Authorizes political subdivisions to purchase apparatus, materials, equipment and related services through contracts let by other government entities

Summary of provisions

Section one of this bill would amend subdivision 16 of section 103 to the General Municipal Law, which authorizes a "county, political subdivision or of any district therein" to make purchases of apparatus, materials, equipment and supplies, and to contract for services related to the installation, maintenance or repair of such items, through a contract let by the United States of America or any agency thereof, any state or any other county, political subdivision or district therein, to replace the requirement that such contracts be "let in a manner that constitutes competitive bidding consistent with state law" with a requirement that the contract be let to the lowest responsible bidder or on the basis of best value in a manner consistent with section 103 of the General Municipal Law. Section one of the bill also would delete unnecessary references to counties.

Section two of this bill would amend subdivision 2 of section 104 of the General Municipal Law to authorize political subdivisions to purchase through certain federal programs available to local governments as exceptions to the requirements of section 103 of the General Municipal Law.

Section three of the bill provides for the effective date.

Justification

This bill would amend subdivision 16 of section 103 to the General Municipal Law, which was added by chapter 308 of the Laws of 2012 as an exception to the requirements of General Municipal Law § 103 (1). As enacted by chapter 308, subdivision 16 authorizes a "county, political subdivision or of any district therein" to make purchases of apparatus, materials, equipment and supplies, and to contract for services related to the installation, maintenance or repair of such items, through a contract let by the United States of America or any agency thereof, any state or any other county, political subdivision or district therein if several prerequisites are met. Among the current

prerequisites is that the contract "was let in a manner that constitutes competitive bidding consistent with state law...."

In 2012, General Municipal Law § 103 was amended to give political subdivisions the option of letting contracts based on "best value," as an alternative to letting contracts to the "lowest responsible bidder" (L 2011, chapter 608 as amended by L 2012, chapter 2). Political subdi- visions other than New York City are required to first authorize the use of "best value" awards by local law, or in the case of district corpo- rations, school districts and BOCES, by rule, regulation, or resolution.

The "best value" amendments, in numerous places, made a distinction between the award of a contract based on competitive "bidding" and competitive "offering," with the latter referring to the "best value" option (see e.g. General Municipal Law §§ 103 (1), (1-a), (4), (6), (7); see also General Municipal Law § 103, section heading). Based on this distinction between a competitive "bid" and "offer" as set forth in the "best value" amendments, it is not apparent that the reference to "competitive bidding" in General Municipal Law § 103 (16) encompasses "best value" awards.

We are informed, however, that it has been the expectation of local governments that, notwithstanding the specific reference to "competitive bidding" in section 103 (16), the mandate relief provided by General Municipal Law § 103 (16) would permit political subdivisions to use this "piggybacking" exception for contracts let either to the lowest respon- sible bidder or pursuant to a "best value" process. This bill would ensure that General Municipal Law § 103 (16) provides the full extent of the expected mandate relief by allowing political subdivisions to use contracts let by the United States of America or any agency thereof, any state or any other county, political subdivision or district therein, when the contract has been let either to the lowest responsible bidder or on the basis of best value in a manner consistent with section 103 of the General Municipal Law.

Consistent with the "best value" amendments, no political subdivision or district therein, other than New York City, may use such a contract let on the basis of "best value" unless it shall first adopt a local law, rule, regulation or resolution, as the case may be, pursuant to General Municipal Law § 103 (1), authorizing the use of best value for awarding purchase contracts. All other requirements set forth in subdivision 16 remain the same.

This bill also makes a minor technical amendment to avoid a redundancy. Section 103 (16) currently lists both a "county" and a "political subdi- vision" as entities authorized to use the "piggybacking" exception. However, the word "county" is unnecessary. Counties are already included within the definition of "political subdivision" for purposes of General Municipal Law Article 5-A (§ 100, et seq.). General Municipal Law § 100 (1) defines "political subdivision" to include a "municipal corpo- ration." General Municipal Law § 2, in turn, defines "municipal corpo- ration" to include a town, village, city and county. Therefore, the

reference to "county" in General Municipal Law § 103 (16) is redundant and potentially could raise questions as to the applicability of other provisions of the General Municipal Law Article 5-A to counties. Although a minor, technical point, the word "county" should be deleted.

Finally, General Municipal Law §§ 103(1-b) and 104(2) presently allow political subdivisions to make purchase by participating in certain federal purchasing programs. Access to these federal contracts has the potential to save localities money by lowering purchase costs, as well as administrative expenses. To provide additional opportunities for potential savings to localities, this bill authorizes political subdivi- sions to make use of additional federal programs available to local governments as exceptions to the requirements of General Municipal Law 103. The programs are pursuant to: the federal "Local Preparedness Acquisition Act," P.L. 110-248 ("Schedule 84"), which includes alarm and signal systems, facility management systems, firefighting and rescue equipment, law enforcement and security equipment, marine craft and related equipment, special purposes clothing, and related services; and section 833 of the John Warner National Defense Authorization Act for Fiscal Year 2007, which includes products and services to be used to facilitate recovery from major disasters declared by the president under the Robert T. Stafford Disaster Relief and Emergency Assistance Act, or to facilitate recovery from terrorism or nuclear, biological, chemical or radiological attack.

Prior legislative history

New Bill.

Fiscal implications

None to the State.

Effective date

This act shall take effect immediately; provided, howev- er, that the amendments to subdivision 16 of section 103 of the general municipal law made by section one of this act shall not affect the repeal of such subdivision and shall be deemed to be repealed there- with; and provided further, however, that the amendments to subdivision 2 of section 104 of the general municipal law made by section two of this act shall not affect the expiration of such subdivision and shall be deemed to expire therewith.