S T A T E   O F   N E W   Y O R K
       ________________________________________________________________________
                                        7513--A
                              2015-2016 Regular Sessions
                                 I N  A S S E M B L Y
                                     May 14, 2015
                                      ___________
       Introduced  by M. of A. PEOPLES-STOKES -- (at request of the State Comp-
         troller) -- read once and referred to the  Committee  on  Governmental
         Operations -- committee discharged, bill amended, ordered reprinted as
         amended and recommitted to said committee
       AN ACT to amend the state finance law, in relation to allowing the state
         comptroller  to  excuse  non-material  deviations in a procurement; in
         relation to participation by state agencies in a system  used  by  the
         comptroller  to compile vendor responsibility information; in relation
         to  defining  information  technology  for  procurement  purposes;  in
         relation  to  authorizing  the  commissioner  of the office of general
         services and state agencies to develop alternative procurement methods
         not otherwise  authorized  by  law  under  certain  circumstances;  in
         relation to authorizing competitive negotiation concluding with a best
         and  final  offer; in relation to clarifying the use of best and final
         offers for invitations for bids and requests for proposals for  goods,
         services  and  technology; in relation to providing unsuccessful offe-
         rors a reasonable opportunity for debriefing; in relation to requiring
         competition and  increased  oversight  for  private  vendor  preferred
         source  opportunities;  in  relation  to  increasing the threshold for
         construction bonds and requiring performance bonds for certain instal-
         lation projects; in relation to clarifying the use of contracts let by
         another governmental agency; in relation  to  reports  on  centralized
         contracts; in relation to increasing the threshold for the state comp-
         troller's  approval  of certain contracts and clarifying the valuation
         of non-cash contracts by the  state  comptroller;  and  to  amend  the
         education law, in relation to defining construction related services
         THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
       BLY, DO ENACT AS FOLLOWS:
    1    Section 1. Subdivision 12 of section 163 of the state finance law,  as
    2  added by chapter 83 of the laws of 1995, is amended to read as follows:
        EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                             [ ] is old law to be omitted.
                                                                  LBD09149-03-5
       A. 7513--A                          2
    1    12.  Review  by  the  office  of  the state comptroller. Review by the
    2  office of the state comptroller shall be in accordance with section  one
    3  hundred  twelve  of  this  chapter. WHERE THE CONTRACTING AGENCY HAS NOT
    4  COMPLIED WITH ONE OR MORE PROVISIONS OF THIS ARTICLE,  THE  STATE  COMP-
    5  TROLLER MAY APPROVE THE AWARDED CONTRACT IF:
    6    A.  THE  CONTRACTING  AGENCY  DETERMINES  AND  CERTIFIES, BASED UPON A
    7  PREPONDERANCE OF THE EVIDENCE DOCUMENTED IN THE PROCUREMENT RECORD, THAT
    8  THE  NONCOMPLIANCE  WAS  A  NON-MATERIAL  DEVIATION  FROM  ONE  OR  MORE
    9  PROVISIONS  OF  THIS  ARTICLE.  FOR  THE  PURPOSES  OF  THIS SUBDIVISION
   10  "NON-MATERIAL DEVIATION" SHALL MEAN  THAT  SUCH  NONCOMPLIANCE  DID  NOT
   11  PREJUDICE  OR  FAVOR  ANY VENDOR OR POTENTIAL VENDOR, SUCH NONCOMPLIANCE
   12  DID NOT SUBSTANTIALLY AFFECT THE FAIRNESS OF  THE  COMPETITIVE  PROCESS,
   13  AND  THAT  A  NEW  PROCUREMENT  WOULD NOT BE IN THE BEST INTEREST OF THE
   14  STATE.  SUCH DETERMINATION BY THE CONTRACTING AGENCY AND THE STATE COMP-
   15  TROLLER SHALL BE DOCUMENTED IN THE PROCUREMENT RECORD; AND
   16    B. THE STATE COMPTROLLER CONCURS IN SUCH DETERMINATION.
   17    S 2. The state finance law is amended by adding a new section 163-c to
   18  read as follows:
   19    S 163-C. VENDOR RESPONSIBILITY; ONLINE SYSTEM PARTICIPATION. 1.  DEFI-
   20  NITIONS. AS USED IN THIS SECTION THE  FOLLOWING  TERMS  SHALL  HAVE  THE
   21  FOLLOWING MEANINGS:
   22    A.  "ENROLLMENT"  SHALL  MEAN  THE ESTABLISHMENT OF AN ONLINE SERVICES
   23  ACCOUNT WITH THE STATE COMPTROLLER, INCLUDING, BUT NOT LIMITED  TO,  THE
   24  CREATION  OF  A  UNIQUE  USER  IDENTIFICATION  AND  PASSWORD. ENROLLMENT
   25  PROVIDES A USER ACCESS TO THE SYSTEM.
   26    B. "ONLINE SERVICES" SHALL MEAN THE SERVICES  PROVIDED  ELECTRONICALLY
   27  AND  SECURELY  BY  THE  STATE  COMPTROLLER FOR THE BENEFIT OF NEW YORK'S
   28  CUSTOMERS, CLIENTS AND BUSINESS PARTNERS. SUCH ONLINE  SERVICES  MAY  BE
   29  EXPANDED AND ENHANCED AS TECHNOLOGY ALLOWS.
   30    C.  "STATE  AGENCY"  OR  "STATE AGENCIES" SHALL MEAN ALL STATE DEPART-
   31  MENTS, BOARDS, COMMISSIONS, OFFICES OR INSTITUTIONS. SUCH TERM SHALL NOT
   32  INCLUDE THE LEGISLATURE OR THE JUDICIARY.
   33    D. "STATE CONTRACT" OR "CONTRACT" SHALL MEAN AND INCLUDE  ANY  WRITTEN
   34  AGREEMENT  FOR THE ACQUISITION OF GOODS, SERVICES OR CONSTRUCTION OF ANY
   35  KIND BETWEEN A VENDOR AND A STATE AGENCY,  OR  A  WRITTEN  AGREEMENT  OR
   36  OTHER  INSTRUMENT  WHEREIN  A  STATE AGENCY AGREES TO GIVE CONSIDERATION
   37  OTHER THAN THE PAYMENT OF MONEY AS CONTEMPLATED IN SUBDIVISION THREE  OF
   38  SECTION ONE HUNDRED TWELVE OF THIS CHAPTER.
   39    E.  "SUBCONTRACTOR"  SHALL  MEAN  AN  INDIVIDUAL, SOLE PROPRIETORSHIP,
   40  PARTNERSHIP, JOINT VENTURE OR CORPORATION, WHICH IS ENGAGED IN A SUBCON-
   41  TRACT BY A VENDOR PURSUANT TO A STATE CONTRACT AND SUCH  SUBCONTRACT  IS
   42  VALUED  AT ONE HUNDRED THOUSAND DOLLARS OR MORE AND IS KNOWN AT THE TIME
   43  OF THE AWARD OF THE STATE CONTRACT TO THE VENDOR.
   44    F.  "SYSTEM"  SHALL  MEAN  THE  ON-LINE  SOFTWARE,  DATA  AND  RELATED
   45  RESOURCES MAINTAINED BY THE COMPTROLLER TO COMPILE VENDOR RESPONSIBILITY
   46  INFORMATION.
   47    G. "TERMS OF SERVICE" SHALL MEAN THE TERMS AND CONDITIONS DEVELOPED BY
   48  THE  STATE  COMPTROLLER  AND  AGREED TO BY EACH AUTHORIZED USER PRIOR TO
   49  GAINING ACCESS TO ONLINE SERVICES.   TERMS OF SERVICE  SHALL  INCLUDE  A
   50  DESCRIPTION  OF  THE  SERVICES, OBLIGATIONS OF THE STATE COMPTROLLER AND
   51  THE AUTHORIZED USER, A DESCRIPTION OF THE  STATE  COMPTROLLER'S  PRIVACY
   52  POLICY,  AUTHORIZED  USER  CODE  OF CONDUCT, AND INDEMNITY FOR THE STATE
   53  COMPTROLLER AND THE STATE OF NEW YORK. TERMS OF SERVICE ARE  SUBJECT  TO
   54  CHANGE  AS  PRESCRIBED  BY THE STATE COMPTROLLER.   AUTHORIZED USERS MAY
   55  VIEW CHANGES VIA THE STATE COMPTROLLER'S INTERNET SITE.
       A. 7513--A                          3
    1    H. "VENDOR" SHALL INCLUDE  ANY  PERSON,  PARTNERSHIP,  CORPORATION  OR
    2  LIMITED  LIABILITY  COMPANY  OR  ANY  BUSINESS ENTITY BIDDING ON A STATE
    3  PROCUREMENT OR OTHERWISE AWARDED A STATE CONTRACT.
    4    I.  "VENDOR  RESPONSIBILITY" SHALL MEAN THAT A VENDOR HAS THE CAPACITY
    5  TO FULLY PERFORM THE TERMS OF A CONTRACT AND THE INTEGRITY AND  BUSINESS
    6  ETHICS  TO JUSTIFY AN AWARD OF PUBLIC DOLLARS. A DETERMINATION OF VENDOR
    7  RESPONSIBILITY SHALL INCLUDE CONSIDERATION OF FACTORS INCLUDING, BUT NOT
    8  LIMITED TO, FINANCIAL  AND  ORGANIZATIONAL  CAPACITY,  LEGAL  AUTHORITY,
    9  INTEGRITY AND PAST PERFORMANCE ON GOVERNMENTAL CONTRACTS.
   10    2. A. STATE AGENCIES SHALL ENROLL WITH THE STATE COMPTROLLER TO ACCESS
   11  THE  SYSTEM MAINTAINED BY THE COMPTROLLER TO COMPILE VENDOR RESPONSIBIL-
   12  ITY INFORMATION. STATE AGENCIES SHALL AGREE TO AND ABIDE BY THE TERMS OF
   13  SERVICE FOR SUCH SYSTEM AS THE STATE COMPTROLLER DEEMS NECESSARY.
   14    B. FOR EACH CONTRACT OR SUBCONTRACT BETWEEN A VENDOR AND A SUBCONTRAC-
   15  TOR WHERE, PURSUANT TO LAW OR BY DIRECTION OF THE STATE AGENCY,  DISCLO-
   16  SURE FOR VENDOR RESPONSIBILITY IS REQUIRED, THE STATE AGENCY SHALL:
   17    (I) PROVIDE NOTICE TO VENDORS BIDDING FOR PROCUREMENTS ADMINISTERED BY
   18  THE  STATE AGENCY THAT ANY VENDOR AND SUBCONTRACTOR, SUBMITTING A VENDOR
   19  RESPONSIBILITY QUESTIONNAIRE SHALL DO SO VIA THE  SYSTEM  MAINTAINED  TO
   20  COMPILE VENDOR RESPONSIBILITY INFORMATION;
   21    (II) PROVIDE VENDORS WITH INSTRUCTIONS ON HOW TO ELECTRONICALLY ACCESS
   22  THE  SYSTEM  AND PROVIDE CONTACT INFORMATION FOR ASSISTANCE WITH ENROLL-
   23  MENT. THIS INFORMATION SHALL BE MADE AVAILABLE PRIOR TO  THE  TIME  WHEN
   24  VENDORS ARE REQUIRED TO SUBMIT DISCLOSURE FOR VENDOR RESPONSIBILITY; AND
   25    (III) ACCESS THE SYSTEM TO OBTAIN AND EVALUATE ANY DATA SUBMITTED BY A
   26  VENDOR  PROPOSED  FOR  CONTRACT  AWARD.  STATE AGENCIES SHALL ENSURE THE
   27  SUBMISSION FILED BY THE VENDOR MEETS SUCH SYSTEM'S TIMELINESS STANDARDS.
   28  SUCH PROVISIONS APPLY REGARDLESS OF WHETHER THE CONTRACT IS  SUBJECT  TO
   29  PRE-REVIEW AND APPROVAL BY THE STATE COMPTROLLER.
   30    C.  FOR  CONTRACTS  WHERE VENDOR DISCLOSURE IS NOT OTHERWISE REQUIRED,
   31  THE STATE AGENCY AT ITS  DISCRETION,  MAY  REQUIRE  VENDORS  BIDDING  ON
   32  PROCUREMENTS,  AND/OR  SUBCONTRACTORS, TO SUBMIT A VENDOR RESPONSIBILITY
   33  QUESTIONNAIRE VIA THE SYSTEM. NOTHING CONTAINED IN THIS PARAGRAPH  SHALL
   34  BE CONSTRUED TO ALTER THE EXISTING AUTHORITY OF THE STATE COMPTROLLER TO
   35  REQUIRE  THE  SUBMISSION  OF  A  VENDOR  RESPONSIBILITY QUESTIONNAIRE IN
   36  CONJUNCTION WITH HIS OR HER DUTY TO REVIEW AND APPROVE  STATE  CONTRACTS
   37  PRIOR TO SUCH CONTRACTS BECOMING EFFECTIVE.
   38    D.  STATE  AGENCIES SHALL PROVIDE ACCESS TO THE SYSTEM TO USERS WITHIN
   39  THEIR ORGANIZATION, AS DEEMED APPROPRIATE BY THE HEAD OF THE STATE AGEN-
   40  CY OR HIS OR HER DESIGNEE. STATE AGENCY USERS PROVIDED WITH SUCH  ACCESS
   41  SHALL  BE  THOSE INDIVIDUALS, WHO, AS PART OF THEIR OFFICIAL JOB DUTIES,
   42  ARE REQUIRED TO ASSESS AND/OR REVIEW VENDOR RESPONSIBILITY FOR THE AGEN-
   43  CY'S CONTRACTS.
   44    S 3. Subdivisions 7 and 10 of section 160 of the  state  finance  law,
   45  subdivision  7  as  amended by section 30 of part L of chapter 55 of the
   46  laws of 2012 and subdivision 10 as added by chapter 83 of  the  laws  of
   47  1995, are amended to read as follows:
   48    7.  "Service"  or  "services" means the performance of a task or tasks
   49  and may include a material good or a quantity  of  material  goods,  and
   50  which is the subject of any purchase or other exchange. For the purposes
   51  of  this  article,  INFORMATION  technology  shall  be deemed a service.
   52  Services, as defined in this article, shall not apply to those contracts
   53  for architectural, engineering or surveying services, or those contracts
   54  approved in accordance with article eleven-B of this chapter.
   55    10. "[Technology] INFORMATION TECHNOLOGY" means either  a  good  or  a
   56  service or a combination thereof, [that results in a technical method of
       A. 7513--A                          4
    1  achieving  a  practical purpose or in improvements in productivity] USED
    2  IN THE APPLICATION OF ANY COMPUTER OR ELECTRONIC  INFORMATION  EQUIPMENT
    3  OR  INTERCONNECTED  SYSTEM  THAT  IS  USED  IN THE ACQUISITION, STORAGE,
    4  MANIPULATION,  MANAGEMENT, MOVEMENT, CONTROL, DISPLAY, SWITCHING, INTER-
    5  CHANGE, TRANSMISSION, OR RECEPTION OF DATA INCLUDING,  BUT  NOT  LIMITED
    6  TO,  HARDWARE,  SOFTWARE, FIRMWARE, PROGRAMS, SYSTEMS, NETWORKS, INFRAS-
    7  TRUCTURE, MEDIA, AND RELATED MATERIAL USED TO  AUTOMATICALLY  AND  ELEC-
    8  TRONICALLY  COLLECT,  RECEIVE, ACCESS, TRANSMIT, DISPLAY, STORE, RECORD,
    9  RETRIEVE, ANALYZE,  EVALUATE,  PROCESS,  CLASSIFY,  MANIPULATE,  MANAGE,
   10  ASSIMILATE,  CONTROL,  COMMUNICATE,  EXCHANGE, CONVERT, CONVERGE, INTER-
   11  FACE, SWITCH, OR DISSEMINATE DATA OF ANY KIND  OR  FORM.  Goods  may  be
   12  either new or used.
   13    S  4.  Paragraphs g and i of subdivision 2 of section 161 of the state
   14  finance law, as added by chapter 83 of the laws of 1995, are amended  to
   15  read as follows:
   16    g.  Consult  with and advise the commissioner on strategic INFORMATION
   17  technology investments that will facilitate  electronic  access  to  the
   18  terms  and  conditions  of existing procurement contracts, promote elec-
   19  tronic commerce including, but  not  limited  to,  payment  to  vendors,
   20  promote  and  enhance  the efficiency of the procurement of products and
   21  services by or for state agencies and produce  useful  information  that
   22  supports state procurement operations, management, analysis and decision
   23  making including, but not limited to, data concerning the status and use
   24  of  procurement contracts and the number and type of contracts and award
   25  recipients;
   26    i. Establish and, from time to time, amend guidelines for the procure-
   27  ment of services and  INFORMATION  technology  in  accordance  with  the
   28  provisions  of  this  article. Such guidelines shall ensure the wise and
   29  prudent use of public money in the best interest of the taxpayers of the
   30  state; guard against favoritism, improvidence, extravagance,  fraud  and
   31  corruption;  and  ensure that service contracts are awarded on the basis
   32  of best value, including, but not limited to,  the  following  criteria:
   33  quality, cost, and efficiency;
   34    S  5. Paragraph k of subdivision 1 and subdivisions 6 and 7 of section
   35  163 of the state finance law, paragraph k of subdivision 1 as  added  by
   36  section 36 of part L of chapter 55 of the laws of 2012, subdivision 6 as
   37  amended  by  section  1  of part P of chapter 55 of the laws of 2013 and
   38  subdivision 7 as amended by section 10 of part L of chapter  55  of  the
   39  laws of 2012, are amended to read as follows:
   40    k.  "Authorized  user"  or  "non-state agency purchaser" means (i) any
   41  officer, body or agency of the state or of a political subdivision or  a
   42  district therein, or fire company or volunteer ambulance service as such
   43  are defined in section one hundred of the general municipal law, to make
   44  purchases  of  commodities,  services and INFORMATION technology through
   45  the office of general services' centralized contracts, pursuant  to  the
   46  provisions  of  section  one  hundred four of the general municipal law;
   47  (ii) any county extension service association as authorized under subdi-
   48  vision eight of section two hundred twenty-four of the county law; (iii)
   49  any association or other entity as specified in and in  accordance  with
   50  section  one hundred nine-a of the general municipal law; (iv) any asso-
   51  ciation, consortium or group of privately owned or municipal, federal or
   52  state owned or operated hospitals, medical schools, other health related
   53  facilities or voluntary ambulance services, which have  entered  into  a
   54  contract  and made mutual arrangements for the joint purchase of commod-
   55  ities, services and INFORMATION technology pursuant to  section  twenty-
   56  eight  hundred three-a of the public health law; (v) any institution for
       A. 7513--A                          5
    1  the instruction of the deaf or of the blind listed in section  forty-two
    2  hundred  one  of the education law; (vi) any qualified non-profit-making
    3  agency for the blind approved by the commissioner of the office of chil-
    4  dren  and  family  services  or  the  office of temporary and disability
    5  assistance; (vii) any qualified charitable non-profit-making agency  for
    6  the  severely disabled approved by the commissioner of education; (viii)
    7  any hospital or residential health care facility as defined  in  section
    8  twenty-eight  hundred  one  of  the  public health law; (ix) any private
    9  not-for-profit mental hygiene facility as defined in section 1.03 of the
   10  mental hygiene law; (x) any public authority or  public  benefit  corpo-
   11  ration  of  the  state, including the port authority of New York and New
   12  Jersey and the interstate  environmental  commission;  (xi)  any  public
   13  library,   association  library,  library  system,  cooperative  library
   14  system, the New York Library Association, and the New York State Associ-
   15  ation of Library Boards or any other  library  except  those  which  are
   16  operated  by  for profit entities; (xii) any other association or entity
   17  as specified in state law, to make purchases  of  commodities,  services
   18  and  INFORMATION  technology  through  the  office  of general services'
   19  centralized contracts. Such qualified non-profit-making agencies for the
   20  blind and severely disabled may make  purchases  from  the  correctional
   21  industries program of the department of corrections and community super-
   22  vision subject to rules pursuant to the correction law.
   23    6. Discretionary buying thresholds. Pursuant to guidelines established
   24  by the state procurement council: the commissioner may purchase services
   25  and  commodities in an amount not exceeding eighty-five thousand dollars
   26  without a  formal  competitive  process;  state  agencies  may  purchase
   27  services  and  commodities  in  an  amount  not exceeding fifty thousand
   28  dollars without a formal competitive process;  and  state  agencies  may
   29  purchase  commodities  or services from small business concerns or those
   30  certified pursuant to article fifteen-A of the executive law, or commod-
   31  ities or INFORMATION technology that are recycled or remanufactured,  or
   32  commodities  that  are  food,  including  milk and milk products, grown,
   33  produced or harvested in New York state in an amount not  exceeding  two
   34  hundred thousand dollars without a formal competitive process.
   35    7. Method of procurement. Consistent with the requirements of subdivi-
   36  sions  three and four of this section, state agencies shall select among
   37  permissible methods of procurement including, but  not  limited  to,  an
   38  invitation for bid, request for proposals or other means of solicitation
   39  pursuant  to  guidelines  issued by the state procurement council. State
   40  agencies may accept bids  electronically  including  submission  of  the
   41  statement of non-collusion required by section one hundred thirty-nine-d
   42  of  this  chapter  and,  starting  April first, two thousand twelve, and
   43  ending March thirty-first, two thousand  fifteen,  may,  for  commodity,
   44  service   and   INFORMATION   technology  contracts  require  electronic
   45  submission as the sole method for the submission of bids for the  solic-
   46  itation.  State  agencies  shall undertake no more than eighty-five such
   47  electronic bid solicitations, none of which shall be  reverse  auctions,
   48  prior  to April first, two thousand fifteen. In addition, state agencies
   49  may conduct up to twenty  reverse  auctions  through  electronic  means,
   50  prior to April first, two thousand fifteen. Prior to requiring the elec-
   51  tronic  submission of bids, the agency shall make a determination, which
   52  shall  be  documented  in  the  procurement  record,   that   electronic
   53  submission  affords  a fair and equal opportunity for offerers to submit
   54  responsive offers. Within thirty days of the completion of  the  eighty-
   55  fifth  electronic  bid  solicitation,  or  by  April first, two thousand
   56  fifteen, whichever is earlier, the commissioner shall prepare  a  report
       A. 7513--A                          6
    1  assessing  the  use  of  electronic submissions and make recommendations
    2  regarding future use of this procurement  method.  In  addition,  within
    3  thirty  days  of the completion of the twentieth reverse auction through
    4  electronic  means, or by April first, two thousand fifteen, whichever is
    5  earlier, the commissioner shall prepare a report assessing  the  use  of
    6  reverse  auctions  through  electronic  means  and  make recommendations
    7  regarding future use of this procurement method. Such reports  shall  be
    8  published on the website of the office of general services. Except where
    9  otherwise  provided by law, procurements shall be competitive, and state
   10  agencies shall conduct formal competitive procurements  to  the  maximum
   11  extent  practicable.  State agencies shall document the determination of
   12  the method of procurement and the basis  of  award  in  the  procurement
   13  record.  Where  the  basis  for award is the best value offer, the state
   14  agency shall document, in the procurement record and in advance  of  the
   15  initial receipt of offers, the determination of the evaluation criteria,
   16  which  whenever  possible,  shall be quantifiable, and the process to be
   17  used in the determination of best value and  the  manner  in  which  the
   18  evaluation process and selection shall be conducted.
   19    S  6.  Paragraph  (a)  of  subdivision  2  of section 112 of the state
   20  finance law, as amended by section 18 of part L of  chapter  55  of  the
   21  laws of 2012, is amended to read as follows:
   22    (a)  Before  any contract made for or by any state agency, department,
   23  board, officer, commission, or institution, except the office of general
   24  services, shall be executed or become effective, whenever such  contract
   25  exceeds  fifty  thousand  dollars in amount and before any contract made
   26  for or by the office of general services shall  be  executed  or  become
   27  effective,  whenever  such contract exceeds eighty-five thousand dollars
   28  in amount, it shall first be approved by the comptroller  and  filed  in
   29  his  or  her  office,  with  the exception of contracts established as a
   30  centralized  contract  through  the  office  of  general  services  [and
   31  purchase  orders  or  other  procurement  transactions issued under such
   32  centralized contracts] THAT WERE NOT  AWARDED  PURSUANT  TO  SUBDIVISION
   33  SIXTEEN  OF  SECTION ONE HUNDRED SIXTY-THREE OF THIS CHAPTER.  The comp-
   34  troller shall  make  a  final  written  determination  with  respect  to
   35  approval  of  such contract within ninety days of the submission of such
   36  contract to his or her office unless the comptroller  shall  notify,  in
   37  writing,  the  state  agency, department, board, officer, commission, or
   38  institution, prior to the expiration of the ninety day period,  and  for
   39  good  cause, of the need for an extension of not more than fifteen days,
   40  or a reasonable period of time agreed to by such state  agency,  depart-
   41  ment,  board, officer, commission, or institution and provided, further,
   42  that such written determination or extension shall be made part  of  the
   43  procurement record pursuant to paragraph f of subdivision one of section
   44  one hundred sixty-three of this chapter.
   45    S  7.  Section 163 of the state finance law is amended by adding a new
   46  subdivision 16 to read as follows:
   47    16. ALTERNATIVE PROCUREMENT METHODS FOR THE  ACQUISITION  OF  NON-CON-
   48  STRUCTION  RELATED  COMMODITIES AND SERVICES, OR INFORMATION TECHNOLOGY.
   49  A. WHEN THE COMMISSIONER OR A STATE AGENCY DETERMINES THAT IT IS IN  THE
   50  BEST  INTEREST  OF THE STATE TO DEVELOP A PROCUREMENT METHOD NOT AUTHOR-
   51  IZED BY  THIS  SECTION  FOR  NON-CONSTRUCTION  RELATED  COMMODITIES  AND
   52  SERVICES, OR INFORMATION TECHNOLOGY, THE COMMISSIONER OR STATE AGENCY IS
   53  HEREBY AUTHORIZED TO DEVELOP AND USE SUCH METHOD FOR A SPECIFIC CONTRACT
   54  AWARD.  SUCH  DETERMINATION  SHALL  BE MADE IN WRITING AND SHALL INCLUDE
   55  DOCUMENTATION FOR THE PROCUREMENT RECORD THAT SUCH ALTERNATIVE  PROCURE-
   56  MENT METHOD: (I) WOULD SERVE THE INTEREST OF THE STATE BETTER THAN OTHER
       A. 7513--A                          7
    1  METHODS CURRENTLY AVAILABLE UNDER THIS SECTION; (II) CAN BE APPLIED ON A
    2  COMPETITIVE, FAIR AND EQUITABLE BASIS; AND (III) CONTAINS AN APPROPRIATE
    3  EVALUATION  METHODOLOGY  THAT CONSIDERS BOTH COST AND QUALITATIVE EVALU-
    4  ATION  FACTORS.  SUCH ALTERNATIVE PROCUREMENT METHOD SHALL BE SUBJECT TO
    5  ALL OTHER APPLICABLE PROVISIONS OF THIS SECTION. THE COMMISSIONER  OR  A
    6  STATE  AGENCY  MAY NOT UNDERTAKE AN ALTERNATIVE PROCUREMENT METHOD UNTIL
    7  THE COMPTROLLER HAS DETERMINED THAT THE PROPOSED ALTERNATIVE PROCUREMENT
    8  METHOD IS IN THE BEST INTEREST OF THE STATE; CAN BE APPLIED ON A COMPET-
    9  ITIVE, FAIR AND EQUITABLE BASIS; AND UTILIZES AN APPROPRIATE  EVALUATION
   10  METHODOLOGY THAT CONSIDERS BOTH COST AND QUALITATIVE EVALUATION FACTORS.
   11    B.  WHEN  USING  AN  ALTERNATIVE PROCUREMENT METHOD AUTHORIZED BY THIS
   12  SUBDIVISION, THE COMMISSIONER OR AGENCY SHALL INCLUDE IN  ITS  SOLICITA-
   13  TION  A DETAILED DESCRIPTION OF THE PROPOSED METHOD OF AWARD. IN ADVANCE
   14  OF THE INITIAL RECEIPT OF OFFERS OR  BIDS,  THE  COMMISSIONER  OR  STATE
   15  AGENCY SHALL DETERMINE AND DOCUMENT IN THE PROCUREMENT RECORD THE EVALU-
   16  ATION  CRITERIA  AND  PROCESS  TO  BE  USED  IN THE DETERMINATION OF THE
   17  SPECIFIC CONTRACT AWARD AND THE PROCESS  BY  WHICH  THE  EVALUATION  AND
   18  SELECTION  SHALL BE CONDUCTED. IN ADDITION TO THE REQUIREMENTS SET FORTH
   19  IN PARAGRAPH G OF SUBDIVISION NINE  OF  THIS  SECTION,  THE  PROCUREMENT
   20  RECORD  SHALL  DOCUMENT  THE  BASIS UPON WHICH THE AGENCY HAS DETERMINED
   21  THAT POTENTIAL VENDORS WILL BE ABLE TO RESPOND WITH VIABLE BIDS TO  SUCH
   22  ALTERNATIVE PROCUREMENT.
   23    C. NOTWITHSTANDING THE PROVISIONS OF SUBDIVISION FIVE OF SECTION THREE
   24  HUNDRED  FIFTY-FIVE  OF  THE  EDUCATION  LAW  TO THE CONTRARY OR SECTION
   25  SIXTY-TWO HUNDRED EIGHTEEN OF THE EDUCATION  LAW,  BEFORE  ANY  CONTRACT
   26  AWARDED  UNDER  THIS  SECTION  WHICH  EXCEEDS  FIFTY THOUSAND DOLLARS IN
   27  AMOUNT BECOMES EFFECTIVE IT MUST BE  APPROVED  BY  THE  COMPTROLLER  AND
   28  FILED IN HIS OR HER OFFICE.
   29    D.  FOR EACH PROCUREMENT AWARDED PURSUANT TO THIS SECTION, THE COMMIS-
   30  SIONER OR STATE AGENCY SHALL SUBMIT TO THE GOVERNOR, THE COMPTROLLER AND
   31  THE HEADS OF THE FISCAL COMMITTEES OF EACH HOUSE OF THE  STATE  LEGISLA-
   32  TURE  NO  LATER  THAN THE MID-POINT OF THE INITIAL TERM OF THE RESULTANT
   33  CONTRACT A REPORT ASSESSING THE VALIDITY OF THE PROCUREMENT  METHOD  AND
   34  COMPARING  ITS  RESULTS  TO  PROCUREMENT  METHODS  FOR  COMMODITIES  AND
   35  SERVICES OR INFORMATION TECHNOLOGY.
   36    S 8. Section 163 of the state finance law is amended by adding  a  new
   37  subdivision 17 to read as follows:
   38    17. COMPETITIVE NEGOTIATION. A. WHERE THE BASIS OF AWARD IS BEST VALUE
   39  AND  AFTER  COMPLETING AN INITIAL EVALUATION AND SCORING, A STATE AGENCY
   40  MAY CHOOSE TO EITHER MAKE AN AWARD TO THE BEST VALUE OFFERER PURSUANT TO
   41  SUBDIVISION FOUR OF THIS SECTION OR UNDERTAKE  COMPETITIVE  NEGOTIATIONS
   42  WITH  ALL  OFFERERS  OF  PROPOSALS  SUSCEPTIBLE  OF  BEING  SELECTED FOR
   43  CONTRACT AWARD, SO LONG AS THE AGENCY RESERVES THE RIGHT TO CONDUCT SUCH
   44  COMPETITIVE NEGOTIATIONS IN THE SOLICITATION.  THE NEGOTIATIONS SHALL BE
   45  CONDUCTED AS PROVIDED IN PARAGRAPH D OF THIS SUBDIVISION.
   46    B. COMPETITIVE NEGOTIATION MAY ONLY BE USED WHERE:
   47    (I) AT LEAST TWO OFFERERS ARE DEEMED SUSCEPTIBLE OF BEING SELECTED FOR
   48  CONTRACT AWARD;
   49    (II) IN THE EVENT THAT THE SOLICITATION INCLUDES OPTIONAL  COMPONENTS,
   50  THE  SOLICITATION  SHALL  REQUIRE ALL OFFERERS TO PROVIDE A PROPOSAL FOR
   51  ALL OPTIONS OR OTHERWISE BE DEEMED NONRESPONSIVE; AND
   52    (III) THE AGENCY HAS DETERMINED THAT USE  OF  COMPETITIVE  NEGOTIATION
   53  WILL  MAXIMIZE  THE  AGENCY'S ABILITY TO OBTAIN BEST VALUE, BASED ON THE
   54  AGENCY'S NEED AND THE SPECIFICATIONS SET FORTH IN THE SOLICITATION.
   55    C. THE AGENCY MUST DOCUMENT IN THE PROCUREMENT RECORD AND  IN  ADVANCE
   56  OF THE INITIAL RECEIPT OF OFFERS:
       A. 7513--A                          8
    1    (I)  THE  METHODOLOGY,  WHICH  SHALL  BE  QUANTIFIABLE  AND BASED ON A
    2  COMPARISON OF THE PROPOSALS' PRICE AND TECHNICAL  MERIT,  THAT  WILL  BE
    3  EMPLOYED  TO  ARRIVE  AT  A  COMPETITIVE RANGE THAT WILL DETERMINE WHICH
    4  PROPOSALS ARE TO BE CONSIDERED SUSCEPTIBLE TO AWARD; AND
    5    (II)  A  FAIR AND IMPARTIAL NEGOTIATION PROCEDURE, FORMULATED WITH THE
    6  GOAL OF ENSURING SUSTAINED COMPETITION UNTIL AN AWARD  IS  RENDERED  AND
    7  OBTAINING THE BEST VALUE FOR THE STATE.
    8    D.  THE  AGENCY  SHALL  CONDUCT  WRITTEN OR ORAL NEGOTIATIONS WITH ALL
    9  RESPONSIBLE OFFERERS WHO SUBMIT PROPOSALS IN THE COMPETITIVE  RANGE.  IN
   10  THE COURSE OF SUCH NEGOTIATIONS, THE AGENCY SHALL:
   11    (I)  ADVISE  THE OFFERER OF WAYS IN WHICH ITS PROPOSAL MAY BE IMPROVED
   12  SO THAT THE OFFERER IS GIVEN AN OPPORTUNITY TO BETTER MEET THE  AGENCY'S
   13  NEEDS;
   14    (II) CLARIFY ANY UNCERTAINTIES, AMBIGUITIES OR NON-MATERIAL DEVIATIONS
   15  IN THE PROPOSAL;
   16    (III)  ADVISE  THE OFFERER OF ANY TECHNICAL COMPONENTS IN ITS PROPOSAL
   17  THAT MAY NOT BE NECESSARY  TO  SATISFY  THE  AGENCY'S  REQUIREMENTS  AND
   18  REQUEST MODIFICATIONS AS APPROPRIATE;
   19    (IV)  PROVIDE THE OFFERER A REASONABLE OPPORTUNITY TO SUBMIT ANY COST,
   20  TECHNICAL OR OTHER REVISIONS TO ITS PROPOSAL IN RESPONSE TO ISSUES IDEN-
   21  TIFIED DURING NEGOTIATIONS; AND
   22    (V) DOCUMENT ANY ORAL NEGOTIATIONS FOR THE PROCUREMENT RECORD.
   23    E. NEGOTIATIONS MAY BE TAILORED TO EACH OFFERER'S  PROPOSAL  PROVIDED,
   24  HOWEVER,  SUCH  NEGOTIATIONS SHALL BE CONDUCTED WITH EACH OFFERER WITHIN
   25  THE COMPETITIVE RANGE  WITHOUT  DISCLOSING  INFORMATION  CONCERNING  ANY
   26  OTHER  OFFERERS' PROPOSALS OR THE EVALUATION PROCESS. NEGOTIATIONS SHALL
   27  CULMINATE IN A TECHNICAL SOLUTION FROM EACH OFFERER REMAINING WITHIN THE
   28  COMPETITIVE RANGE THAT IS DEEMED ACCEPTABLE TO MEET THE AGENCY'S NEED AS
   29  SET FORTH IN THE  SOLICITATION.  AFTER  DISCUSSION  OF  THESE  TECHNICAL
   30  SOLUTIONS  IS COMPLETED, THE AGENCY SHALL SOLICIT A BEST AND FINAL PRICE
   31  PROPOSAL FROM ALL OFFERERS WITHIN THE COMPETITIVE RANGE.  THE  BEST  AND
   32  FINAL  PRICE SOLICITATION SHALL ENSURE THAT ALL OFFERERS ARE AFFORDED AN
   33  EQUAL OPPORTUNITY TO RESPOND WITHIN A SPECIFIED PERIOD OF TIME.
   34    F. WHERE AN  AGENCY  CHOOSES  TO  UNDERTAKE  COMPETITIVE  NEGOTIATIONS
   35  INSTEAD  OF  MAKING  A  BEST VALUE AWARD AFTER AN INITIAL EVALUATION AND
   36  SCORING, THE FINAL AWARD SHALL BE MADE TO THE LOWEST RESPONSIBLE OFFERER
   37  AFTER RECEIVING A BEST AND FINAL PRICE ON A REVISED ACCEPTABLE PROPOSAL.
   38    S 9. Subdivision 9 of section 163 of the state finance law is  amended
   39  by adding a new paragraph c-1 to read as follows:
   40    C-1.  WHERE A STATE AGENCY DETERMINES THAT NON-MATERIAL CHANGES TO THE
   41  SPECIFICATIONS AS SET FORTH IN THE SOLICITATION WOULD  BE  IN  THE  BEST
   42  INTEREST  OF THE STATE AND, WHEN PROVIDED FOR IN THE SOLICITATION, STATE
   43  AGENCIES MAY REQUEST BEST AND FINAL OFFERS, WHICH SHALL  BE  IN  WRITING
   44  AND  SOLICITED  IN  THE  SAME  MANNER FROM ALL OFFERERS DETERMINED TO BE
   45  SUSCEPTIBLE OF BEING SELECTED FOR CONTRACT AWARD,  WITH  THE  INTENT  OF
   46  ALLOWING  AN OFFERER TO REVISE ITS COST; PROVIDED, HOWEVER, THAT A STATE
   47  AGENCY MAY NOT MAKE A MODIFICATION TO THE SOLICITATION IF SUCH MODIFICA-
   48  TION WOULD PREJUDICE  ANY  BIDDER  OR  POTENTIAL  BIDDER  AND,  PROVIDED
   49  FURTHER, THAT NO BEST AND FINAL OFFER MAY BE ACCEPTED OR CONSIDERED BY A
   50  STATE  AGENCY  UNLESS SUCH BEST AND FINAL OFFER IS SUBMITTED IN RESPONSE
   51  TO A REQUEST BY THE STATE AGENCY.
   52    S 9-a. Paragraph c of subdivision  9  of  section  163  of  the  state
   53  finance  law,  as amended by chapter 137 of the laws of 2008, is amended
   54  to read as follows:
   55    c. Where provided in the  solicitation,  state  agencies  may  require
   56  clarification  from offerers for purposes of assuring a full understand-
       A. 7513--A                          9
    1  ing of responsiveness to the solicitation requirements.  Where  provided
    2  for  in  the  solicitation, revisions may be permitted from all offerers
    3  determined to be susceptible of being selected for contract award, prior
    4  to  award.  Offerers  shall  be  accorded  fair and equal treatment with
    5  respect to their opportunity for discussion and revision of  offers.  [A
    6  state agency shall, upon request, provide a debriefing to any unsuccess-
    7  ful  offerer  that  responded to a request for proposal or an invitation
    8  for bids, regarding the reasons that the proposal or  bid  submitted  by
    9  the  unsuccessful offerer was not selected for an award. The opportunity
   10  for an unsuccessful offerer to seek a debriefing shall be stated in  the
   11  solicitation,  which  shall  provide  a reasonable time for requesting a
   12  debriefing.]
   13    S 9-b. Subdivision 9 of section  163  of  the  state  finance  law  is
   14  amended by adding a new paragraph h to read as follows:
   15    H. (I) WITHIN FIFTEEN DAYS OF THE SELECTION OF A SUCCESSFUL OFFEROR BY
   16  A STATE AGENCY AND PRIOR TO THE SUBMISSION FOR APPROVAL OF A CONTRACT TO
   17  THE  OFFICE  OF THE STATE COMPTROLLER IF THAT CONTRACT IS SUBJECT TO THE
   18  APPROVAL OF THE COMPTROLLER, ALL UNSUCCESSFUL OFFERORS SHALL BE  ADVISED
   19  IN  WRITING  OF  THE  COMPLETION OF THE SELECTION PROCESS AND THAT THEIR
   20  OFFER WAS NOT SELECTED FOR THIS AWARD. THIS NOTICE  SHALL  DISCLOSE  THE
   21  IDENTITY OF THE SUCCESSFUL OFFEROR.
   22    (II)  FOR  ANY  CONTRACT  ESTABLISHED AS A CENTRALIZED CONTRACT BY THE
   23  OFFICE OF GENERAL SERVICES, WITHIN FIFTEEN  DAYS  OF  SELECTION  OF  THE
   24  SUCCESSFUL  OFFEROR  BY THE OFFICE OF GENERAL SERVICES, ALL UNSUCCESSFUL
   25  OFFERORS SHALL BE ADVISED OF THE COMPLETION OF THE SELECTION PROCESS AND
   26  THAT THEIR OFFER WAS NOT SELECTED FOR AWARD. THIS NOTICE SHALL  DISCLOSE
   27  THE IDENTITY OF THE SUCCESSFUL OFFEROR.
   28    (III)  THE OPPORTUNITY FOR AN UNSUCCESSFUL OFFEROR THAT RESPONDED TO A
   29  REQUEST FOR PROPOSALS OR AN INVITATION FOR BIDS  TO  SEEK  A  DEBRIEFING
   30  SHALL  BE  STATED  IN  THE REQUEST FOR PROPOSALS OR INVITATION FOR BIDS,
   31  WHICH SHALL PROVIDE A REASONABLE TIME FOR REQUESTING A DEBRIEFING.
   32    (IV) THE STATE AGENCY, UPON THE  TIMELY  REQUEST  OF  AN  UNSUCCESSFUL
   33  OFFEROR,  SHALL  PROVIDE  A REASONABLE OPPORTUNITY FOR A DISCUSSION WITH
   34  AGENCY PERSONNEL WHO WERE INVOLVED IN AND ARE  KNOWLEDGEABLE  ABOUT  THE
   35  PROCUREMENT EVALUATION PROCESS. SUCH DEBRIEFING, SHALL INCLUDE, BUT NEED
   36  NOT BE LIMITED TO: (A) THE REASONS THAT THE PROPOSAL OR BID SUBMITTED BY
   37  THE UNSUCCESSFUL OFFEROR WAS NOT SELECTED FOR AWARD; (B) THE QUALITATIVE
   38  AND  QUANTITATIVE ANALYSIS EMPLOYED BY THE AGENCY IN ASSESSING THE RELA-
   39  TIVE MERITS OF THE OFFERS; (C) THE APPLICATION OF EACH OF THE  SELECTION
   40  CRITERIA  TO  THE  UNSUCCESSFUL  OFFEROR'S  PROPOSAL OR BID; AND (D) THE
   41  REASONS FOR THE SELECTION OF THE WINNING PROPOSAL OR BID. SUCH PERSONNEL
   42  SHALL ALSO PROVIDE, TO THE EXTENT PRACTICABLE, ADVICE  AND  GUIDANCE  TO
   43  THE  UNSUCCESSFUL  OFFEROR  CONCERNING METHODS OF IMPROVING PROPOSALS OR
   44  BIDS BY SUCH OFFEROR.
   45    S 10. Subdivision 7 of section  162  of  the  state  finance  law,  as
   46  amended  by  chapter  426  of  the  laws  of 2002, is amended to read as
   47  follows:
   48    7. Partnering with preferred sources. The commissioner of  the  appro-
   49  priate appointing agency as identified in paragraph e of subdivision six
   50  of  this  section,  shall  conduct  one  or more pilot studies whereby a
   51  private vendor may be accorded preferred source status for  purposes  of
   52  this  section. The pilot studies shall seek to ascertain the benefits of
   53  partnerships  between  private  industry  and  those  entities  accorded
   54  preferred  source  status as specified in this section. Preferred source
   55  status under a partnering  arrangement  may  only  be  accorded  when  a
   56  proposal  to  a soliciting agency for commodities or services includes a
       A. 7513--A                         10
    1  binding agreement with one or more of the  entities  accorded  preferred
    2  source status under this section AND WHERE AT LEAST FIFTY PERCENT OF ALL
    3  LABOR INVOLVED IN DELIVERING SERVICES OR COMMODITIES TO THE STATE BY THE
    4  PRIVATE  VENDOR  IS  BEING  PROVIDED  DIRECTLY BY THE INDIVIDUALS OF THE
    5  CLASS OF PREFERRED SOURCE INCLUDING, BUT NOT LIMITED  TO,  INMATES,  THE
    6  DISABLED,  VETERANS  AND  THE  BLIND.  PRIVATE  VENDOR OPPORTUNITIES FOR
    7  PREFERRED SOURCES SHALL BE COMPETITIVELY  AWARDED  AND  THE  PROCUREMENT
    8  SUMMARY,  VENDOR  RESPONSIBILITY SUMMARY AND CONTRACT AGREEMENT SHALL BE
    9  BROUGHT BEFORE THE PROCUREMENT COUNCIL FOR REVIEW. THE STATE  SHALL  NOT
   10  ACCESS  THE  SERVICES  OF  SUCH  PRIVATE VENDOR UNLESS A MAJORITY OF THE
   11  COUNCIL APPROVES. The binding agreement shall provide that:
   12    (i) The preferred source shall perform the majority of the work neces-
   13  sary to such offering, and
   14    (ii) The partnering proposal includes bona fide long  term  employment
   15  opportunities for persons who could otherwise be new clients of an enti-
   16  ty previously accorded preferred source status herein, and
   17    (iii) The partnering proposal offers the solicited services or commod-
   18  ities  at a price less than the price that otherwise would be charged by
   19  a preferred source.
   20    S 11. Paragraph b of subdivision 3 of section 162 of the state finance
   21  law, as amended by section 164 of subpart B of part C of chapter  62  of
   22  the laws of 2011, is amended to read as follows:
   23    b. After January first, nineteen hundred ninety-six, upon the applica-
   24  tion  of  the commissioner of corrections and community supervision, the
   25  commissioner of the office of children and family services,  the  office
   26  of  temporary  and  disability  assistance,  the  commissioner of mental
   27  health or the commissioner of education, or a non-profit-making  facili-
   28  tating  agency  designated  by one of the said commissioners pursuant to
   29  paragraph e of subdivision six of this section,  the  state  procurement
   30  council  may  recommend  that  the  commissioner: (i) add commodities or
   31  services to, or (ii) in order to insure that such list reflects  current
   32  production  and/or  availability  of commodities and services, delete at
   33  the request of a preferred source, commodities  or  services  from,  the
   34  list  established  by  paragraph  a of this subdivision. The council may
   35  make a non-binding recommendation to the relevant  preferred  source  to
   36  delete a commodity or service from such list. Additions may be made only
   37  for new services or commodities, or for services or commodities that are
   38  substantially  different  from  those  reflected  on  said list for that
   39  provider. The decision to recommend the addition of services or  commod-
   40  ities  shall be based upon a review of relevant factors as determined by
   41  the council including costs and benefits to be derived from  such  addi-
   42  tion  and  shall  include  an analysis by the office of general services
   43  conducted pursuant to subdivision six of this section; PROVIDED,  HOWEV-
   44  ER, THAT THE PROCUREMENT COUNCIL SHALL NOT RECOMMEND TO THE COMMISSIONER
   45  ANY  APPLICATION  THAT  DOES  NOT  INCLUDE AT LEAST FIFTY PERCENT OF ALL
   46  LABOR INVOLVED IN DELIVERING SERVICES OR COMMODITIES TO THE STATE  BEING
   47  PROVIDED  DIRECTLY  BY  THE INDIVIDUALS OF THE CLASS OF PREFERRED SOURCE
   48  INCLUDING, BUT NOT LIMITED TO, INMATES, THE DISABLED, VETERANS  AND  THE
   49  BLIND.  Unless the state procurement council shall make a recommendation
   50  to the commissioner on any such application within  one  hundred  twenty
   51  days  of  receipt thereof, such application shall be deemed recommended.
   52  In the event that the state procurement  council  shall  deny  any  such
   53  application,  the commissioner or non-profit-making agency which submit-
   54  ted such application may, within thirty days of such denial, appeal such
   55  denial to the commissioner of general  services  who  shall  review  all
   56  materials  submitted  to  the  state procurement council with respect to
       A. 7513--A                         11
    1  such application and who may request such further information or materi-
    2  al as is deemed necessary. Within sixty days of receipt of all  informa-
    3  tion  or  materials  deemed  necessary,  the commissioner shall render a
    4  written  final  decision  on the application which shall be binding upon
    5  the applicant and upon the state procurement council.
    6    S 12. Subdivisions 1 and 2 of section 137 of the  state  finance  law,
    7  subdivision  1 as separately amended by section 17 of part MM of chapter
    8  57 and chapter 619 of the laws of 2008 and subdivision 2 as  amended  by
    9  chapter 137 of the laws of 1985, are amended to read as follows:
   10    1. (A) In addition to other bond or bonds, if any, required by law for
   11  the  completion of a work specified in a contract for the prosecution of
   12  a public improvement for the state of New York a municipal  corporation,
   13  a  public benefit corporation or a commission appointed pursuant to law,
   14  or in the absence of any such requirement, the comptroller  may  or  the
   15  other  appropriate  official,  respectively,  shall nevertheless require
   16  prior to the approval of any such contract a  bond  guaranteeing  prompt
   17  payment  of  moneys  due to all persons furnishing labor or materials to
   18  the contractor or any subcontractors in  the  prosecution  of  the  work
   19  provided for in such contract. Whenever a municipal corporation issues a
   20  permit  subject  to  compliance  with  section two hundred twenty of the
   21  labor law, such permittee or its contractor or subcontractors furnishing
   22  workers shall post a payment bond subject to  this  section.  [Provided,
   23  however, that]
   24    (B) NOTWITHSTANDING THE PROVISIONS OF PARAGRAPH A OF THIS SUBDIVISION,
   25  all  performance  bonds  and payment bonds may, at the discretion of the
   26  head of the state agency, public benefit corporation or  commission,  or
   27  his  or  her  designee,  be  dispensed with for the completion of a work
   28  specified in a contract for the prosecution of a public improvement  for
   29  the  state  of New York for which bids are solicited where the aggregate
   30  amount of the contract is under  [one]  FIVE  hundred  thousand  dollars
   31  [and];  provided  [further],  that  in  a case where the contract is not
   32  subject to the multiple  contract  award  requirements  of  section  one
   33  hundred  thirty-five of this article, such requirements may be dispensed
   34  with where the head of the state agency, public benefit  corporation  or
   35  commission finds it to be in the public interest and where the aggregate
   36  amount of the contract awarded or to be awarded is less than two hundred
   37  thousand  dollars.  Provided further, that in a case where a performance
   38  or payment bond is dispensed with, twenty per  centum  may  be  retained
   39  from  each  progress  payment or estimate until the entire contract work
   40  has been completed and accepted, at which time the  head  of  the  state
   41  agency,  public  benefit  corporation  or  commission shall, pending the
   42  payment of the final estimate, pay not to exceed seventy-five per centum
   43  of the amount of the retained percentage.  THE PROVISIONS OF THIS  PARA-
   44  GRAPH  SHALL  NOT  APPLY TO ANY PERFORMANCE BONDS REQUIRED IN CONNECTION
   45  WITH A MAJOR INSTALLATION PURSUANT TO PARAGRAPH D OF SUBDIVISION TEN  OF
   46  SECTION  ONE  HUNDRED  SIXTY-THREE OF THIS CHAPTER.  FOR THE PURPOSES OF
   47  THIS PARAGRAPH "MAJOR INSTALLATION"  SHALL  HAVE  THE  SAME  MEANING  AS
   48  PROVIDED IN SECTION ONE HUNDRED SIXTY-THREE OF THIS CHAPTER.
   49    2. A copy of such payment bond shall be kept in the office of the head
   50  of  the  department or bureau having charge of the public improvement in
   51  connection with which the bond was given and a copy shall also  be  kept
   52  in  the  office of the comptroller [or other appropriate official]; such
   53  copies shall be open to public inspection.
   54    S 13. Subdivision 1 of section 163 of the state finance law is amended
   55  by adding a new paragraph l to read as follows:
       A. 7513--A                         12
    1    L.  "MAJOR  INSTALLATION"  MEANS  ANY   PROJECT   REQUIRING   BUILDING
    2  CONSTRUCTION  OR  SITE WORK OR AN INSTALLATION WHERE THE TOTAL CHARACTER
    3  OF THE WORK IS NOT CONSTRUCTION BUT INSTEAD THE  PURCHASE,  PURSUANT  TO
    4  THIS  SECTION,  AND INSTALLATION OF A LARGE PIECE OF EQUIPMENT WHERE THE
    5  VALUE OF SUCH PURCHASE IS ONE MILLION DOLLARS OR MORE.
    6    S  14.  Paragraph  d  of  subdivision  10  of section 163 of the state
    7  finance law, as added by chapter 83 of the laws of 1995, is  amended  to
    8  read as follows:
    9    d.  It  shall be in the discretion of the commissioner or state agency
   10  to require a bond or other guarantee of performance, and to approve  the
   11  amount,  form  and  sufficiency  thereof; PROVIDED, HOWEVER, THAT IN THE
   12  CASE OF A MAJOR INSTALLATION, SUCH  BOND  OR  GUARANTEE  OF  PERFORMANCE
   13  SHALL  BE  REQUIRED,  AND  THE  COMMISSIONER OR STATE AGENCY MAY, IN ITS
   14  DISCRETION, REQUIRE A BOND GUARANTEEING THE PROMPT PAYMENT OF MONEYS  AS
   15  SET FORTH IN PARAGRAPH A OF SUBDIVISION ONE OF SECTION ONE HUNDRED THIR-
   16  TY-SEVEN OF THIS CHAPTER.
   17    S  15.  Paragraph  e  of  subdivision  10  of section 163 of the state
   18  finance law, as amended by chapter 137 of the laws of 2008,  is  amended
   19  to read as follows:
   20    e. The commissioner may authorize purchases required by state agencies
   21  or other authorized purchasers by letting a contract pursuant to a writ-
   22  ten  agreement, or by approving the use of a contract let by any depart-
   23  ment, agency or instrumentality of the United States  government  and/or
   24  any department, agency, office, political subdivision or instrumentality
   25  of  any  state or states. A state agency purchaser shall document in the
   26  procurement record its rationale for the use of a contract  let  by  any
   27  department, agency or instrumentality of the United States government or
   28  any department, agency, office, political subdivision or instrumentality
   29  of any other state or states. Such rationale shall include, but need not
   30  be  limited to, a determination of need, a consideration of the procure-
   31  ment method by which the contract was awarded, an analysis  of  alterna-
   32  tive  procurement  sources  including  an  explanation why a competitive
   33  procurement or the use of a centralized contract let by the commissioner
   34  is not in the best interest of the  state,  and  the  reasonableness  of
   35  cost. THE AUTHORITY TO USE A CONTRACT LET BY ANOTHER GOVERNMENTAL ENTITY
   36  PURSUANT  TO  THIS  PARAGRAPH  IS INTENDED TO BENEFIT THE STATE BY USING
   37  CONTRACTS IN PLACE THAT PROVIDE FOR THE SAME SERVICE OR COMMODITY SOUGHT
   38  BY A STATE AGENCY AT A PRICE DETERMINED TO BE REASONABLE  BY  THE  STATE
   39  AGENCY.  SUCH  CONTRACTS  ARE NOT INTENDED TO BE USED PRIMARILY TO AVOID
   40  COMPETITIVE BIDDING. USE OF MULTIPLE AWARD CONTRACTS  PURSUANT  TO  THIS
   41  PARAGRAPH  SHALL  FOLLOW  THE SAME BASIS OF SELECTION AMONG THE MULTIPLE
   42  AWARDEES AS WAS PRESCRIBED  BY  THE  ORIGINAL  CONTRACTING  GOVERNMENTAL
   43  ENTITY.
   44    S  16.  Subdivision  15  of  section  163  of the state finance law is
   45  amended by adding a new paragraph d to read as follows:
   46    D. IN ADDITION TO OTHER REPORTS  REQUIRED  BY  THIS  SUBDIVISION,  THE
   47  COMMISSIONER  OF  GENERAL SERVICES SHALL PREPARE A REPORT ON THE SAVINGS
   48  ACHIEVED FROM  ALL  CONTRACTS  ESTABLISHED  AS  A  CENTRALIZED  CONTRACT
   49  THROUGH  THE  OFFICE  OF  GENERAL SERVICES PURSUANT TO THIS SECTION, THE
   50  IMPACT  OF  SUCH  CONTRACTS  ON  SMALL,  MINORITY  AND  WOMEN-OWNED  AND
   51  SERVICE-DISABLED  VETERAN-OWNED BUSINESS ENTERPRISES, AND THE EFFECTIVE-
   52  NESS OF SUCH CONTRACTS IN FULFILLING THE PURCHASING NEEDS OF ALL AUTHOR-
   53  IZED USERS OF SUCH CONTRACTS.  SUCH REPORT SHALL BE  SUBMITTED  BY  SUCH
   54  COMMISSIONER  TO  THE  GOVERNOR, THE STATE COMPTROLLER, AND THE HEADS OF
   55  THE FISCAL COMMITTEES OF EACH HOUSE OF THE STATE  LEGISLATURE  NO  LATER
       A. 7513--A                         13
    1  THAN JANUARY FIFTEENTH, TWO THOUSAND SIXTEEN, AND THEREAFTER ANNUALLY ON
    2  OR BEFORE SUCH DATE.
    3    S  17.  Subdivision  3  of  section  112  of the state finance law, as
    4  amended by chapter 319 of the laws  of  1992,  is  amended  to  read  as
    5  follows:
    6    3.  A  contract  or  other  instrument wherein the state or any of its
    7  officers, agencies, boards or commissions agrees to give a consideration
    8  other than the payment of money, when the value or reasonably  estimated
    9  value  of such consideration exceeds [ten] TWENTY-FIVE thousand dollars,
   10  shall not become a valid enforceable contract unless  such  contract  or
   11  other instrument shall first be approved by the comptroller and filed in
   12  his office. FOR PURPOSES OF THIS SUBDIVISION, WHERE CONSIDERATION CANNOT
   13  BE DETERMINED IN TERMS OF MONETARY VALUE, IT SHALL BE VALUED IN TERMS OF
   14  INTRINSIC VALUE.
   15    S  18.  Section  350  of  the education law is amended by adding a new
   16  subdivision 14 to read as follows:
   17    14.  "CONSTRUCTION   RELATED   SERVICES"   MEANS   STUDIES,   SURVEYS,
   18  CONSTRUCTION MANAGEMENT, CONSTRUCTION INSPECTION, EXCAVATION AND SIMILAR
   19  EFFORTS ASSOCIATED WITH CONSTRUCTION OR THE ACQUISITION OF PUBLIC WORKS.
   20    S  19.  This  act  shall  take  effect immediately; provided, however,
   21  section two of this act shall take effect on the one  hundred  eightieth
   22  day  after  it shall have become a law; provided, further, however, that
   23  the provisions of  sections  one,  five,  seven,  eight,  nine,  nine-a,
   24  nine-b,  thirteen, fourteen, fifteen and sixteen of this act shall apply
   25  to any procurement initiated on or after such  date;  provided,  further
   26  however,  that  the  amendments  to section 163 of the state finance law
   27  made by sections one, five, seven, eight, nine,  nine-a,  nine-b,  thir-
   28  teen,  fourteen,  fifteen  and  sixteen of this act shall not affect the
   29  repeal of such section as provided in subdivision 5 of  section  362  of
   30  chapter 83 of the laws of 1995, as amended, and shall be deemed repealed
   31  therewith.