Procurement Lobbying Legislation
State Finance Law Provisions
February 2, 2006
What is the
Procurement Lobbying Law?
Two separate amendments in Chapter 1 of the
Laws of 2005, amended by Chapter 596 of the
Laws of 2005
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
and the business community
The Purpose of the
Procurement Lobbying Law (cont.)
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, Public Officers Law Code of
Conduct and Executive Order Number 127
Formalizes practices already in place
documenting the procurement process and
clarifies responsibilities and expectations
when expending public funds
The Purpose of the
Procurement Lobbying Law (cont.)
Reemphasizes the values of the government
procurement process described in State
Finance Law.
 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 (cont.)
The new statutory requirements supplement
the obligations under Executive Order
Number 127
Covered entities, such as State agencies, will
need to comply with both sets of
requirements
Be mindful of the differences between the two
requirements
The Purpose of the
Procurement Lobbying Law (cont)
While both use a threshold of $15,000
annualized value, EO 127 only applies to
contracts awarded on basis other than lowest
responsible price
EO 127 requirements are triggered earlier in
the process
SFL regulates who can receive certain
communications
Differences in the records to be maintained
What are the SFL Changes?
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
Imposes new consequences if Offerers have
impermissible communications
What are the SFL Changes? (cont.)
Record of Contact - Requires disclosure by
officials and employees of communications
that attempt to influence a procurement
Impermissible contacts or providing
inaccurate or untruthful certification may
result in a finding of non-responsibility and
debarment of the Offerer from state contracts
for four years
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
The Advisory Council on
Procurement Lobbying (cont.)
Reports
 Preliminary report due December 31, 2005 on
potential implementation issues regarding those
provisions that take effect January 1, 2006.
 Annual report to Legislature on problems in
implementing the provisions relating to
procurement lobbying and including
recommendations to increase effectiveness.
 Second report due October 30, 2007 on
potential changes to Procurement Lobbying
provisions.
The Advisory Council on
Procurement Lobbying (cont)
Guidance on the State Finance Law
provisions
 Authorized to establish model guidelines
for permissible contacts during the
“restricted period”
 Developed model forms and language for
implementation of and compliance with the
State Finance Law
The Advisory Council on
Procurement Lobbying (cont.)
Guidance developed by the Advisory Council
on Procurement Lobbying, and other
materials, are present on the internet at
http://www.ogs.state.ny.us/aboutOgs/
regulations/defaultAdvisoryCouncil.html
The Advisory Council on
Procurement Lobbying (cont.)
Provide advice to Lobbying Commission on
Procurement Lobbying
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
Types of Contracts
Subject to the Law
Construction
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
Types of Contracts
Subject to the Law (cont)
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
State Finance Law Provisions
General Rule is:
 State Finance Law restricts and directs
communications by Offerers 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
Restricted Period:
 Represents the time period from the
earliest solicitation of a proposal to the final
approval of the contract

Start point differs based on the nature of
the contract. For example, with a single
source contract it appears to start when the
Governmental Entity asks for a proposal
Most Important Definitions
in State Finance Law (cont.)
During the Restricted Period, the Offerer is
limited in whom it can communication with
in an attempt to influence the procurement
 It is only within the Restricted Period that a
prohibited communication can take place
 Restricted Period ends when the contract
receives all the necessary approvals

Most Important Definitions
in State Finance Law (cont.)
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
Most Important Definitions
in State Finance Law (cont.)

Number of factors to consider
 “Reasonable person” standard
 Consider totality of the circumstance
Most Important Definitions
in State Finance Law (cont.)
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 to me?
Most Important Definitions
in State Finance Law (cont.)
Communications that a reasonable person
would probably consider an attempt to
influence
 You should award the bid to my company
because …
 You shouldn’t award the contract to
Company X because …
Most Important Definitions
in State Finance Law (cont.)
Designated Contact
 SFL 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
attempts to influence
 Communications to Designated Contact are
limited by Public Officers Law and Penal Law
(ie., bribery)
Most Important Definitions
in State Finance Law (cont.)
There can be more than one designated
contact for a procurement
Best practice would be to have at least two
designated contacts to facilitate
responsiveness to the Offerers
Most Important Definitions
in State Finance Law (cont.)
Permissible Subject Matter Contacts - State
Finance Law §139-j(3)(a) recognizes a specific
series of communications and contacts that can
go to other than the Designated Contacts
Important that Offerer’s Contacts be limited to
the specific subject matter
Permissible Subject Matter
Contacts - #1
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 Subject Matter
Contacts - #2
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 Subject Matter
Contacts - #3
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.

Appears that term “conference” can be
broadly interpreted to include all types of
pre-proposal activities that are provided for
under a written solicitation
Permissible Subject Matter
Contacts - #4
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 Subject Matter
Contacts - #5
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.
 Additional personnel can be involved in the
negotiation process
Permissible Subject Matter
Contacts - #6
Contacts between designated governmental
entity staff of the procuring governmental
entity and an Offerer to request the review of
a procurement contract award.
 Debriefing are covered by this category
Permissible Subject Matter
Contacts #7 (a) – (d)
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 Subject Matter
Contacts - #7 (a) – (d) (cont.)
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.
Complaints of alleged improper conduct in a
governmental procurement conducted by a
municipal agency or local legislative body to the
state comptroller’s office
Impact on Offerers
Offerer is limited on who can be Contacted
about specific topics
 Designated Contacts – communications
and Contacts okay
 Permissible Subject Matter Contacts – only
the specific subject matter
Impact on Offerers (cont.)
Cannot Contact other entities unless falls
within one of the permissible subject matter
(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
Impact on Offerers (cont.)

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)
Impact on Offerers (cont.)
Offerer shall not attempt to influence the
governmental procurement in a manner that
would result in a violation or an attempted
violation of Public Officers Law sections 73 or
74 (or equivalent law)
Impact on Offerers (cont.)
Offerer must provide written affirmation on
understanding of and agreement to an agency’s
policy on permissible contacts
Offerer must disclose additional information about
prior findings of non-responsibility
Impact on Offerers (cont.)
Offerer must certify that the information provided
under SFL section 139-k is complete, true and
accurate
Offerer must agree to the inclusion of specific
termination clause in contract
Consequences to Offerer
Failure to timely disclose accurate and complete
information equals no award.
Failure to cooperate equals no award.
Finding of non-responsibility equals no award
and the Offerer is listed on the OGS maintained
list of bidders determined to be non-responsible
under this statute.
Consequences to Offerer (cont.)
If there is a finding that an Offerer knowingly and
willfully violated the requirements about
permissible contacts, no award
This determination can only be made after Offerer
is given reasonable notice that an investigation is
ongoing and an opportunity to be heard
Consequences to Offerer (cont)
Second finding of non-responsibility equals
debarment absent compelling governmental
interest (public property, public health or safety)
and sole source status
Offerer is listed on the OGS maintained list of
bidders debarred sue to violations of this statute
Agency Obligations
Designate Contact Person or Persons
Incorporate the required information into your
procurement process (both competitive and
noncompetitive)
Establish the necessary policies and procedures
regarding permissible contacts, and the reporting
of possible violations of the permissible contacts
requirements.
Record Contact and file in Procurement Record.
Agency Obligations (cont.)
Establish a process for reviewing and
investigating allegations of violations of the
permissible contacts requirements and imposition
of sanctions
Notify OGS about all determinations of nonresponsibility or debarment under this statute
Agency Obligations (cont.)
Record all Contacts (including the permissible
subject matter contacts)
Place in Procurement Record
Determine if the Contact must be reported for
investigation as a violation of the permissible
contacts requirements
Agency Obligations (cont.)
Whether a Contact must be reported for investigation
depends on the role in the procurement
Brief review of the major possible roles
Agency Roles During a
Restricted Period
Designated Contact(s) – those employees
specifically named to receive all communications
from the Offerers during the Restricted Period
Permissible subject matter contacts – those
employees who may receive only specific subject
matter communications during Restricted Period
All other employees – may only receive factual
inquiries (not Contacts)
Control agency contacts – only may receive
specific subject matter communications during the
restricted period
Reporting of Contacts
Designated Contact – would only need to
report a Contact that was in violation of Public
Officers Law or Penal Law (ie., bribery)
A Record of Contact by a Designated Contact
is filed in the Procurement Record
Reporting of Contacts (cont.)
Permissible Subject Matter Contacts – must
report any Contact that is outside of the
specific subject matter
A Record of Contact by a Permissible Subject
Matter Contact must be filed in the
Procurement Record maintained by the
Procuring Agency
Reporting of Contacts (cont.)
All Other Employees of the Procuring
Governmental Entity – report all Contacts
The Record of Contact must be filed in the
Procurement Record
Reporting of Contacts (cont.)
Control agency or other non-procuring
agency communications
 SFL section 139-j(3) specifies limited
instances when a control agency or other
agency can be Contacted during the
Restricted Period
 If the Contact is not within the permissible
subject matter area, the Contact must be
immediately reported to the official at that
agency responsible for investigations
Reporting of Contacts (cont.)
Such official shall in turn notify the ethics
officer, IG or other official at the procuring
agency that is responsible for reviewing or
investigating, who shall conduct an
investigation
 The Record of Contact must be filed in the
Procurement Record maintained by the
Procuring Agency

Example of Restricted Period
for a Competitively Bid
State Agency Contract
Restricted Period
(limits who can
receive communications)
Definition of
business need
Ad in Contract
Reporter
Approval
of
contract
by OSC
Example of Restricted Period
for a Competitively Bid
State Agency Contract (cont.)
For example, certain
amendments will
Contract administration
trigger a new
(no restricted period)
restricted period
New restricted
period
(no
restricted
period)
Approval
by OSC
Draft Model Language and Forms
The Advisory Council on Procurement Lobbying
recently approved the posting of draft model
language and forms to comply with the new State
Finance Law requirements.
Available at
http://www.ogs.state.ny.us/aboutogs/regulations/
AdvisoryCouncil/ModelLang.html.
Summary of Policy Included
in Solicitation
State Finance Law §139-j(6) requires that a
Governmental Entity incorporate a summary of
its policy and prohibitions regarding permissible
contacts during a covered procurement. Draft
model language provides an outline of narrative
that can be customized for inclusion in a
solicitation.
Draft Model Affirmation
Offerer affirms that it understands and agrees
to comply with the procedures of the
Government Entity relative to permissible
contacts as required by State Finance Law
§139-j (3) and §139-j (6) (b).
Draft Model Certification
It is recommended that the certification be
obtained as early as possible in the process,
such as when an Offerer submits its proposal,
bid or other form of offer.
Example language: I certify that all information
provided to the Governmental Entity with
respect to State Finance Law §139-k is
complete, true and accurate.
Additional Non-responsibility
Question
State Finance Law §139-k(3) mandates consideration
of whether an Offerer fails to timely disclose accurate
or complete information as part of the responsibility
determination. The law further provides that no
Procurement Contract shall be awarded to any Offerer
that fails to timely disclose accurate or complete
information under this section, unless a finding is
made that the award of the Procurement Contract to
the Offerer is necessary to protect public property or
public health safety, and that the Offerer is the only
source capable of supplying the required Article of
Procurement within the necessary timeframe.
Draft Model Termination Clause
The Governmental Entity reserves the right to
terminate this contract in the event it is found
that the certification filed by the Offerer in
accordance with New York State Finance Law
§139-k was intentionally false or intentionally
incomplete. Upon such finding, the
Governmental Entity may exercise its
termination right by providing written
notification to the Offerer in accordance with
the written notification terms of this contract.
Draft Model Record of Contact
New York State Finance Law §139-k(4) obligates
every Governmental Entity during the Restricted
Period of a Procurement Contract to make a written
record of any Contacts made. The term “Contact” is
defined by statute and refers to those oral, written or
electronic communications that a reasonable person
would infer are attempts to influence the
Governmental Procurement.
In addition to obtaining the required identifying
information, the Governmental Entity must inquire
and record whether the person or organization that
made the contact was the Offerer or was retained,
employed or designated on behalf of the Offerer to
appear before or contact the Governmental Entity.
OGS’s Implementation of New
State Finance Law Provisions
Staff training
 Undertaken as a multi-step process
 Conducted by Business Unit to permit
attention to unique issues raised by the
different types of procurement contracts
undertaken by OGS
OGS’s Implementation
First round of training provided an initial
familiarization and introduction to the new
State Finance Law requirements
 Second round of training has focused on
drilling down and conforming business
practices to the new requirements

OGS’s Implementation
Offerer Training and Outreach
 In addition to the training provided as
support staff for the Advisory Council on
Procurement Lobbying, OGS continues to
explore ways to provide more information
to the business community.
OGS Implementation (cont.)
In-depth Analysis of Business Practices
 Real Estate Implementation Issues
 Procurement Contracts dealing with real
estate matters raise unique issues
 Involve long range planning and constant
exploration of the market
 Often involve multiple, simultaneous
negotiations
 Involve agents/brokers and client agencies
OGS Implementation (cont.)
Conducted assessment of real estate lease
procurement process
 Resulted in development of chart to
monitor the commencement of Restricted
Period
 Standardized points in time to provide
notice to Offerers regarding Restricted
Period and Designated Contacts

OGS’s Implementation (cont.)
Development of language for inclusion in
solicitations and contracts
Customized to meet the business practices of
OGS
 A number of areas are still under review
and development
 For example, procurement contracts
undertaken for hosted agencies is still
under review
 Similarly, the business practices regarding
client agencies is still under review
OGS’s Implementation (cont.)
State Finance Law requires the development
of several governing documents
 Policy on permissible contacts
 Process for review by the Ethics Officer for
reviewing or investigating any allegations
of violations of the permissible contact
Non-responsible and Debarred
Offerer Listings
State Finance Law requires that all Governmental
Entities notify OGS if it finds an Offerer to be nonresponsible or debarred due to violations of section
139-j
OGS is required to post this information on the
internet
Information available at
http://www.ogs.state.ny.us/aboutogs/regulations/
advisoryCouncil/NonResponsible.htm
Non-responsible and Debarred
Offerer Listings (cont.)
Information is available at:
http://www.ogs.state.ny.us/aboutogs/regulations/
advisoryCouncil/NonResponsible.htm
(Non-responsible Offerer List)
and at:
http://www.ogs.state.ny.us/aboutogs/regulations/
advisoryCouncil/Debarred.htm (Debarred Offered
List)
Non-responsible and Debarred
Offerer Listings (cont.)
Please immediately notify the General Counsel at
the NYS Office of General Services if you have
determined a bidder as non-responsible or debarred
a pursuant to this law.
Office of the General Counsel
NYS Office of General Services
41st Floor - Corning Tower
Albany, New York 12242
LegalServicesWeb@ogs.state.ny.us
Telephone 518-474-5988
Facsimile 518-473-4973
Questions