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"Best Value" Bidding Now Authorized In New York

Mar 23, 2012

Fire districts and other municipalities in New York are no longer required to award purchase contracts to the “lowest responsible bidder.”  Although public works contracts are still required to be awarded to the “lowest responsible bidder”, effective January 27, 2012, purchase contracts may now be awarded on the basis of “best value” to “a responsive and responsible bidder or offerer.”

“Best value” means “the basis for awarding contracts for services to the offerer which optimizes quality, cost and efficiency, among responsive and responsible offerers.”  N.Y. State Fin. Law § 163(1)(j).  “Such basis shall reflect, wherever possible, objective and quantifiable analysis.”  Id.

The legislature also made some minor changes to the publication requirements applicable to the public bidding process.  It is now clear that the identity of all offerers must be publicly disclosed at the time of the bid opening.  In addition to stating when and where all bids will be received and when they will be publicly opened and read, advertisements for bids should now also specifically state that the identity of all offerers will indeed be publicly disclosed at the time of bid opening.

Although the “best value” will often be synonymous with the “lowest bid,” the shift in terminology from “lowest responsible bidder” to “best value” awards for purchase contracts provides municipalities with greater flexibility to carry out their fiduciary obligations to the taxpayers they serve, ensuring that purchases are carried out in a manner which optimizes quality, cost and efficiency.

Before a municipality can take advantage of the “best value” standard for awarding purchase contracts, the “best value” standard must first be authorized by local law, or in the case of a district corporation, school district or board of cooperative educational services, by rule, regulation or resolution adopted at a public meeting.

If you would like to schedule a consultation to discuss how these amendments may impact your procurement policies or other public bidding issues, please feel free to contact Peter Weishaar at pweishaar@mccmlaw.com or (585) 512-3542. Mr. Weishaar represents several fire districts in the Greater Rochester Area. His municipal practice also includes the ongoing representation of planning and zoning boards, as well as the representation of municipalities as special counsel in litigation matters.

This publication is intended as an information source for clients, prospective clients, and colleagues and constitutes attorney advertising. The content should not be considered legal advice and readers should not act upon information in this publication without individualized professional counsel.