Bill Text: NY S07893 | 2015-2016 | General Assembly | Introduced
Bill Title: Relates to participation by state agencies in a system used by the comptroller to compile vendor responsibility information; defines information technology for procurement purposes; clarifies the use of best and final offers for invitations for bids and requests for proposals for goods, services and technology; clarifies the use of contracts let by another governmental agency; clarifies the valuation of non-cash contracts by the state comptroller.
Spectrum: Partisan Bill (Republican 1-0)
Status: (Vetoed) 2016-11-28 - VETOED MEMO.295 [S07893 Detail]
Download: New_York-2015-S07893-Introduced.html
STATE OF NEW YORK ________________________________________________________________________ 7893 IN SENATE May 23, 2016 ___________ Introduced by Sen. DeFRANCISCO -- (at request of the State Comptroller) -- read twice and ordered printed, and when printed to be committed to the Committee on Finance AN ACT to amend the state finance law, in relation to participation by state agencies in a system used by the comptroller to compile vendor responsibility information; defining information technology for procurement purposes; clarifying the use of best and final offers for invitations for bids and requests for proposals for goods, services and technology; clarifying the use of contracts let by another govern- mental agency; and clarifying the valuation of non-cash contracts by the state comptroller 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" means the establishment of an online services account 7 with the state comptroller, including, but not limited to, the creation 8 of a unique user identification and password. Enrollment provides a user 9 access to the system. 10 b. "Online services" means the services provided electronically and 11 securely by the state comptroller for the benefit of New York's custom- 12 ers, clients and business partners. Such online services may be expanded 13 and enhanced as technology allows. 14 c. "State contract" or "contract" means and includes any written 15 agreement for the acquisition of goods, services or construction of any 16 kind between a vendor and a state agency, or a written agreement or 17 other instrument wherein a state agency agrees to give consideration 18 other than the payment of money as contemplated in subdivision three of 19 section one hundred twelve of this chapter. 20 d. "Subcontractor" means an individual, sole proprietorship, partner- 21 ship, joint venture or corporation, which is engaged in a subcontract by EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD15317-02-6S. 7893 2 1 a vendor pursuant to a state contract and such subcontract is valued at 2 one hundred thousand dollars or more and is known at the time of the 3 award of the state contract to the vendor. 4 e. "System" means the online software, data and related resources 5 maintained by the comptroller to compile vendor responsibility informa- 6 tion. 7 f. "Term of service" means the terms and conditions developed by the 8 state comptroller and agreed to by each authorized user prior to gaining 9 access to online services. Terms of service shall include a description 10 of the services, obligations of the state comptroller and the authorized 11 user, a description of the state comptroller's privacy policy, author- 12 ized user code of conduct, and indemnity for the state comptroller and 13 the state of New York. Terms of service are subject to change as 14 prescribed by the state comptroller. Authorized users may view changes 15 via the state comptroller's internet site. 16 g. "Vendor" means any person, partnership, corporation or limited 17 liability company or any business entity bidding on a state procurement 18 or otherwise awarded a state contract. 19 h. "Vendor responsibility" means that a vendor has the capacity to 20 fully perform the terms of a contract and the integrity and business 21 ethics to justify an award of public dollars. A determination of vendor 22 responsibility shall include consideration of factors including, but not 23 limited to, financial and organizational capacity, legal authority, 24 integrity and past performance on governmental contracts. 25 2. a. State agencies shall enroll with the state comptroller to access 26 the system maintained by the comptroller to compile vendor responsibil- 27 ity information. State agencies shall agree to and abide by the terms of 28 service for such system as the state comptroller deems necessary. 29 b. For each contract or subcontract between a vendor and a subcontrac- 30 tor where, pursuant to law or by direction of the state agency, disclo- 31 sure for vendor responsibility is required, the state agency shall: 32 (i) provide notice to vendors bidding for procurements administered by 33 the state agency that any vendor and subcontractor, submitting a vendor 34 responsibility questionnaire shall do so via the system maintained to 35 compile vendor responsibility information; 36 (ii) provide vendors with instructions on how to electronically access 37 the system and provide contact information for assistance with enroll- 38 ment. This information shall be made available prior to the time when 39 vendors are required to submit disclosure for vendor responsibility; and 40 (iii) access the system to obtain and evaluate any data submitted by a 41 vendor proposed for contract award. State agencies shall ensure the 42 submission filed by the vendor meets such system's timeliness standards. 43 Such provisions apply regardless of whether the contract is subject to 44 pre-review and approval by the state comptroller. 45 c. For contracts where vendor disclosure is not otherwise required, 46 the state agency at its discretion, may require vendors bidding on 47 procurements, and/or subcontractors, to submit a vendor responsibility 48 questionnaire via the system. Nothing contained in this paragraph shall 49 be construed to alter the existing authority of the state comptroller to 50 require the submission of a vendor responsibility questionnaire in 51 conjunction with his or her duty to review and approve state contracts 52 prior to such contracts becoming effective. 53 d. State agencies shall provide access to the system to users within 54 their organization, as deemed appropriate by the head of the state agen- 55 cy or his or her designee. State agency users provided with such access 56 shall be those individuals, who, as part of their official job duties,S. 7893 3 1 are required to assess and/or review vendor responsibility for the agen- 2 cy's contracts. 3 § 2. Subdivisions 7 and 10 of section 160 of the state finance law, 4 subdivision 7 as amended by section 30 of part L of chapter 55 of the 5 laws of 2012 and subdivision 10 as added by chapter 83 of the laws of 6 1995, are amended to read as follows: 7 7. "Service" or "services" means the performance of a task or tasks 8 and may include a material good or a quantity of material goods, and 9 which is the subject of any purchase or other exchange. For the purposes 10 of this article, information technology shall be deemed a service. 11 Services, as defined in this article, shall not apply to those contracts 12 for architectural, engineering or surveying services, or those contracts 13 approved in accordance with article eleven-B of this chapter. 14 10. ["Technology"] "Information technology" means either a good or a 15 service or a combination thereof, [that results in a technical method of16achieving a practical purpose or in improvements in productivity] used 17 in the application of any computer or electronic information equipment 18 or interconnected system that is used in the acquisition, storage, 19 manipulation, management, movement, control, display, switching, inter- 20 change, transmission, or reception of data including, but not limited 21 to, hardware, software, firmware, programs, systems, networks, infras- 22 tructure, media, and related material used to automatically and elec- 23 tronically collect, receive, access, transmit, display, store, record, 24 retrieve, analyze, evaluate, process, classify, manipulate, manage, 25 assimilate, control, communicate, exchange, convert, converge, inter- 26 face, switch, or disseminate data of any kind or form. Goods may be 27 either new or used. 28 § 3. Paragraphs g and i of subdivision 2 of section 161 of the state 29 finance law, as added by chapter 83 of the laws of 1995, are amended to 30 read as follows: 31 g. Consult with and advise the commissioner on strategic information 32 technology investments that will facilitate electronic access to the 33 terms and conditions of existing procurement contracts, promote elec- 34 tronic commerce including, but not limited to, payment to vendors, 35 promote and enhance the efficiency of the procurement of products and 36 services by or for state agencies and produce useful information that 37 supports state procurement operations, management, analysis and decision 38 making including, but not limited to, data concerning the status and use 39 of procurement contracts and the number and type of contracts and award 40 recipients; 41 i. Establish and, from time to time, amend guidelines for the procure- 42 ment of services and information technology in accordance with the 43 provisions of this article. Such guidelines shall ensure the wise and 44 prudent use of public money in the best interest of the taxpayers of the 45 state; guard against favoritism, improvidence, extravagance, fraud and 46 corruption; and ensure that service contracts are awarded on the basis 47 of best value, including, but not limited to, the following criteria: 48 quality, cost, and efficiency; 49 § 4. Paragraph k of subdivision 1 and subdivisions 6 and 7 of section 50 163 of the state finance law, paragraph k of subdivision 1 as added by 51 section 36 of part L of chapter 55 of the laws of 2012, subdivision 6 as 52 amended by chapter 569 of the laws of 2015 and subdivision 7 as amended 53 by section 10 of part L of chapter 55 of the laws of 2012, are amended 54 to read as follows: 55 k. "Authorized user" or "non-state agency purchaser" means (i) any 56 officer, body or agency of the state or of a political subdivision or aS. 7893 4 1 district therein, or fire company or volunteer ambulance service as such 2 are defined in section one hundred of the general municipal law, to make 3 purchases of commodities, services and information technology through 4 the office of general services' centralized contracts, pursuant to the 5 provisions of section one hundred four of the general municipal law; 6 (ii) any county extension service association as authorized under subdi- 7 vision eight of section two hundred twenty-four of the county law; (iii) 8 any association or other entity as specified in and in accordance with 9 section one hundred nine-a of the general municipal law; (iv) any asso- 10 ciation, consortium or group of privately owned or municipal, federal or 11 state owned or operated hospitals, medical schools, other health related 12 facilities or voluntary ambulance services, which have entered into a 13 contract and made mutual arrangements for the joint purchase of commod- 14 ities, services and information technology pursuant to section twenty- 15 eight hundred three-a of the public health law; (v) any institution for 16 the instruction of the deaf or of the blind listed in section forty-two 17 hundred one of the education law; (vi) any qualified non-profit-making 18 agency for the blind approved by the commissioner of the office of chil- 19 dren and family services or the office of temporary and disability 20 assistance; (vii) any qualified charitable non-profit-making agency for 21 the severely disabled approved by the commissioner of education; (viii) 22 any hospital or residential health care facility as defined in section 23 twenty-eight hundred one of the public health law; (ix) any private 24 not-for-profit mental hygiene facility as defined in section 1.03 of the 25 mental hygiene law; (x) any public authority or public benefit corpo- 26 ration of the state, including the port authority of New York and New 27 Jersey and the interstate environmental commission; (xi) any public 28 library, association library, library system, cooperative library 29 system, the New York Library Association, and the New York State Associ- 30 ation of Library Boards or any other library except those which are 31 operated by for profit entities; (xii) any other association or entity 32 as specified in state law, to make purchases of commodities, services 33 and information technology through the office of general services' 34 centralized contracts. Such qualified non-profit-making agencies for the 35 blind and severely disabled may make purchases from the correctional 36 industries program of the department of corrections and community super- 37 vision subject to rules pursuant to the correction law. 38 6. Discretionary buying thresholds. Pursuant to guidelines established 39 by the state procurement council: the commissioner may purchase services 40 and commodities in an amount not exceeding eighty-five thousand dollars 41 without a formal competitive process; state agencies may purchase 42 services and commodities in an amount not exceeding fifty thousand 43 dollars without a formal competitive process; and state agencies may 44 purchase commodities or services from small business concerns or those 45 certified pursuant to articles fifteen-A and seventeen-B of the execu- 46 tive law, or commodities or information technology that are recycled or 47 remanufactured, or commodities that are food, including milk and milk 48 products, grown, produced or harvested in New York state in an amount 49 not exceeding two hundred thousand dollars without a formal competitive 50 process. 51 7. Method of procurement. Consistent with the requirements of subdivi- 52 sions three and four of this section, state agencies shall select among 53 permissible methods of procurement including, but not limited to, an 54 invitation for bid, request for proposals or other means of solicitation 55 pursuant to guidelines issued by the state procurement council. State 56 agencies may accept bids electronically including submission of theS. 7893 5 1 statement of non-collusion required by section one hundred thirty-nine-d 2 of this chapter and, starting April first, two thousand twelve, and 3 ending March thirty-first, two thousand fifteen, may, for commodity, 4 service and information technology contracts require electronic 5 submission as the sole method for the submission of bids for the solic- 6 itation. State agencies shall undertake no more than eighty-five such 7 electronic bid solicitations, none of which shall be reverse auctions, 8 prior to April first, two thousand fifteen. In addition, state agencies 9 may conduct up to twenty reverse auctions through electronic means, 10 prior to April first, two thousand fifteen. Prior to requiring the elec- 11 tronic submission of bids, the agency shall make a determination, which 12 shall be documented in the procurement record, that electronic 13 submission affords a fair and equal opportunity for offerers to submit 14 responsive offers. Within thirty days of the completion of the eighty- 15 fifth electronic bid solicitation, or by April first, two thousand 16 fifteen, whichever is earlier, the commissioner shall prepare a report 17 assessing the use of electronic submissions and make recommendations 18 regarding future use of this procurement method. In addition, within 19 thirty days of the completion of the twentieth reverse auction through 20 electronic means, or by April first, two thousand fifteen, whichever is 21 earlier, the commissioner shall prepare a report assessing the use of 22 reverse auctions through electronic means and make recommendations 23 regarding future use of this procurement method. Such reports shall be 24 published on the website of the office of general services. Except where 25 otherwise provided by law, procurements shall be competitive, and state 26 agencies shall conduct formal competitive procurements to the maximum 27 extent practicable. State agencies shall document the determination of 28 the method of procurement and the basis of award in the procurement 29 record. Where the basis for award is the best value offer, the state 30 agency shall document, in the procurement record and in advance of the 31 initial receipt of offers, the determination of the evaluation criteria, 32 which whenever possible, shall be quantifiable, and the process to be 33 used in the determination of best value and the manner in which the 34 evaluation process and selection shall be conducted. 35 § 5. Subdivision 9 of section 163 of the state finance law is amended 36 by adding a new paragraph c-1 to read as follows: 37 c-1. Where a state agency determines that non-material changes to the 38 specifications as set forth in the solicitation would be in the best 39 interest of the state and, when provided for in the solicitation, state 40 agencies may request best and final offers, which shall be in writing 41 and solicited in the same manner from all offerers determined to be 42 susceptible of being selected for contract award, with the intent of 43 allowing an offerer to revise its cost; provided, however, that a state 44 agency may not make a modification to the solicitation if such modifica- 45 tion would prejudice any bidder or potential bidder and, provided 46 further, that no best and final offer may be accepted or considered by a 47 state agency unless such best and final offer is submitted in response 48 to a request by the state agency. 49 § 6. Paragraph e of subdivision 10 of section 163 of the state finance 50 law, as amended by chapter 137 of the laws of 2008, is amended to read 51 as follows: 52 e. The commissioner may authorize purchases required by state agencies 53 or other authorized purchasers by letting a contract pursuant to a writ- 54 ten agreement, or by approving the use of a contract let by any depart- 55 ment, agency or instrumentality of the United States government and/or 56 any department, agency, office, political subdivision or instrumentalityS. 7893 6 1 of any state or states. A state agency purchaser shall document in the 2 procurement record its rationale for the use of a contract let by any 3 department, agency or instrumentality of the United States government or 4 any department, agency, office, political subdivision or instrumentality 5 of any other state or states. Such rationale shall include, but need not 6 be limited to, a determination of need, a consideration of the procure- 7 ment method by which the contract was awarded, an analysis of alterna- 8 tive procurement sources including an explanation why a competitive 9 procurement or the use of a centralized contract let by the commissioner 10 is not in the best interest of the state, and the reasonableness of 11 cost. The authority to use a contract let by another governmental enti- 12 ty pursuant to this paragraph is intended to benefit the state by using 13 contracts in place that provide for the same service or commodity sought 14 by a state agency at a price determined to be reasonable by the state 15 agency. Such contracts are not intended to be used primarily to avoid 16 competitive bidding. Use of multiple award contracts pursuant to this 17 paragraph shall follow the same basis of selection among the multiple 18 awardees as was prescribed by the original contracting governmental 19 entity. 20 § 7. Subdivision 3 of section 112 of the state finance law, as 21 amended by section 2-c of part F of chapter 57 of the laws of 2016, is 22 amended to read as follows: 23 3. A contract or other instrument wherein the state or any of its 24 officers, agencies, boards or commissions agrees to give a consideration 25 other than the payment of money, when the value or reasonably estimated 26 value of such consideration exceeds twenty-five thousand dollars, shall 27 not become a valid enforceable contract unless such contract or other 28 instrument shall first be approved by the comptroller and filed in his 29 office. For purposes of this subdivision, where consideration cannot be 30 determined in terms of monetary value, it shall be valued in terms of 31 intrinsic value. 32 § 8. This act shall take effect immediately; provided, however, 33 section one of this act shall take effect on the one hundred eightieth 34 day after it shall have become a law; provided, further however, that 35 the provisions of sections four, five and six of this act shall apply to 36 any procurement initiated on or after such sections shall have become a 37 law; provided, further, however, that the amendments to section 163 of 38 the state finance law made by sections four, five, and six of this act 39 shall not affect the repeal of such section as provided in subdivision 5 40 of section 362 of chapter 83 of the laws of 1995, as amended, and shall 41 be deemed repealed therewith.
