Current through Register Vol. 46, No. 39, September 25, 2024
For purposes of this Part:
(a) Competitive procurement shall mean a
procurement where a State authority has:
(1)
(i) published notice of the contract
opportunity consistent with any statutory publication requirement including,
but not limited to, article 4-c of the Economic Development Law, or, where
there is no express statutory requirement for published notice, in the
procurement opportunities newsletter or another newspaper, journal or
periodical which is reasonably designed to give notice of the contract
opportunity to all offerers capable of providing the requisite product, service
or work to be performed; and further that such notice, wherever published, is
reasonably designed to solicit bids, proposals or offers from all qualified
offerers in response thereto; or
(ii) provided notice of the contract
opportunity by soliciting bids, proposals or offers through some other method
expressly authorized by statute, where such statute has deemed such other
method to be competitive; and
(iii)
awarded on the basis of a balanced and fair evaluation and selection method
developed before the receipt of offers or bids; that is rational, objective and
utilized a quantified scoring system, which evaluated all relevant factors such
as cost (revenue), technical merits, or qualifications, and was applied equally
to all qualified offerers.
(b) Contract shall mean any written agreement
including, but not limited to: any agreement for the acquisition or sale of
goods or services of any kind; public work, construction, alterations, or
improvements to public facilities; grant contracts; employment contracts;
revenue or concession contracts; the exchange of personal or real property; the
exchange of services; or any combination thereof. For purposes of this Part, a
purchase order shall be deemed to be a contract unless the purchase order is
issued pursuant to:
(1) an existing State
authority contract; or
(2) an
Office of General Services centralized contract where neither the contract nor
the relevant procurement guidelines require a mini-bid or similar competitive
process.
(c) Eligible
contract shall mean any contract executed by a State authority on or after
March 1, 2010, other than an exempt contract, where the aggregate consideration
proposed for exchange (including all reasonably anticipated renewals and
amendments) may reasonably be valued in excess of $1 million and such contract
either:
(1) shall be paid in whole or in part
with monies appropriated by the State, either directly to a State authority or
to a State agency which pays the money to a State authority; or
(2) was or shall be awarded on a single
source basis, a sole source basis or pursuant to any other method of
procurement that is not a competitive procurement. For purposes of determining
the value of a contract that has no term or is perpetual in nature, the
contract shall be deemed to have a term of five years.
(d) Eligible contract amendment shall mean:
(1) any modification to an eligible contract;
or
(2) any modification other than
an exempt contract amendment to a contract executed by a State authority where
such modification was executed on or after March 1, 2010, and where the
aggregate consideration under the contract as amended may reasonably be valued
in excess of $1 million and:
(i) the contract
as amended will be paid in whole or in part with monies appropriated by the
State, either directly to a State authority or to a State agency which pays the
money to a State authority; or
(ii)
the contract was originally awarded on a noncompetitive basis; or
(iii) the contract was originally awarded on
the basis of a competitive procurement, but the modification was neither
contemplated nor provided for in the solicitation for such competitive
procurement.
(e) Executed or execution shall mean that the
contract or contract amendment has been signed as required by the contractor
and the State authority.
(f) Exempt
contract shall mean any contract or contract amendment, executed by a State
authority on or after March 1, 2010, that would otherwise be an eligible
contract or eligible contract amendment, but is exempt pursuant to subdivision
3 of section 2879-a of the Public Authorities Law
because it is:
(1) for the issuance of
commercial paper or bonded indebtedness including, but not limited to: bond
purchase agreements, standby bond purchase agreements, letters of credit, firm
remarketing agreements, forward purchase agreements, revolving credit
agreements and other similar liquidity facility agreements, broker-dealer
agreements, remarketing agent agreements, auction agent agreements, interest
rate swaps and other similar hedging agreements; provided, however, that this
category of exempt contracts shall not include:
(i) contracts with the State providing for
the payment of debt service subject to an appropriation;
(ii) professional or banking services
agreements such as bond counsel agreements, financial advisor agreements and
trustee agreements, and
(iii)
custodial service agreements;
(2) entered into by an entity established
under article 10-c of the Public Authorities Law and is for:
(i) projects approved by the Department of
Health or the Public Health Council in accordance with article 28, 36 or 40 of
the Public Health Law or article 7 of the Social Services Law;
(ii) projects approved by the Office of
Mental Health, the Office for People with Disabilities, or the Office of
Alcoholism and Substance Abuse Services in accordance with article 16, 31 or 32
of the Mental Hygiene Law;
(iii)
services, affiliations or joint ventures for the provision or administration of
health care services or scientific research;
(iv) payment for direct health care services
or goods used in the provision of health care services; or
(v) participation in group purchasing
arrangements;
(3) for
the procurement of goods, services or both goods and services to meet
emergencies arising from unforeseen causes or to effect repairs to critical
infrastructure that are necessary to avoid a delay in the delivery of critical
services that could compromise the public welfare;
(4) for the purchase or sale of energy,
electricity or ancillary services made by an authority on a recognized market
for the goods, services or commodities in question in accordance with standard
terms and conditions of purchase or sale at a market price;
(5) for the purchase, sale or delivery of
power or energy, fuel, costs and services ancillary thereto, or financial
products related thereto, with a term of less than five years; or
(6) for the sale or delivery of power or
energy and costs and services ancillary thereto for economic development
purposes pursuant to title one of article 5 of the Public Authorities Law or
article 6 of the Economic Development Law.
(g) Exempt contract amendment shall mean a
modification to any contract where such modification would otherwise be an
eligible contract amendment, but is for an exempt purpose as defined in
paragraphs (f)(1) through (6) of this section.
(h) Monies appropriated by the State shall
mean:
(1) monies from the State treasury or
any of its funds, or any of the funds under its management pursuant to law;
or
(2) the proceeds of bonds, where
such bonds shall be paid in whole or in part with monies from the State
treasury or any of its funds, or any of the funds under its management pursuant
to law.
(i) Procurement
record shall mean documentation of the decisions made and the approach taken by
the State authority in the procurement process.
(j) Single source shall mean a procurement in
which although two or more offerers can supply the required goods or services,
the State authority, upon written findings setting forth the material and
substantial reasons therefore, may award a contract or amendment to a contract
to one offerer over the other.
(k)
Sole source shall mean a procurement in which only one offerer is capable of
supplying the required goods or services.
(l) State authority shall mean a public
authority or public benefit corporation created by or existing under any law of
the State of New York, other than an interstate or international authority or
public benefit corporation, including subsidiaries of such public authority or
public benefit corporation, where one or more members serve by virtue of
holding a civil office of the State, or where one or more members are appointed
by the governor except where all such appointments by the governor occur
specifically upon the recommendation of a local government official.
(m) Subsidiary shall mean a corporate body or
company:
(1) having more than half of its
voting shares owned or held by a State authority; or
(2) having a majority of its directors,
trustees or members in common with the directors, trustees or members of a
State authority or as designees of a State authority.
(n) Written determination shall mean
notification provided in writing either in paper or electronic format of the
Comptroller's approval or disapproval of any contract submitted for approval by
a State authority.
(o) Written
notice shall mean notification provided in writing either in paper or
electronic format.
