2023 New York Laws › STF - State Finance › Article 9 - Contracts › 139-K - Disclosure of Contacts and Responsibility of Offerers.

* §  139-k.  Disclosure of contacts and responsibility of offerers. 1.
  For purposes  of  this  section,  the  following  terms  will  have  the
  following meanings unless specified otherwise.
a.  "Governmental  entity"  shall  mean:  (1)  any  department, board,
  bureau, commission, division, office, council, committee or  officer  of
  the  state,  whether permanent or temporary; (2) each house of the state
  legislature; (3) the unified court system;  (4)  any  public  authority,
  public benefit corporation or commission created by or existing pursuant
  to  the public authorities law; (5) a public authority or public benefit
  corporation, at least one of whose members is appointed by the  governor
  or  who  serves  as  a member by virtue of holding a civil office of the
  state; (6) municipal agency, as that term is defined in  paragraph  (ii)
  of  subdivision  (s)  of  section one-c of the legislative law; or (7) a
  subsidiary or affiliate of such a public authority.
b.  "Article  of  procurement"  shall  mean  a   commodity,   service,
  technology,  public  work, construction, revenue contract, the purchase,
  sale or lease of real property or an acquisition or  granting  of  other
  interest  in  real  property,  that  is  the  subject  of a governmental
  procurement.
c. "Contacts" shall mean any oral, written or electronic communication
  with a governmental entity under circumstances where a reasonable person
  would infer  that  the  communication  was  intended  to  influence  the
  governmental  entity's  conduct  or  decision regarding the governmental
  procurement.
d. "Proposal" shall mean any bid, quotation, offer or  response  to  a
  governmental   entity's   solicitation  of  submissions  relating  to  a
  procurement.
e. "Governmental procurement" shall mean: (i) the public announcement,
  public notice, or public communication to  any  potential  vendor  of  a
  determination  of a need for a procurement, which shall include, but not
  be limited to,  the  public  notification  of  the  specifications,  bid
  documents,   request   for  proposals,  or  evaluation  criteria  for  a
  procurement contract, (ii)  solicitation  for  a  procurement  contract,
  (iii) evaluation of a procurement contract, (iv) award, approval, denial
  or  disapproval  of a procurement contract, or (v) approval or denial of
  an assignment, amendment (other than amendments that are authorized  and
  payable  under  the  terms of the procurement contract as it was finally
  awarded or approved by  the  comptroller,  as  applicable),  renewal  or
  extension of a procurement contract, or any other material change in the
  procurement contract resulting in a financial benefit to the offerer.
f.  "Restricted  period" shall mean the period of time commencing with
  the earliest posting, on a governmental entity's website, in a newspaper
  of general circulation, or in the procurement  opportunities  newsletter
  in  accordance  with  article  four-C of the economic development law of
  written notice, advertisement or solicitation of a request for proposal,
  invitation for bids, or solicitation of proposals, or any  other  method
  provided  for  by  law  or  regulation  for  soliciting  a response from
  offerers  intending  to  result  in  a  procurement  contract   with   a
  governmental  entity  and  ending  with  the  final  contract  award and
  approval by the governmental entity and,  where  applicable,  the  state
  comptroller.
g.  "Procurement contract" shall mean any contract or other agreement,
  including an amendment,  extension,  renewal,  or  change  order  to  an
  existing  contract  (other  than  amendments,  extensions,  renewals, or
  change orders that are authorized and payable under  the  terms  of  the
  contract  as  it  was finally awarded or approved by the comptroller, as
  applicable), for  an  article  of  procurement  involving  an  estimated
  annualized  expenditure  in  excess of fifteen thousand dollars. Grants,

  article eleven-B state finance law contracts, program contracts  between
  not-for-profit  organizations,  as  defined  in article eleven-B of this
  chapter, and the unified  court  system,  intergovernmental  agreements,
  railroad   and   utility  force  accounts,  utility  relocation  project
  agreements or orders, contracts governing organ  transplants,  contracts
  allowing  for  state  participation  in a trade show, and eminent domain
  transactions shall not be deemed procurement contracts.
h. "Offerer" shall mean the individual or  entity,  or  any  employee,
  agent  or  consultant  or  person acting on behalf of such individual or
  entity,  that  contacts  a  governmental  entity  about  a  governmental
  procurement   during   the   restricted   period  of  such  governmental
  procurement whether or not the caller has a financial  interest  in  the
  outcome  of  the  procurement;  provided,  however,  that a governmental
  agency or its employees that  communicates  with  the  procuring  agency
  regarding  a  governmental  procurement in the exercise of its oversight
  duties shall not be considered an offerer.
i. "Revenue contract" shall  mean  any  written  agreement  between  a
  governmental entity, as that term is defined in subparagraphs one, four,
  five,  six  or  seven of paragraph a of this subdivision, and an offerer
  whereby the governmental entity  gives  or  grants  a  concession  or  a
  franchise.
j.  "Unified  court  system"  shall,  for the purposes of this section
  only, mean the unified court system of the state of  New  York,  or  the
  office  of  court administration, where appropriate, other than town and
  village justice courts in jurisdictions with a  population  under  fifty
  thousand, when it acts solely in an administrative capacity to engage in
  governmental procurements and shall not include the unified court system
  or  any  court  of  the  state judiciary when it acts to hear and decide
  cases of original or appellate jurisdiction or  otherwise  acts  in  its
  judicial, as opposed to administrative, capacity.
2.   Each  governmental  entity  shall  ensure  that  solicitation  of
  proposals or bid documents or specifications, or contract documents,  as
  applicable, for procurement contracts shall require offerers to disclose
  findings  of  non-responsibility  made within the previous four years by
  any governmental entity where such prior finding  of  non-responsibility
  was due to: (a) a violation of section one hundred thirty-nine-j of this
  article,  or  (b)  the  intentional  provision  of  false  or incomplete
  information to a governmental entity.
3. The failure of an offerer to timely disclose accurate  or  complete
  information to a governmental entity pursuant to subdivision two of this
  section   shall  be  considered  by  such  governmental  entity  in  its
  determination of the responsibility  of  such  offerer.  No  procurement
  contract shall be awarded to any such offerer, its subsidiaries, and any
  related   or  successor  entity  with  substantially  similar  function,
  management, board of directors, officers and shareholders  (hereinafter,
  for   the   purposes   of   this  subdivision,  "offerer"),  unless  the
  governmental entity finds that the award of the procurement contract  to
  the  offerer is necessary to protect public property or public health or
  safety, and that the offerer is the only source capable of supplying the
  required  article  of  procurement  within  the   necessary   timeframe,
  provided,  that the governmental entity shall include in the procurement
  record a statement describing the basis for such a finding.
4. Upon any contact in the restricted period, the governmental  entity
  shall  obtain  the  name,  address, telephone number, place of principal
  employment and occupation of  the  person  or  organization  making  the
  contact and inquire and record whether the person or organization making
  such  contact was the offerer or was retained, employed or designated by
  or on behalf of the offerer to appear before or contact the governmental

  entity about the governmental procurement. All recorded  contacts  shall
  be included in the procurement record for the procurement contract.
5.  Any  procurement  contract award subject to the provisions of this
  section and section one hundred  thirty-nine-j  of  this  article  shall
  contain  a certification by the offerer that all information provided to
  the procuring governmental  entity  with  respect  to  this  section  is
  complete,  true  and  accurate, and each such procurement contract shall
  contain a provision authorizing the  governmental  entity  to  terminate
  such   contract   in  the  event  such  certification  is  found  to  be
  intentionally false or intentionally incomplete. The governmental entity
  shall include in the procurement record a statement describing the basis
  for any action taken pursuant to such termination provision.
6. Any communications received by a governmental entity  from  members
  of  the  state  legislature, or legislative staffs, when acting in their
  official capacity, shall not be considered to be a "contact" within  the
  meaning  of  this  section  and  shall not be recorded by a governmental
  entity pursuant to this section.
* NB Repealed July 31, 2026