The purpose of this Bulletin is to highlight the key points of recent amendments to the State Finance Law and the Economic Development Law (Chapter 137 of the Laws of 2008) which affect State procurements, particularly related to:
- Discretionary Purchasing Threshold
- Single Source Contracts
- Debriefings
- Piggyback Contracts
- Electronic Bidding
- Assignments
- Vehicle Purchases and Leases
- Contract Reporter Requirements
While some of these changes may not impact procurement record requirements or other specific OSC requirements, the new law is summarized here to assist agencies in understanding and preparing for the changes. This Bulletin does not address all changes enacted with the amendments, but focuses on those with broad applicability to State agencies.
State Finance Law Changes1
Effective Date
Amendments to the State Finance Law took effect on June 30, 2008.
Discretionary Purchasing Threshold
A new subdivision 6-b was added to Section 163, which obligates State agencies to aggregate expected purchases for the same commodities or services within twelve months from the date of purchase to determine whether the procurement falls within the discretionary threshold. Subdivision 6-b also expressly prohibits split ordering. Lastly, a change to or a renewal of a discretionary purchase shall not be permitted if the change or renewal would bring the aggregate amount of all purchases of the same commodities or services from the same provider within the twelve month period over the discretionary threshold and should have been reasonably expected prior to the date of the first purchase.
Single Source Contracts
A new subparagraph ii was added to Section 163(10)(b) to limit the use of single source procurements to circumstances where a formal competitive process is not feasible and provide that the term of the single source contract shall be only for a period of time until such circumstances are ameliorated. Furthermore, State agencies must document in the Procurement Record why competition is not feasible and publish these reasons on its website within 30 days of awarding a single source contract. This is in addition to the requirement that single source contracts be let in only unusual circumstances where material and substantial reasons exist.
A new paragraph vi was added to subdivision 14 of Section 163. State agencies must annually report the total number and dollar value of single source contracts and percentage that such contracts represent of the agency’s total number and dollar value of contracts awarded during the fiscal year. Additionally, the report must include an assessment of the agency’s efforts to minimize the use of single source contracts. The first report is due July 1, 2009 for the period April 1, 2008 through March 31, 2009.
Debriefings
Paragraph c of subdivision 9 of Section 163 was amended to repeal the provision prohibiting the disclosure of certain offer information prior to award. A provision was also added which expressly requires that, for procurements let through the RFP or IFB process, State agencies debrief an unsuccessful offerer, upon request, as to why the offerer was not selected for the award. State agencies must advise offerers in the solicitation document of the opportunity to be debriefed and provide a reasonable time to request a debriefing.
Piggyback Contracts
Paragraph e of subdivision 10 of Section 163 was amended to generally require State agencies to document in the Procurement Record the rationale for using piggybacking. The rationale must minimally include a determination of need, a consideration of the method by which the contract being used was awarded, an analysis of alternative procurement sources, including explanation why a competitive bid or using an OGS centralized contract is not in the best interest of the State, and a demonstration that the cost is reasonable.
Electronic Bidding
Subdivision 7 of Section 163 was amended to allow State agencies to accept bids electronically, and, in the case of technology contracts only, to permit State agencies to require electronic bid submission. Where electronic submission is allowed or required, the agency must document in the Procurement Record that the method affords a fair and equal opportunity to offerers.
Assignments
To prevent the voiding of contracts in certain cases, Section 138 was amended to allow contracting State agencies to waive prior written consent for contract assignments when the reason for the assignment is due to, but not limited to, a reorganization, merger or consolidation of the contractor’s business. Where the original contract was subject to OSC approval, OSC must concur with the waiver. This amendment in no way limits the State agency’s right to reject an assignment.
Vehicle Purchases and Leases
The provision of Section 43, which prohibited vehicle rent, lease or purchase other than pursuant to an OGS agreement, was repealed.
Other
Subdivision 7 of Section 163 was amended to include the express requirement that State agencies conduct formal competitive procurements as much as possible.
Section 163 (4)(f), which allowed for strategic partnering, was repealed.
Sunset Provision
Section 163 will remain in effect until June 30, 2012.
Amendments to Economic Development Law2
Effective Date
The changes to the Economic Development Law take effect on December 31, 2009.
Contract Reporter Requirements
Subdivision 3 of Section 141 was amended to include construction in the definition of “procurement contract,” making construction contracts subject to the Procurement Opportunity Newsletter (Contract Reporter) publication requirements.
Section 142 was amended to require the Department of Economic Development (DED) to publish the Contract Reporter daily, rather than weekly, and make it available online, free of charge. Ads must remain online for 15 days.
Section 142 was also amended to allow the Contract Reporter to publish notices from government contractors or potential government contractors seeking subcontractors and suppliers.
A new subdivision 3 was added to Section 143 to require State agencies to provide to DED for posting in the Contract Reporter:
(i) for contracts awarded pursuant to an IFB, the name of each bidder and the amount bid;
(ii) for contracts awarded pursuant to an RFP, the name of each proposer and the proposal selected as best value; and
(iii) for all other contracts, the name of the proposed awardee.
This information must be submitted by the agency to DED at the time of the agency’s decision of intent to award a contract.
1Not included in this Bulletin are SFL amendments that impact the process by which OGS procures centralized contracts and requirements related to procurements involving New York Grown Food.
2Not included in this Bulletin are EDL amendments requiring the State Procurement Council to study and report by September 1, 2009 on implementation of a statewide procurement opportunity notification system.
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