New York Consolidated Laws, State Finance Law - STF § 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   1 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.

1 So in original.  (“comparably” should be “comparable”.)

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