Replaces previously released version in its entirety

3.7. When does the Governmental Procurement begin pursuant to the State Finance Law? (Last Updated: 9/16/2010)

A:  State Finance Law §139-j(1)(e) defines a Governmental Procurement as the public announcement, notice or communication to any potential vendor of a determination of a need for a procurement. While such communications do not need to be in writing, the intent is that they be widely disseminated statements that are reasonably expected to reach potential vendors. A determination of need generally occurs when a Governmental Entity decides what it will be procuring. Governmental Entities often publicly communicate a determination of need by disseminating the specifications, bid documents, requests for proposals or evaluation criteria for the procurement of an article of procurement. However, the potential exists that a determination of need may be conveyed through some other form of public announcement, notice or communication. Accordingly, certain restrictions contained in the State Finance Law may now apply before the issuance of the bid, request for proposal or other mechanism used for commencing a procurement, if the Governmental Entity (1) has made a determination of need for a procurement, and (2) communicates such determination in a public manner, such as a public announcement, notice or communication, to potential vendors. Governmental Entities should decide if a determination of need for a procurement has been made and if there has been a public announcement, notice or communication to potential vendors of that determination of need. If both events occurred, a Governmental Procurement exists. In such cases, Governmental Entities must comply with the requirements of State Finance Law §139-j(2)(b), which provides that any determinations on any governmental procurement shall be made in a manner consistent with the principles set forth in State Finance Law § 163(2) and free from any conduct that would be prohibited by Public Officers’ Law §§ 73(5) and 74 or an equivalent ethics code provisions for public officials involved in governmental procurement who are not otherwise subject to the Public Officers’ Law. In addition, as a best practice, the Governmental Entity may post notice of commencement of a Restricted Period on its website once it has initiated a Governmental Procurement.

SFL §§ 139-j(1)(e); 139-k(1)(e); 139-j(2)(b) and §163(5).

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