Opinion 89-57


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 The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.


MUNICIPAL COOPERATION -- Capital Improvements (town improvement of village street)
STREETS AND HIGHWAYS -- Highway Department (town repair and improvement of village street)
PUBLIC CONTRACTS -- Contracts not Requiring Bidding (town repair and improvement of village street)

HIGHWAY LAW, §142-c; GENERAL MUNICIPAL LAW, §§103, 119-o: The town board may authorize the superintendent of highways to utilize town highway equipment and personnel to repair and improve a village street of a village located within the town. The work would be performed upon such terms and conditions as may be agreed upon by the town board and village board. Such agreements between the town and village are not subject to competitive bidding requirements. 1971 Opns St Comp No. 71-76, unreported is superseded.

This is in reply to your letter asking whether a village, without competitive bidding, may contract with the town in which the village is located for the town to repair and improve certain village streets.

Highway Law, §142-c provides that the town board may authorize the town highway superintendent to:

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(2) Repair streets and sidewalks within any village or portion thereof within the town.

(3) Permit the use of town highway machinery, snow and ice removal equipment, tools and equipment in or by any village located wholly or partly within the town.

(4) The work authorized by this section shall be performed upon such terms and conditions as may be agreed upon by the town board of the town and board of trustees of the village.

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Thus, section 142-c expressly authorizes a town to agree to repair village streets of a village located within the town. Although there is no similar express authorization for a town to agree to improve village streets, we note that subdivision 3 of section 142-c authorizes use of town highway equipment both by a village and in a village. In our opinion, the authorization to use town highway equipment in a village issufficiently broad to authorize the town board to permit the town superintendent of highways to utilize both highway department equipment and personnel to operate the equipment to perform work in the village, including the improvement of a village street (see also General Municipal Law, §119-o[1] authorizing municipal cooperation agreements pursuant to which one municipality performs functions for another). 1971 Opns St Comp No. 71-76, unreported, in which we concluded that there was no authority for a town to agree to pave a village street is hereby superseded.

With respect to the need for competitive bidding prior to entering into a contract pursuant to Highway Law, §142-c, we note that 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 furnishing the required security after public advertisement for sealed bids. Subdivision 4 of section 142-c provides, however, that the work authorized by that section shall be performed "upon such terms and conditions as may be agreed upon by" the town board and the village board.

It is our opinion that the quoted language of subdivision 4 clearly anticipates a negotiated agreement between the two governing boards. In this regard, the Court of Appeals has recently stated that " ... one-on-one bargaining ... is antithetical to the statutorily mandated competitive bidding process. * * * Competitive bidding, by its nature, does not contemplate the continuous bargaining that is the hallmark of negotiated contracts." (Sinram-Marnis Oil Co. v City of New York, 74 NY2d 13, at pp 17-18, 544 NYS2d 119, at p 120). Therefore, we believe subdivision 4 of section 142-c, by providing for negotiated agreements between the town and village, represents an express statement by the State Legislature that agreements entered into pursuant to section 142-c are not subject to the competitive bidding requirements of General Municipal Law, §103 (see also 1988 Opns St Comp No. 88-12, p 20, in which we concluded that a contract for municipalities to perform services "one for the other" under General Municipal Law, §119-o was not subject to competitive bidding).

January 4, 1990
Benjamin Greshin, Esq., Village Attorney
Village of Head-of-the-Harbor