Opinion 90-13

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 The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.

STREETS AND HIGHWAYS -- Utilities (municipal sewer project connected with reconstruction of State highway)
SEWERS AND SEWER SYSTEMS -- Highway Rights-of-Way (municipal sewer project connected with reconstruction of State highway)

HIGHWAY LAW, §10(27): The State Department of Transportation has authority, at the request and expense of a village, to install sewer pipe for a village sewer project in conjunction with a DOT road reconstruction project.

This is in reply to your letter concerning installation of sewer pipe for a village sewer project in conjunction with a planned New York State Department of Transportation (DOT) road renovation project. You have informed us that DOT would incorporate the work required for the sewer project into DOT's scheduled road project by means of a change order. While you consent to the consolidation of the two projects through the change order, you object to a "10% supervision fee" which DOT informs you must be paid to the State. You have asked that the supervision fee be waived.

While we are unaware of any specific statutory mandate of a 10% supervision fee applicable to this situation, it appears that section 10(27) of the Highway Law covers the circumstances described in your letter. Section 10(27) provides in relevant part, that the commissioner of transportation shall:

Have power, upon the request of a municipality, to perform for and at the expense of such municipality, any work of construction or reconstruction, including the removal and relocation of facilities, provided the commissioner of transportation deems it practicable to perform such work for such municipality in connection with the performance of any work of construction, reconstruction or improvement under the provisions of this chapter. Whenever the commissioner of transportation shall approve such a request of a municipality, he shall make an estimate of the cost of the work which he is requested by such municipality to perform in accordance with plans and specifications submitted to him by such municipality, which cost estimates, plans, and specifications shall be approved by the municipality in writing before the commissioner of transportation shall proceed with any such municipal work. Such municipality shall thereupon deposit with the state comptroller, who is authorized to receive and accept the same for the purposes of this subdivision, a sum equal to such estimate and subject to the draft or requisition of the commissioner of transportation.

Subdivision 27 further requires an accounting of the actual disbursements made and authorizes a refund to the municipality of surplus monies, if any, that were deposited with the State Comptroller by the municipality. Conversely, if the cost to the State is in excess of the amount deposited by the municipality, the municipality must compensate the State for the deficiency.

Although this subdivision does not contain a statutory 10% supervision fee, the Commissioner of DOT can estimate the cost of the work which he is requested to perform by a municipality. We are not advised whether the 10% fee is applied across the board in all such situations or whether a percentage is derived after consideration of the facts and circumstances on a case-by-case basis. In any event, this provision of the Highway Law authorizes the Commissioner of DOT to charge a municipality the actual cost for the work requested by the municipality. It is reasonable to expect that the administrative costs of DOT, necessarily incurred as a result of the change order, should be included within the Commissioner's estimate of the cost of the work. Whether the 10% fee is excessive or reflects the actual costs to DOT is a matter that should be discussed between the municipality and the Commissioner of DOT.

April 6, 1990
C. Harold Spicer, Mayor
Village of Remsen