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

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S3766-2013 Actions

• May 22, 2013: referred to local governments
• May 22, 2013: DELIVERED TO ASSEMBLY
• May 22, 2013: PASSED SENATE
• May 20, 2013: ADVANCED TO THIRD READING
• May 8, 2013: 2ND REPORT CAL.
• May 7, 2013: 1ST REPORT CAL.586
• Mar 7, 2013: PRINT NUMBER 3766A
• Mar 7, 2013: AMEND AND RECOMMIT TO LOCAL GOVERNMENT
• Feb 14, 2013: REFERRED TO LOCAL GOVERNMENT

S3766-2013 Votes

S3766-2013 Memo

BILL NUMBER:S3766

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: 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 political subdivisions to make purchases by participating in
certain federal programs available to local governments, as exceptions
to the requirements of section 103 of the General Municipal Law.

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 mariner 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
subdivisions 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 corporations, 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 responsible 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 subdivision" 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 corporation." General Municipal
Law � 2, in turn, defines "municipal corporation" 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
subdivisions 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
therewith; 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.

S3766-2013 Text

                      S T A T E   O F   N E W   Y O R K
  ________________________________________________________________________

                                    3766

                         2013-2014 Regular Sessions

                              I N  SENATE

                              February 14, 2013
                                 ___________

  Introduced  by  Sen.  LITTLE -- read twice and ordered printed, and when
    printed to be committed to the Committee on Local Government

  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

    THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
  BLY, DO ENACT AS FOLLOWS:


    Section 1. Subdivision 16 of section 103 of the general municipal law,
  as  added  by  chapter  308  of  the laws of 2012, is amended to read as
  follows:

    16. Notwithstanding the provisions of subdivisions one, two and  three
  of this section, and section one hundred four of this article, any offi-
  cer,  board  or  agency  of  a [county,] political subdivision or of any
  district therein authorized to make purchases of  apparatus,  materials,
  equipment  or  supplies,  or  to  contract  for  services related to the
  installation, maintenance or repair of apparatus, materials,  equipment,
  and supplies, may make such purchases, or may contract for such services
  related to the installation, maintenance or repair of apparatus, materi-
  als, equipment, and supplies, as may be required by such [county,] poli-
  tical  subdivision or district therein through the use of a contract let
  by the United States of America or any agency thereof, any state or  any
  other  [county  or]  political  subdivision  or district therein if such
  contract was let TO THE LOWEST RESPONSIBLE BIDDER OR  ON  THE  BASIS  OF
  BEST VALUE in a manner [that constitutes competitive bidding] consistent
  with  [state  law]  THIS  SECTION  and  made  available for use by other
  governmental entities; PROVIDED, HOWEVER, THAT NO POLITICAL  SUBDIVISION
  OR  DISTRICT THEREIN, OTHER THAN A CITY WITH A POPULATION OF ONE MILLION
  OR MORE INHABITANTS OR ANY DISTRICT, BOARD OR AGENCY  WITH  JURISDICTION
  EXCLUSIVELY  THEREIN,  MAY  MAKE  SUCH  PURCHASES  OR  CONTRACT FOR SUCH

   EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                        [ ] is old law to be omitted.
                                                             LBD08874-01-3

 S. 3766                             2

  SERVICES THROUGH THE USE OF SUCH A CONTRACT LET ON  THE  BASIS  OF  BEST
  VALUE  IN  A  MANNER  CONSISTENT  WITH THIS SECTION UNLESS THE POLITICAL
  SUBDIVISION OR DISTRICT SHALL FIRST ADOPT A LOCAL LAW, RULE,  REGULATION
  OR  RESOLUTION,  AS THE CASE MAY BE, PURSUANT TO SUBDIVISION ONE OF THIS
  SECTION, AUTHORIZING  THE  USE  OF  BEST  VALUE  FOR  AWARDING  PURCHASE
  CONTRACTS.
    The  authority  provided  to  [counties,]  political  subdivisions and
  districts therein pursuant to this subdivision  shall  not  relieve  any
  obligation  of  such [county,] political subdivision or district therein
  to comply with any applicable minority and women-owned  business  enter-
  prise  program mandates and the preferred source requirements of section
  one hundred sixty-two of the state finance law.
    S 2. Subdivision 2 of section 104 of the  general  municipal  law,  as
  added  by  section 7 of subpart A of part C of chapter 97 of the laws of
  2011, is amended to read as follows:

    2. Notwithstanding the provisions of section one hundred three of this
  article or of any other general, special  or  local  law,  any  officer,
  board  or  agency  of a political subdivision, or of a district therein,
  may make purchases from federal general  service  administration  supply
  schedules  pursuant  to  section  211 of the federal e-government act of
  2002, P.L. 107-347 AND THE  LOCAL  PREPAREDNESS  ACQUISITION  ACT,  P.L.
  110-248,  and  pursuant to section 1122 of the national defense authori-
  zation act for fiscal year 1994, P.L. 103-160 AND  SECTION  833  OF  THE
  JOHN  WARNER  NATIONAL  DEFENSE  AUTHORIZATION ACT FOR FISCAL YEAR 2007,
  P.L. 109-364, or any successor schedules, in accordance with  procedures
  established [pursuant thereto] IN CONNECTION THEREWITH.  Prior to making
  such  purchases the officer, board or agency shall consider whether such
  purchases will result in  cost  savings  after  all  factors,  including
  charges for service, material, and delivery, have been considered.
    S  3.  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 therewith; 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.