XI. Procurement and Contract Management

Guide to Financial Operations

XI.18.B Procurement Lobbying Act

XI. Procurement and Contract Management
Guide to Financial Operations

On August 23, 2005, the Legislative Law and the State Finance Law (SFL) were amended to include provisions for the regulation of attempts to influence State and other governmental entity procurement contracts. Sections 139-j and 139-k of the SFL impose procurement record requirements relating to lobbying on procurement contracts. For state agencies and public authorities whose contracts are subject to the State Comptroller’s approval, the Office of the State Comptroller (OSC) will examine the contract package to ensure that these requirements are included in the procurement record.


All procurement contracts with estimated annualized expenditures in excess of $15,000 resulting from procurement transactions initiated on or after January 1, 2006 are subject to the procurement lobbying requirements and additional procurement record requirements.

The SFL defines a procurement contract as any contract or other agreement for an article of procurement1 involving an estimated annualized expenditure in excess of fifteen thousand dollars. Under the law, grants, SFL Article XI-B contracts, intergovernmental agreements, railroad and utility force accounts, utility relocation project agreements or orders and eminent domain transactions are not deemed to be procurement contracts.

Subject to certain exceptions, an assignment, amendment, renewal or extension of a procurement contract or any material change in a procurement contract resulting in a financial benefit to the offerer is covered by the provisions of the Act.

The law excludes amendments that are “authorized and payable” under the terms of the original procurement contract as it was finally awarded or approved by the State Comptroller. A few examples of amendments that are “authorized and payable” are: a lease agreement that may be extended for a stated period of time at the rent provided for in the original lease or at that rent plus an escalator, or a highway contract that authorizes change orders that are subject to unit pricing.

Backdrop contracts, and any contracts resulting from mini-bids pursuant to the backdrop contracts, are also subject to this law.


As stated above, SFL §139-j and SFL §139-k impose additional procurement record requirements. These requirements must be satisfied when submitting contracts to OSC for its approval.

OSC has developed the form "Governmental Entity Representation Concerning Compliance with State Finance Law §§139-j and 139-k" (AC 3281-S), which shall be used by contracting entities in providing the representations outlined in numbers 1 through 6 below.

The completed and signed form shall be included in the procurement record submitted with contract transactions sent to OSC for review and approval.

  1. Vendor Responsibility Determination

    In accordance with Section 16 - Vendor Responsibility of this Chapter, the procurement record for every contract must include a determination that the offerer is responsible in accordance with vendor responsibility requirements set forth in that section. In addition to the general responsibility determination required by Section 16 of this chapter, for all contracts subject to the State Comptroller’s approval the procuring entity must make a separate responsibility determination as to whether the offerer has: (i) knowingly and willfully violated the prohibitions against impermissible contacts or certain ethics provisions, or failed to timely disclose accurate and complete information or otherwise failed to cooperate with the procuring entity, or (ii) failed to disclose prior determinations of non-responsibility by any governmental entity for any of the above reasons within the previous four (4) years.

  2. Offerer Certification; Complete Disclosure

    Every procurement record must include a disclosure by offerers with regard to non-responsibility determinations within the past four (4) years based on: (i) impermissible contacts or other violations of SFL §139-j; or (ii) the intentional provision of false or incomplete information to a governmental entity. (Note: To satisfy the requirement regarding offerers’ disclosure, the governmental entity must specifically request information regarding prior findings of non-responsibility for violations of SFL §139-j. A general request for prior findings of non-responsibility is not sufficient.) In addition, any procurement contract award shall contain a certification by the offerer that the information provided to the procuring entity was complete, true and accurate.

  3. Contract Clause; Termination Provision

    All procurement contracts must contain a provision authorizing the agency to terminate the contract if the certification (see preceding paragraph) is found to be intentionally false or intentionally incomplete. Since November 2010, the required termination provision is contained in Appendix A – Standard Clauses for All New York State Contracts, compliance with this requirement may be satisfied by incorporating the latest version of Appendix A into the contract. (Note: General contract termination provisions, such as the authority to terminate for convenience, do not satisfy this requirement. The contract provision must specifically authorize termination if the certification is subsequently found to be intentionally false or intentionally incomplete.)

  4. Agency Policy and Prohibitions Regarding Permissible Contacts; Inclusion in Solicitation/Bid Documents

    SFL §139-j restricts contacts2 by offerers3 with any governmental entity4 regarding procurement contracts. Subject to certain exceptions set forth in SFL §139-j(3), contacts between offerers and governmental entity personnel, other than the governmental entity’s designated contact person(s), are prohibited during the restricted period5 of the governmental procurement6.The statute requires that “[e]very governmental entity shall incorporate a summary of the entity’s policy and prohibitions regarding permissible contacts during a governmental procurement” and a copy of the governmental entity’s procedures be included in the solicitation or bid documents for all procurement contracts. The statute further requires that if a member, officer, or employee of a governmental entity becomes aware that an offerer has violated the permissible contacts provisions of the law, such person shall immediately notify the Ethics Officer, Inspector General, or other official of the procuring governmental entity responsible for investigation of such violations.

  5. Affirmation of Compliance; Written Agency Procedures

    All offerers must provide a written affirmation that the offerer understands and agrees to comply with the governmental entity’s procedures relating to permissible contacts during the procurement.

  6. Record of Contacts

    For each procurement contract, SFL §139-k requires that all contacts between an offerer and a governmental entity during the restricted period be recorded and made a part of the procurement record.

For additional information regarding applicability and requirements of SFL §§ 139-j and 139-k, a List of Offerers Determined to be Non-responsible, and a List of Debarred Offerers visit the Advisory Council on Procurement Lobbying page on the Office of General Services (OGS) website at: https://ogs.ny.gov/acpl

1 SFL §139-j(1)(b) defines “article of procurement” as “a commodity, service, technology, public work, construction, revenue contract, the purchase, sale or lease of real property or an acquisition or granting of other interest or lease of real property or an acquisition or granting of other interest in real property, that is the subject of a governmental procurement.”

2 SFL §139-j(1)(c) defines “contacts” as “any oral, written or electronic communication with a governmental entity under circumstances where a reasonable person would infer that the communication was intended to influence the governmental entity’s conduct or decision regarding the governmental procurement.”

3 SFL §139-j(1)(h) defines “offerer” as “the individual or entity, or any employee, agent or consultant or person acting on behalf of such individual or entity, that contacts a governmental entity about a governmental procurement during the restricted period of such governmental procurement, whether or not the caller has a financial interest in the outcome of the procurement.”

4 SFL §139-j(1)(a) defines “governmental entity” as “(1) any department, board, bureau, commission, division, office, council, committee or officer of the state, whether permanent or temporary; (2) each house of the state legislature; (3) the unified court system; (4) any public authority, public benefit corporation or commission created by or existing pursuant to the public authorities law; (5) any public authority or public benefit corporation, at least one of whose members is appointed by the governor or who serves as a member by virtue of holding a civil office of the state; (6) a municipal agency, as that term is defined in paragraph (ii) of subdivision (s) of section one-c of the legislative law; or (7) a subsidiary or affiliate of such a public authority.”

5 SFL §139-j(1)(f) defines “restricted period” as “the period of time commencing with the earliest posting, on a governmental entity’s website, in a newspaper of general circulation, or in the procurement opportunities newsletter in accordance with article four-C of the economic development law of written notice, advertisement or solicitation of a request for proposal, invitation for bids, or solicitation of proposals, or any other method provided for by law or regulation for soliciting a response from offerers intending to result in a procurement contract with a governmental entity and ending with the final contract award and approval by the governmental entity and, where applicable, the state comptroller.”

6 SFL §139-j(1)(e) defines “governmental procurement” as “(i) the public announcement, public notice, or public communication to any potential vendor of a determination of a need for a procurement, which shall include, but not be limited to, the public notification of the specifications, bid documents, request for proposals, or evaluation criteria for a procurement contract, (ii) solicitation for a procurement contract, (iii) evaluation of a procurement contract, (iv) award, approval, denial or disapproval of a procurement contract, or (v) approval or denial of an assignment, amendment (other than amendments that are authorized and payable under the terms of the procurement contract as it was finally awarded or approved by the comptroller, as applicable), renewal or extension of a procurement contract, or any other material change in the procurement contract resulting in a financial benefit to the offerer.”

Guide to Financial Operations

REV. 03/04/2020