Add Art 11-C SS179-ff - 179-ii, amd SS160 & 163, St Fin L
Relates to program procurements; clarifies the definition of services; allows the comptroller to excuse non-material deviations in procurement procedures and allows for pilot procurement methods.
STATE OF NEW YORK
________________________________________________________________________
8096
2011-2012 Regular Sessions
IN ASSEMBLY
June 1, 2011
___________
Introduced by M. of A. GLICK -- (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 program procure-
ments, clarifying the definition of services, allowing the state comp-
troller to excuse non-material deviations in procurement procedures
and allowing for pilot procurement methods
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. The state finance law is amended by adding a new article
2 11-C to read as follows:
3 ARTICLE XI-C
4 PROGRAM PROCUREMENTS
5 Section 179-ff. Definitions.
6 179-gg. Program procurements.
7 179-hh. Request for exemption.
8 179-ii. Program procurement process.
9 § 179-ff. Definitions. As used in this article the following terms
10 shall have the following meanings unless otherwise specified:
11 1. "Costs" shall be quantifiable and may include, without limitation,
12 the price of providing the given good or service and the administrative,
13 training, storage, maintenance or other overhead expense associated with
14 a given good or service.
15 2. "Emergency" means an urgent and unexpected requirement where public
16 health, safety, or welfare or the conservation of public resources is at
17 risk.
18 3. "Price" means the amount of money set as consideration for a good
19 or service and may include when applicable and when specified in the
20 proposal/application, delivery charges, installation charges and other
21 costs.
22 4. "Procurement record" means documentation of the decisions made and
23 the approach taken in the procurement process.
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD10876-03-1
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1 5. "Program" means a provision of law authorizing a state agency to
2 undertake activities that are to be accomplished in whole or in part
3 through contracts with certain entities including, but not limited to,
4 not-for-profit organizations, for-profit organizations, municipalities
5 or any combination thereof.
6 6. "Program procurement" means a procurement which:
7 a. is undertaken for a broad public purpose authorized by law and not
8 undertaken by a state agency primarily to obtain commodities, services
9 or technology for such agency; and
10 b. is intended to benefit a community or a portion of a community; and
11 c. is accomplished in whole or in part through a contract or contracts
12 with an association, partnership, joint venture, firm, company, corpo-
13 ration, public corporation, not-for-profit organization or a combination
14 of such entities; and
15 d. has been granted an exemption pursuant to the provisions of section
16 one hundred seventy-nine-hh of this article where such exemption is
17 required by section one hundred seventy-nine-gg of this article.
18 A program procurement provides the proposer or applicant with wide
19 discretion and latitude in the manner in which the purpose is to be
20 accomplished with few specific limitations on the scope of the proposal
21 or application.
22 7. "Public corporation" means a city, town, village, school district,
23 a district corporation or a public benefit corporation as those terms
24 are defined in section sixty-six of the general construction law.
25 8. "Responsible" or "responsibility" means the financial ability,
26 legal capacity, integrity, and past performance of a business entity and
27 as such terms have been interpreted relative to public procurements.
28 9. "Responsive" means a proposer or applicant meeting the minimum
29 specifications or requirements as prescribed in a solicitation issued by
30 a state agency.
31 10. "Single source" means a program procurement in which although two
32 or more proposers or applicants can supply the required goods or
33 services, the state agency, upon written findings setting forth the
34 material and substantial reasons therefor, may award the contract to one
35 proposer or applicant over another. The state agency shall document in
36 the procurement record the circumstances leading to the selection of the
37 proposer or applicant, including the alternatives considered, the
38 rationale for selecting the specific proposer or applicant and the basis
39 upon which the state agency determined that the cost was reasonable.
40 11. "Solicitation document" means the document issued by a state agen-
41 cy notifying prospective proposers or applicants that the state agency
42 wishes to receive proposals or applications for providing goods or
43 services.
44 12. "Sole source" means a program procurement in which only one propo-
45 ser or applicant is capable of supplying the required goods or services.
46 13. "Specification" or "requirement" means any description of the
47 physical or functional characteristics or the nature of a good or
48 service, any description of the services to be performed, the goods or
49 services to be provided, the necessary qualifications of the proposer or
50 applicant, the capacity and capability of the proposer or applicant to
51 complete the proposed contract successfully, or the process for achiev-
52 ing specific results or anticipated outcomes, or both, or any other
53 requirement necessary to perform the work. It may include a description
54 of any obligatory testing, inspection or preparation for delivery and
55 use, and may include federally required provisions and conditions where
56 the eligibility for federal funds is conditioned upon the inclusion of
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1 such federally required provisions and conditions. Specifications shall
2 be designed to enhance competition.
3 14. "State agency" or "state agencies" means all state departments,
4 boards, commissions, offices or institutions but excludes, however, for
5 the purposes of subdivision five of section three hundred fifty-five of
6 the education law, the state university of New York, and excludes, for
7 the purposes of subdivision a of section sixty-two hundred eighteen of
8 the education law, the city university of New York. Furthermore, such
9 term shall not include the legislature or the judiciary.
10 § 179-gg. Program procurements. The program procurement process set
11 forth in this article, rather than the requirements of article eleven of
12 this chapter, shall apply to:
13 1. program procurements open only to not-for-profit organizations or
14 public corporations or both, and
15 2. those program procurements open to profit-seeking entities where
16 the state agency has obtained from the state comptroller, in accordance
17 with section one hundred seventy-nine-hh of this article, an exemption
18 from the requirements of article eleven of this chapter.
19 § 179-hh. Request for exemption. Before the issuance of a solicitation
20 document, a state agency conducting a procurement open to profit-seeking
21 entities which the state agency believes falls within the meaning of a
22 program procurement, as defined in this article, shall make a written
23 request to the state comptroller for an exemption from the requirements
24 of article eleven of this chapter. The state comptroller shall make a
25 written determination as to whether the proposed procurement falls with-
26 in the definition of a program procurement as set forth in section one
27 hundred seventy-nine-ff of this article and is in the best interest of
28 the state, and shall either grant or deny the exemption on the basis of
29 such determination. If the state comptroller grants a state agency an
30 exemption from the requirements of article eleven of this chapter, the
31 program procurement shall be conducted in accordance with the require-
32 ments of this article.
33 § 179-ii. Program procurement process. 1. Method of procurement. The
34 state agency shall document in the procurement record and in advance of
35 the initial receipt of proposals/applications the determination of the
36 evaluation criteria and the process to be used in the determination of
37 award or funding, and the manner in which the evaluation and selection
38 shall be conducted.
39 2. Public notice. All program procurements by state agencies or an
40 award or funding in excess of fifteen thousand dollars shall be adver-
41 tised in the state's procurement opportunities newsletter in accordance
42 with article four-C of the economic development law.
43 3. Soliciting and accepting proposals or applications. A solicitation
44 document issued by a state agency shall prescribe the minimum specifica-
45 tions or requirements that must be met to be considered responsive and
46 shall describe and disclose the general manner in which the evaluation
47 and selection shall be conducted. Where appropriate, the solicitation
48 document shall identify the relative importance or weight of cost and
49 the overall technical criteria to be considered by a state agency in
50 making a program procurement determination.
51 4. Selection and contract award. a. Selection and contract award shall
52 be consistent with: (i) the terms of the solicitation document issued by
53 the state agency; and (ii) the contract award methodology set forth in
54 the procurement record before the initial receipt of proposals or appli-
55 cations.
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1 b. Program procurement awards shall be made to a proposer or applicant
2 on the basis of technical merit with the consideration given to the
3 reasonableness of costs. The contract award or awards or funding shall
4 be allocated to the highest ranked proposal or proposals. Nothing in
5 this section, however, shall be deemed to prohibit a state agency from
6 evaluating cost separately in its selection and contract award.
7 c. A procurement record shall be maintained for each program procure-
8 ment identifying, with supporting documentation, decisions made by the
9 state agency during the procurement process.
10 d. Selection and contract award shall be a written determination in
11 the procurement record made by the state agency.
12 e. Prior to making a program procurement award, the state agency shall
13 make a determination of the responsibility of the proposer or applicant.
14 5. Reduction of award. A state agency may reduce the monetary amount
15 of the awards made under a program procurement if the state agency
16 reserves the right to make such a reduction in the solicitation document
17 and such reduction is consistent with a predefined methodology set forth
18 in the procurement record prior to the receipt of initial proposals or
19 applications.
20 6. Discretionary program procurement awards. A state agency may make a
21 program procurement award in an amount not exceeding fifty thousand
22 dollars without a formal competitive process. The state agency shall,
23 however, document that the amount of the award or funding is reasonable.
24 7. Contract awards. a. Contract awards shall be made on the basis of
25 highest rank in accordance with the selection and award methodology
26 established in accordance with the program requirements set forth by
27 each agency for such program.
28 b. Single or sole source contract awards, or contract awards made to
29 meet emergencies arising from unforeseen causes, may be made without a
30 formal competitive process and shall only be made under unusual circum-
31 stances and shall be based upon a determination by the state agency that
32 the specifications or requirements for such award have been designed in
33 a fair and equitable manner. The state agency shall document in the
34 procurement record, subject to review by the state comptroller, the
35 basis for a determination to make an award to a single source or sole
36 source, or the nature of the emergency giving rise to the award.
37 8. Contracts. Any contract resulting from a program procurement
38 awarded pursuant to the provisions of this article that includes funding
39 for commodities or construction services in excess of fifty thousand
40 dollars shall include contract language requiring the contractor to
41 acquire such commodities and/or construction services pursuant to a
42 competitive bidding process.
43 9. Review by the office of the state comptroller. Review by the office
44 of the state comptroller shall be in accordance with section one hundred
45 twelve of this chapter.
46 § 2. Subdivision 7 of section 160 of the state finance law, as added
47 by chapter 83 of the laws of 1995, is amended to read as follows:
48 7. "Service" or "services" means, except with respect to contracts for
49 state printing, the performance of a task or tasks and may include a
50 material good or a quantity of material goods, and which is the subject
51 of any purchase or other exchange. For the purposes of this article,
52 technology shall be deemed a service. Services, as defined in this arti-
53 cle, shall not apply to those contracts for (i) architectural, engineer-
54 ing or surveying services, [or those contracts approved in accordance
55 with] (ii) services provided by a not-for-profit organization in accord-
56 ance with the provisions of article eleven-B of this chapter, or (iii)
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1 services obtained through program procurements in accordance with arti-
2 cle eleven-C of this chapter.
3 § 3. Subdivision 12 of section 163 of the state finance law, as added
4 by chapter 83 of the laws of 1995, is amended to read as follows:
5 12. Review by the office of the state comptroller. Review by the
6 office of the state comptroller shall be in accordance with section one
7 hundred twelve of this chapter. Where the contracting agency has not
8 complied with one or more provisions of this article, the comptroller
9 may approve the awarded contract if:
10 a. the contracting agency determines and certifies, based upon a
11 preponderance of the evidence documented in the procurement record, that
12 the noncompliance did not prejudice or favor any vendor or potential
13 vendor and that a new procurement would not be in the best interest of
14 the state; and
15 b. the state comptroller concurs in such determination.
16 § 4. Section 163 of the state finance law is amended by adding a new
17 subdivision 13-a to read as follows:
18 13-a. Pilot procurement projects. a. When the commissioner or a state
19 agency develops a procurement method not authorized by this article, the
20 commissioner or state agency is hereby authorized to use such method on
21 a limited basis for a specific contract award if: (i) the commissioner
22 or state agency has made a determination, documented in the procurement
23 record, that such a pilot procurement method would better serve the
24 interest of the state than other methods currently available under this
25 section; and (ii) the pilot procurement method is applicable on a fair
26 and equitable basis.
27 b. when using a procurement method authorized by paragraph a of this
28 subdivision, the commissioner or state agency shall document, in the
29 procurement record and in advance of the initial receipt of offers, the
30 determination of the evaluation criteria, which whenever possible, shall
31 be quantifiable, and the process to be used in the determination of the
32 specific contract award and the manner in which the evaluation process
33 and selection shall be conducted.
34 c. Prior to the commencement of the procurement, the comptroller shall
35 agree that such procurement method better serves the interests of the
36 state and can be applied on a fair and equitable basis. For each such
37 pilot procurement project award, the commissioner or the state agency,
38 as applicable, shall submit to the comptroller not later than the mid-
39 point of the term of the resultant contract a report assessing the
40 success or failure of the pilot procurement method.
41 § 5. This act shall take effect immediately and shall apply to any
42 procurement initiated on or after such date; provided, however, that the
43 amendments to section 163 of the state finance law made by sections
44 three and four of this act shall not affect the repeal of such section
45 as provided in subdivision 5 of section 362 of chapter 83 of the laws of
46 1995, as amended, and shall be deemed repealed therewith.
