NY Temporary State Commission on Lobbying

NY Temporary State Commission on Lobbying

Procurement LobbyingContractor Informational Session

Lobby Education Unit



New TermsExemptionsRestricted PeriodThe Procurement ProcessCommission Salesperson

Outline



What is

Any attempt to influence any determination by a public

official, or a person or entity working with a public official, related to a governmental procurement.

Procurement Lobbying?



Terms“Governmental Procurement” shall mean:

1. Preparation or terms of specifications, bid documents, request for proposals (RFPs), or evaluation criteria for a procurement contract; or

2. Solicitation for a procurement contract; or3. Evaluation of a procurement contract; or4. Award/approval/denial/disapproval of a

procurement contract; or5. Approval/denial of an assignment,

amendment, renewal or extension of a procurement contract; or

6. Any other material change in the procurement contract resulting in a financial benefit to the offerer



Terms“Procurement Contract” means any contract or agreement for an Article of Procurement involving an estimated annualized expenditure in excess of $15,000, except:

Smaller value contracts with an estimated annualized expenditure under $15,000;Grants;Article XI-B state finance law contracts;Intergovernmental agreements;Railroad and utility force accounts, and utility relocation project agreements;Orders and eminent domain transactions



Terms“Article of Procurement” shall include the

following, when subject to governmental procurement:

1. Commodities;2. Services;3. Technology;4. Public Works;5. Construction;6. Revenue Contracts;7. Real Property



Exemptions to the

Exemptions A-F are consistent with the previous act.

A. Limited professional servicesB. MediaC. Witness, attorney or other

representativeD. NYS Administrative Procedure ActE. Comments in responseF. Church

definition of “Lobbying”



Exemptions G-Q

G. Procurement Activities by Certain Non- profits undertaken by:

The non-profit making agencies appointed pursuant to § 162 (6) (e) by the Commissioner of the Office of Children and Family Services;

The Commissioner for the Blind and Visually Handicapped;

The Commissioner of Education;The qualified charitable non-profit

making agencies for the blind; andQualified charitable non-profit making

agencies for other severely disabled persons as identified in § 162 (2)



Exemptions G-Q

H. Procurement Conference Participation:

Participants, including those appearing on behalf of a client, in a conference provided for in a request for proposal (RFP), invitation for bid (IFB), or any other method for soliciting a response from offerers intending to result in a procurement contract.



Exemptions G-Q

I. Certain Procurement-related Communications

Negotiation after tentative award: Offerers, tentatively awarded a contract, and communicating solely for the purpose of negotiating the terms of the procurement contract after being notified of such award; orNegotiations when an article of procurement is being purchased pursuant to an existing article of procurement and offerers engage in communications with the procuring entity in relation to an existing contract solely for the purpose of negotiating terms applicable to that purchase;



Exemptions G-Q

J. Party to a protest, appeal or review;Bring complaints of alleged improper conduct in a

governmental procurement to the attorney general, inspector general, district attorney, or court of competent jurisdiction; or

Submit written protests, appeals or complaints to the state comptroller’s office during the process of contract approval, where the state comptroller’s approval is required by law, and where such communications and any responses thereto are made in writing and shall be entered in the procurement record pursuant to § 163 of the state finance law; or

Bring complaints of alleged improper conduct in a governmental procurement conducted by a municipal agency or local legislative body to the state comptroller’s office;



Exemptions G-Q

K. Submission of the bid or proposal itself: Submitting a bid or proposal in response to a solicitation for such does not constitute

lobbying.

L. Offerers submitting written questions, provided the questions and responses

are shared: Offerers submitting written questions to a designated contact set forth in a request for proposals, or invitation for bids or any other method for soliciting a response from offerers intending to result in a procurement contract, when all written questions and responses are to be disseminated to all offerers.



Exemptions G-Q

M. Limited technical contacts between those providing technical services (accounting, engineering, scientific, or other similar technical disciplines) and “designated” government staff, provided all 3 criteria for content of the communication are met:

Bidders or potential bidders, and subcontractors of bidders or potential bidders, who are “qualified by education, training or experience” to provide “technical services to explain, clarify or demonstrate the qualities,

characteristics or advantages of an article of procurement” qualify for this exemption

only if they are talking to designated government staff, and the contact is:



Exemptions G-Q

Limited to providing information to assist the procuring party in “understanding and assessing the qualities, characteristics or anticipated performance” of an article of procurement; AND

Does not include any recommendations or advocate any contract provisions: AND

Occurs only at such times and in such manner as authorized under the procuring entity’s solicitation or guidelines and procedures.



Exemptions G-Q

N. Applications for licenses, certificates, and permits authorized by statutes or local laws or ordinances are not lobbying.

O. Activities of persons who are commission salespersons with respect to government procurements;

P. Communications made after the award, and in the ordinary course of providing an article of procurement, and the ordinary course of assigned duties, except officers, employees, agents or independent contractors whose primary purpose is lobbying.

Q. Persons communicating with public officials to obtain factual information, provided that they are not otherwise subject to the reporting requirements of the Act due to involvement in lobbying activities as defined by the Act.



Restricted Period

Starts with the earliest attempt to solicit a response with regard to a procurement contract. This may include, but is not necessarily limited to, written notices, advertisements, request for proposal, invitations for bids, solicitations of proposals, or any other method for soliciting a response with regard to a procurement contract



Restricted Period

Ends with the final contract award. “Final contract award” means that all parties that must approve the contract have granted the approval.

For instance, some contracts may require only agency approval, whereas others may require the additional approval of the state comptroller or a legislative body.



Procurement Process

Determination of NeedLobbying activity relates to a governmental

procurement, Lobby Act 1-c(c)(v)A governmental procurement includes the

preparation of the specifications, bid documents, request for proposals or evaluation criteria for a procurement contract, Lobby Act 1-c(p)(i), all of which occur prior to the beginning of the restricted period.

For the purposes of the Lobby Act, a governmental procurement begins when a governmental entity makes a determination of need relating to an article of procurement



Procurement Process

Determination of Need (Cont.)The determination of need is the first step

in the procurement process and should be the initial entry in the procurement record (See Section Three: Selecting a Procurement Technique, of the State Procurement Council Guidelines)

Lobbying activity can take place during the period beginning with the determination of need and ending with the final contract award



Procurement Process

When an offerer contacts a governmental entity:

Ask if the governmental entity is at that time of the contact working on a governmental procurement, beginning with the determination of need, relating to the offerer’s product or service

If the answer is no, there can be no lobbying activity because there is no governmental procurement

If the answer is yes, the offerer may choose not to continue the contact, or, may continue knowing that he or she may be engaging in lobbying activity



Commission Salesperson

“Commission Salesperson” generally means any person who satisfies all of the following criteria:1. Primary purpose of employment is to cause

or promote the sale of, or to influence or induce another to make a purchase of an article of procurement; and

2. Compensated, in whole or in part, by the payment of a percentage amount of all or a substantial amount of all or a substantial part of the sales which such person has caused , promoted, influenced or induced.

3. Is an employee of, or an independent contractor with a written contract for a term of at least six months, or from an indefinite period.



Commission Salesperson

4. The percentage amount payable for the sale of an article of procurement may not be substantially in excess of any commission payable with respect to any comparable sale to a purchaser that is not a state agency.

5. May not be engaged in any lobbying activity other than procurement lobbying.



Should I Register?

If you reasonably anticipate exceeding $5,000 in reportable compensation

and expenses;

The article of procurement is valued at $15,000 or more;

And you do not fall under any of the exemptions

YOU ARE REQUIRED TO REGISTER



Workshops Now Offered

On-Line Filing

Lobbyist Reporting and Requirements

Client Reporting and Requirements

Reserve your place now!!!!



Contact Info

Phone: (518) 474-

7126

Fax: (518) 473-6492

E-mail:

[email protected]

www.nylobby.state.ny.us

NY State Office of General Services

State Finance Law Provisions of theProcurement Lobbying Law


Topics to Cover

What is the Procurement Lobbying Law ?

What is the Advisory Council on Procurement Lobbying?

Application of the State Finance Law provisions of the Procurement Lobbying Law

What is the “Restricted Period”?

What are “Contacts” and the consequences of violating requirements?

Impact of the law on business community (“Offerers”)


What is the

Legislative Law – interpreted and enforced by the NY Temporary State Commission on Lobbying (referred to as the Lobbying Act)• expands definition of lobbying to include

governmental procurements• establishes Advisory Council on

Procurement Lobbying

State Finance Law §139-j and §139-k – addresses actions of governmental entities and the business community

Procurement Lobby Law?


Procurement Lobbying

Legislative Law (Lobbying Act)

State Finance Law

Governs lobbying by lobbyists and clients

Governs the activities of governmental entities

when conducting procurements


Purpose of the

Procurement Lobbying Law Builds on the pre-existing requirements governing procurement activities, such as State Finance Law Articles 9 and 11, the Freedom of Information Law, the Open Meeting Law and Public Officers Law Code of Conduct

Formalizes practices already in place documenting the procurement process and clarifies responsibilities and expectations when expending public funds

Emphasis on open, transparent, and fair procurement process


Develops Standard Procurement Practices

Defines the kinds of information• to be provided to the business community• to be obtained from the business community• to be made part of the formal record for a

procurement

Defines where the business community can direct advocacy efforts


The Advisory Council on Procurement Lobbying

Created by Legislative Law §1-t

Eleven members, chaired by Office of General Services

Three general obligations of Council• Reports• Guidance• Advice to Lobbying Commission on

procurement lobbying


Guidance, model forms and language and other materials are available at:

http://www.ogs.state.ny.us/aboutOgs/ regulations/defaultAdvisoryCouncil.html

This web site and its materials can be used to educate staff and the business community regarding these legal requirements.



Applicability of State Finance Law Provisions

Every State Agency

Public Authorities of which at least one member is appointed by the Governor

Unified Court System

Legislature

Certain Industrial Development Agencies

Public Benefit Corporations


Types of Contracts Subject to the Law

Construction and related services

Procurement (commodities, services and technology)

Real Estate (Purchase, Sale, Lease of Real Property including interest therein.)

Certain Revenue Contracts

Assignments, renewals, extensions and certain amendments

When the estimated annualized expenditure will

exceed $15,000


Types of Contracts Exempt from the Law

Definition of Procurement Contract expressly exempts the following• Grants• SFL Article 11-B contracts• Intergovernmental agreements• Railroad and utility force accounts• Utility relocation agreements• Eminent domain transactions


General Rule

State Finance Law recognizes that communications are necessary to the conduct of Government Procurement

There are different kinds of communications

During certain time periods (Restricted Period) when certain kinds of communications with Government Entities about Procurement Contracts have specific rules (referred to as Contacts)


Definition of business need

Restricted Period(limits who can

receive Contacts)

Ad in Contract Reporter

Approval of

contractby OSC


Restricted Period

Restricted Period - Time period from advertisement or other request for a proposal until the contract receives all the required approvals, such as OSC approval

This is the only time period where these formal requirements apply regarding who can be “Contacted” and the creation of a record


Specific Communications Subjectto the State Finance Law

Governs those communications that are intended to influence the Governmental Procurement (referred to as “Contacts”)

Requires that Contacts by an Offerer during the Restricted Period be limited to

• Designated Contact [SFL §139-j(3)(a)]• Permissible Subject Matter [SFL §139-j(3)(a)

(1-7)]


Requires each Governmental Entity to develop a policy on permissible contacts and to inform Offerers.

If an Offerer does not so limit Contacts, the Contacts are “impermissible Contacts” and

State Finance Law imposes new consequences if Offerers have impermissible Contacts, including possible debarment


Designated Contact

State Finance Law requires the Governmental Entity to identify a person or persons who may be Contacted by Offerers about a procurement

The Designated Contact may receive all communications from Offerers, including Contacts (attempts to influence) (limited by Public Officers Law and Penal Law)


If you provide services for a Governmental Entity, be mindful of these restrictions on Contacts.

Generally, a vendor is not a Designated Contact.

You need to determine what role, if any, you have when aspects of such services are out for bid.

Direct questions to the Designated Contact.


Permissible Subject Matter

State Finance Law §139-j(3)(a)(1-7) recognizes a specific series of communications and Contacts that can go to other than the Designated Contacts

These Contacts are with the procuring Governmental Entity and other Governmental Entities

Important that Offerer’s Contacts be limited to the specific subject matter


Permissible Subject Matter

#1 - submission of a written proposal from an Offerer

#2 - submission of written questions in accordance with a process sent out in the solicitation, that must include sending all responses to all Offerers

#3 - participation in a conference provided for in a solicitation


#4 - complaints by an Offerer that the Designated Contact has not been responsive filed in writing to Counsel’s Office

#5 - negotiation of a Procurement Contact after tentative award

#6 - review of a procurement contract award (debriefings)


#7 - protests, appeals or other review proceedings, such as judicial proceedings or allegations of improper conduct. Category includes the ability of an Offerer to file a written protest, appeal or complaint to the state

comptroller’s office during the process of contract approval.


Net Result

Offerer can always Contact Designated Contact

Offerer cannot Contact other employees or governmental entities unless falls within one of the permissible subject matters (SFL §139-j(4))

• For example, okay to file written protest or complaint with OSC, but not to otherwise Contact

• Cannot Contact DOB to complain about a procurement


However, statute does permit Offerer to contact Legislature about governmental procurements (unless Legislature is conducting the procurement) and the Legislature may contact the procuring agency (in its official capacity)

If Contacted by the Legislature, the SFL indicates that the Governmental Entity shall not record the Contact


What communications arecovered by this law?

Communications that are intended to influence the governmental procurement (Contacts)

A Contact is an • oral, written or electronic communication • with a Governmental Entity• under circumstances where a reasonable

person would infer

• the communication was intended to influence the Governmental Procurement


Not all communicationsare Contacts

Whether a communication is a Contact that is governed by State Finance Law and needs to be recorded depends on several factors• Is there a transaction? • Is it a covered transaction?• What is the value of the transaction?


Is there a Restricted Period?

Who was the communication from?• Under statute, communications from the members or

staff NYS Legislature are not Contacts• Offerer – individual or entity, or employee, agent or

consultant or person acting on behalf of such individual or entity, that contacts a Governmental Entity during the Restricted Period about a Governmental Procurement


Does the communication constitute a Contact?

• Number of factors to consider

–“Reasonable person” standard

–Consider totality of the circumstance

Factual exchanges of information are generally not Contacts

• When is the bid due?

• Where is the bid due?

• I am missing pages 38 – 47 from the RFP.

Can you please send them to me?


Communications that a reasonable person would probably consider as intended to influence the governmental procurement

(a Contact)• You should award the bid to my company because

…• You shouldn’t award the contract to Company X

because …


If it is a Contact

State Finance Law requires a Governmental Entity to collect and record specific information about every Contact

Record must be made a part of the

Procurement Record

Governmental Entity must determine if it is an “impermissible Contact” and refer for investigation if it is


Determine if Contact must beReported/Referred

Whether a Contact is impermissible and must be reported/referred for investigation depends on the person’s role in the procurement

Four principal roles in the procurement process


Designated Contact(s) –• those employees specifically named to receive all communications from the Offerers during the Restricted Period, including Contacts• report/refer all Contacts that violate Public Officers Law or Penal Law

Permissible subject matter communications • those employees who may receive only • specific subject matter communications during Restricted Period• report/refer all Contacts that are outside of the specific subject matter


All other employees • may only receive factual inquiries (not Contacts)• report/refer all Contacts

Control agencies • only may receive specific subject matter Contacts from Offerer during the Restricted Period report/refer all Contacts that are outside of the specific subject matter


What is theReport / Referral Process?

Each Governmental Entity is obligated to develop policies and procedures on the review and investigation process

Report/referral generally to agency ethics officer or inspector general, who has specific obligations to review and investigate under law


Review and Investigation

Offerer is given reasonable notice that an investigation is ongoing and an opportunity to be heard

Purpose is to determine• if an impermissible Contact occurred; • who made the impermissible Contact; and• whether the Offerer’s impermissible

Contact was knowing and willful


1st Finding ofNon-Responsibility

If there is a finding that an Offerer knowingly and willfully violated the requirements about permissible Contacts, Offerer is determine to be “non-responsible” and no award. However, award can be made if two specific statutory requirements established

First finding of non-responsibility also results in the Offerer being listed on the OGS maintained list of bidders determined to be non-responsible


2nd Finding ofNon-Responsibility

Second finding of non-responsibility within four year period results in debarment of Offerer

Offerer is listed on the OGS maintained list of bidders debarred due to violations of this statute

Offerer ineligible to submit a proposal or be awarded any Procurement Contract for a period of four years from the second determination


Impact of Law onBusiness Community

Requirements about Contacts

Consequences of impermissible Contacts

Four contractual requirements and possible consequences


Contractual Requirements

Offerer must provide written affirmation on understanding of and agreement to an agency’s policy on permissible contacts• This affirmation will be an element examined

when a governmental entity is determining whether an impermissible Contact was knowing and willful

Offerer must certify that the information provided under SFL section 139-k is complete, true and accurate


Offerer must disclose additional information about prior findings of non-responsibility• Expansion of the areas examined for vendor

responsibility

Offerer must agree to the inclusion of specific termination clause in contract


Other Impacts

Failure to timely disclose accurate information will result in non-award

Failure to cooperate results in no award• Such as a refusal to submit affirmation or

certification


State Finance LawKey Considerations

Determine if there is a Restricted Period

Understand the Governmental Entity’s policy on permissible Contacts

Determine who is the Designated Contact for that procurement

Carefully consider and direct communications and Contacts correctly

Follow the processes in the solicitation

Comply with requests for information


Contact: OGS Legal Services41st Floor, Corning TowerGov. N.A. Rockefeller, ESPAlbany, NY 12242(518) [email protected]


Thank you.

Documents

NY Temporary State Commission on Lobbying