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Abstract

The general requirement that contracts for public works be let pursuant to advertisements for bids to the lowest responsible bidder has long been the law in New York and other jurisdictions. After determining that the mandatory statutory pronouncements apply to a particular contract, there is an entire "second level" problem of the propriety of bids and the awarding of the contract pursuant thereto. Suppose a contractor has defaulted or abandoned a valid public works contract. Must the public entity now readvertise for bids for the completion of the work? The answer in most instances is "no," and this raises the disconcerting specter of a single unsupervised public official having the power to let potentially huge contracts. Of course the size of the relet contract is not the prime consideration. The key point is that the laboriously developed bidding laws can be circumvented in default and abandonment situations, resulting in favortism for the contractor and a bad bargain for the taxpayers. However, the other side of the question is equally vexing. An abandoned or defaulted contract may require immediate continuation or remedial action. If such situations do not fit into the public emergency exception, must the public body expend the time, effort, and expense to analyze the supplies needed or work remaining, formulate proposed contracts, and advertise for bids? This article will analyse this difficulty in the context of the confusing and conflicting status of the legal requirements in New York for the reletting of abandoned or defaulted work.

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