NY State Fin L § 163 (2021)
2021 New York Laws STF - State Finance Article 11 - State Purchasing 163 - Purchasing Services and Commodities.

* §  163. Purchasing services and commodities. 1. Definitions. For the purposes of this section, the following terms shall have  the  following meanings unless otherwise specified:   a.  "Consortium"  means  like  entities  which  agree  to collectively purchase commodities at a lower price than would be otherwise achievable through purchase by such entities pursuant to other provisions  of  this article.   b. "Emergency" means an urgent and unexpected requirement where health and public safety or the conservation of public resources is at risk.   c.  "Responsible"  or  "responsibility"  means  the financial ability, legal capacity, integrity, and past performance of a business entity and as such terms have been interpreted relative to public procurements.   d. "Responsive" means a bidder or other offerer  meeting  the  minimum specifications  or  requirements  as  prescribed  in  a solicitation for commodities or services by a state agency.   e. "Specification" or  "requirement"  means  any  description  of  the physical  or  functional characteristics or the nature of a commodity or construction item, any description of the  work  to  be  performed,  the service  or products to be provided, the necessary qualifications of the offerer,the capacity and capability of the offerer to successfully carry out the proposed contract, or the process for achieving specific results and/or anticipated  outcomes  or  any  other  requirement  necessary  to perform  the  work.  It  may  include  a  description  of any obligatory testing, inspection or preparation for delivery and use, and may include federally required provisions and conditions where the  eligibility  for federal  funds  is  conditioned  upon  the  inclusion  of such federally required provisions and conditions. Specifications shall be designed  to enhance competition, ensuring the commodities or services of any offerer are not given preference except where required by this article.   f.  "Procurement record" means documentation of the decisions made and the approach taken in the procurement process.   g. "Sole source" means a procurement in  which  only  one  offerer  is capable of supplying the required commodities or services.   h.  "Single  source" means a procurement in which although two or more offerers  can  supply  the  required  commodities   or   services,   the commissioner  or  state  agency, upon written findings setting forth the material and substantial reasons  therefor,  may  award  a  contract  or non-technical amendment to a contract to one offerer over the other. The commissioner  or  state  agency shall document in the procurement record the circumstances leading to the selection of the vendor, including  the alternatives considered, the rationale for selecting the specific vendor and the basis upon which it determined the cost was reasonable.   i.   "Lowest  price"  means  the  basis  for  awarding  contracts  for commodities among responsive and responsible offerers.   j. "Best value" means the basis for awarding contracts for services to the  offerer  which  optimizes  quality,  cost  and  efficiency,   among responsive  and responsible offerers. Such basis shall reflect, wherever possible, objective and  quantifiable  analysis.  Such  basis  may  also identify  a  quantitative factor for offerers that are small businesses, certified minority- or women-owned business enterprises  as  defined  in subdivisions one, seven, fifteen and twenty of section three hundred ten of   the   executive  law  or  service-disabled  veteran-owned  business enterprises as defined in  subdivision  one  of  section  three  hundred sixty-nine-h of the executive law to be used in evaluation of offers for awarding of contracts for services.   k.  "Authorized  user"  or  "non-state agency purchaser" means (i) any officer, body or agency of the state or of a political subdivision or  a district therein, or fire company or volunteer ambulance service as such  are defined in section one hundred of the general municipal law, to make purchases  of commodities, services and technology through the office of general services' centralized contracts, pursuant to the  provisions  of section  one  hundred four of the general municipal law; (ii) any county extension service association as authorized under subdivision  eight  of section two hundred twenty-four of the county law; (iii) any association or  other  entity  as  specified  in  and in accordance with section one hundred nine-a of the  general  municipal  law;  (iv)  any  association, consortium  or  group  of privately owned or municipal, federal or state owned or operated  hospitals,  medical  schools,  other  health  related facilities  or  voluntary  ambulance services, which have entered into a contract  and  made  mutual  arrangements  for  the  joint  purchase  of commodities,  services  and  technology pursuant to section twenty-eight hundred three-a of the public health law; (v) any  institution  for  the instruction  of  the  deaf  or  of the blind listed in section forty-two hundred one of the education law; (vi) any  qualified  non-profit-making agency  for  the  blind  approved  by  the commissioner of the office of children and family services or the office of temporary  and  disability assistance;  (vii) any qualified charitable non-profit-making agency for the severely disabled approved by the commissioner of education;  (viii) any  hospital  or residential health care facility as defined in section twenty-eight hundred one of the public  health  law;  (ix)  any  private not-for-profit mental hygiene facility as defined in section 1.03 of the mental   hygiene  law;  (x)  any  public  authority  or  public  benefit corporation of the state, including the port authority of New  York  and New  Jersey and the interstate environmental commission; (xi) any public library,  association  library,  library  system,  cooperative   library system,  the  New  York  Library  Association,  and  the  New York State Association of Library Boards or any other library  except  those  which are  operated  by  for  profit  entities; (xii) any other association or entity as specified in state law,  to  make  purchases  of  commodities, services   and  technology  through  the  office  of  general  services' centralized contracts. Such qualified non-profit-making agencies for the blind and severely disabled may make  purchases  from  the  correctional industries  program  of  the  department  of  corrections  and community supervision subject to rules pursuant to the correction law.   2. Operating principles. The objective  of  state  procurement  is  to facilitate each state agency's mission while protecting the interests of the  state  and its taxpayers and promoting fairness in contracting with the business community. The state's procurement process shall be  guided by the following principles:   a.  To  promote  purchasing  from responsive and responsible offerers, including small businesses.   b. To be based on clearly articulated procedures which require a clear statement  of  product  specifications,  requirements  or  work  to   be performed;  a  documentable  process  for  soliciting bids, proposals or other offers; a balanced and fair method, established in advance of  the receipt  of  offers,  for  evaluating  offers  and  awarding  contracts; contract terms and conditions that protect  the  state's  interests  and promote  fairness  in  contracting  with  the  business community; and a regular monitoring of vendor performance.   c. To encourage the  investment  of  the  private  and  not-for-profit sectors  in  New  York state by making reasonable efforts to ensure that offerers are apprised of procurement opportunities;  by  specifying  the elements  of  a  responsive  bid and disclosing the process for awarding contracts including,  if  applicable,  the  relative  importance  and/or weight  of  cost  and  the  overall  technical  criterion for evaluating offers; and by ensuring the procurement is conducted accordingly.    d. To ensure that contracts  are  awarded  consistent  with  the  best interests  of  the  state.   e. To ensure that officers and employees of state entities do not benefit financially or otherwise from the award of state contracts.   f.  To ensure regular and critical review of the efficiency, integrity and effectiveness of the overall process.   3. General provisions for purchasing commodities.   a.  State  agency  procurement   practices   for   commodities   shall incorporate the following:  (i) The purchase of commodities by state agencies including the office of  general  services shall be conducted in a manner which accords first priority to preferred sources in accordance with the provisions of  this article,  second  priority  to  centralized contracts, third priority to agency or multi-agency established  contracts  and  fourth  priority  to other means of contracting.  (ii)  Commodities  contracts  shall  be awarded on the basis of lowest price to a responsive and  responsible  offerer;  or,  in  the  case  of multiple  awards,  in  accordance with paragraph c of subdivision ten of this section.  (iii) The commissioner shall be responsible  for  the  standardization and  centralized purchase of commodities required by state agencies in a manner which maximizes the purchasing value of public funds.  (iv) The commissioner is authorized to permit purchases of commodities and  services  for  authorized  users  through  the  office  of  general services'  centralized  contracts.  Such  authorized  users so empowered shall accept sole responsibility for any payment  due  with  respect  to such purchases.  (v)  Consistent  with  guidelines  issued  by  the  state  procurement council, state agencies may competitively purchase commodities  procured in  accordance  with this article in lieu of using centralized contracts when the resultant price is less than the centralized contract price.  (vi) When justified  by  price,  state  agencies,  and  hospitals  and facilities managed and controlled by state agencies eligible pursuant to section  twenty-eight hundred three-a of the public health law, shall be eligible to make purchases pursuant to guidelines issued  by  the  state procurement  council  from  a consortium or comparable entity in lieu of using centralized contracts for commodities.  (vii) The commissioner is authorized to enter into contracts  pursuant to  the provisions of section twenty-eight hundred three-a of the public health law.   b. The commissioner shall:  (i) determine, in cooperation with the state procurement  council  and state  agencies,  the  identity,  form,  function  and  utility of those commodities which shall be made  available  on  or  through  centralized contracts.  Criteria  may  include,  but  need  not  be  limited to, the availability of a volume discount, prior  use  of  the  commodity  among state  agencies  and the relative cost of establishing the contract, its anticipated  use  and  expected  actual  savings  for  the  state.   The commissioner  may  also  act  as  a broker for state agencies to procure commodities.  (ii) determine the number  and  scope  of  centralized  contracts  for commodities  to  be  let  during  any  period,  including the letting of multiple contracts to ensure the sufficient  variety  and  uninterrupted availability of commodities for state agency use.  (iii)  maintain  lists  of firms which produce or manufacture or offer for sale commodities in the form, function and utility required by state agencies.  The  commissioner  shall  ensure  such  lists   are   updated regularly. With the assistance of the department of economic development  and  other  state  agencies,  beginning on July first, two thousand one, ensure the availability to all authorized purchasers  of  a  centralized list  which  identifies  commodities  offered  by New York state's small businesses  and  a  centralized  list  which  identifies commodities and services offered by businesses certified pursuant to  article  fifteen-A of  the  executive  law.  Such  lists  shall be updated semiannually and designed to enable effective identification of New  York  state's  small businesses and businesses certified pursuant to article fifteen-A of the executive law.  (iv) ensure the specification of commodities for centralized contracts reflect  the  form,  function and utility required by state agencies and conform, wherever possible, to industry standards. Where necessary,  the commissioner  may  develop  specifications  for  commodities.  When  not otherwise  forthcoming  from  a  particular  firm   or   industry,   the commissioner  may request information from businesses for the purpose of establishing  or  improving  a  specification.  The  office  of  general services   may   assist   agencies   in  developing  specifications  for agency-procured commodity contracts  when  industry  standards  are  not available   or  appropriate.  In  all  cases,  specifications  shall  be consistent with the requirements of state agencies.  (v) With the assistance of the department of economic development  and other  state agencies, provide a training program once per year, in each economic development region, as established in  article  eleven  of  the economic development law, beginning January first, two thousand one, for those   businesses  certified  pursuant  to  article  fifteen-A  of  the executive law and those interested in becoming certified. Such  training program  shall  provide  assistance  with  respect to participation as a vendor in the procurement process, as established in this  article,  and including  without  limitation  educating minority and women contractors about surety bonding requirements on state  contracts,  and  identifying resources  available  to  such contractors in obtaining their first bond and in increasing their bonding capacity, including but not  limited  to the federal small business administration bond guarantee program.  (vi) With the assistance of the department of economic development and other  state  agencies, provide training once per year for staff of each state agency's minority and women business development office, or if  an agency  does  not  have such an office, then an agency's representative. Such training program shall consist of a  meeting  with  such  agencies' representatives to inform each agency of how to encourage procurement of commodities  and  services from businesses certified pursuant to article fifteen-A of the executive law.  (vii) assist  the  department  of  agriculture  and  markets  and  the department  of economic development in providing a training program once per year, in each economic development region,  established  in  article eleven  of  the  economic  development  law,  to  encourage and increase participation in the procurement process, pursuant to this  article,  by small  businesses,  as  defined in section one hundred thirty-one of the economic development law, including farms, selling food or food products grown, produced, harvested, or processed in New York  state  and  assist such businesses in identifying such food or food products which may help to meet state agencies' needs.  (viii)  maintain a list of contractors which produce or manufacture or offer  for  sale  environmentally-sensitive  cleaning  and   maintenance products  in the form, function and utility generally used by elementary and secondary schools in accordance with  specifications  or  guidelines promulgated  pursuant  to  section  four hundred nine-i of the education law.  (ix) review and consider prior to issuance of  bid  solicitations  the term  of  the  proposed  contract  based  on factors, including, but not limited to; (A) the nature of the commodity, (B) the complexity  of  the procurement,   (C)   the  identity  and  type  of  purchasers,  (D)  the suitability of the contract for adding additional contractors during the term,  and (E) the estimated contract value. This determination shall be documented in the procurement record.  (x) reasonably consider aggregate amount of public sales by  potential vendors.  (xi)   review  and  consider  the  feasibility  of  creating  regional contracts for commodities being procured by the state.  (xii) maintain a procurement  record  for  each  centralized  contract procurement  identifying,  with supporting documentation, decisions made by the commissioner during  the  procurement  process.  The  procurement record  shall  include,  but not be limited to, each contract amendment, and the justification for each.   c. When commodities are  not  available  in  the  form,  function  and utility   required  by  state  agencies  through  preferred  sources  or centralized  contracts,  a  state  agency  may,  independently   or   in conjunction with other state agencies, procure commodities in accordance with  the  provisions  of  this  section.  State  agencies  may maintain listings  of  firms,  including  those  certified  pursuant  to  article fifteen-A  of  the  executive  law,  or  may  use  the office of general services' listing of firms and may request assistance from the office of general services. It shall be the responsibility of  state  agencies  to periodically   advise   the   office   of   general  services  of  those agency-procured commodities which, due to the frequency of  purchase  or related factors, should be made available through centralized contracts.   d. The commissioner may make, or cause to be made by a duly authorized representative,  any  investigation  which he or she may deem proper for acquiring the necessary information from a state  agency,  except  state agencies  where the head of the agency is not appointed by the governor, including but  not  limited  to  the  state  education  department,  the department  of  law,  and  the  department of audit and control, for the exercise of his or her powers and duties under this  section.  For  such purposes  the  commissioner  may  subpoena  and compel the attendance of witnesses before him or her, or an authorized  representative,  and  may compel  the  production  of  books,  papers,  records  or documents. The commissioner or a duly  authorized  representative  may  take  and  hear proofs and testimony and, for that purpose, the commissioner or the duly authorized   representative  may  administer  oaths.  In  addition,  the commissioner or the duly authorized representative:  (i) Shall have access at all reasonable  times  to  offices  of  state agencies;  (ii)  May examine all books, papers, records and documents in any such state  agency  as  pertain  directly  to  the   purchase,   control   or distribution of commodities; and  (iii)  May  require any state agency to furnish such data, information or statement as may be necessary.   4.  General  provisions  for   purchasing   services.   State   agency procurement practices for services shall incorporate the following:   a.  The purchase of services by state agencies including the office of general services shall be conducted in  a  manner  which  accords  first priority  to preferred sources in accordance with the provisions of this article when the services required are available in the  form,  function and utility required by state agencies through a preferred source.   b.  (i)  Centralized  contracts  for services may be procured by the office of general services at  the  request  of  state  agencies  or  as  determined  by  the  commissioner.  The  purchase  of  services by state agencies, except state agencies where the head  of  the  agency  is  not appointed  by  the  governor,  including  but  not  limited to the state education department, the department of law, and the department of audit and control, shall be conducted in a manner that accords second priority to  centralized contracts meeting form, function and utility required by said agency,  third  priority  to  agency  or  multi-agency  established contracts and fourth priority to other means of contracting.  (ii) The commissioner shall:  (A)  review  and  consider  prior to issuance of bid solicitations the term of the proposed contract  based  on  factors,  including,  but  not limited  to,  (a)  the  nature of the service, (b) the complexity of the procurement,  (c)  the  identity  and  type  of  purchasers,   (d)   the suitability of the contract for adding additional contractors during the term,  and (e) the estimated contract value. This determination shall be documented in the procurement record.  (B) reasonably consider  the  aggregate  amount  of  public  sales  by potential vendors.  (C) review and consider the feasibility of creating regional contracts for services being procured by the state.  (D)  maintain  a  procurement  record  for  each  centralized contract procurement identifying with supporting documentation, decisions made by the commissioner during the procurement process. The procurement records shall include, but not be limited to, each contract amendment,  and  the justification for each.   c.  When  services are not available from preferred sources consistent with the provisions of this article in the  form,  function  or  utility required   by  state  agencies,  state  agencies  may  procure  services independently or in conjunction with other state agencies in  accordance with the provisions of this section.   d.  Service contracts shall be awarded on the basis of best value to a responsive and responsible offerer; or, in the case of multiple  awards, in accordance with paragraph c of subdivision ten of this section.   e.  The commissioner is authorized to permit purchases of services for authorized users through the office  of  general  services'  centralized contracts.   Such  authorized  users  so  empowered  shall  accept  sole responsibility for any payment due with respect to such purchases.   g.  All  state  agencies  shall  require  all  contractors,  including sub-contractors,  that provide services for state purposes pursuant to a contract, to submit an annual employment report for  each  contract  for services  that includes for each employment category within the contract the number of employees employed to provide services under the contract, the number of hours they work and their  total  compensation  under  the contract.  Employment  reports  shall  be  submitted  to the agency that awarded the contract, the department of civil service and the department of audit and control and shall be available for  public  inspection  and copying  pursuant  to  section  eighty-seven  of the public officers law provided that in disclosing such reports pursuant to the public officers law, the agency making the disclosure shall redact the  name  or  social security  number  of  any  individual  employee that is included in such document.   5.  Process  for  conducting  state  procurements.  The  process   for conducting  state  procurements for services and commodities shall be as follows:   Determination  of  need.  State  agencies  shall  be  responsible  for determining the need for a given service or commodity:  (i)  For  commodities, upon such determination of need, state agencies shall ascertain whether the commodity is available in the form, function  and utility consistent with their needs from preferred  sources  and  if so,  shall purchase said commodity from a preferred source in accordance with the provisions of this article. If not so available, state agencies shall determine whether the commodity is available in the form, function and utility consistent with their needs on a centralized contract and if so, except as provided in subparagraph (v) of paragraph a of subdivision three   of  this  section,  shall  purchase  said  commodity  using  the centralized contract. If a commodity  is  not  available  in  the  form, function  and utility consistent with the needs of the state agency from a preferred source or a centralized  contract  or  as  provided  for  in subparagraph  (v)  of  paragraph a of subdivision three of this section, the  state  agency  may  procure  the  commodity  independently  or   in conjunction  with another state agency in accordance with paragraph c of subdivision three of this section.  (ii) For services, upon such determination  of  need,  state  agencies shall  ascertain  whether the service is available in the form, function and utility consistent with their needs from preferred sources  and,  if so,  shall  purchase  said  service  through  the  preferred  source  in accordance with the provisions of this article.  If  not  so  available, state agencies the heads of which are appointed by the governor:  (A)  Shall  purchase  the  service  if  it  is  available in the form, function and utility consistent with their needs  using  an  established centralized  contract  procured by either the office of general services or another state agency;  (B) May request that the office of general  services  procure  such  a service,  particularly  with  respect  to  those services having utility and/or benefit to more than one state agency; or  (C) May procure the  service  independently  or  in  conjunction  with another state agency.   6. Discretionary buying thresholds. Pursuant to guidelines established by the state procurement council: the commissioner may purchase services and  commodities  for  the  office  of  general services or its customer agencies serviced by the office of general  services  business  services center in an amount not exceeding eighty-five thousand dollars without a formal  competitive  process;  state  agencies may purchase services and commodities in an amount not exceeding fifty thousand dollars without  a formal  competitive process; and state agencies may purchase commodities or services from small business concerns or those certified pursuant  to articles  fifteen-A and seventeen-B of the executive law, or commodities or technology that are recycled  or  remanufactured  in  an  amount  not exceeding  five  hundred  thousand  dollars without a formal competitive process and for commodities that  are  food,  including  milk  and  milk products,  grown,  produced  or harvested in New York state in an amount not to exceed two hundred thousand dollars, without a formal competitive process.   6-a.  Discretionary  purchases.  Notwithstanding  the  provisions   of subdivision  two  of section one hundred twelve of this chapter relating to the dollar threshold requiring the state  comptroller's  approval  of contracts,  the  commissioner  of general services may make purchases or enter into contracts for the acquisition of commodities and services for the office of general services or its customer agencies serviced by  the office  of  general services business services center having a value not exceeding eighty-five thousand dollars without  prior  approval  by  any other  state  officer  or  agency  in  accordance  with  procedures  and requirements set forth in this article.   6-b. Determination of threshold amount. For determination of threshold amount  purposes  of  determining  whether  a  purchase  is  within  the discretionary thresholds established by subdivision six of this section,  the  commissioner  and  state  agencies  shall  consider  the reasonably expected aggregate amount of all purchases of the  same  commodities  or services  to  be  made  within the twelve-month period commencing on the date  of  purchase.  Purchases  of  services or commodities shall not be artificially divided for the purpose  of  satisfying  the  discretionary buying  thresholds  established  by  subdivision  six of this section. A change to or  a  renewal  of  a  discretionary  purchase  shall  not  be permitted  if  the change or renewal would bring the reasonably expected aggregate amount of all purchases of the same  commodities  or  services from  the same provider within the twelve-month period commencing on the date of the first purchase to an amount greater than  the  discretionary buying threshold amount.   6-c.  Pursuant  to  the  authority provided in subdivision six of this section, for the purchase of commodities that are food,  including  milk and milk products, grown, produced or harvested in New York state, where such  commodities exceed fifty thousand dollars in value, state agencies must advertise the discretionary purchase on the  state  agency  website for  a  reasonable  period  of  time and make the discretionary purchase based on the lowest price that meets the state agency's  form,  function and utility.   6-d.  Pursuant  to  the  authority provided in subdivision six of this section, state agencies shall report annually on a fiscal year basis  by July  first  of  the  ensuing  year  to  the director of the division of minority and women-owned business development the total number and total value of contracts awarded to businesses certified pursuant  to  article fifteen-A of the executive law, and with respect to contracts awarded to businesses  certified  pursuant  to article seventeen-B of the executive law  such  information  shall   be   reported   to   the   division   of service-disabled  veteran-owned  business  enterprises  for inclusion in their respective annual reports.   7.  Method  of  procurement.  Consistent  with  the  requirements   of subdivisions three and four of this section, state agencies shall select among  permissible methods of procurement including, but not limited to, an  invitation  for  bid,  request  for  proposals  or  other  means  of solicitation  pursuant  to  guidelines  issued  by the state procurement council.  State  agencies  may  accept  bids  electronically   including submission  of  the  statement  of non-collusion required by section one hundred  thirty-nine-d  of  this   chapter,   and   the   statement   of certification  required  by  section  one  hundred thirty-nine-l of this chapter, and, starting April first,  two  thousand  twelve,  and  ending March  thirty-first,  two  thousand fifteen, may, for commodity, service and technology contracts  require  electronic  submission  as  the  sole method  for  the submission of bids for the solicitation. State agencies shall  undertake  no  more  than   eighty-five   such   electronic   bid solicitations,  none  of which shall be reverse auctions, prior to April first, two thousand fifteen. In addition, state agencies may conduct  up to  twenty  reverse  auctions  through  electronic means, prior to April first,  two  thousand  fifteen.  Prior  to  requiring   the   electronic submission  of  bids, the agency shall make a determination, which shall be documented in the  procurement  record,  that  electronic  submission affords  a  fair and equal opportunity for offerers to submit responsive offers. Within  thirty  days  of  the  completion  of  the  eighty-fifth electronic  bid  solicitation,  or by April first, two thousand fifteen, whichever is earlier, the commissioner shall prepare a report  assessing the  use  of  electronic  submissions and make recommendations regarding future use of this procurement method. In addition, within  thirty  days of  the  completion  of the twentieth reverse auction through electronic means, or by April first, two thousand fifteen,  whichever  is  earlier,  the  commissioner  shall  prepare  a report assessing the use of reverse auctions through electronic means  and  make  recommendations  regarding future  use  of this procurement method. Such reports shall be published on the website of the office of general services. Except where otherwise provided  by  law, procurements shall be competitive, and state agencies shall conduct formal competitive  procurements  to  the  maximum  extent practicable.  State  agencies  shall  document  the determination of the method of procurement and the basis of award in the procurement  record. Where  the  basis  for  award  is the best value offer, the state agency shall document, in the procurement record and in advance of the  initial receipt  of  offers, the determination of the evaluation criteria, which whenever possible, shall be quantifiable, and the process to be used  in the  determination  of best value and the manner in which the evaluation process and selection shall be conducted.   7-a.  On  or  before  February  first,  two   thousand   twelve,   the commissioner  of  the  office  of  general  services shall submit to the speaker of the assembly and the temporary  president  of  the  senate  a report describing:  (a)  the  number  of  times  the  office  of general services required electronic submission  as  the  sole  method  by  which  bids  could  be submitted  for  the  period  from  July  first, two thousand ten through December thirty-first, two thousand eleven;  (b) the estimated savings to the state as a result of  the  office  of general  services  requiring electronic submission as the sole method by which bids could be submitted in response  to  a  solicitation  and  the basis on which the estimate is made;  (c)  to  the  extent  practicable, the size, minority- and women-owned business enterprise composition and  geographic  distribution  of  those vendors that submitted bids in response to an office of general services solicitation  where  electronic  submission was the sole method by which bids could be submitted for the period from July first, two thousand ten to December thirty-first, two thousand eleven; and  (d) to the extent practicable, the  size,  minority-  and  women-owned business  enterprise  composition  and  geographic distribution of those vendors that submitted bids in response to an office of general services solicitation for those contracts described in subdivision seven of  this section  for the period from July first, two thousand eight through June thirtieth, two thousand ten.   8. Public notice.  All  procurements  by  state  agencies,  including, without  limitation,  the  state  university  of  New  York and the city university of New York, in excess of fifty  thousand  dollars  shall  be advertised  in  the  state's  procurement  opportunities  newsletter  in accordance with article four-C of the economic development law.   9. Soliciting and accepting offers. For purchases from  sources  other than  preferred sources and for purchases in excess of the discretionary buying threshold established in subdivision six of this section:   a.  The  commissioner  or  a  state  agency  shall  select  a   formal competitive   procurement   process   in   accordance   with  guidelines established  by  the  state  procurement  council   and   document   its determination  in the procurement record. The process shall include, but is not limited to, a clear statement  of  need;  a  description  of  the required  specifications  governing  performance  and related factors; a reasonable process for ensuring a competitive field; a  fair  and  equal opportunity for offerers to submit responsive offers; and a balanced and fair  method  of  award.    Where the basis for the award is best value, documentation  in  the  procurement  record  shall,  where  practicable, include  a  quantification  of  the  application  of the criteria to the rating  of  proposals  and  the  evaluation  results,  or,   where   not  practicable, such other justification which demonstrates that best value will be achieved.   b.  The  solicitation  shall  prescribe  the minimum specifications or requirements that must be met in order to be considered  responsive  and shall  describe  and disclose the general manner in which the evaluation and selection shall be conducted. Where  appropriate,  the  solicitation shall  identify  the  relative  importance and/or weight of cost and the overall technical criterion to be considered by a state  agency  in  its determination of best value.   c.  Where  provided  in  the  solicitation, state agencies may require clarification  from  offerers  for   purposes   of   assuring   a   full understanding  of responsiveness to the solicitation requirements. Where provided for in the solicitation, revisions may be  permitted  from  all offerers  determined  to  be  susceptible of being selected for contract award, prior to  award.  Offerers  shall  be  accorded  fair  and  equal treatment  with respect to their opportunity for discussion and revision of offers. A state agency shall, upon request, provide a  debriefing  to any  unsuccessful offerer that responded to a request for proposal or an invitation for bids, regarding the reasons  that  the  proposal  or  bid submitted by the unsuccessful offerer was not selected for an award. The opportunity  for  an  unsuccessful offerer to seek a debriefing shall be stated in the solicitation.  (i) A debriefing shall be requested by the unsuccessful offerer within fifteen calendar days of release by the state  agency  of  a  notice  in writing or electronically that the offerer's offer is unsuccessful.  (ii) Such notice shall be provided to all unsuccessful offerers by the state agency for the specific procurement.  (iii)  The  state  agency,  upon a request made within fifteen days of release of the  written  or  electronic  notice  from  the  unsuccessful offerer  for a debriefing, shall schedule the debriefing to occur within a reasonable time of such request. Debriefings shall be conducted by the state agency with the unsuccessful offerer in-person, provided, however, the parties may mutually agree to utilize other means such as,  but  not limited   to,   by  telephone,  video-conferencing  or  other  types  of electronic communications. State agency personnel participating  in  the debriefing  discussion  shall  have been involved with and knowledgeable about the procurement and the evaluation and selection of the successful offerer or offerers.  (iv) Such debriefing shall include, but need not be  limited  to:  (A) the   reasons   that  the  proposal,  bid  or  offer  submitted  by  the unsuccessful offerer was not selected for award; (B) the qualitative and quantitative analysis employed by the agency in assessing  the  relative merits  of  the  proposals,  bids  or offers; (C) the application of the selection criteria to the unsuccessful offerer's proposal; and (D)  when the  debriefing  is  held  after  the  final  award, the reasons for the selection of the winning proposal, bid or offer.  The  debriefing  shall also  provide, to the extent practicable, general advice and guidance to the unsuccessful offerer concerning potential  ways  that  their  future proposals, bids or offers could be more responsive.   d.  All  offers  may  be rejected. Where provided in the solicitation, separable portions of offers may be rejected.   e. Every offer shall be firm and not revocable for a period  of  sixty days from the bid opening, or such other period of time specified in the solicitation  to  the  extent not inconsistent with section 2-205 of the uniform commercial code. Subsequent to such sixty day or other specified period, any offer is subject to withdrawal  communicated  in  a  writing signed by the offeror.    f.  Prior to making an award of contract, each state agency shall make a determination of responsibility of the proposed contractor which shall supplement, as appropriate,  but  not  supersede  the  determination  of responsibility  that  may  be  required  pursuant to section one hundred thirty-nine-k of this chapter.   g.  A  procurement  record  shall  be  maintained for each procurement identifying,  with  supporting  documentation,  decisions  made  by  the commissioner  or  state  agency  during  the  procurement  process.  The procurement record shall include, but not be limited  to  each  contract amendment and the justification for each.   10.  Letting  of contracts. Contracts for commodities shall be awarded on the basis of lowest price to a responsive  and  responsible  offerer. Contracts  for services shall be awarded on the basis of best value from a responsive and responsible offerer. Multiple awards for  services  and commodities  shall  be  conducted in accordance with paragraph c of this subdivision.   a. Selection and  award  shall  be  a  written  determination  in  the procurement  record  made  by  the  commissioner  or a state agency in a manner consistent with the provisions of the solicitation. In the  event two  offers are found to be substantially equivalent, price shall be the basis for determining the award  recipient  or,  when  price  and  other factors  are  found to be substantially equivalent, the determination of the commissioner or agency head to award a contract to one  or  more  of such  bidders  shall be final. The basis for determining the award shall be documented in the procurement record.   b. (i) Single or sole source procurements for services or commodities, or procurements made to meet emergencies arising from unforeseen causes, may be made without a formal competitive process and shall only be  made under  unusual  circumstances  and  shall include a determination by the commissioner or the state agency that the specifications or requirements for said purchase have been designed in a fair and equitable manner. The purchasing agency shall document in the procurement record,  subject  to review  by  the  state  comptroller,  the  bases  for a determination to purchase from a single source or sole  source,  or  the  nature  of  the emergency giving rise to the procurement.  (ii)   State   agencies  shall  minimize  the  use  of  single  source procurements and shall use single source procurements only when a formal competitive process is not feasible. State agencies  shall  document  in the   procurement   record   the  circumstances  and  the  material  and substantial reasons why a formal competitive process  is  not  feasible. The term of a single source procurement contract shall be limited to the minimum  period  of time necessary to ameliorate the circumstances which created the material and  substantial  reasons  for  the  single  source award.  Not  later  than  thirty  days  after  the contract award, state agencies shall,  for  all  single  source  procurement  contracts,  make available  for public inspection on the agency website, a summary of the circumstances and material and substantial  reasons  why  a  competitive procurement  is  not  feasible.  Any  information  which the contracting agency is otherwise  prohibited  by  law  from  disclosing  pursuant  to sections  eighty-seven and eighty-nine of the public officers law, shall be redacted from the documentation published on the agency website.   c. The commissioner or state agency may elect to award a  contract  to one  or more responsive and responsible offerers provided, however, that the basis for the selection among multiple  contracts  at  the  time  of purchase  shall  be  the  most  practical and economical alternative and shall be in the best interests of the state, and further  provided  that the  requirements  set  forth herein shall not preclude the commissioner from  establishing  multiple  award  contracts  for  reasons   including  increased  opportunities  for  small  businesses to participate in state contracts.   d.  It  shall be in the discretion of the commissioner or state agency to require a bond or other guarantee of performance, and to approve  the amount, form and sufficiency thereof.   e. The commissioner may authorize purchases required by state agencies or  other  authorized  purchasers  by  letting  a contract pursuant to a written agreement, or by approving the use of  a  contract  let  by  any department,  agency  or  instrumentality of the United States government and/or  any  department,  agency,  office,  political   subdivision   or instrumentality  of  any state or states. A state agency purchaser shall document in the procurement record  its  rationale  for  the  use  of  a contract  let by any department, agency or instrumentality of the United States  government  or  any  department,   agency,   office,   political subdivision  or  instrumentality  of  any  other  state  or states. Such rationale shall include, but need not be limited to, a determination  of need,  a  consideration  of the procurement method by which the contract was awarded, an analysis of alternative procurement sources including an explanation why a competitive procurement or the use  of  a  centralized contract  let  by  the  commissioner  is not in the best interest of the state, and the reasonableness of cost.   f. The commissioner is authorized to  let  centralized  contracts,  in accordance  with the procedures of this section, for joint purchasing by New York state and any department,  agency  or  instrumentality  of  the United  States  government  and/or  any  state  including  the political subdivisions thereof; provided  however  that  any  entity  incurring  a liability  under such contract shall be responsible for discharging said liability.   11. Reasonableness of results. It shall be the responsibility  of  the head  of  each  state  agency  to periodically sample the results of the procurement process to test  for  reasonableness;  to  ensure  that  the results  withstand public scrutiny and that the quality and the price of the purchase makes sense; and to ensure that purchasing is conducted  in a manner consistent with the best interests of the state.   12.  Review  by  the  office  of  the state comptroller. Review by the office of the state comptroller shall be in accordance with section  one hundred  twelve  of  this  chapter.  If  the  contracting agency has not complied with  one  or  more  provisions  of  this  article,  the  state comptroller may approve the awarded contract if:   a.  the  contracting  agency  determines  that the noncompliance was a non-material deviation from one or more provisions of this article.  For the  purposes  of  this  subdivision "non-material deviation" shall mean that such noncompliance  did  not  prejudice  or  favor  any  vendor  or potential  vendor,  such  noncompliance did not substantially affect the fairness of the competitive process, and that a  new  procurement  would not  be  in  the  best  interest of the state. Such determination by the contracting agency and the state comptroller shall be documented in  the procurement record; and   b. the state comptroller concurs in such determination.   13.  Technological  procurement  improvements.  The  state procurement council may request that the office  of  general  services  provide,  or recommend  to  the  state  comptroller to provide for the utilization of technological advances  and  efficiencies  in  the  procurement  process including,   but  not  limited  to,  electronic  ordering  and  payment, procurement cards and similar improvements.   14. Reporting by the state comptroller. To support transparency in the state's  procurement  process  and   prudent   procurement   management, oversight and policy-making, the state comptroller shall submit a report  to  the state procurement council, the governor, the commissioner of the office of  general  services,  the  director  of  the  budget,  and  the legislative  fiscal  committees  containing data related to state agency contracts. Such report shall be made annually, on a fiscal year basis by the first of July of the next succeeding year.   a. For state agency contracts, such report shall include:  (i) a list of all active contracts as of the end of the fiscal year;  (ii)  a  list  of  all  contracts  reviewed by the office of the state comptroller during the fiscal year;  (iii) a list of contract award protests reviewed by the office of  the state comptroller and the resolution thereof; and  (iv)  for  consulting  contracts  subject  to  approval  of  the state comptroller, a report  of  planned  and  actual  employment  under  each contract.   b.  The  lists  required  pursuant  to  subparagraphs  (i) and (ii) of paragraph a of this subdivision shall include, to the extent  reasonably available, the following information related to each contract:  (i) the state agency letting the contract;  (ii) the state agency for which the contract is let, if different;  (iii) whether an agency contract or centralized contract;  (iv) vendor name and address;  (v)  a  description  of  the contract. For contracts let under section nine of the public buildings law, the description shall denote the scope of work of the contract and the nature of the emergency for which it was let;  (vi) contract start and end dates;  (vii) the dollar value of the contract;  (viii) for contracts subject to approval  by  the  state  comptroller, whether     approved    or    non-approved,    the    date    of    such approval/non-approval,  and  if  non-approved,  the  reason  or  reasons therefor;  (ix)  life  to  date and fiscal year expenditures against the contract and by which agencies;  (x)  major  contract  category,  including,  but   not   limited   to, consultant,   construction,   equipment,  grants,  leases,  land  claim, miscellaneous  services,   printing,   repayment   agreements,   revenue agreements, intergovernmental agreements, and commodities;  (xi)  source selection method, including "lowest price", "best value", sole source, single source, negotiated and/or emergency procurement;  (xii) number of bids/proposals received by the contracting agency; and  (xiii) subtotals as deemed applicable.   c. The report required pursuant to subparagraph (iv) of paragraph a of this subdivision shall include:  (i) information required to be reported by the contractor annually  by the  employment  category  within  the  contract,  including the planned number of employees to provide services under the contract, the  planned number  of  hours  to  be  worked  under  the  contract,  and  the total compensation planned under the contract; and  (ii) information required to be reported by  the  contractor  annually pursuant   to   paragraph   g  of  subdivision  four  of  this  section, specifically, the actual number of  employees,  by  employment  category within  the  contract,  employed to provide services under the contract, the number of hours worked and total compensation under the contract.   d. For the purposes of the report required  pursuant  to  subparagraph (iv)  of  paragraph  a  of  this subdivision, a "contract for consulting services" shall mean any contract entered into by  a  state  agency  for analysis,  evaluation,  research,  training,  data  processing, computer programming,  engineering,  environmental  health  and   mental   health  services,  accounting,  auditing, paralegal, legal, or similar services. Such report  shall  be  available  for  public  inspection  and  copying pursuant  to  section  eighty-seven  of the public officers law provided that in disclosing such reports pursuant to the public officers law, the agency  making  the  disclosure  shall  redact the name, social security number and other personal information  of  any  individual  employee  or consultant that is included in such document.   e.  The  information required by this subdivision shall be provided in electronic format in such form as prescribed by  the  state  comptroller such that the data can be searched and sorted.   f.  All reports required under this subdivision shall be available for public inspection and copying pursuant to section  eighty-seven  of  the public officers law provided that in disclosing such reports pursuant to the  public  officers law, the agency making the disclosure shall redact the name or social security number of any individual  employee  that  is included in such document.   15. Reporting by agencies. a. State agencies shall report annually, on a  fiscal  year  basis,  by  July first of the ensuing year to the state procurement council, the governor, the legislative fiscal committees and the state comptroller the total number and total dollar value of  single source  contracts  awarded by the agency during the fiscal year, and the percentage such contracts represent of the  agency's  total  number  and total dollar value of contract awards during the reporting period.   b.  Each  state  agency shall include with its report an assessment by the agency head of the agency's efforts to minimize the award of  single source contracts.   c.  All reports required under this subdivision shall be available for public inspection and copying pursuant to section  eighty-seven  of  the public officers law provided that in disclosing such reports pursuant to the  public  officers law, the agency making the disclosure shall redact the name or social security number of any individual  employee  that  is included in such document.   * NB Repealed June 30, 2026