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 The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.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 -- Bid Specifications (authority to require timeliness and prior experience by vendor) -- Contracts Requiring Bidding (printing of election materials) -- Professional Services (printing of election materials as not constituting)
ELECTIONS -- Printing of Election Supplies (necessity for bidding)
GENERAL MUNICIPAL LAW, §103: A contract for printing materials relating to elections, such as voting machine strips, canvass reports, tally sheets and ballots, is not exempt from competitive bidding as a professional service. The county, however, may require the bidders to demonstrate that they have experience in performing the required work. The county also may require the successful bidder to provide security for the successful completion of the project.
You ask whether a contract for printing certain items related to elections, such as voting machine strips, canvass reports, tally sheets and ballots, is within the professional services exception to competitive bidding. You have informed us that, typically, the annual cost of these materials is approximately $17,900.
You state that the county board of elections cites as justification for this procurement falling within the exception that: these items require layout in a particular manner in order to comply with law; misalignment of printed matter could adversely affect the outcome of an election; and the current printer has the expertise to assure proper layout. You also state there is a strict calendar of events for completing the election process which may mean that the county does not have final information as to the names of candidates until only several days before certain absentee ballots must be mailed. The current practice is to contract more than three weeks prior to the deadline. If ballot information changes, the printer re-prints the materials to account for the change. Finally, you state that you are aware of at least two printers which perform this type of work.
General Municipal Law, §103 provides 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 involving an expenditure of more than $7,000 and all purchase contracts involving an expenditure of more than $5,000 shall be awarded to the lowest responsible bidder after public advertisement. Effective January 1, 1992, the monetary thresholds will be increased to $10,000 for purchase contracts and $20,000 for contracts for public work. In addition, after January 1, 1992 political subdivisions will be required to adopt internal policies and procedures governing all procurements of goods and services which are not required to be made pursuant to competitive bidding requirements (L 1991,ch 413, §§54-56, amending General Municipal Law, §103 and adding General Municipal Law, §104-b).
As to whether contracts involving printing are properly considered purchase contracts or contracts for public work for purposes of the bidding threshold, we note that contracts which only incidentally involve printing, such as the purchase of forms, envelopes or letterheads containing the municipality's name, address and other related matter, are considered purchase contracts. Where the printing is not incidental, however, but represents the major portion of the work and cost, such as in printing of briefs and records on appeal, it is our opinion that contracts for such services fall into the category of public work (see also, 1982 Opns St Comp No. 82-196, p 185; 1981 Opns St Comp No. 81-178, p 189; 1980 Opns St Comp No 80-287, p 86; 18 Opns St Comp, 1962, p 354; 12 Opns St Comp, 1956, p 348).
In this instance, it appears that the printing services are the predominant part of the contract. Therefore, it is our opinion that for purposes of applying the monetary threshold, the transaction is not merely a purchase of commodities, but rather, is a contract for public work. Therefore, unless an exception applies, the contract would be subject to competitive bidding if it involves an aggregate annual expenditure in excess of $7,000 or, after January 1, 1992, $20,000.
In addition to the specific exceptions from competitive bidding authorized by the State Legislature (see, e.g., General Municipal Law, §§103, 104), there are also several well-established common law exceptions to the competitive bidding requirements of section 103. One such exception is for contracts for professional services (see, e.g., People ex rel. Smith v Flagg, 17 NY 584). Generally, professional services which fall within this exception involve the application of specialized expertise, the use of professional judgment, or a high degree of creativity in the performance of the contract (see People ex rel. Smith, supra; 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).
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).
This Office has consistently expressed the opinion, however, that contracts for printing items such as publicity brochures, appellate briefs, county board proceedings, court calendars and fee schedules are not professional services (1982 Opns St Comp No. 82-146, p 185; 1981 Opns St Comp No. 81-178, p 189; 1980 Opns St Comp No. 80-287, p 86; 1977 Opns St Comp No. 77-937, unreported; 1974 Opns St Comp No. 74-413; 25 Opns St Comp, 1969, p 314; 18 Opns St Comp, 1962, pps 354, 476). Similarly, applying the above criteria to the instant situation, we are of the opinion that the services involved in printing election forms do not fall within the professional services exception (see Opn No. 77-937, supra; 1962 Opns St Comp No. 62-450, unreported; 17 Opns St Comp, 1961, p 212). Although as with many services, there is a degree of technical skill and judgment involved in this printing work, it is our opinion that the work does not involve the high level of specialized expertise, use of professional judgment, creativity or personal trust and confidence necessary to qualify as a professional service. Accordingly, it is our opinion that these services are not exempt from the competitive bidding requirements of General Municipal Law, §103 under this exception (cf. Bradford & Bigelow, Inc. v Commonwealth, 24 Mass App Ct 349, 509 NE2d 30, involving a solicitation of bids for the printing of ballots in a state election).
In reaching this conclusion, we recognize that certain contracts involving printing may fall within the professional services exception when extensive writing, editing or creative art work are the predominant part of the contract and are inextricably integrated to the printing (Opn No. 82-166, supra; Opn No. 77-937, supra; see also Opn No. 88-35, supra, discussing contracts which involve the acquisition of a combination of professional services and commodities). In those instances, consistent with the rationale for the exception, we believe the ability to exercise professional judgment and discretion, the level of technical skill and expertise and artistic ability of the contractor might not be properly evaluated by the competitive bidding process (but see Opn No. 88-35, supra, discussing use of requests for proposals to obtain professional services). In the instant situation, however, it is our opinion that carefully drawn bid specifications will allow for the concerns as to timeliness, qualifications and accuracy to be addressed within the bidding process.
Although bid specifications may not be so fixed or manipulated as to shut out competition or permit unfair advantage or favoritism, a political subdivision is permitted to insert in its specifications proper and reasonable conditions, restrictions and requirements in the public interest (Randolph McNutt v Eckert, 257 NY 100; Gerzof v Sweeney, 16 NY2d 256, 264 NYS2d 376; J.I. Case v Town of Vienna, 105 AD2d 1077, 482 NYS2d 599; Edenwald v City of New York, 86 Misc 2d 711, 384 NYS2d 338, affd 47 AD2d 610, 366 NYS2d 363). Thus, the county may describe, and require bidders to have the ability to comply with, the required layout format and the prescribed timetable. Further, it has been held that a political subdivision in its specifications may require bidders to demonstrate their qualifications and experience in performing the required work (Construction Contractors Association v Board of Trustees, Orange County Community College, 149 Misc 2d 440, 565 NYS2d 997; A.I. Smith v City of Long Beach, 158 AD2d 454, 551 NYS2d 48; Ajay Blass v County of Erie, 155 AD2d 988, 547 NYS2d 790; Cave-of-the Winds v Niagara Frontier State Park and Recreation Commission, 64 AD2d 818, 407 NYS2d 301; 1974 Opns St Comp No. 74-139, unreported), so long as the political subdivision has a rational basis to support this requirement in the public interest (cf. Salle v Office of General Services, 134 AD2d 809, 521 NYS2d 868, holding that the State had no rational basis to support a requirement that bidders must have been in operation for at least one year at a local site). In view of the strict timetable and necessity for precision in layout, the county may be able to justify a specification requiring a demonstration of experience and qualifications by bidders. To ensure that the contract once awarded will be properly completed, the county also may require in its specifications the submission of a surety bond or similar performance security (General Municipal Law, §103; Cataract v Town of Newfane, 53 NY2d 266, 440 NYS2d 913; People v McDonough, 173 NY 181).
Further, because the final information as to, among other things, the names of the candidates may not be available at the time of the bid advertisement, the specifications could describe the requirements based on the data available at the time the specifications are prepared, including the approximate number of candidates and quantities of materials. The county also could furnish representative samples of previous materials. The specifications then could call for bids on a unit basis, such as a per line price, so that competition may be sought even though the precise information to be printed may not yet be known (see, e.g., 1991 Opns St Comp No. 91-1, p 1).
In addition, the county must evaluate a bidder's responsibility which encompasses, among other things, a bidder's financial resources, skill, judgment and integrity (Abco Bus v Macchiarola, 52 NY2d 938, 437 NYS2d 967 cert den 445 US 822, 102 S Ct 107, 70 L Ed 2d 94; People ex rel. Argus v Hugo, 101 Misc 481, 168 NYS 25 affd 182 App Div 904, 168 NYS 1123; see Schiavone v LaRocca, 117 AD2d 440, 503 NYS2d 196, relative to a bidder's right to notice and opportunity to be heard prior to a finding of non-responsibility). This determination can further ensure that a qualified party is awarded the contract.
Finally, although you specifically ask only about the applicability of the professional service exception, we note that the type of contract at issue also raises questions as to the applicability of the sole source and emergency exceptions. Competitive bidding is not required when a municipality, in the public interest, requires particular goods or services which uniquely serve the public interest, for which there is no equivalent and which are available from only one source so that there is no possibility of competition (Harlem Gas v Mayor, 33 NY 307; Williams v Bryant, 53 AD2d 229, 385 NYS2d 425; see Tinston v City of New York, 36 Misc 2d 121, 231 NYS2d 899 mod 17 AD2d 311, 234 NYS2d 730 affd 13 NY2d 850, 242 NYS2d 490; Opn No. 88-35, supra; 1986 Opns St Comp No. 86-25, p 41). Also, pursuant to General Municipal Law, §103(4), competitive bidding is not required in the case of an emergency: (1) arising out of an accident or unforeseen occurrence or condition; (2) affecting public buildings, public property or the life, health, safety or property of the inhabitants of the political subdivision; and (3) requiring immediate action which cannot await competitive bidding.
Inasmuch as you have stated that there are at least two other printers who perform this type of work, it is evident that the sole source exception is not applicable. Further, the timetable is known in advance, the process is conducted in a similar fashion annually and the county has been able to contract three weeks prior to the deadline. Therefore, it would appear that the emergency exception would not generally be applicable to contracts for these services because the circumstances are not unforeseen and do not require immediate action which cannot await competitive bidding. As previously noted, the bid specifications may make provision for late changes in information. The applicability of this exception, however, would have to be determined on a case-by-case basis. If, for example, a successful bidder is unable to make final changes in a timely fashion or unanticipated additional work outside the scope of the original contract must be immediately completed, it is possible an emergency situation would exist.
Opn No. 77-937, supra is superseded to the extent inconsistent with the above discussion of the emergency exception; Opn No. 62-450, supra and 17 Opns St Comp, 1961, p 212, supra are superseded to the extent inconsistent with the above discussion of the applicability of the monetary threshold for contracts for public work.
September 17, 1991
James E. Konstanty, Esq., County Attorney