Matter of Hungerford & Terry, Inc. v. Suffolk County Water Authority

• Decision Date: 29 November 2004
• Docket Number: 2003-06624.
• Parties: In the Matter of HUNGERFORD & TERRY, INC., Respondent, v. SUFFOLK COUNTY WATER AUTHORITY, Appellant, and EAGLE CONTROL CORP., Respondent.
• Court: New York Supreme Court — Appellate Division

12 A.D.3d 675

785 N.Y.S.2d 506

2004 NY Slip Op 08869

In the Matter of HUNGERFORD & TERRY, INC., Respondent, v. SUFFOLK COUNTY WATER AUTHORITY, Appellant, and EAGLE CONTROL CORP., Respondent.

2003-06624.

Appellate Division of the Supreme Court of the State of New York, Second Department.

November 29, 2004.

In a proceeding pursuant to CPLR article 78, inter alia, to annul an award by the Suffolk County Water Authority of a public water treatment contract to Eagle Control Corp., the Suffolk County Water Authority appeals, as limited by its brief, from so much of an order of the Supreme Court, Suffolk County (Werner, J.), dated June 26, 2003, as granted the petition to the extent of annulling the award and directed it to reopen the bidding for the contract.

Ordered that on the court's own motion, the notice of appeal from the order is treated as an application for leave to appeal, and leave to appeal is granted (see CPLR 5701 [c]); and it is further,

Ordered that the order is reversed insofar as appealed from, on the law, the award is confirmed, the petition is denied, and the proceeding is dismissed on the merits; and it is further,

Ordered that one bill of costs is awarded to the appellant.

On January 30, 2003, the appellant, Suffolk County Water Authority (hereinafter the SCWA), solicited sealed bids for the supply and installation of iron and manganese filtration systems and related services at two of its well field/pump stations. The bid specifications provided that the filtration system be manufactured by either the petitioner, Hungerford & Terry, Inc., Pureflow Filtration Division (hereinafter Pureflow), Tonka Equipment Company, Layne, or an "approved equal." The petitioner, an unsuccessful bidder, commenced this proceeding pursuant to CPLR article 78 challenging the award of the contract to Eagle Control Corp. (hereinafter Eagle), alleging that Eagle's bid proposal, which utilized the Pureflow filtration system, failed to comply in various material respects with the bid specifications for this contract. Determining that Eagle gained an unfair advantage by omitting from its bid a required item of equipment, i.e., a supplemental air wash distributor, the Supreme Court granted the petition to the extent of annulling the award of a contract to Eagle and remitted the matter to the SCWA to reopen the bidding for the contract. We reverse insofar as appealed from.

A municipality or agency may waive a technical noncompliance with bid specifications if the defect is a mere irregularity and it is in the best interest of the municipality to do so. However, a municipality must reject the bid if the noncompliance is material or substantial. Noncompliance is considered material only...