Replaces previously released version in its entirety


8.11. State Finance Law §139-j requires a Governmental Entity to make a determination about an Offerer’s responsibility. This determination is made during the Restricted Period and requires the exchange of information between the Offerer and Governmental Entity. The State Finance Law does not clearly provide a category of Permissible Subject Matter Communications to facilitate this review. Would Contacts between an Offerer or an Offerer's attorney and the legal department of the Governmental Entity reviewing an Offerer's integrity or responsibility be classified as a Permissible Subject Matter Communication pursuant to State Finance Law §139-j(3)(a)? If not, would this Contact between the Offerer or its attorney and legal department of the Governmental Entity be otherwise exempted from the recording requirements of State Finance Law §139-k(4)? (Last Updated: 6/14/2010)

Materials and information exchanged between a Governmental Entity and an Offerer that are solely intended to facilitate the process of rendering a responsibility determination fall within the Permissible Subject Matter Communication category set forth at State Finance Law §139-j(3)(a)(8). Therefore, an Offerer and its representatives may communicate with other employees of the procuring Governmental Entity regarding a responsibility review and determination. As noted, the statute obligates the Governmental Entity to make a final determination as to the Offerer’s responsibility, examining whether the Offerer has a prior determination of non-responsibility as a result of a violation of State Finance Law §139-j, the intentional provision of false or incomplete information to a Governmental Entity or the other factors referenced in applicable law (see State Finance Law §139-j(7)). If such communications are a Contact, then State Finance Law §139-k(4) requires the creation of a record setting forth the required information.


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