2020 New York Laws
STF - State Finance
Article 9 - Contracts
139-J - Restrictions on Contacts During the Procurement Process.

* § 139-j. Restrictions on contacts during the procurement process. 1.
For  the  purposes  of  this  section, the following terms will have the
following meanings unless specified otherwise.
  a. "Governmental  entity"  shall  mean:  (1)  any  department,  board,
bureau,  commission,  division, office, council, committee or officer of
the state, whether permanent or temporary; (2) each house of  the  state
legislature;  (3)  the  unified  court system; (4) any public authority,
public benefit corporation or commission created by or existing pursuant
to the public authorities  law;  (5)  any  public  authority  or  public
benefit  corporation,  at least one of whose members is appointed by the
governor or who serves as a member by virtue of holding a  civil  office
of  the  state;  (6)  a  municipal  agency,  as  that term is defined in
paragraph (ii) of subdivision (s) of section one-c  of  the  legislative
law; or (7) a subsidiary or affiliate of such a public authority.
  b.   "Article   of  procurement"  shall  mean  a  commodity,  service,
technology, public work, construction, revenue contract,  the  purchase,
sale  or  lease  of real property or an acquisition or granting of other
interest in real  property,  that  is  the  subject  of  a  governmental
procurement.
  c. "Contacts" shall mean any oral, written or electronic communication
with a governmental entity under circumstances where a reasonable person
would  infer  that  the  communication  was  intended  to  influence the
governmental entity's conduct or  decision  regarding  the  governmental
procurement.
  d.  "Proposal"  shall  mean any bid, quotation, offer or response to a
governmental  entity's  solicitation  of  submissions  relating   to   a
procurement.
  e. "Governmental procurement" shall mean: (i) the public announcement,
public  notice,  or  public  communication  to any potential vendor of a
determination of a need for a procurement, which shall include, but  not
be  limited  to,  the  public  notification  of  the specifications, bid
documents,  request  for  proposals,  or  evaluation  criteria   for   a
procurement  contract,  (ii)  solicitation  for  a procurement contract,
(iii) evaluation of a procurement contract, (iv) award, approval, denial
or disapproval of a procurement contract, or (v) approval or  denial  of
an  assignment, amendment (other than amendments that are authorized and
payable under the terms of the procurement contract as  it  was  finally
awarded  or  approved  by  the  comptroller,  as applicable), renewal or
extension of a procurement contract, or any other material change in the
procurement contract resulting in a financial benefit to the offerer.
  f. "Restricted period" shall mean the period of time  commencing  with
the earliest posting, on a governmental entity's website, in a newspaper
of  general  circulation, or in the procurement opportunities newsletter
in accordance with article four-C of the  economic  development  law  of
written notice, advertisement or solicitation of a request for proposal,
invitation  for  bids, or solicitation of proposals, or any other method
provided for by  law  or  regulation  for  soliciting  a  response  from
offerers   intending   to  result  in  a  procurement  contract  with  a
governmental entity  and  ending  with  the  final  contract  award  and
approval  by  the  governmental  entity and, where applicable, the state
comptroller.
  g. "Procurement contract" shall mean any contract or other  agreement,
including  an  amendment,  extension,  renewal  or  change  order  to an
existing contract  (other  than  amendments,  extensions,  renewals,  or
change  orders  that  are  authorized and payable under the terms of the
contract as it was finally awarded or approved by  the  comptroller,  as
applicable),  for  an  article  of  procurement  involving  an estimated
annualized expenditure in excess of fifteen  thousand  dollars.  Grants,

article  eleven-B state finance law contracts, program contracts between
not-for-profit organizations, as defined in  article  eleven-B  of  this
chapter,  and  the  unified  court system, intergovernmental agreements,
railroad   and   utility  force  accounts,  utility  relocation  project
agreements or orders, contracts governing organ  transplants,  contracts
allowing  for  state  participation  in  trade shows, and eminent domain
transactions shall not be deemed procurement contracts.
  h. "Offerer" shall mean the individual or  entity,  or  any  employee,
agent  or  consultant  or  person acting on behalf of such individual or
entity,  that  contacts  a  governmental  entity  about  a  governmental
procurement   during   the   restricted   period  of  such  governmental
procurement whether or not the caller has a financial  interest  in  the
outcome  of  the  procurement;  provided,  however,  that a governmental
agency or its employees that  communicates  with  the  procuring  agency
regarding  a  governmental  procurement in the exercise of its oversight
duties shall not be considered an offerer.
  i. "Revenue contract" shall  mean  any  written  agreement  between  a
governmental entity, as that term is defined in subparagraphs one, four,
five,  six  or  seven of paragraph a of this subdivision, and an offerer
whereby the governmental entity  gives  or  grants  a  concession  or  a
franchise.
  j.  "Unified  court  system"  shall,  for the purposes of this section
only, mean the unified court system of the state of  New  York,  or  the
office  of  court administration, where appropriate, other than town and
village justice courts in jurisdictions with a  population  under  fifty
thousand, when it acts solely in an administrative capacity to engage in
governmental procurements and shall not include the unified court system
or  any  court  of  the  state judiciary when it acts to hear and decide
cases of original or appellate jurisdiction or  otherwise  acts  in  its
judicial, as opposed to administrative, capacity.
  2.   Every   governmental   entity   that  undertakes  a  governmental
procurement shall:
  a. at the same time that a restricted period  is  imposed,  designate,
with  regard  to  each governmental procurement, a person or persons who
are knowledgeable about the procurement and  who  may  be  contacted  by
offerers relative to the governmental procurement;
  b.  make  any determinations on any governmental procurement: (1) in a
manner consistent with the principles provided for under subdivision two
of  section  one  hundred  sixty-three  of  this  chapter,  or,  if  the
governmental  entity  is  a  public benefit corporation, as that term is
defined in section sixty-six of the general construction  law,  and  the
majority  of  the  members  consist  of  persons either appointed by the
governor or who serve as members by virtue of holding a civil office  of
the  state,  the  procurement  guidelines  adopted  pursuant  to section
twenty-eight hundred seventy-nine of the public authorities law, and (2)
free from any conduct that would be prohibited by  subdivision  five  of
section  seventy-three  or  section  seventy-four of the public officers
law, or of other applicable ethics code provisions that  are  equivalent
to  subdivision five of section seventy-three or section seventy-four of
the public officers law where the public officials that are involved  in
the  governmental  procurement  are  not  subject to subdivision five of
section seventy-three or section seventy-four  of  the  public  officers
law;
  3.   Each   offerer  that  contacts  a  governmental  entity  about  a
governmental procurement  shall  only  make  permissible  contacts  with
respect  to  the  governmental  procurement,  which  shall mean that the
offerer:

  a. shall contact only the person or persons who may  be  contacted  by
offerers  as designated by the governmental entity pursuant to paragraph
a of subdivision two  of  this  section  relative  to  the  governmental
procurement,  except  that  the following contacts are exempted from the
provisions  of  this  paragraph  and  do  not  need  to be directed to a
designated contact pursuant to section one hundred thirty-nine-k of this
article:
  (1) the submission of written proposals in response to a  request  for
proposals,  invitation  for  bids  or  any other method for soliciting a
response from offerers intending to result in a procurement contract;
  (2) the submission of written questions by a method  set  forth  in  a
request  for  proposals, or invitation for bids, or any other method for
soliciting a response from offerers intending to result in a procurement
contract,  when  all  written  questions  and  responses   are   to   be
disseminated  to  all  offerers  who  have  expressed an interest in the
request for proposals, or invitation for bids, or any other  method  for
soliciting a response from offerers intending to result in a procurement
contract;
  (3)  participation  in  a demonstration, conference or other means for
exchange of information in a  setting  open  to  all  potential  bidders
provided  for  in  a  request for proposals, invitation for bids, or any
other method for soliciting a response from offerers intending to result
in a procurement contract;
  (4) complaints by an offerer regarding the failure of  the  person  or
persons designated by the procuring governmental entity pursuant to this
section  to  respond  in  a timely manner to authorized offerer contacts
made in writing to the  office  of  general  counsel  of  the  procuring
governmental  entity,  provided  that  any such written complaints shall
become a part of the procurement record;
  (5) offerers who have been tentatively  awarded  a  contract  and  are
engaged  in  communications  with  a  governmental entity solely for the
purpose of negotiating the terms of the procurement contract after being
notified of tentative award;
  (6) contacts between  designated  governmental  entity  staff  of  the
procuring  governmental entity and an offerer to request the review of a
procurement contract award;
  (7) (a) contacts by offerers in  protests,  appeals  or  other  review
proceedings  (including  the  apparent successful bidder or proposer and
his or her representatives) before the  governmental  entity  conducting
the  procurement  seeking  a final administrative determination, or in a
subsequent judicial proceeding; or
  (b)  complaints  of  alleged  improper  conduct  in   a   governmental
procurement   to  the  attorney  general,  inspector  general,  district
attorney, or court of competent jurisdiction; or
  (c) protests, appeals or complaints to the state comptroller's  office
during  the  process of contract approval, where the state comptroller's
approval is required, provided that the state comptroller shall  make  a
record  of  such  communications and any response thereto which shall be
entered into the procurement record  pursuant  to  section  one  hundred
sixty-three of this chapter; or
  (d)   complaints   of  alleged  improper  conduct  in  a  governmental
procurement conducted by a municipal agency or local legislative body to
the state comptroller's office;
  (8) communications between offerers  and  governmental  entities  that
solely  address  the  determination  of responsibility by a governmental
entity of an offerer;
  (9) Any communications relating to  a  governmental  procurement  made
under  section one hundred sixty-two of the state finance law undertaken

by (i) the non-profit-making agencies appointed pursuant to paragraph  e
of subdivision six of section one hundred sixty-two of the state finance
law  by  the commissioner of the office of children and family services,
the commission for the blind, or the commissioner of education, and (ii)
the  qualified  charitable non-profit-making agencies for the blind, and
qualified  charitable  non-profit-making  agencies  for  other  severely
disabled persons as identified in subdivision two of section one hundred
sixty-two  of  this  chapter; provided, however, that any communications
which attempt to influence the issuance or terms of  the  specifications
that  serve  as  the  basis  for  bid documents, requests for proposals,
invitations for bids, or solicitations of proposals, or any other method
for soliciting a  response  from  offerers  intending  to  result  in  a
procurement  contract  with  a  state agency, the state legislature, the
unified court system, a municipal agency or local legislative body shall
not be exempt from the provisions of this paragraph;
  (10) Complaints by minority-owned business enterprises or  women-owned
business  enterprises, certified as such by the division of minority and
women's business development, to the minority and  women-owned  business
enterprise  statewide  advocate  concerning  the  procuring governmental
entity's failure to  comply  with  the  requirements  of  section  three
hundred fifteen of the executive law;
  (11)  Communications  between  the  minority  and women-owned business
enterprise statewide advocate and the procuring governmental  entity  in
furtherance of an investigation of the minority and women-owned business
enterprise statewide advocate pursuant to section three hundred twelve-a
of the executive law.
  provided, however, that nothing in this subdivision shall be construed
as recognizing or creating any new rights, duties or responsibilities or
abrogating  any  existing  rights,  duties  or  responsibilities  of any
governmental entity as it pertains to implementation and enforcement  of
article  eleven  of  this  chapter or any other provision of law dealing
with the governmental procurement process,  and  that  nothing  in  this
subdivision   shall   be   interpreted  to  limit  the  authority  of  a
governmental entity involved in a government procurement by exercise  of
an  oversight  function from providing information to offerers regarding
the status of the review,  oversight,  or  approval  of  a  governmental
procurement  that  has  been  submitted  to  or  is under review by that
governmental entity.
  b. shall not attempt to influence the governmental  procurement  in  a
manner  that  would  result  in a violation or an attempted violation of
subdivision five of section seventy-three or section seventy-four of the
public officers law, or of other applicable ethics code provisions  that
are  equivalent  to subdivision five of section seventy-three or section
seventy-four of the public officers law where the public officials  that
are  involved  in  the  governmental  procurement  are  not  subject  to
subdivision five of section seventy-three or section seventy-four of the
public officers law;
  4. Violations of paragraph a of  subdivision  three  of  this  section
shall   include   any   contacts  during  the  restricted  period  of  a
governmental procurement between the offerer and any member, officer  or
employee of any governmental entity other than the entity conducting the
governmental  procurement;  provided,  however,  that  nothing  in  this
section shall be deemed to prohibit an offerer from communicating with a
member  of  the  state  legislature  or  legislative   staff   about   a
governmental  procurement being conducted by a governmental entity other
than the state legislature, or a member  of  the  state  legislature  or
legislative  staff contacting a governmental entity about a governmental
procurement being conducted by a  governmental  entity  other  than  the

state  legislature, provided that the member of the state legislature or
legislative staff is acting in his or her official capacity.
  5. Governmental entity staff may consult the model guidelines that may
be  established by the advisory council on procurement lobbying pursuant
to section one-t of the legislative law in implementing this section.
  6. a. Every governmental entity shall incorporate  a  summary  of  the
policy   and   prohibitions  regarding  permissible  contacts  during  a
governmental procurement pursuant to subdivision three of this  section,
and  copies  of rules and regulations and applicable governmental entity
guidelines  and  procedures  regarding  permissible  contacts  during  a
governmental  procurement  pursuant to subdivision three of this section
into their solicitation of proposals or bid documents or  specifications
for all procurement contracts.
  b.  Every governmental entity shall seek written affirmations from all
offerers as to the offerer's understanding of and  agreement  to  comply
with  the  governmental  entity's  procedures  relating  to  permissible
contacts during a governmental procurement pursuant to subdivision three
of this section. Such a written  affirmation  by  an  offerer  shall  be
deemed  to  apply  to  any  amendments to a procurement submitted by the
governmental entity after an initial affirmation  is  received  with  an
initial bid.
  7.  Notwithstanding  any  law  to the contrary, prior to conducting an
award of a procurement contract,  a  governmental  entity  conducting  a
governmental   procurement   shall   make   a   final  determination  of
responsibility of the proposed awardee in accordance with paragraph f of
subdivision nine of section one hundred sixty-three of this chapter, or,
if the governmental entity is a public benefit corporation, as that term
is defined in section sixty-six of the general construction law, and the
majority of the members consist  of  persons  either  appointed  by  the
governor  or who serve as members by virtue of holding a civil office of
the state, according to the procurement guidelines adopted  pursuant  to
subparagraph  (iii)  of  paragraph  (b)  of subdivision three of section
twenty-eight  hundred  seventy-nine  of  the  public  authorities   law;
provided,  however,  that nothing in this subdivision shall be construed
as  abrogating  or  diminishing   any   existing   rights,   duties   or
responsibilities   of   any   governmental  entity  as  it  pertains  to
determinations of responsibility.
  8. Any member, officer  or  employee  of  a  governmental  entity  who
becomes aware that an offerer has violated the provisions of subdivision
three  of  this  section  with regard to permissible contacts during any
governmental procurement shall immediately notify  the  ethics  officer,
inspector   general,   if  any,  or  other  official  of  the  procuring
governmental entity responsible  for  reviewing  or  investigating  such
matters.  If  an offerer violates the provisions of subdivision three of
this section with regard  to  permissible  contacts  at  a  governmental
entity  other  than  the governmental entity conducting the governmental
procurement, the member, officer or employee who becomes  aware  of  the
violation shall notify the ethics officer, inspector general, if any, or
other  official  of the governmental entity responsible for reviewing or
investigating such matters where that member, officer or employee works,
who shall in turn notify the ethics officer, inspector general, if  any,
or  other  official of the procuring governmental entity responsible for
reviewing or investigating such matters at  the  procuring  governmental
entity.
  9.  Every  governmental entity shall establish a process for review by
its ethics  officer,  inspector  general,  if  any,  or  other  official
responsible for reviewing or investigating any allegations of violations
of  the  provisions  of subdivision three of this section with regard to

permissible  contacts  on  governmental  procurements,   and   for   the
imposition of sanctions if such violations have been found to exist.
  10.  a.  Upon  notification  of  any  allegation of a violation of the
provisions  of  subdivision  three  of  this  section  with  regard   to
permissible  contacts  on  governmental  procurements,  the governmental
entity's ethics officer, inspector general, if any, or other official of
the  procuring  governmental  entity  responsible   for   reviewing   or
investigating such matters shall immediately investigate such allegation
and, if sufficient cause exists to believe that such allegation is true,
shall  give  the  offerer  reasonable  notice  that  an investigation is
ongoing and an opportunity to be heard in response to the allegation.
  b. A finding that an offerer has knowingly and willfully violated  the
provisions  of  subdivision  three  of  this  section  shall result in a
determination of non-responsibility for such offerer, and  such  offerer
and   its  subsidiaries,  and  any  related  or  successor  entity  with
substantially similar function, management, board of directors, officers
and shareholders  (hereinafter,  for  the  purposes  of  this  paragraph
"offerer"),  shall  not  be awarded the procurement contract, unless the
governmental entity finds that the award of the procurement contract  to
the  offerer is necessary to protect public property or public health or
safety, and that the offerer is the only source capable of supplying the
required  article  of  procurement  within  the   necessary   timeframe,
provided,  that the governmental entity shall include in the procurement
record a  statement  describing  the  basis  for  such  a  finding.  Any
subsequent  determination of non-responsibility due to violation of this
section within four years of a determination of  non-responsibility  due
to  a  violation  of  this  section  shall  result  in the offerer being
rendered  ineligible  to  submit  a  proposal  on  or  be  awarded   any
procurement  contract  for  a  period of four years from the date of the
second final determination. Every governmental entity shall ensure  that
its   solicitations  of  proposals  for  procurement  contracts  require
offerers to disclose findings of non-responsibility due to violations of
the provisions of subdivision three of this section within the  previous
four years by any governmental entity. The failure of offerers to timely
disclose  accurate  and complete information or otherwise cooperate with
the  governmental  entity  in  administering  this  provision  shall  be
considered   by   the   governmental  entity  in  its  determination  of
responsibility; provided, further, that the  governmental  entity  shall
not award a contract to an offerer who fails to timely disclose accurate
and  complete  information  or otherwise cooperate with the governmental
entity in administering this provision unless  the  governmental  entity
finds  that  the  award  of  the  procurement contract to the offerer is
necessary to protect public property or public  health  or  safety,  and
that  the  offerer  is the only source capable of supplying the required
article of procurement within the necessary  timeframe,  provided,  that
the  governmental  entity  shall  include  in  the  procurement record a
statement describing the basis for such a finding. Upon a  determination
of  non-responsibility  or debarment due to a violation of this section,
the governmental entity shall notify the  office  of  general  services,
which  shall  keep a list of all offerers who have been determined to be
nonresponsible bidders or debarred due to violations  of  this  section;
the  office  of general services shall make publicly available such list
and shall publish such list on its web site.
  c. If a violation of the  provisions  of  subdivision  three  of  this
section  is  found  to  have  knowingly and willfully occurred, then the
ethics officer or inspector general, if any, or other  official  of  the
procuring governmental entity responsible for reviewing or investigating
such  matters  shall  report  instances  of  employee  violation  of the

guidelines and procedures regarding implementation of subdivision two of
this section to the governmental entity's head.
  11.  Nothing  in this section shall be deemed to prevent: (a) contacts
by offerers in protests, appeals or other review proceedings  (including
the   apparent   successful   bidder   or   proposer   and  his  or  her
representatives)  before  the   governmental   entity   conducting   the
procurement  seeking  a  final  administrative  determination,  or  in a
subsequent judicial proceeding; or
  (b)  complaints  of  alleged  improper  conduct  in   a   governmental
procurement   to  the  attorney  general,  inspector  general,  district
attorney, or court of competent jurisdiction; or
  (c) written protests, appeals or complaints to the state comptroller's
office  during  the  process  of  contract  approval,  where  the  state
comptroller's approval is required by law, and where such communications
and  any  responses  thereto are made in writing and shall be entered in
the procurement record pursuant to section one  hundred  sixty-three  of
this chapter; or
  (d)   complaints   of  alleged  improper  conduct  in  a  governmental
procurement conducted by a municipal agency or local legislative body to
the state comptroller's office;
  provided, however, that nothing in this subdivision shall be construed
as recognizing or creating any new rights, duties or responsibilities or
abrogating any  existing  rights,  duties  or  responsibilities  of  any
governmental  entity as it pertains to implementation and enforcement of
article eleven of this chapter or any other  provision  of  law  dealing
with the governmental procurement process.
  * NB Repealed July 31, 2021