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OGS Procurement Services Group 2008 State Purchasing Forum State Finance Law OGS Procurement Services Group 2008 State Purchasing Forum State Finance Law

Presenter’s Contact Information Noreen J. Van. Doren Assistant Counsel Office of General Services n. Presenter’s Contact Information Noreen J. Van. Doren Assistant Counsel Office of General Services n. [email protected] state. ny. us (518) 474 -5607 OGS Website: www. ogs. state. ny. us 2008 Purchasing Forum – State Finance Law

e iv ut c xe aw E L Uniform Commercial Code State Finance Law e iv ut c xe aw E L Uniform Commercial Code State Finance Law Case Law CONTRACT t en em il ur nc es oc u lin Pr Co de ui G Regulations l ra. g. de (e al Fe s ctu y, aw lle ert ) L te p m In ro eco P el T 2008 Purchasing Forum – State Finance Law

Overview State Finance Law Article 11 Governs the process for State agency acquisition of: Overview State Finance Law Article 11 Governs the process for State agency acquisition of: Commodities Services Technology 2008 Purchasing Forum – State Finance Law

Procurement Stewardship Act Underlying Principles and Legislative Findings Responsibility of OGS and State Agencies Procurement Stewardship Act Underlying Principles and Legislative Findings Responsibility of OGS and State Agencies in cooperation with OSC and DOB to: • Provide for the wise and prudent use of public money in the best interests of the taxpayers of the state; • Guard against favoritism, improvidence, extravagance, fraud & corruption; and • Facilitate the efficient and timely acquisition of commodities and services of the highest quality at the lowest practicable cost within available resources. 2008 Purchasing Forum – State Finance Law

Government Procurement & Competitive Bidding Comprehensive Statutory Scheme Procurement Stewardship Act Article XI – Government Procurement & Competitive Bidding Comprehensive Statutory Scheme Procurement Stewardship Act Article XI – State Purchasing Section 160 Definitions 161 State Procurement Council 162 Preferred Sources 2008 Purchasing Forum – State Finance Law

Government Procurement & Competitive Bidding Section 163 Purchasing services and commodities (Sunset: 163 -a Government Procurement & Competitive Bidding Section 163 Purchasing services and commodities (Sunset: 163 -a Vendor preparation of specifications for technology procurements; prohibitions 163 - b Environmentally-sensitive cleaning and maintenance products 164 Exemptions 6/30/08) 2008 Purchasing Forum – State Finance Law

Government Procurement & Competitive Bidding Section 165 Purchasing restrictions 166 Requirements for financed equipment Government Procurement & Competitive Bidding Section 165 Purchasing restrictions 166 Requirements for financed equipment acquisition 167 Transfer and disposal of personal property 168 The management of surplus computer equipment 2008 Purchasing Forum – State Finance Law

New York State Procurement Council The New York State Procurement Council was established through New York State Procurement Council The New York State Procurement Council was established through the passage of State Finance Law Section 161. The Council’s purpose is to review, examine and develop improvements to the state’s procurement process. 2008 Purchasing Forum – State Finance Law

New York State Procurement Council Procurement Guidelines Detailed guidance to State agencies on how New York State Procurement Council Procurement Guidelines Detailed guidance to State agencies on how to conduct procurements • Summarizes the multiple approaches to buy • Provide guidance for successful procurements • Provides details on various purchasing methods • Provides examples of good procurement practices (Currently under revision) 2008 Purchasing Forum – State Finance Law

Government Procurement & Competitive Bidding Definitions - State Finance Law § 160 • Commodity Government Procurement & Competitive Bidding Definitions - State Finance Law § 160 • Commodity • Service • Technology • Costs • Price Provides a foundation of commonly understood concepts to apply within public procurement infrastructure 2008 Purchasing Forum – State Finance Law

Government Procurement & Competitive Bidding Invitations for Bids (IFBs) • Competitive Bidding Methodology • Government Procurement & Competitive Bidding Invitations for Bids (IFBs) • Competitive Bidding Methodology • Primarily used for procurement of commodities • Basis for Contract Award - Meet specifications - Lowest price 2008 Purchasing Forum – State Finance Law

Government Procurement & Competitive Bidding Request for Proposals (RFPs) • Competitive Solicitation Methodology • Government Procurement & Competitive Bidding Request for Proposals (RFPs) • Competitive Solicitation Methodology • Primarily used for procurement of services and technology • Basis for Award - Pre-established evaluation criteria where cost is not necessarily the determining factor - “Best Value” to the purchaser is the determinative criteria (consider form, function and utility) 2008 Purchasing Forum – State Finance Law

Government Procurement & Competitive Bidding Best Value Documentation & Other Requirements Best Practices – Government Procurement & Competitive Bidding Best Value Documentation & Other Requirements Best Practices – Before You Solicit: • Document the intended basis for award (such as meeting mandatory requirements, “best value” or “lowest price”). • Determine the technical and financial evaluation criteria and relative weight. • Quantify criteria whenever possible, to optimize quality, cost and efficiency. • Determine and document the evaluation and selection process. 2008 Purchasing Forum – State Finance Law

Government Procurement & Competitive Bidding Main Distinction between IFB & RFP “Lowest Price” vs. Government Procurement & Competitive Bidding Main Distinction between IFB & RFP “Lowest Price” vs. “Best Value” [State Finance Law, § 163] 2008 Purchasing Forum – State Finance Law

Procurement Lobbying Act Before advertising the solicitation, remember: Section 139 -j Restrictions on contacts Procurement Lobbying Act Before advertising the solicitation, remember: Section 139 -j Restrictions on contacts during the procurement process Section 139 -k Disclosure of contacts and responsibility of offerers http: //www. ogs. state. ny. us/about. Ogs/regulation s/default. Advisory. Council. html 2008 Purchasing Forum – State Finance Law

Government Procurement & Competitive Bidding “Lowest Price” The basis for awarding contracts for commodities Government Procurement & Competitive Bidding “Lowest Price” The basis for awarding contracts for commodities among responsive and responsible offerors. [SFL§ 163(1)(i)] “Best Value” The basis for awarding contracts for services to the offeror which optimizes quality, cost and efficiency, among responsive and responsible offerors. Such basis shall reflect, wherever possible, objective and quantifiable analysis. Services include technology. [SFL§ 163(1)(j)] 2008 Purchasing Forum – State Finance Law

Government Procurement & Competitive Bidding Types of Contracts [State Finance Law § 163] • Government Procurement & Competitive Bidding Types of Contracts [State Finance Law § 163] • Centralized Contract • Agency Specific Contract • Preferred Sources • Emergency Contract • Single Source Contract • Sole Source Contract • Multiple Awards • Piggybacking (Adoption of Another Government Entity Contract) 2008 Purchasing Forum – State Finance Law

Government Procurement & Competitive Bidding Centralized Contracts Any contract for the purchase of commodities Government Procurement & Competitive Bidding Centralized Contracts Any contract for the purchase of commodities or services, established or approved by the Commissioner of General Services as meeting the State's requirements including, but not limited to, any contract let by the federal government, other state or local governments or purchasing consortia. [SFL§ 160(1)] 2008 Purchasing Forum – State Finance Law

Government Procurement & Competitive Bidding Examples of Centralized Contracts: • Vehicles & heavy equipment Government Procurement & Competitive Bidding Examples of Centralized Contracts: • Vehicles & heavy equipment • Pharmaceuticals & medical equipment • Electronic Value Transfer (credit cards)/procurement card • Fuel Oil, Gasoline, Road Salt • PCs • Rubbish Removal • Telecommunications Systems & Services 2008 Purchasing Forum – State Finance Law

Government Procurement & Competitive Bidding Agency Specific Contracts Specialized Requirements Needed to Meet Agency Government Procurement & Competitive Bidding Agency Specific Contracts Specialized Requirements Needed to Meet Agency Mission • Consultant Services • Prescription pads for DOH • Digital Fingerprinting Identification • Specialized Software • Entertainment Services 2008 Purchasing Forum – State Finance Law

Government Procurement & Competitive Bidding Preferred Sources “To advance special social and economic goals, Government Procurement & Competitive Bidding Preferred Sources “To advance special social and economic goals, selected providers shall have preferred source status…Procurement from these providers shall be exempted from competitive procurement provisions. ” [State Finance Law § 162] 2008 Purchasing Forum – State Finance Law

Government Procurement & Competitive Bidding Preferred Status • Correctional Services – Commodities • Agencies Government Procurement & Competitive Bidding Preferred Status • Correctional Services – Commodities • Agencies for the Blind – Commodities & Services • Agencies for the Severely Disabled • Special Employment for Mentally Ill • Disabled Veterans • Qualified Apparel Manufacturer September 11 th Registry (exp. 09/01/08) 2008 Purchasing Forum – State Finance Law

Government Procurement & Competitive Bidding • Public List of Commodities & Services • Approval Government Procurement & Competitive Bidding • Public List of Commodities & Services • Approval by Procurement Council • Price Approval – Not greater than 15% above Prevailing Market Price • Alternate Process for Procurements of Apparel & Textiles 2008 Purchasing Forum – State Finance Law

Government Procurement & Competitive Bidding Emergency Contracts Procurements may be made to meet emergencies Government Procurement & Competitive Bidding Emergency Contracts Procurements may be made to meet emergencies arising from unforeseen causes without using a formal competitive process. Such procurements shall be made only under unusual circumstances and shall include a determination in the procurement record of the nature of the emergency and that the procurement was conducted in a fair and equitable manner. [State Finance Law § 163(10(b))] 2008 Purchasing Forum – State Finance Law

Government Procurement & Competitive Bidding Single Source A procurement in which although two or Government Procurement & Competitive Bidding Single Source A procurement in which although two or more offerors can supply the required commodities or services, the Commissioner or State agency, upon written findings setting forth the material and substantial reasons therefore, may award the contract to one offeror over all others. 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. [State Finance Law § 163(1)(h)] 2008 Purchasing Forum – State Finance Law

Government Procurement & Competitive Bidding Sole Source means a procurement in which only one Government Procurement & Competitive Bidding Sole Source means a procurement in which only one offeror is capable of supplying the required commodities or services. [State Finance Law § 163(1)(g)] 2008 Purchasing Forum – State Finance Law

Government Procurement & Competitive Bidding Multiple Awards The Commissioner or State agency may elect Government Procurement & Competitive Bidding Multiple Awards The Commissioner or State agency may elect to award a contract to one or more responsive and responsible offerors 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. [State Finance Law § 163(10)(c)] 2008 Purchasing Forum – State Finance Law

Government Procurement & Competitive Bidding The Commissioner of General Services may authorize purchases required Government Procurement & Competitive Bidding The Commissioner of General Services may authorize purchases required by state agencies or authorized purchasers by letting a contract 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. [State Finance Law § 163(10)(e)] 2008 Purchasing Forum – State Finance Law

Government Procurement & Competitive Bidding The Commissioner of General Services is authorized to let Government Procurement & Competitive Bidding The Commissioner of General Services is authorized to let centralized contracts 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. [State Finance Law § 163(10)(f)] 2008 Purchasing Forum – State Finance Law

Government Procurement & Competitive Bidding Under this authority, the State can recognize and use Government Procurement & Competitive Bidding Under this authority, the State can recognize and use or be a part of contracts of other public purchasers. In most instances, these other government entities establish their agreements using competitive solicitations. This procurement methodology has proven to be a tool that provides a means to meet special requirements or to efficiently and economically meet the needs of State agencies and Authorized Users. 2008 Purchasing Forum – State Finance Law

Government Procurement & Competitive Bidding Note: These contracts and purchases also need to be Government Procurement & Competitive Bidding Note: These contracts and purchases also need to be supported by a procurement record and are subject to OSC approval. 2008 Purchasing Forum – State Finance Law

Government Procurement & Competitive Bidding • Piggybacking Agreements Have provided for imaging systems, landscape Government Procurement & Competitive Bidding • Piggybacking Agreements Have provided for imaging systems, landscape furniture, cellular telephone service and mission specific consultant services such as Year 2000 programming. • Joint Agreements Have provided for pharmaceuticals (Minnesota multi-state) and traffic cones (New England States and New York). 2008 Purchasing Forum – State Finance Law

Process for Conducting Procurements Before developing your own Solicitation, check to see if what Process for Conducting Procurements Before developing your own Solicitation, check to see if what you need can be obtained through: • A Preferred Source offering • An OGS Centralized Contract • Another Agency’s contract 2008 Purchasing Forum – State Finance Law

Process for Conducting Procurements Criteria for OGS Centralized Contracts: • Availability of a volume Process for Conducting Procurements Criteria for OGS Centralized Contracts: • Availability of a volume discount; • Prior use of the commodity among state agencies; • Relative cost of establishing the contract; • Anticipated use; and • Expected actual savings for the State. 2008 Purchasing Forum – State Finance Law

Process for Conducting Procurements Drafting & Issuing Agency Contracts IFB vs. RFP • NYS Process for Conducting Procurements Drafting & Issuing Agency Contracts IFB vs. RFP • NYS Contract Reporter Advertisement - Required if Contract Value Over $15, 000 [Article 4 C Economic Development Law] - Receipt of offers minimum of fifteen business days after notice published • Appendix A (Standard Clauses for State Contracts) 2008 Purchasing Forum – State Finance Law

Process for Conducting Procurements Drafting & Issuing the Document • Appendix B (OGS General Process for Conducting Procurements Drafting & Issuing the Document • Appendix B (OGS General Specifications for Procurement Contracts) • Non-Collusive Bidding Certificate [SFL § 139 -d] • Mac. Bride Certification [SFL § 165 (5)] • Procurement Lobbying Certification [SFL § 139 j & k] • Responsibility Questionnaire [SFL § 163 (9)(f)] • Sales Tax Certification [Tax Law § 5 -a] • Consultant Disclosure [SFL § 163 (4) (g)] 2008 Purchasing Forum – State Finance Law

Government Procurement & Competitive Bidding Discretionary Thresholds for Purchasing [SFL § 163(6)] • State Government Procurement & Competitive Bidding Discretionary Thresholds for Purchasing [SFL § 163(6)] • State Agencies up to $50, 000 (OGS $85, 000) • State Agencies up to $100, 000 - For recycled or remanufactured commodities or technology - From small businesses - From ESDC certified minority/ women-owned business enterprises 2008 Purchasing Forum – State Finance Law

Government Procurement & Competitive Bidding Vendor preparation of specifications for technology procurements; prohibitions – Government Procurement & Competitive Bidding Vendor preparation of specifications for technology procurements; prohibitions – Does not apply where: • Sole or Single source • Multiple vendors involved in preparation • Vendor furnished specs or info but was not directly requested to write specs for the agency proposal • Agency and Office For Technology determine restriction is not in the best interest of the state. [SFL § 163 -a] 2008 Purchasing Forum – State Finance Law

Government Procurement and Competitive Bidding Bid Evaluation Approvals Required Approvals • Department of Law Government Procurement and Competitive Bidding Bid Evaluation Approvals Required Approvals • Department of Law • Specialty Contracts - Civil Service - Office for Technology - Division of the Budget 2008 Purchasing Forum – State Finance Law

Government Procurement and Competitive Bidding Required Approvals cont’d: • Office of the State Comptroller Government Procurement and Competitive Bidding Required Approvals cont’d: • Office of the State Comptroller Over $50, 000 most state agencies. (OGS $85, 000; SUNY Flex) 2008 Purchasing Forum – State Finance Law

Government Procurement and Competitive Bidding Other Relevant Laws Section 138 State Finance Law Non-Assignment Government Procurement and Competitive Bidding Other Relevant Laws Section 138 State Finance Law Non-Assignment of State Contracts Section 220 and 240 Labor Law Prevailing Wage Rate Article 2 Uniform Commercial Code Sales 2008 Purchasing Forum – State Finance Law

Government Procurement and Competitive Bidding Other Relevant Laws Diesel Emissions Reduction Act Section 19‑ Government Procurement and Competitive Bidding Other Relevant Laws Diesel Emissions Reduction Act Section 19‑ 0323 Environmental Conservation Law Mercury-added Consumer Products Law Article 27, Title 21 Environmental Conservation Law 2008 Purchasing Forum – State Finance Law

Questions ? 2008 Purchasing Forum – State Finance Law Questions ? 2008 Purchasing Forum – State Finance Law

Presenter’s Contact Information Noreen J. Van. Doren Assistant Counsel Office of General Services n. Presenter’s Contact Information Noreen J. Van. Doren Assistant Counsel Office of General Services n. [email protected] state. ny. us (518) 474 -5607 OGS Website: www. ogs. state. ny. us 2008 Purchasing Forum – State Finance Law