N.Y. STF Law § 163 — New York Code / Act STF / Article 11 / Section 163
Purchasing services and commodities
Status: in_force

* § 163. Purchasing services and commodities. 1. Definitions. For the\npurposes of this section, the following terms shall have the following\nmeanings unless otherwise specified:\n  a. "Consortium" means like entities which agree to collectively\npurchase commodities at a lower price than would be otherwise achievable\nthrough purchase by such entities pursuant to other provisions of this\narticle.\n  b. "Emergency" means an urgent and unexpected requirement where health\nand public safety or the conservation of public resources is at risk.\n  c. "Responsible" or "responsibility" means the financial ability,\nlegal capacity, integrity, and past performance of a business entity and\nas such terms have been interpreted relative to public procurements.\n  d. "Responsive" means a bidder or other offerer meeting the minimum\nspecifications or requirements as prescribed in a solicitation for\ncommodities or services by a state agency.\n  e. "Specification" or "requirement" means any description of the\nphysical or functional characteristics or the nature of a commodity or\nconstruction item, any description of the work to be performed, the\nservice or products to be provided, the necessary qualifications of the\nofferer,the capacity and capability of the offerer to successfully carry\nout the proposed contract, or the process for achieving specific results\nand/or anticipated outcomes or any other requirement necessary to\nperform the work. It may include a description of any obligatory\ntesting, inspection or preparation for delivery and use, and may include\nfederally required provisions and conditions where the eligibility for\nfederal funds is conditioned upon the inclusion of such federally\nrequired provisions and conditions. Specifications shall be designed to\nenhance competition, ensuring the commodities or services of any offerer\nare not given preference except where required by this article.\n  f. "Procurement record" means documentation of the decisions made and\nthe approach taken in the procurement process.\n  g. "Sole source" means a procurement in which only one offerer is\ncapable of supplying the required commodities or services.\n  h. "Single source" means a procurement in which although two or more\nofferers can supply the required commodities or services, the\ncommissioner or state agency, upon written findings setting forth the\nmaterial and substantial reasons therefor, may award a contract or\nnon-technical amendment to a contract to one offerer over the other. The\ncommissioner or state agency shall document in the procurement record\nthe circumstances leading to the selection of the vendor, including the\nalternatives considered, the rationale for selecting the specific vendor\nand the basis upon which it determined the cost was reasonable.\n  i. "Lowest price" means the basis for awarding contracts for\ncommodities among responsive and responsible offerers.\n  j. "Best value" means the basis for awarding contracts for services to\nthe offerer which optimizes quality, cost and efficiency, among\nresponsive and responsible offerers. Such basis shall reflect, wherever\npossible, objective and quantifiable analysis. Such basis may also\nidentify a quantitative factor for offerers that are small businesses,\ncertified minority- or women-owned business enterprises as defined in\nsubdivisions one, seven, fifteen and twenty of section three hundred ten\nof the executive law or service-disabled veteran-owned business\nenterprises as defined in subdivision one of section forty of the\nveterans' services law to be used in evaluation of offers for awarding\nof contracts for services.\n  k. "Authorized user" or "non-state agency purchaser" means (i) any\nofficer, body or agency of the state or of a political subdivision or a\ndistrict therein, or fire company or volunteer ambulance service as such\nare defined in section one hundred of the general municipal law, to make\npurchases of commodities, services and technology through the office of\ngeneral services' centralized contracts, pursuant to the provisions of\nsection one hundred four of the general municipal law; (ii) any county\nextension service association as authorized under subdivision eight of\nsection two hundred twenty-four of the county law; (iii) any association\nor other entity as specified in and in accordance with section one\nhundred nine-a of the general municipal law; (iv) any association,\nconsortium or group of privately owned or municipal, federal or state\nowned or operated hospitals, medical schools, other health related\nfacilities or voluntary ambulance services, which have entered into a\ncontract and made mutual arrangements for the joint purchase of\ncommodities, services and technology pursuant to section twenty-eight\nhundred three-a of the public health law; (v) any institution for the\ninstruction of the deaf or of the blind listed in section forty-two\nhundred one of the education law; (vi) any qualified non-profit-making\nagency for the blind approved by the commissioner of the office of\nchildren and family services or the office of temporary and disability\nassistance; (vii) any qualified charitable non-profit-making agency for\nthe severely disabled approved by the commissioner of education; (viii)\nany hospital or residential health care facility as defined in section\ntwenty-eight hundred one of the public health law; (ix) any private\nnot-for-profit mental hygiene facility as defined in section 1.03 of the\nmental hygiene law; (x) any public authority or public benefit\ncorporation of the state, including the port authority of New York and\nNew Jersey and the interstate environmental commission; (xi) any public\nlibrary, association library, library system, cooperative library\nsystem, the New York Library Association, and the New York State\nAssociation of Library Boards or any other library except those which\nare operated by for profit entities; (xii) any other association or\nentity as specified in state law, to make purchases of commodities,\nservices and technology through the office of general services'\ncentralized contracts. Such qualified non-profit-making agencies for the\nblind and severely disabled may make purchases from the correctional\nindustries program of the department of corrections and community\nsupervision subject to rules pursuant to the correction law.\n  2. Operating principles. The objective of state procurement is to\nfacilitate each state agency's mission while protecting the interests of\nthe state and its taxpayers and promoting fairness in contracting with\nthe business community. The state's procurement process shall be guided\nby the following principles:\n  a. To promote purchasing from responsive and responsible offerers,\nincluding small businesses.\n  b. To be based on clearly articulated procedures which require a clear\nstatement of product specifications, requirements or work to be\nperformed; a documentable process for soliciting bids, proposals or\nother offers; a balanced and fair method, established in advance of the\nreceipt of offers, for evaluating offers and awarding contracts;\ncontract terms and conditions that protect the state's interests and\npromote fairness in contracting with the business community; and a\nregular monitoring of vendor performance.\n  c. To encourage the investment of the private and not-for-profit\nsectors in New York state by making reasonable efforts to ensure that\nofferers are apprised of procurement opportunities; by specifying the\nelements of a responsive bid and disclosing the process for awarding\ncontracts including, if applicable, the relative importance and/or\nweight of cost and the overall technical criterion for evaluating\noffers; and by ensuring the procurement is conducted accordingly.\n  d. To ensure that contracts are awarded consistent with the best\ninterests of the state.  e. To ensure that officers and employees of\nstate entities do not benefit financially or otherwise from the award of\nstate contracts.\n  f. To ensure regular and critical review of the efficiency, integrity\nand effectiveness of the overall process.\n  3. General provisions for purchasing commodities.\n  a. State agency procurement practices for commodities shall\nincorporate the following:\n  (i) The purchase of commodities by state agencies including the office\nof general services shall be conducted in a manner which accords first\npriority to preferred sources in accordance with the provisions of this\narticle, second priority to centralized contracts, third priority to\nagency or multi-agency established contracts and fourth priority to\nother means of contracting.\n  (ii) Commodities contracts shall be awarded on the basis of lowest\nprice to a responsive and responsible offerer; or, in the case of\nmultiple awards, in accordance with paragraph c of subdivision ten of\nthis section.\n  (iii) The commissioner shall be responsible for the standardization\nand centralized purchase of commodities required by state agencies in a\nmanner which maximizes the purchasing value of public funds.\n  (iv) The commissioner is authorized to permit purchases of commodities\nand services for authorized users through the office of general\nservices' centralized contracts. Such authorized users so empowered\nshall accept sole responsibility for any payment due with respect to\nsuch purchases.\n  (v) Consistent with guidelines issued by the state procurement\ncouncil, state agencies may competitively purchase commodities procured\nin accordance with this article in lieu of using centralized contracts\nwhen the resultant price is less than the centralized contract price.\n  (vi) When justified by price, state agencies, and hospitals and\nfacilities managed and controlled by state agencies eligible pursuant to\nsection twenty-eight hundred three-a of the public health law, shall be\neligible to make purchases pursuant to guidelines issued by the state\nprocurement council from a consortium or comparable entity in lieu of\nusing centralized contracts for commodities.\n  (vii) The commissioner is authorized to enter into contracts pursuant\nto the provisions of section twenty-eight hundred three-a of the public\nhealth law.\n  b. The commissioner shall:\n  (i) determine, in cooperation with the state procurement council and\nstate agencies, the identity, form, function and utility of those\ncommodities which shall be made available on or through centralized\ncontracts. Criteria may include, but need not be limited to, the\navailability of a volume discount, prior use of the commodity among\nstate agencies and the relative cost of establishing the contract, its\nanticipated use and expected actual savings for the state. The\ncommissioner may also act as a broker for state agencies to procure\ncommodities.\n  (ii) determine the number and scope of centralized contracts for\ncommodities to be let during any period, including the letting of\nmultiple contracts to ensure the sufficient variety and uninterrupted\navailability of commodities for state agency use.\n  (iii) maintain lists of firms which produce or manufacture or offer\nfor sale commodities in the form, function and utility required by state\nagencies. The commissioner shall ensure such lists are updated\nregularly. With the assistance of the department of economic development\nand other state agencies, beginning on July first, two thousand one,\nensure the availability to all authorized purchasers of a centralized\nlist which identifies commodities offered by New York state's small\nbusinesses and a centralized list which identifies commodities and\nservices offered by businesses certified pursuant to article fifteen-A\nof the executive law. Such lists shall be updated semiannually and\ndesigned to enable effective identification of New York state's small\nbusinesses and businesses certified pursuant to article fifteen-A of the\nexecutive law.\n  (iv) ensure the specification of commodities for centralized contracts\nreflect the form, function and utility required by state agencies and\nconform, wherever possible, to industry standards. Where necessary, the\ncommissioner may develop specifications for commodities. When not\notherwise forthcoming from a particular firm or industry, the\ncommissioner may request information from businesses for the purpose of\nestablishing or improving a specification. The office of general\nservices may assist agencies in developing specifications for\nagency-procured commodity contracts when industry standards are not\navailable or appropriate. In all cases, specifications shall be\nconsistent with the requirements of state agencies.\n  (v) With the assistance of the department of economic development and\nother state agencies, provide a training program once per year, in each\neconomic development region, as established in article eleven of the\neconomic development law, beginning January first, two thousand one, for\nthose businesses certified pursuant to article fifteen-A of the\nexecutive law and those interested in becoming certified. Such training\nprogram shall provide assistance with respect to participation as a\nvendor in the procurement process, as established in this article, and\nincluding without limitation educating minority and women contractors\nabout surety bonding requirements on state contracts, and identifying\nresources available to such contractors in obtaining their first bond\nand in increasing their bonding capacity, including but not limited to\nthe federal small business administration bond guarantee program.\n  (vi) With the assistance of the department of economic development and\nother state agencies, provide training once per year for staff of each\nstate agency's minority and women business development office, or if an\nagency does not have such an office, then an agency's representative.\nSuch training program shall consist of a meeting with such agencies'\nrepresentatives to inform each agency of how to encourage procurement of\ncommodities and services from businesses certified pursuant to article\nfifteen-A of the executive law.\n  (vii) assist the department of agriculture and markets and the\ndepartment of economic development in providing a training program once\nper year, in each economic development region, established in article\neleven of the economic development law, to encourage and increase\nparticipation in the procurement process, pursuant to this article, by\nsmall businesses, as defined in section one hundred thirty-one of the\neconomic development law, including farms, selling food or food\nproducts, animal or plant fiber products grown, produced, harvested, or\nprocessed in New York state or textile products manufactured from animal\nor plant fiber grown or produced predominantly in New York state and\nassist such businesses in identifying such food, food products, or\nanimal or plant fiber products and textile products which may help to\nmeet state agencies' needs.\n  (viii) maintain a list of contractors which produce or manufacture or\noffer for sale environmentally-sensitive cleaning and maintenance\nproducts in the form, function and utility generally used by elementary\nand secondary schools in accordance with specifications or guidelines\npromulgated pursuant to section four hundred nine-i of the education\nlaw.\n  (ix) review and consider prior to issuance of bid solicitations the\nterm of the proposed contract based on factors, including, but not\nlimited to; (A) the nature of the commodity, (B) the complexity of the\nprocurement, (C) the identity and type of purchasers, (D) the\nsuitability of the contract for adding additional contractors during the\nterm, and (E) the estimated contract value. This determination shall be\ndocumented in the procurement record.\n  (x) reasonably consider aggregate amount of public sales by potential\nvendors.\n  (xi) review and consider the feasibility of creating regional\ncontracts for commodities being procured by the state.\n  (xii) maintain a procurement record for each centralized contract\nprocurement identifying, with supporting documentation, decisions made\nby the commissioner during the procurement process. The procurement\nrecord shall include, but not be limited to, each contract amendment,\nand the justification for each.\n  (xiii) maintain a list of New York-based firms which produce or\nmanufacture or offer for sale animal or plant fiber textile products\ncontaining animal or plant fiber grown or produced predominantly in New\nYork state in the form, function and utility generally purchased for use\nby state agencies.\n  c. When commodities are not available in the form, function and\nutility required by state agencies through preferred sources or\ncentralized contracts, a state agency may, independently or in\nconjunction with other state agencies, procure commodities in accordance\nwith the provisions of this section. State agencies may maintain\nlistings of firms, including those certified pursuant to article\nfifteen-A of the executive law, or may use the office of general\nservices' listing of firms and may request assistance from the office of\ngeneral services. It shall be the responsibility of state agencies to\nperiodically advise the office of general services of those\nagency-procured commodities which, due to the frequency of purchase or\nrelated factors, should be made available through centralized contracts.\n  d. The commissioner may make, or cause to be made by a duly authorized\nrepresentative, any investigation which he or she may deem proper for\nacquiring the necessary information from a state agency, except state\nagencies where the head of the agency is not appointed by the governor,\nincluding but not limited to the state education department, the\ndepartment of law, and the department of audit and control, for the\nexercise of his or her powers and duties under this section. For such\npurposes the commissioner may subpoena and compel the attendance of\nwitnesses before him or her, or an authorized representative, and may\ncompel the production of books, papers, records or documents. The\ncommissioner or a duly authorized representative may take and hear\nproofs and testimony and, for that purpose, the commissioner or the duly\nauthorized representative may administer oaths. In addition, the\ncommissioner or the duly authorized representative:\n  (i) Shall have access at all reasonable times to offices of state\nagencies;\n  (ii) May examine all books, papers, records and documents in any such\nstate agency as pertain directly to the purchase, control or\ndistribution of commodities; and\n  (iii) May require any state agency to furnish such data, information\nor statement as may be necessary.\n  4. General provisions for purchasing services. State agency\nprocurement practices for services shall incorporate the following:\n  a. The purchase of services by state agencies including the office of\ngeneral services shall be conducted in a manner which accords first\npriority to preferred sources in accordance with the provisions of this\narticle when the services required are available in the form, function\nand utility required by state agencies through a preferred source.\n  b.  (i) Centralized contracts for services may be procured by the\noffice of general services at the request of state agencies or as\ndetermined by the commissioner. The purchase of services by state\nagencies, except state agencies where the head of the agency is not\nappointed by the governor, including but not limited to the state\neducation department, the department of law, and the department of audit\nand control, shall be conducted in a manner that accords second priority\nto centralized contracts meeting form, function and utility required by\nsaid agency, third priority to agency or multi-agency established\ncontracts and fourth priority to other means of contracting.\n  (ii) The commissioner shall:\n  (A) review and consider prior to issuance of bid solicitations the\nterm of the proposed contract based on factors, including, but not\nlimited to, (a) the nature of the service, (b) the complexity of the\nprocurement, (c) the identity and type of purchasers, (d) the\nsuitability of the contract for adding additional contractors during the\nterm, and (e) the estimated contract value. This determination shall be\ndocumented in the procurement record.\n  (B) reasonably consider the aggregate amount of public sales by\npotential vendors.\n  (C) review and consider the feasibility of creating regional contracts\nfor services being procured by the state.\n  (D) maintain a procurement record for each centralized contract\nprocurement identifying with supporting documentation, decisions made by\nthe commissioner during the procurement process. The procurement records\nshall include, but not be limited to, each contract amendment, and the\njustification for each.\n  c. When services are not available from preferred sources consistent\nwith the provisions of this article in the form, function or utility\nrequired by state agencies, state agencies may procure services\nindependently or in conjunction with other state agencies in accordance\nwith the provisions of this section.\n  d. Service contracts shall be awarded on the basis of best value to a\nresponsive and responsible offerer; or, in the case of multiple awards,\nin accordance with paragraph c of subdivision ten of this section.\n  e. The commissioner is authorized to permit purchases of services for\nauthorized users through the office of general services' centralized\ncontracts. Such authorized users so empowered shall accept sole\nresponsibility for any payment due with respect to such purchases.\n  g. All state agencies shall require all contractors, including\nsub-contractors, that provide services for state purposes pursuant to a\ncontract, to submit an annual employment report for each contract for\nservices that includes for each employment category within the contract\nthe number of employees employed to provide services under the contract,\nthe number of hours they work and their total compensation under the\ncontract. Employment reports shall be submitted to the agency that\nawarded the contract, the department of civil service and the department\nof audit and control and shall be available for public inspection and\ncopying pursuant to section eighty-seven of the public officers law\nprovided that in disclosing such reports pursuant to the public officers\nlaw, the agency making the disclosure shall redact the name or social\nsecurity number of any individual employee that is included in such\ndocument.\n  5. Process for conducting state procurements. The process for\nconducting state procurements for services and commodities shall be as\nfollows:\n  Determination of need. State agencies shall be responsible for\ndetermining the need for a given service or commodity:\n  (i) For commodities, upon such determination of need, state agencies\nshall ascertain whether the commodity is available in the form, function\nand utility consistent with their needs from preferred sources and if\nso, shall purchase said commodity from a preferred source in accordance\nwith the provisions of this article. If not so available, state agencies\nshall determine whether the commodity is available in the form, function\nand utility consistent with their needs on a centralized contract and if\nso, except as provided in subparagraph (v) of paragraph a of subdivision\nthree of this section, shall purchase said commodity using the\ncentralized contract. If a commodity is not available in the form,\nfunction and utility consistent with the needs of the state agency from\na preferred source or a centralized contract or as provided for in\nsubparagraph (v) of paragraph a of subdivision three of this section,\nthe state agency may procure the commodity independently or in\nconjunction with another state agency in accordance with paragraph c of\nsubdivision three of this section.\n  (ii) For services, upon such determination of need, state agencies\nshall ascertain whether the service is available in the form, function\nand utility consistent with their needs from preferred sources and, if\nso, shall purchase said service through the preferred source in\naccordance with the provisions of this article. If not so available,\nstate agencies the heads of which are appointed by the governor:\n  (A) Shall purchase the service if it is available in the form,\nfunction and utility consistent with their needs using an established\ncentralized contract procured by either the office of general services\nor another state agency;\n  (B) May request that the office of general services procure such a\nservice, particularly with respect to those services having utility\nand/or benefit to more than one state agency; or\n  (C) May procure the service independently or in conjunction with\nanother state agency.\n  6. Discretionary buying thresholds. Pursuant to guidelines established\nby the state procurement council:\n  (a) the commissioner may purchase services and commodities for the\noffice of general services or its customer agencies serviced by the\noffice of general services business services center in an amount not\nexceeding one hundred fifty thousand dollars without a formal\ncompetitive process;\n  (b) state agencies may purchase services and commodities in an amount\nnot exceeding one hundred fifty thousand dollars without a formal\ncompetitive process;\n  (c) state agencies may purchase commodities or services from small\nbusiness concerns, or commodities or technology that are recycled or\nremanufactured in an amount not exceeding five hundred thousand dollars\nwithout a formal competitive process;\n  (d) state agencies may purchase commodities or services from those\ncertified pursuant to article fifteen-A of the executive law and article\nthree of the veterans' services law in an amount not exceeding one\nmillion five hundred thousand dollars without a formal competitive\nprocess; and\n  (e) state agencies may purchase commodities that are food, including\nmilk and milk products, or animal or plant fiber products, grown,\nproduced, harvested, or processed in New York state or textile products\nmanufactured from animal or plant fiber grown or produced predominantly\nin New York state in an amount not to exceed two hundred thousand\ndollars without a formal competitive process.\n  6-a. Discretionary purchases. Notwithstanding the provisions of\nsubdivision two of section one hundred twelve of this chapter relating\nto the dollar threshold requiring the state comptroller's approval of\ncontracts, the commissioner of general services may make purchases or\nenter into contracts for the acquisition of commodities and services for\nthe office of general services or its customer agencies serviced by the\noffice of general services business services center having a value not\nexceeding one hundred fifty thousand dollars without prior approval by\nany other state officer or agency in accordance with procedures and\nrequirements set forth in this article.\n  6-b. Determination of threshold amount. For determination of threshold\namount purposes of determining whether a purchase is within the\ndiscretionary thresholds established by subdivision six of this section,\nthe commissioner and state agencies shall consider the reasonably\nexpected aggregate amount of all purchases of the same commodities or\nservices to be made within the twelve-month period commencing on the\ndate of purchase. Purchases of services or commodities shall not be\nartificially divided for the purpose of satisfying the discretionary\nbuying thresholds established by subdivision six of this section. A\nchange to or a renewal of a discretionary purchase shall not be\npermitted if the change or renewal would bring the reasonably expected\naggregate amount of all purchases of the same commodities or services\nfrom the same provider within the twelve-month period commencing on the\ndate of the first purchase to an amount greater than the discretionary\nbuying threshold amount.\n  6-c. Pursuant to the authority provided in subdivision six of this\nsection, for the purchase of commodities that are food, including milk\nand milk products, or animal or plant fiber products, grown, produced,\nharvested, or processed in New York state or textile products\nmanufactured from animal or plant fiber grown or produced predominantly\nin New York state, where such commodities exceed one hundred fifty\nthousand dollars in value, state agencies must advertise the\ndiscretionary purchase on the state agency website for a reasonable\nperiod of time and make the discretionary purchase based on the lowest\nprice that meets the state agency's form, function and utility.\n  6-d. Pursuant to the authority provided in subdivision six of this\nsection, state agencies shall report annually on a fiscal year basis by\nJuly first of the ensuing year to the director of the division of\nminority and women-owned business development the total number and total\nvalue of contracts awarded to businesses certified pursuant to article\nfifteen-A of the executive law, and with respect to contracts awarded to\nbusinesses certified pursuant to article three of the veterans' services\nlaw such information shall be reported to the division of\nservice-disabled veteran-owned business enterprises for inclusion in\ntheir respective annual reports. Additionally, such report from state\nagencies shall clearly distinguish contracts entered into using the\nauthority provided under paragraph (d) of subdivision six of this\nsection, including the number of contracts, the percentage of the total\ndollar value of contracts awarded to minority and women-owned business\nentities and service disabled and veteran-owned business entities\nrelative to the previous fiscal year's total awards for all commodities\nand services and services purchases, a comparison of the percentage of\nprocurements awarded pursuant to such paragraph during the fiscal year\nrelative to the percentage of such purchases awarded in the previous\nfiscal year, a comparison of the participation rate and total dollar\nvalue of awards to minority and women-owned business enterprises and\nservice-disabled veteran-owned businesses using the expanded authority\nunder such paragraph relative to such participation rate and total\ndollar value of awards pursuant to the previous authorization levels.\n  7. Method of procurement. Consistent with the requirements of\nsubdivisions three and four of this section, state agencies shall select\namong permissible methods of procurement including, but not limited to,\nan invitation for bid, request for proposals or other means of\nsolicitation pursuant to guidelines issued by the state procurement\ncouncil. State agencies may accept bids electronically including\nsubmission of the statement of non-collusion required by section one\nhundred thirty-nine-d of this chapter, and the statement of\ncertification required by section one hundred thirty-nine-l and section\none hundred thirty-nine-m of this chapter. Except where otherwise\nprovided by law, procurements shall be competitive, and state agencies\nshall conduct formal competitive procurements to the maximum extent\npracticable. State agencies shall document the determination of the\nmethod of procurement and the basis of award in the procurement record.\nWhere the basis for award is the best value offer, the state agency\nshall document, in the procurement record and in advance of the initial\nreceipt of offers, the determination of the evaluation criteria, which\nwhenever possible, shall be quantifiable, and the process to be used in\nthe determination of best value and the manner in which the evaluation\nprocess and selection shall be conducted.\n  7-a. Notwithstanding the electronic bid provisions set forth in\nsubdivision seven of this section, starting April first, two thousand\ntwenty-three, and ending March thirty-first, two thousand twenty-seven,\nstate agencies may require electronic submission as the sole method for\nthe submission of bids for commodity, service and technology contracts,\nincluding submission of the statement of non-collusion required by\nsection one hundred thirty-nine-d of this chapter, and the statement of\ncertification required by section one hundred thirty-nine-l and section\none hundred thirty-nine-m of this chapter, and may require electronic\nsignatures on all documents required for submission of a bid, any\nresulting contracts, and required submissions during the term of any\ncontract. Prior to requiring the electronic submission of bids, the\nagency shall make a determination, which shall be documented in the\nprocurement record, that electronic submission affords a fair and equal\nopportunity for offerers to submit responsive offers, and that the\nelectronic signature complies with the provisions of article three of\nthe state technology law.\n  7-b. On or before December first, two thousand twenty-six, the\ncommissioner of the office of general services shall submit to the\nspeaker of the assembly and the temporary president of the senate and\npost on the website of the office of general services a report\nincluding, but not limited to, the following information:\n  (a) which state agencies required electronic submission as the sole\nmethod by which bids could be submitted for the period from April first,\ntwo thousand twenty-three through March thirty-first, two thousand\ntwenty-six;\n  (b) the number and types of contracts for which such state agencies\nrequired electronic submission as the sole method by which bids could be\nsubmitted for the period from April first, two thousand twenty-three\nthrough March thirty-first, two thousand twenty-six;\n  (c) the estimated savings to the state as a result of such state\nagencies requiring electronic submission as the sole method by which\nbids could be submitted in response to a solicitation and the basis on\nwhich the estimate is made;\n  (d) to the extent practicable, the size, industry, minority- and\nwomen-owned business enterprise composition, service-disabled\nveteran-owned business enterprise composition, and geographic\ndistribution of those vendors that submitted bids in response to\nsolicitations from state agencies where electronic submission was the\nsole method by which bids could be submitted for the period from April\nfirst, two thousand twenty-three through March thirty-first, two\nthousand twenty-six;\n  (e) to the extent practicable, the size, industry, minority- and\nwomen-owned business enterprise composition, service-disabled\nveteran-owned business enterprise composition, and geographic\ndistribution of those vendors that submitted non-electronic bids in\nresponse to solicitations from state agencies where electronic\nsubmission was accepted but not required for the period from April\nfirst, two thousand twenty-three through March thirty-first, two\nthousand twenty-six; and\n  (f) recommendations for the future use of electronic bidding as a\npermissible method of procurement.\n  8. Public notice. All procurements by state agencies, including,\nwithout limitation, the state university of New York and the city\nuniversity of New York, in excess of one hundred fifty thousand dollars\nshall be advertised in the state's procurement opportunities newsletter\nin accordance with article four-C of the economic development law.\n  9. Soliciting and accepting offers. For purchases from sources other\nthan preferred sources and for purchases in excess of the discretionary\nbuying threshold established in subdivision six of this section:\n  a. The commissioner or a state agency shall select a formal\ncompetitive procurement process in accordance with guidelines\nestablished by the state procurement council and document its\ndetermination in the procurement record. The process shall include, but\nis not limited to, a clear statement of need; a description of the\nrequired specifications governing performance and related factors; a\nreasonable process for ensuring a competitive field; a fair and equal\nopportunity for offerers to submit responsive offers; and a balanced and\nfair method of award.  Where the basis for the award is best value,\ndocumentation in the procurement record shall, where practicable,\ninclude a quantification of the application of the criteria to the\nrating of proposals and the evaluation results, or, where not\npracticable, such other justification which demonstrates that best value\nwill be achieved.\n  b. The solicitation shall prescribe the minimum specifications or\nrequirements that must be met in order to be considered responsive and\nshall describe and disclose the general manner in which the evaluation\nand selection shall be conducted. Where appropriate, the solicitation\nshall identify the relative importance and/or weight of cost and the\noverall technical criterion to be considered by a state agency in its\ndetermination of best value.\n  c. Where provided in the solicitation, state agencies may require\nclarification from offerers for purposes of assuring a full\nunderstanding of responsiveness to the solicitation requirements. Where\nprovided for in the solicitation, revisions may be permitted from all\nofferers determined to be susceptible of being selected for contract\naward, prior to award. Offerers shall be accorded fair and equal\ntreatment with respect to their opportunity for discussion and revision\nof offers. A state agency shall, upon request, provide a debriefing to\nany unsuccessful offerer that responded to a request for proposal or an\ninvitation for bids, regarding the reasons that the proposal or bid\nsubmitted by the unsuccessful offerer was not selected for an award. The\nopportunity for an unsuccessful offerer to seek a debriefing shall be\nstated in the solicitation.\n  (i) A debriefing shall be requested by the unsuccessful offerer within\nfifteen calendar days of release by the state agency of a notice in\nwriting or electronically that the offerer's offer is unsuccessful.\n  (ii) Such notice shall be provided to all unsuccessful offerers by the\nstate agency for the specific procurement.\n  (iii) The state agency, upon a request made within fifteen days of\nrelease of the written or electronic notice from the unsuccessful\nofferer for a debriefing, shall schedule the debriefing to occur within\na reasonable time of such request. Debriefings shall be conducted by the\nstate agency with the unsuccessful offerer in-person, provided, however,\nthe parties may mutually agree to utilize other means such as, but not\nlimited to, by telephone, video-conferencing or other types of\nelectronic communications. State agency personnel participating in the\ndebriefing discussion shall have been involved with and knowledgeable\nabout the procurement and the evaluation and selection of the successful\nofferer or offerers.\n  (iv) Such debriefing shall include, but need not be limited to: (A)\nthe reasons that the proposal, bid or offer submitted by the\nunsuccessful offerer was not selected for award; (B) the qualitative and\nquantitative analysis employed by the agency in assessing the relative\nmerits of the proposals, bids or offers; (C) the application of the\nselection criteria to the unsuccessful offerer's proposal; and (D) when\nthe debriefing is held after the final award, the reasons for the\nselection of the winning proposal, bid or offer. The debriefing shall\nalso provide, to the extent practicable, general advice and guidance to\nthe unsuccessful offerer concerning potential ways that their future\nproposals, bids or offers could be more responsive.\n  d. All offers may be rejected. Where provided in the solicitation,\nseparable portions of offers may be rejected.\n  e. Every offer shall be firm and not revocable for a period of sixty\ndays from the bid opening, or such other period of time specified in the\nsolicitation to the extent not inconsistent with section 2-205 of the\nuniform commercial code. Subsequent to such sixty day or other specified\nperiod, any offer is subject to withdrawal communicated in a writing\nsigned by the offeror.\n  f. Prior to making an award of contract, each state agency shall make\na determination of responsibility of the proposed contractor which shall\nsupplement, as appropriate, but not supersede the determination of\nresponsibility that may be required pursuant to section one hundred\nthirty-nine-k of this chapter.\n  g. A procurement record shall be maintained for each procurement\nidentifying, with supporting documentation, decisions made by the\ncommissioner or state agency during the procurement process. The\nprocurement record shall include, but not be limited to each contract\namendment and the justification for each.\n  10. Letting of contracts. Contracts for commodities shall be awarded\non the basis of lowest price to a responsive and responsible offerer.\nContracts for services shall be awarded on the basis of best value from\na responsive and responsible offerer. Multiple awards for services and\ncommodities shall be conducted in accordance with paragraph c of this\nsubdivision.\n  a. Selection and award shall be a written determination in the\nprocurement record made by the commissioner or a state agency in a\nmanner consistent with the provisions of the solicitation. In the event\ntwo offers are found to be substantially equivalent, price shall be the\nbasis for determining the award recipient or, when price and other\nfactors are found to be substantially equivalent, the determination of\nthe commissioner or agency head to award a contract to one or more of\nsuch bidders shall be final. The basis for determining the award shall\nbe documented in the procurement record.\n  b. (i) Single or sole source procurements for services or commodities,\nor procurements made to meet emergencies arising from unforeseen causes,\nmay be made without a formal competitive process and shall only be made\nunder unusual circumstances and shall include a determination by the\ncommissioner or the state agency that the specifications or requirements\nfor said purchase have been designed in a fair and equitable manner. The\npurchasing agency shall document in the procurement record, subject to\nreview by the state comptroller, the bases for a determination to\npurchase from a single source or sole source, or the nature of the\nemergency giving rise to the procurement.\n  (ii) State agencies shall minimize the use of single source\nprocurements and shall use single source procurements only when a formal\ncompetitive process is not feasible. State agencies shall document in\nthe procurement record the circumstances and the material and\nsubstantial reasons why a formal competitive process is not feasible.\nThe term of a single source procurement contract shall be limited to the\nminimum period of time necessary to ameliorate the circumstances which\ncreated the material and substantial reasons for the single source\naward. Not later than thirty days after the contract award, state\nagencies shall, for all single source procurement contracts, make\navailable for public inspection on the agency website, a summary of the\ncircumstances and material and substantial reasons why a competitive\nprocurement is not feasible. Any information which the contracting\nagency is otherwise prohibited by law from disclosing pursuant to\nsections eighty-seven and eighty-nine of the public officers law, shall\nbe redacted from the documentation published on the agency website.\n  c. The commissioner or state agency may elect to award a contract to\none or more responsive and responsible offerers provided, however, that\nthe basis for the selection among multiple contracts at the time of\npurchase shall be the most practical and economical alternative and\nshall be in the best interests of the state, and further provided that\nthe requirements set forth herein shall not preclude the commissioner\nfrom establishing multiple award contracts for reasons including\nincreased opportunities for small businesses to participate in state\ncontracts.\n  d. It shall be in the discretion of the commissioner or state agency\nto require a bond or other guarantee of performance, and to approve the\namount, form and sufficiency thereof.\n  e. The commissioner may authorize purchases required by state agencies\nor other authorized purchasers by letting a contract pursuant to a\nwritten agreement, or by approving the use of a contract let by any\ndepartment, agency or instrumentality of the United States government\nand/or any department, agency, office, political subdivision or\ninstrumentality of any state or states. A state agency purchaser shall\ndocument in the procurement record its rationale for the use of a\ncontract let by any department, agency or instrumentality of the United\nStates government or any department, agency, office, political\nsubdivision or instrumentality of any other state or states. Such\nrationale shall include, but need not be limited to, a determination of\nneed, a consideration of the procurement method by which the contract\nwas awarded, an analysis of alternative procurement sources including an\nexplanation why a competitive procurement or the use of a centralized\ncontract let by the commissioner is not in the best interest of the\nstate, and the reasonableness of cost.\n  f. The commissioner is authorized to let centralized contracts, in\naccordance with the procedures of this section, for joint purchasing by\nNew York state and any department, agency or instrumentality of the\nUnited States government and/or any state including the political\nsubdivisions thereof; provided however that any entity incurring a\nliability under such contract shall be responsible for discharging said\nliability.\n  11. Reasonableness of results. It shall be the responsibility of the\nhead of each state agency to periodically sample the results of the\nprocurement process to test for reasonableness; to ensure that the\nresults withstand public scrutiny and that the quality and the price of\nthe purchase makes sense; and to ensure that purchasing is conducted in\na manner consistent with the best interests of the state.\n  12. Review by the office of the state comptroller. Review by the\noffice of the state comptroller shall be in accordance with section one\nhundred twelve of this chapter. If the contracting agency has not\ncomplied with one or more provisions of this article, the state\ncomptroller may approve the awarded contract if:\n  a. the contracting agency determines that the noncompliance was a\nnon-material deviation from one or more provisions of this article. For\nthe purposes of this subdivision "non-material deviation" shall mean\nthat such noncompliance did not prejudice or favor any vendor or\npotential vendor, such noncompliance did not substantially affect the\nfairness of the competitive process, and that a new procurement would\nnot be in the best interest of the state. Such determination by the\ncontracting agency and the state comptroller shall be documented in the\nprocurement record; and\n  b. the state comptroller concurs in such determination.\n  13. Technological procurement improvements. The state procurement\ncouncil may request that the office of general services provide, or\nrecommend to the state comptroller to provide for the utilization of\ntechnological advances and efficiencies in the procurement process\nincluding, but not limited to, electronic ordering and payment,\nprocurement cards and similar improvements.\n  14. Reporting by the state comptroller. To support transparency in the\nstate's procurement process and prudent procurement management,\noversight and policy-making, the state comptroller shall submit a report\nto the state procurement council, the governor, the commissioner of the\noffice of general services, the director of the budget, and the\nlegislative fiscal committees containing data related to state agency\ncontracts. Such report shall be made annually, on a fiscal year basis by\nthe first of July of the next succeeding year.\n  a. For state agency contracts, such report shall include:\n  (i) a list of all active contracts as of the end of the fiscal year;\n  (ii) a list of all contracts reviewed by the office of the state\ncomptroller during the fiscal year;\n  (iii) a list of contract award protests reviewed by the office of the\nstate comptroller and the resolution thereof; and\n  (iv) for consulting contracts subject to approval of the state\ncomptroller, a report of planned and actual employment under each\ncontract.\n  b. The lists required pursuant to subparagraphs (i) and (ii) of\nparagraph a of this subdivision shall include, to the extent reasonably\navailable, the following information related to each contract:\n  (i) the state agency letting the contract;\n  (ii) the state agency for which the contract is let, if different;\n  (iii) whether an agency contract or centralized contract;\n  (iv) vendor name and address;\n  (v) a description of the contract. For contracts let under section\nnine of the public buildings law, the description shall denote the scope\nof work of the contract and the nature of the emergency for which it was\nlet;\n  (vi) contract start and end dates;\n  (vii) the dollar value of the contract;\n  (viii) for contracts subject to approval by the state comptroller,\nwhether approved or non-approved, the date of such\napproval/non-approval, and if non-approved, the reason or reasons\ntherefor;\n  (ix) life to date and fiscal year expenditures against the contract\nand by which agencies;\n  (x) major contract category, including, but not limited to,\nconsultant, construction, equipment, grants, leases, land claim,\nmiscellaneous services, printing, repayment agreements, revenue\nagreements, intergovernmental agreements, and commodities;\n  (xi) source selection method, including "lowest price", "best value",\nsole source, single source, negotiated and/or emergency procurement;\n  (xii) number of bids/proposals received by the contracting agency; and\n  (xiii) subtotals as deemed applicable.\n  c. The report required pursuant to subparagraph (iv) of paragraph a of\nthis subdivision shall include:\n  (i) information required to be reported by the contractor annually by\nthe employment category within the contract, including the planned\nnumber of employees to provide services under the contract, the planned\nnumber of hours to be worked under the contract, and the total\ncompensation planned under the contract; and\n  (ii) information required to be reported by the contractor annually\npursuant to paragraph g of subdivision four of this section,\nspecifically, the actual number of employees, by employment category\nwithin the contract, employed to provide services under the contract,\nthe number of hours worked and total compensation under the contract.\n  d. For the purposes of the report required pursuant to subparagraph\n(iv) of paragraph a of this subdivision, a "contract for consulting\nservices" shall mean any contract entered into by a state agency for\nanalysis, evaluation, research, training, data processing, computer\nprogramming, engineering, environmental health and mental health\nservices, accounting, auditing, paralegal, legal, or similar services.\nSuch report shall be available for public inspection and copying\npursuant to section eighty-seven of the public officers law provided\nthat in disclosing such reports pursuant to the public officers law, the\nagency making the disclosure shall redact the name, social security\nnumber and other personal information of any individual employee or\nconsultant that is included in such document.\n  e. The information required by this subdivision shall be provided in\nelectronic format in such form as prescribed by the state comptroller\nsuch that the data can be searched and sorted.\n  f. All reports required under this subdivision shall be available for\npublic inspection and copying pursuant to section eighty-seven of the\npublic officers law provided that in disclosing such reports pursuant to\nthe public officers law, the agency making the disclosure shall redact\nthe name or social security number of any individual employee that is\nincluded in such document.\n  15. Reporting by agencies. a. State agencies shall report annually, on\na fiscal year basis, by July first of the ensuing year to the state\nprocurement council, the governor, the legislative fiscal committees and\nthe state comptroller the total number and total dollar value of single\nsource contracts awarded by the agency during the fiscal year, and the\npercentage such contracts represent of the agency's total number and\ntotal dollar value of contract awards during the reporting period.\n  b. Each state agency shall include with its report an assessment by\nthe agency head of the agency's efforts to minimize the award of single\nsource contracts.\n  c. All reports required under this subdivision shall be available for\npublic inspection and copying pursuant to section eighty-seven of the\npublic officers law provided that in disclosing such reports pursuant to\nthe public officers law, the agency making the disclosure shall redact\nthe name or social security number of any individual employee that is\nincluded in such document.\n  * NB Repealed June 30, 2031\n