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A07180 Text:

                STATE OF NEW YORK
                               2021-2022 Regular Sessions
                   IN ASSEMBLY
                                     April 27, 2021
        Introduced  by  M.  of  A.  ZEBROWSKI  -- (at request of the State Comp-
          troller) -- read once and referred to the  Committee  on  Governmental
        AN  ACT  to  amend  the  state  finance  law and the legislative law, in
          relation to participation by state agencies in a system  used  by  the
          comptroller  to compile vendor responsibility information; in relation
          to authorizing the commissioner of the office of general services  and
          state  agencies  to develop alternative procurement methods not other-
          wise authorized by law under certain  circumstances;  in  relation  to
          authorizing  competitive  negotiation concluding with a best and final
          offer; in relation to clarifying the use of best and final offers  for
          invitations  for  bids  and requests for proposals for goods, services
          and technology; in relation to clarifying the use of contracts let  by
          another  governmental  agency; in relation to clarifying the valuation
          of non-cash contracts by the state comptroller;  and  in  relation  to
          conforming the definition of restricted period
          The  People of the State of New York, represented in Senate and Assem-
        bly, do enact as follows:
     1    Section 1. The state finance law is amended by adding  a  new  section
     2  163-c to read as follows:
     3    § 163-c. Vendor responsibility; online system participation. 1.  Defi-
     4  nitions.  As  used  in  this  section the following terms shall have the
     5  following meanings:
     6    a. "Enrollment" shall mean the establishment  of  an  online  services
     7  account  with  the state comptroller, including, but not limited to, the
     8  creation of  a  unique  user  identification  and  password.  Enrollment
     9  provides a user access to the system.
    10    b.  "Online  services" shall mean the services provided electronically
    11  and securely by the state comptroller for  the  benefit  of  New  York's
    12  customers,  clients  and  business partners. Such online services may be
    13  expanded and enhanced as technology allows.
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.

        A. 7180                             2
     1    c. "State agency" or "state agencies" shall  mean  all  state  depart-
     2  ments, boards, commissions, offices or institutions. Such term shall not
     3  include the legislature or the judiciary.
     4    d.  "State  contract" or "contract" shall mean and include any written
     5  agreement for the acquisition of goods, services or construction of  any
     6  kind  between  a  vendor  and  a state agency, or a written agreement or
     7  other instrument wherein a state agency  agrees  to  give  consideration
     8  other  than the payment of money as contemplated in subdivision three of
     9  section one hundred twelve of this chapter.
    10    e. "Subcontractor" shall  mean  an  individual,  sole  proprietorship,
    11  partnership, joint venture or corporation, which is engaged in a subcon-
    12  tract  by  a vendor pursuant to a state contract and such subcontract is
    13  valued at one hundred thousand dollars or more and is known at the  time
    14  of the award of the state contract to the vendor.
    15    f.  "System"  shall  mean  the  on-line  software,  data  and  related
    16  resources maintained by the comptroller to compile vendor responsibility
    17  information.
    18    g. "Terms of service" shall mean the terms and conditions developed by
    19  the state comptroller and agreed to by each  authorized  user  prior  to
    20  gaining  access  to  online services.   Terms of service shall include a
    21  description of the services, obligations of the  state  comptroller  and
    22  the  authorized  user,  a description of the state comptroller's privacy
    23  policy, authorized user code of conduct, and  indemnity  for  the  state
    24  comptroller  and  the state of New York. Terms of service are subject to
    25  change as prescribed by the state comptroller.    Authorized  users  may
    26  view changes via the state comptroller's internet site.
    27    h.  "Vendor"  shall  include  any  person, partnership, corporation or
    28  limited liability company or any business  entity  bidding  on  a  state
    29  procurement or otherwise awarded a state contract.
    30    i.  "Vendor  responsibility" shall mean that a vendor has the capacity
    31  to fully perform the terms of a contract and the integrity and  business
    32  ethics  to justify an award of public dollars. A determination of vendor
    33  responsibility shall include consideration of factors including, but not
    34  limited to, financial  and  organizational  capacity,  legal  authority,
    35  integrity and past performance on governmental contracts.
    36    2. a. State agencies shall enroll with the state comptroller to access
    37  the  system maintained by the comptroller to compile vendor responsibil-
    38  ity information. State agencies shall agree to and abide by the terms of
    39  service for such system as the state comptroller deems necessary.
    40    b. For each contract or subcontract between a vendor and a subcontrac-
    41  tor where, pursuant to law or by direction of the state agency,  disclo-
    42  sure for vendor responsibility is required, the state agency shall:
    43    (i) provide notice to vendors bidding for procurements administered by
    44  the  state agency that any vendor and subcontractor, submitting a vendor
    45  responsibility questionnaire shall do so via the  system  maintained  to
    46  compile vendor responsibility information;
    47    (ii) provide vendors with instructions on how to electronically access
    48  the  system  and provide contact information for assistance with enroll-
    49  ment. This information shall be made available prior to  the  time  when
    50  vendors are required to submit disclosure for vendor responsibility; and
    51    (iii) access the system to obtain and evaluate any data submitted by a
    52  vendor  proposed  for  contract  award.  State agencies shall ensure the
    53  submission filed by the vendor meets such system's timeliness standards.
    54  Such provisions apply regardless of whether the contract is  subject  to
    55  pre-review and approval by the state comptroller.

        A. 7180                             3
     1    c.  For  contracts  where vendor disclosure is not otherwise required,
     2  the state agency at its  discretion,  may  require  vendors  bidding  on
     3  procurements,  and/or  subcontractors, to submit a vendor responsibility
     4  questionnaire via the system. Nothing contained in this paragraph  shall
     5  be construed to alter the existing authority of the state comptroller to
     6  require  the  submission  of  a  vendor  responsibility questionnaire in
     7  conjunction with his or her duty to review and approve  state  contracts
     8  prior to such contracts becoming effective.
     9    d.  State  agencies shall provide access to the system to users within
    10  their organization, as deemed appropriate by the head of the state agen-
    11  cy or his or her designee. State agency users provided with such  access
    12  shall  be  those individuals, who, as part of their official job duties,
    13  are required to assess and/or review vendor responsibility for the agen-
    14  cy's contracts.
    15    § 2. Section 163 of the state finance law is amended by adding  a  new
    16  subdivision 16 to read as follows:
    17    16.  Alternative  procurement  methods for the acquisition of non-con-
    18  struction related commodities, services  and  technology.  a.  When  the
    19  commissioner  or a state agency determines that it is in the best inter-
    20  est of the state to develop a procurement method not authorized by  this
    21  section for non-construction related commodities, services and technolo-
    22  gy, the commissioner or state agency is hereby authorized to develop and
    23  use  such method for a specific contract award. Such determination shall
    24  be made in writing and shall include documentation for  the  procurement
    25  record  that  such  alternative  procurement method: (i) would serve the
    26  interest of the state better  than  other  methods  currently  available
    27  under this section; (ii) can be applied on a competitive, fair and equi-
    28  table  basis;  and  (iii) contains an appropriate evaluation methodology
    29  that considers both cost  and  qualitative  evaluation  factors.    Such
    30  alternative  procurement method shall be subject to all other applicable
    31  provisions of this section. The commissioner or a state agency  may  not
    32  undertake  an  alternative  procurement method until the comptroller has
    33  determined that the proposed alternative procurement method  is  in  the
    34  best  interest  of  the state; can be applied on a competitive, fair and
    35  equitable basis; and utilizes an appropriate evaluation methodology that
    36  considers both cost and qualitative evaluation factors.
    37    b. When using an alternative procurement  method  authorized  by  this
    38  subdivision,  the  commissioner or agency shall include in its solicita-
    39  tion a detailed description of the proposed method of award. In  advance
    40  of  the  initial  receipt  of  offers or bids, the commissioner or state
    41  agency shall determine and document in the procurement record the evalu-
    42  ation criteria and process to  be  used  in  the  determination  of  the
    43  specific  contract  award  and  the  process by which the evaluation and
    44  selection shall be conducted. In addition to the requirements set  forth
    45  in  paragraph  g  of  subdivision  nine of this section, the procurement
    46  record shall document the basis upon which  the  agency  has  determined
    47  that  potential vendors will be able to respond with viable bids to such
    48  alternative procurement.
    49    c. Notwithstanding the provisions of subdivision five of section three
    50  hundred fifty-five of the education  law  to  the  contrary  or  section
    51  sixty-two  hundred  eighteen  of  the education law, before any contract
    52  awarded under this section  which  exceeds  fifty  thousand  dollars  in
    53  amount  becomes  effective  it  must  be approved by the comptroller and
    54  filed in his or her office.
    55    d. For each procurement awarded pursuant to this section, the  commis-
    56  sioner or state agency shall submit to the governor, the comptroller and

        A. 7180                             4
     1  the  heads  of the fiscal committees of each house of the state legisla-
     2  ture no later than the mid-point of the initial term  of  the  resultant
     3  contract  a  report assessing the validity of the procurement method and
     4  comparing  its  results  to  procurement  methods  for  commodities  and
     5  services or technology.
     6    § 3. Section 163 of the state finance law is amended by adding  a  new
     7  subdivision 17 to read as follows:
     8    17. Competitive negotiation. a. Where the basis of award is best value
     9  and  after  completing an initial evaluation and scoring, a state agency
    10  may choose to either make an award to the best value offerer pursuant to
    11  subdivision four of this section or undertake  competitive  negotiations
    12  with  all  offerers  of  proposals  susceptible  of  being  selected for
    13  contract award, so long as the agency reserves the right to conduct such
    14  competitive negotiations in the solicitation.  The negotiations shall be
    15  conducted as provided in paragraph d of this subdivision.
    16    b. Competitive negotiation may only be used where:
    17    (i) at least two offerers are deemed susceptible of being selected for
    18  contract award;
    19    (ii) in the event that the solicitation includes optional  components,
    20  the  solicitation  shall  require all offerers to provide a proposal for
    21  all options or otherwise be deemed nonresponsive; and
    22    (iii) the agency has determined that use  of  competitive  negotiation
    23  will  maximize  the  agency's ability to obtain best value, based on the
    24  agency's need and the specifications set forth in the solicitation.
    25    c. The agency must document in the procurement record and  in  advance
    26  of the initial receipt of offers:
    27    (i)  the  methodology,  which  shall  be  quantifiable  and based on a
    28  comparison of the proposals' price and technical  merit,  that  will  be
    29  employed  to  arrive  at  a  competitive range that will determine which
    30  proposals are to be considered susceptible to award; and
    31    (ii) a fair and impartial negotiation procedure, formulated  with  the
    32  goal  of  ensuring  sustained competition until an award is rendered and
    33  obtaining the best value for the state.
    34    d. The agency shall conduct written  or  oral  negotiations  with  all
    35  responsible  offerers  who submit proposals in the competitive range. In
    36  the course of such negotiations, the agency shall:
    37    (i) advise the offerer of ways in which its proposal may  be  improved
    38  so  that the offerer is given an opportunity to better meet the agency's
    39  needs;
    40    (ii) clarify any uncertainties, ambiguities or non-material deviations
    41  in the proposal;
    42    (iii) advise the offerer of any technical components in  its  proposal
    43  that  may  not  be  necessary  to  satisfy the agency's requirements and
    44  request modifications as appropriate;
    45    (iv) provide the offerer a reasonable opportunity to submit any  cost,
    46  technical or other revisions to its proposal in response to issues iden-
    47  tified during negotiations; and
    48    (v) document any oral negotiations for the procurement record.
    49    e.  Negotiations  may be tailored to each offerer's proposal provided,
    50  however, such negotiations shall be conducted with each  offerer  within
    51  the  competitive  range  without  disclosing  information concerning any
    52  other offerers' proposals or the evaluation process. Negotiations  shall
    53  culminate in a technical solution from each offerer remaining within the
    54  competitive range that is deemed acceptable to meet the agency's need as
    55  set  forth  in  the  solicitation.  After  discussion of these technical
    56  solutions is completed, the agency shall solicit a best and final  price

        A. 7180                             5
     1  proposal  from  all  offerers within the competitive range. The best and
     2  final price solicitation shall ensure that all offerers are afforded  an
     3  equal opportunity to respond within a specified period of time.
     4    f.  Where  an  agency  chooses  to  undertake competitive negotiations
     5  instead of making a best value award after  an  initial  evaluation  and
     6  scoring, the final award shall be made to the lowest responsible offerer
     7  after receiving a best and final price on a revised acceptable proposal.
     8    §  4. Subdivision 9 of section 163 of the state finance law is amended
     9  by adding a new paragraph c-1 to read as follows:
    10    c-1. Where a state agency determines that non-material changes to  the
    11  specifications  as  set  forth  in the solicitation would be in the best
    12  interest of the state and, when provided for in the solicitation,  state
    13  agencies  may  request  best and final offers, which shall be in writing
    14  and solicited in the same manner from  all  offerers  determined  to  be
    15  susceptible  of  being  selected  for contract award, with the intent of
    16  allowing an offerer to revise its cost; provided, however, that a  state
    17  agency may not make a modification to the solicitation if such modifica-
    18  tion  would  prejudice  any  bidder  or  potential  bidder and, provided
    19  further, that no best and final offer may be accepted or considered by a
    20  state agency unless such best and final offer is submitted  in  response
    21  to a request by the state agency.
    22    § 5. Paragraph e of subdivision 10 of section 163 of the state finance
    23  law,  as  amended by chapter 137 of the laws of 2008, is amended to read
    24  as follows:
    25    e. The commissioner may authorize purchases required by state agencies
    26  or other authorized purchasers by letting a contract pursuant to a writ-
    27  ten agreement, or by approving the use of a contract let by any  depart-
    28  ment,  agency  or instrumentality of the United States government and/or
    29  any department, agency, office, political subdivision or instrumentality
    30  of any state or states. A state agency purchaser shall document  in  the
    31  procurement  record  its  rationale for the use of a contract let by any
    32  department, agency or instrumentality of the United States government or
    33  any department, agency, office, political subdivision or instrumentality
    34  of any other state or states. Such rationale shall include, but need not
    35  be limited to, a determination of need, a consideration of the  procure-
    36  ment  method  by which the contract was awarded, an analysis of alterna-
    37  tive procurement sources including  an  explanation  why  a  competitive
    38  procurement or the use of a centralized contract let by the commissioner
    39  is  not  in  the  best  interest of the state, and the reasonableness of
    40  cost. The authority to use a contract let by another governmental entity
    41  pursuant to this paragraph is intended to benefit  the  state  by  using
    42  contracts in place that provide for the same service or commodity sought
    43  by  a  state  agency at a price determined to be reasonable by the state
    44  agency. Such contracts are not intended to be used  primarily  to  avoid
    45  competitive  bidding.  Use  of multiple award contracts pursuant to this
    46  paragraph shall follow the same basis of selection  among  the  multiple
    47  awardees  as  was  prescribed  by  the original contracting governmental
    48  entity.
    49    § 6. Subdivision 3 of section 112 of the state finance law, as amended
    50  by section 2-c of part F of chapter 57 of the laws of 2016,  is  amended
    51  to read as follows:
    52    3.  A  contract  or  other  instrument wherein the state or any of its
    53  officers, agencies, boards or commissions agrees to give a consideration
    54  other than the payment of money, when the value or reasonably  estimated
    55  value  of such consideration exceeds twenty-five thousand dollars, shall
    56  not become a valid enforceable contract unless such  contract  or  other

        A. 7180                             6
     1  instrument  shall  first be approved by the comptroller and filed in his
     2  office. For purposes of this subdivision, where consideration cannot  be
     3  determined  in  terms  of monetary value, it shall be valued in terms of
     4  intrinsic value.
     5    §  7.  Subdivision (m) of section 1-c of the legislative law, as added
     6  by chapter 1 of the laws of 2005, is amended to read as follows:
     7    (m) The term  "restricted  period"  shall  mean  the  period  of  time
     8  commencing  with  the  earliest  posting,  on  a  governmental  entity's
     9  website, in a newspaper of general circulation, or  in  the  procurement
    10  opportunities  newsletter  in  accordance  with  article  four-C  of the
    11  economic development law of written notice, advertisement  or  solicita-
    12  tion  of a request for proposal, invitation for bids, or solicitation of
    13  proposals, or any other method provided for by  law  or  regulation  for
    14  soliciting a response from offerers intending to result in a procurement
    15  contract  with  a  [state agency, either house of the state legislature,
    16  the unified court system, or a municipal agency, as that term is defined
    17  by paragraph (ii) of subdivision (s) of this section,  and  ending  with
    18  the  final contract award and approval by the state agency, either house
    19  of the state legislature, the unified court system, or a municipal agen-
    20  cy, as that term is defined by paragraph (ii) of subdivision (s) of this
    21  section,] governmental entity and ending with the final  contract  award
    22  and approval by the governmental entity and, where applicable, the state
    23  comptroller. For the purposes of this subdivision, "governmental entity"
    24  shall have the same meaning as paragraph a of subdivision one of section
    25  one hundred thirty-nine-j of the state finance law.
    26    §  8.  This  act  shall  take  effect  immediately; provided, however,
    27  section one of this act shall take effect on the one  hundred  eightieth
    28  day  after  it shall have become a law; provided, further, however, that
    29  the provisions of sections two, three, four, five and six  of  this  act
    30  shall  apply  to  any  procurement  initiated  on  or  after  such date;
    31  provided, further however, that the amendments to  section  163  of  the
    32  state finance law made by sections two, three, four and five of this act
    33  shall not affect the repeal of such section as provided in subdivision 5
    34  of  section 362 of chapter 83 of the laws of 1995, as amended, and shall
    35  be deemed repealed therewith.
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