Section 139-J. Restrictions on contacts during the procurement process

1.
  For  the  purposes  of  this  section, the following terms will have the
  following meanings unless specified otherwise.
    a. "Governmental  entity"  shall  mean:  (1)  any  department,  board,
  bureau,  commission,  division, office, council, committee or officer of
  the state, whether permanent or temporary; (2) each house of  the  state
  legislature;  (3)  the  unified  court system; (4) any public authority,
  public benefit corporation or commission created by or existing pursuant
  to the public authorities  law;  (5)  any  public  authority  or  public
  benefit  corporation,  at least one of whose members is appointed by the
  governor or who serves as a member by virtue of holding a  civil  office
  of  the  state;  (6)  a  municipal  agency,  as  that term is defined in
  paragraph (ii) of subdivision (s) of section one-c  of  the  legislative
  law; or (7) a subsidiary or affiliate of such a public authority.
    b.   "Article   of  procurement"  shall  mean  a  commodity,  service,
  technology, public work, construction, revenue contract,  the  purchase,
  sale  or  lease  of real property or an acquisition or granting of other
  interest in real  property,  that  is  the  subject  of  a  governmental
  procurement.
    c. "Contacts" shall mean any oral, written or electronic communication
  with a governmental entity under circumstances where a reasonable person
  would  infer  that  the  communication  was  intended  to  influence the
  governmental procurement.
    d. "Proposal" shall mean any bid, quotation, offer or  response  to  a
  governmental   entity's   solicitation  of  submissions  relating  to  a
  procurement.
    e. "Governmental procurement" shall mean: (i) the preparation or terms
  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.
    f. "Restricted period" shall mean the period of time  commencing  with
  the  earliest 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 governmental entity and ending with the
  final  contract award and approval by the governmental entity and, where
  applicable, the state comptroller.
    g. "Procurement contract" shall mean any contract or  other  agreement
  for   an  article  of  procurement  involving  an  estimated  annualized
  expenditure in excess  of  fifteen  thousand  dollars.  Grants,  article
  eleven-B   state   finance  law  contracts,  program  contracts  between
  not-for-profit organizations, as defined in  article  eleven-B  of  this
  chapter,  and  the  unified  court system, intergovernmental agreements,
  railroad  and  utility  force  accounts,  utility   relocation   project
  agreements or orders and eminent domain transactions shall not be deemed
  procurement contracts.
    h.  "Offerer"  shall  mean  the individual or entity, or any employee,
  agent or consultant or person acting on behalf  of  such  individual  or
  entity,  that  contacts  a  governmental  entity  about  a  governmental
  procurement  during  the  restricted   period   of   such   governmental
  procurement.

    i.  "Revenue  contract"  shall  mean  any  written agreement between a
  governmental entity, as that term is defined in subparagraphs one, four,
  five, six or seven of paragraph a of this subdivision,  and  an  offerer
  whereby  the  governmental  entity  gives  or  grants  a concession or a
  franchise.
    j.  "Unified  court  system"  shall,  for the purposes of this section
  only, mean 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  fifty
  thousand, when it acts solely in an administrative capacity to engage in
  governmental procurements and shall 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.
    2.   Every   governmental   entity   that  undertakes  a  governmental
  procurement shall:
    a. designate, with regard to each governmental procurement,  a  person
  or persons who may be contacted by offerers relative to the governmental
  procurement;
    b.  make  any determinations on any governmental procurement: (1) in a
  manner consistent with the principles provided for under subdivision two
  of  section  one  hundred  sixty-three  of  this  chapter,  or,  if  the
  governmental  entity  is  a  public benefit corporation, as that term is
  defined in section sixty-six of the general construction  law,  and  the
  majority  of  the  members  consist  of  persons either appointed by the
  governor or who serve as members by virtue of holding a civil office  of
  the  state,  the  procurement  guidelines  adopted  pursuant  to section
  twenty-eight hundred seventy-nine of the public authorities law, and (2)
  free from any conduct that would be prohibited by  subdivision  five  of
  section  seventy-three  or  section  seventy-four of the public officers
  law, or of other applicable ethics code provisions that  are  equivalent
  to  subdivision five of section seventy-three or section seventy-four of
  the public officers law where the public officials that are involved  in
  the  governmental  procurement  are  not  subject to subdivision five of
  section seventy-three or section seventy-four  of  the  public  officers
  law;
    3.   Each   offerer  that  contacts  a  governmental  entity  about  a
  governmental procurement  shall  only  make  permissible  contacts  with
  respect  to  the  governmental  procurement,  which  shall mean that the
  offerer:
    a. shall contact only the persons or persons who may be  contacted  by
  offerers  as designated by the governmental entity pursuant to paragraph
  a of subdivision two  of  this  section  relative  to  the  governmental
  procurement,  except  that  the following contacts are exempted from the
  provisions of this paragraph:
    (1) the submission of written proposals 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;
    (2) the submission of written questions to a  designated  contact  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;

    (3)  participation  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;
    (4)  complaints  by  an offerer regarding the failure of the person or
  persons designated by the procuring governmental entity pursuant to this
  section to respond in a timely manner  to  authorized  offerer  contacts
  made  in  writing  to  the  office  of  general counsel of the procuring
  governmental entity, provided that any  such  written  complaints  shall
  become a part of the procurement record;
    (5)  offerers  who  have  been  tentatively awarded a contract and are
  engaged in communications with a  governmental  entity  solely  for  the
  purpose of negotiating the terms of the procurement contract after being
  notified of tentative award;
    (6)  contacts  between  designated  governmental  entity  staff of the
  procuring governmental entity and an offerer to request the review of  a
  procurement contract award;
    (7)  (a)  contacts  by  offerers  in protests, appeals or other review
  proceedings (including the apparent successful bidder  or  proposer  and
  his  or  her  representatives) before the governmental entity conducting
  the procurement seeking a final administrative determination,  or  in  a
  subsequent judicial proceeding; or
    (b)   complaints   of  alleged  improper  conduct  in  a  governmental
  procurement  to  the  attorney  general,  inspector  general,   district
  attorney, or court of competent jurisdiction; or
    (c) written 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, and where such communications
  and any responses thereto are made in writing and shall  be  entered  in
  the  procurement  record  pursuant to section one hundred sixty-three of
  the state finance law; or
    (d)  complaints  of  alleged  improper  conduct  in   a   governmental
  procurement conducted by a municipal agency or local legislative body to
  the state comptroller's office;
    provided, however, that nothing in this subdivision shall 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  eleven  of  the state finance law or any other provision of law
  dealing with the governmental procurement process.
    b. shall not attempt to influence the governmental  procurement  in  a
  manner  that  would  result  in a violation or an attempted violation of
  subdivision five of section seventy-three or section seventy-four of the
  public officers law, or of other applicable ethics code provisions  that
  are  equivalent  to subdivision five of section seventy-three or section
  seventy-four of the public officers law where the public officials  that
  are  involved  in  the  governmental  procurement  are  not  subject  to
  subdivision five of section seventy-three or section seventy-four of the
  public officers law;
    4. Violations of paragraph a of  subdivision  three  of  this  section
  shall   include   any   contacts  during  the  restricted  period  of  a
  governmental procurement between the offerer and any member, officer  or
  employee of any governmental entity other than the entity conducting the
  governmental  procurement;  provided,  however,  that  nothing  in  this
  section shall be deemed to prohibit an offerer from communicating with a
  member  of  the  state  legislature  or  legislative   staff   about   a
  governmental  procurement being conducted by a governmental entity other
  than the state legislature, or a member  of  the  state  legislature  or
  legislative  staff contacting a governmental entity about a governmental

  procurement being conducted by a  governmental  entity  other  than  the
  state  legislature, provided that the member of the state legislature or
  legislative staff is acting in their official capacity.
    5. Governmental entity staff may consult the model guidelines that may
  be  established by the advisory council on procurement lobbying pursuant
  to section one-t of the legislative law in implementing this section.
    6. a. Every governmental entity shall incorporate  a  summary  of  the
  policy   and   prohibitions  regarding  permissible  contacts  during  a
  governmental procurement pursuant to subdivision three of this  section,
  and  copies  of rules and regulations and applicable governmental entity
  guidelines  and  procedures  regarding  permissible  contacts  during  a
  governmental  procurement  pursuant to subdivision three of this section
  into their solicitation of proposals or bid documents or  specifications
  for all procurement contracts.
    b.  Every governmental entity shall seek written affirmations from all
  offerers as to the offerer's understanding of and  agreement  to  comply
  with  the  governmental  entity's  procedures  relating  to  permissible
  contacts during a governmental procurement pursuant to subdivision three
  of this section.
    7. Notwithstanding any law to the contrary,  prior  to  conducting  an
  award  of  a  procurement  contract,  a governmental entity conducting a
  governmental  procurement  shall   make   a   final   determination   of
  responsibility of the proposed awardee in accordance with paragraph f of
  subdivision nine of section one hundred sixty-three of this chapter, or,
  if the governmental entity is a public benefit corporation, as that term
  is defined in section sixty-six of the general construction law, and the
  majority  of  the  members  consist  of  persons either appointed by the
  governor or who serve as members by virtue of holding a civil office  of
  the  state,  according to the procurement guidelines adopted pursuant to
  subparagraph (iii) of paragraph (b)  of  subdivision  three  of  section
  twenty-eight   hundred  seventy-nine  of  the  public  authorities  law;
  provided, however, that nothing in this subdivision shall  be  construed
  as   abrogating   or   diminishing   any   existing  rights,  duties  or
  responsibilities  of  any  governmental  entity  as   it   pertains   to
  determinations of responsibility.
    8.  Any  member,  officer  or  employee  of  a governmental entity who
  becomes aware that an offerer has violated the provisions of subdivision
  three of this section with regard to  permissible  contacts  during  any
  governmental  procurement  shall  immediately notify the ethics officer,
  inspector  general,  if  any,  or  other  official  of   the   procuring
  governmental  entity  responsible  for  reviewing  or investigating such
  matters. If an offerer violates the provisions of subdivision  three  of
  this  section  with  regard  to  permissible  contacts at a governmental
  entity other than the governmental entity  conducting  the  governmental
  procurement,  the  member,  officer or employee who becomes aware of the
  violation shall notify the ethics officer, inspector general, if any, or
  other official of the governmental entity responsible for  reviewing  or
  investigating such matters where that member, officer or employee works,
  who  shall in turn notify the ethics officer, inspector general, if any,
  or other official of the procuring governmental entity  responsible  for
  reviewing  or  investigating  such matters at the procuring governmental
  entity.
    9. Every governmental entity shall establish a process for  review  by
  its  ethics  officer,  inspector  general,  if  any,  or  other official
  responsible for reviewing or investigating any allegations of violations
  of the provisions of subdivision three of this section  with  regard  to
  permissible   contacts   on   governmental  procurements,  and  for  the
  imposition of sanctions if such violations have been found to exist.

    10. a. Upon notification of any  allegation  of  a  violation  of  the
  provisions   of  subdivision  three  of  this  section  with  regard  to
  permissible contacts  on  governmental  procurements,  the  governmental
  entity's ethics officer, inspector general, if any, or other official of
  the   procuring   governmental   entity  responsible  for  reviewing  or
  investigating such matters shall immediately investigate such allegation
  and, if sufficient cause exists to believe that such allegation is true,
  shall give the  offerer  reasonable  notice  that  an  investigation  is
  ongoing and an opportunity to be heard in response to the allegation.
    b.  A finding that an offerer has knowingly and willfully violated the
  provisions of subdivision three  of  this  section  shall  result  in  a
  determination  of  non-responsibility for such offerer, and such offerer
  and  its  subsidiaries,  and  any  related  or  successor  entity   with
  substantially similar function, management, board of directors, officers
  and  shareholders  (hereinafter,  for  the  purposes  of  this paragraph
  "offerer"), shall not be awarded the procurement  contract,  unless  the
  governmental  entity finds that the award of the procurement contract to
  the offerer is necessary to protect public property or public health  or
  safety, and that the offerer is the only source capable of supplying the
  required   article   of  procurement  within  the  necessary  timeframe,
  provided, that the governmental entity shall include in the  procurement
  record  a  statement  describing  the  basis  for  such  a  finding. Any
  subsequent determination of non-responsibility due to violation of  this
  section  within  four years of a determination of non-responsibility due
  to a violation of  this  section  shall  result  in  the  offerer  being
  rendered   ineligible  to  submit  a  proposal  on  or  be  awarded  any
  procurement contract for a period of four years from  the  date  of  the
  second  final determination. Every governmental entity shall ensure that
  its  solicitations  of  proposals  for  procurement  contracts   require
  offerers to disclose findings of non-responsibility due to violations of
  the  provisions of subdivision three of this section within the previous
  four years by any governmental entity. The failure of offerers to timely
  disclose accurate and complete information or otherwise  cooperate  with
  the  governmental  entity  in  administering  this  provision  shall  be
  considered  by  the  governmental  entity  in   its   determination   of
  responsibility;  provided,  further,  that the governmental entity shall
  not award a contract to an offerer who fails to timely disclose accurate
  and complete information or otherwise cooperate  with  the  governmental
  entity  in  administering  this provision unless the governmental entity
  finds that the award of the  procurement  contract  to  the  offerer  is
  necessary  to  protect  public  property or public health or safety, and
  that the offerer is the only source capable of  supplying  the  required
  article  of  procurement  within the necessary timeframe, provided, that
  the governmental entity  shall  include  in  the  procurement  record  a
  statement  describing the basis for such a finding. Upon a determination
  of non-responsibility or debarment due to a violation of  this  section,
  the  governmental  entity  shall  notify the office of general services,
  which shall keep a list of all offerers who have been determined  to  be
  nonresponsible  bidders  or  debarred due to violations of this section;
  the office of general services shall make publicly available  such  list
  and shall publish such list on its web site.
    c.  If  a  violation  of  the  provisions of subdivision three of this
  section is found to have knowingly  and  willfully  occurred,  then  the
  ethics  officer  or  inspector general, if any, or other official of the
  procuring governmental entity responsible for reviewing or investigating
  such matters  shall  report  instances  of  employee  violation  of  the
  guidelines and procedures regarding implementation of subdivision two of
  this section to the governmental entity's head.

    11.  Nothing  in this section shall be deemed to prevent: (a) contacts
  by offerers in protests, appeals or other review proceedings  (including
  the   apparent   successful   bidder   or   proposer   and  his  or  her
  representatives)  before  the   governmental   entity   conducting   the
  procurement  seeking  a  final  administrative  determination,  or  in a
  subsequent judicial proceeding; or
    (b)  complaints  of  alleged  improper  conduct  in   a   governmental
  procurement   to  the  attorney  general,  inspector  general,  district
  attorney, or court of competent jurisdiction; or
    (c) written 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, and where such communications
  and  any  responses  thereto are made in writing and shall be entered in
  the procurement record pursuant to section one  hundred  sixty-three  of
  the state finance law; or
    (d)   complaints   of  alleged  improper  conduct  in  a  governmental
  procurement conducted by a municipal agency or local legislative body to
  the state comptroller's office;
    provided, however, that nothing in this subdivision shall 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 eleven of the state finance law or any other  provision  of  law
  dealing with the governmental procurement process.
    * NB Repealed March 10, 2010