Opinion
June 1, 1998
Appeal from the Supreme Court, Nassau County (Murphy, J.).
Ordered that the order and judgment is affirmed insofar as appealed from, with costs.
This matter concerns the sale of surplus real property by the respondent County of Nassau pursuant to County Law § 215 County (6). The petitioner's bid for the property was rejected and the County accepted the higher bid of the respondent East Coast Floral, Inc. (hereinafter East Coast). However, that bid contained an unauthorized contingency that, in effect, gave East Coast a unilaterally-declared right to avoid its contractual obligation if the property did not receive "an acceptable Phase I environmental assessment". Therefore, the Supreme Court correctly vacated the bid, since it materially varied from the terms of the sale and conferred upon East Coast an advantage that was not made available to other bidders (see, Matter of ATT Communications v. County of Nassau, 214 A.D.2d 666).
Contrary to the appellant's contention, it does not have the right to compel the County to accept its bid, which was the next highest bid. Rather, "[a] bid is a binding offer to make a contract. And since a bid is only an offer, there is no contract until there is an acceptance" (10 McQuillin, Municipal Corporations § 29.65, at 461 [3d rev ed]). The seller is free to reject the bids prior to acceptance (see, S.S.I. Investors v. Korea Tungsten Min. Co., 80 A.D.2d 155, affd 55 N.Y.2d 934; see also, Matter of Schiavone Constr. Corp. v. Larocca, 117 A.D.2d 440; Matter of Callanan Indus. v. City of Schenectady, 116 A.D.2d 883).
The County had the right to reject all bids, including that of the appellant, because the appellant's "offer" was never accepted, and the County included as a term of the sale "the right to reject any or all bids in its sole discretion" (see, Merritt Meridian Constr. Corp. v. Gallagher, 96 A.D.2d 933, 934). As this Court held under analogous circumstances in Matter of Superior Hydraulic v. Town Bd. ( 88 A.D.2d 404, 409), the proper remedy is not to order the award of the contract to the next eligible bidder, but to reopen the bidding (see also, Matter of Sanford Fire Apparatus Corp. v. Board of Fire Commrs., 81 Misc.2d 992; Matter of Stage v. Whitehouse, 43 Misc.2d 703). Accordingly, the Supreme Court correctly denied that branch of the appellant's motion which was to compel the County to accept its bid.
Miller, J. P., Sullivan, Friedmann and Luciano, JJ., concur.