NY State Fin L § 139-J (2021)
2021 New York Laws STF - State Finance Article 9 - Contracts 139-J - Restrictions on Contacts During the Procurement Process.

* § 139-j. Restrictions on contacts during the procurement process. 1. For  the  purposes  of  this  section, the following terms will have the following meanings unless specified otherwise.   a. "Governmental  entity"  shall  mean:  (1)  any  department,  board, bureau,  commission,  division, office, council, committee or officer of the state, whether permanent or temporary; (2) each house of  the  state legislature;  (3)  the  unified  court system; (4) any public authority, public benefit corporation or commission created by or existing pursuant to the public authorities  law;  (5)  any  public  authority  or  public benefit  corporation,  at least one of whose members is appointed by the governor or who serves as a member by virtue of holding a  civil  office of  the  state;  (6)  a  municipal  agency,  as  that term is defined in paragraph (ii) of subdivision (s) of section one-c  of  the  legislative law; or (7) a subsidiary or affiliate of such a public authority.   b.   "Article   of  procurement"  shall  mean  a  commodity,  service, technology, public work, construction, revenue contract,  the  purchase, sale  or  lease  of real property or an acquisition or granting of other interest in real  property,  that  is  the  subject  of  a  governmental procurement.   c. "Contacts" shall mean any oral, written or electronic communication with a governmental entity under circumstances where a reasonable person would  infer  that  the  communication  was  intended  to  influence the governmental entity's conduct or  decision  regarding  the  governmental procurement.   d.  "Proposal"  shall  mean any bid, quotation, offer or response to a governmental  entity's  solicitation  of  submissions  relating   to   a procurement.   e. "Governmental procurement" shall mean: (i) the public announcement, public  notice,  or  public  communication  to any potential vendor of a determination of a need for a procurement, which shall include, but  not be  limited  to,  the  public  notification  of  the specifications, bid documents,  request  for  proposals,  or  evaluation  criteria   for   a procurement  contract,  (ii)  solicitation  for  a procurement contract, (iii) evaluation of a procurement contract, (iv) award, approval, denial or disapproval of a procurement contract, or (v) approval or  denial  of an  assignment, amendment (other than amendments that are authorized and payable under the terms of the procurement contract as  it  was  finally awarded  or  approved  by  the  comptroller,  as applicable), renewal or extension of a procurement contract, or any other material change in the procurement contract resulting in a financial benefit to the offerer.   f. "Restricted period" shall mean the period of time  commencing  with the earliest posting, on a governmental entity's website, in a newspaper of  general  circulation, or in the procurement opportunities newsletter in accordance with article four-C of the  economic  development  law  of written notice, advertisement or solicitation of a request for proposal, invitation  for  bids, or solicitation of proposals, or any other method provided for by  law  or  regulation  for  soliciting  a  response  from offerers   intending   to  result  in  a  procurement  contract  with  a governmental entity  and  ending  with  the  final  contract  award  and approval  by  the  governmental  entity and, where applicable, the state comptroller.   g. "Procurement contract" shall mean any contract or other  agreement, including  an  amendment,  extension,  renewal  or  change  order  to an existing contract  (other  than  amendments,  extensions,  renewals,  or change  orders  that  are  authorized and payable under the terms of the contract as it was finally awarded or approved by  the  comptroller,  as applicable),  for  an  article  of  procurement  involving  an estimated annualized expenditure in excess of fifteen  thousand  dollars.  Grants,  article  eleven-B state finance law contracts, program contracts between not-for-profit organizations, as defined in  article  eleven-B  of  this chapter,  and  the  unified  court system, intergovernmental agreements, railroad   and   utility  force  accounts,  utility  relocation  project agreements or orders, contracts governing organ  transplants,  contracts allowing  for  state  participation  in  trade shows, and eminent domain transactions shall not be deemed procurement contracts.   h. "Offerer" shall mean the individual or  entity,  or  any  employee, agent  or  consultant  or  person acting on behalf of such individual or entity,  that  contacts  a  governmental  entity  about  a  governmental procurement   during   the   restricted   period  of  such  governmental procurement whether or not the caller has a financial  interest  in  the outcome  of  the  procurement;  provided,  however,  that a governmental agency or its employees that  communicates  with  the  procuring  agency regarding  a  governmental  procurement in the exercise of its oversight duties shall not be considered an offerer.   i. "Revenue contract" shall  mean  any  written  agreement  between  a governmental entity, as that term is defined in subparagraphs one, four, five,  six  or  seven of paragraph a of this subdivision, and an offerer whereby the governmental entity  gives  or  grants  a  concession  or  a franchise.   j.  "Unified  court  system"  shall,  for the purposes of this section only, mean the unified court system of the state of  New  York,  or  the office  of  court administration, where appropriate, other than town and village justice courts in jurisdictions with a  population  under  fifty thousand, when it acts solely in an administrative capacity to engage in governmental procurements and shall not include the unified court system or  any  court  of  the  state judiciary when it acts to hear and decide cases of original or appellate jurisdiction or  otherwise  acts  in  its judicial, as opposed to administrative, capacity.   2.   Every   governmental   entity   that  undertakes  a  governmental procurement shall:   a. at the same time that a restricted period  is  imposed,  designate, with  regard  to  each governmental procurement, a person or persons who are knowledgeable about the procurement and  who  may  be  contacted  by offerers relative to the governmental procurement;   b.  make  any determinations on any governmental procurement: (1) in a manner consistent with the principles provided for under subdivision two of  section  one  hundred  sixty-three  of  this  chapter,  or,  if  the governmental  entity  is  a  public benefit corporation, as that term is defined in section sixty-six of the general construction  law,  and  the majority  of  the  members  consist  of  persons either appointed by the governor or who serve as members by virtue of holding a civil office  of the  state,  the  procurement  guidelines  adopted  pursuant  to section twenty-eight hundred seventy-nine of the public authorities law, and (2) free from any conduct that would be prohibited by  subdivision  five  of section  seventy-three  or  section  seventy-four of the public officers law, or of other applicable ethics code provisions that  are  equivalent to  subdivision five of section seventy-three or section seventy-four of the public officers law where the public officials that are involved  in the  governmental  procurement  are  not  subject to subdivision five of section seventy-three or section seventy-four  of  the  public  officers law;   3.   Each   offerer  that  contacts  a  governmental  entity  about  a governmental procurement  shall  only  make  permissible  contacts  with respect  to  the  governmental  procurement,  which  shall mean that the offerer:    a. shall contact only the person or persons who may  be  contacted  by offerers  as designated by the governmental entity pursuant to paragraph a of subdivision two  of  this  section  relative  to  the  governmental procurement,  except  that  the following contacts are exempted from the provisions  of  this  paragraph  and  do  not  need  to be directed to a designated contact pursuant to section one hundred thirty-nine-k of this article:  (1) the submission of written proposals in response to a  request  for proposals,  invitation  for  bids  or  any other method for soliciting a response from offerers intending to result in a procurement contract;  (2) the submission of written questions by a method  set  forth  in  a request  for  proposals, or invitation for bids, or any other method for soliciting a response from offerers intending to result in a procurement contract,  when  all  written  questions  and  responses   are   to   be disseminated  to  all  offerers  who  have  expressed an interest in the request for proposals, or invitation for bids, or any other  method  for soliciting a response from offerers intending to result in a procurement contract;  (3)  participation  in  a demonstration, conference or other means for exchange of information in a  setting  open  to  all  potential  bidders provided  for  in  a  request for proposals, invitation for bids, or any other method for soliciting a response from offerers intending to result in a procurement contract;  (4) complaints by an offerer regarding the failure of  the  person  or persons designated by the procuring governmental entity pursuant to this section  to  respond  in  a timely manner to authorized offerer contacts made in writing to the  office  of  general  counsel  of  the  procuring governmental  entity,  provided  that  any such written complaints shall become a part of the procurement record;  (5) offerers who have been tentatively  awarded  a  contract  and  are engaged  in  communications  with  a  governmental entity solely for the purpose of negotiating the terms of the procurement contract after being notified of tentative award;  (6) contacts between  designated  governmental  entity  staff  of  the procuring  governmental entity and an offerer to request the review of a procurement contract award;  (7) (a) contacts by offerers in  protests,  appeals  or  other  review proceedings  (including  the  apparent successful bidder or proposer and his or her representatives) before the  governmental  entity  conducting the  procurement  seeking  a final administrative determination, or in a subsequent judicial proceeding; or  (b)  complaints  of  alleged  improper  conduct  in   a   governmental procurement   to  the  attorney  general,  inspector  general,  district attorney, or court of competent jurisdiction; or  (c) protests, appeals or complaints to the state comptroller's  office during  the  process of contract approval, where the state comptroller's approval is required, provided that the state comptroller shall  make  a record  of  such  communications and any response thereto which shall be entered into the procurement record  pursuant  to  section  one  hundred sixty-three of this chapter; or  (d)   complaints   of  alleged  improper  conduct  in  a  governmental procurement conducted by a municipal agency or local legislative body to the state comptroller's office;  (8) communications between offerers  and  governmental  entities  that solely  address  the  determination  of responsibility by a governmental entity of an offerer;  (9) Any communications relating to  a  governmental  procurement  made under  section one hundred sixty-two of the state finance law undertaken  by (i) the non-profit-making agencies appointed pursuant to paragraph  e of subdivision six of section one hundred sixty-two of the state finance law  by  the commissioner of the office of children and family services, the commission for the blind, or the commissioner of education, and (ii) the  qualified  charitable non-profit-making agencies for the blind, and qualified  charitable  non-profit-making  agencies  for  other  severely disabled persons as identified in subdivision two of section one hundred sixty-two  of  this  chapter; provided, however, that any communications which attempt to influence the issuance or terms of  the  specifications that  serve  as  the  basis  for  bid documents, requests for proposals, invitations for bids, or solicitations of proposals, or any other method for soliciting a  response  from  offerers  intending  to  result  in  a procurement  contract  with  a  state agency, the state legislature, the unified court system, a municipal agency or local legislative body shall not be exempt from the provisions of this paragraph;  (10) Complaints by minority-owned business enterprises or  women-owned business  enterprises, certified as such by the division of minority and women's business development, to the minority and  women-owned  business enterprise  statewide  advocate  concerning  the  procuring governmental entity's failure to  comply  with  the  requirements  of  section  three hundred fifteen of the executive law;  (11)  Communications  between  the  minority  and women-owned business enterprise statewide advocate and the procuring governmental  entity  in furtherance of an investigation of the minority and women-owned business enterprise statewide advocate pursuant to section three hundred twelve-a of the executive law.   provided, however, that nothing in this subdivision shall be construed as recognizing or creating any new rights, duties or responsibilities or abrogating  any  existing  rights,  duties  or  responsibilities  of any governmental entity as it pertains to implementation and enforcement  of article  eleven  of  this  chapter or any other provision of law dealing with the governmental procurement process,  and  that  nothing  in  this subdivision   shall   be   interpreted  to  limit  the  authority  of  a governmental entity involved in a government procurement by exercise  of an  oversight  function from providing information to offerers regarding the status of the review,  oversight,  or  approval  of  a  governmental procurement  that  has  been  submitted  to  or  is under review by that governmental entity.   b. shall not attempt to influence the governmental  procurement  in  a manner  that  would  result  in a violation or an attempted violation of subdivision five of section seventy-three or section seventy-four of the public officers law, or of other applicable ethics code provisions  that are  equivalent  to subdivision five of section seventy-three or section seventy-four of the public officers law where the public officials  that are  involved  in  the  governmental  procurement  are  not  subject  to subdivision five of section seventy-three or section seventy-four of the public officers law;   4. Violations of paragraph a of  subdivision  three  of  this  section shall   include   any   contacts  during  the  restricted  period  of  a governmental procurement between the offerer and any member, officer  or employee of any governmental entity other than the entity conducting the governmental  procurement;  provided,  however,  that  nothing  in  this section shall be deemed to prohibit an offerer from communicating with a member  of  the  state  legislature  or  legislative   staff   about   a governmental  procurement being conducted by a governmental entity other than the state legislature, or a member  of  the  state  legislature  or legislative  staff contacting a governmental entity about a governmental procurement being conducted by a  governmental  entity  other  than  the  state  legislature, provided that the member of the state legislature or legislative staff is acting in his or her official capacity.   5. Governmental entity staff may consult the model guidelines that may be  established by the advisory council on procurement lobbying pursuant to section one-t of the legislative law in implementing this section.   6. a. Every governmental entity shall incorporate  a  summary  of  the policy   and   prohibitions  regarding  permissible  contacts  during  a governmental procurement pursuant to subdivision three of this  section, and  copies  of rules and regulations and applicable governmental entity guidelines  and  procedures  regarding  permissible  contacts  during  a governmental  procurement  pursuant to subdivision three of this section into their solicitation of proposals or bid documents or  specifications for all procurement contracts.   b.  Every governmental entity shall seek written affirmations from all offerers as to the offerer's understanding of and  agreement  to  comply with  the  governmental  entity's  procedures  relating  to  permissible contacts during a governmental procurement pursuant to subdivision three of this section. Such a written  affirmation  by  an  offerer  shall  be deemed  to  apply  to  any  amendments to a procurement submitted by the governmental entity after an initial affirmation  is  received  with  an initial bid.   7.  Notwithstanding  any  law  to the contrary, prior to conducting an award of a procurement contract,  a  governmental  entity  conducting  a governmental   procurement   shall   make   a   final  determination  of responsibility of the proposed awardee in accordance with paragraph f of subdivision nine of section one hundred sixty-three of this chapter, or, if the governmental entity is a public benefit corporation, as that term is defined in section sixty-six of the general construction law, and the majority of the members consist  of  persons  either  appointed  by  the governor  or who serve as members by virtue of holding a civil office of the state, according to the procurement guidelines adopted  pursuant  to subparagraph  (iii)  of  paragraph  (b)  of subdivision three of section twenty-eight  hundred  seventy-nine  of  the  public  authorities   law; provided,  however,  that nothing in this subdivision shall be construed as  abrogating  or  diminishing   any   existing   rights,   duties   or responsibilities   of   any   governmental  entity  as  it  pertains  to determinations of responsibility.   8. Any member, officer  or  employee  of  a  governmental  entity  who becomes aware that an offerer has violated the provisions of subdivision three  of  this  section  with regard to permissible contacts during any governmental procurement shall immediately notify  the  ethics  officer, inspector   general,   if  any,  or  other  official  of  the  procuring governmental entity responsible  for  reviewing  or  investigating  such matters.  If  an offerer violates the provisions of subdivision three of this section with regard  to  permissible  contacts  at  a  governmental entity  other  than  the governmental entity conducting the governmental procurement, the member, officer or employee who becomes  aware  of  the violation shall notify the ethics officer, inspector general, if any, or other  official  of the governmental entity responsible for reviewing or investigating such matters where that member, officer or employee works, who shall in turn notify the ethics officer, inspector general, if  any, or  other  official of the procuring governmental entity responsible for reviewing or investigating such matters at  the  procuring  governmental entity.   9.  Every  governmental entity shall establish a process for review by its ethics  officer,  inspector  general,  if  any,  or  other  official responsible for reviewing or investigating any allegations of violations of  the  provisions  of subdivision three of this section with regard to  permissible  contacts  on  governmental  procurements,   and   for   the imposition of sanctions if such violations have been found to exist.   10.  a.  Upon  notification  of  any  allegation of a violation of the provisions  of  subdivision  three  of  this  section  with  regard   to permissible  contacts  on  governmental  procurements,  the governmental entity's ethics officer, inspector general, if any, or other official of the  procuring  governmental  entity  responsible   for   reviewing   or investigating such matters shall immediately investigate such allegation and, if sufficient cause exists to believe that such allegation is true, shall  give  the  offerer  reasonable  notice  that  an investigation is ongoing and an opportunity to be heard in response to the allegation.   b. A finding that an offerer has knowingly and willfully violated  the provisions  of  subdivision  three  of  this  section  shall result in a determination of non-responsibility for such offerer, and  such  offerer and   its  subsidiaries,  and  any  related  or  successor  entity  with substantially similar function, management, board of directors, officers and shareholders  (hereinafter,  for  the  purposes  of  this  paragraph "offerer"),  shall  not  be awarded the procurement contract, unless the governmental entity finds that the award of the procurement contract  to the  offerer is necessary to protect public property or public health or safety, and that the offerer is the only source capable of supplying the required  article  of  procurement  within  the   necessary   timeframe, provided,  that the governmental entity shall include in the procurement record a  statement  describing  the  basis  for  such  a  finding.  Any subsequent  determination of non-responsibility due to violation of this section within four years of a determination of  non-responsibility  due to  a  violation  of  this  section  shall  result  in the offerer being rendered  ineligible  to  submit  a  proposal  on  or  be  awarded   any procurement  contract  for  a  period of four years from the date of the second final determination. Every governmental entity shall ensure  that its   solicitations  of  proposals  for  procurement  contracts  require offerers to disclose findings of non-responsibility due to violations of the provisions of subdivision three of this section within the  previous four years by any governmental entity. The failure of offerers to timely disclose  accurate  and complete information or otherwise cooperate with the  governmental  entity  in  administering  this  provision  shall  be considered   by   the   governmental  entity  in  its  determination  of responsibility; provided, further, that the  governmental  entity  shall not award a contract to an offerer who fails to timely disclose accurate and  complete  information  or otherwise cooperate with the governmental entity in administering this provision unless  the  governmental  entity finds  that  the  award  of  the  procurement contract to the offerer is necessary to protect public property or public  health  or  safety,  and that  the  offerer  is the only source capable of supplying the required article of procurement within the necessary  timeframe,  provided,  that the  governmental  entity  shall  include  in  the  procurement record a statement describing the basis for such a finding. Upon a  determination of  non-responsibility  or debarment due to a violation of this section, the governmental entity shall notify the  office  of  general  services, which  shall  keep a list of all offerers who have been determined to be nonresponsible bidders or debarred due to violations  of  this  section; the  office  of general services shall make publicly available such list and shall publish such list on its web site.   c. If a violation of the  provisions  of  subdivision  three  of  this section  is  found  to  have  knowingly and willfully occurred, then the ethics officer or inspector general, if any, or other  official  of  the procuring governmental entity responsible for reviewing or investigating such  matters  shall  report  instances  of  employee  violation  of the  guidelines and procedures regarding implementation of subdivision two of this section to the governmental entity's head.   11.  Nothing  in this section shall be deemed to prevent: (a) contacts by offerers in protests, appeals or other review proceedings  (including the   apparent   successful   bidder   or   proposer   and  his  or  her representatives)  before  the   governmental   entity   conducting   the procurement  seeking  a  final  administrative  determination,  or  in a subsequent judicial proceeding; or  (b)  complaints  of  alleged  improper  conduct  in   a   governmental procurement   to  the  attorney  general,  inspector  general,  district attorney, or court of competent jurisdiction; or  (c) written protests, appeals or complaints to the state comptroller's office  during  the  process  of  contract  approval,  where  the  state comptroller's approval is required by law, and where such communications and  any  responses  thereto are made in writing and shall be entered in the procurement record pursuant to section one  hundred  sixty-three  of this chapter; or  (d)   complaints   of  alleged  improper  conduct  in  a  governmental procurement conducted by a municipal agency or local legislative body to the state comptroller's office;   provided, however, that nothing in this subdivision shall be construed as recognizing or creating any new rights, duties or responsibilities or abrogating any  existing  rights,  duties  or  responsibilities  of  any governmental  entity as it pertains to implementation and enforcement of article eleven of this chapter or any other  provision  of  law  dealing with the governmental procurement process.   * NB Repealed July 31, 2026