N.Y. Comp. Codes R. & Regs. tit. 19 § 943.8

Current through Register Vol. 46, No. 50, December 11, 2024

Section 943.8 - Procurement Lobbying

(a) Definitions.

(1)Procurement Lobbying means an Attempt to Influence a determination related to a Governmental Procurement by:

(i) A Public Official, or a person or entity working with a Public Official; or

(ii) An officer or employee of the Unified Court System, or a person or entity working with an officer or employee of the Unified Court System.

(2)Procurement Contract means a contract or other agreement, including an amendment, extension, renewal, or change order to an existing contract (other than amendments, extensions, renewals, or change orders that are authorized and payable under the terms of the contract as it was finally awarded or approved by the comptroller, as applicable), for an Article of Procurement involving an estimated annualized expenditure of more than $15,000, but does not include:

(i) Grants;

(ii) Article XI-B State Finance Law contracts;

(iii) Program contracts between not-for-profit organizations, as defined in article XI-B of the State Finance Law, and the Unified Court System;

(iv) Intergovernmental agreements;

(v) Railroad and utility force accounts;

(vi) Utility relocation project agreements or orders;

(vii) Contracts governing organ transplants;

(viii) Contracts allowing for State participation in trade shows; or

(ix) Eminent domain transactions.

(3)Governmental Procurement means any activity that occurs during the:

(i) public announcement, public notice, or public communication to any potential vendor of a Determination of Need for a procurement, which shall include, but not be limited to, the public notification of the specifications, bid documents, request for proposals, or evaluation criteria for a Procurement Contract;

(ii) solicitation for a Procurement Contract;

(iii) evaluation of a Procurement Contract;

(iv) award, approval, denial or disapproval of a Procurement Contract; or

(v) approval or denial of an assignment, amendment (other than amendments that are authorized and payable under the terms of the Procurement Contract as it was finally awarded or approved by the comptroller, as applicable), renewal or extension of a Procurement Contract, or any other material change in the Procurement Contract resulting in a financial benefit to the Offerer.

(4)Article of Procurement means a:

(i) commodity;

(ii) service;

(iii) technology;

(iv) public work;

(v) construction;

(vi) revenue contract;

(vii) purchase, sale, or lease of real property; or

(viii) granting or acquisition of other interest in real property that is the subject of a Governmental Procurement.

(5)Determination of Need means a public communication of a decision by a governmental entity to procure an Article of Procurement. A governmental entity may also communicate a Determination of Need privately, but only the recipient of private communication is subject to lobbying regulation until the public announcement occurs. Determination of Need may be indicated by the governmental entity's preparation of one or more of the following:

(i) specifications;

(ii) bid documents;

(iii) requests for proposals;

(iv) evaluation criteria; or

(v) statements of intent to proceed with a Procurement.

In the event a party seeks to extend or amend an existing procurement contract, the fact that a governmental entity is discussing terms is an indication of a Determination of Need.

(6)Local Legislative Body means the board of supervisors, board of aldermen, common council, council, commission, town board, board of trustees, or other elective governing board or body of a Municipality now or hereafter vested by State statute, charter, or other law with jurisdiction to initiate and adopt local laws and ordinances, whether or not such local laws or ordinances require approval of the elective chief executive officer or other official or body to become effective.

(7)Municipal Agency means:

(i) a department, board, bureau, commission, division, office, council, committee, or officer of a Municipality, whether permanent or temporary; or

(ii) an industrial development agency located in a jurisdictional subdivision of the State with a population of more than 50,000, or a local public benefit corporation, as that term is defined in section 66 of the general construction law.

(8)Offerer means the individual or entity, or employee, agent, or consultant of such individual or entity, that contacts a State Agency, either house of the State legislature, the Unified Court System, a Municipal Agency or Local Legislative Body about a Governmental Procurement.

(i) Offerer does not include a governmental agency or its employees that communicate with the procuring agency regarding a Governmental Procurement in the exercise of the governmental agency's oversight duties.

(9)Restricted Period means the period of time commencing with the earliest posting, on a governmental entity's website, in a newspaper of general circulation, or in the procurement opportunities newsletter in accordance with article four-c of the economic development law of a written notice, advertisement, or solicitation of a request for proposal, invitation for bids, or solicitation of proposals, or any other method for soliciting a response from Offerers intending to result in a Procurement Contract with a State Agency, either house of the State legislature, the Unified Court System, or a Municipal Agency, and ending with the final contract award and approval by the State Agency, either house of the State legislature, the Unified Court System, or a Municipal Agency, and, where applicable, the State comptroller.

The Restricted Period is not identical to the longer time frame of a Governmental Procurement as defined in this subpart.

(10)Revenue Contract means a written agreement between a State or Municipal Agency or a Local Legislative Body and an Offerer, whereby the State or Municipal Agency or Local Legislative Body gives or grants a concession or a franchise.

(11)Unified Court System means the unified court system of the State of New York, or the office of court administration, where appropriate, other than town and village justice courts in jurisdictions with a population under 50,000, when it acts solely in an administrative capacity to engage in Governmental Procurements. Unified Court System does not include the Unified Court System or any court of the State judiciary when it acts to hear and decide cases of original or appellate jurisdiction or otherwise acts in its judicial, as opposed to administrative, capacity.

(b) Restricted period.

(1) Prohibited contacts

During the Restricted Period, no Lobbying Activity is permitted in relation to the governmental procurement except as authorized in paragraph (3) below. This prohibition includes contact with the following in connection with such lobbying:

(i) A person within the procuring entity who has not been designated pursuant to section 139-j of the State Finance Law to receive communications relative to the Governmental Procurement; or

(ii) A person in a State Agency other than the State Agency conducting the Governmental Procurement.

(2) The prohibitions set forth in paragraph (1) apply to municipal agencies only when the municipal agency meets the definition in paragraph (a)(7)(ii) of this subdivision.

(3) Nothing contained in this section shall be deemed to prohibit a person engaged in Procurement Lobbying from contacting a member of the State legislature concerning a Governmental Procurement by a State Agency, the unified court system, or a Municipal Agency. Such Lobbying must be disclosed in accordance with these regulations.

(c) Exceptions. The following do not constitute Procurement Lobbying or Lobbying Activities:

(1)Pre-determination of need. Contacts that occur before a governmental entity has made a Determination of Need, including:

(i) A contact intended to generate interest in an Offerer's product or service that occurs before the governmental entity has made a Determination of Need for the product or service; and

(ii) An inquiry as to whether a governmental entity has made a Determination of Need.

(2)Commission Salespersons. The activities of persons who are commission salespersons with respect to Governmental Procurements.

(i)Commission Salesperson means a person who meets the following criteria:

(a) The primary purpose of the person's employment is to cause or promote the sale of, or influence or induce another to make a purchase of, an Article of Procurement;

(b) The person is an employee (as that term is defined for tax purposes) of a vendor, or an independent contractor for a vendor, pursuant to a written contract for a term of not less than six months or an indefinite term;

(c) The person is compensated or intended to be compensated, in whole or in part, by the payment of a percentage amount of all or a substantial part of the sales of an Article of Procurement that the person has caused, promoted, influenced, or induced.

(1) The term "substantial part of the sales", as used in subsection 943.8(c)(2)(i)(c) above, means at least 50 percent of the number of sales the person has caused, promoted, influenced, or induced;

(d) The percentage amount of commissions payable to the person for sales or purchases to a State Agency, either house of the State legislature, the Unified Court System, a Municipal Agency, or Local Legislative Body, is not substantially greater than any commission payable for comparable sales by another purchaser; and

(e) The person is not otherwise required to file a statement or report by virtue of engaging in lobbying activities set forth in section 1-c(c)(i)-(iv) and (vi)-(x) of the Lobbying Act.

(3)Complaints and Appeals.

(i) Complaints by an Offerer regarding the failure of the person or persons designated by the procuring entity pursuant to section 139-j of the state finance law to respond in a timely manner to authorized Offerer contacts, provided that such complaints are made in writing and addressed only to the office of general counsel of the State Agency, either house of the State legislature, or the Unified Court System that is conducting the procurement;

(ii) Contacts by Offerers in protests, appeals, or other review proceedings (including the apparent successful bidder or proposer and that person's representatives) before the procuring entity seeking a final administrative determination, or in a subsequent judicial proceeding;

(iii) Complaints of alleged improper conduct in a Governmental Procurement to the Attorney General, inspector general, district attorney, or court of competent jurisdiction; or

(iv) Protests, appeals, or complaints to the State Comptroller's office during the process of contract approval, where the State Comptroller's approval is required by law, provided that such protests, appeals, or complaints are made in writing and are required to be entered in the procurement record pursuant to section 163 of the state finance law; or

(v) Complaints of alleged improper conduct in a Governmental Procurement conducted by a Municipal Agency or Local Legislative Body to the State comptroller's office.

(4) State Finance Law Section 162 preferred service provider contracts.

(i) Any activity relating to Governmental Procurements made under section one hundred sixty-two of the state finance law undertaken by:

(a) the non-profit-making agencies appointed pursuant to paragraph e of subdivision six of section one hundred sixty-two of the state finance law by the commissioner of the office of children and family services, the commission for the blind and visually handicapped, or the commissioner of education; and

(b) the qualified charitable non-profit-making agencies for the blind, and qualified charitable non-profitmaking agencies for other severely disabled persons as identified in subdivision two of section one hundred sixty-two of the state finance law.

(ii) Any attempt to influence the issuance or terms of the specifications that serve as the basis for bid documents, requests for proposals, invitations for bids, or solicitations of proposals, or any other method for soliciting a response from Offerers intending to result in a Procurement Contract with a State Agency, the State legislature, the Unified Court System, a Municipal Agency or Local Legislative Body shall not be exempt from the definition of 'Lobbying' or 'Lobbying Activities' under this subpart.

(5)Bidders' Conferences. Participants, including those appearing on behalf of a Client, in a conference provided for in a request for proposals, invitation for bids, or any other method for soliciting a response from Offerers intending to result in a Procurement Contract.

(6)Post-award Negotiations.

(i) Offerers who have been tentatively awarded a contract and are engaged in communications with a State Agency, either house of the State legislature, the Unified Court System, a Municipal Agency or Local Legislative Body solely for the purpose of negotiating the terms of the Procurement Contract after being notified of such award or, when a State Agency, either house of the State legislature, the Unified Court System, a Municipal Agency or Local Legislative Body is purchasing an Article of Procurement pursuant to an existing State Procurement Contract;

(ii) Offerers who are engaged in communications with the procuring entity solely for the purpose of negotiating terms applicable to that purchase; or

(iii) Persons who currently hold a franchise and who are engaged in negotiating the terms of a tentative franchise renewal contract with a Municipality, but such negotiations, which do not constitute Lobbying, do not include communications to the Local Legislative Body that must approve the contract.

(7)Submission of bids.

(i) The submission of a bid or proposal (whether submitted orally, in writing or electronically) in response to a request for proposals, invitation for bids or any other method for soliciting a response from Offerers intending to result in a Procurement Contract.

(ii) This exclusion applies to preparation and associated costs with the bid. Any activity beyond what is required to submit a bid will not qualify for the exclusion.

(8)Public communications to agencies. Offerers submitting written questions to a designated contact of a State Agency, either house of the State legislature, the Unified Court System, a Municipal Agency or Local Legislative Body set forth in a request for proposals, or invitation for bids or any other method for soliciting a response from Offerers intending to result in a Procurement Contract, when all written questions and responses are to be disseminated to all Offerers who have expressed an interest in the request for proposals, or invitation for bids, or any other method for soliciting a response from Offerers intending to result in a Procurement Contract.

(9)Technical Experts. Contacts during Governmental Procurements between designated staff of a State Agency, either house of the State legislature, the Unified Court system, a Municipal Agency or Local Legislative Body involved in Governmental Procurements and officers or employees of bidders or potential bidders, or officers or employees of subcontractors of bidders or potential bidders, who are charged with the performance of functions relating to contracts and who are qualified by education, training or experience to provide technical services to explain, clarify or demonstrate the qualities, characteristics or advantages of an Article of Procurement.

(i) Such authorized contacts shall:

(a) be limited to providing information to the staff of a State Agency, either house of the State legislature, the unified court system, a Municipal Agency and Local Legislative Body to assist them in understanding and assessing the qualities, characteristics or anticipated performance of an Article of Procurement;

(b) not include any recommendations or advocate any contract provisions; and

(c) occur only at such times and in such manner as authorized under the procuring entity's solicitation or guidelines and procedures.

(ii) For the purposes of this paragraph, the term 'technical services' shall be limited to analysis directly applying any accounting, engineering, scientific, or other similar technical disciplines.

(10)Post-award communications.

(i) Communications made by an officer or employee of the Offerer after the award of the Procurement Contract when such communications are in the ordinary course of providing the Article of Procurement provided by the Procurement Contract and in the ordinary course of the assigned duties of the officer or employee; provided, however, that nothing herein shall exempt:

(a) an officer or employee whose primary purpose of employment is to engage in Lobbying Activities with regard to Governmental Procurements, or

(b) an agent or independent contractor hired by an Offerer and whose primary duty is to engage in Lobbying Activities with regard to Governmental Procurements.

(ii) This exception does not apply to an officer, employee, agent, or independent contractor who is registered as a Lobbyist because of that person's Procurement Lobbying Activity.

(11)Benefits and Incentives. Persons who communicate with Public Officials where such communications are limited to obtaining factual information related to benefits or incentives offered by a State or Municipal Agency and where such communications do not include any recommendations or advocate governmental action or contract provisions, and further where such communications are not otherwise connected with pending legislative or executive action or determinations; provided, however, that any person who is otherwise required to file a statement or report pursuant to this article by virtue of engaging in Lobbying Activities as defined in this section shall not be deemed to fall within the exception provided for under this paragraph.

The exceptions set forth in the preceding paragraphs (1) - (11) shall not be construed as recognizing or creating any new rights, duties, or responsibilities or abrogating any existing rights, duties, or responsibilities of any governmental entity as it pertains to implementation and enforcement of Article 11 of the State Finance Law or any other provision of law dealing with the Governmental Procurement process.

(d)RESERVED.

N.Y. Comp. Codes R. & Regs. Tit. 19 § 943.8

Adopted New York State Register May 9, 2018/Volume XL, Issue 19, eff. 1/1/2019

Amended New York State Register February 10, 2021/Volume XLIII, Issue 06, eff. 2/10/2021