General Bldg. Contractors of New York State, Inc. v. Oneida County
| Decision Date | 16 May 1967 |
| Citation | 282 N.Y.S.2d 385,54 Misc.2d 260 |
| Parties | In the Matter of GENERAL BUILDING CONTRACTORS OF NEW YORK STATE, INC., Petitioner, v. COUNTY OF ONEIDA, and Edward R. Flemma, as Director of Purchasing, County of Oneida, Respondents. |
| Court | New York Supreme Court |
This is a motion pursuant to Article 78 of the CPLR to compel respondents to comply with the provisions of section 101 of the General Municipal Law.
The petitioner is a New York Membership Corporation known as the General Building Contractor of New York State. It consists of one hundred eighty (180) general contractors who perform a substantial dollar volume of the public works building construction in this State. Some of its members are residents of Oneida County. The principal respondent, the County of Oneida, is the owner of a proposed public project, a Library-Academic Building, to be constructed at Mohawk Valley Community College in Utica, Oneida County, New York.
Sealed bids on this proposed construction were received by the respondents on April 26, 1967, at which time they were to be publicly opened and read. This proceeding, instituted by the petitioner by show cause order dated April 25, 1967, contained a stay issued by this Court (Aronson, J.) prohibiting the respondents from opening any of the bids submitted on the Library-Academic Building until the return date of this show cause order. The stay has been continued pending this determination.
The petitioner contends that the form of the specifications prepared by the owner and the architect for this multiple contract project, dated March 29, 1967, violates the requirements set forth in section 101 of the General Municipal Law. It claims that the language used in the specifications has the effect of shifting responsibilities required by the statute to be imposed upon the owner and/or the architect to the contractors, resulting in confusion insofar as the orderly progress of this public works project is concerned.
The respondents assert that petitioner has no standing in Court since there is no showing that any of the members of the petitioner corporation are actually bidders on the Mohawk Valley Community College project and that this is not a class action nor a taxpayers' action. Respondents further assert that the specifications as prepared do not violate any statute or law of this State; nor do they impose any additional requirements on the general contractors bidding on this project. Finally, respondents argue that even if some additional work is required by the specifications such can be compensated for in the bid submitted by any contractor who desires to receive the award for this particular project.
The threshold question is whether the petitioner has standing to initiate a proceeding in this Court. The preparation of specifications, advertising for bids and awarding contracts for a public project is a matter of public interest which relieves petitioner of the obligation to show that it is an aggrieved party or that it has any special interest. (McDonough v. Board of Education of Lackawanna City School District, 20 Misc.2d 98, 99--100, 189 N.Y.S.2d 401, 403--404 (Sup.Ct. Erie Co. 1959); 22--Carmody-Waite, Cyclopedia of New York Prac. § 310, p. 398). An Article 78 Proceeding such as the one before this Court may be instituted by one who is a citizen, resident and taxpayer even though there is no personal grievance or personal interest in the outcome shown. (Policemen's Benevolent Association of Westchester Co. Inc. v. Board of Trustees of Village of Croton-On-Hudson, 21 A.D.2d 693(8), 250 N.Y.S.2d 523 (Second Dept. 1964)). The petitioner has standing to institute this proceeding in this Court.
The language used in the specifications which petitioner claims violates the statute is found at pages SC--9, SC--10 and Addendum No. 1 (1--2) of the specifications for this project. It is there provided that the contractor will 'check shop drawings * * * to make sure they conform to the intent of drawings and specifications and for contract requirements. Correct drawings found to be inaccurate or otherwise in error. * * * The contractor will be fully responsible for the accuracy of such drawings and for their conformity to the drawings and specifications, regardless of approval by the architect, unless the contractor notifies the architect in writing of any deviations at the time he furnished such drawings. (SC--9). The general construction contractor shall be fully responsible for the proper fitting of all work * * *. Within 30 calendar days after the execution and delivery of the contracts, the contractor for 'Contract No. 1--General Construction' shall submit to the Architect for approval a satisfactory progress schedule covering total sequence and expected status of the work at any time involving the work for 'Contract Nos. 1, 2, 3 & 4.''. (SC--10). The substance of these requirements relating to shop drawings and progress schedules is repeated in the 'Special Conditions' of Addendum No. 1 at page 2. Petitioner contends that it is these provisions which are an attempt to assign supervisory work to contractors which should be the responsibility of the owner and/or its agent, the architect, and that such are a violation of section 101 of the General Municipal Law.
At the root of this controversy lies the questions upon whom shall devolve the day-to-day responsibility for the orderly progression and co-ordination of this public project. The provisions contained on pages SC--9, SC--10 and Addendum No. 1 relative to the general contractor's responsibilities for shop drawings and progress schedules, particularly that expression which makes the general contractor 'fully responsible for the proper fitting of all work * * *' appear to this Court to impose upon the general contractor responsibilities and obligations as to supervision and coordination not envisioned by the statute and which should be borne by the owner and/or the architect.
Section 101 of the General Municipal Law provides in substance that in any project which exceeds the sum of $50,000 the owner will prepare separate specifications for the three subdivisions, (a) plumbing, (b) heating, ventilating, and (c) electric wiring (...
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