2023 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 forty of the
veterans' services 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,  animal or plant fiber products grown, produced, harvested, or
processed in New York state or textile products manufactured from animal
or plant fiber grown or produced predominantly in  New  York  state  and
assist  such  businesses  in  identifying  such  food, food products, or
animal or plant fiber products and textile 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.
(xiii) maintain a list  of  New  York-based  firms  which  produce  or
manufacture  or  offer  for  sale animal or plant fiber textile products
containing animal or plant fiber grown or produced predominantly in  New
York state in the form, function and utility generally purchased for use
by state agencies.
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:
(a)  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;
(b)  state agencies may purchase services and commodities in an amount
not exceeding  fifty  thousand  dollars  without  a  formal  competitive
process;
(c)  state  agencies  may  purchase commodities or services from small
business concerns, or commodities or technology  that  are  recycled  or
remanufactured  in an amount not exceeding five hundred thousand dollars
without a formal competitive process;
(d) state agencies may purchase commodities  or  services  from  those
certified pursuant to article fifteen-A of the executive law and article
three  of  the  veterans'  services law in an amount not exceeding seven
hundred fifty thousand dollars without a formal competitive process; and
(e) state agencies may purchase commodities that are  food,  including
milk  and  milk  products,  or  animal  or  plant fiber products, grown,
produced, harvested, or processed in New York state or textile  products
manufactured  from animal or plant fiber grown or produced predominantly

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, or animal or plant fiber products, grown, produced,
harvested,  or  processed  in  New  York  state  or   textile   products
manufactured  from animal or plant fiber grown or produced predominantly
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 three of the veterans' services
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. 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. Notwithstanding  the  electronic  bid  provisions  set  forth  in
subdivision  seven  of  this section, starting April first, two thousand
twenty-three, and ending March thirty-first, two thousand  twenty-seven,
state  agencies may require electronic submission as the sole method for
the submission of bids for commodity, service and technology  contracts,
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 may require electronic signatures on all documents required
for  submission  of  a  bid,  any  resulting  contracts,  and   required
submissions  during  the  term  of  any contract. 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,  and that the electronic signature complies with the
provisions of article three of the state technology law.
7-b. On  or  before  December  first,  two  thousand  twenty-six,  the
commissioner  of  the  office  of  general  services shall submit to the
speaker of the assembly and the temporary president of  the  senate  and
post  on  the  website  of  the  office  of  general  services  a report
including, but not limited to, the following information:
(a) which state agencies required electronic submission  as  the  sole
method by which bids could be submitted for the period from April first,
two  thousand  twenty-three  through  March  thirty-first,  two thousand
twenty-six;
(b) the number and types of contracts for which  such  state  agencies
required electronic submission as the sole method by which bids could be
submitted  for  the  period  from April first, two thousand twenty-three
through March thirty-first, two thousand twenty-six;
(c) the estimated savings to the state  as  a  result  of  such  state
agencies  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;
(d)  to  the  extent  practicable,  the  size, industry, minority- and
women-owned   business    enterprise    composition,    service-disabled
veteran-owned    business   enterprise   composition,   and   geographic
distribution of  those  vendors  that  submitted  bids  in  response  to
solicitations  from  state  agencies where electronic submission was the
sole method by which bids could be submitted for the period  from  April
first,   two  thousand  twenty-three  through  March  thirty-first,  two
thousand twenty-six;
(e) to the extent  practicable,  the  size,  industry,  minority-  and
women-owned    business    enterprise    composition,   service-disabled
veteran-owned   business   enterprise   composition,   and    geographic
distribution  of  those  vendors  that  submitted non-electronic bids in
response  to  solicitations  from  state   agencies   where   electronic
submission  was  accepted  but  not  required  for the period from April
first,  two  thousand  twenty-three  through  March  thirty-first,   two
thousand twenty-six; and
(f)  recommendations  for  the  future  use of electronic bidding as a
permissible method of procurement.
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