Joseph Davis, Inc. v. Mollenberg-Betz Machine Co. 124 A.D.2d 1071

Memorandum: In annulling the award of a public contract to respondent Mollenberg, the court erred in finding that Mollenberg’s bid failed to comply with the bid requirements and in concluding that Mollenberg thereby received a substantial and material advantage over other bidders. The bid instructions do not require a bid on both the base and alternative proposals and do not require submission of an alternative bid as a condition for the school district’s consideration and acceptance of a base bid. On the contrary, the bid instructions clearly reserve to the school district the right to consider the base bid and alternative bid separately. In view of this, there is no possibility that Mollenberg received a material advantage by failing to submit an alternative bid. It is clear that the school district would have been within its rights in accepting Mollenberg’s low bid on the base proposal whether Mollenberg submitted a higher or lower bid than petitioner on the alternative proposal. (Appeals from judgment of Supreme Court, Erie County, Ostrowski, J. — art 78.) Present — Dillon, P. J., Denman, Boomer, Pine and Balio, JJ.