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Decision No. 12,918

Appeal of EASTMAN KODAK COMPANY from a determination of the Board of Education of the Fairport Central School District awarding a contract to Xerox Corporation.

Decision No. 12,918

(April 21, 1993)

Hallenbeck, Lascell & Pineo, Esqs., attorneys for petitioner, Andrey P. Peartree, Esq., of counsel

Harris, Beach & Wilcox, Esqs., attorneys for respondent board, Bruce L. Maas, Esq., of counsel

Boylan, Brown, Code, Fowler, Randall & Wilson, Esqs., attorneys for respondent Xerox, James E. Metzler, Esq., of counsel


SOBOL, Commissioner.--Petitioner appeals from respondent board's award of a purchase contract to respondent Xerox. The appeal must be dismissed.

In April 1992, respondent board advertised for bids to replace six copiers. Bids were received from petitioner, Xerox and two other vendors. On May 19, 1992, respondent board awarded the contract to Xerox. Xerox's bid offered to replace the old copiers with six Xerox model 1075 copiers at a cost of $335,384.80. Petitioner's bid, which was rejected, offered three model 225 AF and three model 225 S copiers at a cost of $454,721.25. The difference between the two bids was approximately $119,000.

Petitioner was informed of the award of the contract to Xerox and the rejection of its own bid on June 1, 1992 and requested a meeting with respondent board officials. Petitioner's sale representative met with the school district's purchasing agent and business manager and voiced concerns about the awarding of the contract to Xerox. In a letter dated June 5, 1992 petitioner expressed its belief that Xerox's bid did not meet bid specifications and requested that the contract be awarded to it. By letter dated June 12, 1992, respondent board notified petitioner that it felt the contract with Xerox was proper.

Petitioner's representatives again wrote the school district on June 17, 1992 to request that the Xerox contract be annulled. In a letter dated June 29, 1992, respondent board again notified petitioner that it believed the contract with Xerox was valid. At petitioner's request, it was granted an opportunity to address respondent board. On July 21, 1992 respondent board met in executive session to hear petitioner's presentation. At the end of the presentation, respondent board took no action. By letter dated August 25, 1992, petitioner's attorney was notified that respondent board still felt that the contract with Xerox was valid. Petitioner commenced this appeal on September 23, 1992.

As a preliminary procedural matter, petitioner seeks to raise new issues in its reply and reply affidavits which were not included in the petition. Sections 275.3 and 275.14 of the Regulations of the Commissioner of Education set forth the scope of a reply under Education Law '310 and allow a response only to affirmative defenses and new material raised in an answer. The reply does not provide an opportunity to raise new grounds for relief (Appeal of Alexandreena D., 30 Ed Dept Rep 203; Appeal of Santicola, 29 id. 213), or to buttress allegations in the petition or add assertions which should have been included therein (Appeal of Brousseau, 31 Ed Dept Rep 155; Appeal of Barbara P., et al., 30 id. 198; Appeal of Pronin, 27 id. 203). Therefore, those portions of the reply that raise new issues will not be considered.

Respondents argue that this appeal must be dismissed as untimely. Under 8 NYCRR '275.16, an appeal under Education Law '310 must be brought within 30 days of the act or decision complained of. This appeal was commenced approximately four months after petitioner was notified on June 1, 1992 that respondent board had awarded the contract to Xerox. Petitioner argues that respondent's final decision was not made until August 25, 1992, the date of the board's attorney's final letter to petitioner's attorney, and that it commenced this appeal in a timely manner on September 23, 1992. In the alternative, petitioner urges that its reasonable efforts to resolve this matter constitute an excuse for for the delay in bringing this appeal.

The record before me indicates that respondent board notified petitioner of its final decision in this matter on June 1, 1992. Petitioner's repeated requests that respondent board reconsider its decision did not extend the time within which the appeal should have been commenced (Appeal of Stein, 25 Ed Dept Rep 181; Appeal of Maskell, 25 id. 42; Matter of Tripi, 21 id. 349). Accordingly, the appeal is dismissed as untimely.

The appeal must also be dismissed on the merits. The letting of public contracts is governed by Article 5-A of the General Municipal Law, which requires that a municipality advertise for bids and award purchase contracts in excess of $10,000 to the lowest responsible bidder (General Municipal Law '103[1]). The public bidding statutes were enacted for the benefit of tax payers, not for the benefit or enrichment of bidders, and should be so construed and administered as to accomplish such purpose fairly and reasonably with sole reference to the public interest (Jered Contr. Corp. v New York City Tr. Auth., 22 NY2d 187, 193; LeCesse Bros. Contr. v Town Bd. of Williamson, 62 AD2d 28, 34-35, aff'd., 47 NY2d 960).

Those statutes were designed with the dual purpose of fostering honest competition so that the municipality might obtain the best work and supplies at the lowest possible price and also to guard against favoritism, improvidence, extravagance, fraud and corruption (Jered Contr. Corp v New York City Tr. Auth., supra; LeCesse Bros. Contr. v Town Bd. of Williamson, 62 AD2d 28, 31, supra; Matter of Sweet Assoc. v Gallman, 36 AD2d 95, 99, aff'd 29 NY2d 902).

To promote those purposes, a municipality is required to furnish specifications which state the nature of the work as definitively as practicable and which contain all the information necessary to enable bidders to prepare their bids. It must then award the contract on the basis provided for in the specifications and determine the "lowest responsible bidder" in accordance with the specifications (Matter of Progressive Dietary Consultants v Wyoming County, 90 AD2d 214).

Petitioner maintains that the notice to bidders prepared by respondent board was ambiguous in several aspects. First, petitioner claims that the notice was unclear as to the number of copiers to be bid (3, 6 or 9) and the financing arrangements (term lease, lease/purchase or installment purchase). In light of the fact that each bidder made its bid proposal on the basis of a lease/purchase option for 6 copiers, it is apparent that the notice to bidders was not ambiguous or confusing on those issues.

Petitioner also maintains that the notice was unclear as to the volume requirements of the copiers to be bid. However, the notice plainly states that the copiers must have the capacity to handle 200,000 copies per month. The fact that the notice refers to two specific copier models which are capable of handling 200,000 copies per month is not a basis for finding the notice ambiguous.

In any event, while petitioner asserts ambiguity, it made no attempt to obtain clarification before placing its bid. The bid instructions provided that a bidder could seek an interpretation of bid specifications before submitting a bid, and that the submission of a bid would be construed to mean that the bidder was fully informed as to the extent and character of the equipment required. Where a bidder fails to avail itself of the method for resolving possible ambiguities regarding specifications, that bidder cannot be heard to complain that such ambiguities precluded it from submitting a proper bid (Appeal of Fechheimer Bros. Co., 27 Ed Dept Rep 338; Appeal of M.A.J. School Bus, Inc., 26 id. 513).

Petitioner also contends that the contract with Xerox must be annulled because its bid did not conform to the advertised bid specifications. A board of education has a duty to advertise for bids and to award purchase contracts for an amount in excess of $10,000 to the lowest responsible bidder (General Municipal Law '103[1]), unless it appears that the bidder does not meet the requirements of the specifications (Warren Bros. Co. v Craner, 30 AD2d 437; Appeal of Educational Food Management Services, Inc., 30 Ed Dept Rep 28; Matter of General Building Contractors of NYS, Inc., 14 id. 215). Bids must conform substantially to the advertised specifications, and, where there is a substantial variance between the specifications and the bid, it is the right and duty of the public body to reject the bid (Matter of Glen Truck Sales and Services, Inc. v Sirignano, 31 Misc 2d 1027; Matter of Gottfried Baking Co. v Allen, 45 Misc 2d 708; Matter of Cottrell Bus Service, Inc., 21 Ed Dept Rep 409). Conversely, minor variations in a bid which do not afford the bidder an unfair advantage over other bidders do not necessarily require the rejection of such bid (Matter of Harran Transportation Co., Inc. v Bd. of Ed., 71 Misc 2d 143).

Petitioner argues that the Xerox bid deviated from the specifications because the bid notice required the copiers to be rated to handle a minimum of 200,000 copies per month while the Xerox copier is rated to handle a maximum of 200,000 copies per month. Petitioner's argument is one of semantics. The notice to bidders requested bids on copiers that could supply 200,000 copies per month. The record indicates that the copier supply by Xerox is rated by independent rating services to handle 200,000 a month. Moreover, the district's experience with the copier in question confirms that it can provide the requested volume of copies without excessive malfunctions. Accordingly, the bid submitted by Xerox met the specifications.

I have reviewed petitioner's other contentions and find them without merit.