W.F.M. Contracting Co. v. Gotbaum

Appellate Division of the Supreme Court of New York

W.F.M. Contracting Co. v. Gotbaum

197 A.D.2d 475, 602 N.Y.S.2d 849

CourtAppellate Division of the Supreme Court of the State of New York

DecidedOctober 26, 1993

StatusPublished

This text of 197 A.D.2d 475 (W.F.M. Contracting Co. v. Gotbaum) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

W.F.M. Contracting Co. v. Gotbaum, 197 A.D.2d 475, 602 N.Y.S.2d 849 (N.Y. Ct. App. 1993).

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Opinion

—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.

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—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.

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Bluebook (online)

197 A.D.2d 475, 602 N.Y.S.2d 849, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wfm-contracting-co-v-gotbaum-nyappdiv-1993.

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