Service Contract Act Section 4C

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					OGS Procurement Services Group
 2008 State Purchasing Forum




        State Finance Law
          Presenter’s Contact Information

Noreen J. VanDoren
Assistant Counsel
Office of General Services
n.vandoren@ogs.state.ny.us
(518) 474-5607



                    OGS Website:
                 www.ogs.state.ny.us

         2008 Purchasing Forum – State Finance Law
                        State Finance Law     Case
                                              Law




 Uniform
Commercial
  Code                    CONTRACT




                            Regulations


             2008 Purchasing Forum – State Finance Law
                 Overview



    State Finance Law Article 11

Governs the process for State agency
            acquisition of:

              Commodities
               Services
              Technology

     2008 Purchasing Forum – State Finance Law
           Procurement Stewardship Act
Underlying Principles and Legislative Findings
Responsibility of OGS and State Agencies in
cooperation with OSC and DOB to:
  • Provide for the wise and prudent use of public
    money in the best interests of the taxpayers of
    the state;
  • Guard against favoritism, improvidence,
    extravagance, fraud & corruption; and
  • Facilitate the efficient and timely acquisition of
    commodities and services of the highest quality
    at the lowest practicable cost within available
    resources.
         2008 Purchasing Forum – State Finance Law
 Government Procurement & Competitive Bidding

  Comprehensive Statutory Scheme
    Procurement Stewardship Act

    Article XI – State Purchasing

Section 160    Definitions
       161     State Procurement Council
       162     Preferred Sources


       2008 Purchasing Forum – State Finance Law
  Government Procurement & Competitive Bidding

Section     163         Purchasing services and
                             commodities (Sunset:
6/30/08)

            163-a       Vendor preparation of
                        specifications for technology
                        procurements; prohibitions

            163- b      Environmentally-sensitive
                        cleaning and maintenance
                        products

            164         Exemptions
           2008 Purchasing Forum – State Finance Law
Government Procurement & Competitive Bidding

Section    165      Purchasing restrictions

           166      Requirements for financed
                    equipment acquisition

           167      Transfer and disposal of
                    personal property

           168      The management of surplus
                    computer equipment




      2008 Purchasing Forum – State Finance Law
    New York State Procurement Council



The New York State Procurement Council
 was established through the passage of
    State Finance Law Section 161.

   The Council’s purpose is to review,
examine and develop improvements to the
      state’s procurement process.



      2008 Purchasing Forum – State Finance Law
        New York State Procurement Council
Procurement Guidelines
Detailed guidance to State agencies on how to
conduct procurements
   • Summarizes the multiple approaches to buy
   • Provide guidance for successful procurements
   • Provides details on various purchasing methods
   • Provides examples of good procurement
     practices
            (Currently under revision)


          2008 Purchasing Forum – State Finance Law
  Government Procurement & Competitive Bidding
Definitions - State Finance Law §160
• Commodity
• Service
• Technology
• Costs
• Price

Provides a foundation of commonly understood
concepts to apply within public procurement
infrastructure

            2008 Purchasing Forum – State Finance Law
 Government Procurement & Competitive Bidding

Invitations for Bids (IFBs)
  • Competitive Bidding Methodology
  • Primarily used for procurement of
    commodities
  • Basis for Contract Award
          - Meet specifications
          - Lowest price


       2008 Purchasing Forum – State Finance Law
 Government Procurement & Competitive Bidding

Request for Proposals (RFPs)
  • Competitive Solicitation Methodology
  • Primarily used for procurement of services and
    technology
  • Basis for Award
     - Pre-established evaluation criteria where cost
       is not necessarily the determining factor
     - “Best Value” to the purchaser is the
        determinative criteria
           (consider form, function and utility)

         2008 Purchasing Forum – State Finance Law
  Government Procurement & Competitive Bidding
Best Value
Documentation & Other Requirements
Best Practices – Before You Solicit:
   •   Document the intended basis for award (such as
       meeting mandatory requirements, “best value”
       or “lowest price”).
   •   Determine the technical and financial evaluation
       criteria and relative weight.
   •   Quantify criteria whenever possible, to optimize
       quality, cost and efficiency.
   •   Determine and document the evaluation and selection
       process.

           2008 Purchasing Forum – State Finance Law
Government Procurement & Competitive Bidding

 Main Distinction between IFB & RFP

     “Lowest Price” vs. “Best Value”
       [State Finance Law, §163]




      2008 Purchasing Forum – State Finance Law
         Procurement Lobbying Act


Before advertising the solicitation, remember:

Section 139-j Restrictions on contacts during
              the procurement process

Section 139-k Disclosure of contacts and
              responsibility of offerers


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


      2008 Purchasing Forum – State Finance Law
 Government Procurement & Competitive Bidding

“Lowest Price”
The basis for awarding contracts for commodities
among responsive and responsible offerors.
[SFL§163(1)(i)]

“Best Value”
The basis for awarding contracts for services to the
offeror which optimizes quality, cost and efficiency,
among responsive and responsible offerors. Such
basis shall reflect, wherever possible, objective and
quantifiable analysis. Services include technology.
[SFL§163(1)(j)]

          2008 Purchasing Forum – State Finance Law
 Government Procurement & Competitive Bidding
Types of Contracts [State Finance Law §163]
  • Centralized Contract
  • Agency Specific Contract
  • Preferred Sources
  • Emergency Contract
  • Single Source Contract
  • Sole Source Contract
  • Multiple Awards
  • Piggybacking
     (Adoption of Another Government Entity Contract)

          2008 Purchasing Forum – State Finance Law
 Government Procurement & Competitive Bidding

Centralized Contracts
Any contract for the purchase of
commodities or services, established or
approved by the Commissioner of General
Services as meeting the State's
requirements including, but not limited to,
any contract let by the federal government,
other state or local governments or
purchasing consortia.
[SFL§160(1)]

       2008 Purchasing Forum – State Finance Law
  Government Procurement & Competitive Bidding
Examples of Centralized Contracts:
  • Vehicles & heavy equipment
  • Pharmaceuticals & medical equipment
  • Electronic Value Transfer
    (credit cards)/procurement card
  • Fuel Oil, Gasoline, Road Salt
  • PCs
  • Rubbish Removal
  • Telecommunications Systems & Services
          2008 Purchasing Forum – State Finance Law
 Government Procurement & Competitive Bidding

Agency Specific Contracts
Specialized Requirements Needed to Meet
Agency Mission
  • Consultant Services
  • Prescription pads for DOH
  • Digital Fingerprinting Identification
  • Specialized Software
  • Entertainment Services
        2008 Purchasing Forum – State Finance Law
 Government Procurement & Competitive Bidding

Preferred Sources

“To advance special social and economic
goals, selected providers shall have
preferred source status…Procurement from
these providers shall be exempted from
competitive procurement provisions.”
[State Finance Law §162]



       2008 Purchasing Forum – State Finance Law
  Government Procurement & Competitive Bidding
Preferred Status

 • Correctional Services – Commodities
 • Agencies for the Blind – Commodities & Services
 • Agencies for the Severely Disabled
 • Special Employment for Mentally Ill
 • Disabled Veterans
 • Veterans
 • Qualified Apparel Manufacturer
       September 11th Registry (exp. 09/01/08)


         2008 Purchasing Forum – State Finance Law
 Government Procurement & Competitive Bidding

• Public List of Commodities & Services

• Approval by Procurement Council

• Price Approval –
  Not greater than 15% above Prevailing
  Market Price

• Alternate Process for Procurements of
  Apparel & Textiles

       2008 Purchasing Forum – State Finance Law
  Government Procurement & Competitive Bidding
Emergency Contracts
Procurements may be made to meet emergencies
arising from unforeseen causes without using a
formal competitive process. Such procurements
shall be made only under unusual circumstances
and shall include a determination in the
procurement record of the nature of the
emergency and that the procurement was
conducted in a fair and equitable manner.
[State Finance Law §163(10(b))]
         2008 Purchasing Forum – State Finance Law
  Government Procurement & Competitive Bidding
Single Source
A procurement in which although two or more offerors
can supply the required commodities or services, the
Commissioner or State agency, upon written findings
setting forth the material and substantial reasons
therefore, may award the contract to one offeror over
all others. 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.
[State Finance Law §163(1)(h)]
          2008 Purchasing Forum – State Finance Law
 Government Procurement & Competitive Bidding

Sole Source
Sole Source means a procurement in which
only one offeror is capable of supplying the
required commodities or services.
[State Finance Law §163(1)(g)]




        2008 Purchasing Forum – State Finance Law
   Government Procurement & Competitive Bidding
Multiple Awards
The Commissioner or State agency may elect to award a
contract to one or more responsive and responsible
offerors 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.
[State Finance Law §163(10)(c)]
           2008 Purchasing Forum – State Finance Law
  Government Procurement & Competitive Bidding

The Commissioner of General Services may authorize
purchases required by state agencies or authorized
purchasers by letting a contract 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.
[State Finance Law §163(10)(e)]

          2008 Purchasing Forum – State Finance Law
  Government Procurement & Competitive Bidding
The Commissioner of General Services is authorized
to let centralized contracts 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.
[State Finance Law §163(10)(f)]
           2008 Purchasing Forum – State Finance Law
 Government Procurement & Competitive Bidding
Under this authority, the State can recognize and use
or be a part of contracts of other public purchasers. In
most instances, these other government entities
establish their agreements using competitive
solicitations. This procurement methodology has
proven to be a tool that provides a means to meet
special requirements or to efficiently and economically
meet the needs of State agencies and Authorized
Users.
         2008 Purchasing Forum – State Finance Law
 Government Procurement & Competitive Bidding

Note:
These contracts and purchases also need to
be supported by a procurement record and
are subject to OSC approval.




        2008 Purchasing Forum – State Finance Law
 Government Procurement & Competitive Bidding

• Piggybacking Agreements
  Have provided for imaging systems,
  landscape furniture, cellular telephone
  service and mission specific consultant
  services such as Year 2000
  programming.
• Joint Agreements
  Have provided for pharmaceuticals
  (Minnesota multi-state) and traffic cones
  (New England States and New York).
        2008 Purchasing Forum – State Finance Law
      Process for Conducting Procurements


Before developing your own Solicitation,
check to see if what you need can be
obtained through:

•A Preferred Source offering

•An OGS Centralized Contract

•Another Agency’s contract

        2008 Purchasing Forum – State Finance Law
     Process for Conducting Procurements

Criteria for OGS Centralized Contracts:
• Availability of a volume discount;
• Prior use of the commodity among state
  agencies;
• Relative cost of establishing the contract;
• Anticipated use; and
• Expected actual savings for the State.


       2008 Purchasing Forum – State Finance Law
       Process for Conducting Procurements
Drafting & Issuing Agency Contracts
IFB vs. RFP

• NYS Contract Reporter Advertisement
     - Required if Contract Value Over $15,000
       [Article 4C Economic Development Law]
     - Receipt of offers minimum of fifteen business
       days after notice published

• Appendix A (Standard Clauses for State Contracts)



         2008 Purchasing Forum – State Finance Law
        Process for Conducting Procurements

Drafting & Issuing the Document
• Appendix B (OGS General Specifications for
  Procurement Contracts)
• Non-Collusive Bidding Certificate [SFL §139-d]
• MacBride Certification [SFL § 165 (5)]
• Procurement Lobbying Certification [SFL §139 j & k]

• Responsibility Questionnaire [SFL §163 (9)(f)]
• Sales Tax Certification [Tax Law § 5-a]
• Consultant Disclosure [SFL §163 (4) (g)]

           2008 Purchasing Forum – State Finance Law
   Government Procurement & Competitive Bidding
Discretionary Thresholds for Purchasing
[SFL §163(6)]


• State Agencies up to $50,000                 (OGS $85,000)


• State Agencies up to $100,000
        - For recycled or remanufactured
          commodities or technology
        - From small businesses
        - From ESDC certified minority/
          women-owned business enterprises
                2008 Purchasing Forum – State Finance Law
Government Procurement & Competitive Bidding

Vendor preparation of specifications for
 technology procurements; prohibitions
  – Does not apply where:
     • Sole or Single source
     • Multiple vendors involved in preparation
     • Vendor furnished specs or info but was not
       directly requested to write specs for the
       agency proposal
     • Agency and Office For Technology determine
       restriction is not in the best interest of the
       state. [SFL § 163-a]

        2008 Purchasing Forum – State Finance Law
Government Procurement and Competitive Bidding

Bid Evaluation Approvals
Required Approvals
  • Department of Law
  • Specialty Contracts
          - Civil Service
          - Office for Technology
          - Division of the Budget

       2008 Purchasing Forum – State Finance Law
Government Procurement and Competitive Bidding


 Required Approvals cont’d:

 • Office of the State Comptroller -
   Over $50,000 most state agencies.
   (OGS $85,000; SUNY Flex)




       2008 Purchasing Forum – State Finance Law
Government Procurement and Competitive Bidding

Other Relevant Laws

    Section 138 State Finance Law
    Non-Assignment of State Contracts

    Section 220 and 240 Labor Law
    Prevailing Wage Rate

    Article 2 Uniform Commercial Code
    Sales

       2008 Purchasing Forum – State Finance Law
   Government Procurement and Competitive Bidding


  Other Relevant Laws

Diesel Emissions Reduction Act
 Section 19-0323 Environmental Conservation Law


Mercury-added Consumer Products Law
 Article 27, Title 21 Environmental Conservation Law




        2008 Purchasing Forum – State Finance Law
            Questions




2008 Purchasing Forum – State Finance Law
          Presenter’s Contact Information

Noreen J. VanDoren
Assistant Counsel
Office of General Services
n.vandoren@ogs.state.ny.us
(518) 474-5607



                    OGS Website:
                 www.ogs.state.ny.us

         2008 Purchasing Forum – State Finance Law

				
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Description: Service Contract Act Section 4C document sample