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 The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.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 (purchase of materials and supplies for construction work performed by municipal employees) -- Municipal Employees (use of for construction as exception to competitive bidding)
STREETS AND HIGHWAYS -- Improvements (construction performed by municipal employees as exception to competitive bidding)
GENERAL MUNICIPAL LAW, §§101, 103, 104-b: The competitive bidding requirements of General Municipal Law, §§101 and 103 are not violated by the use of town employees to perform work in connection with the construction of a town salt storage shed. Purchases of materials and supplies for the work would be subject to competitive bidding requirements if it is known or reasonably expected that the competitive bidding monetary threshold for purchases will be exceeded. If it is not known or reasonably expected that the competitive bidding threshold will be exceeded, the town would be required to make such purchases in accordance with its procurement policies and procedures.
This is in reply to your letter concerning competitive bidding requirements for the construction of a town salt storage shed. You ask whether it would be a violation of competitive bidding requirements if town employees were to install a concrete base for the shed, and the town were to bid only for the remaining portion of the construction. We are informed that the cost of the project will be less than $100,000.
Article 5-A of the General Municipal Law (§100 et seq.) contains competitive bidding requirements for political subdivisions in this State. 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 purchase contracts involving expenditures in excess of $10,000 and all contracts for public work involving expenditures in excess of $20,000 shall be awarded by the appropriate officer, board or agency of a political subdivision or district therein to the lowest responsible bidder furnishing the required security after public advertisement for sealed bids. Construction of a salt storage shed clearly would constitute public work for purposes of this section.
Section 101 of the General Municipal Law contains further competitive bidding requirements with respect to contracts for the erection, construction, reconstruction or alteration of a building, when the entire cost of the work will exceed $50,000. Section 101 requires, in such cases, that separate specifications be prepared for: (1) plumbing and gas fitting; (2) steam heating, hot water heating, and ventilating and air-conditioning apparatus; and (3) electric wiring and standard illuminating fixtures. The specifications must be drawn as to permit separate and independent bidding on each of the three subdivisions of work. It is our opinion that a salt storage shed would qualify as a "building" under this section (see 14 Opns St Comp, 1958, p 374).
Subdivision 2 of section 101 expressly states that nothing in that section "shall prevent any political subdivision from performing any such branches of work by or through their regular employees". Section 103 does not contain any similar express statement as to the use of municipal employees on a project. However, since section 103 applies only when a political subdivision proposes to enter into certain contracts for public work, it is our opinion that the requirements of section 103 do not preclude a political subdivision from utilizing its own work force on a construction project (see, e.g., 23 Opns St Comp, 1967, p 252).
Accordingly, the competitive bidding requirements of General Municipal Law, §§101 and 103 would not be violated by the use of town employees to perform work in connection with the construction of the town salt storage shed. Moreover, we are aware of no statutory requirement that a town use outside contractors, in lieu of town employees, for work in connection with the construction of the salt storage shed (compare Highway Law, §10-c[e] and Transportation, Economic Development and Environmental Conservation Budget, L 1998, ch 55, p 318, requiring that work for certain local street and highway projects funded by Consolidation Local Highway Assistance Program [CHIPs] moneys allocated for local highway projects be performed by contract in accordance with the competitive bidding requirements of section 103 if the estimated cost of the construction work exceeds $100,0001).
While the town may use town employees to perform construction work on the shed without running afoul of competitive bidding requirements, we note that the purchase of materials or supplies for the work to be performed by town employees would be subject to the competitive bidding requirements of section 103, if it is known or may be reasonably expected that the competitive bidding monetary threshold for purchases will be exceeded (23 Opns St Comp, 1967, p 252, supra; see, e.g., 1992 Opns St Comp No. 92-46, p 115, concerning computation of the monetary threshold). If it is not known or reasonably expected that the monetary threshold will be exceeded, the town would be required to make the purchases in accordance with its policies and procedures adopted pursuant to General Municipal Law, §104-b. Section 104-b requires political subdivisions to adopt internal policies and procedures governing all procurements of goods and services that are not required to be made pursuant to competitive bidding requirements (General Municipal Law, §104-b). Except in limited circumstances, the policies and procedures must provide that alternate proposals or quotations will be secured (General Municipal Law, §104-b[b],[f]).2
April 30, 1999
Kevin P. Ryan, Esq., Town Attorney
Town of Mentz
1 Since we are informed that the cost of the project here will not exceed $100,000, the applicability of this requirement to the construction of a storage shed need not be addressed.
2 This opinion relates only to the applicability of the competitive bidding statutes. Questions concerning the applicability of the State's prevailing wage laws to this project (see Labor Law, §220 et seq.) should be addressed to the New York State Department of Labor. In addition, questions concerning the applicability of Education Law, §§7209 or 7307, concerning the preparation by engineers, architects and land surveyors of plans and specifications for the construction of public work, should be addressed to the State Education Department.