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AMERICAN INSTITUTE FOR IMPORTED STEEL v. COUNTY ERIE ET AL. (12/13/68)

SUPREME COURT OF NEW YORK, ERIE COUNTY 1968.NY.43927 <http://www.versuslaw.com>; 297 N.Y.S.2d 602; 58 Misc. 2d 1059 December 13, 1968 AMERICAN INSTITUTE FOR IMPORTED STEEL, INC., ET AL., PETITIONERS,v.COUNTY OF ERIE ET AL., RESPONDENTS Moot, Sprague, Marcy, Landy & Fernbach (Richard F. Griffin of counsel), for petitioners. George M. Nelson, County Attorney (Milton S. Weisberg of counsel), for respondents. Hodgson, Russ, Andrews, Woods & Goodyear (Stephen H. Kelly of counsel), for intervenors. Walter J. Mahoney, J. Author: Mahoney


Walter J. Mahoney, J.

Author: Mahoney

 This is an article 78 proceeding brought by the petitioners asking a review by this court of the acts of the respondents. Included in their prayer for relief, the petitioners ask the entry of a final order determining that Addendum Exhibit B and Item 0320.01 of the specifications for the Erie County Health Center Facility for Children School 84, Buffalo, New York and the resolution of the Erie County Legislature upon which they are allegedly based, are unlawful and unconstitutional. Further, they request an order of this court directing the respondent, H. Dale Bossert, Erie County Commissioner of Public Works and its designated architects and engineers, namely, Turley, Stievater, Walter & Mauri & Associates, to cancel and withdraw the aforesaid Addendum Exhibit B and Item 0320.01 and to advertise bids for said project without the inclusion therein of the previously mentioned Addendum and Item 0320.01. Further, the petitioners request an order enjoining the respondents from attempting to enforce or implement the resolution of the Erie County Legislature and grant an injunction against the respondents for the relief sought herein.

The Addendum and Item referred to above require that all structural steel reinforcing bars, steel piling or other construction steel items to be incorporated in the project shall be manufactured in the United States. This Addendum and Item in the specifications is apparently based on a resolution of the County Legislature popularly known as a "Buy American" resolution.

The resolution of the Erie County Legislature adopted April 16, 1968 upon which specifications are purportedly based, reads as follows: "Resolved, That the Contract Documents, for each Capital Improvement Project of the County of Erie, hereafter awarded shall provide that, if any structural steel, reinforcing bars, steel piling or other construction steel items are to be incorporated in the Project, only steel made in Mills located in the United States, shall be supplied for such purposes in the performance of the Contract or any Sub-contracts thereunder. In the event the Commissioner of Public Works determines that any aforementioned steel products are not available from Mills located in the United States, due to labor conditions, he may except such steel products from this requirement."

The petitioner, American Institute For Imported Steel, Inc., is a membership corporation existing under the laws of the State of New York, and consists of corporations and firms engaged in the business of importing steel products suitable for use in the construction of public projects. The petitioner, Kurt Orban Company Inc., is likewise a New York corporation. The petitioner, Charles F. Winkle, is a resident and taxpayer of the County of Erie and District Sales Manager of the petitioner, Kurt Orban Company, Inc. The respondent, H. Dale Bossert, as Commissioner of Public Works for the County of Erie, on or about October 30, 1968 invited bids for a new facility for children to replace School 84 adjacent to the E. J. Meyer Memorial Hospital, said facility to be known as the Erie County Health Center Facility for Children School 84, Buffalo, New York.

The advertisement of the aforesaid public project invited sealed bids based upon specifications promulgated by respondent, H. Dale Bossert.

Subsequently, the architects and engineers retained by the respondents, with the approval of respondents issued an addendum to the specifications which reads as follows: "1. Bidders attention is called to the following resolution which was adopted by the Erie County Legislature on April 16, 1968." (Full text of resolution quoted above.)

Petitioners also claim that the afore-mentioned specifications require structural steel and other items which can be filled by the use of steel imported into the United States.

The petitioners allege several reasons why the Addendum and "Buy American" resolution of the Erie County Legislature are invalid as set forth in the petition, viz:

"a. Such a Buy American requirement is in violation of a New York State general law requiring competitive bidding and awarding of a contract to the lowest bidder.

"b. The County of Erie has no power to regulate foreign commerce. This is reserved to the Federal Government by the United States Constitution, and the County's action is in interference with this federal power.

"c. The Buy American requirement violates Article III of the General Agreement on Tariffs and Trades (GATT), an international compact to which the United States is a party.

"d. The Buy American requirement is beyond the powers of Erie County.

"e. The resolution and Addendum deny petitioners -- New York residents dealing with imported steel -- equal protection of the laws by arbitrarily preferring other residents who purchase and use domestic steel in violation of the New York and United States Constitutions.

"f. The resolution and Addendum deprive the petitioners of their property and rights to sell their steel without due process of law in violation of the New York and United States Constitutions. "g. The Addendum and resolution are vague and indefinite and incapable of administering.

"h. The conduct of respondents seeking to implement the Buy American resolution constitutes waste and injury to the taxpayers of Erie County."

It is significant that while the petitioners request the court to consider all of the grounds above noted they place their emphasis actually on two ...


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