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 The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.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 -- Contracts Requiring Bidding (service of legal process)
GENERAL MUNICIPAL LAW, §103: A contract to engage the services of a firm to serve legal process is not exempt from competitive bidding requirements as a professional service.
You ask whether a county contract to engage a firm to serve legal process on behalf of the county is exempt from the competitive bidding requirements of General Municipal Law, §103 as a professional service. You have informed us that the services will involve certain social services and family court matters involving confidential information, investigatory services in connection with locating individuals to be served and service under difficult conditions which require a high level of resourcefulness.
General Municipal Law, §103 requires 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 of a political subdivision or district therein involving an expenditure of more than $20,000, and all purchase contracts of a political subdivision or district therein involving an expenditure of more than $10,000, shall be awarded to the lowest responsible bidder after public advertisement for sealed bids in the manner prescribed in that section. In addition to statutory 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 requirements of section 103.
One such common law exception is for contracts for professional services (see, e.g., People ex rel. Smith v Flagg, 17 NY 584). We are aware of no judicial decisions on the issue of whether services of a process server are within the professional services exception. Generally, however, professional services which fall within this exception involve the application of specialized expertise, the use of professional judgment or discretion, or a high degree of creativity in the performance of the contract (see People ex rel. Smith, supra; Schulz v Warren County Board of Supervisors, 179 AD2d 118, 581 NYS2d 885 lv den 80 NY2d 754, 587 NYS2d 986; 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 mot for lv to app granted 1 NY2d 641, mot to withdraw app granted 1 NY2d 919, 154 NYS2d 976). 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).
Applying the general criteria for professional services here, it is our opinion that the service of process does not fall within the professional services exception. While a qualified process server must have a basic understanding of laws prescribing the proper manner of effectuating, proving and recording service of process (e.g., CPLR, §§306 et seq.; General Business Law, article 8), and there is some exercise of judgment and discretion in locating parties and effectuating service in difficult circumstances, it is our opinion that providing these services does not involve the level of specialized expertise, use of professional judgment or creativity necessary to qualify as a professional service. Moreover, while certain legal proceedings for which process is to be served may involve confidential information, we do not believe that provision of the service itself requires a relationship of personal trust and confidence with county officials.
Accordingly, it is our opinion that contract to engage the services of a firm to serve legal process is not exempt from competitive bidding requirements as a professional service.
March 3, 1993
Geoffrey E. Chanin, Esq., Chief Assistant County Attorney
County of Orange