S T A T E   O F   N E W   Y O R K
       ________________________________________________________________________
                                         5713
                              2015-2016 Regular Sessions
                                   I N  S E N A T E
                                     May 29, 2015
                                      ___________
       Introduced  by Sen. DeFRANCISCO -- (at request of the State Comptroller)
         -- read twice and ordered printed, and when printed to be committed to
         the Committee on Finance
       AN ACT to amend the state finance law, in relation to allowing the state
         comptroller to excuse non-material deviations  in  a  procurement;  in
         relation  to  participation  by state agencies in a system used by the
         comptroller to compile vendor responsibility information; in  relation
         to  defining  information  technology  for  procurement  purposes;  in
         relation to authorizing the commissioner  of  the  office  of  general
         services and state agencies to develop alternative procurement methods
         not  otherwise  authorized  by  law  under  certain  circumstances; in
         relation to authorizing competitive negotiation concluding with a best
         and final offer; in relation to clarifying the use of best  and  final
         offers  for invitations for bids and requests for proposals for goods,
         services and technology; in relation to providing  unsuccessful  offe-
         rors a reasonable opportunity for debriefing; in relation to requiring
         competition  and  increased  oversight  for  private  vendor preferred
         source opportunities; in relation  to  increasing  the  threshold  for
         construction bonds and requiring performance bonds for certain instal-
         lation projects; in relation to clarifying the use of contracts let by
         another  governmental  agency;  in  relation to reports on centralized
         contracts; in relation to increasing the threshold for the state comp-
         troller's approval of certain contracts and clarifying  the  valuation
         of  non-cash  contracts  by  the  state  comptroller; and to amend the
         education law, in relation to defining construction related services
         THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
       BLY, DO ENACT AS FOLLOWS:
    1    Section  1. Subdivision 12 of section 163 of the state finance law, as
    2  added by chapter 83 of the laws of 1995, is amended to read as follows:
    3    12. Review by the office of  the  state  comptroller.  Review  by  the
    4  office  of the state comptroller shall be in accordance with section one
        EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                             [ ] is old law to be omitted.
                                                                  LBD09149-05-5
       S. 5713                             2
    1  hundred twelve of this chapter. WHERE THE  CONTRACTING  AGENCY  HAS  NOT
    2  COMPLIED  WITH  ONE  OR MORE PROVISIONS OF THIS ARTICLE, THE STATE COMP-
    3  TROLLER MAY APPROVE THE AWARDED CONTRACT IF:
    4    A.  THE  CONTRACTING  AGENCY  DETERMINES  AND  CERTIFIES, BASED UPON A
    5  PREPONDERANCE OF THE EVIDENCE DOCUMENTED IN THE PROCUREMENT RECORD, THAT
    6  THE  NONCOMPLIANCE  WAS  A  NON-MATERIAL  DEVIATION  FROM  ONE  OR  MORE
    7  PROVISIONS  OF  THIS  ARTICLE.  FOR  THE  PURPOSES  OF  THIS SUBDIVISION
    8  "NON-MATERIAL DEVIATION" SHALL MEAN  THAT  SUCH  NONCOMPLIANCE  DID  NOT
    9  PREJUDICE  OR  FAVOR  ANY VENDOR OR POTENTIAL VENDOR, SUCH NONCOMPLIANCE
   10  DID NOT SUBSTANTIALLY AFFECT THE FAIRNESS OF  THE  COMPETITIVE  PROCESS,
   11  AND  THAT  A  NEW  PROCUREMENT  WOULD NOT BE IN THE BEST INTEREST OF THE
   12  STATE.  SUCH DETERMINATION BY THE CONTRACTING AGENCY AND THE STATE COMP-
   13  TROLLER SHALL BE DOCUMENTED IN THE PROCUREMENT RECORD; AND
   14    B. THE STATE COMPTROLLER CONCURS IN SUCH DETERMINATION.
   15    S 2. The state finance law is amended by adding a new section 163-c to
   16  read as follows:
   17    S 163-C. VENDOR RESPONSIBILITY; ONLINE SYSTEM PARTICIPATION. 1.  DEFI-
   18  NITIONS. AS USED IN THIS SECTION THE  FOLLOWING  TERMS  SHALL  HAVE  THE
   19  FOLLOWING MEANINGS:
   20    A.  "ENROLLMENT"  SHALL  MEAN  THE ESTABLISHMENT OF AN ONLINE SERVICES
   21  ACCOUNT WITH THE STATE COMPTROLLER, INCLUDING, BUT NOT LIMITED  TO,  THE
   22  CREATION  OF  A  UNIQUE  USER  IDENTIFICATION  AND  PASSWORD. ENROLLMENT
   23  PROVIDES A USER ACCESS TO THE SYSTEM.
   24    B. "ONLINE SERVICES" SHALL MEAN THE SERVICES  PROVIDED  ELECTRONICALLY
   25  AND  SECURELY  BY  THE  STATE  COMPTROLLER FOR THE BENEFIT OF NEW YORK'S
   26  CUSTOMERS, CLIENTS AND BUSINESS PARTNERS. SUCH ONLINE  SERVICES  MAY  BE
   27  EXPANDED AND ENHANCED AS TECHNOLOGY ALLOWS.
   28    C.  "STATE  AGENCY"  OR  "STATE AGENCIES" SHALL MEAN ALL STATE DEPART-
   29  MENTS, BOARDS, COMMISSIONS, OFFICES OR INSTITUTIONS. SUCH TERM SHALL NOT
   30  INCLUDE THE LEGISLATURE OR THE JUDICIARY.
   31    D. "STATE CONTRACT" OR "CONTRACT" SHALL MEAN AND INCLUDE  ANY  WRITTEN
   32  AGREEMENT  FOR THE ACQUISITION OF GOODS, SERVICES OR CONSTRUCTION OF ANY
   33  KIND BETWEEN A VENDOR AND A STATE AGENCY,  OR  A  WRITTEN  AGREEMENT  OR
   34  OTHER  INSTRUMENT  WHEREIN  A  STATE AGENCY AGREES TO GIVE CONSIDERATION
   35  OTHER THAN THE PAYMENT OF MONEY AS CONTEMPLATED IN SUBDIVISION THREE  OF
   36  SECTION ONE HUNDRED TWELVE OF THIS CHAPTER.
   37    E.  "SUBCONTRACTOR"  SHALL  MEAN  AN  INDIVIDUAL, SOLE PROPRIETORSHIP,
   38  PARTNERSHIP, JOINT VENTURE OR CORPORATION, WHICH IS ENGAGED IN A SUBCON-
   39  TRACT BY A VENDOR PURSUANT TO A STATE CONTRACT AND SUCH  SUBCONTRACT  IS
   40  VALUED  AT ONE HUNDRED THOUSAND DOLLARS OR MORE AND IS KNOWN AT THE TIME
   41  OF THE AWARD OF THE STATE CONTRACT TO THE VENDOR.
   42    F.  "SYSTEM"  SHALL  MEAN  THE  ON-LINE  SOFTWARE,  DATA  AND  RELATED
   43  RESOURCES MAINTAINED BY THE COMPTROLLER TO COMPILE VENDOR RESPONSIBILITY
   44  INFORMATION.
   45    G. "TERMS OF SERVICE" SHALL MEAN THE TERMS AND CONDITIONS DEVELOPED BY
   46  THE  STATE  COMPTROLLER  AND  AGREED TO BY EACH AUTHORIZED USER PRIOR TO
   47  GAINING ACCESS TO ONLINE SERVICES.   TERMS OF SERVICE  SHALL  INCLUDE  A
   48  DESCRIPTION  OF  THE  SERVICES, OBLIGATIONS OF THE STATE COMPTROLLER AND
   49  THE AUTHORIZED USER, A DESCRIPTION OF THE  STATE  COMPTROLLER'S  PRIVACY
   50  POLICY,  AUTHORIZED  USER  CODE  OF CONDUCT, AND INDEMNITY FOR THE STATE
   51  COMPTROLLER AND THE STATE OF NEW YORK. TERMS OF SERVICE ARE  SUBJECT  TO
   52  CHANGE  AS  PRESCRIBED  BY THE STATE COMPTROLLER.   AUTHORIZED USERS MAY
   53  VIEW CHANGES VIA THE STATE COMPTROLLER'S INTERNET SITE.
   54    H. "VENDOR" SHALL INCLUDE  ANY  PERSON,  PARTNERSHIP,  CORPORATION  OR
   55  LIMITED  LIABILITY  COMPANY  OR  ANY  BUSINESS ENTITY BIDDING ON A STATE
   56  PROCUREMENT OR OTHERWISE AWARDED A STATE CONTRACT.
       S. 5713                             3
    1    I. "VENDOR RESPONSIBILITY" SHALL MEAN THAT A VENDOR HAS  THE  CAPACITY
    2  TO  FULLY PERFORM THE TERMS OF A CONTRACT AND THE INTEGRITY AND BUSINESS
    3  ETHICS TO JUSTIFY AN AWARD OF PUBLIC DOLLARS. A DETERMINATION OF  VENDOR
    4  RESPONSIBILITY SHALL INCLUDE CONSIDERATION OF FACTORS INCLUDING, BUT NOT
    5  LIMITED  TO,  FINANCIAL  AND  ORGANIZATIONAL  CAPACITY, LEGAL AUTHORITY,
    6  INTEGRITY AND PAST PERFORMANCE ON GOVERNMENTAL CONTRACTS.
    7    2. A. STATE AGENCIES SHALL ENROLL WITH THE STATE COMPTROLLER TO ACCESS
    8  THE SYSTEM MAINTAINED BY THE COMPTROLLER TO COMPILE VENDOR  RESPONSIBIL-
    9  ITY INFORMATION. STATE AGENCIES SHALL AGREE TO AND ABIDE BY THE TERMS OF
   10  SERVICE FOR SUCH SYSTEM AS THE STATE COMPTROLLER DEEMS NECESSARY.
   11    B. FOR EACH CONTRACT OR SUBCONTRACT BETWEEN A VENDOR AND A SUBCONTRAC-
   12  TOR  WHERE, PURSUANT TO LAW OR BY DIRECTION OF THE STATE AGENCY, DISCLO-
   13  SURE FOR VENDOR RESPONSIBILITY IS REQUIRED, THE STATE AGENCY SHALL:
   14    (I) PROVIDE NOTICE TO VENDORS BIDDING FOR PROCUREMENTS ADMINISTERED BY
   15  THE STATE AGENCY THAT ANY VENDOR AND SUBCONTRACTOR, SUBMITTING A  VENDOR
   16  RESPONSIBILITY  QUESTIONNAIRE  SHALL  DO SO VIA THE SYSTEM MAINTAINED TO
   17  COMPILE VENDOR RESPONSIBILITY INFORMATION;
   18    (II) PROVIDE VENDORS WITH INSTRUCTIONS ON HOW TO ELECTRONICALLY ACCESS
   19  THE SYSTEM AND PROVIDE CONTACT INFORMATION FOR ASSISTANCE  WITH  ENROLL-
   20  MENT.  THIS  INFORMATION  SHALL BE MADE AVAILABLE PRIOR TO THE TIME WHEN
   21  VENDORS ARE REQUIRED TO SUBMIT DISCLOSURE FOR VENDOR RESPONSIBILITY; AND
   22    (III) ACCESS THE SYSTEM TO OBTAIN AND EVALUATE ANY DATA SUBMITTED BY A
   23  VENDOR PROPOSED FOR CONTRACT AWARD.  STATE  AGENCIES  SHALL  ENSURE  THE
   24  SUBMISSION FILED BY THE VENDOR MEETS SUCH SYSTEM'S TIMELINESS STANDARDS.
   25  SUCH  PROVISIONS  APPLY REGARDLESS OF WHETHER THE CONTRACT IS SUBJECT TO
   26  PRE-REVIEW AND APPROVAL BY THE STATE COMPTROLLER.
   27    C. FOR CONTRACTS WHERE VENDOR DISCLOSURE IS  NOT  OTHERWISE  REQUIRED,
   28  THE  STATE  AGENCY  AT  ITS  DISCRETION,  MAY REQUIRE VENDORS BIDDING ON
   29  PROCUREMENTS, AND/OR SUBCONTRACTORS, TO SUBMIT A  VENDOR  RESPONSIBILITY
   30  QUESTIONNAIRE  VIA THE SYSTEM. NOTHING CONTAINED IN THIS PARAGRAPH SHALL
   31  BE CONSTRUED TO ALTER THE EXISTING AUTHORITY OF THE STATE COMPTROLLER TO
   32  REQUIRE THE SUBMISSION  OF  A  VENDOR  RESPONSIBILITY  QUESTIONNAIRE  IN
   33  CONJUNCTION  WITH  HIS OR HER DUTY TO REVIEW AND APPROVE STATE CONTRACTS
   34  PRIOR TO SUCH CONTRACTS BECOMING EFFECTIVE.
   35    D. STATE AGENCIES SHALL PROVIDE ACCESS TO THE SYSTEM TO  USERS  WITHIN
   36  THEIR ORGANIZATION, AS DEEMED APPROPRIATE BY THE HEAD OF THE STATE AGEN-
   37  CY  OR HIS OR HER DESIGNEE. STATE AGENCY USERS PROVIDED WITH SUCH ACCESS
   38  SHALL BE THOSE INDIVIDUALS, WHO, AS PART OF THEIR OFFICIAL  JOB  DUTIES,
   39  ARE REQUIRED TO ASSESS AND/OR REVIEW VENDOR RESPONSIBILITY FOR THE AGEN-
   40  CY'S CONTRACTS.
   41    S  3.  Subdivisions  7 and 10 of section 160 of the state finance law,
   42  subdivision 7 as amended by section 30 of part L of chapter  55  of  the
   43  laws  of  2012  and subdivision 10 as added by chapter 83 of the laws of
   44  1995, are amended to read as follows:
   45    7. "Service" or "services" means the performance of a  task  or  tasks
   46  and  may  include  a  material good or a quantity of material goods, and
   47  which is the subject of any purchase or other exchange. For the purposes
   48  of this article, INFORMATION  technology  shall  be  deemed  a  service.
   49  Services, as defined in this article, shall not apply to those contracts
   50  for architectural, engineering or surveying services, or those contracts
   51  approved in accordance with article eleven-B of this chapter.
   52    10.  "[Technology]  INFORMATION  TECHNOLOGY"  means either a good or a
   53  service or a combination thereof, [that results in a technical method of
   54  achieving a practical purpose or in improvements in  productivity]  USED
   55  IN  THE  APPLICATION OF ANY COMPUTER OR ELECTRONIC INFORMATION EQUIPMENT
   56  OR INTERCONNECTED SYSTEM THAT  IS  USED  IN  THE  ACQUISITION,  STORAGE,
       S. 5713                             4
    1  MANIPULATION,  MANAGEMENT, MOVEMENT, CONTROL, DISPLAY, SWITCHING, INTER-
    2  CHANGE, TRANSMISSION, OR RECEPTION OF DATA INCLUDING,  BUT  NOT  LIMITED
    3  TO,  HARDWARE,  SOFTWARE, FIRMWARE, PROGRAMS, SYSTEMS, NETWORKS, INFRAS-
    4  TRUCTURE,  MEDIA,  AND  RELATED MATERIAL USED TO AUTOMATICALLY AND ELEC-
    5  TRONICALLY COLLECT, RECEIVE, ACCESS, TRANSMIT, DISPLAY,  STORE,  RECORD,
    6  RETRIEVE,  ANALYZE,  EVALUATE,  PROCESS,  CLASSIFY,  MANIPULATE, MANAGE,
    7  ASSIMILATE, CONTROL, COMMUNICATE, EXCHANGE,  CONVERT,  CONVERGE,  INTER-
    8  FACE,  SWITCH,  OR  DISSEMINATE  DATA  OF ANY KIND OR FORM. Goods may be
    9  either new or used.
   10    S 4. Paragraphs g and i of subdivision 2 of section 161 of  the  state
   11  finance  law, as added by chapter 83 of the laws of 1995, are amended to
   12  read as follows:
   13    g. Consult with and advise the commissioner on  strategic  INFORMATION
   14  technology  investments  that  will  facilitate electronic access to the
   15  terms and conditions of existing procurement  contracts,  promote  elec-
   16  tronic  commerce  including,  but  not  limited  to, payment to vendors,
   17  promote and enhance the efficiency of the procurement  of  products  and
   18  services  by  or  for state agencies and produce useful information that
   19  supports state procurement operations, management, analysis and decision
   20  making including, but not limited to, data concerning the status and use
   21  of procurement contracts and the number and type of contracts and  award
   22  recipients;
   23    i. Establish and, from time to time, amend guidelines for the procure-
   24  ment  of  services  and  INFORMATION  technology  in accordance with the
   25  provisions of this article. Such guidelines shall ensure  the  wise  and
   26  prudent use of public money in the best interest of the taxpayers of the
   27  state;  guard  against favoritism, improvidence, extravagance, fraud and
   28  corruption; and ensure that service contracts are awarded on  the  basis
   29  of  best  value,  including, but not limited to, the following criteria:
   30  quality, cost, and efficiency;
   31    S 5. Paragraph k of subdivision 1 and subdivisions 6 and 7 of  section
   32  163  of  the state finance law, paragraph k of subdivision 1 as added by
   33  section 36 of part L of chapter 55 of the laws of 2012, subdivision 6 as
   34  amended by section 1 of part P of chapter 55 of the  laws  of  2013  and
   35  subdivision  7  as  amended by section 10 of part L of chapter 55 of the
   36  laws of 2012, are amended to read as follows:
   37    k. "Authorized user" or "non-state agency  purchaser"  means  (i)  any
   38  officer,  body or agency of the state or of a political subdivision or a
   39  district therein, or fire company or volunteer ambulance service as such
   40  are defined in section one hundred of the general municipal law, to make
   41  purchases of commodities, services and  INFORMATION  technology  through
   42  the  office  of general services' centralized contracts, pursuant to the
   43  provisions of section one hundred four of  the  general  municipal  law;
   44  (ii) any county extension service association as authorized under subdi-
   45  vision eight of section two hundred twenty-four of the county law; (iii)
   46  any  association  or other entity as specified in and in accordance with
   47  section one hundred nine-a of the general municipal law; (iv) any  asso-
   48  ciation, consortium or group of privately owned or municipal, federal or
   49  state owned or operated hospitals, medical schools, other health related
   50  facilities  or  voluntary  ambulance services, which have entered into a
   51  contract and made mutual arrangements for the joint purchase of  commod-
   52  ities,  services  and INFORMATION technology pursuant to section twenty-
   53  eight hundred three-a of the public health law; (v) any institution  for
   54  the  instruction of the deaf or of the blind listed in section forty-two
   55  hundred one of the education law; (vi) any  qualified  non-profit-making
   56  agency for the blind approved by the commissioner of the office of chil-
       S. 5713                             5
    1  dren  and  family  services  or  the  office of temporary and disability
    2  assistance; (vii) any qualified charitable non-profit-making agency  for
    3  the  severely disabled approved by the commissioner of education; (viii)
    4  any  hospital  or residential health care facility as defined in section
    5  twenty-eight hundred one of the public  health  law;  (ix)  any  private
    6  not-for-profit mental hygiene facility as defined in section 1.03 of the
    7  mental  hygiene  law;  (x) any public authority or public benefit corpo-
    8  ration of the state, including the port authority of New  York  and  New
    9  Jersey  and  the  interstate  environmental  commission; (xi) any public
   10  library,  association  library,  library  system,  cooperative   library
   11  system, the New York Library Association, and the New York State Associ-
   12  ation  of  Library  Boards  or  any other library except those which are
   13  operated by for profit entities; (xii) any other association  or  entity
   14  as  specified  in  state law, to make purchases of commodities, services
   15  and INFORMATION technology  through  the  office  of  general  services'
   16  centralized contracts. Such qualified non-profit-making agencies for the
   17  blind  and  severely  disabled  may make purchases from the correctional
   18  industries program of the department of corrections and community super-
   19  vision subject to rules pursuant to the correction law.
   20    6. Discretionary buying thresholds. Pursuant to guidelines established
   21  by the state procurement council: the commissioner may purchase services
   22  and commodities in an amount not exceeding eighty-five thousand  dollars
   23  without  a  formal  competitive  process;  state  agencies  may purchase
   24  services and commodities in  an  amount  not  exceeding  fifty  thousand
   25  dollars  without  a  formal  competitive process; and state agencies may
   26  purchase commodities or services from small business concerns  or  those
   27  certified pursuant to article fifteen-A of the executive law, or commod-
   28  ities  or INFORMATION technology that are recycled or remanufactured, or
   29  commodities that are food, including  milk  and  milk  products,  grown,
   30  produced  or  harvested in New York state in an amount not exceeding two
   31  hundred thousand dollars without a formal competitive process.
   32    7. Method of procurement. Consistent with the requirements of subdivi-
   33  sions three and four of this section, state agencies shall select  among
   34  permissible  methods  of  procurement  including, but not limited to, an
   35  invitation for bid, request for proposals or other means of solicitation
   36  pursuant to guidelines issued by the state  procurement  council.  State
   37  agencies  may  accept  bids  electronically  including submission of the
   38  statement of non-collusion required by section one hundred thirty-nine-d
   39  of this chapter and, starting April  first,  two  thousand  twelve,  and
   40  ending  March  thirty-first,  two  thousand fifteen, may, for commodity,
   41  service  and  INFORMATION  technology   contracts   require   electronic
   42  submission  as the sole method for the submission of bids for the solic-
   43  itation. State agencies shall undertake no more  than  eighty-five  such
   44  electronic  bid  solicitations, none of which shall be reverse auctions,
   45  prior to April first, two thousand fifteen. In addition, state  agencies
   46  may  conduct  up  to  twenty  reverse auctions through electronic means,
   47  prior to April first, two thousand fifteen. Prior to requiring the elec-
   48  tronic submission of bids, the agency shall make a determination,  which
   49  shall   be   documented  in  the  procurement  record,  that  electronic
   50  submission affords a fair and equal opportunity for offerers  to  submit
   51  responsive  offers.  Within thirty days of the completion of the eighty-
   52  fifth electronic bid solicitation,  or  by  April  first,  two  thousand
   53  fifteen,  whichever  is earlier, the commissioner shall prepare a report
   54  assessing the use of electronic  submissions  and  make  recommendations
   55  regarding  future  use  of  this procurement method. In addition, within
   56  thirty days of the completion of the twentieth reverse  auction  through
       S. 5713                             6
    1  electronic  means, or by April first, two thousand fifteen, whichever is
    2  earlier, the commissioner shall prepare a report assessing  the  use  of
    3  reverse  auctions  through  electronic  means  and  make recommendations
    4  regarding  future  use of this procurement method. Such reports shall be
    5  published on the website of the office of general services. Except where
    6  otherwise provided by law, procurements shall be competitive, and  state
    7  agencies  shall  conduct  formal competitive procurements to the maximum
    8  extent practicable. State agencies shall document the  determination  of
    9  the  method  of  procurement  and  the basis of award in the procurement
   10  record. Where the basis for award is the best  value  offer,  the  state
   11  agency  shall  document, in the procurement record and in advance of the
   12  initial receipt of offers, the determination of the evaluation criteria,
   13  which whenever possible, shall be quantifiable, and the  process  to  be
   14  used  in  the  determination  of  best value and the manner in which the
   15  evaluation process and selection shall be conducted.
   16    S 6. Paragraph (a) of subdivision  2  of  section  112  of  the  state
   17  finance  law,  as  amended  by section 18 of part L of chapter 55 of the
   18  laws of 2012, is amended to read as follows:
   19    (a) Before any contract made for or by any state  agency,  department,
   20  board, officer, commission, or institution, except the office of general
   21  services,  shall be executed or become effective, whenever such contract
   22  exceeds fifty thousand dollars in amount and before  any  contract  made
   23  for  or  by  the  office of general services shall be executed or become
   24  effective, whenever such contract exceeds eighty-five  thousand  dollars
   25  in  amount,  it  shall first be approved by the comptroller and filed in
   26  his or her office, with the exception  of  contracts  established  as  a
   27  centralized  contract  through  the  office  of  general  services  [and
   28  purchase orders or other  procurement  transactions  issued  under  such
   29  centralized  contracts]  THAT  WERE  NOT AWARDED PURSUANT TO SUBDIVISION
   30  SIXTEEN OF SECTION ONE HUNDRED SIXTY-THREE OF THIS CHAPTER.   The  comp-
   31  troller  shall  make  a  final  written  determination  with  respect to
   32  approval of such contract within ninety days of the submission  of  such
   33  contract  to  his  or her office unless the comptroller shall notify, in
   34  writing, the state agency, department, board,  officer,  commission,  or
   35  institution,  prior  to the expiration of the ninety day period, and for
   36  good cause, of the need for an extension of not more than fifteen  days,
   37  or  a  reasonable period of time agreed to by such state agency, depart-
   38  ment, board, officer, commission, or institution and provided,  further,
   39  that  such  written determination or extension shall be made part of the
   40  procurement record pursuant to paragraph f of subdivision one of section
   41  one hundred sixty-three of this chapter.
   42    S 7. Section 163 of the state finance law is amended by adding  a  new
   43  subdivision 16 to read as follows:
   44    16.  ALTERNATIVE  PROCUREMENT  METHODS FOR THE ACQUISITION OF NON-CON-
   45  STRUCTION RELATED COMMODITIES AND SERVICES, OR  INFORMATION  TECHNOLOGY.
   46  A.  WHEN THE COMMISSIONER OR A STATE AGENCY DETERMINES THAT IT IS IN THE
   47  BEST INTEREST OF THE STATE TO DEVELOP A PROCUREMENT METHOD  NOT  AUTHOR-
   48  IZED  BY  THIS  SECTION  FOR  NON-CONSTRUCTION  RELATED  COMMODITIES AND
   49  SERVICES, OR INFORMATION TECHNOLOGY, THE COMMISSIONER OR STATE AGENCY IS
   50  HEREBY AUTHORIZED TO DEVELOP AND USE SUCH METHOD FOR A SPECIFIC CONTRACT
   51  AWARD. SUCH DETERMINATION SHALL BE MADE IN  WRITING  AND  SHALL  INCLUDE
   52  DOCUMENTATION  FOR THE PROCUREMENT RECORD THAT SUCH ALTERNATIVE PROCURE-
   53  MENT METHOD: (I) WOULD SERVE THE INTEREST OF THE STATE BETTER THAN OTHER
   54  METHODS CURRENTLY AVAILABLE UNDER THIS SECTION; (II) CAN BE APPLIED ON A
   55  COMPETITIVE, FAIR AND EQUITABLE BASIS; AND (III) CONTAINS AN APPROPRIATE
   56  EVALUATION METHODOLOGY THAT CONSIDERS BOTH COST AND  QUALITATIVE  EVALU-
       S. 5713                             7
    1  ATION  FACTORS.  SUCH ALTERNATIVE PROCUREMENT METHOD SHALL BE SUBJECT TO
    2  ALL OTHER APPLICABLE PROVISIONS OF THIS SECTION. THE COMMISSIONER  OR  A
    3  STATE  AGENCY  MAY NOT UNDERTAKE AN ALTERNATIVE PROCUREMENT METHOD UNTIL
    4  THE COMPTROLLER HAS DETERMINED THAT THE PROPOSED ALTERNATIVE PROCUREMENT
    5  METHOD IS IN THE BEST INTEREST OF THE STATE; CAN BE APPLIED ON A COMPET-
    6  ITIVE,  FAIR AND EQUITABLE BASIS; AND UTILIZES AN APPROPRIATE EVALUATION
    7  METHODOLOGY THAT CONSIDERS BOTH COST AND QUALITATIVE EVALUATION FACTORS.
    8    B. WHEN USING AN ALTERNATIVE PROCUREMENT  METHOD  AUTHORIZED  BY  THIS
    9  SUBDIVISION,  THE  COMMISSIONER OR AGENCY SHALL INCLUDE IN ITS SOLICITA-
   10  TION A DETAILED DESCRIPTION OF THE PROPOSED METHOD OF AWARD. IN  ADVANCE
   11  OF  THE  INITIAL  RECEIPT  OF  OFFERS OR BIDS, THE COMMISSIONER OR STATE
   12  AGENCY SHALL DETERMINE AND DOCUMENT IN THE PROCUREMENT RECORD THE EVALU-
   13  ATION CRITERIA AND PROCESS TO  BE  USED  IN  THE  DETERMINATION  OF  THE
   14  SPECIFIC  CONTRACT  AWARD  AND  THE  PROCESS BY WHICH THE EVALUATION AND
   15  SELECTION SHALL BE CONDUCTED. IN ADDITION TO THE REQUIREMENTS SET  FORTH
   16  IN  PARAGRAPH  G  OF  SUBDIVISION  NINE OF THIS SECTION, THE PROCUREMENT
   17  RECORD SHALL DOCUMENT THE BASIS UPON WHICH  THE  AGENCY  HAS  DETERMINED
   18  THAT  POTENTIAL VENDORS WILL BE ABLE TO RESPOND WITH VIABLE BIDS TO SUCH
   19  ALTERNATIVE PROCUREMENT.
   20    C. NOTWITHSTANDING THE PROVISIONS OF SUBDIVISION FIVE OF SECTION THREE
   21  HUNDRED FIFTY-FIVE OF THE EDUCATION  LAW  TO  THE  CONTRARY  OR  SECTION
   22  SIXTY-TWO  HUNDRED  EIGHTEEN  OF  THE EDUCATION LAW, BEFORE ANY CONTRACT
   23  AWARDED UNDER THIS SECTION  WHICH  EXCEEDS  FIFTY  THOUSAND  DOLLARS  IN
   24  AMOUNT  BECOMES  EFFECTIVE  IT  MUST  BE APPROVED BY THE COMPTROLLER AND
   25  FILED IN HIS OR HER OFFICE.
   26    D. FOR EACH PROCUREMENT AWARDED PURSUANT TO THIS SECTION, THE  COMMIS-
   27  SIONER OR STATE AGENCY SHALL SUBMIT TO THE GOVERNOR, THE COMPTROLLER AND
   28  THE  HEADS  OF THE FISCAL COMMITTEES OF EACH HOUSE OF THE STATE LEGISLA-
   29  TURE NO LATER THAN THE MID-POINT OF THE INITIAL TERM  OF  THE  RESULTANT
   30  CONTRACT  A  REPORT ASSESSING THE VALIDITY OF THE PROCUREMENT METHOD AND
   31  COMPARING  ITS  RESULTS  TO  PROCUREMENT  METHODS  FOR  COMMODITIES  AND
   32  SERVICES OR INFORMATION TECHNOLOGY.
   33    S  8.  Section 163 of the state finance law is amended by adding a new
   34  subdivision 17 to read as follows:
   35    17. COMPETITIVE NEGOTIATION. A. WHERE THE BASIS OF AWARD IS BEST VALUE
   36  AND AFTER COMPLETING AN INITIAL EVALUATION AND SCORING, A  STATE  AGENCY
   37  MAY CHOOSE TO EITHER MAKE AN AWARD TO THE BEST VALUE OFFERER PURSUANT TO
   38  SUBDIVISION  FOUR  OF THIS SECTION OR UNDERTAKE COMPETITIVE NEGOTIATIONS
   39  WITH ALL  OFFERERS  OF  PROPOSALS  SUSCEPTIBLE  OF  BEING  SELECTED  FOR
   40  CONTRACT AWARD, SO LONG AS THE AGENCY RESERVES THE RIGHT TO CONDUCT SUCH
   41  COMPETITIVE NEGOTIATIONS IN THE SOLICITATION.  THE NEGOTIATIONS SHALL BE
   42  CONDUCTED AS PROVIDED IN PARAGRAPH D OF THIS SUBDIVISION.
   43    B. COMPETITIVE NEGOTIATION MAY ONLY BE USED WHERE:
   44    (I) AT LEAST TWO OFFERERS ARE DEEMED SUSCEPTIBLE OF BEING SELECTED FOR
   45  CONTRACT AWARD;
   46    (II)  IN THE EVENT THAT THE SOLICITATION INCLUDES OPTIONAL COMPONENTS,
   47  THE SOLICITATION SHALL REQUIRE ALL OFFERERS TO PROVIDE  A  PROPOSAL  FOR
   48  ALL OPTIONS OR OTHERWISE BE DEEMED NONRESPONSIVE; AND
   49    (III)  THE  AGENCY  HAS DETERMINED THAT USE OF COMPETITIVE NEGOTIATION
   50  WILL MAXIMIZE THE AGENCY'S ABILITY TO OBTAIN BEST VALUE,  BASED  ON  THE
   51  AGENCY'S NEED AND THE SPECIFICATIONS SET FORTH IN THE SOLICITATION.
   52    C.  THE  AGENCY MUST DOCUMENT IN THE PROCUREMENT RECORD AND IN ADVANCE
   53  OF THE INITIAL RECEIPT OF OFFERS:
   54    (I) THE METHODOLOGY, WHICH  SHALL  BE  QUANTIFIABLE  AND  BASED  ON  A
   55  COMPARISON  OF  THE  PROPOSALS'  PRICE AND TECHNICAL MERIT, THAT WILL BE
       S. 5713                             8
    1  EMPLOYED TO ARRIVE AT A COMPETITIVE  RANGE  THAT  WILL  DETERMINE  WHICH
    2  PROPOSALS ARE TO BE CONSIDERED SUSCEPTIBLE TO AWARD; AND
    3    (II)  A  FAIR AND IMPARTIAL NEGOTIATION PROCEDURE, FORMULATED WITH THE
    4  GOAL OF ENSURING SUSTAINED COMPETITION UNTIL AN AWARD  IS  RENDERED  AND
    5  OBTAINING THE BEST VALUE FOR THE STATE.
    6    D.  THE  AGENCY  SHALL  CONDUCT  WRITTEN OR ORAL NEGOTIATIONS WITH ALL
    7  RESPONSIBLE OFFERERS WHO SUBMIT PROPOSALS IN THE COMPETITIVE  RANGE.  IN
    8  THE COURSE OF SUCH NEGOTIATIONS, THE AGENCY SHALL:
    9    (I)  ADVISE  THE OFFERER OF WAYS IN WHICH ITS PROPOSAL MAY BE IMPROVED
   10  SO THAT THE OFFERER IS GIVEN AN OPPORTUNITY TO BETTER MEET THE  AGENCY'S
   11  NEEDS;
   12    (II) CLARIFY ANY UNCERTAINTIES, AMBIGUITIES OR NON-MATERIAL DEVIATIONS
   13  IN THE PROPOSAL;
   14    (III)  ADVISE  THE OFFERER OF ANY TECHNICAL COMPONENTS IN ITS PROPOSAL
   15  THAT MAY NOT BE NECESSARY  TO  SATISFY  THE  AGENCY'S  REQUIREMENTS  AND
   16  REQUEST MODIFICATIONS AS APPROPRIATE;
   17    (IV)  PROVIDE THE OFFERER A REASONABLE OPPORTUNITY TO SUBMIT ANY COST,
   18  TECHNICAL OR OTHER REVISIONS TO ITS PROPOSAL IN RESPONSE TO ISSUES IDEN-
   19  TIFIED DURING NEGOTIATIONS; AND
   20    (V) DOCUMENT ANY ORAL NEGOTIATIONS FOR THE PROCUREMENT RECORD.
   21    E. NEGOTIATIONS MAY BE TAILORED TO EACH OFFERER'S  PROPOSAL  PROVIDED,
   22  HOWEVER,  SUCH  NEGOTIATIONS SHALL BE CONDUCTED WITH EACH OFFERER WITHIN
   23  THE COMPETITIVE RANGE  WITHOUT  DISCLOSING  INFORMATION  CONCERNING  ANY
   24  OTHER  OFFERERS' PROPOSALS OR THE EVALUATION PROCESS. NEGOTIATIONS SHALL
   25  CULMINATE IN A TECHNICAL SOLUTION FROM EACH OFFERER REMAINING WITHIN THE
   26  COMPETITIVE RANGE THAT IS DEEMED ACCEPTABLE TO MEET THE AGENCY'S NEED AS
   27  SET FORTH IN THE  SOLICITATION.  AFTER  DISCUSSION  OF  THESE  TECHNICAL
   28  SOLUTIONS  IS COMPLETED, THE AGENCY SHALL SOLICIT A BEST AND FINAL PRICE
   29  PROPOSAL FROM ALL OFFERERS WITHIN THE COMPETITIVE RANGE.  THE  BEST  AND
   30  FINAL  PRICE SOLICITATION SHALL ENSURE THAT ALL OFFERERS ARE AFFORDED AN
   31  EQUAL OPPORTUNITY TO RESPOND WITHIN A SPECIFIED PERIOD OF TIME.
   32    F. WHERE AN  AGENCY  CHOOSES  TO  UNDERTAKE  COMPETITIVE  NEGOTIATIONS
   33  INSTEAD  OF  MAKING  A  BEST VALUE AWARD AFTER AN INITIAL EVALUATION AND
   34  SCORING, THE FINAL AWARD SHALL BE MADE TO THE LOWEST RESPONSIBLE OFFERER
   35  AFTER RECEIVING A BEST AND FINAL PRICE ON A REVISED ACCEPTABLE PROPOSAL.
   36    S 9. Subdivision 9 of section 163 of the state finance law is  amended
   37  by adding a new paragraph c-1 to read as follows:
   38    C-1.  WHERE A STATE AGENCY DETERMINES THAT NON-MATERIAL CHANGES TO THE
   39  SPECIFICATIONS AS SET FORTH IN THE SOLICITATION WOULD  BE  IN  THE  BEST
   40  INTEREST  OF THE STATE AND, WHEN PROVIDED FOR IN THE SOLICITATION, STATE
   41  AGENCIES MAY REQUEST BEST AND FINAL OFFERS, WHICH SHALL  BE  IN  WRITING
   42  AND  SOLICITED  IN  THE  SAME  MANNER FROM ALL OFFERERS DETERMINED TO BE
   43  SUSCEPTIBLE OF BEING SELECTED FOR CONTRACT AWARD,  WITH  THE  INTENT  OF
   44  ALLOWING  AN OFFERER TO REVISE ITS COST; PROVIDED, HOWEVER, THAT A STATE
   45  AGENCY MAY NOT MAKE A MODIFICATION TO THE SOLICITATION IF SUCH MODIFICA-
   46  TION WOULD PREJUDICE  ANY  BIDDER  OR  POTENTIAL  BIDDER  AND,  PROVIDED
   47  FURTHER, THAT NO BEST AND FINAL OFFER MAY BE ACCEPTED OR CONSIDERED BY A
   48  STATE  AGENCY  UNLESS SUCH BEST AND FINAL OFFER IS SUBMITTED IN RESPONSE
   49  TO A REQUEST BY THE STATE AGENCY.
   50    S 9-a. Paragraph c of subdivision  9  of  section  163  of  the  state
   51  finance  law,  as amended by chapter 137 of the laws of 2008, is amended
   52  to read as follows:
   53    c. Where provided in the  solicitation,  state  agencies  may  require
   54  clarification  from offerers for purposes of assuring a full understand-
   55  ing of responsiveness to the solicitation requirements.  Where  provided
   56  for  in  the  solicitation, revisions may be permitted from all offerers
       S. 5713                             9
    1  determined to be susceptible of being selected for contract award, prior
    2  to award. Offerers shall be  accorded  fair  and  equal  treatment  with
    3  respect  to  their opportunity for discussion and revision of offers. [A
    4  state agency shall, upon request, provide a debriefing to any unsuccess-
    5  ful  offerer  that  responded to a request for proposal or an invitation
    6  for bids, regarding the reasons that the proposal or  bid  submitted  by
    7  the  unsuccessful offerer was not selected for an award. The opportunity
    8  for an unsuccessful offerer to seek a debriefing shall be stated in  the
    9  solicitation,  which  shall  provide  a reasonable time for requesting a
   10  debriefing.]
   11    S 9-b. Subdivision 9 of section  163  of  the  state  finance  law  is
   12  amended by adding a new paragraph h to read as follows:
   13    H. (I) WITHIN FIFTEEN DAYS OF THE SELECTION OF A SUCCESSFUL OFFEROR BY
   14  A STATE AGENCY AND PRIOR TO THE SUBMISSION FOR APPROVAL OF A CONTRACT TO
   15  THE  OFFICE  OF THE STATE COMPTROLLER IF THAT CONTRACT IS SUBJECT TO THE
   16  APPROVAL OF THE COMPTROLLER, ALL UNSUCCESSFUL OFFERORS SHALL BE  ADVISED
   17  IN  WRITING  OF  THE  COMPLETION OF THE SELECTION PROCESS AND THAT THEIR
   18  OFFER WAS NOT SELECTED FOR THIS AWARD. THIS NOTICE  SHALL  DISCLOSE  THE
   19  IDENTITY OF THE SUCCESSFUL OFFEROR.
   20    (II)  FOR  ANY  CONTRACT  ESTABLISHED AS A CENTRALIZED CONTRACT BY THE
   21  OFFICE OF GENERAL SERVICES, WITHIN FIFTEEN  DAYS  OF  SELECTION  OF  THE
   22  SUCCESSFUL  OFFEROR  BY THE OFFICE OF GENERAL SERVICES, ALL UNSUCCESSFUL
   23  OFFERORS SHALL BE ADVISED OF THE COMPLETION OF THE SELECTION PROCESS AND
   24  THAT THEIR OFFER WAS NOT SELECTED FOR AWARD. THIS NOTICE SHALL  DISCLOSE
   25  THE IDENTITY OF THE SUCCESSFUL OFFEROR.
   26    (III)  THE OPPORTUNITY FOR AN UNSUCCESSFUL OFFEROR THAT RESPONDED TO A
   27  REQUEST FOR PROPOSALS OR AN INVITATION FOR BIDS  TO  SEEK  A  DEBRIEFING
   28  SHALL  BE  STATED  IN  THE REQUEST FOR PROPOSALS OR INVITATION FOR BIDS,
   29  WHICH SHALL PROVIDE A REASONABLE TIME FOR REQUESTING A DEBRIEFING.
   30    (IV) THE STATE AGENCY, UPON THE  TIMELY  REQUEST  OF  AN  UNSUCCESSFUL
   31  OFFEROR,  SHALL  PROVIDE  A REASONABLE OPPORTUNITY FOR A DISCUSSION WITH
   32  AGENCY PERSONNEL WHO WERE INVOLVED IN AND ARE  KNOWLEDGEABLE  ABOUT  THE
   33  PROCUREMENT EVALUATION PROCESS. SUCH DEBRIEFING, SHALL INCLUDE, BUT NEED
   34  NOT BE LIMITED TO: (A) THE REASONS THAT THE PROPOSAL OR BID SUBMITTED BY
   35  THE UNSUCCESSFUL OFFEROR WAS NOT SELECTED FOR AWARD; (B) THE QUALITATIVE
   36  AND  QUANTITATIVE ANALYSIS EMPLOYED BY THE AGENCY IN ASSESSING THE RELA-
   37  TIVE MERITS OF THE OFFERS; (C) THE APPLICATION OF EACH OF THE  SELECTION
   38  CRITERIA  TO  THE  UNSUCCESSFUL  OFFEROR'S  PROPOSAL OR BID; AND (D) THE
   39  REASONS FOR THE SELECTION OF THE WINNING PROPOSAL OR BID. SUCH PERSONNEL
   40  SHALL ALSO PROVIDE, TO THE EXTENT PRACTICABLE, ADVICE  AND  GUIDANCE  TO
   41  THE  UNSUCCESSFUL  OFFEROR  CONCERNING METHODS OF IMPROVING PROPOSALS OR
   42  BIDS BY SUCH OFFEROR.
   43    S 10. Subdivision 7 of section  162  of  the  state  finance  law,  as
   44  amended  by  chapter  426  of  the  laws  of 2002, is amended to read as
   45  follows:
   46    7. Partnering with preferred sources. The commissioner of  the  appro-
   47  priate appointing agency as identified in paragraph e of subdivision six
   48  of  this  section,  shall  conduct  one  or more pilot studies whereby a
   49  private vendor may be accorded preferred source status for  purposes  of
   50  this  section. The pilot studies shall seek to ascertain the benefits of
   51  partnerships  between  private  industry  and  those  entities  accorded
   52  preferred  source  status as specified in this section. Preferred source
   53  status under a partnering  arrangement  may  only  be  accorded  when  a
   54  proposal  to  a soliciting agency for commodities or services includes a
   55  binding agreement with one or more of the  entities  accorded  preferred
   56  source status under this section AND WHERE AT LEAST FIFTY PERCENT OF ALL
       S. 5713                            10
    1  LABOR INVOLVED IN DELIVERING SERVICES OR COMMODITIES TO THE STATE BY THE
    2  PRIVATE  VENDOR  IS  BEING  PROVIDED  DIRECTLY BY THE INDIVIDUALS OF THE
    3  CLASS OF PREFERRED SOURCE INCLUDING, BUT NOT LIMITED  TO,  INMATES,  THE
    4  DISABLED,  VETERANS  AND  THE  BLIND.  PRIVATE  VENDOR OPPORTUNITIES FOR
    5  PREFERRED SOURCES SHALL BE COMPETITIVELY  AWARDED  AND  THE  PROCUREMENT
    6  SUMMARY,  VENDOR  RESPONSIBILITY SUMMARY AND CONTRACT AGREEMENT SHALL BE
    7  BROUGHT BEFORE THE PROCUREMENT COUNCIL FOR REVIEW. THE STATE  SHALL  NOT
    8  ACCESS  THE  SERVICES  OF  SUCH  PRIVATE VENDOR UNLESS A MAJORITY OF THE
    9  COUNCIL APPROVES. The binding agreement shall provide that:
   10    (i) The preferred source shall perform the majority of the work neces-
   11  sary to such offering, and
   12    (ii) The partnering proposal includes bona fide long  term  employment
   13  opportunities for persons who could otherwise be new clients of an enti-
   14  ty previously accorded preferred source status herein, and
   15    (iii) The partnering proposal offers the solicited services or commod-
   16  ities  at a price less than the price that otherwise would be charged by
   17  a preferred source.
   18    S 11. Paragraph b of subdivision 3 of section 162 of the state finance
   19  law, as amended by section 164 of subpart B of part C of chapter  62  of
   20  the laws of 2011, is amended to read as follows:
   21    b. After January first, nineteen hundred ninety-six, upon the applica-
   22  tion  of  the commissioner of corrections and community supervision, the
   23  commissioner of the office of children and family services,  the  office
   24  of  temporary  and  disability  assistance,  the  commissioner of mental
   25  health or the commissioner of education, or a non-profit-making  facili-
   26  tating  agency  designated  by one of the said commissioners pursuant to
   27  paragraph e of subdivision six of this section,  the  state  procurement
   28  council  may  recommend  that  the  commissioner: (i) add commodities or
   29  services to, or (ii) in order to insure that such list reflects  current
   30  production  and/or  availability  of commodities and services, delete at
   31  the request of a preferred source, commodities  or  services  from,  the
   32  list  established  by  paragraph  a of this subdivision. The council may
   33  make a non-binding recommendation to the relevant  preferred  source  to
   34  delete a commodity or service from such list. Additions may be made only
   35  for new services or commodities, or for services or commodities that are
   36  substantially  different  from  those  reflected  on  said list for that
   37  provider. The decision to recommend the addition of services or  commod-
   38  ities  shall be based upon a review of relevant factors as determined by
   39  the council including costs and benefits to be derived from  such  addi-
   40  tion  and  shall  include  an analysis by the office of general services
   41  conducted pursuant to subdivision six of this section; PROVIDED,  HOWEV-
   42  ER, THAT THE PROCUREMENT COUNCIL SHALL NOT RECOMMEND TO THE COMMISSIONER
   43  ANY  APPLICATION  THAT  DOES  NOT  INCLUDE AT LEAST FIFTY PERCENT OF ALL
   44  LABOR INVOLVED IN DELIVERING SERVICES OR COMMODITIES TO THE STATE  BEING
   45  PROVIDED  DIRECTLY  BY  THE INDIVIDUALS OF THE CLASS OF PREFERRED SOURCE
   46  INCLUDING, BUT NOT LIMITED TO, INMATES, THE DISABLED, VETERANS  AND  THE
   47  BLIND.  Unless the state procurement council shall make a recommendation
   48  to the commissioner on any such application within  one  hundred  twenty
   49  days  of  receipt thereof, such application shall be deemed recommended.
   50  In the event that the state procurement  council  shall  deny  any  such
   51  application,  the commissioner or non-profit-making agency which submit-
   52  ted such application may, within thirty days of such denial, appeal such
   53  denial to the commissioner of general  services  who  shall  review  all
   54  materials  submitted  to  the  state procurement council with respect to
   55  such application and who may request such further information or materi-
   56  al as is deemed necessary. Within sixty days of receipt of all  informa-
       S. 5713                            11
    1  tion  or  materials  deemed  necessary,  the commissioner shall render a
    2  written final decision on the application which shall  be  binding  upon
    3  the applicant and upon the state procurement council.
    4    S  12.  Subdivisions  1 and 2 of section 137 of the state finance law,
    5  subdivision 1 as separately amended by section 17 of part MM of  chapter
    6  57  and  chapter 619 of the laws of 2008 and subdivision 2 as amended by
    7  chapter 137 of the laws of 1985, are amended to read as follows:
    8    1. (A) In addition to other bond or bonds, if any, required by law for
    9  the completion of a work specified in a contract for the prosecution  of
   10  a  public improvement for the state of New York a municipal corporation,
   11  a public benefit corporation or a commission appointed pursuant to  law,
   12  or  in  the  absence of any such requirement, the comptroller may or the
   13  other appropriate official,  respectively,  shall  nevertheless  require
   14  prior  to  the  approval of any such contract a bond guaranteeing prompt
   15  payment of moneys due to all persons furnishing labor  or  materials  to
   16  the  contractor  or  any  subcontractors  in the prosecution of the work
   17  provided for in such contract. Whenever a municipal corporation issues a
   18  permit subject to compliance with section  two  hundred  twenty  of  the
   19  labor law, such permittee or its contractor or subcontractors furnishing
   20  workers  shall  post  a payment bond subject to this section. [Provided,
   21  however, that]
   22    (B) NOTWITHSTANDING THE PROVISIONS OF PARAGRAPH A OF THIS SUBDIVISION,
   23  all performance bonds and payment bonds may, at the  discretion  of  the
   24  head  of  the state agency, public benefit corporation or commission, or
   25  his or her designee, be dispensed with for  the  completion  of  a  work
   26  specified  in a contract for the prosecution of a public improvement for
   27  the state of New York for which bids are solicited where  the  aggregate
   28  amount  of  the  contract  is  under [one] FIVE hundred thousand dollars
   29  [and]; provided [further], that in a case  where  the  contract  is  not
   30  subject  to  the  multiple  contract  award  requirements of section one
   31  hundred thirty-five of this article, such requirements may be  dispensed
   32  with  where  the head of the state agency, public benefit corporation or
   33  commission finds it to be in the public interest and where the aggregate
   34  amount of the contract awarded or to be awarded is less than two hundred
   35  thousand dollars. Provided further, that in a case where  a  performance
   36  or  payment  bond  is  dispensed with, twenty per centum may be retained
   37  from each progress payment or estimate until the  entire  contract  work
   38  has  been  completed  and  accepted, at which time the head of the state
   39  agency, public benefit corporation  or  commission  shall,  pending  the
   40  payment of the final estimate, pay not to exceed seventy-five per centum
   41  of  the amount of the retained percentage.  THE PROVISIONS OF THIS PARA-
   42  GRAPH SHALL NOT APPLY TO ANY PERFORMANCE BONDS  REQUIRED  IN  CONNECTION
   43  WITH  A MAJOR INSTALLATION PURSUANT TO PARAGRAPH D OF SUBDIVISION TEN OF
   44  SECTION ONE HUNDRED SIXTY-THREE OF THIS CHAPTER.   FOR THE  PURPOSES  OF
   45  THIS  PARAGRAPH  "MAJOR  INSTALLATION"  SHALL  HAVE  THE SAME MEANING AS
   46  PROVIDED IN SECTION ONE HUNDRED SIXTY-THREE OF THIS CHAPTER.
   47    2. A copy of such payment bond shall be kept in the office of the head
   48  of the department or bureau having charge of the public  improvement  in
   49  connection  with  which the bond was given and a copy shall also be kept
   50  in the office of the comptroller [or other appropriate  official];  such
   51  copies shall be open to public inspection.
   52    S 13. Subdivision 1 of section 163 of the state finance law is amended
   53  by adding a new paragraph l to read as follows:
   54    L.   "MAJOR   INSTALLATION"   MEANS  ANY  PROJECT  REQUIRING  BUILDING
   55  CONSTRUCTION OR SITE WORK OR AN INSTALLATION WHERE THE  TOTAL  CHARACTER
   56  OF  THE  WORK  IS NOT CONSTRUCTION BUT INSTEAD THE PURCHASE, PURSUANT TO
       S. 5713                            12
    1  THIS SECTION, AND INSTALLATION OF A LARGE PIECE OF EQUIPMENT  WHERE  THE
    2  VALUE OF SUCH PURCHASE IS ONE MILLION DOLLARS OR MORE.
    3    S  14.  Paragraph  d  of  subdivision  10  of section 163 of the state
    4  finance law, as added by chapter 83 of the laws of 1995, is  amended  to
    5  read as follows:
    6    d.  It  shall be in the discretion of the commissioner or state agency
    7  to require a bond or other guarantee of performance, and to approve  the
    8  amount,  form  and  sufficiency  thereof; PROVIDED, HOWEVER, THAT IN THE
    9  CASE OF A MAJOR INSTALLATION, SUCH  BOND  OR  GUARANTEE  OF  PERFORMANCE
   10  SHALL  BE  REQUIRED,  AND  THE  COMMISSIONER OR STATE AGENCY MAY, IN ITS
   11  DISCRETION, REQUIRE A BOND GUARANTEEING THE PROMPT PAYMENT OF MONEYS  AS
   12  SET FORTH IN PARAGRAPH A OF SUBDIVISION ONE OF SECTION ONE HUNDRED THIR-
   13  TY-SEVEN OF THIS CHAPTER.
   14    S  15.  Paragraph  e  of  subdivision  10  of section 163 of the state
   15  finance law, as amended by chapter 137 of the laws of 2008,  is  amended
   16  to read as follows:
   17    e. The commissioner may authorize purchases required by state agencies
   18  or other authorized purchasers by letting a contract pursuant to a writ-
   19  ten  agreement, or by approving the use of a contract let by any depart-
   20  ment, agency or instrumentality of the United States  government  and/or
   21  any department, agency, office, political subdivision or instrumentality
   22  of  any  state or states. A state agency purchaser shall document in the
   23  procurement record its rationale for the use of a contract  let  by  any
   24  department, agency or instrumentality of the United States government or
   25  any department, agency, office, political subdivision or instrumentality
   26  of any other state or states. Such rationale shall include, but need not
   27  be  limited to, a determination of need, a consideration of the procure-
   28  ment method by which the contract was awarded, an analysis  of  alterna-
   29  tive  procurement  sources  including  an  explanation why a competitive
   30  procurement or the use of a centralized contract let by the commissioner
   31  is not in the best interest of the  state,  and  the  reasonableness  of
   32  cost. THE AUTHORITY TO USE A CONTRACT LET BY ANOTHER GOVERNMENTAL ENTITY
   33  PURSUANT  TO  THIS  PARAGRAPH  IS INTENDED TO BENEFIT THE STATE BY USING
   34  CONTRACTS IN PLACE THAT PROVIDE FOR THE SAME SERVICE OR COMMODITY SOUGHT
   35  BY A STATE AGENCY AT A PRICE DETERMINED TO BE REASONABLE  BY  THE  STATE
   36  AGENCY.  SUCH  CONTRACTS  ARE NOT INTENDED TO BE USED PRIMARILY TO AVOID
   37  COMPETITIVE BIDDING. USE OF MULTIPLE AWARD CONTRACTS  PURSUANT  TO  THIS
   38  PARAGRAPH  SHALL  FOLLOW  THE SAME BASIS OF SELECTION AMONG THE MULTIPLE
   39  AWARDEES AS WAS PRESCRIBED  BY  THE  ORIGINAL  CONTRACTING  GOVERNMENTAL
   40  ENTITY.
   41    S  16.  Subdivision  15  of  section  163  of the state finance law is
   42  amended by adding a new paragraph d to read as follows:
   43    D. IN ADDITION TO OTHER REPORTS  REQUIRED  BY  THIS  SUBDIVISION,  THE
   44  COMMISSIONER  OF  GENERAL SERVICES SHALL PREPARE A REPORT ON THE SAVINGS
   45  ACHIEVED FROM  ALL  CONTRACTS  ESTABLISHED  AS  A  CENTRALIZED  CONTRACT
   46  THROUGH  THE  OFFICE  OF  GENERAL SERVICES PURSUANT TO THIS SECTION, THE
   47  IMPACT  OF  SUCH  CONTRACTS  ON  SMALL,  MINORITY  AND  WOMEN-OWNED  AND
   48  SERVICE-DISABLED  VETERAN-OWNED BUSINESS ENTERPRISES, AND THE EFFECTIVE-
   49  NESS OF SUCH CONTRACTS IN FULFILLING THE PURCHASING NEEDS OF ALL AUTHOR-
   50  IZED USERS OF SUCH CONTRACTS.  SUCH REPORT SHALL BE  SUBMITTED  BY  SUCH
   51  COMMISSIONER  TO  THE  GOVERNOR, THE STATE COMPTROLLER, AND THE HEADS OF
   52  THE FISCAL COMMITTEES OF EACH HOUSE OF THE STATE  LEGISLATURE  NO  LATER
   53  THAN JANUARY FIFTEENTH, TWO THOUSAND SIXTEEN, AND THEREAFTER ANNUALLY ON
   54  OR BEFORE SUCH DATE.
       S. 5713                            13
    1    S  17.  Subdivision  3  of  section  112  of the state finance law, as
    2  amended by chapter 319 of the laws  of  1992,  is  amended  to  read  as
    3  follows:
    4    3.  A  contract  or  other  instrument wherein the state or any of its
    5  officers, agencies, boards or commissions agrees to give a consideration
    6  other than the payment of money, when the value or reasonably  estimated
    7  value  of such consideration exceeds [ten] TWENTY-FIVE thousand dollars,
    8  shall not become a valid enforceable contract unless  such  contract  or
    9  other instrument shall first be approved by the comptroller and filed in
   10  his office. FOR PURPOSES OF THIS SUBDIVISION, WHERE CONSIDERATION CANNOT
   11  BE DETERMINED IN TERMS OF MONETARY VALUE, IT SHALL BE VALUED IN TERMS OF
   12  INTRINSIC VALUE.
   13    S  18.  Section  350  of  the education law is amended by adding a new
   14  subdivision 14 to read as follows:
   15    14.  "CONSTRUCTION   RELATED   SERVICES"   MEANS   STUDIES,   SURVEYS,
   16  CONSTRUCTION MANAGEMENT, CONSTRUCTION INSPECTION, EXCAVATION AND SIMILAR
   17  EFFORTS ASSOCIATED WITH CONSTRUCTION OR THE ACQUISITION OF PUBLIC WORKS.
   18    S  19.  This  act  shall  take  effect immediately; provided, however,
   19  section two of this act shall take effect on the one  hundred  eightieth
   20  day  after  it shall have become a law; provided, further, however, that
   21  the provisions of  sections  one,  five,  seven,  eight,  nine,  nine-a,
   22  nine-b,  thirteen, fourteen, fifteen and sixteen of this act shall apply
   23  to any procurement initiated on or after such  date;  provided,  further
   24  however,  that  the  amendments  to section 163 of the state finance law
   25  made by sections one, five, seven, eight, nine,  nine-a,  nine-b,  thir-
   26  teen,  fourteen,  fifteen  and  sixteen of this act shall not affect the
   27  repeal of such section as provided in subdivision 5 of  section  362  of
   28  chapter 83 of the laws of 1995, as amended, and shall be deemed repealed
   29  therewith.