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OGS Procurement Services Group 2007 State Purchasing Forum State Finance Law Aspects of the Procurement Lobbying Law

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Presenter’s Contact Information. Lisa K. Fox Legal Services New York State Office of General Services [email protected] (518) 474-5988. OGS Website: www.ogs.state.ny.us. - PowerPoint PPT Presentation

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Page 1: Presenter’s Contact Information

OGS Procurement Services Group 2007 State Purchasing Forum

State Finance Law Aspects of the Procurement Lobbying Law

Page 2: Presenter’s Contact Information

2007 Purchasing Forum – Aspects of the Procurement Lobbying Law

Presenter’s Contact Information

Lisa K. Fox

Legal Services

New York State Office of General Services

[email protected]

(518) 474-5988

OGS Website:

www.ogs.state.ny.us

Page 3: Presenter’s Contact Information

2007 Purchasing Forum – Aspects of the Procurement Lobbying Law

Overview

• The Procurement Lobbying Law obligates Governmental Entities and Offerers to undertake specific actions as part of the procurement process

• Sets forth specific requirements regarding communications during the procurement process

• Establishes specific contractual requirements

Page 4: Presenter’s Contact Information

2007 Purchasing Forum – Aspects of the Procurement Lobbying Law

Imposes new consequences if Offerers have impermissible communications

• Non-responsibility determination

• No contract award

• Debarment for four year period

Prohibited from submitting proposals

Prohibited from receiving contract awards

How Can this Law Impact Your Business?

Page 5: Presenter’s Contact Information

2007 Purchasing Forum – Aspects of the Procurement Lobbying Law

• Two separate sets of provisions

Legislative Law

State Finance Law §§139-j and 139-k • Requirements are different

• Requirements apply at different times to different communications

• Need to determine if both laws apply to your business

What is the Procurement Lobbying Law?

Page 6: Presenter’s Contact Information

2007 Purchasing Forum – Aspects of the Procurement Lobbying Law

• Business community is only allowed to make “permissible Contacts”

• Two kinds of “permissible Contacts”

• 1st – Designated Contact – person or persons identified by Governmental Entity to receive “Contacts” on a transaction

• 2nd – Permissible Subject Matter Categories

Series of common stages in a procurement

New Statute May Require Change to Business Practices

Page 7: Presenter’s Contact Information

2007 Purchasing Forum – Aspects of the Procurement Lobbying Law

Who is a Designated Contact?

• A person or persons identified by a Governmental Entity to receive “Contacts” on a transaction

• Generally identified in a writing provided to the business community

• Can receive all communications and Contacts on a procurement

Page 8: Presenter’s Contact Information

2007 Purchasing Forum – Aspects of the Procurement Lobbying Law

Permissible Subject Matter Categories

#1 - submission of a written proposal from an Offerer

#2 - submission of written questions in accordance with a process sent out in the solicitation, that must include sending all responses to all Offerers

#3 - participation in a conference provided for in a solicitation

Page 9: Presenter’s Contact Information

2007 Purchasing Forum – Aspects of the Procurement Lobbying Law

#4 - complaints by an Offerer that the Designated Contact has not been responsive filed in writing to Counsel’s Office

#5 - negotiation of a Procurement Contact after tentative award

#6 - review of a procurement contract award (debriefings)

Permissible Subject Matter Categories

Page 10: Presenter’s Contact Information

2007 Purchasing Forum – Aspects of the Procurement Lobbying Law

#7 - protests, appeals or other review proceedings, such as judicial

proceedings or allegations of improper conduct. Category includes the ability of an Offerer to file a written protest, appeal or complaint to the state comptroller’s office during the process of contract approval

Permissible Subject Matter Categories

Page 11: Presenter’s Contact Information

2007 Purchasing Forum – Aspects of the Procurement Lobbying Law

Net Result

• Business can always “Contact” the Designated Contact

• “Contacts” to Non-Procuring Governmental Entity are limited to SFL §139-j(3)(a)(1-7) (PSMC)

Page 12: Presenter’s Contact Information

2007 Purchasing Forum – Aspects of the Procurement Lobbying Law

• If “Contact” made to someone else, it may be violation of statute and could result in debarment (“impermissible Contact”)

• “Contacts” to Non-Procuring Governmental Entity are limited to SFL §139-j(3)(a)(1-7)

Protests, appeals or complaints to OSC must

be written

A “contact” to a non-procuring governmental entity could result in debarment

Page 13: Presenter’s Contact Information

2007 Purchasing Forum – Aspects of the Procurement Lobbying Law

• Applies to contracts over $15,000 annualized value with more than 400 different governmental entities

Applies to construction and professional services contracts

Applies to sole and single source contracts

• Limited transactions are exempt from these new requirements, such as grants and intergovernmental agreements

Contracts Subject to Requirements

Page 14: Presenter’s Contact Information

2007 Purchasing Forum – Aspects of the Procurement Lobbying Law

• “Restricted Period” - Time period from advertisement or other request for a proposal until the contract receives all the required approvals, such as OSC approval

• This is the only time period where these formal requirements apply regarding who can be “Contacted” and the creation of a record

Applies to a specific transaction

New State Finance Law Requirements Apply During the Restricted Period

Page 15: Presenter’s Contact Information

2007 Purchasing Forum – Aspects of the Procurement Lobbying Law

Example of State Agency Competitive Procurement

Definition of business need

Restricted Period(limits who can

receive Contacts)

Ad in Contract Reporter

Approval of

contractby OSC

Page 16: Presenter’s Contact Information

2007 Purchasing Forum – Aspects of the Procurement Lobbying Law

• Not all communications are “Contacts”!

• Communications that are intended to influence the governmental procurement (Contacts)

• However, communications with Legislature are not governed by the State Finance Law (unless a legislative procurement)

New Requirements Apply to “Contacts”

Page 17: Presenter’s Contact Information

2007 Purchasing Forum – Aspects of the Procurement Lobbying Law

• A Contact is an

oral, written or electronic communication

with a Governmental Entity

under circumstances where a reasonable person would infer

the communication was intended to influence the Governmental Procurement

• Treatment of a communication may be different under Legislative Law

What is a Contact?

Page 18: Presenter’s Contact Information

2007 Purchasing Forum – Aspects of the Procurement Lobbying Law

• Offerer must provide written affirmation on understanding of and agreement to entity’s policy on permissible Contacts

Affirmation is element examined to determine if an impermissible Contact was knowing and willful

• Offerer must certify that information provided under State Finance Law §139-k is complete, true and accurate

Standardized Information Collection and Contract Provisions

Page 19: Presenter’s Contact Information

2007 Purchasing Forum – Aspects of the Procurement Lobbying Law

• Offerer must disclose additional information about prior findings of non- responsibility

Expansion of the areas examined for vendor responsibility

• Offerer must agree to the inclusion of specific termination clause in contract

Page 20: Presenter’s Contact Information

2007 Purchasing Forum – Aspects of the Procurement Lobbying Law

For the Business Community

• Understand the Government Entity’s policy on permissible Contacts and consider its impact on how conduct business

• Very significant consequences of impermissible Contacts – non-responsibility finding or debarment

OGS is obligated to maintain a listing of these determinations on the Internet

Page 21: Presenter’s Contact Information

2007 Purchasing Forum – Aspects of the Procurement Lobbying Law

• Determine if there is a Restricted Period- Ask the right questions!

• Determine who is the Designated Contact for that procurement

• Follow the processes in the solicitation

• Direct communications and Contacts correctly

• Comply with requests for information

For the Business Community

Page 22: Presenter’s Contact Information

2007 Purchasing Forum – Aspects of the Procurement Lobbying Law

• Understand the Governmental Entity’s policy on permissible Contacts before execute the affirmation

–Affirmation is a legal document that will be examined if there is an allegation of a possibly impermissible Contact

• Provide training to staff – especially on the Restricted Period and directing communications to the Designated Contacts

Page 23: Presenter’s Contact Information

2007 Purchasing Forum – Aspects of the Procurement Lobbying Law

• Advisory Council on Procurement Lobbying has prepared guidance, model forms and language and other materials that are available at:

http://www.ogs.state.ny.us/aboutOgs/ regulations/defaultAdvisoryCouncil.html

• This web site and its materials can be used to educate staff and the business community regarding these legal requirements.

Where to Get More Information

Page 24: Presenter’s Contact Information

2007 Purchasing Forum – Aspects of the Procurement Lobbying Law

Questions and Answers

?

Page 25: Presenter’s Contact Information

2007 Purchasing Forum – Aspects of the Procurement Lobbying Law

Presenter’s Contact Information

Lisa K. Fox

Legal Services

New York State Office of General Services

[email protected]

(518) 474-5988

OGS Website:

www.ogs.state.ny.us