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 The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.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 -- Bidding Monetary Threshold (computation of for various items used at youth center)
GENERAL MUNICIPAL LAW, §103: The purchase of kitchen utensils, furniture, books and sports equipment to be used at a village youth center need not be aggregated with each other for the purpose of determining whether the competitive bidding monetary threshold will be exceeded.
You ask whether purchases by a village of kitchen utensils, furniture, books and sports equipment to be used at a village youth center should be considered in the aggregate for purposes of determining the competitive bidding monetary threshold for purchase contracts under General Municipal Law, §103.
General Municipal Law, §103 provides that, except as otherwise expressly provided by act of the Legislature or by local law adopted prior to September 1, 1953, all purchase contracts involving an expenditure of more than $10,000, and all contracts for public work involving an expenditure of more than $20,000, shall be awarded to the lowest responsible bidder after public advertisement for sealed bids in the manner provided by section 103. Since it is well-established that bidding statutes may not be avoided by artificially breaking up contracts into lesser agreements for sums below the monetary threshold (see, e.g., Walton v Mayor, 26 App Div 76, 49 NYS 615; 1A Antieau, Municipal Corporation Law, §10.31; cf. Swift v Mayor, 83 NY 528; Jones v City of Binghamton, 26 AD2d 710, 271 NYS2d 507, affd 20 NYS 808, 284 NYS2d 702; Lance v City of New York, 88 Misc 2d 119, 387 NYS2d 32), this Office has consistently taken the position that competitive bidding is required when it is known or may be reasonably expected that the aggregate amount to be spent for the purchase of the same or similar commodities will exceed $10,000 over the course of a fiscal year (1991 Opns St Comp No. 91-64, p 169; 1990 Opns St Comp No. 90-35, p 80; 1987 Opns St Comp No. 87-4, p 6; 23 Opns St Comp, 1967, p 866; 11 Opns St Comp, 1955, p 79; 9 Opns St Comp, 1953, p 421). We have further stated that, as a general rule, items of the same or similar nature which are customarily handled by the same vendors should be considered together for purposes of determining whether the threshold will be exceeded (Opn No. 87-4, supra; 1981 Opns St Comp No. 81-103, p 104).
Applying these general principles here, it appears that the types of items to be purchased are distinctly different, as to both their physical make-up and function, and would not typically be carried by a single vendor. Their only relationship appears to be that they will be located and used at the youth center. Accordingly, it is our opinion that each type of item need not be aggregated with the others for purposes of determining whether the competitive bidding threshold under section 103 will be exceeded. It should be noted, however, that, for purposes of the competitive bidding threshold, each of these types of items should be considered in the aggregate with the same or similar items known or reasonably expected to be purchased for other village purposes over the course of the fiscal year (cf. 18 Opns St Comp, 1962, p 43, in which we concluded that the purchase of certain books available from only one source is not subject to competitive bidding).
Finally, we note that the governing board of each political subdivision and any district therein is required to adopt written internal policies and procedures governing all procurements of goods and services not required by law to be made pursuant to competitive bidding requirements (General Municipal Law, §104-b). At a minimum, these policies and procedures must provide, inter alia, 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 statutory purposes of new section 104-b (General Municipal Law, §104-b). The policies and procedures may also set forth any circumstances when, or types of procurements for which, the solicitation of alternative proposals or quotations will not be in the best interest of the municipality (General Municipal Law, §104-b[f]). Accordingly, even if the proposed purchases are not subject to competitive bidding because the monetary threshold is not exceeded, the purchases must be made in accordance with the village's procurement policies and procedures.
December 31, 1992
James D. Licata, Esq., Village Attorney
Village of Hillburn