MEMORANDUM

Lobbying Law Reform Act of 2005 

•  New lobbying laws apply to government procurement contracts

Unlike the prior law, the Lobbying Law Reform Act of 2005 now applies to government procurement contracts, defined as contracts with annualized expenditures in excess of $15,000. This new law limits the contacts between lobbyists and vendors to specifically designated government contracting personnel during the procurement process. The restriction period commences with the earliest written notice, advertisement or solicitation of a request for proposal, invitation for bids, or solicitation of proposals, and ends with the final contract award and approval by the state agency.

The State Finance Law was also amended to be consistent with the Lobbying Law. The State Firm Law now requires every contracting agency undertaking a governmental procurement to designate each person or persons to be responsible for communications and to undertake the procurement in a manner consistent with the Public Officers Law ethics provisions. As such, each offerer that contacts a governmental entity about a governmental procurement shall only make contact with the person or persons designated by the governmental entity relative to the governmental procurement, except that the following contacts are exempted from this provision:

•  submission of written proposals in response to a request for proposal or other method of solicitation (“RFP”);

•  submission of written questions to a designated contact set forth in a RFP when all written questions and responses are to be disseminated to all offerers;

•  participation in a conference provided for in a RFP;

•  complaints by an offerer made in writing to the office of general counsel of the procuring government entity regarding the failure of the person or persons designated by the governmental entity to respond in a timely manner to authorized offerer contacts;

•  offerers who have been tentatively awarded a contract and are engaged in communications with a governmental entity solely for the purpose of negotiating the terms of the procurement contract;

•  contacts between designated governmental entity staff of the procuring governmental entity and an offerer to request the review of a procurement contract award; and

•  certain complaints of alleged improper conduct.

A finding that an offerer has knowingly and willfully violated these provisions shall result in a determination of non-responsibility for such offerer and its subsidiaries, and any related or successor entity with substantially similar function, management, board of directors, officers and shareholders (hereinafter collectively referred to as “offerer”). A subsequent violation will result in the offerer being rendered ineligible to submit a proposal on or be awarded any procurement contract for a period of four years from the date of the second final determination.

•  Impact on Design Entities

With this new law, companies that are interested in bidding on public contracts in New York must be very careful about who they contact at the government agency. Violations of this law, even inadvertent ones, may subject employers to stiff penalties, including a ban on doing business with the State. Moreover, not only will the company who violates this law be banned from doing business with the State, but any related company will also be banned.