Opinion 91-6


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 The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.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 Requiring Bidding (purchases from vendor holding federal General Services Administration contract) -- Purchase Through County or State (no similar exception for federal General Services Administration contracts)
LOCAL LAWS -- Preemption (competitive bidding procedures)

GENERAL MUNICIPAL LAW, §103: A local government may not, by local law, authorize the purchase of commodities from vendors holding federal General Services Administration contracts.

You ask whether a town, by local law, may authorize the purchase of commodities from vendors holding federal General Services Administration (GSA) contracts.

General Municipal Law, §103 provides, in pertinent part, as follows:

Except as otherwise expressly provided by an act of the legislature or by a local law adopted prior to September first, nineteen hundred fifty-three, all contracts for public work involving an expenditure of more than seven thousand dollars and all purchase contracts involving an expenditure of more than five thousand dollars, shall be awarded by the appropriate officer, board or agency of a political subdivision or of any district therein including but not limited to a soil conservation district, to the lowest responsible bidder furnishing the required security after advertisement for sealed bids in the manner provided by this section ...

General Municipal Law, §104 provides an exception to the competitive bidding requirements of section 103 for purchases of materials, equipment and supplies by a political subdivision through the New York State Office of General Services, subject to rules established by the Office of General Services. Subdivision 3 of section 103 of the General Municipal Law provides a similar exception for the purchase of materials, equipment and supplies through county contracts which have been extended to political subdivisions within the county under County Law, §408-a(2). There is no analogous State statutory exception, however, for purchases through federal GSA contracts (31 Opns St Comp, 1975, p 133, 1971 Opns St Comp No. 71-916, unreported).

We note that under the doctrine of federal preemption, state law is superseded by federal law when: (1) the federal law expressly so provides; (2) the federal law is intended to occupy a given field; (3) the state law conflicts with federal law; that is, when compliance with both state and federal law is impossible; or (4) when state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of the federal legislation (see Motor Vehicle Manufacturers Assoc. of the United States v Abrams, 899 F 2d 1315, petition for cert filed June 25, 1990 [No. 89-2026]; see also Marino v Town of Ramapo, 68 Misc 2d 44, 326 NYS2d 162). The doctrine has been applied to supersede the competitive bidding requirements of General Municipal Law, §103 to the extent that section 103 is incompatible with federal requirements (see Marino, supra; cf. Marvec-All State Inc. v Purcell, 110 Misc 2d 67, 441 NYS2d 618 affd 87 AD2d 593, 450 NYS2d 411, holding State and local bid advertising requirements compatible with, and not preempted by federal regulations). We are not aware of any federal statute or regulation, however, which generally preempts section 103 to permit purchases from vendors holding federal GSA contracts without compliance with State competitive bidding requirements (see 41 USC §405[i][2][B], relative to the authority and functions of the Administrator for Federal Procurement Policy).

It is also our opinion that a local government may not provide, by local law, an exception to the competitive bidding requirements of section 103(1) for procurements through federal GSA contracts. Municipal Home Rule Law, §10(1)(i) authorizes local governments to adopt and amend local laws, not inconsistent with any general law or the Constitution, relating to their property, affairs or government. The doctrine of State preemption, however, represents a fundamental limitation on home rule powers. Where the State has preempted the field, a local law regulating the same subject matter is deemed inconsistent with State law, whether or not the terms of the local law actually conflict with the State statute (Albany Area Builders v Town of Guilderland, 74 NY2d 372, 547 NYS2d 627; Jancyn v County of Suffolk, 71 NY2d 91, 524 NYS2d 8). This Office has previously concluded that the opening clause of section 103 evinces a legislative intent to preempt the field and to preclude the adoption of local laws on or after September 1, 1953 (1991 Opns St Comp No. 91-1, p 1; 1981 Opns St Comp No. 81-109, p 111; 1980 Opns St Comp No. 80-696, unreported; 1976 Opns St Comp No. 76-248, unreported; see Associated Builders v City of Rochester, 67 NY2d 854, 501 NYS2d 653; Grimm v City of Troy, 60 Misc 2d 579, 303 NYS2d 170; Williams v Bryant, 53 AD2d 229, 385 NYS2d 425; Pacificorp Capital Inc. v City of New York, 741 F Supp 481, 486).

With respect to the scope of the State preemption under General Municipal Law, §103, we have expressed the opinion that section 103(1) is not intended to preclude the adoption of local laws on or after September 1, 1953 which are essentially revisions, simplifications, consolidations, codifications or restatements of pre-1953 special or local laws applicable to a local government (Opn Nos. 91-1, 81-109 and 80-696, supra).

However, since section 103 provides that "all" purchase contracts involving an expenditure in excess of $5,000 must be let pursuant to competitive bidding except as expressly provided by the State Legislature or by a pre-1953 local law, it is our opinion that a local government is preempted from adopting a local law which would establish an exception to the requirements of section 103 for procurements through federal GSA contracts.

March 19, 1991
Thomas D. Mahar, Jr., Esq., Town Attorney
Town of Poughkeepsie