Contract Procurement Committee Update
June 2, 2017
Amber L. Mooney
Manager of Government Affairs
518.465.7511 Ext. 208
Mooney Named to State Procurement Council
Amber Mooney, who joined The Business Council’s government affairs staff in April, has been named by Assembly Minority Leader Brian Kolb as our representative to the State Procurement Council, filling the position vacated by Sonia Lindell. The Procurement Council is responsible for the study, analysis and development of recommendations to improve state procurement policy and practices; and for development and issuance of guidelines governing state agency procurement. She will also be taking over our advocacy work on procurement issues. Committee members can contact her at email@example.com or 518-465-7511, extension 208.
Executive Order 162
The Cuomo Administration has issued “preliminary guidance” on implementation of Executive Order 162. The guidelines, forms, instructions and FAQ document are accessible online here. After considerable pressure from The Business Council and other organizations, the Administration established a 30-day public comment period prior to finalization. The EO, issued in January 2017, will require most state contractors to submit detailed information on pay levels for their employees working on state contracts, broken down by race/ethnicity and sex, and would apply to state contracts issued on or after June 1, 2017.
The Business Council has raised a number of serious concerns with the Administration with regard to both the Executive Order and its implementation plan. A summary of key provisions and major concerns is provided below. We welcome input and questions from Committee members. Please contact firstname.lastname@example.org or email@example.com
- The EO requires quarterly or monthly reports, a reporting cycle justified in large part by fact that other, less detailed contractor reports are currently required on the same timetable. In contrast, the expanded federal EEO-1 report adopted by the Obama administration requires annual reports only, with less detailed reports for small business. The frequency of reporting under EO 162 dramatically increases the compliance workload, and we strongly recommend an annual reporting cycle.
- The EO requires reports from contractors and any subcontractor "providing goods to, or performing services for," the contractor "in connection with such state contract." We have two major concerns. First, the Administration is considering a very expansive view of what constitutes a "subcontractor" subject to wage reporting. Each sector subject to this (e.g., construction, health care, technology, etc.) has their own unique issues in defining "subcontractors," which will generate many questions regarding applicability that have yet to be sorted thru. A reasonable, workable definition of subcontractor is needed. Second, the Administration has said, and the draft implementation plan proposes, that contractor will be required to collect from, and assure compliance by, all of its subcontractors. This creates an untenable situation, where one private sector business will be obligated to submit its pay records to another. Data collection will be a major challenge to the contractor, and since it will be a condition of the contract pursuant to the EO, failure to accomplish this will be a breach of the contract's terms/conditions. Any reporting mandate on subcontractors should apply to them directly.
- We strongly urge that salary data be non-disclosable. While we appreciate the Administration’s support for a FOIL exemption for salary data submitted pursuant to the EO, the provisions set forth in the implementation plan are wholly inadequate. A statutory or regulatory exemption is essential to avoid disclosure of business-confidential information and the personal information of affected employees. The need for statutory confidentiality provisions is enforced given several recent NYS court cases on the issue of FOIL-ability of salary data submitted to state agencies.
End of Session Procurement Legislation
We are responding to several legislative proposals to be considered during the last three weeks of the 2017 legislative session, and welcome your input and questions on these proposals. Staff contact: firstname.lastname@example.org or email@example.com
- S.6452 (DeFrancisco @ request of Comptroller) adopts several reforms that were included in legislation vetoed by Governor Cuomo in 2015, including: standardizes “vendor responsibility” processes; allowing for alternative procurement methods for the acquisition of non-construction related commodities and services, and information technology, including competitive negotiations; extending piggybacking provisions, and updating the Lobbying Act definition of “restricted period” to match the State Finance Law language adopted in 2016. The Business Council supported this legislation in 2015.
- We are supporting S.6362-A (DeFrancisco), which supersedes Executive Order 162 to require an annual report on contractors’ workforce demographics and pay levels.
- We opposed the Comptroller’s proposed “The "New York state procurement integrity act," A.6355 (Peoples-Stokes), as introduced. Major concerns were: additional delays on contract approvals due to expansion of the Comptroller’s pre-audit authority; the imposition of expansive “vender ethics” provisions on contracts, mirroring Public Officers Law provisions applicable to state employees; and the imposition of mandatory “whistleblower” obligations on state contractors. Note that the Senate’s amended version - S.3984-A (DeFrancisco) – eliminated the bill’s contractor mandates, and focuses on the Comptroller’s review of contracts by SUNY, CUNY and related entities.
Business Council IT Forum
The Business Council will hold an Information Technology and Telecommunications Forum on Tuesday, June 6 in Albany, focusing on the issues of a state “iCenter”, cyber security, data breach, and internet issues related to business and privacy. The day will feature speakers from the Center for Internet Technology and AT&T to discuss “the internet of Things” and how we are all connected to the modern world of technology. It’s a CEO’s Guide to Data Security. There will be a luncheon with the State’s newly appointed CIO Bob Samson of the New York State Office of Information Technology Services (ITS) who will discuss the role of Information Technology Services. ITS provides statewide IT strategic direction, directs IT policy and delivers centralized IT products and services that support the mission of the State. Staff contact: firstname.lastname@example.org