2022 New York Laws :: STF - State Finance :: Article 11 - State Purchasing :: 163 - Purchasing Services and Commodities. (2024)

** § 163. Purchasing services and commodities. 1. Definitions. For thepurposes of this section, the following terms shall have the followingmeanings unless otherwise specified: a. "Consortium" means like entities which agree to collectivelypurchase commodities at a lower price than would be otherwise achievablethrough purchase by such entities pursuant to other provisions of thisarticle. b. "Emergency" means an urgent and unexpected requirement where healthand 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 andas such terms have been interpreted relative to public procurements. d. "Responsive" means a bidder or other offerer meeting the minimumspecifications or requirements as prescribed in a solicitation forcommodities or services by a state agency. e. "Specification" or "requirement" means any description of thephysical or functional characteristics or the nature of a commodity orconstruction item, any description of the work to be performed, theservice or products to be provided, the necessary qualifications of theofferer,the capacity and capability of the offerer to successfully carryout the proposed contract, or the process for achieving specific resultsand/or anticipated outcomes or any other requirement necessary toperform the work. It may include a description of any obligatorytesting, inspection or preparation for delivery and use, and may includefederally required provisions and conditions where the eligibility forfederal funds is conditioned upon the inclusion of such federallyrequired provisions and conditions. Specifications shall be designed toenhance competition, ensuring the commodities or services of any offererare not given preference except where required by this article. f. "Procurement record" means documentation of the decisions made andthe approach taken in the procurement process. g. "Sole source" means a procurement in which only one offerer iscapable of supplying the required commodities or services. h. "Single source" means a procurement in which although two or moreofferers can supply the required commodities or services, thecommissioner or state agency, upon written findings setting forth thematerial and substantial reasons therefor, may award a contract ornon-technical amendment to a contract to one offerer over the other. Thecommissioner or state agency shall document in the procurement recordthe circ*mstances leading to the selection of the vendor, including thealternatives considered, the rationale for selecting the specific vendorand the basis upon which it determined the cost was reasonable. i. "Lowest price" means the basis for awarding contracts forcommodities among responsive and responsible offerers. j. "Best value" means the basis for awarding contracts for services tothe offerer which optimizes quality, cost and efficiency, amongresponsive and responsible offerers. Such basis shall reflect, whereverpossible, objective and quantifiable analysis. Such basis may alsoidentify a quantitative factor for offerers that are small businesses,certified minority- or women-owned business enterprises as defined insubdivisions one, seven, fifteen and twenty of section three hundred tenof the executive law or service-disabled veteran-owned businessenterprises as defined in subdivision one of section forty of theveterans' services law to be used in evaluation of offers for awardingof contracts for services. k. "Authorized user" or "non-state agency purchaser" means (i) anyofficer, body or agency of the state or of a political subdivision or adistrict therein, or fire company or volunteer ambulance service as suchare defined in section one hundred of the general municipal law, to makepurchases of commodities, services and technology through the office ofgeneral services' centralized contracts, pursuant to the provisions ofsection one hundred four of the general municipal law; (ii) any countyextension service association as authorized under subdivision eight ofsection two hundred twenty-four of the county law; (iii) any associationor other entity as specified in and in accordance with section onehundred nine-a of the general municipal law; (iv) any association,consortium or group of privately owned or municipal, federal or stateowned or operated hospitals, medical schools, other health relatedfacilities or voluntary ambulance services, which have entered into acontract and made mutual arrangements for the joint purchase ofcommodities, services and technology pursuant to section twenty-eighthundred three-a of the public health law; (v) any institution for theinstruction of the deaf or of the blind listed in section forty-twohundred one of the education law; (vi) any qualified non-profit-makingagency for the blind approved by the commissioner of the office ofchildren and family services or the office of temporary and disabilityassistance; (vii) any qualified charitable non-profit-making agency forthe severely disabled approved by the commissioner of education; (viii)any hospital or residential health care facility as defined in sectiontwenty-eight hundred one of the public health law; (ix) any privatenot-for-profit mental hygiene facility as defined in section 1.03 of themental hygiene law; (x) any public authority or public benefitcorporation of the state, including the port authority of New York andNew Jersey and the interstate environmental commission; (xi) any publiclibrary, association library, library system, cooperative librarysystem, the New York Library Association, and the New York StateAssociation of Library Boards or any other library except those whichare operated by for profit entities; (xii) any other association orentity as specified in state law, to make purchases of commodities,services and technology through the office of general services'centralized contracts. Such qualified non-profit-making agencies for theblind and severely disabled may make purchases from the correctionalindustries program of the department of corrections and communitysupervision subject to rules pursuant to the correction law. 2. Operating principles. The objective of state procurement is tofacilitate each state agency's mission while protecting the interests ofthe state and its taxpayers and promoting fairness in contracting withthe business community. The state's procurement process shall be guidedby 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 clearstatement of product specifications, requirements or work to beperformed; a documentable process for soliciting bids, proposals orother offers; a balanced and fair method, established in advance of thereceipt of offers, for evaluating offers and awarding contracts;contract terms and conditions that protect the state's interests andpromote fairness in contracting with the business community; and aregular monitoring of vendor performance. c. To encourage the investment of the private and not-for-profitsectors in New York state by making reasonable efforts to ensure thatofferers are apprised of procurement opportunities; by specifying theelements of a responsive bid and disclosing the process for awardingcontracts including, if applicable, the relative importance and/orweight of cost and the overall technical criterion for evaluatingoffers; and by ensuring the procurement is conducted accordingly. d. To ensure that contracts are awarded consistent with the bestinterests of the state. e. To ensure that officers and employees ofstate entities do not benefit financially or otherwise from the award ofstate contracts. f. To ensure regular and critical review of the efficiency, integrityand effectiveness of the overall process. 3. General provisions for purchasing commodities. a. State agency procurement practices for commodities shallincorporate the following:
 (i) The purchase of commodities by state agencies including the officeof general services shall be conducted in a manner which accords firstpriority to preferred sources in accordance with the provisions of thisarticle, second priority to centralized contracts, third priority toagency or multi-agency established contracts and fourth priority toother means of contracting.
 (ii) Commodities contracts shall be awarded on the basis of lowestprice to a responsive and responsible offerer; or, in the case ofmultiple awards, in accordance with paragraph c of subdivision ten ofthis section.
 (iii) The commissioner shall be responsible for the standardizationand centralized purchase of commodities required by state agencies in amanner which maximizes the purchasing value of public funds.
 (iv) The commissioner is authorized to permit purchases of commoditiesand services for authorized users through the office of generalservices' centralized contracts. Such authorized users so empoweredshall accept sole responsibility for any payment due with respect tosuch purchases.
 (v) Consistent with guidelines issued by the state procurementcouncil, state agencies may competitively purchase commodities procuredin accordance with this article in lieu of using centralized contractswhen the resultant price is less than the centralized contract price.
 (vi) When justified by price, state agencies, and hospitals andfacilities managed and controlled by state agencies eligible pursuant tosection twenty-eight hundred three-a of the public health law, shall beeligible to make purchases pursuant to guidelines issued by the stateprocurement council from a consortium or comparable entity in lieu ofusing centralized contracts for commodities.
 (vii) The commissioner is authorized to enter into contracts pursuantto the provisions of section twenty-eight hundred three-a of the publichealth law. b. The commissioner shall:
 (i) determine, in cooperation with the state procurement council andstate agencies, the identity, form, function and utility of thosecommodities which shall be made available on or through centralizedcontracts. Criteria may include, but need not be limited to, theavailability of a volume discount, prior use of the commodity amongstate agencies and the relative cost of establishing the contract, itsanticipated use and expected actual savings for the state. Thecommissioner may also act as a broker for state agencies to procurecommodities.
 (ii) determine the number and scope of centralized contracts forcommodities to be let during any period, including the letting ofmultiple contracts to ensure the sufficient variety and uninterruptedavailability of commodities for state agency use.
 (iii) maintain lists of firms which produce or manufacture or offerfor sale commodities in the form, function and utility required by stateagencies. The commissioner shall ensure such lists are updatedregularly. With the assistance of the department of economic developmentand other state agencies, beginning on July first, two thousand one,ensure the availability to all authorized purchasers of a centralizedlist which identifies commodities offered by New York state's smallbusinesses and a centralized list which identifies commodities andservices offered by businesses certified pursuant to article fifteen-Aof the executive law. Such lists shall be updated semiannually anddesigned to enable effective identification of New York state's smallbusinesses and businesses certified pursuant to article fifteen-A of theexecutive law.
 (iv) ensure the specification of commodities for centralized contractsreflect the form, function and utility required by state agencies andconform, wherever possible, to industry standards. Where necessary, thecommissioner may develop specifications for commodities. When nototherwise forthcoming from a particular firm or industry, thecommissioner may request information from businesses for the purpose ofestablishing or improving a specification. The office of generalservices may assist agencies in developing specifications foragency-procured commodity contracts when industry standards are notavailable or appropriate. In all cases, specifications shall beconsistent with the requirements of state agencies.
 (v) With the assistance of the department of economic development andother state agencies, provide a training program once per year, in eacheconomic development region, as established in article eleven of theeconomic development law, beginning January first, two thousand one, forthose businesses certified pursuant to article fifteen-A of theexecutive law and those interested in becoming certified. Such trainingprogram shall provide assistance with respect to participation as avendor in the procurement process, as established in this article, andincluding without limitation educating minority and women contractorsabout surety bonding requirements on state contracts, and identifyingresources available to such contractors in obtaining their first bondand in increasing their bonding capacity, including but not limited tothe federal small business administration bond guarantee program.
 (vi) With the assistance of the department of economic development andother state agencies, provide training once per year for staff of eachstate agency's minority and women business development office, or if anagency 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 ofcommodities and services from businesses certified pursuant to articlefifteen-A of the executive law.
 (vii) assist the department of agriculture and markets and thedepartment of economic development in providing a training program onceper year, in each economic development region, established in articleeleven of the economic development law, to encourage and increaseparticipation in the procurement process, pursuant to this article, bysmall businesses, as defined in section one hundred thirty-one of theeconomic development law, including farms, selling food or foodproducts, animal or plant fiber products grown, produced, harvested, orprocessed in New York state or textile products manufactured from animalor plant fiber grown or produced predominantly in New York state andassist such businesses in identifying such food, food products, oranimal or plant fiber products and textile products which may help tomeet state agencies' needs.
 (viii) maintain a list of contractors which produce or manufacture oroffer for sale environmentally-sensitive cleaning and maintenanceproducts in the form, function and utility generally used by elementaryand secondary schools in accordance with specifications or guidelinespromulgated pursuant to section four hundred nine-i of the educationlaw.
 (ix) review and consider prior to issuance of bid solicitations theterm of the proposed contract based on factors, including, but notlimited to; (A) the nature of the commodity, (B) the complexity of theprocurement, (C) the identity and type of purchasers, (D) thesuitability of the contract for adding additional contractors during theterm, and (E) the estimated contract value. This determination shall bedocumented in the procurement record.
See Also
XII.5.I Prompt Payment Interest
 (x) reasonably consider aggregate amount of public sales by potentialvendors.
 (xi) review and consider the feasibility of creating regionalcontracts for commodities being procured by the state.
 (xii) maintain a procurement record for each centralized contractprocurement identifying, with supporting documentation, decisions madeby the commissioner during the procurement process. The procurementrecord shall include, but not be limited to, each contract amendment,and the justification for each.
 (xiii) maintain a list of New York-based firms which produce ormanufacture or offer for sale animal or plant fiber textile productscontaining animal or plant fiber grown or produced predominantly in NewYork state in the form, function and utility generally purchased for useby state agencies. c. When commodities are not available in the form, function andutility required by state agencies through preferred sources orcentralized contracts, a state agency may, independently or inconjunction with other state agencies, procure commodities in accordancewith the provisions of this section. State agencies may maintainlistings of firms, including those certified pursuant to articlefifteen-A of the executive law, or may use the office of generalservices' listing of firms and may request assistance from the office ofgeneral services. It shall be the responsibility of state agencies toperiodically advise the office of general services of thoseagency-procured commodities which, due to the frequency of purchase orrelated factors, should be made available through centralized contracts. d. The commissioner may make, or cause to be made by a duly authorizedrepresentative, any investigation which he or she may deem proper foracquiring the necessary information from a state agency, except stateagencies where the head of the agency is not appointed by the governor,including but not limited to the state education department, thedepartment of law, and the department of audit and control, for theexercise of his or her powers and duties under this section. For suchpurposes the commissioner may subpoena and compel the attendance ofwitnesses before him or her, or an authorized representative, and maycompel the production of books, papers, records or documents. Thecommissioner or a duly authorized representative may take and hearproofs and testimony and, for that purpose, the commissioner or the dulyauthorized representative may administer oaths. In addition, thecommissioner or the duly authorized representative:
 (i) Shall have access at all reasonable times to offices of stateagencies;
 (ii) May examine all books, papers, records and documents in any suchstate agency as pertain directly to the purchase, control ordistribution of commodities; and
 (iii) May require any state agency to furnish such data, informationor statement as may be necessary. 4. General provisions for purchasing services. State agencyprocurement practices for services shall incorporate the following: a. The purchase of services by state agencies including the office ofgeneral services shall be conducted in a manner which accords firstpriority to preferred sources in accordance with the provisions of thisarticle when the services required are available in the form, functionand utility required by state agencies through a preferred source. b.
 (i) Centralized contracts for services may be procured by theoffice of general services at the request of state agencies or asdetermined by the commissioner. The purchase of services by stateagencies, except state agencies where the head of the agency is notappointed by the governor, including but not limited to the stateeducation department, the department of law, and the department of auditand control, shall be conducted in a manner that accords second priorityto centralized contracts meeting form, function and utility required bysaid agency, third priority to agency or multi-agency establishedcontracts and fourth priority to other means of contracting.
 (ii) The commissioner shall:
 (A) review and consider prior to issuance of bid solicitations theterm of the proposed contract based on factors, including, but notlimited to, (a) the nature of the service, (b) the complexity of theprocurement, (c) the identity and type of purchasers, (d) thesuitability of the contract for adding additional contractors during theterm, and (e) the estimated contract value. This determination shall bedocumented in the procurement record.
 (B) reasonably consider the aggregate amount of public sales bypotential vendors.
 (C) review and consider the feasibility of creating regional contractsfor services being procured by the state.
 (D) maintain a procurement record for each centralized contractprocurement identifying with supporting documentation, decisions made bythe commissioner during the procurement process. The procurement recordsshall include, but not be limited to, each contract amendment, and thejustification for each. c. When services are not available from preferred sources consistentwith the provisions of this article in the form, function or utilityrequired by state agencies, state agencies may procure servicesindependently or in conjunction with other state agencies in accordancewith the provisions of this section. d. Service contracts shall be awarded on the basis of best value to aresponsive and responsible offerer; or, in the case of multiple awards,in accordance with paragraph c of subdivision ten of this section. e. The commissioner is authorized to permit purchases of services forauthorized users through the office of general services' centralizedcontracts. Such authorized users so empowered shall accept soleresponsibility for any payment due with respect to such purchases. g. All state agencies shall require all contractors, includingsub-contractors, that provide services for state purposes pursuant to acontract, to submit an annual employment report for each contract forservices that includes for each employment category within the contractthe number of employees employed to provide services under the contract,the number of hours they work and their total compensation under thecontract. Employment reports shall be submitted to the agency thatawarded the contract, the department of civil service and the departmentof audit and control and shall be available for public inspection andcopying pursuant to section eighty-seven of the public officers lawprovided that in disclosing such reports pursuant to the public officerslaw, the agency making the disclosure shall redact the name or socialsecurity number of any individual employee that is included in suchdocument. 5. Process for conducting state procurements. The process forconducting state procurements for services and commodities shall be asfollows: Determination of need. State agencies shall be responsible fordetermining the need for a given service or commodity:
 (i) For commodities, upon such determination of need, state agenciesshall ascertain whether the commodity is available in the form, functionand utility consistent with their needs from preferred sources and ifso, shall purchase said commodity from a preferred source in accordancewith the provisions of this article. If not so available, state agenciesshall determine whether the commodity is available in the form, functionand utility consistent with their needs on a centralized contract and ifso, except as provided in subparagraph (v) of paragraph a of subdivisionthree of this section, shall purchase said commodity using thecentralized contract. If a commodity is not available in the form,function and utility consistent with the needs of the state agency froma preferred source or a centralized contract or as provided for insubparagraph (v) of paragraph a of subdivision three of this section,the state agency may procure the commodity independently or inconjunction with another state agency in accordance with paragraph c ofsubdivision three of this section.
 (ii) For services, upon such determination of need, state agenciesshall ascertain whether the service is available in the form, functionand utility consistent with their needs from preferred sources and, ifso, shall purchase said service through the preferred source inaccordance with the provisions of this article. If not so available,state agencies the heads of which are appointed by the governor:
 (A) Shall purchase the service if it is available in the form,function and utility consistent with their needs using an establishedcentralized contract procured by either the office of general servicesor another state agency;
 (B) May request that the office of general services procure such aservice, particularly with respect to those services having utilityand/or benefit to more than one state agency; or
 (C) May procure the service independently or in conjunction withanother state agency. 6. Discretionary buying thresholds. Pursuant to guidelines establishedby the state procurement council: the commissioner may purchase servicesand commodities for the office of general services or its customeragencies serviced by the office of general services business servicescenter in an amount not exceeding eighty-five thousand dollars without aformal competitive process; state agencies may purchase services andcommodities in an amount not exceeding fifty thousand dollars without aformal competitive process; and state agencies may purchase commoditiesor services from small business concerns or those certified pursuant toarticle fifteen-A of the executive law and article three of theveterans' services law, or commodities or technology that are recycledor remanufactured in an amount not exceeding five hundred thousanddollars without a formal competitive process and for commodities thatare food, including milk and milk products, or animal or plant fiberproducts, grown, produced, harvested, or processed in New York state ortextile products manufactured from animal or plant fiber grown orproduced predominantly in New York state in an amount not to exceed twohundred thousand dollars, without a formal competitive process. 6-a. Discretionary purchases. Notwithstanding the provisions ofsubdivision two of section one hundred twelve of this chapter relatingto the dollar threshold requiring the state comptroller's approval ofcontracts, the commissioner of general services may make purchases orenter into contracts for the acquisition of commodities and services forthe office of general services or its customer agencies serviced by theoffice of general services business services center having a value notexceeding eighty-five thousand dollars without prior approval by anyother state officer or agency in accordance with procedures andrequirements set forth in this article. 6-b. Determination of threshold amount. For determination of thresholdamount purposes of determining whether a purchase is within thediscretionary thresholds established by subdivision six of this section,the commissioner and state agencies shall consider the reasonablyexpected aggregate amount of all purchases of the same commodities orservices to be made within the twelve-month period commencing on thedate of purchase. Purchases of services or commodities shall not beartificially divided for the purpose of satisfying the discretionarybuying thresholds established by subdivision six of this section. Achange to or a renewal of a discretionary purchase shall not bepermitted if the change or renewal would bring the reasonably expectedaggregate amount of all purchases of the same commodities or servicesfrom the same provider within the twelve-month period commencing on thedate of the first purchase to an amount greater than the discretionarybuying threshold amount. 6-c. Pursuant to the authority provided in subdivision six of thissection, for the purchase of commodities that are food, including milkand milk products, or animal or plant fiber products, grown, produced,harvested, or processed in New York state or textile productsmanufactured from animal or plant fiber grown or produced predominantlyin New York state, where such commodities exceed fifty thousand dollarsin value, state agencies must advertise the discretionary purchase onthe state agency website for a reasonable period of time and make thediscretionary purchase based on the lowest price that meets the stateagency's form, function and utility. 6-d. Pursuant to the authority provided in subdivision six of thissection, state agencies shall report annually on a fiscal year basis byJuly first of the ensuing year to the director of the division ofminority and women-owned business development the total number and totalvalue of contracts awarded to businesses certified pursuant to articlefifteen-A of the executive law, and with respect to contracts awarded tobusinesses certified pursuant to article three of the veterans' serviceslaw such information shall be reported to the division ofservice-disabled veteran-owned business enterprises for inclusion intheir respective annual reports. 7. Method of procurement. Consistent with the requirements ofsubdivisions three and four of this section, state agencies shall selectamong permissible methods of procurement including, but not limited to,an invitation for bid, request for proposals or other means ofsolicitation pursuant to guidelines issued by the state procurementcouncil. State agencies may accept bids electronically includingsubmission of the statement of non-collusion required by section onehundred thirty-nine-d of this chapter, and the statement ofcertification required by section one hundred thirty-nine-l of thischapter. Except where otherwise provided by law, procurements shall becompetitive, and state agencies shall conduct formal competitiveprocurements to the maximum extent practicable. State agencies shalldocument the determination of the method of procurement and the basis ofaward in the procurement record. Where the basis for award is the bestvalue offer, the state agency shall document, in the procurement recordand in advance of the initial receipt of offers, the determination ofthe evaluation criteria, which whenever possible, shall be quantifiable,and the process to be used in the determination of best value and themanner in which the evaluation process and selection shall be conducted. 7-a. Notwithstanding the electronic bid provisions set forth insubdivision seven of this section, starting April first, two thousandtwenty-three, and ending March thirty-first, two thousand twenty-seven,state agencies may require electronic submission as the sole method forthe submission of bids for commodity, service and technology contracts,including submission of the statement of non-collusion required bysection one hundred thirty-nine-d of this chapter, and the statement ofcertification required by section one hundred thirty-nine-l of thischapter, and may require electronic signatures on all documents requiredfor submission of a bid, any resulting contracts, and requiredsubmissions during the term of any contract. Prior to requiring theelectronic submission of bids, the agency shall make a determination,which shall be documented in the procurement record, that electronicsubmission affords a fair and equal opportunity for offerers to submitresponsive offers, and that the electronic signature complies with theprovisions of article three of the state technology law. 7-b. On or before December first, two thousand twenty-six, thecommissioner of the office of general services shall submit to thespeaker of the assembly and the temporary president of the senate andpost on the website of the office of general services a reportincluding, but not limited to, the following information:
 (a) which state agencies required electronic submission as the solemethod by which bids could be submitted for the period from April first,two thousand twenty-three through March thirty-first, two thousandtwenty-six;
 (b) the number and types of contracts for which such state agenciesrequired electronic submission as the sole method by which bids could besubmitted for the period from April first, two thousand twenty-threethrough March thirty-first, two thousand twenty-six;
 (c) the estimated savings to the state as a result of such stateagencies requiring electronic submission as the sole method by whichbids could be submitted in response to a solicitation and the basis onwhich the estimate is made;
 (d) to the extent practicable, the size, industry, minority- andwomen-owned business enterprise composition, service-disabledveteran-owned business enterprise composition, and geographicdistribution of those vendors that submitted bids in response tosolicitations from state agencies where electronic submission was thesole method by which bids could be submitted for the period from Aprilfirst, two thousand twenty-three through March thirty-first, twothousand twenty-six;
 (e) to the extent practicable, the size, industry, minority- andwomen-owned business enterprise composition, service-disabledveteran-owned business enterprise composition, and geographicdistribution of those vendors that submitted non-electronic bids inresponse to solicitations from state agencies where electronicsubmission was accepted but not required for the period from Aprilfirst, two thousand twenty-three through March thirty-first, twothousand twenty-six; and
 (f) recommendations for the future use of electronic bidding as apermissible method of procurement. 8. Public notice. All procurements by state agencies, including,without limitation, the state university of New York and the cityuniversity of New York, in excess of fifty thousand dollars shall beadvertised in the state's procurement opportunities newsletter inaccordance with article four-C of the economic development law. 9. Soliciting and accepting offers. For purchases from sources otherthan preferred sources and for purchases in excess of the discretionarybuying threshold established in subdivision six of this section: a. The commissioner or a state agency shall select a formalcompetitive procurement process in accordance with guidelinesestablished by the state procurement council and document itsdetermination in the procurement record. The process shall include, butis not limited to, a clear statement of need; a description of therequired specifications governing performance and related factors; areasonable process for ensuring a competitive field; a fair and equalopportunity for offerers to submit responsive offers; and a balanced andfair 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 therating of proposals and the evaluation results, or, where notpracticable, such other justification which demonstrates that best valuewill be achieved. b. The solicitation shall prescribe the minimum specifications orrequirements that must be met in order to be considered responsive andshall describe and disclose the general manner in which the evaluationand selection shall be conducted. Where appropriate, the solicitationshall identify the relative importance and/or weight of cost and theoverall technical criterion to be considered by a state agency in itsdetermination of best value. c. Where provided in the solicitation, state agencies may requireclarification from offerers for purposes of assuring a fullunderstanding of responsiveness to the solicitation requirements. Whereprovided for in the solicitation, revisions may be permitted from allofferers determined to be susceptible of being selected for contractaward, prior to award. Offerers shall be accorded fair and equaltreatment with respect to their opportunity for discussion and revisionof offers. A state agency shall, upon request, provide a debriefing toany unsuccessful offerer that responded to a request for proposal or aninvitation for bids, regarding the reasons that the proposal or bidsubmitted by the unsuccessful offerer was not selected for an award. Theopportunity for an unsuccessful offerer to seek a debriefing shall bestated in the solicitation.
 (i) A debriefing shall be requested by the unsuccessful offerer withinfifteen calendar days of release by the state agency of a notice inwriting or electronically that the offerer's offer is unsuccessful.
 (ii) Such notice shall be provided to all unsuccessful offerers by thestate agency for the specific procurement.
 (iii) The state agency, upon a request made within fifteen days ofrelease of the written or electronic notice from the unsuccessfulofferer for a debriefing, shall schedule the debriefing to occur withina reasonable time of such request. Debriefings shall be conducted by thestate agency with the unsuccessful offerer in-person, provided, however,the parties may mutually agree to utilize other means such as, but notlimited to, by telephone, video-conferencing or other types ofelectronic communications. State agency personnel participating in thedebriefing discussion shall have been involved with and knowledgeableabout the procurement and the evaluation and selection of the successfulofferer or offerers.
 (iv) Such debriefing shall include, but need not be limited to: (A)the reasons that the proposal, bid or offer submitted by theunsuccessful offerer was not selected for award; (B) the qualitative andquantitative analysis employed by the agency in assessing the relativemerits of the proposals, bids or offers; (C) the application of theselection criteria to the unsuccessful offerer's proposal; and (D) whenthe debriefing is held after the final award, the reasons for theselection of the winning proposal, bid or offer. The debriefing shallalso provide, to the extent practicable, general advice and guidance tothe unsuccessful offerer concerning potential ways that their futureproposals, bids or offers could be more responsive. 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 sixtydays from the bid opening, or such other period of time specified in thesolicitation to the extent not inconsistent with section 2-205 of theuniform commercial code. Subsequent to such sixty day or other specifiedperiod, any offer is subject to withdrawal communicated in a writingsigned by the offeror. f. Prior to making an award of contract, each state agency shall makea determination of responsibility of the proposed contractor which shallsupplement, as appropriate, but not supersede the determination ofresponsibility that may be required pursuant to section one hundredthirty-nine-k of this chapter. g. A procurement record shall be maintained for each procurementidentifying, with supporting documentation, decisions made by thecommissioner or state agency during the procurement process. Theprocurement record shall include, but not be limited to each contractamendment and the justification for each. 10. Letting of contracts. Contracts for commodities shall be awardedon the basis of lowest price to a responsive and responsible offerer.Contracts for services shall be awarded on the basis of best value froma responsive and responsible offerer. Multiple awards for services andcommodities shall be conducted in accordance with paragraph c of thissubdivision. a. Selection and award shall be a written determination in theprocurement record made by the commissioner or a state agency in amanner consistent with the provisions of the solicitation. In the eventtwo offers are found to be substantially equivalent, price shall be thebasis for determining the award recipient or, when price and otherfactors are found to be substantially equivalent, the determination ofthe commissioner or agency head to award a contract to one or more ofsuch bidders shall be final. The basis for determining the award shallbe 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 madeunder unusual circ*mstances and shall include a determination by thecommissioner or the state agency that the specifications or requirementsfor said purchase have been designed in a fair and equitable manner. Thepurchasing agency shall document in the procurement record, subject toreview by the state comptroller, the bases for a determination topurchase from a single source or sole source, or the nature of theemergency giving rise to the procurement.
 (ii) State agencies shall minimize the use of single sourceprocurements and shall use single source procurements only when a formalcompetitive process is not feasible. State agencies shall document inthe procurement record the circ*mstances and the material andsubstantial reasons why a formal competitive process is not feasible.The term of a single source procurement contract shall be limited to theminimum period of time necessary to ameliorate the circ*mstances whichcreated the material and substantial reasons for the single sourceaward. Not later than thirty days after the contract award, stateagencies shall, for all single source procurement contracts, makeavailable for public inspection on the agency website, a summary of thecirc*mstances and material and substantial reasons why a competitiveprocurement is not feasible. Any information which the contractingagency is otherwise prohibited by law from disclosing pursuant tosections eighty-seven and eighty-nine of the public officers law, shallbe redacted from the documentation published on the agency website. c. The commissioner or state agency may elect to award a contract toone or more responsive and responsible offerers provided, however, thatthe basis for the selection among multiple contracts at the time ofpurchase shall be the most practical and economical alternative andshall be in the best interests of the state, and further provided thatthe requirements set forth herein shall not preclude the commissionerfrom establishing multiple award contracts for reasons includingincreased opportunities for small businesses to participate in statecontracts. d. It shall be in the discretion of the commissioner or state agencyto require a bond or other guarantee of performance, and to approve theamount, form and sufficiency thereof. e. The commissioner may authorize purchases required by state agenciesor other authorized purchasers by letting a contract pursuant to awritten agreement, or by approving the use of a contract let by anydepartment, agency or instrumentality of the United States governmentand/or any department, agency, office, political subdivision orinstrumentality of any state or states. A state agency purchaser shalldocument in the procurement record its rationale for the use of acontract let by any department, agency or instrumentality of the UnitedStates government or any department, agency, office, politicalsubdivision or instrumentality of any other state or states. Suchrationale shall include, but need not be limited to, a determination ofneed, a consideration of the procurement method by which the contractwas awarded, an analysis of alternative procurement sources including anexplanation why a competitive procurement or the use of a centralizedcontract let by the commissioner is not in the best interest of thestate, and the reasonableness of cost. f. The commissioner is authorized to let centralized contracts, inaccordance with the procedures of this section, for joint purchasing byNew York state and any department, agency or instrumentality of theUnited States government and/or any state including the politicalsubdivisions thereof; provided however that any entity incurring aliability under such contract shall be responsible for discharging saidliability. 11. Reasonableness of results. It shall be the responsibility of thehead of each state agency to periodically sample the results of theprocurement process to test for reasonableness; to ensure that theresults withstand public scrutiny and that the quality and the price ofthe purchase makes sense; and to ensure that purchasing is conducted ina manner consistent with the best interests of the state. 12. Review by the office of the state comptroller. Review by theoffice of the state comptroller shall be in accordance with section onehundred twelve of this chapter. If the contracting agency has notcomplied with one or more provisions of this article, the statecomptroller may approve the awarded contract if: a. the contracting agency determines that the noncompliance was anon-material deviation from one or more provisions of this article. Forthe purposes of this subdivision "non-material deviation" shall meanthat such noncompliance did not prejudice or favor any vendor orpotential vendor, such noncompliance did not substantially affect thefairness of the competitive process, and that a new procurement wouldnot be in the best interest of the state. Such determination by thecontracting agency and the state comptroller shall be documented in theprocurement record; and b. the state comptroller concurs in such determination. 13. Technological procurement improvements. The state procurementcouncil may request that the office of general services provide, orrecommend to the state comptroller to provide for the utilization oftechnological advances and efficiencies in the procurement processincluding, but not limited to, electronic ordering and payment,procurement cards and similar improvements. 14. Reporting by the state comptroller. To support transparency in thestate's procurement process and prudent procurement management,oversight and policy-making, the state comptroller shall submit a reportto the state procurement council, the governor, the commissioner of theoffice of general services, the director of the budget, and thelegislative fiscal committees containing data related to state agencycontracts. Such report shall be made annually, on a fiscal year basis bythe first of July of the next succeeding year. a. For state agency contracts, such report shall include:
 (i) a list of all active contracts as of the end of the fiscal year;
 (ii) a list of all contracts reviewed by the office of the statecomptroller during the fiscal year;
 (iii) a list of contract award protests reviewed by the office of thestate comptroller and the resolution thereof; and
 (iv) for consulting contracts subject to approval of the statecomptroller, a report of planned and actual employment under eachcontract. b. The lists required pursuant to subparagraphs (i) and (ii) ofparagraph a of this subdivision shall include, to the extent reasonablyavailable, the following information related to each contract:
 (i) the state agency letting the contract;
 (ii) the state agency for which the contract is let, if different;
 (iii) whether an agency contract or centralized contract;
 (iv) vendor name and address;
 (v) a description of the contract. For contracts let under sectionnine of the public buildings law, the description shall denote the scopeof work of the contract and the nature of the emergency for which it waslet;
 (vi) contract start and end dates;
 (vii) the dollar value of the contract;
 (viii) for contracts subject to approval by the state comptroller,whether approved or non-approved, the date of suchapproval/non-approval, and if non-approved, the reason or reasonstherefor;
 (ix) life to date and fiscal year expenditures against the contractand by which agencies;
 (x) major contract category, including, but not limited to,consultant, construction, equipment, grants, leases, land claim,miscellaneous services, printing, repayment agreements, revenueagreements, intergovernmental agreements, and commodities;
 (xi) source selection method, including "lowest price", "best value",sole source, single source, negotiated and/or emergency procurement;
 (xii) number of bids/proposals received by the contracting agency; and
 (xiii) subtotals as deemed applicable. c. The report required pursuant to subparagraph (iv) of paragraph a ofthis subdivision shall include:
 (i) information required to be reported by the contractor annually bythe employment category within the contract, including the plannednumber of employees to provide services under the contract, the plannednumber of hours to be worked under the contract, and the totalcompensation planned under the contract; and
 (ii) information required to be reported by the contractor annuallypursuant to paragraph g of subdivision four of this section,specifically, the actual number of employees, by employment categorywithin the contract, employed to provide services under the contract,the number of hours worked and total compensation under the contract. d. For the purposes of the report required pursuant to subparagraph(iv) of paragraph a of this subdivision, a "contract for consultingservices" shall mean any contract entered into by a state agency foranalysis, evaluation, research, training, data processing, computerprogramming, engineering, environmental health and mental healthservices, accounting, auditing, paralegal, legal, or similar services.Such report shall be available for public inspection and copyingpursuant to section eighty-seven of the public officers law providedthat in disclosing such reports pursuant to the public officers law, theagency making the disclosure shall redact the name, social securitynumber and other personal information of any individual employee orconsultant that is included in such document. e. The information required by this subdivision shall be provided inelectronic format in such form as prescribed by the state comptrollersuch that the data can be searched and sorted. f. All reports required under this subdivision shall be available forpublic inspection and copying pursuant to section eighty-seven of thepublic officers law provided that in disclosing such reports pursuant tothe public officers law, the agency making the disclosure shall redactthe name or social security number of any individual employee that isincluded in such document. 15. Reporting by agencies. a. State agencies shall report annually, ona fiscal year basis, by July first of the ensuing year to the stateprocurement council, the governor, the legislative fiscal committees andthe state comptroller the total number and total dollar value of singlesource contracts awarded by the agency during the fiscal year, and thepercentage such contracts represent of the agency's total number andtotal dollar value of contract awards during the reporting period. b. Each state agency shall include with its report an assessment bythe agency head of the agency's efforts to minimize the award of singlesource contracts. c. All reports required under this subdivision shall be available forpublic inspection and copying pursuant to section eighty-seven of thepublic officers law provided that in disclosing such reports pursuant tothe public officers law, the agency making the disclosure shall redactthe name or social security number of any individual employee that isincluded in such document. ** NB Repealed June 30, 2026