§ 139-J — Restrictions on contacts during the procurement process

New York § 139-J

• Jurisdiction: New York
• Law STF: State Finance
• Art. 9: Contracts

Text

* § 139-j. Restrictions on contacts during the procurement process. 1.\nFor the purposes of this section, the following terms will have the\nfollowing meanings unless specified otherwise.\n a. "Governmental entity" shall mean: (1) any department, board,\nbureau, commission, division, office, council, committee or officer of\nthe state, whether permanent or temporary; (2) each house of the state\nlegislature; (3) the unified court system; (4) any public authority,\npublic benefit corporation or commission created by or existing pursuant\nto the public authorities law; (5) any public authority or public\nbenefit corporation, at least one of whose members is appointed by the\ngovernor or who serves as a member by virtue of holding a civil office\nof the state; (6) a municipal agency, as that term is defined in\nparagraph (ii) of subdivision (s) of section one-c of the legislative\nlaw; or (7) a subsidiary or affiliate of such a public authority.\n b. "Article of procurement" shall mean a commodity, service,\ntechnology, public work, construction, revenue contract, the purchase,\nsale or lease of real property or an acquisition or granting of other\ninterest in real property, that is the subject of a governmental\nprocurement.\n c. "Contacts" shall mean any oral, written or electronic communication\nwith a governmental entity under circumstances where a reasonable person\nwould infer that the communication was intended to influence the\ngovernmental entity's conduct or decision regarding the governmental\nprocurement.\n d. "Proposal" shall mean any bid, quotation, offer or response to a\ngovernmental entity's solicitation of submissions relating to a\nprocurement.\n e. "Governmental procurement" shall mean: (i) the public announcement,\npublic notice, or public communication to any potential vendor of a\ndetermination of a need for a procurement, which shall include, but not\nbe limited to, the public notification of the specifications, bid\ndocuments, request for proposals, or evaluation criteria for a\nprocurement contract, (ii) solicitation for a procurement contract,\n(iii) evaluation of a procurement contract, (iv) award, approval, denial\nor disapproval of a procurement contract, or (v) approval or denial of\nan assignment, amendment (other than amendments that are authorized and\npayable under the terms of the procurement contract as it was finally\nawarded or approved by the comptroller, as applicable), renewal or\nextension of a procurement contract, or any other material change in the\nprocurement contract resulting in a financial benefit to the offerer.\n f. "Restricted period" shall mean the period of time commencing with\nthe earliest posting, on a governmental entity's website, in a newspaper\nof general circulation, or in the procurement opportunities newsletter\nin accordance with article four-C of the economic development law of\nwritten notice, advertisement or solicitation of a request for proposal,\ninvitation for bids, or solicitation of proposals, or any other method\nprovided for by law or regulation for soliciting a response from\nofferers intending to result in a procurement contract with a\ngovernmental entity and ending with the final contract award and\napproval by the governmental entity and, where applicable, the state\ncomptroller.\n g. "Procurement contract" shall mean any contract or other agreement,\nincluding an amendment, extension, renewal or change order to an\nexisting contract (other than amendments, extensions, renewals, or\nchange orders that are authorized and payable under the terms of the\ncontract as it was finally awarded or approved by the comptroller, as\napplicable), for an article of procurement involving an estimated\nannualized expenditure in excess of fifteen thousand dollars. Grants,\narticle eleven-B state finance law contracts, program contracts between\nnot-for-profit organizations, as defined in article eleven-B of this\nchapter, and the unified court system, intergovernmental agreements,\nrailroad and utility force accounts, utility relocation project\nagreements or orders, contracts governing organ transplants, contracts\nallowing for state participation in trade shows, and eminent domain\ntransactions shall not be deemed procurement contracts.\n h. "Offerer" shall mean the individual or entity, or any employee,\nagent or consultant or person acting on behalf of such individual or\nentity, that contacts a governmental entity about a governmental\nprocurement during the restricted period of such governmental\nprocurement whether or not the caller has a financial interest in the\noutcome of the procurement; provided, however, that a governmental\nagency or its employees that communicates with the procuring agency\nregarding a governmental procurement in the exercise of its oversight\nduties shall not be considered an offerer.\n i. "Revenue contract" shall mean any written agreement between a\ngovernmental entity, as that term is defined in subparagraphs one, four,\nfive, six or seven of paragraph a of this subdivision, and an offerer\nwhereby the governmental entity gives or grants a concession or a\nfranchise.\n j. "Unified court system" shall, for the purposes of this section\nonly, mean the unified court system of the state of New York, or the\noffice of court administration, where appropriate, other than town and\nvillage justice courts in jurisdictions with a population under fifty\nthousand, when it acts solely in an administrative capacity to engage in\ngovernmental procurements and shall not include the unified court system\nor any court of the state judiciary when it acts to hear and decide\ncases of original or appellate jurisdiction or otherwise acts in its\njudicial, as opposed to administrative, capacity.\n 2. Every governmental entity that undertakes a governmental\nprocurement shall:\n a. at the same time that a restricted period is imposed, designate,\nwith regard to each governmental procurement, a person or persons who\nare knowledgeable about the procurement and who may be contacted by\nofferers relative to the governmental procurement;\n b. make any determinations on any governmental procurement: (1) in a\nmanner consistent with the principles provided for under subdivision two\nof section one hundred sixty-three of this chapter, or, if the\ngovernmental entity is a public benefit corporation, as that term is\ndefined in section sixty-six of the general construction law, and the\nmajority of the members consist of persons either appointed by the\ngovernor or who serve as members by virtue of holding a civil office of\nthe state, the procurement guidelines adopted pursuant to section\ntwenty-eight hundred seventy-nine of the public authorities law, and (2)\nfree from any conduct that would be prohibited by subdivision five of\nsection seventy-three or section seventy-four of the public officers\nlaw, or of other applicable ethics code provisions that are equivalent\nto subdivision five of section seventy-three or section seventy-four of\nthe public officers law where the public officials that are involved in\nthe governmental procurement are not subject to subdivision five of\nsection seventy-three or section seventy-four of the public officers\nlaw;\n 3. Each offerer that contacts a governmental entity about a\ngovernmental procurement shall only make permissible contacts with\nrespect to the governmental procurement, which shall mean that the\nofferer:\n a. shall contact only the person or persons who may be contacted by\nofferers as designated by the governmental entity pursuant to paragraph\na of subdivision two of this section relative to the governmental\nprocurement, except that the following contacts are exempted from the\nprovisions of this paragraph and do not need to be directed to a\ndesignated contact pursuant to section one hundred thirty-nine-k of this\narticle:\n (1) the submission of written proposals in response to a request for\nproposals, invitation for bids or any other method for soliciting a\nresponse from offerers intending to result in a procurement contract;\n (2) the submission of written questions by a method set forth in a\nrequest for proposals, or invitation for bids, or any other method for\nsoliciting a response from offerers intending to result in a procurement\ncontract, when all written questions and responses are to be\ndisseminated to all offerers who have expressed an interest in the\nrequest for proposals, or invitation for bids, or any other method for\nsoliciting a response from offerers intending to result in a procurement\ncontract;\n (3) participation in a demonstration, conference or other means for\nexchange of information in a setting open to all potential bidders\nprovided for in a request for proposals, invitation for bids, or any\nother method for soliciting a response from offerers intending to result\nin a procurement contract;\n (4) complaints by an offerer regarding the failure of the person or\npersons designated by the procuring governmental entity pursuant to this\nsection to respond in a timely manner to authorized offerer contacts\nmade in writing to the office of general counsel of the procuring\ngovernmental entity, provided that any such written complaints shall\nbecome a part of the procurement record;\n (5) offerers who have been tentatively awarded a contract and are\nengaged in communications with a governmental entity solely for the\npurpose of negotiating the terms of the procurement contract after being\nnotified of tentative award;\n (6) contacts between designated governmental entity staff of the\nprocuring governmental entity and an offerer to request the review of a\nprocurement contract award;\n (7) (a) contacts by offerers in protests, appeals or other review\nproceedings (including the apparent successful bidder or proposer and\nhis or her representatives) before the governmental entity conducting\nthe procurement seeking a final administrative determination, or in a\nsubsequent judicial proceeding; or\n (b) complaints of alleged improper conduct in a governmental\nprocurement to the attorney general, inspector general, district\nattorney, or court of competent jurisdiction; or\n (c) protests, appeals or complaints to the state comptroller's office\nduring the process of contract approval, where the state comptroller's\napproval is required, provided that the state comptroller shall make a\nrecord of such communications and any response thereto which shall be\nentered into the procurement record pursuant to section one hundred\nsixty-three of this chapter; or\n (d) complaints of alleged improper conduct in a governmental\nprocurement conducted by a municipal agency or local legislative body to\nthe state comptroller's office;\n (8) communications between offerers and governmental entities that\nsolely address the determination of responsibility by a governmental\nentity of an offerer;\n (9) Any communications relating to a governmental procurement made\nunder section one hundred sixty-two of the state finance law undertaken\nby (i) the non-profit-making agencies appointed pursuant to paragraph e\nof subdivision six of section one hundred sixty-two of the state finance\nlaw by the commissioner of the office of children and family services,\nthe commission for the blind, or the commissioner of education, and (ii)\nthe qualified charitable non-profit-making agencies for the blind, and\nqualified charitable non-profit-making agencies for other severely\ndisabled persons as identified in subdivision two of section one hundred\nsixty-two of this chapter; provided, however, that any communications\nwhich attempt to influence the issuance or terms of the specifications\nthat serve as the basis for bid documents, requests for proposals,\ninvitations for bids, or solicitations of proposals, or any other method\nfor soliciting a response from offerers intending to result in a\nprocurement contract with a state agency, the state legislature, the\nunified court system, a municipal agency or local legislative body shall\nnot be exempt from the provisions of this paragraph;\n (10) Complaints by minority-owned business enterprises or women-owned\nbusiness enterprises, certified as such by the division of minority and\nwomen's business development, to the minority and women-owned business\nenterprise statewide advocate concerning the procuring governmental\nentity's failure to comply with the requirements of section three\nhundred fifteen of the executive law;\n (11) Communications between the minority and women-owned business\nenterprise statewide advocate and the procuring governmental entity in\nfurtherance of an investigation of the minority and women-owned business\nenterprise statewide advocate pursuant to section three hundred twelve-a\nof the executive law.\n provided, however, that nothing in this subdivision shall be construed\nas recognizing or creating any new rights, duties or responsibilities or\nabrogating any existing rights, duties or responsibilities of any\ngovernmental entity as it pertains to implementation and enforcement of\narticle eleven of this chapter or any other provision of law dealing\nwith the governmental procurement process, and that nothing in this\nsubdivision shall be interpreted to limit the authority of a\ngovernmental entity involved in a government procurement by exercise of\nan oversight function from providing information to offerers regarding\nthe status of the review, oversight, or approval of a governmental\nprocurement that has been submitted to or is under review by that\ngovernmental entity.\n b. shall not attempt to influence the governmental procurement in a\nmanner that would result in a violation or an attempted violation of\nsubdivision five of section seventy-three or section seventy-four of the\npublic officers law, or of other applicable ethics code provisions that\nare equivalent to subdivision five of section seventy-three or section\nseventy-four of the public officers law where the public officials that\nare involved in the governmental procurement are not subject to\nsubdivision five of section seventy-three or section seventy-four of the\npublic officers law;\n 4. Violations of paragraph a of subdivision three of this section\nshall include any contacts during the restricted period of a\ngovernmental procurement between the offerer and any member, officer or\nemployee of any governmental entity other than the entity conducting the\ngovernmental procurement; provided, however, that nothing in this\nsection shall be deemed to prohibit an offerer from communicating with a\nmember of the state legislature or legislative staff about a\ngovernmental procurement being conducted by a governmental entity other\nthan the state legislature, or a member of the state legislature or\nlegislative staff contacting a governmental entity about a governmental\nprocurement being conducted by a governmental entity other than the\nstate legislature, provided that the member of the state legislature or\nlegislative staff is acting in his or her official capacity.\n 5. Governmental entity staff may consult the model guidelines that may\nbe established by the advisory council on procurement lobbying pursuant\nto section one-t of the legislative law in implementing this section.\n 6. a. Every governmental entity shall incorporate a summary of the\npolicy and prohibitions regarding permissible contacts during a\ngovernmental procurement pursuant to subdivision three of this section,\nand copies of rules and regulations and applicable governmental entity\nguidelines and procedures regarding permissible contacts during a\ngovernmental procurement pursuant to subdivision three of this section\ninto their solicitation of proposals or bid documents or specifications\nfor all procurement contracts.\n b. Every governmental entity shall seek written affirmations from all\nofferers as to the offerer's understanding of and agreement to comply\nwith the governmental entity's procedures relating to permissible\ncontacts during a governmental procurement pursuant to subdivision three\nof this section. Such a written affirmation by an offerer shall be\ndeemed to apply to any amendments to a procurement submitted by the\ngovernmental entity after an initial affirmation is received with an\ninitial bid.\n 7. Notwithstanding any law to the contrary, prior to conducting an\naward of a procurement contract, a governmental entity conducting a\ngovernmental procurement shall make a final determination of\nresponsibility of the proposed awardee in accordance with paragraph f of\nsubdivision nine of section one hundred sixty-three of this chapter, or,\nif the governmental entity is a public benefit corporation, as that term\nis defined in section sixty-six of the general construction law, and the\nmajority of the members consist of persons either appointed by the\ngovernor or who serve as members by virtue of holding a civil office of\nthe state, according to the procurement guidelines adopted pursuant to\nsubparagraph (iii) of paragraph (b) of subdivision three of section\ntwenty-eight hundred seventy-nine of the public authorities law;\nprovided, however, that nothing in this subdivision shall be construed\nas abrogating or diminishing any existing rights, duties or\nresponsibilities of any governmental entity as it pertains to\ndeterminations of responsibility.\n 8. Any member, officer or employee of a governmental entity who\nbecomes aware that an offerer has violated the provisions of subdivision\nthree of this section with regard to permissible contacts during any\ngovernmental procurement shall immediately notify the ethics officer,\ninspector general, if any, or other official of the procuring\ngovernmental entity responsible for reviewing or investigating such\nmatters. If an offerer violates the provisions of subdivision three of\nthis section with regard to permissible contacts at a governmental\nentity other than the governmental entity conducting the governmental\nprocurement, the member, officer or employee who becomes aware of the\nviolation shall notify the ethics officer, inspector general, if any, or\nother official of the governmental entity responsible for reviewing or\ninvestigating such matters where that member, officer or employee works,\nwho shall in turn notify the ethics officer, inspector general, if any,\nor other official of the procuring governmental entity responsible for\nreviewing or investigating such matters at the procuring governmental\nentity.\n 9. Every governmental entity shall establish a process for review by\nits ethics officer, inspector general, if any, or other official\nresponsible for reviewing or investigating any allegations of violations\nof the provisions of subdivision three of this section with regard to\npermissible contacts on governmental procurements, and for the\nimposition of sanctions if such violations have been found to exist.\n 10. a. Upon notification of any allegation of a violation of the\nprovisions of subdivision three of this section with regard to\npermissible contacts on governmental procurements, the governmental\nentity's ethics officer, inspector general, if any, or other official of\nthe procuring governmental entity responsible for reviewing or\ninvestigating such matters shall immediately investigate such allegation\nand, if sufficient cause exists to believe that such allegation is true,\nshall give the offerer reasonable notice that an investigation is\nongoing and an opportunity to be heard in response to the allegation.\n b. A finding that an offerer has knowingly and willfully violated the\nprovisions of subdivision three of this section shall result in a\ndetermination of non-responsibility for such offerer, and such offerer\nand its subsidiaries, and any related or successor entity with\nsubstantially similar function, management, board of directors, officers\nand shareholders (hereinafter, for the purposes of this paragraph\n"offerer"), shall not be awarded the procurement contract, unless the\ngovernmental entity finds that the award of the procurement contract to\nthe offerer is necessary to protect public property or public health or\nsafety, and that the offerer is the only source capable of supplying the\nrequired article of procurement within the necessary timeframe,\nprovided, that the governmental entity shall include in the procurement\nrecord a statement describing the basis for such a finding. Any\nsubsequent determination of non-responsibility due to violation of this\nsection within four years of a determination of non-responsibility due\nto a violation of this section shall result in the offerer being\nrendered ineligible to submit a proposal on or be awarded any\nprocurement contract for a period of four years from the date of the\nsecond final determination. Every governmental entity shall ensure that\nits solicitations of proposals for procurement contracts require\nofferers to disclose findings of non-responsibility due to violations of\nthe provisions of subdivision three of this section within the previous\nfour years by any governmental entity. The failure of offerers to timely\ndisclose accurate and complete information or otherwise cooperate with\nthe governmental entity in administering this provision shall be\nconsidered by the governmental entity in its determination of\nresponsibility; provided, further, that the governmental entity shall\nnot award a contract to an offerer who fails to timely disclose accurate\nand complete information or otherwise cooperate with the governmental\nentity in administering this provision unless the governmental entity\nfinds that the award of the procurement contract to the offerer is\nnecessary to protect public property or public health or safety, and\nthat the offerer is the only source capable of supplying the required\narticle of procurement within the necessary timeframe, provided, that\nthe governmental entity shall include in the procurement record a\nstatement describing the basis for such a finding. Upon a determination\nof non-responsibility or debarment due to a violation of this section,\nthe governmental entity shall notify the office of general services,\nwhich shall keep a list of all offerers who have been determined to be\nnonresponsible bidders or debarred due to violations of this section;\nthe office of general services shall make publicly available such list\nand shall publish such list on its web site.\n c. If a violation of the provisions of subdivision three of this\nsection is found to have knowingly and willfully occurred, then the\nethics officer or inspector general, if any, or other official of the\nprocuring governmental entity responsible for reviewing or investigating\nsuch matters shall report instances of employee violation of the\nguidelines and procedures regarding implementation of subdivision two of\nthis section to the governmental entity's head.\n 11. Nothing in this section shall be deemed to prevent: (a) contacts\nby offerers in protests, appeals or other review proceedings (including\nthe apparent successful bidder or proposer and his or her\nrepresentatives) before the governmental entity conducting the\nprocurement seeking a final administrative determination, or in a\nsubsequent judicial proceeding; or\n (b) complaints of alleged improper conduct in a governmental\nprocurement to the attorney general, inspector general, district\nattorney, or court of competent jurisdiction; or\n (c) written protests, appeals or complaints to the state comptroller's\noffice during the process of contract approval, where the state\ncomptroller's approval is required by law, and where such communications\nand any responses thereto are made in writing and shall be entered in\nthe procurement record pursuant to section one hundred sixty-three of\nthis chapter; or\n (d) complaints of alleged improper conduct in a governmental\nprocurement conducted by a municipal agency or local legislative body to\nthe state comptroller's office;\n provided, however, that nothing in this subdivision shall be construed\nas recognizing or creating any new rights, duties or responsibilities or\nabrogating any existing rights, duties or responsibilities of any\ngovernmental entity as it pertains to implementation and enforcement of\narticle eleven of this chapter or any other provision of law dealing\nwith the governmental procurement process.\n * NB Repealed July 31, 2026\n