L E U. Procurement Lobbying. Reporting and Requirements

Transcription

1 Procurement obbying Reporting and Requirements

2 Outline The Procurement Process obbying and obbying Activities Terms xemptions Restrictions/Restricted Period Contingent Fee Commission Salesperson Penalties

3 What is Procurement obbying? Any attempt to influence any determination by a public official, or a person or entity working with a public official, related to a governmental procurement.

4 Procurement Process Determination of Need obbying activity may occur prior to the restricted period. obbying activity relates to a governmental procurement, obby Act 1-c(c)(v) A governmental procurement includes the preparation of the specifications, bid documents, request for proposals or evaluation criteria for a procurement contract, obby Act 1-c(p)(i), all of which occur prior to the beginning of the restricted period. For the purposes of the obby Act, a governmental procurement begins when a governmental entity makes a determination of need relating to an article of procurement

5 Procurement Process Determination of Need (Cont.) The determination of need is the first step in the procurement process and should be the initial entry in the procurement record (See Section Three: Selecting a Procurement Technique, of the State Procurement Council Guidelines) obbying activity can take place during the period beginning with the determination of need and ending with the final contract award

6 Procurement Process When an offerer contacts a governmental entity: Ask if the governmental entity is at that time of the contact working on a governmental procurement, beginning with the determination of need, relating to the offerer s product or service If the answer is no, there can be no lobbying activity because there is no governmental procurement If the answer is yes, the offerer may choose not to continue the contact, or, may continue knowing that he or she may be engaging in lobbying activity

7 Scope The new law expands the definition of lobbying to include: The issuance, modification or rescission of gubernatorial or local xecutive Orders ( xecutive Orders ); The approval, disapproval or implementation and administration of Tribal-State compacts, memoranda of understanding or any other Tribal-State agreements and any state actions related to a Tribal gaming ( Tribal-State Agreements ); and Any determination of a public official with respect to a governmental procurement ( Procurement Contracts ).

8 obbying & obbying Activities obbying or obbying Activities now means and includes attempts to influence: i. The passage or defeat of state legislation; ii. The approval or disapproval of legislation by the governor; iii. The adoption or rejection of any state agency rule or regulation having the force and effect of law; iv. The outcome of any rate making proceedings, including; i. Those by any state agency; and/or ii. Those by any municipality or subdivision thereof. v. ocal legislative bodies, and the passage or defeat of any local law, ordinance, resolution, or any regulation or rate-making, by any municipality or subdivision, and/or

9 obbying & obbying Activities vi. vii. viii. ix. Adoption or rejection of rules and regulations that have the force and effect of local law; The adoption, issuance, rescission, modification, or terms of a gubernatorial executive order, or an executive order issued by the chief executive officer of a municipality; or Any procurement related determination by a public official (including officers or employees of the unified court system), or a person or entity working in cooperation with a public official; or Approval, disapproval implementation or administration of any state actions related to Class III gaming as provided in 25.S.C. 2701, including attempts to influence tribal-state compacts, memoranda or understanding, and any other tribal state agreements related to Class III gaming.

10 Terms Governmental Procurement shall mean: 1. Preparation or terms of specifications, bid documents, request for proposals (RFPs), or evaluation criteria for a procurement contract; or 2. Solicitation for a procurement contract; or 3. valuation of a procurement contract; or 4. Award/approval/denial/disapproval of a procurement contract; or 5. Approval/denial of an assignment, amendment, renewal or extension of a procurement contract; or 6. Any other material change in the procurement contract resulting in a financial benefit to the offerer

11 Terms Article of Procurement shall include the following, when subject to governmental procurement: 1. Commodities; 2. Services; 3. Technology; 4. Public Works; 5. Construction; 6. Revenue Contracts; 7. Real Property

12 Terms Procurement Contract means any contract or agreement for an Article of Procurement involving an estimated annualized expenditure in excess of $15,000, except: Smaller value contracts with an estimated annualized expenditure under $15,000; Grants; Article XI-B state finance law contracts; Intergovernmental agreements; Railroad and utility force accounts, and utility relocation project agreements; Orders and eminent domain transactions

13 xemptions to the definition of obbying xemptions A-F are consistent with the previous act. xemptions G-Q reflect new exemptions added to the amendment. A. imited professional services B. Media C. Witness, attorney or other representative D. NYS Administrative Procedure Act. Comments in response F. Church

14 xemptions G-Q G. Procurement Activities by Certain Non-profits undertaken by: The non-profit making agencies appointed pursuant to 162 (6) (e) by the Commissioner of the Office of Children and Family Services; The Commissioner for the Blind and Visually Handicapped; The Commissioner of ducation; The qualified charitable non-profit making agencies for the blind; and Qualified charitable non-profit making agencies for other severely disabled persons as identified in 162 (2)

15 xemptions G-Q H. Procurement Conference Participation: Participants, including those appearing on behalf of a client, in a conference provided for in a request for proposal (RFP), invitation for bid (IFB), or any other method for soliciting a response from offerers intending to result in a procurement contract.

16 xemptions G-Q I. Certain Procurement-related Communications Negotiation after tentative award: Offerers, tentatively awarded a contract, and communicating solely for the purpose of negotiating the terms of the procurement contract after being notified of such award; or Negotiations when an article of procurement is being purchased pursuant to an existing article of procurement and offerers engage in communications with the procuring entity in relation to an existing contract solely for the purpose of negotiating terms applicable to that purchase; Negotiations, which do not constitute lobbying, do not include communications to the local legislative body that must approve the contract;

17 xemptions G-Q J. Party to a protest, appeal or review; Bring complaints of alleged improper conduct in a governmental procurement to the attorney general, inspector general, district attorney, or court of competent jurisdiction; or Submit written protests, appeals or complaints to the state comptroller s office during the process of contract approval, where the state comptroller s approval is required by law, and where such communications and any responses thereto are made in writing and shall be entered in the procurement record pursuant to 163 of the state finance law; or Bring complaints of alleged improper conduct in a governmental procurement conducted by a municipal agency or local legislative body to the state comptroller s office;

18 xemptions G-Q K. Submission of the bid or proposal itself: Submitting a bid or proposal in response to a solicitation for such does not constitute lobbying..offerers submitting written questions, provided the questions and responses are shared: Offerers submitting written questions to a designated contact set forth in a request for proposals, or invitation for bids or any other method for soliciting a response from offerers intending to result in a procurement contract, when all written questions and responses are to be disseminated to all offerers.

19 xemptions G-Q M. imited technical contacts between those providing technical services (accounting, engineering, scientific, or other similar technical disciplines) and designated government staff, provided all 3 criteria for content of the communication are met: Bidders or potential bidders, and subcontractors of bidders or potential bidders, who are qualified by education, training or experience to provide technical services to explain, clarify or demonstrate the qualities, characteristics or advantages of an article of procurement qualify for this exemption only if they are talking to designated government staff, and the contact is:

20 xemptions G-Q imited to providing information to assist the procuring party in understanding and assessing the qualities, characteristics or anticipated performance of an article of procurement; AND Does not include any recommendations or advocate any contract provisions: AND Occurs only at such times and in such manner as authorized under the procuring entity s solicitation or guidelines and procedures.

21 xemptions G-Q N. Applications for licenses, certificates, and permits authorized by statutes or local laws or ordinances are not lobbying. O. Activities of persons who are commission salespersons with respect to government procurements; P. Communications made after the award, and in the ordinary course of providing an article of procurement, and the ordinary course of assigned duties, except officers, employees, agents or independent contractors whose primary purpose is lobbying. Q. Persons communicating with public officials to obtain factual information, provided that they are not otherwise subject to the reporting requirements of the Act due to involvement in lobbying activities as defined by the Act.

22 Procurement Restrictions Restricts contacts that lobbyists and clients can make during the restricted period of governmental procurements to contacts with governmental staff that have been designated by a governmental entity to receive communications. This section excludes complaints during the procurement process about the designated staff person, and other specified formal contacts in the lobbying process.

23 Restricted Period Starts with the earliest attempt to solicit a response with regard to a procurement contract. This may include, but is not necessarily limited to, written notices, advertisements, request for proposal, invitations for bids, solicitations of proposals, or any other method for soliciting a response with regard to a procurement contract

24 Restricted Period nds with the final contract award. Final contract award means that all parties that must approve the contract have granted the approval. For instance, some contracts may require only agency approval, whereas others may require the additional approval of the state comptroller or a legislative body.

25 Procurement Timeline Restricted Period (limits who can receive Contacts) Definition of business need Ad in Contract Reporter Approval of contract by OSC

26 Contingent Fee xtends the contingent fee prohibition to; xecutive Orders Tribal State agreements Procurement Contracts Municipal resolutions Ordinances

27 Commission Salesperson Commission Salesperson generally means any person who satisfies all of the following criteria: 1. Primary purpose of employment is to cause or promote the sale of, or to influence or induce another to make a purchase of an article of procurement; and 2. Compensated, in whole or in part, by the payment of a percentage amount which exceeds the non-commission percentage amount of the sale of all or a substantial part of the sales which such person has caused, promoted, influenced or induced, provided, however; and 3. Any percentage commission payable with respect to the sale or purchase of an article of procurement is not substantially in excess of commission payable with respect to a comparable non-government sale or purchase.

28 Commission Salesperson 4. Person may be either an employee of, or an independent contractor for, a vendor. However, an independent contractor shall have a written contract for a term of at least six months. 5. Person may not be engaged in any lobbying activity other than an attempt to influence a determination of a public official related to a Governmental Procurement.

29 Penalties Old penalties still in effect New penalties as follows; Bill provides that a lobbyist or client may be fined up to $10,000 for an initial violation of the restricted period prohibition in section 1-n of the egislative aw; A lobbyist or client may be debarred from procurement lobbying for a period of four years for a second violation committed within four years of the first violation; Any client or lobbyist that lobbies on governmental procurements during the debarment period may be subject to a fine not to exceed $50,000, plus the value of any compensation received.

30 Penalties The bill provides for a new penalty of up to $2,000 per violation for failure to retain records. The bill requires the obby Commission to consider certain mitigating and aggravating factors in assessing penalties; and Get out of jail free card: -Permits persons or organizations that have never filed a statement or report with the obby Commission a cure period wherein they may cure, within 15 days, any failure to file a report or statement after receiving a Commission notice of intent to assess a penalty. Going forward, it may be wise to include mention of the 15 day right to cure in the notice letter, and ensure there is a tracking mechanism in place with regard to the expiration of the 15 day cure period.

31 Should I Register? If you reasonably anticipate exceeding $5,000 in reportable compensation and expenses; The article of procurement is valued at $15,000 or more; And you do not fall under any of the exemptions YO AR RQIRD TO RGISTR!

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