WHEREAS, the State of New York has adopted several important reforms to limit improper activities by lobbyists, including the enactment of the Lobbying Act and the creation of the New York Temporary State Commission on Lobbying;
WHEREAS, these reforms seek to protect the integrity of governmental decisionmaking by placing certain requirements and restrictions upon individuals seeking to influence the passage of legislation, the adoption of regulations, or the outcome of rulemaking proceedings;
WHEREAS, corporations and other entities seeking to sell goods or services to the State also frequently employ lobbyists to assist them during the contracting process;
WHEREAS, it is the established policy of the State of New York that the award of State procurement contracts shall be based solely upon the merits of the competing proposals;
WHEREAS, it is essential that the State procurement process be protected from improper influences by lobbyists in order to ensure that the contracting process is fair and equitable;
WHEREAS, in order to achieve this goal, it is necessary to place restrictions upon the ability of lobbyists to contact State agency personnel during the processing and evaluation of competing proposals;
WHEREAS, the implementation of such restrictions will protect the integrity and fairness of the procurement process, will ensure that contract awards will be based upon merit and not upon any improper lobbying influences, and will help to maintain the confidence of the public that their tax dollars are being spent fairly and wisely;
NOW, THEREFORE, I, MARIO M. CUOMO, 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. "Agency" shall mean any State department, or any division, board, commission, or bureau of any State department, or any public benefit corporation or public authority at least one of whose members is appointed by the Governor.2. "Proposal" shall mean any proposal, quotation, offer or response to an agency's competitive solicitation of submissions relating to an award of a procurement contract.3. "Improper lobbying influence" shall mean any attempt to achieve preferential, unequal or favored consideration of a proposal submitted for a procurement contract award, based on considerations other than the merits of the proposal, including but not limited to any conduct prohibited by Public Officers Law section 73 (5) or 74. Communications by employees of the State, public benefit corporations or public authorities that fall within the scope of their official duties shall not be deemed improper lobbying influence.4. "Pendency of a contract award" shall mean the processing period for letting a procurement contract, commencing with the earliest published written notice, advertisement or solicitation of expressions of interest or proposals, and ending with the State Comptroller's or the agency's final contract approval.5. "Procurement contract" shall mean a written contract let by an agency for the acquisition of goods or services in support of agency functions or operations, other than contracts which by statute must be awarded to the lowest responsible bidder.6. "Procurement Integrity Officer" shall mean the individual designated by the head of each agency to be responsible for ensuring the consistent and effective observance of agency procedures for the exclusion of improper lobbying influence.II. PROHIBITION OF IMPROPER LOBBYING ON STATE CONTRACTS Every State agency that undertakes the procurement of goods or services shall make its determinations regarding the award of such procurement contracts solely on the merits of the proposals, free from any improper lobbying influence.III. APPOINTMENT OF PROCUREMENT INTEGRITY OFFICERS 1. The head of every State agency shall appoint a Procurement Integrity Officer, who shall be the agency's deputy inspector general, general counsel, ethics officer or other appropriate member of the agency's executive staff or high-level management.2. Subject to determinations by the head of the agency, the Procurement Integrity Officer shall have primary responsibility for the prevention of improper lobbying influence relative to all procurement contract awards of the agency.IV. PROCEDURAL CONTROLS TO PROHIBIT IMPROPER LOBBYING A. Adoption of Procedural Controls 1. The Procurement Integrity Officer of every agency shall develop, for approval by the agency head and the State Ethics Commission, procedural controls designed to prevent any exposure of the agency's contracting process to improper lobbying influence.2. These procedural controls shall be developed in consultation with the agency's executive staff, including the agency's deputy inspector general, if any, its ethics officer and its general counsel, and following review of the procedures of the procurement staff and personnel of the agency. Agencies may request the assistance of the State Ethics Commission in developing such procedural controls.B. Requirement for Procedural ControlsThe procedural controls developed by the Procurement Integrity Officer and adopted by each agency shall: 1. require that decisions on the award of procurement contracts shall be based solely on the merits of the proposals, free from any improper lobbying influence;2. require that any agency officer or employee who becomes aware of any improper lobbying influence or attempted improper lobbying influence shall immediately notify the agency's Procurement Integrity Officer;3. prohibit contact relating to a proposal being considered by an agency, during the pendency of a contract award, between all agency personnel involved in the determination of a procurement contract and any employee, agent or consultant of a proposer competing for the contract, except for contacts authorized under the procedures established pursuant to paragraphs 4 and 5 of this subsection;4. establish guidelines and procedures for appropriate contacts during the pendency of a contract award between: (a) agency personnel involved in the determination of a procurement contract; and (b) those employees, agents or consultants of a proposer who are qualified by technical or professional training, education or experience to explain, clarify or demonstrate the characteristics and advantages of a product or service offered by a proposer. Such authorized contacts shall only be for the purpose of providing information to agency personnel to assist them in understanding and assessing the qualities, characteristics and anticipated performance of a product or service offered by a proposer, and shall occur only at such times and in such manner as has been authorized under the agency's guidelines and procedures;5. provide for appropriate contacts between agency staff and the employees, agents or consultants of a proposer for the purpose of negotiating contract terms after the evaluation of proposals and selection of a contractor have been completed;6. require, during the pendency of a contract award: (a) that all agency personnel involved in the determination of a procurement contract notify their agency's Procurement Integrity Officer of all contacts with employees, agents or consultants of any proposer competing for the contract award when the contact relates to a proposal being considered by the agency; and (b) that every proposer report to the agency every contact by any employee, agent or consultant of the proposer with any State employee regarding the contract under consideration;7. establish a process for the review by the Procurement Integrity Officer of any allegations of improper lobbying influence or attempted improper lobbying influence, and for the imposition of sanctions if such improper activity has been found to exist.C. Incorporation of Procedural Controls in Contract Proposals1. Every agency shall incorporate a summary of the policy and prohibitions against improper lobbying influence and applicable agency procedures into their requests for proposals or invitation materials or specifications for all procurement contracts.2. Every agency shall seek definitive written affirmations from all proposers as to the proposer's understanding of and agreement to comply with the agency's procedures relating to the preclusion of improper lobbying influence.3. Agencies are also encouraged to prepare a summary of their policy and measures for the preclusion of improper lobbying influence, and a copy of Public Officers Law sections 73(5) and 74, for transmittal to any person who potentially may exert improper lobbying influence on a decision to award a procurement contract.D. Review of Procedural Controls 1. The procedural controls adopted by each agency shall provide for the periodic review and analysis of those controls by the agency Procurement Integrity Officer. Such review shall occur at least annually.2. This review and analysis shall be conducted in consultation with the State Ethics Commission, the agency deputy inspector general, if any, the agency ethics officer, the agency general counsel and other appropriate agency personnel.3. This review shall include an examination of the agency's procedures relating to the preclusion of improper lobbying influence, in order to ascertain potential areas of exposure to improper lobbying influence and to adopt desirable revisions and reinforcements of such procedures for more effective avoidance of improper lobbying influence.4. These periodic reviews shall be held with agency executive staff and all employees engaged in any aspect of the procurement process to discuss the implementation, monitoring and enhancement of the agency's procedures relating to the preclusion of improper lobbying influence.5. During the course of such review, all agency officers and employees shall be reminded: (a) that the Procurement Integrity Officer must be notified immediately of any improper lobbying influence or attempted improper lobbying influence; (b) that acceding to improper lobbying influence is a violation of agency policy; and (c) that employee violations of agency procedures with regard to improper lobbying influence may be the basis for disciplinary action and, depending on the circumstances, may be a violation of Public Officers Law section 73(5) or 74, subject to enforcement by the State Ethics Commission.V. SANCTIONS FOR IMPROPER LOBBYING INFLUENCE 1. Upon notification of any allegation of improper lobbying influence or attempted improper lobbying influence, the agency Procurement Integrity Officer shall immediately investigate such allegation and shall give the proposer an opportunity to be heard in response to the allegation.2. If the improper lobbying influence or attempted improper lobbying influence is found to have occurred, then the agency may impose such sanctions as it shall deem appropriate, which may include but shall not be limited to the elimination of the proposal from consideration with respect to that contract award.3. In addition, the Procurement Integrity Officer shall report instances of employee violation of agency procedures regarding improper lobbying influence to the agency head and, where such violations constitute a violation of section 73(5) or 74 of the Public Officers Law, to the State Ethics Commission or the State Inspector General, whichever has jurisdiction.VI. REPORTS BY PROCUREMENT INTEGRITY OFFICERS 1. The Procurement Integrity Officer in each State agency shall provide regular written reports to the head of the agency describing all allegations of improper lobbying influence or attempted improper lobbying influence, and the results of the Procurement Integrity Officer's investigation of such allegations. Such written reports must be submitted at least annually.2. Such reports shall also set forth all contacts relating to any proposal being considered by the agency that occurred during the pendency of the contract award, between agency personnel involved in the determination of the procurement contract and employees, agents or consultants of any proposer competing for the contract.VII. PROHIBITION AGAINST PAYMENT OF OUTSIDE LOBBYIST COSTS 1. Every request for proposals issued by a State agency shall prohibit the payment of any costs of outside lobbyists in the proposed contract price.2. Any response to an agency request for proposals that includes in the proposed contract price any payment of the costs of outside lobbyists shall result in the immediate exclusion of such proposal from further consideration.VIII. REPORT OF THE COUNCIL OF CONTRACTING AGENCIES1. The Council of Contracting Agencies shall monitor the implementation of this Order and shall issue, after consultation with the State Ethics Commission and the State Inspector General, a report no later than May 1, 1995, setting forth its findings and conclusions and making such recommendations as it shall deem necessary and proper. In addition, after consultation with the State Ethics Commission and the State Inspector General, the Council of Contracting Agencies may issue such supplemental reports on the implementation of this Order as it shall deem appropriate.2. All State agencies shall provide any assistance deemed necessary by the Council of Contracting Agencies, the State Inspector General or the State Ethics Commission to carry out the purposes of this Order. Signed: Mario M. CuomoDated: October 28, 1994
[FN*] [Revoked by Executive Order No. 5 (Eliot Spitzer), infra.]
[Revoked by Executive Order No. 9 (David A. Paterson), infra.]
[Revoked by Executive Order No. 2 (Andrew M. Cuomo), infra.]
N.Y. Comp. Codes R. & Regs. Tit. 9 § 4.189