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Office of the New York State Comptroller

Vendor Responsibility

Frequently Asked Questions - General Requirements

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Importance of vendor responsibility

Why is vendor responsibility important?

State Finance Law and sound procurement practice dictate that State contracting entites take reasonable steps to ensure that public contracts are awarded to vendors who are capable of fully performing their contractual obligations over the term of a contract and have the integrity to justify the award of public dollars. Responsibility reviews also help ensure that public dollars support honest vendors that compete on product and price, and protect the competitive contractor selection process from unfair competition. Full, fair and open competition produces better value for the State and its citizens.

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State's authority to require a responsibility determination

What is the State's authority to require a responsibility determination?

State Finance Law, Article XI, §163 requires award of contracts for commodities or services to a responsible vendor. Furthermore, the State Procurement Guidelines require State contracting entities to "administer a process in which offerers are required to provide assurances that they conform with responsibility requirements." Similar requirements apply for construction contracts (Public Buildings Law, §8, Highway Law, §38[3]). Additionally, the Comptroller must be satisfied that a proposed contractor is responsible before approving a contract award under Section 112 of the State Finance Law. (See Konski Engineers, P.C. v. Levitt, 49 N.Y.2d 850 [1980]).

 
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Vendor responsibility requirements and contract amendments

How do the requirements found in GFO XI.16 apply to contract amendments?

Where a contract provides for renewals, each such renewal generally requires only Parts I & III or the Vendor Responsibility Profile to be completed. However, all sections of the Vendor Responsibility Profile are required and an updated or new Vendor Responsibility Questionnaire are required if new, potentially adverse information has come to the attention of the contracting agency, or if the renewal brings the total contract value to or above $100,000. Where the contract does not provide for renewals, and an amendment extends the time of performance, but does not change the contract value, only Parts I & III of the Profile are required (unless there is new, potentially adverse information about the vendor). Where the contract does not provide for renewals and an amendment provides for a change in contract value, a complete Vendor Responsibility Profile is required. A Vendor Responsibility Questionnaire is also required if the amendment brings the total contract value to or above $100,000, or if the agency becomes aware of adverse information about the vendor. Where the contract does not provide for renewals and an amendment impacts neither the contract term nor value, no vendor responsibility documentation is generally required. An example of this type of amendment would be a change to the legal language as a result of federal and/or State law, such as the inclusion of HIPAA compliance. In any type of amendment, where the agency learns of potentially adverse information, it must conduct a full review and provide full vendor responsibility documentation to OSC. The application of these various documentation requirements is summarized in the Vendor Responsibility Documentation Requirements chart.

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Vendor responsibility requirements for grants and legislative initiatives

Do vendor responsibility requirements apply to grants and legislative initiatives?

Yes. Vendor Responsibility documentation requirements defined by GFO XI.16 apply to all contract transactions submitted to OSC for pre approval.

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Entities exempt from vendor responsibility documentation requirements

OSC identifies contracts with municipalities as exempt from vendor responsibility documentation requirements. Are there any other entities or transactions exempt from these requirements?

Yes. OSC has identified certain cases where vendor responsibility documentation will be waived and these exemptions have been summarized in the Vendor Responsibility Documentation Requirements chart. These exemptions from vendor responsibility documentation include:

  • Eminent domain property takings;
  • Real property sales which are required by law to be sold to the highest bidder;
  • Department of Transportation, Thruway Authority, and New York State Canal contracts for reimbursement to railroads under Section 91 of the Railroad Law, Section 10, subsection 24(c) of the Highway Law, and Section 222 of the Transportation Law;
  • Contracts with governmental and sovereign entities, including other states and federal government agencies;
  • Contracts with New York State public colleges and universities;
  • Contracts with labor unions representing State employees carrying out the terms and conditions of State collective bargaining agreements;
  • Contracts with research foundations, including Aging Research Inc., Health Research Inc., Research Foundation, Research Foundation for Mental Hygiene, Research Foundations of CUNY and SUNY, and Welfare Research Inc.;
  • Contracts with public corporations, including public authorities, public benefit corporations, district corporations and industrial development agencies.

An exemption eliminates the requirement for the inclusion of vendor responsibility documentation in the procurement record; it does not waive the requirement that a contracting agency award a contract to a responsible vendor. Furthermore, OSC reserves the right, on a case-by-case basis, to request vendor responsibility documentation on entities normally considered exempt.

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Requirements for P-card transactions, T-Contracts, one-time purchases, and purchase orders less than $50,000

Are P-card transactions, T-Contracts, one-time purchases, and purchase orders less than $50,000, subject to vendor responsibility requirements?

OSC encourages agency awareness and consideration of vendor responsibility in all purchases and procurements. However, the vendor responsibility requirements defined in GFO XI.16 apply only to contract transactions (e.g., contracts and purchase orders) submitted to OSC for pre approval. Furthermore, the requirement for vendor self-disclosure related to vendor responsibility applies only to contract transactions valued at $100,000 or more.

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Reuse of questionnaire

Where a vendor bids on [or is considered for award for] more than one procurement by an agency, can it reuse the same disclosure submission (i.e., questionnaire)?

Yes. For vendors filing an online questionnaire using the VendRep System, a completed questionnaire will be considered "current" if it has been certified within six (6) months of the agency-defined due date for the questionnaire, with the vendor responsible for ensuring that the questionnaire reflects any material changes since it was last certified. For vendors using a paper questionnaire, a contracting agency can accept as the required vendor disclosure a vendor-signed update to a previously-submitted questionnaire, or a Statement of No Change. Such documentation must be included with the original paper questionnaire in the procurement record submitted by the contracting agency to OSC for contract approval.

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Request for new questionnaire

If a proposed vendor is a current vendor of the contracting agency, and the agency is satisfied with its performance, does the agency need to obtain a new questionnaire?

The contracting agency must make a vendor responsibility determination for each new contract transaction, because performance, while a factor in vendor responsibility, is not the sole factor. Therefore, vendor disclosure is required if the contract is valued at $100,000 or more. However, if the vendor recently filed a Vendor Responsibility Questionnaire for another procurement with the agency, the agency can accept a Statement of No Change, rather than requiring a new questionnaire.

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Previous non responsible findings

Is a contracting agency barred from contracting with a vendor previously found non-responsible by the contracting agency or another agency?

No. Each responsibility determination is made on a case-by-case basis, considering factors known at the time and the specifics of the procurement in question. However, in conducting a responsibility review, a contracting agency should consider previous findings of non responsibility and should notify vendors that a finding of non responsibility may be a factor in future procurement decisions. There are limited, specific instances in New York State under which a vendor can be debarred. Under New York State Law, a vendor may be debarred for repeated prevailing wage violations and for certain violations or fines related to Workers' Compensation insurance. In addition, State Finance Law §139-j(10) obligates a State contracting entity to notify the Office of General Services when it makes a determination of non responsibility due to a violation of State Finance Law §139-j (a knowing and willful violation of the permissible contacts requirements). Any subsequent determination of non responsibility within a four year period shall result in a vendor 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.

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Notification about non responsible findings

Will OSC alert a contracting agency if another State agency has found a proposed contractor to be potentially non responsible?

Yes. If in reviewing a contract transaction OSC identifies a proposed contractor as one with a potential responsibility issue, it will notify the contracting agency so that the agency can include such information as a factor in its responsibility review.

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Timeliness of OSC contract approval

Do the vendor responsibility procurement record requirements negatively impact the time it takes for OSC contract approval?

No. The enhanced review resulting from the vendor responsibility procurement record requirements is conducted in parallel with the contract review process and generally does not extend overall approval time frames. To help prevent delays, agencies are encouraged to contact OSC for technical assistance and guidance on questions that arise regarding responsibility determinations.

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More information on vendor responsibility

How can I obtain additional information about vendor responsibility?

Additional information about vendor responsibility, including the Comptroller's Bulletin, suggested forms, and links to useful resources, can be found on this OSC website (http://www.osc.state.ny.us/vendrep/). You may also contact the OSC Help Desk via email at Contact Us.

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Administrative transactions

Some transactions which come to OSC are primarily administrative transactions or transactions to implement provisions of the original contract, rather than reflecting a change in a contract or relationship to a contractor. Is new vendor responsibility documentation required in these cases?

No, vendor responsibility documentation is not required for the following types of transactions sent to OSC for review:

  • AC340-S encumbrance-only transactions (i.e., corrections or address changes);
  • Name changes;
  • Budget modifications;
  • Lease holdovers and lease escalation clause amendments;
  • Price list changes; and
  • Multi-phase projects (not the original submission).

Contract assignments are subject to the vendor responsibility documentation requirements.

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Exceptions to vendor responsibility requirements

Does the Comptroller recognize any exceptions to the deadlines and standards prescribed in GFO XI.16?

Rare exceptions will be considered by OSC on a case-by-case basis. For example, for an emergency contract, where there is a direct health or safety impact, OSC may approve a contract subject to the contracting agency filing the required Vendor Responsibility Profile and documentation on a post approval basis.

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Information about assessing vendor responsibility

How can an agency obtain the information necessary to assess vendor responsibility?

OSC recommends that the contracting agency administer a Vendor Responsibility Questionnaire to collect relevant information from the proposed contractor, and include as part of the questionnaire a certification by the vendor that the information provided is true, accurate and complete. In collaboration with State contracting agencies and members of the vendor community, OSC developed questionnaires that may be used to provide the necessary disclosure. These questionnaires are based upon the business characteristics of the vendor, specifically: whether the vendor is For-Profit or Not-for-Profit, and whether the vendor bids or anticipates bidding on construction contracts.

Vendors may complete these questionnaires online using the VendRep System or they can complete paper copies found on the Comptroller’s website at http://www.osc.state.ny.us/vendrep/forms.

The contracting agency’s solicitation document (Invitations For Bids, Requests For Proposals, etc.) should also solicit information relative to the vendor's capacity to perform (i.e., staffing plan, staff qualifications, financial statements, etc.) and may include requirements related to legal authority (i.e., applicable licenses and permits).

There are also numerous sources of public information, both free and fee-based, which can and should be a factor in a vendor responsibility assessment. OSC has developed a Resource Guide identifying various sources of data relevant to vendor responsibility, which is available at the Comptroller’s website (http://www.osc.state.ny.us/vendrep). Agencies are encouraged to notify OSC of additional resources that they have found useful so that they can be added to the Resource Guide.

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Use of questionnaire during assessment

How will the online Vendor Responsibility Questionnaire be used by State contracting entities to assess vendor responsibility?

The online Vendor Responsibility Questionnaire will be utilized by State contracting entities in the same manner as paper questionnaires. Information disclosed by the vendor on the questionnaire will be accessed by the State contracting entity, and reviewed and assessed along with other relevant information to make a responsibility determination. If more information or clarification is needed, the contracting entity will contact the vendor. The vendor will be able to supply the additional information by updating its online questionnaire, if acceptable to the contracting entity requesting the information.

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Adding information to the VendRep System

Can additional or more detailed information requested by a contracting entity be provided via the VendRep System?

The contracting entity has discretion in determining how additional information must be provided. If in accordance with the agency’s request, a vendor can supplement, modify and re-certify its online questionnaire at any time. In the VendRep System, the vendor creates a new questionnaire, modifies the appropriate responses (the vendor’s previous responses will automatically appear in the new questionnaire), then certifies the new questionnaire.

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Accuracy of questionnaire

Must an agency verify the accuracy of a Vendor Responsibility Questionnaire certified by the vendor?

It is up to the contracting agency to determine the appropriate level of review for information disclosed by a proposed contractor. It is expected that the level of scrutiny will depend on the specific characteristics of the procurement and the totality of the information available to the agency.

OSC recommends that State contracting entities incorporate into its contracts language that requires the contractor formally to communicate to the agency any changes in its vendor responsibility disclosure and that provides the agency with the right to terminate the contract for non responsibility or failure to disclose accurately.