Presenters Contact Information

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(No Transcript)
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Presenters Contact Information
Lisa K. Fox Legal Services New York State
Office of General Services legalservicesweb_at_ogs.s
tate.ny.us [phone]
OGS Website www.ogs.state.ny.us
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Overview

• The Procurement Lobbying Law obligates
  Governmental Entities and Offerers to undertake
  specific actions as part of the procurement
  process
• Sets forth specific requirements regarding
  communications during the procurement process
• Establishes specific contractual requirements

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How Can this Law Impact Your Business?

• Imposes new consequences if Offerers have
  impermissible communications
• Non-responsibility determination
• No contract award
• Debarment for four year period
• Prohibited from submitting proposals
• Prohibited from receiving contract
• awards

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What is the Procurement Lobbying Law?

• Two separate sets of provisions
• Legislative Law
• State Finance Law 139-j and 139-k
• Requirements are different
• Requirements apply at different times to
• different communications
• Need to determine if both laws apply to your
• business

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New Statute May Require Change to Business
Practices

• Business community is only allowed to make
• permissible Contacts
• Two kinds of permissible Contacts
• 1st Designated Contact person or persons
• identified by Governmental Entity to receive
  
• Contacts on a transaction
• 2nd Permissible Subject Matter Categories
• Series of common stages in a
• procurement

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Who is a Designated Contact?

• A person or persons identified by a Governmental
  Entity to receive Contacts on a transaction
• Generally identified in a writing provided to the
  business community
• Can receive all communications and Contacts on a
  procurement

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Permissible Subject Matter Categories

• 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

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Permissible Subject Matter Categories

• 4 - complaints by an Offerer that the
  Designated Contact has not been responsive
  filed in writing to Counsels Office
• 5 - negotiation of a Procurement Contact after
  tentative award
• 6 - review of a procurement contract award
  (debriefings)

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Permissible Subject Matter Categories

• 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 comptrollers office during the process
  of contract approval

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Net Result

• Business can always Contact the Designated
  Contact
• Contacts to Non-Procuring Governmental Entity
  are limited to SFL 139-j(3)(a)(1-7) (PSMC)

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• If Contact made to someone else, it may be
• violation of statute and could result in
  debarment
• (impermissible Contact)
• Contacts to Non-Procuring Governmental
  Entity
• are limited to SFL 139-j(3)(a)(1-7)
• Protests, appeals or complaints to OSC must
  
• be written
• A contact to a non-procuring governmental
  entity could result in debarment

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Contracts Subject to Requirements

• Applies to contracts over 15,000 annualized
• value with more than 400 different
• governmental entities
• Applies to construction and professional
  services contracts
• Applies to sole and single source contracts
• Limited transactions are exempt from these
• new requirements, such as grants and
• intergovernmental agreements

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New State Finance Law Requirements Apply During
the 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
• Applies to a specific transaction

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Example of State Agency Competitive Procurement
Restricted Period (limits who can receive
Contacts)
Definition of business need
Approval of contract by OSC
Ad in Contract Reporter
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New Requirements Apply to Contacts

• Not all communications are Contacts!
• Communications that are intended to
• influence the governmental procurement
• (Contacts)
• However, communications with Legislature
• are not governed by the State Finance Law
  
• (unless a legislative procurement)

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What is a Contact?

• 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
• Treatment of a communication may be different
• under Legislative Law

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Standardized Information Collection and Contract
Provisions

• Offerer must provide written affirmation
• on understanding of and agreement to
• entitys policy on permissible Contacts
• Affirmation is element examined to
• determine if an impermissible Contact
• was knowing and willful
• Offerer must certify that information
• provided under State Finance Law 139-k
• is complete, true and accurate

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• 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

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For the Business Community

• Understand the Government Entitys policy on
  permissible Contacts and consider its impact on
  how conduct business
• Very significant consequences of impermissible
  Contacts non-responsibility finding or
  debarment
• OGS is obligated to maintain a listing of
• these determinations on the Internet

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For the Business Community

• Determine if there is a Restricted Period - Ask
  the right questions!
• Determine who is the Designated Contact for that
  procurement
• Follow the processes in the solicitation
• Direct communications and Contacts correctly
• Comply with requests for information

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• Understand the Governmental Entitys policy on
  permissible Contacts before execute the
  affirmation
• Affirmation is a legal document that will be
  examined if there is an allegation of a possibly
  impermissible Contact
• Provide training to staff especially on the
  Restricted Period and directing communications to
  the Designated Contacts

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Where to Get More Information

• Advisory Council on Procurement Lobbying
• has prepared guidance, model forms and
• language and other materials that 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.

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Questions and Answers
?
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Presenters Contact Information
Lisa K. Fox Legal Services New York State
Office of General Services legalservicesweb_at_ogs.s
tate.ny.us [phone]
OGS Website www.ogs.state.ny.us