Opinion
June 20, 1988
Appeal from the Supreme Court, Nassau County (Molloy, J.).
Ordered that the order and judgment is affirmed insofar as appealed from, with one bill of cost to the respondents and the intervenor-respondent appearing separately and filing separate briefs.
A town may waive a bid's technical noncompliance with the bid specifications if the defect is a mere irregularity and it is in the best interests of the town to do so (see, Le Cesse Bros. Contr. v Town Bd., 62 A.D.2d 28, affd 46 N.Y.2d 960). It may not, however, waive a variance which is material or substantial (see, Matter of Kayfield Constr. Corp. v Morris, 15 A.D.2d 373, 378; Matter of C.K. Rehner, Inc. [City of New York], 106 A.D.2d 268).
At bar, the Supreme Court determined that the objections raised by the petitioners to the bid were mere irregularities and not material variances. We agree. The petitioners have not shown that the alleged irregularities in the intervenor's bid gave it a substantial competitive advantage unavailable to the other bidders (see, Matter of Cataract Disposal v Town Bd., 77 A.D.2d 796, revd on other grounds 53 N.Y.2d 266). Moreover, because the bid submitted by the intervenor was considerably lower than the cost of the current contract, it was in the best interests of the town to waive the alleged irregularities and award the contract to the intervenor.
In light of this foregoing, the court properly concluded that the petitioners were not entitled to a preliminary injunction and dismissed the proceeding. Bracken, J.P., Eiber, Kooper and Harwood, JJ., concur.