidders registry, as added
by section three hundred forty-nine of the labor law, approved for such
purposes by the commissioner of labor, provided, however, that nothing
in this paragraph shall affect or displace the preferences and
priorities established in paragraphs a, b, c, d and e of this
subdivision.
* NB Repealed September 1, 2008
* NB There are 2 par f's
* f. Commodities and services produced by any qualified charitable
non-profit-making workshop for veterans approved for such purposes by
the commissioner of education, or incorporated under the laws of this
state and approved for such purposes by the commissioner of education.
* NB There are 2 par f's
3. Public list of services and commodities provided by preferred
sources.
a. By December thirty-first, nineteen hundred ninety-five, the
commissioner, in consultation with the commissioners of correctional
services, social services, mental health and education, shall prepare a
list of all commodities and services that are available and are being
provided as of said date, for purchase by state agencies, public benefit
corporations or political subdivisions from those entities accorded
preference or priority status under this section. Such list may include
references to catalogs and other descriptive literature which are
available directly from any provider accorded preferred status under
this section. The commissioner shall make this list available to
prospective vendors, state agencies, public benefit corporations,
political subdivisions and other interested parties. Thereafter, new or
substantially different commodities or services may only be made
available by preferred sources for purchase by more than one state
agency, public benefit corporation or political subdivision after
addition to said list.
b. After January first, nineteen hundred ninety-six, upon the
application of the commissioner of correctional services, the
commissioner of social services, the commissioner of mental health or
the commissioner of education, or a non-profit-making facilitating
agency designated by one of the said commissioners pursuant to paragraph
e of subdivision six of this section, the state procurement council may
recommend that the commissioner: (i) add commodities or services to, or
(ii) in order to insure that such list reflects current production
and/or availability of commodities and services, delete at the request
of a preferred source, commodities or services from, the list
established by paragraph a of this subdivision. The council may make a
non-binding recommendation to the relevant preferred source to delete a
commodity or service from such list. Additions may be made only for new
services or commodities, or for services or commodities that are
substantially different from those reflected on said list for that
provider. The decision to recommend the addition of services or
commodities shall be based upon a review of relevant factors as
determined by the council including costs and benefits to be derived
from such addition and shall include an analysis by the office of
general services conducted pursuant to subdivision six of this section.
Unless the state procurement council shall make a recommendation to the
commissioner on any such application within one hundred twenty days of
receipt thereof, such application shall be deemed recommended. In the
event that the state procurement council shall deny any such
application, the commissioner or non-profit-making agency which
submitted such application may, within thirty days of such denial,
appeal such denial to the commissioner of general services who shall
review all materials submitted to the state procurement council with
respect to such application and who may request such further information
or material as is deemed necessary. Within sixty days of receipt of all
information or materials deemed necessary, the commissioner shall render
a written final decision on the application which shall be binding upon
the applicant and upon the state procurement council.
c. The list maintained by the office of general services pursuant to
paragraph a of this subdivision shall be revised as necessary to reflect
the additions and deletions of commodities and services approved by the
state procurement council.
* d. Paragraphs a, b and c of this subdivision shall not apply to
commodities provided by any qualified apparel manufacturer and
contractor on the special September eleventh bidders registry, as added
by section three hundred forty-nine of the labor law, or approved for
such purposes by the commissioner of labor. The commissioner of labor
shall periodically provide the commissioner of general services with the
special September eleventh bidders registry, as added by section three
hundred forty-nine of the labor law, of qualified apparel manufacturers
and contractors. The commissioner of labor shall also make the registry
available upon request to other state agencies, public benefit
corporations, public authorities, and, if requested, to political
subdivisions.
* NB Repealed September 1, 2008
4. Priority accorded preferred sources. Except as provided in the New
York state printing and public documents law, priority among preferred
sources shall be accorded as follows:
a. (i) When commodities are available, in the form, function and
utility required by a state agency, public authority, commission, public
benefit corporation or political subdivision, said commodities must be
purchased first from the department of correctional services'
correctional industries program;
(ii) When commodities are available, in the form, function and utility
required by, a state agency or political subdivision or public benefit
corporation having their own purchasing agency, and such commodities are
not available pursuant to subparagraph (i) of this paragraph, said
commodities shall then be purchased from approved charitable
non-profit-making agencies for the blind;
(iii) When commodities are available, in the form, function and
utility required by, a state agency or political subdivision or public
benefit corporation having their own purchasing agency, and such
commodities are not available pursuant to subparagraphs (i) and (ii) of
this paragraph, said commodities shall then be purchased from a
qualified non-profit-making agency for other severely disabled persons,
a qualified special employment program for mentally ill persons, or a
qualified veterans' workshop;
b. When services are available, in the form, function and utility
required by, a state agency or political subdivision or public benefit
corporation having their own purchasing agency, equal priority shall be
accorded the services rendered and offered for sale by qualified
non-profit-making agencies for the blind and those for the other
severely disabled, by qualified special employment programs for mentally
ill persons and by qualified veterans' workshops. In the case of
services:
(i) state agencies or political subdivisions or public benefit
corporations having their own purchasing agency shall make reasonable
efforts to provide a notification describing their requirements to those
preferred sources, or to the facilitating entity identified in paragraph
e of subdivision six of this section, which provide the required
services as indicated on the official public list maintained by the
office of general services pursuant to subdivision three of this
section;
(ii) if, within ten days of the notification required by subparagraph
(i) of this paragraph, one or more preferred sources or facilitating
entities identified in paragraph e of subdivision six of this section
submit a notice of intent to provide the service in the form, function
and utility required, said service shall be purchased in accordance with
this section. If more than one preferred source or facilitating entity
identified in paragraph e of subdivision six of this section submits
notification of intent and meets the requirements, costs shall be the
determining factor for purchase among the preferred sources;
(iii) if, within ten days of the notification required by subparagraph
(i) of this paragraph, no preferred source or facilitating entity
identified in paragraph e of subdivision six of this section indicates
intent to provide the service, then the service shall be procured in
accordance with section one hundred sixty-three of this article. If,
after such period, a preferred source elects to bid on the service,
award shall be made in accordance with section one hundred sixty-three
of this article or as otherwise provided by law.
c. For the purposes of commodities and services produced by special
employment programs operated by facilities approved or operated by the
office of mental health, facilities within the office of mental health
shall be exempt from the requirements of subparagraph (i) of paragraph a
of this subdivision. When such requirements of the office of mental
health cannot be met pursuant to subparagraph (ii) or (iii) of paragraph
a of this subdivision, or paragraph b of this subdivision, the office of
mental health may purchase commodities and services which are
competitive in price and comparable in quality to those which could
otherwise be obtained in accordance with this article, from special
employment programs operated by facilities within the office of mental
health or other programs approved by the office of mental health.
* 4-a. Priority in purchasing requirements for apparel or textiles. a.
Definitions. As used in this section, the following terms shall have the
following meanings:
(i) "Apparel" or "textiles" shall mean all articles of clothing or
goods produced by weaving, knitting, or felting or any similar
production processes for such articles of clothing and shall include all
goods produced by the apparel industry as defined by subdivision (c) of
section three hundred forty of the labor law.
(ii) "State" shall mean any New York state agency, department, board,
bureau, commission, division, or any public benefit corporation or
public authority a majority of whose members are appointed by the
governor.
b. Notwithstanding anything to the contrary, political subdivisions
may adopt and apply the priority established herein by specifically
including the provisions of this subdivision in their bid
specifications.
c. Conditions for participation in certain state contracts. In the
event the state, as defined in subparagraph (ii) of paragraph a of this
subdivision, seeks to purchase apparel or textiles pursuant to a
competitive bid pursuant to section one hundred sixty-three of this
article or other applicable competitive procurement statutes, the
following additional conditions shall apply:
(i) the bid shall include a statement that a state agency shall not
enter into a contract to purchase or obtain for any purpose any apparel
from a bidder unable or unwilling to provide documentation as part of
its bid:
(A) attesting that such apparel was manufactured in compliance with
all applicable labor and occupational safety laws, including, but not
limited to, child labor laws, wage and hour laws and workplace safety
laws;
(B) stating, if known, the name and address of each subcontractor to
be utilized; and
(C) stating, if known, all manufacturing plants utilized by the bidder
or subcontractor.
(ii) manufacturers and contractors identified on the special September
eleventh bidders registry, as added by section three hundred forty-nine
of the labor law, shall be a preferred source for purposes of a
competitive bid and the associated contract award for apparel or textile
procurements where the price bid by such participating qualified
registrant bidder is not greater than fifteen percent more than the
lowest price bid by an otherwise responsive and responsible bidder.
Where there is more than one participating qualified registrant bidder,
the state shall make the contract award based upon the lowest price bid
among such bidders. For purposes of this subdivision, such preferred
source status shall be applied to each item or product for which the
bidder proposes to utilize a manufacturing location registered pursuant
to section three hundred forty-nine of the labor law.
(iii) where no qualified bidders under subparagraph (ii) of this
paragraph participate in the competitive bid for the specified apparel
or textiles the state shall award the contract to the otherwise lowest
responsive and responsible bidder pursuant to section one hundred
sixty-three of this article or other applicable competitive procurement
statutes.
d. Waiver. The provisions of this section may be waived by the head of
any state agency, department, board, bureau, commission, division, or
any public benefit corporation or public authority a majority of whose
members are appointed by the governor where it is determined in writing
and included in the procurement record that it is in the best interests
of the state to do so.
* NB Repealed September 1, 2008
5. Prices charged by the department of correctional services. The
prices to be charged for commodities produced by the department of
correctional services' correctional industries program shall be
established by the commissioner of correctional services in accordance
with section one hundred eighty-six of the correction law.
a. The prices established by the commissioner of correctional services
shall be based upon costs as determined pursuant to this subdivision,
but shall not exceed a reasonable fair market price determined at or
within ninety days before the time of sale. Fair market price as used
herein means the price at which a vendor of the same or similar product
or service who is regularly engaged in the business of selling such
product or service offers to sell such product or service under similar
terms in the same market. Costs shall be determined in accordance with
an agreement between the commissioner of correctional services and the
director of the budget.
b. A purchaser of any such product or service may, at any time prior
to or within thirty days of the time of sale, appeal the purchase price
in accordance with section one hundred eighty-six of the correction law,
on the basis that it unreasonably exceeds fair market price. Such an
appeal shall be decided by a majority vote of a three-member price
review board consisting of the director of the budget, the commissioner
of correctional services and the commissioner or their representatives.
The decision of the review board shall be final.
6. Prices charged by agencies for the blind, other severely disabled
and veterans' workshops.
a. Except with respect to the department of correctional services'
correctional industries program, it shall be the duty of the
commissioner to determine, and from time to time review, the prices of
all commodities and to approve the price of all services provided by
preferred sources as specified in this section offered to state
agencies, political subdivisions or public benefit corporations having
their own purchasing office.
b. In determining and revising the prices of such commodities or
services, consideration shall be given to the reasonable costs of labor,
materials and overhead necessarily incurred by such preferred sources
under efficient methods of procurement, production, performance and
administration; however, the prices of such products and services shall
be as close to prevailing market price as practicable, but in no event
greater than fifteen percent above, the prevailing market prices among
responsive offerors for the same or equivalent commodities or services.
c. Such qualified charitable non-profit-making agencies for the blind
and other severely disabled may make purchases of materials, equipment
or supplies, except printed material, from centralized contracts for
commodities in accordance with the conditions set by the office of
general services; provided that the qualified charitable
non-profit-making agency for the blind or other severely disabled shall
accept sole responsibility for any payment due the vendor.
d. Such qualified charitable non-profit-making agencies for the blind
and other severely disabled may make purchases of materials, equipment
and supplies from the department of correctional services' correctional
industries program, directly from the correctional industries program
administered by the commissioner of correctional services, subject to
such rules as may be established from time to time pursuant to the
correction law; provided that the qualified charitable non-profit-making
agency for the blind or other severely disabled shall accept sole
responsibility for any payment due the department of correctional
services.
e. The state commissioner of social services shall appoint the New
York state commission for the blind and visually handicapped, or other
non-profit-making agency, other than the agency representing the other
severely disabled, to facilitate the distribution of orders among
qualified non-profit-making charitable agencies for the blind. The state
commissioner of education shall appoint a non-profit-making agency,
other than the agency representing the blind, to facilitate the
distribution of orders among qualified non-profit-making charitable
agencies for the other severely disabled and the veterans' workshops.
The state commissioner of mental health shall facilitate the
distribution of orders among qualified special employment programs
operated or approved by the office of mental health serving mentally ill
persons.
f. The commissioner may request the state comptroller to conduct
audits and examinations to be made of all records, books and data of any
agency for the blind or the other severely disabled, any special
employment program for mentally ill persons or any veterans' workshops
qualified under this section to determine the costs of manufacture or
the rendering of services and the manner and efficiency of production
and administration of such agency or special employment program or
veterans' workshop with relation to any product or services purchased by
a state agency or political subdivision or public benefit corporation
and to furnish the results of such audit and examination to the
commissioner for such action as he or she may deem appropriate under
this section.
7. Partnering with preferred sources. The commissioner of the
appropriate appointing agency as identified in paragraph e of
subdivision six of this section, shall conduct one or more pilot studies
whereby a private vendor may be accorded preferred source status for
purposes of this section. The pilot studies shall seek to ascertain the
benefits of partnerships between private industry and those entities
accorded preferred source status as specified in this section. Preferred
source status under a partnering arrangement may only be accorded when a
proposal to a soliciting agency for commodities or services includes a
binding agreement with one or more of the entities accorded preferred
source status under this section. The binding agreement shall provide
that:
(i) The preferred source shall perform the majority of the work
necessary to such offering, and
(ii) The partnering proposal includes bona fide long term employment
opportunities for persons who could otherwise be new clients of an
entity previously accorded preferred source status herein, and
(iii) The partnering proposal offers the solicited services or
commodities at a price less than the price that otherwise would be
charged by a preferred source.
8. a. The commissioner of the appropriate appointing agency shall
report by December thirty-first, two thousand four, to the governor, the
chairperson of the senate finance committee, the chairperson of the
assembly ways and means committee and the director of the budget, the
results and findings of each pilot study conducted, pursuant to
subdivision seven of this section, and include recommendations for
improving partnering with preferred sources.
b. The council shall report to the governor, legislative fiscal
committees and the director of the budget by December thirty-first,
nineteen hundred ninety-five and thereafter annually, a separate list
concerning the denial of any application made pursuant to paragraph (b)
of subdivision three of this section, the reasons for such denial,
whether such denial was appealed to the commissioner, and the final
decision by the commissioner on such application.
9. The provisions of this section shall supersede inconsistent
provisions of any general, special or local law, or the provisions of
any charter.
* § 163. Purchasing services and commodities. 1. Definitions. For the
purposes of this section, the following terms shall have the following
meanings unless otherwise specified:
a. "Consortium" means like entities which agree to collectively
purchase commodities at a lower price than would be otherwise achievable
through purchase by such entities pursuant to other provisions of this
article.
b. "Emergency" means an urgent and unexpected requirement where health
and public safety or the conservation of public resources is at risk.
c. "Responsible" or "responsibility" means the financial ability,
legal capacity, integrity, and past performance of a business entity and
as such terms have been interpreted relative to public procurements.
d. "Responsive" means a bidder or other offerer meeting the minimum
specifications or requirements as prescribed in a solicitation for
commodities or services by a state agency.
e. "Specification" or "requirement" means any description of the
physical or functional characteristics or the nature of a commodity or
construction item, any description of the work to be performed, the
service or products to be provided, the necessary qualifications of the
offerer,the capacity and capability of the offerer to successfully carry
out the proposed contract, or the process for achieving specific results
and/or anticipated outcomes or any other requirement necessary to
perform the work. It may include a description of any obligatory
testing, inspection or preparation for delivery and use, and may include
federally required provisions and conditions where the eligibility for
federal funds is conditioned upon the inclusion of such federally
required provisions and conditions. Specifications shall be designed to
enhance competition, ensuring the commodities or services of any offerer
are not given preference except where required by this article.
f. "Procurement record" means documentation of the decisions made and
the approach taken in the procurement process.
g. "Sole source" means a procurement in which only one offerer is
capable of supplying the required commodities or services.
h. "Single source" means a procurement in which although two or more
offerers can supply the required commodities or services, the
commissioner or state agency, upon written findings setting forth the
material and substantial reasons therefor, may award a contract or
non-technical amendment to a contract to one offerer over the other. The
commissioner or state agency shall document in the procurement record
the circumstances leading to the selection of the vendor, including the
alternatives considered, the rationale for selecting the specific vendor
and the basis upon which it determined the cost was reasonable.
i. "Lowest price" means the basis for awarding contracts for
commodities among responsive and responsible offerers.
j. "Best value" means the basis for awarding contracts for services to
the offerer which optimizes quality, cost and efficiency, among
responsive and responsible offerers. Such basis shall reflect, wherever
possible, objective and quantifiable analysis.
2. Operating principles. The objective of state procurement is to
facilitate each state agency's mission while protecting the interests of
the state and its taxpayers and promoting fairness in contracting with
the business community. The state's procurement process shall be guided
by the following principles:
a. To promote purchasing from responsive and responsible offerers,
including small businesses.
b. To be based on clearly articulated procedures which require a clear
statement of product specifications, requirements or work to be
performed; a documentable process for soliciting bids, proposals or
other offers; a balanced and fair method, established in advance of the
receipt of offers, for evaluating offers and awarding contracts;
contract terms and conditions that protect the state's interests and
promote fairness in contracting with the business community; and a
regular monitoring of vendor performance.
c. To encourage the investment of the private and not-for-profit
sectors in New York state by making reasonable efforts to ensure that
offerers are apprised of procurement opportunities; by specifying the
elements of a responsive bid and disclosing the process for awarding
contracts including, if applicable, the relative importance and/or
weight of cost and the overall technical criterion for evaluating
offers; and by ensuring the procurement is conducted accordingly.
d. To ensure that contracts are awarded consistent with the best
interests of the state.
e. To ensure that officers and employees of state entities do not
benefit financially or otherwise from the award of state contracts.
f. To ensure regular and critical review of the efficiency, integrity
and effectiveness of the overall process.
3. General provisions for purchasing commodities.
a. State agency procurement practices for commodities shall
incorporate the following:
(i) The purchase of commodities by state agencies including the office
of general services shall be conducted in a manner which accords first
priority to preferred sources in accordance with the provisions of this
article, second priority to centralized contracts, third priority to
agency or multi-agency established contracts and fourth priority to
other means of contracting.
(ii) Commodities contracts shall be awarded on the basis of lowest
price to a responsive and responsible offerer; or, in the case of
multiple awards, in accordance with paragraph c of subdivision ten of
this section.
(iii) The commissioner shall be responsible for the standardization
and centralized purchase of commodities required by state agencies in a
manner which maximizes the purchasing value of public funds.
(iv) The commissioner is authorized to permit any officer, body or
agency of the state or of a political subdivision or a district therein,
or fire company or volunteer ambulance service as such are defined in
section one hundred of the general municipal law, to make purchases of
commodities through the office of general services' centralized
contracts, pursuant to the provisions of section one hundred four of the
general municipal law. The commissioner is authorized to permit any
county extension service association as authorized under subdivision
eight of section two hundred twenty-four of the county law, or any
association or other entity as specified in and in accordance with
section one hundred nine-a of the general municipal law, or any other
association or entity as specified in state law, to make purchases of
commodities through the office of general services' centralized
contracts; provided, however, that such entity so empowered shall accept
sole responsibility for any payment due with respect to such purchase.
(v) Consistent with guidelines issued by the state procurement
council, state agencies may competitively purchase commodities procured
in accordance with this article in lieu of using centralized contracts
when the resultant price is less than the centralized contract price.
(vi) When justified by price, state agencies, and hospitals and
facilities managed and controlled by state agencies eligible pursuant to
section twenty-eight hundred three-a of the public health law, shall be
eligible to make purchases pursuant to guidelines issued by the state
procurement council from a consortium or comparable entity in lieu of
using centralized contracts for commodities.
(vii) The commissioner is authorized to enter into contracts pursuant
to the provisions of section twenty-eight hundred three-a of the public
health law.
(viii) The commissioner may permit and prescribe the conditions for,
(A) any association, consortium or group of privately owned or
municipal, federal or state owned or operated hospitals, medical
schools, other health related facilities or voluntary ambulance
services, which have entered into a contract and made mutual
arrangements for the joint purchase of commodities pursuant to section
twenty-eight hundred three-a of the public health law; (B) any
institution for the instruction of the deaf or of the blind listed in
section forty-two hundred one of the education law; (C) any qualified
non-profit-making agency for the blind approved by the commissioner of
social services; (D) any qualified charitable non-profit-making agency
for the severely disabled approved by the commissioner of education; (E)
any hospital or residential health care facility as defined in section
twenty-eight hundred one of the public health law; (F) any private
not-for-profit mental hygiene facility as defined in section 1.03 of the
mental hygiene law; and (G) any public authority or public benefit
corporation of the state, including the port authority of New York and
New Jersey and the interstate environmental commission, to make
purchases using centralized contracts for commodities. Such qualified
non-profit-making agencies for the blind and severely disabled may make
purchases from the department of correctional services' correctional
industries program subject to rules pursuant to the correction law.
b. The commissioner shall:
(i) determine, in cooperation with the state procurement council and
state agencies, the identity, form, function and utility of those
commodities which shall be made available on or through centralized
contracts. Criteria may include, but need not be limited to, the
availability of a volume discount, prior use of the commodity among
state agencies and the relative cost of establishing the contract, its
anticipated use and expected actual savings for the state. The
commissioner may also act as a broker for state agencies to procure
commodities.
(ii) determine the number and scope of centralized contracts for
commodities to be let during any period, including the letting of
multiple contracts to ensure the sufficient variety and uninterrupted
availability of commodities for state agency use.
(iii) maintain lists of firms which produce or manufacture or offer
for sale commodities in the form, function and utility required by state
agencies. The commissioner shall ensure such lists are updated
regularly. With the assistance of the department of economic development
and other state agencies, beginning on July first, two thousand one,
ensure the availability to all authorized purchasers of a centralized
list which identifies commodities offered by New York state's small
businesses and a centralized list which identifies commodities and
services offered by businesses certified pursuant to article fifteen-A
of the executive law. Such lists shall be updated semiannually and
designed to enable effective identification of New York state's small
businesses and businesses certified pursuant to article fifteen-A of the
executive law.
(iv) ensure the specification of commodities for centralized contracts
reflect the form, function and utility required by state agencies and
conform, wherever possible, to industry standards. Where necessary, the
commissioner may develop specifications for commodities. When not
otherwise forthcoming from a particular firm or industry, the
commissioner may request information from businesses for the purpose of
establishing or improving a specification. The office of general
services may assist agencies in developing specifications for
agency-procured commodity contracts when industry standards are not
available or appropriate. In all cases, specifications shall be
consistent with the requirements of state agencies.
(v) With the assistance of the department of economic development and
other state agencies, provide a training program once per year, in each
economic development region, as established in article eleven of the
economic development law, beginning January first, two thousand one, for
those businesses certified pursuant to article fifteen-A of the
executive law and those interested in becoming certified. Such training
program shall provide assistance with respect to participation as a
vendor in the procurement process, as established in this article.
(vi) With the assistance of the department of economic development and
other state agencies, provide training once per year for staff of each
state agency's minority and women business development office, or if an
agency does not have such an office, then an agency's representative.
Such training program shall consist of a meeting with such agencies'
representatives to inform each agency of how to encourage procurement of
commodities and services from businesses certified pursuant to article
fifteen-A of the executive law.
(vii) maintain a list of contractors which produce or manufacture or
offer for sale environmentally-sensitive cleaning and maintenance
products in the form, function and utility generally used by elementary
and secondary schools in accordance with specifications or guidelines
promulgated pursuant to section four hundred nine-i of the education
law.
(viii) review and consider prior to issuance of bid solicitations the
term of the proposed contract based on factors, including, but not
limited to; (A) the nature of the commodity, (B) the complexity of the
procurement, (C) the identity and type of purchasers, (D) the
suitability of the contract for adding additional contractors during the
term, and (E) the estimated contract value. This determination shall be
documented in the procurement record.
(ix) reasonably consider aggregate amount of public sales by potential
vendors.
(x) review and consider the feasibility of creating regional contracts
for commodities being procured by the state.
(xi) maintain a procurement record for each centralized contract
procurement identifying, with supporting documentation, decisions made
by the commissioner during the procurement process. The procurement
record shall include, but not be limited to, each contract amendment,
and the justification for each.
c. When commodities are not available in the form, function and
utility required by state agencies through preferred sources or
centralized contracts, a state agency may, independently or in
conjunction with other state agencies, procure commodities in accordance
with the provisions of this section. State agencies may maintain
listings of firms, including those certified pursuant to article
fifteen-A of the executive law, or may use the office of general
services' listing of firms and may request assistance from the office of
general services. It shall be the responsibility of state agencies to
periodically advise the office of general services of those
agency-procured commodities which, due to the frequency of purchase or
related factors, should be made available through centralized contracts.
d. The commissioner may make, or cause to be made by a duly authorized
representative, any investigation which he or she may deem proper for
acquiring the necessary information from a state agency for the exercise
of his or her powers and duties under this subdivision. For such
purposes the commissioner may subpoena and compel the attendance of
witnesses before him or her, or an authorized representative, and may
compel the production of books, papers, records or documents. The
commissioner or a duly authorized representative may take and hear
proofs and testimony and, for that purpose, the commissioner or the duly
authorized representative may administer oaths. In addition, the
commissioner or the duly authorized representative:
(i) Shall have access at all reasonable times to offices of state
agencies;
(ii) May examine all books, papers, records and documents in any such
state agency as pertain directly to the purchase, control or
distribution of commodities; and
(iii) May require any state agency to furnish such data, information
or statement as may be necessary.
4. General provisions for purchasing services. State agency
procurement practices for services shall incorporate the following:
a. The purchase of services by state agencies including the office of
general services shall be conducted in a manner which accords first
priority to preferred sources in accordance with the provisions of this
article when the services required are available in the form, function
and utility required by state agencies through a preferred source.
b. (i) Centralized contracts for services may be procured by the
office of general services at the request of state agencies and state
agencies may when such centralized contracts are in the form, function
or utility required by said agency, purchase from established
centralized contracts. The state procurement council may, from time to
time, require that state agencies procure services from certain
centralized contracts.
(ii) The commissioner shall:
(A) review and consider prior to issuance of bid solicitations the
term of the proposed contract based on factors, including, but not
limited to, (a) the nature of the service, (b) the complexity of the
procurement, (c) the identity and type of purchasers, (d) the
suitability of the contract for adding additional contractors during the
term, and (e) the estimated contract value. This determination shall be
documented in the procurement record.
(B) reasonably consider the aggregate amount of public sales by
potential vendors.
(C) review and consider the feasibility of creating regional contracts
for s
responsive and responsible offerer; or, in the case of multiple awards,
in accordance with paragraph c of subdivision ten of this section.
e. Any officer, body or agency of a political subdivision as defined
in section one hundred of the general municipal law or a district
therein, may make purchases of services through the office of general
services' centralized contracts for services, subject to the provisions
of section one hundred four of the general municipal law. The
commissioner may permit and prescribe the conditions for the purchase of
services through the office of general services' centralized contracts
for services by any public authority or public benefit corporation of
the state including the port authority of New York and New Jersey. The
commissioner is authorized to permit any public library, association
library, library system, cooperative library system, the New York
Library Association, and the New York State Association of Library
Boards or any other library except those which are operated by for
profit entities, to make purchases of services through the office of
general services' centralized contracts; provided, however, that such
entity so empowered shall accept sole responsibility for any payment due
with respect to such purchase.
g. All state agencies shall require all contractors, including
sub-contractors, that provide services for state purposes pursuant to a
contract, to submit an annual employment report for each contract for
services that includes for each employment category within the contract
the number of employees employed to provide services under the contract,
the number of hours they work and their total compensation under the
contract. Employment reports shall be submitted to the agency that
awarded the contract, the department of civil service and the department
of audit and control and shall be available for public inspection and
copying pursuant to section eighty-seven of the public officers law
provided that in disclosing such reports pursuant to the public officers
law, the agency making the disclosure shall redact the name or social
security number of any individual employee that is included in such
document.
5. Process for conducting state procurements. The process for
conducting state procurements for services and commodities shall be as
follows:
a. Determination of need. State agencies shall be responsible for
determining the need for a given service or commodity:
(i) For commodities, upon such determination of need, state agencies
shall ascertain whether the commodity is available in the form, function
and utility consistent with their needs from preferred sources and if
so, shall purchase said commodity from a preferred source in accordance
with the provisions of this article. If not so available, state agencies
shall determine whether the commodity is available in the form, function
and utility consistent with their needs on a centralized contract and if
so, except as provided in subparagraph (v) of paragraph a of subdivision
three of this section, shall purchase said commodity using the
centralized contract. If a commodity is not available in the form,
function and utility consistent with the needs of the state agency from
a preferred source or a centralized contract or as provided for in
subparagraph (v) of paragraph a of subdivision three of this section,
the state agency may procure the commodity independently or in
conjunction with another state agency in accordance with paragraph c of
subdivision three of this section.
(ii) For services, upon such determination of need, state agencies
shall ascertain whether the service is available in the form, function
and utility consistent with their needs from preferred sources and, if
so, shall purchase said service through the preferred source in
accordance with the provisions of this article. If not so available,
state agencies may:
(A) Purchase the service if it is available in the form, function and
utility consistent with their needs using an established centralized
contract procured by either the office of general services or another
state agency;
(B) Request that the office of general services procure such a
service, particularly with respect to those services having utility
and/or benefit to more than one state agency; or
(C) Procure the service independently or in conjunction with another
state agency.
b. The state procurement council may, from time to time, require state
agencies to procure certain services from centralized contracts.
6. Discretionary buying thresholds. Pursuant to guidelines established
by the state procurement council: the commissioner may purchase services
and commodities in an amount not exceeding eighty-five thousand dollars
without a formal competitive process; state agencies may purchase
services and commodities in an amount not exceeding fifty thousand
dollars without a formal competitive process; and state agencies may
purchase commodities or services from small business concerns or those
certified pursuant to article fifteen-A of the executive law, or
commodities or technology that are recycled or remanufactured, in an
amount not exceeding one hundred thousand dollars without a formal
competitive process.
6-a. Discretionary purchases. Notwithstanding the provisions of
subdivision two of section one hundred twelve of this chapter relating
to the dollar threshold requiring the state comptroller's approval of
contracts, the commissioner of general services may make purchases or
enter into contracts for the acquisition of commodities and services
having a value not exceeding eighty-five thousand dollars without prior
approval by any other state officer or agency in accordance with
procedures and requirements set forth in this article. Notwithstanding
the provisions of article four-C of the economic development law, the
commissioner of general services may make purchases or enter into
contracts for the acquisition of commodities and services having a value
not exceeding thirty thousand dollars without prior approval by any
other state officer or agency in accordance with procedures and
requirements set forth in this article.
6-b. Determination of threshold amount. For determination of threshold
amount purposes of determining whether a purchase is within the
discretionary thresholds established by subdivision six of this section,
the commissioner and state agencies shall consider the reasonably
expected aggregate amount of all purchases of the same commodities or
services to be made within the twelve-month period commencing on the
date of purchase. Purchases of services or commodities shall not be
artificially divided for the purpose of satisfying the discretionary
buying thresholds established by subdivision six of this section. A
change to or a renewal of a discretionary purchase shall not be
permitted if the change or renewal would bring the reasonably expected
aggregate amount of all purchases of the same commodities or services
from the same provider within the twelve-month period commencing on the
date of the first purchase to an amount greater than the discretionary
buying threshold amount.
7. Method of procurement. Consistent with the requirements of
subdivisions three and four of this section, state agencies shall select
among permissible methods of procurement including, but not limited to,
an invitation for bid, request for proposals or other means of
solicitation pursuant to guidelines issued by the state procurement
council. State agencies may accept bids electronically and may, for
technology contracts only, require electronic submission as the sole
method for the submission of bids for the solicitation, provided that
the agency has made a determination, which shall be documented in the
procurement record, that such method affords a fair and equal
opportunity for offerers to submit responsive offers. Except where
otherwise provided by law, procurements shall be competitive, and state
agencies shall conduct formal competitive procurements to the maximum
extent practicable. State agencies shall document the determination of
the method of procurement and the basis of award in the procurement
record. Where the basis for award is the best value offer, the state
agency shall document, in the procurement record and in advance of the
initial receipt of offers, the determination of the evaluation criteria,
which whenever possible, shall be quantifiable, and the process to be
used in the determination of best value and the manner in which the
evaluation process and selection shall be conducted.
8. Public notice. All procurements by state agencies in excess of
fifteen thousand dollars shall be advertised in the state's procurement
opportunities newsletter in accordance with article four-C of the
economic development law.
9. Soliciting and accepting offers. For purchases from sources other
than preferred sources and for purchases in excess of the discretionary
buying threshold established in subdivision six of this section:
a. The commissioner or a state agency shall select a formal
competitive procurement process in accordance with guidelines
established by the state procurement council and document its
determination in the procurement record. The process shall include, but
is not limited to, a clear statement of need; a description of the
required specifications governing performance and related factors; a
reasonable process for ensuring a competitive field; a fair and equal
opportunity for offerers to submit responsive offers; and a balanced and
fair method of award. Where the basis for the award is best value,
documentation in the procurement record shall, where practicable,
include a quantification of the application of the criteria to the
rating of proposals and the evaluation results, or, where not
practicable, such other justification which demonstrates that best value
will be achieved.
b. The solicitation shall prescribe the minimum specifications or
requirements that must be met in order to be considered responsive and
shall describe and disclose the general manner in which the evaluation
and selection shall be conducted. Where appropriate, the solicitation
shall identify the relative importance and/or weight of cost and the
overall technical criterion to be considered by a state agency in its
determination of best value.
c. Where provided in the solicitation, state agencies may require
clarification from offerers for purposes of assuring a full
understanding of responsiveness to the solicitation requirements. Where
provided for in the solicitation, revisions may be permitted from all
offerers determined to be susceptible of being selected for contract
award, prior to award. Offerers shall be accorded fair and equal
treatment with respect to their opportunity for discussion and revision
of offers. A state agency shall, upon request, provide a debriefing to
any unsuccessful offerer that responded to a request for proposal or an
invitation for bids, regarding the reasons that the proposal or bid
submitted by the unsuccessful offerer was not selected for an award. The
opportunity for an unsuccessful offerer to seek a debriefing shall be
stated in the solicitation, which shall provide a reasonable time for
requesting a debriefing.
d. All offers may be rejected. Where provided in the solicitation,
separable portions of offers may be rejected.
e. Every offer shall be firm and not revocable for a period of sixty
days from the bid opening, or such other period of time specified in the
solicitation to the extent not inconsistent with section 2-205 of the
uniform commercial code. Subsequent to such sixty day or other specified
period, any offer is subject to withdrawal communicated in a writing
signed by the offeror.
f. Prior to making an award of contract, each state agency shall make
a determination of responsibility of the proposed contractor which shall
supplement, as appropriate, but not supersede the determination of
responsibility that may be required pursuant to section one hundred
thirty-nine-k of this chapter.
g. A procurement record shall be maintained for each procurement
identifying, with supporting documentation, decisions made by the
commissioner or state agency during the procurement process. The
procurement record shall include, but not be limited to each contract
amendment and the justification for each.
10. Letting of contracts. Contracts for commodities shall be awarded
on the basis of lowest price to a responsive and responsible offerer.
Contracts for services shall be awarded on the basis of best value from
a responsive and responsible offerer. Multiple awards for services and
commodities shall be conducted in accordance with paragraph c of this
subdivision.
a. Selection and award shall be a written determination in the
procurement record made by the commissioner or a state agency in a
manner consistent with the provisions of the solicitation. In the event
two offers are found to be substantially equivalent, price shall be the
basis for determining the award recipient or, when price and other
factors are found to be substantially equivalent, the determination of
the commissioner or agency head to award a contract to one or more of
such bidders shall be final. The basis for determining the award shall
be documented in the procurement record.
b. (i) Single or sole source procurements for services or commodities,
or procurements made to meet emergencies arising from unforeseen causes,
may be made without a formal competitive process and shall only be made
under unusual circumstances and shall include a determination by the
commissioner or the state agency that the specifications or requirements
for said purchase have been designed in a fair and equitable manner. The
purchasing agency shall document in the procurement record, subject to
review by the state comptroller, the bases for a determination to
purchase from a single source or sole source, or the nature of the
emergency giving rise to the procurement.
(ii) State agencies shall minimize the use of single source
procurements and shall use single source procurements only when a formal
competitive process is not feasible. State agencies shall document in
the procurement record the circumstances and the material and
substantial reasons why a formal competitive process is not feasible.
The term of a single source procurement contract shall be limited to the
minimum period of time necessary to ameliorate the circumstances which
created the material and substantial reasons for the single source
award. Not later than thirty days after the contract award, state
agencies shall, for all single source procurement contracts, make
available for public inspection on the agency website, a summary of the
circumstances and material and substantial reasons why a competitive
procurement is not feasible. Any information which the contracting
agency is otherwise prohibited by law from disclosing pursuant to
sections eighty-seven and eighty-nine of the public officers law, shall
be redacted from the documentation published on the agency website.
c. The commissioner or state agency may elect to award a contract to
one or more responsive and responsible offerers provided, however, that
the basis for the selection among multiple contracts at the time of
purchase shall be the most practical and economical alternative and
shall be in the best interests of the state, and further provided that
the requirements set forth herein shall not preclude the commissioner
from establishing multiple award contracts for reasons including
increased opportunities for small businesses to participate in state
contracts.
d. It shall be in the discretion of the commissioner or state agency
to require a bond or other guarantee of performance, and to approve the
amount, form and sufficiency thereof.
e. The commissioner may authorize purchases required by state agencies
or other authorized purchasers by letting a contract pursuant to a
written agreement, or by approving the use of a contract let by any
department, agency or instrumentality of the United States government
and/or any department, agency, office, political subdivision or
instrumentality of any state or states. A state agency purchaser shall
document in the procurement record its rationale for the use of a
contract let by any department, agency or instrumentality of the United
States government or any department, agency, office, political
subdivision or instrumentality of any other state or states. Such
rationale shall include, but need not be limited to, a determination of
need, a consideration of the procurement method by which the contract
was awarded, an analysis of alternative procurement sources including an
explanation why a competitive procurement or the use of a centralized
contract let by the commissioner is not in the best interest of the
state, and the reasonableness of cost.
f. The commissioner is authorized to let centralized contracts, in
accordance with the procedures of this section, for joint purchasing by
New York state and any department, agency or instrumentality of the
United States government and/or any state including the political
subdivisions thereof; provided however that any entity incurring a
liability under such contract shall be responsible for discharging said
liability.
11. Reasonableness of results. It shall be the responsibility of the
head of each state agency to periodically sample the results of the
procurement process to test for reasonableness; to ensure that the
results withstand public scrutiny and that the quality and the price of
the purchase makes sense; and to ensure that purchasing is conducted in
a manner consistent with the best interests of the state.
12. Review by the office of the state comptroller. Review by the
office of the state comptroller shall be in accordance with section one
hundred twelve of this chapter.
13. Technological procurement improvements. The state procurement
council may request that the office of general services provide, or
recommend to the state comptroller to provide for the utilization of
technological advances and efficiencies in the procurement process
including, but not limited to, electronic ordering and payment,
procurement cards and similar improvements.
14. Reporting. To support prudent procurement management, oversight
and policy-making, the department of audit and control shall report
annually on a fiscal year basis by July first of the ensuing year to the
state procurement council, the governor, and the legislative fiscal
committees providing data concerning active procurement contracts above
fifteen thousand dollars, including but not limited to:
(i) a listing of individual and centralized contracts, including
vendor name, comptroller approval dates, dollar value of such contracts,
the state agency which let the contract and/or state agencies which
purchased off centralized contracts, expenditures made on each such
contract and by which agencies during the fiscal year and life to date,
citing contract category codes, source selection method, including
"lowest price", "best value", sole source, single source, negotiated and
emergency procurement subtotaled by agency and by type of commodity or
service;
(ii) frequency of contracts awarded during this fiscal year by number
of bids/proposals and source selection method;
(iii) number of contracts disapproved by the department of audit and
control during the fiscal year and reasons for disapproval by agency and
by source selection method, number and outcome of bid protests; and
(iv) a summary report listing total number and amount of contracts
awarded for the prior fiscal year and total year-to-date expenditures
for all contracts, with subtotals by agency and major contract category
including, but not limited to, consultant, construction, equipment,
grants, leases, land claim, miscellaneous services, printing, repayment
agreements, revenue agreements, intergovernmental agreements, and
commodities; a comparison of centralized and agency contracts by number
of contracts, number of agencies purchasing off of centralized contracts
or entering into contracts, contract amounts and year-to-date
expenditures; comparison of contracts by source selection method by
number of contracts, contract amounts, and year-to-date expenditures.
(v) for each contract for services for state purposes: the number of
employees, by employment category within the contract, employed to
provide services under the contract, the number of hours they work and
their total compensation under the contract;
(vi)(a) state agencies shall report annually on a fiscal year basis by
July first of the ensuing year to the state procurement council, the
governor, the legislative fiscal committees and the state comptroller
the total number and total dollar value of single source contracts
awarded by the agency during the fiscal year, and the percentage that
such contracts represent of the agency's total number and total dollar
value of contract awards during the reporting period.
(b) each state agency shall include with its report an assessment by
the agency head of the agency's efforts to minimize the award of single
source contracts;
(vii) all reports required under this paragraph shall be available for
public inspection and copying pursuant to section eighty-seven of the
public officers law provided that in disclosing such reports pursuant to
the public officers law, the agency making the disclosure shall redact
the name or social security number of any individual employee that is
included in such document.
* NB Repealed June 30, 2012
Services being procured by the state.
(D) maintain a procurement record for each centralized contract
procurement identifying with supporting documentation, decisions made by
the commissioner during the procurement process. The procurement records
shall include, but not be limited to, each contract amendment, and the
justification for each.
c. When services are not available from preferred sources consistent
with the provisions of this article in the form, function or utility
required by state agencies, state agencies may procure services
independently or in conjunction with other state agencies in accordance
with the provisions of this section.
d. Service contracts shall be awarded on the basis of best value to a
§ 163-a. Vendor preparation of specifications for technology
procurements; prohibitions. If a vendor prepares and furnishes
specifications for a state agency technology procurement proposal, to be
used in a competitive acquisition, such vendor shall not be permitted to
bid on such procurement, either as a prime vendor or as a subcontractor.
Contracts for evaluation of offers for products or services shall not be
awarded to a vendor that would then evaluate its own offers for products
or services. Such restrictions shall not apply where:
1. The vendor is the sole source or single source of the product or
service;
2. More than one vendor has been involved in preparing the
specifications for a procurement proposal;
3. A vendor has furnished at government request specifications or
information regarding a product or service they provide, but such vendor
has not been directly requested to write specifications for such product
or service or an agency technology procurement proposal; or
4. The state agency together with the office for technology determines
that the restriction is not in the best interest of the state. Such
office shall notify each member of the advisory council established in
article one of the state technology law of any such waiver of these
restrictions.
* § 163-b. Environmentally-sensitive cleaning and maintenance
products. The commissioner of general services shall maintain a list of
contractors which produce or manufacture or offer for sale
environmentally-sensitive cleaning and maintenance products in the form,
function and utility generally used by elementary and secondary schools
in accordance with specifications or guidelines promulgated pursuant to
section four hundred nine-i of the education law.
NB Effective June 30, 2007
§ 163-c. Centralized procurement contract fee. 1. For purposes of this
section, the following terms shall have the specified meanings:
a. "Authorized user" means any person or entity authorized to
purchase:
(i) commodities under a centralized contract pursuant to subparagraph
(iv) or subparagraph (viii) of paragraph a of subdivision three of
section one hundred sixty-three of this article; or
(ii) services or technology under a centralized contract pursuant to
paragraph b or e of subdivision four of section one hundred sixty-three
of this article.
b. "Centralized contract" means contracts for the purchase of
commodities, services or technology, established by the commissioner of
general services.
c. "Electronic" means of or relating to technology having electrical,
digital, magnetic, wireless, optical, electromagnetic, or similar
capabilities.
2. The commissioner of general services shall require that contractors
selected to offer centralized contracts through the state for
commodities, services or technology add to the price in all such
contracts a centralized procurement contract fee equal to one-half of
one percent of the price to be reported through sales reports to the
office of general services. The following types of contracts may be
exempted from the centralized procurement contract fee:
a. federal, other public jurisdictions' or multi-state contracts or
schedules adopted by the state pursuant to paragraphs e and f of
subdivision ten of section one hundred sixty-three of this article,
b. centralized contracts where an administrative fee is included as a
contract requirement.
3. Each contractor collecting the fee imposed pursuant to subdivision
two of this section shall:
a. electronically pay over to the department of taxation and finance
all fees collected quarterly, on or before the forty-fifth day following
the last day of each calendar quarter; provided, however, that if the
contractor fails to collect the fee from the authorized user on a
purchase under a centralized contract, then the contractor shall be
responsible for electronically paying the fee over to the department of
taxation and finance; and
b. electronically file a return with the department of taxation and
finance quarterly, containing such information as the commissioner of
taxation and finance shall prescribe. The return shall be due on or
before the forty-fifth day following the last day of each calendar
quarter. If no authorized users made purchases from a contractor
selected to offer a centralized contract during the calendar quarter for
which the return is required to be filed, then the contractor shall
electronically file a return indicating that no purchases were made
during that quarter. Information contained in, or derived from, the
returns required to be filed pursuant to this paragraph shall not be
covered by the secrecy provisions of the tax law.
A contractor shall be exempt from the mandatory electronic payment and
electronic filing requirements prescribed by paragraph a and paragraph b
of this subdivision if the contractor notifies the office of general
services, in a manner to be determined by such office, that it cannot
reasonably comply with such electronic payment and electronic filing
requirements. In such case, the contractor shall, in lieu of
electronically paying over the centralized procurement contract fee and
electronically filing a return with the department of taxation and
finance, pay over such fee by paper check, and file a paper return, with
the office of general services on or before the forty-fifth day
following the last day of each calendar quarter. The department of
taxation and finance and the office of general services shall mutually
develop a means by which the returns received by the office of general
services pursuant to this paragraph shall be electronically transmitted
to the department of taxation and finance for purposes of reconciling
the information reported on such returns with fee payments for each
calendar quarter.
The office of general services shall cooperate and provide the
department of taxation and finance with such information as the
department may require regarding contractors selected to offer
centralized contracts, in order to facilitate the department's
development and implementation of the electronic payment and electronic
filing applications prescribed by paragraph a and paragraph b of this
subdivision. The office of general services shall work with the
department of taxation and finance to encourage those contractors not
able to use the electronic payment and filing applications prescribed by
paragraph a and paragraph b of this subdivision to do so.
4. Failure to timely and accurately collect and remit the centralized
procurement contract fee as required by subdivision three of this
section may be deemed to constitute a breach of such contract, and the
commissioner of general services has the discretion to terminate such
centralized contract with such contractor for such breach on notice to
the contractor.
5. a. If:
(i) a contractor awarded a centralized contract has a past-due,
legally enforceable tax debt or other debt due to a state agency,
(ii) the debt is being offset against a contract payment received from
an authorized user pursuant to the state contract offset program
administered by the office of the state comptroller and the department
of taxation and finance, and
(iii) the past-due, legally enforceable debt is larger than the
contract payment (including the fee imposed by this section), then, the
full amount of the contract payment (including the fee imposed by this
section) shall be applied to the contractor's past-due, legally
enforceable debt, and the contractor shall remain responsible for filing
the return and paying over the amount of the fee due on such contract
payment at the time prescribed in subdivision three of this section.
b. If:
(i) a contractor awarded a centralized contract has a past-due,
legally enforceable tax debt or other debt due to a state agency,
(ii) the debt is being offset against a contract payment received from
an authorized user pursuant to the state contract offset program
administered by the office of the state comptroller and the department
of taxation and finance, and
(iii) the past-due, legally enforceable debt is smaller than the
contract payment (including the fee imposed by this section), then, the
amount of the contract payment necessary to fully pay the debt (which
shall include the fee imposed by this section), shall be applied to the
debt, and the contractor shall remain responsible for filing the return
and paying over the amount of the fee due on such contract payment at
the time prescribed in subdivision three of this section.
6. All fees received by the commissioner of taxation and finance and
the commissioner of general services pursuant to this section, reduced
by amounts approved by the director of the budget to be retained by the
commissioner of taxation and finance to cover administrative costs and
the costs of refunds or reimbursements required to be made to authorized
users under this section, shall be deposited quarterly to the credit of
the general fund of the state. The commissioner of taxation and finance
shall determine an amount for administrative costs incurred by the
department of taxation and finance, which amount shall represent the
reasonable costs of the department of taxation and finance in
administering the program prescribed by this section. The commissioner
of taxation and finance shall also determine the amount necessary for
refunds or reimbursements required to be made to authorized users under
this section, and shall pay such refunds or reimbursements out of such
retained amounts. The commissioner of taxation and finance shall
maintain a system of accounts showing the amount of money collected and
disbursed from the fee imposed by this section.
7. The provisions of article twenty-seven of the tax law shall apply
to the provisions of this section in the same manner and with the same
force and effect as if the language of such article had been
incorporated in full into this section and had expressly referred to the
fees under this section except that the term "fee" or "fees" when used
in this section shall mean "tax" or "taxes" for the purpose of the
application of article twenty-seven of the tax law as incorporated by
this subdivision, and except to the extent that any provision of such
article is either inconsistent with a provision of this section or is
not relevant to this section.
§ 164. Exemptions. Services and commodities such as are incident to
the performance of a contract for labor and material and which are
subject to the jurisdiction of the public service commission or subject
to the jurisdiction of another similar entity shall be exempt from the
provisions of this article with respect to purchasing and contracting so
long as no competition exists for the particular service required by the
state agency.
§ 165. Purchasing restrictions. 1. Definitions. a. "Non-tropical
hardwood species" shall mean any and all hardwood that grows in any
geographically temperate regions, as defined by the United States Forest
Service, and is similar to tropical hardwood in density, texture, grain,
stability or durability. Non-tropical hardwoods, the use or purchase of
which shall be preferred under this article, shall include, but not be
limited to the following species:
Scientific Name Common Name
Fraxinus americana Ash
Tila americana Basswood
Fagus grandifolia Beech
Betula papyrifera Birch
Juglans cinerea Butternut
Prunus serotina Cherry
Populus spp. Cottonwood
Ulmus spp. Elms
Nyssa sylvatica Black gum
Liquidambar styracifula Red gum
Celtis laevigata Hackberry
Hicoria spp. Hickory
Acer spp. Maples
Quercus spp. Oaks
Hicoria spp. Pecan
Liriodendron tulipi fera Yellow Poplar
Platanus occidentalis Sycamore
Juglans nigra Black Walnut
b. "Tropical hardwood" shall mean any and all hardwood, scientifically
classified as angiosperm, that grows in any tropical moist forest.
Tropical hardwoods shall be the following species:
Scientific Name Common Name
Vouacapous americana Acapu
Pericopsis elata Afrormosis
Shorea almon Almon
Peltogyne spp. Amaranth
Guibourtia ehie Amazaque
Aningeris spp. Aningeria
Dipterocarpus grandiflorus Apilong
Ochroma lagopus Balsa
Virola spp. Banak
Anisoptera thurifera Bella Rose
Guibourtis arnoldiana Benge
Deterium Senegalese Boire
Priora copaifera Cativo
Antiaris africana Chenchen
Dalbergis retusa Concobola
Cordia spp. Cordia
Diospyros spp. Ebony
Aucoumes klaineana Gaboon
Chlorophors excelsa Iroko
Acacia koa Koa
Pterygota macrocarpa Koto
Shorea negrosensis Red Lauan
Pentacme contorta White Lauan
Shores ploysprma Tanguile
Terminalia superba Limba
Aniba duckei Louro
Kyaya ivorensis Africa Mahogany
Swletenia macrophylla Amer. Mahogany
Tieghemella leckellii Makora
Distemonanthus benthamianus Movingui
Pterocarpus soyauxii African Padauk
Pterocarpus angolensis Angola Padauk
Aspidosperma spp. Peroba
Peltogyne spp. Purpleheart
Gonystylus spp. Ramin
Dalbergia spp. Rosewood
Entandrophragm a cylindricum Sapela
Shores phillippinensis Sonora
Tectona grandis Teak
Lovoa trichilloides Tigerwood
Milletia laurentii Wenge
Microberlinia brazzavillensis Zebrawood
c. "Tropical rain forests" shall mean any and all forests classified
by the scientific term "Tropical moist forests", the classification
determined by the equatorial region of the forest and average rainfall.
d. "Tropical wood products" shall mean any wood products, wholesale or
retail, in any form, including but not limited to veneer, furniture,
cabinets, paneling, moldings, doorskins, joinery, or sawnwood, which are
composed of tropical hardwood except plywood.
e. "Secondary materials" means any material recovered from or
otherwise destined for the waste stream, including, but not limited to,
post-consumer material, industrial scrap material and overstock or
obsolete inventories from distributors, wholesalers and other companies
but such term does not include those materials and by-products generated
from, and commonly reused within, an original manufacturing process.
2. Prohibition on purchase of tropical hardwoods.
a. Except as hereinafter provided, the state and any governmental
agency or political subdivision or public benefit corporation of the
state shall not purchase or obtain for any purpose any tropical
hardwoods or tropical hardwood products, wholesale or retail, in any
form.
b. The provisions of paragraph a of this subdivision shall not apply
to:
(i) Any hardwoods purchased from a sustained, managed forest; or
(ii) Any binding contractual obligations for purchase of commodities
entered into prior to August twenty-fifth, nineteen hundred ninety-one;
or
(iii) The purchase of any tropical hardwood or tropical hardwood
product for which there is no acceptable non-tropical hardwood species;
or
(iv) Where the contracting officer finds that no person or entity
doing business in the state is capable of providing acceptable
non-tropical hardwood species sufficient to meet the particular contract
requirements; or
(v) Where the inclusion or application of such provisions will violate
or be inconsistent with the terms or conditions of a grant, subvention
or contract in an agency of the United States or the instructions of an
authorized representative of any such agency with respect to any such
grant, subvention or contract; or
(vi) Where inclusion or application of such provisions results in a
substantial cost increase to the state, government agency, political
subdivision, public corporation or public benefit corporation.
c. (i) In the case of any bid proposal or solicitation, request for
bid or proposal or contract for the construction of any public work,
building maintenance or improvement for or on behalf of the state and
any governmental agency or political subdivision or public benefit
corporation of the state, it shall not require or permit the use of any
tropical hardwood or wood product.
(ii) Every bid proposal, solicitation, request for bid or proposal and
contract for the construction of any public work, building maintenance
or improvement shall contain a statement that any bid, proposal or other
response to a solicitation for bid or proposal which proposes or calls
for the use of any tropical hardwood or wood product in performance of
the contract shall be deemed non-responsive.
d. The provisions of paragraph c of this subdivision shall not apply:
(i) To bid packages advertised and made available to the public or any
competitive and sealed bids received or entered into prior to August
twenty-fifth, nineteen hundred ninety-one; or
(ii) To any amendment, modification or renewal of a contract, which
contract was entered into prior to August twenty-fifth, nineteen hundred
ninety-one, where such application would delay timely completion of a
project or involve an increase in the total monies to be paid under that
contract; or
(iii) Where the contracting officer finds that:
(A) No person or entity doing business in the state is capable of
performing the contract using acceptable non-tropical hardwood species;
or
(B) The inclusion or application of such provisions will violate or be
inconsistent with the terms or conditions of a grant, subvention or
contract with an agency of the United States or the instructions of an
authorized representative of any such agency with respect to any such
grant, subvention or contract; or
(C) The use of tropical woods is deemed necessary for purposes of
historical restoration and there exists no available acceptable
non-tropical wood species.
3. Purchasing of commodities for state use.
a. For the purposes of this subdivision, the following terms shall
have the meanings set forth herein. "Recycled commodity" shall mean any
commodity that has been manufactured from secondary materials as defined
in subdivision one of section two hundred sixty-one of the economic
development law and that meets secondary material content requirements
adopted by the office of general services, which shall be consistent, to
the extent practicable, with regulations promulgated pursuant to section
27-0717 of the environmental conservation law or, if no such
requirements have been adopted or no such product is available, meets
the secondary material content requirements adopted by any state agency
with respect to a specific commodity procurement by such agency.
"Remanufactured" shall mean any commodity that has been restored to its
original performance standards and function and is thereby diverted from
the solid waste stream, retaining, to the extent practicable, components
that have been through at least one life cycle and replacing consumable
or normal wear components. "Recyclable" shall mean any commodity that
can be collected, separated, or otherwise recovered from the solid waste
stream for reuse, remanufacture or assembly of another commodity,
through a widely available and easily accessible program.
b. Consistent with determinations of need required by subdivision five
of section one hundred sixty-three of this article, the commissioner and
state agencies shall purchase recycled, remanufactured or recyclable
commodities when such commodities meet their form, function and utility
and shall consider the cost of the commodity over its lifecycle. The
commissioner and a state agency shall also have the authority to
determine that for reasons of public health or safety, a recycled,
remanufactured or recyclable commodity should not be purchased. Such
determinations shall be documented in the procurement record.
(i) A state agency shall purchase recycled commodities at a cost
premium only if (A) the cost premium associated with a commodity which
has recycled content does not exceed ten percent above the cost of a
commodity made without recycled content or, (B) the cost of a recycled
commodity that contains at least fifty percent secondary materials
generated from the waste stream in New York state, does not exceed a
cost premium of fifteen percent above the cost of a comparable
commodity.
(ii) A state agency shall not be required to purchase recyclable or
remanufactured commodities at a cost premium unless such commodity also
constitutes a "recycled commodity" as defined in this subdivision and
that as such a recycled commodity, it has been offered for sale in
conformance with the standards for application of a cost premium for
recycled commodities as set forth in clauses (A) and (B) of subparagraph
(i) of this paragraph.
c. The commissioner shall periodically review the general
specifications in order to eliminate, wherever feasible, discriminations
against the procurement of commodities manufactured with recovered
materials or remanufactured materials; and shall annually review the
paper specifications to consider increasing the percentage of recycled
paper in paper commodity purchases.
d. Whenever the commissioner or other state agencies shall purchase or
cause the purchase of printing on recycled paper, he or she shall
require, to the extent feasible, the printed material to meet the
requirements of subdivision two of section 27-0717 of the environmental
conservation law and regulations promulgated pursuant thereto, and to
include a printed statement or symbol which indicates that the document
is printed on recycled paper.
e. Each state agency shall devise, institute and maintain a program to
source separate waste paper generated within state office facilities.
Such a program shall include marketing arrangements and appropriate
procedures to ensure the recovery of discarded paper in a uncontaminated
condition.
f. Each state agency shall devise and institute a program to source
separate all other waste generated within state office facilities that
is not covered by paragraph e of this subdivision. Such program shall
include marketing arrangements and appropriate procedures to ensure the
maximum recovery of such waste.
g. In addition to carrying out the provisions of paragraphs e and f of
this subdivision, the commissioner shall identify and implement specific
steps which will reduce, to the maximum extent practicable, waste
generated in state facilities and maximize the recovery and reuse of
secondary materials from such facilities. Such steps and their
implementation shall be reviewed from time to time but no less
frequently than annually or upon receiving recommendations for
additional steps from the solid waste management board, the department
of environmental conservation or the environmental facilities
corporation.
h. All state agencies shall fully cooperate with the commissioner in
all phases of implementing the provisions of this section.
i. The commissioner shall report annually to the governor and the
legislature by September first concerning the quantities of recycled
paper purchased by the office of general services and by state agencies
pursuant to paragraph c of this subdivision, and concerning the amounts
of waste recycled from state offices and other facilities pursuant to
paragraphs e and f of this subdivision, the extent of waste reduction,
the percentage of the total waste stream which is recycled, the kinds of
materials eliminated from the waste stream, the full avoided costs of
proper collection and disposal costs of implementing the programs under
this section, the specific activities undertaken, goals for the
subsequent year resulting from the implementation of steps pursuant to
paragraph g of this subdivision, and remaining issues and areas for
improvement. Such reports shall be widely disseminated as a means of
assisting those outside state government in the design and
implementation of waste reduction and recycling programs, through
discussion of the state's experience in implementing all program aspects
such as collection, sorting, handling, storage and marketing, and the
resulting accomplishments.
j. The commissioner shall submit to the director of the budget, the
chairman and ranking minority member of the senate finance committee and
the chairman and ranking minority member of the assembly ways and means
committee an evaluation of all the source separation programs
implemented under this subdivision, for paper and other waste prepared
by an independent entity. Such evaluation shall be submitted by
September first, nineteen hundred ninety-six and by September first,
every two years thereafter.
4. Special provisions for purchase of available New York food
products.
a. Except as otherwise provided in this subdivision, when letting
contracts for the purchase of food products on behalf of facilities and
institutions of the state, solicitation specifications of the office of
general services and any other agency, department, office, board or
commission may require provisions that mandate that all or some of the
required food products are grown, produced or harvested in New York
state, or that any processing of such food products take place in
facilities located within New York state.
b. The commissioner of agriculture and markets shall determine, using
uniform criteria, those food products for which the requirements of this
subdivision are deemed beneficial and shall promulgate and forward to
the appropriate agencies a list of such food products, and shall in
addition ascertain those periods of time each year that those food
products are available in sufficient quantities for competitive
purchasing and shall forward such information to purchasing agencies.
The commissioner of agriculture and markets shall update such list as
often as is deemed by him or her to be necessary.
c. (i) Prior to issuing a solicitation for such food products,
purchasing agencies shall advise the commissioner of agriculture and
markets of the quantities of each food product on the list promulgated
by the commissioner of agriculture and markets to fulfill that agency's
purchasing needs.
(ii) The commissioner of agriculture and markets will then make a
determination of whether those products required by the purchasing
agency are available in sufficient quantities to satisfy the purchasing
agency's requirements.
(iii) Upon a determination by the commissioner of agriculture and
markets that the food products required by the purchasing agency are
available in sufficient quantities to fulfill the agency's purchasing
needs, the purchasing agency may include in its solicitation a
requirement that all or some of those food products are grown, produced
or harvested in New York state, or that any processing of such food
products take place in facilities located within New York state.
(iv) Upon a determination by the commissioner of agriculture and
markets that such food products are not available in sufficient
quantities to fulfill the agency's purchasing needs, the purchasing
agency shall issue a solicitation that does not require that all or some
of those food products are grown, produced or harvested in New York
state, or that any processing of such food products take place in
facilities located within New York state. In such cases, the purchasing
agency may include such requirements in the next contract for such food
products that is let if at such time those food products are available
in sufficient quantities. If at that time, those food products are not
available in sufficient quantities, the requirement shall again be
waived until such time as the products are available.
(v) In the event that the purchasing agency receives no offers that
meet the agency's requirement that all or some of the food products are
grown, produced or harvested in New York state, or that any processing
of such food products take place in facilities located within New York
state, it may waive the provisions of this subdivision and award a
contract in accordance with other applicable statutes. In addition, if
the commissioners of agriculture and markets, economic development and
any such individual agency shall agree as to the deleterious economic
impact of specifications requiring such purchases, such agencies may
waive the provisions of this subdivision for such purchases.
d. The commissioner, and the commissioner of agriculture and markets,
may issue such regulations as they deem necessary and proper for the
implementation of this subdivision.
e. Notwithstanding any other section of law, rule, regulation or
statute, the department of agriculture and markets shall supply
information required by paragraph b of this subdivision to the office of
general services and to all other appropriate agencies.
f. (i) With each offer, the offerer shall certify that the food
products provided pursuant to that solicitation will be in conformity
with the provisions of the percentage required to meet or exceed the
requirements in the solicitation specifying that all or some of the food
products be grown, produced, or harvested within New York state or that
any processing of such food products take place in facilities located
within New York state.
(ii) Any successful offerer who fails to comply with the provisions of
this subdivision, at the discretion of such agency, board, office or
commission, shall forfeit the right to bid on contracts let under the
provisions of this subdivision for a period of time to be determined by
the commissioner and the commissioner of agriculture and markets.
g. The commissioner and the commissioner of agriculture and markets,
shall advise and assist the chancellor of the state university of New
York in extending the benefits of the provisions of this subdivision to
the university and shall modify any regulations or procedures heretofore
established pursuant to this subdivision, in order to facilitate such
participation.
4-a. Favored source status for New York state labelled wines. a. In
order to advance specific economic goals, New York state labelled wines,
as defined in subdivision twenty-a of section three of the alcoholic
beverage control law, shall have favored source status for the purposes
of procurement in accordance with the provisions of this subdivision.
Procurement of these New York state labelled wines shall be exempt from
the competitive procurement provisions of section one hundred
sixty-three of this article and other competitive procurement statutes.
Such exemption shall apply to New York state labelled wines as defined
in subdivision twenty-a of section three of the alcoholic beverage
control law produced by a licensed winery as defined in section
seventy-six of the alcoholic beverage control law.
b. The commissioner of taxation and finance, in consultation with the
commissioners of the state liquor authority shall prepare a list of
wines that are eligible as determined by the criteria in paragraph a of
this subdivision and that are available and are being provided, for
purchase by state agencies, public benefit corporations, commissions or
political subdivisions from those entities which produce such New York
state labelled wine. Such list may include references to catalogs and
other descriptive literature which are available directly from any
winery that produces wine accorded favored source status under this
subdivision. The commissioner shall make this list available to
prospective vendors, state agencies, public benefit corporations,
political subdivisions and other interested parties. Any wines that meet
the criteria under paragraph a of this subdivision shall be eligible for
this favored source status.
c. The state procurement council in consultation with the
commissioners of the state liquor authority, and upon application from a
winery, will determine if a particular New York state labelled wine
meets the required criteria under paragraph a of this subdivision for
favored source status, and if so, such wine shall be added to the list
of favored source status New York state labelled wines. In order to
insure that such list reflects current production and/or availability of
commodities and services, the state procurement council may delete at
the request of a winery a favored wine from the list established by the
criteria in paragraph a of this subdivision. The state procurement
council will also determine if a particular wine no longer meets the
required definition under paragraph a of this subdivision for favored
source status, and if it does not, such wine shall be deleted from the
list of favored source status or favored wines.
d. The commissioners of the state liquor authority, in consultation
with the commissioner of taxation and finance and office of general
services, shall make every effort to encourage state agencies, public
authorities and political subdivisions when they purchase any quantity
of wine to purchase those wines that have been granted favored source
status as determined by the commissioners of the state liquor authority
and the state procurement council.
e. The list shall be maintained by the office of general services in
accordance with provisions of section one hundred sixty-two of this
article and shall be revised as necessary to reflect the additions and
deletions of wines as determined by the state procurement council.
5. Nondiscrimination in employment in Northern Ireland.
a. For the purposes of this subdivision "MacBride Fair Employment
Principles" shall mean those principles relating to nondiscrimination in
employment and freedom of work place opportunity which would require
employers doing business in Northern Ireland to:
(i) increase the representation of individuals from underrepresented
religious groups in the work force, including managerial, supervisory,
administrative, clerical and technical jobs;
(ii) take steps to promote adequate security for the protection of
employees from underrepresented religious groups both at the workplace
and while traveling to and from work;
(iii) ban provocative religious or political emblems from the work
place;
(iv) publicly advertise all job openings and make special recruitment
efforts to attract applicants from underrepresented religious groups;
(v) establish layoff, recall and termination procedures which do not
in practice favor a particular religious group;
(vi) abolish all job reservations, apprenticeship restrictions and
differential employment criteria which discriminate on the basis of
religion;
(vii) develop training programs that will prepare substantial numbers
of current employees from underrepresented religious groups for skilled
jobs, including the expansion of existing programs and the creation of
new programs to train, upgrade and improve the skills of workers from
underrepresented religious groups;
(viii) establish procedures to assess, identify and actively recruit
employees from underrepresented religious groups with potential for
further advancement; and
(ix) appoint a senior management staff member to oversee affirmative
action efforts and develop a timetable to ensure their full
implementation.
b. (i) With respect to contracts described in subparagraphs (ii) and
(iii) of this paragraph, and in accordance with such subparagraphs,
state agencies as defined in this article shall not contract for the
supply of commodities, service or construction with any contractor who
does not agree to stipulate to the following, if there is another
contractor who will contract to supply commodities, services or
construction of comparably quality at a comparable price or cost: the
contractor and any individual or legal entity in which the contractor
holds a ten percent or greater ownership interest and any individual or
legal entity that holds a ten percent or greater ownership interest in
the contractor either (A) have no business operations in Northern
Ireland, or (B) shall make lawful steps in good faith to conduct any
business operations they have in Northern Ireland in accordance with
MacBride Fair Employment Principles, and shall permit independent
monitoring of their compliance with such principles.
(ii) In the case of contracts let by a competitive process, whenever
the responsive and responsible offerer having the lowest price or best
value offer has not agreed to stipulate to the conditions set forth in
this subdivision and another responsive and responsible offerer who has
agreed to stipulate to such conditions has submitted an offer within
five percent of the lowest price or best value offer for a contract to
supply commodities, services or construction of comparable quality, the
contracting entity shall refer such offers to the commissioner of
general services, who may determine, in accordance with applicable law
and rules, that it is in the best interest of the state that the
contract be awarded to other than the lowest price or best value offer.
(iii) In the case of contracts let by other than a competitive process
for goods or services involving an expenditure of an amount greater than
the discretionary buying threshold as specified in section one hundred
sixty-three of this article, or for construction involving an amount
greater than fifteen thousand dollars, the contracting entity shall not
award to a proposed contractor who has not agreed to stipulate to the
conditions set forth in this subdivision unless the entity seeking to
use the commodities, services or construction determines that the
commodities, services or construction are necessary for the entity to
perform its functions and there is no other responsible contractor who
will supply commodities, services or construction of comparable quality
at a comparable price. Such determinations shall be made in writing and
shall be public documents.
c. Upon receiving information that a contractor who has made the
stipulation required by this subdivision is in violation thereof, the
contracting entity shall review such information and offer the
contractor an opportunity to respond. If the contracting entity finds
that a violation has occurred, it shall take such action as may be
appropriate and provided for by law, rule or contract, including, but
not limited to, imposing sanctions, seeking compliance, recovering
damages or declaring the contractor in default.
d. As used in this subdivision, the term "contract" shall not include
contracts with governmental and non-profit organizations, contracts
awarded pursuant to emergency procurement procedures or contracts,
resolutions, indentures, declarations of trust or other instruments
authorizing or relating to the authorization, issuance, award, sale or
purchase of bonds, certificates of indebtedness, notes or other fiscal
obligations, provided that the policies of this subdivision shall be
considered when selecting a contractor to provide financial or legal
advice, and when selecting managing underwriters in connection with such
activities.
e. The provisions of this subdivision shall not apply to contracts for
which the state or other contracting entity receives funds administered
by the United States department of transportation, except to the extent
Congress has directed that the department of transportation not withhold
funds from states and localities that choose to implement selective
purchasing policies based on agreement to comply with the MacBride Fair
Employment Principles, or to the extent that such funds are not
otherwise withheld by the department of transportation.
6. Special provisions relating to retaliating against other
jurisdictions which discriminate against New York state enterprises in
their procurement of products and services.
a. As used in this subdivision, the following terms shall have the
following meanings unless a different meaning appears from the context:
(i) "Discriminatory jurisdiction" shall mean any other country,
nation, province, state or political subdivision thereof which employs a
preference or price distorting mechanism to the detriment of or
otherwise discriminates against a New York state business enterprise in
the procurement of commodities and services by the same or a
non-governmental entity influenced by the same. Such discrimination may
include, but is not limited to, any law, regulation, procedure or
practice, terms of license, authorization, or funding or bidding rights
which requires or encourages any agency or instrumentality of the state
or political subdivision thereof or nongovernmental entity influenced by
the same to discriminate against a New York state business enterprise.
(ii) "Foreign business enterprise" shall mean a business enterprise,
including a sole proprietorship, partnership, or corporation, which
offers for sale, lease or other form of exchange, commodities sought by
any state agency and which are substantially produced outside New York
state or services, other than construction services, sought by any state
agency and which are substantially performed outside New York state. For
purposes of construction services, foreign business enterprise shall
mean a business enterprise, including a sole proprietorship, partnership
or corporation, which has its principal place of business outside New
York state.
(iii) "New York state business enterprise" shall mean a business
enterprise, including a sole proprietorship, partnership, or
corporation, which offers for sale or lease or other form of exchange,
commodities which are substantially manufactured, produced or assembled
in New York state, or services, other than construction services, which
are substantially performed within New York state. For purposes of
construction services, a New York state business enterprise shall mean a
business enterprise, including a sole proprietorship, partnership, or
corporation, which has its principal place of business in New York
state.
b. The commissioner of economic development shall have the power and
it shall be his or her duty to prepare a list of all discriminatory
jurisdictions. The commissioner of economic development shall add to or
delete from said list any jurisdiction upon good cause shown. The
commissioner of economic development shall deliver a copy of the list to
the commissioner, all state agencies, and every public authority and
public benefit corporation, a majority of the members of which consist
of persons either appointed by the governor or who serve as members by
virtue of holding a civil office of the state, or a combination thereof.
c. In including any additional business enterprises on solicitations
for the procurement of commodities or services, the commissioner and all
state agencies shall not include any foreign business enterprise which
has its principal place of business located in a discriminatory
jurisdiction contained on the list prepared by the commissioner of
economic development pursuant to paragraph b of this subdivision,
except, however, business enterprises which are New York state business
enterprises as defined by this subdivision.
d. A state agency shall not enter into a contract with a foreign
business enterprise, as defined by this subdivision, which has its
principal place of business located in a discriminatory jurisdiction
contained on the list prepared by the commissioner of economic
development pursuant to paragraph b of this subdivision. The provisions
of this paragraph and paragraph c of this subdivision may be waived by
the head of the state agency if the head of the state agency determines
in writing that it is in the best interests of the state to do so. The
head of the state agency shall deliver each such waiver to the
commissioner of economic development.
e. The commissioner may waive the application of the provisions of
paragraph c of this subdivision whenever he or she determines in writing
that it is in the best interests of the state to do so.
7. Special provisions regarding the purchasing of apparel or sports
equipment by the state university of New York and the city university of
New York.
a. Notwithstanding any other provision of law, the various units of
the state university of New York, the city university of New York and
community colleges shall have authority to:
(i) Determine that a bidder on a contract for the purchase of apparel
or sports equipment is not a responsible bidder as defined in section
one hundred sixty-three of this article based upon either of the
following considerations:
(A) the labor standards applicable to the manufacture of the apparel
or sports equipment, including but not limited to employee compensation,
working conditions, employee rights to form unions, and the use of child
labor, or
(B) the bidder's failure to provide information sufficient for the
state agency or corporation to determine the labor conditions applicable
to the manufacture of the apparel or sports equipment.
(ii) Include in the internal policies and procedures governing
procurement of apparel or sports equipment, where such procurement is
not further required to be made pursuant to the competitive bidding
requirements of section one hundred sixty-three of this article, a
prohibition against the purchase of apparel or sports equipment from any
vendor based upon either or both of the following considerations:
(A) the labor standards applicable to the manufacture of the apparel
or sports equipment, including but not limited to employee compensation,
working conditions, employee rights to form unions, and the use of child
labor, or
(B) the bidder's failure to provide sufficient information for said
state agencies to determine the labor standards applicable to the
manufacture of the apparel or sports equipment.
b. For the purposes of this subdivision the term:
(i) "apparel" shall mean goods, such as, but not limited to, sports
uniforms, including gym uniforms, required school uniforms, shoes,
including, but not limited to, athletic shoes or sneakers, sweatshirts,
caps, hats, and other clothing, whether or not imprinted with a school's
name or logo, academic regalia, lab coats and staff uniforms; and
(ii) "sports equipment" shall mean equipment, such as, but not limited
to, balls, bats and other goods intended for use by those participating
in sports and games.
8. Mercury-free motor vehicles. The commissioner and state agencies
shall grant a preference and give priority to the purchase of motor
vehicles which are mercury-free taking into consideration competition,
price, availability and performance.
§ 166. Requirements for financed equipment acquisition or financed
creation or improvement of information technology systems and related
research and development. 1. a. No financed equipment acquisition may be
approved by the state comptroller unless the acquisition has been
approved by the director of the budget and the outright purchase cost of
the equipment is at least fifty thousand dollars for new financed
equipment acquisitions during the fiscal year nineteen hundred
eighty-eight--eighty-nine, and at least one hundred thousand dollars for
new financed acquisitions during subsequent fiscal years provided,
however, that the comptroller may issue regulations establishing higher
minimum outright purchase costs. Multiple items of the same type of
equipment or related items of equipment procured pursuant to a single
request for proposals may be grouped under one or several contracts as
part of a procurement package to reach the applicable minimum. The
financing of the creation or improvement of information technology
systems and related research and development is authorized pursuant to
this section.
b. Notwithstanding the provisions of paragraph a of this subdivision,
which shall not apply to financed equipment acquisitions for units of
the state university and city university of New York, no financed
equipment acquisition may be approved by the state comptroller for such
units until the director of the budget has determined whether such
financed equipment acquisition shall be financed by certificates of
participation pursuant to section sixty-six-b of this chapter. The
director of the budget shall make such determination no later than
thirty days following the submission of documentation, satisfactory to
the director from the state university or city university of New York.
If within such period of time the director does not indicate that such
financed equipment acquisition shall be financed by certificates of
participation, the state university or city university of New York may
proceed with a financed equipment acquisition in accordance with any
other applicable provision of law. The board of trustees of the city
university of New York and the board of trustees of the state university
of New York shall each promulgate regulations in consultation with the
comptroller and subject to the approval of the director of the budget
regarding the circumstances under which units of the respective
universities may use certificates of participation or other financed
equipment acquisitions. Such regulations shall include but not be
limited to: the establishment of minimum finance acquisition cost;
restrictions on the use of certificates of participation; and annual
ceilings on financed equipment acquisitions. Each board shall file
copies of its regulations with the director of the budget, the
comptroller, and the chairs of the senate finance committee and the
assembly ways and means committee.
2. The director of the budget shall transmit to the state comptroller
and the chairs of the senate finance committee and assembly ways and
means committee a quarterly report on new financed equipment
acquisitions approved by the director of the budget during the previous
quarter. The report shall identify the following:
a. The agency and program procuring the equipment.
b. A brief description of the equipment.
c. The cost of the equipment if purchased outright.
d. The interest rates and terms of such financing.
e. The total lease purchase or installment purchase payments for the
equipment.
f. The lease purchase or installment purchase payments by fiscal year
for the current fiscal year and the next five fiscal years.
g. The anticipated source of funds to make lease purchase or
installment purchase payments.
§ 167. Transfer and disposal of personal property. Personal property
of the state which has been determined to be no longer useful may be
disposed of as set forth in this section.
1. The head of a state agency having custody or control of such
property, except vehicles, may: (a) dispose of such property in
accordance with applicable express statutory provisions, (b) reuse such
property within the same state agency, (c) use the property in part
payment on a new item which may include, but shall not be limited to,
use as a trade-in or use in a guaranteed brokerage arrangement, (d) with
the consent of the commissioner, place such property in the custody or
control of the office of general services for reuse by other state
agencies or for other disposition, or (e) where the fair market value of
such property is less than an amount established from time to time by
the commissioner, dispose of such property by such means as the head of
such state agency deems to be in the best interest of the state. Records
of each disposition shall be retained by the state agency disposing of
such property and shall be subject to audit. Where personal property has
been purchased from special funds, a state agency, upon designation of
the source of funds from which such property was purchased, may
condition the disposal of such property on the reimbursement of such
special fund in the amount of the fair market value of such property.
All proceeds realized on sale or other transfer and not otherwise
authorized to be deposited in a special fund, shall be deposited in the
general fund of the state.
2. The head of a state agency having custody or control of vehicles
which have been determined to be no longer useful shall dispose of such
vehicles in accordance with applicable express statutory provisions or
shall place such vehicles in the custody or control of the commissioner
unless otherwise directed by such commissioner.
3. The commissioner may dispose of any personal property of the state
by sale or by such other means as he or she deems to be in the best
interest of the state except that personal property other than vehicles
which have been placed in the custody or control of such commissioner by
a state agency shall first be made available for reuse by other state
agencies by advertising such availability as widely as possible among
state agencies. A record of each disposition shall be retained and shall
be subject to audit. The commissioner may also from time to time
establish a fair market value level below which personal property
determined to be no longer useful may be disposed of immediately by
state agencies through such means as, in the discretion of such
agencies, are in the best interest of the state.
4. (a) Prior to the public sale of surplus state personal property and
if the commissioner has determined that personal property of the state
shall be sold, the office of general services must first offer to sell
such property to municipalities of the state. The availability of
surplus personal property, and the offer to sell such property, shall be
advertised to municipalities on the office of general services' website
for a minimum of seven days. A municipality shall immediately advise the
commissioner whether or not the municipality wishes to acquire such
personal property. If it wishes to acquire such personal property, a
municipality shall have thirty days to arrange delivery of such property
and to conclude the negotiation of the sale. If two or more
municipalities notify the commissioner of their wish to acquire such
personal property, such personal property shall be sold to the highest
offer complying with the terms of the sale as set by the commissioner.
All proceeds of such sales shall be deposited to the credit of the
general fund of the state unless otherwise required by law. A record of
each sale shall be retained and shall be subject to audit. After the
thirty day period for municipalities to arrange delivery of such
property and to conclude the negotiation of the sale, the property may
be disposed of pursuant to paragraph (b) of this subdivision. For the
purposes of this section, "municipality" shall mean a city, county, town
or village.
(b) Where the commissioner has determined that there are no interested
municipalities pursuant to paragraph (a) of this subdivision, the
availability of such property shall be advertised at least once prior to
sale in a local newspaper. Such advertisement shall identify the
property, the place where the terms of sale may be obtained and the date
upon which offers will be received. In cases of emergency or special
circumstances, such notice may be waived if at least three separate and
independent offers are solicited and obtained. Notwithstanding the
provisions of this section, where the property will be sold by public
auction over the internet, such notice may be waived if notification of
the availability of such property is provided on the office of general
services' website five business days prior to sale. Every such sale
shall be made to the highest offer complying with the terms of sale and
all proceeds of such sales shall be deposited to the credit of the
general fund of the state unless otherwise required by law. A record of
each sale shall be retained and shall be subject to audit.
5. The secretary of the senate shall also have the power, at the
request of any member of the senate who shall hereafter resign or whose
term of office shall hereafter terminate, or the surviving spouse of
such member, to sell to such member, or to such surviving spouse, the
chair last occupied by such member in the senate for the sum of
twenty-five dollars, depositing any moneys received from such sale in
the state treasury; provided, however, that a written request therefor,
accompanied by the payment herein provided, be submitted to the
secretary of the senate within ninety days after any such resignation or
termination of term of office; and provided further that not more than
one such chair may be thus sold, regardless of any service subsequently
rendered as a member of the senate. In the event that any member of the
senate dies leaving no surviving spouse, the secretary of the senate
shall have the power to sell such chair, upon the terms and conditions
hereinabove prescribed, and in the following order of priority: (i) to
any person designated by such member in a writing filed with the
secretary of the senate, or (ii) to a child of such member, if any, in
the order of seniority, (iii) to the father of such member, (iv) to the
mother of such member, (v) to a brother or sister of such member in the
order of seniority.
6. The clerk of the assembly shall have the power, at the request of
any member of the assembly who shall hereafter resign or whose term of
office shall hereafter terminate, or the surviving spouse of such
member, to sell to such member, or to such surviving spouse, the chair
last occupied by such member in the assembly for the sum of twenty-five
dollars, depositing any moneys received from such sale in the state
treasury; provided, however, that a written request therefor,
accompanied by the payment herein provided, be submitted to the clerk of
the assembly within ninety days after such resignation or termination of
term of office; and provided further that not more than one such chair
may be thus sold, regardless of any service subsequently rendered as a
member of the assembly. In the event that any member of the assembly
dies leaving no surviving spouse, the clerk of the assembly shall have
the power to sell such chair, upon the terms and conditions hereinabove
prescribed, and in the following order of priority: (i) to any person
designated by such member in a writing filed with the clerk of the
assembly, or (ii) to a child of such member, if any, in the order of
seniority, (iii) to the father of such member, (iv) to the mother of
such member, (v) to a brother or sister of such member in the order of
seniority.
7. The commissioner shall have the power, at the request of a former
governor or head of a state department or agency, or the surviving
spouse of such a former official, to sell to such former official, or to
his or her surviving spouse, selected articles of furniture, in use by
such former official at the termination of his services as governor or
head of a state department or agency in the private offices of the
governor in the executive chamber or in the office occupied by such
former head of a state department or agency, for the reasonable value
thereof as articles of furniture as determined by the commissioner,
depositing any moneys received from such sale in the state treasury;
provided, however, that a written request therefor, specifying the
articles to be purchased, be submitted to the commissioner within ninety
days after the termination of such service.
8. The provisions of subdivision one of this section shall not apply
to the transfer of library books and journals, provided, however, that
in the event any such items are to be transferred or disposed of in a
manner other than as provided by such subdivision, the head of the
department having custody or control of the library book or journal
shall certify that it is no longer needed by the department and a record
of the transfer or disposal, including such certification, shall be
filed with and kept by the office of general services.
9. The application of subdivisions one and three of this section to
the transfer of computers, computer software and computer equipment, not
required for trade-in, reuse within the agency, or requested by another
state agency, shall be in conformity with section one hundred
sixty-eight of this article. Disposal of computer equipment pursuant to
paragraph (e) of subdivision one of this section, or disposal of
computer equipment by an agency in the exercise of its discretion
according to subdivision three of this section shall be deemed to be in
the best interest of the state if in conformity with section one hundred
sixty-eight of this article, or if the head of the disposing agency
demonstrates the existence of a greater state interest in an alternate
disposal.
§ 168. The management of surplus computer equipment. 1. General
definitions. As used in this section:
(a) "Computer" means a computer central processing unit (CPU) and,
where attached to a CPU, such computer cases, computer memory, cards and
other peripheral devices as may reasonably be viewed functionally as one
unit.
(b) "Computer software" means executable computer programs and related
data files on computer-related media, including but not limited to
floppy disks, hard disks, optical and magneto-optical computer data
storage devices.
(c) "Computer equipment" means computers, computer memory, cards, and
associated peripheral devices, including but not limited to floppy disk
drives, hard disk drives, printers, modems, computer-related cables and
networking devices, scanners, computer monitors, and computer software.
2. The commissioner is authorized to dispose of surplus computer
equipment in accordance with this section whenever the potential
educational usefulness substantially exceeds its monetary value, as
provided in guidelines promulgated pursuant to subdivision two of
section three hundred eighteen of the education law.
3. The commissioner shall ensure that all state entities over which
the office has inventory control or with which the office has an
association are aware of the computer recycling program.
4. At regular intervals, at least twice annually, the office shall
deliver to the state education department an inventory of surplus
computer equipment that is available for distribution contemplated by
this section.
5. The office shall, at suitable intervals, arrange for the transfer
of surplus computer equipment to the state education department, or, in
cooperation with the commissioner of education and on his behalf,
directly to institutions conducting educational programs in accordance
with section three hundred eighteen of the education law.
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