Opinion
Argued January 15, 1962
Decided January 25, 1962
Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, LOUIS L. FRIEDMAN, J.
Louis E. Yavner and Robert Nelson Shiverts for Mars Associates, Inc., and another, appellants.
Max E. Greenberg for Caristo Construction Corp., appellant.
Leo A. Larkin, Corporation Counsel ( Seymour B. Quel, Leon A. Fischel, Fabian Palomino and John L. Radlein of counsel), for respondents.
While we have doubt as to the board's power permanently to disqualify appellants from bidding on Board of Education specifications and/or contracts, we do not construe the resolution in question as a permanent disqualification, and the Corporation Counsel indicated on the argument that it was not so intended.
Appellants are free at any time to renew their applications for prequalification based upon their past experience and performance with the Board of Education, and such other factors as may be appropriate.
The orders should be affirmed, without costs.
The determination permanently disqualifying petitioners from bidding on Board of Education contracts was, in my view, arbitrary and capricious for reasons stated at Special Term, and beyond the powers of the board. By affirming, the majority of the court is holding, in effect, that petitioners may be disqualified indefinitely but not permanently. That seems to me to be a distinction without a material difference. Defective work in connection with school buildings has not been laid at their doors. They have performed hundreds of millions of dollars of construction work for the Board of Education over a period of many years without fault being found respecting materials, workmanship or prices. The Board of Education even let contracts to at least one of the petitioners after the occurrence of the incident now being held to disqualify them from bidding. Neither their competence as builders nor their financial responsibility is criticized. The bids interposed on the job in question were the lowest submitted by any competitive bidder. The circumstance that they resolved the conflict resulting from tie bids in the manner in which they did, which may have been illegal, has no relation to preventing them from hereafter bidding on other jobs, which can only result in lessening the competition and increasing the costs of school construction. The orders of the Appellate Division should be reversed and the orders of Special Term reinstated.
Judges DYE, FULD, FROESSEL, BURKE and FOSTER concur with Chief Judge DESMOND; Judge VAN VOORHIS dissents in a separate opinion.
In each case: Order affirmed.