NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A6355A
SPONSOR: Peoples-Stokes TITLE OF BILL: An act to amend the state finance law and the educa-
tion law, in relation to enacting the "New York state procurement integ-
rity act"; and to repeal section 6283 of the education law relating to
procurements of the fund (Part A); to amend the public authorities law,
in relation to requiring public authorities to comply with certain
provisions of the state finance law relating to procurements (Part B);
to amend the public authorities law, in relation to prohibiting certain
third party contracts (Part C); to amend the state finance law, in
relation to authorizing the state comptroller to oversee certain
contracts of the research foundation of the state university of New York
(Part D); to amend the economic development law, in relation to expand-
ing requirements for state authorities to publish procurement opportu-
nities (Part E); and to amend the state finance law and the public
authorities law, in relation to prohibiting conflicts of interest by
state officers and employees in state procurements and prohibiting
conflicts of interest by state authority board members, officers and
employees in state and authority procurements (Part F)
PURPOSE:
The purpose of this legislation is to enhance the integrity, transparen-
cy and accountability of the State's procurement process by:
*Restoring the State Comptroller's independent oversight of SUNY, CUNY,
and OGS centralized contracts that was removed in 2011 and 2012.
*Expanding the State Comptroller's oversight of the procurement process
to include contracts in excess of one million dollars awarded by the
SUNY Research Foundation.
*Prohibiting state contracting through state-affiliated not-for-profit
(NFP) entities unless explicitly authorized in law.
*Strengthening ethical requirements for state procurement officials.
*Standardizing the contracting process used for all State authorities
spending State money by applying uniform procurement rules.
*Increasing procurement transparency for vendors and the public at each
stage of the process.
JUSTIFICATION:
The recent criminal charges filed by the US Attorney and the Attorney
General relating to the way the upstate economic development programs
have been managed are a troubling reminder that the lack of independent
oversight for procurements creates an environment ripe for corruption,
bid rigging and kickbacks. Billions of state dollars are being funneled
by State agencies and authorities to third party entities of the agen-
cies' or authorities' own creation, allowing for the circumvention of
longstanding checks and balances that protect taxpayers and ensure a
level playing field for bidders. Further, billions of additional State
dollars are being spent under contracts that no longer benefit from
independent review. An effective antidote to self-dealing in government
procurement is independent oversight of State contracting and spending.
Historically, the Office of the State Comptroller (OSC) has performed
this essential oversight function, but in recent years OSC's ability to
do so has been eroded by executive and legislative-action.
PART A:
Restore the State Comptroller's independent oversight of certain
contracts of the State University of New York, the City University of
New York and centralized contracts of the Office of General Services.
Part A of the bill amends the State Finance Law and the Education Law to
restore OSC contract oversight over SUNY, CUNY and OGS contracts, while
increasing the flexibility threshold for SUNY and CUNY to 250 thousand
dollars from 20 thousand dollars while maintaining the ability to nego-
tiate for even higher thresholds for contract approval with OSC. It also
requires that SUNS 's use of any non-profit corporation be for academic
objects or purposes only, and that all such contracts continue to be
reviewed and approved by OSC.
OSC oversight is restored for several categories of contracts where such
oversight was eliminated in 2011 and 2012, including:
*All SUNY and CUNY construction and construction related services
contracts (e.g. architects and engineers); all contracts for commod-
ities, including computer equipment; and printing.
*All SUNY Construction Fund and CUNY Construction Fund contracts for
construction and construction-related services: all other services: and
all commodities.
*All OGS centralized contracts that are used by. among other groups,
state agencies, public authorities and local governments, for the
purchase of goods. services and technology (the value of which in 2016
amounted to more than $7.1 billion).
The rationale for eliminating the Comptroller's oversight in 2011 was
that it slowed critical procurements. But the data collected since that
time clearly shows this is not true; on average , OSC spends approxi-
mately nine days to complete its work for more than 20,000 transactions
reviewed annually. The agency procurement process itself may take
several weeks or months. The limited additional time for independent
oversight to ensure that taxpayer dollars are being spent appropriately
is well worth it. as demonstrated in the following examples where OSC
pre-review authority was eliminated:
*A SUNY Downstate Medical Center consultant contract failed to include
important cost controls, which resulted in over-spending and question-
able decision-making, including pricey hotel rooms, inappropriate meal
expenses. limousine drivers and extensive spending on alcoholic beverag-
es.
*Another SUNY Downstate Medical Center contract for healthcare informa-
tion technology (IT) services was not bid competitively, resulting in up
to $1.3 million in costs that could have been avoided.
*A $3 million SUNY Stony Brook contract for medical devices was procured
without appropriate advertising and bidding in violation of SUNY's own
procurement procedures. This was discovered on an OSC payment audit and
SUNY is now rebidding the contract.
In addition, high dollar value OGS centralized contracts used by state
agencies, public authorities and municipalities, among other groups, are
being procured without independent oversight or review. This includes a
recent OGS award of $3.3 billion in IT consultant services to 122 firms.
Overall in 2016, OGS let approximately $7.1 billion in centralized
contracts and that value is expected to grow substantially.
*Prior to 2012, during an OSC review of school bus contracts submitted
by OGS it was discovered that other states received better pricing than
NY. As a result, OGS was able to negotiate a 1.68% savings over the
original award amount: a savings of $11.2 million. The current suite of
school bus contracts are estimated by OGS at over $700 million.
The 2012 law that exempted OGS centralized contracts from OSC pre-review
also requires state agencies to purchase services and technology from
OGS centralized contracts if a centralized contract meets an agency's
needs. This requirement was also already in place for state agency
purchases of commodities: they must purchase off of OGS centralized
contracts. As OGS expands its portfolio of centralized contracts, fewer
and fewer independent agency contracts will be subject to oversight by
the Comptroller. In fact, a new group of OGS centralized IT contracts
will not be subject to OSC pre-review for agency IT consultant projects
below 25 million dollars and other high dollar value purchases, such as
those for computer software and hardware of any size.
For those state contracts where OSC independent oversight remains in
place. OSC has found excessive bill rates, costs for charges outside the
contract scope, vendors with unresolved allegations of fraud and other
serious misconduct. and vendors who plainly attempt to circumvent state
law. For example, OSC rejected an Office of Alcoholism and Substance
Abuse Services contract with a vendor whose senior management were
arrested on fraud and money laundering charges. OSC rejected the
contract a second time when the agency resubmitted it and OSC found that
the new executives and a board member were also charged.
In another circumstance, SUNY Stony Brook requested a contract be reas-
signed to a new vendor. OSC found the original vendor had significant
tax liens, and the new company was owned by the original vendor's daugh-
ter, operating from the same address, in what appeared to be an attempt
by the original vendor to avoid tax liabilities. OSC declined to approve
the contract assignment. OSC contract pre-review and approval ensures
that the State of New York is only doing business with responsible
vendors.
PART B:
Ensure State authorities adopt best practice procurement procedures
based on those in place for State agencies.
Part B of the bill amends the Public Authorities Law to require State
authorities to adopt procurement guidelines that are consistent with
those required for state agencies, unless otherwise permitted by law.
OSC then, pursuant to its authority under Public Authorities Law section
2879a, could review those contracts subject to its oversight against
these standardized guidelines, determining, as necessary, the consisten-
cy of the authority's guidelines with the procurement procedures
required for state agencies. In addition, OSC and the Authorities Budget
Office has the ability under existing law to conduct performance audits
of authorities, and thus also could have the ability to assess whether
an authority's guidelines were achieving the required degree of stand-
ardization. At present, State authorities generally follow their own
guidelines for conducting procurements. These guidelines vary from
authority to authority and usually are approved only by the authority's
board of directors. In light of the recent criminal charges alleging
favoritism and potential bid rigging in contracting by State authorities
and related entities, the establishment of standardized practices to
ensure transparency and restore public confidence is imperative.
State law prescribes best practice processes for agency procurements,
including: requiring open competition when practicable; ensuring a level
playing field for bidders with standard advertising and evaluation
criteria; the opportunity for losing vendors to be debriefed on awards;
determining whether the price is reasonable based on the type of
procurement; ensuring vendors comply with appropriate worker protections
such as prevailing wage, workers' compensation and disability insurance,
and equal employment/nondiscrimination requirements; and confirming that
vendors are responsible and responsive and deserve to participate in
state contracting.
PART C:
Prohibit the use of state-affiliated not-for-profit (NFP) entities for
State contracting unless explicitly authorized in law or subject to the
approval of the State Comptroller.
Part C of the bill amends the Public Authorities law to prohibit public
authorities from entering into or extending third party contracts or
agreements with NFP entities where the primary purpose is to act as a
conduit for state procurement initiatives, including economic develop-
ment. The Comptroller is authorized to issue regulations to enforce this
section and define those contract types that are prohibited.
Billions of dollars of state money is flowing through entities that have
been created outside the State's normal statutory structure. removed
from view of both the public and independent oversight agencies. The
results have been predictable: exploitation of these organizations by
self-serving public and private individuals. and their eventual indict-
ment for a host of charges related to fraud and abuse of this alterna-
tive procurement system. Proliferation of this kind of public contract-
ing cannot continue. This bill would prohibit public authorities from
using these state-affiliated NFPs for this purpose unless expressly
authorized by the Legislature to do so.
PART D:
Require OSC pre-approval of SUNY Research Foundation contracts greater
than $1 million that include State monies.
Part D of the bill amends the State Finance Law to extend OSC contract
oversight to the SUNY Research Foundation where state funding is
involved. The proposed approval threshold is identical to that for
public authorities.
The recent alleged bid-rigging and other schemes involve entities affil-
iated with the SUNY Research Foundation. Enhanced oversight will provide
much needed sunshine on an organization responsible for stewardship of
billions in state funding. While the SUNY Research Foundation and other
similar organizations at campuses around the state provide a means to
manage ongoing federal and private grants, taxpayers deserve to know how
their state funds are being spent and that the contracting process is
fair and in their best interest. This provision will subject State
moneys managed by the SUNY Research Foundation to additional oversight,
ensuring sound contracting practices are followed.
Strengthen requirements on the ethical performance by state officials
and vendors.
Part E:
Increase transparency of contract opportunities and results through the
Procurement Opportunities Newsletter.
Part E of the bill amends the Economic Development Law to expand the
requirements for agencies and public authorities to publish public
information about procurement opportunities for the benefit of vendors
and the public.
At present, agencies and authorities must advertise most contract oppor-
tunities in the Procurement Opportunities Newsletter (also known as the
Contract Reporter), which is widely used by the vendor community to
learn of and compete for state business. This helps the State notify the
widest pool of vendors and creates transparency and robust, fair compe-
tition. In addition, when an agency intends to conduct a single source
or sole source procurement, they must obtain from OSC an exemption from
advertising and thereafter must place a notice of the selected vendor in
the Procurement Opportunities Newsletter.
New provisions would expand the use of the Procurement Opportunities
Newsletter to enhance transparency and strengthen procurements in New
York by requiring agencies to place notice of all requests for exemption
from advertising procurements in the Procurement Opportunities Newslet-
ter 15 days before they seek such an exemption and before they award a
contract. Authorities would also be required to advertise noncompetitive
procurements in the Procurement Opportunities Newsletter 15 days prior
to award. Such notice would provide opportunity for other potential
vendors to identify themselves and enhance the state's position in find-
ing a qualified vendor at the best price.
PART F:
Part F of the bill amends the State Finance Law and the Public Authori-
ties Law to strengthen ethical requirements for state procurement offi-
cials.
Specifically. the bill would:
*Create specific requirements for state officials to recuse themselves
from any conflict of interest in writing and include that recusal in the
procurement record.
Currently, while officials are expected to recuse themselves when they
face a conflict of interest in their official duties, there are no
explicit guidelines to ensure transparency and compliance. These
proposed changes would reduce potential abuse and increase transparency.
FISCAL IMPLICATIONS FOR STATE:
This bill may require additional resources for the State Comptroller to
take on expanded oversight of contracts depending upon future workload.
STATE OF NEW YORK
________________________________________________________________________
6355--A
2017-2018 Regular Sessions
IN ASSEMBLY
March 3, 2017
___________
Introduced by M. of A. PEOPLES-STOKES, ENGLEBRIGHT, FAHY, O'DONNELL,
SCHIMMINGER, BLAKE, BUCHWALD, GALEF, GOODELL, LUPARDO, SKOUFIS,
LAVINE, LOPEZ, B. MILLER, WOERNER, COLTON, PHEFFER AMATO, BARRETT,
BRONSON, HARRIS, SIMON, SOLAGES, QUART, SIMOTAS, STECK, ROZIC, OAKS,
KOLB, MOSLEY, BRAUNSTEIN, ABINANTI, CYMBROWITZ, WALLACE -- Multi-Spon-
sored by -- M. of A. DenDEKKER, GLICK, HOOPER -- (at request of the
State Comptroller) -- read once and referred to the Committee on
Governmental Operations -- committee discharged, bill amended, ordered
reprinted as amended and recommitted to said committee
AN ACT to amend the state finance law and the education law, in relation
to enacting the "New York state procurement integrity act"; and to
repeal section 6283 of the education law relating to procurements of
the fund (Part A); to amend the public authorities law, in relation to
requiring public authorities to comply with certain provisions of the
state finance law relating to procurements (Part B); to amend the
public authorities law, in relation to prohibiting certain third party
contracts (Part C); to amend the state finance law, in relation to
authorizing the state comptroller to oversee certain contracts of the
research foundation of the state university of New York (Part D); to
amend the economic development law, in relation to expanding require-
ments for state authorities to publish procurement opportunities (Part
E); and to amend the state finance law and the public authorities law,
in relation to prohibiting conflicts of interest by state officers and
employees in state procurements and prohibiting conflicts of interest
by state authority board members, officers and employees in state and
authority procurements (Part F)
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. This act enacts into law major components of legislation
2 which are necessary to implement the New York state procurement integri-
3 ty act. Each component is wholly contained within a Part identified as
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD07080-08-7
A. 6355--A 2
1 Parts A through F. The effective date for each particular provision
2 contained within such Part is set forth in the last section of such
3 Part. Any provision in any section contained within a Part, including
4 the effective date of the Part, which makes a reference to a section "of
5 this act," when used in connection with that particular component, shall
6 be deemed to mean and refer to the corresponding section of the Part in
7 which it is found. Section three of this act sets forth the general
8 effective date of this act.
9 PART A
10 Section 1. Paragraph (a) of subdivision 2 of section 112 of the state
11 finance law, as amended by section 18 of part L of chapter 55 of the
12 laws of 2012, is amended to read as follows:
13 (a) Before any contract made for or by any state agency, department,
14 board, officer, commission, or institution, except the office of general
15 services, shall be executed or become effective, whenever such contract
16 exceeds fifty thousand dollars in amount and before any contract made
17 for or by the office of general services shall be executed or become
18 effective, whenever such contract exceeds eighty-five thousand dollars
19 in amount, it shall first be approved by the comptroller and filed in
20 his or her office, [with the exception of contracts established as a
21 centralized contract through the office of general services and purchase
22 orders or other procurement transactions issued under such centralized
23 contracts. The] provided, however, that the comptroller shall make a
24 final written determination with respect to approval of such contract
25 within ninety days of the submission of such contract to his or her
26 office unless the comptroller shall notify, in writing, the state agen-
27 cy, department, board, officer, commission, or institution, prior to the
28 expiration of the ninety day period, and for good cause, of the need for
29 an extension of not more than fifteen days, or a reasonable period of
30 time agreed to by such state agency, department, board, officer, commis-
31 sion, or institution and provided, further, that such written determi-
32 nation or extension shall be made part of the procurement record pursu-
33 ant to paragraph f of subdivision one of section one hundred sixty-three
34 of this chapter.
35 § 2. Subdivisions 5 and 6 of section 355 of the education law, as
36 amended by section 1 of subpart B of part D of chapter 58 of the laws of
37 2011, paragraph a of subdivision 5 as amended by section 31 of part L of
38 chapter 55 of the laws of 2012, are amended to read as follows:
39 5. Notwithstanding the provisions of subdivision two of section one
40 hundred twelve and sections one hundred fifteen, one hundred sixty-one,
41 and one hundred sixty-three of the state finance law and sections three
42 and six of the New York state printing and public documents law or any
43 other law to the contrary, the state university trustees are authorized
44 and empowered to:
45 a. (i) purchase materials, proprietary electronic information
46 resources including but not limited to academic, professional, and
47 industry journals, reference handbooks and manuals, research tracking
48 tools, indexes and abstracts, equipment and supplies, including computer
49 equipment and motor vehicles, where the amount for a single purchase
50 does not exceed two hundred fifty thousand dollars, (ii) execute
51 contracts for services and construction [and construction-related
52 services] contracts to an amount not exceeding two hundred fifty thou-
53 sand dollars, and (iii) contract for printing to an amount not exceeding
54 two hundred fifty thousand dollars, without prior approval by any other
A. 6355--A 3
1 state officer or agency, but subject to rules and regulations or guide-
2 lines of the state comptroller not otherwise inconsistent with the
3 provisions of this section and in accordance with guidelines promulgated
4 by the state university board of trustees after consultation with the
5 state comptroller. Provided, however, that the dollar limits set forth
6 in this paragraph shall be one hundred twenty-five thousand dollars for
7 single or sole source procurements or where there is a formal protest of
8 the contract award. In addition, where the state comptroller determines
9 adequate internal controls are either not in place or are not being
10 utilized effectively, and such failure has resulted in procurement prac-
11 tices that are inconsistent with the purposes underlying the competitive
12 bidding statutes of the state, including those set forth in subdivision
13 two of section one hundred sixty-three of the state finance law, the
14 comptroller may reduce the dollar limits set forth in this paragraph to
15 an amount not less than fifty thousand dollars or, for state university
16 health care facilities, seventy-five thousand dollars.
17 (a-1) The trustees, after consultation with the commissioner of gener-
18 al services, are authorized to annually negotiate with the state comp-
19 troller increases in the dollar limits set forth in paragraph a of this
20 subdivision and the exemption of any articles, categories of articles or
21 commodities from these limits.
22 (a-2) Guidelines promulgated by the state university board of trustees
23 shall, to the extent practicable, require that competitive proposals be
24 solicited for purchases, and shall include requirements that purchases
25 and contracts authorized under this section be at the lowest available
26 price, including consideration of prices available through other state
27 agencies, consistent with quality requirements, and as will best promote
28 the public interest. Such purchases may be made directly from any
29 contractor pursuant to any contract for commodities let by the office of
30 general services or any other state agency;
31 [a-1. execute contracts for services to an amount not exceeding twenty
32 thousand dollars without prior approval by any other state officer or
33 agency, but subject to rules and regulations of the state comptroller
34 not otherwise inconsistent with the provisions of this section and in
35 accordance with the guidelines promulgated by the state university board
36 of trustees after consultation with the state comptroller. In addition,
37 the trustees, after consultation with the commissioner of general
38 services, are authorized to annually negotiate with the state comp-
39 troller increases in the aforementioned dollar limits and the exemption
40 of any services or categories of services from these limits;]
41 b. to establish cash advance accounts for the purpose of purchasing
42 materials, supplies, or services, for cash advances for travel expenses
43 and per diem allowances, or for advance payment of wages and salary. The
44 account may be used to purchase such materials, supplies, or services
45 where the amount of a single purchase does not exceed [one thousand] two
46 hundred fifty dollars, in accordance with such guidelines as shall be
47 prescribed by the state university trustees after consultation with the
48 state comptroller;
49 c. establish guidelines in consultation with the commissioner of
50 general services authorizing participation by the state university in
51 programs administered by the office of general services for the purchase
52 of available New York state food products. The commissioner of general
53 services shall provide assistance to the state university necessary to
54 enable the university to participate in these programs;
55 d. award contract extensions for campus transportation without compet-
56 itive bidding where such contracts were secured either through compet-
A. 6355--A 4
1 itive bidding or through evaluation of proposals in response to a
2 request for proposals, however such extensions may be rejected if the
3 amount to be paid to the contractor in any year of such proposed exten-
4 sion fails to reflect any decrease in the regional consumer price index
5 for the New York, New York-Northeastern, New Jersey area, based upon the
6 index for all urban consumers (CPI-U) during the preceding twelve-month
7 period. At the time of any contract extension, consideration shall be
8 given to any competitive proposal offered by a public transportation
9 agency. Such contract may be increased for each year of the contract
10 extension by an amount not to exceed the regional consumer price index
11 increase for the New York, New York-Northeastern, New Jersey area, based
12 upon the index for all urban consumers (CPI-U), during the preceding
13 twelve-month period, provided it has been satisfactorily established by
14 the contractor that there has been at least an equivalent increase in
15 the amount of his cost of operation, during the period of the contract.
16 [e. guidelines promulgated by the state university board of trustees
17 shall, to the extent practicable, require that competitive proposals be
18 solicited for purchases, and shall include requirements that purchases
19 and contracts authorized under this section be at the lowest available
20 price, including consideration of prices available through other state
21 agencies, consistent with quality requirements, and as will best promote
22 the public interest. Such purchases may be made directly from any
23 contractor pursuant to any contract for commodities let by the office of
24 general services or any other state agency.]
25 6. To enter into any contract or agreement deemed necessary or advis-
26 able after consultation with appropriate state agencies for carrying out
27 the objects and purposes of state university without prior review or
28 approval by any state officer or agency other than the state comptroller
29 and the attorney general including contracts with non-profit corpo-
30 rations organized by officers, employees, alumni or students of state
31 university for the furtherance of its academic objects and purposes.
32 Contracts or agreements entered into with the federal government to
33 enable participation in federal student loan programs, including any and
34 all instruments required thereunder, shall not be subject to the
35 requirements of section forty-one of the state finance law; provided,
36 however, that the state shall not be liable for any portion of any
37 defaults which it has agreed to assume pursuant to any such agreement in
38 an amount in excess of money appropriated or otherwise lawfully avail-
39 able therefor at the time the liability for payment arises. [The forego-
40 ing notwithstanding, any contract made for or by the state university
41 for the purchase of: (i) materials, equipment and supplies, including
42 computer equipment; (ii) motor vehicles; (iii) construction and
43 construction-related services contracts; and (iv) printing shall not be
44 subject to prior approval by any other state officer or agency.]
45 § 3. Paragraph b of subdivision 16 of section 355 of the education
46 law, as amended by section 1 of subpart C of part D of chapter 58 of the
47 laws of 2011, is amended to read as follows:
48 b. Notwithstanding the provisions of subdivision two of section one
49 hundred twelve of the state finance law[,] relating to the dollar thres-
50 hold requiring the comptroller's approval of contracts, subdivision six
51 of section one hundred sixty-three of the state finance law [and section
52 sixty-three of the executive law (i)] authorize contracts for the
53 purchase of goods for state university health care facilities [without
54 prior approval by any other state officer or agency,] including
55 contracts for joint or group purchasing arrangements of goods, in
56 accordance with procedures and requirements found in paragraph a of
A. 6355--A 5
1 subdivision five of this section[, and (ii) authorize contracts for
2 services] which do not exceed [seventy-five] two hundred fifty thousand
3 dollars [without prior approval by any other state officer or agency in
4 accordance with procedures and requirements found in paragraph a of
5 subdivision five of this section]. Contracts authorized pursuant to this
6 paragraph shall be subject to article fourteen of the civil service law
7 and the applicable provisions of agreements between the state and
8 employee organizations pursuant to article fourteen of the civil service
9 law.
10 The trustees are authorized to negotiate annually with the state comp-
11 troller increases in the aforementioned dollar limits.
12 § 4. Subdivision 12 of section 373 of the education law, as amended by
13 section 2 of subpart A of part D of chapter 58 of the laws of 2011, is
14 amended to read as follows:
15 12. To procure and execute contracts, lease agreements, and all other
16 instruments necessary or convenient for the exercise of its corporate
17 powers and the fulfillment of its corporate purposes under this article.
18 [Notwithstanding subdivision two of section one hundred twelve of the
19 state finance law or any other law to the contrary, fund procurements
20 shall not be subject to the prior approval of any state officer or agen-
21 cy;]
22 § 5. Subdivisions a and a-1 of section 6218 of the education law,
23 subdivision a as amended and subdivision a-1 as added by section 2 of
24 subpart B of part D of chapter 58 of the laws of 2011, subparagraph (i)
25 of paragraph 1 of subdivision a as amended by section 33 of part L of
26 chapter 55 of the laws of 2012, are amended to read as follows:
27 a. Notwithstanding the provisions of subdivision two of section one
28 hundred twelve and sections one hundred fifteen, one hundred sixty-one
29 and one hundred sixty-three of the state finance law and sections three
30 and six of the New York state printing and public documents law or any
31 other law to the contrary, the city university is authorized and
32 empowered to:
33 [(1)] (i) purchase materials; proprietary electronic information
34 resources, including, but not limited to, academic, professional and
35 industry journals, reference handbooks and manuals, research tracking
36 tools, indexes and abstracts; and equipment and supplies, including
37 computer equipment and motor vehicles, where the amount for a single
38 purchase does not exceed two hundred fifty thousand dollars, (ii)
39 execute contracts for [construction and construction-related services
40 contracts] services to an amount not exceeding two hundred fifty thou-
41 sand dollars, and (iii) contract for printing to an amount not exceeding
42 two hundred fifty thousand dollars, without prior approval by any other
43 state officer or agency, but subject to rules and regulations or guide-
44 lines of the state comptroller not otherwise inconsistent with the
45 provisions of this section and in accordance with the guidelines promul-
46 gated by the city university board of trustees after consultation with
47 the state comptroller. Provided, however, that the dollar limits set
48 forth in this subdivision shall be one hundred twenty-five thousand
49 dollars for single or sole source procurements or where there is a
50 formal protest of the contract award. In addition, where the state comp-
51 troller determines adequate internal controls are either not in place or
52 are not being utilized effectively, and such failure has resulted in
53 procurement practices that are inconsistent with the purposes underlying
54 the competitive bidding statutes of the state, including those set forth
55 in subdivision two of section one hundred sixty-three of the state
A. 6355--A 6
1 finance law, the comptroller may reduce the dollar limits set forth in
2 this subdivision to an amount not less than fifty thousand dollars.
3 (a-1) The trustees are authorized to annually negotiate with the state
4 comptroller increases in the dollar limits set forth in this subdivision
5 and the exemption of any articles, categories of articles or commodities
6 from these limits.
7 (a-2) Guidelines promulgated by the city university board of trustees
8 shall, to the extent practicable, require that competitive proposals be
9 solicited for purchases, and shall include requirements that purchases
10 and contracts authorized under this section be at the lowest possible
11 price.
12 [(2) execute contracts for services to an amount not exceeding twenty
13 thousand dollars without prior approval by any other state officer or
14 agency, but subject to rules and regulations of the state comptroller
15 not otherwise inconsistent with the provisions of this section and in
16 accordance with the guidelines promulgated by the city university board
17 of trustees after consultation with the state comptroller. In addition,
18 the trustees, after consultation with the commissioner of general
19 services, are authorized to annually negotiate with the state comp-
20 troller increases in the aforementioned dollar limits and the exemption
21 of any services or categories of services from these limits.
22 a-1. Guidelines promulgated by the city university board of trustees
23 shall, to the extent practicable, require that competitive proposals be
24 solicited for purchases, and shall include requirements that purchases
25 and contracts authorized under this section be at the lowest available
26 price.]
27 § 6. Section 6283 of the education law is REPEALED.
28 § 7. This act shall take effect immediately; provided, however, that:
29 (a) the amendments to subdivisions 5 and 6 of section 355 and subdivi-
30 sions a and a-1 of section 6218 of the education law made by sections
31 two and five of this act shall not affect the expiration of such
32 provisions pursuant to section 4 of subpart B of part D of chapter 58 of
33 the laws of 2011, as amended, and shall be deemed to expire therewith;
34 (b) the amendments to paragraph b of subdivision 16 of section 355 of
35 the education law made by section three of this act shall not affect the
36 expiration of such paragraph pursuant to section 3 of subpart C of part
37 D of chapter 58 of the laws of 2011, as amended, and shall expire there-
38 with; and
39 (c) the amendments to subdivision 12 of section 373 of the education
40 law made by section four of this act shall not affect the expiration of
41 such subdivision pursuant to section 4 of subpart A of part D of chapter
42 58 of the laws of 2011, as amended, and shall expire therewith.
43 PART B
44 Section 1. Subdivision 1 of section 2879 of the public authorities
45 law, as amended by chapter 564 of the laws of 1988, is amended to read
46 as follows:
47 1. Every public authority and public benefit corporation, a majority
48 of the members of which consist of persons either appointed by the
49 governor or who serve as members by virtue of holding a civil office of
50 the state, or a combination thereof, (such entities to be hereinafter in
51 this section referred to as "corporation") shall adopt by resolution
52 comprehensive guidelines consistent with the methods of evaluating bids
53 and proposals and awarding of contracts authorized by sections one
54 hundred thirty-six-a, one hundred sixty-three and one hundred sixty-
A. 6355--A 7
1 three-a of the state finance law and subdivision six of section eight of
2 the public buildings law, unless expressly authorized otherwise by law,
3 which detail the corporation's operative policy and instructions regard-
4 ing the use, awarding, monitoring and reporting of procurement
5 contracts. Guidelines approved by the corporation shall be annually
6 reviewed and approved by the corporation.
7 § 2. This act shall take effect immediately.
8 PART C
9 Section 1. The public authorities law is amended by adding a new
10 section 2882 to read as follows:
11 § 2882. Third party contracting prohibited. 1. Unless authorized by
12 special act of the legislature, no state authority shall enter into a
13 contract or agreement or extend an existing contract or agreement with
14 another entity, (i) where the exclusive or primary role of such entity
15 under the contract or agreement is to procure goods or services of any
16 kind, including, but not limited to, public work, construction, alter-
17 ations, or improvements to public facilities, grant contracts, employ-
18 ment contracts, revenue or concession contracts, the exchange of
19 personal or real property, the exchange of services, or any combination
20 thereof through a contract or agreement with a third party and (ii)
21 where such entity is acting as a procurement conduit, rather than being
22 directly responsible for the goods or services.
23 2. The comptroller may promulgate such rules and regulations as may be
24 necessary to enforce this section, including the standards for determin-
25 ing whether a contract is prohibited by this section.
26 § 2. This act shall take effect immediately and shall apply to
27 contracts entered into on and after such date.
28 PART D
29 Section 1. The state finance law is amended by adding a new section
30 148 to read as follows:
31 § 148. Comptroller approval of the research foundation of the state
32 university of New York contracts. Notwithstanding any other provision of
33 law, before any contract made for or by the research foundation of the
34 state university of New York which is to be paid in whole or in part
35 from monies appropriated or assigned by the state shall be executed or
36 become effective, whenever such contract exceeds one million dollars in
37 amount, it shall first be approved by the state comptroller and filed in
38 his or her office. The comptroller shall make a final written determi-
39 nation with respect to approval of such contract within ninety days of
40 the submission of such contract to his or her office unless the comp-
41 troller shall notify, in writing, the research foundation of the state
42 university of New York prior to the expiration of the ninety day period,
43 and for good cause, of the need for an extension of not more than
44 fifteen days, or a reasonable period of time agreed to by the research
45 foundation of the state university of New York and provided, further,
46 that such written determination or extension shall be made part of the
47 procurement record.
48 § 2. This act shall take effect immediately and shall apply to
49 contracts entered into on and after such date.
50 PART E
A. 6355--A 8
1 Section 1. Subdivision 3 of section 141 of the economic development
2 law, as amended by section 14 of part L of chapter 55 of the laws of
3 2012, is amended to read as follows:
4 3. "Procurement contract" shall mean any written agreement entered
5 into by an agency for the acquisition of goods, services, or
6 construction of any kind, including agreements awarded by an agency to a
7 single source, a sole source or pursuant to any other method of procure-
8 ment that is not competitive, in the actual or estimated amount of fifty
9 thousand dollars or more. The term does not include an agreement for
10 employment in the civil service.
11 § 2. Paragraph (c) of subdivision 2 and subdivision 5 of section 142
12 of the economic development law, as amended by chapter 137 of the laws
13 of 2008, are amended and a new paragraph (d) is added to subdivision 2
14 to read as follows:
15 (c) for all [other] procurement contracts issued by agencies pursuant
16 to a competitive method of procurement including, but not limited to, an
17 invitation for bid, request for proposals or other means of solicita-
18 tion, for an amount in excess of fifty thousand dollars (i) the name of
19 the contracting agency; (ii) the contract identification number; (iii) a
20 brief description of the goods or services sought, the location where
21 goods are to be delivered or services provided and the contract term;
22 (iv) the address where bids or proposals are to be submitted; (v) the
23 date when bids or proposals are due; (vi) a description of any eligibil-
24 ity or qualification requirement or preference; (vii) a statement as to
25 whether the contract requirements may be fulfilled by a subcontracting,
26 joint venture, or co-production arrangement; (viii) any other informa-
27 tion deemed useful to potential contractors; (ix) the name, address, and
28 telephone number of the person to be contacted for additional informa-
29 tion; and (x) a statement as to whether the goods or services sought had
30 in the immediately preceding three year period been supplied by a
31 foreign business enterprise.
32 (d) for all procurement contracts issued by agencies to a single
33 source, a sole source or pursuant to any other method of procurement
34 that is not competitive, for an amount in excess of fifty thousand
35 dollars (i) the name of the contracting agency; (ii) the name of the
36 recipient of the intended contract, if known at the time; (iii) the
37 contract identification number; (iv) a brief description of the goods or
38 services sought, the location where goods are to be delivered or
39 services provided and the contract term; (v) a description of any eligi-
40 bility or qualification requirement or preference; (vi) a statement as
41 to whether the contract requirements may be fulfilled by a subcontract-
42 ing, joint venture, or co-production arrangement; (vii) any other infor-
43 mation deemed useful to potential contractors; (viii) the name, address,
44 and telephone number of the person to be contacted for additional infor-
45 mation; and (ix) a statement as to whether the goods or services sought
46 had in the immediately preceding three year period been supplied by a
47 foreign business enterprise.
48 5. In addition to any other notice of procurement contract opportu-
49 nities required in this section, for procurement contracts in the amount
50 of two hundred thousand dollars or more to be awarded by all [state]
51 agencies, each agency shall prepare for inclusion in the procurement
52 opportunities newsletter (a) a semi-annual listing of projected procure-
53 ment purchases by category, including projected purchases to be awarded
54 to a single source, a sole source or pursuant to any other method of
55 procurement that is not competitive; (b) an explanation of how to apply
56 for placement on any bidder list maintained by the agency; and (c) a
A. 6355--A 9
1 description of procedures for providing advance notification by mail to
2 individuals or business entities on such bidder lists of any request for
3 proposals, in accordance with rules and regulations promulgated by the
4 agency. The commissioner, in consultation with each agency, shall
5 arrange a schedule for each agency's semi-annual listing.
6 § 3. Subdivisions 1 and 4 of section 143 of the economic development
7 law, subdivision 1 as added by chapter 564 of the laws of 1988 and
8 subdivision 4 as added by section 16 of part L of chapter 55 of the laws
9 of 2012, are amended to read as follows:
10 1. Prior to awarding any procurement contract, each agency shall
11 submit to the commissioner information sufficient to enable publication
12 of the notices of procurement contract opportunities described in subdi-
13 vision two of section one hundred forty-two of this article. Such infor-
14 mation shall be submitted to the commissioner in sufficient time to
15 allow a minimum of fifteen business days between publication of such
16 notice and the date on which a bid or proposal is due, except where a
17 shorter period is specifically authorized by law provided, however:
18 (a) in the case of procurement contracts issued by a public benefit
19 corporation or state authority whose contracts and payments are not
20 approved and pre-audited by the comptroller, to a single source, a sole
21 source or pursuant to any other method of procurement that is not
22 competitive, in sufficient time to allow a minimum of fifteen business
23 days between publication of such notice and the date on which the state
24 authority or public benefit corporation intends to make a contract
25 award; or
26 (b) in the case of procurement contracts issued by agencies other than
27 public benefit corporations or state authorities, to a single source, a
28 sole source or pursuant to any other method of procurement that is not
29 competitive, in sufficient time to allow a minimum of fifteen business
30 days between publication of such notice and the date the agency intends
31 to deliver the request for exemption from advertising to the state comp-
32 troller.
33 4. At the time an agency enters into a contract with a single or sole
34 source provider pursuant to section one hundred sixty-three of the state
35 finance law, or pursuant to any other method of procurement that is not
36 competitive, for an amount in excess of fifty thousand dollars, such
37 agency shall submit an announcement of the intended contract for inclu-
38 sion in the procurement opportunities newsletter, and shall specify the
39 recipient of the contract.
40 § 4. Section 146 of the economic development law, as amended by chap-
41 ter 173 of the laws of 2014, is amended to read as follows:
42 § 146. Approval of comptroller. The comptroller shall not approve or
43 file any procurement contract for the acquisition of goods or services,
44 or construction of any kind, in the amount of fifty thousand dollars or
45 more unless notice as provided in section one hundred forty-two of this
46 article shall first have been published in the procurement opportunities
47 newsletter at least fifteen business days prior to the date on which a
48 bid or proposal was due or, in the case of procurement contracts issued
49 to a single source, a sole source or pursuant to any other method of
50 procurement that is not competitive, at least fifteen business days
51 prior to the date on which the agency intends to deliver the request for
52 exemption from advertising to the state comptroller and enter into the
53 contract. Provided, however, such requirement of publication of advance
54 notice shall not apply to contracts exempt from such requirement under
55 section one hundred forty-four of this article; provided further, that
56 the comptroller shall not be required to disapprove a contract if he or
A. 6355--A 10
1 she determines that there has been substantial compliance with the
2 requirements of section one hundred forty-two and section one hundred
3 forty-three of this article. The foregoing provisions of this section
4 shall not be construed to limit, in any manner, the right of the comp-
5 troller to demand evidence of adequate competition or such other proofs
6 as he or she may require in the discharge of his or her responsibilities
7 pursuant to section one hundred twelve of the state finance law or any
8 other provision of law.
9 § 5. This act shall take effect immediately.
10 PART F
11 Section 1. The state finance law is amended by adding a new section
12 139-l to read as follows:
13 § 139-l. Conflicts of interest of state officers and employees in
14 state procurements; prohibited. (a) No state officer or employee as
15 defined in section seventy-three of the public officers law shall:
16 1. have any interest, financial or otherwise, direct or indirect, in
17 any contract other than one permissible pursuant to paragraph (a) of
18 subdivision four of section seventy-three of the public officers law; or
19 2. take any action or otherwise involve himself or herself in any
20 activity which, pursuant to the provisions of this chapter or the public
21 officers law, would be deemed a conflict of interest for a state officer
22 or employee that may reasonably be expected to impair the officer's or
23 employee's independent judgment or ability to act impartially and in the
24 best interest of the state, or that may reasonably create the appearance
25 of impropriety through the appearance of favoritism or preferential
26 treatment.
27 (b) If such conflict of interest exists, the state officer or employee
28 must immediately recuse himself or herself in writing from the procure-
29 ment and submit such recusal to the state agency officer in charge of
30 procurement and contracting to be included in the procurement record to
31 the state agency's ethics officer, and to the agency head.
32 § 2. Article 1 of the public authorities law is amended by adding a
33 new title 3 to read as follows:
34 TITLE 3
35 ETHICAL STANDARDS FOR STATE AUTHORITIES
36 Section 10. Conflicts of interest of state authority board members,
37 officers and employees in authority procurements; prohib-
38 ited.
39 § 10. Conflicts of interest of state authority board members, officers
40 and employees in authority procurements; prohibited. 1. No state author-
41 ity board member, officer or employee shall with respect to any state
42 contract or state authority contract:
43 (a) have any interest, financial or otherwise, direct or indirect, in
44 any contract other than one permissible pursuant to paragraph (a) of
45 subdivision four of section seventy-three of the public officers law; or
46 (b) take any action or otherwise involve himself or herself in any
47 activity which, pursuant to the provisions of this chapter or the public
48 officers law, would be deemed a conflict of interest that may reasonably
49 be expected to impair the board member's, officer's or employee's inde-
50 pendent judgment or ability to act impartially and in the best interest
51 of the state authority, or that may reasonably create the appearance of
52 impropriety through the appearance of favoritism or preferential treat-
53 ment.
A. 6355--A 11
1 2. If such conflict of interest exists, the state authority board
2 member, officer or employee must immediately recuse himself or herself
3 in writing and submit such recusal to the state authority's ethics offi-
4 cer and any official or committee charged with overseeing ethical
5 conduct in the authority, the chief executive official of the authority
6 and the board chair, as appropriate, the appointing official, and the
7 officer in charge of the authority's procurements to be included in the
8 state authority's procurement record. Any state authority board member
9 who submits such recusal shall also submit such recusal to the appoint-
10 ing official with responsibility for such board member's appointment
11 and, in the case of board members appointed at the recommendation of
12 another official, must also submit such recusal to the recommending
13 official.
14 § 3. This act shall take effect immediately.
15 § 2. Severability clause. If any clause, sentence, paragraph, subdivi-
16 sion, section or part of this act shall be adjudged by any court of
17 competent jurisdiction to be invalid, such judgment shall not affect,
18 impair, or invalidate the remainder thereof, but shall be confined in
19 its operation to the clause, sentence, paragraph, subdivision, section
20 or part thereof directly involved in the controversy in which such judg-
21 ment shall have been rendered. It is hereby declared to be the intent of
22 the legislature that this act would have been enacted even if such
23 invalid provisions had not been included herein.
24 § 3. This act shall take effect immediately provided, however, that
25 the applicable effective date of Parts A through F of this act shall be
26 as specifically set forth in the last section of such Parts.
