Noreen J' VanDoren

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(No Transcript)
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Presenters Contact Information
Noreen J. VanDoren Assistant Counsel Office of
General Services n.vandoren_at_ogs.state.ny.us (518
) 474-5607 OGS Website
www.ogs.state.ny.us
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• The State Finance Law impacts all procurements of
  goods and services
• HOW???
• Lets find out

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• State Finance Law Article 11
• (Procurement Stewardship Act)
• Governs the process for State agency
• acquisition of
• Commodities
• Services
• Technology

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Executive Law
State Finance Law
Case Law
UniformCommercial Code
CONTRACT
FederalLaws (e.g. Intellectual Property, Telecom)
Procurement Council Guidelines
Regulations
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Procurement Stewardship Act

• Underlying Principles and Legislative Findings
• Responsibility of OGS and State Agencies in
  cooperation with OSC and DOB to
• Provide for the wise and prudent use of public
  money in the best interests of the taxpayers of
  the state
• Guard against favoritism, improvidence,
  extravagance, fraud corruption and
• Facilitate the efficient and timely
  acquisition of commodities and services of the
  highest quality at the lowest practicable cost
  within available resources.

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Procurement Stewardship Act

• State Agencies
• Provide the primary line of defense for
• protecting the integrity of the states
• procurement process.
• Responsible for ensuring decisions are
• made with the highest standards of
• professional practice.

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Procurement Stewardship Act

• Provide a level playing field among
• competitive bidders to enhance
• competition.
• Create a procurement record
• Documentation of the method followed in
• the contracting process

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Government Procurement Competitive Bidding
Comprehensive Statutory Scheme Procurement
Stewardship Act Article 11 State
Purchasing Section 160 Definitions
161 State Procurement Council
162 Preferred Sources
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Government Procurement Competitive Bidding
Section 163 Purchasing services and
commodities (Sunset 6/30/08)
163-a Vendor preparation of
specifications for technology procurem
ents prohibitions 164 Exemptions
165 Purchasing restrictions
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Government Procurement Competitive Bidding
Section 166 Requirements for financed
equipment acquisition
167 Transfer and disposal of
personal property
168 The management of surplus
computer equipment
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• Procurement Council established through
• the passage of State Finance Law Section
• The Councils purpose is to review,
• examine and develop improvements to the
• states procurement process.

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Government Procurement Competitive Bidding

• Procurement Guidelines
• Detailed Guidance to State agencies on how to
• conduct procurements
• Summarizes the multiple approaches to buy
• Provide guidance for successful procurements
• Provides details on various purchasing methods
• Provides examples of good procurement
• practices
• (Currently under revision)

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Government Procurement Competitive Bidding

• Definitions - State Finance Law 160
• Commodity
• Service
• Technology
• Costs
• Price
• Provides a foundation of commonly understood
  concepts to apply within public procurement
  infrastructure

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Government Procurement Competitive Bidding

• Invitations for Bids (IFBs)
• Competitive Bidding Methodology
• Primarily used for procurement of
• commodities
• Basis for Contract Award
• - Meet specifications
• - Lowest price

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Government Procurement Competitive Bidding

• Request for Proposals (RFPs)
• Competitive Solicitation Methodology
• Primarily used for procurement of services and
  technology
• Basis for Award
• Pre-established evaluation criteria where cost
• is not necessarily the determining factor
• Best Value to the purchaser is the
• determinative criteria

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Government Procurement Competitive Bidding

• Best Value
• Documentation Other Requirements
• Best Practices Before You Solicit
• Document the intended basis for award (such
  as meeting mandatory requirements, best value
  or lowest price).
• Determine the technical and financial
  evaluation criteria and relative weight.
• Quantify criteria whenever possible, to
  optimize
• quality, cost and efficiency.
• Determine and document the evaluation and
  selection
• process.
• Advertise the procurement.

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Government Procurement Competitive Bidding
Main Distinction between IFB RFP Lowest
Price vs. Best Value State Finance Law, 163
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Government Procurement Competitive Bidding
Lowest Price The basis for awarding contracts
for commodities among responsive and responsible
offerors. SFL163(1)(i) Best Value The
basis for awarding contracts for services to
the offeror which optimizes quality, cost and
efficiency, among responsive and responsible
offerors. Such basis shall reflect, wherever
possible, objective and quantifiable analysis.
Services include technology. SFL163(1)(j)
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Government Procurement Competitive Bidding

• Types of Contracts State Finance Law 163
• Centralized Contract
• Agency Specific Contract
• Preferred Sources
• Emergency Contract
• Single Source Contract
• Sole Source Contract
• Multiple Awards
• Piggybacking
• (Adoption of Another Government Entity
  Contract)

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Government Procurement Competitive Bidding
Centralized Contracts Any contract for the
purchase of commodities or services, established
or approved by the Commissioner of General
Services as meeting the State's requirements
including, but not limited to, any contract let
by the federal government, other state or local
governments or purchasing consortia.
SFL160(1)
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Government Procurement Competitive Bidding

• Examples of Centralized Contracts
• Vehicles heavy equipment
• Pharmaceuticals medical equipment
• Electronic Value Transfer
• (credit cards)/procurement card
• Fuel Oil, Gasoline, Road Salt
• PCs
• Rubbish Removal
• Telecommunications Systems Services

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Government Procurement Competitive Bidding

• Agency Specific Contracts
• Specialized Requirements Needed to Meet Agency
  Mission
• Consultant Services
• Prescription pads for DOH
• Digital Fingerprinting Identification
• Specialized Software
• Entertainment Services

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Government Procurement Competitive Bidding
Preferred Sources To advance special social
and economic goals, selected providers shall have
preferred source status Procurement from these
providers shall be exempted from competitive
procurement provisions. State Finance Law 162
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Government Procurement Competitive Bidding

• Correctional Services Commodities
• Agencies for the Blind Commodities
  Services
• Special Employment for Mentally Ill
• Commodities and Services
• Agencies for the Severely Disabled
• Commodities and Services
• Disabled Veterans Commodities and Services
• Veterans Commodities and Services
• Qualified Apparel Manufacturer
• September 11th Registry

Preferred Status
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Government Procurement Competitive Bidding

• Public List of Commodities Services
• Approval by Procurement Council
• Price Approval
• Not greater than 15 above Prevailing
• Market Price
• Alternate Process for Procurements of
• Apparel Textiles

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Government Procurement Competitive Bidding
Emergency Contracts Procurements may be made to
meet emergencies arising from unforeseen causes
without using a formal competitive process. Such
procurements shall be made only under unusual
circumstances and shall include a determination
in the procurement record of the nature of the
emergency and that the procurement was conducted
in a fair and equitable manner. State Finance
Law 163(10(b))
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Government Procurement Competitive Bidding
Single Source A procurement in which although
two or more offerors can supply the required
commodities or services, the Commissioner or
State agency, upon written findings setting forth
the material and substantial reasons therefore,
may award the contract to one offeror over all
others. The Commissioner or State agency shall
document in the procurement record the
circumstances leading to the selection of the
vendor, including the alternatives considered,
the rationale for selecting the specific vendor
and the basis upon which it determined the cost
was reasonable. State Finance Law 163(1)(h)
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Government Procurement Competitive Bidding
Sole Source Sole Source means a procurement in
which only one offeror is capable of supplying
the required commodities or services. State
Finance Law 163(1)(g)
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Government Procurement Competitive Bidding
Multiple Awards The Commissioner or State agency
may elect to award a contract to one or more
responsive and responsible offerors provided,
however, that the basis for the selection among
multiple contracts at the time of purchase shall
be the most practical and economical alternative
and shall be in the best interests of the State,
and further provided that the requirements set
forth herein shall not preclude the Commissioner
from establishing multiple award contracts for
reasons including increased opportunities for
small businesses to participate in State
contracts. State Finance Law 163(10)(c)
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Government Procurement Competitive Bidding
The Commissioner of General Services may
authorize purchases required by state agencies
or authorized purchasers by letting a contract
or by approving the use of a contract let by
any department, agency or instrumentality of
the United States government and/or any
department, agency, office, political
subdivision or instrumentality of any state or
states. State Finance Law 163(10)(e)
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Government Procurement Competitive Bidding
The Commissioner of General Services is
authorized to let centralized contracts for
joint purchasing by New York State and any
department, agency or instrumentality of the
United States government and/or any state
including the political subdivisions thereof
provided however that any entity incurring a
liability under such contract shall be
responsible for discharging said liability.
State Finance Law 163(10)(f)
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Government Procurement Competitive Bidding
Under this authority, the State can recognize and
use or be a part of contracts of other public
purchasers. In most instances, these other
government entities establish their agreements
using competitive solicitations. This
procurement methodology has proven to be a tool
that provides a means to meet special
requirements or to efficiently and economically
meet the needs of State agencies and Authorized
Users.
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Government Procurement Competitive Bidding
Note These contracts and purchases also need
to be supported by a procurement record and are
subject to OSC approval.
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Government Procurement Competitive Bidding

• Piggybacking Agreements
• Have provided for imaging systems,
• landscape furniture, cellular telephone
• service and mission specific consultant
• services such as Year 2000
• programming.
• Joint Agreements
• Have provided for pharmaceuticals
• (Minnesota multi-state) and traffic cones
• (New England States and New York).

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Process for Conducting Procurements

• Developing the Procurement
• Determination of Need
• Form, Function Utility Decisions for
• Centralized Contracts
• - Discretion of OGS Commissioner
• in cooperation with State
• Procurement Council and state
• agencies,

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Process for Conducting Procurements

• Criteria OGS uses includes, but is not
• limited to
• Availability of a volume discount
• Prior use of the commodity among state agencies
• Relative cost of establishing the contract
• Anticipated use and
• Expected actual savings for the State.

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Process for Conducting Procurements

• Drafting Issuing Agency Contracts
• IFB vs. RFP
• NYS Contract Reporter Advertisement
• - Required if Contract Value Over 15,000
• Article 4C Economic Development Law
• - Receipt of offers minimum of fifteen
  business days after notice published
• Appendix A (Standard Clauses for State
  Contracts)

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Process for Conducting Procurements

• Drafting Issuing the Document
• Appendix B (OGS General Specifications for
  
• Procurement Contracts)
• Non-Collusive Bidding Certificate
• MacBride Certification
• Procurement Lobbying Certification SFL 139 j
  k
• Responsibility Questionnaire
• Sales Tax Certification
• Consultant Disclosure

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Government Procurement Competitive Bidding

• Discretionary Thresholds for Purchasing
• State Agencies up to 50,000
• (OGS 85,000)
• State Agencies up to 100,000
• - For recycled or remanufactured
• commodities or technology
• - From small businesses
• - From ESDC certified minority/
• women-owned business enterprises

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Government Procurement Competitive Bidding
Use of Mini Bids Another competitive
solicitation technique employs multiple contract
awards where vendors present their qualifications
and agree to standard terms and conditions for
a multiple year contract term with not to exceed
prices backdrop contracts. State agencies
and Authorized Users present their technical
needs to a pool of qualified contractors (Projec
t Definition or Mini Bid) choosing the
best value solution.
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Government Procurement Competitive Bidding
Use of Mini Bids (continued) This allows the
purchaser to focus on meeting their operational
or functional requirements and cut down on the
contract cycle time often reducing
the procurement time to weeks rather than
months.
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Government Procurement Competitive Bidding

• Use of Mini Bids
• Computer Consulting, Systems
• Integration and Training Agreements
• with categories of services
• Telephone Systems and Maintenance
• Third Party Financing Services
• Microcomputer Systems
• Security Guards

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Government Procurement Competitive Bidding

• Bid Evaluation Approvals
• Responsive Offeror
• - Material vs. Non-Material Deviations
• Clarifications, revisions, discussions, where
  
• provided in the solicitation
• Responsible Offeror (FLIP)
• Due Diligence
• Due Process
• - Prior Contract History
• Only debarment in NYS is for prevailing wage
• rate, labor law and procurement lobbying
• violations

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Government Procurement Competitive Bidding

• Vendor Responsibility Due Process and the
  Opportunity to be Heard
• Procurement determinations arising from the
  need to
• ascertain the responsibility of a
  vendor/bidder impose a
• duty on the State agency to provide an
  opportunity to be
• heard
• It is the policy of the Office of General
  Services (OGS)
• Procurement Services Group (PSG) to provide
  vendors
• with an opportunity to administratively
  resolve complaints
• or inquiries related to PSG bid solicitations
  or contract
• awards. Bidders are encouraged to seek
  resolution of
• complaints through consultation with PSG
  staff. All such
• matters will be accorded impartial and timely
  consideration

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Government Procurement Competitive Bidding

• Bid Evaluation Approvals
• Bid Disputes
• - No statutory right
• - Commissioner's responsibility to
• make an award consistent with
• procurement laws
• Elements of defensible decisions

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Government Procurement and Competitive Bidding

• Bid Evaluation Approvals
• Required Approvals
• Department of Law
• Specialty Contracts
• - Civil Service
• - Office for Technology
• - Division of the Budget
• Office of the State Comptroller

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Government Procurement and Competitive Bidding

• Selection and Contract Award
• Using Bid Documents for Contract
• Award
• Negotiate Contract

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Government Procurement and Competitive Bidding

• Other Relevant Laws
• Section 112 State Finance Law
• OSC Approval
• Section 138 State Finance Law
• Non-Assignment of State Contracts
• Section 139-d State Finance Law
  Non-Collusion by Bidders

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Government Procurement and Competitive Bidding

• Other Relevant Laws
• Sections 139-j and 139-k State
• Finance Law Restriction on Contracts
• and Disclosure of Contacts
• Section 220 and 240 Labor Law
• Prevailing Wage Rate
• Article 2 Uniform Commercial Code
• Sales

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Questions
?
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Presenters Contact Information
Noreen J. VanDoren Assistant Counsel Office of
General Services n.vandoren_at_ogs.state.ny.us (518
) 474-5607 OGS Website
www.ogs.state.ny.us