§ 165. Purchasing restrictions. 1. Definitions. a. "Non-tropical
hardwood species" shall mean any and all hardwood that grows in any
geographically temperate regions, as defined by the United States Forest
Service, and is similar to tropical hardwood in density, texture, grain,
stability or durability. Non-tropical hardwoods, the use or purchase of
which shall be preferred under this article, shall include, but not be
limited to the following species:
Scientific Name Common Name
Fraxinus americana Ash
Tila americana Basswood
Fagus grandifolia Beech
Betula papyrifera Birch
Juglans cinerea Butternut
Prunus serotina Cherry
Populus spp. Cottonwood
Ulmus spp. Elms
Nyssa sylvatica Black gum
Liquidambar styracifula Red gum
Celtis laevigata Hackberry
Hicoria spp. Hickory
Acer spp. Maples
Quercus spp. Oaks
Hicoria spp. Pecan
Liriodendron tulipi fera Yellow Poplar
Platanus occidentalis Sycamore
Juglans nigra Black Walnut
b. "Tropical hardwood" shall mean any and all hardwood, scientifically
classified as angiosperm, that grows in any tropical moist forest.
Tropical hardwoods shall be the following species:
Scientific Name Common Name
Vouacapous americana Acapu
Pericopsis elata Afrormosis
Shorea almon Almon
Peltogyne spp. Amaranth
Guibourtia ehie Amazaque
Aningeris spp. Aningeria
Dipterocarpus grandiflorus Apilong
Ochroma lagopus Balsa
Virola spp. Banak
Anisoptera thurifera Bella Rose
Guibourtis arnoldiana Benge
Deterium Senegalese Boire
Priora copaifera Cativo
Antiaris africana Chenchen
Dalbergis retusa Concobola
Cordia spp. Cordia
Diospyros spp. Ebony
Aucoumes klaineana Gaboon
Chlorophors excelsa Iroko
Acacia koa Koa
Pterygota macrocarpa Koto
Shorea negrosensis Red Lauan
Pentacme contorta White Lauan
Shores ploysprma Tanguile
Terminalia superba Limba
Aniba duckei Louro
Kyaya ivorensis Africa Mahogany
Swletenia macrophylla Amer. Mahogany
Tieghemella leckellii Makora
Distemonanthus benthamianus Movingui
Pterocarpus soyauxii African Padauk
Pterocarpus angolensis Angola Padauk
Aspidosperma spp. Peroba
Peltogyne spp. Purpleheart
Gonystylus spp. Ramin
Dalbergia spp. Rosewood
Entandrophragm a cylindricum Sapela
Shores phillippinensis Sonora
Tectona grandis Teak
Lovoa trichilloides Tigerwood
Milletia laurentii Wenge
Microberlinia brazzavillensis Zebrawood
c. "Tropical rain forests" shall mean any and all forests classified
by the scientific term "Tropical moist forests", the classification
determined by the equatorial region of the forest and average rainfall.
d. "Tropical wood products" shall mean any wood products, wholesale or
retail, in any form, including but not limited to veneer, furniture,
cabinets, paneling, moldings, doorskins, joinery, or sawnwood, which are
composed of tropical hardwood except plywood.
e. "Secondary materials" means any material recovered from or
otherwise destined for the waste stream, including, but not limited to,
post-consumer material, industrial scrap material and overstock or
obsolete inventories from distributors, wholesalers and other companies
but such term does not include those materials and by-products generated
from, and commonly reused within, an original manufacturing process.
2. Prohibition on purchase of tropical hardwoods.
a. Except as hereinafter provided, the state and any governmental
agency or political subdivision or public benefit corporation of the
state shall not purchase or obtain for any purpose any tropical
hardwoods or tropical hardwood products, wholesale or retail, in any
form.
b. The provisions of paragraph a of this subdivision shall not apply
to: (i) Any hardwoods purchased from a sustained, managed forest; or
(ii) Any binding contractual obligations for purchase of commodities
entered into prior to August twenty-fifth, nineteen hundred ninety-one;
or
(iii) The purchase of any tropical hardwood or tropical hardwood
product for which there is no acceptable non-tropical hardwood species;
or
(iv) Where the contracting officer finds that no person or entity
doing business in the state is capable of providing acceptable
non-tropical hardwood species sufficient to meet the particular contract
requirements; or
(v) Where the inclusion or application of such provisions will violate
or be inconsistent with the terms or conditions of a grant, subvention
or contract in an agency of the United States or the instructions of an
authorized representative of any such agency with respect to any such
grant, subvention or contract; or
(vi) Where inclusion or application of such provisions results in a
substantial cost increase to the state, government agency, political
subdivision, public corporation or public benefit corporation.
c. (i) In the case of any bid proposal or solicitation, request for
bid or proposal or contract for the construction of any public work,
building maintenance or improvement for or on behalf of the state and
any governmental agency or political subdivision or public benefit
corporation of the state, it shall not require or permit the use of any
tropical hardwood or wood product.
(ii) Every bid proposal, solicitation, request for bid or proposal and
contract for the construction of any public work, building maintenance
or improvement shall contain a statement that any bid, proposal or other
response to a solicitation for bid or proposal which proposes or calls
for the use of any tropical hardwood or wood product in performance of
the contract shall be deemed non-responsive.
d. The provisions of paragraph c of this subdivision shall not apply:
(i) To bid packages advertised and made available to the public or any
competitive and sealed bids received or entered into prior to August
twenty-fifth, nineteen hundred ninety-one; or
(ii) To any amendment, modification or renewal of a contract, which
contract was entered into prior to August twenty-fifth, nineteen hundred
ninety-one, where such application would delay timely completion of a
project or involve an increase in the total monies to be paid under that
contract; or
(iii) Where the contracting officer finds that:
(A) No person or entity doing business in the state is capable of
performing the contract using acceptable non-tropical hardwood species;
or
(B) The inclusion or application of such provisions will violate or be
inconsistent with the terms or conditions of a grant, subvention or
contract with an agency of the United States or the instructions of an
authorized representative of any such agency with respect to any such
grant, subvention or contract; or
(C) The use of tropical woods is deemed necessary for purposes of
historical restoration and there exists no available acceptable
non-tropical wood species.
3. Purchasing of commodities for state use.
a. For the purposes of this subdivision, the following terms shall
have the meanings set forth herein. "Recycled commodity" shall mean any
commodity that has been manufactured from secondary materials as defined
in subdivision one of section two hundred sixty-one of the economic
development law and that meets secondary material content requirements
adopted by the office of general services, which shall be consistent, to
the extent practicable, with regulations promulgated pursuant to section
27-0717 of the environmental conservation law or, if no such
requirements have been adopted or no such product is available, meets
the secondary material content requirements adopted by any state agency
with respect to a specific commodity procurement by such agency.
"Remanufactured" shall mean any commodity that has been restored to its
original performance standards and function and is thereby diverted from
the solid waste stream, retaining, to the extent practicable, components
that have been through at least one life cycle and replacing consumable
or normal wear components. "Recyclable" shall mean any commodity that
can be collected, separated, or otherwise recovered from the solid waste
stream for reuse, remanufacture or assembly of another commodity,
through a widely available and easily accessible program.
b. Consistent with determinations of need required by subdivision five
of section one hundred sixty-three of this article, the commissioner and
state agencies shall purchase recycled, remanufactured or recyclable
commodities when such commodities meet their form, function and utility
and shall consider the cost of the commodity over its lifecycle. The
commissioner and a state agency shall also have the authority to
determine that for reasons of public health or safety, a recycled,
remanufactured or recyclable commodity should not be purchased. Such
determinations shall be documented in the procurement record.
(i) A state agency shall purchase recycled commodities at a cost
premium only if (A) the cost premium associated with a commodity which
has recycled content does not exceed ten percent above the cost of a
commodity made without recycled content or, (B) the cost of a recycled
commodity that contains at least fifty percent secondary materials
generated from the waste stream in New York state, does not exceed a
cost premium of fifteen percent above the cost of a comparable
commodity.
(ii) A state agency shall not be required to purchase recyclable or
remanufactured commodities at a cost premium unless such commodity also
constitutes a "recycled commodity" as defined in this subdivision and
that as such a recycled commodity, it has been offered for sale in
conformance with the standards for application of a cost premium for
recycled commodities as set forth in clauses (A) and (B) of subparagraph
(i) of this paragraph.
c. The commissioner shall periodically review the general
specifications in order to eliminate, wherever feasible, discriminations
against the procurement of commodities manufactured with recovered
materials or remanufactured materials; and shall annually review the
paper specifications to consider increasing the percentage of recycled
paper in paper commodity purchases.
d. Whenever the commissioner or other state agencies shall purchase or
cause the purchase of printing on recycled paper, he or she shall
require, to the extent feasible, the printed material to meet the
requirements of subdivision two of section 27-0717 of the environmental
conservation law and regulations promulgated pursuant thereto, and to
include a printed statement or symbol which indicates that the document
is printed on recycled paper.
e. Each state agency shall devise, institute and maintain a program to
source separate waste paper generated within state office facilities.
Such a program shall include marketing arrangements and appropriate
procedures to ensure the recovery of discarded paper in a uncontaminated
condition.
f. Each state agency shall devise and institute a program to source
separate all other waste generated within state office facilities that
is not covered by paragraph e of this subdivision. Such program shall
include marketing arrangements and appropriate procedures to ensure the
maximum recovery of such waste.
g. In addition to carrying out the provisions of paragraphs e and f of
this subdivision, the commissioner shall identify and implement specific
steps which will reduce, to the maximum extent practicable, waste
generated in state facilities and maximize the recovery and reuse of
secondary materials from such facilities. Such steps and their
implementation shall be reviewed from time to time but no less
frequently than annually or upon receiving recommendations for
additional steps from the department of environmental conservation or
the environmental facilities corporation.
h. All state agencies shall fully cooperate with the commissioner in
all phases of implementing the provisions of this section.
i. The commissioner shall report annually to the governor and the
legislature by September first concerning the quantities of recycled
paper purchased by the office of general services and by state agencies
pursuant to paragraph c of this subdivision, and concerning the amounts
of waste recycled from state offices and other facilities pursuant to
paragraphs e and f of this subdivision, the extent of waste reduction,
the percentage of the total waste stream which is recycled, the kinds of
materials eliminated from the waste stream, the full avoided costs of
proper collection and disposal costs of implementing the programs under
this section, the specific activities undertaken, goals for the
subsequent year resulting from the implementation of steps pursuant to
paragraph g of this subdivision, and remaining issues and areas for
improvement. Such reports shall be widely disseminated as a means of
assisting those outside state government in the design and
implementation of waste reduction and recycling programs, through
discussion of the state's experience in implementing all program aspects
such as collection, sorting, handling, storage and marketing, and the
resulting accomplishments.
j. The commissioner shall submit to the director of the budget, the
chairman and ranking minority member of the senate finance committee and
the chairman and ranking minority member of the assembly ways and means
committee an evaluation of all the source separation programs
implemented under this subdivision, for paper and other waste prepared
by an independent entity. Such evaluation shall be submitted by
September first, nineteen hundred ninety-six and by September first,
every two years thereafter.
4. Special provisions for purchase of available New York food
products.
a. Except as otherwise provided in this subdivision, when letting
contracts for the purchase of food products on behalf of facilities and
institutions of the state, solicitation specifications of the office of
general services and any other agency, department, office, board or
commission may require provisions that mandate that all or some of the
required food products are grown, produced or harvested in New York
state, or that any processing of such food products take place in
facilities located within New York state.
(i) All such solicitations for the purchase of food products shall
include the list of food products developed by the commissioner of
agriculture and markets pursuant to paragraph b of this subdivision; and
(ii) notice that such food products are available in sufficient
quantities for competitive purchasing and that the list was developed to
assist the state in increasing purchases of New York state food
products.
b. The commissioner of agriculture and markets shall determine, using
uniform criteria, those food products for which the requirements of this
subdivision are deemed beneficial and shall promulgate and forward to
the appropriate agencies a list of such food products, and shall in
addition ascertain those periods of time each year that those food
products are available in sufficient quantities for competitive
purchasing and shall forward such information to purchasing agencies.
The commissioner of agriculture and markets shall update such list as
often as is deemed by him or her to be necessary.
c. (i) Prior to issuing a solicitation for such food products,
purchasing agencies shall advise the commissioner of agriculture and
markets of the quantities of each food product on the list promulgated
by the commissioner of agriculture and markets to fulfill that agency's
purchasing needs.
(ii) The commissioner of agriculture and markets will then make a
determination of whether those products required by the purchasing
agency are available in sufficient quantities to satisfy the purchasing
agency's requirements.
(iii) Upon a determination by the commissioner of agriculture and
markets that the food products required by the purchasing agency are
available in sufficient quantities to fulfill the agency's purchasing
needs, the purchasing agency may include in its solicitation a
requirement that all or some of those food products are grown, produced
or harvested in New York state, or that any processing of such food
products take place in facilities located within New York state.
(iv) Upon a determination by the commissioner of agriculture and
markets that such food products are not available in sufficient
quantities to fulfill the agency's purchasing needs, the purchasing
agency shall issue a solicitation that does not require that all or some
of those food products are grown, produced or harvested in New York
state, or that any processing of such food products take place in
facilities located within New York state. In such cases, the purchasing
agency may include such requirements in the next contract for such food
products that is let if at such time those food products are available
in sufficient quantities. If at that time, those food products are not
available in sufficient quantities, the requirement shall again be
waived until such time as the products are available.
(v) In the event that the purchasing agency receives no offers that
meet the agency's requirement that all or some of the food products are
grown, produced or harvested in New York state, or that any processing
of such food products take place in facilities located within New York
state, it may waive the provisions of this subdivision and award a
contract in accordance with other applicable statutes. In addition, if
the commissioners of agriculture and markets, economic development and
any such individual agency shall agree as to the deleterious economic
impact of specifications requiring such purchases, such agencies may
waive the provisions of this subdivision for such purchases.
d. The commissioner, and the commissioner of agriculture and markets,
shall issue regulations for the implementation of this subdivision,
including but not limited to:
(i) establishing guidelines that will assist agencies in increasing
their use and purchase of New York state food products;
(ii) publishing such purchasing guidelines on the office of general
services website, disseminating such guidelines to agencies and training
contracting personnel on implementing such guidelines; and
(iii) providing for monitoring of implementation.
e. Notwithstanding any other section of law, rule, regulation or
statute, the department of agriculture and markets shall supply
information required by paragraph b of this subdivision to the office of
general services and to all other appropriate agencies.
f. (i) With each offer, the offerer shall certify that the food
products provided pursuant to that solicitation will be in conformity
with the provisions of the percentage required to meet or exceed the
requirements in the solicitation specifying that all or some of the food
products be grown, produced, or harvested within New York state or that
any processing of such food products take place in facilities located
within New York state.
(ii) Any successful offerer who fails to comply with the provisions of
this subdivision, at the discretion of such agency, board, office or
commission, shall forfeit the right to bid on contracts let under the
provisions of this subdivision for a period of time to be determined by
the commissioner and the commissioner of agriculture and markets.
(iii) Every successful offerer shall:
(1) review the list of New York state food products developed pursuant
to paragraph b of this subdivision to determine whether any such
products are being provided under their contracts;
(2) report to the procuring agency all of the food products and
processed food procured under such contracts, categorized by specific
type, together with the dollar value of each such type procured under
such contract, to the extent practicable and known to such vendor; and
(3) for each such type of food product or processed food included on
the list of New York state food products, report to the procuring
agency, to the extent practicable and known to such vendor:
(a) any such New York state food product procured under such contract,
together with the dollar value of each such type procured under such
contract;
(b) any such food product from outside of New York state procured
under such contract during its listed New York state availability
period, together with the dollar value of each such type procured under
such contract; and
(c) any other such food product from outside of New York state or
processed food from facilities outside of New York state procured under
such contract from outside New York state, together with the dollar
value of each such type procured under such contract.
g. No later than December first of each year the commissioner shall
annually report to the governor and legislature on the implementation of
this subdivision. Such report shall include, at minimum:
(i) a description of the office's efforts to improve and increase the
tracking of information relating to New York state food procured by
agencies; and
(ii) the information collected pursuant to paragraph f of this
subdivision, compiled to provide the following, disaggregated by food
product and processed food:
(a) the total dollar value of New York state food products procured by
agencies;
(b) the total dollar value of food products from outside of New York
state procured by agencies during their listed New York state
availability periods; and
(c) the total dollar value of all other food products from outside of
New York state and processed food from facilities outside of New York
state.
h. The commissioner and the commissioner of agriculture and markets,
shall advise and assist the chancellor of the state university of New
York in extending the benefits of the provisions of this subdivision to
the university and shall modify any regulations or procedures heretofore
established pursuant to this subdivision, in order to facilitate such
participation.
4-a. Favored source status for New York state labelled wines. a. In
order to advance specific economic goals, New York state labelled wines,
as defined in subdivision twenty-a of section three of the alcoholic
beverage control law, shall have favored source status for the purposes
of procurement in accordance with the provisions of this subdivision.
Procurement of these New York state labelled wines shall be exempt from
the competitive procurement provisions of section one hundred
sixty-three of this article and other competitive procurement statutes.
Such exemption shall apply to New York state labelled wines as defined
in subdivision twenty-a of section three of the alcoholic beverage
control law produced by a licensed winery as defined in section
seventy-six of the alcoholic beverage control law.
b. The commissioner of taxation and finance, in consultation with the
commissioners of the state liquor authority shall prepare a list of
wines that are eligible as determined by the criteria in paragraph a of
this subdivision and that are available and are being provided, for
purchase by state agencies, public benefit corporations, commissions or
political subdivisions from those entities which produce such New York
state labelled wine. Such list may include references to catalogs and
other descriptive literature which are available directly from any
winery that produces wine accorded favored source status under this
subdivision. The commissioner shall make this list available to
prospective vendors, state agencies, public benefit corporations,
political subdivisions and other interested parties. Any wines that meet
the criteria under paragraph a of this subdivision shall be eligible for
this favored source status.
c. The state procurement council in consultation with the
commissioners of the state liquor authority, and upon application from a
winery, will determine if a particular New York state labelled wine
meets the required criteria under paragraph a of this subdivision for
favored source status, and if so, such wine shall be added to the list
of favored source status New York state labelled wines. In order to
insure that such list reflects current production and/or availability of
commodities and services, the state procurement council may delete at
the request of a winery a favored wine from the list established by the
criteria in paragraph a of this subdivision. The state procurement
council will also determine if a particular wine no longer meets the
required definition under paragraph a of this subdivision for favored
source status, and if it does not, such wine shall be deleted from the
list of favored source status or favored wines.
d. The commissioners of the state liquor authority, in consultation
with the commissioner of taxation and finance and office of general
services, shall make every effort to encourage state agencies, public
authorities and political subdivisions when they purchase any quantity
of wine to purchase those wines that have been granted favored source
status as determined by the commissioners of the state liquor authority
and the state procurement council.
e. The list shall be maintained by the office of general services in
accordance with provisions of section one hundred sixty-two of this
article and shall be revised as necessary to reflect the additions and
deletions of wines as determined by the state procurement council.
5. Nondiscrimination in employment in Northern Ireland.
a. For the purposes of this subdivision "MacBride Fair Employment
Principles" shall mean those principles relating to nondiscrimination in
employment and freedom of work place opportunity which would require
employers doing business in Northern Ireland to:
(i) increase the representation of individuals from underrepresented
religious groups in the work force, including managerial, supervisory,
administrative, clerical and technical jobs;
(ii) take steps to promote adequate security for the protection of
employees from underrepresented religious groups both at the workplace
and while traveling to and from work;
(iii) ban provocative religious or political emblems from the work
place;
(iv) publicly advertise all job openings and make special recruitment
efforts to attract applicants from underrepresented religious groups;
(v) establish layoff, recall and termination procedures which do not
in practice favor a particular religious group;
(vi) abolish all job reservations, apprenticeship restrictions and
differential employment criteria which discriminate on the basis of
religion;
(vii) develop training programs that will prepare substantial numbers
of current employees from underrepresented religious groups for skilled
jobs, including the expansion of existing programs and the creation of
new programs to train, upgrade and improve the skills of workers from
underrepresented religious groups;
(viii) establish procedures to assess, identify and actively recruit
employees from underrepresented religious groups with potential for
further advancement; and
(ix) appoint a senior management staff member to oversee affirmative
action efforts and develop a timetable to ensure their full
implementation.
b. (i) With respect to contracts described in subparagraphs (ii) and
(iii) of this paragraph, and in accordance with such subparagraphs,
state agencies as defined in this article shall not contract for the
supply of commodities, service or construction with any contractor who
does not agree to stipulate to the following, if there is another
contractor who will contract to supply commodities, services or
construction of comparably quality at a comparable price or cost: the
contractor and any individual or legal entity in which the contractor
holds a ten percent or greater ownership interest and any individual or
legal entity that holds a ten percent or greater ownership interest in
the contractor either (A) have no business operations in Northern
Ireland, or (B) shall make lawful steps in good faith to conduct any
business operations they have in Northern Ireland in accordance with
MacBride Fair Employment Principles, and shall permit independent
monitoring of their compliance with such principles.
(ii) In the case of contracts let by a competitive process, whenever
the responsive and responsible offerer having the lowest price or best
value offer has not agreed to stipulate to the conditions set forth in
this subdivision and another responsive and responsible offerer who has
agreed to stipulate to such conditions has submitted an offer within
five percent of the lowest price or best value offer for a contract to
supply commodities, services or construction of comparable quality, the
contracting entity shall refer such offers to the commissioner of
general services, who may determine, in accordance with applicable law
and rules, that it is in the best interest of the state that the
contract be awarded to other than the lowest price or best value offer.
(iii) In the case of contracts let by other than a competitive process
for goods or services involving an expenditure of an amount greater than
the discretionary buying threshold as specified in section one hundred
sixty-three of this article, or for construction involving an amount
greater than fifteen thousand dollars, the contracting entity shall not
award to a proposed contractor who has not agreed to stipulate to the
conditions set forth in this subdivision unless the entity seeking to
use the commodities, services or construction determines that the
commodities, services or construction are necessary for the entity to
perform its functions and there is no other responsible contractor who
will supply commodities, services or construction of comparable quality
at a comparable price. Such determinations shall be made in writing and
shall be public documents.
c. Upon receiving information that a contractor who has made the
stipulation required by this subdivision is in violation thereof, the
contracting entity shall review such information and offer the
contractor an opportunity to respond. If the contracting entity finds
that a violation has occurred, it shall take such action as may be
appropriate and provided for by law, rule or contract, including, but
not limited to, imposing sanctions, seeking compliance, recovering
damages or declaring the contractor in default.
d. As used in this subdivision, the term "contract" shall not include
contracts with governmental and non-profit organizations, contracts
awarded pursuant to emergency procurement procedures or contracts,
resolutions, indentures, declarations of trust or other instruments
authorizing or relating to the authorization, issuance, award, sale or
purchase of bonds, certificates of indebtedness, notes or other fiscal
obligations, provided that the policies of this subdivision shall be
considered when selecting a contractor to provide financial or legal
advice, and when selecting managing underwriters in connection with such
activities.
e. The provisions of this subdivision shall not apply to contracts for
which the state or other contracting entity receives funds administered
by the United States department of transportation, except to the extent
Congress has directed that the department of transportation not withhold
funds from states and localities that choose to implement selective
purchasing policies based on agreement to comply with the MacBride Fair
Employment Principles, or to the extent that such funds are not
otherwise withheld by the department of transportation.
6. Special provisions relating to retaliating against other
jurisdictions which discriminate against New York state enterprises in
their procurement of products and services.
a. As used in this subdivision, the following terms shall have the
following meanings unless a different meaning appears from the context:
(i) "Discriminatory jurisdiction" shall mean any other country,
nation, province, state or political subdivision thereof which employs a
preference or price distorting mechanism to the detriment of or
otherwise discriminates against a New York state business enterprise in
the procurement of commodities and services by the same or a
non-governmental entity influenced by the same. Such discrimination may
include, but is not limited to, any law, regulation, procedure or
practice, terms of license, authorization, or funding or bidding rights
which requires or encourages any agency or instrumentality of the state
or political subdivision thereof or nongovernmental entity influenced by
the same to discriminate against a New York state business enterprise.
(ii) "Foreign business enterprise" shall mean a business enterprise,
including a sole proprietorship, partnership, or corporation, which
offers for sale, lease or other form of exchange, commodities sought by
any state agency and which are substantially produced outside New York
state or services, other than construction services, sought by any state
agency and which are substantially performed outside New York state. For
purposes of construction services, foreign business enterprise shall
mean a business enterprise, including a sole proprietorship, partnership
or corporation, which has its principal place of business outside New
York state.
(iii) "New York state business enterprise" shall mean a business
enterprise, including a sole proprietorship, partnership, or
corporation, which offers for sale or lease or other form of exchange,
commodities which are substantially manufactured, produced or assembled
in New York state, or services, other than construction services, which
are substantially performed within New York state. For purposes of
construction services, a New York state business enterprise shall mean a
business enterprise, including a sole proprietorship, partnership, or
corporation, which has its principal place of business in New York
state.
b. The commissioner of economic development shall have the power and
it shall be his or her duty to prepare a list of all discriminatory
jurisdictions. The commissioner of economic development shall add to or
delete from said list any jurisdiction upon good cause shown. The
commissioner of economic development shall deliver a copy of the list to
the commissioner, all state agencies, and every public authority and
public benefit corporation, a majority of the members of which consist
of persons either appointed by the governor or who serve as members by
virtue of holding a civil office of the state, or a combination thereof.
c. In including any additional business enterprises on solicitations
for the procurement of commodities or services, the commissioner and all
state agencies shall not include any foreign business enterprise which
has its principal place of business located in a discriminatory
jurisdiction contained on the list prepared by the commissioner of
economic development pursuant to paragraph b of this subdivision,
except, however, business enterprises which are New York state business
enterprises as defined by this subdivision.
d. A state agency shall not enter into a contract with a foreign
business enterprise, as defined by this subdivision, which has its
principal place of business located in a discriminatory jurisdiction
contained on the list prepared by the commissioner of economic
development pursuant to paragraph b of this subdivision. The provisions
of this paragraph and paragraph c of this subdivision may be waived by
the head of the state agency if the head of the state agency determines
in writing that it is in the best interests of the state to do so. The
head of the state agency shall deliver each such waiver to the
commissioner of economic development.
e. The commissioner may waive the application of the provisions of
paragraph c of this subdivision whenever he or she determines in writing
that it is in the best interests of the state to do so.
7. Special provisions regarding the purchasing of apparel or sports
equipment by the state university of New York and the city university of
New York.
a. Notwithstanding any other provision of law, the various units of
the state university of New York, the city university of New York and
community colleges shall have authority to:
(i) Determine that a bidder on a contract for the purchase of apparel
or sports equipment is not a responsible bidder as defined in section
one hundred sixty-three of this article based upon either of the
following considerations:
(A) the labor standards applicable to the manufacture of the apparel
or sports equipment, including but not limited to employee compensation,
working conditions, employee rights to form unions, and the use of child
labor, or
(B) the bidder's failure to provide information sufficient for the
state agency or corporation to determine the labor conditions applicable
to the manufacture of the apparel or sports equipment.
(ii) Include in the internal policies and procedures governing
procurement of apparel or sports equipment, where such procurement is
not further required to be made pursuant to the competitive bidding
requirements of section one hundred sixty-three of this article, a
prohibition against the purchase of apparel or sports equipment from any
vendor based upon either or both of the following considerations:
(A) the labor standards applicable to the manufacture of the apparel
or sports equipment, including but not limited to employee compensation,
working conditions, employee rights to form unions, and the use of child
labor, or
(B) the bidder's failure to provide sufficient information for said
state agencies to determine the labor standards applicable to the
manufacture of the apparel or sports equipment.
b. For the purposes of this subdivision the term:
(i) "apparel" shall mean goods, such as, but not limited to, sports
uniforms, including gym uniforms, required school uniforms, shoes,
including, but not limited to, athletic shoes or sneakers, sweatshirts,
caps, hats, and other clothing, whether or not imprinted with a school's
name or logo, academic regalia, lab coats and staff uniforms; and
(ii) "sports equipment" shall mean equipment, such as, but not limited
to, balls, bats and other goods intended for use by those participating
in sports and games.
8. Mercury-free motor vehicles. The commissioner and state agencies
shall grant a preference and give priority to the purchase of motor
vehicles which are mercury-free taking into consideration competition,
price, availability and performance.
