PROCUREMENT LOBBYING LAW
FREQUENTLY ASKED QUESTIONS (FAQs)
Replaces previously released version in its entirety
5.3. Once it has been determined that State Finance Law §§ 139-j and 139-k applies, what should a Governmental Entity do? (Last Updated: 2/16/2006)
A. Require Disclosure
The State Finance Law §§139-j and 139-k requires a Governmental Entity to collect certain information about a person or organization contacting it about a Governmental Procurement in attempts to influence such procurement during the Restricted Period. In addition, a Governmental Entity must obtain information from Offerers about any findings of non-responsibility made within the previous four years by any Governmental Entity and if the finding of non-responsibility was due to (1) engaging in impermissible Contacts with a Governmental Entity or (2) the intentional provision of false or incomplete information to a Governmental Entity.
See State Finance Law§139-k (2).
It is the responsibility of the Governmental Entity to request such information in its solicitation or initial bid documents.
B. Record keeping by Governmental Entity
Under the State Finance Law §139-k, it is recognized that a Governmental Entity may be contacted by an individual or entity that reasonably appears to be attempting to influence the procurement during the Restricted Period. If the Governmental Entity is contacted, it must record the contact, obtaining the following specific information for each contact:
Information to be obtained consists of:
- Name of Person and Organization
- Telephone Number
- Place of Principal Employment
- Record Whether the Person/Organization Making the Contact was the Offerer or was Retained, Employed or Designated by or on behalf of the Offerer to appear before or contact the Governmental Procurement.
See State Finance Law §139-k (4).
These records of Contact shall be included in the procurement record for the Procurement Contract.
Good practice by a Governmental Entity will include a written process for consistent record keeping and appropriate referral if someone other than the designated contacts(s) is contacted during the Restricted Period.
C. Determination of responsibility by a Governmental Entity
The State Finance Law requires a Governmental Entity to make a determination of responsibility before awarding a Procurement Contract to an Offerer. In addition to responsibility factors such as financial and organizational capacity, legal authority, integrity, and past performance, the new provisions of the State Finance Law now require Governmental Entities to consider in responsibility determinations any violation of the permissible Contact requirements of State Finance Law § 139-j and the disclosure requirements of State Finance Law § 139-k. There must be a determination of non-responsibility if it is found that the Offerer knowingly and willfully made an impermissible Contact or failed to timely disclose accurate and complete information or otherwise cooperate in providing the information required by State Finance Law §139-k.
See State Finance Law §§ 139-k (2), (3) and (7).
A Governmental Entity is precluded from awarding a Procurement Contract to an Offerer that has been determined to be non-responsible because of a knowing and willful violation of the prohibitions of State Finance Law § 139-j against impermissible Contacts during the Restricted Period unless the Governmental Entity finds that the award of the Procurement Contract to the Offerer is necessary to protect public property or public health safety, and that the Offerer is the only source capable of supplying the required Article of Procurement within the necessary timeframe.
See State Finance Law §§ 139-j (10)(b) and 139-k (3).
In addition, refer to other FAQs herein regarding the obligations of Governmental Entities under the State Finance Law.