Diamond "D" Construction Corp. v. County of Erie

—Judgment unanimously affirmed without costs. Memorandum: Supreme Court properly dismissed the petition of Diamond "D” Construction Corp. (Diamond) seeking to require the County of Erie (County) to reject as non-responsive the bid of Frontier Asphalt, Inc. (Frontier). A municipality may decline bids that fail to comply with the literal requirements of the bid specifications or it may waive technical non-compliance "if the defect is a mere irregularity and it is in the best interests of the municipality to do so” (Le Cesse Bros. Contr. v Town Bd., 62 AD2d 28, 32, affd 46 NY2d 960). A municipality may not permit a bidder to modify its bid in a way that would give the bidder " 'a substantial advantage or benefit not enjoyed by the other bidders’ ” (Sinram-Marnis Oil Co. v City of New York, 74 NY2d 13, 18). "A minor variation from the terms of *923an advertisement for bids should be considered material only when it would impair the interests of the contracting public authority or place some of the bidders at a competitive disadvantage” (Matter of Cataract Disposal v Town Bd., 53 NY2d 266, 272; see also, Matter of Willets Point Contr. Corp. v Town Bd., 141 AD2d 735, 735-736, lv denied 72 NY2d 810). "The governmental agency has the right to determine whether a variance from bid specifications is material or whether to waive it as a mere irregularity, and that determination must be upheld by the courts if supported by any rational basis” (Matter of Varsity Tr. v Board of Educ., 130 AD2d 581, 582, lv denied 70 NY2d 605).

The court properly held that the County did not waive the requirement that Frontier comply with special instructions; it merely allowed Frontier to comply two to five days after the bid opening. The County’s determination to waive Frontier’s late submission as a "mere irregularity” should be upheld. The late submission did not impair the interests of the County nor did it place any other bidders at a competitive disadvantage. (Appeal from Judgment of Supreme Court, Erie County, Mintz, J.—Article 78.) Present—Denman, P. J., Lawton, Wesley, Doerr and Boehm, JJ.