Fitzpatrick v. County of Suffolk

— In a proceeding pursuant article -78 of fhe CPLR to annul a determination , of respondents other. than-'Terminal Construction Corp. and hereafter together .referred ter as “the County*”, which rejected petitioners’ bid upon. General Construction Contract No. I-5G for the water pollution control plant, of Southwest Sew.er District JST°- . 3 of. Suffolk County as- nonresponsive and . equivocal and, awarded the contract to respondent Terminal; Construction Corp. as the'lowest responsive bidder, the County appeals from a "judgment of the Supreme Court, County of Suffolk, entered"August 23,, 1974 after, a nonjury trial, which annulled said, contract award and petitioners and respon-" dent Terminal s Construction-Corp, áp'peál. from* stated separate portions of the judgment.- Judgment reversed on the law,." with costs jointly to appellants-respondents appearing' separately' and" filing separate briefs,Lagainst respond dents-appellants, proceeding '-dismissed on the • merits- -and determination confirmed.. .-The trial" court in' its decision sua, sponte declared the" entire bidding - procedure Invalid" because of an addendum (No. 3) to the-original bid instruc- ." tians which eliminated certain contingent items from the low bid computation. . By- this- addendum the County reduced the previously stated quantities of’ certain, contingent" -and1 changed work • to zero, thus. eliminating them from the low hid computation. .We hold"that this was not contrary, .to the letter or spirit Of section 104 of the General Municipal Law. It. wa’s not contrary to the letter -because it could- not be known in advance whether any. of the .work would be required. It was not contrary to the spirit -because it could, not' be deemed as encouraging'" favoritism or- corruption (cf; Matter of Signacon Controls v. Mulroy, 32 N Y 2d 410, 414), especially since these items, as • "quantified in the original bid instructions, .were JL .minuscule portion of the entire, job." Nor did such exclusion from computation of" the low bid-prevent" the obtaining of the -“lowest," price - practicable” (p. 414) either of the" "entire. job .in general or'of the contingent -items in. particular. .The County’s issuance of Addendum No. 3 followed the .request therefpr of the General .■ Contractors Association of New - York and was.based on the County’s conclusion, as set forth' in an affidavit appended to the answer of the County in . this proceeding, that the contingency of fhe items made them “ perhaps not applicable [and] might unnecessarily inflate the base hid ”; the County sought to avoid an award tomne,whose hid was not the lowest for the "work known . . to be required. ' This, conclusion .was not arbitrar}' or capricious; it was a" reasonable method' of obtaining the “lowest price practicable” for the entire - job;- The bidding instructions retáined the requirement" that unit prices- for the contingent items be" quoted; • they further Stated that ifHthe County -deemed - the prices to be unreasonable, the County could at' its option., reject them (Contract, § 3A, par.. 30, p. JL3). Exercise' of this option would make "applicable the provisions in general for the negotiating of prices' for extra work (Contract, i§ 2B, subd. VII, par. 7, p. 36; 'cf. 1957 - Atty. Gen. [Inf. Opns.] 108-109). The County’s rejection of petitioners’ bid as nonresponsive and equivocal was within the ambit "of ■ its, discretion, since, it was reasonably and plausibly based on the deficienciesvand errors- of petitioners’ -bid (Matter of Kaelber v. S'ajim, 281 App. Div. 980; Matter of Zara Cdnfr. Co. v. Cohen, 45 Mise.2‘d 497, 499, áffd. 23 A D 2d VÍ8).. Latham, Acting P. Jt, Christ, Benjamin; Munder and Shapiro, JJ., concur. ,