2006 New York Code - Preferred Sources.

 
    §  162. Preferred sources. * 1. Purpose. To advance special social and
  economic goals, selected providers shall have  preferred  source  status
  for  the  purposes  of  procurement in accordance with the provisions of
  this section. Procurement from these providers, except those defined  in
  paragraph  f  of subdivision two of this section, shall be exempted from
  the  competitive  procurement  provisions   of   section   one   hundred
  sixty-three  of this article and other competitive procurement statutes.
  Such exemption shall apply  to  commodities  produced,  manufactured  or
  assembled,  including  those  repackaged  to meet the form, function and
  utility required by state agencies, in New  York  state  and,  where  so
  designated,  services  provided by those sources in accordance with this
  section.
    * NB Repealed September 1, 2006
    * 1. Purpose. To advance special social and economic  goals,  selected
  providers  shall  have  preferred  source  status  for  the  purposes of
  procurement  in  accordance  with  the  provisions  of   this   section.
  Procurement  from these providers shall be exempted from the competitive
  procurement provisions  of  section  one  hundred  sixty-three  of  this
  article and other competitive procurement statutes. Such exemption shall
  apply  to  commodities  produced,  manufactured  or assembled, including
  those repackaged to meet the form,  function  and  utility  required  by
  state  agencies,  in  New  York state and, where so designated, services
  provided by those sources in accordance with this section.
    * NB Effective September 1, 2006
    2. Preferred status. Preferred status as prescribed  in  this  section
  shall be accorded to:
    a.  Commodities  produced  by the department of correctional services'
  correctional industries program and provided to the  state  pursuant  to
  subdivision  two  of  section  one hundred eighty-four of the correction
  law;
    b. Commodities and  services  produced  by  any  qualified  charitable
  non-profit-making agency for the blind approved for such purposes by the
  commissioner of the office of children and family services;
    c. Commodities and services produced by any special employment program
  serving  mentally  ill  persons,  which  shall  not  be  required  to be
  incorporated and which is operated by facilities within  the  office  of
  mental  health  and is approved for such purposes by the commissioner of
  mental health;
    d. Commodities and  services  produced  by  any  qualified  charitable
  non-profit-making  agency  for  other severely disabled persons approved
  for such purposes by the  commissioner  of  education,  or  incorporated
  under  the  laws  of  this  state  and approved for such purposes by the
  commissioner of education;
    e. Commodities and services produced by a qualified veterans' workshop
  providing job and employment-skills training to veterans  where  such  a
  workshop is operated by the United States department of veterans affairs
  and  is  manufacturing products or performing services within this state
  and  where  such  workshop  is  approved  for  such  purposes   by   the
  commissioner of education; or
    * f.  Commodities  provided  by any qualified apparel manufacturer and
  contractor on the special September eleventh bidders registry, as  added
  by  section three hundred forty-nine of the labor law, approved for such
  purposes by the commissioner of labor, provided, however,  that  nothing
  in   this  paragraph  shall  affect  or  displace  the  preferences  and
  priorities  established  in  paragraphs  a,  b,  c,  d  and  e  of  this
  subdivision.
    * NB Repealed September 1, 2006.
    * NB There are 2 par f's
    * f.  Commodities  and  services  produced by any qualified charitable
  non-profit-making workshop for veterans approved for  such  purposes  by
  the  commissioner  of  education, or incorporated under the laws of this
  state and approved for such purposes by the commissioner of education.
    * NB There are 2 par f's
    3.  Public  list  of  services  and  commodities provided by preferred
  sources.
    a.  By  December  thirty-first,  nineteen  hundred  ninety-five,   the
  commissioner,  in  consultation  with  the commissioners of correctional
  services, social services, mental health and education, shall prepare  a
  list  of  all  commodities and services that are available and are being
  provided as of said date, for purchase by state agencies, public benefit
  corporations or political  subdivisions  from  those  entities  accorded
  preference  or priority status under this section. Such list may include
  references to  catalogs  and  other  descriptive  literature  which  are
  available  directly  from  any  provider accorded preferred status under
  this section.  The  commissioner  shall  make  this  list  available  to
  prospective   vendors,  state  agencies,  public  benefit  corporations,
  political subdivisions and other interested parties. Thereafter, new  or
  substantially  different  commodities  or  services  may  only  be  made
  available by preferred sources for  purchase  by  more  than  one  state
  agency,  public  benefit  corporation  or  political  subdivision  after
  addition to said list.
    b.  After  January  first,  nineteen  hundred  ninety-six,  upon   the
  application   of   the   commissioner   of  correctional  services,  the
  commissioner of social services, the commissioner of  mental  health  or
  the  commissioner  of  education,  or  a  non-profit-making facilitating
  agency designated by one of the said commissioners pursuant to paragraph
  e of subdivision six of this section, the state procurement council  may
  recommend  that the commissioner: (i) add commodities or services to, or
  (ii) in order to insure  that  such  list  reflects  current  production
  and/or  availability  of commodities and services, delete at the request
  of  a  preferred  source,  commodities  or  services  from,   the   list
  established  by  paragraph a of this subdivision. The council may make a
  non-binding recommendation to the relevant preferred source to delete  a
  commodity  or service from such list. Additions may be made only for new
  services or  commodities,  or  for  services  or  commodities  that  are
  substantially  different  from  those  reflected  on  said list for that
  provider.  The  decision  to  recommend  the  addition  of  services  or
  commodities  shall  be  based  upon  a  review  of  relevant  factors as
  determined by the council including costs and  benefits  to  be  derived
  from  such  addition  and  shall  include  an  analysis by the office of
  general services conducted pursuant to subdivision six of this  section.
  Unless  the state procurement council shall make a recommendation to the
  commissioner on any such application within one hundred twenty  days  of
  receipt  thereof,  such  application shall be deemed recommended. In the
  event  that  the  state  procurement  council  shall   deny   any   such
  application,   the   commissioner   or  non-profit-making  agency  which
  submitted such application may,  within  thirty  days  of  such  denial,
  appeal  such  denial  to  the commissioner of general services who shall
  review all materials submitted to the  state  procurement  council  with
  respect to such application and who may request such further information
  or  material as is deemed necessary. Within sixty days of receipt of all
  information or materials deemed necessary, the commissioner shall render
  a written final decision on the application which shall be binding  upon
  the applicant and upon the state procurement council.
    c.  The  list maintained by the office of general services pursuant to
  paragraph a of this subdivision shall be revised as necessary to reflect
  the additions and deletions of commodities and services approved by  the
  state procurement council.
    * d.  Paragraphs  a,  b  and  c of this subdivision shall not apply to
  commodities  provided  by  any  qualified   apparel   manufacturer   and
  contractor  on the special September eleventh bidders registry, as added
  by section three hundred forty-nine of the labor law,  or  approved  for
  such  purposes  by  the commissioner of labor. The commissioner of labor
  shall periodically provide the commissioner of general services with the
  special September eleventh bidders registry, as added by  section  three
  hundred  forty-nine of the labor law, of qualified apparel manufacturers
  and contractors. The commissioner of labor shall also make the  registry
  available   upon   request  to  other  state  agencies,  public  benefit
  corporations,  public  authorities,  and,  if  requested,  to  political
  subdivisions.
    * NB Repealed September 1, 2006
    4.  Priority accorded preferred sources. Except as provided in the New
  York state printing and public documents law, priority  among  preferred
  sources shall be accorded as follows:
    a.  (i)  When  commodities  are  available,  in the form, function and
  utility required by a state agency, public authority, commission, public
  benefit corporation or political subdivision, said commodities  must  be
  purchased   first   from   the   department  of  correctional  services'
  correctional industries program;
    (ii) When commodities are available, in the form, function and utility
  required by, a state agency or political subdivision or  public  benefit
  corporation having their own purchasing agency, and such commodities are
  not  available  pursuant  to  subparagraph  (i)  of this paragraph, said
  commodities  shall  then   be   purchased   from   approved   charitable
  non-profit-making agencies for the blind;
    (iii)  When  commodities  are  available,  in  the  form, function and
  utility required by, a state agency or political subdivision  or  public
  benefit  corporation  having  their  own  purchasing  agency,  and  such
  commodities are not available pursuant to subparagraphs (i) and (ii)  of
  this  paragraph,  said  commodities  shall  then  be  purchased  from  a
  qualified non-profit-making agency for other severely disabled  persons,
  a  qualified  special  employment program for mentally ill persons, or a
  qualified veterans' workshop;
    b. When services are available, in  the  form,  function  and  utility
  required  by,  a state agency or political subdivision or public benefit
  corporation having their own purchasing agency, equal priority shall  be
  accorded  the  services  rendered  and  offered  for  sale  by qualified
  non-profit-making agencies  for  the  blind  and  those  for  the  other
  severely disabled, by qualified special employment programs for mentally
  ill  persons  and  by  qualified  veterans'  workshops.  In  the case of
  services:
    (i)  state  agencies  or  political  subdivisions  or  public  benefit
  corporations  having  their  own purchasing agency shall make reasonable
  efforts to provide a notification describing their requirements to those
  preferred sources, or to the facilitating entity identified in paragraph
  e of subdivision  six  of  this  section,  which  provide  the  required
  services  as  indicated  on  the  official public list maintained by the
  office of  general  services  pursuant  to  subdivision  three  of  this
  section;
    (ii)  if, within ten days of the notification required by subparagraph
  (i) of this paragraph, one or more  preferred  sources  or  facilitating
  entities  identified  in  paragraph e of subdivision six of this section
  submit a notice of intent to provide the service in the  form,  function
  and utility required, said service shall be purchased in accordance with
  this  section.  If more than one preferred source or facilitating entity
  identified in paragraph e of subdivision six  of  this  section  submits
  notification  of  intent  and meets the requirements, costs shall be the
  determining factor for purchase among the preferred sources;
    (iii) if, within ten days of the notification required by subparagraph
  (i)  of  this  paragraph,  no  preferred  source  or facilitating entity
  identified in paragraph e of subdivision six of this  section  indicates
  intent  to  provide  the  service, then the service shall be procured in
  accordance with section one hundred sixty-three  of  this  article.  If,
  after  such  period,  a  preferred  source elects to bid on the service,
  award shall be made in accordance with section one  hundred  sixty-three
  of this article or as otherwise provided by law.
    c.  For  the  purposes of commodities and services produced by special
  employment programs operated by facilities approved or operated  by  the
  office  of  mental health, facilities within the office of mental health
  shall be exempt from the requirements of subparagraph (i) of paragraph a
  of this subdivision. When such requirements  of  the  office  of  mental
  health cannot be met pursuant to subparagraph (ii) or (iii) of paragraph
  a of this subdivision, or paragraph b of this subdivision, the office of
  mental   health   may   purchase  commodities  and  services  which  are
  competitive in price and comparable in  quality  to  those  which  could
  otherwise  be  obtained  in  accordance  with this article, from special
  employment programs operated by facilities within the office  of  mental
  health or other programs approved by the office of mental health.
    * 4-a. Priority in purchasing requirements for apparel or textiles. a.
  Definitions. As used in this section, the following terms shall have the
  following meanings:
    (i)  "Apparel"  or  "textiles"  shall mean all articles of clothing or
  goods  produced  by  weaving,  knitting,  or  felting  or  any   similar
  production processes for such articles of clothing and shall include all
  goods  produced by the apparel industry as defined by subdivision (c) of
  section three hundred forty of the labor law.
    (ii) "State" shall mean any New York state agency, department,  board,
  bureau,  commission,  division,  or  any  public  benefit corporation or
  public authority a majority  of  whose  members  are  appointed  by  the
  governor.
    b.  Notwithstanding  anything  to the contrary, political subdivisions
  may adopt and apply the  priority  established  herein  by  specifically
  including   the   provisions   of   this   subdivision   in   their  bid
  specifications.
    c. Conditions for participation in certain  state  contracts.  In  the
  event  the state, as defined in subparagraph (ii) of paragraph a of this
  subdivision, seeks  to  purchase  apparel  or  textiles  pursuant  to  a
  competitive  bid  pursuant  to  section  one hundred sixty-three of this
  article  or  other  applicable  competitive  procurement  statutes,  the
  following additional conditions shall apply:
    (i)  the  bid  shall include a statement that a state agency shall not
  enter into a contract to purchase or obtain for any purpose any  apparel
  from  a  bidder  unable or unwilling to provide documentation as part of
  its bid:
    (A) attesting that such apparel was manufactured  in  compliance  with
  all  applicable  labor  and occupational safety laws, including, but not
  limited to, child labor laws, wage and hour laws  and  workplace  safety
  laws;
    (B)  stating,  if known, the name and address of each subcontractor to
  be utilized; and
    (C) stating, if known, all manufacturing plants utilized by the bidder
  or subcontractor.
    (ii) manufacturers and contractors identified on the special September
  eleventh bidders registry, as added by section three hundred  forty-nine
  of  the  labor  law,  shall  be  a  preferred  source  for purposes of a
  competitive bid and the associated contract award for apparel or textile
  procurements  where  the  price  bid  by  such  participating  qualified
  registrant bidder is not greater than  fifteen  percent  more  than  the
  lowest  price  bid  by  an  otherwise responsive and responsible bidder.
  Where there is more than one participating qualified registrant  bidder,
  the  state shall make the contract award based upon the lowest price bid
  among such bidders. For purposes of  this  subdivision,  such  preferred
  source  status  shall  be  applied to each item or product for which the
  bidder proposes to utilize a manufacturing location registered  pursuant
  to section three hundred forty-nine of the labor law.
    (iii)  where  no  qualified  bidders  under  subparagraph (ii) of this
  paragraph participate in the competitive bid for the  specified  apparel
  or  textiles  the state shall award the contract to the otherwise lowest
  responsive and  responsible  bidder  pursuant  to  section  one  hundred
  sixty-three  of this article or other applicable competitive procurement
  statutes.
    d. Waiver. The provisions of this section may be waived by the head of
  any state agency, department, board, bureau,  commission,  division,  or
  any  public  benefit corporation or public authority a majority of whose
  members are appointed by the governor where it is determined in  writing
  and  included in the procurement record that it is in the best interests
  of the state to do so.
    * NB Repealed September 1, 2006
    5. Prices charged by the  department  of  correctional  services.  The
  prices  to  be  charged  for  commodities  produced by the department of
  correctional  services'  correctional  industries   program   shall   be
  established  by  the commissioner of correctional services in accordance
  with section one hundred eighty-six of the correction law.
    a. The prices established by the commissioner of correctional services
  shall be based upon costs as determined pursuant  to  this  subdivision,
  but  shall  not  exceed  a reasonable fair market price determined at or
  within ninety days before the time of sale. Fair market  price  as  used
  herein  means the price at which a vendor of the same or similar product
  or service who is regularly engaged in  the  business  of  selling  such
  product  or service offers to sell such product or service under similar
  terms in the same market. Costs shall be determined in  accordance  with
  an  agreement  between the commissioner of correctional services and the
  director of the budget.
    b. A purchaser of any such product or service may, at any  time  prior
  to  or within thirty days of the time of sale, appeal the purchase price
  in accordance with section one hundred eighty-six of the correction law,
  on the basis that it unreasonably exceeds fair  market  price.  Such  an
  appeal  shall  be  decided  by  a  majority vote of a three-member price
  review board consisting of the director of the budget, the  commissioner
  of  correctional services and the commissioner or their representatives.
  The decision of the review board shall be final.
    6. Prices charged by agencies for the blind, other  severely  disabled
  and veterans' workshops.
    a.  Except  with  respect  to the department of correctional services'
  correctional  industries  program,  it  shall  be  the   duty   of   the
  commissioner  to  determine, and from time to time review, the prices of
  all commodities and to approve the price of  all  services  provided  by
  preferred  sources  as  specified  in  this  section  offered  to  state
  agencies, political subdivisions or public benefit  corporations  having
  their own purchasing office.
    b.  In  determining  and  revising  the  prices of such commodities or
  services, consideration shall be given to the reasonable costs of labor,
  materials and overhead necessarily incurred by  such  preferred  sources
  under  efficient  methods  of  procurement,  production, performance and
  administration;  however, the prices of such products and services shall
  be as close to prevailing market price as practicable, but in  no  event
  greater  than  fifteen percent above, the prevailing market prices among
  responsive offerors for the same or equivalent commodities or services.
    c. Such qualified charitable non-profit-making agencies for the  blind
  and  other  severely disabled may make purchases of materials, equipment
  or supplies, except printed material,  from  centralized  contracts  for
  commodities  in  accordance  with  the  conditions  set by the office of
  general   services;   provided    that    the    qualified    charitable
  non-profit-making  agency for the blind or other severely disabled shall
  accept sole responsibility for any payment due the vendor.
    d. Such qualified charitable non-profit-making agencies for the  blind
  and  other  severely disabled may make purchases of materials, equipment
  and supplies from the department of correctional services'  correctional
  industries  program,  directly  from the correctional industries program
  administered by the commissioner of correctional  services,  subject  to
  such  rules  as  may  be  established  from time to time pursuant to the
  correction law; provided that the qualified charitable non-profit-making
  agency for the blind  or  other  severely  disabled  shall  accept  sole
  responsibility  for  any  payment  due  the  department  of correctional
  services.
    e. The state commissioner of social services  shall  appoint  the  New
  York  state  commission for the blind and visually handicapped, or other
  non-profit-making agency, other than the agency representing  the  other
  severely  disabled,  to  facilitate  the  distribution  of  orders among
  qualified non-profit-making charitable agencies for the blind. The state
  commissioner of education  shall  appoint  a  non-profit-making  agency,
  other  than  the  agency  representing  the  blind,  to  facilitate  the
  distribution of  orders  among  qualified  non-profit-making  charitable
  agencies  for  the  other severely disabled and the veterans' workshops.
  The  state  commissioner  of  mental   health   shall   facilitate   the
  distribution  of  orders  among  qualified  special  employment programs
  operated or approved by the office of mental health serving mentally ill
  persons.
    f. The commissioner may  request  the  state  comptroller  to  conduct
  audits and examinations to be made of all records, books and data of any
  agency  for  the  blind  or  the  other  severely  disabled, any special
  employment program for mentally ill persons or any  veterans'  workshops
  qualified  under  this  section to determine the costs of manufacture or
  the rendering of services and the manner and  efficiency  of  production
  and  administration  of  such  agency  or  special employment program or
  veterans' workshop with relation to any product or services purchased by
  a state agency or political subdivision or  public  benefit  corporation
  and  to  furnish  the  results  of  such  audit  and  examination to the
  commissioner for such action as he or she  may  deem  appropriate  under
  this section.
    7.   Partnering  with  preferred  sources.  The  commissioner  of  the
  appropriate  appointing  agency  as  identified  in   paragraph   e   of
  subdivision six of this section, shall conduct one or more pilot studies
  whereby  a  private  vendor  may be accorded preferred source status for
  purposes of this section. The pilot studies shall seek to ascertain  the
  benefits  of  partnerships  between  private industry and those entities
  accorded preferred source status as specified in this section. Preferred
  source status under a partnering arrangement may only be accorded when a
  proposal to a soliciting agency for commodities or services  includes  a
  binding  agreement  with  one or more of the entities accorded preferred
  source status under this section. The binding  agreement  shall  provide
  that:
    (i)  The  preferred  source  shall  perform  the  majority of the work
  necessary to such offering, and
    (ii) The partnering proposal includes bona fide long  term  employment
  opportunities  for  persons  who  could  otherwise  be new clients of an
  entity previously accorded preferred source status herein, and
    (iii)  The  partnering  proposal  offers  the  solicited  services  or
  commodities  at  a  price  less  than  the price that otherwise would be
  charged by a preferred source.
    8. a. The commissioner of  the  appropriate  appointing  agency  shall
  report by December thirty-first, two thousand four, to the governor, the
  chairperson  of  the  senate  finance  committee, the chairperson of the
  assembly ways and means committee and the director of  the  budget,  the
  results  and  findings  of  each  pilot  study  conducted,  pursuant  to
  subdivision seven of  this  section,  and  include  recommendations  for
  improving partnering with preferred sources.
    b.  The  council  shall  report  to  the  governor, legislative fiscal
  committees and the director of  the  budget  by  December  thirty-first,
  nineteen  hundred  ninety-five  and thereafter annually, a separate list
  concerning the denial of any application made pursuant to paragraph  (b)
  of  subdivision  three  of  this  section,  the reasons for such denial,
  whether such denial was appealed to  the  commissioner,  and  the  final
  decision by the commissioner on such application.
    9.  The  provisions  of  this  section  shall  supersede  inconsistent
  provisions of any general, special or local law, or  the  provisions  of
  any charter.