Policy Statement
OGS is required to comply with the provisions of State Finance Law §§ 139-j and 139-k, commonly referred to as the Procurement Lobbying Law (the “Law”). The Law was established to increase public disclosure of persons and organizations (“Vendors”) contacting State government employees to influence determinations of procurements for goods and services and real estate transactions (“Procurements”). By regulating the communications between Vendors and government employees in connection with Procurements, the Law increases transparency and accountability in New York State’s procurement processes, thereby increasing public confidence in the actions of State officials and employees. This Policy will attempt to explain the Law in plain language.
- Both sections of the Law use defined terms to establish the restrictions on procurement lobbying and it is the policy of OGS that those employees who are involved with procurement contracts shall become familiar with the following definitions.
- In order to understand what communications are allowed under the Law, one must understand the term “Contacts” as it is used in the Law. The Law uses this term in two different ways.
- The term “Contact” by itself means any oral, written or electronic communication with a governmental entity under circumstances where a reasonable person would infer that the communication was intended to influence the governmental entities conduct or decision regarding the Procurement.
- The Law also uses the term “Designated Contact,” which means a person or persons identified by the governmental entity as knowledgeable about the Procurement and able to communicate with Vendors about the Procurement; Designated Contacts are typically listed in advertisement or solicitation of a request for proposals, invitation for bids or solicitation of proposals or any other method allowed by law or regulation to solicit a response from Vendors in relation to a Procurement.
- Another key term to understand is the “Restricted Period.” The Restricted Period begins with the earliest posting on a governmental entity’s website, in a newspaper of general circulation, or in the Contract Reporter of written notice, advertisement or solicitation of a request for proposals, invitation for bids or solicitation of proposals or any other method allowed by law or regulation to solicit a response from Vendors in relation to a Procurement and ends with the final contract award and approval by the governmental entity and, where applicable, the State Comptroller.
- Finally, “Offerer” means the individual or entity, or any employee, agent or consultant or person acting on behalf of such individual or entity, that Contacts a governmental entity about a governmental Procurement during the Restricted Period of such governmental Procurement whether or not they have a financial interest in the outcome of the Procurement.
- A governmental agency or its employees that communicate with the procuring agency regarding the Procurement are not considered Offerers.
- In order to comply with the Law, Vendors must ensure that, during the Restricted Period, all Contacts with the government entity regarding the Procurement are “Permissible Contacts.” The corollary to this rule is that Vendors must avoid any “Impermissible Contacts.”
- There are two types of Permissible Contacts. The first is a Contact with one or more of the Designated Contacts for the Procurement. The Designated Contacts are a safe harbor for Vendor communications and should always be a Vendor’s first option for communicating with the State about a Procurement during a Restricted Period.
- The second type of Permissible Contact is a Contact with someone other than a Designated Contact that falls within one of following “Eleven Subject Matter Exceptions,” and therefore, is not deemed to be an Impermissible Contact in violation of the Law.
- The Eleven Subject Matter Exceptions:
(1) The submission of written proposals in response to a request for proposals, invitation for bids, or other solicitation;
(2) The submission of written questions, in accordance with the solicitation, when all written questions and responses are to be disseminated to all Vendors;
(3) Participation in a demonstration, conference or other means for exchange of information in a setting open to all Vendors;
(4) Written complaints to the general counsel of the procuring entity by a Vendor regarding the failure of the Designated Contacts to respond in a timely manner to Contacts from a Vendor, provided that such written complaints must be provided to the procuring governmental entity in order to be included in the procurement record;
(5) Contacts by a Vendor that has been tentatively awarded a contract and is engaged in communications with the procuring governmental entity solely for the purpose of negotiating the terms of the contract after being notified of tentative award;
(6) Contacts between Designated Contacts and a Vendor to request the review of a contract award;
(7)
(a) Contacts by Vendors in protests, appeals or other review proceedings before the procuring governmental entity seeking a final administrative determination, or in a subsequent judicial proceeding; or
(b) complaints of alleged improper conduct in a Procurement to the Attorney General, Inspector General, district attorney, or a court of competent jurisdiction; or
(c) protests, appeals or complaints to the State Comptroller's Office, when the Procurement is subject to the Comptroller’s approval; or
(d) complaints of alleged improper conduct in a Procurement conducted by a municipal agency or local legislative body to the State Comptroller's Office;
(8) Communications between Vendors and governmental entities that solely address the determination of responsibility by a governmental entity;
(9) Communications relating to a Procurement made under State Finance Law § 162, related to preferred source contracts;
(10) Complaints by certified minority-owned business enterprises or women-owned business enterprises to the minority and women-owned business enterprise statewide advocate concerning the governmental entity’s failure to comply with Executive Law § 315; and
(11) Communications between the minority and women-owned business enterprise statewide advocate and the governmental entity in furtherance of an investigation by the advocate pursuant to Executive Law § 312 (a).
- An Impermissible Contact is a Contact, during the Restricted Period, with a person in a procuring governmental entity who is not the Designated Contact that does not fall into one of the eleven permissible subject matter exceptions or a Contact, during the Restricted Period with any person at a governmental entity other than the procuring governmental entity.
- NOTE: There is an exception for Contacts with the State Legislature or State legislative staffers, acting an official capacity, about a Procurement as long as the Procurement is not being conducted by the State Legislature. OGS Staff must record all Contacts, both Permissible and Impermissible, that occur during the Restricted Period.
OGS recognizes that a vital part of the Procurement process is active communication between State employees and Vendors. Properly managed, Contacts and communications between State agencies and the Vendors are both appropriate and necessary to a successful Procurement. In order to properly manage such communications, OGS staff must comply with the following requirements of the Law:
- The Law requires that OGS designate Designated Contact(s) for the Procurement that are knowledgeable about the Procurement at the time that a Restricted Period is imposed and make the Designated Contact information available to the public as part of the selected procurement methodology. OGS staff shall refer all communications on a Procurement to the Designated Contact(s) for that Procurement.
- All Contacts, both Permissible and Impermissible, must be recorded and the information provided to the OGS Designated Contact for the Procurement. The name, address, telephone number, place of principal employment and occupation of the person or organization making the Contact must be provided. In addition, information on whether the person that made the Contact is employed by the Vendor or is retained or designated by or on behalf of the Vendor to Contact OGS regarding the Procurement needs to be recorded and shared with the OGS Designated Contact for the Procurement as soon as possible after the Contact has been made. This information must be included in the procurement record
- During the Restricted Period, if Contacts are made to staff that are not named as Designated Contacts about a matter that does not fall within one of the Permissible Subject Matter Exceptions, set forth above, that Contact must be reported to the OGS Designated Contact for the Procurement as an allegation of a possible violation of the Law. OGS will conduct an investigation to determine if sufficient cause exists to believe that a violation of the Law occurred. Generally, OGS must deny an award of contract to a Vendor who is found to have been involved in a knowing and willful violation of the Law.
Additional information on the Law can be found on the webpage of the Advisory Council on Procurement Lobbying. Questions about the Law can be directed to the OGS Designated Contact for a particular Procurement.