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 The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.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 Not Requiring Bidding (purchase of used equipment of another municipality at auction) -- Contracts Requiring Bidding (purchase of used equipment from private entity)

GENERAL MUNICIPAL LAW, §103(6): A municipality may purchase surplus or second-hand equipment from another municipality of this State at an auction pursuant to the exception contained in General Municipal Law, §103(6). However, this exception does not apply to purchases from private sources.

You ask whether second-hand equipment of a private entity or a municipality of this State may be purchased by a county at an auction without contravening the competitive bidding requirements of General Municipal Law, §103.

General Municipal Law, §103(1) provides that, except as expressly provided by the State Legislature or by local law adopted prior to September 1, 1953, all purchase contracts involving an expenditure in excess of the monetary threshold fixed in section 103(1) 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 prescribed by section 103. Since section 103(1) does not distinguish between purchases of new or used equipment, it is the opinion of this Office that the purchase of both new and used equipment is subject to the competitive bidding requirements contained therein unless the particular purchase in question is exempted from these requirements by another provision of law.

One of the exceptions to the above competitive bidding requirements is found in subdivision 6 of section 103. It provides as follows:

Surplus and second-hand supplies, material or equipment may be purchased without competitive bidding from the federal government, the state of New York or from any other political subdivision, district or public benefit corporation.

By its express terms, subdivision 6 applies only to purchases from the governmental entities listed therein and, therefore, does not provide an exception for purchases of used equipment from private sources (33 Opns St Comp, 1977, p 107; 17 Opns St Comp, 1961, p 135; 14 Opns St Comp, 1958, p 439). Further, there is no other similar exception for purchases of used equipment from private entities.

Therefore, it is our opinion that, pursuant to General Municipal Law, §103(6), a county may purchase second-hand equipment from another municipality of this State at an auction without contravening the competitive bidding requirements of section 103. However, since subdivision 6 does not apply to purchases of second-hand equipment from private sources, a county may not purchase equipment from private sources at an auction unless some other exception to competitive bidding applies in a particular instance (see, e.g., General Municipal Law, §103[4], prescribing an exception for emergency procurements).

April 24, 1989
James E. Konstanty, Esq., County Attorney
County of Otsego