State Comptroller #34 (S.5713-B DeFrancisco/S.7513-C Peoples-Stokes)




State Comptroller #34 (S.5713-B DeFrancisco/S.7513-C Peoples-Stokes)


Enacts various provisions relating to procurement procedures



The Business Council supports passage of this legislation, which would make a number of amendments to the state’s contract procurement procedures.

Specifically, the bill would include the following positive reforms:

  • Require that unsuccessful offerors be given a reasonable opportunity for a discussion with agency personnel who were involved in and are knowledgeable about the procurement evaluation process and provide such offerors with certain information in the debriefing.
  • Require agencies to enroll with the Office of State Comptroller (OSC) to access the vendor responsibility system, and require agencies to provide vendors with information on how to access and utilize the system.
  • Allow agencies to undertake competitive negotiations in cases where two or more offerers are deemed susceptible for being selected, when the agency has determined that using a competitive negotiation will maximize the agency’s ability to obtain best value.

Among other things, this legislation addresses a common concern raised by vendors, that agencies are inconsistent with regard to debriefs. Bidders frequently note that an agency will provide relatively little insight into their bid selection process. This is a source of frustration for vendors and hinders their ability to obtain clear feedback in order to improve future RFPs. Debriefs are widely regarded as a useful tool in the procurement process—a recent survey of procurement officers conducted by the National Association of State Procurement Officials showed that debriefs during which vendors were informed of the evaluation process resulted in fewer bid protests. The Business Council strongly supports requiring agencies to provide unsuccessful bidders with information that will help them improve future bids and remain economically competitive.

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.1 This legislation will help the state realize innovative solutions in procurement and allow vendors an opportunity to showcase their company’s capabilities during the negotiating process.

The Business Council also supports requiring agencies to enroll with the OSC to access the vendor responsibility (VendRep) system, which would save time and money for businesses by sparing them paperwork, particularly in those cases of agencies that utilize their own vendor responsibility forms. However, as the VendRep process can also be complicated and time-consuming, The Business Council would also support time frames worked into current statute regarding timeliness of responsibility determinations and encourage OSC to look into current vendor issues with the system.

The provisions in this legislation will generally allow for greater flexibility in state procurement and increased opportunities for vendors. For these reasons, The Business Council supports this legislation.

  1. 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.