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 The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.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 expand exception under General Municipal Law, §103[8]) -- Preemption (competitive bidding procedures)
PUBLIC CONTRACTS -- Contracts Requiring Bidding (purchases by other than municipal hospitals from group program under the Public Health Law)

GENERAL MUNICIPAL LAW, §103(8); MUNICIPAL HOME RULE LAW, §10(1)(i): A county may make purchases, pursuant to the exception to competitive bidding in General Municipal Law, §103(8), under a group purchasing program operated pursuant to Public Health Law, §2803-a, only for those county institutions or facilities which are within the definition of "hospital" contained in Public Health Law, §2801(1).

You ask whether a county may make purchases for county agencies other than a county infirmary, without competitive bidding, through a purchasing consortium organized under Public Health Law, §2803-a.

General Municipal Law, §103(8) provides an exception to the competitive bidding requirements of section 103 for purchases by "municipal hospitals" under arrangements entered into pursuant to Public Health Law, §2803-a. Section 2803-a authorizes "hospitals", under rules and regulations promulgated by the State Hospital Review and Planning Council (see 10 NYCRR 400.4), to enter into contracts among themselves and among other public and private hospitals, medical schools, other health related facilities having or utilizing hospital services or facilities, or volunteer ambulance services, for the joint purchase of goods, supplies and services.

The term "municipal hospital" is not defined in General Municipal Law, §103(8). This Office, however, has concluded that, since the definition of "hospital" contained in Public Health Law, §2801(1) applies to Public Health Law, §2803-a, that definition is also applicable to General Municipal Law, §103(8) (1990 Opns St Comp No. 90-18, p 41; 1989 Opns St Comp No. 89-2, p 6).

Section 2801(1) of the Public Health Law generally defines "hospital" as follows:

1. "Hospital" means a facility or institution engaged principally in providing services by or under the supervision of a physician or, in the case of a dental clinic or dental dispensary, of a dentist, for the prevention, diagnosis or treatment of human disease, pain, injury, deformity or physical condition ....

There is no authority for a municipality to make purchases for other than municipal hospitals under the exception to competitive bidding set forth in General Municipal Law, §103(8). Further, because General Municipal Law, §103(1) is an express statement of legislative intent to pre-empt the adoption of local laws on or after September 1, 1953, it is our opinion that a local government may not adopt a local law expanding the exception in subdivision 8 of section 103 to include municipal facilities and institutions other than "hospitals" (see 1991 Opns St Comp No. 91-1, p 1).

Accordingly, a county may make purchases, pursuant to the exception to competitive bidding in General Municipal Law, §103(8), under a group purchasing program operated pursuant to Public Health Law, §2803-a, only for those county institutions or facilities which are within the definition of "hospital" contained in Public Health Law, §2801(1).

May 6, 1991
Arthur Carl Spring, Esq., County Attorney
County of Fulton