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MATTER ANTHONY GUERRIERO v. BOARD CONTRACT AND SUPPLY CITY UTICA ET AL. (05/12/69)

SUPREME COURT OF NEW YORK, SPECIAL TERM, ONEIDA COUNTY 1969.NY.41487 <http://www.versuslaw.com>; 301 N.Y.S.2d 103; 60 Misc. 2d 22 May 12, 1969 IN THE MATTER OF ANTHONY GUERRIERO, PETITIONER,v.BOARD OF CONTRACT AND SUPPLY OF THE CITY OF UTICA ET AL., RESPONDENTS William D. Ribyat, Jr., for petitioner. Rocco Solimando, Corporation Counsel, for Board of Contract and Supply of the City of Utica, respondent. Penberthy, De Iorio & Rayhill for B & B Sanitation, Inc., respondent. John R. Tenney, J. Author: Tenney


John R. Tenney, J.

Author: Tenney

 Petitioner, in an article 78 proceeding, seeks a review of the action of the Board of Contract and Supply of the City of Utica in awarding a garbage and refuse contract to the respondent, B & B Sanitation, Inc. He seeks an order setting aside the contract and awarding it to him. The city in its answer, seeks a dismissal of the proceeding and is joined in the motion by the correspondent. The motion to dismiss the petition is granted.

The underlying facts are somewhat bizarre and complicated. The three-year term of the former garbage contract was to expire on December 31, 1968. Early in December, the Utica Common Council passed a resolution authorizing the advertising of bids. A rider to the resolution provided that no contract could be awarded without the consent and approval of the Council. The respondent, Board of Contract and Supply, authorized the Secretary to advertise for bids on December 13, 1968. On December 27, 1968, the bids were opened, an there was only one bidder, the then contractor. On December 31, the board rejected that bid, and the old contract terminated. The board readvertised on January 7, 1969, and the bids were opened on January 31, 1969. There were four bidders, and all bids were referred to the City Engineer for canvassing. Subsequently, on February 28, 1969, the bid was awarded to the second low bidder, Bentro Brothers. The first low bidder was rejected for reasons irrelevant to this proceeding. Petitioner was the third low bidder.

On March 28, 1969, a contract was executed between the city and B & B Sanitation, Inc. This corporation was formed by the Bentro Brothers, and they were its principal stockholders and officers. The contract award was not approved by the Common Council.

Petitioner contends that the award of the contract was illegal for two reasons: (1) It was not approved by the Common Council; (2) The assignment of the bid to B & B Sanitation, Inc. by the successful bidder, Bentro Brothers, was in violation of the General Municipal Law, and an unlawful variation of the specifications. Further, petitioner contends that the award of the contract was arbitrary and capricious in that (1) Bentro Brothers had no experience in the garbage collection business and he did; (2) Bentro Brothers were not responsible or qualified bidders since they did not have the necessary equipment and could not be ready for performance on the contract date, April 1, 1969; (3) The city acted in bad faith because it gave allowances, special prices on equipment and generally ignored the specifications of the bid to assist B & B Sanitation, Inc. in its performance of the contract.

The legality of the contract will be considered first. Paragraph 40 of the specifications states: "Prior to the award of any contract, the canvass of all bids shall be submitted to the Common Council for their consideration and approval, and no award shall be made until such approval is obtained." This clause was copied exactly from the Common Council ordinance dated December 4, 1968.

The awarding of contracts is the duty of the Board of Contract and Supply "in accordance with regulations to be prescribed by general ordinance of the common council, to let to the lowest bidder * * * all contracts for the performance of any work". (Second Class Cities Law, § 120.)

The Common Council has the right to insist upon compliance with regulations prescribed in the enabling ordinance, but it may not appropriate authority to itself expressly delegated to the Board of Contract and Supply by the Legislature. (Matter of Mooney v. Cohen, 272 N. Y. 33, 39; Matter of Piazza v. Lindsay, 24 N.Y.2d 186.) (Second Class Cities Law, §§ 41, 120; General Municipal Law, § 103, Municipal Home Rule Law, arts. 2, 3.)

Insisting upon submission of the canvass for the consideration and approval of the Common Council before making an award is an improper invasion of the power of the Board of Contract and Supply. The peculiar wording of this particular clause "no award shall be made until such approval is obtained" is an attempt to limit the authority of the board. The Common Council may not substitute its judgment for that of the board.

Although not precisely in point, Judge Bergan in Matter of Piazza v. Lindsay (24 N.Y.2d 186) expressed the principle applicable to the facts of this case that the statute "expresses a central policy" of fixing executive responsibility. Section 120 permits the Common Council to prescribe regulations for the awarding of bids, but fixes the responsibility for actually letting the bids to the Board of Contract and Supply. The board alone is given the power to "reject all bids or proposals if in its opinion the lowest bid or proposal is excessive." The intention is clear that action on the bids is reserved exclusively to the board. The Common Council cannot assume any veto power over the canvass or the award of the contract.

The City Charter of the City of Utica, section 16-12 has adopted the precise wording of sections 120 and 121 of the Second Class Cities Law. The Council is thus further restrained in its conduct by the provisions of articles 2 and 3 of the Municipal Home Rule Law which prescribes the procedure for changing the charter.

There was no action by the Common Council under that law involved in this proceeding.

Since the Council had no authority to restrict the board as indicated and since its attempt to do so is clearly illegal, the action of the board in awarding the contract, without Council approval, is proper. The court does not pass on the right of the Common Council to insist upon the board's following the correct bidding procedure.

Petitioner contends that the board acted in violation of section 109 of the General Municipal Law in entering into a contract with B & B Sanitation, Inc. instead ...


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