Opinion 93-7
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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 The opinion may no
longer represent those views if, among other things, there have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 (service of
legal process)
GENERAL MUNICIPAL LAW, §103: A contract to engage the
services of a firm to serve legal process is not exempt from
competitive bidding requirements as a professional service.
You ask whether a county contract to engage a firm to serve
legal process on behalf of the county is exempt from the
competitive bidding requirements of General Municipal Law, §103
as a professional service. You have informed us that the
services will involve certain social services and family court
matters involving confidential information, investigatory
services in connection with locating individuals to be served
and service under difficult conditions which require a high
level of resourcefulness.
General Municipal Law, §103 requires that, except as
otherwise expressly provided by the State Legislature or by
local law adopted prior to September 1, 1953, all contracts for
public work of a political subdivision or district therein
involving an expenditure of more than $20,000, and all purchase
contracts of a political subdivision or district therein
involving an expenditure of more than $10,000, shall be awarded
to the lowest responsible bidder after public advertisement for
sealed bids in the manner prescribed in that section. In
addition to statutory exceptions from competitive bidding
authorized by the State Legislature (see, e.g., General
Municipal Law, §§103[4], 104), there are also several well-established common law exceptions to the requirements of
section 103.
One such common law exception is for contracts for
professional services (see, e.g., People ex rel. Smith v Flagg,
17 NY 584). We are aware of no judicial decisions on the issue of whether
services of a process server are within the professional
services exception. Generally, however, professional services
which fall within this exception involve the application of
specialized expertise, the use of professional judgment or
discretion, or a high degree of creativity in the performance
of the contract (see People ex rel. Smith, supra; Schulz v
Warren County Board of Supervisors, 179 AD2d 118, 581 NYS2d 885
lv den 80 NY2d 754, 587 NYS2d 986; Trane Co. v County of
Broome, 76 AD2d 1015, 429 NYS2d 487; Hurd v Erie County, 34
AD2d 289, 310 NYS2d 953; see also 1988 Opns St Comp, No. 88-35,
p 65). The courts have also noted that professional service
contracts often involve a relationship of personal trust and
confidence (see, e.g., Lynd v Heffernan, 286 AD 597, 146 NYS2d
113 mot for lv to app granted 1 NY2d 641, mot to withdraw app
granted 1 NY2d 919, 154 NYS2d 976). The primary rationale for
this exception is that these services are not the type of "public work" which may be
properly the subject of general competition based solely upon
compliance with objective, uniform standards set forth in
specifications, with an award to the lowest responsible bidder.
Therefore, it would be an unreasonable construction of the
bidding statute to apply it to these services (see People ex
rel. Smith, supra, 17 NY, at p 589; 1A Antieau, Municipal
Corporation Law, §10.33).
Applying the general criteria for professional services
here, it is our opinion that the service of process does not
fall within the professional services exception. While a
qualified process server must have a basic understanding of
laws prescribing the proper manner of effectuating, proving and
recording service of process (e.g., CPLR, §§306 et seq.;
General Business Law, article 8), and there is some exercise of
judgment and discretion in locating parties and effectuating
service in difficult circumstances, it is our opinion that
providing these services does not involve the level of
specialized expertise, use of professional judgment or
creativity necessary to qualify as a professional service.
Moreover, while certain legal proceedings for which process is
to be served may involve confidential information, we do not
believe that provision of the service itself requires a
relationship of personal trust and confidence with county
officials.
Accordingly, it is our opinion that contract to engage the
services of a firm to serve legal process is not exempt from
competitive bidding requirements as a professional service.
March 3, 1993
Geoffrey E. Chanin, Esq., Chief Assistant County Attorney
County of Orange
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