Client Alert: COVID-19 and Public Bidding Procedures
COVID-19 has forced us to change the way municipalities go about public bidding. Here are three key points to consider.
I. Is a Bid Required?
Some emergency procurements do not require competitive bidding. N.Y. General Municipal Law § 103(4) provides that “in the case of a public emergency arising out of an accident or other unforeseen occurrence or condition whereby circumstances affecting public buildings, public property or the life, health, safety or property of the inhabitants of a political subdivision or district therein, require immediate action which cannot await competitive bidding or competitive offering, contracts for public work or the purchase of supplies, material or equipment may be let by the appropriate officer, board or agency of a political subdivision or district therein.” What constitutes an appropriate emergency situation is left to the local municipality.
In Executive Order 202, Governor Cuomo did allow schools to procure and use cleaning and maintenance products in schools without following bidding requirements.
II. Submission of Bids
In light of the COVID-19 pandemic, electronic submission of bid documents may be a preferable option. However, such a manner of submission it is only authorized under N.Y. General Municipal Law § 103 if a municipality’s governing board has authorized it.
Also, with the exception of “technology contracts,” the submission of bids or offers in electronic format may not be required as the sole method, and paper bids or offers must still be accepted.
Any method used to receive electronic bids or offers must also comply with article three of the State Technology Law (the “Electronic Signatures and Records Act”), and related regulations. Also, the method used must, at a minimum:
- Document the time and date of receipt of the bids or offers received electronically,
- Authenticate the identity of the sender,
- Ensure the security of the information transmitted and
- Ensure the confidentiality of the bid or offer until the time and date established for the opening of bids or offers.
III. Opening of Bids
Historically, all public bids received by a municipality had to be opened and read publicly at the time and place specified in the advertisement for the bid. Not anymore.
Under Executive Order 202.11, bid openings do not have to be open to the public. Section 103(2) of the General Municipal Law, Section 144(1) of the State Finance Law, Section 376(8)(a) of the Education Law, and Section 359(1) of the Public Authorities Law were modified by the Governor to allow the non-public opening of bids; provided, however, that, where practical, municipalities must record or live stream bid openings so that the public has the opportunity to view the openings.
So, for bids that have already been advertised, municipalities should provide a notice/addendum that in-person attendance at the bid opening will not be allowed and specify the means that will be used to allow public viewing.
For future bids, municipalities should be noting that in-person attendance at bid opening will not be allowed, and provide information on how the opening can be viewed by the public.