procurement and disbursement guidelines Office of the New York

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					                STATE OF NEW YORK
                OFFICE OF THE STATE COMPTROLLER

                PROCUREMENT AND
                   DISBURSEMENT GUIDELINES
BULLETIN:       G-224
SUBJECT:        Procurement Lobbying Act
DATE:           Updated June 14, 2006


Purpose of Update:     This bulletin is being updated in order to reflect a change in the
                       form agencies need to submit to OSC as a part of their
                       procurement record, the “Governmental Entity Representation
                       Concerning Compliance with State Finance Law §§139-j and 139-
                       k”.

                       While the Procurement Lobbying Act requires disclosure of prior
                       findings of non-responsibility for violations of State Finance Law
                       (SFL) 139-j and 139-k from all offerers, OSC procurement record
                       requirements are being simplified so that an agency does not have
                       to submit the disclosure documents from the unsuccessful offerors
                       with the contract package. Instead, the form “Governmental Entity
                       Representation Concerning Compliance with State Finance Law
                       §§139-j and 139-k” has been modified to add a place for the
                       agency to note the name(s) of any offerors who disclosed findings
                       of non-responsibility for violations of SFL 139-j and 139-k. Please
                       use the new form effective immediately

Purpose:               On August 23, 2005, the Legislative Law and the State Finance
                       Law (SFL) were amended to include provisions for the regulation
                       of attempts to influence State and other governmental entity
                       procurement contracts. Sections 139-j and 139-k of the SFL
                       impose new procurement record requirements relating to lobbying
                       on procurement contracts.        For State agencies and public
                       authorities whose contracts are subject to the Comptroller’s
                       approval, the Office of the State Comptroller (OSC) will examine
                       the contract package to ensure that these new requirements are
                       included in the procurement record.

                       The purpose of this bulletin is to assist State agencies and public
                       authorities in complying with SFL §§ 139-j and 139-k by outlining
                       the new procurement record requirements of those sections. In
                       addition, this bulletin includes a form that State agencies and
                       public authorities shall complete and submit in order to facilitate
                       the Comptroller’s contract review.



                                                                            Page 1 of 9
                 STATE OF NEW YORK
                 OFFICE OF THE STATE COMPTROLLER

                 PROCUREMENT AND
                    DISBURSEMENT GUIDELINES
BULLETIN:        G-224
SUBJECT:         Procurement Lobbying Act
DATE:            Updated June 14, 2006


Contracts Subject to
this Bulletin:          Subject to limited exceptions, all contract transactions with
                        estimated annualized expenditures in excess of $15,000 resulting
                        from procurement transactions initiated on or after January 1, 2006
                        are subject to the new procurement lobbying requirements and
                        additional procurement record requirements.

                        The SFL defines a procurement contract as any contract or other
                        agreement for an article of procurement involving an estimated
                        annualized expenditure in excess of fifteen thousand dollars.
                        Under the new law, grants, SFL Article XI-B contracts,
                        intergovernmental agreements, railroad and utility force accounts,
                        utility relocation project agreements or orders and eminent domain
                        transactions are not deemed to be procurement contracts.

                        Subject to certain exceptions, an assignment, amendment, renewal
                        or extension of a procurement contract or any material change in a
                        procurement contract resulting in a financial benefit to the offerer
                        is a governmental procurement covered by the provisions of the
                        Act.

                        The law excludes amendments that are “authorized and payable”
                        under the terms of the original procurement contract as it was
                        finally awarded or approved by the Comptroller. A few examples
                        of amendments that are “authorized and payable” are: a lease
                        agreement that may be extended for a stated period of time at the
                        rent provided for in the original lease or at that rent plus an
                        escalator; or a highway contract that authorizes change orders that
                        are subject to unit pricing.

                        We note that backdrop contracts, and any contracts resulting from
                        mini-bids pursuant to the backdrop contracts, are also subject to
                        this law.




                                                                              Page 2 of 9
               STATE OF NEW YORK
               OFFICE OF THE STATE COMPTROLLER

               PROCUREMENT AND
                  DISBURSEMENT GUIDELINES
BULLETIN:      G-224
SUBJECT:       Procurement Lobbying Act
DATE:          Updated June 14, 2006


Procurement Record
and Contract
Requirements for
Audit by OSC:         As stated above, SFL §139-j and SFL §139-k impose additional
                      procurement record requirements. These requirements must be
                      satisfied when submitting contracts to OSC for its approval.

                      OSC has developed the attached form “Governmental Entity
                      Representation Concerning Compliance with State Finance Law
                      §§139-j and 139-k” which shall be used by contracting entities in
                      providing the representations outlined in numbers 1 through 6
                      below. The completed and signed form shall be included in the
                      procurement record submitted with contract transactions sent to
                      OSC for review and approval:

                      1.   Vendor Responsibility Determination
                           The procurement record for every contract must continue to
                           include a determination that the offerer is responsible in
                           accordance with Comptroller’s Bulletin G-221 on Vendor
                           Responsibility. In addition to the general responsibility
                           determination required under SFL §163(9)(f), SFL §139-j and
                           §139-k require that the procuring entity make a separate
                           responsibility determination as to whether the offerer has: (i)
                           knowingly and willfully violated the prohibitions against
                           impermissible contacts or certain ethics provisions, or failed
                           to timely disclose accurate and complete information or
                           otherwise failed to cooperate with the procuring entity; or (ii)
                           failed to disclose prior determinations of non-responsibility
                           for any of the above reasons within the previous four (4) years
                           by any governmental entity.

                      2.   Offerer Certification; Complete Disclosure
                           Every procurement record must include a disclosure by
                           offerers with regard to non-responsibility determinations
                           within the past four (4) years based on: (i) impermissible
                           contacts or other violations of SFL §139-j; or (ii) the


                                                                             Page 3 of 9
                      STATE OF NEW YORK
                      OFFICE OF THE STATE COMPTROLLER

                      PROCUREMENT AND
                         DISBURSEMENT GUIDELINES
BULLETIN:             G-224
SUBJECT:              Procurement Lobbying Act
DATE:                 Updated June 14, 2006


                                        intentional provision of false or incomplete information to a
                                        governmental entity. (Note: To satisfy the requirement
                                        regarding offerers’ disclosure, the governmental entity must
                                        specifically request information regarding prior findings of
                                        non-responsibility for violations of SFL §139-j or SFL §139-
                                        k. A general request for prior findings of non-responsibility is
                                        not sufficient.) In addition, any procurement contract award
                                        shall contain a certification by the offerer that the information
                                        provided to the procuring entity was complete, true and
                                        accurate.

                                   3.   Contract Clause; Termination Provision
                                         All procurement contracts must contain a provision
                                         authorizing the agency to terminate the contract if the
                                         certification (see preceding paragraph) is found to be
                                         intentionally false or intentionally incomplete.         (Note:
                                         General contract termination provisions, such as the authority
                                         to terminate for convenience, will not satisfy this
                                         requirement.     The contract provision must specifically
                                         authorize termination if the certification is subsequently
                                         found to be intentionally false or intentionally incomplete.)

                                   4.     Agency Policy and Prohibitions Regarding Permissible
                                          Contacts; Inclusion in Solicitation/Bid Documents
                                          New SFL §139-j restricts contacts1 by offerers2 with any
                                          governmental entity3 regarding procurement contracts.4

1
 SFL §139-j(1)(c) defines “contacts” as “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 procurement.”
2
  SFL §139-j(1)(h) defines “offerer” as “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.”
3
  SFL §139-j(1)(a) defines “governmental entity” as “(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


                                                                                                   Page 4 of 9
                       STATE OF NEW YORK
                       OFFICE OF THE STATE COMPTROLLER

                       PROCUREMENT AND
                          DISBURSEMENT GUIDELINES
BULLETIN:              G-224
SUBJECT:               Procurement Lobbying Act
DATE:                  Updated June 14, 2006


                                           Subject to certain exceptions set forth in SFL §139-j(3),
                                           contacts between offerers and governmental entity personnel,
                                           other than the governmental entity’s designated contact
                                           person(s), are prohibited during the restricted period5 of the
                                           governmental procurement.6

                                           Every governmental entity must incorporate a summary of
                                           the entity’s policy and prohibitions regarding permissible
                                           contacts during a governmental procurement and a copy of
                                           the governmental entity’s procedures into the solicitation or
                                           bid documents for all procurement contracts. The policy
                                           must provide that if a member, officer, or employee of a
                                           governmental entity becomes aware that an offerer has
                                           violated the permissible contact provisions of the new law,
                                           such person shall immediately notify the Ethics Officer,
                                           Inspector General, or other official of the procuring


legislature; (3) the unified court system; (4) any public authority, public benefit corporation or commission created
by or existing pursuant to the public authorities law; (5) any public authority or public benefit corporation, at least
one of whose members is appointed by the governor or who serves as a member by virtue of holding a civil office of
the state; (6) a municipal agency, as that term is defined in paragraph (ii) of subdivision (s) of section one-c of the
legislative law; or (7) a subsidiary or affiliate of such a public authority.”
4
  SFL §139-j(1)(g) defines “procurement contract” as “any contract or other agreement for an article of procurement
involving an estimated annualized expenditure in excess of fifteen thousand dollars.”
5
 SFL §139-j(1)(f) defines “restricted period” as “the period of time commencing with the earliest written notice,
advertisement or solicitation of a request for proposal, invitation for bids, or solicitation of proposals, or any other
method for soliciting a response from offerers intending to result in a procurement contract with a governmental
entity [and terminating] with the final contract award and approval by the governmental entity and, where
applicable, the state comptroller.”
6
  SFL §139-j(1)(e) and §139-k(1)(e) define “governmental procurement” as “(i) the preparation or terms 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.”


                                                                                                       Page 5 of 9
                STATE OF NEW YORK
                OFFICE OF THE STATE COMPTROLLER

                PROCUREMENT AND
                   DISBURSEMENT GUIDELINES
BULLETIN:       G-224
SUBJECT:        Procurement Lobbying Act
DATE:           Updated June 14, 2006


                             governmental entity responsible for investigation of such
                             violations.

                       5.    Affirmation of Compliance; Written Agency Procedures
                             All offerers must provide a written affirmation that the
                             offerer understands and agrees to comply with the
                             governmental entity’s procedures relating to permissible
                             contacts during the procurement.

                       6.    Record of Contacts
                             For each procurement contract, SFL §139-k requires that all
                             contacts between an offerer and a governmental entity during
                             the restricted period be recorded and made a part of the
                             procurement record.

Where to Obtain
More Information:      Assistance with questions regarding OSC's procurement record
                       requirements is available by contacting the Office of the State
                       Comptroller’s Bureau of Contracts:

                       Telephone: (518) 474-6494
                       Fax: (518) 474-8030

                       For additional information regarding applicability and
                       requirements of SFL §§ 139-j and 139-k, State agencies and public
                       authorities may consult the model guidelines and forms published
                       by the Advisory Council on Procurement Lobbying which are
                       available on the OGS website at:

                       http://www.ogs.state.ny.us/aboutOgs/regulations/defaultAdvisoryCouncil.html


                       List of Offerers Determined to be Non-responsible bidders
                       Maintained by the Office of General Services under State Finance
                       Law § 139-j(10)(b)



                                                                                     Page 6 of 9
            STATE OF NEW YORK
            OFFICE OF THE STATE COMPTROLLER

            PROCUREMENT AND
               DISBURSEMENT GUIDELINES
BULLETIN:   G-224
SUBJECT:    Procurement Lobbying Act
DATE:       Updated June 14, 2006


                   http://www.ogs.state.ny.us/aboutogs/regulations/advisoryCouncil/NonResponsible.htm

                   List of Debarred Offerers Maintained by the Office of General
                   Services under State Finance Law § 139-j(10)(b)

                   http://www.ogs.state.ny.us/aboutogs/regulations/advisoryCouncil/Debarred.htm




                                                                                       Page 7 of 9
                 OFFICE OF THE STATE COMPTROLLER
                        BUREAU OF CONTRACTS
GOVERNMENTAL ENTITY REPRESENTATION CONCERNING COMPLIANCE WITH STATE
                     FINANCE LAW §§139-j AND 139-k

Agency Code: _________________________________________________________________
Agency/Authority Name: _______________________________________________________
Contractor Name: _____________________________________________________________
Contract No. or P.O. No.: _______________________________________________________
Amendment No.:_______________________________________________________________
Batch No.:____________________________________________________________________

I am a duly authorized representative of the above governmental entity. To the best of my knowledge,
information and belief, pursuant to the requirements of State Finance Law (SFL) §§139-j and 139-k, the
governmental entity for this procurement has:

          •   Issued and complied with its policies and procedures with respect to permissible contacts and
              any determinations made for violations thereof and has included such policies and procedures
              as part of the solicitation/bid documents;

          •   Issued policies and procedures in connection with the recording of all “contacts” received
              during the “restricted period” as those terms are defined under SFL §§ 139-j and 139-k, and is
              not aware of any “contacts” that were not recorded as required and included in the
              procurement record submitted to OSC;

          •   Received from all offerers the required (i) disclosure regarding prior findings of non-
              responsibility for violations of SFL §§ 139-j or 139-k; (ii) written affirmation of
              understanding and agreement to comply with the governmental entity’s policies and
              procedures relating to permissible contacts;

          •   If any offerors have disclosed a prior finding of non-responsibility for violations of §§ 139-j
              or 139-k, I have noted them below:

              _________________________________________________________________

              _________________________________________________________________

          •   Received from the winning vendor a certification as to the completeness, truth and accuracy
              of all information provided to the governmental entity and included such documentation in the
              procurement record submitted to OSC;

          •   Included in the contract a provision authorizing termination if the certification referenced
              above is found to be intentionally false or intentionally incomplete;




                                                                                         Page 8 of 9
           •   Reviewed the New York State Office of General Services published list of non-responsible
               and debarred vendors for violations of SFL §§139-j and 139-k and considered such
               information in its determination of responsibility of the proposed vendor;

           •   Except as otherwise indicated, found no knowing and willful violations of the requirements
               regarding permissible contacts or other provisions of SFL §§139-j or 139-k;

           •   If applicable, documented in the procurement record submitted to OSC (i) the basis for
               finding the proposed vendor in this procurement non-responsible for violations of SFL
               §§139-j or 139-k; (ii) the due process afforded such vendor; and (iii) that such finding was
               reported to OGS, as required;

Based upon the above information and representations, the governmental entity has determined, for purposes
of SFL §§139-j and 139-k only that the proposed vendor for the above identified governmental procurement
is:

                Responsible                                 Non-responsible

(This responsibility determination by the governmental entity must also be reported on the Vendor
Responsibility Profile, if one is required for this transaction.)

           •   If applicable, documented in the procurement record submitted to OSC the basis for awarding
               a contract to the proposed vendor notwithstanding the governmental entity’s determination
               that the proposed vendor is non-responsible for violations of SFL §§ 139-j or 139-k.

           •   Documented in the procurement record submitted to OSC (i) the basis for finding any other
               offerer in this procurement non-responsible for violations of SFL §§139-j or 139-k; (ii) the
               due process afforded such offerer; and (iii) that such finding was reported to OGS, as
               required.

           Name(s) and Federal Identification number(s) of such Offerer(s)
           ______________________________________________________________________________
           ______________________________________________________________________________
           ___________________________________________________

____________                                        ___________________________________
Date                                                Authorized Signatory

Name: ________________________________________________________________________
      (printed or typed)                        Title

Direct Telephone Number (including area code): _____________________________________

E-mail Address: _______________________________________________________________

Mailing Address: _______________________________________________________________



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