2023 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.