STATE OF NEW YORK
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10687
IN ASSEMBLY
June 13, 2016
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Introduced by COMMITTEE ON RULES -- (at request of M. of A. Peoples-
Stokes) -- (at request of the State Comptroller) -- read once and
referred to the Committee on Governmental Operations
AN ACT to amend the state finance law, in relation to authorizing the
commissioner of the office of general services and state agencies to
develop alternative procurement methods not otherwise authorized by
law under certain circumstances; and in relation to authorizing
competitive negotiation concluding with a best and final offer
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Section 163 of the state finance law is amended by adding
2 two new subdivisions 16 and 17 to read as follows:
3 16. Alternative procurement methods for the acquisition of non-con-
4 struction related commodities, services and information technology. a.
5 When the commissioner or a state agency determines that it is in the
6 best interest of the state to develop a procurement method not author-
7 ized by this section for non-construction related commodities, services
8 and information technology, the commissioner or state agency is hereby
9 authorized to develop and use such method for a specific contract award.
10 Such determination shall be made in writing and shall include documenta-
11 tion for the procurement record that such alternative procurement meth-
12 od: (i) would serve the interest of the state better than other methods
13 currently available under this section; (ii) can be applied on a compet-
14 itive, fair and equitable basis; and (iii) contains an appropriate eval-
15 uation methodology that considers both cost and qualitative evaluation
16 factors. Such alternative procurement method shall be subject to all
17 other applicable provisions of this section. The commissioner or a state
18 agency may not undertake an alternative procurement method until the
19 comptroller has determined that the proposed alternative procurement
20 method is in the best interest of the state; can be applied on a compet-
21 itive, fair and equitable basis; and utilizes an appropriate evaluation
22 methodology that considers both cost and qualitative evaluation factors.
23 b. When using an alternative procurement method authorized by this
24 subdivision, the commissioner or agency shall include in its solicita-
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD15307-02-6
A. 10687 2
1 tion a detailed description of the proposed method of award. In advance
2 of the initial receipt of offers or bids, the commissioner or state
3 agency shall determine and document in the procurement record the evalu-
4 ation criteria and process to be used in the determination of the
5 specific contract award and the process by which the evaluation and
6 selection shall be conducted. In addition to the requirements set forth
7 in paragraph g of subdivision nine of this section, the procurement
8 record shall document the basis upon which the agency has determined
9 that potential vendors will be able to respond with viable bids to such
10 alternative procurement.
11 c. Notwithstanding the provisions of subdivision five of section three
12 hundred fifty-five of the education law to the contrary or section
13 sixty-two hundred eighteen of the education law, before any contract
14 awarded under this section which exceeds fifty thousand dollars in
15 amount becomes effective it must be approved by the comptroller and
16 filed in his or her office.
17 d. For each procurement awarded pursuant to this section, the commis-
18 sioner or state agency shall submit to the governor, the comptroller and
19 the heads of the fiscal committees of each house of the state legisla-
20 ture no later than the mid-point of the initial term of the resultant
21 contract a report assessing the validity of the procurement method and
22 comparing its results to procurement methods for commodities and
23 services or information technology.
24 17. Competitive negotiation. a. Where the basis of award is best value
25 and after completing an initial evaluation and scoring, a state agency
26 may choose to either make an award to the best value offerer pursuant to
27 subdivision four of this section or undertake competitive negotiations
28 with all offerers of proposals susceptible of being selected for
29 contract award, so long as the agency reserves the right to conduct such
30 competitive negotiations in the solicitation. The negotiations shall be
31 conducted as provided in paragraph d of this subdivision.
32 b. Competitive negotiation may only be used where:
33 (i) at least two offerers are deemed susceptible of being selected for
34 contract award;
35 (ii) in the event that the solicitation includes optional components,
36 the solicitation shall require all offerers to provide a proposal for
37 all options or otherwise be deemed nonresponsive; and
38 (iii) the agency has determined that use of competitive negotiation
39 will maximize the agency's ability to obtain best value, based on the
40 agency's need and the specifications set forth in the solicitation.
41 c. The agency must document in the procurement record and in advance
42 of the initial receipt of offers:
43 (i) the methodology, which shall be quantifiable and based on a
44 comparison of the proposals' price and technical merit, that will be
45 employed to arrive at a competitive range that will determine which
46 proposals are to be considered susceptible to award; and
47 (ii) a fair and impartial negotiation procedure, formulated with the
48 goal of ensuring sustained competition until an award is rendered and
49 obtaining the best value for the state.
50 d. The agency shall conduct written or oral negotiations with all
51 responsible offerers who submit proposals in the competitive range. In
52 the course of such negotiations, the agency shall:
53 (i) advise the offerer of ways in which its proposal may be improved
54 so that the offerer is given an opportunity to better meet the agency's
55 needs;
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1 (ii) clarify any uncertainties, ambiguities or non-material deviations
2 in the proposal;
3 (iii) advise the offerer of any technical components in its proposal
4 that may not be necessary to satisfy the agency's requirements and
5 request modifications as appropriate;
6 (iv) provide the offerer a reasonable opportunity to submit any cost,
7 technical or other revisions to its proposal in response to issues iden-
8 tified during negotiations; and
9 (v) document any oral negotiations for the procurement record.
10 e. Negotiations may be tailored to each offerer's proposal provided,
11 however, such negotiations shall be conducted with each offerer within
12 the competitive range without disclosing information concerning any
13 other offerers' proposals or the evaluation process. Negotiations shall
14 culminate in a technical solution from each offerer remaining within the
15 competitive range that is deemed acceptable to meet the agency's need as
16 set forth in the solicitation. After discussion of these technical
17 solutions is completed, the agency shall solicit a best and final price
18 proposal from all offerers within the competitive range. The best and
19 final price solicitation shall ensure that all offerers are afforded an
20 equal opportunity to respond within a specified period of time.
21 f. Where an agency chooses to undertake competitive negotiations
22 instead of making a best value award after an initial evaluation and
23 scoring, the final award shall be made to the lowest responsible offerer
24 after receiving a best and final price on a revised acceptable proposal.
25 § 2. This act shall take effect immediately; provided, however, that
26 the provisions of section one of this act shall apply to any procurement
27 initiated on or after such date; provided, further however, that the
28 amendments to section 163 of the state finance law made by section one
29 of this act shall not affect the repeal of such section as provided in
30 subdivision 5 of section 362 of chapter 83 of the laws of 1995, as
31 amended, and shall be deemed repealed therewith.
