George E. Gibson Co. v. City of New York

Townley, J. Plaintiff and the Daniel J. Rice Company were bidders for a contract to furnish heating, steam service, ventilating work and refrigeration for the Harlem Hospital. They each bid the same amount. The instruction governing bidders pursuant to which the bids were submitted provided that “ each bidder shall submit, when required, evidence that will prove to the satisfaction of the head of the department that he is prepared to furnish the necessary materials and possesses the necessary plant to complete all the work in the manner and time herein specified.” After the submission of the bids an investigation was conducted by the assistant chief engineer of the department of hospitals and by the firm of architects in charge of the work. As a result of such investí [284] gation reports and recommendations were made to the commissioner of hospitals by the assistant chief engineer and by the architects that the plaintiff did not have the plant required to complete the work in accordance with the specifications. Its bid was rejected and the contract awarded to the Daniel J. Rice Company. The plaintiff brought this action and applied for a temporary injunction restraining the defendant from proceeding with the contract with the Daniel J. Rice Company. The report of the architects and assistant chief engineer clearly showed that the plaintiff did not have the necessary plant and equipment to comply with the contract and was depending- almost entirely upon purchases from others to secure the necessary material when required. The plant of the Daniel J. Rice Company, however, was shown to be a modern, up to date, fully equipped plant and capable of meeting all the requirements of the contract. In concluding his report, the assistant chief engineer said: “ In view of the intricate nature of the work of tying in the new power plant while the old one is kept in operation, it is very important in order to prevent discontinuance of service, that the contractor depend on his own plant for quick service in the preparation of materials rather than on that of others; therefore, it is respectfully recommended that the award of the contract be made to D. J. Rlce “ (Signed) F. G. LEMKE.” The record clearly shows that the defendants in rejecting plaintiff’s bid acted in entire good faith and for reasons which amply justified the position taken by them. It was of the utmost importance that discontinuance of the main service should be prevented during the conduct of the work. All the terms of the bidding were observed and the contract was properly awarded. The application for a temporary injunction in this action was denied on November 19, 1931. This appeal was noticed for argument June 17, 1932, nearly seven months after the order was entered and six months after issue had been joined in the action. This inexcusable delay in the prosecution of the appeal would alone justify an affirmance of the order. The order appealed from should be affirmed, with ten dollars costs and disbursements. Finch, P. J„ Merrell and McAvoy, JJ., concur; Martin, J., dissents and votes to reverse and grant the motion.