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W.F.M. Contracting Company, Inc. v. Betsy Gotbaum, as Commissioner of Parks and Recreation of the City of New York
—Judgment, Supreme Court, New York County (Stuart C. Cohen, J.), entered July 19, 1993, which dismissed this CPLR article 78 proceeding challenging the determination of the Department of Parks that the selected bid was "non-responsive”, unanimously affirmed, without costs. Petitioner’s contention that it was the lowest bidder rests on the proposition that the bid of the winner was not responsive because of that bidder’s failure to attend the "pre-bid meeting”.
However, the record shows that the requirement was waived. Petitioner urges that the attendance waiver was an arbitrary violation of Procurement Policy Board (PPB) Rules (9 RCNY) § 5-01 (c) which provides for automatic rejection of nonconforming bids.
However, the Department had the power to modify the requirements (PPB Rules [9 RCNY] § 3-02 [i]; see, Matter of Cataract Disposal v Town Bd., 53 NY2d 266, 271-272), and while the Department does concede that it did not comply with PPB Rules § 3-02 (i), because it failed to set forth the matter in writing, that concession is of no avail to petitioner. Concur—Sullivan, J. P., Wallach, Kupferman and Nardelli, JJ.