Chapter 1 of the Laws of 2005, as amended,establishes significant changes to the development of procurement contracts with governmental entities.
In 2003, Governor Pataki issued Executive Order Number 127 Providing for Additional State Procurement Disclosure (“EO 127”), to increase disclosure requirements for persons and organizations contacting State government about procurement contracts and real estate transactions. It requires state agencies and certain public authorities to collect and record information from contractors seeking a procurement contract, and those who advocate on behalf of the contractors to influence procurement contracts. The goal of EO 127 is to enhance public confidence in the State’s procurement process by making available to the public information pertaining to the lobbying efforts of those seeking state contracts from state agencies and certain public authorities.
Chapter 1 of the Laws of 2005 expands upon EO 127 and the former lobbying statute. Among other things, the new law:
· makes the lobbying law applicable to attempts to influence procurement contracts once the procurement process has been commenced by a state agency, unified court system, state legislature, public authority, certain industrial development agencies and local benefit corporations;
· requires the above mentioned governmental entities to record all contacts made by lobbyists and contractors about a governmental procurement so that the public knows who is contacting governmental entities about procurements;
· requires governmental entities to designate persons who generally may be the only staff contacted relative to the governmental procurement by that entity in a restricted period;
· authorizes the New York State Commission on Public Integrity (f/k/a the Temporary State Commission on Lobbying) to impose fines and penalties against persons/organizations engaging in impermissible contacts about a governmental procurement and provides for the debarment of repeat violators;
· directs the Office of General Services to disclose and maintain a list of non-responsible bidders pursuant to this new law and those who have been debarred and publish such list on its website;
· requires the timely disclosure of accurate and complete information from offerers with respect to determinations of non-responsibility and debarment;
· expands the definition of lobbying to include attempts to influence gubernatorial or local Executive Orders, Tribal–State Agreements, and procurement contracts;
· modifies the governance of the the Temporary State Commission on Lobbying (n/k/a the New York State Commission on Public Integrity;)
· provides that opinions of the Commission shall be binding only on the person to whom such opinion is rendered;
· increases the monetary threshold which triggers a lobbyists obligations under the Lobbying Act from $2,000 to $5,000; and
· establishes the Advisory Council on Procurement Lobbying.
Generally speaking, two related aspects of procurements were amended: (i) activities by the business and lobbying community seeking procurement contracts (through amendments to the Legislative Law) and (ii) activities involving governmental agencies establishing procurement contracts (through amendments to the State Finance Law).
Additionally, a new section 1-t was added to the Legislative Law establishing an Advisory Council on Procurement Lobbying (Advisory Council). This Advisory Council is authorized to establish the following model guidelines regarding the restrictions on contacts during the procurement process for use by governmental entities (see Legislative Law §1-t (e) and State Finance Law §139-j). In an effort to facilitate compliance by governmental entities, the Advisory Council has prepared model forms and language that can be used to meet the obligations imposed by State Finance Law §139-k, Disclosure of Contacts and Responsibility of Offerers. Sections 139-j and 139-k are collectively referred to as “new State Finance Law.”
The new State Finance Law sections establish newly defined terms that are critical to the understanding of the requirements. For the reader’s convenience, these defined terms are identified through the use of initial capital letters. It strongly recommended that the reader develop a working understanding of these defined terms.
It should be noted that while this Advisory Council is charged with the responsibility of providing advice to the New York State Commission on Public Integrity (f/k/a the Temporary State Commission on Lobbying) (Commission) regarding procurement lobbying, the Commission retains full responsibility for the interpretation, administration and enforcement of the Lobbying Act established by Article 1-A of the Legislative Law (see Legislative Law §1-t (c) and §1-d). Accordingly, questions regarding the registration and operation of the Lobbying Act should be directed to the Commission .