2006 New York Code - Purchasing Services And Commodities.



 
    * §  163. Purchasing services and commodities. 1. Definitions. For the
  purposes of this section, the following terms shall have  the  following
  meanings unless otherwise specified:
    a.  "Consortium"  means  like  entities  which  agree  to collectively
  purchase commodities at a lower price than would be otherwise achievable
  through purchase by such entities pursuant to other provisions  of  this
  article.
    b. "Emergency" means an urgent and unexpected requirement where health
  and public safety or the conservation of public resources is at risk.
    c.  "Responsible"  or  "responsibility" shall have the same meaning as
  such terms have been interpreted prior to the  effective  date  of  this
  article.
    d.  "Responsive"  means  a bidder or other offerer meeting the minimum
  specifications or requirements  as  prescribed  in  a  solicitation  for
  commodities or services by a state agency.
    e.  "Specification"  or  "requirement"  means  any  description of the
  physical or functional characteristics or the nature of a  commodity  or
  construction  item,  any  description  of  the work to be performed, the
  service or products to be provided, the necessary qualifications of  the
  offerer,the capacity and capability of the offerer to successfully carry
  out the proposed contract, or the process for achieving specific results
  and/or  anticipated  outcomes  or  any  other  requirement  necessary to
  perform the work.  It  may  include  a  description  of  any  obligatory
  testing, inspection or preparation for delivery and use, and may include
  federally  required  provisions and conditions where the eligibility for
  federal funds is  conditioned  upon  the  inclusion  of  such  federally
  required  provisions and conditions. Specifications shall be designed to
  enhance competition, ensuring the commodities or services of any offerer
  are not given preference except where required by this article.
    f. "Procurement record" means documentation of the decisions made  and
  the approach taken in the procurement process.
    g.  "Sole  source"  means  a  procurement in which only one offerer is
  capable of supplying the required commodities or services.
    h. "Single source" means a procurement in which although two  or  more
  offerers   can   supply   the  required  commodities  or  services,  the
  commissioner or state agency, upon written findings  setting  forth  the
  material and substantial reasons therefor, may award the contract to one
  offerer  over the other. 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.
    i.  "Lowest  price"  means  the  basis  for  awarding  contracts   for
  commodities among responsive and responsible offerers.
    j. "Best value" means the basis for awarding contracts for services to
  the   offerer  which  optimizes  quality,  cost  and  efficiency,  among
  responsive and responsible offerers. Such basis shall reflect,  wherever
  possible, objective and quantifiable analysis.
    2.  Operating  principles.  The  objective  of state procurement is to
  facilitate each state agency's mission while protecting the interests of
  the state and its taxpayers and promoting fairness in  contracting  with
  the  business community. The state's procurement process shall be guided
  by the following principles:
    a. To promote purchasing from  responsive  and  responsible  offerers,
  including small businesses.
    b. To be based on clearly articulated procedures which require a clear
  statement   of  product  specifications,  requirements  or  work  to  be
  performed; a documentable process  for  soliciting  bids,  proposals  or
  other  offers; a balanced and fair method, established in advance of the
  receipt  of  offers,  for  evaluating  offers  and  awarding  contracts;
  contract  terms  and  conditions  that protect the state's interests and
  promote  fairness  in  contracting  with  the  business community; and a
  regular monitoring of vendor performance.
    c. To encourage the  investment  of  the  private  and  not-for-profit
  sectors  in  New  York state by making reasonable efforts to ensure that
  offerers are apprised of procurement opportunities;  by  specifying  the
  elements  of  a  responsive  bid and disclosing the process for awarding
  contracts including,  if  applicable,  the  relative  importance  and/or
  weight  of  cost  and  the  overall  technical  criterion for evaluating
  offers; and by ensuring the procurement is conducted accordingly.
    d. To ensure that contracts  are  awarded  consistent  with  the  best
  interests of the state.
    e.  To  ensure  that  officers  and employees of state entities do not
  benefit financially or otherwise from the award of state contracts.
    f. To ensure regular and critical review of the efficiency,  integrity
  and effectiveness of the overall process.
    3. General provisions for purchasing commodities.
    a.   State   agency   procurement   practices  for  commodities  shall
  incorporate the following:
    (i) The purchase of commodities by state agencies including the office
  of general services shall be conducted in a manner which  accords  first
  priority  to preferred sources in accordance with the provisions of this
  article, second priority to centralized  contracts,  third  priority  to
  agency  or  multi-agency  established  contracts  and fourth priority to
  other means of contracting.
    (ii) Commodities contracts shall be awarded on  the  basis  of  lowest
  price  to  a  responsive  and  responsible  offerer;  or, in the case of
  multiple awards, in accordance with paragraph c of  subdivision  ten  of
  this section.
    (iii)  The  commissioner  shall be responsible for the standardization
  and centralized purchase of commodities required by state agencies in  a
  manner which maximizes the purchasing value of public funds.
    (iv)  The  commissioner  is  authorized to permit any officer, body or
  agency of the state or of a political subdivision or a district therein,
  or fire company or volunteer ambulance service as such  are  defined  in
  section  one  hundred of the general municipal law, to make purchases of
  commodities  through  the  office  of  general   services'   centralized
  contracts, pursuant to the provisions of section one hundred four of the
  general  municipal  law.  The  commissioner  is authorized to permit any
  county extension service association  as  authorized  under  subdivision
  eight  of  section  two  hundred  twenty-four  of the county law, or any
  association or other entity as  specified  in  and  in  accordance  with
  section  one  hundred  nine-a of the general municipal law, or any other
  association or entity as specified in state law, to  make  purchases  of
  commodities   through   the  office  of  general  services'  centralized
  contracts; provided, however, that such entity so empowered shall accept
  sole responsibility for any payment due with respect to such purchase.
    (v)  Consistent  with  guidelines  issued  by  the  state  procurement
  council,  state agencies may competitively purchase commodities procured
  in accordance with this article in lieu of using  centralized  contracts
  when the resultant price is less than the centralized contract price.
    (vi)  When  justified  by  price,  state  agencies,  and hospitals and
  facilities managed and controlled by state agencies eligible pursuant to
  section twenty-eight hundred three-a of the public health law, shall  be
  eligible  to  make  purchases pursuant to guidelines issued by the state
  procurement council from a consortium or comparable entity  in  lieu  of
  using centralized contracts for commodities.
    (vii)  The commissioner is authorized to enter into contracts pursuant
  to the provisions of section twenty-eight hundred three-a of the  public
  health law.
    (viii)  The  commissioner may permit and prescribe the conditions for,
  (A)  any  association,  consortium  or  group  of  privately  owned   or
  municipal,  federal  or  state  owned  or  operated  hospitals,  medical
  schools,  other  health  related  facilities  or   voluntary   ambulance
  services,   which   have   entered  into  a  contract  and  made  mutual
  arrangements for the joint purchase of commodities pursuant  to  section
  twenty-eight   hundred  three-a  of  the  public  health  law;  (B)  any
  institution for the instruction of the deaf or of the  blind  listed  in
  section  forty-two  hundred  one of the education law; (C) any qualified
  non-profit-making agency for the blind approved by the  commissioner  of
  social  services;  (D) any qualified charitable non-profit-making agency
  for the severely disabled approved by the commissioner of education; (E)
  any hospital or residential health care facility as defined  in  section
  twenty-eight  hundred  one  of  the  public  health law; (F) any private
  not-for-profit mental hygiene facility as defined in section 1.03 of the
  mental hygiene law; and (G)  any  public  authority  or  public  benefit
  corporation  of  the state, including the port authority of New York and
  New  Jersey  and  the  interstate  environmental  commission,  to   make
  purchases  using  centralized  contracts for commodities. Such qualified
  non-profit-making agencies for the blind and severely disabled may  make
  purchases  from  the  department  of correctional services' correctional
  industries program subject to rules pursuant to the correction law.
    b. The commissioner shall:
    (i) determine, in cooperation with the state procurement  council  and
  state  agencies,  the  identity,  form,  function  and  utility of those
  commodities which shall be made  available  on  or  through  centralized
  contracts.  Criteria  may  include,  but  need  not  be  limited to, the
  availability of a volume discount, prior  use  of  the  commodity  among
  state  agencies  and the relative cost of establishing the contract, its
  anticipated  use  and  expected  actual  savings  for  the  state.   The
  commissioner  may  also  act  as  a broker for state agencies to procure
  commodities.
    (ii) determine the number  and  scope  of  centralized  contracts  for
  commodities  to  be  let  during  any  period,  including the letting of
  multiple contracts to ensure the sufficient  variety  and  uninterrupted
  availability of commodities for state agency use.
    (iii)  maintain  lists  of firms which produce or manufacture or offer
  for sale commodities in the form, function and utility required by state
  agencies.  The  commissioner  shall  ensure  such  lists   are   updated
  regularly. With the assistance of the department of economic development
  and  other  state  agencies,  beginning on July first, two thousand one,
  ensure the availability to all authorized purchasers  of  a  centralized
  list  which  identifies  commodities  offered  by New York state's small
  businesses and a  centralized  list  which  identifies  commodities  and
  services  offered  by businesses certified pursuant to article fifteen-A
  of the executive law. Such  lists  shall  be  updated  semiannually  and
  designed  to  enable  effective identification of New York state's small
  businesses and businesses certified pursuant to article fifteen-A of the
  executive law.
    (iv) ensure the specification of commodities for centralized contracts
  reflect the form, function and utility required by  state  agencies  and
  conform,  wherever possible, to industry standards. Where necessary, the
  commissioner  may  develop  specifications  for  commodities.  When  not
  otherwise   forthcoming   from   a  particular  firm  or  industry,  the
  commissioner may request information from businesses for the purpose  of
  establishing  or  improving  a  specification.  The  office  of  general
  services   may   assist   agencies   in  developing  specifications  for
  agency-procured commodity contracts  when  industry  standards  are  not
  available   or  appropriate.  In  all  cases,  specifications  shall  be
  consistent with the requirements of state agencies.
    (v) With the assistance of the department of economic development  and
  other  state agencies, provide a training program once per year, in each
  economic development region, as established in  article  eleven  of  the
  economic development law, beginning January first, two thousand one, for
  those   businesses  certified  pursuant  to  article  fifteen-A  of  the
  executive law and those interested in becoming certified. Such  training
  program  shall  provide  assistance  with  respect to participation as a
  vendor in the procurement process, as established in this article.
    (vi) With the assistance of the department of economic development and
  other state agencies, provide training once per year for staff  of  each
  state  agency's minority and women business development office, or if an
  agency does not have such an office, then  an  agency's  representative.
  Such  training  program  shall  consist of a meeting with such agencies'
  representatives to inform each agency of how to encourage procurement of
  commodities and services from businesses certified pursuant  to  article
  fifteen-A of the executive law.
    (vii)  maintain  a list of contractors which produce or manufacture or
  offer  for  sale  environmentally-sensitive  cleaning  and   maintenance
  products  in the form, function and utility generally used by elementary
  and secondary schools in accordance with  specifications  or  guidelines
  promulgated  pursuant  to  section  four hundred nine-i of the education
  law.
    c. When commodities are  not  available  in  the  form,  function  and
  utility   required  by  state  agencies  through  preferred  sources  or
  centralized  contracts,  a  state  agency  may,  independently   or   in
  conjunction with other state agencies, procure commodities in accordance
  with  the  provisions  of  this  section.  State  agencies  may maintain
  listings  of  firms,  including  those  certified  pursuant  to  article
  fifteen-A  of  the  executive  law,  or  may  use  the office of general
  services' listing of firms and may request assistance from the office of
  general services. It shall be the responsibility of  state  agencies  to
  periodically   advise   the   office   of   general  services  of  those
  agency-procured commodities which, due to the frequency of  purchase  or
  related factors, should be made available through centralized contracts.
    d. The commissioner may make, or cause to be made by a duly authorized
  representative,  any  investigation  which he or she may deem proper for
  acquiring the necessary information from a state agency for the exercise
  of his or her  powers  and  duties  under  this  subdivision.  For  such
  purposes  the  commissioner  may  subpoena  and compel the attendance of
  witnesses before him or her, or an authorized  representative,  and  may
  compel  the  production  of  books,  papers,  records  or documents. The
  commissioner or a duly  authorized  representative  may  take  and  hear
  proofs and testimony and, for that purpose, the commissioner or the duly
  authorized   representative  may  administer  oaths.  In  addition,  the
  commissioner or the duly authorized representative:
    (i) Shall have access at all reasonable  times  to  offices  of  state
  agencies;
    (ii)  May examine all books, papers, records and documents in any such
  state  agency  as  pertain  directly  to  the   purchase,   control   or
  distribution of commodities; and
    (iii)  May  require any state agency to furnish such data, information
  or statement as may be necessary.
    4.   General   provisions   for   purchasing  services.  State  agency
  procurement practices for services shall incorporate the following:
    a. The purchase of services by state agencies including the office  of
  general  services  shall  be  conducted  in a manner which accords first
  priority to preferred sources in accordance with the provisions of  this
  article  when  the services required are available in the form, function
  and utility required by state agencies through a preferred source.
    b. Centralized contracts for services may be procured by the office of
  general services at the request of state agencies and state agencies may
  when such centralized contracts are in the  form,  function  or  utility
  required   by   said   agency,  purchase  from  established  centralized
  contracts. The state procurement council may, from time to time, require
  that state agencies procure services from certain centralized contracts.
    c. When services are not available from preferred  sources  consistent
  with  the  provisions  of  this article in the form, function or utility
  required  by  state  agencies,  state  agencies  may  procure   services
  independently  or in conjunction with other state agencies in accordance
  with the provisions of this section.
    d. Service contracts shall be awarded on the basis of best value to  a
  responsive  and responsible offerer; or, in the case of multiple awards,
  in accordance with paragraph c of subdivision ten of this section.
    e. Any officer, body or agency of a political subdivision  as  defined
  in  section  one  hundred  of  the  general  municipal law or a district
  therein, may make purchases of services through the  office  of  general
  services'  centralized contracts for services, subject to the provisions
  of  section  one  hundred  four  of  the  general  municipal  law.   The
  commissioner may permit and prescribe the conditions for the purchase of
  services  through  the office of general services' centralized contracts
  for services by any public authority or public  benefit  corporation  of
  the  state  including the port authority of New York and New Jersey. The
  commissioner is authorized to permit  any  public  library,  association
  library,  library  system,  cooperative  library  system,  the  New York
  Library Association, and the  New  York  State  Association  of  Library
  Boards  or  any  other  library  except  those which are operated by for
  profit entities, to make purchases of services  through  the  office  of
  general  services'  centralized  contracts; provided, however, that such
  entity so empowered shall accept sole responsibility for any payment due
  with respect to such purchase.
    f. (i) The state procurement council  may  issue  guidelines  for  the
  development  of  strategic  partnering  between  the state and non-state
  entities for the enhancement of the business  interests  of  the  state.
  Strategic partnerships may be developed during the course of a long-term
  contractual  relationship  between a state agency and the contractor and
  take the form of the joint development of new commodities and  services,
  not  otherwise  available,  which  are  cost-beneficial  to  the  state.
  Strategic partnerships  may  also  include  the  sharing  of  expertise,
  efforts  and  resources  directed  at  providing goods and services in a
  manner which provides best value to the  state.  Strategic  partnerships
  shall  be  accomplished by amendment to existing contracts, to make such
  commodities, processes and services available to the state provided such
  applications are cost beneficial. Ninety  days  prior  to  the  mid-term
  point   of   each   such  contract  amendment  based  upon  a  strategic
  partnership, each state entity involved in the contract must  submit  to
  the  state comptroller a detailed written analysis reviewing each of the
  following:
    (A)   the   continuing   validity   of   the   initial   justification
  documentation,  submitted  with  original  contract  and  any amendments
  thereto;
    (B)  whether  the commodities or services contracted for are currently
  being utilized to the extent initially anticipated;
    (C) a thorough analysis of changes in available technologies effecting
  the continuing need for the  commodities  or  services  currently  being
  utilized;
    (D)  new products or services not available at the commencement of the
  contract which may be more compatible with the needs of the state agency
  or agencies involved;
    (E) the non-state entity has performed satisfactorily  throughout  the
  term of the contract; and
    (F)   a  cost  analysis  setting  forth  the  reasonableness  for  the
  continuation of the contractual relationship with the non-state entity.
    (ii) The state comptroller shall  have  ninety  days  to  review  such
  documentation  submitted by the state agency and may, during that period
  or at the end of such period, request additional  information  from  the
  state  agency. Further, the comptroller may transmit written suggestions
  of possible modifications to be considered by the state  agency  to  the
  contract or any amendment thereto.
    (iii)   Guidelines   must   include  the  definition  of  a  strategic
  partnership, the conditions under which such a partnership provides  the
  state  with  best  value acquisitions, the minimum expected outcomes and
  the allowable term. Approval of a strategic partnering arrangement shall
  be dependent on a written finding issued  by  the  commissioner  of  the
  state agency that the non-state entity has performed satisfactorily with
  the  state  and  that such an arrangement is in the best interest of the
  state in  accordance  with  state  procurement  council  guidelines  and
  subject to the approval of the state comptroller.
    ** g.  All  state  agencies  shall  require all contractors, including
  sub-contractors, that provide services for state purposes pursuant to  a
  contract,  to  submit  an annual employment report for each contract for
  services that includes for each employment category within the  contract
  the number of employees employed to provide services under the contract,
  the  number  of  hours  they work and their total compensation under the
  contract. Employment reports shall  be  submitted  to  the  agency  that
  awarded the contract, the department of civil service and the department
  of  audit  and  control and shall be available for public inspection and
  copying pursuant to section eighty-seven  of  the  public  officers  law
  provided that in disclosing such reports pursuant to the public officers
  law,  the  agency  making the disclosure shall redact the name or social
  security number of any individual employee  that  is  included  in  such
  document.
    ** NB Effective June 19, 2006
    5.   Process  for  conducting  state  procurements.  The  process  for
  conducting state procurements for services and commodities shall  be  as
  follows:
    a.  Determination  of  need.  State  agencies shall be responsible for
  determining the need for a given service or commodity:
    (i) For commodities, upon such determination of need,  state  agencies
  shall ascertain whether the commodity is available in the form, function
  and  utility  consistent  with their needs from preferred sources and if
  so, shall purchase said commodity from a preferred source in  accordance
  with the provisions of this article. If not so available, state agencies
  shall determine whether the commodity is available in the form, function
  and utility consistent with their needs on a centralized contract and if
  so, except as provided in subparagraph (v) of paragraph a of subdivision
  three   of  this  section,  shall  purchase  said  commodity  using  the
  centralized contract. If a commodity  is  not  available  in  the  form,
  function  and utility consistent with the needs of the state agency from
  a  preferred  source  or  a  centralized  contract or as provided for in
  subparagraph (v) of paragraph a of subdivision three  of  this  section,
  the   state  agency  may  procure  the  commodity  independently  or  in
  conjunction with another state agency in accordance with paragraph c  of
  subdivision three of this section.
    (ii)  For  services,  upon  such determination of need, state agencies
  shall ascertain whether the service is available in the  form,  function
  and  utility  consistent with their needs from preferred sources and, if
  so,  shall  purchase  said  service  through  the  preferred  source  in
  accordance  with  the  provisions  of this article. If not so available,
  state agencies may:
    (A) Purchase the service if it is available in the form, function  and
  utility  consistent  with  their  needs using an established centralized
  contract procured by either the office of general  services  or  another
  state agency;
    (B)  Request  that  the  office  of  general  services  procure such a
  service, particularly with respect  to  those  services  having  utility
  and/or benefit to more than one state agency; or
    (C)  Procure  the service independently or in conjunction with another
  state agency.
    b. The state procurement council may, from time to time, require state
  agencies to procure certain services from centralized contracts.
    6. Discretionary buying thresholds. Pursuant to guidelines established
  by the state procurement council: the commissioner may purchase services
  and commodities in an amount not exceeding eighty-five thousand  dollars
  without  a  formal  competitive  process;  state  agencies  may purchase
  services and commodities in  an  amount  not  exceeding  fifty  thousand
  dollars  without  a  formal  competitive process; and state agencies may
  purchase commodities or services from small business concerns  or  those
  certified  pursuant  to  article  fifteen-A  of  the  executive  law, or
  commodities or technology that are recycled  or  remanufactured,  in  an
  amount  not  exceeding  one  hundred  thousand  dollars without a formal
  competitive process.
    6-a.  Discretionary  purchases.  Notwithstanding  the  provisions   of
  subdivision  two  of section one hundred twelve of this chapter relating
  to the dollar threshold requiring the state  comptroller's  approval  of
  contracts,  the  commissioner  of general services may make purchases or
  enter into contracts for the acquisition  of  commodities  and  services
  having  a value not exceeding eighty-five thousand dollars without prior
  approval by any  other  state  officer  or  agency  in  accordance  with
  procedures  and  requirements set forth in this article. Notwithstanding
  the provisions of article four-C of the economic  development  law,  the
  commissioner  of  general  services  may  make  purchases  or enter into
  contracts for the acquisition of commodities and services having a value
  not exceeding thirty thousand dollars  without  prior  approval  by  any
  other  state  officer  or  agency  in  accordance  with  procedures  and
  requirements set forth in this article.
    7.  Method  of  procurement.  Consistent  with  the  requirements   of
  subdivisions three and four of this section, state agencies shall select
  among  permissible methods of procurement including, but not limited to,
  an  invitation  for  bid,  request  for  proposals  or  other  means  of
  solicitation  pursuant  to  guidelines  issued  by the state procurement
  council. Except where otherwise provided by law, procurements  shall  be
  competitive.  State  agencies  shall  document  the determination of the
  method of procurement and the basis of award in the procurement  record.
  Where  the  basis  for  award  is the best value offer, the state agency
  shall document, in the procurement record and in advance of the  initial
  receipt  of  offers, the determination of the evaluation criteria, which
  whenever  possible, shall be quantifiable, and the process to be used in
  the determination of best value and the manner in which  the  evaluation
  process and selection shall be conducted.
    8.  Public  notice.  All  procurements  by state agencies in excess of
  fifteen thousand dollars shall be advertised in the state's  procurement
  opportunities  newsletter  in  accordance  with  article  four-C  of the
  economic development law.
    9. Soliciting and accepting offers. For purchases from  sources  other
  than  preferred sources and for purchases in excess of the discretionary
  buying threshold established in subdivision six of this section:
    a.  The  commissioner  or  a  state  agency  shall  select  a   formal
  competitive   procurement   process   in   accordance   with  guidelines
  established  by  the  state  procurement  council   and   document   its
  determination  in the procurement record. The process shall include, but
  is not limited to, a clear statement  of  need;  a  description  of  the
  required  specifications  governing  performance  and related factors; a
  reasonable process for ensuring a competitive field; a  fair  and  equal
  opportunity for offerers to submit responsive offers; and a balanced and
  fair  method  of  award.    Where the basis for the award is best value,
  documentation  in  the  procurement  record  shall,  where  practicable,
  include  a  quantification  of  the  application  of the criteria to the
  rating  of  proposals  and  the  evaluation  results,  or,   where   not
  practicable, such other justification which demonstrates that best value
  will be achieved.
    b.  The  solicitation  shall  prescribe  the minimum specifications or
  requirements that must be met in order to be considered  responsive  and
  shall  describe  and disclose the general manner in which the evaluation
  and selection shall be conducted. Where  appropriate,  the  solicitation
  shall  identify  the  relative  importance and/or weight of cost and the
  overall technical criterion to be considered by a state  agency  in  its
  determination of best value.
    c.  Where  provided  in  the  solicitation, state agencies may require
  clarification  from  offerers  for   purposes   of   assuring   a   full
  understanding  of responsiveness to the solicitation requirements. Where
  provided for in the solicitation, revisions may be  permitted  from  all
  offerers  determined  to  be  susceptible of being selected for contract
  award, prior to  award.  Offerers  shall  be  accorded  fair  and  equal
  treatment  with respect to their opportunity for discussion and revision
  of offers. Disclosure of the content  of  competing  offers  other  than
  statistical  tabulations  of  bids received in response to an invitation
  for bids, or of any clarifications of or any revisions thereto shall  be
  prohibited prior to award.
    d.  All  offers  may  be rejected. Where provided in the solicitation,
  separable portions of offers may be rejected.
    e. Every offer shall be firm and not revocable for a period  of  sixty
  days from the bid opening, or such other period of time specified in the
  solicitation  to  the  extent not inconsistent with section 2-205 of the
  uniform commercial code. Subsequent to such sixty day or other specified
  period, any offer is subject to withdrawal  communicated  in  a  writing
  signed by the offeror.
    f.  Prior to making an award of contract, each state agency shall make
  a determination of responsibility of the proposed contractor which shall
  supplement, as appropriate,  but  not  supersede  the  determination  of
  responsibility  that  may  be  required  pursuant to section one hundred
  thirty-nine-k of this chapter.
    g. A procurement record  shall  be  maintained  for  each  procurement
  identifying,  with  supporting  documentation,  decisions  made  by  the
  commissioner  or  state  agency  during  the  procurement  process.  The
  procurement  record  shall  include, but not be limited to each contract
  amendment and the justification for each.
    10.  Letting  of contracts. Contracts for commodities shall be awarded
  on the basis of lowest price to a responsive  and  responsible  offerer.
  Contracts  for services shall be awarded on the basis of best value from
  a responsive and responsible offerer. Multiple awards for  services  and
  commodities  shall  be  conducted in accordance with paragraph c of this
  subdivision.
    a. Selection and  award  shall  be  a  written  determination  in  the
  procurement  record  made  by  the  commissioner  or a state agency in a
  manner consistent with the provisions of the solicitation. In the  event
  two  offers are found to be substantially equivalent, price shall be the
  basis for determining the award  recipient  or,  when  price  and  other
  factors  are  found to be substantially equivalent, the determination of
  the commissioner or agency head to award a contract to one  or  more  of
  such  bidders  shall be final. The basis for determining the award shall
  be documented in the procurement record.
    b. Single or sole source procurements for services or commodities,  or
  procurements  made  to  meet emergencies arising from unforeseen causes,
  may be made without a formal competitive process and shall only be  made
  under  unusual  circumstances  and  shall include a determination by the
  commissioner or the state agency that the specifications or requirements
  for said purchase have been designed in a fair and equitable manner. The
  purchasing agency shall document in the procurement record,  subject  to
  review  by  the  state  comptroller,  the  bases  for a determination to
  purchase from a single source or sole  source,  or  the  nature  of  the
  emergency giving rise to the procurement.
    c.  The  commissioner or state agency may elect to award a contract to
  one or more responsive and responsible offerers 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.
    d.  It  shall be in the discretion of the commissioner or state agency
  to require a bond or other guarantee of performance, and to approve  the
  amount, form and sufficiency thereof.
    e. The commissioner may authorize purchases required by state agencies
  or  other  authorized  purchasers  by  letting  a contract pursuant to a
  written agreement, 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.
    f.  The  commissioner  is  authorized to let centralized contracts, in
  accordance with the procedures of this section, 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.
    11.  Reasonableness  of results. It shall be the responsibility of the
  head of each state agency to periodically  sample  the  results  of  the
  procurement  process  to  test  for  reasonableness;  to ensure that the
  results withstand public scrutiny and that the quality and the price  of
  the  purchase makes sense; and to ensure that purchasing is conducted in
  a manner consistent with the best interests of the state.
    12.  Review  by  the  office  of  the state comptroller. Review by the
  office of the state comptroller shall be in accordance with section  one
  hundred twelve of this chapter.
    13.  Technological  procurement  improvements.  The  state procurement
  council may request that the office  of  general  services  provide,  or
  recommend  to  the  state  comptroller to provide for the utilization of
  technological advances  and  efficiencies  in  the  procurement  process
  including,   but  not  limited  to,  electronic  ordering  and  payment,
  procurement cards and similar improvements.
    14. Reporting. To support prudent  procurement  management,  oversight
  and  policy-making,  the  department  of  audit and control shall report
  annually on a fiscal year basis by July first of the ensuing year to the
  state procurement council, the  governor,  and  the  legislative  fiscal
  committees  providing data concerning active procurement contracts above
  fifteen thousand dollars, including but not limited to:
    (i) a listing  of  individual  and  centralized  contracts,  including
  vendor name, comptroller approval dates, dollar value of such contracts,
  the  state  agency  which  let  the contract and/or state agencies which
  purchased off centralized contracts,  expenditures  made  on  each  such
  contract  and by which agencies during the fiscal year and life to date,
  citing contract  category  codes,  source  selection  method,  including
  "lowest price", "best value", sole source, single source, negotiated and
  emergency  procurement  subtotaled by agency and by type of commodity or
  service;
    (ii) frequency of contracts awarded during this fiscal year by  number
  of bids/proposals and source selection method;
    (iii)  number  of contracts disapproved by the department of audit and
  control during the fiscal year and reasons for disapproval by agency and
  by source selection method, number and outcome of bid protests; and
    (iv) a summary report listing total number  and  amount  of  contracts
  awarded  for  the  prior fiscal year and total year-to-date expenditures
  for all contracts, with subtotals by agency and major contract  category
  including,  but  not  limited  to,  consultant, construction, equipment,
  grants, leases, land claim, miscellaneous services, printing,  repayment
  agreements,   revenue   agreements,  intergovernmental  agreements,  and
  commodities; a comparison of centralized and agency contracts by  number
  of contracts, number of agencies purchasing off of centralized contracts
  or   entering   into   contracts,   contract  amounts  and  year-to-date
  expenditures; comparison of contracts  by  source  selection  method  by
  number of contracts, contract amounts, and year-to-date expenditures.
    ** (v)  for  each contract for services for state purposes: the number
  of employees, by employment category within the  contract,  employed  to
  provide  services  under the contract, the number of hours they work and
  their total compensation under the contract;
    ** NB Effective June 19, 2006
    ** (vi) all reports required under this paragraph shall  be  available
  for  public  inspection  and copying pursuant to section eighty-seven of
  the public  officers  law  provided  that  in  disclosing  such  reports
  pursuant  to  the  public officers law, the agency making the disclosure
  shall redact the name  or  social  security  number  of  any  individual
  employee that is included in such document.
    ** NB Effective June 19, 2006
    * NB Repealed June 30, 2007

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