§ 165 — Purchasing restrictions

§ 165. Purchasing restrictions. 1. Definitions. a. "Non-tropical\nhardwood species" shall mean any and all hardwood that grows in any\ngeographically temperate regions, as defined by the United States Forest\nService, and is similar to tropical hardwood in density, texture, grain,\nstability or durability. Non-tropical hardwoods, the use or purchase of\nwhich shall be preferred under this article, shall include, but not be\nlimited to the following species:\n Scientific Name Common Name\n Fraxinus americana Ash\n Tila americana Basswood\n Fagus grandifolia Beech\n Betula papyrifera Birch\n Juglans cinerea Butternut\n Prunus serotina Cherry\n Populus spp. Cottonwood\n Ulmus spp. Elms\n Nyssa sylvatica Black gum\n Liquidambar styracifula Red gum\n Celtis laevigata Hackberry\n Hicoria spp. Hickory\n Acer spp. Maples\n Quercus spp. Oaks\n Hicoria spp. Pecan\n Liriodendron tulipi fera Yellow Poplar\n Platanus occidentalis Sycamore\n Juglans nigra Black Walnut\n b. "Tropical hardwood" shall mean any and all hardwood, scientifically\nclassified as angiosperm, that grows in any tropical moist forest.\nTropical hardwoods shall be the following species:\n Scientific Name Common Name\n Vouacapous americana Acapu\n Pericopsis elata Afrormosis\n Shorea almon Almon\n Peltogyne spp. Amaranth\n Guibourtia ehie Amazaque\n Aningeris spp. Aningeria\n Dipterocarpus grandiflorus Apilong\n Ochroma lagopus Balsa\n Virola spp. Banak\n Anisoptera thurifera Bella Rose\n Guibourtis arnoldiana Benge\n Deterium Senegalese Boire\n Priora copaifera Cativo\n Antiaris africana Chenchen\n Dalbergis retusa Concobola\n Cordia spp. Cordia\n Diospyros spp. Ebony\n Aucoumes klaineana Gaboon\n Chlorophors excelsa Iroko\n Acacia koa Koa\n Pterygota macrocarpa Koto\n Shorea negrosensis Red Lauan\n Pentacme contorta White Lauan\n Shores ploysprma Tanguile\n Terminalia superba Limba\n Aniba duckei Louro\n Kyaya ivorensis Africa Mahogany\n Swletenia macrophylla Amer. Mahogany\n Tieghemella leckellii Makora\n Distemonanthus benthamianus Movingui\n Pterocarpus soyauxii African Padauk\n Pterocarpus angolensis Angola Padauk\n Aspidosperma spp. Peroba\n Peltogyne spp. Purpleheart\n Gonystylus spp. Ramin\n Dalbergia spp. Rosewood\n Entandrophragm a cylindricum Sapela\n Shores phillippinensis Sonora\n Tectona grandis Teak\n Lovoa trichilloides Tigerwood\n Milletia laurentii Wenge\n Microberlinia brazzavillensis Zebrawood\n c. "Tropical rain forests" shall mean any and all forests classified\nby the scientific term "Tropical moist forests", the classification\ndetermined by the equatorial region of the forest and average rainfall.\n d. "Tropical wood products" shall mean any wood products, wholesale or\nretail, in any form, including but not limited to veneer, furniture,\ncabinets, paneling, moldings, doorskins, joinery, or sawnwood, which are\ncomposed of tropical hardwood except plywood.\n e. "Secondary materials" means any material recovered from or\notherwise destined for the waste stream, including, but not limited to,\npost-consumer material, industrial scrap material and overstock or\nobsolete inventories from distributors, wholesalers and other companies\nbut such term does not include those materials and by-products generated\nfrom, and commonly reused within, an original manufacturing process.\n 2. Prohibition on purchase of tropical hardwoods.\n a. Except as hereinafter provided, the state and any governmental\nagency or political subdivision or public benefit corporation of the\nstate shall not purchase or obtain for any purpose any tropical\nhardwoods or tropical hardwood products, wholesale or retail, in any\nform.\n b. The provisions of paragraph a of this subdivision shall not apply\nto:\n (i) Any hardwoods purchased from a sustained, managed forest; or\n (ii) Any binding contractual obligations for purchase of commodities\nentered into prior to August twenty-fifth, nineteen hundred ninety-one;\nor\n (iii) The purchase of any tropical hardwood or tropical hardwood\nproduct for which there is no acceptable non-tropical hardwood species;\nor\n (iv) Where the contracting officer finds that no person or entity\ndoing business in the state is capable of providing acceptable\nnon-tropical hardwood species sufficient to meet the particular contract\nrequirements; or\n (v) Where the inclusion or application of such provisions will violate\nor be inconsistent with the terms or conditions of a grant, subvention\nor contract in an agency of the United States or the instructions of an\nauthorized representative of any such agency with respect to any such\ngrant, subvention or contract; or\n (vi) Where inclusion or application of such provisions results in a\nsubstantial cost increase to the state, government agency, political\nsubdivision, public corporation or public benefit corporation.\n c. (i) In the case of any bid proposal or solicitation, request for\nbid or proposal or contract for the construction of any public work,\nbuilding maintenance or improvement for or on behalf of the state and\nany governmental agency or political subdivision or public benefit\ncorporation of the state, it shall not require or permit the use of any\ntropical hardwood or wood product.\n (ii) Every bid proposal, solicitation, request for bid or proposal and\ncontract for the construction of any public work, building maintenance\nor improvement shall contain a statement that any bid, proposal or other\nresponse to a solicitation for bid or proposal which proposes or calls\nfor the use of any tropical hardwood or wood product in performance of\nthe contract shall be deemed non-responsive.\n d. The provisions of paragraph c of this subdivision shall not apply:\n (i) To bid packages advertised and made available to the public or any\ncompetitive and sealed bids received or entered into prior to August\ntwenty-fifth, nineteen hundred ninety-one; or\n (ii) To any amendment, modification or renewal of a contract, which\ncontract was entered into prior to August twenty-fifth, nineteen hundred\nninety-one, where such application would delay timely completion of a\nproject or involve an increase in the total monies to be paid under that\ncontract; or\n (iii) Where the contracting officer finds that:\n (A) No person or entity doing business in the state is capable of\nperforming the contract using acceptable non-tropical hardwood species;\nor\n (B) The inclusion or application of such provisions will violate or be\ninconsistent with the terms or conditions of a grant, subvention or\ncontract with an agency of the United States or the instructions of an\nauthorized representative of any such agency with respect to any such\ngrant, subvention or contract; or\n (C) The use of tropical woods is deemed necessary for purposes of\nhistorical restoration and there exists no available acceptable\nnon-tropical wood species.\n 3. Purchasing of commodities for state use.\n a. For the purposes of this subdivision, the following terms shall\nhave the meanings set forth herein. "Recycled commodity" shall mean any\ncommodity that has been manufactured from secondary materials as defined\nin subdivision one of section two hundred sixty-one of the economic\ndevelopment law and that meets secondary material content requirements\nadopted by the office of general services, which shall be consistent, to\nthe extent practicable, with regulations promulgated pursuant to section\n27-0717 of the environmental conservation law or, if no such\nrequirements have been adopted or no such product is available, meets\nthe secondary material content requirements adopted by any state agency\nwith respect to a specific commodity procurement by such agency.\n"Remanufactured" shall mean any commodity that has been restored to its\noriginal performance standards and function and is thereby diverted from\nthe solid waste stream, retaining, to the extent practicable, components\nthat have been through at least one life cycle and replacing consumable\nor normal wear components. "Recyclable" shall mean any commodity that\ncan be collected, separated, or otherwise recovered from the solid waste\nstream for reuse, remanufacture or assembly of another commodity,\nthrough a widely available and easily accessible program.\n b. Consistent with determinations of need required by subdivision five\nof section one hundred sixty-three of this article, the commissioner and\nstate agencies shall purchase recycled, remanufactured or recyclable\ncommodities when such commodities meet their form, function and utility\nand shall consider the cost of the commodity over its lifecycle. The\ncommissioner and a state agency shall also have the authority to\ndetermine that for reasons of public health or safety, a recycled,\nremanufactured or recyclable commodity should not be purchased. Such\ndeterminations shall be documented in the procurement record.\n (i) A state agency shall purchase recycled commodities at a cost\npremium only if (A) the cost premium associated with a commodity which\nhas recycled content does not exceed ten percent above the cost of a\ncommodity made without recycled content or, (B) the cost of a recycled\ncommodity that contains at least fifty percent secondary materials\ngenerated from the waste stream in New York state, does not exceed a\ncost premium of fifteen percent above the cost of a comparable\ncommodity.\n (ii) A state agency shall not be required to purchase recyclable or\nremanufactured commodities at a cost premium unless such commodity also\nconstitutes a "recycled commodity" as defined in this subdivision and\nthat as such a recycled commodity, it has been offered for sale in\nconformance with the standards for application of a cost premium for\nrecycled commodities as set forth in clauses (A) and (B) of subparagraph\n(i) of this paragraph.\n c. The commissioner shall periodically review the general\nspecifications in order to eliminate, wherever feasible, discriminations\nagainst the procurement of commodities manufactured with recovered\nmaterials or remanufactured materials; and shall annually review the\npaper specifications to consider increasing the percentage of recycled\npaper in paper commodity purchases.\n d. Whenever the commissioner or other state agencies shall purchase or\ncause the purchase of printing on recycled paper, he or she shall\nrequire, to the extent feasible, the printed material to meet the\nrequirements of subdivision two of section 27-0717 of the environmental\nconservation law and regulations promulgated pursuant thereto, and to\ninclude a printed statement or symbol which indicates that the document\nis printed on recycled paper.\n e. Each state agency shall devise, institute and maintain a program to\nsource separate waste paper generated within state office facilities.\nSuch a program shall include marketing arrangements and appropriate\nprocedures to ensure the recovery of discarded paper in a uncontaminated\ncondition.\n f. Each state agency shall devise and institute a program to source\nseparate all other waste generated within state office facilities that\nis not covered by paragraph e of this subdivision. Such program shall\ninclude marketing arrangements and appropriate procedures to ensure the\nmaximum recovery of such waste.\n g. In addition to carrying out the provisions of paragraphs e and f of\nthis subdivision, the commissioner shall identify and implement specific\nsteps which will reduce, to the maximum extent practicable, waste\ngenerated in state facilities and maximize the recovery and reuse of\nsecondary materials from such facilities. Such steps and their\nimplementation shall be reviewed from time to time but no less\nfrequently than annually or upon receiving recommendations for\nadditional steps from the department of environmental conservation or\nthe environmental facilities corporation.\n h. All state agencies shall fully cooperate with the commissioner in\nall phases of implementing the provisions of this section.\n i. The commissioner shall report annually to the governor and the\nlegislature by September first concerning the quantities of recycled\npaper purchased by the office of general services and by state agencies\npursuant to paragraph c of this subdivision, and concerning the amounts\nof waste recycled from state offices and other facilities pursuant to\nparagraphs e and f of this subdivision, the extent of waste reduction,\nthe percentage of the total waste stream which is recycled, the kinds of\nmaterials eliminated from the waste stream, the full avoided costs of\nproper collection and disposal costs of implementing the programs under\nthis section, the specific activities undertaken, goals for the\nsubsequent year resulting from the implementation of steps pursuant to\nparagraph g of this subdivision, and remaining issues and areas for\nimprovement. Such reports shall be widely disseminated as a means of\nassisting those outside state government in the design and\nimplementation of waste reduction and recycling programs, through\ndiscussion of the state's experience in implementing all program aspects\nsuch as collection, sorting, handling, storage and marketing, and the\nresulting accomplishments.\n j. The commissioner shall submit to the director of the budget, the\nchairman and ranking minority member of the senate finance committee and\nthe chairman and ranking minority member of the assembly ways and means\ncommittee an evaluation of all the source separation programs\nimplemented under this subdivision, for paper and other waste prepared\nby an independent entity. Such evaluation shall be submitted by\nSeptember first, nineteen hundred ninety-six and by September first,\nevery two years thereafter.\n 4. Special provisions for purchase of available New York food\nproducts.\n a. Except as otherwise provided in this subdivision, when letting\ncontracts for the purchase of food products on behalf of facilities and\ninstitutions of the state, solicitation specifications of the office of\ngeneral services and any other agency, department, office, board or\ncommission may require provisions that mandate that all or some of the\nrequired food products are grown, produced or harvested in New York\nstate, or that any processing of such food products take place in\nfacilities located within New York state.\n (i) All such solicitations for the purchase of food products shall\ninclude the list of food products developed by the commissioner of\nagriculture and markets pursuant to paragraph b of this subdivision; and\n (ii) notice that such food products are available in sufficient\nquantities for competitive purchasing and that the list was developed to\nassist the state in increasing purchases of New York state food\nproducts.\n b. The commissioner of agriculture and markets shall determine, using\nuniform criteria, those food products for which the requirements of this\nsubdivision are deemed beneficial and shall promulgate and forward to\nthe appropriate agencies a list of such food products, and shall in\naddition ascertain those periods of time each year that those food\nproducts are available in sufficient quantities for competitive\npurchasing and shall forward such information to purchasing agencies.\nThe commissioner of agriculture and markets shall update such list as\noften as is deemed by him or her to be necessary.\n c. (i) Prior to issuing a solicitation for such food products,\npurchasing agencies shall advise the commissioner of agriculture and\nmarkets of the quantities of each food product on the list promulgated\nby the commissioner of agriculture and markets to fulfill that agency's\npurchasing needs.\n (ii) The commissioner of agriculture and markets will then make a\ndetermination of whether those products required by the purchasing\nagency are available in sufficient quantities to satisfy the purchasing\nagency's requirements.\n (iii) Upon a determination by the commissioner of agriculture and\nmarkets that the food products required by the purchasing agency are\navailable in sufficient quantities to fulfill the agency's purchasing\nneeds, the purchasing agency may include in its solicitation a\nrequirement that all or some of those food products are grown, produced\nor harvested in New York state, or that any processing of such food\nproducts take place in facilities located within New York state.\n (iv) Upon a determination by the commissioner of agriculture and\nmarkets that such food products are not available in sufficient\nquantities to fulfill the agency's purchasing needs, the purchasing\nagency shall issue a solicitation that does not require that all or some\nof those food products are grown, produced or harvested in New York\nstate, or that any processing of such food products take place in\nfacilities located within New York state. In such cases, the purchasing\nagency may include such requirements in the next contract for such food\nproducts that is let if at such time those food products are available\nin sufficient quantities. If at that time, those food products are not\navailable in sufficient quantities, the requirement shall again be\nwaived until such time as the products are available.\n (v) In the event that the purchasing agency receives no offers that\nmeet the agency's requirement that all or some of the food products are\ngrown, produced or harvested in New York state, or that any processing\nof such food products take place in facilities located within New York\nstate, it may waive the provisions of this subdivision and award a\ncontract in accordance with other applicable statutes. In addition, if\nthe commissioners of agriculture and markets, economic development and\nany such individual agency shall agree as to the deleterious economic\nimpact of specifications requiring such purchases, such agencies may\nwaive the provisions of this subdivision for such purchases.\n d. The commissioner, and the commissioner of agriculture and markets,\nshall issue regulations for the implementation of this subdivision,\nincluding but not limited to:\n (i) establishing guidelines that will assist agencies in increasing\ntheir use and purchase of New York state food products;\n (ii) publishing such purchasing guidelines on the office of general\nservices website, disseminating such guidelines to agencies and training\ncontracting personnel on implementing such guidelines; and\n (iii) providing for monitoring of implementation.\n e. Notwithstanding any other section of law, rule, regulation or\nstatute, the department of agriculture and markets shall supply\ninformation required by paragraph b of this subdivision to the office of\ngeneral services and to all other appropriate agencies.\n f. (i) With each offer, the offerer shall certify that the food\nproducts provided pursuant to that solicitation will be in conformity\nwith the provisions of the percentage required to meet or exceed the\nrequirements in the solicitation specifying that all or some of the food\nproducts be grown, produced, or harvested within New York state or that\nany processing of such food products take place in facilities located\nwithin New York state.\n (ii) Any successful offerer who fails to comply with the provisions of\nthis subdivision, at the discretion of such agency, board, office or\ncommission, shall forfeit the right to bid on contracts let under the\nprovisions of this subdivision for a period of time to be determined by\nthe commissioner and the commissioner of agriculture and markets.\n (iii) Every successful offerer shall:\n (1) review the list of New York state food products developed pursuant\nto paragraph b of this subdivision to determine whether any such\nproducts are being provided under their contracts;\n (2) report to the procuring agency all of the food products and\nprocessed food procured under such contracts, categorized by specific\ntype, together with the dollar value of each such type procured under\nsuch contract, to the extent practicable and known to such vendor; and\n (3) for each such type of food product or processed food included on\nthe list of New York state food products, report to the procuring\nagency, to the extent practicable and known to such vendor:\n (a) any such New York state food product procured under such contract,\ntogether with the dollar value of each such type procured under such\ncontract;\n (b) any such food product from outside of New York state procured\nunder such contract during its listed New York state availability\nperiod, together with the dollar value of each such type procured under\nsuch contract; and\n (c) any other such food product from outside of New York state or\nprocessed food from facilities outside of New York state procured under\nsuch contract from outside New York state, together with the dollar\nvalue of each such type procured under such contract.\n g. No later than December first of each year the commissioner shall\nannually report to the governor and legislature on the implementation of\nthis subdivision. Such report shall include, at minimum:\n (i) a description of the office's efforts to improve and increase the\ntracking of information relating to New York state food procured by\nagencies; and\n (ii) the information collected pursuant to paragraph f of this\nsubdivision, compiled to provide the following, disaggregated by food\nproduct and processed food:\n (a) the total dollar value of New York state food products procured by\nagencies;\n (b) the total dollar value of food products from outside of New York\nstate procured by agencies during their listed New York state\navailability periods; and\n (c) the total dollar value of all other food products from outside of\nNew York state and processed food from facilities outside of New York\nstate.\n h. The commissioner and the commissioner of agriculture and markets,\nshall advise and assist the chancellor of the state university of New\nYork in extending the benefits of the provisions of this subdivision to\nthe university and shall modify any regulations or procedures heretofore\nestablished pursuant to this subdivision, in order to facilitate such\nparticipation.\n 4-a. Favored source status for New York state labelled wines. a. In\norder to advance specific economic goals, New York state labelled wines,\nas defined in subdivision twenty-a of section three of the alcoholic\nbeverage control law, shall have favored source status for the purposes\nof procurement in accordance with the provisions of this subdivision.\nProcurement of these New York state labelled wines shall be exempt from\nthe competitive procurement provisions of section one hundred\nsixty-three of this article and other competitive procurement statutes.\nSuch exemption shall apply to New York state labelled wines as defined\nin subdivision twenty-a of section three of the alcoholic beverage\ncontrol law produced by a licensed winery as defined in section\nseventy-six of the alcoholic beverage control law.\n b. The commissioner of taxation and finance, in consultation with the\ncommissioners of the state liquor authority shall prepare a list of\nwines that are eligible as determined by the criteria in paragraph a of\nthis subdivision and that are available and are being provided, for\npurchase by state agencies, public benefit corporations, commissions or\npolitical subdivisions from those entities which produce such New York\nstate labelled wine. Such list may include references to catalogs and\nother descriptive literature which are available directly from any\nwinery that produces wine accorded favored source status under this\nsubdivision. The commissioner shall make this list available to\nprospective vendors, state agencies, public benefit corporations,\npolitical subdivisions and other interested parties. Any wines that meet\nthe criteria under paragraph a of this subdivision shall be eligible for\nthis favored source status.\n c. The state procurement council in consultation with the\ncommissioners of the state liquor authority, and upon application from a\nwinery, will determine if a particular New York state labelled wine\nmeets the required criteria under paragraph a of this subdivision for\nfavored source status, and if so, such wine shall be added to the list\nof favored source status New York state labelled wines. In order to\ninsure that such list reflects current production and/or availability of\ncommodities and services, the state procurement council may delete at\nthe request of a winery a favored wine from the list established by the\ncriteria in paragraph a of this subdivision. The state procurement\ncouncil will also determine if a particular wine no longer meets the\nrequired definition under paragraph a of this subdivision for favored\nsource status, and if it does not, such wine shall be deleted from the\nlist of favored source status or favored wines.\n d. The commissioners of the state liquor authority, in consultation\nwith the commissioner of taxation and finance and office of general\nservices, shall make every effort to encourage state agencies, public\nauthorities and political subdivisions when they purchase any quantity\nof wine to purchase those wines that have been granted favored source\nstatus as determined by the commissioners of the state liquor authority\nand the state procurement council.\n e. The list shall be maintained by the office of general services in\naccordance with provisions of section one hundred sixty-two of this\narticle and shall be revised as necessary to reflect the additions and\ndeletions of wines as determined by the state procurement council.\n 5. Nondiscrimination in employment in Northern Ireland.\n a. For the purposes of this subdivision "MacBride Fair Employment\nPrinciples" shall mean those principles relating to nondiscrimination in\nemployment and freedom of work place opportunity which would require\nemployers doing business in Northern Ireland to:\n (i) increase the representation of individuals from underrepresented\nreligious groups in the work force, including managerial, supervisory,\nadministrative, clerical and technical jobs;\n (ii) take steps to promote adequate security for the protection of\nemployees from underrepresented religious groups both at the workplace\nand while traveling to and from work;\n (iii) ban provocative religious or political emblems from the work\nplace;\n (iv) publicly advertise all job openings and make special recruitment\nefforts to attract applicants from underrepresented religious groups;\n (v) establish layoff, recall and termination procedures which do not\nin practice favor a particular religious group;\n (vi) abolish all job reservations, apprenticeship restrictions and\ndifferential employment criteria which discriminate on the basis of\nreligion;\n (vii) develop training programs that will prepare substantial numbers\nof current employees from underrepresented religious groups for skilled\njobs, including the expansion of existing programs and the creation of\nnew programs to train, upgrade and improve the skills of workers from\nunderrepresented religious groups;\n (viii) establish procedures to assess, identify and actively recruit\nemployees from underrepresented religious groups with potential for\nfurther advancement; and\n (ix) appoint a senior management staff member to oversee affirmative\naction efforts and develop a timetable to ensure their full\nimplementation.\n b. (i) With respect to contracts described in subparagraphs (ii) and\n(iii) of this paragraph, and in accordance with such subparagraphs,\nstate agencies as defined in this article shall not contract for the\nsupply of commodities, service or construction with any contractor who\ndoes not agree to stipulate to the following, if there is another\ncontractor who will contract to supply commodities, services or\nconstruction of comparably quality at a comparable price or cost: the\ncontractor and any individual or legal entity in which the contractor\nholds a ten percent or greater ownership interest and any individual or\nlegal entity that holds a ten percent or greater ownership interest in\nthe contractor either (A) have no business operations in Northern\nIreland, or (B) shall make lawful steps in good faith to conduct any\nbusiness operations they have in Northern Ireland in accordance with\nMacBride Fair Employment Principles, and shall permit independent\nmonitoring of their compliance with such principles.\n (ii) In the case of contracts let by a competitive process, whenever\nthe responsive and responsible offerer having the lowest price or best\nvalue offer has not agreed to stipulate to the conditions set forth in\nthis subdivision and another responsive and responsible offerer who has\nagreed to stipulate to such conditions has submitted an offer within\nfive percent of the lowest price or best value offer for a contract to\nsupply commodities, services or construction of comparable quality, the\ncontracting entity shall refer such offers to the commissioner of\ngeneral services, who may determine, in accordance with applicable law\nand rules, that it is in the best interest of the state that the\ncontract be awarded to other than the lowest price or best value offer.\n (iii) In the case of contracts let by other than a competitive process\nfor goods or services involving an expenditure of an amount greater than\nthe discretionary buying threshold as specified in section one hundred\nsixty-three of this article, or for construction involving an amount\ngreater than fifteen thousand dollars, the contracting entity shall not\naward to a proposed contractor who has not agreed to stipulate to the\nconditions set forth in this subdivision unless the entity seeking to\nuse the commodities, services or construction determines that the\ncommodities, services or construction are necessary for the entity to\nperform its functions and there is no other responsible contractor who\nwill supply commodities, services or construction of comparable quality\nat a comparable price. Such determinations shall be made in writing and\nshall be public documents.\n c. Upon receiving information that a contractor who has made the\nstipulation required by this subdivision is in violation thereof, the\ncontracting entity shall review such information and offer the\ncontractor an opportunity to respond. If the contracting entity finds\nthat a violation has occurred, it shall take such action as may be\nappropriate and provided for by law, rule or contract, including, but\nnot limited to, imposing sanctions, seeking compliance, recovering\ndamages or declaring the contractor in default.\n d. As used in this subdivision, the term "contract" shall not include\ncontracts with governmental and non-profit organizations, contracts\nawarded pursuant to emergency procurement procedures or contracts,\nresolutions, indentures, declarations of trust or other instruments\nauthorizing or relating to the authorization, issuance, award, sale or\npurchase of bonds, certificates of indebtedness, notes or other fiscal\nobligations, provided that the policies of this subdivision shall be\nconsidered when selecting a contractor to provide financial or legal\nadvice, and when selecting managing underwriters in connection with such\nactivities.\n e. The provisions of this subdivision shall not apply to contracts for\nwhich the state or other contracting entity receives funds administered\nby the United States department of transportation, except to the extent\nCongress has directed that the department of transportation not withhold\nfunds from states and localities that choose to implement selective\npurchasing policies based on agreement to comply with the MacBride Fair\nEmployment Principles, or to the extent that such funds are not\notherwise withheld by the department of transportation.\n 6. Special provisions relating to retaliating against other\njurisdictions which discriminate against New York state enterprises in\ntheir procurement of products and services.\n a. As used in this subdivision, the following terms shall have the\nfollowing meanings unless a different meaning appears from the context:\n (i) "Discriminatory jurisdiction" shall mean any other country,\nnation, province, state or political subdivision thereof which employs a\npreference or price distorting mechanism to the detriment of or\notherwise discriminates against a New York state business enterprise in\nthe procurement of commodities and services by the same or a\nnon-governmental entity influenced by the same. Such discrimination may\ninclude, but is not limited to, any law, regulation, procedure or\npractice, terms of license, authorization, or funding or bidding rights\nwhich requires or encourages any agency or instrumentality of the state\nor political subdivision thereof or nongovernmental entity influenced by\nthe same to discriminate against a New York state business enterprise.\n (ii) "Foreign business enterprise" shall mean a business enterprise,\nincluding a sole proprietorship, partnership, or corporation, which\noffers for sale, lease or other form of exchange, commodities sought by\nany state agency and which are substantially produced outside New York\nstate or services, other than construction services, sought by any state\nagency and which are substantially performed outside New York state. For\npurposes of construction services, foreign business enterprise shall\nmean a business enterprise, including a sole proprietorship, partnership\nor corporation, which has its principal place of business outside New\nYork state.\n (iii) "New York state business enterprise" shall mean a business\nenterprise, including a sole proprietorship, partnership, or\ncorporation, which offers for sale or lease or other form of exchange,\ncommodities which are substantially manufactured, produced or assembled\nin New York state, or services, other than construction services, which\nare substantially performed within New York state. For purposes of\nconstruction services, a New York state business enterprise shall mean a\nbusiness enterprise, including a sole proprietorship, partnership, or\ncorporation, which has its principal place of business in New York\nstate.\n b. The commissioner of economic development shall have the power and\nit shall be his or her duty to prepare a list of all discriminatory\njurisdictions. The commissioner of economic development shall add to or\ndelete from said list any jurisdiction upon good cause shown. The\ncommissioner of economic development shall deliver a copy of the list to\nthe commissioner, all state agencies, and every public authority and\npublic benefit corporation, a majority of the members of which consist\nof persons either appointed by the governor or who serve as members by\nvirtue of holding a civil office of the state, or a combination thereof.\n c. In including any additional business enterprises on solicitations\nfor the procurement of commodities or services, the commissioner and all\nstate agencies shall not include any foreign business enterprise which\nhas its principal place of business located in a discriminatory\njurisdiction contained on the list prepared by the commissioner of\neconomic development pursuant to paragraph b of this subdivision,\nexcept, however, business enterprises which are New York state business\nenterprises as defined by this subdivision.\n d. A state agency shall not enter into a contract with a foreign\nbusiness enterprise, as defined by this subdivision, which has its\nprincipal place of business located in a discriminatory jurisdiction\ncontained on the list prepared by the commissioner of economic\ndevelopment pursuant to paragraph b of this subdivision. The provisions\nof this paragraph and paragraph c of this subdivision may be waived by\nthe head of the state agency if the head of the state agency determines\nin writing that it is in the best interests of the state to do so. The\nhead of the state agency shall deliver each such waiver to the\ncommissioner of economic development.\n e. The commissioner may waive the application of the provisions of\nparagraph c of this subdivision whenever he or she determines in writing\nthat it is in the best interests of the state to do so.\n 7. Special provisions regarding the purchasing of apparel or sports\nequipment by the state university of New York and the city university of\nNew York.\n a. Notwithstanding any other provision of law, the various units of\nthe state university of New York, the city university of New York and\ncommunity colleges shall have authority to:\n (i) Determine that a bidder on a contract for the purchase of apparel\nor sports equipment is not a responsible bidder as defined in section\none hundred sixty-three of this article based upon either of the\nfollowing considerations:\n (A) the labor standards applicable to the manufacture of the apparel\nor sports equipment, including but not limited to employee compensation,\nworking conditions, employee rights to form unions, and the use of child\nlabor, or\n (B) the bidder's failure to provide information sufficient for the\nstate agency or corporation to determine the labor conditions applicable\nto the manufacture of the apparel or sports equipment.\n (ii) Include in the internal policies and procedures governing\nprocurement of apparel or sports equipment, where such procurement is\nnot further required to be made pursuant to the competitive bidding\nrequirements of section one hundred sixty-three of this article, a\nprohibition against the purchase of apparel or sports equipment from any\nvendor based upon either or both of the following considerations:\n (A) the labor standards applicable to the manufacture of the apparel\nor sports equipment, including but not limited to employee compensation,\nworking conditions, employee rights to form unions, and the use of child\nlabor, or\n (B) the bidder's failure to provide sufficient information for said\nstate agencies to determine the labor standards applicable to the\nmanufacture of the apparel or sports equipment.\n b. For the purposes of this subdivision the term:\n (i) "apparel" shall mean goods, such as, but not limited to, sports\nuniforms, including gym uniforms, required school uniforms, shoes,\nincluding, but not limited to, athletic shoes or sneakers, sweatshirts,\ncaps, hats, and other clothing, whether or not imprinted with a school's\nname or logo, academic regalia, lab coats and staff uniforms; and\n (ii) "sports equipment" shall mean equipment, such as, but not limited\nto, balls, bats and other goods intended for use by those participating\nin sports and games.\n 8. Mercury-free motor vehicles. The commissioner and state agencies\nshall grant a preference and give priority to the purchase of motor\nvehicles which are mercury-free taking into consideration competition,\nprice, availability and performance.\n 9. End point device security. (a) For the purposes of this subdivision\n"end point device" shall mean personal computing goods that include\ndesktops, laptops, all-in-ones, tablets, mobile or cellular telephones,\nthin clients, and monitors of various sizes; printers; and\nmulti-functional devices that include imaging devices that combine\noperations such as copying, printing, scanning and faxing into one\nmachine.\n (b) The commissioner and all state agencies, when procuring end point\ndevices, shall be consistent with any relevant standards, guidelines, or\nguidance developed as part of the National Institute of Standards and\nTechnology (NIST) Cybersecurity Framework.\n