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State law allows agencies to acquire products directly from vendors or suppliers other than those participating in a centralized contract when such products are available in substantially similar function, form or utility and at prices or other terms more economically beneficial to the acquiring state agency. This procedure applies only to products not available from a Preferred Source. The purpose of this bulletin is to describe this opportunity, referred to as "OGS or Less" and circumstances under which it may be applicable.
II. Applicability and Scope
This bulletin applies to all State agencies, boards, commissions, offices and institutions, including the State University of New York and the City University of New York. It covers the acquisition of commodities only when the Statewide commodity term contract includes "OGS or Less" language. It does not pertain to the procurement of services nor is it applicable to printing purchases. This bulletin supersedes the "OGS or Less" Purchasing Memoranda issued with the Office of General Services' Standards and Purchase Group CL-135.
This procedure is intended to enable agencies to take advantage of non-contract savings which may develop in the marketplace. It is to be used when the price is better than that available from the State contractor or when other contract terms such as delivery or warranty terms are more economically beneficial to the acquiring agency.
"OGS or Less" purchases may not be made if products are available from:
State agencies shall not engage in
"auctioning" or solicit multiple offers when
either identifying non-contract savings or providing the
contractor an opportunity to match the non-contract
While Statewide contracts for recycled and energy efficient products are not exempt from "OGS or Less" flexibility, State agencies should be sensitive to the State's requirements, in both law and policy, by using flexibility to purchase only recycled or energy efficient products comparable to those on State contract.
If circumstances permit, agencies are requested to allow the State contractor an exclusive franchise for the first 60 days of the contract term prior to considering "OGS or Less" flexibility.
A. The State agency identifies a need for a commodity.
B. The agency determines that the commodity is not available in the form, function, and utility required from a Preferred Source by checking the List of Preferred Source Offerings. (See NYS Procurement Bulletin on Preferred Sources for more information.)
C. The agency determines that the price or other term offered by the vendor is more economically beneficial than that offered on the Centralized State contract for a commodity substantially similar in function, form, or utility.
D. The agency contacts the State contractor to provide the contractor with an opportunity to match the non-contract savings. The State contractor is allowed a minimum of two business days to respond to the agency's request to match the non-contract savings.
E. If the State contractor matches the non-contract savings, the agency obtains written confirmation and proceeds with the purchase as a normal P-contract purchase. (Contractors will not be required to extend these discounts on a Statewide basis.)
When processing the purchase:
Place the prefix 00 prior to the P-contract number of the State contract involved (e. g., 00P000456) in the appropriate section of the purchase order.
Enter the name and telephone number of an agency contact person on the face of the purchase order.
Send the S&P copy of the purchase order to the Supervisor of Special Purchasing Projects, OGS S&P, 38th Floor, Corning Tower, Empire State Plaza, Albany, NY 12242.
Write "OGS or Less" and the appropriate contract number in the description block of the voucher which is sent to the Office of the State Comptroller.
F. If the State contractor does not match the non-contract savings, the agency proceeds with the appropriate procurement process in accordance with legal and policy guidelines appropriate for the dollar value of the purchase (for example, Contract Reporter Notice for purchases over $5,000, prior approval of the Office of the State Comptroller for transactions in excess of $10,000, competitive bidding requirements over discretionary buying thresholds, etc.) The agency must document in the Procurement Record how the non-State contractor's offer was more economically beneficial to the purchasing agency than what was available on the Centralized State Contract. The agency must also document that the State contractor was unwilling or unable to match this beneficial term.