Opinion
April 17, 1995
Appeal from the Supreme Court, Nassau County (Becker, J.).
Ordered that the judgment is affirmed, with costs.
The petitioner, ATT Communications, Inc. (hereinafter ATT), objects to a determination by the respondent Commissioner of the Department of General Services of the County of Nassau (hereinafter the Commissioner), which awarded a contract for the installation of an Inmate Telephone System (hereinafter ITS) at the Nassau County Correctional Center (hereinafter NCCC) to the respondents Tele-Pro Corporation and Value Added Communications, Inc. The County rejected ATT's bid on two grounds. The first was that ATT's bid varied materially from the terms of the formal bid proposal because the proposed contract submitted with ATT's bid contained a clause which provided for the payment of a termination charge in the event that the contract was terminated on grounds other than ATT's own material default. The second was that ATT violated one of the terms of the formal bid proposal, which prohibited bidding in connection with another bidder.
The petitioner commenced this CPLR article 78 proceeding, claiming that it was the lowest responsible bidder and that the Commissioner's decision to reject its bid was irrational, arbitrary, and capricious.
The Supreme Court denied the petition and dismissed the proceeding, finding, inter alia, that the Commissioner was justified in rejecting the petitioner's bid, as the inclusion of a termination charge represented a material variance which could not be waived by the Commissioner after submission and opening of the bids. We affirm.
The letting of public contracts is governed by General Municipal Law § 103. The statute was designed with the dual purpose of fostering honest competition, to assure that municipalities obtain the best work and supplies at the lowest possible price, and to guard against favoritism, improvidence, extravagance, fraud, and corruption (Le Cesse Bros. Contr. v Town Bd., 62 A.D.2d 28, affd 46 N.Y.2d 960). "Where the variance between the bid and the specification is material or substantial * * * the defect may not be waived and the municipality must reject the bid so that all bidders may be treated alike" (Le Cesse Bros. Contr. v Town Bd., supra, at 32; see also, Matter of Superior Hydraulic v Town Bd., 88 A.D.2d 404). A government agency has the right to determine whether a variance from bid specifications is material (Matter of AS Transp. Co. v County of Nassau, 154 A.D.2d 456).
Here, the termination clause provided ATT with protection that the other bidders were not afforded. Had the Commissioner accepted ATT's bid containing this clause, the other bidders would have been disadvantaged, as they did not know at the time that they submitted their bids that they, too, could have included such a clause in their bids. Thus, the Commissioner's determination that the termination clause was material was rational. To permit ATT to withdraw the termination clause in post-bid negotiations so that it might become the lowest responsible bidder would be unfair to the other bidders (see, Matter of Fischbach Moore v New York City Tr. Auth., 79 A.D.2d 14).
The petitioner's remaining contentions are either without merit or unpreserved for appellate review. Balletta, J.P., Rosenblatt, Ritter and Altman, JJ., concur.