Authorizes political subdivisions to purchase apparatus, materials, equipment and related services through contracts let by other government entities or the federal government.
NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A5119A
SPONSOR: Russell TITLE OF BILL: An act to amend the general municipal law, in relation
to allowing the purchase of apparatus, materials, equipment and supplies
and related services through the use of certain contracts let by other
government entities, and authorizing the use of certain federal
contracts as an exception to certain bidding requirements
PURPOSE OF BILL: To afford political subdivisions mandate relief, by
allowing the use of contracts let by the United States of America or any
agency thereof, any state or any other county, political subdivision or
district therein, provided the contract has been 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, and to authorize poli-
tical subdivisions to make purchases by participating in certain federal
programs available to local governments, as exceptions to the require-
ments of section 103 of the General Municipal Law.
SUMMARY OF PROVISIONS: Section one of this bill would amend subdivi-
sion 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 mariner that consti-
tutes 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,
however, 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.
