PROCUREMENT LOBBYING LAW
FREQUENTLY ASKED QUESTIONS (FAQs)
Replaces previously released version in its entirety
12.10. Must an investigation of a proposed awardee for potential violations of State Finance Law §§139-j and 139-k be concluded before the contract can be completed? (Last Updated: 2/8/2007)
Yes. The State Finance Law provisions set forth several related responsibility determinations about a proposed awardee that must be concluded prior to the completion of a Procurement Contract. The term "proposed awardee" is commonly understood to refer to the person or entity tentatively awarded a Procurement Contract by the Governmental Entity. Specifically, the following determinations are required:
- State Finance Law §139-j(7) - a Governmental Entity cannot award a Procurement Contract until a final determination of responsibility is made regarding the proposed awardee.
- As applicable, State Finance Law §163(9)(f) provides that prior to making an award of contract, each state agency shall make a determination of responsibility of the proposed contractor which shall supplement, as appropriate, but not supersede the determination of responsibility that may be required pursuant to State Finance Law §139-k.
- State Finance Law §139-k(2) requires the collection of specific information on prior non-responsibility determinations, including determinations based on violations of State Finance Law §139-j.
- State Finance Law §139-k(3) mandates that a Governmental Entity consider the failure of an Offerer to timely disclose accurate or complete information to a governmental entity pursuant to State Finance Law §139-j(2) in determining responsibility of an Offerer.
- State Finance Law §139-j(10) requires an investigation into allegations that an Offerer violated the provisions of State Finance Law §139-j (3).
- State Finance Law §139-j (10) (b) states that after such investigation, a finding that an Offerer knowingly and willfully violated §139-j (3) shall result in a determination of non-responsibility and prohibit an Offerer from being awarded the procurement contract unless extenuating circumstances exist as set forth therein.
Both State Finance Law §§139-j(7) and, as applicable, 163(9)(f) prohibit award of a contract to a proposed awardee or proposed contractor if such entity is determined to be non-responsible, with limited exception. Therefore, in order for the Governmental Entity to satisfy these statutory requirements, the investigations of the proposed awardee must be concluded prior to the completion of the Procurement Contract.
Please note that a Governmental Entity is not required to complete its investigation of all Offerers prior to the award of a Procurement Contract. The statutory penalty of not being awarded a contract is only applicable to the proposed awardee; the consequences to an Offerer (who is not a proposed awardee) who violates State Finance Law §§139-j or 139-k do not have the same timing requirements.