This bulletin is being updated in order to reflect a change in the form agencies need to submit to OSC as a part of their procurement record, the “ Governmental Entity Representation Concerning Compliance with State Finance Law §§139-j and 139-k”.

While the Procurement Lobbying Act requires disclosure of prior findings of non-responsibility for violations of State Finance Law (SFL) 139-j and 139-k from all offerers, OSC procurement record requirements are being simplified so that an agency does not have to submit the disclosure documents from the unsuccessful offerors with the contract package. Instead, the form “ Governmental Entity Representation Concerning Compliance with State Finance Law §§139-j and 139-k” has been modified to add a place for the agency to note the name(s) of any offerors who disclosed findings of non-responsibility for violations of SFL 139-j and 139-k. Please use the new form effective immediately.

On August 23, 2005, the Legislative Law and the State Finance Law (SFL) were amended to include provisions for the regulation of attempts to influence State and other governmental entity procurement contracts. Sections 139-j and 139-k of the SFL impose new procurement record requirements relating to lobbying on procurement contracts. For State agencies and public authorities whose contracts are subject to the Comptroller’s approval, the Office of the State Comptroller (OSC) will examine the contract package to ensure that these new requirements are included in the procurement record.

The purpose of this bulletin is to assist State agencies and public authorities in complying with SFL §§ 139-j and 139-k by outlining the new procurement record requirements of those sections. In addition, this bulletin includes a form that State agencies and public authorities shall complete and submit in order to facilitate the Comptroller’s contract review.

Subject to limited exceptions, all contract transactions with estimated annualized expenditures in excess of $15,000 resulting from procurement transactions initiated on or after January 1, 2006 are subject to the new procurement lobbying requirements and additional procurement record requirements.

The SFL defines a procurement contract as any contract or other agreement for an article of procurement involving an estimated annualized expenditure in excess of fifteen thousand dollars. Under the new law, grants, SFL Article XI-B contracts, intergovernmental agreements, railroad and utility force accounts, utility relocation project agreements or orders and eminent domain transactions are not deemed to be procurement contracts.

Subject to certain exceptions, an assignment, amendment, renewal or extension of a procurement contract or any material change in a procurement contract resulting in a financial benefit to the offerer is a governmental procurement covered by the provisions of the Act.

The law excludes amendments that are “authorized and payable” under the terms of the original procurement contract as it was finally awarded or approved by the Comptroller. A few examples of amendments that are “authorized and payable” are: a lease agreement that may be extended for a stated period of time at the rent provided for in the original lease or at that rent plus an escalator; or a highway contract that authorizes change orders that are subject to unit pricing.

We note that backdrop contracts, and any contracts resulting from mini-bids pursuant to the backdrop contracts, are also subject to this law.

As stated above, SFL §139-j and SFL §139-k impose additional procurement record requirements. These requirements must be satisfied when submitting contracts to OSC for its approval.

OSC has developed the attached form "Governmental Entity Representation Concerning Compliance with State Finance Law §§139-j and 139-k" which shall be used by contracting entities in providing the representations outlined in numbers 1 through 6 below. The completed and signed form shall be included in the procurement record submitted with contract transactions sent to OSC for review and approval:

"Governmental Entity Representation Concerning Compliance with State Finance Law §§139-j and 139-k" Form - pdf version

"Governmental Entity Representation Concerning Compliance with State Finance Law §§139-j and 139-k" Form - word version

1. Vendor Responsibility Determination

The procurement record for every contract must continue to include a determination that the offerer is responsible in accordance with Comptroller’s Bulletin G-221 on Vendor Responsibility. In addition to the general responsibility determination required under SFL §163(9)(f), SFL §139-j and §139-k require that the procuring entity make a separate responsibility determination as to whether the offerer has: (i) knowingly and willfully violated the prohibitions against impermissible contacts or certain ethics provisions, or failed to timely disclose accurate and complete information or otherwise failed to cooperate with the procuring entity; or (ii) failed to disclose prior determinations of non-responsibility for any of the above reasons within the previous four (4) years by any governmental entity.

2. Offerer Certification; Complete Disclosure

Every procurement record must include a disclosure by offerers with regard to non-responsibility determinations within the past four (4) years based on: (i) impermissible contacts or other violations of SFL §139-j; or (ii) the intentional provision of false or incomplete information to a governmental entity. (Note: To satisfy the requirement regarding offerers’ disclosure, the governmental entity must specifically request information regarding prior findings of non-responsibility for violations of SFL §139-j or SFL §139-k. A general request for prior findings of non-responsibility is not sufficient.) In addition, any procurement contract award shall contain a certification by the offerer that the information provided to the procuring entity was complete, true and accurate.

3. Contract Clause; Termination Provision

All procurement contracts must contain a provision authorizing the agency to terminate the contract if the certification (see preceding paragraph) is found to be intentionally false or intentionally incomplete. (Note: General contract termination provisions, such as the authority to terminate for convenience, will not satisfy this requirement. The contract provision must specifically authorize termination if the certification is subsequently found to be intentionally false or intentionally incomplete.)

4. Agency Policy and Prohibitions Regarding Permissible Contacts; Inclusion in Solicitation/Bid Documents

New SFL §139-j restricts contact¹ by offerers² with any governmental entity³ regarding procurement contracts.⁴ Subject to certain exceptions set forth in SFL §139-j(3), contacts between offerers and governmental entity personnel, other than the governmental entity’s designated contact person(s), are prohibited during the restricted period⁵ of the governmental procurement.⁶

Every governmental entity must incorporate a summary of the entity’s policy and prohibitions regarding permissible contacts during a governmental procurement and a copy of the governmental entity’s procedures into the solicitation or bid documents for all procurement contracts. The policy must provide that if a member, officer, or employee of a governmental entity becomes aware that an offerer has violated the permissible contact provisions of the new law, such person shall immediately notify the Ethics Officer, Inspector General, or other official of the procuring governmental entity responsible for investigation of such violations.

5. Affirmation of Compliance; Written Agency Procedures

All offerers must provide a written affirmation that the offerer understands and agrees to comply with the governmental entity’s procedures relating to permissible contacts during the procurement.

6. Record of Contacts

For each procurement contract, SFL §139-k requires that all contacts between an offerer and a governmental entity during the restricted period be recorded and made a part of the procurement record.

Assistance with questions regarding OSC's procurement record requirements is available by contacting the Office of the State Comptroller’s Bureau of Contracts:

Telephone: (518) 474-6494
Fax: (518) 474-8030

For additional information regarding applicability and requirements of SFL §§ 139-j and 139-k, State agencies and public authorities may consult the model guidelines and forms published by the Advisory Council on Procurement Lobbying which are available on the OGS website at: http://www.ogs.state.ny.us/aboutOgs/regulations/defaultAdvisoryCouncil.html

List of Offerers Determined to be Non-responsible bidders Maintained by the Office of General Services under State Finance Law § 139-j(10)(b): http://www.ogs.state.ny.us/aboutogs/regulations/advisoryCouncil/NonResponsible.htm

List of Debarred Offerers Maintained by the Office of General Services under State Finance Law § 139-j(10)(b): http://www.ogs.state.ny.us/aboutogs/regulations/advisoryCouncil/Debarred.htm

¹ SFL §139-j(1)(c) defines “contacts” as “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 procurement.”

²SFL §139-j(1)(h) defines “offerer” as “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.”

³ SFL §139-j(1)(a) defines “governmental entity” as “(1) any department, board, bureau, commission, division, office, council, committee or officer of the state, whether permanent or temporary; (2) each house of the state legislature; (3) the unified court system; (4) any public authority, public benefit corporation or commission created by or existing pursuant to the public authorities law; (5) any public authority or public benefit corporation, at least one of whose members is appointed by the governor or who serves as a member by virtue of holding a civil office of the state; (6) a municipal agency, as that term is defined in paragraph (ii) of subdivision (s) of section one-c of the legislative law; or (7) a subsidiary or affiliate of such a public authority.”

⁴ SFL §139-j(1)(g) defines “procurement contract” as “any contract or other agreement for an article of procurement involving an estimated annualized expenditure in excess of fifteen thousand dollars.”

⁵ SFL §139-j(1)(f) defines “restricted period” as “the period of time commencing with the earliest written notice, advertisement or solicitation of a request for proposal, invitation for bids, or solicitation of proposals, or any other method for soliciting a response from offerers intending to result in a procurement contract with a governmental entity [and terminating] with the final contract award and approval by the governmental entity and, where applicable, the state comptroller.”

⁶ SFL §139-j(1)(e) and §139-k(1)(e) define “governmental procurement” as “(i) the preparation or terms of the specifications, bid documents, request for proposals, or evaluation criteria for a procurement contract, (ii) solicitation for a procurement contract, (iii) evaluation of a procurement contract, (iv) award, approval, denial or disapproval of a procurement contract, or (v) approval or denial of an assignment, amendment (other than amendments that are authorized and payable under the terms of the procurement contract as it was finally awarded or approved by the comptroller, as applicable), renewal or extension of a procurement contract, or any other material change in the procurement contract resulting in a financial benefit to the offerer.”