Procurement Lobbying Law Policy Guidelines
State Education Department
Policy on State Finance Law Sections 139-j and 139-k
It is the policy of SED to comply with the provisions of the procurement lobbying law, established by Chapter 1 of the Laws of 2005. In pertinent part, Chapter 1 added two sections to the State Finance Law that took effect on January 1, 2006: State Finance Law §139-j, Restrictions on Contacts During the Procurement Process, and State Finance Law §139-k, Disclosure of Contacts and Responsibility of Offerers. Both sections of law use defined terms to support the new restrictions on procurement lobbying and it is SED policy that those employees who are involved with procurement contracts shall become familiar with such definitions.
A. Definitions. The law regulates “contacts” by “offerers” with SED staff or other covered governmental entities during the “restricted period” of a “procurement contract”. When all of these elements are present, the contact needs to be documented and included in the procurement record.
1. A “contact” is any communication by an offerer with SED staff that a reasonable person would think is intended to influence the procurement.
a. Examples of Non- Contacts. A request for pages missing from a Request for Proposal (“RFP”) or a question about the due date or filing location of an RFP would not be a contact.
b. Examples of Contacts. A statement such as “You should award the bid to my company because…” or “You shouldn’t award the contract to Company X because…” would be considered contacts.
2. An “offerer” is the person or entity, or anyone acting on their behalf, contacting SED staff about procurement during the restricted period.
3. The “restricted period” is the time period between the earliest written advertisement or solicitation for RFP (or any other method of solicitation) and final approval of a contract.
4. A “procurement contract” is any procurement contract with an annualized cost over $15,000. Grants, State Finance Law article 11-B contracts with not-for-profit providers, and intergovernmental agreements are excluded from the definition.
5. As mentioned above, all of these defined elements – contacts, offerers, restricted period, and procurement contract-- need to be in existence to trigger the reporting requirements under the Procurement Lobbying Law.
6. There are three types of contacts under the statutes: (a) contacts with designated persons and which are generally permitted, (b) contacts with non-designated staff which are permissible because the contact pertains to a specific subject matter, or (c) contacts which are neither with designated persons or relate to a specific subject matter and are consequently impermissible must be reported and subject the offerer to a finding of non-responsibility. All contacts must be recorded and become part of the procurement record.
7. The prohibitions on contacts do not extend to contacts by offerers to state legislators regarding SED procurement contracts or contacts made by state legislators to SED staff about SED procurement contracts provided the legislators are acting in their official capacity.
B. Summary of State Finance Law §139-j
1. SED will designate a specific person or persons to receive contacts regarding each procurement. Typically, the designated persons will be printed in the RFP. All contacts by an offerer with these designated persons are acceptable, subject to the limitations contained in the Penal Law and Public Officers Law. Such designated staff shall complete a record of each contact for inclusion in the procurement record. If a contact involves a possible violation of the law, the contact shall be immediately forwarded to the contract administration unit.
2. Certain contacts with other than designated staff are permissible. These “permissible” contacts are based on subject matter and are summarized below:
a. Submission of a bid, proposal or response for a procurement contract;
b. Submission of written questions when written responses are to be provided to all Offerers;
c. Participation in a pre-bid conference;
d. Complaints by an Offerer to office of general counsel where the designated person for the procurement contract of the Governmental Entity fails to respond in a timely matter;
e. Negotiations with the Offerer after a tentative award;
f. Debriefings about a procurement contract award; and
g. Filing of written disputes in administrative hearings, judicial proceedings and to the attorney general, inspector general, district attorney or state comptroller.
All permissible subject matter contacts must be recorded in the procurement record.
3. Contacts with other than designated staff that are not subject to the above exceptions must also be recorded and reported immediately to the contract administration unit.
4. SED undertakes its procurements consistent with the applicable statutory requirements and free from conduct that would be violative of the Public Officers Law.
5. SED staff may consult the model guidelines developed by the Advisory Council on Procurement Lobbying when implementing this section.
6. SED staff shall incorporate a summary of this policy and prohibitions on permissible contacts in all of its solicitation documents.
7. SED staff shall seek a written affirmation from each offerer that the offerer understands and agrees to comply with SED’s procedures regarding permissible contacts.
8. SED staff shall make a final determination regarding a proposed awardee’s responsibility for purposes of State Finance Law §§ 139-j and 139-k. SED staff shall consult with the OGS non-responsibility and debarment list when assessing the responsibility of an offerer.
9. If SED staff becomes aware that an offerer has violated the requirements about permissible contacts, such staff shall immediately notify the Contract Administration Unit. The Contract Administration Unit shall investigate such allegation in accordance with SED policy, affording the offerer due process. If it is determined that an offerer has knowingly and willfully violated the restrictions on permissible contacts, SED staff shall not award such offerer the contract (unless special circumstances exist) and shall notify the Office of General Services Legal Services that a non-responsibility determination was made. OGS Legal Services staff shall have the non-responsibility information placed on the appropriate list maintained on the internet. If there is a second non-responsibility determination under this section by any Governmental Entity, OGS Legal Services shall place such offerer on the debarment list.
C. Summary of State Finance Law §139-k
1. SED employees are required to obtain disclosure from the offerer about any prior non-responsibility determinations made in the four years prior to the solicitation. The failure of an offerer to timely disclose accurate or complete information to a governmental entity shall be considered by SED when making its responsibility determination pursuant to State Finance Law §139-k.
2. SED staff shall not award a procurement contract to a non-responsible offerer unless certain statutory conditions are established in the procurement record.
3. Upon any contact in the restricted period, SED staff shall complete a record of contact obtaining specific information. Such recorded contact shall be included in the procurement record. Information to be obtained:
4. SED staff shall incorporate and obtain a certification by the offerer that all information provided with respect to State Finance Law §139-k is complete, true and accurate and shall include a clause in its procurement contracts providing for termination of the contract if the certification is found to be false or incomplete.
D. SED staff Documentation Requirements; Further information
1. It is SED’s policy that its staff shall promptly complete the record of contacts and forward such records to the appropriate individual for inclusion in the procurement record. SED recognizes and shares the Governor’s objective to enhance public confidence in the procurement process.
2. Individual Record of Contact. To record each contact, SED staff shall complete a “Record of Contact,” which can be found at the following weblink: Record of Contact (Excel file). The record of contact must be included in the procurement record. If the contact involves a violation of SFL §139-j, the record of contact must be immediately forwarded to the contract administration unit.
3. Program Office Certification. At the time of awarding a procurement contract to an offerer, for example, when a program office has completed the technical scoring of a RFP, the program office will furnish the contract administration unit a certification of contacts received by the program office. The certification can be found at the following weblink: Program Office Certification
4. Affirmation, Certification and Disclosure of Prior Non-responsibility Determinations. This form shall be submitted by vendors seeking to enter procurement contracts subject to the Procurement Lobbying Law. Offerer Disclosure of Prior Non-responsibility Determination, WORD PDF
5. For any additional questions contact the contract administration unit.
6. A copy of the statutes, a summary of the policy and its prohibitions, model language for inclusion in solicitations and forms to be included for compliance with State Finance Law §§139-j and 139-k can be found at the website of the Advisory Council on Procurement Lobbying at http://www.ogs.state.ny.us/aboutOgs/regulations/defaultAdvisoryCouncil.html