New York

Key Agency(ies): The Office of General Services (OGS) – Procurement Services is the central procurement authority for New York’s Executive agencies. The New York State Procurement Council is chaired by the OGS Commissioner and is the body responsible for issuing guidelines for agency procurement. Those guidelines are published in the NYS Procurement Guidelines.

In addition to OGS, the Office of the State Comptroller (OCS) conducts oversight of agency procurements. Under New York State Finance Law § 112, most stage agency contracts above certain dollar thresholds must be reviewed and approved by the State Comptroller before becoming effective. The threshold for most contracts to trigger OCS review is $50,000.

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Key Statute: New York’s procurement laws are codified largely in the State Finance Law (N.Y. State Fin. Law) Article 11 (State Purchasing).

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Key Regulations: New York’s procurement laws are further implemented in the New York Codes, Rules and Regulations (N.Y. Comp. Codes R. & Regs.). Key regulations include N.Y. Comp. Codes R. & Regs. tit. 9, § 250, which contains regulations formalizing certain procurement procedures. N.Y. Comp. Codes R. & Regs. tit. 2, § 24 establishes a formal protest process for vendors to challenge contract awards.

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Procurement Types/Highlights:

OGS Centralized Contracts: OGS establishes large statewide contracts for certain commodities (vehicles, office supplies) and services (IT consulting). Agencies generally must use a centralized state contract if it meets their needs, rather than conducting their own procurement. Purchasing from an OGS contract is considered a procurement exempt from competition requirements.

If there is no OGS contract, agencies will conduct their own open market competitive procurements. The default methods of competition are IFBs and RFPs.

IFBs are used when award can be made to the lowest price responsive and responsible bidder. N.Y. State Fin. Law  § 163 requires commodity contracts to use sealed bidding procedures.

RFPs are used when award must be made on a best value basis. Award need not be made to the lowest price proposal. RFPs allow for consideration of criteria beyond cost such as technical factors and qualifications. N.Y. State Fin. Law § 163 requires that if an agency uses a “best value” procurement method, it must document quantifiable evaluation factors and the evaluation process in its procurement record.

Discretionary Purchases: Under N.Y. State Fin. Law § 163(6) agencies have authority to make discretionary purchases below certain dollar thresholds (generally $50,000) without a formal competitive process. For purchases under those thresholds, agencies may directly select a vendor or may solicit limited quotes. Agencies must still award contracts to only responsible vendors.

Bid Protests:

Regs Governing Bid Protests:

• In New York State, bid protests for Executive branch procurements are generally administered by the Office of the State Comptroller (OSC), because OSC must approve most state contracts before they become effective, as required by N.Y. State Fin. Law § 112.
• However, each agency maintains their own bid protest and dispute resolution policies. Disappointed offerors may challenge a contract award decision at the agency level before proceeding to OSC.

Timeliness Rules:

• At OSC, protests must be filed within 10 business days after the disappointed offeror receives notice of the contract award, or within 10 business days after an agency decision if the offeror is appealing an adverse decision of an agency level protest.

Protest Process:

• The OSC Bureau of Contracts assigns a protest officer who will review the contract.
• During an OSC Protest, the Comptroller will not approve a contract until the protest is resolved.
• OSC will review the procurement record and any protest arguments, and will issue a written determination on the protest.
• OSC’s decision is the final administrative decision for protesters.

Claims: New York contract claims are generally governed by the Court of Claims Act, which establishes the exclusive forum for contractors seeking monetary damages against the state. If a contractor believes the state has breached a contract, the contractor must file a claim in the New York State Court of Claims. There is no administrative tribunal to hear suits against the state for contract related damages.

Contractors may attempt to resolve disputes informally with the contacting agency. The Office of the Attorney General and the OSC may assist with negotiating settlements. Any settlements exceeding a certain threshold may require OSC approval under N.Y. State Fin. Law § 112.

The statute of limitations for filing a claim in the Court of Claims is six months from the accrual of the claim, unless a contractor files a notice of intention to file a claim, which extends the deadline to file a claim to two years.

Suspension & Debarment: New York state law does not provide for a centralized statutory suspension or debarment system. Typically, vendor exclusions are typically handled through agency-specific responsibility determinations under N.Y. State Fin. Law § 163(9)(d), which requires that contracts be awarded only to “responsible bidders.” While New York does not maintain a single statewide debarment list, in 2019, New York Governor Cuomo issued Executive Order 192, which requires OGS to maintain a list of vendors determined to be non-responsible.

Interesting/Distinctions: New York imposes a restricted period (i.e. a blackout period) commencing when a solicitation is posted and ending with the final contract award and approval, during which an offeror is only allowed to communicate with persons designated by the soliciting agency to be deemed knowledgeable and permissible contacts for the purposes of that procurement.