ALBANY — Gov. Andrew M. Cuomo’s administration late Friday defended sending a contract to bid without giving first refusal to organizations employing people with disabilities, a practice prescribed in law that requires public entities to purchase goods and services from organizations that employ people with disabilities if it meets the agency's "form, function and utility."
In a Jan. 4 letter penned to Cuomo, Capital Region state legislators called into question the Office of Temporary and Disability Assistance disregarding the Preferred Source Program, which was created nearly 50 years ago following exposure of abhorrent conditions at state institutions housing people with disabilities, for fulfilling the alternative format mailing services contract.
Advocates for people with disabilities say the work sought in the request for proposal issued by the state in October could be done by the vulnerable population, yet it was never presented to the Preferred Source Program. Section 162 of State Finance Law requires projects to be first offered to the preferred sources, one of which is the New York State Industries for the Disabled (NYSID), before putting out for bid.
“We wish to express our deepest concerns that the law is being circumvented, either by ignoring its very clear requirements or something worse – the insertion into the contract of a very small portion of duties that permit for an ‘end around’ that avoids the Preferred Source Program and subverts its noble objectives,” the state legislators wrote to Cuomo.
Neither legislators nor NYSID officials received a response or explanation on why OTDA had sent the contract straight to bid, and OTDA officials initially told Capitol Insider they could not comment on the request for proposal because they were in a "blackout period." According to the proposal, bids were due Dec. 30. Upon further pressing on why the state was taking that course, OTDA spokesman Anthony Farmer said that interpretation is a "gross misunderstanding of the law."
"The law requires the state to purchase through preferred sources only if the procurement can be met in full by a preferred source," Farmer said in an emailed response. "While OTDA’s procurement complied with all relevant laws and procedures, at this time we will extend to NYSID the opportunity to demonstrate how they can meet the mail fulfillment requirements of this contract. OTDA will be in touch with NYSID shortly with details about the next steps that NYSID will need to take."
The service contract previously was held by an out-of-state vendor and had expired, presenting the opportunity for a New York business to perform the work.
Out-of-state contracts were scrutinized by Capital Region lawmakers last year after the state budget office nixed a $55 million, five-year contract that was slated to employ people from the Center for Disability Services in Albany. The budget office argued that the work could be done in-house at a significantly lower cost, although advocates questioned the math considering the savings New York sees when people with disabilities are gainfully employed.
A Capitol Insider review of marketing and advertising, mail services and other print-related work contracts last year found that about 64 percent of them were held by out-of-state vendors, totaling about $966 million.
Legislators initially called attention to the nixed contract in a letter to Cuomo in August. Cohoes Democratic Assemblyman John McDonald said they learned that the budget office was reviewing all its contracts to see whether any could be fulfilled by New York organizations.
However, the legislators’ latest letter has been met with radio silence, McDonald said.
“No one is responding at all. To me that is just unlike OTDA, and therefore it just raises in my mind, what is going on here?” he said. “I’ve talked to our leadership, just to put it on their radar screen and say, at some point, we might want to have a conversation about preferred source if it’s going to be ignored.”
New York Industries for the Disabled, which acts as the liaison between nonprofits across the state that employ people with disabilities and the state to connect the vulnerable population with gainful employment, sent a letter to OTDA’s procurement management on Dec. 15 asking the agency to suspend the request for bids.
NYSID President and CEO Maureen O'Brien said they have not heard back and she fears people with disabilities will again miss out on employment opportunities. Unemployment is high for people with disabilities, at around 67 percent, she said.
It is those statistics that fueled the creation of the Preferred Source Program, which O’Brien said she still must educate businesses, state agencies and local government on.
“We did that with OTDA and helped them understand that this is work that could and should be done through preferred source,” she said. “We have not received a response to that.”
Since NYSID does not bid on projects, O’Brien said the only recourse is seeking a review from the state Procurement Council. It's unclear how OTDA's latest promise to work with NYSID could impact this process.
“My hope is that as we enter 2021 with this mission to renew and rebuild that there is a prioritization of this super important population,” O’Brien said. “They are problem-solvers, incredibly good workers and thinkers who have to be prioritized.”
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Capitol Insider: Cuomo administration defends bid choice - Times Union
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