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XI.18.C
Consultant Disclosure Legislation


Chapter 10 of the Laws of 2006 amends State Finance Law § 8 and § 1631 by requiring:

  1. that the Office of the State Comptroller (OSC) include in the Consulting Services Report it compiles annually on contracts issued by state agencies for consulting services during the previous fiscal year, certain additional information on employees providing services under such contracts;

  2. that contractors annually report certain employment information to the contracting agency, the Department of Civil Service (DCS) and OSC; and,

  3. that OSC include such employment information in the Procurement Stewardship Act Report it compiles annually.2

 

This legislation took effect on June 19, 2006.


Process and Document Preparation:


STATE CONTRACTORS EMPLOYMENT INFORMATION

State contractors are required to disclose, by employment category, the number of persons employed to provide services under a contract for consulting services, the number of hours worked and the amount paid to the contractor by the State as compensation for work performed by these employees. This includes information on any persons working under any subcontracts with the state contractor.

CONTRACTS FOR CONSULTING SERVICE

The definition of contracts for consulting services includes any contract entered into by a state agency for analysis, evaluation, research, training, data processing, computer programming, engineering, environmental, health, and mental health services, accounting, auditing, paralegal, legal, or similar services.

REPORT REQUIREMENTS

State Finance Law § 8 (subd 17) requires that OSC report to the Legislature on contracts for consulting services that were issued by state agencies during the previous fiscal year. OSC is required to include in the Consulting Services Report the employment information described above.

To enable compliance with the law, state agencies must include the New York State Consultant Services Contractor's Planned Employment form (AC 3271-S) in the procurement record submitted to OSC for new consultant contracts. The completed form must include information for all employees providing service under the contract, whether employed by the contractor or a subcontractor. Please note that the form captures the necessary planned employment information prospectively from the start date of the contract through the end of the contract term.

In order to provide notice to potential contractors that the contractor selected may be required to complete the form, state agencies may incorporate the Form A into new solicitations for consulting services.

It is important to note that regardless of a contract's payment methodology (for example, deliverable based payment or lump sum payments), an agency must structure the procurement/contract to be able to ascertain and report the required data.

Submission of a completed Form A is required for OSC approval of new contracts for consulting services, except in extraordinary circumstances as determined at the sole discretion of OSC.

ANNUAL REPORT REQUIREMENTS

State agencies must require state contractors to report annually on the employment information described above, including work performed by subcontractors. The annual employment reports are to be submitted by the contractor to the contracting agency, to OSC and to DCS. OSC must include the employment information in the Procurement Stewardship Act Report. State Finance Law § 163 (subd 14) requires that OSC annually report to the State Procurement Council, the Governor and the Legislature on active procurement contracts above $15,000.3

State Consultant Services Contractor's Annual Employment Report (AC 3272-S) is to be used to report the information. Please note that, in contrast to the information to be included on Form A, which is a one-time report of planned employment data for the entire term of a consulting contract on a projected basis, Form B is required to be submitted each year the contract is in effect and is intended to capture historical information, detailing actual employment data for the most recently concluded State fiscal year (April 1st - March 31st).

To enable compliance with the law, state agencies must incorporate the annual reporting requirement and the Form B template into new solicitations for consulting services to provide notice to potential contractors that the contractor selected will be required to submit the form annually. Furthermore, incorporation of the requirement for Form B to be submitted annually by the contractor is a requirement for OSC approval of new contracts for consulting services, including those contracts resulting from mini-bids, except in extraordinary circumstances as determined in the sole discretion of OSC. Since the annual reporting requirement is contained in Appendix A - Standard Clauses for All New York State Contracts as of November 2010, compliance with this requirement may be satisfied by incorporating the latest version of Appendix A into the contract.

For existing contracts for consulting services (i.e., in place before June 19, 2006), the contracting agency must also require contractors to submit Form B annually, commencing with the close of fiscal year 2006-2007 ending March 31, 2007.

The State Consultant Services Contractor's Annual Employment Reports will be due no later than May 15th of each year.

SUMMARY

RFPs and other solicitations for consulting services should include notice of these reporting requirements. The procurement record for new contracts for consulting services received by OSC for approval must include, upon submission of the contract for approval, a completed Form A. New contracts for consulting services, including those contracts resulting from mini-bids, must include a requirement that Form B be submitted annually by the contractor to the contracting agency, DCS and OSC. In addition, with respect to contracts for consulting services in place prior to June 19, 2006, the contracting agency must require its contractors to submit a completed Form B annually, commencing with the close of fiscal year 2006-2007.

 

COMPLETING THE FORMS

Form A and Form B should be completed for contracts for consulting services in accordance with the following:

 

To facilitate annual reporting by contractors, it is recommended that the contracting entity make available to the contractor a version of Form B with the Agency Name, Business Unit, and Department ID fields completed.

 

Reports that are to be submitted to OSC may be transmitted as follows:

By mail:

NYS Office of the State Comptroller

Bureau of Contracts

110 State Street, 11th Floor

Albany, NY 12236

Attn: Consultant Reporting

Reports that are to be submitted to DCS may be transmitted as follows:

By mail:

NYS Department of Civil Service

Alfred E. Smith Office Building

Albany, NY 12239

Attn: Executive Office

 

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1 Chapter 10 of the Laws of 2006 also amends State Finance Law § 22 and Civil Service Law § 97.

2 In addition, the legislation requires the DCS to publish an annual report summarizing the number of contract employees performing consulting services and the types of services provided by such contract employees. The legislation also mandates that the Governor include in the Executive Budget certain information based on the State Contractor's Annual Employment Reports.

3 Because the Comptroller's contract approval threshold is $50,000 while the PSA Report threshold remains at $15,000, the PSA Report will contain information on contracts not requiring OSC approval. Consequently, State agencies must use the "T" contract mechanism for all consulting services contracts between $15,000 and $50,000.

 

 

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REV. 03/19/2012