Joseph Chessare Chairman Board of Fire Commissioners, Deer Park

We acknowledge receipt of your letter requesting "information concerning the bidding practices with reference to the proper procedure to follow when the low bids are unsatisfactory to the district in terms of services." You also ask: "Is it allowable to accept a higher bid which would fit the requirements of the district more entirely? In the event that this is not allowable, what other alternative is available to the fire district in this regard?"

The subject of public contracts is dealt with in General Municipal Law Article 5-A (§§ 100-109-a). General Municipal Law § 103 subdivision 1 requires that purchases involving an expenditure of more than $1,500 and contracts for public work involving an expenditure of more than $3,500 shall be awarded after advertisement for sealed bids in the manner prescribed in that section to the lowest responsible bidder whose bid meets the terms and conditions advertised. The last sentence of that subdivision authorizes the rejection of all bids and the readvertising for new bids in the discretion of the purchasing officer or agency. If providing service in relation to the item for which bids are requested in deemed to be of importance, the specifications should so state and in the event they do not so state it would be improper to consider ability to provide service in determining the lowest responsible bidder. Be aware that a provision in specifications that services are to be deemed a factor cannot be inserted as a pretext for eliminating unwanted bidders; the provision must be a legitimate consideration in relation to the item to be purchased.

In our opinion, if providing service is a legitimate consideration in relation to an item to be purchased, and the bids are unsatisfactory in this respect, all bids may be rejected and the invitation for bids may be readvertised, with new specifications, to make it clear to the selling public that ability to provide service for the item is of importance in reaching a determination as to who is the lowest responsible bidder.