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 The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.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 -- Policies and Procedures (inclusion of purchases by town highway superintendent); (supersession of State statutes governing contracting process)
STREETS AND HIGHWAYS -- Highway Supplies and Equipment (necessity to obtain prior town board approval for purchases of); (purchases governed by town board's policies and procedures)
SUPERINTENDENT OF HIGHWAYS -- Powers and Duties (necessity to obtain prior town board approval for purchases); (purchases governed by town board's policies and procedures)
TOWN BOARD -- Powers and Duties (authority to require prior board approval in procurement policies and procedures)
HIGHWAY LAW, §§140, 142, 284; GENERAL MUNICIPAL LAW, §104-b: Procurements made by a town superintendent of highways are required to be covered under procurement policies and procedures adopted by a town board pursuant to General Municipal Law, §104-b. The town board may not, however, in these policies and procedures supersede any other provision of law which governs the contracting process. Therefore, these policies and procedures may not provide that prior town board approval is required by the superintendent for purchases of materials for highway repair and improvement made in accordance with the written agreement required by Highway Law, §284, or materials for the repair and maintenance of bridges and to control snow and ice. The policies and procedures may reference the requirement in Highway Law, §142 for prior board approval of highway equipment purchases in excess of amounts fixed by the board and the requirement in Highway Law, §143 that rentals of machinery and equipment must be at a rate approved by the board.
You ask whether General Municipal Law, §104-b authorizes a town board to require, in its procurement policies and procedures adopted pursuant to that statute, that all purchases or leases in excess of $500.00 by the highway superintendent be approved by the town board. You have enclosed a copy of the town's "purchasing resolution" which you state was adopted pursuant to section 104-b.
General Municipal Law, §104-b(1) provides that goods and services which are not required by law to be procured by political subdivisions pursuant to competitive bidding must be procured:
... in a manner so as to assure the prudent and economical use of public moneys in the best interests of the taxpayers of the political subdivision or district, to facilitate the acquisition of goods and services of maximum quality at the lowest possible cost under the circumstances, and to guard against favoritism, improvidence, extravagance, fraud and corruption.
To further these objectives, section 104-b requires the governing board of each political subdivision, by resolution, to adopt written internal policies and procedures governing all procurements of goods and services.
Subdivision 2 of section 104-b provides that the policies and procedures shall contain provisions which, among other things: (1) prescribe procedures for determining whether a procurement is subject to competitive bidding and, if it is not, documenting the basis for such determination; (2) with certain exceptions, provide that, when competitive bidding is not required by law, alternative proposals or quotations will be secured by requests for proposals, written or verbal quotations or any other method of procurement which furthers the purposes of section 104-b; (3) set forth when each method of procurement will be used; (4) require adequate documentation of actions taken; (5) if a contract is awarded to other than the lowest responsible dollar offerer, require justification and documentation of the reasons such award furthers the purposes of section 104-b; and (6) set forth any circumstances when, or the types of procurement for which, the solicitation of alternative proposals or quotations will not be in the best interest of the political subdivision. The governing board also must solicit comments on the policies and procedures from officers involved in the procurement process and annually review its policies and procedures.
Section 284 of the Highway Law generally provides that moneys levied and collected for the repair and improvement of highways must be expended for those purposes at such places and in such manner as agreed upon in writing by the town board and the highway superintendent, subject to the approval of the county highway superintendent. This Office has previously expressed the opinion that, except in towns which have established the office of director of purchasing pursuant to Town Law, §41-a, the town highway superintendent has authority, under section 284, to make purchases of materials for highway repair and improvement without prior board approval so long as the procurements are in accordance with the written agreement (1987 Opns St Comp No. 87-42, p 64; 24 Opns St Comp, 1968, p 829; see also Myruski v Town of Goshen, 87 Misc 2d 1063, 386 NYS2d 984). We have also expressed the opinion that superintendent's statutory authority to repair bridges and keep roads and bridges free from obstruction (see Highway Law, §140) necessarily implies that a superintendent in a town which has not established the office of director of purchasing may make purchases of materials to repair and maintain bridges and to control snow and ice, without prior board approval, within the amounts appropriated in the town budget for such items (id.; Opn No. 87-42, supra; 24 Opns St Comp, 1968, supra).
With regard to the purchase and rental of highway equipment, under Highway Law, §142(1)(a), purchases of highway equipment by the highway superintendent are subject to town board approval unless the town board has authorized the superintendent to purchase equipment without prior approval in an amount or amounts fixed by the town board. Highway Law, §143 provides that the highway superintendent may rent machinery or equipment at a rate approved by the town board (cf. General Municipal Law, §109-b[b], requiring that the governing board of a political subdivision authorize installment purchase contracts by resolution).
Since the policies and procedures required by section 104-b must govern "all" procurements of goods and services for which competitive bidding is not required, it is clear that procurements made by the town superintendent of highways are required to be covered under the town board's policies and procedures. We further note that, as an officer involved in the procurement process, the board must solicit comments concerning the policies and procedures from the superintendent in accordance with General Municipal Law, §104-b(3).
As evidenced by the statement of the objectives of section 104-b(1) and the specific listed items in subdivision 2 of section 104-b, the primary purpose of that section is to require the adoption of policies and procedures which address the solicitation of competition by political subdivisions for procurements of goods and services for which competitive bidding is not required (see also Memorandum in Support of S. 5066/A. 8107 of 1991, which was introduced at the request of the State Comptroller and which was the impetus for section 104-b as finally enacted). There is nothing in section 104-b or its legislative history which suggests that a town board, in its policies and procedures, may supersede any other provision of law which governs the contracting process. It is our opinion, therefore, that the town board's procurement policies and procedures adopted pursuant to section 104-b must be consistent with other State statutes relative to the contracting process unless the town has properly superseded those statutes pursuant to a duly adopted local law (see, e.g., Municipal Home Rule Law, §10[ii][d]).
Accordingly, in our opinion, the town board may not provide in its procurement policies and procedures that prior town board approval is required by the town highway superintendent for purchases of materials for highway repair and improvement made in accordance with the written agreement required by Highway Law, §284, or materials for the repair and maintenance of bridges and to control snow and ice pursuant to Highway Law, §140(2), because such a requirement would be inconsistent with the Highway Law. Further, since the statutory scheme of the Highway Law evinces a legislative intent to preempt local laws in connection with the manner in which funds raised for highway purposes are expended (see Albany Area Builders v Town of Guilderland, 74 NY2d 372, 547 NYS2d 627), the town may not adopt a local law superseding these Highway Law provisions.
Section 104-b(2) provides, however, that the procurement policies and procedures shall contain provisions addressing, "among other things", the items listed therein. It is clear, therefore, that the policies and procedures may contain appropriate provisions in addition to those required by section 104-b (see General Municipal Law, §104-b). Thus, the town board may reference in its policies and procedures the requirement in section 142(1)(a) for prior board approval of highway equipment purchases in excess of amounts, if any, fixed by the town board and the requirement in section 143 that rentals of machinery and equipment must be at a rate approved by the board. If the board has fixed amounts below which equipment purchases may be made by the superintendent without prior board approval or has approved rental rates for classes of equipment or machinery (see 1979 Opns St Comp No. 79-550, unreported), we believe these also may be referenced in the board's policies and procedures.
Finally, it is not a function of this Office to review and approve or disapprove specific procurement policies and procedures adopted by each political subdivision. We note, however, that the policies and procedures enclosed with your letter appear not to address several of the required subjects listed in section 104-b(2). We suggest, therefore, that town officials review and, where necessary, amend these policies and procedures to ensure that they comply with section 104-b.
December 31, 1992
G. Peter Van Zandt, Esq., Town Attorney
Town of Windsor