Opinion 90-45


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 The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.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

GENERAL MUNICIPAL LAW, §103(5): A standardization resolution must state that, for reasons of efficiency or economy, there is a need for standardization. The resolution must contain a full explanation of the reasons for its adoption and should declare why, as a matter of fact and not mere opinion, efficiency or economy will be served.

This is in reply to your letter requesting our opinion on the propriety of a proposed resolution to standardize on a particular make and size of loader tires. The reasons recited in the proposed resolution to support standardization are that it is desirous "to maintain a match of all tires on [the] loaders"; that the particular make of "tires are a standard in the industry and are an option on the majority of loaders sold"; and that the "Commissioner of Public Works and the Public Works Committee [have recommended that standardization] will thus result in greater efficiency and economy."

Subdivision 5 of section 103 of the General Municipal Law provides that, upon the adoption of a standardization resolution by a vote of at least 3/5's of all members of the governing board of a political subdivision, purchase contracts for a particular type or kind of equipment, materials or supplies may be awarded after competitive bidding. A standardization resolution must state that, for reasons of efficiency or economy, there is a need for standardization and must contain a full explanation of the reasons for its adoption. Upon the adoption of a proper standardization resolution, a political subdivision may provide in its specifications for a particular make or brand to the exclusion of others (1982 Opns St Comp No. 82-44, p 57; see Hodge & Hammond Inc. v Burns, 23 Misc 2d 318, 202 NYS2d 133; Gen. Bldg Contractors v City of Syracuse, 40 AD2d 584, 334 NYS2d 730, mod on other grounds, 32 NY2d 780, 344 NYS2d 961; Memorandum of the State Education Department, L 1957, ch 984, McKinney's Session Laws of 1957, p 2197).

It is not a function of this Office to approve or disapprove particular standardization resolutions. Rather, the determination of whether there is sufficient justification to support such a resolution must be made, in the first instance, by the municipal governing board. Nonetheless, while we will not comment on the propriety of the specific proposed resolution, we have enclosed for your reference a copy of 1958 Opns St Comp No. 58-484, unreported.

In Opn No. 58-484, supra, this Office discussed, in general terms, our views as to the proper circumstances for standardization. We stated that, since a standardization resolution must contain a full explanation of the reasons for its adoption, the resolution should declare why, as a matter of fact and not mere opinion, efficiency or economy will be served. Further, we stated as follows:

[C]arefully drawn specifications will normally meet most situations. Thus a resolution reciting that a particular make of equipment is specified because a certain official prefers it, or because in his opinion it would be more economical than other makes, would be patently insufficient.

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Members of the governing board...must be convinced that efficiency and economy will be served and be prepared to support their decision with incontestable facts.

We concluded in that opinion that a standardization resolution would not be appropriate if the sole reason for its adoption is that a municipal official believes a particular make of equipment is more economical, better built or more durable than other makes.

In evaluating the rationale set forth in the proposed resolution, the county governing board should be guided by principles discussed in the enclosed opinion. In particular, the board should consider whether "a match of all tires on [the] loaders" results in efficiency or economy because, as a matter of fact, such a match is necessary for the operation of the loader, or whether several makes of tires may be efficiently or economically utilized together.

November 13, 1990
Frederick H. Ahrens, Jr., Esq., County Attorney
County of Steuben