Opinion
July 6, 1972
Appeal from a judgment of the Supreme Court at Special Term, entered May 26, 1972 in Tompkins County, which adjudged Utica Sheet Metal Corp. as the lowest responsible bidder on a construction contract. Tompkins Cortland Community College solicited bids for the construction of a new college. Appellant Levi-Case Company, Inc., and respondent Utica Sheet Metal Corp., among others, submitted bids on the heating, ventilating and air-conditioning. The base bid provided for a gas heating system and, as an alternate system, bids were sought for an all electric heating system. Combining the base bid and alternate bid of Levi-Case makes it the lowest bidder whereas the lowest base bid was made by Utica Sheet Metal. Upon informal information that the bid was going to be awarded to Levi-Case, Utica Sheet Metal brought an article 78 proceeding which resulted in a favorable judgment. For several reasons the judgment must be reversed. The application is premature since no formal award has been made, Levi-Case was a necessary party in the proceeding as the alleged successful bidder ( Matter of Cestone Bros., v. Solowinski, 276 App. Div. 970), and, while the court below rendered no written decision, the record in its present form demonstrates that the petition of Utica Sheet Metal has no legal basis ( Matter of Sweet Assoc. v. Gallman, 36 A.D.2d 95, 99; Matter of Bielec Wrecking Lbr. Co. v. McMorran, 21 A.D.2d 949, 951). Judgment reversed, on the law and the facts, and petition dismissed, without costs.
Greenblott, J.P., Sweeney, Simons, Kane and Reynolds, JJ., concur.