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 The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.
LOCAL LAWS -- Competitive Bidding (cannot create exception for public work under county contract) -- Preemption (competitive bidding procedures)
MUNICIPAL COOPERATION -- Competitive Bidding (cooperative bidding for public work)
PUBLIC CONTRACTS -- Purchases Through County or State (exception not applicable to contracts for public work)
GENERAL MUNICIPAL LAW, §§103, 119-o; MUNICIPAL HOME RULE LAW, §10(1)(i); COUNTY LAW, §408-a: There is no State statute which authorizes counties to extend their contracts for public work to political subdivisions to allow political subdivisions to participate in such contracts as an exception to competitive bidding requirements. Neither a county nor any other local government may provide, by local law, an exception to competitive bidding requirements for procurements through county contracts for public work. Municipal corporations, however, may enter into agreements to cooperatively bid contracts for public work or to have one municipality perform the competitive bidding procedures for other participating municipalities in connection with projects being undertaken by individual municipalities.
You ask whether a charter county may extend its contracts for public work to political subdivisions within the county so that the political subdivisions may participate in those contracts without competitive bidding.
General Municipal Law, §103 provides 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 ... (emphasis added)
It is clear from the express language of section 103 that it relates to two categories of municipal procurements: contracts for public work and purchase contracts (see, e.g., Exley v Village of Endicott, 51 NY2d 426, 434 NYS2d 922; 1987 Opns St Comp No. 87-46, p 70; L 1953, ch 861; Memorandum to Governor re: L 1953, ch 861, Department of Audit and Control, McKinney's Session Laws of 1953, p 2211).
County Law, §408-a authorizes county governing boards, in the case of purchase contracts of the county, to authorize the inclusion of a provision whereby purchases may be made under such contracts by any political subdivision, district in such political subdivision or fire company located in whole or in part within the county. The county is required to adopt rules prescribing the conditions under which and the manner in which such purchases may be made (County Law, §408-a). Subdivision 3 of section 103 of the General Municipal Law provides that the purchase of materials, equipment and supplies, when available through county contracts extended to political subdivisions in the county under County Law, §408-a(2), are exempt from the competitive bidding requirements of General Municipal Law, §103(1). There is no similar authority, however, for counties to extend their contracts for public work to political subdivisions to allow political subdivisions to participate in a county's contracts for public work as an exception to the competitive bidding requirements of General Municipal Law, §103(1).
In the absence of such State legislation, it is our opinion that neither a county nor any other local government may provide, by local law, an exception to the competitive bidding requirements of section 103(1) for procurements through a county contract for public work. 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. In addition, subject to certain limitations, charter counties may adopt local laws amending their charters relative to the structure of the county government and the manner in which it is to function (Municipal Home Rule Law, §§33, 34). The doctrine of preemption, however, represents a fundamental limitation on these 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). The Legislature may expressly state its intent to preempt or that intent may be implied from the nature of the subject matter being regulated and the purpose and scope of the State legislative scheme, including the need for State-wide uniformity in a given area (Albany Area Builders, supra).
Even where a State statute expressly preempts local laws, the scope of a preemption is a matter of statutory construction requiring consideration of the plain meaning of the statute, the relevant legislative history and the underlying purposes of the preemption clause as part of the statutory scheme (see Frew Run Gravel Products, Inc. v Carroll, 71 NY2d 126, 524 NYS2d 25; 1990 Opns St Comp No. 90-8, p 17). In this regard, we note that the enactment of section 103 was intended to provide uniformity and consistency with respect to competitive bidding requirements for political subdivisions (see Memorandum to Governor re: L 1953, ch 861, Department of Audit and Control, supra), while preserving the effect of local laws existing at the time of the enactment of section 103 (see Memorandum to Governor re: L 1955, ch 434, Department of Audit and Control, March 12, 1955). Given this purpose, it is our opinion that the opening clause of section 103 is an express statement of legislative intent to preempt the field and to preclude the adoption of local laws on or after September 1, 1953 (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). In our view, however, 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. 81-109 and 80-696, supra).
As noted, section 103 provides that "all" contracts for public work involving an expenditure in excess of $7,000 must be let pursuant to competitive bidding except as expressly provided by the State Legislature or by a pre-1953 local law. Therefore, 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 county contracts for public work.
Although a political subdivision may not make procurements through a county contract for public work as an exception to competitive bidding, General Municipal Law, §119-o contains broad authorization for municipal corporations, as that term is defined for this purpose (General Municipal Law, §119-n[a]), to enter into agreements for the performance among themselves or one for the other of their respective functions, powers and duties on a cooperative or contract basis, or for the provision of a joint service (General Municipal Law, §119-o). General Municipal Law, §119-o[d] also specifically provides that an agreement may contain provisions relating to the making of contracts subject to the general laws applicable to municipal corporations. The agreement also may provide for equitably allocating the costs involved in the cooperative purchase (General Municipal Law, §119-o[a]).
Pursuant to the authority contained in General Municipal Law, §119-o, we have expressed the opinion that the governing boards of municipal corporations may agree to make purchases on a cooperative basis through a single set of bid specifications, and a single advertisement for bids in the official newspaper(s), or other newspaper(s) designated for competitive bidding purposes (see General Municipal Law, §103) of one of the participants, so long as the newspaper(s) have circulations covering the area of all the participating municipal corporations (18 Opns St Comp, 1962, p 15 and p 381; 32 Opns St Comp, 1976, p 130). Further, we have expressed the opinion that section 119-o authorizes the participants to assign one appropriate officer or body to award the contract and a fiscal officer of one of the participants to be responsible for payment to the successful bidder upon audit of the auditing body or official of the fiscal officer's municipal corporation (id.; General Municipal Law, §119-o[d], [h]; cf. Gallagher v Central School District No. 1, 43 Misc 2d 360, 251 NYS2d 119, where municipalities participating in a cooperative purchasing agreement each reserved the right to accept or reject bids).
It is our opinion that municipal corporations may also enter into agreements to cooperatively bid contracts for public work (see, e.g., 25 Opns St Comp, 1969, p 6). As in the case of cooperative purchase agreements, the agreements could provide for: a single set of bid specifications; a single advertisement in one or more appropriate newspapers having circulations covering the area of the participants; one appropriate officer or body to award the contract; the payment of contractors by the chief fiscal officer of one of the participants upon audit by the auditing body or official of the fiscal officer's municipality; and equitable allocation of the costs involved in the procurement. Since cooperative arrangements are subject to general laws applicable to municipal corporations (see General Municipal Law, §119-o[d]), however, the governing boards cannot, under the agreement, abrogate or diminish the statutory powers and duties of other municipal officials in connection with contracts for public work (31 Opns St Comp, 1975, p 20; see, e.g., Highway Law, §193 requiring that certain contracts for the construction of town highways and bridges be awarded by the town highway superintendent).
If all the participants seek the same type of work, we believe the specifications could request bids on a unit basis, such as per hour, per linear foot or per mile, and indicate the total quantity of work to be performed or, if an exact quantity cannot be determined because of the nature of the work, an estimated quantity, so that bidders have sufficient information to intelligently calculate their bids (In The Matter of the Application of Area Paving Corp. v Town of Mamaroneck, Supreme Ct, Westchester Co., 12/22/88, Index No. 10459/88; Walter v McClellan, 113 App Div 245, 99 NYS 78, affd 164 NY 605; 1976 Opns St Comp No. 76-34, unreported; 1972 Opns St Comp No. 72-394, unreported; 15 Opns St Comp, 1959, p 113; 10 McQuillin §29.54; see also Sweet Associates v Gallman, 36 AD2d 95, 318 NYS2d 528 affd 29 NY2d 902, 328 NYS2d 857; cf. Suffolk Roadways v Minuse, 19 AD2d 888, 244 NYS2d 651). By requesting bids in this manner, the participants may realize the economies of cooperative bidding, while allowing for the computation of the amounts due the successful bidder from each participant. Similarly, if several types of work are sought, the specifications could request unit bids based on actual or estimated quantities for each type of work and provide for separate awards to the lowest responsible bidder for each category or a single award to the overall lowest responsible bidder, whichever, in the discretion of the awarding body or official, is in the best interest of the municipalities (see Bana Electric v Board of Education, 22 Misc 2d 956, 194 NYS2d 957; Fonseca v Board of Education, 58 Misc 2d 223, 294 NYS2d 952; Bianchi v City of Troy, 92 AD2d 960, 460 NYS2d 660; 1984 Opns St Comp No. 84-23, p 29; 1983 Opns St Comp No. 83-131, p 165).
Finally, we believe section 119-o also authorizes cooperation agreements under which one municipality performs the competitive bidding procedures for other participating municipalities in connection with projects being undertaken by individual municipalities. Thus, for example, participating municipalities could agree to have one municipality perform functions such as drafting bid specifications, placing bid advertisements, opening and recording bids and awarding contracts for individual projects of each of the other participants. In exchange, the municipalities receiving services could agree to pay the lead municipality an amount to cover the administrative costs of performing the functions. In our view, such an agreement is contemplated by the "one for the other" language contained in General Municipal Law, §119-o.
February 11, 1991
E. Thomas Boyle, Esq., County Attorney
County of Suffolk