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By Richard P. Dyer
Thelen Reid Brown Raysman & Steiner LLP

New York Governor George E. Pataki has issued Executive Order 127 that applies to procurement efforts of proposers, such as architects, engineers and construction managers, on state work that, by law, is not required to be awarded to the lowest responsible bidder.

The Executive Order (full text below) requires entities seeking to procure such state work to identify persons or organizations authorized to lobby contracting agencies on their behalf and to state whether they have been found to have violated the Executive Order in the previous five years.

Affected state agencies are required to record information about persons contacting them in an attempt to influence procurement decisions and to determine whether proposers have been in compliance with the Executive Order.

Affected state agencies include "any State department, office or division, or any board, commission or bureau thereof, and any public benefit corporation, public authority or commission at least one of whose members is appointed by the Governor."

The Office of General Services is required by the Executive Order to issue guidelines to contracting agencies and provide additional details regarding the scope and requirements of Executive Order 127. The guidelines are posted at the OGS's Web site at www.ogs.state.ny.us/aboutOgs/regulations/procurement/overview.html.

The Order, issued June 16, 2003, took effect on procurements for work commencing after August 14, 2003.

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For more information about the issues covered in this report, please contact Richard P. Dyer in our New York office at 212-895-2117 or at rpdyer@thelen.com or contact your Thelen attorney. For more information about Thelen's Construction and Government Contracts Department, click here.





©2003 Thelen Reid Brown Raysman & Steiner LLP


Full Text of Executive Order No. 127 Providing for Additional State Procurement Disclosure

WHEREAS, the State of New York and its public authorities have an obligation to carry out their responsibilities in the most efficient and effective manner possible;

WHEREAS, over the past eight and one-half years, we have made tremendous progress in streamlining and improving state government;

WHEREAS, the State of New York and its public authorities enter into numerous procurement contracts and real estate transactions which involve substantial sums of public moneys;

WHEREAS, while the State Legislature has enacted strong laws to regulate the procurement process and maintain its integrity (Procurement Stewardship Act, Chapter 83 of the Laws of 1995) and to regulate persons who appear before state government on certain matters (Lobby Law, Chapter 2 of the Laws of 1999), more can be done to maintain continued public confidence in the State's procurement process; and

WHEREAS, increased disclosure regarding persons and organizations contacting state government regarding procurement and real estate transactions would enhance public confidence in the procurement process.

NOW, THEREFORE, I, George E. Pataki, Governor of the State of New York, by virtue of the authority vested in me by the Constitution and Laws of the State of New York, do hereby order as follows:

I. Definitions

1. "Covered agency or authority" shall mean any State department, office or division, or any board, commission or bureau thereof, and any public benefit corporation, public authority or commission at least one of whose members is appointed by the Governor, and shall include the State University of New York and the City University of New York.

2. "Procurement contract" shall mean any contract or agreement, or subsequent amendment thereto, involving an estimated annualized expenditure in excess of fifteen thousand dollars for:

(i) the purchase of goods or services;

(ii) the purchase, sale, lease, acquisition or granting of other interests in real property; and

(iii) public works. The term "procurement contract" shall not include a contract that, by law, must be awarded to the lowest responsible bidder, or a contract that, by law, must be awarded on the basis of lowest price subsequent to a competitive bid process.

3. "Proposal" shall mean any proposal, quotation, bid, offer or response to a covered agency or authority's solicitation of submissions in expectation of an award of a procurement contract.

4. "Attempt to influence the procurement process" shall mean any attempt to influence any determination of a member, officer or employee of a covered agency or authority by a person other than a member, officer or employee of a covered agency or authority with respect to:

(a) the solicitation, evaluation or award of a procurement contract; or

(b) the preparation of specifications or request for submissions of proposals for a procurement contract.

5. "Contractor" shall mean bidder, offeror or proposer for a procurement contract and shall include any subcontractor who may be engaged in the delivery of goods, services or construction pursuant to the procurement contract.

6. "Financial interest in the procurement" shall mean:

(a) owning or exercising direct or indirect control over, or owning a financial interest of more than one percent in, a contractor or other entity that stands to gain or benefit financially from the award of a procurement contract;

(b) receiving, expecting or attempting to receive compensation, fees, remuneration or other financial gain or benefit from a contractor or other individual or entity that stands to benefit financially from a procurement contract;

(c) being compensated by, or being a member of, an entity or organization which is receiving, expecting or attempting to receive compensation, fees, remuneration or other financial gain from a contractor or other individual or entity that stands to benefit financially from a procurement contract;

(d) receiving, expecting or attempting to receive any other financial gain or benefit as a result of the procurement contract;

(e) being a relative of a person with a financial interest in the procurement, as set forth in paragraphs (a) though (d) of this subdivision. For purposes of this paragraph, "relative" shall mean spouse, child, stepchild, stepparent, or any person who is a direct descendant of the grandparents of an individual listed in paragraphs (a) though (d) of this subdivision or of the individual's spouse.

II. Agency and Authority Responsibilities

1. Every covered agency and authority shall ensure that bid or proposal documents for procurement contracts include the name, address, telephone number, place of principal employment and occupation of every person or organization retained, employed or designated by or on behalf of the contractor to attempt to influence the procurement process and whether such person or organization has a financial interest in the procurement.

2. Every covered agency and authority shall ensure that bid or proposal documents for procurement contracts shall include the name, address, telephone number, place of principal employment and occupation of every person or organization subsequently retained, employed or designated by or on behalf of the contractor to attempt to influence the procurement process and whether such person or organization has a financial interest in the procurement. Every covered agency and authority shall ensure that contractors shall inform the agency or authority of the identity of any such persons or organizations prior to such person or organization contacting a covered agency or authority.

3. Prior to making an award of a procurement contract, each covered agency or authority shall make a determination of responsibility of the proposed awardee. Every covered agency and authority shall ensure that bid or proposal documents for procurement contracts shall require bidders, offerors or proposers to disclose findings of non-responsibility made within the previous five years by any covered agency or authority where such prior finding of non-responsibility was due to intentional provision of false or incomplete information to a covered agency or authority with respect to this Order. In making a determination of responsibility, covered agencies and authorities shall take into account any such prior finding and shall not award a contract to such bidder, offeror or proposer unless the covered agency or authority finds that the procurement contract would be in the best interests of the State notwithstanding the prior finding of non-responsibility, and such agency or authority shall include in its procurement record a statement describing its basis for such determination.

4. Every covered agency and authority shall ensure that any contacts that reasonably appear to be an attempt to influence the procurement process by persons and organizations other than those identified in bid or proposal documents or supplemental bid or proposal documents shall be recorded by the agency. Upon any such contact, the covered agency or authority shall obtain the same information required in bid or proposal documents pursuant to subdivisions 1 and 2 of this Part and inquire, determine and record whether the person or organization making such contact was retained, employed or designated by or on behalf of the contractor to attempt to influence the procurement process and whether such person or organization has a financial interest in the procurement.

5. Every covered agency and authority shall, for each procurement contract, maintain a written record of all persons and organizations identified in subdivisions 1, 2 and 4 of this Part. Such record shall be open to inspection by the public.

6. The failure of a contractor to timely disclose accurate and complete information or to otherwise cooperate with a covered agency or authority in the implementation of this Order shall considered by such agency or authority in its determination of the responsibility of such contractor, and no procurement contract shall be awarded to any such contractor unless the procurement record contains a written determination by such agency or authority that the contract award would be in the best interests of the State notwithstanding the failure of the contractor to provide such information or to otherwise cooperate.

7. Every procurement contract made subject to this Order shall contain a certification by the awardee that all information provided to the soliciting agency or authority with respect to this Order is complete, true and accurate and each such procurement contract shall contain a provision authorizing the covered agency or authority to terminate such contract in the event such certification is found to be intentionally false or intentionally incomplete.

III. Remedial Action; Guidance; Applicability

1. Any member, officer or employee of a covered agency or authority who fails to comply with the provisions of this Order shall be subject to appropriate disciplinary action by such agency or authority. In addition, where such conduct violates the Public Officers Law, such matter shall be referred to the State Inspector General and the State Ethics Commission, as may be appropriate.

2. Within 45 days of this Order, the Office of General Services shall issue written guidance to covered agencies and authorities regarding the implementation of this Order. Such guidance shall be deemed to be incorporated in this Order to the extent not inconsistent herewith.

3. The provisions of this Order shall be applicable to procurement contracts with respect to which a solicitation for bids, offers or proposals is made 60 days or more after this Order has taken effect.

4. Nothing in this Order shall be deemed to allow contacts or communications regarding a procurement contract where otherwise prohibited by law, rule, regulation or agency or authority policy.

5. Nothing in this Order shall affect the requirement that members, officers and employees of covered agencies and authorities to report allegations of impropriety involving procurement contracts to appropriate agency personnel, the agency or authority Inspector General, if applicable, and the State Inspector General and the State Ethics Commission, as appropriate.