Bill Text: NY A00572 | 2009-2010 | General Assembly | Introduced
Bill Title: An act to amend the state finance law, the economic development law, the general municipal law and the public authorities law, in relation to considering net economic impact in procurement contracts
Spectrum: Partisan Bill (Democrat 2-0)
Status: (Introduced - Dead) 2010-01-06 - referred to governmental operations [A00572 Detail]
Download: New_York-2009-A00572-Introduced.html
S T A T E O F N E W Y O R K
________________________________________________________________________
572
2009-2010 Regular Sessions
I N A S S E M B L Y
(PREFILED)
January 7, 2009
___________
Introduced by M. of A. CAHILL -- Multi-Sponsored by -- M. of A. GREENE
-- read once and referred to the Committee on Governmental Operations
AN ACT to amend the state finance law, the economic development law, the
general municipal law and the public authorities law, in relation to
considering net economic impact in procurement contracts
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
1 Section 1. Short title. This act shall be known and may be cited as
2 the "competitive procurement act".
3 S 2. Legislative findings. The legislature hereby finds that in order
4 to assure the economically sound use of public funds for the benefit of
5 the entire state and to facilitate the acquisition of facilities and
6 commodities of maximum quality, this article shall require the negoti-
7 ation of such procurement contracts for public works and public
8 purchases to make the net economic impact of such contract a priority in
9 awarding such procurement contracts. Although the economic impact tradi-
10 tionally includes evaluation of the direct, indirect, and induced
11 impacts of a contract on the economy of this state, the legislature
12 further finds that the "net economic impact" must include consideration
13 of the lowest responsible bid and best value as additional component
14 criteria in determining the overall economic impact of a contract on the
15 state's economy. Therefore, it is in the public's best interest to
16 incorporate the lowest responsible bid and best value criteria into the
17 net economic impact criterion in order to award the most economically
18 viable procurement contracts in New York state.
19 S 3. The state finance law is amended by adding a new section 139-l to
20 read as follows:
21 S 139-L. NET ECONOMIC IMPACT IN PROCUREMENT CONTRACTS. 1. NOTWITH-
22 STANDING ANY OTHER PROVISION OF LAW TO THE CONTRARY, WHERE A CONTRACT IS
23 TO BE AWARDED BY A STATE AGENCY, PUBLIC AUTHORITY OR MUNICIPALITY PURSU-
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD00614-01-9
A. 572 2
1 ANT TO A COMPETITIVE BIDDING PROCESS OR A REQUEST FOR PROPOSAL PROCESS,
2 SUCH STATE AGENCY, PUBLIC AUTHORITY OR MUNICIPALITY SHALL REQUIRE THAT
3 ANY PROPOSAL SUBMITTED BY A PROSPECTIVE CONTRACTOR IN RESPONSE THERETO
4 INCLUDE AN ECONOMIC IMPACT STATEMENT DETAILING HOW AN AWARD OF THE
5 CONTRACT TO THE PARTICULAR CONTRACTOR WOULD BENEFIT THE ECONOMY OF NEW
6 YORK STATE AND SHALL PROVIDE THAT NET ECONOMIC IMPACT WILL BE CONSIDERED
7 IN MAKING THE AWARD. THE WEIGHT TO BE GIVEN TO SUCH NET ECONOMIC IMPACT
8 CRITERION RELATIVE TO OTHER CRITERIA USED TO EVALUATE THE PROPOSALS,
9 INCLUDING LOWEST RESPONSIBLE BIDDER AND BEST VALUE, SHALL BE DETERMINED
10 BY THE CONTRACTING AGENCY, AUTHORITY OR MUNICIPALITY ON A CASE BY CASE
11 BASIS. THE STATE AGENCY, PUBLIC AUTHORITY, OR MUNICIPALITY SHALL GIVE
12 PRIORITY TO THE NET ECONOMIC IMPACT CRITERION WHEREVER PRACTICABLE AND
13 SET FORTH THE BASIS FOR ITS AWARD IN WRITING.
14 2. FOR THE PURPOSES OF THIS SECTION, THE FOLLOWING TERMS SHALL HAVE
15 THE FOLLOWING DEFINITIONS:
16 (A) "NET ECONOMIC IMPACT" MEANS THE MEASURE OF ECONOMIC STIMULATION
17 THAT OCCURS FROM PURCHASING TRANSACTIONS THAT HAVE OCCURRED WITHIN THE
18 LOCAL ECONOMY OF NEW YORK STATE AND THE LOWEST RESPONSIBLE BID. NET
19 ECONOMIC IMPACT SHALL BE MEASURED BY DIRECT IMPACT, INDIRECT IMPACT AND
20 INDUCED IMPACT, AS WELL AS LOWEST RESPONSIBLE BID AND BEST VALUE, WHICH
21 ARE DEFINED AS:
22 (1) "DIRECT IMPACT" MEANS THE AMOUNT OF DIRECT ECONOMIC ACTIVITY
23 GENERATED BY THE PURCHASING TRANSACTION, OR BUSINESS TRANSACTIONS, IN
24 QUESTION. THE SETS OF NUMBERS USED TO DETERMINE DIRECT IMPACT ARE A
25 RESULT OF DEVELOPING PER CAPITA NUMBERS BASED ON ACTUAL ECONOMIC DATA
26 SUPPLIED BY TRANSACTION MANAGEMENT, ATTENDANCE FIGURES, AND OTHER FINAN-
27 CIAL INFORMATION FOR ALL TRANSACTION-RELATED ACTIVITIES, AS WELL AS
28 USING AVAILABLE TRANSACTION INDUSTRY AVERAGE PER CAPITA EXPENDITURE
29 LEVELS FOR VARIOUS ITEMS.
30 (2) "INDIRECT IMPACT" INCLUDES ECONOMIC ACTIVITY FELT BY BUSINESSES AS
31 AN INDIRECT RESULT OF THE PURCHASING OR BUSINESS TRANSACTION.
32 (3) "INDUCED IMPACT" IS THE IMPACT GENERATED WHEN THOSE SURROUNDING
33 BUSINESSES PURCHASE ADDITIONAL PRODUCTS AND SERVICES, AND HIRE MORE
34 EMPLOYEES TO MEET THE DEMAND BROUGHT ON BY DIRECT AND INDIRECT IMPACTS.
35 (4) "LOWEST RESPONSIBLE BIDDER" MEANS ANY PERSON, FIRM, CORPORATION,
36 SUCCESSOR CORPORATION, CONTRACTOR OR SUBCONTRACTOR WHO (I) SUBMITS THE
37 LOWEST RESPONSIBLE BID AND (II) IS NOT DISQUALIFIED ON ANY OF THE
38 GROUNDS PROVIDED BY LAW, RULE OR REGULATION.
39 (5) "BEST VALUE" MEANS THE SAME AS IN SUBDIVISION ONE OF SECTION ONE
40 HUNDRED SIXTY-THREE OF THIS CHAPTER.
41 (B) "MUNICIPALITY" SHALL MEAN ANY CITY, TOWN, VILLAGE, COUNTY, MUNICI-
42 PAL CORPORATION, DISTRICT CORPORATION, DISTRICT OR ANY OFFICE, DEPART-
43 MENT OR AGENCY, THEREOF.
44 (C) "STATE AGENCY" SHALL, NOTWITHSTANDING ANY OTHER PROVISION OF LAW,
45 MEAN ANY STATE DEPARTMENT, BOARD, BUREAU, DIVISION, OFFICE, COUNCIL,
46 COMMITTEE OR OFFICER OF THE STATE, OR THE STATE UNIVERSITY OF NEW YORK,
47 OR THE SENIOR COLLEGES OF THE CITY UNIVERSITY OF NEW YORK, OR ANY PUBLIC
48 BENEFIT CORPORATION OR COMMISSION AT LEAST ONE OF WHOSE MEMBERS ARE
49 APPOINTED BY THE GOVERNOR.
50 3. THE COMPTROLLER AND THE COMMISSIONER OF THE DEPARTMENT OF ECONOMIC
51 DEVELOPMENT SHALL ESTABLISH, THROUGH THE PROMULGATION OF RULES AND REGU-
52 LATIONS, AND IN CONSULTATION WITH THE HEADS OF STATE AGENCIES, A METHOD
53 FOR STRUCTURING REQUESTS FOR PROPOSALS TO REQUIRE INCLUSION OF AN
54 ECONOMIC IMPACT STATEMENT AND IN EVALUATING RESPONSES TO SUCH REQUESTS
55 FOR PROPOSALS. THE COMPTROLLER SHALL ALSO ESTABLISH THROUGH THE PROMUL-
56 GATION OF RULES AND REGULATIONS GUIDELINES FOR AGENCIES, AUTHORITIES AND
A. 572 3
1 MUNICIPALITIES TO INCORPORATE CONSIDERATION OF THE LOWEST RESPONSIBLE
2 BIDDER CRITERIA INTO THE NET ECONOMIC IMPACT FORMULA. SUCH NET ECONOMIC
3 IMPACT SHALL INCLUDE, BUT NOT BE LIMITED TO, CONSIDERATION OF WHERE
4 SUBCONTRACTORS USED BY CONTRACTORS TO FULFILL A CONTRACT ARE LOCATED,
5 HOW MANY JOBS IN THE STATE, IF ANY, WILL BE CREATED BY THE AWARDING OF
6 SUCH A CONTRACT, AND THE ESTIMATED TAX REVENUE AND ANCILLARY ECONOMIC
7 ACTIVITY THAT WOULD BE GENERATED IN THE STATE THROUGH THE AWARDING OF
8 SUCH CONTRACTS AND SUBSEQUENT SUBCONTRACTS, LOWEST RESPONSIBLE BID, AND
9 BEST VALUE. SUCH RULES AND REGULATIONS SHALL INCLUDE A PROCEDURE WHEREBY
10 A STATE AGENCY, PUBLIC AUTHORITY OR MUNICIPALITY MAY REQUEST A WAIVER
11 FROM THE REQUIREMENTS OF THIS SECTION.
12 4. (A) THE PROVISIONS OF THIS SECTION SHALL NOT APPLY TO CONTRACTS FOR
13 WHICH A STATE AGENCY, PUBLIC AUTHORITY, OR MUNICIPALITY RECEIVES FUNDS
14 ADMINISTERED BY THE FEDERAL GOVERNMENT, EXCEPT TO THE EXTENT THAT THE
15 FEDERAL GOVERNMENT WOULD NOT WITHHOLD SUCH FUNDS OWING TO THE STATE
16 AGENCY'S, PUBLIC AUTHORITY'S, OR MUNICIPALITY'S COMPLIANCE WITH THIS
17 SECTION.
18 (B) THE PROVISIONS OF THIS SECTION SHALL NOT APPLY TO CONTRACTS
19 BETWEEN A STATE AGENCY, PUBLIC AUTHORITY, OR MUNICIPALITY IN NEGOTIATED
20 RECIPROCITY FOR GOODS OR SERVICES, EXCEPT TO THE EXTENT THAT SUCH NET
21 ECONOMIC IMPACT SHALL NOT UNDERMINE SUCH RECIPROCAL CONTRACT AGREEMENT.
22 5. ANY PERSON, FIRM, CORPORATION, SUCCESSOR CORPORATION, LABOR ORGAN-
23 IZATION, CONTRACTOR OR SUBCONTRACTOR MAY, WITHIN TEN DAYS AFTER A BID IS
24 ACCEPTED, FILE AN APPLICATION TO CHALLENGE THE DETERMINATION. UPON
25 RECEIPT OF SUCH APPLICATION, THE COMPTROLLER, OR HIS OR HER DESIGNEE,
26 SHALL CONDUCT A HEARING TO DETERMINE THE VALIDITY OF THE APPLICATION.
27 NOTICE SHALL BE GIVEN TO THE APPLICANT AND TO THE PROPOSED CONTRACT BID
28 AWARDEE OF THE DATE, TIME AND PLACE OF THE HEARING. THE APPLICANT AND
29 THE PROPOSED CONTRACT BID AWARDEE SHALL BE GIVEN THE OPPORTUNITY TO
30 PRESENT EVIDENCE AND WITNESSES ON THEIR BEHALF. THE COMPTROLLER, OR HIS
31 OR HER DESIGNEE, PRESIDING OVER SUCH HEARING SHALL ISSUE A WRITTEN DECI-
32 SION WITH FINDINGS OF FACT WHETHER THE PROPOSED CONTRACT BID AWARDEE IS
33 VALID DETERMINATION. SUCH CONTRACT SHALL NOT BE AWARDED PRIOR TO SUCH
34 DECISION. THE AWARDING AGENCY, AUTHORITY, OR MUNICIPALITY SHALL NOTIFY
35 ALL BIDDERS REGARDING THE SELECTION OF ITS PROPOSED CONTRACT BID AWAR-
36 DEE.
37 S 4. The opening paragraph and paragraph c of subdivision 2, the open-
38 ing paragraph and subparagraphs (ii), (v) and (vi) of paragraph a and
39 subparagraph (i) of paragraph b of subdivision 3 of section 163 of the
40 state finance law, as added by chapter 83 of the laws of 1995, are
41 amended to read as follows:
42 The objective of state procurement is to facilitate each state agen-
43 cy's mission while protecting the interests of the state and its taxpay-
44 ers and promoting fairness in contracting with the business community.
45 The state's procurement process shall be guided by the NET ECONOMIC
46 IMPACT, PURSUANT TO SECTION ONE HUNDRED THIRTY-NINE-L OF THIS CHAPTER,
47 OF A CONTRACT ON THE STATE AND THE following principles:
48 c. To encourage the investment of the private and not-for-profit
49 sectors in New York state by making reasonable efforts to ensure that
50 offerers are apprised of procurement opportunities; by specifying the
51 elements of a responsive bid and disclosing the process for awarding
52 contracts including, if applicable, the relative importance and/or
53 weight of [cost] NET ECONOMIC IMPACT and the overall technical criterion
54 for evaluating offers; and by ensuring the procurement is conducted
55 accordingly.
A. 572 4
1 State agency procurement practices for commodities shall incorporate
2 NET ECONOMIC IMPACT, PURSUANT TO SECTION ONE HUNDRED THIRTY-NINE-L OF
3 THIS CHAPTER, AND THEN the following:
4 (ii) Commodities contracts shall be awarded on the basis of [lowest
5 price to] NET ECONOMIC IMPACT OF a responsive and responsible offerer;
6 or, in the case of multiple awards, in accordance with paragraph c of
7 subdivision ten of this section.
8 (v) Consistent with guidelines issued by the state procurement coun-
9 cil, state agencies may competitively purchase commodities procured in
10 accordance with this article in lieu of using centralized contracts when
11 the resultant [price is less] NET ECONOMIC IMPACT IS GREATER than the
12 centralized contract [price].
13 (vi) When justified by [price] NET ECONOMIC IMPACT, state agencies,
14 and hospitals and facilities managed and controlled by state agencies
15 eligible pursuant to section twenty-eight hundred three-a of the public
16 health law, shall be eligible to make purchases pursuant to guidelines
17 issued by the state procurement council from a consortium or comparable
18 entity in lieu of using centralized contracts for commodities.
19 (i) determine, in cooperation with the state procurement council and
20 state agencies, the identity, form, function and utility of those
21 commodities which shall be made available on or through centralized
22 contracts. CRITERIA SHALL INCLUDE THE NET ECONOMIC IMPACT, AS DEFINED IN
23 SECTION ONE HUNDRED THIRTY-NINE-L OF THIS CHAPTER, ON NEW YORK STATE'S
24 ECONOMY. Criteria may include, but need not be limited to, the avail-
25 ability of a volume discount, prior use of the commodity among state
26 agencies and the relative cost of establishing the contract, its antic-
27 ipated use and expected actual savings for the state. The commissioner
28 may also act as a broker for state agencies to procure commodities.
29 S 5. The opening paragraph and paragraph d of subdivision 4 of section
30 163 of the state finance law, as added by chapter 83 of the laws of
31 1995, are amended to read as follows:
32 State agency procurement practices for services shall incorporate THE
33 NET ECONOMIC IMPACT, AS DEFINED IN SECTION ONE HUNDRED THIRTY-NINE-L OF
34 THIS CHAPTER, AND THEN the following:
35 d. Service contracts shall be awarded on the basis of [best value to]
36 NET ECONOMIC IMPACT OF a responsive and responsible offerer; or, in the
37 case of multiple awards, in accordance with paragraph c of subdivision
38 ten of this section.
39 S 6. Subdivision 7, paragraphs a and b of subdivision 9, the opening
40 paragraph and paragraph a of subdivision 10, the opening paragraph of
41 subdivision 11 and paragraph (i) of subdivision 14 of section 163 of the
42 state finance law, as added by chapter 83 of the laws of 1995, subdivi-
43 sion 7 as separately amended by sections 12 and 20 of chapter 137 of the
44 laws of 2008, and paragraph (i) of subdivision 14 as amended by chapter
45 95 of the laws of 2000, are amended to read as follows:
46 7. Method of procurement. Consistent with the requirements of subdivi-
47 sions three and four of this section, state agencies shall select among
48 permissible methods of procurement including, but not limited to, an
49 invitation for bid, request for proposals or other means of solicitation
50 pursuant to guidelines issued by the state procurement council. State
51 agencies may accept bids electronically and may, for technology
52 contracts only, require electronic submission as the sole method for the
53 submission of bids for the solicitation, provided that the agency has
54 made a determination, which shall be documented in the procurement
55 record, that such method affords a fair and equal opportunity for offer-
56 ers to submit responsive offers. Except where otherwise provided by law,
A. 572 5
1 procurements shall be competitive, and state agencies shall conduct
2 formal competitive procurements to the maximum extent practicable. State
3 agencies shall document the determination of the method of procurement
4 and the basis of award in the procurement record. Where the basis for
5 award is the best [value] NET ECONOMIC IMPACT offer, the state agency
6 shall document, in the procurement record and in advance of the initial
7 receipt of offers, the determination of the evaluation criteria, which
8 whenever possible, shall be quantifiable, and the process to be used in
9 the determination of best [value] NET ECONOMIC IMPACT and the manner in
10 which the evaluation process and selection shall be conducted.
11 a. The commissioner or a state agency shall select a formal compet-
12 itive procurement process in accordance with guidelines established by
13 the state procurement council and document its determination in the
14 procurement record. The process shall include, but is not limited to, a
15 clear statement of need; a description of the required specifications
16 governing performance and related factors; a reasonable process for
17 ensuring a competitive field; a fair and equal opportunity for offerers
18 to submit responsive offers; and a balanced and fair method of award.
19 Where the basis for the award is best [value] NET ECONOMIC IMPACT,
20 documentation in the procurement record shall, where practicable,
21 include a quantification of the application of the criteria to the
22 rating of proposals and the evaluation results, or, where not practica-
23 ble, such other justification which demonstrates that best [value] NET
24 ECONOMIC IMPACT will be achieved.
25 b. The solicitation shall prescribe the minimum specifications or
26 requirements that must be met in order to be considered responsive and
27 shall describe and disclose the general manner in which the evaluation
28 and selection shall be conducted. Where appropriate, the solicitation
29 shall identify the relative importance and/or weight of [cost] NET
30 ECONOMIC IMPACT and the overall technical criterion to be considered by
31 a state agency in its determination of best [value] NET ECONOMIC IMPACT.
32 Contracts for commodities shall be awarded on the basis of [lowest
33 price to] NET ECONOMIC IMPACT OF a responsive and responsible offerer,
34 PURSUANT TO SECTION ONE HUNDRED THIRTY-NINE-L OF THIS CHAPTER.
35 Contracts for services shall be awarded on the basis of best [value] NET
36 ECONOMIC IMPACT from a responsive and responsible offerer, PURSUANT TO
37 SECTION ONE HUNDRED THIRTY-NINE-L OF THIS CHAPTER. Multiple awards for
38 services and commodities shall be conducted in accordance with paragraph
39 c of this subdivision.
40 a. Selection and award shall be a written determination in the
41 procurement record made by the commissioner or a state agency in a
42 manner consistent with the provisions of the solicitation. In the event
43 two offers are found to be substantially equivalent, [price] NET ECONOM-
44 IC IMPACT shall be the basis for determining the award recipient or,
45 when [price] NET ECONOMIC IMPACT and other factors are found to be
46 substantially equivalent, the determination of the commissioner or agen-
47 cy head to award a contract to one or more of such bidders shall be
48 final. The basis for determining the award shall be documented in the
49 procurement record.
50 It shall be the responsibility of the head of each state agency to
51 periodically sample the results of the procurement process to test for
52 reasonableness; to ensure that the results withstand public scrutiny and
53 that the quality and the price of the purchase makes sense; and to
54 ensure that purchasing is conducted in a manner consistent with the best
55 NET ECONOMIC IMPACT interests of the state.
A. 572 6
1 (i) a listing of individual and centralized contracts, including
2 vendor name, comptroller approval dates, NET ECONOMIC IMPACT OF SUCH
3 CONTRACTS, dollar value of such contracts, the state agency which let
4 the contract and/or state agencies which purchased off centralized
5 contracts, expenditures made on each such contract and by which agencies
6 during the fiscal year and life to date, citing contract category codes,
7 source selection method, including ["lowest price", "best value",] NET
8 ECONOMIC IMPACT, sole source, single source, negotiated and emergency
9 procurement subtotaled by agency and by type of commodity or service;
10 S 7. Subdivision 1 of section 142 of the economic development law, as
11 amended by chapter 137 of the laws of 2008, is amended to read as
12 follows:
13 1. The commissioner shall publish on a daily basis a procurement
14 opportunities newsletter, which shall contain notices of procurement
15 contract opportunities and any other information the commissioner deems
16 necessary to effectuate the purposes of this article INCLUDING, BUT NOT
17 LIMITED TO, ANY CHANGES IN THE LAW, RULES AND REGULATIONS REGARDING
18 PROCUREMENT CONTRACTS. Notices of procurement contract opportunities
19 shall be available on the internet for at least fifteen days.
20 S 8. Section 100-a of the general municipal law, as added by chapter
21 363 of the laws of 1964, is amended to read as follows:
22 S 100-a. Declaration of policy. [It] NOTWITHSTANDING ANY PROVISION OF
23 THIS ARTICLE TO THE CONTRARY, IT is hereby declared to be the policy of
24 this state that this article shall [be construed] CONSIDER THE NET
25 ECONOMIC IMPACT, AS DEFINED IN SECTION ONE HUNDRED THIRTY-NINE-L OF THE
26 STATE FINANCE LAW, AS THE PRIORITY in the negotiation of contracts for
27 public works and public purchases to which political subdivisions [or
28 and district] AND/OR DISTRICTS therein [is] ARE a party so as to assure
29 the prudent and economical use of public moneys for the benefit of all
30 the inhabitants of the state and to facilitate the acquisition of facil-
31 ities and commodities of maximum quality [at the lowest possible cost].
32 S 9. Subdivision 1 of section 2879 of the public authorities law, as
33 amended by chapter 564 of the laws of 1988, is amended to read as
34 follows:
35 1. Every public authority and public benefit corporation, a majority
36 of the members of which consist of persons either appointed by the
37 governor or who serve as members by virtue of holding a civil office of
38 the state, or a combination thereof, (such entities to be hereinafter in
39 this section referred to as "corporation") shall adopt by resolution
40 comprehensive guidelines which detail the corporation's operative policy
41 and instructions regarding the use, awarding, monitoring and reporting
42 of procurement contracts. NOTWITHSTANDING ANY OTHER PROVISION OF LAW,
43 RULE OR REGULATION, SUCH GUIDELINES SHALL INCLUDE, BUT NOT BE LIMITED
44 TO, MAKING CONSIDERATION OF THE NET ECONOMIC IMPACT, AS DEFINED IN
45 SECTION ONE HUNDRED THIRTY-NINE-L OF THE STATE FINANCE LAW, THE PRIORITY
46 IN AWARDING PROCUREMENT CONTRACTS. Guidelines approved by the corpo-
47 ration shall be annually reviewed and approved by the corporation.
48 S 10. This act shall take effect on the one hundred eightieth day
49 after it shall have become a law; provided, however, the provisions of
50 this act shall be applied to all contracts entered into on or after
51 April 1, 2009; provided, further, however, that the amendments to the
52 provisions of section 163 of the state finance law made by sections
53 four, five and six of this act shall not affect the repeal of such
54 section and shall be deemed repealed therewith; and provided, further,
55 that section seven of this act shall take effect on the same date and in
56 the same manner as section 6 of chapter 137 of the laws of 2008, takes
A. 572 7
1 effect. Effective immediately, the addition, amendment and/or repeal of
2 any rule or regulation necessary for the implementation of this act on
3 its effective date is authorized and directed to be made and completed
4 on or before such date.
