Opinion 90-18

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 The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.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 Competitive Bidding (purchase of medical supplies)

GENERAL MUNICIPAL LAW, §103: There is no exception to the competitive bidding requirements of this section based solely on the fact that the commodities purchased are medical supplies.

You ask whether the purchase of medical supplies by a county department of health is subject to the competitive bidding requirements of General Municipal Law, §§103, 103-a, 103-b and 103-c.

County Law, §408-a provides that every officer, board or agency of a county shall let all purchase contracts to the lowest responsible bidder after advertising for bids where so required by General Municipal Law, §103. General Municipal Law, §103(1) provides, with certain exceptions, that:

... all contracts for public work involving an expenditure of more than seven thousand dollars and all purchase contracts involving an expenditure of more than five thousand dollars, shall be awarded by the appropriate officer, board or agency of a political subdivision ... to the lowest responsible bidder furnishing the required security after advertisement for sealed bids in the manner provided by this section ....

For purposes of section 103, the term "purchase contracts" has been held to apply to contracts for the acquisition of goods and commodities (see, e.g., Exley v Village of Endicott, 74 AD2d 96, 427 NYS2d 68, mod on other grnds 51 NY2d 426, 434 NYS2d 922; 1988 Opns St Comp No. 88-35, p 65; see General Municipal Law, §100-a). Therefore, unless any of the exceptions to the competitive bidding requirements of section 103 applies, the purchase of medical supplies by a county is subject to those requirements.

There are several statutory and common law exceptions which may apply, in particular circumstances, to the purchase of medical supplies. For example, General Municipal Law, §103(4) provides that, in the case of a public emergency as described in that subdivision, a contract for public work or the purchase of supplies, materials or equipment may be let without compliance with the competitive bidding requirements of section 103.

General Municipal Law, §104 provides an exception for purchases of materials, equipment and supplies through the New York State Office of General Services, and General Municipal Law, §103(8) provides that "municipal hospitals" may purchase goods, supplies and services under joint purchase contracts and arrangements entered into pursuant to Public Health Law, §2803-a without compliance with section 103 (see 1989 Opns St Comp No. 89-2, p 6). Also, it has been held that services of a professional licensed pharmacist in supplying unit dosage medication services to a county nursing facility are "professional services" exempt from the competitive bidding requirements (Goldwin-Kent v County of Broome, 107 Misc 2d 722, 435 NYS2d 1011; see also 34 Opns St Comp, 1978, p 85). There is, however, no general exception to the bidding requirements for purchases based solely on the fact that the commodities purchased are medical supplies (1981 Opns St Comp No. 81-109, p 111; see 1979 Opns St Comp No. 79-721, unreported, distinguishing the purchase of drugs in bulk from the acquisition of services of a pharmacist).

We also note that the application of competitive bidding statutes may not be avoided by artificially breaking up contracts into lesser agreements for below the monetary threshold of section 103 (see e.g., Walton v Mayor, 26 App Div 76, 49 NYS 615; 1A Antieau, Municipal Corporation Law, §10.31; 1987 Opns St Comp No. 87-4, p 6). Therefore, it is our opinion that, other than those particular purchases of medical supplies which fall within one of the established exceptions to competitive bidding, competitive bidding is required if it is known or can be reasonably anticipated that the county will expend, in the aggregate, in excess of $5,000 during the fiscal year for the same or similar items of medical supplies (see Opn No. 87-4, supra).

Inasmuch as your letter makes reference to General Municipal Law, §§103-a, 103-b and 103-c, we note that sections 103-a and 103-b, which relate to the disqualification from contracting with a municipal corporation for refusal to testify before a grand jury, to answer relevant questions or to waive immunity against prosecution, have been declared unconstitutional as violative of the privilege against self-incrimination contained in the 5th amendment to the United States Constitution (Lefkowitz v Turley, 414 US 70, 94 S Ct 316, 38 L ed 2d 274; People v Avant, 33 NY2d 265, 352 NYS2d 161).

June 1, 1990
Geoffrey E. Chanin, Esq., Assistant County Attorney
County of Orange