Decision No. 12,646

(February 5, 1992)

SOBOL, Commissioner.--Petitioner appeals from respondent BOCES' award to respondent Xerox of four contracts for the purchase or lease of copiers. The appeal must be dismissed.

On May 25, 1991 respondent BOCES sought bids for the purchase or lease of copying equipment for use by 36 participating school districts. The solicitation sought bids on copying equipment in 13 categories, ranging from equipment designed for low volume copying (5,000 copies per month) to high volume copying (400,000 copies per month). The solicitation also stated that BOCES would award a requirements contract, and each district participating under the contract would lease or purchase copier equipment from the awardee on an "as needed" basis. Seven vendors, including petitioner and Xerox, submitted bids.

On June 12, 1991 BOCES awarded contracts in all 13 categories to Xerox. On June 13, 1991, BOCES notified petitioner that it had not been awarded any contracts. Believing it was the lowest responsible bidder in four categories, petitioner wrote to the State Education Department to complain about the matter. On that same date, petitioner requested that respondent BOCES provide information concerning the basis of the award of the contracts to Xerox for the four categories in question. By letter dated July 10, 1991, BOCES notified petitioner that while its bid in the four categories at issue was lower than the bid submitted by Xerox, the equipment proposed by petitioner as reviewed in the MinellaGuide did not meet bid specifications for automatic document feed (ADF). That letter indicated that the ADF speed of petitioner's machines was below bid specifications as follows:

REQUESTED ADF AS LISTED IN

SPEED MINELLA'S GUIDE

Category VI 31 CPM 19 CPM 38.7% Below Standard

Category VII 50 CPM 22 CPM 56% Below Standard

Category VIII 50 CPM 23 CPM 54% Below Standard

Category IX 53 CPM 23 CPM 54% Below Standard

By letter dated July 22, 1991, the State Education Department informed petitioner that if it wished to pursue the matter, it could file an appeal with the Commissioner of Education pursuant to Education Law '310. A copy of a handbook which sets forth the appeal process under '310 was sent to petitioner. Petitioner commenced this appeal on August 22, 1991.

Before addressing the merits of this appeal, it is necessary to review a procedural issue. Respondents maintain that this appeal must be dismissed as untimely because it was filed more than 30 days after the contracts were awarded. Petitioner contends that its appeal is timely since it was commenced within 30 days of receipt of a letter from the State Education Department, stating that petitioner may want to consider an appeal to the Commissioner of Education.

I find petitioner's argument unpersuasive. Pursuant to '275.16 of the Regulations of the Commissioner, an appeal to the Commissioner must be commenced within 30 days of the act complained of, although I may excuse the failure to commence a timely appeal for good cause shown in the petition. In this instance, petitioner was notified that it had not been awarded any contracts on June 13, 1991 and it commenced this appeal 71 days later, on August 22, 1991. The fact that petitioner may not have been aware of its right to appeal to the Commissioner until the State Education Department so advised is immaterial. Except in unusual circumstances, ignorance of the appeal process does not afford a sufficient basis to excuse a delay in commencing an appeal (Appeal of Casid, 30 Ed Dept Rep 332; Appeal of Reynolds, 29 id. 288; Appeal of Schwartz, 28 id. 258). I find no unusual circumstances to excuse the delay in this case. Accordingly, the appeal must be dismissed as untimely.

Even if the appeal had been timely commenced, it must also be dismissed on the merits. An entity such as a BOCES has a duty to advertise for bids and to award purchase contracts for an amount in excess of $5,000 to the lowest responsible bidder (General Municipal Law '103[1]), unless it appears that the bidder does not meet the requirements of the specifications (Warren Bros. Co. v. Craner, 30 AD2d 437; Appeal of Educational Food Management Services, Inc., 30 Ed Dept Rep 267; Matter of General Building Contractors of NYS, Inc., 14 id. 215). Bids must conform substantially to the advertised specifications, and, where there is a substantial variance between the specifications and the bid, it is the right and duty of the public body to reject the bid (Matter of Glen Truck Sales and Services, Inc. v. Sirignano, 31 Misc 2d 1027; Matter of Gottfried Baking Co. v. Allen, 45 Misc 2d 708; Matter of Cottrell Bus Service, Inc., 21 Ed Dept Rep 409). Conversely, minor variations in a bid which do not afford the bidder an unfair advantage over other bidders do not necessarily require the rejection of such bid (Matter of Harran Transportation Co., Inc. v. Bd. of Ed., 71 Misc 2d 143).

Petitioner contends that its copiers materially and substantially comply with the specifications of the solicitation and that it should have been awarded contracts for the four categories in which it submitted the lowest bids. Petitioner further contends that in rejecting its copiers, respondent BOCES relied on inaccurate data contained in the MinellaGuide and should have based its decision on information contained in a publication entitled Buyers Laboratory Guide. Petitioner further contends BOCES was arbitrary and capricious in rejecting its copiers because of their lower automatic document feed speed, since that specification is irrelevant to the number of copies produced during a period of time. Respondent BOCES replies that petitioner's copiers have 38 percent to 56 percent slower automatic document feed speeds than what was called for in the solicitation and that such discrepancies are substantial. Respondent BOCES also notes that it relied upon information contained in the MinellaGuide because the data in that publication is obtained from tests conducted by the Minella Laboratory, while the data contained in the Buyers Laboratory Guide is obtained from the manufacturers and not confirmed by independent testing. Respondent BOCES also points out that even the data contained in the Buyers Laboratory Guide shows that petitioner's copiers do not meet the bid specifications for automatic document feed speed. Regarding the importance of automatic document feed speed, respondent BOCES has persuasively argued that use of petitioner's copiers, with slower ADF speed, will result in significantly increased labor costs.

Upon my review of the record, I find that petitioner's failure to provide copiers that meet ADF speed specifications has resulted in a material variance from the specifications and resulted in petitioner not bidding on an equal basis with respondent Xerox. Petitioner's status of not bidding on an equal basis provided it a substantial advantage over its competitors. Based on the foregoing, I conclude that respondent BOCES' rejection of petitioner's bid and award to Xerox of the contracts in question was neither arbitrary nor capricious.

Petitioner also contends that respondent BOCES established specifications in its solicitation which improperly favored Xerox over other suppliers. In support of that contention, petitioner points to the fact that respondent BOCES would not meet with petitioner's representatives prior to submitting bids, but allegedly met with Xerox representatives. Petitioner also maintains that advertising for bids by respondent BOCES could have been more extensive. In addition, petitioner notes that the solicitation requested specific Xerox copiers "or equal". Petitioner's contentions are unavailing. There is no requirement that respondent BOCES meet with a prospective bidder prior to the submission of bids. There is also no evidence that respondent BOCES met with Xerox representatives to discuss proposed bids prior to the submission of bids. The record further indicates that the scope of advertising done by respondent BOCES was in compliance with the provisions of General Municipal Law '103(2). Regarding the use of the name Xerox, brand names may be used as a standard in a solicitation for bids, so long as provision is made for equivalencies, i.e., a statement to the effect that manufacturers of a similar item may meet specifications if their product is reasonably equivalent to that of the standard (Hodge and Hammond, Inc. v. Burns, 23 Misc 2d 133; Op. St. Comp. 87-4; Op. St. Comp. 74-184, unreported). The solicitation established by respondent BOCES had such a provision. Accordingly, there is no basis to overturn the awarding of the contracts at issue in this appeal.

I have reviewed petitioner's other contentions and find them to be without merit.

THE APPEAL IS DISMISSED.

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