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The Business Council of New York State, Inc., a membership organization representing more than 2,600 New York businesses, supports S.6967-A (DeFrancisco)/A.9248-A (Englebright), Office of General Services Departmental Bill #86. Provisions in state finance law that restrict communications between a contracting agency and potential vendors during a procurement are set to expire July 31, 2014; this bill would extend those provisions to July 31, 2016.
The restricted period, part of the procurement lobbying laws of 2005, is a period of time in which communication between vendors and an agency are restricted to avoid the potential appearance of favoritism in the award of a government contract. The restricted period also triggers procurement lobbying disclosure requirements.
The law and regulations promulgated have led to inconsistent communication policies, varying across agencies. Our members, many of whom are either vendors or potential vendors for the state have long had issues with the restricted period. One problem that is always mentioned by Business Council members is the “determination of need” of a government procurement that triggers the restricted period. There is no specific definition of what constitutes a determination of need and members have said that agencies arbitrarily shut down conversations with the vendor community. Without a consistent policy of informing potential vendors that a determination of need has been made vendors might unknowingly be in violation. Unfortunately, the way the statute has been interpreted can also prevent communication that would benefit the state.
This issue is not unique to New York; the federal government has issued reports to clarify federal laws governing restricted communications, “Myth-Busting”: Addressing Misconceptions to Improve Communication with Industry during the Acquisition Process and “Myth-busting 2”: Addressing Misconceptions and Further Improving Communication During the Acquisition Process. Both reports point to the benefits of engaging with the vendor community in a lawful and transparent manner: smarter Request for Proposals and Invitation for Bids that minimize the need for revisions; governments understanding of the latest solutions in the marketplace and also new innovations on the horizon. As the state looks to modernize their systems and during huge procurement transformations, like the strategic sourcing initiative and centralization of contracts under OGS that the state is currently undertaking, the state should be encouraging dialogue with the vendor community instead of arbitrarily restricting it.
The Business Council supports this legislation so that the current law and process can be reviewed with goals of creating uniform and clear communication policies, and encouraging conversations between the vendor community and government agencies without jeopardizing the integrity of the procurement process.