The Business Council supports the permanent extension of State Finance Law Section 163, otherwise known as the Procurement Stewardship Act (PSA), and recommends that the legislature, as part of this extension legislation, also adopt several necessary reforms pertaining to the debriefing process, competitive negotiations and others. Importantly, these reforms were approved by both houses in 2015, with that legislation being vetoed, in part because the Administration said these issues should be addressed in 2016 discussions on PSA extension.
A common concern raised by vendors is that agencies are inconsistent with regard to debriefs. State Finance Law stipulates that, “A state agency shall, upon request, provide a debriefing to any unsuccessful offerer that responded to a request for proposal or an invitation for bids, regarding the reasons that the proposal or bid submitted by the unsuccessful offerer was not selected for an award.” Bidders frequently note that an agency will provide relatively little insight into the selection process. This is a source of frustration for vendors and hinders their ability to obtain clear feedback in order to improve future RFPs. Debriefings are widely regarded as a useful tool in the procurement process. A recent Congressional Research Service report states, “Analysts believe that protests are sometimes the result of poor communication between government and industry, poorly written requirements, and agencies not adequately debriefing losing bidders after an award. When agencies do not adequately debrief bidders, companies may file a protest to determine why they lost a competition. If poor communication results in bid protests, improving agency communication, clarity, and debriefs could result in fewer protests.”1
The Business Council participated in an OGS Roundtable discussion in December 2015 regarding the Procurement Stewardship Act, and lack of consistency and uniformity among agencies in debriefing procedures was cited by several participants as an issue that needed to be addressed.
The Business Council strongly supported legislation vetoed last year that would streamline debriefings (S.3450-C/A.2029-D). The bill provided workable debrief language that could be included in this year’s PSA extension legislation.
Allowing for simultaneous negotiations with two or more responsive offerors is a negotiating tactic already employed in federal procurement and in other states. This method is particularly useful in some of the more complex procurements. Current law allows for an agency to negotiate with the successful bidder after an award, but even then, material terms cannot be negotiated. In this respect, New York is considered to be risk-adverse and inflexible in comparison to other states.2 Empowering agencies to engage in competitive negotiations will help the state realize innovative solutions in procurement and allow vendors an opportunity to showcase their company’s capabilities during the negotiating process.
An OSC program bill (State Comptroller #34, S.5713-B/A.7513-C), which was approved by both houses in 2015, included language that would amend State Finance Law 163 to allow for competitive negotiations. The Business Council strongly supports inclusion of this language in the 2016 PSA extension bill.
Other issues that could be addressed in the Procurement Stewardship Act extension include raising the general purchases discretionary threshold for state agencies, and clarifying how agencies can use the piggybacking vehicle authorized in State Finance Law.
We look forward to working with the Administration, Senate and Assembly in developing important reforms to the PSA, in order to provide both the state and vendor community with a more workable and effective competitive bidding process.
- GAO Bid Protests: Trends and Analysis (Congressional Research Service, July 2015).
- In The Importance of Competitive Negotiations to State Information Technology Procurement (The Procurement Lawyer, Spring 2013), authors Robert Metzger and Lauren Kramer compare New York to California and Oregon, states considered to be more innovative in their procurement practices.