A New York Court’s Decision to Remedy the Practice
Earl R. Hall, Executive Director – Syracuse Builders Exchange
Over the past few years, some public owners have taken the position that piggybacking is permissible for public work construction projects, capital improvements and other public works contracts associated with conventional construction projects.
To provide context, piggybacking is a permissible means for municipalities or other public entities (i.e., public schools) to purchase “apparatus, materials, equipment or supplies, or to contract for services related to the installation, maintenance or repair of apparatus, materials, equipment, and supplies…” In short, it may be proper for the purchase of “things,” but not construction. Utilizing “piggybacking” in lieu of the competitive bidding process is permissible only if certain conditions have been met; however, none of those conditions include public works construction or capital improvement projects to infrastructure or buildings.
Public works, public works contracts and public works projects include construction or repair projects undertaken by the public owner or municipality on their infrastructure or building project. Public works construction projects are subject to New York State’s competitive bidding laws consistent with General Municipal Law (GML) Article 5-A. Article 5-A includes Wicks Law (Section 101) and competitive bidding of public works construction projects (Section 103).
Piggybacking is intended for the purchase of specific classes of “things,” such as apparatus, materials, equipment, and supplies, as well as service contracts related to those specific things. It does not include public works, public works contracts or public works projects, which the court has interpreted to mean “construction” or “repair projects” undertaken by municipalities which are clearly distinct in nature and scope from apparatus, materials, equipment, and supplies.
A recent case against the Board of Education of the Maine-Endwell Central School District; the Maine Endwell Central School District, Judge Oliver N. Blaise, III determined such piggybacking application and usage on a $64 million capital improvement project for the school district’s various buildings and facilities was impermissible. The court determined that, in this case, the contract to be piggybacked should have been let in a manner consistent with GML 103, and requiring sealed bid, public advertising of projects and awarded to the lowest responsive and responsible bidder. Finally, the court determined that the use of the word “vendor” for piggybacking purposes means suppliers of apparatus, material, equipment, supplies, and services related thereto, as opposed to ‘contractors’ seeking to erect, construct, reconstruct or alter buildings…”
The construction industry, including contractors throughout New York State, remain optimistic that future misapplications of the piggybacking provision by public owners will be diminished as a result of this court 2025 decision, as New York’s public bidding laws defined in GML 103 cannot be circumvented on public works construction projects which the courts have defined.
Source: Daniel J. Lynch, Inc.; Kelly Lynch Individually, and as a Taxpayer; Slavik & Co. Inc.; George J. Slavik, Jr. Individually and as Taxpayer; Andrew R Mancini Associates, Inc.; Louis N. Picciano & Son, Inc. and William H. Lane Incorporated against Board of Education of the Maine-Endwell Central School District; the Maine Endwell Central School District; and Smith Site Development. Broome County Clerk February 13, 2025.