Let’s start by looking at the town’s Procurement Policy, which by the way is almost exactly what the NYS Comptroller says is required by General Municipal Law 104-B. I say “almost exactly” because there is one difference that will be mentioned later in this blog.
The town’s procurement policy states:
COMPETITIVE BIDDINGThe work in question is definitely not being done under New York State Contract, Oneida County Contract, from New York State Industries for the Blind or New York State Correctional Institutes. Nor could excavating work be considered professional services. Excavating would definitely be “contracts for public works”. In fact, the town’s policy makes it quite clear that we are talking about a Public Works Contract with work over $35,000 requiring competitive bidding:
The thresholds under General Municipal Law, 103, governing contracts of Political Subdivisions requiring the competitive bidding process are as follows:
Contracts for Public Works $35,000 or more.
Purchase Contracts $20,000 or more.
The only exceptions to these guidelines are items/services that are obtained under New York State Contract, Oneida County Contract, from New York State Industries for the Blind or New York State Correctional Institutes are less than $20,000 in total for purchase contracts, less than $35,000 in total for Public Works Contracts, are professional services, or are emergency purchases.
“The term Public Works Contract would apply to those projects/commodities involving labor or both labor and material. An example of this would be construction, paving repair contracts, equipment use, anything that would require repetitive use throughout the year or major construction.”Could it be that in this case the dollar amount expended was below the threshold for Contracts for Public Works in a given year?
To find out, a FOIL request was sent to the town clerk on July 16, 2014 asking for all invoices received to date from the contractor in question.
We received invoices totaling over $158,000 for the months of September, October, and November 2013. To be sure, paying out over $158,000 in a three month period is clearly over the $35,000 threshold.
Furthermore, our town’s own procurement policy states (and the state comptroller agrees):
In determining the necessity for competitive bidding, the aggregate (accumulative) cost of an item or commodity being purchased in a fiscal year (New Hartford – January 1st through December 31st) must be considered. It is prohibited to artificially divide purchases to satisfy threshold amounts.Interesting, because according to the spiel given by the town supervisor at a recent town board meeting, you can bet that this contractor will be billing the town for considerably more than $35,000 to cover the additional work he has been hired to do in 2014 to build the retention pond in Woodberry.
Could it be that the Town Supervisor is hiring this contractor in an “emergency” situation? The town’s procurement policy also addresses those situations. According to town policy, an emergency is deemed to be:
“Only those situations that require immediate action, apart from normal procedures, would classify as "emergency".Hmm…don’t recall any emergency situations being declared by the town board in 2013 or 2014 so guess the work probably doesn’t qualify as an emergency.
This would include situations that would be threatening to life and property due to fire, explosion, flood, electrical failure or extreme weather and immediate action is required. Also, when an emergency vehicle is involved and repairs are required immediately, to enable the vehicle to be put back in service.”
The town’s procurement policy continues….
“Unless an emergency meeting is required, at the next Town Board meeting, the Supervisor, Director of Finance and responsible Department Head will apprise the Board of the situation, what was done and what needs to be done. The situation can only be declared "emergency" by Town Board resolution. This will allow necessary repairs to be made.
A permanent file for each emergency will be maintained of all memos, correspondence, police reports (if required), resolutions and vouchers in the Finance Department.
Any vouchers/expenses involved with the emergency will have to have authorization (signature) of the Town Supervisor prior to being processed. In all cases, reimbursement is sought from insurance company. Any legal consultation required will be obtained by and go through the Town Director of Finance or Town Supervisor's office.”
Finally, let’s address the one difference between the town’s policy and the opinion of the State Comptroller.
NYS Highway Law 143 says:
§ 143. Town superintendents may hire machinery. The town superintendent may rent or hire machinery or equipment at a rate to be approved by the town board. The expense thereof shall be paid out of moneys provided for the repair and improvement of highways.However, one must also look at General Municipal Law 104 PUBLIC CONTRACTS 104-B, Procurement policies and procedures, which states:
1. Goods and services which are not required by law to be procured by political subdivisions or any districts therein pursuant to competitive bidding must be procured in a manner so as to assure the prudent and economical use of public moneys in the best interests of the taxpayers of the political subdivision or district, to facilitate the acquisition of goods and services of maximum quality at the lowest possible cost under the circumstances, and to guard against favoritism, improvidence, extravagance, fraud and corruption. To further these objectives, the governing board of every political subdivision and any district therein, by resolution, shall adopt internal policies and procedures governing all procurements of goods and services which are not required to be made pursuant to the competitive bidding (emphasis added) requirements of section one hundred three of this article or of any other general, special or local law.The State Comptroller in his Opinion 92-43 interprets General Municipal Law 104-B to require that along with the town board setting the hourly rate, the town’s procurement policy must set forth guidelines on when and how the highway superintendent can hire machinery under Highway Law 143.
The Comptroller states in part:
“Since the policies and procedures required by section 104-b must govern "all" procurements of goods and services for which competitive bidding is not required, it is clear that procurements made by the town superintendent of highways are required to be covered under the town board's policies and procedures. We further note that, as an officer involved in the procurement process, the board must solicit comments concerning the policies and procedures from the superintendent in accordance with General Municipal Law, §104-b(3).”New Hartford’s Procurement Policy, unlike several other town’s Procurement Policies, is silent on Highway Law 143 and we would venture to guess that the highway superintendent was never consulted on the Procurement Policy when it was updated last year.
Furthermore, when the excavating work was started in September 2013, the town board had not even set an hourly rate as required by Highway Law 143 so one can safely say that Highway Law 143 can be ruled out as a legitimate reason for the work that was done last Fall.
What more is there to say? It would appear that, for now, the reason for the work being done by one contractor absent any competitive bidding will have to remain an unsolved mystery for taxpayers in the Town of New Hartford. Guess anyone wanting to know the “real” reason(s) why there was no competitive bidding for work totaling thousands of dollars will have to speak directly to the Town Supervisor, who along with the Finance Director, updated the town’s procurement policy in July 2013.