NY State Fin L § 165 (2021)
2021 New York Laws STF - State Finance Article 11 - State Purchasing 165 - Purchasing Restrictions.

§  165.  Purchasing  restrictions.  1.  Definitions.  a. "Non-tropical hardwood species" shall mean any and all  hardwood  that  grows  in  any geographically temperate regions, as defined by the United States Forest Service, and is similar to tropical hardwood in density, texture, grain, stability  or durability. Non-tropical hardwoods, the use or purchase of which shall be preferred under this article, shall include, but  not  be limited to the following species:      Scientific Name                     Common Name      Fraxinus americana                  Ash      Tila americana                      Basswood      Fagus grandifolia                   Beech      Betula papyrifera                   Birch      Juglans cinerea                     Butternut      Prunus serotina                     Cherry      Populus spp.                        Cottonwood      Ulmus spp.                          Elms      Nyssa sylvatica                     Black gum      Liquidambar styracifula             Red gum      Celtis laevigata                    Hackberry      Hicoria spp.                        Hickory      Acer spp.                           Maples      Quercus spp.                        Oaks      Hicoria spp.                        Pecan      Liriodendron tulipi fera            Yellow Poplar      Platanus occidentalis               Sycamore      Juglans nigra                       Black Walnut   b. "Tropical hardwood" shall mean any and all hardwood, scientifically classified  as  angiosperm,  that  grows  in  any tropical moist forest. Tropical hardwoods shall be the following species:      Scientific Name                     Common Name      Vouacapous americana                Acapu      Pericopsis elata                    Afrormosis      Shorea almon                        Almon      Peltogyne spp.                      Amaranth      Guibourtia ehie                     Amazaque      Aningeris spp.                      Aningeria      Dipterocarpus grandiflorus          Apilong      Ochroma lagopus                     Balsa      Virola spp.                         Banak      Anisoptera thurifera                Bella Rose      Guibourtis arnoldiana               Benge      Deterium Senegalese                 Boire      Priora copaifera                    Cativo      Antiaris africana                   Chenchen      Dalbergis retusa                    Concobola      Cordia spp.                         Cordia      Diospyros spp.                      Ebony      Aucoumes klaineana                  Gaboon      Chlorophors excelsa                 Iroko      Acacia koa                          Koa      Pterygota macrocarpa                Koto      Shorea negrosensis                  Red Lauan      Pentacme contorta                   White Lauan      Shores ploysprma                    Tanguile      Terminalia superba                  Limba      Aniba duckei                        Louro      Kyaya ivorensis                     Africa Mahogany      Swletenia macrophylla               Amer. Mahogany       Tieghemella leckellii               Makora      Distemonanthus benthamianus         Movingui      Pterocarpus soyauxii                African Padauk      Pterocarpus angolensis              Angola Padauk      Aspidosperma spp.                   Peroba      Peltogyne spp.                      Purpleheart      Gonystylus spp.                     Ramin      Dalbergia spp.                      Rosewood      Entandrophragm a cylindricum        Sapela      Shores phillippinensis              Sonora      Tectona grandis                     Teak      Lovoa trichilloides                 Tigerwood      Milletia laurentii                  Wenge      Microberlinia brazzavillensis       Zebrawood   c.  "Tropical  rain forests" shall mean any and all forests classified by the scientific term  "Tropical  moist  forests",  the  classification determined by the equatorial region of the forest and average rainfall.   d. "Tropical wood products" shall mean any wood products, wholesale or retail,  in  any  form,  including but not limited to veneer, furniture, cabinets, paneling, moldings, doorskins, joinery, or sawnwood, which are composed of tropical hardwood except plywood.   e.  "Secondary  materials"  means  any  material  recovered  from   or otherwise  destined for the waste stream, including, but not limited to, post-consumer material,  industrial  scrap  material  and  overstock  or obsolete  inventories from distributors, wholesalers and other companies but such term does not include those materials and by-products generated from, and commonly reused within, an original manufacturing process.   2. Prohibition on purchase of tropical hardwoods.   a. Except as hereinafter provided,  the  state  and  any  governmental agency  or  political  subdivision  or public benefit corporation of the state shall  not  purchase  or  obtain  for  any  purpose  any  tropical hardwoods  or  tropical  hardwood  products, wholesale or retail, in any form.   b. The provisions of paragraph a of this subdivision shall  not  apply to:  (i) Any hardwoods purchased from a sustained, managed forest; or  (ii)  Any  binding contractual obligations for purchase of commodities entered into prior to August twenty-fifth, nineteen hundred  ninety-one; or  (iii)  The  purchase  of  any  tropical  hardwood or tropical hardwood product for which there is no acceptable non-tropical hardwood  species; or  (iv)  Where  the  contracting  officer  finds that no person or entity doing  business  in  the  state  is  capable  of  providing   acceptable non-tropical hardwood species sufficient to meet the particular contract requirements; or  (v) Where the inclusion or application of such provisions will violate or  be  inconsistent with the terms or conditions of a grant, subvention or contract in an agency of the United States or the instructions of  an authorized  representative  of  any such agency with respect to any such grant, subvention or contract; or  (vi) Where inclusion or application of such provisions  results  in  a substantial  cost  increase  to  the state, government agency, political subdivision, public corporation or public benefit corporation.   c. (i) In the case of any bid proposal or  solicitation,  request  for bid  or  proposal  or  contract for the construction of any public work, building maintenance or improvement for or on behalf of  the  state  and any  governmental  agency  or  political  subdivision  or public benefit  corporation of the state, it shall not require or permit the use of  any tropical hardwood or wood product.  (ii) Every bid proposal, solicitation, request for bid or proposal and contract  for  the construction of any public work, building maintenance or improvement shall contain a statement that any bid, proposal or other response to a solicitation for bid or proposal which proposes  or  calls for  the  use of any tropical hardwood or wood product in performance of the contract shall be deemed non-responsive.   d. The provisions of paragraph c of this subdivision shall not apply:  (i) To bid packages advertised and made available to the public or any competitive and sealed bids received or entered  into  prior  to  August twenty-fifth, nineteen hundred ninety-one; or  (ii)  To  any  amendment, modification or renewal of a contract, which contract was entered into prior to August twenty-fifth, nineteen hundred ninety-one, where such application would delay timely  completion  of  a project or involve an increase in the total monies to be paid under that contract; or  (iii) Where the contracting officer finds that:  (A)  No  person  or  entity  doing business in the state is capable of performing the contract using acceptable non-tropical hardwood  species; or  (B) The inclusion or application of such provisions will violate or be inconsistent  with  the  terms  or  conditions of a grant, subvention or contract with an agency of the United States or the instructions  of  an authorized  representative  of  any such agency with respect to any such grant, subvention or contract; or  (C) The use of tropical woods is  deemed  necessary  for  purposes  of historical   restoration   and  there  exists  no  available  acceptable non-tropical wood species.   3. Purchasing of commodities for state use.   a. For the purposes of this subdivision,  the  following  terms  shall have  the meanings set forth herein. "Recycled commodity" shall mean any commodity that has been manufactured from secondary materials as defined in subdivision one of section two  hundred  sixty-one  of  the  economic development  law  and that meets secondary material content requirements adopted by the office of general services, which shall be consistent, to the extent practicable, with regulations promulgated pursuant to section 27-0717  of  the  environmental  conservation  law  or,   if   no   such requirements  have  been  adopted or no such product is available, meets the secondary material content requirements adopted by any state  agency with  respect  to  a  specific  commodity  procurement  by  such agency. "Remanufactured" shall mean any commodity that has been restored to  its original performance standards and function and is thereby diverted from the solid waste stream, retaining, to the extent practicable, components that  have been through at least one life cycle and replacing consumable or normal wear components. "Recyclable" shall mean  any  commodity  that can be collected, separated, or otherwise recovered from the solid waste stream  for  reuse,  remanufacture  or  assembly  of  another commodity, through a widely available and easily accessible program.   b. Consistent with determinations of need required by subdivision five of section one hundred sixty-three of this article, the commissioner and state agencies shall purchase  recycled,  remanufactured  or  recyclable commodities  when such commodities meet their form, function and utility and shall consider the cost of the commodity  over  its  lifecycle.  The commissioner  and  a  state  agency  shall  also  have  the authority to determine that for reasons of  public  health  or  safety,  a  recycled, remanufactured  or  recyclable  commodity  should not be purchased. Such determinations shall be documented in the procurement record.  (i) A state agency shall  purchase  recycled  commodities  at  a  cost premium  only  if (A) the cost premium associated with a commodity which has recycled content does not exceed ten percent above  the  cost  of  a commodity  made  without recycled content or, (B) the cost of a recycled commodity  that  contains  at  least  fifty  percent secondary materials generated from the waste stream in New York state,  does  not  exceed  a cost  premium  of  fifteen  percent  above  the  cost  of  a  comparable commodity.  (ii) A state agency shall not be required to  purchase  recyclable  or remanufactured  commodities at a cost premium unless such commodity also constitutes a "recycled commodity" as defined in  this  subdivision  and that  as  such  a  recycled  commodity,  it has been offered for sale in conformance with the standards for application of  a  cost  premium  for recycled commodities as set forth in clauses (A) and (B) of subparagraph (i) of this paragraph.   c.   The   commissioner   shall   periodically   review   the  general specifications in order to eliminate, wherever feasible, discriminations against the  procurement  of  commodities  manufactured  with  recovered materials  or  remanufactured  materials;  and shall annually review the paper specifications to consider increasing the percentage  of  recycled paper in paper commodity purchases.   d. Whenever the commissioner or other state agencies shall purchase or cause  the  purchase  of  printing  on  recycled  paper, he or she shall require, to the extent  feasible,  the  printed  material  to  meet  the requirements  of subdivision two of section 27-0717 of the environmental conservation law and regulations promulgated pursuant  thereto,  and  to include  a printed statement or symbol which indicates that the document is printed on recycled paper.   e. Each state agency shall devise, institute and maintain a program to source separate waste paper generated within  state  office  facilities. Such  a  program  shall  include  marketing arrangements and appropriate procedures to ensure the recovery of discarded paper in a uncontaminated condition.   f. Each state agency shall devise and institute a  program  to  source separate  all  other waste generated within state office facilities that is not covered by paragraph e of this subdivision.  Such  program  shall include  marketing arrangements and appropriate procedures to ensure the maximum recovery of such waste.   g. In addition to carrying out the provisions of paragraphs e and f of this subdivision, the commissioner shall identify and implement specific steps which will  reduce,  to  the  maximum  extent  practicable,  waste generated  in  state  facilities  and maximize the recovery and reuse of secondary  materials  from  such  facilities.  Such  steps   and   their implementation  shall  be  reviewed  from  time  to  time  but  no  less frequently  than  annually  or  upon   receiving   recommendations   for additional  steps  from  the department of environmental conservation or the environmental facilities corporation.   h. All state agencies shall fully cooperate with the  commissioner  in all phases of implementing the provisions of this section.   i.  The  commissioner  shall  report  annually to the governor and the legislature by September first concerning  the  quantities  of  recycled paper  purchased by the office of general services and by state agencies pursuant to paragraph c of this subdivision, and concerning the  amounts of  waste  recycled  from state offices and other facilities pursuant to paragraphs e and f of this subdivision, the extent of  waste  reduction, the percentage of the total waste stream which is recycled, the kinds of materials  eliminated  from  the waste stream, the full avoided costs of proper collection and disposal costs of implementing the programs  under  this   section,  the  specific  activities  undertaken,  goals  for  the subsequent year resulting from the implementation of steps  pursuant  to paragraph  g  of  this  subdivision,  and remaining issues and areas for improvement.  Such  reports  shall  be widely disseminated as a means of assisting  those  outside   state   government   in   the   design   and implementation  of  waste  reduction  and  recycling  programs,  through discussion of the state's experience in implementing all program aspects such as collection, sorting, handling, storage and  marketing,  and  the resulting accomplishments.   j.  The  commissioner  shall submit to the director of the budget, the chairman and ranking minority member of the senate finance committee and the chairman and ranking minority member of the assembly ways and  means committee   an   evaluation   of  all  the  source  separation  programs implemented under this subdivision, for paper and other  waste  prepared by  an  independent  entity.  Such  evaluation  shall  be  submitted  by September first, nineteen hundred ninety-six  and  by  September  first, every two years thereafter.   4.  Special  provisions  for  purchase  of  available  New  York  food products.   a. Except as otherwise provided  in  this  subdivision,  when  letting contracts  for the purchase of food products on behalf of facilities and institutions of the state, solicitation specifications of the office  of general  services  and  any  other  agency, department, office, board or commission may require provisions that mandate that all or some  of  the required  food  products  are  grown,  produced or harvested in New York state, or that any processing  of  such  food  products  take  place  in facilities located within New York state.  (i)  All  such  solicitations  for the purchase of food products shall include the list of food  products  developed  by  the  commissioner  of agriculture and markets pursuant to paragraph b of this subdivision; and  (ii)  notice  that  such  food  products  are  available in sufficient quantities for competitive purchasing and that the list was developed to assist the  state  in  increasing  purchases  of  New  York  state  food products.   b.  The commissioner of agriculture and markets shall determine, using uniform criteria, those food products for which the requirements of this subdivision are deemed beneficial and shall promulgate  and  forward  to the  appropriate  agencies  a  list  of such food products, and shall in addition ascertain those periods of  time  each  year  that  those  food products   are   available  in  sufficient  quantities  for  competitive purchasing and shall forward such information  to  purchasing  agencies. The  commissioner  of  agriculture and markets shall update such list as often as is deemed by him or her to be necessary.   c. (i) Prior  to  issuing  a  solicitation  for  such  food  products, purchasing  agencies  shall  advise  the commissioner of agriculture and markets of the quantities of each food product on the  list  promulgated by  the commissioner of agriculture and markets to fulfill that agency's purchasing needs.  (ii) The commissioner of agriculture and  markets  will  then  make  a determination  of  whether  those  products  required  by the purchasing agency are available in sufficient quantities to satisfy the  purchasing agency's requirements.  (iii)  Upon  a  determination  by  the commissioner of agriculture and markets that the food products required by  the  purchasing  agency  are available  in  sufficient  quantities to fulfill the agency's purchasing needs,  the  purchasing  agency  may  include  in  its  solicitation   a requirement  that all or some of those food products are grown, produced  or harvested in New York state, or that  any  processing  of  such  food products take place in facilities located within New York state.  (iv)  Upon  a  determination  by  the  commissioner of agriculture and markets  that  such  food  products  are  not  available  in  sufficient quantities  to  fulfill  the  agency's  purchasing needs, the purchasing agency shall issue a solicitation that does not require that all or some of those food products are grown, produced  or  harvested  in  New  York state,  or  that  any  processing  of  such  food products take place in facilities located within New York state. In such cases, the  purchasing agency  may include such requirements in the next contract for such food products that is let if at such time those food products  are  available in  sufficient quantities.  If at that time, those food products are not available in sufficient  quantities,  the  requirement  shall  again  be waived until such time as the products are available.  (v)  In  the  event that the purchasing agency receives no offers that meet the agency's requirement that all or some of the food products  are grown,  produced  or harvested in New York state, or that any processing of such food products take place in facilities located within  New  York state,  it  may  waive  the  provisions  of this subdivision and award a contract in accordance with other applicable statutes. In  addition,  if the  commissioners  of agriculture and markets, economic development and any such individual agency shall agree as to  the  deleterious  economic impact  of  specifications  requiring  such purchases, such agencies may waive the provisions of this subdivision for such purchases.   d. The commissioner, and the commissioner of agriculture and  markets, shall  issue  regulations  for  the  implementation of this subdivision, including but not limited to:  (i) establishing guidelines that will assist  agencies  in  increasing their use and purchase of New York state food products;  (ii)  publishing  such  purchasing guidelines on the office of general services website, disseminating such guidelines to agencies and training contracting personnel on implementing such guidelines; and  (iii) providing for monitoring of implementation.   e. Notwithstanding any other  section  of  law,  rule,  regulation  or statute,   the  department  of  agriculture  and  markets  shall  supply information required by paragraph b of this subdivision to the office of general services and to all other appropriate agencies.   f. (i) With each offer,  the  offerer  shall  certify  that  the  food products  provided  pursuant  to that solicitation will be in conformity with the provisions of the percentage required to  meet  or  exceed  the requirements in the solicitation specifying that all or some of the food products  be grown, produced, or harvested within New York state or that any processing of such food products take place  in  facilities  located within New York state.  (ii) Any successful offerer who fails to comply with the provisions of this  subdivision,  at  the  discretion of such agency, board, office or commission, shall forfeit the right to bid on contracts  let  under  the provisions  of this subdivision for a period of time to be determined by the commissioner and the commissioner of agriculture and markets.  (iii) Every successful offerer shall:  (1) review the list of New York state food products developed pursuant to paragraph b  of  this  subdivision  to  determine  whether  any  such products are being provided under their contracts;  (2)  report  to  the  procuring  agency  all  of the food products and processed food procured under such contracts,  categorized  by  specific type,  together  with  the dollar value of each such type procured under such contract, to the extent practicable and known to such vendor; and  (3) for each such type of food product or processed food  included  on the  list  of  New  York  state  food  products, report to the procuring agency, to the extent practicable and known to such vendor:  (a) any such New York state food product procured under such contract, together  with  the  dollar  value of each such type procured under such contract;  (b) any such food product from outside  of  New  York  state  procured under  such  contract  during  its  listed  New  York state availability period, together with the dollar value of each such type procured  under such contract; and  (c)  any  other  such  food  product from outside of New York state or processed food from facilities outside of New York state procured  under such  contract  from  outside  New  York state, together with the dollar value of each such type procured under such contract.   g. No later than December first of each year  the  commissioner  shall annually report to the governor and legislature on the implementation of this subdivision. Such report shall include, at minimum:  (i)  a description of the office's efforts to improve and increase the tracking of information relating to New  York  state  food  procured  by agencies; and  (ii)  the  information  collected  pursuant  to  paragraph  f  of this subdivision, compiled to provide the following,  disaggregated  by  food product and processed food:  (a) the total dollar value of New York state food products procured by agencies;  (b)  the  total dollar value of food products from outside of New York state  procured  by  agencies  during  their  listed  New   York   state availability periods; and  (c)  the total dollar value of all other food products from outside of New York state and processed food from facilities outside  of  New  York state.   h.  The  commissioner and the commissioner of agriculture and markets, shall advise and assist the chancellor of the state  university  of  New York  in extending the benefits of the provisions of this subdivision to the university and shall modify any regulations or procedures heretofore established pursuant to this subdivision, in order  to  facilitate  such participation.   4-a.  Favored  source  status for New York state labelled wines. a. In order to advance specific economic goals, New York state labelled wines, as defined in subdivision twenty-a of section  three  of  the  alcoholic beverage  control law, shall have favored source status for the purposes of procurement in accordance with the provisions  of  this  subdivision. Procurement  of these New York state labelled wines shall be exempt from the  competitive  procurement  provisions   of   section   one   hundred sixty-three  of this article and other competitive procurement statutes. Such exemption shall apply to New York state labelled wines  as  defined in  subdivision  twenty-a  of  section  three  of the alcoholic beverage control law  produced  by  a  licensed  winery  as  defined  in  section seventy-six of the alcoholic beverage control law.   b.  The commissioner of taxation and finance, in consultation with the commissioners of the state liquor authority  shall  prepare  a  list  of wines  that are eligible as determined by the criteria in paragraph a of this subdivision and that are available  and  are  being  provided,  for purchase  by state agencies, public benefit corporations, commissions or political subdivisions from those entities which produce such  New  York state  labelled  wine.  Such list may include references to catalogs and other descriptive literature  which  are  available  directly  from  any winery  that  produces  wine  accorded  favored source status under this  subdivision.  The  commissioner  shall  make  this  list  available   to prospective   vendors,  state  agencies,  public  benefit  corporations, political subdivisions and other interested parties. Any wines that meet the criteria under paragraph a of this subdivision shall be eligible for this favored source status.   c.   The   state   procurement   council   in  consultation  with  the commissioners of the state liquor authority, and upon application from a winery, will determine if a particular  New  York  state  labelled  wine meets  the  required  criteria under paragraph a of this subdivision for favored source status, and if so, such wine shall be added to  the  list of  favored  source  status  New  York state labelled wines. In order to insure that such list reflects current production and/or availability of commodities and services, the state procurement council  may  delete  at the  request of a winery a favored wine from the list established by the criteria in paragraph a  of  this  subdivision.  The  state  procurement council  will  also  determine  if a particular wine no longer meets the required definition under paragraph a of this  subdivision  for  favored source  status,  and if it does not, such wine shall be deleted from the list of favored source status or favored wines.   d. The commissioners of the state liquor  authority,  in  consultation with  the  commissioner  of  taxation  and finance and office of general services, shall make every effort to encourage  state  agencies,  public authorities  and  political subdivisions when they purchase any quantity of wine to purchase those wines that have been  granted  favored  source status  as determined by the commissioners of the state liquor authority and the state procurement council.   e. The list shall be maintained by the office of general  services  in accordance  with  provisions  of  section  one hundred sixty-two of this article and shall be revised as necessary to reflect the  additions  and deletions of wines as determined by the state procurement council.   5. Nondiscrimination in employment in Northern Ireland.   a.  For  the  purposes  of  this subdivision "MacBride Fair Employment Principles" shall mean those principles relating to nondiscrimination in employment and freedom of work place  opportunity  which  would  require employers doing business in Northern Ireland to:  (i)  increase  the representation of individuals from underrepresented religious groups in the work force, including  managerial,  supervisory, administrative, clerical and technical jobs;  (ii)  take  steps  to  promote adequate security for the protection of employees from underrepresented religious groups both at  the  workplace and while traveling to and from work;  (iii)  ban  provocative  religious  or political emblems from the work place;  (iv) publicly advertise all job openings and make special  recruitment efforts to attract applicants from underrepresented religious groups;  (v)  establish  layoff, recall and termination procedures which do not in practice favor a particular religious group;  (vi) abolish all job  reservations,  apprenticeship  restrictions  and differential  employment  criteria  which  discriminate  on the basis of religion;  (vii) develop training programs that will prepare substantial  numbers of  current employees from underrepresented religious groups for skilled jobs, including the expansion of existing programs and the  creation  of new  programs  to  train, upgrade and improve the skills of workers from underrepresented religious groups;  (viii) establish procedures to assess, identify and  actively  recruit employees  from  underrepresented  religious  groups  with potential for further advancement; and  (ix) appoint a senior management staff member to  oversee  affirmative action   efforts   and   develop   a  timetable  to  ensure  their  full implementation.   b.  (i)  With respect to contracts described in subparagraphs (ii) and (iii) of this paragraph, and  in  accordance  with  such  subparagraphs, state  agencies  as  defined  in this article shall not contract for the supply of commodities, service or construction with any  contractor  who does  not  agree  to  stipulate  to  the  following, if there is another contractor  who  will  contract  to  supply  commodities,  services   or construction  of  comparably  quality at a comparable price or cost: the contractor and any individual or legal entity in  which  the  contractor holds  a ten percent or greater ownership interest and any individual or legal entity that holds a ten percent or greater ownership  interest  in the  contractor  either  (A)  have  no  business  operations in Northern Ireland, or (B) shall make lawful steps in good  faith  to  conduct  any business  operations  they  have  in Northern Ireland in accordance with MacBride  Fair  Employment  Principles,  and  shall  permit  independent monitoring of their compliance with such principles.  (ii)  In  the case of contracts let by a competitive process, whenever the responsive and responsible offerer having the lowest price  or  best value  offer  has not agreed to stipulate to the conditions set forth in this subdivision and another responsive and responsible offerer who  has agreed  to  stipulate  to  such conditions has submitted an offer within five percent of the lowest price or best value offer for a  contract  to supply  commodities, services or construction of comparable quality, the contracting entity shall  refer  such  offers  to  the  commissioner  of general  services,  who may determine, in accordance with applicable law and rules, that it is in  the  best  interest  of  the  state  that  the contract be awarded to other than the lowest price or best value offer.  (iii) In the case of contracts let by other than a competitive process for goods or services involving an expenditure of an amount greater than the  discretionary  buying threshold as specified in section one hundred sixty-three of this article, or for  construction  involving  an  amount greater  than fifteen thousand dollars, the contracting entity shall not award to a proposed contractor who has not agreed to  stipulate  to  the conditions  set  forth  in this subdivision unless the entity seeking to use the  commodities,  services  or  construction  determines  that  the commodities,  services  or  construction are necessary for the entity to perform its functions and there is no other responsible  contractor  who will  supply commodities, services or construction of comparable quality at a comparable price. Such determinations shall be made in writing  and shall be public documents.   c.  Upon  receiving  information  that  a  contractor who has made the stipulation required by this subdivision is in  violation  thereof,  the contracting   entity   shall  review  such  information  and  offer  the contractor an opportunity to respond. If the  contracting  entity  finds that  a  violation  has  occurred,  it  shall take such action as may be appropriate and provided for by law, rule or  contract,  including,  but not  limited  to,  imposing  sanctions,  seeking  compliance, recovering damages or declaring the contractor in default.   d. As used in this subdivision, the term "contract" shall not  include contracts  with  governmental  and  non-profit  organizations, contracts awarded pursuant  to  emergency  procurement  procedures  or  contracts, resolutions,  indentures,  declarations  of  trust  or other instruments authorizing or relating to the authorization, issuance, award,  sale  or purchase  of  bonds, certificates of indebtedness, notes or other fiscal obligations, provided that the policies of  this  subdivision  shall  be considered  when  selecting  a  contractor to provide financial or legal  advice, and when selecting managing underwriters in connection with such activities.   e. The provisions of this subdivision shall not apply to contracts for which  the state or other contracting entity receives funds administered by the United States department of transportation, except to the  extent Congress has directed that the department of transportation not withhold funds  from  states  and  localities  that choose to implement selective purchasing policies based on agreement to comply with the MacBride  Fair Employment  Principles,  or  to  the  extent  that  such  funds  are not otherwise withheld by the department of transportation.   6.  Special  provisions  relating   to   retaliating   against   other jurisdictions  which  discriminate against New York state enterprises in their procurement of products and services.   a. As used in this subdivision, the following  terms  shall  have  the following meanings unless a different meaning appears from the context:  (i)  "Discriminatory  jurisdiction"  shall  mean  any  other  country, nation, province, state or political subdivision thereof which employs a preference  or  price  distorting  mechanism  to  the  detriment  of  or otherwise  discriminates against a New York state business enterprise in the  procurement  of  commodities  and  services  by  the  same   or   a non-governmental  entity influenced by the same. Such discrimination may include, but is not  limited  to,  any  law,  regulation,  procedure  or practice,  terms of license, authorization, or funding or bidding rights which requires or encourages any agency or instrumentality of the  state or political subdivision thereof or nongovernmental entity influenced by the same to discriminate against a New York state business enterprise.  (ii)  "Foreign  business enterprise" shall mean a business enterprise, including a sole  proprietorship,  partnership,  or  corporation,  which offers  for sale, lease or other form of exchange, commodities sought by any state agency and which are substantially produced outside  New  York state or services, other than construction services, sought by any state agency and which are substantially performed outside New York state. For purposes  of  construction  services,  foreign business enterprise shall mean a business enterprise, including a sole proprietorship, partnership or corporation, which has its principal place of  business  outside  New York state.  (iii)  "New  York  state  business  enterprise"  shall mean a business enterprise,   including   a   sole   proprietorship,   partnership,   or corporation,  which  offers for sale or lease or other form of exchange, commodities which are substantially manufactured, produced or  assembled in  New York state, or services, other than construction services, which are substantially performed within  New  York  state.  For  purposes  of construction services, a New York state business enterprise shall mean a business  enterprise,  including  a sole proprietorship, partnership, or corporation, which has its principal  place  of  business  in  New  York state.   b.  The  commissioner of economic development shall have the power and it shall be his or her duty to prepare  a  list  of  all  discriminatory jurisdictions.  The commissioner of economic development shall add to or delete from said list  any  jurisdiction  upon  good  cause  shown.  The commissioner of economic development shall deliver a copy of the list to the  commissioner,  all  state  agencies, and every public authority and public benefit corporation, a majority of the members of  which  consist of  persons  either appointed by the governor or who serve as members by virtue of holding a civil office of the state, or a combination thereof.   c. In including any additional business enterprises  on  solicitations for the procurement of commodities or services, the commissioner and all state  agencies  shall not include any foreign business enterprise which  has  its  principal  place  of  business  located  in  a  discriminatory jurisdiction  contained  on  the  list  prepared  by the commissioner of economic development  pursuant  to  paragraph  b  of  this  subdivision, except,  however, business enterprises which are New York state business enterprises as defined by this subdivision.   d. A state agency shall not enter  into  a  contract  with  a  foreign business  enterprise,  as  defined  by  this  subdivision, which has its principal place of business located  in  a  discriminatory  jurisdiction contained   on  the  list  prepared  by  the  commissioner  of  economic development pursuant to paragraph b of this subdivision. The  provisions of  this  paragraph and paragraph c of this subdivision may be waived by the head of the state agency if the head of the state agency  determines in  writing  that it is in the best interests of the state to do so. The head of  the  state  agency  shall  deliver  each  such  waiver  to  the commissioner of economic development.   e.  The  commissioner  may  waive the application of the provisions of paragraph c of this subdivision whenever he or she determines in writing that it is in the best interests of the state to do so.   7. Special provisions regarding the purchasing of  apparel  or  sports equipment by the state university of New York and the city university of New York.   a.  Notwithstanding  any  other provision of law, the various units of the state university of New York, the city university of  New  York  and community colleges shall have authority to:  (i)  Determine that a bidder on a contract for the purchase of apparel or sports equipment is not a responsible bidder as  defined  in  section one  hundred  sixty-three  of  this  article  based  upon  either of the following considerations:  (A) the labor standards applicable to the manufacture of  the  apparel or sports equipment, including but not limited to employee compensation, working conditions, employee rights to form unions, and the use of child labor, or  (B)  the  bidder's  failure  to provide information sufficient for the state agency or corporation to determine the labor conditions applicable to the manufacture of the apparel or sports equipment.  (ii)  Include  in  the  internal  policies  and  procedures  governing procurement  of  apparel  or sports equipment, where such procurement is not further required to be made  pursuant  to  the  competitive  bidding requirements  of  section  one  hundred  sixty-three  of this article, a prohibition against the purchase of apparel or sports equipment from any vendor based upon either or both of the following considerations:  (A) the labor standards applicable to the manufacture of  the  apparel or sports equipment, including but not limited to employee compensation, working conditions, employee rights to form unions, and the use of child labor, or  (B)  the  bidder's  failure to provide sufficient information for said state agencies to  determine  the  labor  standards  applicable  to  the manufacture of the apparel or sports equipment.   b. For the purposes of this subdivision the term:  (i)  "apparel"  shall  mean goods, such as, but not limited to, sports uniforms, including  gym  uniforms,  required  school  uniforms,  shoes, including,  but not limited to, athletic shoes or sneakers, sweatshirts, caps, hats, and other clothing, whether or not imprinted with a school's name or logo, academic regalia, lab coats and staff uniforms; and  (ii) "sports equipment" shall mean equipment, such as, but not limited to, balls, bats and other goods intended for use by those  participating in sports and games.    8.  Mercury-free  motor  vehicles. The commissioner and state agencies shall grant a preference and give priority  to  the  purchase  of  motor vehicles  which  are mercury-free taking into consideration competition, price, availability and performance.