
    Margaret Kuhn, Plaintiff, v. The City of Buffalo et al., Defendants.
    
    (Supreme Court, Erie Equity Term,
    December, 1913.)
    Taxpayer’s action — statute designed to give taxpayers full benefit of competitive bidding for public work — plans and specifications not complying with rule of public policy illegal — contract for installing system of mechanical refrigeration at public market in city of Buffalo.
    Where a statute is designed to give taxpayers the full benefit of competitive bidding for public work, public policy requires that the plans and specifications be plain and definite and with-' out alternative provisions reserving to the representative of the municipality discretion as to what may be required to the end that, unless a patent article be involved, all bidders shall be afforded an equal opportunity to compete on the same basis and that there may be no fraud or collusion in awarding the contract.
    Plans and specifications which do not comply with this rule of public policy are illegal, and a taxpayer may attack a contract based thereon even in the absence'of fraud, collusion or favoritism.
    A contract for furnishing and installing a system of mechanical refrigeration at one of the public markets in the city of Buffalo at a cost in excess of $500, considered in a taxpayer’s action to enjoin the awarding of the contract, and held, that, as the plans and specifications are so ambiguous and indefinite as to be confusing to bidders who could not know unless by special inquiry whether a vertical or horizontal pump was required, the contract should be canceled, leaving the city at liberty to revise the specifications and readvertise for proposals.
    Taxpayer’s action to enjoin illegal official acts constituting a waste of public fnnds.
    Vernon Cole, for plaintiff.
    Jeremiah J. Hurley, assistant city attorney, for city and commissioner of public works.
    Guy B. Moore, for defendant Mollenberg-Betz Machine Co.
    
      
      Received too late for insertion in proper place.—[Repr.
    
   Laughlin, J.

In the month of June, 1913, the commissioner of public works of the city of Buffalo, pursuant to authority duly conferred upon him by the charter of the city, and by resolution of the common council, caused plans and specifications for furnishing and installing a system of mechanical refrigeration at the Washington market to be prepared and filed in his office, with a view to advertising for sealed proposals, as required by section 283 of the charter, it having been anticipated that the improvement would cost more than $500.

It was evidently deemed advisable and decided to prepare plans and' specifications containing material general provisions, with which all proposals were required to conform, affording, however, an opportunity for bidders to submit proposals for furnishing any make or design of refrigerating machines which would conform to all the general requirements of such plans and specifications. Said section of the charter is as follows:

“ Sec. 283. No expenditure dr contract exceeding or involving the sum of five hundred dollars shall be made by the Commissioner of Public Works without the consent of the Common Council. Before the Commissioner of Public Works shall enter into a contract for the performance of any work, the expense of which shall exceed the sum of Five hundred dollars, he shall cause a notice to be published in the official paper, and two other daily papers in the city, twice a week for two weeks, inviting proposals for the same, according to the plans and specifications to be filed in his office, and the contract shall be let to the lowest responsible bidder, who shall furnish security for its performance satisfactory to the Commissioner of Public Works.”

That section was designed to give the taxpayers the full benefit of competitive bidding; and both the law and public policy require that the plans and specifications must be plain and definite and without alternative provisions reserving to the representative of the municipality discretion as to what may be required, to the end that unless a patented article be involved, in which case a somewhat different rule necessarily obtains (Warren Brothers Co. v. City of New York, 190 N. Y. 297), all bidders shall be afforded an equal opportunity to compete on the same basis, and that there may be no fraud or collusion in awarding the contract this rule will be rigidly enforced by the courts in the interest of the public. Molloy v. City of New Rochelle, 198 N. Y. 402; Hart v. City of New York, 201 id. 45; Gage v. City of New York, 110 App. Div. 403; Matter of Morris & Cummings Dredging Co., 116 id. 257.

If the plans and specifications do not conform to that rule they are illegal, and a contract based thereon cannot withstand attack by a taxpayer, even though, as in the case at bar, there be no evidence of fraud, collusion or favoritism. Gage v. City of New York, supra, 415.

There is here no evidence of fraud, collusion or favoritism, but the plans and specifications are ambiguous and indefinite, so much so that bidders were confused and could not know, unless by special inquiry, whether a vertical or horizontal pump was required; and it has been shown conclusively and stands uncontradicted, and, after an adjournment to enable the defendants to controvert it if they could, they came into court and conceded that it cannot be controverted that the proposal of the defendant company to which the contract has been awarded does not, and the refrigerating machine it is required to furnish under the contract as made does not, conform to the requirements of the specifications in that such machine has not the displacement capacity of five cubic feet per ton minute with one hundred revolutions per minute.

The preparation of plans and specifications for this work required special skill and training, and for that reason one representing himself, and supposed to be, an expert in that line was employed, and the commissioner of public works and the common council evidently relied upon and were misled by him, both with respect to the definiteness of the specifications and with respect to the proposal of the defendant company being a compliance therewith. It is quite evident' that it was believed by the public officials when this contract was awarded that the machine which the defendant company proposed furnishing fully complied with the plans and specifications, for it appears that the question that received consideration was, considering the comparative efficiency of the machine proposed to be furnished by the defendant company and that proposed by the bidder whose total figures were lowest, which was in fact the lowest bid.

It seems quite clear to me, in the circumstances, that the contract should be canceled and annulled, leaving the city at liberty to revise the specifications and readvertise for proposals. Let judgment be entered accordingly.

Judgment accordingly.  