Opinion 91-38

PUBLIC CONTRACTS -- Bid Specifications (amount returned from the deposit for copies of)
LOCAL LAWS -- Pre-emption (deposits on plans and specifications)

GENERAL MUNICIPAL LAW, §102; MUNICIPAL HOME RULE LAW, §10: A political subdivision must return the entire amount of the deposit on plans and specifications for the performance of public work submitted by each unsuccessful bidder upon the proper return of a single set of the plans and specifications. If an unsuccessful bidder obtains more than one set of plans and specifications, the political subdivision must also return an amount equal to the deposit for one of the additional sets of plans and specifications less the cost of reproducing the set, upon the proper return of all the additional sets. If a nonbidder properly returns all sets of the plans and specifications, the political subdivision must return an amount equal to the deposit for one set of plans and specifications less the actual cost of reproducing the set.

You ask what portion of the deposit on copies of plans and specifications, required by General Municipal Law, §102, must be returned by a city to unsuccessful bidders and nonbidders.

General Municipal Law, §102 provides that, notwithstanding any inconsistent provision of any general, special or local law, a political subdivision shall require as a deposit to guarantee the safe return of plans and specifications for the performance of public work, the payment of a fixed sum not to exceed $100 for "each copy" of the plans and specifications furnished to any person or corporation. Subdivision 2 of section 102 contains provisions relative to reimbursement for the return of copies of the plans and specifications.

Subdivision 2 provides as follows:

If a proposal is duly submitted by any person or corporation making the deposit required by subdivision one and such proposal is accompanied by a certified check or other security in accordance with the requirements contained in the plans and specifications or in the public advertisement for bids, and if the copy of the plans and specifications used by such person or corporation, other than the successful bidder, is returned in good condition within thirty days following the award of the contract covered by such plans and specifications or the rejection of the bid of such person or corporation, the full amount of such deposit for one copy of the plans and specifications shall be returned to such person or corporation, including the successful bidder. (Emphasis added)

Subdivision 2 further provides that:

Partial reimbursement, in an amount equal to the full amount of such deposit for one set of plans and specifications per unsuccessful bidder or nonbidder less the actual cost of reproduction of the plans and specifications as determined by the officer, board or agency of any political subdivision or of any district therein, charged with the duty of preparing the plans and specifications, shall be made for the return of all other copies of the plans and specifications in good condition within thirty days following the award of the contract or the rejection of the bids covered by such plans and specifications. (Emphasis added)

The first sentence of section 102 is intended to require full reimbursement of the deposit for one copy of the plans and specifications, if properly returned as required, to each person or corporation who submits a bid on the project, accompanied by the required bid deposit (1983 Opns St Comp No. 83-235, p 308). The second sentence requires the political subdivision to make partial reimbursement to nonbidders and unsuccessful bidders for the timely return in good condition of "all other copies of the plans and specifications". The partial reimbursement is in the amount of the full deposit on one set of plans and specifications less the actual cost of reproducing those plans and specifications as determined by the appropriate official of the political subdivision.

Thus, reading subdivision 2 as a whole, the city must return the entire amount of the deposit submitted by each unsuccessful bidder upon the proper return of a single set of the plans and specifications. In addition, if an unsuccessful bidder obtains more than one set of plans and specifications, the city must also return an amount equal to the deposit for one of the additional sets of plans and specifications less the cost of reproducing the set, upon the proper return of all the additional sets. If a nonbidder properly returns all sets of the plans and specifications, the city must return an amount equal to the deposit for one set of plans and specifications less the actual cost of reproducing the set. Therefore, the maximum amount to be returned to an unsuccessful bidder who requested more than one set of plans and specifications is an amount equal to two deposits less the cost of reproduction of a single set. A nonbidder is only entitled to receive the return of a single deposit less reproduction costs for a single set, without regard to the number of plans and specifications he obtained.

Finally, we believe the city may not adopt a local law which would authorize the city to retain a greater portion of the deposit. The opening sentence of subdivision 1 of section 102 begins with the phrase "(n)otwithstanding any general, special or local law". We believe this phrase evinces a legislative intent to pre-empt the field with respect to deposits on plans and specifications (see 1991 Opns St Comp No. 91-1, p 1). Further, even if the "notwithstanding" clause in subdivision 1 is not intended to apply to the reimbursement provisions of subdivision 2, it is our opinion that subdivision 2 is a general law which may not be superseded by an inconsistent local law (1984 Opns St Comp No. 84-7, p 7; 1983 Opns St Comp No. 83-235, p 308).

September 20, 1991
John V. Terrana, Esq., City Attorney
City of Glen Cove