2. Office of General Services lisa.fox@ogs.state.ny.us (518) 474-0571
Presenter’s Contact Information
Lisa Fox
Legal Services
Office of General Services
(518)
OGS Website

3. What is Procurement Lobbying? What is the purpose of this law?
Questions
What is Procurement Lobbying?
What is the purpose of this law?
How does Procurement Lobbying
impact the governmental procurement
process?

4. What is the Procurement Lobbying Law?
Two provisions of law separately addressing different aspects of the procurement process
Legislative Law
Interpreted and enforced by the NYS Temporary Commission on Lobbying – focus on the actions of registered lobbyists and clients
State Finance Law §139-j and §139-k
Addresses actions of Governmental Entities and the business community

5. Advisory Council on Procurement Lobbying
Guidance, model forms, language and
other materials on the State Finance Law
provisions are present on the internet at:
regulations/defaultAdvisoryCouncil.html
Use website and materials to educate staff
and the business community regarding these
legal requirements

6. The Purpose of the Procurement Lobbying Law
It develops standard governmental
procurement practices about:
- the kinds of information to be
provided to the business community
obtained from the business
community
- the kinds of information to be made
part of the formal record for a
procurement

7. The Purpose of the Procurement Lobbying Law
It imposes standard requirements on the business community about:
- Where the business community can
direct its advocacy efforts about a
procurement contract
> Designated Contact(s)
> Permissible Subject Matter Communications
- An Offerer is limited in who it can
Contact

8. The Purpose of the Procurement Lobbying Law
It imposes new consequences if an Offerer has impermissible Contacts:
possible no award of contract
possible finding of non-responsibility
possible debarment
No proposals submitted or
contracts awarded for a 4 year
period

9. The Purpose of the Procurement Lobbying Law
Builds on the pre-existing requirements governing
procurement activities, such as State Finance Law
Articles 9 and 11, the Freedom of Information Law,
the Open Meeting Law and, Public Officers Law
Code of Conduct
Formalizes and standardizes practices already in
place documenting the procurement process and
clarifies responsibilities and expectations when
expending public funds
Emphasis on open, transparent, and fair
procurement process

10. Applicability of State Finance Law Provisions
Every State Agency
Public Authorities of which at least one
member is appointed by the Governor
Unified Court System
Legislature
Certain Industrial Development Agencies
Public Benefit Corporations

11. Procurement (commodities, services and technology)
Types of Contracts Subject to the Law
Construction
Procurement (commodities, services and
technology)
Real Estate (purchase, sale, lease of real property
including interest therein.)
Certain Revenue Contracts
Assignments, renewals, extensions and certain
amendments
when the estimated annualized
expenditure will exceed $15,000

12. Types of Contracts Subject to the Law (continued)
Definition of Procurement Contract expressly
exempts
- Grants
- SFL Article 11-B contracts
- Intergovernmental agreements
- Railroad and utility force accounts
- Utility relocation agreements
- Eminent domain transactions

13. State Finance Law Provisions of the Procurement Lobbying Law
General Rule is:
- State Finance Law recognizes that
communications are necessary to the conduct of Government Procurement
- There are different kinds of communications
- Certain kinds of communications (referred to
as Contacts) with Government Entities
about Procurement Contracts have specific
rules during certain time periods (Restricted
Period)

14. Restricted Period for a Competitively Bid State Agency Contract
(limits who can
receive Contacts)
Approval of
contract
by OSC
Definition of
business need
Ad in Contract
Reporter

15. What Communications Must Be Recorded Under this Law?
Not all communications are Contacts!
A Contact is an
- oral, written or electronic communication
- with a Governmental Entity
- under circumstances where a reasonable person would infer
- the communication was intended to
influence the Governmental Procurement

16. What Communications Must Be Recorded Under this Law?
Obligation is to record ALL Contacts
Whether a communication is a Contact depends
on several factors
- Is there a procurement contract/
transaction?
> Generally speaking, receipt of “cold” marketing material is not a procurement contract and does not trigger these requirements.

17. What Communications Must Be Recorded Under this Law?
- Is it a covered transaction?
> See prior listing for exempt transactions
- What is the value of the transaction?
> The requirements are only applicable if the estimated annualized value exceeds $15,000
- Is there a Restricted Period?
> Has there been a written notice or other solicitation for a proposal?
> Has the contract received its final approval?

18. What Communications Must Be Recorded Under this Law?
- Who was the communication from?
> Communications from the members or staff NYS Legislature (on non-legislative procurements) in their official capacity are not Contacts and shall not be recorded under the SFL
> Offerer – individual or entity, or
employee, agent or consultant or person acting on behalf of such individual or entity, that contacts a Governmental Entity during the Restricted Period about a
Governmental Procurement

19. What Communications Must Be Recorded Under this Law?
Does the communication constitute a Contact?
- Statute defines the term
- Number of factors to consider
- “Reasonable person” standard
- Consider totality of the circumstances

20. What Communications Must Be Recorded Under this Law?
Applying the “reasonable person test,” factual
exchanges of information are generally not
Contacts
- When is the bid due?
- Where is the bid due?
Communications that a reasonable person would
probably consider an attempt to influence
- You should award the bid to my company because…

21. What Communications Must Be Recorded Under this Law?
If the communication is a Contact, then:
1. Complete a Record of Contact – document that collects the statutorily required
information about the person Contacting
2. Place each Record of Contact in the
procurement record
3. Determine if there is a requirement to report/refer for review and investigation
because it is an impermissible Contact

22. What Communications Must Be Recorded Under this Law?
Who can receive Contacts during the
Restricted Period?
- Designated Contact(s)
- Permissible Subject Matter Communications
An Offerer is limited in who it can Contact

23. Person or persons identified by a Governmental
Designated Contact
Person or persons identified by a Governmental
Entity who may be Contacted by Offerers about a
procurement
Designated Contact may receive all
communications from Offerers, including attempts
to influence (Contacts)
Communications to Designated Contact are
limited by Public Officers Law and Penal Law
(i.e., bribery)

24. Permissible Subject Matter Communications
State Finance Law §139-j(3)(a) recognizes a
specific series of communications and Contacts
that can go to other than the Designated
Contacts
Important that Offerer’s Contacts be limited to the
specific subject matter
These Contacts are with the procuring
Governmental Entity and other Governmental
Entities

25. Permissible Subject Matter Communications
#1 - submission of a written proposal from an Offerer
#2 - submission of written questions in accordance with the solicitation, that must include sending all responses to all Offerers
#3 - participation in a conference provided for in a solicitation

26. Permissible Subject Matter Communications (continued)
#4 - complaints by an Offerer that the Designated Contact has not been responsive filed in writing to Counsel’s Office
#5 - negotiation of a Procurement Contact after tentative award
#6 - review of a procurement contract award (debriefings)

27. Permissible Subject Matter Communications #7 (a) – (d)
#7 - protests, appeals or other review proceedings, such as judicial proceedings or allegations of improper conduct.
Category includes the ability of an Offerer to file a written protest, appeal or complaint to OSC during the process of contract approval

28. Review and Investigation Process
Whether a Contact is impermissible and must be reported/referred for investigation depends on the person’s role in the procurement
Remember that the Law limits the Offerer’s permissible Contacts
Four principal roles in the procurement process

29. Four Principal Roles in the Procurement Process
Designated Contact(s) –
those employees specifically named to receive all communications from the Offerers during the Restricted Period, including Contacts
report/refer all Contacts that violate Public Officers Law or Penal Law

30. Four Principal Roles in the Procurement Process
Permissible Subject Matter Communications
those employees who may receive only specific subject matter communications during Restricted Period
report/refer all Contacts that are outside of the specific subject matter

31. Four Principal Roles in the Procurement Process
All other employees of procuring entity
may only receive factual inquiries
(not Contacts)
report/refer all Contacts
Control agencies and other governmental
entities
only may receive specific subject matter
Contacts from Offerer during the Restricted
Period report/refer all Contacts that are
outside of the specific subject matter
SFL section 139-j(8) requires any employee of a governmental entity that is not the procuring governmental entity who becomes aware that an Offerer has violated the permissible contacts requirements to immediately notify its ethics officer, inspector general (if any) or other official of its agency. Such person shall in turn notify the official responsible for investigating at the procuring governmental agency.
Control agencies can also receive factual inquiries.

32. Offerer can always Contact Designated Contact
Net Result
Offerer can always Contact Designated Contact
Offerer cannot Contact other employees or governmental entities unless falls within one of the permissible subject matters (SFL §139-j(4))
For example, okay to file written protest or
complaint with OSC, but not to otherwise
Contact
Cannot Contact DOB to complain about a
procurement

33. What is the Report/Referral Process?
Each Governmental Entity is obligated to develop policies and procedures on the review and investigation process
Process will identify who is obligated to review and investigate in accordance with the law
At OGS, the process is set out on the internet.
Indicate what we require

34. Review and Investigation
Offerer is given reasonable notice that an investigation is ongoing and an opportunity to be heard
Purpose is to determine
- if an impermissible Contact occurred;
- who made the impermissible Contact; and
- whether the Offerer’s impermissible Contact was knowing and willful

35. 1st Finding
If there is a finding that an Offerer knowingly and willfully violated the requirements about permissible Contacts, Offerer is determined to be “non-responsible” and no award. However, award can be made if two specific statutory requirements are established
First finding of non-responsibility results in the Offerer being listed on the OGS maintained list of bidders determined to be non-responsible

36. 2nd Finding
Second finding of non-responsibility within four year period results in debarment of Offerer
Offerer is listed on the OGS maintained list of bidders debarred due to violations of this statute
Offerer ineligible to submit a proposal or be
awarded any Procurement Contract for a period
of four years from the second determination
Note that it is NOT 2 findings with the same agency. It is 2 findings across covered parties.

37. Notification Requirement
Immediately notify OGS if an Offerer is
determined to be non-responsible or debarred
under this law
Office of the General Counsel
NYS Office of General Services
41st Floor - Corning Tower
Albany, New York 12242
Telephone (518)
Facsimile (518)

38. Review the kinds of transactions commonly engage
Recipe for Success for Governmental Entities
Review the kinds of transactions commonly engage
in and determine the scope of application
for State Finance Law
Undertake business analysis of your existing
policies and procedures for conducting procurement
- You may find that you already conduct the functional equivalent
Single point of contact = Designated Contact
Requirement to record all significant actions

39. Review procurement policy for clarity on when a
Recipe for Success
Review procurement policy for clarity on when a
procurement is commenced, especially non-
competitive procurements (i.e., single and sole
source)
Identify your review proceeding and dispute
resolution proceeding and make known to the
business community

40. Review solicitation documents to ensure clearly
Recipe for Success
Review solicitation documents to ensure clearly
address the permissible subject matter categories
- Formalize processes used to exchange
information with the business community
- Incorporate the summary of policy,
certification, affirmation and non-
responsibility requirements into all relevant
procurement documents

41. Be familiar with your agency’s required policies
Recipe for Success
Be familiar with your agency’s required policies
and procedures, such as
- Determining Designated Contacts
- Policy on permissible Contacts
- Policy on review and investigation of possible impermissible Contacts
- Policy on notifying OGS about SFL §§139-j and 139-k non-responsibility
determinations and debarment

42. Provide training and access to resources to
Recipe for Success
Provide training and access to resources to
staff – especially on the Restricted Period and the
need to direct communications to the Designated
Contacts
Provide information to business community on
these new requirements - use solicitation and
other means

43. Questions ?

44. Office of General Services lisa.fox@ogs.state.ny.us (518) 474-0571
Presenter’s Contact Information
Lisa Fox
Legal Services
Office of General Services
(518)
OGS Website: