PROCUREMENT LOBBYING LAW
FREQUENTLY ASKED QUESTIONS (FAQs)

FAQs Index

Replaces previously released version in its entirety

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1. Overview
1.1.  Overview (Last Updated: 2/2/2012)
2. Additional Help
2.1.  Who can I talk to or contact if I need help? (Last Updated: 2/2/2012)
3. Scope of application of State Finance Law §§139-j and 139-k
3.1.  Who is covered by the State Finance Law provisions? (Last Updated: 6/14/2010)
3.2.  How do the State Finance Law provisions affect the procurement laws that govern the procurement processes of local governmental entities such as cities, towns and counties? (Last Updated: 6/14/2010)
3.3.  What is meant by the term “Offerer”? (Last Updated: 6/14/2010)
3.4.  How are industrial development agencies covered?  What activities of an industrial development agency trigger the obligations under the law? (Last Updated: 2/16/2006)
3.5.  How does §§ 139-j and 139-k of the State Finance Law apply to cooperative agreements involving agencies of other states where one Governmental Entity is subject to the requirements thereunder and the lead agency (agency awarding the contract) is not?  Is the Governmental Entity that is subject to the law still required to meet the obligations under the State Finance Law when seeking an Article of Procurement under that cooperative agreement? (Last Updated: 3/16/2006)
3.6. Are preferred source providers exempted from the requirements of the new State Finance Law provisions? It is noted that preferred sources have a limited exception from the requirements to register as a lobbyist under Legislative Law, but are not totally exempt. (Last Updated: 6/14/2010)
3.7. When does the Governmental Procurement begin pursuant to the State Finance Law? (Last Updated: 9/16/2010)
3.8. What constitutes a “public announcement, notice or communication”? (Last Updated: 9/16/2010)
4. Kinds of Transactions Covered by State Finance Law §§139-j and 139-k
4.1.  What kinds of transactions are covered by State Finance Law §§139-j and 139-k? (Last Updated: 2/16/2006)
4.2.  Are contracts involving an estimated annualized expenditure under $15,000 covered? (Last Updated: 2/16/2006)
4.3.  What kinds of contracts are not subject to the new State Finance Law requirements? (Last Updated: 6/14/2010)
4.4.  Do §§139-j and 139-k of the new State Finance Law provisions apply to the sale of real property by a Governmental Entity? (Last Updated: 2/16/2006)
4.5.  Do the new State Finance Law provisions apply to real estate transactions? (Last Updated: 2/16/2006)
4.6.  How do the new State Finance Law provisions apply to real estate transactions? (Last Updated: 2/16/2006)
4.7.  Do the restrictions on Contacts during the procurement process apply to construction contracts? (Last Updated: 2/16/2006)
4.8.  What contacts does the new law allow between Offerers and public officials and court officials during the preparation of specifications, bid documents, Requests for Proposals (RFPs), Invitations for Bids (IFBs), or other solicitations, prior to the Restricted Period defined in the statute? (Last Updated: 2/16/2006)
4.9.  Are there permissible Contacts during the Restricted Period? (Last Updated: 6/14/2010)
4.10.  Do §§ 139-j and 139-k of the State Finance Law apply to sole and single source contracts? (Last Updated: 2/16/2006)
4.11.  When does the Restricted Period begin in instances where there is no written notification such as in Governmental Procurements involving single and sole source contracts? (Last Updated: 2/16/2006)
4.12.  If a contract is supplemented, does this require providing vendors with notice of the Restricted Period? In addition, when does the Restricted Period start and end for these supplements? (Last Updated: 6/14/2010)
4.13.  When do these requirements apply? (Last Updated: 2/16/2006)
4.14.  Are the obligations of State Finance Law activated by: (Last Updated: 9/16/2006)
4.15.  Do §§139-k and 139-j of the State Finance Law apply to procurements over $15,000 that are purchased via Purchase Order, even though these types of procurements do not involve contracts or agreements that require review and approval by the Attorney General's Office? (Last Updated: 6/14/2010)
4.16.  When a Governmental Entity makes purchases from state centralized contracts, do the State Finance Law provisions of §§ 139-j and 139-k apply? (Last Updated: 3/16/2006)
4.17. There is a specific type of state centralized contract referred to as a Comprehensive Service Agreement (CSA). Do acquisitions from CSAs trigger the requirements of State Finance Law §§ 139-j and 139-k for State agencies? (Last Updated: 6/14/2010)
4.18. State Finance Law §§139-j(1)(g) and 139-k(1)(g) exclude a series of transactions from the statutory requirements. Can you provide additional guidance regarding these exclusions? (Last Updated: 6/14/2010)
4.19. How do the State Finance Law provisions apply to Revenue Contracts? (Last Updated: 6/14/2010)
4.20.  A “public work” is considered an Article of Procurement under State Finance Law §139-j(1)(b).  What does “public work” mean under this statute? (Last Updated: 4/20/2006)
4.21.  Is the definition of Governmental Procurement in State Finance Law §§139-j and 139-k intended to be limited to circumstances where the State purchases or leases property or acquires commodities or services for use by the State? (Last Updated: 4/20/2006)
4.22. If there are a number of repetitive small purchases under $15,000 that collectively exceed $15,000 from the same vendor within a one-year period, would these purchases trigger the requirements of State Finance Law §§139-j and 139-k? (Last Updated: 6/14/2010)
4.23.  State Finance Law §§139-j and 139-k apply to all procurements with an estimated annualized expenditure in excess of $15,000.  What is meant by these terms? (Last Updated: 4/20/2006)
4.24.  Oftentimes a Governmental Entity will contact vendors for end of fiscal year purchases. Is this type of procurement activity exempt from the new State Finance Law provisions? (Last Updated: 6/8/2006)
4.25. If a Governmental Entity requests that a vendor add a product to a centralized contract, and the vendor uses the existing contract terms and conditions to have the product added, are the State Finance Law provisions triggered? (Last Updated: 6/14/2010)
4.26.  Does the exemption for intergovernmental agreements cover transactions with other kinds of governmental organizations, such as city school districts or foreign governments? (Last Updated: 6/8/2006)
4.27.  There is a specific type of purchase from State centralized contracts referred to as “aggregate purchases”.  In this transaction, the State structures an organized purchase from existing information technology (“IT”) contracts based upon leveraging the volume of planned NYS agency purchases to receive the best possible prices.  Do aggregate purchases from State centralized contracts trigger the requirements of SFL §§ 139-j and 139-k? (Last Updated: 9/21/2006)
4.28. The definition of “governmental procurement” in State Finance Law §§ 139-j(1)(e) and 139-k(1)(e) exempts certain kinds of contract amendments from these requirements. Can you provide additional guidance regarding this exemption? (Last Updated: 6/14/2010)
4.29.  My company has a backdrop contract with the Office of General Services (OGS). In accordance with FAQ 4.15, the mini-bid process associated with the backdrop contracts is subject to the new State Finance Law provisions. What am I authorized to do if a released mini-bid violates the contract requirements? For example, if the mini-bid appears to violate the contract requirements about meal breaks, can I communicate with OGS since it is the body responsible for interpreting the contract without running afoul of the requirements of State Finance Law §§ 139-j or 139-k? (Last Updated: 10/12/2006)
4.30.  City A, which is not subject to the requirements of State Finance Law §§139-j and 139-k, enters into a technical communication services agreement (referred to as a Master Services Agreement) that permits other entities to also obtain technical services under the Master Services Agreement. The Master Services Agreement does not incorporate the requirements of State Finance Law §§139-j and 139-k. If City B, which is subject to the requirements of State Finance Law §§139-j and 139-k, seeks to obtain technical services under City A's Master Services Agreement, would City B need to comply with the requirements of State Finance Law §§139-j and 139-k? (Last Updated: 2/8/2007)
4.31. Are underwriting services associated with negotiated bond transactions considered to be Articles of Procurement subject to the requirements of Sections 139-j and 139-k of the State Finance Law? (Last Updated: 6/13/2008)
4.32. Do the State Finance Law provisions apply to a telephone conversation? (Last Updated: 9/16/2010)
4.33. Must there be financial interest present for there to be an attempt to influence the procurement process? (Last Updated: 9/16/2010)
5. What Actions are Required
5.1. What does the State Finance Law require of Governmental Entities? (Last Updated: 6/14/2010)
5.2.  What does the State Finance Law require of the business community? (Last Updated: 6/14/2010)
5.3.  Once it has been determined that State Finance Law §§ 139-j and 139-k applies, what should a Governmental Entity do? (Last Updated: 2/16/2006)
5.4.  How does State Finance Law §§139-j and 139-k impact potential Offerers? (Last Updated: 2/16/2006)
5.5.  Are there any communications that do not have to be recorded? (Last Updated: 2/16/2006)
5.6.  If a contractor hires a lobbyist after the contractor submits its proposal, what are the contractor’s obligations under the State Finance Law provisions? (Last Updated: 6/8/2006)
5.7.  State Finance Law §§ 139-j(9) and (10) state that a referral is made to the ethics officer, inspector general, if any, or other official of the procuring Governmental Entity.  Can you provide further clarification regarding the reference to “inspector general, if any”? (Last Updated: 11/9/2006)
5.8. Is an Offerer required to submit a new affirmation in compliance with State Finance Law §139-j(6)(b) for each amendment to a procurement that it submits? (Last Updated: 6/14/2010)
6. When do the new State Finance Law provisions take effect?
6.1. When did §§139-j and 139-k of the State Finance Law take effect? (Last Updated: 6/14/2010)
7. Designated Contacts
7.1.  What is the definition of “Contacts”? (Last Updated: 6/14/2010)
7.2.  Do the persons designated by Governmental Entities to be contacted by Offerers regarding Governmental Procurements have to have knowledge of the specifications or other technical requirements of the procurement? (Last Updated: 6/14/2010)
7.3. Are all contacts that a reasonable person would infer are intended to influence a Governmental Entity’s conduct or decision regarding the Governmental Procurement and made during the “Restricted Period” required to be recorded and placed in the Procurement Record, or only contacts made to persons other than persons designated by the Governmental Entity as the contact persons for the procurement? (Last Updated: 6/14/2010)
7.4.  Can a Governmental Entity have more than one contact person? (Last Updated: 2/16/2006)
7.5.  Who should the contact person be? (Last Updated: 6/14/2010)
7.6. What records does the Governmental Entity have to maintain? (Last Updated: 6/14/2010)
7.7.  What information must be obtained from the person making the Contact? (Last Updated: 2/16/2006)
7.8.  How do you track multiple calls from one person?  Separate records or running log? (Last Updated: 2/16/2006)
7.9. Can you provide clarification regarding the obligation of the Governmental Entity to complete a Record of Contact under the following circumstances?

- Is a Record of Contact Form required from everyone on an Evaluation Committee who reviews a written proposal as a result of an RFP?

- Do discussions among agency personnel who review and rate proposals require Record of Contact forms? Do Record of Contact forms have to be prepared each time these discussions occur?

- Is a Record of Contact form required when agency personnel contact vendors in the competitive range to set up oral presentations?

- Does each negotiating session with an intended awardee under an RFP require completion of a Record of Contact form?
 (Last Updated: 6/14/2010)
7.10.  After the low bidder is determined, but prior to the conclusion of the Restricted Period, who can the Offerer Contact regarding proposed terms and conditions, such as insurance provisions? (Last Updated: 11/9/2006)
8. Restricted Period and Restricted Contacts
8.1.  When does the Restricted Period begin? (Last Updated: 9/16/2010)
8.2.  When does the Restricted Period end? (Last Updated: 2/16/2006)
8.3. During the Restricted Period, does the law place limitations on what can be discussed during a pre-bid conference? (Last Updated: 6/14/2010)
8.4.  What can a Governmental Entity do if it needs further information from the industry during the Restricted Period to clarify a question posed? (Last Updated: 2/16/2006)
8.5.  Should permissible Contacts be recorded and placed in the Procurement Record? (Last Updated: 6/14/2010)
8.6. During a Restricted Period, State Finance Law §139-j(3) requires that an Offerer only communicate with the person or persons designated by the procuring Governmental Entity. It continues by stating that "the following Contacts are exempted from the provisions of this paragraph". What does this exemption mean? (Last Updated: 6/14/2010)
8.7. Oftentimes a solicitation provides that a Governmental Entity will conduct a pre-award interview with the top potential choices responding to a solicitation. How should we reconcile this process with the State Finance Law provisions? (Last Updated: 6/14/2010)
8.8.  State Finance Law § 139-j(3)(a)(3)establishes participation in a pre-bidders conference as a permissible contact.  However, after vendors have submitted bids, the Governmental Entity typically invites certain vendors back in for a "second round." Sometimes those who made the "first cut" come in together or separately.  Do such second round meetings fall within the permissible contact category?  Do such meetings have to be set forth in the RFP/IFB/solicitation to fall within the permissible contact category? (Last Updated: 6/8/2006)
8.9.  During a Restricted Period, can an Offerer communicate with anyone they choose at a Governmental Entity regarding topics not related to the procurement? (Last Updated: 6/14/2010)
8.10. What do the phrases “attempt to influence” and “intended to influence” mean in State Finance Law §§ 139-j and 139-k? (Last Updated: 6/14/2010)
8.11. State Finance Law §139-j requires a Governmental Entity to make a determination about an Offerer’s responsibility. This determination is made during the Restricted Period and requires the exchange of information between the Offerer and Governmental Entity. The State Finance Law does not clearly provide a category of Permissible Subject Matter Communications to facilitate this review. Would Contacts between an Offerer or an Offerer's attorney and the legal department of the Governmental Entity reviewing an Offerer's integrity or responsibility be classified as a Permissible Subject Matter Communication pursuant to State Finance Law §139-j(3)(a)? If not, would this Contact between the Offerer or its attorney and legal department of the Governmental Entity be otherwise exempted from the recording requirements of State Finance Law §139-k(4)? (Last Updated: 6/14/2010)
8.12.  State Finance Law §139-j(3)(a) lists nine circumstances when an Offerer is permitted to communicate with someone other than the Designated Contact. While these categories appear to address common steps in the procurement process, several other common steps that may involve someone other than the Designated Contact(s) were omitted. Can you provide additional guidance regarding the process to follow for the following procurement steps?

- Interview Scheduling

- Oral presentations by individual Offerers which are usually held before the Governmental Entity's evaluation committee

- Correspondence initiated by the Governmental Entity's evaluation committee requesting clarifications from the Offerer

- Reference checks/interviews with an Offerer's staff members
 (Last Updated: 6/14/2010)
8.13.  One of the permissible contacts occurs when a contract has been "tentatively awarded." Can you tell me what constitutes a "tentatively awarded contract?" (Last Updated: 2/8/2007)
8.14. . Does the provision of factual information by an Offerer to a Governmental Entity during the Restricted Period need to be recorded? (Last Updated: 6/14/2010)
9. Responsibility Determinations, Non-responsibility and Debarment
9.1.  What is a determination of responsibility? (Last Updated: 6/14/2010)
9.2. Does the law change the responsibility determination requirements? (Last Updated: 6/14/2010)
9.3.  Can an Offerer be debarred for violations of §§139-j and 139-k of the State Finance Law? (Last Updated: 2/16/2006)
9.4.  How will another Governmental Entity learn whether a vendor has been deemed non-responsible or debarred? (Last Updated: 2/16/2006)
9.5. Can an Offerer be held responsible for impermissible Contacts by another (knowing and willful) party on behalf of the Offerer but without the knowledge of the Offerer? (Last Updated: 6/14/2010)
9.6.  Does the ineligibility for award after repeated findings of non-responsibility refer to repeated findings in my Governmental Entity or all Governmental Entities? (Last Updated: 3/16/2006)
9.7. Does debarment apply to persons as well as to vendors or contractors? (Last Updated: 6/14/2010)
9.8.  Does a single finding of non-responsibility under State Finance Law §139-j(10)(b) by a Governmental Entity reported for inclusion on the OGS website preclude award of other procurement contracts to such Offerer?  Or to state another way, if Vendor A is found non-responsible by Governmental Entity 1 due to a knowing and willful impermissible Contact, can Governmental Entity 2 still award a procurement contract to Vendor A? (Last Updated: 11/9/2006)
9.9.  Does an Offerer’s inclusion on the List of Debarred Offerers maintained by the Office of General Services under State Finance Law §139-j(10)(b) require the Governmental Entities to remove the Offeror from their bidders list(s) for the four years? (Last Updated: 11/9/2006)
9.10.  If an Offerer is determined to be non-responsible twice within a four-year period, is it the Governmental Entity’s obligation to debar the Offerer or is the process for debarment carried out by the Office of General Services (OGS)? (Last Updated: 2/8/2007)
10. Legislative Contacts
10.1.  Are contacts with the Legislature permitted during the Restricted Period? (Last Updated: 2/16/2006)
10.2.  Are there any limitations on legislative Contacts? (Last Updated: 6/14/2010)
10.3.  The State Finance Law makes exemptions for the State Legislature and its staff in State Finance Law §139-j (4) and §139-k (6) regarding Contacts. Is communication from a member of Congress or NYC Council or their respective staff members similarly exempt from the prohibitions of the State Finance Law? (Last Updated: 3/16/2006)
11. Ethics Law
11.1. How do the provisions of the State Finance Law work with the ethics provisions of the Public Officers Law? (Last Updated: 6/14/2010)
12. Enforcement and Violations
12.1.  What should an employee do if s/he becomes aware that an Offerer has violated the requirements regarding permissible contacts under State Finance Law §139-j (3)? (Last Updated: 2/16/2006)
12.2.  How should a Governmental Entity address an allegation of violation of the permissible contact provision? (Last Updated: 2/16/2006)
12.3. Who should be involved with compliance with the State Finance Law? (Last Updated: 6/14/2010)
12.4. What action does a Governmental Entity need to take if there is failure to comply with the State Finance Law by an officer or employee? (Last Updated: 6/14/2010)
12.5. If a vendor or contractor violates the State Finance Law §§139-j and 139-k, what are the penalties? (Last Updated: 6/14/2010)
12.6.  Can a vendor or contractor be debarred for violations of §§ 139-j or 139-k of the State Finance Law? (Last Updated: 2/16/2006)
12.7.  Who is to determine whether an Offerer "knowingly and willingly" violates §139-j of the State Finance Law? (Last Updated: 3/16/2006)
12.8.  Must a type of trial be conducted to determine whether an Offerer has violated § 139-j of the State Finance Law? (Last Updated: 3/16/2006)
12.9.  Can a Governmental Entity terminate a contract with an Offerer who has failed to provide information that is complete, true and accurate pursuant to §139-k (5) of the State Finance Law? (Last Updated: 3/16/2006)
12.10.  Must an investigation of a proposed awardee for potential violations of State Finance Law §§139-j and 139-k be concluded before the contract can be completed? (Last Updated: 2/8/2007)
13. Model Language and Forms
13.1. Are there forms I can use to make compliance easier? (Last Updated: 6/14/2010)
14. Miscellaneous
14.1.  Can you maintain contact records only in an electronic format? (Last Updated: 2/16/2006)
14.2.  Are the contact records subject to the Freedom of Information Law (FOIL)? (Last Updated: 2/16/2006)
14.3. What is a procurement record? (Last Updated: 6/14/2010)
14.4.  How long must these records be retained? (Last Updated: 2/16/2006)
14.5.  How is this information made accessible to the public? (Last Updated: 2/16/2006)
14.6.  Should a Governmental Entity develop a written policy or guidelines implementing the new State Finance Law? (Last Updated: 2/16/2006)
14.7.  Does §139-j or §139-k of the State Finance Law specify procedures for disciplining employees of a Governmental Entity who violate this law? (Last Updated: 2/16/2006)
14.8.  Can a Governmental Entity impose sanctions on Offerers which are more severe than the requirements of §§139-j and 139-k of the State Finance Law? (Last Updated: 2/16/2006)
14.9. Does the law require a centralized collection point or database for the records on Contacts? (Last Updated: 6/14/2010)
14.10.  If a Governmental Entity finds that a prospective awardee knowingly and willfully made impermissible Contacts, should the contract be denied? (Last Updated: 2/16/2006)
14.11. Do subcontractors have to provide the affirmations and certifications required by §§139-j and 139-k of the State Finance Law? (Last Updated: 6/14/2010)
14.12.  If the initial estimated annualized value of a contract or agreement is less that $15,000 and subsequent amendments increase the estimated annualized value to greater than $15,000, is a Governmental Entity required to notify the Offerer and obtain an affirmation and certification in accordance with §§139-j (6)(b) and139-k(5)? (Last Updated: 3/16/2006)
14.13. Do State Finance Law §§139-j and 139-k address what Governmental Entities can say to other Governmental Entities when they call requesting a reference for a potential Offerer? (Last Updated: 6/14/2010)
14.14. Legislative Law §1-t(e)(1) raises the issue of an Offerer and certain others providing technical services to explain, clarify or demonstrate the qualities, characteristics or advantages of a particular article of procurement under specific circumstances. How does this language reconcile with the requirements of State Finance Law §§ 139-j and 139-k, which only recognizes “communications” and “Contacts” (defined as attempts to influence)? (Last Updated: 6/14/2010)