Current through Register Vol. 46, No. 12, March 20, 2024
(a)
Definitions.
(1)
Procurement
Lobbying means an Attempt to Influence a determination related to a
Governmental Procurement by:
(i) A Public
Official, or a person or entity working with a Public Official; or
(ii) An officer or employee of the Unified
Court System, or a person or entity working with an officer or employee of the
Unified Court System.
(2)
Procurement Contract means a 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 of more than $15,000,
but does not include:
(i) Grants;
(ii) Article XI-B State Finance Law
contracts;
(iii) Program contracts
between not-for-profit organizations, as defined in article XI-B of the State
Finance Law, and the Unified Court System;
(iv) Intergovernmental agreements;
(v) Railroad and utility force
accounts;
(vi) Utility relocation
project agreements or orders;
(vii)
Contracts governing organ transplants;
(viii) Contracts allowing for State
participation in trade shows; or
(ix) Eminent domain transactions.
(3)
Governmental
Procurement means any activity that occurs during the:
(i) public announcement, public notice, or
public communication to any potential vendor of a Determination of 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.
(4)
Article of Procurement
means a:
(i) commodity;
(ii) service;
(iii) technology;
(iv) public work;
(v) construction;
(vi) revenue contract;
(vii) purchase, sale, or lease of real
property; or
(viii) granting or
acquisition of other interest in real property that is the subject of a
Governmental Procurement.
(5)
Determination of Need
means a public communication of a decision by a governmental entity to procure
an Article of Procurement. A governmental entity may also communicate a
Determination of Need privately, but only the recipient of private
communication is subject to lobbying regulation until the public announcement
occurs. Determination of Need may be indicated by the governmental entity's
preparation of one or more of the following:
(i) specifications;
(ii) bid documents;
(iii) requests for proposals;
(iv) evaluation criteria; or
(v) statements of intent to proceed with a
Procurement.
In the event a party seeks to extend or amend an existing
procurement contract, the fact that a governmental entity is discussing terms
is an indication of a Determination of Need.
(6)
Local Legislative Body
means the board of supervisors, board of aldermen, common council, council,
commission, town board, board of trustees, or other elective governing board or
body of a Municipality now or hereafter vested by State statute, charter, or
other law with jurisdiction to initiate and adopt local laws and ordinances,
whether or not such local laws or ordinances require approval of the elective
chief executive officer or other official or body to become
effective.
(7)
Municipal
Agency means:
(i) a department,
board, bureau, commission, division, office, council, committee, or officer of
a Municipality, whether permanent or temporary; or
(ii) an industrial development agency located
in a jurisdictional subdivision of the State with a population of more than
50,000, or a local public benefit corporation, as that term is defined in
section
66 of the general construction
law.
(8)
Offerer means the individual or entity, or employee, agent, or
consultant of such individual or entity, that contacts a State Agency, either
house of the State legislature, the Unified Court System, a Municipal Agency or
Local Legislative Body about a Governmental Procurement.
(i) Offerer does not include a governmental
agency or its employees that communicate with the procuring agency regarding a
Governmental Procurement in the exercise of the governmental agency's oversight
duties.
(9)
Restricted Period means 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 a written notice,
advertisement, or solicitation of a request for proposal, invitation for bids,
or solicitation of proposals, or any other method for soliciting a response
from Offerers intending to result in a Procurement Contract with a State
Agency, either house of the State legislature, the Unified Court System, or a
Municipal Agency, and ending with the final contract award and approval by the
State Agency, either house of the State legislature, the Unified Court System,
or a Municipal Agency, and, where applicable, the State comptroller.
The Restricted Period is not identical to the longer time
frame of a Governmental Procurement as defined in this subpart.
(10)
Revenue
Contract means a written agreement between a State or Municipal Agency
or a Local Legislative Body and an Offerer, whereby the State or Municipal
Agency or Local Legislative Body gives or grants a concession or a
franchise.
(11)
Unified
Court System means 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 50,000, when it
acts solely in an administrative capacity to engage in Governmental
Procurements. Unified Court System does 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.
(b) Restricted period.
(1) Prohibited contacts
During the Restricted Period, no Lobbying Activity is
permitted in relation to the governmental procurement except as authorized in
paragraph (3) below. This prohibition includes contact with the following in
connection with such lobbying:
(i) A
person within the procuring entity who has not been designated pursuant to
section
139-j of the State Finance Law to receive
communications relative to the Governmental Procurement; or
(ii) A person in a State Agency other than
the State Agency conducting the Governmental Procurement.
(2) The prohibitions set forth in paragraph
(1) apply to municipal agencies only when the municipal agency meets the
definition in paragraph (a)(7)(ii) of this subdivision.
(3) Nothing contained in this section shall
be deemed to prohibit a person engaged in Procurement Lobbying from contacting
a member of the State legislature concerning a Governmental Procurement by a
State Agency, the unified court system, or a Municipal Agency. Such Lobbying
must be disclosed in accordance with these regulations.
(c) Exceptions. The following do not
constitute Procurement Lobbying or Lobbying Activities:
(1)
Pre-determination of
need. Contacts that occur before a governmental entity has made a
Determination of Need, including:
(i) A
contact intended to generate interest in an Offerer's product or service that
occurs before the governmental entity has made a Determination of Need for the
product or service; and
(ii) An
inquiry as to whether a governmental entity has made a Determination of
Need.
(2)
Commission Salespersons. The activities of persons who are
commission salespersons with respect to Governmental Procurements.
(i)
Commission Salesperson
means a person who meets the following criteria:
(a) The primary purpose of the person's
employment is to cause or promote the sale of, or influence or induce another
to make a purchase of, an Article of Procurement;
(b) The person is an employee (as that term
is defined for tax purposes) of a vendor, or an independent contractor for a
vendor, pursuant to a written contract for a term of not less than six months
or an indefinite term;
(c) The
person is compensated or intended to be compensated, in whole or in part, by
the payment of a percentage amount of all or a substantial part of the sales of
an Article of Procurement that the person has caused, promoted, influenced, or
induced.
(1) The term "substantial part of
the sales", as used in subsection 943.8(c)(2)(i)(c) above, means at least 50
percent of the number of sales the person has caused, promoted, influenced, or
induced;
(d) The
percentage amount of commissions payable to the person for sales or purchases
to a State Agency, either house of the State legislature, the Unified Court
System, a Municipal Agency, or Local Legislative Body, is not substantially
greater than any commission payable for comparable sales by another purchaser;
and
(e) The person is not otherwise
required to file a statement or report by virtue of engaging in lobbying
activities set forth in section 1-c(c)(i)-(iv) and (vi)-(x) of the Lobbying
Act.
(3)
Complaints and Appeals.
(i)
Complaints by an Offerer regarding the failure of the person or persons
designated by the procuring entity pursuant to section
139-j of the state finance law to respond
in a timely manner to authorized Offerer contacts, provided that such
complaints are made in writing and addressed only to the office of general
counsel of the State Agency, either house of the State legislature, or the
Unified Court System that is conducting the procurement;
(ii) Contacts by Offerers in protests,
appeals, or other review proceedings (including the apparent successful bidder
or proposer and that person's representatives) before the procuring entity
seeking a final administrative determination, or in a subsequent judicial
proceeding;
(iii) Complaints of
alleged improper conduct in a Governmental Procurement to the Attorney General,
inspector general, district attorney, or court of competent jurisdiction;
or
(iv) 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, provided
that such protests, appeals, or complaints are made in writing and are required
to be entered in the procurement record pursuant to section
163 of the state finance law; or
(v) Complaints of alleged improper conduct in
a Governmental Procurement conducted by a Municipal Agency or Local Legislative
Body to the State comptroller's office.
(4)
State Finance Law Section 162
preferred service provider contracts.
(i) Any activity relating to Governmental
Procurements made under section one hundred sixty-two of the state finance law
undertaken by:
(a) 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 and visually
handicapped, or the commissioner of education; and
(b) the qualified charitable
non-profit-making agencies for the blind, and qualified charitable
non-profitmaking agencies for other severely disabled persons as identified in
subdivision two of section one hundred sixty-two of the state finance
law.
(ii) Any 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 definition of
'Lobbying' or 'Lobbying Activities' under this subpart.
(5)
Bidders' Conferences.
Participants, including those appearing on behalf of a Client, in a conference
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.
(6)
Post-award Negotiations.
(i)
Offerers who have been tentatively awarded a contract and are engaged in
communications with a State Agency, either house of the State legislature, the
Unified Court System, a Municipal Agency or Local Legislative Body solely for
the purpose of negotiating the terms of the Procurement Contract after being
notified of such award or, when a State Agency, either house of the State
legislature, the Unified Court System, a Municipal Agency or Local Legislative
Body is purchasing an Article of Procurement pursuant to an existing State
Procurement Contract;
(ii) Offerers
who are engaged in communications with the procuring entity solely for the
purpose of negotiating terms applicable to that purchase; or
(iii) Persons who currently hold a franchise
and who are engaged in negotiating the terms of a tentative franchise renewal
contract with a Municipality, but such negotiations, which do not constitute
Lobbying, do not include communications to the Local Legislative Body that must
approve the contract.
(7)
Submission of bids.
(i) The
submission of a bid or proposal (whether submitted orally, in writing or
electronically) 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.
(ii) This
exclusion applies to preparation and associated costs with the bid. Any
activity beyond what is required to submit a bid will not qualify for the
exclusion.
(8)
Public communications to agencies. Offerers submitting written
questions to a designated contact of a State Agency, either house of the State
legislature, the Unified Court System, a Municipal Agency or Local Legislative
Body 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.
(9)
Technical Experts.
Contacts during Governmental Procurements between designated staff of a State
Agency, either house of the State legislature, the Unified Court system, a
Municipal Agency or Local Legislative Body involved in Governmental
Procurements and officers or employees of bidders or potential bidders, or
officers or employees of subcontractors of bidders or potential bidders, who
are charged with the performance of functions relating to contracts and who are
qualified by education, training or experience to provide technical services to
explain, clarify or demonstrate the qualities, characteristics or advantages of
an Article of Procurement.
(i) Such
authorized contacts shall:
(a) be limited to
providing information to the staff of a State Agency, either house of the State
legislature, the unified court system, a Municipal Agency and Local Legislative
Body to assist them in understanding and assessing the qualities,
characteristics or anticipated performance of an Article of
Procurement;
(b) not include any
recommendations or advocate any contract provisions; and
(c) occur only at such times and in such
manner as authorized under the procuring entity's solicitation or guidelines
and procedures.
(ii) For
the purposes of this paragraph, the term 'technical services' shall be limited
to analysis directly applying any accounting, engineering, scientific, or other
similar technical disciplines.
(10)
Post-award
communications.
(i) Communications
made by an officer or employee of the Offerer after the award of the
Procurement Contract when such communications are in the ordinary course of
providing the Article of Procurement provided by the Procurement Contract and
in the ordinary course of the assigned duties of the officer or employee;
provided, however, that nothing herein shall exempt:
(a) an officer or employee whose primary
purpose of employment is to engage in Lobbying Activities with regard to
Governmental Procurements, or
(b)
an agent or independent contractor hired by an Offerer and whose primary duty
is to engage in Lobbying Activities with regard to Governmental Procurements.
(ii) This exception does
not apply to an officer, employee, agent, or independent contractor who is
registered as a Lobbyist because of that person's Procurement Lobbying
Activity.
(11)
Benefits and Incentives. Persons who communicate with Public
Officials where such communications are limited to obtaining factual
information related to benefits or incentives offered by a State or Municipal
Agency and where such communications do not include any recommendations or
advocate governmental action or contract provisions, and further where such
communications are not otherwise connected with pending legislative or
executive action or determinations; provided, however, that any person who is
otherwise required to file a statement or report pursuant to this article by
virtue of engaging in Lobbying Activities as defined in this section shall not
be deemed to fall within the exception provided for under this paragraph.
The exceptions set forth in the preceding paragraphs (1) -
(11) shall not 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 11 of the State Finance Law or any other provision
of law dealing with the Governmental Procurement process.