Procurement Lobbying Legislation
New York State Bar Association
December 9, 2005
(revised January 4, 2006)
The Purpose of the Procurement
Lobbying Law
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Adds to the definition of lobbying any attempt to
influence a government procurement.
Reemphasizes the values of the process in
government procurement described in State Finance
Law.
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Prudent use of public money.
Efficient and timely acquisitions of commodities and
services.
Highest quality purchases at the lowest practicable cost.
Emphasis on open, transparent, and fair procurement
process.
The Purpose of the Procurement
Lobbying Law
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Requires disclosure by officials and employees
of contacts that attempt to influence a
procurement.
Inappropriate contacts or providing inaccurate
or untruthful certification may result in findings
of non-responsibility and debarment for four
years.
Requires registration by individuals or firms
engaged in procurement lobbying.
Two separate amendments
 Legislative Law – interpreted and enforced by
the NYS Temporary Commission on Lobbying
– also establishes Advisory Council on
Procurement Lobbying.
 State Finance Law §139-j and §139-k –
addresses actions of governmental entities
Presentation addresses State Finance Law
provisions
Applicability of
State Finance Law Provisions
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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
Types of Contracts Included in the
Law:
Construction
 Procurement
 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
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Procurement Lobbying
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General Rule is:
– State Finance Law restricts communications
with government entities about procurement
contracts.
– However, it also recognizes that some
communications are necessary to the
conduct of government procurement.
Most Important Definitions
in State Finance Law:
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Restricted Period:
– Why?
• It is only within the restricted period that a prohibited
communication can take place.
Contact
• oral, written or electronic communication with governmental
entity under circumstances where a reasonable person
would infer that the communication was intended to
influence the governmental procurement.
Designated Contact
• person or persons designated by governmental entity to
receive communications about procurement.
Permissible Contacts
Permissible Contacts
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State Finance Law §139-j recognizes a series
of permissible contacts that can go to other
than the Designated Contacts
The submission of written proposals in
response to a request for proposals, invitation
for bids or any other method for soliciting a
response from offerers intending to result in a
procurement contract.
Permissible Contacts
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The submission of 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 who have expressed
an interest in the request for proposals, or invitation for
bids, or any other method for soliciting a response from
offerers intending to result in a procurement contract.
Permissible Contacts
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Participation in a conference provided for in a request
for proposals, invitation for bids, or any other method
for soliciting a response from offerers intending to
result in the procurement contract.
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Complaints by an offerer regarding the failure of the
person or persons designated by the procuring
governmental entity pursuant to this section to respond
in a timely manner to authorized offerer contacts made
in writing to the office of general counsel of the
procuring governmental entity, provided that any such
written complaints shall become a part of the
procurement record.
Permissible Contacts
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Offerers who have been tentatively awarded a contract
and are engaged in communication with a
governmental entity solely for the purpose of
negotiating the terms of the procurement contract after
being notified of tentative award.
Contacts between designated governmental entity staff
of the procuring governmental entity and an offerer to
request the review of a procurement contract award.
Permissible Contacts
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Contacts by offerers in protests, appeals or other
review proceedings (including the apparent successful
bidder or proposer and his or her representatives)
before the governmental entity conducting the
procurement seeking a final administrative
determination, or in a subsequent judicial proceeding.
Complaints of alleged improper conduct in a
governmental procurement to the attorney general,
inspector general, district attorney, or court of
competent jurisdiction.
Permissible Contacts
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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 response thereto are made in writing and shall be
entered in the procurement record pursuant to section
one hundred sixty-three of the state finance law.
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Complaints of alleged improper conduct in a
governmental procurement conducted by a municipal
agency or local legislative body to the state
comptroller’s office
Permissible Contacts
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Only with the procuring agency unless specifically
excepted.
Violations include:
– Any contacts during the restricted period of a
governmental procurement between the offerer and
any member, officer or employee of any
governmental entity; provided, however, that nothing
in this section shall be deemed to prohibit an offerer
from communicating with a member of the state
legislature or legislative staff about a governmental
procurement.
Incorporation of Public Officers
Law
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Shall not attempt to influence the governmental
procurement in a manner that would result in a
violation or an attempted violation of
subdivision five section seventy-three or
section seventy-four of the public officers law.
Consequences to Vendor
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Finding of non-responsibility equals no award.
Failure to timely disclose accurate and complete
information equals no award.
Failure to cooperate equals no award.
Incorporate lobbying into existing vendor responsibility
determination.
Second finding of non-responsibility equals debarment
absent compelling governmental interest (public
property, public health or safety) and sole source
status.
Agency Obligations
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Require disclosure of findings of nonresponsibility and debarment made within
previous four years.
Collect and record Information.
Designate Contact Person or Persons.
OGS – Web Posting of Non-responsibility and
debarment lists.
Record Contact and file in Procurement
Record.
The Advisory Council on
Procurement
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Eleven members, chaired by Commissioner of
General Services.
Provide advice to Lobbying Commission on
Procurement Lobbying.
Annual report to Legislature on problems in
implementing the provisions relating to
procurement lobbying and including
recommendation to increase effectiveness.
The Advisory Council on
Procurement
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Authorized to establish model guidelines for
permissible contacts during the “restricted
period.”
Preliminary report due December 31, 2005 on
potential implementation issues regarding those
provisions that take effect January 1, 2006.
Second report due October 30, 2007 on
potential changes to Procurement Lobbying
provisions.
Questions