Opn. No. ( 1976 )

HON. PAUL B. BERGINS Corporation Counsel, White Plains

We acknowledge receipt from Deputy Corporation Counsel Morton H. Zucker of a request for an opinion regarding General Municipal Law, § 102, which provides in pertinent part as follows:

"1. Notwithstanding any inconsistent provision of any general, special or local law, the officer, board or agency of any political subdivision or of any district therein, charged with the duty of preparing plans and specifications for and awarding or entering into contracts for the performance of public work shall require, as a deposit to guarantee the safe return of such plans and specifications, the payment of a fixed sum of money, not exceeding one hundred dollars for each copy thereof, by persons or corporations desiring a copy thereof. * * *"

The letter states that it is desirable that the municipality loan a copy of the plans and specifications to certain commercial publishers so that they may microfilm them to make copies thereof available to their subscribers. The advantage of this is that many more potential bidders are reached through this service than would otherwise be the case, thus producing more and better bids, an obviously beneficial result to the municipality.

The purpose of General Municipal Law, § 102, is not to restrict the number of possible bidders through restricting or limiting dissemination of plans and specifications for public work but is to eliminate distribution of costly copies of plans and specifications to persons and corporations not seriously interested in bidding on the public work.

General Municipal Law, § 102, subdivision 2, relates to the return of such deposits to unsuccessful bidders and to other persons or corporations who or which paid the deposit and obtained the plans and specifications but did not make any bid. In relation to those who paid the deposit and obtained the plans and specifications but did not make any bid, the subdivision provides:

"2. * * * Partial reimbursement may be made for the return of all other copies of the plans and specifications in good condition within thirty days following the award of the contract or the rejection of the bids covered by such plans and specifications."

You will note that the percentage of the deposit which may be returned under these circumstances is not specified but because the word "partial" is used in the statute, the whole deposit obviously can not be returned. The percentage is to be determined by the municipality.

In our opinion, plans and specifications for public work may be provided by a municipality to commercial publishers, to be duplicated by them and made available to the subscribers of their service, only in accordance with the clear mandate of the statute which requires a deposit for the plans and specifications; a partial return of the deposit may be made if the plans and specifications are returned by the commercial publishers in accordance with the statute. The actual percentage of the deposit which may be returned is to be determined by each municipality.