Opinion 92-50

PUBLIC CONTRACTS -- Award (preference to local bidder)
LOCAL LAWS -- Competitive Bidding (pre-emption by General Municipal Law, §103) -- Pre-emption (preference to local bidder)
CONSTITUTIONAL LAW -- Commerce Clause (preference to local bidder) -- Equal Protection (preference to local bidder) -- Privileges and Immunities (preference to local bidder)

GENERAL MUNICIPAL LAW, §103: A county may not adopt a post-1953 local law to provide a price preference to local vendors and contractors who would not otherwise be entitled to a contract award as the lowest responsible bidder.

You ask whether a county, by local law, may amend the competitive bidding provisions of its charter to provide a price preference to local vendors and contractors. Under the proposal, a contract could be awarded to a local vendor or contractor whose bid price is no more than 10% higher than the non-local lowest responsible bidder who would otherwise be entitled to the award under the charter. You state that the purpose of this amendment is to stimulate the local economy.

In 1991 Opns St Comp No. 91-52, p 141, we addressed, inter alia, whether a county could adopt a local law which provides for an award of a contract after competitive bidding to a bidder who employs a prescribed percentage of local residents, even though that bidder is not the lowest responsible bidder. We confirmed our previous opinion that the opening clause of section 103(1) of the General Municipal Law evinces a legislative intent to pre-empt the field and to preclude the adoption of local laws on or after September 1, 1953. With respect to the scope of the pre-emption under section 103, we restated our view 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.

Based on this pre-emption, we concluded that a post-1953 local law which provides for an award to a bidder employing a prescribed percentage of local residents, even though that bidder is not the lowest responsible bidder, would be in conflict with the requirement in General Municipal Law, §103 to award contracts only to the lowest responsible bidder and would be prohibited (cf. General Municipal Law, §104-a, authorizing a price preference for certain products made with significant recycled content; Pacificorp v City of New York, 741 F Supp 481, relative to a pre-1953 provision of the New York City Charter). We further noted that such a post-1953 local law would also raise constitutional questions under the Commerce, Privileges and Immunities and Equal Protection clauses of the federal Constitution.

Based on the reasoning in Opn No. 91-52, supra, it is similarly our opinion that a post-1953 local law, which is not a revision, simplification, consolidation, codification or restatement of a pre-1953 special or local law and which provides for a bid price preference to local contractors or vendors who would not otherwise be entitled to a contract award as lowest responsible bidder, would be in conflict with the requirement in section 103 to award contracts to the lowest responsible bidder and would be prohibited. Further, such a local law may raise constitutional questions.

As noted in Opn No. 91-52, supra, however, the above conclusion is not intended to suggest that a political subdivision is precluded from including in its bid specifications reasonable requirements that are consistent with the purposes of section 103. Thus, for example, to the extent that proximity of a vendor or contractor to the political subdivision is reasonably related to the performance of goods and services being sought, the political subdivision may be able to justify prescribing a distance factor in its bid specifications.

April 2, 1992
Robert W. Schmidt, Esq., County Attorney
County of Nassau