§ 139-K — Disclosure of contacts and responsibility of offerers

New York § 139-K

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

Text

* § 139-k. Disclosure of contacts and responsibility of offerers. 1.\nFor 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) a public authority or public benefit\ncorporation, at least one of whose members is appointed by the governor\nor who serves as a member by virtue of holding a civil office of the\nstate; (6) municipal agency, as that term is defined in paragraph (ii)\nof subdivision (s) of section one-c of the legislative law; or (7) a\nsubsidiary 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 a trade show, 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. Each governmental entity shall ensure that solicitation of\nproposals or bid documents or specifications, or contract documents, as\napplicable, for procurement contracts shall require offerers to disclose\nfindings of non-responsibility made within the previous four years by\nany governmental entity where such prior finding of non-responsibility\nwas due to: (a) a violation of section one hundred thirty-nine-j of this\narticle, or (b) the intentional provision of false or incomplete\ninformation to a governmental entity.\n 3. The failure of an offerer to timely disclose accurate or complete\ninformation to a governmental entity pursuant to subdivision two of this\nsection shall be considered by such governmental entity in its\ndetermination of the responsibility of such offerer. No procurement\ncontract shall be awarded to any such offerer, its subsidiaries, and any\nrelated or successor entity with substantially similar function,\nmanagement, board of directors, officers and shareholders (hereinafter,\nfor the purposes of this subdivision, "offerer"), 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.\n 4. Upon any contact in the restricted period, the governmental entity\nshall obtain the name, address, telephone number, place of principal\nemployment and occupation of the person or organization making the\ncontact and inquire and record whether the person or organization making\nsuch contact was the offerer or was retained, employed or designated by\nor on behalf of the offerer to appear before or contact the governmental\nentity about the governmental procurement. All recorded contacts shall\nbe included in the procurement record for the procurement contract.\n 5. Any procurement contract award subject to the provisions of this\nsection and section one hundred thirty-nine-j of this article shall\ncontain a certification by the offerer that all information provided to\nthe procuring governmental entity with respect to this section is\ncomplete, true and accurate, and each such procurement contract shall\ncontain a provision authorizing the governmental entity to terminate\nsuch contract in the event such certification is found to be\nintentionally false or intentionally incomplete. The governmental entity\nshall include in the procurement record a statement describing the basis\nfor any action taken pursuant to such termination provision.\n 6. Any communications received by a governmental entity from members\nof the state legislature, or legislative staffs, when acting in their\nofficial capacity, shall not be considered to be a "contact" within the\nmeaning of this section and shall not be recorded by a governmental\nentity pursuant to this section.\n * NB Repealed July 31, 2026\n