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Party Who Properly Withdrew a Mistaken Bid on a Public Works Project Should Have Been Allowed to Rebid

The Fourth Department determined a party (Kandey) who withdrew a mistaken bid on a public works project should have been allowed to rebid:

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 The statute further provides that, after the mistaken bid is withdrawn, the County “may, in its discretion, award the contract to the next lowest responsible bidder or rebid the contract,” and the County acted within the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” … . 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. Matter of Concrete Applied Tech. Corp. v County of Erie, 2015 NY Slip Op 06087, 4th Dept 7-10-15

 

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