Opinion 88-12


This opinion represents the views of the Office of the State Comptroller at the time it was rendered. The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.

PUBLIC CONTRACTS -- Contracts Not Requiring Bidding (services provided under a municipal cooperation agreement)

MUNICIPAL COOPERATION -- Refuse and Garbage (joint refuse collection services) -- Competitive Bidding (need for where one municipality provides a service to another)

REFUSE AND GARBAGE -- Collection of (municipal cooperation agreement for services)

GENERAL MUNICIPAL LAW, §119-o; VILLAGE LAW, §4-412: A village may provide for refuse collection services on a cooperative basis either by jointly acquiring equipment and hiring personnel or by one village acting as "lead agency" and contracting to provide the service to the others.

You ask whether several villages may provide for refuse collection services on a cooperative basis either by jointly acquiring equipment and hiring personnel or by one village acting as "lead agency" and contracting to provide the service to the others.

General Municipal Law, §119-o(1) authorizes municipal corporations to enter into agreements for the performance, among themselves or one for the other, of their respective functions, powers and duties on a cooperative or contract basis, or for the provision of a joint service. A "joint service" is defined to mean the joint provision of any municipal facility, service, activity, project or undertaking, or the joint performance or exercise of any function or power which each municipality has the power to provide, perform or exercise separately (General Municipal Law, §119-n[c]).

Subdivision 2 of section 119-o lists several subjects which may be addressed in a cooperation agreement. For example, the cooperation agreement may contain provisions setting forth a method or formula for equitably providing for and allocating revenues and for equitably allocating capital and operation costs. The method or formula may be based on full valuation of real property, amount of services rendered or any other equitable basis (General Municipal Law, §119-o[2][a]). In addition, the agreement may provide for the manner of employing and compensating personnel, subject to applicable civil service requirements, and for making contributions for retirement, social security, health insurance, workers' compensation and other similar benefits (General Municipal Law, §119-o[2][b]). The parties may also agree that officers or employees of a joint service shall be deemed to be those of a particular participating municipality for specific purposes (id.). Provisions relating to the acquisition, ownership, custody, operation and maintenance of real and personal property may be included in the agreement as well.

Therefore, based on the provisions of General Municipal Law, §119-o, it is our opinion that, since villages are authorized to provide individually for refuse collection services (Village Law, §4-412; General Municipal Law, §120-w; 1979 Opns St Comp No. 79-307, p 52; 1988 Opns St Comp No. 88-2, p __), they may enter into cooperation agreements to provide such services either jointly or by one village or more villages for the others. If the services are provided jointly, the participating villages may agree to purchase refuse collection vehicles in accordance with competitive bidding requirements and, subject to applicable civil service requirements, hire personnel for the purpose of providing services among all participants. Under such an arrangement, title to the equipment may be vested in one of the participating villages or jointly. As a practical matter, however, the employees should be deemed employees of one of the villages for certain purposes, such as retirement, social security and health insurance, to avoid problems associated with joint employment.

Alternatively, one or more participating villages may contract to provide refuse collection services, with their own equipment and personnel, for the other participants. We note that such an agreement, in our opinion, would not be subject to competitive bidding requirements. General Municipal Law, §103 provides that, except as otherwise expressly provided by the State Legislature, all contracts for public work involving an expenditure in excess of $7,000 shall be awarded to the lowest responsible bidder after public advertisement. It is our opinion that the authorization in section 119-o for municipalities to contract to provide services "one for the other" is an express statement by the Legislature that such contracts are not subject to competitive bidding (1983 Opns St Comp No. 83-201, p 257; 1981 Opns St Comp No. 81-104, p 105).

March 7, 1988
Samuel A. Weissmandl, Administrative Assistant
Village of New Square