Replaces previously released version in its entirety


8.10. What do the phrases “attempt to influence” and “intended to influence” mean in State Finance Law §§ 139-j and 139-k? (Last Updated: 6/14/2010)

State Finance Law §139-j (3)(b) in part states “[e]ach offerer that contacts a Governmental Entity about a Governmental Procurement shall only make permissible Contacts with respect to the Governmental Procurement, which shall mean that the Offerer: … shall not attempt to influence the Governmental Procurement in a manner that would result in a violation ….” State Finance Law §139-j(1)(c) defines “Contact” to mean communications where a reasonable person would infer that the communication “was intended to influence the Governmental Entity’s conduct or decision regarding the Governmental Procurement.” Neither provision, however, defines the phrases “attempt to influence” and “intended to influence.”

The New York State Lobbying Act (“Lobbying Act”) also uses the phrase “attempt to influence” and has provided the following guidance regarding the phrase: “Attempts to Influence" means any activity intended to support, oppose, modify, delay, expedite or otherwise affect any of the governmental actions specified in § 1-c(c).”

Under the State Finance Law, the determination of whether a communication is an “attempt to influence” or is “intended to influence” the Governmental Entity’s conduct or decision regarding a Governmental Procurement should be made on a case by case basis through application of the “reasonable person” standard. The question that must be asked is whether or not a reasonable person would believe that the activity, regardless of the form, is intended to make the Governmental Entity take or not take affirmative action with respect to a Governmental Procurement. However, it should be noted that the State Finance Law analysis is limited to the duration of the Restricted Period.


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