NY Temporary State Commission on Lobbying
Procurement LobbyingContractor Informational Session
Lobby Education Unit
NY Temporary State Commission on Lobbying
Lobby Education Unit
New TermsExemptionsRestricted PeriodThe Procurement ProcessCommission Salesperson
Outline
NY Temporary State Commission on Lobbying
Lobby Education Unit
What is
Any attempt to influence any determination by a public
official, or a person or entity working with a public official, related to a governmental procurement.
Procurement Lobbying?
NY Temporary State Commission on Lobbying
Lobby Education Unit
Terms“Governmental Procurement” shall mean:
1. Preparation or terms of specifications, bid documents, request for proposals (RFPs), or evaluation criteria for a procurement contract; or
2. Solicitation for a procurement contract; or3. Evaluation of a procurement contract; or4. Award/approval/denial/disapproval of a
procurement contract; or5. Approval/denial of an assignment,
amendment, renewal or extension of a procurement contract; or
6. Any other material change in the procurement contract resulting in a financial benefit to the offerer
NY Temporary State Commission on Lobbying
Lobby Education Unit
Terms“Procurement Contract” means any contract or agreement for an Article of Procurement involving an estimated annualized expenditure in excess of $15,000, except:
Smaller value contracts with an estimated annualized expenditure under $15,000;Grants;Article XI-B state finance law contracts;Intergovernmental agreements;Railroad and utility force accounts, and utility relocation project agreements;Orders and eminent domain transactions
NY Temporary State Commission on Lobbying
Lobby Education Unit
Terms“Article of Procurement” shall include the
following, when subject to governmental procurement:
1. Commodities;2. Services;3. Technology;4. Public Works;5. Construction;6. Revenue Contracts;7. Real Property
NY Temporary State Commission on Lobbying
Lobby Education Unit
Exemptions to the
Exemptions A-F are consistent with the previous act.
A. Limited professional servicesB. MediaC. Witness, attorney or other
representativeD. NYS Administrative Procedure ActE. Comments in responseF. Church
definition of “Lobbying”
NY Temporary State Commission on Lobbying
Lobby Education Unit
Exemptions G-Q
G. Procurement Activities by Certain Non- profits undertaken by:
The non-profit making agencies appointed pursuant to § 162 (6) (e) by the Commissioner of the Office of Children and Family Services;
The Commissioner for the Blind and Visually Handicapped;
The Commissioner of Education;The qualified charitable non-profit
making agencies for the blind; andQualified charitable non-profit making
agencies for other severely disabled persons as identified in § 162 (2)
NY Temporary State Commission on Lobbying
Lobby Education Unit
Exemptions G-Q
H. Procurement Conference Participation:
Participants, including those appearing on behalf of a client, in a conference provided for in a request for proposal (RFP), invitation for bid (IFB), or any other method for soliciting a response from offerers intending to result in a procurement contract.
NY Temporary State Commission on Lobbying
Lobby Education Unit
Exemptions G-Q
I. Certain Procurement-related Communications
Negotiation after tentative award: Offerers, tentatively awarded a contract, and communicating solely for the purpose of negotiating the terms of the procurement contract after being notified of such award; orNegotiations when an article of procurement is being purchased pursuant to an existing article of procurement and offerers engage in communications with the procuring entity in relation to an existing contract solely for the purpose of negotiating terms applicable to that purchase;
NY Temporary State Commission on Lobbying
Lobby Education Unit
Exemptions G-Q
J. Party to a protest, appeal or review;Bring complaints of alleged improper conduct in a
governmental procurement to the attorney general, inspector general, district attorney, or court of competent jurisdiction; or
Submit written protests, appeals or complaints to the state comptroller’s office during the process of contract approval, where the state comptroller’s approval is required by law, and where such communications and any responses thereto are made in writing and shall be entered in the procurement record pursuant to § 163 of the state finance law; or
Bring complaints of alleged improper conduct in a governmental procurement conducted by a municipal agency or local legislative body to the state comptroller’s office;
NY Temporary State Commission on Lobbying
Lobby Education Unit
Exemptions G-Q
K. Submission of the bid or proposal itself: Submitting a bid or proposal in response to a solicitation for such does not constitute
lobbying.
L. Offerers submitting written questions, provided the questions and responses
are shared: Offerers submitting written questions to a designated contact set forth in a request for proposals, or invitation for bids or any other method for soliciting a response from offerers intending to result in a procurement contract, when all written questions and responses are to be disseminated to all offerers.
NY Temporary State Commission on Lobbying
Lobby Education Unit
Exemptions G-Q
M. Limited technical contacts between those providing technical services (accounting, engineering, scientific, or other similar technical disciplines) and “designated” government staff, provided all 3 criteria for content of the communication are met:
Bidders or potential bidders, and subcontractors of bidders or potential bidders, who are “qualified by education, training or experience” to provide “technical services to explain, clarify or demonstrate the qualities,
characteristics or advantages of an article of procurement” qualify for this exemption
only if they are talking to designated government staff, and the contact is:
NY Temporary State Commission on Lobbying
Lobby Education Unit
Exemptions G-Q
Limited to providing information to assist the procuring party in “understanding and assessing the qualities, characteristics or anticipated performance” of an article of procurement; AND
Does not include any recommendations or advocate any contract provisions: AND
Occurs only at such times and in such manner as authorized under the procuring entity’s solicitation or guidelines and procedures.
NY Temporary State Commission on Lobbying
Lobby Education Unit
Exemptions G-Q
N. Applications for licenses, certificates, and permits authorized by statutes or local laws or ordinances are not lobbying.
O. Activities of persons who are commission salespersons with respect to government procurements;
P. Communications made after the award, and in the ordinary course of providing an article of procurement, and the ordinary course of assigned duties, except officers, employees, agents or independent contractors whose primary purpose is lobbying.
Q. Persons communicating with public officials to obtain factual information, provided that they are not otherwise subject to the reporting requirements of the Act due to involvement in lobbying activities as defined by the Act.
NY Temporary State Commission on Lobbying
Lobby Education Unit
Restricted Period
Starts with the earliest attempt to solicit a response with regard to a procurement contract. This may include, but is not necessarily limited to, written notices, advertisements, request for proposal, invitations for bids, solicitations of proposals, or any other method for soliciting a response with regard to a procurement contract
NY Temporary State Commission on Lobbying
Lobby Education Unit
Restricted Period
Ends with the final contract award. “Final contract award” means that all parties that must approve the contract have granted the approval.
For instance, some contracts may require only agency approval, whereas others may require the additional approval of the state comptroller or a legislative body.
NY Temporary State Commission on Lobbying
Lobby Education Unit
Procurement Process
Determination of NeedLobbying activity relates to a governmental
procurement, Lobby Act 1-c(c)(v)A governmental procurement includes the
preparation of the specifications, bid documents, request for proposals or evaluation criteria for a procurement contract, Lobby Act 1-c(p)(i), all of which occur prior to the beginning of the restricted period.
For the purposes of the Lobby Act, a governmental procurement begins when a governmental entity makes a determination of need relating to an article of procurement
NY Temporary State Commission on Lobbying
Lobby Education Unit
Procurement Process
Determination of Need (Cont.)The determination of need is the first step
in the procurement process and should be the initial entry in the procurement record (See Section Three: Selecting a Procurement Technique, of the State Procurement Council Guidelines)
Lobbying activity can take place during the period beginning with the determination of need and ending with the final contract award
NY Temporary State Commission on Lobbying
Lobby Education Unit
Procurement Process
When an offerer contacts a governmental entity:
Ask if the governmental entity is at that time of the contact working on a governmental procurement, beginning with the determination of need, relating to the offerer’s product or service
If the answer is no, there can be no lobbying activity because there is no governmental procurement
If the answer is yes, the offerer may choose not to continue the contact, or, may continue knowing that he or she may be engaging in lobbying activity
NY Temporary State Commission on Lobbying
Lobby Education Unit
Commission Salesperson
“Commission Salesperson” generally means any person who satisfies all of the following criteria:1. Primary purpose of employment is to cause
or promote the sale of, or to influence or induce another to make a purchase of an article of procurement; and
2. Compensated, in whole or in part, by the payment of a percentage amount of all or a substantial amount of all or a substantial part of the sales which such person has caused , promoted, influenced or induced.
3. Is an employee of, or an independent contractor with a written contract for a term of at least six months, or from an indefinite period.
NY Temporary State Commission on Lobbying
Lobby Education Unit
Commission Salesperson
4. The percentage amount payable for the sale of an article of procurement may not be substantially in excess of any commission payable with respect to any comparable sale to a purchaser that is not a state agency.
5. May not be engaged in any lobbying activity other than procurement lobbying.
NY Temporary State Commission on Lobbying
Lobby Education Unit
Should I Register?
If you reasonably anticipate exceeding $5,000 in reportable compensation
and expenses;
The article of procurement is valued at $15,000 or more;
And you do not fall under any of the exemptions
YOU ARE REQUIRED TO REGISTER
NY Temporary State Commission on Lobbying
Lobby Education Unit
Workshops Now Offered
On-Line Filing
Lobbyist Reporting and Requirements
Client Reporting and Requirements
Reserve your place now!!!!
NY Temporary State Commission on Lobbying
Lobby Education Unit
Contact Info
Phone: (518) 474-
7126
Fax: (518) 473-6492
E-mail:
www.nylobby.state.ny.us
NY State Office of General Services
State Finance Law Provisions of theProcurement Lobbying Law
NY State Office of General Services
Topics to Cover
What is the Procurement Lobbying Law ?
What is the Advisory Council on Procurement Lobbying?
Application of the State Finance Law provisions of the Procurement Lobbying Law
What is the “Restricted Period”?
What are “Contacts” and the consequences of violating requirements?
Impact of the law on business community (“Offerers”)
NY State Office of General Services
What is the
Legislative Law – interpreted and enforced by the NY Temporary State Commission on Lobbying (referred to as the Lobbying Act)• expands definition of lobbying to include
governmental procurements• establishes Advisory Council on
Procurement Lobbying
State Finance Law §139-j and §139-k – addresses actions of governmental entities and the business community
Procurement Lobby Law?
NY State Office of General Services
Procurement Lobbying
Legislative Law (Lobbying Act)
State Finance Law
Governs lobbying by lobbyists and clients
Governs the activities of governmental entities
when conducting procurements
NY State Office of General Services
Purpose of the
Procurement Lobbying Law Builds on the pre-existing requirements governing procurement activities, such as State Finance Law Articles 9 and 11, the Freedom of Information Law, the Open Meeting Law and Public Officers Law Code of Conduct
Formalizes practices already in place documenting the procurement process and clarifies responsibilities and expectations when expending public funds
Emphasis on open, transparent, and fair procurement process
NY State Office of General Services
Develops Standard Procurement Practices
Defines the kinds of information• to be provided to the business community• to be obtained from the business community• to be made part of the formal record for a
procurement
Defines where the business community can direct advocacy efforts
NY State Office of General Services
The Advisory Council on Procurement Lobbying
Created by Legislative Law §1-t
Eleven members, chaired by Office of General Services
Three general obligations of Council• Reports• Guidance• Advice to Lobbying Commission on
procurement lobbying
NY State Office of General Services
Guidance, model forms and language and other materials 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.
NY State Office of General Services
NY State Office of General Services
Applicability of State Finance Law Provisions
Every State Agency
Public Authorities of which at least one member is appointed by the Governor
Unified Court System
Legislature
Certain Industrial Development Agencies
Public Benefit Corporations
NY State Office of General Services
Types of Contracts Subject to the Law
Construction and related services
Procurement (commodities, services and technology)
Real Estate (Purchase, Sale, Lease of Real Property including interest therein.)
Certain Revenue Contracts
Assignments, renewals, extensions and certain amendments
When the estimated annualized expenditure will
exceed $15,000
NY State Office of General Services
Types of Contracts Exempt from the Law
Definition of Procurement Contract expressly exempts the following• Grants• SFL Article 11-B contracts• Intergovernmental agreements• Railroad and utility force accounts• Utility relocation agreements• Eminent domain transactions
NY State Office of General Services
General Rule
State Finance Law recognizes that communications are necessary to the conduct of Government Procurement
There are different kinds of communications
During certain time periods (Restricted Period) when certain kinds of communications with Government Entities about Procurement Contracts have specific rules (referred to as Contacts)
NY State Office of General Services
Definition of business need
Restricted Period(limits who can
receive Contacts)
Ad in Contract Reporter
Approval of
contractby OSC
NY State Office of General Services
Restricted Period
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
NY State Office of General Services
Specific Communications Subjectto the State Finance Law
Governs those communications that are intended to influence the Governmental Procurement (referred to as “Contacts”)
Requires that Contacts by an Offerer during the Restricted Period be limited to
• Designated Contact [SFL §139-j(3)(a)]• Permissible Subject Matter [SFL §139-j(3)(a)
(1-7)]
NY State Office of General Services
Requires each Governmental Entity to develop a policy on permissible contacts and to inform Offerers.
If an Offerer does not so limit Contacts, the Contacts are “impermissible Contacts” and
State Finance Law imposes new consequences if Offerers have impermissible Contacts, including possible debarment
NY State Office of General Services
Designated Contact
State Finance Law requires the Governmental Entity to identify a person or persons who may be Contacted by Offerers about a procurement
The Designated Contact may receive all communications from Offerers, including Contacts (attempts to influence) (limited by Public Officers Law and Penal Law)
NY State Office of General Services
If you provide services for a Governmental Entity, be mindful of these restrictions on Contacts.
Generally, a vendor is not a Designated Contact.
You need to determine what role, if any, you have when aspects of such services are out for bid.
Direct questions to the Designated Contact.
NY State Office of General Services
Permissible Subject Matter
State Finance Law §139-j(3)(a)(1-7) recognizes a specific series of communications and Contacts that can go to other than the Designated Contacts
These Contacts are with the procuring Governmental Entity and other Governmental Entities
Important that Offerer’s Contacts be limited to the specific subject matter
NY State Office of General Services
Permissible Subject Matter
#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
NY State Office of General Services
#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)
NY State Office of General Services
#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.
NY State Office of General Services
Net Result
Offerer can always Contact Designated Contact
Offerer cannot Contact other employees or governmental entities unless falls within one of the permissible subject matters (SFL §139-j(4))
• For example, okay to file written protest or complaint with OSC, but not to otherwise Contact
• Cannot Contact DOB to complain about a procurement
NY State Office of General Services
However, statute does permit Offerer to contact Legislature about governmental procurements (unless Legislature is conducting the procurement) and the Legislature may contact the procuring agency (in its official capacity)
If Contacted by the Legislature, the SFL indicates that the Governmental Entity shall not record the Contact
NY State Office of General Services
What communications arecovered by this law?
Communications that are intended to influence the governmental procurement (Contacts)
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
NY State Office of General Services
Not all communicationsare Contacts
Whether a communication is a Contact that is governed by State Finance Law and needs to be recorded depends on several factors• Is there a transaction? • Is it a covered transaction?• What is the value of the transaction?
NY State Office of General Services
Is there a Restricted Period?
Who was the communication from?• Under statute, communications from the members or
staff NYS Legislature are not Contacts• Offerer – individual or entity, or employee, agent or
consultant or person acting on behalf of such individual or entity, that contacts a Governmental Entity during the Restricted Period about a Governmental Procurement
NY State Office of General Services
Does the communication constitute a Contact?
• Number of factors to consider
–“Reasonable person” standard
–Consider totality of the circumstance
Factual exchanges of information are generally not Contacts
• When is the bid due?
• Where is the bid due?
• I am missing pages 38 – 47 from the RFP.
Can you please send them to me?
NY State Office of General Services
Communications that a reasonable person would probably consider as intended to influence the governmental procurement
(a Contact)• You should award the bid to my company because
…• You shouldn’t award the contract to Company X
because …
NY State Office of General Services
If it is a Contact
State Finance Law requires a Governmental Entity to collect and record specific information about every Contact
Record must be made a part of the
Procurement Record
Governmental Entity must determine if it is an “impermissible Contact” and refer for investigation if it is
NY State Office of General Services
Determine if Contact must beReported/Referred
Whether a Contact is impermissible and must be reported/referred for investigation depends on the person’s role in the procurement
Four principal roles in the procurement process
NY State Office of General Services
Designated Contact(s) –• those employees specifically named to receive all communications from the Offerers during the Restricted Period, including Contacts• report/refer all Contacts that violate Public Officers Law or Penal Law
Permissible subject matter communications • those employees who may receive only • specific subject matter communications during Restricted Period• report/refer all Contacts that are outside of the specific subject matter
NY State Office of General Services
All other employees • may only receive factual inquiries (not Contacts)• report/refer all Contacts
Control agencies • only may receive specific subject matter Contacts from Offerer during the Restricted Period report/refer all Contacts that are outside of the specific subject matter
NY State Office of General Services
What is theReport / Referral Process?
Each Governmental Entity is obligated to develop policies and procedures on the review and investigation process
Report/referral generally to agency ethics officer or inspector general, who has specific obligations to review and investigate under law
NY State Office of General Services
Review and Investigation
Offerer is given reasonable notice that an investigation is ongoing and an opportunity to be heard
Purpose is to determine• if an impermissible Contact occurred; • who made the impermissible Contact; and• whether the Offerer’s impermissible
Contact was knowing and willful
NY State Office of General Services
1st Finding ofNon-Responsibility
If there is a finding that an Offerer knowingly and willfully violated the requirements about permissible Contacts, Offerer is determine to be “non-responsible” and no award. However, award can be made if two specific statutory requirements established
First finding of non-responsibility also results in the Offerer being listed on the OGS maintained list of bidders determined to be non-responsible
NY State Office of General Services
2nd Finding ofNon-Responsibility
Second finding of non-responsibility within four year period results in debarment of Offerer
Offerer is listed on the OGS maintained list of bidders debarred due to violations of this statute
Offerer ineligible to submit a proposal or be awarded any Procurement Contract for a period of four years from the second determination
NY State Office of General Services
Impact of Law onBusiness Community
Requirements about Contacts
Consequences of impermissible Contacts
Four contractual requirements and possible consequences
NY State Office of General Services
Contractual Requirements
Offerer must provide written affirmation on understanding of and agreement to an agency’s policy on permissible contacts• This affirmation will be an element examined
when a governmental entity is determining whether an impermissible Contact was knowing and willful
Offerer must certify that the information provided under SFL section 139-k is complete, true and accurate
NY State Office of General Services
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
NY State Office of General Services
Other Impacts
Failure to timely disclose accurate information will result in non-award
Failure to cooperate results in no award• Such as a refusal to submit affirmation or
certification
NY State Office of General Services
State Finance LawKey Considerations
Determine if there is a Restricted Period
Understand the Governmental Entity’s policy on permissible Contacts
Determine who is the Designated Contact for that procurement
Carefully consider and direct communications and Contacts correctly
Follow the processes in the solicitation
Comply with requests for information
NY State Office of General Services
Contact: OGS Legal Services41st Floor, Corning TowerGov. N.A. Rockefeller, ESPAlbany, NY 12242(518) [email protected]
NY State Office of General Services
Thank you.