N.Y. Comp. Codes R. & Regs. tit. 2 § 206.2

Current through Register Vol. 46, No. 51, December 18, 2024

Section 206.2 - Definitions

For purposes of this Part:

(a) Competitive procurement shall mean a procurement where a State authority has:

(1)

(i) published notice of the contract opportunity consistent with any statutory publication requirement including, but not limited to, article 4-c of the Economic Development Law, or, where there is no express statutory requirement for published notice, in the procurement opportunities newsletter or another newspaper, journal or periodical which is reasonably designed to give notice of the contract opportunity to all offerers capable of providing the requisite product, service or work to be performed; and further that such notice, wherever published, is reasonably designed to solicit bids, proposals or offers from all qualified offerers in response thereto; or

(ii) provided notice of the contract opportunity by soliciting bids, proposals or offers through some other method expressly authorized by statute, where such statute has deemed such other method to be competitive; and

(iii) awarded on the basis of a balanced and fair evaluation and selection method developed before the receipt of offers or bids; that is rational, objective and utilized a quantified scoring system, which evaluated all relevant factors such as cost (revenue), technical merits, or qualifications, and was applied equally to all qualified offerers.

(b) Contract shall mean any written agreement including, but not limited to: any agreement for the acquisition or sale of goods or services of any kind; public work, construction, alterations, or improvements to public facilities; grant contracts; employment contracts; revenue or concession contracts; the exchange of personal or real property; the exchange of services; or any combination thereof. For purposes of this Part, a purchase order shall be deemed to be a contract unless the purchase order is issued pursuant to:

(1) an existing State authority contract; or

(2) an Office of General Services centralized contract where neither the contract nor the relevant procurement guidelines require a mini-bid or similar competitive process.

(c) Eligible contract shall mean any contract executed by a State authority on or after March 1, 2010, other than an exempt contract, where the aggregate consideration proposed for exchange (including all reasonably anticipated renewals and amendments) may reasonably be valued in excess of $1 million and such contract either:

(1) shall be paid in whole or in part with monies appropriated by the State, either directly to a State authority or to a State agency which pays the money to a State authority; or

(2) was or shall be awarded on a single source basis, a sole source basis or pursuant to any other method of procurement that is not a competitive procurement. For purposes of determining the value of a contract that has no term or is perpetual in nature, the contract shall be deemed to have a term of five years.

(d) Eligible contract amendment shall mean:

(1) any modification to an eligible contract; or

(2) any modification other than an exempt contract amendment to a contract executed by a State authority where such modification was executed on or after March 1, 2010, and where the aggregate consideration under the contract as amended may reasonably be valued in excess of $1 million and:

(i) the contract as amended will be paid in whole or in part with monies appropriated by the State, either directly to a State authority or to a State agency which pays the money to a State authority; or

(ii) the contract was originally awarded on a noncompetitive basis; or

(iii) the contract was originally awarded on the basis of a competitive procurement, but the modification was neither contemplated nor provided for in the solicitation for such competitive procurement.

(e) Executed or execution shall mean that the contract or contract amendment has been signed as required by the contractor and the State authority.

(f) Exempt contract shall mean any contract or contract amendment, executed by a State authority on or after March 1, 2010, that would otherwise be an eligible contract or eligible contract amendment, but is exempt pursuant to subdivision 3 of section 2879-a of the Public Authorities Law because it is:

(1) for the issuance of commercial paper or bonded indebtedness including, but not limited to: bond purchase agreements, standby bond purchase agreements, letters of credit, firm remarketing agreements, forward purchase agreements, revolving credit agreements and other similar liquidity facility agreements, broker-dealer agreements, remarketing agent agreements, auction agent agreements, interest rate swaps and other similar hedging agreements; provided, however, that this category of exempt contracts shall not include:

(i) contracts with the State providing for the payment of debt service subject to an appropriation;

(ii) professional or banking services agreements such as bond counsel agreements, financial advisor agreements and trustee agreements, and

(iii) custodial service agreements;

(2) entered into by an entity established under article 10-c of the Public Authorities Law and is for:

(i) projects approved by the Department of Health or the Public Health Council in accordance with article 28, 36 or 40 of the Public Health Law or article 7 of the Social Services Law;

(ii) projects approved by the Office of Mental Health, the Office for People with Disabilities, or the Office of Alcoholism and Substance Abuse Services in accordance with article 16, 31 or 32 of the Mental Hygiene Law;

(iii) services, affiliations or joint ventures for the provision or administration of health care services or scientific research;

(iv) payment for direct health care services or goods used in the provision of health care services; or

(v) participation in group purchasing arrangements;

(3) for the procurement of goods, services or both goods and services to meet emergencies arising from unforeseen causes or to effect repairs to critical infrastructure that are necessary to avoid a delay in the delivery of critical services that could compromise the public welfare;

(4) for the purchase or sale of energy, electricity or ancillary services made by an authority on a recognized market for the goods, services or commodities in question in accordance with standard terms and conditions of purchase or sale at a market price;

(5) for the purchase, sale or delivery of power or energy, fuel, costs and services ancillary thereto, or financial products related thereto, with a term of less than five years; or

(6) for the sale or delivery of power or energy and costs and services ancillary thereto for economic development purposes pursuant to title one of article 5 of the Public Authorities Law or article 6 of the Economic Development Law.

(g) Exempt contract amendment shall mean a modification to any contract where such modification would otherwise be an eligible contract amendment, but is for an exempt purpose as defined in paragraphs (f)(1) through (6) of this section.

(h) Monies appropriated by the State shall mean:

(1) monies from the State treasury or any of its funds, or any of the funds under its management pursuant to law; or

(2) the proceeds of bonds, where such bonds shall be paid in whole or in part with monies from the State treasury or any of its funds, or any of the funds under its management pursuant to law.

(i) Procurement record shall mean documentation of the decisions made and the approach taken by the State authority in the procurement process.

(j) Single source shall mean a procurement in which although two or more offerers can supply the required goods or services, the State authority, upon written findings setting forth the material and substantial reasons therefore, may award a contract or amendment to a contract to one offerer over the other.

(k) Sole source shall mean a procurement in which only one offerer is capable of supplying the required goods or services.

(l) State authority shall mean a public authority or public benefit corporation created by or existing under any law of the State of New York, other than an interstate or international authority or public benefit corporation, including subsidiaries of such public authority or public benefit corporation, where one or more members serve by virtue of holding a civil office of the State, or where one or more members are appointed by the governor except where all such appointments by the governor occur specifically upon the recommendation of a local government official.

(m) Subsidiary shall mean a corporate body or company:

(1) having more than half of its voting shares owned or held by a State authority; or

(2) having a majority of its directors, trustees or members in common with the directors, trustees or members of a State authority or as designees of a State authority.

(n) Written determination shall mean notification provided in writing either in paper or electronic format of the Comptroller's approval or disapproval of any contract submitted for approval by a State authority.

(o) Written notice shall mean notification provided in writing either in paper or electronic format.

N.Y. Comp. Codes R. & Regs. Tit. 2 § 206.2