SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

877.1 

CA 15-00856 

PRESENT: CENTRA, J.P., LINDLEY, SCONIERS, WHALEN, AND DEJOSEPH, JJ.

 

IN THE MATTER OF CONCRETE APPLIED TECHNOLOGIES 

CORPORATION, DOING BUSINESS AS CATCO,

PETITIONER-RESPONDENT, 

V MEMORANDUM AND ORDER

 

COUNTY OF ERIE, MARIA R. WHYTE, COMMISSIONER, 

ERIE COUNTY DEPARTMENT OF ENVIRONMENTAL PLANNING, 

AND KANDEY COMPANY, INC., RESPONDENTS-APPELLANTS. 

 

MOSEY PERSICO, LLP, BUFFALO (JENNIFER C. PERSICO OF COUNSEL), FOR

RESPONDENTS-APPELLANTS COUNTY OF ERIE AND MARIA R. WHYTE,

COMMISSIONER, ERIE COUNTY DEPARTMENT OF ENVIRONMENTAL PLANNING.

LIPSITZ GREEN SCIME CAMBRIA LLP, BUFFALO (JOSEPH J. MANNA OF COUNSEL),

FOR RESPONDENT-APPELLANT KANDEY COMPANY, INC.

DUKE, HOLZMAN, PHOTIADIS & GRESENS LLP, BUFFALO (ELIZABETH A. KRAENGEL

OF COUNSEL), FOR PETITIONER-RESPONDENT. 

 

Appeals from a judgment (denominated order and judgment) of the

Supreme Court, Erie County (Timothy J. Walker, J.), entered April 20,

2015 in a proceeding pursuant to CPLR article 78. The judgment,

insofar as appealed from, granted the petition in part. 

It is hereby ORDERED that the judgment insofar as appealed from

is unanimously reversed on the law without costs and the petition is

dismissed in its entirety. 

Memorandum: Petitioner commenced this CPLR article 78 proceeding

to challenge the award by respondents County of Erie and the

Commissioner of the Erie County Department of Environmental Planning

(collectively, County) of a contract for a public work project to

respondent Kandey Company, Inc. (Kandey). When the bids were opened

on February 3, 2015, Kandey was the lowest bidder and the County

awarded it the contract. On February 6, 2015, Kandey made a request

to the County for permission to withdraw its bid because of “two

unconscionable and substantial clerical errors” involving the omission

of the costs for two subcontractors that it discovered during its

post-bid review. The County granted Kandey’s request, returned the

bid bonds for the project and notified all of the bidding contractors

of its determination “that it is in the best interest of Erie County

to rebid the contract.” 
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CA 15-00856 

The County thereafter advertised for bids and, when the bids were

opened on March 18, 2015, Kandey was again the lowest bidder. After

the County awarded the contract to Kandey following the rebid,

petitioner, the second lowest bidder, commenced this proceeding. 

Supreme Court granted those parts of its petition seeking judgment

vacating the award of the contract to Kandey and directing the County

to award the contract to the lowest responsible bidder, excluding

Kandey, or, in the alternative, directing the County to rebid the

contract pursuant to General Municipal Law § 103 (11) (b), and

precluding Kandey from participation in that rebid. We reverse the

judgment insofar as appealed from.

The court properly concluded that a rational basis supported the

County’s determination that Kandey made the showing required by

General Municipal Law § 103 (11) (a) when it sought permission to

withdraw its mistaken bid. The court erred, however, in concluding

that the County failed to comply with General Municipal Law § 103 (11)

(b) when it permitted Kandey to participate in the rebid. That

section provides that the “sole remedy for a bid mistake in accordance

with this section shall be withdrawal of that bid and the return of

the bid bond or other security, if any, to the bidder.” That is

precisely what the County did here when it permitted Kandey to

withdraw the mistaken bid. The statute further provides that, after

the mistaken bid is withdrawn, the County “may, in its discretion,

award the contract to the next lowest responsible bidder or rebid the

contract,” and the County acted within the discretion extended to it

under the statute when it elected to rebid the contract.

The statute is silent on the question whether a contractor that

was permitted to withdraw its bid may participate in the rebid. We

agree with Kandey and the County that, had the Legislature intended to

forbid a contractor in Kandey’s position from participating in the

rebid, it would have done so explicitly. Further, “[a] court cannot

by implication supply in a statute a provision which it is reasonable

to suppose the Legislature intended intentionally to omit” (Gammons v

City of New York, 24 NY3d 562, 570 [internal quotation marks

omitted]). Thus, we do not interpret the statute to include an

implicit prohibition against Kandey’s participation in the rebid

following the withdrawal of its mistaken bid. 

Contrary to the contention of petitioner, moreover, permitting

Kandey to participate in the rebid did not violate the statute’s

explicit prohibition against “[a]ny amendment to or reformation of a

bid or a contract to rectify such an error or mistake therein”

(General Municipal Law § 103 [11] [b]). Kandey’s bid was not amended

or reformed; it was withdrawn. Permitting Kandey to withdraw its

original bid was not equivalent to allowing a renegotiation of that

bid (see Matter of Picone/McCullagh v Miele, 283 AD2d 501, 503; cf. Le

Cesse Bros. Contr. v Town Bd. of Town of Williamson, 62 AD2d 28, affd

46 NY2d 960). Like the other contractors that participated in the

rebid, Kandey submitted a new bid. Under these circumstances,

permitting Kandey’s participation in the rebid was entirely consistent

with the statute’s purpose of “protect[ing] the integrity of the

competitive bidding process” (Picone/McCullagh, 283 AD2d at 502).
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CA 15-00856 

We therefore reverse the judgment insofar as appealed from and

dismiss the petition in its entirety. 

Entered: July 10, 2015 Frances E. Cafarell

Clerk of the Court