113 A.D.2d 198 | N.Y. App. Div. | 1985
OPINION OF THE COURT
Petitioner had submitted a bid on contract T83-142/AT, to perform emergency tow and repair service on the Bruckner Expressway from Balcom Avenue to the New England Thru
This CPLR article 78 proceeding was commenced to compel the awarding of the contract, with the respondent, in opposition, alleging in conclusory and vague fashion that "the contract specifications may have excluded competition from other potential bidders” (emphasis added). Special Term granted the application, finding the opposing papers insufficient in failing to set forth in what respects the bid specifications lacked clarity or excluded other potential bidders. As a result, the court held that the city’s defense was insufficient to conclude that there was a rational basis for the decision to rebid the contract.
General Municipal Law § 103 (1), which requires a contract be awarded "to the lowest responsible bidder”, does authorize the officer, board or agency "in his or its discretion,” to reject all bids and readvertise the contract. New York City Charter § 343 (b), likewise accords the agency discretion to reject all bids "if it shall deem it for the interest of the city so to do”. This statutory and charter authorization, however, is not unlimited. It must be demonstrated that there was a rational basis for the decision to reject all bids. (Matter of Delta Chem. Mfg. Co. v Department of Gen. Servs., 81 AD2d 507, 508.)
Here, as found by Special Term, the record is palpably insufficient to conclude that there was a rational basis for the
The recent decision of the Court of Appeals in Matter of Conduit & Found. Corp. v Metropolitan Transp. Auth. (66 NY2d 144) is not to the contrary. In that case, the court sustained the determination by MTA and NYCTA to reject all bids submitted on a public works project and to readvertise the contract, a decision reached to obtain lower contract prices on a second round of bidding since each of the initial bids had exceeded the estimated cost of the project. Petitioner in that case was immediately so informed and that all bids might be rejected. The court found this to constitute (p 149) "a reasonable, bona fide ground * * * and serves the public’s interest in the economical use of public moneys.” While the agency may readvertise for new bids "where good reason exists”, its power to do so "may not be exercised arbitrarily or for the purpose of thwarting the public benefit intended to be served by the competitive process (Matter of Fischbach & Moore v New York City Tr. Auth. [79 AD2d 14, lv denied 53 NY2d 604] supra; Carucci v Dulan, 24 AD2d 529).” (Matter of Conduit & Found. Corp. v Metropolitan Transp. Auth., supra, p 149). In our case, however, no rational basis was given for the decision to readvertise the contract and petitioner was never advised of the reason.
Nevertheless, Special Term abused its discretion in directing respondent to award the contract to petitioner. In an article 78 proceeding, the judicial function is limited to the review of the propriety of the determination in terms of whether the administrative body acted in an arbitrary or capricious manner. The court’s jurisdiction is restricted by CPLR 7803 and does not afford "original jurisdiction to direct the manner in which an administrative agency shall perform its functions.” (Matter of Rocco v Board of Trustees, 98 AD2d 609, 610.) While the court is empowered to determine whether the
The appropriate procedure, upon a finding that the agency acted arbitrarily, is to remand the matter to the administrative agency for further proceedings in accordance with the opinion. (See, Matter of Berger v Walsh, 291 NY 220, 222-223; Matter of Ahsaf v Nyquist, 37 NY2d 182, 186; Rob Tess Rest. Corp. v New York State Liq. Auth., 49 NY2d 874, 875-876; see also, Matter of Stuart & Stuart v New York State Liq. Auth., 29 AD2d 176, 177; Matter of Matty’s W. 49th St. Rest. v New York State Liq. Auth., 38 AD2d 815.)
Accordingly, the judgment, Supreme Court, Bronx County (Maurice W. Grey, J.), entered November 7, 1984, which granted the petition and annulled respondent’s determination to rebid the contract, directing respondent to award the contract for emergency tow and repair service to petitioner, should be modified, on the law, to strike the second decretal paragraph of the judgment, and, in lieu thereof, the matter should be remanded to respondent for further proceedings consistent herewith, and, as so modified, should otherwise be affirmed, without costs or disbursements.
Asch, J. P., Fein, Milonas and Ellerin, JJ., concur.
Judgment, Supreme Court, Bronx County, entered November 7, 1984, unanimously modified, on the law, to strike the second decretal paragraph of the judgment, and, in lieu thereof, the matter remanded to respondent for further proceedings consistent with the opinion herein by Kassal, J., and, as so modified, otherwise affirmed, without costs and without disbursements.