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Employees should be provided with up-to-date information and training, in
addition to access to legal advice, regarding these ethical obligations. The solic-
itation should give vendors notice of these requirements, through incorpora-
tion of the clauses requiring the vendor to acknowledge and agree to comply
with such ethical requirements.

9.4 TYPES OF PUBLIC PROCUREMENT
Public procurement can be broadly divided into two categories: competitive
and non-competitive. Depending on the factual circumstances, either type may
be appropriate for an AFIS procurement. The decision of whether to proceed
with a competitive or non-competitive procurement should be made after a
thorough examination of all the issues and consultation with the appropriate
executive, financial, legal, and control agencies. While there are generally statu-
tory preferences for competitive procurements, there is limited recognition
that a competitive procurement does not always best suit the public needs. For
example, in New York State, Article 11 of the State Finance Law indicates a pref-
erence for competition, but acknowledges several types of non-competitive
procurements. Federal procurement statutes and regulations also permit
non-competitive procurements under certain circumstances. [See Federal
Acquisition Regulations (FAR) set forth at 48 CFR (Code of Federal Regula-
tions) Part 1. Information regarding non-competitive procurements is set forth
in Subpart 6.3.]
While a procurement may result from a competitive process, subsequent
action may be undertaken as a non-competitive process. This possibility is a
natural extension of the proprietary nature of AFIS technology and the huge
investment required to establish the database and acquire the technology.
Additional importance is placed on initially conducting a thorough competi-
tive procurement and retaining the appropriate records supporting it. For
example, suppose that Agency A engages in a competitive procurement
to obtain an AFIS for criminal justice purposes with Vendor B. A contract is
negotiated and approved for a 10-year term and includes hardware, software,
services, and maintenance. Prior to the end of the 10-year term, a decision
is made to enter into a new contract with Vendor B, via a non-competitive
process, to continue the availability of the hardware, software, services, and
maintenance. The decision is justified on the basis of the huge expenses
that would be incurred to change to another vendor’s proprietary AFIS,
ranging from record conversion costs, hardware and software replacement,
development of new interfaces with other technology systems, new system
training, etc.