Section 165(6)(b) of the State Finance Law requires the Commissioner of the Department of Economic Development to develop a list of jurisdictions that impose sanctions or otherwise restrict the ability of New York State companies when they compete for contracts on an equal basis within those jurisdictions.

The current list of discriminatory jurisdictions identifies the following jurisdictions as continuing their discriminatory policies against New York State bidders: Alaska, Hawaii, Louisiana, South Carolina, West Virginia and Wyoming.

Section 165(6)(d) of the State Finance Law requires all State agencies, and Section 2879(5)(d) of the Public Authorities Law requires all public authorities and public benefit corporations, to deny businesses from these jurisdictions with discriminatory policies against New York State contracts and placement on any bidders list if two conditions are met:

• the potential vendor’s “principal place of business” is in a jurisdiction that discriminates against New York businesses, and
  
  
• the goods and services being offered are substantially manufactured, produced or performed anywhere outside New York State.
  
  
• Please note that there is no dollar threshold associated with these statutes. Also, a construction contractor must only have its principal place of business in a state on the discriminatory list in order to require imposition of the sanctions.

Sanctions may be waived by the head of a State agency, public authority or public benefit corporation if it is determined in writing to be “in the best interests of the state” to do so. Prior to issuing such a waiver for procurements from international jurisdictions, entities are encouraged to contact Empire State Development’s Procurement Assistance Unit. Waiver notifications may be faxed to the Commissioner of the Department of Economic Development, attention Procurement Assistance Unit, at (518) 292-5884. A standard waiver notification form designed to meet the requirements of Section 2879(5) of the Public Authorities Law and Section 165(6) of the State Finance Law is attached for your use. Please complete this form in full.

II. Annual Procurement Contract Reports.

Additionally, this letter will serve as a reminder of the annual reporting requirements mandated by Section 139-i(2)(c) of the State Finance Law as follows:
“…in every State agency and department, the chief executive officer shall: (c) provide annually, on or before the first business day of June of each year, to the Department of Economic Development information pertaining to procurement contracts entered into in an amount equal to or greater than $100,000 by such agency or department during the previous year. Such information shall include the subject matter and value of such contracts, designation of each contractor as a New York state business enterprise or a foreign business enterprise, the process used to select such contractors, as well as the status of such contracts…”

Public Authorities Law Section 2879(7) states: “Each corporation shall annually prepare and approve a report on procurement contracts…” Public Authorities Law Section 2879(8) states: “Each corporation shall annually submit its report on procurement contracts to…the Department of Economic Development…” Such information shall include the subject matter and value of such contracts, designation of each contractor as a New York state business enterprise or a foreign business enterprise, the process used to select such contractors, and the status of such contracts.

Annual reports from both State agencies and public authorities are due to the Department of Economic Development by June 1 of each year. They should be sent to the New York State Department of Economic Development, Division for Small Business, 30 South Pearl Street, Albany, New York 12245. You may also fax the report to (518) 292-5884 or e-mail it to ESD_smallbus@empire.state.ny.us.

III. Contracts with Foreign Business Enterprises.

A foreign business enterprise is a business that offers for sale goods or services that are substantially produced or performed outside New York State. Under the terms of Section 139(i)(2) of the State Finance Law and Section 2879(5) of the Public Authorities Law “…every State agency, department and corporation shall notify the commissioner of economic development of the award of a procurement contract for the purchase of goods or services from a foreign business enterprise in an amount equal to or greater than one million dollars simultaneously with notifying the successful bidder therefor.” “No State agency, department or corporation shall enter into a procurement contract for said goods or services until at least fifteen days has elapsed…”

A standard notification form designed to meet the requirements of Section 2879(5) of the Public Authorities Law and Section 139(i) of the State Finance Law is available from NYS Dept. of Economic Development. Please complete this form in full. Include the name and address of the foreign business enterprise, the location where goods/services are substantially produced/performed, telephone/fax number of the foreign business enterprise, a brief description of the goods or services to be obtained pursuant to the proposed procurement contract, the proposed procurement contract amount, the proposed procurement contract term, and the name of the individual at the foreign business enterprise contracting on behalf of the same who is principally responsible for the proposed procurement contract.