Section 163. Purchasing services and commodities

1. Definitions. For the
  purposes of this section, the following terms shall have  the  following
  meanings unless otherwise specified:
    a.  "Consortium"  means  like  entities  which  agree  to collectively
  purchase commodities at a lower price than would be otherwise achievable
  through purchase by such entities pursuant to other provisions  of  this
  article.
    b. "Emergency" means an urgent and unexpected requirement where health
  and public safety or the conservation of public resources is at risk.
    c.  "Responsible"  or  "responsibility"  means  the financial ability,
  legal capacity, integrity, and past performance of a business entity and
  as such terms have been interpreted relative to public procurements.
    d. "Responsive" means a bidder or other offerer  meeting  the  minimum
  specifications  or  requirements  as  prescribed  in  a solicitation for
  commodities or services by a state agency.
    e. "Specification" or  "requirement"  means  any  description  of  the
  physical  or  functional characteristics or the nature of a commodity or
  construction item, any description of the  work  to  be  performed,  the
  service  or products to be provided, the necessary qualifications of the
  offerer,the capacity and capability of the offerer to successfully carry
  out the proposed contract, or the process for achieving specific results
  and/or anticipated  outcomes  or  any  other  requirement  necessary  to
  perform  the  work.  It  may  include  a  description  of any obligatory
  testing, inspection or preparation for delivery and use, and may include
  federally required provisions and conditions where the  eligibility  for
  federal  funds  is  conditioned  upon  the  inclusion  of such federally
  required provisions and conditions. Specifications shall be designed  to
  enhance competition, ensuring the commodities or services of any offerer
  are not given preference except where required by this article.
    f.  "Procurement record" means documentation of the decisions made and
  the approach taken in the procurement process.
    g. "Sole source" means a procurement in  which  only  one  offerer  is
  capable of supplying the required commodities or services.
    h.  "Single  source" means a procurement in which although two or more
  offerers  can  supply  the  required  commodities   or   services,   the
  commissioner  or  state  agency, upon written findings setting forth the
  material and substantial reasons  therefor,  may  award  a  contract  or
  non-technical amendment to a contract to one offerer over the other. 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.
    i.   "Lowest  price"  means  the  basis  for  awarding  contracts  for
  commodities among responsive and responsible offerers.
    j. "Best value" means the basis for awarding contracts for services to
  the  offerer  which  optimizes  quality,  cost  and  efficiency,   among
  responsive  and responsible offerers. Such basis shall reflect, wherever
  possible, objective and quantifiable analysis.
    2. Operating principles. The objective  of  state  procurement  is  to
  facilitate each state agency's mission while protecting the interests of
  the  state  and its taxpayers and promoting fairness in contracting with
  the business community. The state's procurement process shall be  guided
  by the following principles:
    a.  To  promote  purchasing  from responsive and responsible offerers,
  including small businesses.
    b. To be based on clearly articulated procedures which require a clear
  statement  of  product  specifications,  requirements  or  work  to   be
  performed;  a  documentable  process  for  soliciting bids, proposals or

  other offers; a balanced and fair method, established in advance of  the
  receipt  of  offers,  for  evaluating  offers  and  awarding  contracts;
  contract terms and conditions that protect  the  state's  interests  and
  promote  fairness  in  contracting  with  the  business community; and a
  regular monitoring of vendor performance.
    c. To encourage the  investment  of  the  private  and  not-for-profit
  sectors  in  New  York state by making reasonable efforts to ensure that
  offerers are apprised of procurement opportunities;  by  specifying  the
  elements  of  a  responsive  bid and disclosing the process for awarding
  contracts including,  if  applicable,  the  relative  importance  and/or
  weight  of  cost  and  the  overall  technical  criterion for evaluating
  offers; and by ensuring the procurement is conducted accordingly.
    d. To ensure that contracts  are  awarded  consistent  with  the  best
  interests of the state.
    e.  To  ensure  that  officers  and employees of state entities do not
  benefit financially or otherwise from the award of state contracts.
    f. To ensure regular and critical review of the efficiency,  integrity
  and effectiveness of the overall process.
    3. General provisions for purchasing commodities.
    a.   State   agency   procurement   practices  for  commodities  shall
  incorporate the following:
    (i) The purchase of commodities by state agencies including the office
  of general services shall be conducted in a manner which  accords  first
  priority  to preferred sources in accordance with the provisions of this
  article, second priority to centralized  contracts,  third  priority  to
  agency  or  multi-agency  established  contracts  and fourth priority to
  other means of contracting.
    (ii) Commodities contracts shall be awarded on  the  basis  of  lowest
  price  to  a  responsive  and  responsible  offerer;  or, in the case of
  multiple awards, in accordance with paragraph c of  subdivision  ten  of
  this section.
    (iii)  The  commissioner  shall be responsible for the standardization
  and centralized purchase of commodities required by state agencies in  a
  manner which maximizes the purchasing value of public funds.
    (iv)  The  commissioner  is  authorized to permit any officer, body or
  agency of the state or of a political subdivision or a district therein,
  or fire company or volunteer ambulance service as such  are  defined  in
  section  one  hundred of the general municipal law, to make purchases of
  commodities  through  the  office  of  general   services'   centralized
  contracts, pursuant to the provisions of section one hundred four of the
  general  municipal  law.  The  commissioner  is authorized to permit any
  county extension service association  as  authorized  under  subdivision
  eight  of  section  two  hundred  twenty-four  of the county law, or any
  association or other entity as  specified  in  and  in  accordance  with
  section  one  hundred  nine-a of the general municipal law, or any other
  association or entity as specified in state law, to  make  purchases  of
  commodities   through   the  office  of  general  services'  centralized
  contracts; provided, however, that such entity so empowered shall accept
  sole responsibility for any payment due with respect to such purchase.
    (v)  Consistent  with  guidelines  issued  by  the  state  procurement
  council,  state agencies may competitively purchase commodities procured
  in accordance with this article in lieu of using  centralized  contracts
  when the resultant price is less than the centralized contract price.
    (vi)  When  justified  by  price,  state  agencies,  and hospitals and
  facilities managed and controlled by state agencies eligible pursuant to
  section twenty-eight hundred three-a of the public health law, shall  be
  eligible  to  make  purchases pursuant to guidelines issued by the state

  procurement council from a consortium or comparable entity  in  lieu  of
  using centralized contracts for commodities.
    (vii)  The commissioner is authorized to enter into contracts pursuant
  to the provisions of section twenty-eight hundred three-a of the  public
  health law.
    (viii)  The  commissioner may permit and prescribe the conditions for,
  (A)  any  association,  consortium  or  group  of  privately  owned   or
  municipal,  federal  or  state  owned  or  operated  hospitals,  medical
  schools,  other  health  related  facilities  or   voluntary   ambulance
  services,   which   have   entered  into  a  contract  and  made  mutual
  arrangements for the joint purchase of commodities pursuant  to  section
  twenty-eight   hundred  three-a  of  the  public  health  law;  (B)  any
  institution for the instruction of the deaf or of the  blind  listed  in
  section  forty-two  hundred  one of the education law; (C) any qualified
  non-profit-making agency for the blind approved by the  commissioner  of
  social  services;  (D) any qualified charitable non-profit-making agency
  for the severely disabled approved by the commissioner of education; (E)
  any hospital or residential health care facility as defined  in  section
  twenty-eight  hundred  one  of  the  public  health law; (F) any private
  not-for-profit mental hygiene facility as defined in section 1.03 of the
  mental hygiene law; and (G)  any  public  authority  or  public  benefit
  corporation  of  the state, including the port authority of New York and
  New  Jersey  and  the  interstate  environmental  commission,  to   make
  purchases  using  centralized  contracts for commodities. Such qualified
  non-profit-making agencies for the blind and severely disabled may  make
  purchases  from  the  department  of correctional services' correctional
  industries program subject to rules pursuant to the correction law.
    b. The commissioner shall:
    (i) determine, in cooperation with the state procurement  council  and
  state  agencies,  the  identity,  form,  function  and  utility of those
  commodities which shall be made  available  on  or  through  centralized
  contracts.  Criteria  may  include,  but  need  not  be  limited to, the
  availability of a volume discount, prior  use  of  the  commodity  among
  state  agencies  and the relative cost of establishing the contract, its
  anticipated  use  and  expected  actual  savings  for  the  state.   The
  commissioner  may  also  act  as  a broker for state agencies to procure
  commodities.
    (ii) determine the number  and  scope  of  centralized  contracts  for
  commodities  to  be  let  during  any  period,  including the letting of
  multiple contracts to ensure the sufficient  variety  and  uninterrupted
  availability of commodities for state agency use.
    (iii)  maintain  lists  of firms which produce or manufacture or offer
  for sale commodities in the form, function and utility required by state
  agencies.  The  commissioner  shall  ensure  such  lists   are   updated
  regularly. With the assistance of the department of economic development
  and  other  state  agencies,  beginning on July first, two thousand one,
  ensure the availability to all authorized purchasers  of  a  centralized
  list  which  identifies  commodities  offered  by New York state's small
  businesses and a  centralized  list  which  identifies  commodities  and
  services  offered  by businesses certified pursuant to article fifteen-A
  of the executive law. Such  lists  shall  be  updated  semiannually  and
  designed  to  enable  effective identification of New York state's small
  businesses and businesses certified pursuant to article fifteen-A of the
  executive law.
    (iv) ensure the specification of commodities for centralized contracts
  reflect the form, function and utility required by  state  agencies  and
  conform,  wherever possible, to industry standards. Where necessary, the
  commissioner  may  develop  specifications  for  commodities.  When  not

  otherwise   forthcoming   from   a  particular  firm  or  industry,  the
  commissioner may request information from businesses for the purpose  of
  establishing  or  improving  a  specification.  The  office  of  general
  services   may   assist   agencies   in  developing  specifications  for
  agency-procured commodity contracts  when  industry  standards  are  not
  available   or  appropriate.  In  all  cases,  specifications  shall  be
  consistent with the requirements of state agencies.
    (v) With the assistance of the department of economic development  and
  other  state agencies, provide a training program once per year, in each
  economic development region, as established in  article  eleven  of  the
  economic development law, beginning January first, two thousand one, for
  those   businesses  certified  pursuant  to  article  fifteen-A  of  the
  executive law and those interested in becoming certified. Such  training
  program  shall  provide  assistance  with  respect to participation as a
  vendor in the procurement process, as established in this  article,  and
  including  without  limitation  educating minority and women contractors
  about surety bonding requirements on state  contracts,  and  identifying
  resources  available  to  such contractors in obtaining their first bond
  and in increasing their bonding capacity, including but not  limited  to
  the federal small business administration bond guarantee program.
    (vi) With the assistance of the department of economic development and
  other  state  agencies, provide training once per year for staff of each
  state agency's minority and women business development office, or if  an
  agency  does  not  have such an office, then an agency's representative.
  Such training program shall consist of a  meeting  with  such  agencies'
  representatives to inform each agency of how to encourage procurement of
  commodities  and  services from businesses certified pursuant to article
  fifteen-A of the executive law.
    (vii) maintain a list of contractors which produce or  manufacture  or
  offer   for  sale  environmentally-sensitive  cleaning  and  maintenance
  products in the form, function and utility generally used by  elementary
  and  secondary  schools  in accordance with specifications or guidelines
  promulgated pursuant to section four hundred  nine-i  of  the  education
  law.
    (viii)  review and consider prior to issuance of bid solicitations the
  term of the proposed contract  based  on  factors,  including,  but  not
  limited  to;  (A) the nature of the commodity, (B) the complexity of the
  procurement,  (C)  the  identity  and  type  of  purchasers,   (D)   the
  suitability of the contract for adding additional contractors during the
  term,  and (E) the estimated contract value. This determination shall be
  documented in the procurement record.
    (ix) reasonably consider aggregate amount of public sales by potential
  vendors.
    (x) review and consider the feasibility of creating regional contracts
  for commodities being procured by the state.
    (xi) maintain a  procurement  record  for  each  centralized  contract
  procurement  identifying,  with supporting documentation, decisions made
  by the commissioner during  the  procurement  process.  The  procurement
  record  shall  include,  but not be limited to, each contract amendment,
  and the justification for each.
    c. When commodities are  not  available  in  the  form,  function  and
  utility   required  by  state  agencies  through  preferred  sources  or
  centralized  contracts,  a  state  agency  may,  independently   or   in
  conjunction with other state agencies, procure commodities in accordance
  with  the  provisions  of  this  section.  State  agencies  may maintain
  listings  of  firms,  including  those  certified  pursuant  to  article
  fifteen-A  of  the  executive  law,  or  may  use  the office of general
  services' listing of firms and may request assistance from the office of

  general services. It shall be the responsibility of  state  agencies  to
  periodically   advise   the   office   of   general  services  of  those
  agency-procured commodities which, due to the frequency of  purchase  or
  related factors, should be made available through centralized contracts.
    d. The commissioner may make, or cause to be made by a duly authorized
  representative,  any  investigation  which he or she may deem proper for
  acquiring the necessary information from a state agency for the exercise
  of his or her  powers  and  duties  under  this  subdivision.  For  such
  purposes  the  commissioner  may  subpoena  and compel the attendance of
  witnesses before him or her, or an authorized  representative,  and  may
  compel  the  production  of  books,  papers,  records  or documents. The
  commissioner or a duly  authorized  representative  may  take  and  hear
  proofs and testimony and, for that purpose, the commissioner or the duly
  authorized   representative  may  administer  oaths.  In  addition,  the
  commissioner or the duly authorized representative:
    (i) Shall have access at all reasonable  times  to  offices  of  state
  agencies;
    (ii)  May examine all books, papers, records and documents in any such
  state  agency  as  pertain  directly  to  the   purchase,   control   or
  distribution of commodities; and
    (iii)  May  require any state agency to furnish such data, information
  or statement as may be necessary.
    4.  General  provisions  for   purchasing   services.   State   agency
  procurement practices for services shall incorporate the following:
    a.  The purchase of services by state agencies including the office of
  general services shall be conducted in  a  manner  which  accords  first
  priority  to preferred sources in accordance with the provisions of this
  article when the services required are available in the  form,  function
  and utility required by state agencies through a preferred source.
    b.  (i)  Centralized  contracts  for  services  may be procured by the
  office of general services at the request of state  agencies  and  state
  agencies  may  when such centralized contracts are in the form, function
  or  utility  required  by  said  agency,   purchase   from   established
  centralized  contracts.  The state procurement council may, from time to
  time,  require  that  state  agencies  procure  services  from   certain
  centralized contracts.
    (ii) The commissioner shall:
    (A)  review  and  consider  prior to issuance of bid solicitations the
  term of the proposed contract  based  on  factors,  including,  but  not
  limited  to,  (a)  the  nature of the service, (b) the complexity of the
  procurement,  (c)  the  identity  and  type  of  purchasers,   (d)   the
  suitability of the contract for adding additional contractors during the
  term,  and (e) the estimated contract value. This determination shall be
  documented in the procurement record.
    (B) reasonably consider  the  aggregate  amount  of  public  sales  by
  potential vendors.
    (C) review and consider the feasibility of creating regional contracts
  for services being procured by the state.
    (D)  maintain  a  procurement  record  for  each  centralized contract
  procurement identifying with supporting documentation, decisions made by
  the commissioner during the procurement process. The procurement records
  shall include, but not be limited to, each contract amendment,  and  the
  justification for each.
    c.  When  services are not available from preferred sources consistent
  with the provisions of this article in the  form,  function  or  utility
  required   by  state  agencies,  state  agencies  may  procure  services
  independently or in conjunction with other state agencies in  accordance
  with the provisions of this section.

    d.  Service contracts shall be awarded on the basis of best value to a
  responsive and responsible offerer; or, in the case of multiple  awards,
  in accordance with paragraph c of subdivision ten of this section.
    e.  Any  officer, body or agency of a political subdivision as defined
  in section one hundred of  the  general  municipal  law  or  a  district
  therein,  may  make  purchases of services through the office of general
  services' centralized contracts for services, subject to the  provisions
  of   section  one  hundred  four  of  the  general  municipal  law.  The
  commissioner may permit and prescribe the conditions for the purchase of
  services through the office of general services'  centralized  contracts
  for  services  by  any public authority or public benefit corporation of
  the state including the port authority of New York and New  Jersey.  The
  commissioner  is  authorized  to  permit any public library, association
  library, library  system,  cooperative  library  system,  the  New  York
  Library  Association,  and  the  New  York  State Association of Library
  Boards or any other library except  those  which  are  operated  by  for
  profit  entities,  to  make  purchases of services through the office of
  general services' centralized contracts; provided,  however,  that  such
  entity so empowered shall accept sole responsibility for any payment due
  with respect to such purchase.
    g.  All  state  agencies  shall  require  all  contractors,  including
  sub-contractors, that provide services for state purposes pursuant to  a
  contract,  to  submit  an annual employment report for each contract for
  services that includes for each employment category within the  contract
  the number of employees employed to provide services under the contract,
  the  number  of  hours  they work and their total compensation under the
  contract. Employment reports shall  be  submitted  to  the  agency  that
  awarded the contract, the department of civil service and the department
  of  audit  and  control and shall be available for public inspection and
  copying pursuant to section eighty-seven  of  the  public  officers  law
  provided that in disclosing such reports pursuant to the public officers
  law,  the  agency  making the disclosure shall redact the name or social
  security number of any individual employee  that  is  included  in  such
  document.
    5.   Process  for  conducting  state  procurements.  The  process  for
  conducting state procurements for services and commodities shall  be  as
  follows:
    a.  Determination  of  need.  State  agencies shall be responsible for
  determining the need for a given service or commodity:
    (i) For commodities, upon such determination of need,  state  agencies
  shall ascertain whether the commodity is available in the form, function
  and  utility  consistent  with their needs from preferred sources and if
  so, shall purchase said commodity from a preferred source in  accordance
  with the provisions of this article. If not so available, state agencies
  shall determine whether the commodity is available in the form, function
  and utility consistent with their needs on a centralized contract and if
  so, except as provided in subparagraph (v) of paragraph a of subdivision
  three   of  this  section,  shall  purchase  said  commodity  using  the
  centralized contract. If a commodity  is  not  available  in  the  form,
  function  and utility consistent with the needs of the state agency from
  a preferred source or a centralized  contract  or  as  provided  for  in
  subparagraph  (v)  of  paragraph a of subdivision three of this section,
  the  state  agency  may  procure  the  commodity  independently  or   in
  conjunction  with another state agency in accordance with paragraph c of
  subdivision three of this section.
    (ii) For services, upon such determination  of  need,  state  agencies
  shall  ascertain  whether the service is available in the form, function
  and utility consistent with their needs from preferred sources  and,  if

  so,  shall  purchase  said  service  through  the  preferred  source  in
  accordance with the provisions of this article.  If  not  so  available,
  state agencies may:
    (A)  Purchase the service if it is available in the form, function and
  utility consistent with their needs  using  an  established  centralized
  contract  procured  by  either the office of general services or another
  state agency;
    (B) Request that  the  office  of  general  services  procure  such  a
  service,  particularly  with  respect  to  those services having utility
  and/or benefit to more than one state agency; or
    (C) Procure the service independently or in conjunction  with  another
  state agency.
    b. The state procurement council may, from time to time, require state
  agencies to procure certain services from centralized contracts.
    6. Discretionary buying thresholds. Pursuant to guidelines established
  by the state procurement council: the commissioner may purchase services
  and  commodities in an amount not exceeding eighty-five thousand dollars
  without a  formal  competitive  process;  state  agencies  may  purchase
  services  and  commodities  in  an  amount  not exceeding fifty thousand
  dollars without a formal competitive process;  and  state  agencies  may
  purchase  commodities  or services from small business concerns or those
  certified pursuant  to  article  fifteen-A  of  the  executive  law,  or
  commodities  or  technology  that  are recycled or remanufactured, in an
  amount not exceeding one  hundred  thousand  dollars  without  a  formal
  competitive process.
    6-a.   Discretionary  purchases.  Notwithstanding  the  provisions  of
  subdivision two of section one hundred twelve of this  chapter  relating
  to  the  dollar  threshold requiring the state comptroller's approval of
  contracts, the commissioner of general services may  make  purchases  or
  enter  into  contracts  for  the acquisition of commodities and services
  having a value not exceeding eighty-five thousand dollars without  prior
  approval  by  any  other  state  officer  or  agency  in accordance with
  procedures and requirements set forth in this  article.  Notwithstanding
  the  provisions  of  article four-C of the economic development law, the
  commissioner of general  services  may  make  purchases  or  enter  into
  contracts for the acquisition of commodities and services having a value
  not  exceeding  thirty  thousand  dollars  without prior approval by any
  other  state  officer  or  agency  in  accordance  with  procedures  and
  requirements set forth in this article.
    6-b. Determination of threshold amount. For determination of threshold
  amount  purposes  of  determining  whether  a  purchase  is  within  the
  discretionary thresholds established by subdivision six of this section,
  the commissioner  and  state  agencies  shall  consider  the  reasonably
  expected  aggregate  amount  of all purchases of the same commodities or
  services to be made within the twelve-month  period  commencing  on  the
  date  of  purchase.  Purchases  of  services or commodities shall not be
  artificially divided for the purpose  of  satisfying  the  discretionary
  buying  thresholds  established  by  subdivision  six of this section. A
  change to or  a  renewal  of  a  discretionary  purchase  shall  not  be
  permitted  if  the change or renewal would bring the reasonably expected
  aggregate amount of all purchases of the same  commodities  or  services
  from  the same provider within the twelve-month period commencing on the
  date of the first purchase to an amount greater than  the  discretionary
  buying threshold amount.
    7.   Method  of  procurement.  Consistent  with  the  requirements  of
  subdivisions three and four of this section, state agencies shall select
  among permissible methods of procurement including, but not limited  to,
  an  invitation  for  bid,  request  for  proposals  or  other  means  of

  solicitation pursuant to guidelines  issued  by  the  state  procurement
  council.  State  agencies  may  accept  bids electronically and may, for
  technology contracts only, require electronic  submission  as  the  sole
  method  for  the  submission of bids for the solicitation, provided that
  the agency has made a determination, which shall be  documented  in  the
  procurement   record,   that  such  method  affords  a  fair  and  equal
  opportunity for offerers  to  submit  responsive  offers.  Except  where
  otherwise  provided by law, procurements shall be competitive, and state
  agencies shall conduct formal competitive procurements  to  the  maximum
  extent  practicable.  State agencies shall document the determination of
  the method of procurement and the basis  of  award  in  the  procurement
  record.  Where  the  basis  for award is the best value offer, the state
  agency shall document, in the procurement record and in advance  of  the
  initial receipt of offers, the determination of the evaluation criteria,
  which  whenever  possible,  shall be quantifiable, and the process to be
  used in the determination of best value and  the  manner  in  which  the
  evaluation process and selection shall be conducted.
    8.  Public  notice.  All  procurements  by state agencies in excess of
  fifteen thousand dollars shall be advertised in the state's  procurement
  opportunities  newsletter  in  accordance  with  article  four-C  of the
  economic development law.
    9. Soliciting and accepting offers. For purchases from  sources  other
  than  preferred sources and for purchases in excess of the discretionary
  buying threshold established in subdivision six of this section:
    a.  The  commissioner  or  a  state  agency  shall  select  a   formal
  competitive   procurement   process   in   accordance   with  guidelines
  established  by  the  state  procurement  council   and   document   its
  determination  in the procurement record. The process shall include, but
  is not limited to, a clear statement  of  need;  a  description  of  the
  required  specifications  governing  performance  and related factors; a
  reasonable process for ensuring a competitive field; a  fair  and  equal
  opportunity for offerers to submit responsive offers; and a balanced and
  fair  method  of  award.    Where the basis for the award is best value,
  documentation  in  the  procurement  record  shall,  where  practicable,
  include  a  quantification  of  the  application  of the criteria to the
  rating  of  proposals  and  the  evaluation  results,  or,   where   not
  practicable, such other justification which demonstrates that best value
  will be achieved.
    b.  The  solicitation  shall  prescribe  the minimum specifications or
  requirements that must be met in order to be considered  responsive  and
  shall  describe  and disclose the general manner in which the evaluation
  and selection shall be conducted. Where  appropriate,  the  solicitation
  shall  identify  the  relative  importance and/or weight of cost and the
  overall technical criterion to be considered by a state  agency  in  its
  determination of best value.
    c.  Where  provided  in  the  solicitation, state agencies may require
  clarification  from  offerers  for   purposes   of   assuring   a   full
  understanding  of responsiveness to the solicitation requirements. Where
  provided for in the solicitation, revisions may be  permitted  from  all
  offerers  determined  to  be  susceptible of being selected for contract
  award, prior to  award.  Offerers  shall  be  accorded  fair  and  equal
  treatment  with respect to their opportunity for discussion and revision
  of offers. A state agency shall, upon request, provide a  debriefing  to
  any  unsuccessful offerer that responded to a request for proposal or an
  invitation for bids, regarding the reasons  that  the  proposal  or  bid
  submitted by the unsuccessful offerer was not selected for an award. The
  opportunity  for  an  unsuccessful offerer to seek a debriefing shall be

  stated in the solicitation, which shall provide a  reasonable  time  for
  requesting a debriefing.
    d.  All  offers  may  be rejected. Where provided in the solicitation,
  separable portions of offers may be rejected.
    e. Every offer shall be firm and not revocable for a period  of  sixty
  days from the bid opening, or such other period of time specified in the
  solicitation  to  the  extent not inconsistent with section 2-205 of the
  uniform commercial code. Subsequent to such sixty day or other specified
  period, any offer is subject to withdrawal  communicated  in  a  writing
  signed by the offeror.
    f.  Prior to making an award of contract, each state agency shall make
  a determination of responsibility of the proposed contractor which shall
  supplement, as appropriate,  but  not  supersede  the  determination  of
  responsibility  that  may  be  required  pursuant to section one hundred
  thirty-nine-k of this chapter.
    g. A procurement record  shall  be  maintained  for  each  procurement
  identifying,  with  supporting  documentation,  decisions  made  by  the
  commissioner  or  state  agency  during  the  procurement  process.  The
  procurement  record  shall  include, but not be limited to each contract
  amendment and the justification for each.
    10. Letting of contracts. Contracts for commodities shall  be  awarded
  on  the  basis  of lowest price to a responsive and responsible offerer.
  Contracts for services shall be awarded on the basis of best value  from
  a  responsive  and responsible offerer. Multiple awards for services and
  commodities shall be conducted in accordance with paragraph  c  of  this
  subdivision.
    a.  Selection  and  award  shall  be  a  written  determination in the
  procurement record made by the commissioner  or  a  state  agency  in  a
  manner  consistent with the provisions of the solicitation. In the event
  two offers are found to be substantially equivalent, price shall be  the
  basis  for  determining  the  award  recipient  or, when price and other
  factors are found to be substantially equivalent, the  determination  of
  the  commissioner  or  agency head to award a contract to one or more of
  such bidders shall be final. The basis for determining the  award  shall
  be documented in the procurement record.
    b. (i) Single or sole source procurements for services or commodities,
  or procurements made to meet emergencies arising from unforeseen causes,
  may  be made without a formal competitive process and shall only be made
  under unusual circumstances and shall include  a  determination  by  the
  commissioner or the state agency that the specifications or requirements
  for said purchase have been designed in a fair and equitable manner. The
  purchasing  agency  shall document in the procurement record, subject to
  review by the state  comptroller,  the  bases  for  a  determination  to
  purchase  from  a  single  source  or  sole source, or the nature of the
  emergency giving rise to the procurement.
    (ii)  State  agencies  shall  minimize  the  use  of   single   source
  procurements and shall use single source procurements only when a formal
  competitive  process  is  not feasible. State agencies shall document in
  the  procurement  record  the  circumstances  and   the   material   and
  substantial  reasons  why  a formal competitive process is not feasible.
  The term of a single source procurement contract shall be limited to the
  minimum period of time necessary to ameliorate the  circumstances  which
  created  the  material  and  substantial  reasons  for the single source
  award. Not later than  thirty  days  after  the  contract  award,  state
  agencies  shall,  for  all  single  source  procurement  contracts, make
  available for public inspection on the agency website, a summary of  the
  circumstances  and  material  and  substantial reasons why a competitive
  procurement is not  feasible.  Any  information  which  the  contracting

  agency  is  otherwise  prohibited  by  law  from  disclosing pursuant to
  sections eighty-seven and eighty-nine of the public officers law,  shall
  be redacted from the documentation published on the agency website.
    c.  The  commissioner or state agency may elect to award a contract to
  one or more responsive and responsible offerers 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.
    d.  It  shall be in the discretion of the commissioner or state agency
  to require a bond or other guarantee of performance, and to approve  the
  amount, form and sufficiency thereof.
    e. The commissioner may authorize purchases required by state agencies
  or  other  authorized  purchasers  by  letting  a contract pursuant to a
  written agreement, 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. A state agency purchaser shall
  document in the procurement record  its  rationale  for  the  use  of  a
  contract  let by any department, agency or instrumentality of the United
  States  government  or  any  department,   agency,   office,   political
  subdivision  or  instrumentality  of  any  other  state  or states. Such
  rationale shall include, but need not be limited to, a determination  of
  need,  a  consideration  of the procurement method by which the contract
  was awarded, an analysis of alternative procurement sources including an
  explanation why a competitive procurement or the use  of  a  centralized
  contract  let  by  the  commissioner  is not in the best interest of the
  state, and the reasonableness of cost.
    f. The commissioner is authorized to  let  centralized  contracts,  in
  accordance  with the procedures of this section, 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.
    11. Reasonableness of results. It shall be the responsibility  of  the
  head  of  each  state  agency  to periodically sample the results of the
  procurement process to test  for  reasonableness;  to  ensure  that  the
  results  withstand public scrutiny and that the quality and the price of
  the purchase makes sense; and to ensure that purchasing is conducted  in
  a manner consistent with the best interests of the state.
    12.  Review  by  the  office  of  the state comptroller. Review by the
  office of the state comptroller shall be in accordance with section  one
  hundred twelve of this chapter.
    13.  Technological  procurement  improvements.  The  state procurement
  council may request that the office  of  general  services  provide,  or
  recommend  to  the  state  comptroller to provide for the utilization of
  technological advances  and  efficiencies  in  the  procurement  process
  including,   but  not  limited  to,  electronic  ordering  and  payment,
  procurement cards and similar improvements.
    14. Reporting. To support prudent  procurement  management,  oversight
  and  policy-making,  the  department  of  audit and control shall report
  annually on a fiscal year basis by July first of the ensuing year to the
  state procurement council, the  governor,  and  the  legislative  fiscal

  committees  providing data concerning active procurement contracts above
  fifteen thousand dollars, including but not limited to:
    (i)  a  listing  of  individual  and  centralized contracts, including
  vendor name, comptroller approval dates, dollar value of such contracts,
  the state agency which let the  contract  and/or  state  agencies  which
  purchased  off  centralized  contracts,  expenditures  made on each such
  contract and by which agencies during the fiscal year and life to  date,
  citing  contract  category  codes,  source  selection  method, including
  "lowest price", "best value", sole source, single source, negotiated and
  emergency procurement subtotaled by agency and by type of  commodity  or
  service;
    (ii)  frequency of contracts awarded during this fiscal year by number
  of bids/proposals and source selection method;
    (iii) number of contracts disapproved by the department of  audit  and
  control during the fiscal year and reasons for disapproval by agency and
  by source selection method, number and outcome of bid protests; and
    (iv)  a  summary  report  listing total number and amount of contracts
  awarded for the prior fiscal year and  total  year-to-date  expenditures
  for  all contracts, with subtotals by agency and major contract category
  including, but not  limited  to,  consultant,  construction,  equipment,
  grants,  leases, land claim, miscellaneous services, printing, repayment
  agreements,  revenue  agreements,  intergovernmental   agreements,   and
  commodities;  a comparison of centralized and agency contracts by number
  of contracts, number of agencies purchasing off of centralized contracts
  or  entering  into  contracts,   contract   amounts   and   year-to-date
  expenditures;  comparison  of  contracts  by  source selection method by
  number of contracts, contract amounts, and year-to-date expenditures.
    (v) for each contract for services for state purposes: the  number  of
  employees,  by  employment  category  within  the  contract, employed to
  provide services under the contract, the number of hours they  work  and
  their total compensation under the contract;
    (vi)(a) state agencies shall report annually on a fiscal year basis by
  July  first  of  the  ensuing year to the state procurement council, the
  governor, the legislative fiscal committees and  the  state  comptroller
  the  total  number  and  total  dollar  value of single source contracts
  awarded by the agency during the fiscal year, and  the  percentage  that
  such  contracts  represent of the agency's total number and total dollar
  value of contract awards during the reporting period.
    (b) each state agency shall include with its report an  assessment  by
  the  agency head of the agency's efforts to minimize the award of single
  source contracts;
    (vii) all reports required under this paragraph shall be available for
  public inspection and copying pursuant to section  eighty-seven  of  the
  public officers law provided that in disclosing such reports pursuant to
  the  public  officers law, the agency making the disclosure shall redact
  the name or social security number of any individual  employee  that  is
  included in such document.
    * NB Repealed June 30, 2012