2015 New York Laws
STF - State Finance
Article 11 - (State Finance) STATE PURCHASING
163 - 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"  means  the financial ability,
  legal capacity, integrity, and past performance of a business entity and
  as such terms have been interpreted relative to public procurements.
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  a  contract  or
  non-technical amendment to a 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.  Such  basis  may  also
  identify  a  quantitative factor for offerers that are small businesses,
  certified minority- or women-owned business enterprises  as  defined  in
  subdivisions one, seven, fifteen and twenty of section three hundred ten
  of   the   executive  law  or  service-disabled  veteran-owned  business
  enterprises as defined in  subdivision  one  of  section  three  hundred
  sixty-nine-h of the executive law to be used in evaluation of offers for
  awarding of contracts for services.
k.  "Authorized  user"  or  "non-state agency purchaser" means (i) 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, services and technology through the office of
  general services' centralized contracts, pursuant to the  provisions  of
  section  one  hundred four of the general municipal law; (ii) any county
  extension service association as authorized under subdivision  eight  of
  section two hundred twenty-four of the county law; (iii) any association
  or  other  entity  as  specified  in  and in accordance with section one
  hundred nine-a of the  general  municipal  law;  (iv)  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,  services  and  technology pursuant to section twenty-eight
  hundred three-a of the public health law; (v) any  institution  for  the
  instruction  of  the  deaf  or  of the blind listed in section forty-two
  hundred one of the education law; (vi) any  qualified  non-profit-making
  agency  for  the  blind  approved  by  the commissioner of the office of
  children and family services or the office of temporary  and  disability
  assistance;  (vii) any qualified charitable non-profit-making agency for
  the severely disabled approved by the commissioner of education;  (viii)
  any  hospital  or residential health care facility as defined in section
  twenty-eight hundred one of the public  health  law;  (ix)  any  private
  not-for-profit mental hygiene facility as defined in section 1.03 of the
  mental   hygiene  law;  (x)  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; (xi) 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; (xii) any other association or
  entity as specified in state law,  to  make  purchases  of  commodities,
  services   and  technology  through  the  office  of  general  services'
  centralized contracts. Such qualified non-profit-making agencies for the
  blind and severely disabled may make  purchases  from  the  correctional
  industries  program  of  the  department  of  corrections  and community
  supervision subject to rules pursuant to the correction law.
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 purchases of commodities
  and  services  for  authorized  users  through  the  office  of  general
  services'  centralized  contracts.  Such  authorized  users so empowered
  shall accept sole responsibility for any payment  due  with  respect  to
  such purchases.
(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.
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,  and
  including  without  limitation  educating minority and women contractors
  about surety bonding requirements on state  contracts,  and  identifying
  resources  available  to  such contractors in obtaining their first bond
  and in increasing their bonding capacity, including but not  limited  to
  the federal small business administration bond guarantee program.
(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) assist  the  department  of  agriculture  and  markets  and  the
  department  of economic development in providing a training program once
  per year, in each economic development region,  established  in  article
  eleven  of  the  economic  development  law,  to  encourage and increase
  participation in the procurement process, pursuant to this  article,  by
  small  businesses,  as  defined in section one hundred thirty-one of the
  economic development law, including farms, selling food or food products
  grown, produced, harvested, or processed in New York  state  and  assist
  such businesses in identifying such food or food products which may help
  to meet state agencies' needs.
(viii)  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.

(ix) review and consider prior to issuance of  bid  solicitations  the
  term  of  the  proposed  contract  based  on factors, including, but not
  limited to; (A) the nature of the commodity, (B) the complexity  of  the
  procurement,   (C)   the  identity  and  type  of  purchasers,  (D)  the
  suitability of the contract for adding additional contractors during the
  term,  and (E) the estimated contract value. This determination shall be
  documented in the procurement record.
(x) reasonably consider aggregate amount of public sales by  potential
  vendors.
(xi)   review  and  consider  the  feasibility  of  creating  regional
  contracts for commodities being procured by the state.
(xii) maintain a procurement  record  for  each  centralized  contract
  procurement  identifying,  with supporting documentation, decisions made
  by the commissioner during  the  procurement  process.  The  procurement
  record  shall  include,  but not be limited to, each contract amendment,
  and the justification for each.
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,  except  state
  agencies  where the head of the agency is not appointed by the governor,
  including but  not  limited  to  the  state  education  department,  the
  department  of  law,  and  the  department of audit and control, for the
  exercise of his or her powers and duties under this  section.  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.    (i)  Centralized  contracts  for services may be procured by the
  office of general services at  the  request  of  state  agencies  or  as

  determined  by  the  commissioner.  The  purchase  of  services by state
  agencies, except state agencies where the head  of  the  agency  is  not
  appointed  by  the  governor,  including  but  not  limited to the state
  education department, the department of law, and the department of audit
  and control, shall be conducted in a manner that accords second priority
  to  centralized contracts meeting form, function and utility required by
  said agency,  third  priority  to  agency  or  multi-agency  established
  contracts and fourth priority to other means of contracting.
(ii) The commissioner shall:
(A)  review  and  consider  prior to issuance of bid solicitations the
  term of the proposed contract  based  on  factors,  including,  but  not
  limited  to,  (a)  the  nature of the service, (b) the complexity of the
  procurement,  (c)  the  identity  and  type  of  purchasers,   (d)   the
  suitability of the contract for adding additional contractors during the
  term,  and (e) the estimated contract value. This determination shall be
  documented in the procurement record.
(B) reasonably consider  the  aggregate  amount  of  public  sales  by
  potential vendors.
(C) review and consider the feasibility of creating regional contracts
  for services being procured by the state.
(D)  maintain  a  procurement  record  for  each  centralized contract
  procurement identifying with supporting documentation, decisions made by
  the commissioner during the procurement process. The procurement records
  shall include, but not be limited to, each contract amendment,  and  the
  justification for each.
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.  The commissioner is authorized to permit purchases of services for
  authorized users through the office  of  general  services'  centralized
  contracts.   Such  authorized  users  so  empowered  shall  accept  sole
  responsibility for any payment due with respect to such purchases.
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.
5.  Process  for  conducting  state  procurements.  The  process   for
  conducting  state  procurements for services and commodities shall be as
  follows:
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 the heads of which are appointed by the governor:
(A)  Shall  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) May 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) May procure the  service  independently  or  in  conjunction  with
  another state agency.
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  articles  fifteen-A  and  seventeen-B  of   the
  executive  law,  or  commodities  or  technology  that  are  recycled or
  remanufactured, or commodities that are food, including  milk  and  milk
  products,  grown,  produced  or harvested in New York state in an amount
  not exceeding two 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.
6-b. Determination of threshold amount. For determination of threshold
  amount  purposes  of  determining  whether  a  purchase  is  within  the
  discretionary thresholds established by subdivision six of this section,
  the  commissioner  and  state  agencies  shall  consider  the reasonably
  expected aggregate amount of all purchases of the  same  commodities  or
  services  to  be  made  within the twelve-month period commencing on the
  date of purchase. Purchases of services  or  commodities  shall  not  be
  artificially  divided  for  the  purpose of satisfying the discretionary

  buying thresholds established by subdivision  six  of  this  section.  A
  change  to  or  a  renewal  of  a  discretionary  purchase  shall not be
  permitted if the change or renewal would bring the  reasonably  expected
  aggregate  amount  of  all purchases of the same commodities or services
  from the same provider within the twelve-month period commencing on  the
  date  of  the first purchase to an amount greater than the discretionary
  buying threshold amount.
6-c. Pursuant to the authority provided in  subdivision  six  of  this
  section,  for  the purchase of commodities that are food, including milk
  and milk products, grown, produced or harvested in New York state, where
  such commodities exceed fifty thousand dollars in value, state  agencies
  must  advertise  the  discretionary purchase on the state agency website
  for a reasonable period of time  and  make  the  discretionary  purchase
  based  on  the lowest price that meets the state agency's form, function
  and utility.
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.  State  agencies  may  accept  bids  electronically   including
  submission  of  the  statement  of non-collusion required by section one
  hundred thirty-nine-d of this chapter and,  starting  April  first,  two
  thousand  twelve,  and  ending March thirty-first, two thousand fifteen,
  may, for commodity, service and technology contracts require  electronic
  submission  as  the  sole  method  for  the  submission  of bids for the
  solicitation. State agencies shall undertake no  more  than  eighty-five
  such  electronic  bid  solicitations,  none  of  which  shall be reverse
  auctions, prior to April first, two thousand fifteen. In addition, state
  agencies may conduct up to twenty reverse  auctions  through  electronic
  means,  prior  to  April first, two thousand fifteen. Prior to requiring
  the  electronic  submission  of  bids,   the   agency   shall   make   a
  determination, which shall be documented in the procurement record, that
  electronic  submission affords a fair and equal opportunity for offerers
  to submit responsive offers. Within thirty days of the completion of the
  eighty-fifth  electronic  bid  solicitation,  or  by  April  first,  two
  thousand fifteen, whichever is earlier, the commissioner shall prepare a
  report   assessing   the   use   of   electronic  submissions  and  make
  recommendations regarding future use  of  this  procurement  method.  In
  addition,  within thirty days of the completion of the twentieth reverse
  auction through electronic  means,  or  by  April  first,  two  thousand
  fifteen,  whichever  is earlier, the commissioner shall prepare a report
  assessing the use of reverse auctions through electronic means and  make
  recommendations  regarding  future  use of this procurement method. Such
  reports shall be published on the  website  of  the  office  of  general
  services.  Except where otherwise provided by law, procurements shall be
  competitive,  and  state  agencies  shall  conduct  formal   competitive
  procurements  to  the  maximum  extent practicable. 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.
7-a.  On  or  before  February  first,  two   thousand   twelve,   the
  commissioner  of  the  office  of  general  services shall submit to the

  speaker of the assembly and the temporary  president  of  the  senate  a
  report describing:
(a)  the  number  of  times  the  office  of general services required
  electronic submission  as  the  sole  method  by  which  bids  could  be
  submitted  for  the  period  from  July  first, two thousand ten through
  December thirty-first, two thousand eleven;
(b) the estimated savings to the state as a result of  the  office  of
  general  services  requiring electronic submission as the sole method by
  which bids could be submitted in response  to  a  solicitation  and  the
  basis on which the estimate is made;
(c)  to  the  extent  practicable, the size, minority- and women-owned
  business enterprise composition and  geographic  distribution  of  those
  vendors that submitted bids in response to an office of general services
  solicitation  where  electronic  submission was the sole method by which
  bids could be submitted for the period from July first, two thousand ten
  to December thirty-first, two thousand eleven; and
(d) to the extent practicable, the  size,  minority-  and  women-owned
  business  enterprise  composition  and  geographic distribution of those
  vendors that submitted bids in response to an office of general services
  solicitation for those contracts described in subdivision seven of  this
  section  for the period from July first, two thousand eight through June
  thirtieth, two thousand ten.
8. Public notice.  All  procurements  by  state  agencies,  including,
  without  limitation,  the  state  university  of  New  York and the city
  university of New York, in excess of fifty  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. A state agency shall, upon request, provide a  debriefing  to
  any  unsuccessful offerer that responded to a request for proposal or an
  invitation for bids, regarding the reasons  that  the  proposal  or  bid
  submitted by the unsuccessful offerer was not selected for an award. The
  opportunity  for  an  unsuccessful offerer to seek a debriefing shall be
  stated in the solicitation, which shall provide a  reasonable  time  for
  requesting a debriefing.
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. (i) 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.
(ii)  State  agencies  shall  minimize  the  use  of   single   source
  procurements and shall use single source procurements only when a formal
  competitive  process  is  not feasible. State agencies shall document in
  the  procurement  record  the  circumstances  and   the   material   and
  substantial  reasons  why  a formal competitive process is not feasible.
  The term of a single source procurement contract shall be limited to the
  minimum period of time necessary to ameliorate the  circumstances  which
  created  the  material  and  substantial  reasons  for the single source

  award. Not later than  thirty  days  after  the  contract  award,  state
  agencies  shall,  for  all  single  source  procurement  contracts, make
  available for public inspection on the agency website, a summary of  the
  circumstances  and  material  and  substantial reasons why a competitive
  procurement is not  feasible.  Any  information  which  the  contracting
  agency  is  otherwise  prohibited  by  law  from  disclosing pursuant to
  sections eighty-seven and eighty-nine of the public officers law,  shall
  be redacted from the documentation published on the agency website.
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. A state agency purchaser shall
  document in the procurement record  its  rationale  for  the  use  of  a
  contract  let by any department, agency or instrumentality of the United
  States  government  or  any  department,   agency,   office,   political
  subdivision  or  instrumentality  of  any  other  state  or states. Such
  rationale shall include, but need not be limited to, a determination  of
  need,  a  consideration  of the procurement method by which the contract
  was awarded, an analysis of alternative procurement sources including an
  explanation why a competitive procurement or the use  of  a  centralized
  contract  let  by  the  commissioner  is not in the best interest of the
  state, and the reasonableness of cost.
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 by the state comptroller. To support transparency in the
  state's  procurement  process  and   prudent   procurement   management,
  oversight and policy-making, the state comptroller shall submit a report
  to  the state procurement council, the governor, the commissioner of the
  office  of  general  services,  the  director  of  the  budget,  and the
  legislative fiscal committees containing data related  to  state  agency
  contracts. Such report shall be made annually, on a fiscal year basis by
  the first of July of the next succeeding year.
a. For state agency contracts, such report shall include:
(i) a list of all active contracts as of the end of the fiscal year;
(ii)  a  list  of  all  contracts  reviewed by the office of the state
  comptroller during the fiscal year;
(iii) a list of contract award protests reviewed by the office of  the
  state comptroller and the resolution thereof; and
(iv)  for  consulting  contracts  subject  to  approval  of  the state
  comptroller, a report  of  planned  and  actual  employment  under  each
  contract.
b.  The  lists  required  pursuant  to  subparagraphs  (i) and (ii) of
  paragraph a of this subdivision shall include, to the extent  reasonably
  available, the following information related to each contract:
(i) the state agency letting the contract;
(ii) the state agency for which the contract is let, if different;
(iii) whether an agency contract or centralized contract;
(iv) vendor name and address;
(v)  a  description  of  the contract. For contracts let under section
  nine of the public buildings law, the description shall denote the scope
  of work of the contract and the nature of the emergency for which it was
  let;
(vi) contract start and end dates;
(vii) the dollar value of the contract;
(viii) for contracts subject to approval  by  the  state  comptroller,
  whether     approved    or    non-approved,    the    date    of    such
  approval/non-approval,  and  if  non-approved,  the  reason  or  reasons
  therefor;
(ix)  life  to  date and fiscal year expenditures against the contract
  and by which agencies;
(x)  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;
(xi)  source selection method, including "lowest price", "best value",
  sole source, single source, negotiated and/or emergency procurement;
(xii) number of bids/proposals received by the contracting agency; and
(xiii) subtotals as deemed applicable.
c. The report required pursuant to subparagraph (iv) of paragraph a of
  this subdivision shall include:
(i) information required to be reported by the contractor annually  by
  the  employment  category  within  the  contract,  including the planned
  number of employees to provide services under the contract, the  planned
  number  of  hours  to  be  worked  under  the  contract,  and  the total
  compensation planned under the contract; and
(ii) information required to be reported by  the  contractor  annually
  pursuant   to   paragraph   g  of  subdivision  four  of  this  section,
  specifically, the actual number of  employees,  by  employment  category
  within  the  contract,  employed to provide services under the contract,
  the number of hours worked and total compensation under the contract.
d. For the purposes of the report required  pursuant  to  subparagraph
  (iv)  of  paragraph  a  of  this subdivision, a "contract for consulting

  services" shall mean any contract entered into by  a  state  agency  for
  analysis,  evaluation,  research,  training,  data  processing, computer
  programming,  engineering,  environmental  health  and   mental   health
  services,  accounting,  auditing, paralegal, legal, or similar services.
  Such report  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,  social  security
  number  and  other  personal  information  of any individual employee or
  consultant that is included in such document.
e. The information required by this subdivision shall be  provided  in
  electronic  format  in  such form as prescribed by the state comptroller
  such that the data can be searched and sorted.
f. All reports required under this subdivision 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.
15. Reporting by agencies. a. State agencies shall report annually, on
  a fiscal year basis, by July first of the  ensuing  year  to  the  state
  procurement council, the governor, the legislative fiscal committees and
  the  state comptroller the total number and total dollar value of single
  source contracts awarded by the agency during the fiscal year,  and  the
  percentage  such  contracts  represent  of the agency's total number and
  total dollar value of contract awards during the reporting period.
b. Each state agency shall include with its report  an  assessment  by
  the  agency head of the agency's efforts to minimize the award of single
  source contracts.
c. All reports required under this subdivision 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 Repealed June 30, 2016