2005 Procurement Lobbying Law Overview
Chapter 1 of the Laws of 2005, as amended by Chapter 596 of the Laws of 2005
(the Law) establishes significant changes to the development of procurement
contracts with governmental entities. New sections 139-j and 139-k, regarding
disclosure of and restrictions on communications during the procurement process,
were added to the State Finance Law. The Dormitory Authority is a covered entity
that has to comply with the Law. Every Offerer that intends to enter into a
procurement contract with the Authority will be required to familiarize themselves
with the basic requirements of the Law, which is effective for all procurement
contracts that commence after January 1, 2006.
For the purposes of this summary, the term Offerer shall mean the individual or entity, or any employee, agent or consultant or person acting on behalf of such individual or entity, that contacts the Authority about a procurement during the Restricted Period of such procurement. The Restricted Period is the period of time from the earliest written solicitation of the procurement to the final approval of contract award. The term Contact shall mean any oral, written or electronic communication with the Dormitory Authority under circumstances where a reasonable person would infer that the communication was intended to influence the governmental procurement.
The Law applies to procurement contracts that have an annual value in excess
of $15,000 except for grants or eminent domain transactions.
The earliest written solicitation by the Authority to proceed with a procurement triggers the Laws requirements. The Law requires the Authority to complete four key requirements and they are as follows:
- The Authority must seek certifications from all Offerers as to:
- the Offerer's understanding of and agreement to comply with the Authoritys procedures relating to permissible Contacts during an Authority procurement;
- the Offerer’s disclosure of findings of non-responsibility and prior contract terminations under the 2005 Procurement Lobbying Law; and
- the Offerers assertion that all information provided to the Authority
with respect to the Law is complete, true and accurate.
- The Authority must designate, with regard to each procurement, a person
or persons who may be contacted by Offerers relative to the procurement.
- The Authority must record the identity of all Contacts. The Authority
must obtain the following information from those Contacts: the name, address,
telephone number, place of principal employment and occupation of the person
or organization making the contact, and inquire and record whether the person
or organization was the Offerer or was retained, employed or designated
by or on behalf of the Offerer to contact the Authority about the procurement.
All recorded Contacts must be included in the procurement record.
The Law recognizes specific communications and contacts that can go to other than the Designated Contacts, i.e., to Permissible Subject Matter Contacts.
These communications and contacts include:
- submission of written proposals;
- submission of written questions to the designated contact when all written questions and responses are to be disseminated to all interested Offerers;
- written complaints by an Offerer to the Authority General Counsel regarding the failure of Authority staff to comply timely with the provisions of the Law;
- participation in a bid conference or interviews;
- negotiations subsequent to tentative award;
- review and debriefings of procurement awards; and
- communications during bid complaints, protests or appeals.
- The Authority must make a determination of responsibility with respect to whether the Offerer should be recommended for the procurement contract based upon past or present non-compliance with the Law.
What this means to you
The Authority will implement the use of SFL Form 1 Contractor’s Certifications Pursuant to SFL § 139j and § 139k to obtain the required certifications from potential Offerers regarding the Law at the time the bid or proposal documents are submitted. Failure of an Offerer to timely certify or to disclose accurate and complete information or to otherwise cooperate with the Authority in the implementation of the Law shall be considered by the Authority in its determination of responsibility of the Offerer. All Dormitory Authority contracts will contain a provision authorizing the Authority to terminate such contract in the event such certifications are found to be intentionally false or intentionally incomplete.
For information and FAQ about the Law, see the Procurement Advisory Council's webpage on the Office of General Services website at http://www.ogs.state.ny.us/aboutOgs/regulations/defaultAdvisoryCouncil.html.