
    Cal’s Gear and Auto Parts, Inc., Appellant, v City of Rome et al., Respondents.
   — Judgment unanimously reversed, with costs, petition granted in accordance with memorandum, and matter remitted to respondent city for further proceedings, in accordance with the following memorandum: Petitioner appeals from a judgment which, following a Bench trial, dismissed its CPLR article 78 proceeding seeking to annul and set aside a contract awarded by respondent City of Rome (City) to respondent David Hyatt (Hyatt) for the purchase of landfill cover material. In January, 1982 the City advertised for bids of approximately 25,000 cubic yards of sand to be used as landfill cover. The bid specifications required that the material to be used (sand) be clean and dry and that the roadway to the sandpit be accessible. The City accepted the Hyatt bid of 75 cents per cubic yard for a total of $18,750 and rejected petitioner’s bid of 49 cents per cubic yard for a total bid price of $12,250. The City’s purchasing agent rejected petitioner’s bid on the ground that petitioner’s sand was wet and its pit was not accessible. That determination is not supported by the evidence submitted to the trial court. The record demonstrates that petitioner substantially and materially complied with the bid proposal specifications and that the City acted arbitrarily and capriciously in accepting the Hyatt bid. The judgment must be reversed, the award of a contract to Hyatt annulled, and the matter remitted to respondent City for a determination of whether petitioner’s bid should be accepted or the contract rebid (see Matter of Cave-of-the-Winds Scenic Tours v Niagara Frontier State Park & Recreation Comm., 64 AD2d 818, 819). (Appeal from judgment of Supreme Court, Oneida County, McKennan, J. — art 78.) Present — Callahan, J. P., Denman, Boomer, O’Donnell and Schnepp, JJ.  