Decision No. 12,627

(December 30, 1991)

Kehoe, Merzig & Schebaum, P.C., attorneys for petitioner, David S. Merzig, Esq., of counsel

Hogan & Sarzynski, Esqs., attorneys for respondent, John B. Hogan, Esq., of counsel

Bernard R. Corbett, Esq., and Rudolph and Attieri, Esqs., Kenneth Rudolph, Esq., of counsel, attorneys for intervenor

SOBOL, Commissioner.--Petitioner appeals from the decision of respondent board awarding a contract to Tandberg Educational, Inc. ("Tandberg") to install a language laboratory in Walton Central School. Petitioner requests that I determine whether Tandberg has complied with the bid specifications issued by respondent board, and in the event I find that Tandberg has not, that I order respondent board to award the contract to the next lowest responsible bidder. Implicit in petitioner's request for relief is petitioner's belief that it is the next lowest responsible bidder. This appeal must be dismissed.

In response to requests for bids for the installation of a language laboratory, respondent board received bids from ASC Electronic, Inc. ("ASC"), petitioner and Tandberg. ASC submitted bid "A" in the amount of $44,972.00 and bid "B" in the amount of $51,980.00. Petitioner submitted a bid in the amount of $50,000.00 with an alternate of $47,799.20. Tandberg submitted a bid in the amount of $45,286.50. After reviewing the bids, respondent rejected ASC's bid because it did not meet the bid specifications. On July 17, 1990, on the recommendation of its consultant, respondent board awarded the contract to Tandberg.

Petitioner maintains that respondent board did not act properly in accepting Tandberg's bid because it did not meet all of the specifications issued by the board. Respondent contends that it properly determined, consistent with the advice of its consultant Mr. Russel W. Morison, that Tandberg's bid met the bid specifications. Respondent also raises as an affirmative defense that petitioner failed to serve timely and join Tandberg, the successful bidder, as a necessary party to this appeal.

Pursuant to Commissioner's Regulation '275.8 (c), the successful bidder must be joined as a respondent, and failure to do so justifies dismissal of the appeal for failure to join a necessary party (Matter of PIC Management Services, Inc., 23 Ed Dept Rep 337). Here, petitioner did not serve Tandberg within the thirty day period provided for in '275.16; however, subsequent to service upon respondent board, Tandberg petitioned for permission to intervene in the pending appeal. On October 26, 1990, my Office of Counsel informed Tandberg and the parties to this appeal that Tandberg's application to intervene had been granted, and that the answer submitted by Tandberg had been accepted for consideration. Petitioner served Tandberg with the petition on September 21, 1990.

The purpose of requiring joinder of certain parties is to ensure that all parties who would be adversely affected by the outcome of a particular action are given the opportunity to be heard (Appeal of Osterman, 30 Ed Dept Rep 290; Matter of Cooper, 26 id. 370). In this action, because Tandberg received notice of the action from respondent board and acted in a timely manner to intervene in the action, I find that it has not been prejudiced by the petitioner's failure to join Tandberg within the timeframe provided by the regulations. Therefore, I decline to dismiss the appeal on the ground that petitioner failed to commence the appeal against a necessary party in a timely manner (Matter of Capobianco v. Ambach et al., 112 AD2d 640 (1985); Matter of Levine, 24 Ed Dept Rep 172, aff'dsubnom.).

With respect to the merits of this appeal, a board of education has a duty to advertise for bids and to award a contract to the lowest responsible bidder unless it appears that the bidder does not meet the requirements of the specifications (Warren Bros. Co. v. Craner, 30 AD2d 437; Matter of General Bldg. Contractors of NYS, Inc., 14 Ed Dept Rep 215). Bids must conform substantially to the advertised specifications. Where there is a material variance between the specifications and the bid, it is the right and duty of the public official or body to reject the bid (Matter of Glen Truck Sales & Service, Inc. v. Sirignano, 31 Misc 2d 1027; Matter of Gottfried Baking Co. v. Allen, 45 Misc 2d 708). The test to determine whether or not a variance is material is whether the variance gives the bidder a substantial advantage not enjoyed by others (Matter of Rockland Bus Lines, Inc., 15 Ed Dept Rep 40).

Petitioner asserts that Tandberg does not meet the specification contained in paragraph 13 of the general conditions which provides that "all regularly manufactured stock electrical items must bear the label of the Underwriters' Laboratories, Inc." Petitioner has attached a letter to its petition which purports to list all companies that have products identified as "teaching and instructional equipment." Tandberg does not appear on that list. In its answer respondent board submitted an affidavit of its consultant who prepared the specifications which denies the allegation that Tandberg cannot meet the specification stated above. Further, the consultant states therein that he has thoroughly reviewed the equipment and found each and every item fully in compliance with paragraph 13 of the general conditions. Tandberg in its answer also denied that it was incapable of meeting the specification and stated that all Tandberg's products which have "electrical voltages in excess of 24 volts accessible to the user" bear the Underwriters Laboratories label. In its reply petitioner does not dispute the assertion that the above-described products of Tandberg do bear the Underwriters Laboratory label, but merely denies in a conclusory fashion Tandberg's assertion that their products meet the specification.

As Tandberg suggests in its answer, petitioner has failed to demonstrate how the allegation that Tandberg's products were not classified as "U.L. listed teaching and instructional equipment" is dispositive of the issue of whether Tandberg's products were tested appropriately. In the first instance, the bid specifications do not explicitly require the products to be listed in the Underwriters Laboratory "teaching and instructional equipment" category. Petitioner is, nevertheless, arguing that this requirement is somehow implicit in respondent's specifications. However, petitioner has the burden of proving its contention that the specification at issue can only be satisfied by supplying products categorized as "teaching and instructional equipment", and I find that petitioner has not supplied the factual basis for me to reach this conclusion.

In light of the fact that petitioner bears that burden of demonstrating entitlement to the relief requested and establishing the facts upon which it seeks relief, I find that petitioner has not met its burden of proof in this appeal (Appeal of Singh, 30 Ed Dept Rep 284; Appeal of Negrin, 29 id. 484; Appeal of Pickreign, 28 id. 163). Based on the record before me, I cannot conclude that Tandberg's products vary materially from the specifications.

THE APPEAL IS DISMISSED.

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