Provides that an unsuccessful offerer may additionally request a written explanation comparable to such debriefing to be provided by mail or electronic mail, which the state agency shall provide within sixty days of the offerer's request for a written explanation; lengthens the period in which a debriefing shall be requested by the unsuccessful offerer and the length of time in which a state agency must respond from 15 days to 30 days.
NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A9753
SPONSOR: Bichotte Hermelyn TITLE OF BILL:
An act to amend the state finance law, in relation to the debriefing of
certain contracts
PURPOSE OR GENERAL IDEA OF BILL:
The purpose of this bill is to provide MWBEs which have had bids
rejected with the knowledge they need to secure state contracts in the
future, without the hassel of requesting such information
SUMMARY OF SPECIFIC PROVISIONS:
Section 1 requires the Director of the Division of Minority and Women's
Business Development to promulgate rules regulations requiring all
contracting agencies to promptly provide written and email notice to
unsuccessful bidders that are MWBEs notifying them that they were not
selected and the reasons why, and to disclose the identity of the
successful bidder, offer guidance for improving future proposals, and
advise such MWBE of services and debriefings available to help them with
future proposals, in line with what is afforded to such entities pursu-,
ant to section 163 of the state finance law.
Section 2 establishes the effective date of this act.
JUSTIFICATION:
As we continue to strive towards achieving the 30%. MWBE goal as
outlined by Governor Cuomo, we recognize that there will be times when
an MWBE is denied the opportunity to secure a state contract. However,
we should still find ways to provide education to MWBEs on why they were
not selected so that these capable businesses can take steps to improve
their chances for the future.
With that goal in mind, these explanations should not only clarify the
reasons why an MWBE was rejected, but should also provide recommenda-
tions on how to improve so future consideration is possible as well as
likely. Too often, MWBEs are being turned down from an opportunity but
not being given information and explanation as to why and how to get
better as a business so that they may better serve our fellow New York-
ers.
This bill is a response to S1419, which was vetoed by Governor Kathy
Hochul in 2023. While State agencies stated they did provide notice,
many MWBEs have voiced they have issues with time restrictions and often
are too late to make needed requests. This bill would require state
agencies to inform an unsuccessful bidder of the reasons for rejection
by default, without the information being requested by the MWBE.
PRIOR LEGISLATIVE HISTORY:
2024: New Bill; amended version of 51419
FISCAL IMPLICATION:
To be determined
EFFECTIVE DATE:
This act shall take effect on the ninetieth day after it shall become a
law; provided however, that the amendments to article 15-A of the execu-
tive law made by section one of this act shall not affect the expiration
of such article and shall be deemed to expire therewith; provided,
further, that the director of the division of minority and women's busi-
ness development shall be authorized to comuence the rule-making process
required pursuant to section one of this act prior to the effective date
of this act
STATE OF NEW YORK
________________________________________________________________________
9753
IN ASSEMBLY
April 3, 2024
___________
Introduced by M. of A. BICHOTTE HERMELYN -- read once and referred to
the Committee on Governmental Operations
AN ACT to amend the state finance law, in relation to the debriefing of
certain contracts
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Paragraph c of subdivision 9 of section 163 of the state
2 finance law, as amended by section 2-b of part F of chapter 57 of the
3 laws of 2016, is amended to read as follows:
4 c. Where provided in the solicitation, state agencies may require
5 clarification from offerers for purposes of assuring a full understand-
6 ing of responsiveness to the solicitation requirements. Where provided
7 for in the solicitation, revisions may be permitted from all offerers
8 determined to be susceptible of being selected for contract award, prior
9 to award. Offerers shall be accorded fair and equal treatment with
10 respect to their opportunity for discussion and revision of offers. A
11 state agency shall, upon request, provide a debriefing to any unsuccess-
12 ful offerer that responded to a request for proposal or an invitation
13 for bids, regarding the reasons that the proposal or bid submitted by
14 the unsuccessful offerer was not selected for an award. The opportunity
15 for an unsuccessful offerer to seek a debriefing, and the availability
16 of a written explanation, shall be stated in the solicitation.
17 (i) A debriefing shall be requested by the unsuccessful offerer within
18 [fifteen] thirty calendar days of release by the state agency of a
19 notice in writing or electronically that the offerer's offer is unsuc-
20 cessful.
21 (ii) Such notice shall be provided to all unsuccessful offerers by the
22 state agency for the specific procurement.
23 (iii) The state agency, upon a request made within [fifteen] thirty
24 days of release of the written or electronic notice from the unsuccess-
25 ful offerer for a debriefing, shall schedule the debriefing to occur
26 within a reasonable time of such request. Debriefings shall be conducted
27 by the state agency with the unsuccessful offerer in-person, provided,
28 however, the parties may mutually agree to utilize other means such as,
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD14018-03-4
A. 9753 2
1 but not limited to, by telephone, video-conferencing or other types of
2 electronic communications. State agency personnel participating in the
3 debriefing discussion shall have been involved with and knowledgeable
4 about the procurement and the evaluation and selection of the successful
5 offerer or offerers.
6 (iv) Such debriefing shall include, but need not be limited to: (A)
7 the reasons that the proposal, bid or offer submitted by the unsuccess-
8 ful offerer was not selected for award; (B) the qualitative and quanti-
9 tative analysis employed by the agency in assessing the relative merits
10 of the proposals, bids or offers; (C) the application of the selection
11 criteria to the unsuccessful offerer's proposal; and (D) when the
12 debriefing is held after the final award, the reasons for the selection
13 of the winning proposal, bid or offer. The debriefing shall also
14 provide, to the extent practicable, general advice and guidance to the
15 unsuccessful offerer concerning potential ways that their future
16 proposals, bids or offers could be more responsive. Provided, however,
17 that an unsuccessful offerer may additionally request a written explana-
18 tion comparable to such debriefing to be provided by mail or electronic
19 mail, which the state agency shall provide within sixty days of the
20 offerer's request for a written explanation.
21 § 2. This act shall take effect on the ninetieth day after it shall
22 have become a law; provided, however, that the amendments to subdivision
23 9 of section 163 of the state finance law made by section one of this
24 act shall not affect the repeal of such section and shall be deemed
25 repealed therewith.
