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 The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.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

GENERAL MUNICIPAL LAW, §§103, 104-b: A fire district is not required to advertise for sealed bids to contract for the services of physicians to give physicals to volunteer firefighters of the fire district fire department. The contracts will, however, be subject to the district's procurement policies and procedures.

You ask whether a fire district is required to advertise for sealed bids to engage the services of physicians to give physicals to volunteer firefighters of the fire district fire department.

This Office has previously expressed the opinion that a fire district board of fire commissioners may require that volunteer firefighters of the fire department undergo physicals at district expense (1982 Opns St Comp No. 82-204, p 259; 21 Opns St Comp, 1965, p 516; 19 Opns St Comp, 1963, p 430; cf., e.g., 29 CFR 1910.134[b][10], 1910.156[b][2], pertaining to federal Occupational, Safety or Health Administration requirements). In this connection, the fire district may enter into one or more contracts with physicians to perform the physical exams (Town Law, §176[9]).

As to whether a contract for the services of one or more physicians to perform physicals is subject to competitive bidding, General Municipal Law, §103 requires that, except as otherwise expressly provided by the State Legislature or by local law adopted prior to September 1, 1953, all contracts for public work of a political subdivision or district therein involving an expenditure of more than $20,000, and all purchase contracts of a political subdivision or district therein involving an expenditure of more than $10,000, shall be awarded to the lowest responsible bidder after public advertisement in the manner prescribed in that section. In addition to statutory exceptions from competitive bidding authorized by the State Legislature (see, e.g., General Municipal Law, §§103[4], 104), there are also several well-established common law exceptions to the requirements of section 103.

One such common law exception is for contracts for professional services (see, e.g., People ex rel. Smith v Flagg, 17 NY 584). Generally, professional services which fall within this exception involve the application of specialized expertise, the use of professional judgment, or a high degree of creativity in the performance of the contract (see People ex rel. Smith, supra; Trane Co. v County of Broome, 76 AD2d 1015, 429 NYS2d 487; Hurd v Erie County, 34 AD2d 289, 310 NYS2d 953; see also 1988 Opns St Comp, No. 88-35, p 65). The courts have also noted that professional service contracts often involve a relationship of personal trust and confidence (see, e.g., Lynd v Heffernan, 286 AD 597, 146 NYS2d 113 mot for lv to app granted 1 NY2d 641, mot to withdraw app granted 1 NY2d 919, 154 NYS2d 976). The primary rationale for this exception is that these services are not the type of "public work" which may be properly the subject of general competition based solely upon compliance with objective, uniform standards set forth in specifications, with an award to the lowest responsible bidder. Therefore, it would be an unreasonable construction of the bidding statute to apply it to these services (see People ex rel. Smith, supra, 17 NY, at p 589; 1A Antieau, Municipal Corporation Law, §10.33).

It has been long recognized that the services of a physician fall within the professional services exception (People ex rel. Smith, supra; 1A Antieau, Municipal Corporation Law, §10.33). Therefore, the fire district is not required to advertise for sealed bids to engage the services of physicians to perform the physical exams. We note, however, that the governing board of each political subdivision is required to adopt written internal policies and procedures governing all procurements of goods and services not required by law to be made pursuant to competitive bidding requirements, including professional services (General Municipal Law, §104-b). At a minimum, these policies and procedures must provide, inter alia, that when competitive bidding is not required by law, alternative proposals or quotations will be secured by requests for proposals, written or verbal quotations or any other method of procurement which furthers the statutory purposes of new section 104-b except in very limited circumstances authorized by General Municipal Law, §104-b (General Municipal Law, §104-b[2][b],[f]). Specifically, the policies and procedures may set forth those circumstances when, or types of procurements for which, the solicitation of alternative proposals or quotations will not be in the best interest of the political subdivision (General Municipal Law, §104-b[2][f]). Accordingly, even though the professional services exception is applicable here, the contract(s) will be subject to the district's procurement policies and procedures.

February 8, 1993
Edward Zimmer, Chief
Vestal Fire District