Decision No. 14,248
Appeal of WNI SALES from a determination of the Board of Education of the Port Washington Union Free School District regarding a contract award.
Decision No. 14,248
(November 18, 1999)
Ehrlich, Frazer & Feldman, attorneys for respondent, James H. Pyun, Esq., of counsel
MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Port Washington Union Free School District ("respondent") rejecting its bid and awarding a contract for the purchase of computer workstations to Micro Computer Products & Service, Inc. ("MCPS"). The appeal must be dismissed.
On or about May 22, 1998, respondent solicited bids for the purchase of computer workstations for the district’s schools. The bid specifications requested base bids on both a 300 MHz and 350 MHz Pentium computer workstation with a 15-inch monitor, as well as a figure to upgrade each workstation to a 17-inch monitor. The bids were opened on or about June 10, 1998. Petitioner submitted a base bid of $1,633 for the 300 MHz unit and $1,733 for the 350 MHz unit, and on each, included an alternate bid of "1% below the lowest responsible bid" received by the district. Petitioner included this same alternate bid on its figures for the 17-inch monitor upgrade. Petitioner did not specify the manufacturer and model of the components it intended to supply, as required by the bid specifications. MCPS submitted base bids of $1,275.50 and $1,531.50 on the 300 MHz and 350 MHz units, respectively, and included figures for the 17-inch monitor upgrade, as well as the required component information.
On June 11, 1998, petitioner’s representative requested and was permitted to review the bids received by the district in response to its solicitation. By letter the following day, petitioner belatedly attempted to provide some of the component information missing from its bid.
Respondent rejected petitioner’s bid because it failed to comply with the bid specifications, and upon determining that MCPS was the lowest responsible bidder on the 350 MHz unit, awarded it the contract. This appeal ensued. Petitioner’s request for interim relief was denied on August 6, 1998.
Although the petition is unclear, it appears that petitioner challenges respondent’s specification requirements for the hard drive component and its decision to reject petitioner’s bid. Petitioner also contends that the bids of other unspecified bidders contain "misquotes". For relief, petitioner requests that I declare it the lowest responsible bidder. Petitioner names only the school district as a respondent.
Respondent raises a number of procedural objections, contending that the petition is unverified, petitioner has failed to name the successful bidder as a party and the appeal is, in part, moot. As to the merits, respondent asserts that it properly rejected petitioner’s bid because it is indefinite and fails to comply with the bid specifications. In addition, respondent contends that its decision to award the contract to MCPS was in all respects proper.
Preliminarily, I note that although respondent alleges that the petition is unverified, the copy of the petition filed with my Office of Counsel is, in fact, verified. Although petitioner should have included a copy of the verification in the papers served on respondent, I will excuse this omission because petitioner is not represented by counsel and because the copy on file is verified.
A party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner is a necessary party and must be joined as such (Appeal of Neufang, 38 Ed Dept Rep 567, Decision No. 14,095; Appeal of Adams, 38 id. 549, Decision No. 14,091). The Commissioner’s regulations explicitly require a petitioner to join the successful bidder as a respondent in a challenge to the award of a contract pursuant to the General Municipal Law:
If an appeal involves the award of a contract pursuant to article 5-A of the General Municipal Law or pursuant to subdivision 14 of section 305 of the Education Law, and a party other than the appellant has been designated as the successful bidder or has been awarded a contract, such successful bidder must be joined as a respondent and must be served with a copy of the petition… (8 NYCRR "275.8[c])
Because petitioner challenges the award of a publicly bid contract, it was required to join the successful bidder as a necessary party. Petitioner’s failure to do so warrants dismissal of the appeal.
Even if this appeal were not dismissed on procedural grounds, I would dismiss it on the merits. A board of education in requesting bids may require information concerning the brands of materials and supplies to be used in the performance of the contract (see, Le Cesse Bros. v. Town Board, 62 AD2d 28, aff’d, 46 NY2d 960; Matter of Wichard, 1 Ed Dept Rep 632, Decision No. 6,863). The failure to include such information is a material defect that requires rejection of the bid (Le Cesse Bros. v. Town Board, supra). Moreover, a bidder may not supply essential missing information after the bids have been opened (Le Cesse Bros. v. Town Board, supra; Matter of Glen Truck Sales & Service, Inc. v. Sirignano, 31 Misc. 2d 1027; Matter of Rockland Bus Lines, Inc., 15 Ed Dept Rep 40, Decision No. 9,067). The record reflects that petitioner’s bid failed to specify the manufacturer and model number of the components it intended to supply to the district. After the bids were opened, petitioner improperly attempted to supply some of the missing information. Under these circumstances, I find that respondent properly rejected petitioner’s bid.
Moreover, to be legally sufficient, a bid must be definite and certain (S.S.I. Investors Ltd v. Korea Tungsten Mining Co., Ltd., et al., 55 NY2d 935; Appeals of World Network International Services, Inc., 38 Ed Dept Rep 774, Decision No. 14,140). For both the 300 and 350 MHz units, petitioner submitted a fixed-price bid as well as an alternate bid of "1% below" the lowest bid received by the district. "[A] submission by one bidder of a bid dependent for its definition on the bids of others is invalid…" (S.S.I. Investors Ltd v. Korea Tungsten Mining Co., Ltd., et al., supra; Appeals of World Network International Services, Inc., supra). Petitioner’s bid is similar to one rejected by the Court of Appeals in S.S.I. Investors Ltd., supra, (bid of "[o]ne dollar ($1.00) more than the highest bidding price you have received for the above property" for purchase of real estate held invalid). Petitioner’s bid, standing alone, was indefinite and meaningless without reference to the bids of other bidders, and was therefore illegal (S.S.I. Investors Ltd v. Korea Tungsten Mining Co., Ltd., et al., supra; Appeals of World Network International Services, Inc., supra). Accordingly, respondent properly rejected it.
Nor has petitioner demonstrated that any aspect of the bidding process was improper. In an appeal to the Commissioner, the petitioner has the burden of establishing the facts upon which he seeks relief (8 NYCRR "275.10) and the burden of demonstrating a clear legal right to the relief requested (Appeal of Shufelt, 38 Ed Dept Rep 274, Decision No. 14,032). A school district letting a contract may fix proper standards or limitations in its proposal which bidders are obliged to observe (see, Edenwald Contracting, Co., Inc., v. City of New York, 86 Misc 2d 711, aff’d 47 AD2d 610). Petitioner has failed to demonstrate that respondent’s specifications or its decision to award the contract to MCPS were in any respect improper.
In light of this disposition, I will not address the parties’ remaining contentions.
THE APPEAL IS DISMISSED.
END OF FILE