OGS Procurement Services Group
Transcript of OGS Procurement Services Group
OGS Procurement Services Group 2006 State Purchasing Forum
State Finance Law
2006 Purchasing Forum – State Finance Law
Anne Phillips
Associate Counsel
Office of General Services
(518) 474-5607
Presenter’s Contact Information
2006 Purchasing Forum – State Finance Law
CONTRACTUniform
Commercial Code
Federa
l
Laws (
e.g.
Intellec
tual
Property,
Teleco
m)
Procurement
Council
Guidelines
Executive
Law Case Law
State Finance Law
2006 Purchasing Forum – State Finance Law
Historical Context
• Purchase of Traditional Commodities
- Capable of standardization
- Articles of commerce (food, salt, linens)
• Public entities were predominantly large institutions
• Services were bought individually by government agencies
Pre-1995 Public Contracting
2006 Purchasing Forum – State Finance Law
Prior governing statute (§174 State Finance Law) provided minimal guidance for procurement and competitive bidding.
Agencies were essentially relegated to contract awards for commodities to the lowest price bidder.
Contracts for services or services procurements were not governed directly by statute.
Pre-1995 Public Contracting
2006 Purchasing Forum – State Finance Law
Major Change in the Framework for Public Procurements
• State Finance Law, Article 11
• Effective Date: 4/1/95
• Sunset Date: 6/30/06
Post-1995 Procurement Stewardship Act
2006 Purchasing Forum – State Finance Law
Underlying Principles and Legislative FindingsResponsibility of OGS and State Agencies in cooperation with OSC and DOB to:
• Provide for the wise and prudent use of public money in the best interests of the taxpayers
of the state;
• Guard against favoritism, improvidence, extravagance, fraud & corruption; and
• Facilitate the efficient and timely acquisition of commodities and services of the highest
quality at the lowest practicable cost within available resources.
Procurement Stewardship Act
2006 Purchasing Forum – State Finance Law
State agencies shall provide the state’s primary line of
defense for protecting the integrity of the state’s
procurement process and shall be responsible for
ensuring that the decisions made in executing that
process are made in accordance with the highest
standards of professional practice.
Procurement Stewardship Act
2006 Purchasing Forum – State Finance Law
• Provide a “level playing field” among competitive
bidders to enhance competition.
• Requires a “procurement record” – a documented
process which provides a balanced and fair
method, established prior to receipt of offers, for
evaluation of bids.
Procurement Stewardship Act
2006 Purchasing Forum – State Finance Law
Procurement Council established to review, examine
and develop improvements to procurement process
and competitive solicitation of bidding for
commodities, services and technology.
Procurement Stewardship Act
2006 Purchasing Forum – State Finance Law
• Nineteen Members- Chair – Commissioner of OGS
- OSC- DOB- State Agency Representatives- Designated members
• Procurement Guidelines
• Procurement Policy
• Quarterly Meetings
• Strategic Plan
Procurement Council [State Finance Law § 161]
2006 Purchasing Forum – State Finance Law
• Multi-agency Cooperative efforts (OSC, OFT, OGS, municipalities)
• Effort to coordinate information and expertise on statewide level
• Support necessary legislative and regulatory changes for best practice government procurement and competitive bidding
• Forum for exchange of views by participants with opposing or different interests in procurement
Cooperative Efforts to Improve Public Procurement Process
2006 Purchasing Forum – State Finance Law
Comprehensive Statutory Scheme
Procurement Stewardship Act
Article 11
State Purchasing
Section 160 Definitions
161 State Procurement Council
162 Preferred Sources
Government Procurement & Competitive Bidding
2006 Purchasing Forum – State Finance Law
Section 163 Purchasing services and commodities
(Sunset: 6/30/05)
163-a Vendor preparation of specifications for technology procurements; prohibitions
164 Exemptions
165 Purchasing restrictions
Government Procurement & Competitive Bidding
2006 Purchasing Forum – State Finance Law
Section 166 Requirements for financed equipment acquisition
167 Transfer and disposal of personal property
168 The management of surplus computer equipment
Government Procurement & Competitive Bidding
2006 Purchasing Forum – State Finance Law
Procurement GuidelinesDetailed Guidance to State agencies on how toconduct procurements
• Summarizes in one place the multiple approaches to procurement
• Identifies essential elements of successful procurements
• Provides valuable technical guidance on different approaches for structuring a
procurement
• Provides examples of good procurement practices
Government Procurement & Competitive Bidding
2006 Purchasing Forum – State Finance Law
Government Procurement & Competitive BiddingDefinitions
• Commodity
• Service
• Technology
• Costs
• Price
Provides a foundation of commonly understood concepts to apply within public procurement infrastructure
2006 Purchasing Forum – State Finance Law
Government Procurement & Competitive BiddingDefinitions
Invitations for Bids (IFB’s)
• Competitive Bidding Methodology
• Primarily used for procurement of commodities
• Basis for Contract Award
- Meet specifications
- Lowest price
2006 Purchasing Forum – State Finance Law
Request for Proposals (RFP’s)
• Competitive Solicitation Methodology
• Primarily used for procurement of services and technology
• Basis for Award
- Pre-established evaluation criteria where cost is not necessarily the determining
factor
- “Best Value” to the purchaser is the determinative criteria
Government Procurement & Competitive Bidding
2006 Purchasing Forum – State Finance Law
Best Value
Documentation & Other Requirements
Best Practices – Before You Solicit:• Document the intended basis for award (such as
meeting mandatory requirements, “best value” or “lowest price”).
• Determine the technical and financial evaluation criteria and relative weight.
• Quantify criteria whenever possible, to optimize quality, cost and efficiency.
• Determine and document the evaluation and selection process.
• Advertise the procurement.
Government Procurement & Competitive Bidding
2006 Purchasing Forum – State Finance Law
Distinction
“Lowest Price” vs. “Best Value” [State Finance Law, §163]
Government Procurement & Competitive Bidding
2006 Purchasing Forum – State Finance Law
“Lowest Price” ‘means the basis for awarding contracts for commodities among responsive and responsible offerors.’
“Best Value” ‘means the basis for awarding contracts for services to the offeror which optimizes quality, cost and efficiency, among responsive and responsible offerors. Such basis shall reflect, wherever possible, objective and quantifiable analysis. Services include technology.’
Government Procurement & Competitive Bidding
2006 Purchasing Forum – State Finance Law
Types of Contracts [State Finance Law §163]
• Centralized Contract• Agency Specific Contract• Preferred Sources• Emergency Contract• Single Source Contract• Sole Source Contract• Multiple Awards• Piggybacking (Adoption of Another Government
Entity Contract)
Government Procurement & Competitive Bidding
2006 Purchasing Forum – State Finance Law
Centralized Contracts
“Centralized Contract” means any contract for the
purchase of commodities or services, established or
approved by the Commissioner of General Services
as meeting the State's requirements including, but not
limited to, any contract let by the federal government,
other state or local governments or purchasing
consortia.
Government Procurement & Competitive Bidding
2006 Purchasing Forum – State Finance Law
Examples of Centralized Contracts:
• Vehicles & heavy equipment
• Pharmaceuticals & medical equipment
• Electronic Value Transfer (credit cards)/ procurement card
• Fuel Oil, Gasoline, Road Salt
• PCs
• Rubbish Removal
• Telecommunications Systems & Services
Government Procurement & Competitive Bidding
2006 Purchasing Forum – State Finance Law
Government Procurement & Competitive Bidding
Types of Contracts [State Finance Law §163]
• Centralized Contract• Agency Specific Contract• Preferred Sources• Emergency Contract• Single Source Contract• Sole Source Contract• Multiple Awards• Piggybacking (Adoption of Another Government
Entity Contract)
2006 Purchasing Forum – State Finance Law
Agency Specific Contracts
Specialized Requirements Needed to Meet Agency Mission
• Consultant Services
• “Do Not Call” Registry
• Digital Fingerprinting Identification
• Specialized Software
• Entertainment Services
Government Procurement & Competitive Bidding
2006 Purchasing Forum – State Finance Law
Types of Contracts [State Finance Law §163]
• Centralized Contract• Agency Specific Contract• Preferred Sources• Emergency Contract• Single Source Contract• Sole Source Contract• Multiple Awards• Piggybacking (Adoption of Another Government
Entity Contract)
Government Procurement & Competitive Bidding
2006 Purchasing Forum – State Finance Law
Preferred Sources [State Finance Law §162]
“To advance special social and economic goals,
selected providers shall have preferred source
status… Procurement from these providers shall be
exempted from competitive procurement provisions.”
Government Procurement & Competitive Bidding
2006 Purchasing Forum – State Finance Law
Preferred Status• Correctional Services – Commodities
• Agencies for the Blind – Commodities & Services
• Agencies for the Severely Disabled – Commodities and Services
• Special Employment for Mentally Ill – Commodities and Services
• Disabled Veterans – Commodities sand Services
• Veterans – Commodities and Services
• Qualified Apparel Manufacturer – September 11th Registry
Government Procurement & Competitive Bidding
2006 Purchasing Forum – State Finance Law
• Public List of Commodities & Services
• Approval by Procurement Council
• Price Approval – Not greater than 15% above
Prevailing Market Price
• Alternate Process for Procurements of Apparel
& Textiles
Government Procurement & Competitive Bidding
2006 Purchasing Forum – State Finance Law
Types of Contracts [State Finance Law §163]
• Centralized Contract• Agency Specific Contract• Preferred Sources• Emergency Contract• Single Source Contract• Sole Source Contract• Multiple Awards• Piggybacking (Adoption of Another Government
Entity Contract)
Government Procurement & Competitive Bidding
2006 Purchasing Forum – State Finance Law
Emergency Contracts [State Finance Law §163(10(b))]
Procurements may be made to meet emergencies
arising from unforeseen causes without using a formal
competitive process. Such procurements shall be
made only under unusual circumstances and shall
include a determination in the procurement record of
the nature of the emergency and that the procurement
was conducted in a fair and equitable manner.
Government Procurement & Competitive Bidding
2006 Purchasing Forum – State Finance Law
Types of Contracts [State Finance Law §163]
• Centralized Contract• Agency Specific Contract• Preferred Sources• Emergency Contract• Single Source Contract• Sole Source Contract• Multiple Awards• Piggybacking (Adoption of Another Government
Entity Contract)
Government Procurement & Competitive Bidding
2006 Purchasing Forum – State Finance Law
Single SourceSingle Source means a procurement in which although two or more offerors can supply the required commodities or services, the Commissioner or State agency, upon written findings setting forth the material and substantial reasons therefore, may award the contract to one offeror over all others. The Commissioner or State agency shall document in the procurement record the circumstances leading to the selection of the vendor, including the alternatives considered, the rationale for selecting the specific vendor and the basis upon which it determined the cost was reasonable.
Government Procurement & Competitive Bidding
2006 Purchasing Forum – State Finance Law
Types of Contracts [State Finance Law §163]
• Centralized Contract• Agency Specific Contract• Preferred Sources• Emergency Contract• Single Source Contract• Sole Source Contract• Multiple Awards• Piggybacking (Adoption of Another Government
Entity Contract)
Government Procurement & Competitive Bidding
2006 Purchasing Forum – State Finance Law
Sole Source
Sole Source means a procurement in which only one
offeror is capable of supplying the required
commodities or services.
Government Procurement & Competitive Bidding
2006 Purchasing Forum – State Finance Law
Types of Contracts [State Finance Law §163]
• Centralized Contract• Agency Specific Contract• Preferred Sources• Emergency Contract• Single Source Contract• Sole Source Contract• Multiple Awards• Piggybacking (Adoption of Another Government
Entity Contract)
Government Procurement & Competitive Bidding
2006 Purchasing Forum – State Finance Law
Multiple Awards [State Finance Law §163(10)(c)]The Commissioner or State agency may elect to award a
contract to one or more responsive and responsible offerors
provided, however, that the basis for the selection among
multiple contracts at the time of purchase shall be the most
practical and economical alternative and shall be in the best
interests of the State, and further provided that the
requirements set forth herein shall not preclude the
Commissioner from establishing multiple award contracts for
reasons including increased opportunities for small
businesses to participate in State contracts.
Government Procurement & Competitive Bidding
2006 Purchasing Forum – State Finance Law
Types of Contracts [State Finance Law §163]
• Centralized Contract• Agency Specific Contract• Preferred Sources• Emergency Contract• Single Source Contract• Sole Source Contract• Multiple Awards• Piggybacking (Adoption of Another Government Entity Contract)
Government Procurement & Competitive Bidding
2006 Purchasing Forum – State Finance Law
The Commissioner of General Services may authorize
purchases required by state agencies or authorized
purchasers by letting a contract or by approving the
use of a contract let by any department, agency or
instrumentality of the United States government
and/or any department, agency, office, political
subdivision or instrumentality of any state or states.
Government Procurement & Competitive Bidding
2006 Purchasing Forum – State Finance Law
The Commissioner of General Services is authorized
to let centralized contracts for joint purchasing by New
York State and any department, agency or
instrumentality of the United States government
and/or any state including the political subdivisions
thereof; provided however that any entity incurring a
liability under such contract shall be responsible for
discharging said liability.
Government Procurement & Competitive Bidding
2006 Purchasing Forum – State Finance Law
Under this authority, the State can recognize and use
or be a part of contracts of other public purchasers. In
most instances, these other government entities
establish their agreements using competitive
solicitations. This procurement methodology has
proven to be a tool that provides a means to meet
special requirements or to efficiently and economically
meet the needs of State agencies and Authorized
Users.
Government Procurement & Competitive Bidding
2006 Purchasing Forum – State Finance Law
Note:
These contracts and purchases also need to be
supported by a procurement record and are subject to
OSC approval.
Government Procurement & Competitive Bidding
2006 Purchasing Forum – State Finance Law
• Piggybacking Agreements have provided for
imaging systems, landscape furniture, cellular
telephone service and mission specific consultant
services such as Year 2000 programming.
• Joint Agreements have provided for
pharmaceuticals (Minnesota multi-state) and traffic
cones (New England States and New York).
Government Procurement & Competitive Bidding
2006 Purchasing Forum – State Finance Law
Developing the Procurement
• Determination of Need
• Form, Function & Utility Decisions for Centralized Contracts
- Discretion of OGS Commissioner – “in cooperation with State
Procurement Council and state agencies,”
Process for Conducting Procurements
2006 Purchasing Forum – State Finance Law
Criteria OGS uses includes, but is not limited to:
• Availability of a volume discount;
• Prior use of the commodity among state agencies;
• Relative cost of establishing the contract;
• Anticipated use; and
• Expected actual savings for the State.
Process for Conducting Procurements
2006 Purchasing Forum – State Finance Law
Drafting & Issuing Agency Contracts
IFB vs. RFP
• NYS Contract Reporter Advertisement- Required if Contract Value Over $15,000
[Article 4C Economic Development Law]
- Receipt of offers minimum of fifteen business days after notice published
• Appendix A (Standard Clauses for State Contracts)
Process for Conducting Procurements
2006 Purchasing Forum – State Finance Law
Drafting & Issuing the Document
• Appendix B (OGS General Specifications for Procurement Contracts)
• Non-Collusive Bidding Certificate
• MacBride Certification
• Executive Order No. 127 – Providing for Additional State Procurement Disclosure
• Responsibility Questionnaire
• Sales Tax Certification
Process for Conducting Procurements
2006 Purchasing Forum – State Finance Law
Discretionary Thresholds for Purchasing• State Agencies up to $15,000 $50,000• State Agencies up to $50,000 $100,000
- For recycled commodities or technology
- For remanufactured commodities or technology
- From small businesses
- From certified minority/women-owned business enterprises
Government Procurement & Competitive Bidding
2006 Purchasing Forum – State Finance Law
Use of Mini Bids
Another competitive solicitation technique employs multiple contract awards where vendors present their qualifications and agree to standard terms and conditions for a multiple year contract term with not to exceed prices – backdrop contracts.
State agencies and Authorized Users present their technical needs to a pool of qualified contractors (“Project Definition” or “Mini Bid”) choosing the best value solution.
Government Procurement & Competitive Bidding
2006 Purchasing Forum – State Finance Law
Use of Mini Bids (continued)
This allows the purchaser to focus on meeting their
operational or functional requirements and cut down
on the contract cycle time often reducing the
procurement time to weeks rather than months.
Government Procurement & Competitive Bidding
2006 Purchasing Forum – State Finance Law
Use of Mini Bids• Computer Consulting, Systems Integration and
Training Agreements with categories of services
• Telephone Systems and Maintenance
• Third Party Financing Services
• Microcomputer Systems
Government Procurement & Competitive Bidding
2006 Purchasing Forum – State Finance Law
Bid Evaluation & Approvals• Responsive Offeror
- Material vs. Non-Material Deviations- Clarifications, revisions, discussions,
where provided in the solicitation• Responsible Offeror
- Due Diligence- Due Process- Prior Contract History- No debarment in NYS, other than for
prevailing wage rate or labor law violations
Government Procurement & Competitive Bidding
2006 Purchasing Forum – State Finance Law
Vendor Responsibility Due Process and the Opportunity to be Heard• Procurement determinations arising from the need to ascertain the responsibility of a vendor/bidder impose a duty on the State agency to provide an opportunity to be heard
• It is the policy of the Office of General Services’ (OGS) Procurement Services Group (PSG) to provide vendors with an opportunity to administratively resolve complaints or inquiries related to PSG bid solicitations or contract awards. Bidders are encouraged to seek resolution of complaints through consultation with PSG staff. All such matters will be accorded impartial and timely consideration
Government Procurement & Competitive Bidding
2006 Purchasing Forum – State Finance Law
Bid Evaluation & Approvals
• Bid Disputes
- No statutory right
- Commissioner's responsibility to make an award consistent with
procurement laws
• Elements of defensible decisions
Government Procurement & Competitive Bidding
2006 Purchasing Forum – State Finance Law
Bid Evaluation Approvals
Required Approvals
• Department of Law
• Specialty Contracts
- Civil Service- Office for Technology- Division of the Budget
• Office of the State Comptroller
Government Procurement and Competitive Bidding
2006 Purchasing Forum – State Finance Law
Selection and Contract Award
• Using Bid Documents for Contract Award
• Negotiate Contract
Government Procurement and Competitive Bidding
2006 Purchasing Forum – State Finance Law
Other Relevant Laws
• Section 112 State Finance LawOSC Approval
• Section 97-g State Finance Law Centralized Services
• Section 138 State Finance Law Non-Assignment of State Contracts
• Section 139-d State Finance Law Non-Collusion by Bidders
Government Procurement and Competitive Bidding
2006 Purchasing Forum – State Finance Law
Other Relevant Laws
• Sections 139-j and 139-k State Finance LawRestriction on Contracts and
Disclosure of Contacts
• Section 144-a State Finance Law Rock Salt Preference
• Section 220 and 240 Labor LawPrevailing Wage Rate
• Article 2 Uniform Commercial Code Sales
Government Procurement and Competitive Bidding
2006 Purchasing Forum – State Finance Law
Anne Phillips
Associate Counsel
Office of General Services
(518) 474-5607
Presenter’s Contact Information